Appendix — Halliwell v. Superior Court of California, Sonoma County (No. 09-199)

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09-199 AUG 19 2009

No. 09-____

OFFICE OF THE CLERK —

Wiltam KK. Suter, Cleric

IN THE

Supreme Court of the United States

$e ee

MICHAEL HALLIWELL & JAMES PARKER,

Petitioners,

Vv.

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SONOMA,

Respondent,

CHRYSANTHE PAXINOS,

Real Party in Interest

On Petition for a Writ of Certioran

To the California Supreme Court

APPENDIX FOR A WRIT OF CERTIORARI

Michael J. Halliwell & James F. Parker

Defendants tn Propria Persona

271 E. Cotati Ave, Cotati CA 94931

707-795-5526, halliwel@csulb.edu

August 10, 2009

TABLE OF CONTENTS

PUP re. se se be eee 2

A. State Supreme Court 2/17/09 S170538 Mandamus

1. Defendants’ Summary of evasive maneuvering. . 6

2. Defendants’ Appendix listing procedural issues. 79

B. 3/09 Superior Court and Court of Appeal Activity

3. $19,000 fees award 3/11/09 Appeal Notice . 238

4. State Supreme Court 3/24/09 Transfer... . 239

5. First District 3/26/09 Mandamus Denial. . 240

C. Reaction to swift unexplained action in A124493

6. Defendants’ 3/27/09 Hagans Remand Update . 241

7. Defendants’ 3/27/09 Memo to Court of Appeal. 271

D. State Supreme Court $171792 Mandamus Appeal

8. Defendants’ 4/3/07 Petition re recent abuses. . 281

9. Defendants’ 4/3/07 documentation Appendix . . 328

10. State Supreme Court 4/6/09 acceptance . 393

11. State Supreme Court Order of 5/13/09. . . 394

kK}. Continued premature enforcement after 5/13/09

12. Judge Rushing’s 7/7/09 Hearing Transcript. . 395

FOREWORD

From the Defendants’ perspective this two-year

long litigation has consisted of wave after wave of

assaults, by Plaintiffs attorney and the Sonoma

County Court system, which hardly ever followed

normal procedures and were never justified by

caselaw. The wellispring (by Plaintiffs explicit

admission, Transcript at 377:20 to 378:18) of this

eviction lawsuit was an anonymous compilation of

hearsay complaints evaluated by a Homeowner's

Association hearing which Defendant was not

allowed to attend. Judge Rushing said that she

would explain why she allowed this document into

evidence (Transcript at 442:8-19) but after

Defendant Michael Halliwell accepted her offer

(Transcript at 442:23-28), she changed her mind and

declined to do so (Transcript at 447:24-25).

The denial of Defendants’ rights was compounded

by Judge Rushing’s first disregarding Defendants’

proposed jury instructions, then refusing to allow

Defendants any input on this subject (Transcript at

169:18-23, 175:18-21). Judge Rushing further

violated the Rule of Law, by completely ignoring

California’s strong Unruh Act (Civil Code Sec 51)

prohibition against arbitrary discrimination in

rental housing in her jury instructions, and her

refusing to allow any evidence on this subject

(Transcript at 224:6-16).

For challenging Plaintiffs fabricated personal

service claim and short-circuiting of the normal trial

date setting process (Transcript at 443:3-7), which

cost Defendants ten days of preparation time and

any opportunity to compel discovery, Charles Jensen

insisted upon an unreviewable $4,000 payment (even

if Defendants were willing to voluntarily vacate the

premises in dispute). Judge Rushing slammed the

door on this aspect of the case, with a contempt of

court threat (Transcript at 154:28 to 155:7).

For our challenges to her various rulings at trial,

Judge Rushing added another $6,000 in attorney's

fees. Judge Rushing’s $10,000 fees award was first

based on the false premise that “James Parker did

not opposé the motion,” and Judge Rushing then

refused to state any reason at all for her fees award

(at her September 25, 2008 hearing). A whole year

of bitter procedural controversy ensued due to Judge

Rushing operating off the record and without even a

semblance of jurisidiction, to turn over $10,000 of

Defendants’ funds to Charles Jensen.

Exactly one year after Judge Rushing made her

unexplained fees award, Sonoma County Superior

Court’s Appellate Branch upheld it (also without any

explanation) on September 25, 2008. The various

evasions which were the basis for enforcing the

$10,000 fees award (contrary to governing precedent,

even if the award itself were valid), including acting

without the September 25, 2007 hearing transcript

and refusing to respect Defendant Halliwell’s right

to appeal (pursuant to CCP Sec 902), became the

basis for a detailed documentation of the history of

the case by Defendants. Without citing ANY written

or oral work product, Charles Jensen sought $20,720

for only reading Defendants’ documentation, and

Judge Rushing awarded him every penny he asked

for. While Defendants were still appealing Judge

Rushing’s $20,720 fees award, she granted Charles

Jensen another $19,000 in attorney’s fees.

On February 17, 2009, Defendants sought a Writ

of Mandamus from the California Supreme Court to

try to untangle the procedural Gordian knot, which

had prevented adjudication on the merits (Charles

Jensen said NOTHING at all in his defense at any

hearing) of any aspect of the case. Before any action

was taken on this petition (S170538), Defendants

appealed Judge Rushing’s $19,000 fees award. The

State Supreme Court then transferred S170538 to

the Court of Appeal, which promptly ruled against

Defendants (without addressing the applicability of

the Hagan case, in light of which it was suppose to

examine Defendants’ petition.

Defendants updated their proposed relief in hight

of the “three front” situation created by the $19,000

attorney fees award and premature enforcement of

the $20.720 attorney fees award. This eliminated

the “substantially identical” basis for the Hagan

remand, and the California Supreme Court assigned

a new case nurnber (S171792) to our April 3, 2007

renewai of our Petition for Mandamus.

The State Supreme Court did not act until our

updated procedural remedies had become obsolete,

then denied review on May 138, 2009. A multi-front

Squeeze still obstructs Defendants’ appeals; its most

recent culmination is documented in our extensive

analysis of Judge Rushing’s July 7, 2009 Claim of

> >mption Hearing Transcript.

James Parker & Michael Halliwell First District

Defendants In Propria Persona Court of Appeal

271 E. Cotati Ave, Cotati CA 94931 Division Two

707-795-5526 halliwel@csulb.edu Case # A123266

CALIFORNIA SUPREME COURT 8170538

Sonoma County

Michael Halliwell, et al, Case # MCV 191306

Petitioner vs. FILED FEB 17 2009

Clerk Supreme Court

Superior Court of Defendants/Appellants’

California, County of Reply to Second Front

Sonoma, Respondent; Tactics by Real Party:

Petition re Corrective

Chrysanthe Paxinos, Mandamus Pursuant to

Real Party in Interest CCP Sec 1086

The impetus for this filing is what amounts to

a Fourth and Fifth Front in the ongoing campaign by

Judge Elaine Rushing and Charles Jensen to disrupt

Defendants’ ability to effectively appeal] prior fees

awards. The Fourth Front is the accompanying

$19,000 fees award (granted on February 10, 2009),

whose briefing schedule overlapped Supreme Court

briefing and OEX proceedings. Defendants tried to

delay the hearing on the $19,000 fees motion with

their Supersedeas Petition of January 3, 2009 and

Stay Motion of January 9, 2009 (which were ignored

by Sonoma County Superior Court Presiding Judge

Knoel Owen and Appellate Branch Presiding Judge

Rene Auguste Chouteau). The Fifth Front is the

accompanying February 9, 2009 Order by Judge

Rushing, that Defendants show cause that they

should not be classified as “vexatious litigants” (and

subjected to the penalties associated with this

status). Because of the monopoly of the California

Supreme Court on the discipline of attorneys and

judges, it would not be appropriate to direct this

Mandamus Petition to any other court. This

petition documents the substantial Federal

component of nearly all of Defendants’ grievances,

and seeks protection from deliberate interference

with Defendants Federal right to appeal Federal

claims left unprotected by State courts.

Dated this 17‘ day of February, 2009

~ Michael Halliwell py

Defendant pro se ete ~ er :

271 E. Cotati Ave efenaant pro se

at 271 E. Cotati Ave

Cotati CA 94931 Cotati CA 94931

TABLE OF CONTENTS

Overview of Motivations and Effects of Evasive

Tactical Mameuverinig. ......ccccccsccccuusecs 19

A. Bias and discrimination against Defendants in

pretrial proceedings .................00eeeeeee 19

B. Bias and discrimination against Defendants in

jury trial proceedings. ..........ccccccccccces 26

C. Maneuvers to evade addressing the underlying

moerite re attormey & THOR... cc ce ee cet eees 39

D. Maneuvers to evade the underlying merits of

$20,720 “Reading Fee” award................. 47

E. Protecting Defendants’ appellate Rights from the

Sateat Overnoed CAGEICR..... 056 ke eee nus se ee een 60

Summary of Defendants’ Main Claims Set Forth in

Accompanying Appendix.................2008. 70

TABLE OF AUTHORITIES CITED

CASES

Abstract Investment Co. v Hutchison (1962) 204 Cal.

veces ese ec cs eseesveseve’s 73

Adams v Murakami (1991) 54 Cal 3d 105, 120.... 71

Aires Dev. Co v Coastline Coastal Zone Conservation

Comm. (1975) 48 Cal.App.3d 534,542........... 59

Alyeska Pipeline Service Co. v Wilderness Society

(1975) 421 U.S. 240, 247

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

ere 26, 66, 76

Babb v Superior Court of Sonoma County (1971) 3

eS 78

Baker v Carr (1962) 369 U.S. 186, 204, 208...... 75

Baugess v Paine (1978) 22 Cal 3d 626, 638... 31, 73

Beverly Hospital v Superior Court (1993) 19 Cal.

