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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

\) 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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0823%3A1. Public record. Not legal advice.