Petition for Writ of Certiorari — Halliwell v. Superior Court of California, Sonoma County (No. 09-199)

\) 09-199 AUG 10 2009

No. 09-____

OFFICE OF THE CLERK

Wan K. Site, Clark

IN THE

Supreme Court of the United States

MICHAEL HALLIWELL & JAMES PARKER,

Petitioners,

V.

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SONOMA,

Respondent,

CHRYSANTHE PAXINOS,

Real Party in Interest

On Petition for a Writ of Certiorari

To the California Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Michael J. Halliwell & James F. Parker

Defendants in Propria Persona

271 E. Cotati Ave, Cotati CA 94931

707-795-5526, halliwel@csulb.edu

August 10, 2009

QUESTIONS PRESENTED

1. Right to knowledgeable representation

precludes interference with case management

Does a Defendant’s right to knowledgeable exercise

of his rights (as affirmed in Gideon v Wainwright)

bar requiring evicted Defendants to “switch horses in

the middle of the stream” by precluding participation

in subsequent attorney fees litigation by a Defendant

whose conduct of pre-trial and trial proceedings is

the basis for the fees being sought.

2. Unadjudicated Refusal to Allow Self-

Represented Defendants to Conduct Own Case

Can the right to payment by the opposing side for

defending-a fees judgment on appeal, be upheld if a

party aggrieved by a denial of standing in attorney

fees proceedings is not allowed to seek appellate

review of such trial court rulings (in violation of CCP

§ 902, and governing precedents such as Nelson v

Adams, County of Alameda v Carleson, Varian

Medical Systems, Inc. v Delfino, Atres Development

Co. v Coastal Zone Conservation Commission,

Conservatorship of Stewart, and In re Catherine FR)?

3. Continuing Judicial Action in Violation of

Stay per December 22, 2008 Standing Appeal

CCP § 916(a) deprives a judge whose order has been

appealed of jurisdiction to proceed with aspects of

the case related to such appeal. The refusal of the

Appellate Branch to take cognizance of Defendants’

December. 22, 2008 appeal ($280 appeal fee check

#3131) from continuing judicial refusal to allow them

to conduct their case as per Gray v Justice’s Court

still continues, even though the Hearing Transcripts

and Chronological Index needed to initiate appeal

briefing are both available.

£3

4. Ex Post Facto Application of CCP § 391

Can prior restraint restrictions on “new litigation”

pursuant to California’s CCP § 391 be applied

retroactively, to invalidate a Notice of Appeal filed

five weeks before the Vexatious Litigant Finding is

made. Where a trial court judge allows a Plaintiff to

completely evade legal issues raised by Defendants,

and makes no rulings on these issues herself, can

Notices of Appeal based on a February 10, 2009 fees

award and/or an April 3, 2009 Writ of Execution be

barred as “new litigation” by a Vexatious Litigant

Finding promulgated on April 17, 2009?

5. Automatic set-aside of all submissions by

those labeled Vexatious Litigants by CCP § 391

In Sonoma County Superior Court, self-represented

litigants, who have been labeled by that Superior

Court as Vexatious, have no rights which a Presiding

Judge of that Court need respect. Manifestations of

this policy include: a) Refusal to take cognizance of a

Notice of Appeal from an April 17, 2009 Vexatious

Litigant Finding presented and paid for on May 13,

2009, within the 30 day period set by CRC 8.751(a),

with no acknowledged judicial action or indication in

the Case File, that the appeal was submitted. b)

During the last 10 weeks of the tenure of Presiding

Judge Knoel Owen (April 20, 2009 to June 30, 2009)

all documents submitted hy Defendants in Paxtnos vu

Halliwell & Parker were sent to Judge Owen for

approval or rejection, but no action was taken on any

of these attempted filings. Since June 30, 2007 the

new Presiding Judge Gary Nadler has “pushed back”

all attempted filings by Halliwell and Parker, with

no indication in the case file of the reason for his

rejections, or even acknowledging our submissions.

6. Premature OEX & Single-Action CCP §

391 Abuse to Deny Proper Preparation Time

The pressure on self-represented Defendants from a

two-front squeeze created by the timing of briefing

schedules for $10,118 and $20,720 fees appeals has

been greatly aggravated by eight premature Order of

Examination hearings seeking the immediate

enforcement of fees awards (contrary to CCP § 916(a)

stay provisions) and Judge Rushing’s Vexatious

Litigant Order to Show Cause, timed to coincide

with a hearing on yet another ($19,000) fees motion.

Why should self-represented litigants not be

accorded the same consideration with respect to

competing courtroom and brief preparation demands

on their time, as is routinely accorded to attorneys?

7. Disregard of automatic stays without

posting an appeal bond provided by State law

Where State statute (CCP § 916(a)) and case law

(Betz v Pankow) provide for an automatic stay of

enforcement of judgments which are not yet final,

and exempts judgments which consist entirely of

attorney fees and other costs from the posting of an

appeal bond (CCP § 917.1(d), Ziello v Superior Court

and Nielsen v Stumbos), is premature enforcement a

violation of Due Process of Law and Equal Protection

guarantees of the Fourteenth Amendment?

iv

TABLE OF CONTENTS

QUBSTIONS PREGGO TE 2. oc cee ee wane 1

p¥ UP Ce) gee yy sy y. rere 1V

Teka COP PAUL Pd EI 6 ve ee ect ses Vv

PETITION FOR A WRIT OF CERTIORARI...... 1

Cor a erOn WMEEAPUE 6 bie Soe we ek Oa ed ea ee lee 4

PT CG ooo ee ded bre ow ee eae Oa lee 5

RELEVANT STATUTORY PROVISION......... 6

STATEMENT OF THE CASE ................. 9

A. Interference with Case Management........ 9

1. Right to knowledgeable representation ....9

2. Aggrieved party’s CCP § 902 rights...... 16

3. Ignoring December 22, 2008 appeal...... 20

B. Unfair Labeling as Vexatious Litigants..... 21

4. Ex Post Facto application of CCP § 391... 21

5. Automatic set-aside of all submissions... . 24

C. Deliberately Overloading Defendants. ..... 36

6. Premature OFX & CCP § 391 pressure. . . 36

7. Continued disregard of automatic stay... 41

REASON FOR GRANTING CERTIORARI. ..... 52

APPENDIX: (Orders/Contexts to fulfill Rule 14.1())

V

TABLE OF AUTHORITIES CITED

CASES

Adams v Murakami (1991) 54 Cal 3d 105, 120..... 7

Aries Develop. Co. v Coastline Coastal Zone Conser-

vation Comm. (1975) 48 Cal.App.3d 534, 542..... 21

Armstrong v Manzo (1965) 380 U.S. 545, 552... . 45

Babb v Superior Court of Sonoma County (1971) 3

ee ee yo os ek ae eee een 8

Betz v Pankow (1993) 16 Cal.App.4% 931, 938... . 47

Boddie v Connecticut (1971) 401 U.S. 371, 374... 52

Brinkerhoff-Faris Trust & Savings Co. v Hill (1930)

es I oi oa ee ee eee eee ee eee 41

Broad River Power Co. v South Carolina (1930) 281

ee et a et petal es oes 42,

City of Shasta Lake v County of Shasta (1999) 75

Ser BOs ce hha kaa eee wes eae ee 12

Clark v Millsap (1926) 197 Cal 765, 785. ..... 34, 44

Commonwealth Coatings Corp v Casualty Co. (1968)

ee re, Pe 5 ok 6 ok ee ee eee 51

Conservatorship of Stewart (1969) 276 Cal.App.2d

SNe as ke when ee 6544405 eee 21

County of Alameda v Carleson (1971) 5 Cal 3d 730,

‘+ | a

Craig v Boren (1976) 429 U.S. 190, 195 ......... 17

Elkins v Superior Court (2007) 41 Cal 4% 1337, 1354.