App.4t® 1289, 1293... 0... 0.0. eee 7)

Boddie v Connecticut (1971) 401 U.S. 371, 374, 375,

S37?7,9e10-379..... Ce eee ennerctsetcrcccrcivnn 1

Bolling v Sharpe (1954) 347 U.S. 497, 499.......76

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

281 U.S. 673, 682........ Se eeaeeoeed . 70

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

Sia SE I A sea e cede eaceenee ee teue eee 72

Byrne & Manov v Nezhat (2001) 261 F.3d 1075... 77

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

Cs Ge a Os ce ee ce es ohh ese eke eee 888 73

Clark v Millsap (1926) 197 Cal 765, 785......... 76

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

BEey BEE se eves ee ed hehe Eee ee Cee

Cooter & Gell vy Hartmarx (1990) 496 U.S. 384, 405,

408...... TP. eT ee re rey er rere rer 73

TR 6 aa bee eae heehee eee ee ee ee 59, 74

Ehret v Ichioka(1967) 247 CalApp2d 637, 640-641 43

Elkins v Superior Court of Contra Costa County

(2007) 41 Cal 4th 1337, 1864............ 26, 68, 73

Estate of Buchman(1954) 123 CalApp.2d 546, 560 75

Fairmont Insurance Co. v Superior Court (2000) 22

oe oP | rer ne 71

Faretta v California (1967) 422 U.S. 806, 812-813

Front Royal & Warren Co. Industrial Park Corp v

Town of Front Royal (1998) 135 F.3d 275. ....... 77

Fuentes v Shevin (1972) 407 U.S. 67, 80........ 75

Gamet v Blanchard (2001) 91 Cal.App.4*» 1276,

TELE e CLE ERECT EE ECC UTE USEROUR ee 76

Grant v List & Lathrop (1992) 2 Cal.App.4™ 993,

Le er ae rer rere a ey 42,74

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

er oe era oe et ore ree 50, 64, 74

Green v Superior Court (1974) 10 Cal 3d 616, 636

Greyhound Corp. v Superior Court (1961) 56 Cal 2d

BOO, SIG... 22s ccee

Gromeeko v Superior Court (1952) 114 Cal.App.2d

PS ooo ak ee ies are arate eo areta aera ares 78

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

Pe Pe eee Ee or ee ee PE ee oa ee ee 74

Hart v Massanari (2001, 9° Cir.) 226 F.3d 1155,

Haworth v Superior Court (2008) 164 Cal.App.4th

930, 936, 942, 944. .

Hazel-Atlas Glass Co. v Hartford-Empuire Co. (1944)

eee Rie OS eck edu wed teak menceee eit ae

Hernandez v Superior Court (2004) 115 Cal.App.4™

ate Wat re we at rae bite 2 ote big CoCr Gra G 29, 76

Hsu v Abbara (1995) 9 Cal 4t» 868, 873-875... 48, 72

In re Gordon (1996) 13 Cal 4th 472, 473 .......... 76

In re Murchison (1955) 349 U.S. 133, 1386........ 77

Jennings v Superior Court (1967) 66 Cal 2d 867, 875-

ST oa yaa o ae ee a ie ae ee ee eee 74

Joint Anti-Facist Refugee Committee v McGrath

Cee es ee ares Bis ET 6 bs 0 0 85s tee ecw ox 73

Kloepfer v Commission on Judicial Performance

(1968) 49 Cal Sa S26, S65... ww cece cc ccc esses 76

Koebke v Bernardo Heights Country Club (2005) 36

ee ee ns arora. ww eek + 6 bolts ee 72

Kowis v Howard (1992) 3 Cal 4'" 888, 897, 898... 77

Kulko v California Superior Court (1978) 436 U.S.

a: SR ee ara aa ee ee ee aera mn ear a 70

Louie Queriolo Trucking v Superior Court (1967) 252

CRd SE UL EINE 5 cect ce hactaseeedenavee. 78

Marbury v Madison (1803) 5 U.S. 137, 163...... 75

Marina v Wolfson (1982) 30 Cal 3d 721, 730. . 33, 72

Mathews v Eldridge (1976) 424 U.S. 319, 333

sna 26, 66, 75

McKenzie v Kaiser-Aetna (1976) 55 Cal.App.3d 84,

ee ee nO Conn eee ee ee 49

Moore v Ogilvie (1969) 394 U.S. 814, 816........ 75

Mulkey v Reitman(1966)64 Cal2d 528, 538

Ly Oe Ps ae Oe en ce ee 20, 33, 72

NAACP v Button (1963) 371 U.S. 415, 428....... 70

Nebbia v New York (1934) 291 U.S. 502, 525..... 77

Nelson v Adams (2000) 529 U.S. 460, 464, 472... 74

Nielsen v Stumbos (1990) 226 Cal.App.3d 301, 303

2 rage ag aaa Re gt Ee pe am eee ye gOAMRL gt oe 71

On v Cow Hollow Properties (1990) 222 Cal.App.3d

Pe Be ae Oe ere eee ee 49

Parsons v Superior Court of Marin County (2607)

149 Cal. Apo. 4° Same. 1. G. . oss ee oe hes x 71

Pease v City of San Diego (1949) 93 Cal 2d 706, 711-

Pk ee Oe ee a0, 43

Pennoyer v Neff (1878) 95 U.S. 714, 732-733... .. 73

People v Malveaux (1996) 50 Cal.App.4t 1425, 1434

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

ee Oe gta ace: eee 58, 74

Reitman v Mulkey (1967) 387 U.S. 369, 271, 377,

ig ag RRA eee AD Cins iran Be Oe AA Aa OR er em ey fee y+

Romer v Evans (1996) 517 U.S. 620, 633 ..... 21, 72

Santisas v Goodin (1998) 17 Cal 4th 599, 602, 608-

ee ee eee es eee 12

Schweiger v Superior Court (1970) 3 Cal 3d 507, 514

een Pe ae re Ee ee ere: S|

Shelley v Kraemer (1948) 334 U.S. 1, 14, 20

Se Rar a tae a ant Mat ge PRT Pe EE 20, 21, 72

Singleton v Wulff (1976) 428 U.S. 106, 112-114. . 57

Sunday Lake Iron Co. v Wakefield Township (1918)

ar 2 ee ee ee ee ee ee een 39

The 1880 Corporation v Superior Court (1962) 57 Cal

ee ee ee ee eee ee eee 23, 71

Townsend v Superior Court (1998) 61 Cal.App.4th

Paes, Be 6 ow so ee oe ee ee 71

20th Century Insurance Co. v Choong (2000) 79 Cal.

Pa Ba ek es a Ee ee ee 75

United Investors Life Ins. Co v Waddell & Reed Inc

(2005) 125 CalApp.4t 1303-1304...............59

United States v Buffalano (1984) 727 F.2d 50, 54 . 77

United States v Fowlie (1994) 24 F.3d 1059, 1069. 73

United States v Mississippi (1965) 380 U.S. 128, 132

Re eee SS ae bed 0 ease on ee

United States v Neisender (1984) 590 F.2d 1269,

RATS BI is a ce eee eee 75

United States v Russell (1921) 255 U.S. 138, 143 . 77

United States v Silverman (1984) 745 F.2d 1386,

Universal Oil Products Co. v Root Refining Co.

(1946) 328 US. S76, SOO . .... . o s See eee 70

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

Ma 78 TS ee oe ace ce ehh 64, 74

Walters v Marler (1978) 83 Cal.App.3d 1, 27-28 .. 49

Warth v Seldin (1975) 422 U.S. 490, 504..... 58, 75

Webster v sowde:s (1988) 846 F2d 1032, 1040

Windsor v McVeigh (1876) 93 U.S. 274, 277...... 73

World-Wide Volkswagen Corp. v Woodson (1980) 444

CT oe ee as ee es ee ee eee eae ee 72

Yick Wo v Hopkins (Sheriff) (1886) 118 U.S. 356,

SI eg te tee ee 75

Ziellc v Superior Court (1999) 75 CalApp4" 651, 655

cc ee ee ee 44, 45, 74

UNITED STATES CONSTITUTION

Sixtm Amenmament............... 19, 28, 30, 31, 72

Puree aO@MCIONMt .............2.0c008 cee re |

Fourteenth Amendment................ 19, 20, 30

UNITED STATES CODES

18 U.S.C. Sec 1503 (Obstruction of justice). ...... 75

CALIFORNIA STATUTES

AB 1400 (January 1, 2006) (Bans arbitrary housing

dg wk ee we eee 33

California Civil Code Sec 51 (Unruh Fair Housing

Er 36

California Civil Code Sec 1717 (Reciprocal lability in

contractual attorneys fees)............. 48, 49, 50

Calfornia Civil Code § 1942.5(a) (Landlord’s burden

of proof re retaliatory eviction)................ 36

California Code of Civil Procedure § 391 (“Vexatious

htigant” sanctions)... .. Se Oc’, 5 5 0:5 « x Ry OO

California Code of Civil Procedure § 703.580(a)&(c)

