Appendix — Durand v. Arif
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O2 976 DEC 1 9 2002
or Ge OF THE OLERK
In The
SUPREME COURT OF THE UNITED STATES
Edwin Durand, and Madelaine Durand, Petitioner‘(s),
V.
Syed M. Arif, Norman F. Rice, d.b.a North American
Technical Trading Co., Inc., Gloria M. Rice, Clifford S. Rice,
and Matthew C. Huntley, Esq.,
Respondent(s);
Jerry W. Slusser, James W. Scott, d.b.a Valtec Capital Corp.,
and Earthco Inc.,
Respondent(s).
On Petition For Writ Of Certiorari
To the Court of Appeal of the State of California
In And For The Third Appellate District
“APPENDIX TO PETITION”
FOR WRIT OF CERTIORARI
Edwin Durand, and Madelaine Durand, Pro Se Petitioner(s)
P.O. Box 34719 Reno, Nevada 89533
Tel: (775) 345-0141
“ SA ad ‘
APPENDIX TABLE OF CONTENTS
. Unpublished “OPINION” Court of Appeal of The State
of California, 3rd Appellate District, 06-24-02:
Page Al to Al4.
. Appellants’ petition for rehearing “DENIED” Court
of Appeal of the State of California, 3rd Appellate
District, 07-22-02: Page B1.
. Appellants’ petition for review “DENIED” Supreme
Court of California, 09-11-02: Page Cl.
. “ORDER AFTER HEARING OF NOVEMBER 29, 1999”
Superior Court of the State of California, In and for the
County of Lassen, 02-23-00: Page D1 to D3.
. “APPELLANTS’ PETITION FOR REHEARING”
Court of Appeal of the State of California, 3rd
Appellate District, 07/02/02: Page E1 to E41.
. “APPELLANTS’ PETITION FOR REVIEW”
Supreme Court of California, 08-05-02:
Page F1 to F41.
. “STATEMENT OF DECISION” Superior Court of
the State of California, In and for the County of
Lassen, 04-28-99: Page G1 to G24.
Se PE E N ION AND
DETERMINING RIGHT OF ESSION T
MINING CLAIMS * Superior Court of California, In
and for the County of Lassen, 04-23-99:
Page H1 toH20.
I.
APPENDIX TABLE OF CONTENTS
9. “U.S. Code Title 28 Part IV...; U.S. Constitution Article ~
IIl...; California. Penal Code Sections 132, 134, 118a, 119,
124, 126, 129; California Code of Civil Procedure
Sections 473(d) & Sec. 473(b);, 592, 128.5, 128.6, 128.7;
California Business and Professions Code Sections 6068,
6106; California Code of Civil Procedure Section 1033.5:
Page I-1 to I-11.
APPENDIX A
The opinion of the Court of Appeal of the State of
California, Third Appellate District
NOT TO BE PUBLISHED
COPY
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
SYED M. ARIF et al. C035449
Plaintiffs, Cross-defendants (Super. Ct. No.
and Respondents 29224)
GLORIA M. RICE et al.,
Cross-defendants and Respondents,
v. FILED
Jun 24 2002
EDWIN DURAND et al., Court of Appeal
Defendants, Cross-complainants _— Third District
and Appellants. Deena C. Fawcett
Appellants challenge the trial court’s post-trial rulings
denying them relief from judgment, declaring them to be
vexatious litigants, and imposing sanctions. Except to
reverse the determination of appellants as vexatious
litigants, we affirm the trial court's post trial rulings.
FACTS
Plaintiffs, cross-defendants, and respondents Syed M.
Arif (Arif), individually and doing business as North
Al
American Technical Trading Company (NATTCO), and
Norman F. Rice (Rice) (collectively plaintiffs) filed a
complaint on February 5, 1997, against defendant, cross-
complainant, and appellant Edwin Durand (Durand).
The complaint alleged Rice, prior to January 4, 1996,
owned real property in Lassen County known as Mapes
Ranch, along with mining claims and rights associated with
that land. He also owned certain mining claims on other
Lassen County lands owned by the federal government.
On January 4, 1996, NATTCO allegedly purchased
Rice’s property and mining rights. Under the purchase
agreement, Rice agreed to act as an agent of NATTCO to
aide the properties’ development. He also retained a royalty
interest. Plaintiffs thereafter applied for permits from the
County of Lassen to begin mining the properties for
pozzolan. According to plaintiffs, pozzolan is a “high-silica
high-alumina material that has traditionally been used as a
cement additive. One of the largest known natural deposits
of Pozzolan is located in the Long Valley Area [of Lassen
County] .”
The complaint accused Durand of disrupting
plaintiffs’ efforts to attract investors and commence mining.
Durand allegedly staked over plaintiffs’ mining claims,
recorded various documents attempting to assert title in the
properties and mining rights adverse to plaintiffs’ title, and
made slanderous statements regarding plaintiffs during a
closed meeting with staff of the Lassen County Planning
Commission who were reviewing plaintiffs’ mining permit
application.
Plaintiffs sought damages and injunctive relief under
causes of action alleging intentional interference with
economic relations, libel, slander of title, quiet title, and
trespass.
A2
Acting in pro per, Durand answered and, on April 17,
1997, filed a “First Amended Counterclaim Complaint for
Injunctive Relief and Damages” (First Counterclaim).
Durand named plaintiffs and a number of other individuals,
companies and agencies as cross-defendants, many of
whom purported to own claims which allegedly conflicted
with Durand’s claims. The _ cross-defendants and
respondents remaining in this appeal are, along with
plaintiffs, Gloria M. Rice; Clifford S. Rice, individually and
doing business as Norman Rice Enterprises, Inc.; Matthew
Huntley; and Jerry W. Slusser, individually and doing
business as Valtec Capital Corporation and Earthco. (For
ease of reference, we will refer to the plaintiffs and
remaining cross-defendants collectively as respondents
unless individual identification is required.)
On the same day Durand filed the First Counterclaim,
the trial court issued on order to show cause requiring
Durand to appear on June 5, 1997, and explain why the First
Counterclaim was not filed in a more condensed format.
On May 8, 1997, the trial court vacated the June 5
hearing, returned the First Counterclaim to Durand, and
gave him 30 days to file an amended pleading.
On June 5, 1997, Durand filed a “Second Amended
Counterclaim Complaint for Injunctive Relief and Damages”
(Second Counterclaim). He alleged he was the owner of
mining claims known as the Sierra Lady claims that
preceded and competed with respondents’ claims. He sought
to quiet title in the disputed properties and mining claims in
his favor.
Four days later, on June 9, Durand filed a
“Supplemental pleading to Second Amended Counterclaim
Complaint for Relief and Damages” (Supplemental
Pleading). In this pleading, Durand alleged he was
A3
introduced to Rice in 1991 as someone who could help him
obtain financing to develop his mining rights. Rice allegedly
misrepresented his intent to assist Durand, and instead used
confidential information obtained from Durand to develop
the mining business for himself and the other respondents.
Rice’s actions included obtaining allegedly invalid title and
mining claims and transferring them to NATTCO. Durand
sought damages and injunctive relief under the same causes
of action alleged by respondents: intentional interference
with economic relations, libel, slander of title, quiet title, and
trespass.
The trial court held a case management conference on
September 29, 1997. It described the case as one for a
“[dJjetermination of ownership of claim[s,] damages,
breach.” The court instructed Durand “to reduce pleadings
and to telephone parties on pleadings submitted to them
that they do not understand.” Durand filed no additional or
reduced pleadings.
The court held another case management conference
on March 25, 1998. Among other matters, the court allowed
Durand’s wife, Madelaine Durand, to intervene. (We refer to
them collectively as the Durands unless noted otherwise.)
According to its minute order, the trial court also ordered
the following: “Bifurcate Quiet Title to be set for trial in 45
days agreed to and stipulated by all parties.” The court
directed Mark Davis, counsel for respondents Jerry W.
Slusser, Earthco, and Valtec Capital Corporation, to prepare
the order.
On June 22, 1998, the trial court executed an order
prepared by Mr. Davis memorializing the orders made at
the March 25 management conference. This written order
says nothing about the case being bifurcated for trial.
Instead, it reads: “The Court dismissed, with prejudice, all
causes of action set forth in the Ist and 2nd Amended
Complaint, excepting the causes of action for Quiet Title
A4
solely regarding the parties|‘] respective claims of title.” The
document on record is certified as being a copy of an
original on file with the court, but the order does not appear
on the trial court’s docket sheet. The record contains no
proof the order was ever served on the Durands. In their
reply brief, the Durands claim they saw the order for the
first time when reviewing the trial court's files in 2000 after
they filed their notice of appeal with this court.
In a letter to the Durands dated July 16, 1998, counsel
for respondents referred to the case going to trial as the
“title phase of the lawsuit,” “title issue,” and “title portion
of this litigation.”
The quiet title issue proceeded to a court trial in
October 1998. On April 28, 1999, the trial court entered its
Statement of Decision, quieting title in all of the competing
claims in favor of respondents, and permanently enjoining
the Durands from entering upon respondents’ real property
and mining claims. The court also determined the Durands’
Sierra Lady claims were invalid except for two.
On May 11, 1999, the Durands filed motions to set
‘ aside the judgment, to declare a mistrial, and to order a new
trial. Much of the motion contained the same arguments the
Durands raised at trial. However, the Durands also
requested the court to hear their other causes of action
which were bifurcated from the first trial, claiming the
judgment had not resolved them. On August 20, 1999, the
trial court denied the motions.
The Durands did not file a notice of appeal from the
trial court’s denial of their motion for new trial within the
time allowed under rule 3 of the California Rules of Court.
Instead, on October 25, 1999, the Durands filed a motion
Entitled “Notice of Motion C.C.P. 473 Relief from Judgment
Taken by Mistake & To Set Aside etc. [&] Notice of Motion
AS
C.C.P. 592 Issues of Fact: Jury Trial.” Issues of Fact: 1
1 All subsequent references to sections are to the Code of
Civil Procedure unless noted otherwise
Nowhere in these papers did the Durands allege
what mistake, inadvertence, surprise or excusable neglect
they committed which resulted in the judgment entered
against them. Instead, the Durands attempted to bring all of
their pleadings and evidence before the court again in order
to receive a determination of their bifurcated causes of
action. The Durands asked the court to set aside its
judgment as being only an interim order until all remaining
causes of action were heard.
Respondents’ opposed, arguing each of the
Durands’ theories for damages was predicated on the
Durands’ Sierra Lady claims being legally valid. Because the
trial court concluded the Durands’ claims were not valid,
their remaining causes of action were moot. They also
argued the Durands failed to show any mistake,
inadvertence, surprise, or excusable neglect. (Respondents
did not as part of their opposition cite to the June 22 written
order allegedly dismissing all of the Durands’ other causes
of action.)
On November 19, 1999, while the Durands’
motions were pending, respondents filed a motion for
sanctions against the Durands and a motion to designate the
Durands as vexatious litigants. The Durands responded by
filing their own motion for sanctions against respondents.
By written order filed February 23, 2000. the trial court
denied all of the Durands’ motions, but granted respondents
motions for sanctions and declaring the Durands to be
vexatious litigants. Regarding the Durands’ motions, the
trial court reasoned as follows: “The Motion for Relief from
A6
Judgment under section 473 is denied on its merits, because
it is not timely, because that section is not a substitute for
appeal, and because it is yet another attempt to have the
Court reconsider its original Judgment. The Motion under
CCP 592 is denied because, the Durands having lost on the
issue of ownership of the disputed claims, there is nothing
left to litigate. The Court’s Judgment . dated April 23, 1999,
was intended to and did become a final determination of the
rights of the parties, subject only to appellate review. There
is nothing left to litigate except the mutual motions for
sanctions.” |
The trial court subsequently filed its Prefiling Order
designating the Durands as vexatious litigants.
The Durands filed a Notice of Appeal on April 13,
2000, appealing from the trial court’s February 23, 2000
order on the parties’ post-trial motions and appealing the
trial court's April 23, 1999 judgment. On respondents’
motion, we dismissed the appeal as untimely filed in so far
as it concerned the trial court’s judgment on the merits.
In what remains of this appeal, the Durands assert
the trial court:
1. Abused its discretion in denying Durands’
post-trial motion under section 473;
2. Improperly denied the Durands their right to
a jury trial on issues of fraud and economic interference they
claim remained pending after the trial court quieted title in
favor of respondents;
3. Erred in designating the Durands as
vexatious litigants; and
4. Abused its discretion in awarding sanctions against
the Durands.
A7
DISCUSSION
I
Trial Court Did Not Abuse Its Discretion in Denying the
Durands’ Motion for Relief Under Section 473
The Durands argue the trial court abused its
discretion in denying them relief under section 473. They
assert the tort causes of action bifurcated from the first trial
were independent of the quiet title cause of action. They also
believed they could not obtain an appealable final judgment
until the trial court held a trial on all of their causes of
action. Therefore, they filed their motion under section 473
to obtain a trial of their tort theories and to obtain an
appealable final judgment. They argue the trial court abused
its discretion in denying them the requested relief. We
disagree.
Disposition of a motion for relief under section 473
rests largely in the discretion of the trial court, and its
decision will not be disturbed on appeal unless there has
been a clear abuse of discretion. (Eigner v. Worthington (1997)
57 Cal.App.4th 188, 196, fn. 6.) Abuse of discretion is
established if, considering all of the circumstances before it,
the trial court’s decision exceeded the bounds of reason.
(People v. Parmar (2001) 86 Cal.App.4th 781, 792.) 2
2 Section 473, subdivision (b) includes provisions for
both discretionary and mandatory relief. Mandatory relief is
available only from entry of default or judgment of default
(English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.
4th
Respondents first argue the Durands’ tort causes of
action were all dismissed pursuant to the trial court’s order
entered June 22, 1998. Given the court records surrounding
the validity of this order are unclear — no proof of service on
A8
the Durands, no record of the order in the trial court's
docket, the order’s contradiction with the trial court's
minute order — we determine to resolve the Durands’
argument on another basis.
A party seeking relief under section 473 bears “the
double burden of showing (1) diligence in making the
motion after discovering its own mistake, and (2) a
satisfactory excuse for the occurrence of that mistake.”
(Eigner v. Worthington, supra, 57 Cal.App.4th at p. 196, italics
added.) If the party “fails to show that a judgment has been
taken against him through his mistake, inadvertence,
surprise or excusable neglect the court may not grant relief.
It has no discretion.” (Parage v. Couedel (1997) 60 Cal.App.4th
1037, 1042, internal quotation marks omitted, italics added.)
The Durands’ papers on the motion below and their
briefs on this appeal argue the trial court’s judgment was
mistaken. However, the Durands do not argue in their
papers the judgment was mistaken because of their mistake.
Nowhere do the Durands allege the trial court’s judgment
resulted from their mistake, inadvertence, surprise or
excusable neglect. 3
3 Because the Durands filed an answer to plaintiffs’
complaint, we presume they sought discretionary relief, as
they are not entitled to mandatory relief.
At oral argument, Mrs. Durand claimed their mistake
was to rely on rule 232.5 of the California Rules of Court as
- grounds for ensuring they would be able to proceed to trial
on their remaining causes of action after trial on the quiet
title cause of action. Rule 232.5 states in pertinent part:
“When a factual issue raised by the pleadings is tried by the
court separately and prior to the trial of other issues, the
judge conducting the separate trial shall announce the
tentative decision on the issue so tried but no proposed
judgment shall be prepared until the other issues are tried,
A9
except when ... a separate judgment may otherwise be properly
entered at that time.” (Italics added.)
Here, the trial court determined the Durands’
remaining causes of action became moot upon its resolution
of the quiet title action. As a result, the trial court concluded
it had nothing left to adjudicate, and it properly entered
judgment at that time as allowed by rule 232.5. “[A]lthough
a case may originally present an existing controversy, if
before decision it has, through act of the parties or other
cause, occurring after the commencement of the action, lost
that essential character, it becomes a moot case or question
which will not be considered by the court.” (Wilson v. L.A.
County Civil Service Coni. (1952) 112 Cal.App.2d 450, 453.)
The Durands mistakenly believed rule 232.5 required
the trial court to proceed to trial on their remaining causes
of action because in their opinion those causes of action
were not moot. However, nothing in rule 232.5 prohibited
the trial court from determining the remaining causes of
action had become moot, or required the court to adjudicate
causes of action it determined had become moot.
More significantly for this matter, the trial court's
judgment did not result from the Durands’
misinterpretation of rule 232.5. The Durands’ view of rule
232.5 had absolutely no bearing on the trial court’s decision
to enter judgment against them. Indeed, when pressed
further at oral argument, Mrs. Durand acknowledged her
contention of mistake was the trial court misinterpreted rule
232.5, i.e., the mistake was made by the trial court, not her.
The Durands’ failure to prove the judgment resulted from
their mistake denied the trial court of any discretion except
to deny their section 473 motion, which the trial court
correctly did.
Alo
II
Trial Court Did Not Unlawfully Deny the Durands
Their Right to a Jury Trial
The Durands allege the trial court’s denial of their
section 473 motion not only was an abuse of discretion, but
was also a denial of their right to a jury trial under section
592 on their tort causes of action. The Durands could not use
section 473 to attack a trial court’s denial of a jury trial
unless such an order resulted from their mistake. Again, the
Durands fail to allege any mistake on their part which
resulted in them losing whatever right they may have had to
a jury trial on their remaining claims.
Il
The Trial Court Erroneously Determined
the Durands Were Vexatious Litigants
The Durands claim the trial court erroneously
determined they were vexatious litigants as a result of their
filing the motion under section 473. We agree.
In their motion against the Durands, respondents
alleged the Durands were vexatious litigants under
subdivisions (b) (2) and (b) (3) of section 391. These statutes
define a vexatious litigant as one who “does any of the
following:
SSSSSSSHSSSSHEHSSHESSHSHSSHSHSHSSSSEHHESHSESHESSSHEHSEESHEHSEHSESHEHEESSEHEESEEHEEESHEE EHH EESE
“(2) After a litigation has been finally determined
against the person, repeatedly relitigates or attempts to
relitigate, in propria persona, either (i) the validity of the
determination against the same defendant or defendants as
to whom the litigation was finally determined or (ii) the
All
cause of action, claim, controversy, or any of the issues of
fact or law, determined or concluded by the final
determination against the same defendant or defendants as
to whom the litigation was finally determined.
