# Appendix — Durand v. Arif > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0939%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 537 U.S. 1233 ## Text y) Supreme Court, U8, y FILE® 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 Unpublished “OPINION” Court of Appeal of The State of California, 3rd Appellate District, 06-24-02: Page Al to Al4.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