(Amendments to Claim of Exemption).......... 44

California Code of Civil Procedure § 902 (Aggrieved

party's right to appeal). ..............cc0e0. 59, 74

California Code of Civil Procedure § 916(a) (Appeal

stay of lower court action)................. 65, 74

California Code of Civil Procedure Sec 917.1(d) (No

appeal bond for tees-only order)................ 43

California Code of Civil Procedure § 1086 (Corrective

mandamus to preserve rights) ................ 78

California Code of Civil Procedure § 1170.7 (Five day

notice for Unlawful Detainer summary judgment) 32

California Code of Civil Procedure Sec 2016.040

(Discovery meet & confer rules)............. a2. 71

California Evidence Code Sec 352 (Evidence more

time consuming than probative)............ 29, 73

California Evidence Code § 1200 (Hearsay evidence

puree. oii cs ee Se ee eee eee 28

Proposition 14 (Initiative Constitutional Amendment

to authorize discrimination)................-.. 20

CALIFORNIA RULES OF COURT

Rule 8.750(a) (Liberal interpretat‘on of Notices of

FCG TE oe ae eee ae 42

Rule 8.751(a) (Deadlines for Notices of Appeal). .. 45

CALIF. COMM. on JUDICIAL PERFORMANCE

CALIFORNIA ATVORNEY ETHICS GUIDELINES

California. Attorney Guideline re Civility and Profes-

sionalism (www.calbar.ca.gov) #9 .............. yoo

WEBSITE INFORMATION

California Judicial Council’s Online Self Help Center

(www.courtinfo.ca.gov/selfhelp)................ 24

SONOMA COUNTY SUPERIOR COURT RULES

Local Rule 2.2D (No tentative rulings in Unlawful

POR MAREP GCEIOUE) ©. 6 ok i ee ee eee se es 40

Local Rule 4.10H(1) (Jury instruction submission

SR eter ee rae tre aed Gee ee 34

Local Rule 5.7D (Meet and confer obligation, when

an Ex Parte application is opposed)......... 22, 71

Local Rule 18.8 (Face sheet Notice of Hearing)... 41

STANDARDIZED FORMS

Form UD-106 (Interrogatories 71.7 & 77.1)... 25, 26

Form UD-150 (Trial date setting request) ....... 34

Overview of Motivations and Effects

of Evasive Tactical Maneuvering

A. Bias and discrimination against

Defendants in pretrial proceedings

The most important federal issue in Defen-

dants’ case in Paxinos vu Halliwell & Parker was the

Covenants, Conditions & Restrictions (CC & Rs) of

the Meadow Pines Homeowner's Association which

made tenants second-class citizens in their dispute

resolution process. Homeowner's were allowed to

initiate “Star Chamber” proceedings which tenants

were not allowed to attend (unless the landlord was

willing to attend with the tenant). This denied ten-

ants their Sixth Amendment Right to confront their

accusers and be given notice of the nature of charges

against them. These assaults on the Bill of Rights

are every bit as pernicious as the restrictive racial

covenants which the U. S. Supreme Court 1: ‘alid-

dated by invoking the Fourteenth Amendment in

Shelley v Kraemer (1948) 334 U.S. 1, 14: “The

amendment makes void state action of every kind

which is inconsistent with the guarantees therein

contained in the 14** Amendment and extends to

manifestations of state authority in the shape of laws,

customs, judicial or executive proceedings.’ Califor-

nia has no more authority to adopt Unlawful Detain-

er laws which shieid from inquiry the underlying

discrimination which is the basis for an eviction,

than its voters had to adopt Proposition 14 which

proclaimed: “Neither the State nor any subdivision

or agency thereof shall deny, limit or abridge, direct-

ly or indirectly, the right of any person, who is wil-

ling or aciees to sell, lease or rent any part of or all

of his real property. to decline to sell, lease or rent

such property to such person or persons as he, in his

absolute discretion, chooses.” (See Mulkey v Reitman

(1966) 64 Cal 2d 529, 538.) Also, Defendants’ second-

class citizenship for tenants grievance is squarely

supported by this holding in Shelley v Kraemer

(1948) 334 U.S. 1, 20: “The difference between

judicial enforcement and nonenforcement of the

restrictive covenants is the difference to petitioners

between being denied rights of property available to

other members of the community and being accorded

full enjoyment of those rights on an equal footing.”

Romer v Evans (1996) 517 U.S. 620, 633 affirms that

equality requires impartiality: “Central both to the

idea of the rule of law and to our own Constitution’s

guarantee of equal protection ts the principle that

government and each of its parts remain open on

umpartial terms to all who seek its assistance.”

Faced with an “open and shut” Federal Con-

stitutional defense against what Plaintiff would later

testify was his sole basis for issuing his 60-Day No-

tice to Quit (Transcript at 378:3-18), Charles Jensen

engaged in a series of misrepresentations and

evasive tactics (which were aided and abetted by

various rulings by Judges Nadler and Rushing).

Charles Jensen severed all communications with

Defendants (which later violated the meet and confer

obligation of a party opposing an ex parte motion,

pursuant to Local Rule 5.7D). This refusal to

communicate precluded any informal resolution of

discovery disputes (thereby violating California

Attorney Guideline of Civility and Professionalism

#9), and blocked recourse to compulsory disclosure

motions (which require a “meet and confer” certifi-

cate pursuant to CCP Sec 2016.040). In spite of num-

erous protests about violations of statutory require-

ments and Local Rules by Charles Jensen, the trial

court resolutely refused to address ANY of these

complaints. In fact, the ONLY access which Judge

Nadler would allow in pretrial proceedings, was an

ex parte application procedure that involved NO oral

argument and NO opportunity for a written reply to

false statements made in opposing declarations.

There is a huge difference (a five day deadline

for answering versus fifteen days) between

notification of an unlawful detainer action in person,

and by mail. Charles Jensen claimed an entirely

fabricated personal service on James Parker on 7:45

PM on June 2, 2007, and an equally bogus con-

versation claimed by the process server to have

explained substitute service on Michael Hallivell.

Defendants KNEW such claims were outright

perjury (which they unequivocally challenged in

their answer forced by the ostensible means of

service). Defendants challenge to the validity of

service was a special appearance pursuant to The

1880 Corporation v Superior Court (1962) 57 Cal 2d

840, 843 and Pease v City of San Diego (1949) 93

Cal.App.2d 706, 710-711. Subsequent judicial

rulings which evaded the PERJURY aspect and

classified Defendants’ Answer as a “General

Appearance” which “waives service defects” call into

question the commitment to the rule of law of the

judges making such rulings.

Sonoma County’s practice of setting an Un-

lawful Detainer trial date without any opportunity

for input by the tenant would have been illegal

under the pre-consolidation Municipal Code (which

nearly all counties continue to follow). It is certainly

unfair, since tenants are encouraged to rely on

procedures set forth on the California Court’s Online

Self Help Center (www.courtinfo.ca.gov/selfhelp), by

the Summons they receive in Unlawful Detainer

actions and a poster in Room 107J of the Hall of

Justice. When Defendant Michael Halliwell chal-

lenged the fairness of the Sonoma County trial date

4 5

G «

setting process, he was threatened by Judge Nadler

with a Contempt of Court sanction. (Transcript 16:15

to 17:1) The ONLY mention of this aspect of the

case in any judicial ruling in Paxinos v Halliwell &

Parker, does not acknowledge the apparent practice

of giving the landlord the first available trial date,

and says only “there were no apparent irregulari-

ties.” Since the Sonoma County trial date setting

process operates (in tandem with very short sta-

tutory discovery deadlines) to eliminate all but vol-

untary discovery, it helps to explain an observation

made to defendants by a mediator in the conciliation

process, that “no tenant has ever been able to prove

a retaliatory eviction” in Sonoma County Superior

Court. In any event, such a “fact-free” approach to

difficult-to-prove questions of prohibited motivation,

vitiates the intent of the Judicial Council manifest in

their UD-106 Form Interrogatories, and violates the

Federal “meaningful hearing” mandate of Mathews v

Eldridge (1976) 424 U.S. 319, 333 and Armstrong v

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

B. Bias and discrimination against

Defendants in jury trial proceedings

From the moment reference was made (in

Plaintiffs March 28, 2007 60-Day Notice to Quit) to

a March 26, 2007 Report on alleged “ongoing

threatening behavior” by Defendant James Parker,

we used every available avenue to try to obtain this

document. Both Charles Jensen and the Home-

owner's Association refused to provide this Report,

and Judge Rushing totally vitiated the Rules of

Evidence to bring a redacted version of this anony-

mous compilation of hearsay complaints before the

jury. In proceedings before Judge Nadler, Defen-

dants tried to pre-empt introduction of any evidence

within the scope of Form Interrogatories 71.7 & 77.1

(relating to complaints against tenants and the

landlord’s reasons for eviction), which Charles

Jensen brushed aside with the terse remark “this

isn’t the law.” Defendants’ “Motion to Strike No-

Notice Anonymous Evidence” was put on the back

burner by Judge Rushing, who proclaimed: “I never

have jurors outside waiting. This is not the time to

do this. That’s not what we do to jurors.” (Transcript

at 316:24-26) When Exhibit #5 (containing a

redacted version of the March 26, 2008 Report,

whose only indication of its authorship said “This

was submitted by a neighbor”) was admitted into

evidence as part of a document dump, Defendant

Halliwell complained: “They just dumped a pack of

letters, undifferentiated, saying here's 24 letters,

plop.” (Transcript at 242:27-28) Judge Rushing had

apparently looked at Defendants’ papers during

testimony and ruled: “Okav, Mr. Halliwell, I have

looked at your motion this morning, and I’m denying

it. It’s in evidence. It’s going to remain in evidence,

and that’s my ruling. We do not need a sidebar.”