“(3) In any litigation while acting in propria persona,
repeatedly files unmeritorious motions, pleadings, or other
papers, conducts unnecessary discovery, or engages in other
tactics that are frivolous or solely intended to cause
unnecessary delay.”
Respondents specifically alleged the Durands’ motion
under section 473 demonstrated the Durands were
vexatious litigants.
The Durands failed to appeal in a timely manner either
the judgment or the denial of their motion for new trial.
Their litigation was thus finally determined against them.
However, they subsequently brought their motion for relief
under section 473 and raised the same issues which the trial
court resolved in denying them a new trial.
The trial court granted respondents’ motion under
subdivision (b) (2), but did so without stating its reasoning.
Subdivision (b) (2) applies when a party repeatedly
relitigates or attempts to relitigate the judgment or issues
finally determined against him. Here, the Durands filed
only one motion after their claims had all been finally
determined against them — their section 473 motion. While
that motion may have attempted to relitigate the matters
raised in the motion for new trial, it was the first time the
Durands attempted to relitigate those issues after the trial
court's judgment became final. Thus, it was not a “repeated”
attempt to “relitigate” issues after a judgment became final.
No evidence supports the trial court's determination the
Durands were vexatious litigants under subdivision (b) (2)
Al2
~ IV
The Trial Court Did Not Abuse Its Discretion Awarding
Sanctions Against the Durands
Respondents filed motions for sanctions under
sections 128.5 and 128.6 against the Durands, claiming the
section 473 motion was frivolous, was brought for an
improper purpose, and lacked legal and evidentiary
support. The Durands assert the trial court erred in granting
respondents’ motions. We disagree.
“We review the imposition of monetary sanctions
for a prejudicial abuse of discretion.” (‘20th Century Ins. Co.
v. Choong (2000) 79 Cal.App.4th 1274, 1277.)
Prior to receiving the section 473 motion, the trial
court had already determined on a motion for new trial the
Durands were not entitled to any of the relief they sought.
The Durands disagreed with those determinations, but failed
to appeal them to this court in a timely manner. Instead, they
filed their section 473 motion, raising the same arguments
raised in the motion for new trial, and doing so without
demonstrating any legal basis for seeking relief under section
473. The trial court did not abuse its discretion in awarding
sanctions.
V
Durands’ Motion for Sanctions
The Durands ask us to impose sanctions on
respondents. We deny the request. (§ 907; In re Marriage of
Flaherty (1982) 31 Cal.3d 637.)
A113
DISPOSITION
The order determining the Durands to be vexatious
litigants is reversed. All of the remaining appealed orders
are affirmed.
The parties shall bear their own costs on appeal.
NICHOLSON , Acting P.J.
We concur:
HULL 3
KOLKEY __J.
Al4
APPENDIX B
The decision of the Court of Appeal of the State of
California, Third Appellate District, denying Appellants’
Petition for Rehearing
IN THE
Court of Appeal of the State of California
IN AND FOR THE
THIRD APPELLATE DISTRICT
FILED
JUL 22 2002
COURT OF APPEAL -
THIRD DISTRICT
DEENA C. FAWCEI1T
SYED M. ARIF et al.,
Plaintiffs, Cross-Defendants and Respondents,
GLORIA M. RICE et al.,
Cross-Defendants and Respondents,
v.
EDWIN DURAND et al.,
Defendants, Cross-Complainants and Appellants.
C035449
Lessen
County
No. 29224
BY THE COURT:
Appellants’ petition for rehearing is denied.
Dated: July 22, 2002
NICHOLSON, Acting PJ.
Bl
APPENDIX C
The decision of the Supreme Court of the State of
California, denying Appellants’ Petition for Review En
Banc
Court of Appeal, Third Appellate District - No. C03 5449
S108975
IN THE SUPREME COURT OF CALIFORNIA
En Banc
SYED M. ARIF et a!., Plaintiff, Cross-defendants and
Respondents,
Vv.
GLORIA M. RICE et a!., Cross-defendants and Respondents;
EDWIN DURAND et a!., Defendants, Cross-complainant and
Appellants.
Petition for review DENIED.
SUPREME COURT
FILED
SEP 1 1 2002
Frederick K. Ohirich Clerk
DEPUTY
GEORGE
Chief Justice
Cl
APPENDIX D
The Order After Hearing of November 29, 1999, of the
Superior Court of the State of California, In and for the
County of Lassen
LASSEN COUNTY COURTS FILED
220 S. Lassen Street FEB 23 2000
Susanville, Ca 90130 Lassen County Superior Court
R. REED, CHIEF ADMIN. OFFICER
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LASSEN
SYED M. ARIF, etc, et al., No. 29224
Plaintiffs, ORDER AFTER HEARING
OF NOVEMBER 29, 1999
vs.
EDWIN DURAND, et al.
Defendants.
EDWIN DURAND, etc., et ux.,
Cross Complainants,
VS.
SYED M. ARIF, etc., et al.,
Cross Defendants.
The Durands have filed three post judgment motions.
They seek relief under CCP §473, CCP §592, and CCP
§128.7(c)(1). The Arif plaintiffs and cross defendants have
sought sanctions under 128,7, CCP; and have asked that the
Durands be designated vexatious litigants under CCP §391.
The Cross-Defendants Valtec and Earthco have also asked
for sanctions under section 129.7, CCP.
It is ORDERED that the Durands Motions are denied. The
Motion for Relief from Judgment under section 473 is
denied on
D1
its merits, because it is not timely, because that section is not
a substitute for appeal, and because it is yet another attempt
to have the Court reconsider its original Judgment. The
Motion under CCP 592 is denied because, the Durands
having lost on the issue of ownership of the disputed claims,
there is nothing left to litigate. The Court’s Judgment for
Permanent Injunction and Determining Right of Possession
dated April 23, 1999, was intended to and did become a final
determination of the rights of the parties, subject only to
appellate review. That decision was reviewed on the
Durands’ motion to reconsider and was affirmed by the
Order on Various Post Trial Matters dated August 20, 1999.
There is nothing left to litigate except the mutual motions
for sanctions.
It is further ORDERED that the Motion of the Durands
for sanctions is denied. It is ORDERED that the Motions of
the Arif plaintiffs and the Valtec cross defendants are
granted to the extent of awarding sanctions under §128.5
and 128.7, CCP, in the amount of $1,000.00 for each group; a
total of $2,000.00 for all non-Durand parties.
The Arif plaintiffs and cross defendants have moved for
an Order determining that as to them the Durands are
vexatious litigants and prohibiting the Durands from filing
new litigation without first obtaining permission of the
presiding judge of whatever California jurisdiction in which
they wish to file. That motion is granted. Edwin and
Madeline Durand are determined to be vexatious litigants
within the provisions of §391(b)(2), CCP. They are
prohibited from filing any litigation against Syed M. Arif;
North American Technical Trading Co; Nattco; North
D2
American Technical Trading Co. (Inc. Of Illinios); Norman
F.Rice; Gloria M. Rice; Clifford S. Rice; Norman Rice
Enterprises, Inc.; Arthur Koffinke, Jerry W. Slusser,
individuallY and dba Valtec Capital Corporation & Earthco
unless they first follow the. procedures set out in CCP
§391.7.
Dated: February 18, 2000
/S
Larry L. Dier, Judge
D3
APPENDIX E
Appellants’ Petition for Rehearing, Court of Appeal of the
State of California, Third Appellate District
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA IN AND FOR
THE THIRD APPELLATE DISTRICT
SYED M. ARIF et al., CASE NUMBER.
Plaintiffs /Cross- Defendants 3 Civil C035449
and RespondentS
and Lassen County Sup.
Ct. #29224
JERRY SLUSSER, VALTEC/EARTHCO et al .
Cross-Defendants and Respondent,
Vs
EDWIN and MADELAINE DURAND
Defendant/Cross-Complainants
and Appellants.
APPELLANTS’ PETITION FOR REHEARING
E1
LEGAL DISCUSSION ...... igi nekaineiimartinenbniCeinth 10
A.
TRIAL COURT LACKED JURISDICTION
OVER ISSUE OF VALIDITY OF FEDERAL
an cicnntstaniiseacnciinevensucenes 10
APPELLATE COURT’S OPINION BASED
ON AN UNBRIEFED ISSUE.................... 11
TRIAL COURT’S REFUSAL TO
DETERMINE DURANDS’ TORT CAUSE OF
ACTION IS A VIOLATION OF DURANDS’
ie Se i cctcekaesnencuscacksaetiseksikinnseie 12
DURANDS FORMALLY REQUEST
APPELLATE COURT TO GRANT
EE PEE ORME cvincsccenrsesievsenixdevones 13
THE RECORD CLEARLY DEMONSTRATES
THE TRIAL COURT'S ABUSE OF
OTR cnicninccininiinesunisuan caneieutida 14
TRIAL COURT’S OWN WORDS STATES IT
DID NOT CONSIDER ALL
EI vikseiscecsxverecnpionnisnsome 15
TRIAL COURT NEVER DETERMINED
DURANDS’ TORT
CPE Oe FE iiccreccsercnssensssssernvses 15
E2
H. THE APPELLATE COURT CANNOT
PRESUME TRIAL COURT’S DECISION
PR iitnehotarmievionivistimicon 17
APPELLATE COURT CANNOT PRESUME
TRIAL COURTDECIDED ISSUE............... 21
APPELLATE COURT ERRONEOUSLY
STATED DURAND FAILED TO ARGUE
. DURAND WAS SURPRISED BY TRIAL
COURT RULINGG................... Lvontbadeences 26
. IT ISOF GREAT PUBLIC IMPORTANCE
THAT ATTORNEYS ARE NO LONGER
CONSIDERED ABOVE THE LAW............ 29
. THIS COURT’S AFFIRMATION OF THE
TRIAL COURT’S SANCTIONS REVERSES
THE “SAFE HARBOR” PROVISION......... 31
TABLE OF AUTHORITIES
PAGE
Adoption of Alexander S.
CFG Oe Ge BF vice vssincsvsnsnestannen 12, 29
Andres v. Armstrong
(1959) 168 Cal.App.2d 344.................. 20
Bowden v. Green (1982)128 C.A.3d 65, 70,
Pe iiitietiorsstrsndunincseigvekaeaae 25
California Cas. Ins. Co. v. Super. Ct.
(1996) 46 CA4th 1145............ccccccesees 12
Eigner v. Worthington
(1997) 57 Cal.App.4™ 188..............0004. 14
Elston v. City of Turlock —
FE Pe IEE biivesnsveincoscanesnnsned 29
English v. IKON Business Solutions Inc.
(2001) 94 Cal.App.4" 130..........0...000. 27
Estate of McAfee
” I eI TGFs sevkcitcdensdncseensoniees 20
In re Marriage of Flaherty
he BRS SS Sy er rennrnre 8, 29
Kaliterna v. Wright
(1949) 94 Cal.App.2d 926................66. 20
FA
Lafayette Morehouse Inc. v. Chronical Pub. Co
Fee Ew, Se ae seek
Marriage of Oddino _ :
oo : ER 10
Nevada Sierra Oil Co. v. Miller
EE 1]
Packer v. Sillas
(1976) 128 Cal.Rptr 907................ ee
People v. Parmer
(2001) 86 Cal.App.4" 781............... 14, 24
Peterson v. Ellebrecht
(1962) 205 Cal.App.2d 718.................. 19
Sime v. Malouf
Boe) 10
Southern Pac. Co. v. Eshelman
fs re 22, 23
State Farm Fire & Casualty v. Pietak
(2001) 90 Cal.App.4" 600.......... 26, 28, 29
Wilson v. L.A. County Civil Service Com.
(1952) 112 Cal.App.2d 450.................. 22
Thomas Van Dyken Joint Venture v. VanDyken,
90 Wis. 236, 279 N.W. 2d 459, 463........... 16
Yeap v. Leake ‘
(1997) 60 Cal.App.4" 591..............0000. 27
E5
STATUTES & COURT RULES
CRC Rule
CO Wi iivkeseavcsscnichearcineioncneen 30
COR Bats sis cen 12, 15, 16, 21, 23, 26, 27, 28
ODE oii eee 8
Ce Eilon thin tsin tee aeeaiens 18, 28
Ce Bi ickasssysticncneaon 20, 21, 22
Cha. ©. Be anssiccstcnivcemicncenncysson 12
CONSTITUTIONS
U.S. Constitution, Art. ITI, § 2.................. 10
U.S. Constitution, 14" Amendment Peer marr 13
California Constitution, Art. 1, § 7............. 13
California Constitution, Art. 1, § 16............ 13
California Constitution, Pe eee neue 13
MISCELLANEOUS
7 Witkin Cal. Procedure (4 ed. 1997)
I BG asks seco vitaveeesdticases Y in yg Mie:
Black’s Law Dictionary A TON es maaan PEEL 16, 21
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA IN AND FOR
THE THIRD APPELLATE DISTRICT
SYED M. ARIF et al., CASE NUMBER.
Plaintiffs /Cross- Defendants 3 Civil C035449
and RespondentS
and Lassen County Sup.
Ct. #29224
JERRY SLUSSER, VALTEC/EARTHCO etal. ~
Cross-Defendants and Respondent,
v. APPELLANTS’ PETITION
FOR REHEARING
EDWIN and MADELAINE DURAND
Defendant/Cross-Complainants
and Appellants
INTRODUCTION
_ This court based its opinion on its own theory
rather than the Respondent's arguments. This
court stated that the validity of the Order of June
22, 1999, which was, along with the allegedly
falsified Local Rules used by Mr. Kellison, the only
defense used by the Respondents, is unclear, and
therefore determined to resolve this appeal on
another basis.
This court’s opinion is predicated on the
erroneous assumption that the trial court had
jurisdiction to dismiss or consider “moot” a viable
cause of action, aiid that the Durands never
asserted their mistake, inadvertence, surprise, or
excusable neglect.
E7
This court's opinion states, “Here, the trial court
determined the Durands’ remaining causes of
action became moot upon its resolution of the quiet
title action.” (Opinion pp. 11) The first statement
by the trial court that Durands’ other causes of
action had disappeared or become “moot” was in
the “Order” of February 23, 2001, which is the
“Order” being appealed. The Record is very clear
that Durands’ tort cause of action was not “moot,”
and that the trial court just refused to allow a fair
adversarial hearing on the issue.
This court affirms on the ground that there must
have been some unknown reason, which supported
this supposed “finding” by the trial court. As we
demonstrate below, there is no evidence, or legal
reasoning, which supports the trial court's
determination the Durands’ “Fraud” cause of
action is “moot,” and this arbitrary dismissal in the
“Order” now being appealed is a violation of
Durand’s civil rights of due process.
We will also demonstrate below that the
Durands’ argued mistake, and surprise.
Durand will also demonstrate that the Superior
Court of Lassen County has no jurisdiction over
Federal Statutes pertaining to Federal lands and so
the “Judgment” of April 28, 1999, pertaining to the
mining claims is void.
This court affirms the trial court's granting of
sanctions in violation of the “safe harbor”
provision.
This court denied sanctions against the
respondents and their attorneys based on CCP §
907 and In re Marriage of Flaherty (1982) 31 Cal.3d
E8
637. Both the statute and cited case law deal with
the filing of a frivolous appeal. There is nothing in
this statute or case law dealing with the egregious
violations of the Penal Code and the Business and
Professions Code as shown by uncontrovertable,
indisputable evidence, that was _ allegedly
perpetrated by the Mr. Kellison, Mr. Davis, and
their clients.
Whether the court grants a rehearing or not, it
must report these unlawful acts to the State Bar,
the Attorney General’s Office, and the Department
of Justice for criminal prosecution, and permanent
disbarment. Attorneys can no longer be considered
“above the law” as they have in the past and
present.
_ FACTS NOT STATED IN OPINION
There are numerous facts that were not
enumerated in this courts opinion: especially
important were the interference with economic
relations, theft of intellectual property and
research, unjust enrichment, etc., that were
perpetrated by Mr. Jerry Slusser and his associates
who comprise Valtec Capital Corporation and
Earthco, against Durand and which make up
Durand tort cause of action.
A complete factual recital of the egregious acts
committed by the Respondents and their attorneys
was included in the Appellant's Opening and
Reply Briefs and will not be reiterated here.
The statement that Durand attempted to bring
all of their pleadings and evidence before the court
again in order to receive a determination of their
bifurcated causes of action is erroneous. (Opinion
E9
pp. 6) The evidence included in the 473 motion had
not been presented to the trial court since it was
barred from the initia! quiet title trial.
A.A. refers to Appellants Appendix; A.O.B. refers
to Appellants Opening Brief; R.T. refers to
Reporter's Transcript.
LEGAL DISCUSSION
A. TRIAL COURT LACKED JURISDICTION
OVER ISSUE OF VALIDITY OF FEDERAL
MINING CLAIMS
Jurisdictional defects are never waived. Thus,
jurisdictional defects can be raised at any time,
including for the first time in a petition for
rehearing (Sime v. Malouf (1950) 95 CA2d 82, 116,
213 P2d 788)
Issues concerning trial court subject matter
jurisdiction must be addressed no matter how far
into the appellate process the matter is first raised.
(Marriage of Oddino (1997) 16 C4th 67, 73, 65 CR2d
566) Jurisdictional issue was raised for the first
time in petition for supreme court review.
The Constitution of the United States, Article III,
Section 2 states, in pertinent part:
“The judicial power shall extend to
all cases, in law and equity, arising under
this Constitution, the laws of the United
States, and treaties made, or which shall
be shall be made, under their authority.”
E10
The U.S. District Courts have jurisdiction over
federal lands, federal laws, and federal issues. The
question of the validity of mining claims on federal
lands in this case is based on the United States
Code, the Code of Federal Regulations, and the
U.S. Public Law 94-579-Oct. 21, 1976 commonly
known as FLPMA, the Federal Land Policy and
Management Act and therefore the subject matter
jurisdiction is under the Federal Courts.