eae RE dr a ae gl ee ane ews ele le 12

Gideon v Wainwright (1963) 372 U.S. 335, 345... 10

Goldberg v Kelly (1970) 397 U.S. 254, 269

Gray v Justice’s Court (1937) 18 Cal.App.2d 420, 423

a tp ca he 5 pet ats techs aa a a a ae 9, 19, 20

Hagans v Superior Court (1962) 57 Cal 2d 767....5

Hall v Superior Court (2005) 133 Cal.App.4th 908,

es ke ok ee Oe 7

Holz v Superior Court (1970) 3 Cal 3d 296, 301, fn 4

tea gh DER NIG ESSE 9 en 8

In re Bittaker (1997) 55 Cal. App.4th 1004, 1009... 31

Mann v Thalacher (2001) 246 F.3d 1092, 1096-1097

Moles v Regents of University of California (1982) 32

be SEY a near 13

Morton v Wagner (2007) 156 Cal.App.4'® 963, 970-

in ke bac aw es ee eae 2%, 28, 29

and &

Vii

Nelson v Adams (2000) 529 U.S. 460, 472

Nielsen v Stumbos (1990) 226 CalApp.3d 301, 303 43

Powers v Ohio (1991) 499 U.S. 400, 410-411, 413-414

NA EREES SESE ERLE EE TR ee 14, 15, 21

Romer v Evars (1996) 517 U.S. 620, 633, 635 . 24, 25

Simon v City of San Francisco (1947) 79 Cal. App.2d

I rs was let eae yt veo 8

Singleton v Wulff (1976) 428 U.S. 106, 113-114... 16

State Farm Insurance Co. v. Superior Court (1956)

Gi Gk ee Gee, Gey BOS voc che be ee cw ew seeves 39

Varian Medical Systems, Inc. v Delfino (2005) 35 Cal

"kt INE gee ae rer ere aeek, POA NS Phat - 20

Warth v Seldin (1975) 422 U.S. 490, 504..... ye

Wolfgram v Wells Fargo Bank (1997) 53 Cal.App.4*

a aes ne eee eee eee 28, 29

Yick Wo v Hopkins (1886) 118 U.S. 356, 373-374. . 26

Ziello v Superior Court (1999) 75 CalApp4't 651,

NS oe a nna 2 ne waa Be 5 Oe a 42

UNITED STATES. CONSTITUTION

Se ec las ea wea es we

Sixth Amendment..............

Fourteenth Amendment..... 52

Vili

UNITED STATES CODES

ee ee Oe i ee eee ea 6

STATE STATUTES

California Business & Professions Code § 6068(d)

California Code of Civil Procedure Sec 391

ee ee eee 21, 22, 29, 30, 31, 32, 33, 36, 46

California Code of Civil Procedure § 703.560(b). . . 46

California Code of Civil Procedure § 902..... 16, 21

California Code of Civil Procedure § 916(a)

Pee Re Le Le eee 19, 20. 27, 30, 47, 48

California Code of Civil Procedure § 917.1(d)....43

California Code of Civil Procedure Sec 1048..... 39

California Code of Civil Procedure Sec 1086...... 8

California Code of Civil Procedure Sec 1161.2(c) . .10

CALIFORNIA RULES OF COURT

California Rule of Court 8.108(d).............. 28

California Rule of Court 8.750(a)..............80

SONOMA COUNTY SUPERIOR COURT RULES

Sonoma County Superior Court Local Rule 2.2D. . 24

PETITION FOR A WRIT OF CERTIORARI

This Petition for Certiorari to the California

Supreme Court seeks review of the latest phase of a

protracted procedural siege which has required more

than two years of full time effort by Defendants (two

self-represented tenants), to try to keep from being

overwhelmed by attorney fees awards (which now

exceed $50,000).

On October 2, 2007 (when this litigation was

four months old) the California Supreme Court held

a televised special session in Sonoma County, at

which every member of that Court emphasized the

importance of the Rule of Law. So far there has been

no tangible expression of such a commitment, other

than our State High Court’s willingness to accept

detailed documentation of the quagmire which this

case has become. This Petition does not suggest that

the United States Supreme Court try to unravel the

procedural Gordian Knot which this case has

become, but seeks only some respite from roguc

judicial action (which never cited any supporting

caselaw, and increasingly is not even reflected in the

Case Record). During such a respite Plaintiff's

counsel and the Sonoma County Superior Court

should be allowed to try to explain actions which

Defendants argue are not merely legally incorrect,

but in fact are gross violations of ethical standards

for attorneys and judges.

A remand to Federal District Court will have

salutary effects, no matter what the underlying facts

of this case truly are. If trying to resist Homeowner's

Association CC & R’s (Conditions, Covenants and

Restrictions), which allow a tenant to be condemned

anonymously, without having a right to even attend

such a proceeding, is indeed compatible with Equal

Justice Under Law. as the Federal Courts define it, a

farning to this effect is needed. On the other hand,

if the total refusal of various members of the Sonoma

County Superior Court to address any of defendants’

numerous grievances, turns out to be due to their

not having any justification for their treating the

Defendants in Paxinos v Halliwell & Parker as a

Vexatious nuisance, this reality needs to be exposed,

so that appropriate corrective action can be taken.

The Statement of the Case in this Petition

tries to avoid overlapping our April 20, 2009 and

May 18, 2009 Petitions for Certiorari. The three

main grievances (with seven aspects noted in our

Questions Presented) cited by Defendants are

matters of pressing concern which has escalated

since our two previous Petitions. They are A) refusal

to allow Defendants to even present their case, B)

creating an unappealable Vexatious Litigant Order

which leaves Defendants with fewer enforceable

rights than Civil Rights litigants in the era of

Massive Resistance in some former Confederate

States, and C) enforcement of Attorney Fees Awards

piled one upon another, which are supposed to be

automatically stayed (without an appeal bond) until

all appeals have been exhausted.

OPINION BELOW

The focus of this appeal is the various tactical

maneuvers by Plaintiff's counsel and the Sonoma

County Superior Court to procedurally overload

Defendants, while they were preparing their April

20, 2009 and May 18, 2009 Petitions for Certiorari re

Judge Rushing’s $10,118 and $20,720 attorney fees

awards. Defendants responded with their (S170538)

February 17, 2009 Petition for Mandamus relief to

the California Supreme Court. (The issues and cases

in this Petition and its Appendix are referenced in

Tables in Appendix at 7-18 and 81-97). The transfer

q

)

(in light of Hagans v Superior Court) Order of March

24, 2009 (Appendix at 239), Defendants’ Hagans

briefs (Appendix at 241-280) and the First District

Court of Appeal Mandamus Denial (A124403,

Appendix at 240), left a situation where Defendants

needed to update their proposed procedural relief

(Appendix at 281-392). The California Supreme

Court accepted (Appendix at 393) Defendants

supplemental filings and assigned a new case

number (S171792). Five weeks later the California

Supreme Court denied review (Appendix at 394).

JURISDICTION

On April 6, 2009 the Cahfornia Supreme

Court assigned $171792 to Defendants’ update of

their Petition for Mandamus, accepted their

accompanying Appendix and issued a briefing

schedule for response by opposing parties. However,

neither Respondent (Sonoma County Superior

Court) nor Real Party in Interest (Plaintiffs attorney

Charles Jensen) offered any response. On May 13,

2009, the California Supreme Court’s ruling said

only “The petition for review is denied.”

The deadline under 28 U.S.C. § 1257 to

Petition for Certiorari to the California Supreme

Court is August 11, 2009.

RELEVANT STATUTORY PROVISION

No Sonoma County Superior Court opinion

has even addressed the governing precedents cited

by Defendants (or provided any reference of their

own to case law), much less tried to apply them to

the circumstances of Paxinos v Halliwell & Parker.

The State Appeal Courts with discretionary review

power, have always declined to exercise it, without

any explanation. Therefore, interpretation of state

law is not a factor in this appeal. Defendants seek

only application of well settled rights under State

5

/

law, as they are guaranteed by the Equal Protection

Clause of the Fourteenth Amendment.