(Transcript at 343:27 to 344:2)

Judge Rushing’s willingness to admit an

anonymous compilation of hearsay complaints (with

redactions blotting out all the names included in the

original report) violates the fundamental purpose of

Evidence Code Sec 1200. Thus Witkin notes in

California Evidence: “The purpose of the ‘hearsay

rule’ is to preserve a party’s Sixth Amendment right

to confront and cross-examine an adverse witness

and to disallow testimony coming from a witness

who is not under oath and whose demeanor cannot

be observed by the trier of fact.” When faced with a

much less flagrant violation of hearsay rules in

Elkins v Supertor Court (2007) 41 Cal 4th 1337, 1364-

1365, the California Supreme Court rejected

elevating speed of adjudication over substantial

justice, and cited Hernandez uv Superior Court (2004)

115 Cal.App.4% 1242, 1246, which affirms that “the

strong public policy favoring disposition on the

merits outweighs the competing policy favoring

judicial efficiency.”

Defendants tried to mitigate the damage

arising from Exhibit #5, by attempting to thoroughly

examining it in court. However, when Defendants

had dealt with 16 of the 39 lines in this Exhibit

(involving five redacted names, four of which were

exactly the same length), Judge Rushing interrupted

Defendant Halliwell: “Actually, sir, I have the right

to contro] the means and the manner, and also

there’s an Evidence Code Section called 352 which

prevents repetition and cumulative evidence and

things that are more time consuming than probative.

The jury is only here for a limited time. We need to

get through the rest of this case.” (Transcript at 355:

20-26) Michael Halliwell responded: “Considering

the critical nature of this document [Exhibit #5], I'd

like to be able to go through it line by line. Are you

ruling that out?” (Transcript at 355:27 to 356:1)

Judge Rushing answered: “I am.” (Ibid at 356:2)

When Michael Halliwell asked James Parker

how he felt about being denied the protection of the

rules of evidence embodied in the Sixth Amendment,

Judge Rushing blocked any further discussion of the

unrehable nature of accusations made by unknown

persons, by ruling “It is irrelevant.” (Transcript at

351:18) In an effort to appeal to the fundamental

fairness of jurors, Michael Halliwell said (in a tone of

voice that left little doubt as to whether he thought

judicial prerogatives should take precedence over the

Bill of Rights): “The Sixth Amendment is irrelevant.

Fine.” (Transcript at 351:19) This invocation of the

Bill of Rights drew a stern rebuke from Judge

Rushing: “You know what, Mr. Halliwell, I’m going

to stop you from making those comments any more

in this courtroom. When I make a ruling that some-

thing is irrelevant, you don’t comment to the jury

that the Sixth Amendment is irrelevant, and I con-

sider that contemptuous behavior. I won't tolerate

it.” (Transcript at 351:20-25) Judge Rushing’s use of

contempt of court threats to cut off a legitimate legal

argument is contrary to Baugess v Paine (1978) 22

Cal 3d 626, 638.

At one point in proceedings, it loked hke

Judge Rushing might clarify her totally evasive

handling of the admissibility of the second- and

third-hand hearsay complaints in Exhibit #5. Judge

Rushing said to Plaintiffs counsel and the Defen-

dants: “We are going to stay on the record to permit

the parties to place on the record anything that was

said at side bar that wasn’t argued on the record.”

(Transcript at 442) Michael Halliwell raised a

number of rulings for which he sought clarification,

and Charles Jensen expressed his own concerns

(Transcript at 442-445). However, after Judge

Rushing addressed the other issues mentioned, she

Praereie en avoid the anonymous/hearsay issue,

and concluded by saying: “I’m not making any

further rulings than that.” (Transcript at 446-447)

Charles Jensen’s obstructionist tactics which

prevented any discovery, morphed into an attack on

Defendants’ right to a jury trial which eventually

wiped out Defendants’ right to contribute to jury

instructions. Plaintiffs main thrust was a no-notice

motion for summary judgment (in violation of the 5-

day notice requirement of CCP Sec 1170.7). It turned

out Defendant. Halliwell was well enough versed in

governing precedents relating to State and Federal

protection against arbitrary discrimination to cite

Marina v Wolfson (1982) 30 Cal. 3d 721, 730 and

Mulkey v Reitman (1966) 64 Cal 2d 528, 538 and

codification of these holdings in AB 1400 (effective

January 1, 2006). All that Charles Jensen could

offer in response was his assertion that any applica-

tion of Marina, beyond discrimination against child-

ren, was illegitimate. Judge Nadler took Jensen’s

summary judgment motion under advisement, and

never did rule on it. Charles Jensen declined Judge

Nadler’s invitation to renew his motion before Judge

Rushing (which he never did, perhaps because he no

longer had the element of surprise working for him).

After winning only a draw on the constitu-

tional law front, Charles Jensen suffered a reversal

when Judge Nadler retreated from his initial ruling

depriving Defendants of a jury (on the ground that

they had put the address of their residence in the

wrong part of their UD-150 counter request). It

required a lot of effort from Defendants to prepare a

persuasive motion to restore their jury, and they

were bewildered by Judge Nadler’s ruling that they

should have found time to also prepare proposed jury

instructions in anticipation of the success of their

reconsideration motion. (See Transcript at 35:16-22)

It turned out that the real reason Defendants were

deprived of nearly 72 hours of the normal pre-

paration time for jury instructions, which they were

entitled to under Local Rule 4.10(H)(1), was to

enable Judge Rushing to depart four hours before

the normal court closing time of 4:00 PM on Friday

June 22, 2007. Defendants turned in their proposed

jury instructions at Judge Rushing’s courtroom a

few minutes before the 12:00 noon deadline

established by Judge Nadler. The security guard

was locking up the building at that time, and

apparently Defendants’ proposed instructions were

left on Judge Rushing’s desk for her consideration on

the following Monday morning, June 25, 2007.

Although Charles Jensen had said he accepted

the restoration of Defendants’ right to a jury, he

introduced a second motion to take away their jury

on the ground of alleged format defects in Defen-

dants’ proposed instructions. Judge Rushing went

along with Charles Jensen’s attack on the format of

Defendants’ submission. Judge Rushing said: “They

are in some form of a legal treatise, but they’re not —

they're not BAJI. Thev’re not CALJIC.” (Transcript

at 166:23-25). Judge Rushing ruled that the lack of

a timely submission by Defendants in the proper

format constituted ‘a waiver of their right to submit

anything in the form of a written statement to be

read or the jury instructions. That time has come

and gone.” (Transcript at 169:21-23)

As far as the jury could tell from the

instructions crafted by Charles Jensen and Judge

Rushing, the Unruh Act did not exist, and only the

single act of issuance of the 60-Day Notice was a fit

subject for examination for retaliatory intent (not

the decision to bring an Unlawful Detainer lawsuit,

nor the decision to actually evict the tenants, which

are explicitly affirmed in Civil Code Sec 1942.5 as

relevant decisional benchmarks). Judge Rushing

ruled that the jury could not consider whatever role

was played by Mr. Paxinos in post-notice conceal-

ment of the nature of complaints against James

Parker. She said: “Well, his actions taken since the

notice are irrelevant.” (Transcript at 278:28 to 279:1)

Also, Judge Rushing applied a double standard to

the concept of hearsay evidence, having accepted

everything Charles Jensen included in his document

dump, but rejecting opinions favorable to James

Parker, with a clearly identified source. Michael

Halliwell asked James Parker (Transcript at 299:21

to 300:6) about a communication to him by “Chris

and Christine, the people who lived next door to me.”

But James Parker was not allowed to answer this

question: “Did either of these people ever communi

cate with you that they received any satisfaction on

this basic [noisy neighbor] grievance? Charles

Jensen interrupted at this point, saying: “Objection,

Your Honor. Any response will be hearsay.” Judge

Rushing responded: “Sustained.”

Michael Halliwell tried to ask James Parker

whether “there was any avenue whatsoever for you

to get your side of this [complaint] into the hands of

the Homeowner’s Association before they made their

decision on this matter?’ (Transcript at 285:4-7)

Charles Jensen prevented James Parker from

answering by intervening: “Objection, Your Honor

Relevance.” (Transcript at 285:8) Judge Rushing

ruled: “I’m going to sustain the objection.” (Tran-

script at 285:9) Michael Halliwell asked landlord

Gus Paxinos: “In exercising your right to elect to

allow me to stay or not to stay, did you make any

inquiries whatsoever from any source whatsoever

about any characteristic whatsoever of Michael

Halliwell? (Transcript at 224:6-9) Charles Jensen

intervened: “Objection, Your Honor. Relevance.”