Judge Noel Watkins on March 25, 1998 stated he
doubted the Superior Court in Lassen County had
jurisdiction. a
“If, however, it appears from the bill
that the complainant asserts a right under
and by virtue of some law of the United
States, and that such right constitutes, in
whole or in part, its alleged cause of
action, and demands for its determination
the construction or proper application of
a law of the United States, it is equally
clear that jurisdiction is shown..” (Nevada
Sierra Oil Co. V. Miller (1899) 97 F. 681)
Any judgment made where the trial court
lacked jurisdiction is void. Any subsequent
judgment or order predicated upon a void
judgment is void.
B. APPELLATE COURT’S OPINION BASED ON
AN UNBRIEFED ISSUE
The Appellate Court's affirmation of the trial
court's denial of Durands’ 473 motion has two
prongs:
E11
1. That the Appellate Court had found that
Durands’ tort causes of action had
somehow become “moot,” and therefore
“nothing in rule 232.5 prohibited the trial
court from determining the remaining
causes of action had become moot, or
required the court to adjudicate causes of
action it determined had become moot.”
2. That the Durands’ never asserted their
mistake, inadvertence, surprise, or
excusable neglect for a 473 motion to be
granted.
The issue of how Durands’ tort cause of action
somehow became “moot” is an unbriefed issue.
A petition for rehearing must be granted if the
decision was based on an issue not raised or
briefed by any party and the court failed to give
the parties an opportunity to present
supplementary brief on that issue. (Gov.C. § 68081;
Adoption of Alexander S. (1988) 44 C3d 857, 864, 245
CR 1, 5; California Cas. Ins. Co. v. Super. Ct.
(Chellette) (1996) 46 CA4th 1145, 1149-1150, 54
CR2d 118, 119-120)
C. TRIAL COURT’S REFUSAL TO DETERMINE
DURANDS’ TORT CAUSE OF ACTION IS A
VIOLATION OF DURANDS’ CIVIL RIGHTS
It will be clearly shown below, in the words
written by Mr. Craig Kellison and adopted by the
trial court, that the trial court refused to consider
or determine Durands’ tort cause of action. Such
abuse of discretion constitutes a violation of
Durands civil rights and must be reversed.
E12
The United States Constitution, 14%
Amendment, Section 1, states in pertinent part:
“...mor 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.”
The California Constitution, Article 1, Section 7
states in pertinent part: “(a) A person may not be
deprived of life, liberty, or property without due
process of law or denied equal protection of the ©
laws...”
The California Constitution Article 1, Section 16,
states in pertinent part: “Trial by jury is an inviolate
right and shall be secured to all...” (Emphasis
added)
In violating Durands’ civil rights, the judge
violated his oath of office which states in pertinent
part: “I will bear true faith and allegiance to the
Constitution of The United States and the
Constitution of the State of California...” (Ca.
Const. Article 20)
D. DURANDS FORMALLY REQUEST
APPELLATE COURT TO GRANT EQUITABLE
RELIEF
The record on appeal proclaims the trial court
did not determine Durands’ tort cause of action,
and violated Durands civil rights: under the
Constitutions of the United States and the State of
California.
E13
Based on the trial courts refusal to allow proper
adjudication of Durands’ tort cause of action and
the civil rights violations, Durand formally
requests the Court of Appeals to grant equitable
relief by reversing the trial court’s order and
allowing Durand to proceed to trial with their tort
cause of action.
E. THE RECORD CLEARLY
DEMONSTRATES THE TRIAL
COURT'S ABUSE OF DISCRETION
This court’s opinion states that disposition of
the motion per CCP 473 will not be disturbed
unless there is an abuse of discretion (Eigner V.
Worthington (1997) 57 Cal.App.4 188, 196, fn. 6)
and that abuse of discretion is established if,
considering all of the circumstances before it, the
trial court’s decision exceeded the bounds of
reason. (People v. Parmer (2001) 86 Cal.App.4® 781,
792.) (Emphasis added) (Opnion pp. 9)
However, People v. Parmer, supra, 86
Cal.App.4" 781 further states:
“the scope of discretion always
resides in the particular law being
applied; action that transgresses the
confines of the applicable principles of
law is outside the scope of discretion
and we call such action an abuse of
discretion.”
We will demonstrate below that
the trial court transgressed the
“confines of the applicable principles of
law.”
E14
F. TRIAL COURT’S OWN WORDS STATES IT
DID NOT CONSIDER ALL CIRCUMSTANCES.
The Statement of Decision was filed April
28, 1999, which stated:
“This issue is also difficult for
the Court to respond to. Apparently,
the Durands maintain that the Court
should sympathize with the notion that
they were somehow taken advantage of
by some or all of the Plaintiffs and
Cross-Defendants. Here, the Plaintiffs
and Cross-Defendants presented a
prima facia case establishing their
possessory interest to each and all of the
Ironcloud, Jennifer, Native American
and R&R claims. Thus, the issue of who-
did-what-to-whom would appear to be
outside of the scope of the narrow issue of
quieting title that was presented to this
Court for consideration.” (Emphasis
added)(A.A. Vol. 12, 3190-3191)
G. TRIAL COURT NEVER
DETERMINED DURANDS’ TORT CAUSE OF
ACTION
This court’s opinion further states: “Here,
the trial court determined the Durands’ remaining
causes of action became moot upon its resolution
of the quiet title action. As a result, the trial court
concluded it had nothing left to adjudicate, and it |
properly entered judgment at that time as allowed
by rule 232.5.” (Emphasis added) (Opinion pp. 11)
Rule 232.5 of the Galifotnia Rules of Court,
states:
E15
“When a factual issue raised by the
pleadings is tried by the court
separately and prior to the trial of other
issues, the judge conducting the
separate trial shall announce the
tentative decision on the issue so tried
and shall, .. . but no proposed
judgment shall be prepared until the
other issues are tried, except when an
interlocutory judgment or a separate
judgment may otherwise be properly
entered at that time.”
Rule 232.5 does not explain when a separate
judgment is available.
The Deluxe Black’s Law Dictionary, Sixth
Edition states:
“A ‘determination’ is a ‘final judgment’
for purposes of appeal when the trial
court has completed its adjudication of
the rights of the parties in the action.
Thomas Van Dyken Joint Venture v. Van
Dyken, 90 Wis. 236, 279 N.W.2d 459,
463.”
The “Order” of February 23, 2000, which is
now being appealed, is the first time the trial court
referred to Durands’ tort cause of action as being
“moot.” However, the trial court’s own words in
the Statement of Decision are clear and convincing
evidence that Durands’ tort cause of action was
never determined, as required by law.
The question is: 1. How did it become moot?
2. Why did it become moot?
3. Where did it become moot?
4. When did it become moot?
E16
The answer to those questions is “it didn’t.” The
trial court did not, as this court’s opinion states,
resolve or “determine” the factual dispute of the
Durands’ tort cause of action; to the contrary, the
trial court refused to determine this factual
dispute. In fact the trial court's refusal to
determine an issue of fact goes against every
authority on point and was erroneous as a matter
of law.
The Record is clear that Durands’ tort cause of
action was viable, that the trial court had no legal
reason to consider it not viable, and because
Durand kept asserting their right to due process,
finally stated in the “Order” of February 25, 2000
that it was “moot,” but did so without adjudication
or determination as required by law.
H. THE APPELLATE COURT CANNOT
PRESUME TRIAL COURT’S DECISION WAS
CORRECT
“When the record clearly demonstrates
what the trial court did, we will not presume it
did something different.” (Lafayette Morehouse,
Inc. v. Chronicle Pub. Co. (1995) 39 CA4th 1379,
1384, 46 CR2d 542, 545)
“Where the trial court has made no
findings, the reviewing court will not
on such a record make independent
findings of its own, and where the facts
are in conflict the appellate court will
not supply the missing facts.” Packer v.
Sillas (1976) 128 Cal.Rptr. 907, 57 C.A.3d
206.
E17
A record demonstrating that the trial court
failed to perform its function of weighing evidence
or failed to exercise its discretion in making a
discretionary ruling overcomes the presumption of
correctness and warrants a reversal on appeal.
What the trial court did was refuse to allow
Durands’ viable tort cause of action to be
adjudicated in a fair adversarial hearing, thus
violating Durands’ civil rights.
This court's opinion presumed the trial court
had “determined” Durands’ tort cause of action,
when in fact the record clearly states otherwise.
CCP 632 states in pertinent part:
~ “... The court shall issue a statement of
decision explaining the factual and legal
basis for its decision as to each of the
principal controverted issues at trial
upon the request of any party
appearing at the trial.”
The lack of adjudication of the Durand tort
cause of action was brought to the trial court's
attention in Durand’s Request for Statement of
Decision, (A.A. Vol. 12, 3116-3117) Proposals to
Issues Raised in Defendant/Cross-Complainants
Request for Statement of Decision, (A.A. Vol. 12,
3143-3148) and the Objection to (Proposed)
Statement of Decision (A.A. Vol. 12, 3167-3169).
The trial court stated: “Thus, the issue of who-
did-what-to-whom would appear to be outside the
scope of the narrow issue of quieting title that was
presented to this Court for consideration.” Where
is the factual and legal basis for this statement as
required by CCP § 632? The above statement does
E18
not state that Durands’ tort cause of action was
“moot.” It states clearly that the trial court did not
consider the issue of “who-did-what-to-whom”.
Mr. Kellison wrote this Statement of Decision and
has a personal interest in making sure that the
“Fraud” tort cause of action never gets to a jury
trial. It is also important to note that there is no
mention of the alleged “dismissal order” of June
22, 1998 that the Respondents purported in their
briefs as the definitive evidence that Durands’ tort
cause of action had been dismissed.
Previously, Judge Guy Martin Young had made
a Tentative Decision based on all of the evidence
including the egregious acts perpetrated by Mr.
Rice, Slusser/Valtec/Earthco that are a part of the
“Fraud” tort cause of action.
Judge Young stated:
“THE COURT: For the record, if
not in this hearing, but in private
hearings, there has been substantial
evidence presented that would allow
the Court to conclude that the validity
of the Durand’s case, or claims, is likely
to be established.” Mr. Davis” As to
Earthco? THE COURT: As to the
claims, all the claims.” (R.T. hearing
11/19/97 pp. 30:21)
Of course, Mr. Kellison and his client Mr.
Matthew Huntley, Esq., immediately had Judge
Young removed.
Peterson v. Ellebrecht (1962) 205 Cal.App.2d 718
_ [23 Cal.Rptr. 349, at pp. 351] states:
E19
“A judgment rendered without
findings on all material issues must be
reversed. . . . [8] Not only must the
court make findings-on all material
issues, but the findings made must be
definite and certain. (Estate of McAfee
182 Cal.App.2d 553, 556 [6 Cal.Rptr.
79].) Furthermore, it is now the
statutory rule that ‘If upon appeal . . . it
appears that the court has not made
findings as to all facts necessary to
support the judgment, or that the
findings are ambiguous or conflicting
upon a material issue of fact, the court
before which such appeal . . . is pending
shall not infer that the trial court found
in favor of the prevailing party on such
issue if it appears that the party
attacking the judgment made a written
request for a specific finding on such
issue . . prior to the entry of judgment.
... (Code Civ. Proc., § 634.)”
The Statement of Decision states the trial court
did not consider Durands’ tort cause of action; the
“Order” now being appealed states Durands’ tort
cause of action was considered “moot” with the
“Judgment” on the claims. These two statements
made by the trial court are in direct conflict with
each other, and therefore this court must reverse
its decision and remand this case so that Durands’
tort cause of action can be properly adjudicated by
Kaliterna v. Wright (1949) 94 Cal.App.2d 926,
[212 P.2d 32 at pp. 36] states: “We have recently
held that, where findings are required and are not
waived, a judgment without findings is a nullity.”
E20
Black’s Law Dictionary defines nullity as:
“Nothing; no proceeding; an act
or proceeding in a cause which the
opposite party may treat as though it
had not taken place, or which has
absolutely no legal force or effect.”
i, APPELLATE COURT CANNOT
PRESUME TRIAL COURT DECIDED
ISSUE
CCP 634 states:
“When a statement of decision does
not resolve a controverted issue, or if
the statement is ambiguous and the
record shows that the omission or
ambiguity was brought to the attention
of the trial court either prior to entry of
judgment or in conjunction with a
motion under Section 657 or 663, it shall
not be inferred on appeal or upon a
motion under Section 657 or 663 that
the trial court decided in favor of the
prevailing party as to those facts or on
that issue.”
On May 11, 1999, Durand filed their “Notice of
Motion, Intention to Move to Set Aside Judgment
Per CCP § 663a, Notice of Motion Court Declare
Mistrial & Grant New Trial per CCP §
657(1)(5)(6)(7) & Per, Cal. Court Rules Rule 232.5.”
(A.A. Vol. 12, 3209) This document states that
Durands’ tort cause of action had not been
adjudicated and that the entry of the “Judgment”
of April 28, 1999 was in violation of CRC 232.5
(A.A. Vol. 12, 3211:18-28, 3212:10-27, 3217:17-19,
3218:10-3219:2, 3220:17-3221:13, 3222:1-17, 3223:7-
3224:11, 3227:1-4) j
E21
On August 20, 1999 the trial court denied
Durands’ motion for a new trial without any
determination of Durands’ tort cause of action.
There is no mention that it became “moot” nor was
there any mention of the so called “dismissal
order” on which the Respondents predicated their
whole defense.
Durand properly brought the lack of
adjudication to the trial court's attention as
required by CCP § § 634 and 657. The trial court’s
refusal to determine Durands’ tort cause of action
must be reversed.
This court in its opinion cited Wilson v. L.A.
County Civil Service Com. (1952) 112 Cal.App.2d
450, 453 (Opinion pp. 11) stating:
“[A]lthough a case may originally
present an existing controversy, if
before decision it has, through act of the
parties or other cause, occurring after
the commencement of the action, lost
that essential character, it becomes a
moot case or question which will not be
considered by the court.”
This case is irrelevant to the present case being
appealed. In Wilson v. L.A. County Civil Service
Com., supra, 112 Cal.App.2d 450 the controversy
was moot since the eligibility list on which the suit
was predicated, had expired. No eligibility list =
no cause of action.
Southern Pac. Co. v. Eshelman (1914) 227 F. 928, a
U.S. District Court decision and Wilson v. L.A.
County Civil Service Com., supra, 112 Cal.App.2d
450, which cited Southern Pac. Co. v. Eshelman supra,
E22
(1914) 227 F. 928, the opinions clearly stated as to
why the issue had become moot. In Wilson, ibid,
the basis of the cause of action, the eligibility list,
no longer existed. In Southern Pac. Co. v. Eshelman,
supra, 227 F. 928, the issue had been settled
between the two parties. There is no such
explanation in the present opinion other than this
court presumed Durands’ tort cause of action was
somehow determined, which such presumption is
not available to this court as stated above.
In this case the record clearly states that
Durands’ tort cause of action was not “moot.” The
record is undeniable that Durands’ tort cause of
action was viable before and after the rendition of
the “Judgment” of April 28, 1999, and that the trial
court abused its discretion by refusing to allow a
jury trial on this issue of fact.
Southern Pac. Co. v. Eshelman, supra, 227 F. 928
states: “...did not have the effect of settling the
controversy, and the cause could not, therefore, be
justly said to have lost its vitality as presenting no
living issue.”
This court states: “However, nothing in rule
232.5 prohibited the trial court from determining
the remaining causes of action had become moot,
or required the court to adjudicate causes of action
it determined had become moot.” (Opinion pp. 11)
As stated above, there was no determination of
Durands’ tort cause of action based on the
applicable principles of law, and this cour’ cannot
presume there was when the record undeniably
states otherwise, and therefore the trial court was
prohibited per CCP § 232.5 to enter any alleged
final “Judgment.”
E23
In People v. Parmer, supra, 86 Cal.App.4th 781,
Presiding Justice P. J. Scotland states in pertinent
part:
“A trial court’s decision ... may be
found to be an abuse of discretion if the
record does not establish a sufficient
basis for invocation of the court's
authority. Accordingly, we will review
the record in light of applicable
principles of law to determine whether
defendants presented a sufficient legal
basis to support an_ exercise of
discretion. If the record does not
establish a sufficient legal basis to
support an exercise of discretion, the
disqualification order must be
considered an abuse of discretion. If a
sufficient showing to support an
exercise of discretion has been made,
the trial court’s order must stand unless
it appears to exceed the bounds of
reason in light of all of the
circumstances presented.”
The record is clear that, based on the applicable
principles of law, the trial court's refusal to allow
Durands’ tort cause of action to be adjudicated is
an abuse of discretion, and that such prejudicial
abuse exceeds the bounds of reason.
J. APPELLATE COURT ERRONEOUSLY
STATED DURAND FAILED TO ARGUE
MISTAKE
Durand has shown above that the trial court
expressly stated that it had not determined Durands’
tort cause of action. Durand had properly filed a
request for a statement of decision, and objection
E24
to the statement of decision, and a motion per CCP
§ 657, each time bringing up the fact that Durands’
tort cause of action was still unadjudicated.
Durand stated in their Opening Brief that they
had originally filed their 473 motion based on CCP
§ 473(d) which states that the trial court has the
power to “set aside any void judgment or order.”
Durands’ Opening Brief states:
“The truth is that all issues between
the parties have not been adjudicated.
Durand had hoped that the entering of
the “Judgment” was an inadvertent
“clerical” error of the Trial Court
forgetting that this case had been
bifurcated and there was still another
issue to be heard.” (A.O.B. page 43)
As_ stated above the trial court had not
adjudicated Durands’ tort cause of action, so no
matter what the “Judgment” of April 28, 1999 was
called, it was not a final judgment.
7 Witkin. Cal. Procedure (4th Ed. 1997)
Judgment § 68, p. 595 states in pertinent part:
“Judicial error, as distinguished from
clerical error, is a relatively simple
concept...The test is simply whether the
challenged judgment was made or
entered inadvertently (clerical error) or
advertently (judicial error). (Bowden v.
Green (1982) 128 C.A.3d 65, 70, 180 C.R.
90, quoting the text.)”
E25
When you take the trial court’s statement it had
not considered or determined Durands’ tort cause
of action in conjunction with CCP § 473(d), Witken
Cal. Procedure and Rule 232.5, Durand hoped that
the entry to the “Judgment” was inadvertent rather
that an overt act to deny Durand their civil rights
under the California and U.S. Constitutions.