The well natedteded legal standards whose

protection is FEDERALLY MANDATED for every

person within the jurisdiction of California courts,

includes these governing precedents, cited in our

March 20, 2009 Petition to the California Supreme

Court (Appendix at 177): Hall v Superior Court

(2005) 133 Cal.App.4t 908, 919 affirms:

Court rules shouid be designed to accomplish

the ends of justice, to protect rights, and to

implement the substantive law. Whena

policy, practice or rule operates instead to

defeat these purposes, and deprives an

accused of a fair trial or determination on the

merits, then the policy, practice or rule must

give way.

Adams v Murakami (1991) 54 Cal 3d 105, 120 states:

The issue is not merely a question of trial

strategy. As our former colleague Justice

Peters aptly put it, “The trial of a lawsuit is

not a game where the spoils of victory go

to the clever and technical regardless of

the merits, but a method devised by a

8

civilized society to settle peaceably and justly

disputes between litigants. The rules of the

contest are not an end in themselves.” (Simon

v City of San Francisco (1947) 79 Cal.App.2d

590, 600)

Defendants March 12, 2009 Appendix H to the

California Supreme Court notes (at 114:1-9):

Babb v Superior Court of Sonoma County

(1971) 3 Cal 3d 841, 851 provides for the

issuance of a writ of mandate where “there is

not a plain, speedy, and adequate remedy, in

the ordinary course of law.” (CCP Sec 1086).....

The Babb opinion emphasizes the Court’s

reluctance “to employ prerogative writs” for

ongoing proceedings, saying: “Indeed, we

perform such a function of intermediate view

with extreme reluctance.” However, Babb

continues: “However, upon occasion our

attention is drawn to instances of such grave

nature or of such significant legal impact that

we feel compelled to intervene through the

issuance of an extraordinary writ. (See Holz v

Superior Court (1970) 3 Cal 3d 296, 301, fn

4.)” In Holz, supra, the High Court ruled:

“Where it appears that the trial court has

made a ruling which deprives a party of the

opportunity to plead his cause of action or

defense, relief by mandamus may be

appropriate.”

Our Mandamus request fits this standard.

STATEMENT OF THE CASE

A. Interference with Case Management

1. Right to knowledgeable representation

Defendants’ March 27, 2009 Update re

California Supreme Court transfer of S170538

(Appendix at 267), cites a Defendant’s right of self-

representation affirmed in Faretta v California

(1967) 422 U.S. 806, 812-813 and the similar

mandate of Gray v Justice’s Court (1937) 18

Cal.App.2d 420, 423. Defendants quote the

September 25, 2007 Fees Hearing Transcript (at

466:21 to 467:8) to show how Judge Rushing

completely silenced Defendant Halliwell (not even

allowing him to explain why he had standing), citing

no authority for this edict other than “it’s in the law

library and all the practice books.” (Id. at 14)

Defendants’ May 5, 2009 Reply to Prior

Restraint imposed by Judge Beaupre’s Order states:

10

Where secrecy is a deliberate device for

making it difficult for unlawful detainer

defendants to learn of their rights, the logic of

Gideon v Wainwright (1963) 372 U.S. 335, 345

applies. In Unlawful Detainer actions, 90% of

defendants are self represented, so this aspect

of Gideon, supra, provides a close parallel:

“Even the intelligent and educated layman has

small and sometimes no skill in the science of

law.” It is the purpose of CCP § 1161.2(c) to

keep consultants from remedying this

situation. And in Sonoma County Superior

Court, the fortified version of this statute

nearly guarantees the tenant will lose, thus

creating another Gideon parallel: “He lacks

both the skill and knowledge adequately to

prepare his defense, even though he have a

perfect one.” (1d. at 22)

Even when Defendants were able to figure out

what procedures the Sonoma County Superior Court

required them to follow, these procedures were often

abrogated where necessary to keep unrepresented

litigants from effectively presenting their case. An

important incident involving the judge (Gary Nadler)

originally assigned to Paxtnos vu Halliwell & Parker

(who continues to have an influential role in the case

11

because he is now Presiding Judge of the Sonoma

County Superior Court), is an example of this bias.

Defendants’ June 14, 2007 Form UD-150

Counter-Request To Set Case For Trial is a very

important document in terms of its implications.

The existence of such a document with such a date

shows the ridiculous nature of Judge Nadler’s initial

decision to convert the lawsuit into a court trial

because the address of the property in dispute was

not repeated in #2 just above the two seeming alter-

native “a” and “b” check boxes. This redundancy was

included in the form to provide a landlord who may

have several evictions going on at once, a quick way

to tell which was which, IF THE TENANT WERE

NOT SELF REFPRESENTED, AND THE

ADDRESS AT THE TOP OF THE FORM WAS

THAT OF HIS LAWYER. This is not a case of a

Judge who made a good faith mistake, with respect

12

to the intent of a rule. It is a case of a judge

determined to favor the landlord as much as he

could, who had to back down because he had no case

to counter clear-cut governing precedents, such as

that cited in our June 8, 2009 Memo (at 5:15-16):

“The law aspires to respect substance over formalism

and nomenclature.” (City of Shasta Lake v County of

Shasta (1999) 75 Cal.App.4'* 1, 11).

Another example is Judge Nadler’s policy of

not allowing oral argument and disposing of tenants’

pre-trial motions via Ex Parte Applications.

The Judges of Sonoma County Superior Court

are apparently determined to avoid a repeat of what

happened in Elkins v Contra Costa County Superior

Court (2007) 41 Cal 14t 1337. The routine denial of

oral argument under Sonoma County Superior Court

Local Rules for Ex Parte Applications is vulnerable

under “/kins, which struck down a Contra Costa

13

Family Court affidavits-only procedure. In Elkins

oral argument, Justice Kennard cited Goldberg vu

Kelly (1970) 397 U.S. 254, 268-269, which affirms:

[The person facing property deprivation] is not

permitted to present evidence to the official

orally, or to confront or cross-examine adverse

witnesses. These omissions are fatal to the

constitutional adequacy of the procedures. The

opportunity to be heard must be tailored to the

capacities and circumstances of those who are

to be heard. Particularly where credibility

and veracity are at issue, as they must be in

many termination proceedings, written

submissions are a wholly unsatisfactory

basis for decision. (Emphasis added.)

Defendant Halliwell explains the implications

of being denied oral argument:

Moles v Regents of University of California

(1982) 32 Cal 3d 867, 872 observes:

Oral argument provides the only opportunity

for dialogue between the litigant and the

bench. As a result, “it promotes understanding

in ways that cannot be matched by written

communication.” (Commission on Revision of

Federal Court Appeals System, Structure and

Internal Procedures: Recommendations for

Change (1975) p. 48.) For example, in com-

plex cases, oral argument “provides a fluid

14

and rapidly moving method of getting at

essential issues.” (ABA Committee on Stan-

dards of Judicial Administration, Standards

Relating to Appellate Courts. (Approved

Draft 1977) p. 56.) In the words of one judge,

“Mistakes, errors, fallacies and flaws clude us

in spite of ourselves unless the case is

pounded and hammered at the Bar.” (Cutler,

Appellate Cases: the Value of Oral Argument

(1958) 44 A.B.A.J. 831, 832; see generally

Stern, Appellate Practice in the United States

(1981) pp. 358-359.) No proof of the value of

oral argument is more compelling, however,

“than the fact that many judges find that the

opportunity for a personal exchange with

counsel makes a difference in result.” (Com-

mission on Revision of the Federal Court

Appeals System, Structure and Internal

Procedures: Recommendations for Change,

supra, at p. 47.) This aspect of oral argument

— the chance to make a difference in result — is

extremely valuable to litigants.

The undisputed basis for adverse impact on

Defendant Michael Halliwell of past and potential

future attorney fees awards, and his satisfying the

other two prongs of the Powers v Ohio (1991) 499

U.S. 400, 410-411 jus tertiu standing criteria are

15

documented in quotations from California Supreme

Court filings in Appendix at 173-174.