(Transcript at 224:10) Judge Rushing ruled:

“Sustained.” (Transcript at 224:11) Michael

Halliwell responded: “I’m asking him about his

decision making process, this is a discrimination

case, and I don’t understand how it could.possibly be

irrelevant faskine’ how he is exercising his discre

tion.” (Transcript at 224:12-15) Judge Rushing re-

phed: “’'m sustaining the objection.” (Transcript

at 224:16)

The broad scope of Judge Rushing’s evasions

and obstructionism in the course of trial proceedings

makes this long-standing governing precedent highly

relevant: “The purpose of the equal protection clause

of the Puurtecnsth Amendment is to secure every per-

son within the state’s jurisdiction against intentional

and arbitrary discrimination, whether occasioned by

express terms of a statute or by its improper execu-

tion through duly constituted agents.” (Sunday Lake

Iron Co. v Wakefield Township (1918) 247 U.S. 350,

C,. Maneuvers to evade the underlying

merits of $10, 000 attorney’s fees award

Judge Rushing made two important gestures

toward even-handedness at the outset of post-evic-

tion proceedings relating to attorney’s fees. 1) She

continued Judge Nadler’s policy of allowing either

Defendant to handle any aspect of the case, and took

cognizance of Defendant Halliwell's motion to

postpone a July 31, 2007 fees hearing (in spite of

Plaintiffs challenge to Halliwell’s standing to bring

this motion) and granted the motion. 2) She

acknowledged (in her Order of July 12, 2007) the

applicability of Local Rule 2.2D to every phase of an

Unlawful Detainer action, and vacated a Tentative

Ruling she issued in violation of this principle.

However, Charles Jensen continued his evasions by

filing, without notice to Defendants, a July 3, 2007

document whose letter of conveyance (CR-176)

stated that it was an unfiled negotiating instrument,

and promised an endorsed-filed copy, if it were filed

after negotiations proved unfruitful. After Judge

Rushing postponed the fees hearing until August 28,

2007, Defendants urged Charles Jensen to either

comply with Local Rule 18.8 with respect to his July

3, 2007 fees motion, or submit whatever revised

motion he considered appropriate.

When Charles Jensen refused to unam-

biguously bring a fees motion before the court as

required by Local Rule 18.8, Judge Rushing did a

180 degree reversal on the standing issue, and

retroactively invalidated all of Defendant Halliwell’s

fees-related filings. Judge Rushing ignored James

Parker’s 52-page August 22, 2007 Opposition to ANY

attorney fees award, and granted a default judgment

for $10,000 on the basis that “James Parker did not

oppose the motion.” When Judge Rushing (in her

Order of September 5, 2007) vacated her improperly

issued Tentative Ruling of August 28, 2007, award-

ing Charles Jensen $10,000, she barred James

Parker from filling in any alleged gaps in his prior

filings.

It was blatantly obvious that there was no

more supporting authority, nor even good faith

judicial reasoning, behind Judge Rushing’s handling

of the fees issues, than in her rulings on jury instruc-

tions or applications the Rules of Evidence. A period

of deadly maneuvering ensued, wherein Defendants

did their best to avoid some sort of procedural

default, and Charles Jensen retreated into total

superficiality in his sparse filings and statements at

hearings. The focus of this maneuvering was the

status of a judgment announced by the court, but not

signed and served on the parties. Defendants

followed the holding of Grant vu List & Lathrop

(1992) 2 Cal.App.4% 993, 997, and the liberal

construction of Notices of Appeal in favor of their

sufficiency mandated by CRC Rule 8.750(a), that a

notice of appeal is effective when filed after a court

announces its intention to award a judgment, but

before the court’s order is promulgated. They filed a

Notice of Appeal on August 29, 2007 from Judge

Rushing’s initial $10,000 attorney fees award, and

on September 26, 2007 from Judge Rushing’s

September 25, 2007 ruling from the bench that she

intended to reinstate the $10,000 award. The

sufficiency of the first of these Notices was later

challenged by Charles Jensen on the basis that it

was too soon, and the second notice was challenged

because it was signed by only Defendant Halliwell

(notwithstanding Ehret vu Ichioka (1967) 247 Cal.

App.2d 637, 640-641, which holds that signing a

notice of appeal is a ministerial act which one co-

defendant can perform for another).

Charles Jensen was able to succeed (in Judge

Rushing’s eyes) at a November 20, 2007 Claim of

Exemption hearing in circumventing the automatic

stay provision of CCP Sec 917.1(d), for judgments

consisting only of attorney’s fees and costs, pursuant

to Ziello v Superior Court (1999) 75 Cal.App.4t 651,

655. Judge Rushing ruled that Charles Jensen’s bare

statement that this statute and precedent “does not

apply to James Parker” was a sufficient statement of

pre-hearing grounds for opposition, and that James

Parker was not allowed to file any supplementary

argument once he found out at the hearing that the

alleged invalidity of Defendants’ August 29, 2007

and September 26, 2007 Notices of Appeal was the

reason that Ztello, supra, was no bar to immediate

enforcement of Judge Rushing’s $10,000 fees order.

James Parker asserted that he was entitled to

supplement his pleadings once he found out what

Charles Jensen’s reasons for opposition were. This is

confirmed in CCP Sec 703.580(a) and Sec 703.580(c),

but Sie Rushing proclaimed on this issue at the

November 20, 2007 hearing that James Parker was

“Wrong. Wrong sir. Wrong. I just told you the only

pleadings on a claim of exemption are the claim of

exemption and the opposition and that’s it.” (Tran-

script at 481:15-21)

Judge Rushing never sent a signed copy of her

September 25, 2007 fees award to the parties, and

when Charles Jensen obtained a copy from the case

file to secure a writ of execution on the $10,000

award, he did not inform Defendants of what he was

doing (nor did he ever send a signed copy of the

September 25, 2007 Order to Defendants). Because

the unserved September 25, 2007 Order was still

within the 90 day appeal deadline under CRC Rule

8.751(a)(3), Defendants filed a renewed Notice of

Appeal on November 21, 2007, and a Claim of

Exemption noting that they had eliminated Judge

Rushing’s basis for avoiding the mandate of Ziello,

supra. Since Charles Jensen did not renew his

opposition to Defendants’ Claim of Exemption, we

concluded that he couldn’t think up any ground why

Ziello supra, should not be given full force and effect.

Chedislike checked the Case File in early

December 2007, and found nothing to indicate that

any action had been taken to oppose or circumvent

their November 21, 2007 Claim of Exemption. How-

ever, there were a couple of subtle “adjustments”

which Defendants did not notice. Judge Rushing

(without any supporting Proof of Service) caused this

bogus entry to be placed in the 11/07/2007 electronic

docket: NOTICE OF ENTRY OF JUDGMENT

SERVED 9/25/07. Judge Rushing also completely

scrubbed any mention of the reason for her Novem-

ber 20, 2007 invalidation of Defendants’ Claim of

Exemption from her Courtroom Minutes of this date.

Most of the 22 lines in the Minutes describe the date

of the hearing and those who attended, the only

substance is the top line “ISSUE: CLAIM OF

EXEMPTION” and the last line saying: “Court

DENIES Claim of Exemption of Defendant James

Parker.” At the January 24, 2008 Appellate Branch

Hearing, Charles Jensen made a remark which sug-

gested that the Sheriff had turned over Defendants’

$10,000 to him. After several hours of discussion,

the Sheriffs Department confirmed this, but refused

to give any details. It was not until May 7, 2008,

that the Sheriffs Department was willing to provide

a written record of what Judge Rushing had done.

As 1t turns out Judge Rushing acted on November

26, 2007 to turn over Defendants’ $10,000 (five days

after Defendants’ Notice of Appeal had deprived her

of any jurisdiction to act in this matter).

D. Maneuvers to evade the underlying

merits of $20,720 “Reading Fee” award

Judge Rushing has never cited a justification

for any of her fees awards. At the May 6, 2008

attorney fees hearing, Judge Rushing brushed this

whole subject aside by saying that the existence of

an attorney fees clause in the rental agreement

automatically covered any time spent by the

prevailing party’s attorney (without making the

slightest connection to the specific limitations of the

attorney fees clause, which James Parker agreed to).

The State Legislature has ruled out this sort of

approach, as [su v Abbara (1995) 9 Cal 4th 863, 873-

874 notes: “In 1987, the Legislature amended [Civil

Code] section 1717 to its current form. (Stats. 1987,

ch. 1080, Sec 1, p. 3648.) The Legislature replaced

the term “prevailing party” with the term “party

prevailing on the contract,” evidently to emphasize

that the determination of prevailing party for

purposes of contractual attorney fees was to be made

without reference to the success or failure of

Ve)

noncontract claims. (See, e.g., On v Cow Hollow

Properties (1990) 222 Cal.App.3d 1568, 1574.)”

Not only did Plaintiff never prove a contract

violation, he abandoned his attempt to show ANY

cause “because the code section says no cause is

needed” (see June 25, 2007 Transcript at 172:25 to

173:3). This issue is very simple, a landlord can rely

on his right to evict at will to win an Unlawful De-

tainer action, but he cannot then asked the evicted

tenants to pay him, when the rental agreement

(clause #13) allows attorney’s fees only “to enforce

any part of this agreement.” James Parker’s

supposedly non-existent August 22, 2007 Opposition

(CR-416) to ANY fees award cites Walters v Marler

(1978) 83 Cal.App.3d 1, 27-28 quoting McKenzie t

Kaiser-Aetna (1976) 55 Cal.App.3d 84, 89-90

rejecting the idea that the Legislature 1n enacting

Civil Code sec 1717 meant to include “all provisions

in the contract allowing attorney’s fees, whether or

not those fees are incurred to enforce the provisions

of the contract.” It states that the only reasonable

interpretation of section 1717 is “the allowance of

attorney’s fees only when such fees are incurred to

enforce the provisions of the contract.”