Upon realizing that the trial court was
deliberately refusing to have this issue of fact
adjudicated, Durand stated at the 473 hearing that
they must have made a mistake in following and
believing in the trial court's ruling that their tort
cause of action would be adjudicated in a separate
jury trial. (R.T. 473 hearing of 11/29/99, at p. 13:6-
23)
K. DURAND WAS SURPRISED BY TRIAL
COURT RULINGS
The Durands made the mistake of following the
trial courts rulings and were “surprised” to find
that the trial court was refusing to abide by the
law. (A.O.B. p. 47-48)
“A “mistake” justifying relief may be either a
mistake of fact or a mistake of law. “The term
“surprise” as used in Section 473 refers to ‘some
condition or situation in which a party ... is
unexpectedly placed to his injury, without any
default or negligence of his own, which ordinary
prudence could not have guarded against.” State
Farm Fire & Casualty Company v. Pietak ising 90
Cal.App.4 600.
1. The trial court did not determine Durands tort
cause of action.
E26
Rule 232.5 states no final judgment will be
entered until all causes adjudicated and is
ambiguous as to when a separate judgment is
available.
. CCP § 904.1 defines the one “final judgment”
rule
. After trial court denied motion for new trial
and ignored CCP 232.5 Durand was left in a
“catch 22.”
. 7 Witkin Cal. Procedure (4% Ed. 1997)
Judgment § 69, p. 597 states:
“A court of general jurisdiction has the
power after final judgment, and
regardless of lapse of time, to correct
clerical errors or misprisions in its
records, whether made by the clerk,
counsel or the court itself, so that the
records will conform to and speak the
truth.”
. Misprisions: neglect or improper performances
of official duty.
. In English v. IKON Business Solution, Inc. (2001)
94 Cal.App.4" 130, 114 Cal.Rptr.2d 93, Justice
Nicholson quoted Justice Epstein’s dissenting
opinion in Yeap v. Leake (1997) 60 Cal.App.4*
591, as follows: “Without belaboring the
obvious, it should suffice to say that, in the
context of pleadings and motions, a dismissal is
the withdrawal of an application for judicial
relief by the party seeking such relief, or the
removal of the application by a court.”
. Here we have an illegal, involuntary dismissal
since the trial court refuses to determine the
issue or allow a jury trial. Durand did
everything known to do at the time to get the
trial court to follow 232.5 but to their surprise
they found the trial court was intent on
denying them their civil rights.
E27
9.
10.
11.
12.
13.
In State Farm Fire & Casualty Company v. Pietak.
supra (90 Cal.App.4" 600, Justice Hull stated:
“Initially, we find no merit in Pietak’s
contention he was “surprised” by State Farm's
dismissal of the interpleader action.”
(Cal.Rptr.2d, 256 at pp.263)
Pietak’s attorney did not file an affidavit of
fault.
This court found that the trial court erred in
denying relief and reversed with directions to
grant Pietak’s 473 motion.
“An honest mistake of law is a valid ground for
relief when the legal problem posed ‘is
complex and debatable.” State Farm Fire &
Casualty Company ov. Pietak. supra (90
Cal.App.4* 600)
In reviewing rule 232.5, which states final
judgment is when all issues are adjudicated
and the part pertaining to a separate judgment
is vague and ambiguous; CCP 904.1 which
requires all issues to be adjudicated before final
judgment; CCP 632 which requires the trial
court to state factual and legal basis for
decision; in conjunction with CCP 473(d) and 7
Witkin Cal. Procedure Judgment § 69; the state
of the law is complex and debatable.
“While it is certainly true that
Pietak’s counsel made a_ tactical
decision to pursue his claim in federal
court, this does not belie the fact such
tactic was informed by a _ possible
misinterpretation of the law. In other
words, Pietak chose to abandon the
state court action only because he
understood the law to permit him to
seek relief in federal court.” State Farm
E28
Fire & Casualty Company v. Pietak. supra
(90 Cal. App.4* 600, )
Durand filed under CCP 473(d) in order to gain
relief and realizing at the hearing the trial court
was intent on violating Durand civil rights stated
“mistake” which left Durand in a “surprised”
position.
Pietak, supra (90 Cal.App.4" 600, ) stated
“Counsel need not be right; it is necessary only
that the issue be debatable.”
Bottom line-—-Appellate Court did not believe
Pietak’s theory of “surprise” and there was no
affidavit of fault, but this court reversed anyway.
This court's opinion in the present case is
opposite of the published opinion reversing the
denial of Pietak’s 473 motion.
CCP 473 is to be liberally construed to subserve
and not to impede or defeat the ends of substantial
justice. (Elston v. City of Turlock (1985) 38 Cal.3d
227)
“..doubt should be in favor of
application...” Andres v. Armstrong (1959) 168
Cal.App.2d 344, 347.
L. IT IS OF GREAT PUBLIC IMPORTANCE
THAT ATTORNEYS ARE NO LONGER
CONSIDERED ABOVE THE LAW
This court denied Durands’ motion for sanction
per CCP § 907 and In re Marriage of Flaherty (1982)
31 Cal.3d 637.
E29
Durand filed for sanctions per CRC 41(A) and
~ 26 (e) based on the alleged multiple Penal Code
and Business and Professions Code violations. The
motion was supported by clear and convincing
evidence.
The alleged Local Rules filed with this court by
Craig Kellison in his Respondent's Appendix were
intentionally falsified in order to support an
otherwise worthless defense. The evidence is clear
that the “Pretrial Order” of June 22, 1998, never
existed until after February 23, 2000.
These alleged egregious, felonious acts cannot
go unpunished.
OAL AE, APRON NR ORM ETN IMT Te
e
hasa bees
The general public has no confidence in the
judicial system. Based on the white-collar crime
now so prevalent in the news, especially
perpetrated by the attorneys for companies like
Tyco, attorneys can on longer be considered ‘
“above the law.” :
rape?
It is of grave public importance that what has
happened in this case be made public and that the
attorneys be prosecuted and disbarred for their
alleged unethical and illegal acts. This must be
done in order to regain some confidence in the
judicial system, and to provide fair warning to
those attorneys who have done or are
contemplating similar acts.
Sanctions are warranted since the acts
perpetrated by Mr. Kellsion and Mr. Davis, are of
the most egregious possible.
E30
M. THIS COURT’S AFFIRMATION OF THE
TRIAL COURTS SANCTIONS REVERSES THE
“SAFE HARBOR” PROVISION
Mr. Davis requested sanctions against Durand
under CCP 125.8, a non-existent statute. Even if he
meant 128.5 he would still have been wrong since
that statute deals with proceedings initiated after
January 1, 1995. This opinion needs to be
published because, by affirming the trial court's
sanctions, this court has reversed the “safe harbor”
provision, which hopefully will allow more judges
to discipline attorneys.
Mr. Kellison requested sanctions based on the
allegation Durands’ 473 motion was meritless. It
has been shown that Durand was being a vigorous
advocate in trying to defend and preserve their
civil rights. If this were done to an attorney there
would be outrage that the sanctions were “chilling
vigorous advocacy.”
Respectfully submitted,
/S
Madelaine Durand
In Pro Per
/s
Edwin Durand
In Pro Per
E31
FOR YS ata eee hae ke
APPENDIX F
Appellants’ Petition for Review, Supreme Court of the State
of California
Case No.
IN THE
SUPREME COURT OF CALIFORNIA
*
*
Fs
be
"
€
a
e
- SYEDM. ARIF, etal., — - Plaintiffs,
vs.
EDWIN DURAND et al., Defendants, Cross-
: Complainants, and
y Appellants
i vs.
SYED M. ARIF, et al., Cross-Defendants,
Respondents,
JERRY SLUSSER, et al., Cross-Defendants,
Respondents.
After a Decision By the Court of Appeal, _
Third Appellate District
Case No. C035449
PETITION FOR REVIEW
MADELAINE DURAND
EDWIN DURAND
In Propria Per Persona
P.O. Box 34719
Reno, Nevada 89533
Fl
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........... cnuhbnengnniwiel 3
ISSUES
7 TE IRIs sxe vinsdncensiniehsenarneeieuiaatnercnnses 7
WHY REVIEW SHOULD BE GRANTED........... 8
2. FE 6 A scacinssstiipiornwevcane 9
2. INVIOLATE RIGHT TO A JURY TRIAL....11
3. CAN THE APPELLATE COURT IGNORE
THE CALIFORNIA RULES OF COURT?....12
4. THE APPELLATE COURT’S DECISION IS
CONTRARY TO A SUPREME COURT
SA a sis ticrtnabisksritieweeienteiesnn 13
5. ATTORNEY MISCONDUCT................... 14
AE shin karan cdas ead enaiensetavicnianncavee 15
TIRRPR RADRRERS CPU ia esi nkstncenkeeenksuxaenyiansrine 23
LEGAL DISCUSSION
A, FRE Se sidnnenernsecinadnwinciconuncewenn 24
2. INVIOLATE RIGHT TO A JURY TRIAL....29
3.APPELLATE COURT VIOLATES THE
CALIFORNIA RULES OF COURT RULE
4. APPELLATE COURT’S DECISION
CONTRARY TO RECENT DECISION BY
Sg 5 34
5. ATTORNEY MALFEASANCE...............6+: 38
ese es svnawandavnansentacend 40
VERIFICATION REESE EERIE EO 40
TABLE OF AUTHORITIES
PAGE
Cases
Bank of California Nat. Ass’n et al. v. Superior Court
In and For City and County of San Francisco et al.,
(1940) 16 Cal.2d 516, 106 P.2d 879................000008 26, 27
Elston v. City of Turlock
(1985) 38 Cal.3d 227, 695 P.2d 713, 211 Cal.Rptr.
DM AMLcnULUbephdankeensivesetedneanactesevavensedeeonsen 36-38
Doran v. Magan
(1999) 76 CA4th 1287, 1293, 91 CR2d 60, 64..............2665 30
Griset v. Fair Political Practices Comm’n
(2001) 25 C4th 688, 698, 107 CR2d 149, 156..............+ 30
In re Marriage of Flaherty
ET icrinsincaviennvivestteseissvedsssseseenses 39
In re Marriage of Oddino
(‘97) 16 Cal.4 67, 65 Cal. Rptr.2d 566, 939 P.2d 1266....24
lott v. Franklin
(1988) 206 Cal.App.3d 521, 253 Cal.Rptr. 635............ 38
F3
Martin v. County of Los Angeles
(1996) 51 CA4th 688, 697-698, 59 CR2d 303, 308-309...29
Morehart v. County of Santa Barbara
(2996) 7 CA 7D, B78 FA BED oo 6sccrcccrcsossvnveesseoses 30
Nevada Sierra Oil Co. v. Miller
Ee CE adi sick in icndansnkinnmsrsanretennmmnsacweuea’ 25
Parage v. Couedel
(1997) 60 Cal.App.4 1037, 70 Cal.Rptr.2d 671...13, 38
Reid v. Balter
(1993) 14 Cal.App.4 1186, 18 Cal.Rptr.2d 287.....35
Rogers v. Silverman
(1989) 216 Cal.App.3d 1114, 1121, 265 Cal.Rptr286....
Slusser v. Commodity Futures Trading Com’n.
(2000) 210 F.3d 783 (7 Cir. 2000)............:ecceceeee eens 19
State Farm Fire & Casualty Company v. Pietak
(2001) 90 Cal.App.4* 600, 109 Cal.Rptr.2d 256......17, 35
- Constitutions
Constitution of the United States, Article III, Section 2...25
The California Constitution Article 1 § 16................. 8, 29
The California Constitution Article 1 § 7...............9, 11, 29
F4
United States Code
United States Code Title 28, Part IV, Chapter 85, Section
BO Riis isciitinvinsnns sini adonaamenmianaminns 25
United States Code, Title 28, Part IV, Chapter 89, Section
SI i scnine<cinevivinncecvinasaevidevieeosentipmaatenenanen 25, 26
Statutes
Ra pea reiiieininntasannccenieddabboal 13, 15, 23, 31, 32, 34-38
Ce ik tbdeniavesivenicianesmeticaierebinci nas 23, 31, 32, 38
ccP PG rtnvtecscasticsarrneeasanene 15
See EIN Ea whswnsnenkiuaildiaintsensesrsanhsehinaieyeommaedae 30
Ce A sksccnceunneticeriinnnieiabamaaaaneaal 39
Rules of Court
CORI Re AON ectkines bonnivenivsentnceenaanenneients 29, 31-33
Ck. BTA Bibinttrsriniecicudincinunteeeaial 8, 12, 33, 34
Miscellaneous
Business and Professions Code................sse+0ees 15, 39, 40
PORT Giisincninniiintadempionnentas 39, 40
Witkin 7 Cal. Proc. (4), Trial §972..............cscscecececsceeeees 32
5 Witkin, op. cit. § 164, p. 3737......sceccsesseeseessesseseeeaees 37
F5
Federal Codes
Case No.
IN THE
SUPREME COURT OF CALIFORNIA
SYED M. ARIF, et al., Plaintiffs
vs.
EDWIN DURAND, et al., Defendants, and
Cross-Complainants
vs.
SYED M. ARIF, et al., Cross-Defendants
and
JERRY SLUSSER, et al., Cross-Defendants
PETITION FOR REVIEW
ISSUES PRESENTED
1. Does the Superior Court of Lassen County,
California have subject matter jurisdiction over a cause of
action based on Federal laws, Federal issues, on Federal
lands?
2. When a court lacks subject matter jurisdiction,
isn’t any judgment from a court lacking such jurisdiction
void?
F7
3. Isn’t any subsequent judgment also void when
it is totally predicated on a judgment made void by lack of
subject matter jurisdiction?
4. Is the judgment void when “indispensable
parties” have not been joined in the case?
5. Does the Superior Court of Lassen County
have the authority to ignore the Constitution of the State
of California, and the Constitution of the United States,
and deny due process along with the inviolate right to a
jury trial?
6. Can the Appellate Court ignore the California
Rules of Court, specifically CRC Rule 52?
7. Are attorneys who commit multiple felonious
acts during the course of a lawsuit, considered “above the
law”?
8. Are sanctions that are granted in violation of
the “safe harbor” provision or are used to chill vigorous
advocacy valid?
WHY REVIEW SHOULD BE GRANTED
The grounds for review in the Supreme Court are
made pursuant to Rule 29(a)(1) since the decision in this
case is counter to the California Constitution, California
Supreme Court decisions, a large body of case law, the
California Rules of Court, and the Constitution of the
United States.
This case presents very important questions as to
the Constitutional Rights of the citizens of California and
the United States - whether a court lacking subject matter
jurisdiction has the authority to made a judgment -
whether a trial court has the authority to deprive the
rights of “indispensable parties” who were not joined in
the case — whether a trial court has the right to deny
citizens their Constitutional inviolate right to a jury trial
on a tort cause of action pursuant to the California
Constitution Art. 1 § 16 — whether a trial court can deny a
F8
citizen their right to due process pursuant to the
California Constitution Art. 1 § 7 - whether the Court of
Appeals can affirm on the presumption that the trial court
had determined a cause of action, when the Record clearly
states the trial court had not considered or determined
that cause of action, which is a violation of CRC Rule 52 —
whether, in the heat of the battle against white collar
crime, attorneys, who have allegedly committed multiple
felonies, causing obstruction of justice during the course
of this litigation, are “above the law” -- whether sanctions
can be granted in violation of the “safe harbor” provision
or granted in a manner which would chill vigorous
advocacy? -
The answer to these questions must be a
resounding “NO!” However, the trial court and the
Appellate Court have answered, “Yes,” in violation of
both statutory and well-settled case law. Even though the
Appellate Court's opinion in this case is unpublished, it
will erode the Constitution, case law, the statutes, and
society at large. If the decision in this case is allowed to
stand, California will now have a precedent case wherein
parties who steal and defraud, falsify documents and
evidence, and obstruct justice, such as those at Enron,
Tyco, and Worldcom, will be considered the rightful
owners of the stolen property and be absolved of any
wrongdoing.
1. JURISDICTION
2.
This question of jurisdiction is two-fold. 1. Does
the Superior Court of Lassen County have jurisdiction of a
cause of action, which is predicated upon Federal laws,
Federal issues, and Federal lands? 2. Can the trial court
proceed to judgment without the presence of
“indispensable parties”? |
Jurisdictional defects are never waived.
For a court to pronounce upon the merits of a
case when it has no jurisdiction to do so is for a court to
F9
act ultra vires. Subject matter jurisdiction is a question
that often arises and this Supreme Court has stated that it
is bound to address the issue.
R.T. refers to the Reporter's Transcripts on Appeal. AA
refers to the Appellants Appendix. CRC refers to the
California Rules of Court. AOB refers to Appellants
Opening Brief.
First, the U.S. District Courts have jurisdiction
over federal lands, federal law, and federal issues. The
validity of the original mining claims known as the
“Troncloud”, “R&R”, “Jennifer,” and “Native American”
was based on the United States Code, the Code of Federal
Regulations, and the U.S. Public Law 94-579-Oct. 21, 1976,
commonly know as FLPMA, the Federal Land Policy and
Management Act and therefore the subject matter
jurisdiction is under the Federal Courts.
Second, the “Judgment” of April 28, 1999 giving
title to the Cross-Defendants is void since certain
“indispensable parties” i.e. Robert Novak, his alleged co-
locators and heirs, and American Pozzolan Corporation,
were not represented in this case.
Plaintiffs /Cross-Defendants Arif / Rice
(hereinafter named Arif/Rice) admitted they never
received a deed, which is the only way to legally transfer
title, and their only claim to the title of the mining claims
was a forged “To Whom It May Concern” letter filed with
the BLM. Even though Arif/Rice admitted that the letter
was a forgery, the trial court granted Arif/Rice clear and
quiet title to the mining claims thus denying the Novaks
any alleged right, title, and pecuniary interest in the
property.
American Pozzolan Corporation had _ been
dismissed from this case in September of 1997 and was
F10
not represented throughout the subsequent proceedings.