When Charles Jensen brought forward his

$20,720 reading-fee motion, Judge Rushing would

not allow Defendant Halliwell to participate in the

hearing on that motion, without even discussing how

this ruling related to governing precedents on

standing (such as Powers v Ohio (1991) 499 U.S. 400,

410-411, 413-414). At this May 6, 2008 Hearing,

Defendant James Parker protested: “Since the Court

has never cited any case law as to why Michael

Halliwell has not been allowed to speak, I would ask

the Court to cite some case law as to why not.”

(Transcript at 5:10-12) Judge Rushing replied: “I’m

not required to do so and I decline that request.”

(Ibid at 5:13-14)

Defendants’ March 27, 2009 Update re

California Supreme Court transfer of S170538

(Appendix at 268) cites appeal briefing where

Charles Jensen concedes that Defendant Halliwell is

adversely affected by any attorney fees award to

Plaintiffs counsel. This Update notes that, in not

allowing any input at all from the Defendant who

conducted the proceedings for which fees shifting is

sought (September 25, 2007 Hearing Transcript at

473:3-14), Judge Rushing violated the mandate of

Singleton v Wulff (1976) 428 U.S. 106, 113-114: “The

courts depend on effective advocacy, and therefore

should prefer to construe legal rights only when the

most effective advocates of those rights are before

them.” (id. at 14)

2. Aggrieved party’s CCP § 902 rights

Defendants’ May 138, 2009 Appendix (at 46:6

19) discusses the handling of standing on appeal

At the September 25, 2008 Appeal Hearing,

Judge Chouteau launched a broad attack

(Transcript 3:15 to 4:1) on Defendants’ right to

argue their case as they had prepared to do:

#1: Judge Chouteau said: “Now at this

time, this is an appeal at least of an

attorney's fees award against Mr.

Parker, not against Mr. Halliwell.”

Warth v Seldin (1975) 422 U.S. 490, 504

provides: “The fact that harm to peti-

tioners may have resulted indirectly

does not, by itself, preclude standing.”

#2: Judge Chouteau continued: “Mr.

Parker do you wish to add anything.”

James Parker responded: “Yes. I would

like to have Mr. Halliwell speak.”

Judge Choutcau responded: “He cannot

argue on your benalf. He is not an

attorney.” In Craig vu Boren (1976) 429

U.S. 190, 195, the beer manufacturer

had the right to argue, in behalf of his

interest in increasing beer sales, the

right of his potential customers to

gender equality in the drinking age.

#3: Judge Chouteau said to James

Parker: “If you want to present

something in addition to your papers,

you may do that.” James Parker

responded: “Okay. Since I did not

expect to be the one to talk, I would like

to read my argument into the record.”

Judge Chouteau replied: “No. You may

not read an argument. Sir, if you have

additional information to provide in

18

addition to your briefs, you may do so. |

don’t want you simply reading some-

thing Mr. Halliwell prepared.”

Defendants’ May 138, 2009 Notice of Appeal (at

L00:20 to 101:2, quoted in Appendix at 182-183)

shows a strong parallel between our standing issue

and key precedents evaded here by Judge Chouteau.

After Judge Chouteau continued to disregard

Defendant Halliwell’s right as an aggrieved party to

challenge Judge Rushing’s ruling, at the next Appeal

Hearing, Defendants’ raised the issue of Judge

Chouteau’s right to take part in the panel which

would consider a challenge to Judge Rushing’s right

to adjudicate a third fees motion (in a February 2,

2009 Petition to Sonoma County Superior Court

Presiding Judge Knoel Owen). However, Judge

Owen waited three weeks until (February 25, 2009)

after the third fees hearing had already taken place,

19

and ruled our petition “procedurally insufficient”

without explaining why.

Defendants’ March 20, 2009 California

Supreme Court Memorandum, updating their March

17, 2007 OEX Hearing Stay Motion, discusses a key

aspect of those proceedings:

Co-Defendant Michael Halliwell was also

present, and must reimburse Defendant

Parker for any fees he pays, according toa

long standing agreement that is as binding as

any contractual fees obligation that James

Parker may be thought to have under the

rental agreement (see Nelson v Adams (2000)

529 U.S. 460, 472 parallel [Appendix at 175-

176]). But in accordance with the Court’s

continuing policy, Defendant Halliwell was

silenced and not even allowed to sit at the

Defendants’ table. This exclusion was

appealed, and our December 22, 2008 Notice

of Appeal was acknowledged by the Appellate

Branch that same day. Since a court cannot

(consistent with CCP Sec 916) take action on

any aspect of a case covered by an appeal, it

cannot continue to conduct proceedings 1n a

manner violative of Defendants’ right to

conduct their own case (see Gray v Justice's

Court (1937) 18 Cal.App.2d 420, 423 citation

[Appendix at 167-168]). did. at 3)

20

3. Ignoring December 22, 2608 appeal

Defendants’ March 27, 2009 Update re

California Supreme Court transfer of S170538

(Appendix at 250-251) cites continuing violation of

Gray v Justice’s Court (1937) 18 Cal.App.2d 420, 423,

which affirms: “regardless of legal requirements for

the privilege of practicing law, ‘the right of one to

3393

appear and conduct his own case ts not affected.

Defendants’ Update notes that their December 22,

2008 standing appeal and Varian Medical Systems,

Inc. v Delfino (2005) 35 Cal 4th 180, 190 bars this

continued violation of their procedural rights. Varian

affirms: “if the possible outcomes on appeal and the

actual or possible results of the proceeding are

irreconcilable ... that proceeding must be stayed

under section 916, subdivision (a).” (1d. at 5-6)

Defendants’ Update continues (Appendix at

268-269) to cite the mandate of Warth v Seldin

yy

21

(1975) 422 U.S. 490, 504, that the indirectness of an

injury does not preclude standing. This Update cites

further governing precedents (Powers v Ohio (1991)

499 U.S. 400, 410-411, Aries Development Co. v

Coastline Coastal Zone Conservation Commission

(1975) 48 Cal. App. 3d 534, 542, County of Alameda v

Carleson (1971) 5 Cal 3d 730, 736) resolutely ignored

by the Sonoma County Superior Court Anpellate

Branch, in its defiance of Code of Civil Procedure

Section 902. Conservatorship of Stewart (1969) 276

Cal.App.2d 211, 215, sums up Defendants’ right to

appeal Judge Rushing’s denial of standing: “In other

words, a party ts ‘aggrieved’ by an order, within the

meaning of section 902, even if his grievance turns

out to be legally without merit.” (Id. at 14-15)

B. Unfair Labeling as Vexatious Litigants

4. Ex Post Facto application of CCP § 391

Defendants’ March 27, 2009 Update re

22

California Supreme Court transfer of S170538

(Appendix at 251-252) points out that Judge

Rushing’s Vexatious Litigant Initiative cites a

portion of CCP sec 391 which refers to “attempts to

relitigate the validity of final determinations or

the issues therein.” This cannot possibly apply to

an attorney fees award granted and appealed well

BEFORE the April 17, 2009 Vexatious Litigant

Order was handed down by Judge Beaupre. (Id. at 6)

Defendants’ April 3, 2009 Petition for Review

of Court of Appeal Mandamus Denial (Appendix at

297) notes that the thrust of Judge Rushing’s

“Vexatious Litigant” initiative is to attempt to shut

down Defendants’ discretionary appeals, on the

theory that rulings in her favor by the Appellate

Branch amount to final dispositions. However,

neither Judge Rushing nor any of the Judges ruling

23

in her favor have EVER given ANY reasons for their

rulings. (Id. at 10)

Defendants quote their analysis of the May 6,

2008 Fees, Hearing Transcript (at 16:14 to 17:20 in

Appendix at 415-416) which discusses how Judge

Rushing refused to consider the validity of Plaintiffs

only basis for being paid to read what he claimed

was “whimsy, dribble and nonsense.” This analysis

quoted Charles Jensen’s Fees Motion which argued:

“Defendants forced plaintiffs counsel to read all of

his papers. Unfortunately, counsel was not ina

position ia assume they were all a joke. An old Irish

saying states: ‘Even a blind pig can find a truffle

every now and then.” Judge Rushing flatly refused

to require any substantiation of Charles Jensen’s

dismissive claims, saying: “I’m not going to force him

to do that.”