Judge Rushing’s gag rule (based on Defendant

Michael Halliwell’s alleged lack of standing) is an

assault on Defendants’ right of self representation

affirmed in Faretta v California (1967) 422 US. 806,

812-813 and the mandate of Gray v Justice’s Court

(1937) 18 Cal.App.2d 420, 423 “regardless of legal

requirements for the privilege of practicing law, ‘the

right of one to appear and conduct his own case is

not affected.”” Defendant Halliwell could not get a

word in edgewise, with respect to Judge Rushing’s

edict silencing him: (Michael Halliwell: “Could I

address it?” Judge Rushing: “No. I’m talking to Mr.

Parker.” (Transcript at 466:21-22)) Judge Rushing’s

gag rule was imposed with only this tenuous

reference to supporting authority: “The statements |

have just ide are in the law library in all the

practice books.” (Ibid at 466:24-25) Judge Rushing

then turned to Defendant Michael Halliwell and

said: “And I am sorry, Mr. Halliwell, I’m not going to

permit you to say anything in this argument at this

hearing.” (Ibid at 466:28 to 467:2) Michael Halliwell

responded: “Not even on the central issue on

whether I should be allowed to speak?” (Ibid at

467:3-4) Judge Rushing replied “No, it’s the same

rule.” (Ibid at 467:5) Michael Halliwell continued:

“Well, I believe Your Honor is mistaken. I object for

the record.” (Ibid at 467:6-7) Judge Rushing

terminated the discussion: “Mr. Halliwell, I’ve just

made my ruling.” (Ibid at 467:8)

At the May 6, 2008 hearing, Judge Rushing

ruled: “1 will permit you, Mr. Parker, to make

whatever arguments you wish, but not Mr.

Halliwell.” James Parker responded: “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.” But Judge Rushing ruled: “I am not required

to do so and I decline that request.” (Transcript at

4:21 to 5:14)

James Parker's Affidavit re Judge Rushing’s

May 5, 2008 Tentative Ruling says:

Charles Jensen's demand for $20,000 in fees

for having to read the “irreverent dribble”

produced by Defendants, because, “even a

blind pig can find a truffle every now and

then” was times for maximum disruption of

Defendants’ appeals to the First Circuit Court

of Appeal and the California Supreme Court.

In their April 30 (1:02 PM), 2008 Petition to

Presiding Judge Knoel Owen to Postpone the

May 6, 2008 Hearing on Attorneys Fees,

Defendants argued that before any award of

fees for opposing Defendants’ appeals should

be considered, the appeal briefing schedule

abrogated by the order of February 5, 2008

should be reinstated and completed. When

this motion was filed (which cost $20),

arrangements were made for a decision to be

placed in Box 73 in the Hall of Justice. We

checked on the morning before the scheduled

May 6, 2008 hearing, and found that our

motion was still pending. Since we filed

copies of our California Supreme Court filings

around 9 o'clock in Room 107J, we hoped that

the obvious conflict between preparing these

materials and preparing for the May 6%

hearing might incline Presiding Judge Owen

to grant our request for a postponement.

[However, no action was ever taken on

Defendants’ April 30% motion.]

The timing and scope of the $20,720 fees

hearing on May 6, 2008 was a deliberate effort to

interfere with and punish Defendants’ efforts to

appeal a prior attorney's fees award. Such reprisals

are contrary to federal policy, for reasons which are

fully applicable to State legal proceedings. Thus,

Webster v Sowders (1988) 846 F.2d 1032. 1040

observes: “Just as it appears clear that a trial judge

cannot sanction a party or lawyer for taking an

appeal, we do not believe that it is proper here for

the District Judge to threaten to sanction the

defendants or their attorney for filing a motion to

stay his order pending appeal on the grounds that

the underlying appeal is frivolous. The only purpose

of such a threat is to prevent an appeal. Appeals of

district court orders should not be deterred by

threats from district judges.”

Defendants’ Appendix re May 6, 2008

Transcript (5:8-14) states:

In his October 27, 2008 Reply Brief (at 9:18-

19) Charles Jensen asserts: “There has been

no intent on the part of counsel to rob these

litigants of due process.” This is a reference to

James Parker’s protest at the May 6, 2008

hearing that Charles Jensen “brought a two-

pronged attack against us” in deliberately

timing his $20,720 fees motion so that it

would reach a critical juncture when defen-

dants faced crucial filing deadlines with

respect to Judge Rushing’s earlier award of

$10,000 in attorney’s fees (Transcript at 6:8-

10). Plaintiff's co-counsel Kadin Blonski

responded “we're under no obligation to time

our motions to go along with whatever they

have going on.” (Transcript at 9:18-20) Mr.

Blonski also added this false statement in

support of his two-pronged tactic.” “There’s

been no motion at all for a continuance other

than what was just made orally.” (Transcript

at 9:14-15) Charles Jensen knew this to be

false because he received a copy of Defen-

dants’ April 30, 2008 Petition to Postpone May

6, 2008 Hearing on Attorneys Fees (CI 3710-

3714). (See Item #8 of Transcript Analysis.)

At the May 6, 2008 hearing James Parker

protested to Judge Rushing: “But the point here is

he’s never — he’s never controverted with law any of

the citations that we have — that we've briefed him

on. All he.said is they’re dribble [Jensen’s exact

word], nonsense and whimsy; so I would like to ask

the Court to ask him what percentage of those

citations that were issued — what fraction are

whimsy. dribble and nonsense?” Judge Rushing

replied: “Okay, Mr. Parker, I’m not going to ask that

question.” James Parker continued: “One last thing,

then. Okay. I would like to ask one more question.

Can he now cite any one citation that’s whimsy,

dribble and nonsense?” Judge Rushing replied: “I’m

not going to force him to do that.” James Parker

then complained: “Defendants take exception to that

because all he’s — essentially all his argument is it’s

all garbage. He’s never controverted a single one of

our citations, and they are scholarly, and they’re

well documented.” (Transcript at 17:9-24)

Defendants’ Appeal Reply Brief re the $20,720

fees award notes:

There is not a single instance in any

transcript, Courtroom Minutes, or ruling by

Judge Rushing which in any way addresses

Defendants’ documented complaints about the

evasive and sometimes illegal tactics used by

Charles Jensen. Nor does Charles Jensen cite

a single instance in his own brief of any

allegedly false charge made by Defendants.

Charles Jensen’s only reply to the misconduct

charges he wants to be paid for reading, is

that it does indeed take many pages to

establish the context, set forth Respondent’s

various sneaky maneuvers and cite caselaw

which precludes this sort of behavior.

Defendants’ Appeal Reply Brief re the $20,720

fees award notes: “Charles Jensen concedes that

Defendant Michael Halliwell is adversely affected by

any attorney fees award to Plaintiff (Opposition at

3:9-11), as he dismissively observes: ‘as they state ad

nauseam throughout their papers they apparently

have some sort of arrangement between them for

Mr. Halliwell to pay % of the judgments and orders

in this case.” Having fully satisfied the injury-in-

fact requirement and closeness of relationship

‘cacamdedaci (having been evicted together),

Defendants also satisfy the third jus tertui

requirement 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.” To try to deal

effectively with aspects of the case previously

handled by Defendant Halliwell, within the

framework of Judge Rushing’s ruling on standing,

James Parker asked: “May I call Dr. Halliwell as a

witness?” (Transcript at 473:3-4) Judge Rushing

refused to allow this, saying: “No, this is not — live

testimony is not permitted at Law & Motion. No

witnesses testify at Law & Motion.” (ibid at 473:5-7)

The Appellate Branch ignored the mandate of

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

indirectness of an injury does not preclude standing.

Moreover, even if Michael Halliwell and James

Parker were not co-defendants, Halliwell would be

allowed to defend his own interest in mitigating any

fees award against Parker under the standing cri-

teria set forth in Powers v Ohio (1991) 499 U.S. 400,

410-411. This unfairness was greatly aggravated by

sweeping aside Defendant Hallwell’s undeniable

standing in the appeal process to challenge Judge

Rushing’s standing ruling. Aries Development Co. v

Coastline Coastal Zone Conservation Commission

(1975) 48 Cal.App.3d 534, 542, and its supporting

authorities specifically hold that the right to appeal

directly accrues from a trial court’s ruling that a

party lacks standing with respect to a motion. Also,

in addition, United Investors Life Insurance Co. u

Waddell & Reed, Inz. (2005) 125 Cal.App.4 1300,

1303-1304, cites County of Alameda v Carleson

(1971) 5 Cal 3d 730, 736 and numerous other

authorities in support of its holding that “an appel-

late court has jurisdiction to determine whether a

party has standing in prior proceedings. Even if

plaintiff has no authority to maintain its suit in

superior court, it is sufficiently aggrieved by the

dismissal of its complaint that it has standing to

appeal under Code of Civil Procedure Section 902.”

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

211, 215 sums up: “In other words, a party is

‘aggrieved’ by an order, within the m «ning of section

902, even if his grievance turns out to be legally

without merit.”