However, American Pozzolan Corporation was named in
the “Judgment” of April 28, 1999, which made the
corporation subject to the “Judgment” in its entirety
including being liable for the Plaintiffs /Cross-Defendants
litigation costs. (AA Vol. 12, 3193-3204)
Many cases state that a court would have no
jurisdiction to proceed without these “indispensable
parties” and the any subsequent judgment would be void
and subject to collateral attack.
This matter is of grave importance to the general
public. In the present case, parties who were not
represented have been deprived of their rights and their
property without due process of law and been denied
equal protection under the law. If the “Judgment” in the
present case stands, California will have a precedent
wherein anyone can be named in a judgment even though
they are not a party to the case. The ramifications of such
a case would be the monumental destruction of Article 1 §
7 of the California Constitution.
2. INVIOLATE RIGHT TO A JURY TRIAL
Does a trial court have the authority to deny a
party their inviolate right to a jury trial? There are certain
cases where the answer could be yes, such as an accident
case or malpractice; if the defendant were not found liable
there would be no point to have a jury trial on damages.
There are possibly other cases where one cause of action is
totally predicated on another cause of action, which is
determined against the party. However, none of the
parameters, which would allow such a dismissal without
a fair adversarial hearing, apply to the present case. What
we have in the present case is an arbitrary denial by the
trial court of an inviolate right to a jury trial on a viable
tort cause of action. The trial court’s prejudice against the
F1l1
Durands, as evidenced in the Record, is as bright as the
neon lights in Las Vegas, Nevada.
Can a trial court deny Constitutional rights,
arbitrarily, prejudicially, without any basis in law? They
can if the present case is not reversed.
3. CAN THE APPELLATE COURT IGNORE THE
CALIFORNIA RULES OF COURT
The Appellate Court had to resolve Durands’
argument on a different basis than the Arif/Rice or
Slusser/Valtec/Earthco (hereinafter Slusser) arguments,
since the Appellate Court found that their briefs were
completely without merit. In fact, the Respondents’
arguments were solely predicated upon alleged falsified
evidence, which they filed in their Respondent's
Appendix.
The problem is that the Appellate Court's theory
of the case is directly contrary to the Record. The
Appellate Court stated the trial court had determined
Durands’ tort causes of action to be moot upon its
resolution of the quiet title. (Opn. p. 11) However, the
Statement of Decision specifically states the trial court had
never considered, let alone determined, Durands’ tort
causes of action. (AA Vol. 12, 3190:27-3191:5)
The Appellate Court decision was rendered in
violation of the California Rules of Court Rule 52, which
states an Appellate Court cannot presume something
happened when the Record clearly shows otherwise. The
case law pertaining to CRC Rule 52 is extensive. But the
decision in the present case is contrary to a long list of
decisions and therefore significantly impacts and affects
the administration of justice and causes great conflict
among the courts of appeal.
F12
4. THE APPELLATE COURT’S DECISION IS
CONTRARY TO A SUPREME COURT DECISION
It is well settled that motions per CCP 473 are to
be liberally construed and that if there is any doubt the
473 should be granted in order to promote the ends of
substantial justice. It is also well settled that if the
opposing party does not argue prejudice, that very slight
evidence is required to justify relief.
CCP § 473(C) states the court may grant other
relief as is appropriate. CCP § 473 (C)(d) states that the
trial court can correct its own mistakes, such as
prematurely entering an “interlocutory judgment” as was
done in the present case. The Appellate Court ignored this
part of Durands’ appeal that was based on this section.
The Appellate Court used a case against Durand,
Parage v. Couedel, (1997) 60 Cal.App.4t 1037, 70
Cal.Rptr.2d 671, one of only two cases that stated the trial
court has no discretion but to deny a 473 motion, unless
the applicant proves, beyond a shadow of a doubt, that
they were totally at fault for the denial of a fair
adversarial hearing. This decision is contrary to a very
recent decision made by this same Appellate Court, State
Farm Fire & Casualty Company v. Pietak (2001) 90
Cal.App.4" 600, 109 Cal.Rptr.2d 256, which stated there
was no evidence of the appellant's mistake, inadvertence,
surprise, or excusable neglect, but the Appellate Court
still granted relief. Again, the lack of uniformity in the law
is confusing. Does the court have discretion or not? Is the
criterion “any doubt” as the Supreme Court and past case
law have prescribed, or is it beyond a shadow_of a doubt
as in the present case? The Appellate Court decision in
this case and the two other decisions, both from the
Second Appellate District, are diametrically opposite to
the Supreme Court decisions and volumes of case law.
F13
5. ATTORNEY MISCONDUCT
CEO’s, their accountants and attorneys have
been in the news in recent months with reports of the
white-collar crimes they have committed. One particular
case comes to mind. The attorney for one of the
companies in the news, TYCO, included as part of his
retainer, a Ten Million Dollar bonus should he be arrested .
and convicted of the illegal acts he committed on behalf of
his client.
Ohio Congressman James Traficant has also been.-
in the news. Mr. Traficant’s guilt or innocence is of no
bearing to the case at hand except that during his hearing
before the Congressional Committee, he made one
statement that is well known and truthful; the citizens of
the United States have no confidence in the Judiciary.
Why?
One of the main reasons is that attorneys are
considered “above the law.” Numerous attorneys have
stated to Durand that Rule 11 and the Business and
Professions Code are considered, among attorneys,
laughable.
In the present case, Durand filed a motion for
sanctions against Arif/Rice, Slusser, and their attorneys
based on the alleged falsified evidence that they filed with
the Appellate Court. (See Appellants Reply Brief) Durand
had uncontrovertable evidence these certain documents
were falsified. The Arif/Rice and Slusser briefs were
totally predicated on the alleged falsified evidence.
Durand requested sanctions and a recommendation to the
State Bar and the Supreme Court for disbarment and
prosecution of both attorneys. The only response was “we
deny the request.”
F14
It was also clearly shown to the Appellate Court
that the sanctions that were granted to Slusser were in
violation of the “safe harbor provision.”
; Sanctions are a punishment but are not to be
used to chill vigorous advocacy. Durands’ 473 motion
may not have been perfect, but after a quick perusal of
case law pertaining to 473 motions and listening to
statements made by the Appellate Court in oral argument,
especially the remark of how Mr. Craig Kellison and Mr.
Mark Davis were trying to “jury-rig” the Record in this
case, it is easy to see that many attorneys after years of
law school and practice are unable to do much better.
Why do the citizens of this country distrust the
Judiciary? A good example is that attorneys who commit
multiply felonies are not even reprimanded, but a private
party is sanctioned for being a vigorous advocate in
fighting for their Constitutional rights.
By ignoring the alleged felonious acts
perpetrated by the attorneys in the present case the
Supreme Court will essentially destroy the Business and
Professions Code, Rule 11, and every other rule of ethics,
professionalism and morals and open the floodgates for
every disreputable attorney to file falsified evidence not
only with the trial courts but with the Appellate and
Supreme Courts as well, since they know it will go
unpunished.
BACKGROUND
Plaintiffs Syed Arif, doing business as North
American Technical Trading Company (NATTCO), and
Norman Rice filed a SLAPP suit (CCP § 425.16) against
Defendant/Cross-Complainant/ Petitioner Edwin
Durand. (AA Vol. 1, 19-43) Edwin Durand filed a cross-
complaint and enjoined Jerry W. Slusser, individually and
doing business as Valtec Capital Corporation, and
F15
Earthco, along with Gloria Rice, Clifford Rice, Norman
Rice Enterprises, Inc., and Matthew Huntley, Esq. (AA
Vol. 2, 178 through Vol. 5, 1185) Madelaine Durand later
joined Edwin Durand as a cross-complainant. (hereinafter
Durand) The original cross-complaint was returned to
Durand and Judge Guy Martin Young ordered a more
condensed cross-complaint, which Durand filed the
Second Amended Cross-Complaint on June 5, 1997 and
the Supplemental to the Second Amended Cross-
Complaint on June 9, 1997. (AA Vol. 5, 1189 through Vol.
6, 1333)
The Plaintiffs alleged intentional interference
with economic relations, libel, slander of title, quiet title,
and trespass. Plaintiffs later abandoned all of their causes
of action since their contentions were fraudulent, without -
supporting evidence, and they had the trial court proceed
on the quiet title portion of Durands’ Cross-Complaint in
order to change the burden of proof.
Durands’ Cross-Complaint also alleged
Intentional Interference with Economic Relations, Libel,
Slander of Title, Quiet Title and Trespass.
In early 1991 Mr. Durand was in negotiations
with Mr. Novak for some mining claims, which contained
alumina silicate, an industrial mineral commonly know as
pozzolan, and Mr. Tim Swickard for some private
property.
In September Mr. Durand was introduced to Mr.
Rice. Mr. Rice represented himself as a Certified Public
Accountant with marketing contacts and funding sources.
Mr. Rice, under the guise of obtaining funding
for Mr. Durand, proceeded to defraud Mr. Durand out of
his research, intellectual property, and interfered with the
economic relations with his business contacts. Mr. Rice
F16
stated under oath it was his intent from the very
beginning to defraud Mr. Durand. (October 14, 15, 21, 22,
1998 Trial R.T. Vol. II 486:6 to 493:24)
There was a meeting at First Interstate Bank with
Mr. Durand, Mr. Woods, an associate of Mr. Durand, Mr.
Swickard, Mr. Rice, and the banker, Mr. Bryan Avaylon.
Mr. Swickard was borrowing money using his ranch and
cattle as collateral, part of which was to be invested with
Mr. Durand for the pozzolan project. The banker Mr.
Avaylon turned down the loan, stating he did not know
the value of 5,000 head of cattle, and 3,353 acres of prime
ranch land.
Mr. Rice, using Mr. Durand’s research and
intellectual property, got himself funded, and proceeded
to negotiate deals with Mr. Novak for the mining claims
and Mr. Swickard for the ranch. Mr. Rice and Mr.
Avaylon then entered into a partnership along with a few
other partners, and under the instructions of Mr. Rice,
tried to defraud Mr. Durand out of his latest research.
Later, these partners sued Mr. Rice allegedly for Mr. Rice
cutting them out of the business while making a backdoor
deal with Mr. Syed Arif. Mr. Arif is the Plaintiff in the
present case, although he has never been present in court
throughout this case.
Upon finding that the Novak mining claims were
legally abandoned and not valid under Federal law, Mr.
Durand proceeded to properly file valid mining claims.
On February 5, 1997, Mr. Rice and Mr. Arif filed
a SLAPP suit (Strategic Lawsuit Against a Private Party)
against Mr. Durand for giving testimony at a public
meeting of the Lassen County Planning Department. Mr.
Durand stated Mr. Rice was an insider trader, which Mr.
Rice has admitted to in his sworn testimony, and that
North American Technical Trading Company, NATTCO,
F17
was revoked by the State of Illinois and had no status to
do business in the State of California, facts that were
supported by documented evidence.
Mr. Durand answered the complaint and filed a
cross-complaint, enjoining a number of other cross-
defendants of which the following remain; Gloria Rice,
Clifford Rice, individually and doing business as Norman
Rice Enterprises, Inc., Matthew Huntley, Esquire, Mr.
Jerry Slusser, individually and doing business as Valtec
Capital Corporation and Earthco.
Mr. Rice had no knowledge of the pozzolan
mineral deposit, nor had he met anyone involved with the
property. Mr. Rice, using Durand’s research, got himself
funded, and made a deal with Mr. Novak for the claims
and with Mr. Swickard for the “Constantia” ranch.
Mr. Novak signed a “Contract of Sale” and an
addendum, which stated he would transfer title of the
mining claims upon the payment of $1,000,000.00. (One
Million Dollars) Mr. Novak, in testimony at the June 20,
1997 hearing in the trial court stated his deal with Mr.
Rice had not been consummated and he had never given
Mr. Rice any quitclaim deed to any claims. (R.T hearing
6/20/97, 143:10-25, 144:12-15) The legal transfer of title to
mining claims is by deed. Mr. Rice admitted in testimony
at trial that he had never received any kind of deed
transferring title from Novak. (Trial R.T. Vol. II 513:25-
514:6)
In a rush to get title before Mr. Novak would sign
a deed, Mr. Rice had his attorney Matthew G. Huntley,
Esq., file a “To Whom It May Concern” letter with the
BLM. Durand had uncontrovertable evidence the letter
was forged. In fact, Mr. Craig Kellison admitted to the
trial court it was a forgery. (R.T. hearing June 17, 1999,
58:13) The seven Novak signatures (the Novaks were the
alleged original locators) had been photo-statically copied
F18
off another letter in the BLM file. (Trial Exhibit # DR &
DS, Vol. 14, 3967 letter 7/7/92 versus 3968 letter 9/30/93
with seven forged signatures.)
Durand was told they could not speak for the
Novaks. But the Novaks were not a party to this case.
The trial court proceeded to give Arif/Rice quiet title to
claims allegedly owned by the Novaks without the
Novak’s consent, knowledge, or participation in the
litigation, all based on Mr. Rice’s forged letter.
The BLM transferred title in their office because
the “letter” was accompanied by the correct amount of
money, not because it was a legal transfer of title. Then
Mr. Rice proceeded to file a quitclaim deed changing title
into his partner's name, Syed Arif, in order to bury the
fact he had never received legal title himself.
Mr. Slusser is a longtime associate of Tom Nevis,
who was convicted of defrauding the Savings and Loans
Companies of approximately One Hundred and Twenty
Million Dollars ($120,000,000.00). Mr. Slusser has been
convicted of multiple felony frauds. See Slusser v.
Commodity Futures Trading Com’n. (2000) 210 F.3d 783 (7%
Cir. 2000). Mr. Norman Jenson, vice president of Earthco,
is a disbarred attorney convicted in the U.S. District Court
of Northern California, Case Number CR-87-0546 EFL, of
drug trafficking and tax evasion.
Mr. and Mrs. Durand went through 2 ¥2 years of
rigorous work in order to obtain a Surface Mining Use
Permit from the State of California, which included a
tremendous amount of research in writing their
Environmental Impact Studies and Report.
In 1995, Durand was in negotiations with Mr.
Francis Brown of Auburn, California, to fund the
development of Durands’ private property, the building
F19
of a business complex, which included Mr. Durand’s skills
as a contractor and engineer, along with mining the
pozzolan.
Within two days of Mr. Brown checking on the
Durands’ Surface Mining Use Permit with Mr. Richard
Simon of the Lassen County Planning Department, Mr.
Slusser contacted Mr. Brown to set up a meeting. Mr.
Slusser’s purpose was to interfere with the business
relationship between Durand and Mr. Brown. He
succeeded.
After Mr. Slusser left the meeting, Durand and
two witnesses, Mr. Woods and Ms. Pamela Engle, looked
through the Slusser/Valtec business plan, which
contained Durands’ brochure, still with their company
name and address on it, and Durands’ confidential
information, which had been given to the Lassen County
Planning Department. There was also a copy of an
advertisement/article promoting the Slusser/Valtec
product Absorbs-All, which copied Durands’ research
from their brochure, verbatim.
Judge Bradbury recused himself on this case
since he had been the President of the Constantia Ranch
and had personal knowledge of the ranch and mining
claims. Judge Lazard was assigned but Durand filed a
peremptory challenge against him since it was clear he
had a very close relationship with Mr. Craig Kellison.
Mr. Kellison set up a hearing for his client
Matthew Huntley, Esq., to set aside his default, on
January 5, 1998 in Susanville, California. Neither Mr.
Kellison nor his client bothered to show. Durand spent a
great deal of time in preparation and travel for this
hearing but there was no reprimand or sanctions granted
against Mr. Kellison.
F20
Mr. Davis and Mr. Kellison set up a deposition
with Stacy Beck from the BLM in Sacramento, California.
When Durand arrived in Sacramente they found the
deposition was canceled without notification to Durand.
Again, no sanctions were granted in favor of Durand.
Judge Guy Martin Young was assigned to the
case and remained on the case for almost a year, when,
after he made the remark that based on evidence and
testimony, it looked like the Durands would prevail. Mr.
Kellison had Judge Young removed even though Judge
Young had made numerous rulings on the case.
Mr. Kellison set up a deposition in Dallas, Texas
for Mr. Robert Novak, a key witness and “indispensable
party” and then paid Mr. Novak $500.00 to leave Fallon,
Nevada, which is 60 miles away from Reno, Nevada
where the Durands live, to go to Dallas/ Hillsboro, Texas,
so that Durand would be unable to cross-examine Mr.
Novak at his deposition. Durand filed for a Protective
Order with Judge Dier, who had been assigned to the
case. Judge Dier refused to rule on the Protective Order,
causing gross prejudicial error. (Vol. 8 1925, 1929:20-
1930:11, 1951) Mr. Kellison, Mr. Rice, and Mr. Davis spent
three days in Texas for a one-hour deposition. The trial
court allowed the deposition to be read into the record,
even though Durand had not been allowed to cross-
examine Mr. Novak. The statements made in the
deposition were diametrically opposite to Mr. Novak's
spontaneous statements made during testimony and
cross-examination at the hearing of June 20, 1997. The act
of tampering with and concealing a witness constituted
“bad faith” calculated to prejudice Durand’s case, harass
Durand and cause needless increase to the cost of
litigation. After proving to the trial court that Mr. Novak
was a Fallon, Nevada resident, the trial court removed the
$500.00 “travel expense” but refused to remove the costs
of hotel rooms, rental cars, airplane tickets, movie and
F21
alcohol, etc., for Mr. Kellison and Mr. Rice, for their trip to
Texas.
Durand had filed three motions to compel, to get
Mr. Kellison and Mr. Davis to abide by the rules of
discovery. The trial court kept vacating the hearings, and
at the beginning of trial, Durand asked the trial court
again to rule on the motions. The trial court stated it was
not going to rule because it did not know how “they
would react.” (Trial R.T. Vol. 1 14:3-11)
The trial was split over two weeks, per Mr.
Kellison’s request, which was totally disruptive and
prejudicial to Durand’s case since their witnesses had to
be taken out of order.
The trial court stated that the trial would proceed
on Durands’ Cross-Complaint, therefore _ literally
changing the burden of proof from the Plaintiffs to the
Defendant, since Arif/Rice had no legal proof of
ownership.
Mr. Kellison called the Durands “greasy pigs”
although the transcript reads, “greased monkeys.”