24

Defendants’ April 9, 2009 California Supreme

Court Appendix states:

In his April 6, 2009 Amicus Curiae Brief in

support of this initiative (at 7:15-22), Charles

Jensen urges the Court to issue an order

requiring permission of the presiding judge of

the Superior Court to allow JAMES PARKER

and/or MICHAEL HALLIWELL to “file any

document... maintaining any pending action

or proceeding (including the present action

which is now finally determined)” even though

Jensen himself is seeking an additional

$19,000 in attorney fees (which has secured

the approval of only Judge Rushing).

Judge Rushing sidetracked Defendants’

motion to stay her hearing on this $19,000

fees motion onto her March 24, 2009 Law &

Motion Calendar, then cancelled this March

24, 2009 hearing and finalized her fees award

with a Tentative Ruling (issued in violation of

Local Rule 2.2D, and effectuated over Defen-

dants’ written request that the hearing be

held). (Id. at 1)

Judge Dean Beaupre included the underlined

language in his Vexatious Litigant Finding.

5. Automatic set-aside of all submissions

Romer v Evans (1996) 517 U.S. 620, 6338,

25

precludes making legal persona non grata of

litigants with the temerity to thoroughly document a

Superior Court’s undermining of the Rule of Law:

“Central both to the idea of the rule of law and

to our own constitution’s guarantee of equal

protection is the principle that government

and each of its parts remain open on impartial

terms to all who seek its assistance.” Romer v

Evans (1996) 517 U.S. 620, 635, further explains

why a stay of the Sonoma County Superior Court’s

obstruction of U.S. Supreme Court filing rules is

justified: “A state cannot so deem a class of

persons a stranger to its laws.”

When Defendants attempted to file their

timely May 13, 2009 Notice of Appeal from the Order

of April 17, 2009, we were referred by the window

deputy clerk to Supervisor of Clerks (Donald G.

Lewin), who asserted that unless it was accompanied

by a prefiling Order (certifying that the appeal was

meritorious) our Notice of Appeal could not be filed.

This application of the Order of April 17, 2009 made

this order effectively unappealable, without the

consent of the Court whose order the aggrieved party

sought to appeal. Such a concept is antithetical to

the Rule of Law, and is an attempt to exercise the

sort of unbridled discretion stricken down by the

U.S. Supreme Court in Yick Wo v Hopkins (1886)

118 U.S. 356, 373-374: “In fact, an ordinance which

clothes a single individual with such power hardly

falls within the domain of law, and we are

constrained to pronounce it inoperative and void.”

After protracted discussion, Supervisor of Clerks

Lewin accepted Defendants’ May 13, 2009 Notice of

Appeal and a check (#3187) for the $315 filing fee.

Our Notice of Appeal was stamped “RECEIVED

BUT NOT FILED, MAY 13 2009” (but we were

af

informed by Supervisor Lewin that he would forward

it immediately to Presiding Judge Knoel Owen, who

would make a ruling on our right to appeal).

However, Defendants have received no response

from Judge Owen on this (or any other subject

related to the April 17, 2009 Vexatious Litigant

Order), as of August 9, 2009.

Defendants’ June 8, 2009 Memorandum

(Appeal Briefing Issues re CCP § 916(a) Stay) quotes

Morton v Wagner (2007) 156 Cal. App.4th 963, 970-

971, which clearly shows that Vexatious Litigant

Findings are appealable:

Any determination that a litigant 1s vexatious

must comport with the intent and spirit of the

vexatious litigant statute. The purpose of

which is to address the problem created by the

persistent and obsessive lhtigant who con-

stantly has pending a number of groundless

actions and whose conduct causes serious

financial results to the unfortunate objects of

his or her attacks and places an unreasonable

burden on the courts.

28

Detendants’ June 8, 2009 Memo continues:

Wolfgram v Wells Fargo Bank (1997) 53

Cal.App.4th 43, 58 affirms: “Only those

citizens who decline to hire lawyers, lose five

suits in seven years, then undertake a sixth

suit which lacks merit, will be labeled

vexatious.” Defendants’ filing of motions for

reconsideration before appealing cryptic

Appellate Branch orders upholding fees

awards, is NOT a legitimate part of a

vexatious litigant finding. Thus Morton vu

Wagner (2007) 156 Cal.App.4th 963, 973

observes:

In enacting California Rules of Court,

Rule 8.108(d), which allows an exten-

sion of time to file a notice of appeal

where the appellant has filed a motion

to reconsider pursuant to section 1008,

the Legislature expressed favor for

motions to reconsider.

All three of defendant’s motions relied

on established and favored procedures

for petitioning the court to modify or

reconsider their order. Once appellant

moved to reconsider the original order,

and that request was denied, he did not

continue to petition the court for

redress in suspicious or unconventional

ways. He accepted the judgments and

orders and sought redress from the

reviewing court. Under these circum-

stances, the appellant cannot be found

a

to have abused the process by filing

unmeritorious and frivolous motions

simply to harass the respondent.

Therefore, these motions do not support

a vexatious litigant designation.

When a Vexatious Litigant Statute is applied

in a way which infringes fundamental

constitutional rights, prior findings of

constitutionality do NOT shield it from

challenge. Thus the Wolfgram vu Wells Fargo

Bank (1997) 53 Cal.App.4th 43, 50 Court of

Appeal observes: “We are unaware of any

doctrine which insulates a statute from one

constitutional attack, simply because it has

survived a different constitutional attack.”

Morton v Wagner (2007) 156 Cal.App. 4th 963,

974, overturns an improper application of

CCP § 391:

The order designating appellant a

vexatious litigant is reversed. The

prefiling order requirement is hereby

stricken. The clerk of this court is

directed to forward a copy of this

opinion to the Judicial Council with

instructions that they remove

appellant's name from the list of

vexatious litigants. (Id. at 8-9)

Defendants’ April 27, 2009 Motion to Vacate

Judge Beaupre’s Vexatious Litigant Finding says:

30

Defendants’ Response to Questions Presented

concludes by examining the claim, in the

Order of April 17, 2009 (at 6:15-17), that

Defendants “repeatedly filed unmeritorious

motions, pleadings or other papers, and

engaged in tactics which were frivolous or

solely intended to cause unnecessary delay.”

#23 shows that each of these elements of vexa-

tiousness set forth in CCP § 391 finds a

counterpart in the behavior of Judge Rushing

and/or Charles Jensen. The Order of April 17,

2009 (at 2:13) flatly misstates the record in

saying: “Defendants waived jury.” In fact, as

documented in #28A, Charles Jensen was

temporarily successful in getting Judge

Nadler to reject Defendants’ demand for a jury

trial, on the utterly frivolous basis that

Defendants put the address of the disputed

property in the wrong place on their jury

request form. As a result of Charles Jensen’s

repeated attacks on Defendants right to a jury

trial, Defendants were denied any input into

jury instructions. #23C Describes how James

Parker was stripped of his Sixth Amendment

rights and how the case was decided by Judge

Rushing’s exclusion of evidence of arbitrary

discrimination, and unjustified and unex-

plained admission of an anonymous compila-

tion of hearsay evidence. One of the most

outrageous of the evasive maneuvers by

Charles Jensen and Judge Rushing is

discussed in #23E, which describes how CRC

8.750(a) requiring liberal construction of

Notices of Appeal and CCP § 916(a) requiring

a stay of proceedings in trial court re matters

being appealed, were vitiated. (Id. at 6)

Defendants’ April 23, 2009 brief cites this

misrepresentation in Judge Beaupre’s April 17, 2009

Vexatious Litigant ruling:

“Mr. Parker and Mr. Halliwell have repeat-

edly relitigated or attempted to relitigate in

propria persona, the validity of determina-

tions against them where the findings against

them had been finally determined. CCP §

391(b)(2)(1 & I1).” (4-17-09 Filing at 6:11-13)

(1d. at v)

Defendants’ April 23, 2009 brief cites an

opinion by the author of Judge Beaupre’s only cited

precedent, which clearly does not support trying to

define ongoing fees litigation in a single lawsuit as

repeatedly filing “new litigation”. Thus Justice Gary

E. Strankman writes in /n re Bittaker (1997) 55

Cal. App.4% 1004, 1009:

The vexatious litigant statute speaks in terms

of “litigation.” It defines vexatious litigants by

the number of prior unsuccessful “litigations”

they have undertaken (five in the past seven

years), or by the fact of their persistent

relitigation of “litigation” finally determined

adversely to them. (§ 391, subd. (b).) Its pro-

vision for prefiling orders applies to the filing

of any “new litigation.” (§ 391.7.) (Id. at viii)

Defendants’ April 23, 2009 Vexatious Litigant

Proceedings Line Numbered Transcription notes:

“The real tragedy of this case is that the origi-

nal plaintiff, Mr. Paxinos, has had to continue

to pay his lawyer tens of thousands of dollars

to review the materials and appear in court on

this vexatious litigation.” (4-17-09 Filing at

5:21-23) (1d. at v)

Defendants’ April 27, 2009 Motion to Vacate

Judge Beaupre’s Vexatious Litigant Finding says:

In fact, Plaintiff's lawyer’s review of docu-

ments and appearances in court have nothing

at all to do with the so-called vexatious litiga-

tion by Defendants (their appeals to courts

above the local Appellate Branch). This is so

because Charles Jensen has not filed a

SINGLE WORD of response to any of the five

discretionary appeals listed by Judge Rushing

as satisfying the requirements of CCP § 391,

nor has he ever appeared in court with respect

to them. (ld. at 4)

33

Defendants’ April 27, 2009 Motion to Vacate

Judge Beaupre’s Vexatious Litigant Finding says:

The Order of April 17, 2009 does not reject or

even examine Defendants’ grounds for legally

challenging the landlord’s decision to evict

them, or count trial court proceedings in MCV

191306 toward CCP § 391’s five frivolous

litigations in the past seven years require-

ment. Thus the Order of April 17, 2009

concedes (at 6:4-5): “Mr. Parker and Mr.

Halliwell were defendants in the unlawful

detainer case and so it does not count as one of

the five cases.” It is the appeals which “Mr.

Parker and Mr. Halliwell have repeatedly

relitigated or attempted to relitigate” (Order

at 6:11) which form the basis for Judge

Beaupre’s Vexatious Litigant finding.

However, NONE of Defendants’ grievances

presented at their second (September 25,

2008) or third (November 20, 2008) Appellate

Branch Hearing was even perfunctorily

adjudicated even ONCE, because of various

procedural evasions by Appellate Branch Pre-

siding Judge Rene Auguste Chouteau (such as

flouting Defendant Michael Halliwell’s right

as a party aggrieved by Judge Rushing’s

denial of standing, to argue this issue on

appeal pursuant to CCP § 902). dd. at 2)

James Parker’s June 11, 2009 Affidavit (#5 in

Appendix at 414) points out two years of refusal by

34

the Sonoma County Superior Court to pay the

slightest attention to Defendants’ well documented

charges that Charles Jensen has violated rules for

attorneys in Business & Professions § 6068(d), and

this Court’s actually requiring Defendants to pay for

Jensen’s fraudulent tactics, in violation of Clark v

Millsap (1926) 197 Cal 765, 785.

Defendants’ March 12, 2009 California

Supreme Court Filing (Appendix at 414-415) states:

James Parker’s November 20, 2008 oral

remarks, which give the details of eight false

statements in Respondent’s October 27, 2008

Opposition Brief (Transcript at 13:27 to 17:3),

and the lie in Charles Jensen’s oral statement.

(the details of which are set forth in our

January 2.4 Mandamus Petition at 53:16 to

54:8) which Respondent’s Opposition does not

try to explain, except to say: “Counsel for

Respondent has never been caught lying.”

James Parker further quoted Respondent’s

Opposition: “While counsel for respondent has

read the appellants’ Index of Plaintiffs

Misrepresentations and Rules Violations,

there was nothing in it worthy of response.”

James Parker then asked: “Does Charles

Jensen wish at this time to explain any of his

eS

latest alleged misrepresentations, or cite

anything incorrect in our previous charges of

professional misconduct?” When Charles

Jensen said nothing, James Parker said to the

Court: “Your Honor, I just want it to be said

that there was no response.” Judge Chouteau

responded: “I am indicating there should not

be aresponse.” (Transcript at 17:7-23)

Defendants’ April 27, 2009 Motion to Vacate

Judge Beaupre’s Vexatious Litigant Finding says:

After noting the September 25, 2007 date of

the hearing and the names of those attend-

ing, here is the entirety of Judge Rushing’s

first fees order: “Judgment for Plaintiff

CHRYSANTHE FE. PAXINOS against

Defendant JAMES PARKER for attorney's

fees in the amount of $10,000.” This ruling

was upheld by the Appellate Branch, whose

Order of October 7, 2008 describes the same

locational and attendance information for its

hearing as Judge Rushing’s Order, but says

only this about the Order: “Appellants fail to

demonstrate any reversible error with respect

to the September 25, 2007 attorney fee order.”

Judge Rushing’s second fees order gives loca-

tional and attendance information for the May

6, 2008 Hearing, but makes only this bare-

bones statement about fees (with NOTHING

about the reasons for them): “The Plaintiff's

motion for attorneys fees for Plaintiff

CHRYSANTHE E. PAXINOS as to Defendant

JAMES PARKER only is granted in the

36

amount of $20,680 and $40.00 for filing fee.”

This fees award was ONLY for reading

Defendants’ briefs, with no link to any work

product, and ne link for the briefs Charles

Jensen read, to any issue on which Plaintiff

has been found to be the prevailing party.

The Appellate Branch December 5, 2008

ruling upholding Judge Rushing’s $20,720 fees

award, could just as well have been stapled to

a first page of case identifiers for any fees ap-

peal that came before them. It said: “The trial

court’s attorney fee Order is AFFIRMED. De

Novo review indicates that an award of

attorney's fees was proper and review of the

record under the abuse of discretion standards

indicates that the amount of attorney’s fees is

also proper.” (id. at 2-3)

C. Deliberately Overloading Defendants

6. Premature OEX & CCP § 391 pressure

Defendants’ March 30, 2009 Memorandum

(Status of Updated Mandamus Petition) says:

The First District’s Order of March 26, 2009,

does not purport to find that S170538 is “sub-

stantially identical to a prior petition.” Sucha

holding would be very difficult to defend in

light of this Petition’s focus on the Fourth and

Fifth Front procedural squeeze created by

Judge Rushing’s $19,000 attorney fees award

(not a factor in Defendants’ procedural con-

cerns until a sequence of events starting on

34

February 2, 2009) and Judge Rushing’s “vexa-

tious litigant” initiative (which was filed on

February 9, 2009, long after Defendants’

previous Mandamus Petitions were filed). (1d.

at 2)

Defendants’ April 3, 2009 Appendix re Denial

of Mandamus by the Court of Appeal (Appendix at

343) cites a key precedent contrary to the deliberate

‘“Samming’ of Defendants in Paxinos v Halliwell &

Parker manipulating various briefing schedules to

create a “two front” squeeze. Gamet v Blanchard

(2001) 91 Cal.App.4t 1276, 1289 held: “The judge’s

comments that he could ‘jam’ Game: and that he

wanted to ‘keep the heat on, when combined with

the unexplained judgment dismissing the action

shortly thereafter, seemed arbitrary and created the

appearance of substantial unfairness.” (Id. at 9)

Defendants’ April 27, 2009 Motion to Vacate

Judge Beaupre’s Vexatious Litigant Finding says:

38

The Order (4:2-5) criticizes Defendants for

seeking to separate out a fees appeal for

separate consideration, and asserts: “The only

conceivable object of this tactic is delay.”