E. Protecting Defendants’ appellate rights

from the latest overload tactics

Defendants’ February 2, 2009 Petition sought

a preliminary ruling from Sonoma County Superior

Court Presiding Judge Knoel Owen on whether

Appellate Branch Presiding Judge Rene Auguste

Chouteau should play a role in deciding on the

Petition for a Writ of Supersedeas, which Defendants

intended to submit. The February 2" Petition raised

the: issue of what Defendants feel has been Judge

Chouteau’s obstructionism in appeal scheduling

matters (such as his pulling the plug on scheduled

appeal briefing on February 5, 2008 and not

reinstating briefing until May 13, 2008). On

February 3, 2009 Defendants filed their Supersedeas

Petition, which sought cancellation of a February 10,

2009 a ee (on the ground that its briefing

schedule overlapped a period of time when Defen-

dants were fully occupied with Appeal and OEX

matters). Both Petitions thoroughly reviewed

Defendants’ California Supreme Court filings to

demonstrate the strong Federal component of most

of Defendants’ grievances. (Thus, however pending

decisions by the California Supreme Court on

whether to grant review are resolved, Defendants

face a very substantial preparation and drafting task

in seeking to protect their federal rights, in whatever

forum remains open). No action was taken on the

February 2™ or February 3" Petitions. Defendants

attempted to file their February ¥, 2009 Motion for a

Stay of Trial Court Proceedings (which added

numerous citations of federal caselaw in support of

their various grievances, and reasserted Defendants’

right to cancellation of the February 10, 2009 fees

hearing, which sought to impose a severe ($19,000)

penalty on Defendants for devoting their attention to

protection of their Federal rights). Apparently,

Judge Rushing has asserted the notion that (in the

sensitive situation created by her prior conduct in

the case) she should be the sole arbiter of when to

schedule further fees motions. The filing clerks in

Room 107J departed from their established practice

of accepting extraordinary petitions for consideration

by whatever judge(s) were later determined to be

appropriate. In this instance they insisted on

deferring 2 Judge Rushing on the disposition of

Defendants’ February 9th motion. Judge Rushing

decided that the February 9* motion to cancel the

February 10, 2009 Fees hearing, be placed on her

March 24, 2009 Law & Motion calendar, thereby

completely defeating the purpose of the motion.

At the February 10, 2009 Fees Hearing Judge

Rushing expressed the view that Judge Boyd was

wrong to have suspended OEX proceedings, and that

the discretionary review part of the appeals process

involved no rights for an Appellant. Therefore her

trial court need not make any accommodation to

protect an Appellants’ optional rights. The February

10, 2009 Fees Hearing started off with a protracted

battle occasioned by Judge Rushing’s insistence that

even a motion (attached) premised on a court's

alleged lack of jurisdiction had to be placed on the

Law & Motion Calendar in the usual fashion, in

order to receive consideration. In fact, a court

should NEVER act without jurisdiction, and such a

challenge is always timely (when it is supported by

the facts of the case). Defendants’ “Motion re Lack of

Jurisdiction” was based on their December 22, 2008

Notice of Appeal (wherein all transcripts have been

prepared and paid for, but a briefing schedule has

not yet been set). The focus of this appeal is Judge

Rushing’s insistence om ignoring the mandate 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

appear and conduct his own case is not affected.”

There was no indication that Judge Rushing would

be willing to conduct the February 10, 2009 fees

hearing, in accordance with Gray vu Justice's Court,

and she was in fact unwilling to do so. Accordingly,

the hearing was an aspect of the case related toa

pending appeal, and Judge Rushing had no author-

ity to act at all in this matter. Thus Varian Medical

Systems, Inc. v Delfino (2005) 35 Cal 4tr 180, 190

notes: “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).”

Interspersed with Judge Rushing’s repeated

interruptions, as Defendants tried to read their jur-

isdictional motion, was a discussion of Defendants’

“second line of defense” (an equitable argument that

we deserved a postponement because so much of the

briefing period for the $19,000 fees motion was

improperly taken up by OEX proceedings). This was

based on Judge Robert S. Boyd’s January 20, 2009

ruling wiping out the effects of OEX proceedings,

which Judge Boyd determined to have been

conducted prematurely:

So now that I am beginning to get a clearer

picture of the whole story, not just this Court’s

role, which was the enforcement of the judg-

ment, 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 on the $20,000 is

on appeal.

Since Judge Rushing felt that Judge Boyd’s

Order of January 20, 2009 was a mistake, she

brushed aside this equitable argument. When she

rejected Defendants jurisdictional challenge, Judge

Rushing did so without explanation. Without

skipping a beat, Judge Rushing went from her ruling

that she did in fact have jurisdiction, to affirm her

unexplained Tentative Ruling to grant Plaintiff's

motion for attorney’s fees in the amount of $19,000.

There is no way that such a process of consideration

can be considered a “meaningful hearing at a

meaningful time” within the meaning of Mathews v

Eldridge (1976) 424 U.S. 319, 333 and Armstrong v

Manzo (1965) 380 U.S. 545, 552. Accordingly, the

process for setting Plaintiffs fees motion for proper

consideration should not be initiated prior to the

ending of the “respite” period established by Judge

Boyd’s Order of January 20, 2009 (that is no

renewed filing should take place before March 17,

Judge Rushing’s invocation of California’s

“vexatious litigant” statute (CCP Sec 391) seeks to

brand as frivolous, several of the 28 specific

grievances whose supporting evidence and caselaw is

set forth in the Appendix to this Petition. During

proceedings where Judge Rushing issued the rulings

that she claims are being frivolously challenged, she

never cited any supporting authority, and rarely

gave any explanation of her rulings. The main basis

for Judge Rushing’s February 9, 2009 Order to Show

Cause, is set forth therein at 3:23-28:

Specifically, the filing of numerous Appellate

and Supreme Court actions constitutes

repeated “attempts to relitigate, in propria

persona, either (i) the validity of the

determination against the same defendant or

defendants as to whom the litigation was

finally determined or (ii) the cause of action,

claim, controversy, or any of the issues of fact

or law, determined or concluded by the final

determination against the same defendant or

defendants as to whom the litigation was

finally determined.” CCP Sec 391(b)(2).

This was written before Judge Rushing took

the bench for her Fees Hearing at 8:30 AM on

February 10, 2009, and it clearly reflects her view

that a ruling by the Appellate Branch of a Superior

Court is a final determination of a limited

jurisdiction (less than $25,000 maximum award)

case. In Judge Rushing’s view any attempt to seek

review by a court that is not obliged to take the case

1s, upso facto, frivolous. This concept imphes that the

Plaintiff in Elkins v Superior Court of Contra Costa

County (2007) 41 Cal 4% 1337 should have given up

after the Court of Appeal summarily denied his

challenge to procedures that were strongly (and

apparently unanimously) supported by the Contra

Costa Superior Court. Such a broad definition of

“frivolous” is untenable, and Judge Rushing’s Order

to Show Cause should be permanently staved,

without prejudice to its renewal, if and when the

Sonoma County Superior Court rulings being

challenged by Defendants have been shown to be

consistent with governing precedents and consistent

with proven facts in the case.

If a‘permanent stay without prejudice to

renewal in appropriate circumstances is not

considered a proper response to the intrusion upon

Defendants’ preparation and drafting time re their

ongoing appeals, Defendants alternatively seek a

delay in the slated April 14, 2009 hearing on Judge

Rushing’s Order to Show Cause. This period

wherein the holding of such a hearing is barred

should extend until the time for filing a petition for

review of the federal aspects of Defendants’ allegedly

frivolous claims has expired (thus providing an

opportunity to seek a further stay in Federal Court).

To provide a convenient “check list” for Defendants’

Federal grievances, to facilitate a determination of

which (if any) of them may be frivolous, they are

listed with supporting authorities:

Summary of Defendants’ Main Claims Set

Forth in Accompanying Appendix

(For details relating to any of these

claims, see same # in Appendix)

#1. Automatically giving the landlord the first

available Unlawful Detainer trial date, sacrifices

proper determination of the facts te speed of

adjudication in violation of Green vu Superior Court

(1974) 10 Cal. 3d 616, 636; Universal Oil Products

Co. v Root Refining Co. (1946) 328 U.S. 575, 580 and

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

281 U.S. 673, 682.

#2. Perjury can never be a valid means of depriving

tenants facing eviction of 10 days of preparation and

discovery time, which they are entitled to under

circumstances of actual service. (Kulko v California

Superior Court (1978) 436 U.S. 84, 101; NAACP v

Button (1963) 371 U.S. 415, 428: Hazel-Atlas Glass

Co. v Hartford-Empire Co. (1944) 322 U.S. 238, 245)

#3. A good faith attempt to challenge the proper

invocation of a court’s jurisdiction is not converted

from a special appearance into a general appearance

simply because the court refuses to take cognizance

of the challenge. (The 1880 Corporation v Superior

Court (1962) 57 Cal.2d 840, 843; Pease v City of San

Diego (1949) 93 Cal 2d 706, 711-712; Parsons v

Superior Court of Marin County (2007) 149

Cal.App.4t» Supp. 1, 6)

#4. A pre-emptive strike against discovery by

severing communications (in violation of CCP Sec

2016.040 and Local Rule 5.7D) cannot be the basis

for denying discovery to a party who is in comp!iance

with statutory and local rules. (Townsend v Superior

Court (1998) 61 Cal.App.4th 1431, 1435; Obregon v

Superior Court (1998) 67 Cal.App.4th 424, 434;

Schweiger v Superior Court (1970) 3 Cal 3d 507, 514)

#5. Defendants’ right to re-open discovery after

Plaintiffs frivolous challenge to a jury trial forces

postponement of original trial date (Greyhound Corp.

vu Superior Court (1961) 56 Cal 2d 355, 376; Beverly

Hospital v Superior Court (1993) 19 Cal.App.4th

1289, 1293; Fairmont Insurance Co. vu Superior Court

(2000) 22 Cal 4th 245, 251)

#6. A meaningless distinction, such as putting the

address of the disputed property at the top of a form,

instead of as part of the answer to question #2,

cannot be a valid basis for depriving a litigant of a

federally protected right, such as his Seventh

Amendment right to a trial by jury. (United States v

Mississippi (1965) 380 U.S. 128, 132; Adams v

Murakami (1991) 54 Cal 3d 105, 120; Broad River

Power Co. v South Carolina (1930) 281 U.S. 537,

540)

#7. The eviction of a tenant at the absolute

discretion of the landlord is subject to challenge

under state and federal laws proscribing arbitrary

discrimination. (Reitman v Mulkey (1967) 387 U.S.