Durand started to object and the trial court stopped
Durand. (Trial R.T. Vol. III, 639:15)
The case had been bifurcated by Judge Noel
Watkins on March 25, 1998 with the quiet title to be heard
first and Durands’ tort causes of action to be heard at a
separate jury trial. That jury trial never happened in
violation of Durands’ right to due process and inviolate
right to a jury trial on an issue of fact. The trial court
arbitrarily and without legal reason, denied Durands’
rights.
The trial court's bias and prejudice is blatantly
shown in the Record. The trial court refused to allow a
fair adversarial hearing on a viable cause of action; the
trial court refused to rule on the Protective Order to stop
F22
the witness tampering; the trial court allowed tainted
testimony in violation of Durand’s right to cross-examine;
the trial court refused to remove American Pozzolan
Corporation from the “Judgment;” the trial court refused
to disallow the expert witness fee for Mr. George
Wickman, a Susanville resident in violation of CCP §
1033.5(b)(1); the trial court had made up its mind to deny
Durands’ 473 and 592 motions before it had looked at the
evidence; the trial court granted sanctions pursuant to CCP
§ 128.5, which deals with cases filed before January 1,
1995; the trial court granted sanctions in violation of the
“safe harbor provision;” the trial court deemed Durand to
be vexatious litigants subject to a prefiling order, without
a scintilla of evidence or case law to support such a
finding; the trial court stated in its tentative decision: “It is
tempting to try to write a decision in this case in such
clear language and with such straight forward, tight logic
that the parties defendant and cross complainant could
understand whv their positions are untenable. Sadly, it is
doubtful that that could be done. A reading of the post
trial briefs shows how frustrating (Kellison and Davis)
and futile (Durand Supplement One) such an attempt
would be.”(AA Vol. 12, 3100:26-3101:4); by not allowing a
jury trial on the tort causes of action, the trial court has
caused obstruction of justice; the trial court violated
Durands' Constitutional rights of due process and the
inviolate right to a jury trial.
TRIAL COURT BIAS
As stated above, the trial court's prejudice is
blatantly clear. Deciding an issue before looking at the
evidence, denying Constitutional rights, refusing to rule
on proper motions to compel and protective order,
refusing to allow a fair adversarial hearing on a viable
issue, etc., all demonstrate actual bias. Where the average
person could well entertain doubt whether the trial judge
was impartial, appellate cour's are not required to
F23
speculate whether the bias was actual or merely apparent
or whether the result would have been the same if the
evidence had been impartially considered and the matter
dispassionately decided, but should reverse the judgment
and remand the matter to a different judge for a new trial
on all issues. The rejection of a proper offer of proof and
determination of an issue without a fair hearing
constitutes a denial of due process and reversible error
per se. Since the trial court’s bias was so clear the
Appellate Court should have reversed and remanded to a
different judge.
LEGAL DISCUSSION
1. JURISDICTION
The Superior Court of Lassen County lacked
subject matter jurisdiction as to the validity of the
Ironcloud, R&R, Jennifer, and Native American mining
claims. Durand has always contended that under Federal
law these claims are invalid. Therefore, any alleged
judgment made by a court lacking jurisdiction, is void.
Any subsequent judgment solely predicated on such a
judgment is also void.
Jurisdictional defects are never waived.
In In re Marriage of Oddino (1997) 16 Cal.4** 67, 65
Cal.Rptr.2d 566, 939 P.2d 1266, the Supreme Court stated:
“The question of state court subject
matter jurisdiction was not raised by the
parties in either of the lower courts and was
not addressed by the Court of Appeal; the
Plan objected on jurisdictional grounds for
the first time in its petition for review. Asa
matter of fundamental jurisdiction affecting
the power of the lower courts to act,
however, the issue must be addressed.”
(Emphasis added)
F24
The U.S. District Courts have jurisdiction over
federal lands, federal laws, and federal issues. The
question of the validity of mining claims on federal lands
in the present case is based on the United States Code, the
Code of Federal Regulations, and the U.S. Public Law 94-
579-Oct. 21 1976 commonly known as FLPMA, the Federal
Land Policy and Management Act and therefore the
subject matter jurisdiction is with the Federal Courts.
The Constitution of the United States, Article III,
Section 2 states, in pertinent part:
“The judicial power shall extend to
all cases, in law and equity, arising under
this constitution, the laws of the United
States, and treaties made, or which shall be
made, under their authority.”
The United States Code Title 28, Part IV, Chapter
85, Section 1331, states: “Federal question. The district
courts shall have original jurisdiction of all civil actions
arising under the constitution, laws, or treaties of the
United States.”
United States Code, Title 28, Part IV, Chapter 89,
Section 1441(b) states, in pertinent part:
“Any civil action of which the district
courts have original jurisdiction founded
on a claim or right arising under the
Constitution, treaties or laws of the United
States shall be removable without regard to
the citizenship or residence of the parties.”
Nevada Sierra Oil Co. v. Miller (1899) 97 F.
681 states:
“If, however, it appears from the bill that
the complainant asserts a right under and
by virtue of some law of the United States,
and that such right constitutes, in whole or
in part, its alleged cause of action, and
demands for its determination the
F25
construction of proper application of a law
of the United States, it is equally clear that
jurisdiction is shown.”
In 1997, Slusser tried to remove this case to
Federal Court. Mr. Mark Davis, attorney for
Slusser/Valtec/Earthco, filed for removal without
notifying Durand or the Superior Court of Lassen County.
Durand only found out about it when the U.S. District
Court sent Durand a copy of the Order remanding the
case back. Durand contacted Mr. Davis for copies of what
he had filed with the U.S. District Court but Mr. Davis
refused to send copies.
According to the U.S. District Court, Mr. Davis
had filed the removal based solely on diversity. (AA Vol.
7 1595:10) The U.S. District Court remanded the case
based on the fact that cross-defendants (third-party
defendants) are not entitled to remove, that the notice of
removal was absent the joinder by all defendants, and that
diversity jurisdiction between Valtec/Earthco and
Durand did not exist.
However, since the validity of the mining claims
is based on Federal laws on Federal lands, and the
original jurisdiction is with the U.S. District Court not the
state court, pursuant to the United States Code, Title 28,
Part IV, Chapter 89, Section 1441(b), diversity is irrelevant.
The other jurisdictional problem is with the trial
court's lack of “indispensable” parties.
The Supreme Court, In Bank, stated in pertinent
part:
“...but when a complete controversy
cannot be had without the presence of other
parties, the court must then order them to
be brought in...” (Bank of California Nat.
Ass'n et al. v. Superior Court In and For City
F26
and County of San Francisco et al., (1940) 16
Cal.2d 516, 106 P.2d 879)
In Bank of California Nat. Ass’n et al. v. Superior
Court In and For City and County of San Francisco et al.,
supra, 16 Cal.2d 516, 106 P.2d 879) the Supreme Court
further stated:
“...failure to join the latter was held fatal
to the judgment...” “Many cases go so far
as to say that the court would have no
jurisdiction to proceed without them, and
that its purported judgment would be void
and subject to collateral attack.” ... “It
follows that if the court does attempt to
proceed, it is acting beyond its jurisdiction
and may be restrained by prohibition.”
American Pozzolan Corporation was dismissed
from the present case in 1997. The “Judgment” of April
28, 1999 was written by Mr. Craig Kellison and adopted
by the trial court. Durand objected to the inclusion of
American Pozzolan Corporation since the corporation had
not been represented throughout the course of this
litigation. The trial court made no ruling on the removal
of American Pozzolan Corporation from the “Judgment”
making the corporation subject to all parts of the
judgment including being liable for the litigation costs.
(R.T. hearing 6/17/99, 56:17-57:1-9) a
The joinder of this non-party into the
“Judgment” was before the Appellate Court, but was
ignored. (Appellant's Reply Brief, p. 51)
Undoubtedly, this is a case of first impression,
but it is a question of law that is of extreme importance to
the general public. If the present case stands, it will mean
that anyone can name a non-party into a judgment. Such a
precedent will cause utter chaos, especially since the
F27
credit bureaus place judgments into personal credit files.
It is next to impossible to remove fraudulent or false
information out of your credit file, and even if a party is
successful, it is usually short-lived, since the credit
bureaus sneak the false information back in as soon as a
party is not looking. The entry of such false or fraudulent
information in a parties credit file could ruin their lives,
since they not only could be denied credit, but could be
denied employment or could be fired from a present job,
since many companies now check credit reports for their
employees or future employees.
There were other “indispensable parties” missing
from the present case besides American Pozzolan
Corporation, namely the Novaks. The “Judgment” in the
present case, deprived the Novaks of their right to title
and pecuniary interest in their property, i.e. the mining
claims.
Arif/Rice presented the trial court with some
quit claim deeds for Robert Novak’s_ co-locators,
purporting this gave Arif/Rice title. However, the co-
locators signed their interest over to Robert Novak, not
Arif/ Rice, and Robert Novak never signed the title over to
Arif/ Rice. In fact, Mr. Rice stated under oath he had never
received a deed and had never paid Mr. Novak the full
sales price under the contract of sale. Arif/Rice’s only
claim to title was a forged “To Whom It May Concern”
letter filed at the BLM. The law requires transfer of title to
be made by deed and State law requires the deed to be
recorded within 10 days of the transfer. This never
happened.
However, the trial court found the forged letter
sufficient to quiet title in favor of Arif/Rice thus
depriving the Novaks of their property. Robert Novak is
now dead, but his co-locators are his heirs and as such
they are “indispensable parties.”
F28
2. INVIOLATE RIGHT TO A JURY TRIAL
The California Constitution Article 1 § 16 states:
“Trial by jury is an inviolate right and shall be secured to
The California Constitution Article 1 § 7 states:
“(a) A person may not be deprived of life, liberty, or
property without due process of law or denied equal
protection of the laws.”
In the present case, the trial court denied Durand
their inviolate right to a jury trial on a tort cause of action,
and their right to due process. Constitutional due process
requires that parties be given a fair hearing. Errors
infringing on this right are presumptively prejudicial and
thus reversible per se. Denial of a jury trial on jury triable
issues is reversible error per se. (Martin v. County of Los
Angeles (1996) 51 CA4th 688, 697-698, 59 CR2d 303, 308-
309)
CRC Rule 232.5 states that in a bifurcated case,
such as the present case, after one issue is tried, the court
will only make a tentative decision until all issues are
adjudicated. CRC Rule 232.5 further states: “but no
proposed judgment shall be prepared until the other
issues are tried, except when an interlocutory judgment or
a separate judgment may otherwise be properly entered at
that time.” This section stating a separate judgment may
be entered is vague and ambiguous and West's Annotated
California Code’s gives no real clarity.
In the present case the trial court prematurely
filed a “Judgment” on a bifurcated issue in violation of
CRC Rule 232.5, leaving Durand with, according to the
law, a nonappealable so-called tentative
decision/ order / interlocutory —— since Durands’
tort causes of action remain unadjudicated.
When is a separate judgment available? In a case
of hability / damages, it makes sense not to proceed with
F29
the damages when the party is not found liable. But can a
trial court file a so-called “final judgment” after it
specifically states it has not considered or determined a
viable cause of action, which still exists between the
parties? The trial court thought so and the Appellate
Court affirmed. However, this Supreme Court has in
numerous cases reached a contrary conclusion, holding
that a “final judgment” is one that concludes all causes of
action between the parties.
In Morehart v. County of Santa Barbara (1994) 7
C.4th 725, 872 P.2d 143, this Supreme Court stated:
“Accordingly, we hold that an appeal
cannot be taken from a judgment that fails
to complete the disposition of all the causes
of action between the parties even if the
causes of action disposed of by the
judgment have been ordered to be tried
separately, or may be characterized as
“separate and independent” from those
remaining.”
Any judgment, no matter what it may be titled, is
not a “final” judgment, as required by CCP 904.1 and the
above Supreme Court ruling, unless there is a disposition
of all causes of action.
The substance and effect of the judgment — not its
label — determine whether it is “final” and thus appealable.
(Griset v. Fair Political Practices Comm’n (2001) 25 C4th 688,
698, 107 CR2d 149, 156; Doran v. Magan (1999) 76 CA4th
1287, 1293, 91 CR2d 60, 64.)
Durands’ tort causes of action were not
predicated on the quieting of title on some mining claims.
This Supreme Court has made it clear that there will be no
piecemeal appeals. In trying to give the trial court the
benefit of the doubt rather than accusing the court of
F30
extreme prejudice, Durand filed their 473 motion based
on the premise that the trial court had made an error in
overlooking Durands’ tort cause of action rather than
stating that the trial court was intent on denying due
process. CCP § 473(d) allows the trial court to fix errors or
set aside any void judgment or order.
Durand also filed for a jury trial per CCP § 592.
However, at the hearing on Durands’ 473 and 592
motions, the trial court made it clear that, before looking at
the evidence, it was not going to allow a fair adversarial
hearing on Durands’ tort causes of action. (R.T. hearing
11/29/99, 7:9-11, 27:4-10) Durand appealed the
subsequent order denying the 473 motion and their
motion for a jury trial on the unadjudicated tort causes of
action.
A grave error appears on the face of the
Appellate Court’s opinion. The opinion completely
ignores the appeal taken on CCP § 473(d). CCP § 473(d)
allows the trial court to fix its errors, such as inadvertently
entering a premature “judgment” on one issue in a
bifurcated case. CRC Rule 232.5 only allows a tentative
decision. The fact is that the appeal on CCP § 473(d) is one
of the most essential parts to the appeal and the question
remains unanswered. The Rule is that Appellate Courts
will not address issues whose resolution is unnecessary to
the disposition of the appeal. However, in the present case
the appeal pursuant to CCP § 473(d) is a vital part of the
Durands’ appeal and must be dealt with. Can the
Appellate Court ignore a necessary issue of an appeal?
(AOB p. 43)
Does a trial court have the authority to deny the
inviolate right to a jury trial on an issue of fact? Does a
trial court have the authority to deny due process? It is
well settled that any court, which denies the right of trial
by jury in a case where any party has the constitutional
right to it, exceeds its jurisdiction. It is well settled that the
F31
denial of these rights, as presented in the present case,
constitutes an act in excess of jurisdiction and is reversible
error per se. (Witkin 7 Cal. Proc. (4), Trial §92.) The
decision in the present case was an arbitrary refusal by the
trial court to abide by the Constitution and the laws of the
State of California and is contrary to established case law.
3. APPELLATE COURT VIOLATES CALIFORNIA
RULES OF COURT RULE 52
The Respondents’ (Arif/Rice, Slusser) Briefs were
solely predicated upon alleged falsified evidence they
filed with the Appellate Court. The Appellate Court
found the Respondents’ briefs were completely without
merit, and decided to affirm the trial court's ruling on
their own theory.
The theory had two parts; the first part was that
the trial court had determined that Durands’ tort causes of
action had become “moot” upon the trial court's
resolution of the quiet title action. (Opn. p.11) This
presumption is wrong. The Appellate Court's theory is
contrary to what the Record specifically shows the trial
court did. In the Statement of Decision the trial court was
specifically asked about Durands’ unadjudicated tort
causes of action, and the trial court specifically stated it
had never considered (or determined) those causes of action.
(AA Vol 12, 3190:27-3191:5) The only mention by the trial
court about Durand’s tort causes of action being “moot,”
was in the denial of the motions per CCP § § 473 and 592.
The Record is complete and there is nothing in the Record
that would support the sudden statement by the trial
court that Durands’ tort causes of action had suddenly
become “moot.”
The Appellate Court stated: “However, nothing
in rule 232.5 prohibited the trial court from determining
the remaining causes of action had become moot, or
F32
required the court to adjudicate causes of action it
determined had become moot.” (Opn. p.11-12) Since the
trial court had not determined Durands’ tort causes of
action had become “moot” upon the resolution of the
quiet title, CRC Rule 232.5 did, in fact, bar the trial court
from entering a “Judgment” on a bifurcated issue.
For the Appellate Court to presume the trial
court had determined Durands’ tort causes of action when
the trial court specifically stated it had not, is a clear
violation of the California Rules of Court Rule 52. The
trial court's prejudicial error is clearly shown on the face
of the record, and as such the Appellate Court acted
beyond its jurisdiction in affirming the trial court's
decision. The decision in this case goes against every
prior decision pertaining to Rule 52, which states that the
Appellate Court will not presume there was no error
when the prejudicial error appears on the face of the
record; or that the error was cured by some proceeding
not appearing in the record. In this case the Appellants
Appendix includes everything subsequent to the
Statement of Decision, and the Record clearly shows
Durands’ tort causes of action were never considered, or
determined, thus the trial court and the Appellate Court
denied Durand due process and their inviolate right to a
jury trial on an issue of fact.
Further, the alleged falsified evidence proffered
by Arif/Rice (and referred to by Slusser) in their
Respondent's Appendix is uncontrovertable evidence that
Arif/Rice and Slusser knew that Durands’ tort causes of
action still existed and had not been adjudicated, and
therefore they allegedly falsified the record in order to
support the trial court’s denial of Durands’ constitutional
rights.
There is now a huge discrepancy and lack of
uniformity of decision between this case and precedent
F33
case law. The precedent case law spells out when and
how CRC Rule 52 is to be administered within the correct
limitations, and properly guides and restricts the
appellate court in resolving the points raised by
appellants. Can an Appellate Court ignore CRC Rule 52
whenever it wants to? If this case is not reversed the
answer will be “Yes.” How many other unpublished
opinions are there where CRC Rule 52 was ignored, but
the appellants were not able to take it to the Supreme
Court?
4. APPELLATE COURT'S DECISION CONTRARY TO
RECENT DECISION BY THE SAME COURT
The Appellate Court’s opinion further
erroneously stated that Durand never alleged the trial
court's judgment resulted from their mistake,
inadvertence, surprise or excusable neglect, and as such
the trial court had “no discretion” but to deny Durands’
473 motion.
First, there is nothing in the wording of CCP §
473(d) that states that the setting aside of a void judgment
or order must be based on the appellants mistake,
inadvertence, surprise or excusable neglect. On _ the
contrary, it states that the trial court has the authority to
correct its own mistake.