However (as #10 demonstrates), it was a delay

in transcript preparation which was the basis

for Defendants’ separate hearings motion, and

it was a three-month-long refusal of the

Appellate Branch to update the Chronological

Index that caused unnecessary delay which

brought the hearings on the $10,000 and

$20,720 fees award so close together, that it

was impossible for Defendants to properly

handle their overlapping briefing and hearing

preparation tasks. (Id. at 5-6)

Defendants’ April 27, 2009 Response to Judge

Beaupre’s Question Presented #10 observes:

There is no reason that it should have taken

more than three months to prepare the 13-

page transcript of the September 25, 2007 fees

hearing. This delay by court employees is the

basis for Defendants’ seeking to separate

consideration of their July 24, 2007 (jury trial)

appeal, from the fees issue, as their January

24, 2008 Appeal Transcript Appendix notes

(2:16-19):

At the January 24, 2008 Appeal Hear-

ing problems relating to documenting

these events were discussed. Michael

Halliwell continued his dialogue with

Judge Chouteau: “There is a second

39

matter that | submitted to Judge Boyd

relating to the late availability of the

transcripts that we relate to the fees

aspect that was consolidated with this.

The transcripts came in so late that ’'m

asking for separate consideration of the

matters that related to the transcript of

September 25th, which became available

to us on January 15'}.” (Transcript at

3:7-13)

Judge Chouteau replied: “This is a

different issue which is on our June

calendar.” (Ibid at 3:15-16)

In their April 23, 2009 brief, Appellants quote

a supporting authority in Judge Beaupre’s own cited

precedent, which shows that forcing consolidation of

appeals in the above circumstances violated Appel-

lants’ rights. State Farm Insurance Co. v. Superior

Court (1956) 47 Cal 2d 428, 430, 432 held:

Petitioner concedes that “actions may be

consolidated, in the discretion of the court,

whenever it can be done without prejudice to a

substantial right.” (Code Civ. Proc., § 1048.)

However, as petitioner contends, the con-

solidation here does result in such prejudice to

petitioner. .... We therefore conclude that

petitioner is entitled to a writ of mandate

40

ordering respondent to sever its declaratory

relief action from the personal injury actions.

(Id. at vi)

Defendants’ June 11, 2009 Claim of Exemp-

tion & Supporting Affidavit re $833 Seizure states:

Defendants’ May 18, 2009 Certiorari Petition

Appendix quotes an important ruling from the

bench (at the January 20, 2009 OEX hearing)

by the most recent former Presiding Judge of

Sonoma County Superior Court, Robert S.

Boyd: “So now that I am beginning to get

a clearer picture of the whole story, not

just this Court’s role, which was enforce-

ment of the judgment, I believe that the

Court was premature in the finding of

contempt. At this time I am going to

vacate the finding of contempt, as that

matter of enforcement of the $20,000 is

on appeal.” (Transcript at 18:2-8) This levy

to enforce this $20,720 judgment flies in the

face of Judge Robert Boyd’s April 17, 2009

ruling that enforcement of this judgment is

still premature.

On April 17, 2009, Judge Dean Beaupre also

issued an Order, presuming to subject every

action taken by Defendants in any aspect of

this case to prior approval by the current

Presiding Judge of the Sonoma County

Superior Court, Knoel Owen. Defendants

tried to clarify this Order with a motion for

reconsideration, but Judge Beaupre has not

4]

responded. On May 13, 2009 Defendants

appealed Judge Beaupre’s Order, so it has no

current force (until and unless it is upheld on

appeal). In the past six weeks, this

complicated procedural situation has been the

subject of several submissions to Presiding

Judge Owen, all of which are still

unanswered. (Id. at 1)

7. Continued disregard of automatic stay

The central issue in all of the attorney fees

awards piled one atop another is the Due Process

protection of the Fourteenth Amendment. California

law bars enforcement of judgments consisting

entirely of attorney fees awards and other costs until

appeals from such awards have been exhausted. For

at least eight decades no state court has questioned

the final word on Due Process issues of the United

States Supreme Court, because Brinkerhoff-Faris

Trust & Savings Co. v. Hill (1930) 281 U.S. 673, 681,

notes that “it may be observed that the plaintiff's

claim is one arising under the federal Constitution

42

and, consequently, one on which the opinion of the

state court is not final.” However, Judge Rushing’s

repeated fees enforcement activity is based on the

concept that such awards become final once the

Appellate Branch of her Superior Court has

reviewed them.

Defendants’ February 9, 2009 Federal Issue

Review cites a key case that rejects this usurpation:

Whether the state court has denied to rights

asserted under local law the protection which

the Constitution guarantces is a question

upon which the petitioners are entitled to

invoke the judgment of this Court. Even

though the constitutional protection invoked

be denied on non-federal grounds, it is the

province of this Court to inquire whether the

decision of the state court rests upon a fair or

substantial basis. If unsubstantial, consti-

tutional obligations may not be thus evaded.

(Broad River Power Co. v South Carolina

(1930) 281 U.S. 537, 540) (Id. at 9:16-25)

Judge Rushing has repeatedly flouted the

holding of Ziello v Superior Court (1999) 75 Cal.App.

4th 651, 654-655 that a judgment consisting entirely

of attorney fees “is solely for costs within the

meaning of Code of Civil Procedure sec 917.1(d).

Accordingly, no bond is required to stay enforcement

of that order pending appeal.” This holding is based

on Nielsen v Stumbos (1990) 226 Cal.App.3d 301,

303, which affirms that “the fees are costs and the

filing of a Notice of Appeal stays execution without

the posting of an undertaking.” (See Appendix at

404-405.)

Defendants’ June 11, 2009 Claim of Exemp-

tion & Supporting Affidavit re $833 Seizure includes

James Parker's Affidavit of June 11, 2009, which

affirms:

1. James Parker resides at 27] EF. Cotati Ave,

Cotati CA 94931 [along with] Michael Halli-

well, who is legally bound to share equally in

any adverse judgment for legal costs.

2. The reality of Defendants’ cost sharing

agreement has never been disputed by

plaintiff or any judge. Michael Halliwell has

the same right that I do to defend against

financial injury without Due Process of Law.

3. At no point in this litigation has the normal

court process of noticed motion and a briefing

cycle been available to Defendants. Charles

Jensen’s legal rationale for piling fee award

upon fee award is that Defendants have

somehow been in control of proceedings. This

assertion is diametrically opposite to the true

situation in this case.

4.1 have no doubt that this $833 asset seizure

is “small potatoes” for someone who earns

$230 per hour, as Charles Jensen does. I

believe the main reason for this harassment is

to try to disrupt Defendants’ preparation and

prosecution of their appeals invoking their

Fourteenth Amendment rights to Due Process

of Law and Equal Protection under State Law.

5. At no time in these two years of proceedings

has any judge of the Sonoma County Superior

Court paid the slightest attention to Defen-

dants’ well documented charges of violations

of the code of conduct for attorneys set forth in

Business and Professions Code Section

6068(d). Since Clark v Millsap (1926) 197 Cal

765, 785, bars payment for an attorney’s

fraudulent activity, unresolved charges of

misconduct against Charles Jensen are a

sufficient basis for denying him any payment

whatsoever.

45

6. Draconian confiscations of the sort cited

above, amount to a total negation of the pro-

tections for debtors, which have existed in this

country ever since the American Revolution.