“Section 473 provides in part; “The
court...may, on motion of either party after
notice to the other party, set aside any void
judgment or order.’ Courts also possess
inherent power to set aside void judgments.
(Rogers v. Silverman (1989) 216 Cal.App.3d
1114, 1121, 265 Cal.Rptr, 286.) ...lt is well
settled that a judgment or order which is
void on its face, and which requires only an
inspection of the judgment-roll or record to
show its invalidity, may be set aside an
motion, at any time after its entry, by the
F¥4
court which rendered the judgment or
made the order.”(Reid v. Balter (1993) 14
Cal.App.4® 1186, 18 Cal.Rptr.2d 287.)
Second, along with CCP § 473(d), (Appellants
Opening Brief p. 43) Durand did file their appeal under
the mandatory and discretionary parts of CCP § 473.
At the 473 hearing on of November 29, 1999,
even though Durand never used the term “surprise” the
statements made were synonymous to the legal definition
of “surprise.” (R.T. hearing of 11/29/99, at p. 10:22-14:4)
Durand was surprised by the fact that the trial court was
intent on denying them their Constitutional right to a jury
trial and their right to due process.
“Surprise,” as used in the statute permitting
relief from judgment, dismissal, order, or other proceeding,
entered by surprise, refers to some condition or situation
in which a party is unexpectedly placed to his injury,
without any default or negligence of his own, which
ordinary prudence could not have guarded against.”
In stating that the trial court had “no discretion”
in the present case since Durand never admitted mistake,
the Appellate Court's opinion in the present case, is in
direct conflict with its own recent opinion in State Farm
Fire & Casualty Company v. Pietak, supra, (2001) 90
Cal.App.4® 600, 109 Cal.Rptr.2d 256, wherein it stated that
neither Mr. Pietak nor his attorney ever admitted any
mistake, and yet this same Appellate Court ruled that
relief by way of section 473 was warranted. According to
the theory in the present case, since Pietak had never
admitted mistake, the trial court had “no discretion” but
to deny Pietak’s 473 motion. But the Appellate Court
found its way around this through the back door by
stating maybe Pietak’s attorney did not know what he
was doing, maybe Pietak’s attorney should have read the
F35
appropriate statutes and case law pertaining to the
subject, and maybe the statutes are ambiguous, so maybe
this was a honest mistake, and therefore relief is
warranted by way of CCP § 473.
The Supreme Court case, Elston v. City of Turlock
(1985) 38 Cal.3d 227, 695 P.2d 713, 211 Cal.Rptr. 416,
states:
“Section 473 permits the trial court to
‘relieve a party...from a judgment, order, or
other proceeding (Emphasis added) taken
against him or her through his or her
mistake, inadvertence, surprise or
excusable neglect.’ A motion seeking such
relief lies within the sound discretion of the
trial court, and the trial court's decision will
not be overturned absent an abuse of
discretion...However, the trial court's
discretion is not unlimited and must be
‘exercised in conformity with the spirit of
the law and in a manner to subserve and
not to impede or defeat the ends of
substantial justice.”
“Section 473 is often applied
liberally where the party in default moves
promptly to seek relief, and the party
opposing the motion will not suffer
prejudice if relief is granted....In such
situations ‘very slight evidence will be
required to justify a court in setting aside
the default.” (In the present case prejudice
was never argued by Arif/Rice/Slusser)
“Moreover, because the law
strongly favors trial and disposition of the
merits, any doubts in applying section 473
must be resolved in favor of the party
F36
seeking relief from default.” (Emphasis
added)
“Where, as here, the trial court
denies the motion for relief from default,
the strong policy in favor of trial on the
merits conflicts with the general rule of
deference to the trial court’s exercise of
discretion. (5 Witkin, op. cit. supra, § 164, p.
3737.) Unless inexcusable neglect is clear, the
policy favoring trial on the merits prevails.
(Ibid.) Doubts are resolved in favor of the
application for relief from default....and
reversal of an order denying relief results (5
Witken, op. cit. supra, Sec 164, p. 3737).
Reversal is particularly appropriate where
relieving the default will not seriously
prejudice the opposing party.” (Emphasis
added)
“Reversal of an order denying
relief is appropriate where the effect of the
order is to ‘defeat, rather than to advance
the ends of justice....Accordingly, the trial
court abused its discretion in denying
plaintiffs’ section 473 motion.”
In the present case the trial court denied
Durands’ inviolate right to a jury trial and their right to
due process. The Appellate Court affirmed. Not only is
this decision contrary to the Constitution, but also more
importantly it is contrary to the Supreme Court's decision.
There is nothing in Elston v. City of Turlock, supra, 38
Cal.3d 227, or in the statute itself that states the trial court
has “no discretion” pertaining to either CCP § 473(d) or
the section on discretionary relief.
F37
The Appellate Court's opinion in the present case
is contrary to the Supreme Court case of Elston v. City of
Turlock, supra, 38 Cal.3d 227, 695 P.2d 713, and a long line
of case law which states that CCP § 473 is to be liberally
construed to promote the ends of substantial justice. Not
only has there been no justice in the present case, but also
the trial court had to violate the Constitution in order to
make sure that the ends of substantial justice were
defeated.
There now stands two published cases (Parage v.
Couedel, supra, (1997) 60 Cal.App.4 1037, 70 Cal.Rptr.2d
671 and lott v. Franklin (1988) 206 Cal.App.3d 521, 253
Cal.Rptr. 635) and one unpublished case (the present
case), whose decisions are diametrically opposed to the
above precedent Supreme Court decision. These cases
have literally stripped the trial court of its discretionary
power in dealing with CCP § 473.
5. ATTORNEY MALFEASANCE
The Appellate Court found that the Arif/Rice
and Slusser briefs were completely without merit. Mr.
Craig Kellison, attorney for Arif/Rice, predicated his
entire brief on two documents, both shown to the
Appellate Court to be falsified evidence. The first
document was the alleged “dismissal order.” Mr. Davis,
attorney for Slusser/Valtec/Earthco, predicated his entire
reply brief on this same “dismissal order.”
Durand showed to the Appellate Court
irrefutable evidence this “dismissal order” never existed
until after the Order of February 23, 2000, denying the
CCP § § 473 and 592 motions, was filed. (Appellants
Reply Brief)
The second document Mr. Kellison based his
Respondent's brief on was a copy of the Lassen County
F38
local rules, which Mr. Kellison had falsified by removing
the last page from the old local rules and the first page of
the new local rules, combining the two, and then
repeatedly stating Durands’ appeal must be denied
because Durand had not followed a local rule, a rule that
was not in existence until two years after the fact. Durand
motioned for sanctions, disbarment, and prosecution, but
was summarily denied citing CCP § 907 and In re Marriage
of Flaherty (1982) 31 Cal.3d 637. (Opn. p.15) Both CCP §
907 and Flaherty, ibid, pertain to sanctions for filing a
frivolous appeal and are irrelevant to Durands’ requested
sanctions against Mr. Kellison and Mr. Davis and their
clients, for attorney malfeasance.
However, in In re Marriage of Flaherty, supra, 31
Cal.3d 637, the Supreme Court did state: [Sanctions]
“...can serve the important purpose of penalizing the
most egregious conduct without deterring valid appellate
claims.” “...a few extreme examples demonstrate the
necessity for a deterrent.” Isn’t the filing of falsified
evidence with the Appellate Court egregious conduct,
which would warrant the granting of sanctions? What
about the Penal Code violations?
Are attorneys considered “above the law”? If
attorneys can so egregiously violate the Penal Code, the
Business and Professions Code, Rule 11, and cause
obstruction of justice without any repercussions, than the
answer is “Yes”.
The Appellate Court affirmed the trial courts
granting of sanctions against Durand based on their
erroneous theory that the trial court had determined
Durands’ tort causes of action had become moot upon its
resolution of the quiet title. The Record belies that theory
as stated above.
F39
The sanctions in favor of Slusser were granted in
violation of the “safe harbor” provision. The Arif/Rice
sanctions were granted on lack of merit.
Sanctions are not to be used to chill vigorous
advocacy. When a pro per litigant is sanctioned for being
a vigorous advocate in asserting their Constitutional
rights, and attorneys who allegedly violate the Penal
Code, the Business and Professions Code and obstruct
justice, are not even reprimanded, it is no wonder that the
American people have zero confidence in the Judicial
system. The Supreme Court now has an opportunity, by
properly and equally enforcing the law, to stem the tide
and regain confidence lost.
CONCLUSION
The Supreme Court has the authority to secure
harmony and uniformity in the decisions of all the courts,
to enforce their conformity to the settled rules and
principles of law, to secure a uniform rule of decision
throughout the state, to gain a correct and uniform
construction of the constitution, and statutes, and in some
instances, to make a final decision by the court of last
resort of some doubtful or disputed question of law.
In the present case there are significant issues of
widespread importance and it is in the public interest to
decide these issues at this time. Review of these issues is
necessary to decide important legal questions and to
secure uniformity in case law.
VERIFICATION
I/We declare under penalty of perjury under the
laws of the State of California that the foregoing is true
and correct, and that if called to testify as to said matters,
I/We could competently do so.
DATED: August 5*, 2002.
F40
/S / /S
MADELAINE DURAND EDWIN DURAND
In Propria Persona In Propria Persona
F41
APPENDIX G
The Statement of Decision of the Superior Court of the
State of California, In and for the County of Lassen
Craig M. Kellison, SBN 074621 FI LED
Law Offices of Craig M. Kellison APR 28 1999
P.O. Box 1238 LASSEN COUNTY,
60 South Lassen Street SUPERIOR COURT
Susanville, CA 96130 R. REED, CHIEF ADMIN.
(530)257-5555 OFFICER
Attorney for Plaintiffs By: /S Deputy
IN THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA IN AND FOR THE COUNTY OF LASSEN
SYED M. ARIF, et al., CASE NO. 29224
Plaintiffs,
vs. STATEMENT OF
DECISION
EDWIN DURAND, et al. [CCP § 632; Rule 232
Defendants. Cal. Rules of Court]
EDWIN DURAND, et ux.,
Cross-Complainants,
vs.
SYED M. ARIF, et al,
Cross-Defendants.
This case was tried to the court sitting without a jury
in November, 1998. At the conclusion of trial the parties
were allowed time to brief their positions. The closing brief
was filed in January and the matter was submitted then for
decision. The Court has read and considered the extensive
briefs filed, has reviewed its own trial notes, and has
recently reviewed all of the exhibits that were admitted at
the trial.
On March 23, 1999, the Durands timely filed a Request
for Statement of Decision pursuant to CCP § 632.
Gl
The Court is not persuaded that the “claim jumper”
arguments add anything to the arguments of the Plaintiffs or
Cross-Defendants Earthco and Valtec. The Durands are not
claim jumpers if they win this lawsuit; they are if they lose.
The Court does not find bad faith on t he part of the Durands.
They appear to honestly hold their views that these mining
claims are invalid for the reasons they state. If that were true,
the properties would have been open to relocation.
Not all of the mining claims that the Plaintiffs and
Cross-Defendants hold are subject to competing claims by
the Durands. There is no provision in the law for an action
analogous to a qui tam action. A non-claiming party has no
right to contest the title of a mining claimant. Judgment
therefore will be for Arif and Earthco quieting title as
against all Defendants and Cross-Complainants to the
uncontested (by stipulation at trial) mining claims.
The Defendants and Cross-Complainants challenge the
title of the Plaintiff and Cross-Defendants to the contested
claims. The suggestion is made that since the Plaintiff and
Cross-Defendants cannot trace their claims back to the
original locators by means of quitclaim deeds, they do not
have title. The Court finds that there is no law or rule that
requires transfer by quitclaim. Any method of transfer
recognized in California is adequate, even an unrecorded
one. It is clear here that the Durands and their corporation
are not bona fide purchasers. Therefore, any failure, if there
was any, to record the instruments of transfer prior to the
Durands’ entries onto the mining claims is immaterial.
As to the mining claims to which the Durands hold
competing claims, the Court finds Arif and Earthco have
met their burden of making a prima facia showing that they
or their predecessors made valid discoveries, properly
located the various claims, recorded them as required, and
have done the annual assessment work or paid since 1993
G2
the necessary fees. The Durands have not overcome this
prima facia showing.
Much of the case presented by the Defendants and
Cross-Complainants suggests that there may not have been
valid discoveries, that the location on the ground may not
have met the federal and or state requirements, that the
locating could not have been done in the time periods
claimed, and that the annual assessment work was either
not done or would not qualify. These suggestions were
without supporting evidence. In the absence of evidence, the
Durands have not overcome the presumption created by the
Plaintiffs’, the Cross-Defendants’, and their predecessors’
filings, recordings and payment of fees.
In addition, all of the evidence is that the Durands’
claims arose at times when the Plaintiffs and Cross-
Defendants or their predecessors in interests were current in
their obligations. If there was any default by them, it was
cured before the Durands intervened by locating, filing, and
recording their claims.
Therefore, it is found that Plaintiffs are entitled to
have judgment quieting title in them to the disputed and
undisputed claims. It will also be ordered that the
Defendants and Cross-Complainants are enjoined from
entering onto any of the Plaintiffs’ claims or the Mapes
Ranch for the purposes of exploration, discovery or location.
The Court will also Order title quieted in the Earthco claims.
The Durands also have filed a pleading entitled
“Proposals to Issues Raised by Defendant/Cross-
Complainants Request for Statement of Decision” which
will be construed as proposals to the statement of decision
pursuant to Rule 232(b) of the California Rules of Court.
G3
These proposals are actually arguments that were
previously raised and rejected by this Court either expressly
or implicitly and are summarized as follows:
pF (11) each “Ironcloud” claims traversing U.S.
Hwy. 395 BLM letter and federal law uphold
validity of “Sierra Lady” Claims.
2 (22) each “R&R” mining claims sold to Tract
West, Inc.
3. Prudent Man Test - The BLM Federal mining
law shows that without a discovery or proof
thereof there is no valid mining claim.
4. Title transferred using forged document;
(23) each “Ironcloud”; (22) each “R&R”;
(8) each “Native American” mining claims.
5. Location of mining claims, discovery before
transfer.
6. Requirements for mining claim and site
locations.
7. Types of assessment work that will not
qualify.
8. Invalid transfers in chain of title and recorded
transfers.
9. Notice of intent to hold - abandonment.
10. Tax default.
11. Tentative decision made by Judge Young
based on facts and evidence appeared
Durand would prevail on title to mining
G4
claims - Rice insider trader, admitted theft,
unjust enrichment, breach of fiduciary and
confidentiality relationship, theft of trade
secrets, failure to answer motions to compel,
obstruction of justice, perjured and false
testimony, non-appearance plaintiff and
cross-defendant at trial.
The Durands claim that they are entitled to “written
findings of fact and conclusions of law” pursuant to CCP §
632. CCP § 632 was amended, however, in 1998 and
provides that “written findings of fact and conclusions of
law shall not be required”.
So far as issues numbered 1 through 11 attempt to
challenge the validity of any of the uncontested claims of
Plaintiffs and Cross-Defendants, this Court again
reemphasizes that the Durands have no standing to
challenge these claims. It is well established that title or
possession to property may not be attacked by persons
showing no color of title in themselves. Perego v. Dodge
(1896) 163 U.S. 160; Cole v. Ralph (1919) 252 U.S. 286; Lind v.
Baker (1939)31 CA2d 631, 639; Hess v. Moodey (1939) 35
CA2d 401, 404-405; Judson v. Herrington (1943) 55 CA2d
476, 480; Jackson v. Roby (1883) 109 U.S. 440; Gibson _v.
River Farms Co. of California (1938) 28 CA2d 757; Pacific
States Savings & Loan Co. v. Warden (1941) 18 C2d 757;
Williams v. City of San Pedro (1908) 153 Cal. 44; Hoeller v.
Lloyd (1959) 173 CA2d 777.
In Pacific States Savings and Loan Co. v. Warden, supra, at
757, the Supreme Court emphasized:
“, . .title to property may not be attacked by
persons showing no color of title in themselves,
and that want of validity may not be set up by
strangers and intruders, that is, persons who
were neither in possession of the property nor
G5
tr ml rn nine ena estate
connected in any way with the paramount
source of title. . . .In a quiet title action the
plaintiff must prove his title in order to recover.
It has been stated as an elementary rule that “If
he has no title, he cannot complaint that some
one else, also without title, asserts an interest in
the land. . . .“ A defendant who does not,
himself, claim some right, title, interest, or
possession, has no status to question the
validity of a conveyance of the property by a
third person to the plaintiff.
It may also be said that the plaintiff's prima facie
showing required the defendant to go forward
with proof also as against one shown to be a
stranger to the title, the plaintiff's prima facie
showing would entitle him to judgment.”
Similarly, in Gibson v. River Farms Co. of
California, supra, the court stated:
“Here, however, owing to the invalidity of the
proceedings, plaintiffs had no title and no
possessory rights and a plaintiff in a quiet title
action must fail unless he shows title in himself,
and is not in a position to complaint if someone
else, even without title, asserts an interest in the
property. Neither plaintiffs nor the appellant
were in a position to complain of the
recognition of any right in favor of defendant.”
In their opening brief, the Durands cited no law to
support their ability to legally challenge the claims of Arif
and Earthco to the above-referenced claims. During trial,
Durands briefly argued that their interest was similar to the
doctrine of private attorney general. There does not exist,
however, any statutory authority for a third party to
G6
challenge the use of public lands of another. The Federal
Land Policy Management Act of 1976 does allow for the
Attorney General of the United States to institute an action
to prevent unlawful activity. In 43 U.S.C. § 1733(b), it is
provided that:
“At the request of the Secretary, the Attorney
General may institute a civil action in any
United States district court for an injunction or
other appropriate order to prevent any person
from utilizing public lands in violation of
regulations issued by the Secretary under this
Act.”
It is equally clear that the federal statutes and
corresponding provisions of the Code of Federal
Regulations do not provide for the maintenance of actions
by parties having no interest in the challenged claims. 30
U.S.C. Sec. 30 provides, in pertinent part:
“Where an adverse claim is filed during the
period of publication, it shall be upon oath of
the person or persons making the same, and
shall show the nature. boundaries, and extent of
such adverse claim. . .” [emphasis added]
In the corresponding sections to the Code of Federal
Regulation, the issue of who may challenge a decision of the
Bureau of Land Management is set forth in 43 C.F.R. § 4.4
10(a), which provides as follows:
“(a) any party to a case who is adversely
affected by a decision of an officer of the
Bureau of Land Management or of an
administrative law judge shall have a right to
appeal to the Board. . .“
G7
ISSUE NO. 1
(11) each “Ironcloud” claims traversing U.S. Hwy.