Armstrong v Manzo (1965) 380 U.S. 545, 552

and Mathews v Eldridge (1976) 424 U.S. 319,

333, require a meaningful hearing at a

meaningful time, before anyone in this

country can be deprived of any property. The

fees awards piled upon prior fees awards in

this case are designed as a punishment for

Defendants’ efforts to exercise their federal

constitutional rights. There is simply no

justification for any court’s lending its support

to this sort of intimidation. (Id. at 2)

Defendants’ analysis of Judge Rushing’s July

7, 2009 denial of James Parker’s Claim of Exemption

(Appendix at 410) notes that Parker’s Affidavit of

June 5, 2009 pointed out that his previously dis-

closed monthly wages (which were $345.99 in April

2009, when Charles Jensen's Writ of Execution was

issued) and Unemployment Benefits (about $500 in

that month) fully accounted for the money he was

accumulating to pay for his share of rent and

46

expenses, when Charies Jensen cleaned out his

Redwood Credit Union funds.

Judge Rushing repeatedly allowed Plaintiffs

counsel to avoid stating his reasons for opposing a

Claim of Exemption, as required by CCP section

703.560(b) other than “Claimant's citations are not

applicable.” After failing to secure Judge Rushing’s

approval of his excuse for not citing facts which

justified his Opposition, because Defendant’s Claim

constituted “new vexatious litigation” barred by CCP

sec 391, Charles Jensen’s July 7, 2009 defense of his

Opposition (see Appendix at 405-406) consisted only

of his saying:

But nowhere in the purported papers are

there statutory claims that would be

sustained for a Claim of Exemption, which is

why my papers simply say that there is no

stay. There is not. And that the citations are

not applicable. They are not. And I’1l leave it

at that, Your Honor. (Transcript at 15:6-11)

Defendant James Parker’s analysis of Judge

Rushing’s July 7, 2009 denial of his Claim of

Exemption (Appendix at 407-408) cites the holding of

Betz v Pankow (1993) 16 Cal.App.4 931, 938:

As a general rule, “the perfecting of an appeal

stays [the] proceedings in the trial court upon

the judgment or order appealed from or upon

the matters embraced therein or affected

thereby, including enforcement of the judg-

ment or order ....” (§ 916, subd. (a).) The

purpose of the rule depriving the trial court of

jurisdiction in a case during a pending appeal

is to protect the appellate court's jurisdiction

by preserving the status quo until the appeal

is decided.

At the July 7, 2009 Hearing James Parker

cited Judge Boyd's ruling on the applicability of CCP

Sec 916(a):

Judge Boyd in OEX hearings stayed those

hearings as premature because he agrees

federal appeals are relevant. (Transcript at

11:27 to 12:1)

Judge Rushing responded on by saying:

I believe he’s wrong. I just have to say it.

This is before me now. Each judge has to

decide for themselves, and so! — Im ruling

against you on that point. (Ibid at 12:2-4)

Even though a successful appeal to the U.S.

Supreme Court could overturn any of her fees

awards on Due Process grounds, Judge Rushing

argued at the previous hearing that this doesn't

make any difference, with respect to the Sonoma

County Superior Court’s authority to immediately

enforce an attorney fees judgment. Judge Rushing

told James Parker: “You could file things to the U.S

Supreme Court if you want to. That has nothing to

do with the enforceability of judgments here, because

you only have one right of appeal; that’s to the

Appellate Division.” (February 10, 2009 Transcript

at 8:8-12)

In refusing to address governing precedents

on the scope of CCP § 916(a) stay provisions, Judge

ushing implies that James Parker is not talking

Rushing implies that J Park t talking

about a substantive issue, and proclaims: “I don't

a

have to give reasons.” (July 7, 2009 Transcript at

13:11-12) James Parker argued: “Until our appeal is

fully heard and fully resolved, the Court has no

jurisdiction to act in this matter.” (Ibid at 13:22-23)

(See Appendix at 409.)

At the July 7, 2009 Hearing, James Parker

made an unsuccessful request for a postponement tc

allow Defendants to cope with the problem caused by

Charles Jensen’s continuing evasiveness. He said:

Well, Your Honor, you’re — essentially Charles

Jensen is saying because he claims citations

are not applicable, we as pro pers have to

research the law from A to Z to discover why

they are not applicable. We say that he’s

required specifically ten days before a hearing

goes forward, and the reasons for bringing

this hearing, why Claimant’s citations are not

applicable. We did the same thing on the first

$10,000 judgment. He said the — well, he said

that -it didn’t apply, but he didn’t say why.

[So], we need to ask for a stay. (Ibid at 15:23

to 16:5) (See Appendix at 413.)

Defendant James Parker then connected

Charles Jensen’s evasive approach to the July 7,

2009 hearing with Jensen’s misconduct in earlier

proceedings, which had been tolerated by Judge

Rushing:

And we have stated the reasonings in our ~ all

our documents why we feel this court is very

sympathetic to Mr. Jensen. And I do not want

to embarrass the Court by going through that

material, but the Court knows what that

material is. And it would seem to me the

Court would bend over backwards not to give

that impression, but the Court continues

never [requiring] Mr. Jensen to say anything

in substantive response. Ali he does is spout

vagaries, puffery, exaggerations, and he’s

never really been called oa it. (Transcript at

18:6-14)

James Parker’s Claim of Exemption (at 13)

cited Mann v Thalacher (2001) 246 F.3d 1092, 1096-

1097, which noted the “federal constitutional right to

be tried before an impartial trier of fact.” Judge

Rushing became increasingly irritated as James

Parker began to address this subject and referred to

past misdeeds of Charles Jensen, which have been

extensively documented in the Case Record. James

Parker continued: “We believe Mr. Jensen's guilty of

fraud and perjury —” (Ibid at 18:14-15) Judge

Rushing interrupted at this point with an

exasperated “Okay.” (Ibid at 16) James Parker

resumed: “— and we've made that claim.” (Ibid at

18:17) Judge Rushing again interrupted with an

even more emphatic “Okay.” (Ibid at 18:18) James

Parker protested Judge Rushing’s interruptions:

“Your Honor, and you're trying to shut us down.”

(Ibid at 18:19-20) In his Claim of Exemption (at 12),

James Parker had cited the basis for this protest, the

“elementary requirements of impartiality taken for

granted in every judicial proceedings” (affirmed in

Commonwealth Coatings Corp. v Casualty Co. (1968)

393 U.S. 145, 148). But Judge Rushing would hear

no more, saying: “That is now enough. I have been

e

more than patient. The motion for Claim of

Exemption is denied. The hearing is over.” (Ibid at

18:21-23) (See Appendix at 419-420.)

REASON FOR GRANTING CERTIORARI

The Appendix of Defendants’ May 13, 2009

Notice of Appeal from the Vexatious Litigant

Finding of April 17, 2009, criticizes the refusal of

either Judge Rushing’s fees awards, or the Appellate

Branch rulings upholding them, to say anything at

all about the relevant governing precedents or

factual issues, by citing the U.S. Supreme Court’s

Boddie v Connecticut (1971) 401 U.S. 371, 375

opinion:

It is to courts, or other quasi-judicial official

bodies, that we ultimately look for the

implementation of a regularized, orderly

process of dispute settlement. Within this

framework, those who wrote our original

Constitution, in the Fifth Amendment, and

later those who drafted the Fourteenth

Amendment, recognized the centrality of the

concept of due process in the operation of this

a)

system. Without this guarantee that one may

not be deprived of his rights, neither liberty

nor property, without due process of law, the

State's monopoly over techniques for binding

conflict resolution could hardly be said to be

acceptable under our scheme of things. Only

by providing that the social enforcement

mechanism must function strictly within

these bounds can we hope to maintain an

ordered society that is also just. It is upon

this premise that this Court has through

years of adjudication put flesh upon the due

process principle.

As a as the Case File of Paxinos v Halliwell

& Parker is concerned, this Notice of Appeal does not

exist, because the most recent and the current

Presiding Judges of Sonoma County Superior Court

have both refused to allow the filing of anything,

which challenges applications of Judge Beaupre’s

Order of April 17, 2009. If there is any flesh on the

due process principle in this situation, now is the

time take cognizance of another fundamental

principle: “All that is necessary for the triumph of

evil is that good men and women do nothing.”