395, BLM letter and federal law uphold validity of “Sierra
Lady” Claims.
The issue of amended location notices was raised only
briefly at trial. There was no evidence presented that would
allow the Court to conclude that Durands possess a superior
right to any of the claims as a result of defects in any of the
amended relocation notices filed by Earthco.
It should be noted, that since none of the contested
claims of Arif are located adjacent to Highway 395, any
argument that the Durands possessed would appear not to
apply to Arif.
With respect to Earthco, the evidence does support
that once it was determined that the highway intersected
various Ironcloud claims along Highway 395, that Earthco
timely filed amended relocation notices to cure the defect.
While the Bureau of Land Management determined that the
land beneath Highway 395 was “void ab initio” no other
ground was affected by the BLM.
It should be noted that the amended relocation notices
filed by Earthco do not encompass Sierra Lady Claims No.
164 and 165 as Earthco elected not to include that land in the
relocation notices Earthco filed. As such, Arif and Earthco
agree that said Sierra Lady Claims and the underlying
ground should be quieted in the name of Durands.
ISSUE NO.2
(22) each “R&R” mining claims sold to Tract West, Inc.
As stated above, the Durands have no standing to
challenge any of the uncontested R&R mining claims.
G8
The only contested R&R claims relate to R&R claims
No. 22 and 23. With respect to these claims, the Court finds
that Tract West was not a party to this action and the
Durands do not claim title through them. It would only
appear to make sense that if the transfer to Tract West in
1980 was genuine, then the issue of ownership and
possession as to the R&R claims should be one between Arif
and Tract West.
The sales agreement between Novak and Tract West
[Exhibit 22] appeared to make the sale of the R&R claims
conditional upon payment. This fact became reinforced by
evidence introduced by the Durands at trial that Novak
claimed ownership of the R&R claims during the lawsuit
against Lassenite one year later [see Exhibits 65 and DW].
Thereafter, Novak continued to perform the required
annual assessment work and timely made the proper filings
in his own name. That was eighteen years ago, and Tract
West has never resurfaced to claim a competing interest.
The uninterrupted use for five years also applies in the
situation regarding the purported transfer by Novak to Tract
West in 1981. Applicable here, however, is that the
continued uninterrupted use of the R&R claims for a period
of five years by Novak following his purported transfer to
Tract West not only eliminated the ability of Tract West to
complain - but most certainly eliminated the ability of
Durand to claim the defect on behalf of Tract West.
In Altoona Q.M. Co. v. Integral O.M. Co. (1896) 114
Cal. 100, it was held that “when possession has continued for
five years, before adverse rights exist, it is equivalent to
location.” See, also, Dalton v. Clark, supra, at 140.
The principle is similar to “adverse possession” .
With respect to the R&R claims, the continued and
G9
uninterrupted use by Novak for a period of five years at any
time prior to the location by the Durands in September of
1993 was equivalent to location.
In Phelps v. Pacific Gas & Electric Co., supra, at 563-64,
the Court of Appeals noted:
“It is also contended by defendant
(appellant) that the evidence is insufficient to
show that a valid mining claim was
established in 1898 by respondents’
predecessors in interest. It is argued that the
description is insufficient; that there is no
competent evidence that the original claim was
posted on the ground or that the claim was
monumented, and that the amended notice of
claim which attempted to more fully describe
the claim was ineffectual because it was
recorded after the Power Site Withdrawal
Order covering the area in dispute. This
contention is without substance. The record
discloses that in 1898 respondents’
predecessors in interest recorded Notice of
Location of the claim in question. It is
unnecessary to discuss the question of whether
or not their acts were sufficient since the trial
court found that:
‘Plaintiffs and their predecessors in
interest were in the actual, exclusive and
adverse possession of said mining claim
continuously for more than 40 years prior to
the filing of the Complaint herein, and ever
since June 20, 1898, or thereabouts, have
claimed to own and were the owners of the
same and of the right to the sole and exclusive
possession thereof against the whole world
save with respect to the interest of the United
G10
States of America.”
ISSUE NO. 3
Prudent Man Test - The BLM Federal mining law
shows that without a discovery or proof thereof there is no
valid mining claim.
Again, the Court reiterates its position that the
Durands have no standing to challenge the uncontested
claims. It must be stressed that the Durands had the
“burden of proof’ in establishing lack of location or
discovery. The Court finds that they failed to meet this
burden. Such a finding is especially true when the Durands
were required to establish lack of location or discovery as to
the contested claims only. The record is nace of any type
of evidence submitted in this regard.
The Durands cite the prudent man test enunciated
in Crisman v. Miller (1905) 197 U.S. 313, to the effect that:
“Traditionally, a discovery has been
said to exist where the evidence is such that a
prudent individual would be justified in the
further expenditure of his labor and means
with a reasonable prospect of success in
developing a paying mine.”
For purposes of the present case, however, the
argument makes little sense. Here, the Durands have staked
claims over the same ground as Earthco and Arif. The
Durands do not argue that a “discovery” on their part was
necessary with respect to these claims.
J
The argument then becomes why would a
“discovery” by Novak be any less credible than a
“discovery” by Durands on the very same property? Should
Novak be treated differently as a “person of ordinary
Gil
prudence in the further expenditure of his labor and means”
as opposed to the Durands?
These types of collateral challenges have never been
successful in California courts. Hess v, Moodey (1939) 35
CA2d 401, 404-406; Lind v. Baker (1939) 31 CA2d 631, 639;
Judson v, Herrington (1943) 55 CA2d 476, 482; Pease v.
Johnson (1951) 106 CA2d 449.
Such defects (discovery, location, etc.) are not subject
to challenge when the locator has continued in possession
for five uninterrupted years. Hess v. Moodey (1939) 35
CA2d 401, 405-06; Phelps v. Pacific Gas & Electric Co. (1952);
Judson v. Herrington (1943) 55 CA2d 476; Dalton v. Clark
(1933) 129 CA 136.
Even if Durand had met his “burden of proof’ in
establishing lack of “location” or “discovery”, Novak's
uninterrupted possession for five years eliminated the
ability of a junior locator to challenge these types of
collateral challenges.
ISSUE NO.4
Title transferred using forged document; (23) each
“Troncloud”; (22) each “R&R”; (8) each “Native American”
mining claims.
Durands content that Arif does not hold title to any of
the claims as a result of the existence of an alleged “forged
document” which was filed with the Bureau of Land
Management. The Durands forget, however, that the
transfer of claims is subject to state law and recording
requirements. This Court finds nothing in the record to
support that the “purported forged document” was ever
recorded at the county level. Similarly, only R&R Claims
Nos. 23 and 24; and Ironcloud Claims Nos. 28, 29 and 31 are
contested claims in which the Durands possess any type of
G12
standing.
It is also most difficult to follow the claim by the
Durands that one or both of Exhibits DR or DS is a forgery
[see Exhibit 731. Assuming this fact could be true, it would
only mean that the Novak co-locators did not intend to
transfer their interest in the Ironcloud claims to either Arif
or his predecessors or Earthco or its predecessors. The
Durands logic in offering this evidence is difficult to
understand because what business do the Durands have in
challenging whether the co-locators of the Ironcloud claims
have relinquished their interest in the claims? The Durands
do not claim that their interest is derived from these co-
locators, and they certainly have no standing to represent
said co-locators in the present action or to champion for
their cause. At worst, Arif and Earthco would have simply
been a co-owner with the co-locators.
Again, the argument becomes meaningless since the
exact same co-locators of the ironcloud claims have
quitclaimed away their interest to these claims [see Exhibits
66 through 72]. Exhibits 66 through 72 are Quitclaim Deeds
from the very same co-locators that founded the Ironcloud
claims on November 17 and December 13, 1989 [Exhibit 23].
Further, Novak testified that he witnessed each and every
signature on Exhibit DR. Finally, not one of the signatures
have ever challenged the transfer effected by these exhibits.
ISSUE NO. 5
Location of mining claims; discovery before transfer.
Again, the Durands claim the absence of discovery
with respect to all of the Ironcloud and Jennifer claims. They
contend that each of the above referenced claims has been
abandoned.
The Durands have no standing to challenge the
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uncontested Ironclouds of Jennifers. During trial, the
Durands failed to meet their “burden of proof’ in
establishing lack of location or discovery as to any of the
contested Ironclouds and Jennifer claims. These types of
challenges have never been successful in California courts.
Hess v. Moodey, supra, at 404-406; Lind v. Baker, supra, at
649; and Judson v. Herrington, supra at 482.
ISSUE NO.6
Requirements for mining claims and site locations.
The Durands challenge whether any of the claims
were properly located. Since we are dealing with only the
contested claims, it is clear that the Durands introduced no
evidence at time of trial to support the lack of location. None
of the witnesses, including the Durands, had personal
knowledge that proper location did not occur. Lack of
proper location or impossibility of location requires “clear
and convincing evidence”. Sampson v. Page (1954) 129
CA2d 356. Clearly, the Durands failed to meet this burden.
ISSUE NO. 7
Types of assessment work that will not qualify.
A contesting claimant is. also not permitted to
challenge the nature and extent of the work performed.
Otherwise, every year thousands of mining claims would be
under the scrutiny of would be “claim jumpers”. That is
precisely the reason that the California Legislature created
the “prima facie evidence” standard in Public Xesource
Code § 39 13(b).
Both Congress and the courts have continually
discouraged technical challenges to “assessment work”.
Pascoe v. Richards (1962) 201 CA2d 680; Ehrhart v. Bowling
(1940) 36 CA2d 503; Pease v. Johnson (1951) 106 CA2d 449.
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This was best exemplified in Sampson v. Page,
supra, wherein the court noted:
“The law does not require that the labor shall
benefit the claim in the sense of making the
claim more valuable after the performance of
the labor than before. Therefore any labor
performed upon the claim, if sufficient in
amount, will satisfy the law, if its tendency is to
develop the claim as a mine. The digging of
prospect holes, or the digging of a cut or cuts or
drain ditch or ditches, the removal of brush,
panning, etc., and all things done necessary for
the doing of assessment work, if sufficient, in
amount, will be in compliance with the law.
Work done for the purpose of discovery of
mineral whatever the particular form of
deposit, also is work and improvement within
the meaning of the statute. (Rickelts, supra, pp.
282-283, fn. 4)
Visibility is an untrustworthy test of eligibility.
Worthless trampling on the surface may create
a facade of economically valuable activity
while $100 worth of underground tunneling
may be practically invisible.”
During the passage of the 1993 Interior Department
Appropriations Act, wherein the “maintenance fee”
replaced the previous “assessment work obligation”, the
legislative history reveals the congressional attempt to
eliminate challenges by rival miners concerning the
“assessment work” issue. In the legislative history of the
1993 Interior Department Appropriations Act [H.R. Rep.
103-338], it was noted:
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“Diligent development, or that work required
to be done annually, that leads toward the
development of a mine. This assessment work
obligation is policed by rival miners that can
legally overstake a non-diligent miner’s claim
and take possession of the deposit. (This
concept has been modified on the federal level
with the recent substitution of the $1
00/claim/ year “maintenance fee,” first in the
Fiscal Year 1993 Interior Department
Appropriations Act and replicated in the
Omnibus Budget Reconciliation Act of 1993.”
Thus, one of the goals in instituting the “maintenance
fee” was to eliminate the possibility of individuals who sat,
waited and preyed on a “technical defect” of the senior
locator.
Assessment compliance relies upon the Federal Land
Policy and Management Act of 1976 (FLPMA). This Act
governed various assessment work requirements until the
adoption of the Department of the Interior and Related
Agency Relations Act of 1993, which effectively suspended
the assessment work requirement for, beginning with the
1992-1993 assessment year. As of 1993 an annual holding fee
(identified as a “rental fee” or, later “service charge”) for
every unpatented lode or Placer claim is required.
All of the alleged defects claimed by Durand pre-date
the 1993 “rental fee” or “service charge” concept. The
adoption of the “rental fee” demonstrated the Department
of the Interior's intention to eliminate the ambiguity that
was contained in the assessment work recitation that had
created so much divisiveness among claimants.
William Tilden referred to the change between the
“assessment work” and the “rental fee” as a cleansing, in
that the pre-1993 BLM filing was intended to eliminate
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collateral attacks as to previous assessment work.
Assuming that any or all of the alleged defects in the
assessment work occurred, the defects do not constitute a
forfeiture unless there exists a relocation by a third party, and
in the absence of such a relocation, the original claimant has
the right to resume work and to retain his claim. Madison v.
Octave Oil Co. (1908) /54 Cal. 768; Clark v. Mallory
(1937)22 CA2d 55; Altouna Q~M. Co. v. Integral O.M. Co.
(1896) 114 Cal. 100; Kramer v. Gladding. McBean & Co.
(1939) 30 CA2d 98.
In the present case, there is no evidence that Durand
established his claim over any of the same ground as the
claims of Earthco or Arif until September 1, 1993. As a
result, any specific claimed defect in the assessment work
would have been cured upon resuming work in the year
following the alleged defect.
Statutorily, this appears in the mining law of 1872. In
30 U.S.C. § 28, it is provided as follows:
“On each claim located after the 10th day of
May 1872, that is granted a waiver under
section 28f of this title, and until a patent has
been issued therefore, not less than $100 worth
of labor shall be performed or improvements
made during each year. . . .and upon a failure
to comply with these conditions, the claim or
mine upon which such failure occurred shall be
open to relocation in the same manner as if no
location of the same had ever been made,
provided that the original locators, their heirs,
assigns, or legal representatives, have not
resumed work upon the claim after failure and
before such location.” [emphasis added]
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In Ickes_v. Virginia-Colorado Development Corp.
(1935) 295 U.S. 639, at 645, the Supreme Court emphasized
that “the law is clear that no relocation can be made if work
be resumed after default and before such relocation.”
Similarly, see Hickell v. Oil Shell Corp. (1970) 400 U.S. 48,
53.
In the present case, the Durands cannot challenge any
defect in any given year unless it is further proven that the
assessment work was not “resumed”.
In addition to the Supreme Court decision in Ickes v.
Virginia-Colorado Development Corp.. and Hickell v. Oil
Shell _Corp., supra the Supreme Court of the state of
California has also held.
In Pidgeon v. Lamb (1933) 133 CA 342, the court
emphasized:
“In any event, a forfeiture for failure to do the
annual labor can only be claimed by one who
make a valid location on the claim before the
resumption of labor (U.S. Rev. Stats., sec. 2324;
Madison v. Octave Oil Co., 154 Cal. 768, 773 [99
Pac. 1761.) It is conceded that defendant
performed the required annual labor since
1916, and plaintiffs did not initiate its location
until 1930. Hence, plaintiffs could not claim any
rights by reason of the alleged forfeiture for
failure to do assessment work in 1916 if that
fact be conceded.”
Also, the court, in Clark v. Mallory (1937) 22
CA2d 55, at 62, the court stated:
“... that failure to do assessment work upon a
mining claim does not operate to terminate the
G18
locator’s right in favor of a person who has
merely taken possession of the claim; the sole
effect of the failure, there being no
abandonment, was to throw the land open to
location to others, and in the absence of such
other location, the original claimant's right to
resume work and to hold his claim remains.”
The Durands question both the nature and extent of
the assessment work performed on the claims at issue
herein. During trial, they introduced no evidence to support
their allegation that the assessment work described in the
notice was not performed.
ISSUE NO.8
Invalid transfer in chain of title and recorded transfers.
It is unclear to the Court what is raised by this
particular issue since it begins with the contention that it
would have been impossible to locate various of the claims
in a one day period and then leap to the assertion that only a
quitclaim deed should be recognized when effectuating a
transfer of claims.
Again, it must be stressed that the Durands do not
have the ability to challenge the uncontested claims. As to
the contested claims, the burden of proof was on the
Durands to establish by “clear and convincing evidence”
that acts or omissions of the senior locator have caused the
real property to be reopened to location. Sampson v. Page
(1954) 129 CA2d 356, 362; Dailey v. Wallace (1954) 234 CA2d
689, 692; and Brownv. Murphy (1939)36 CA2d 171, 180.
Durand offered only three witnesses whose testimony
touched briefly on the issues relating to (1) discovery; (2)
location; (3) assessment-work; (4) impossibility of location,
etc. These witnesses were Durand, Sheldon and Witzel.
G19
LOPE SS SE ESOS
PSO SP SO RETIN VLE LER O TE
SORE A o
None of these witnesses made mention of any defect or
infirmity as to the 5 contested claims held by Arif. Neither
Sheldon, Witzel or Durand testified to or made any mention
of defects as to the Ironcloud 28, 29 and 31; or R&R 23 and
24 Claims. Sheldon had no specific recollection of being on
said claims. Witzel and Durand had no knowledge of ever
being on any of these five claims. Additionally, neither
Sheldon or Witzel testified as to defects in the Jennifer
claims.
On the converse, Novak testified that he properly
located each and every claim and performed the necessary
assessment work. Public Resource Code 3913(b) created a
prima facie presumption that the work was done.
Pepperdine v. Keys 198 CA2d 25.
As to location, Ironcloud 28, 29 and 31 were located on
November 17, 1989; and the R&R claims 25 and 26 were
located on January 29, 1976. The competing Sierra Lady
Claims Nos. 144, 145, 147, 156 and 157 were all located on
September 2, 1993 [Exhibit 32}.
As to the issue regarding the necessity of a quitclaim
deed to transfer an interest in mining claims, there is
absolutely no legal authority for such a contention.
When Mr. Durand asked Stacy Beck in her deposition
about this matter, the testimony was as follows:
Question: “If these claims were transferred - you
talked about transfer of interest. To transfer interest,
what does a transfer interest require besides
payment of fee?”
Answer: “A transfer document would need to
be filed with us that would show that, lets say, John
Doe for whatever sum of money or whatever
transf
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