369, 371; Romer v Zvans (1996) 517 U.S. 620, 633;

Marina Point v Wolfson (1982) 30 Cal 3d 721, 730)

#8. Judge Rushing’s total exclusion of anti-

discrimination law from jury instruction and near

total refusal to allow evidence of discrimination

violated Shelley v Kraemer (1948) 334 U.S. 1, 20;

Mulkey vu Reitman (1966) 64 Cal 2d 529, 538 and

Koebke vu Bernardo Heights Country Club (2005) 36

Cal 4th 824, 839-840.

#9. Where there has been no proven contract

violation, there is no obligation for the loser to pay

the prevailing party’s attorney’s fees, even if he has

signed a contract with an attorney fees clause.

(Alyeska Pipeline Service Co. v Wilderness Society

(1975) 421 U.S. 240, 247: Hsu v Abbara (1995) 9 Cal

4th 863, 875; Santisas v Goodin (1998) 17 Cal 4%

599,602, 608-609, 617, 619)

#10. Judge Rushing deliberately trashed the

fundamental purpose of the strict limits on hearsay

evidence “to preserve a party’s Sixth Amendment

right to confront and cross-examine an adverse

witness and to disallow testimony coming from a

witness who is not under oath and whose demeanor

cannot be observed by the trier of fact.” (World-Wide

Volkswagen Corp. v Woodson (1980) 444 U.S. 286,

292; Abstract Investment Co. v Hutchison (1962) 204

Cal.App.2d 242, 249; United States v Fowlie (1994)

24 F.3d 1059, 1069)

#11. Judge Rushing’s misuse of Evidence Code Sec

352 and other rulings to shield prejudicial evidence

from being discredited, produced a judgment in

violation of due process, thereby transgressing

Pennoyer vu Neff (1878) 95 U.S. 714, 732-733; Elkins vu

Superior Court (2007) 41 Cal 4» 1337, 1354; and

Baugess v Paine ‘1978) 22 Cal 3d 626, 638.

#12. Charles Jensen and Judge Rushing have

employed tactics ranging from evasions to outright

obstruction of justice, to pave the way for a punitive

attorney fees award based on faulty premises.

(Cooter & Gell v Hartmax (1990) 496 U.S. 384, 405;

United States v Silverman (1984) 745 F.2d 1386,

1395; City of Shasta Lake v County of Shasta (1999)

75 Cal.App.4t* 1, 11)

#13. Court files and briefing schedules have been

manipulated to produce a deliberately orchestrated

miscarriage of justice. (Joint Anti-Fascist Refugee

Committee v McGrath (1951) 341 U.S. 123, 170;

Windsor v McVeigh (1876) 93 U.S. 274, 277; United

States v Walasek (1975) 527 F.2d 676, 680)

#14. By forcing Defendants to “change horses in the

middle of the stream” in the process of granting

Charles Jensen fees for opposing aspects of

Defendants’ case, whose conduct by Michael

Halliwell was unopposed at the time, Judge Rushing

has deliberately sought to make it impossible for two

self-represented litigants to effectively conduct their

case. (Faretta v California (1967) 422 U.S. 806, 812-

813; Gray vu Justice’s Court (1937) 18 Cal.App.2d 420,

423; Powers v Ohio (1991) 499 U.S. 400, 410-411)

#15. Judge Chouteau has flouted Defendants’ right

to appeal (CCP Sec 902) from Judge Rushing’s Judge

Rushing’s standing rulings. (Nelson v Adams (2000)

529 U.S. 460, 464; Varian Medical Systems, Inc. v

Delfino (2005) 35 Cal 4b 180, 198-199; Conservator-

ship of Stewart (1969) 276 Cal.App.2d 211, 215)

#16. Charles Jensen and Judge Rushing orche-

strated the November 20, 2007 Exemption Claim

Hearing and the run-up to it, to prevent James

Parker from pointing out flaws in the excuse for

circumventing the stay provisions for fees-only

judgments. (Jennings v Superior Court (1967) 66 Cal

2d 867, 875-877; Grant v List & Lathrop (1992) 2

Cal.App.4th 993, 997; Hall v Superior Court (2005)

133 Cal.App.4t 908, 918-919)

#17. Judge Rushing’s ruling that there had been no

appeal of her $10,000 fees award was untenable

wheu she made it, and it was a total fabrication

when she acted off the record to circumvent the stay

provisions of CCP 916(a) and turn over Defendants’

$10,000 to Charles Jensen. (Ziello v Superior Court

(1999) 75 Cal. App.4t® 651, 655; Nielson v Stumbos

(1990) 226 Cal.App.3d 301, 303; County of Alameda

v Carleson (1971) 5 Cal 3d 730, 736)

#18. At the September 25, 2008 Appeal Hearing,

Judge Chouteau was resolute in his determination to

prevent Defendants from effectively presenting their

case. (Baker v Carr (1962) 369 U.S. 186, 204; Warth

v Seldin (1975) 422 U.S. 490, 504; 20 Century

Insurance Co. v Choong (2000) 79 Cal.App.4 1274,

1277)

#19. File tampering is a violation of Federal law

against obstruction of justice (18 U.S.C. Sec 1503),

which is serious enough to warrant adjudication

whenever the opportunity finally presents itself.

(Mathews v Eldridge (1976) 424 U.S. 319, 333;

United States v Netswender (1984) 590 F.2d 1269,

1272-1273; Moore v Ogilvie (1969) 394 U.S. 814, 816)

#20. Judges Rushing and Chouteau have used their

various standing subterfuges to try to deprive

Defendants of the most basic right under the United

States Constitution: “The very essence of civ:1 liberty

certainly consists in the right of every individual to

claim the protection of the laws, whenever he

receives an injury.” (Marbury v. Madison (18038) 5

U.S. 137, 163; Gamet v Blanchard (2001) 91

Cal.App.4t 1276, 1283; Estate of Buchman (1954)

123 Cal.App.2d 546, 560)

#21. Fraud and favoritism can never be allowed to

replace the rule of law as the “coin of the realm” in

the judicial process, and a judge who has been

previously censured (CJP Inquiry #177) for such

behavior must be subjected to close judicial scrutiny

on appeals involving unrebutted charges of

deliberate judicial evasions. (Yick Wo v Hopkins

(1886) 118 U.S. 356, 366-367, 373-374; Hart v

Massanart (2001) 266 F.3d 1155, 1170; Fuentes v

Shevin (1972) 407 U.S. 67, 80)

#22. The concealment of Judge Rushing’s censure for

dishonestly, admitted favoritism and seeking prefer-

ential treatment because her husband is a Court of

Appeal Justice, and Charles Jensen’s refusal to

address the extent of his role in helping to save her

job in these circumstances, is a proper occasion for

retroactive exercise of a litigant’s right of recusal

against Judge Rushing and invalidation of every-

thing she has done in this case. (Bolling v Sharpe

(1954) 347 U.S. 497, 499; Haworth v Superior Court

(2008) 164 Cal.App.4'h 930, 942; In re Gordon (1996)

13 Cal 4th 472, 473)

#23. The integrity of judicial officers charged with

fairly and even-handedly resolving disputes, is not

simply a desirable characteristic which those making

appointments to the bench hope to achieve, it is an

enforceable right for litigants. Kloepfer vp Commis-

ston on Judicial Performance (1989) 49 Cal 3d 826,

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

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

#24. Whatever motions Plaintiffs may have, that

rest on an implicit foundation that Sonoma County

Superior Court rulings 1n his favor will emerge

intact from the process of appellate review, should be

continued until this review process is complete.

(Goldberg v Kelly (1970) 397 U.S.254, 268-269; Clark

v Millsap (1926) 197 Cal 765, 785; Hernandez v

Superior Court (2004) 115 Cal.App.4'» 1242, 1246)

#25. Defendants were forced to undergo six OEX

hearings, subsequently found by Judge Robert S.

Boyd to have been prematurely held, which impaired

their ability to prosecute their appeals: such “second

front” tactics by Plaintiff should not be allowed.

(Webster v Sowders (1988) 846 F.2d 1032, 1040;

United States v Buffalano (1984) 727 F.2d 50, 54;

United States v Russell (1921) 255 U.S. 138, 143)

#26. On January 14, 2008 Judge Chouteau

established a briefing schedule on fees aspects of the

case which could not be briefed earlier because key

(September 25, 2007 and November 20, 2007)

transcripts were not available, but he “pulled the

plug” on this briefing on February 5, 2008. Briefing

was not reinstated until May 13, 2008 (a week after

Judge Rushing granted $20,720 in additional fees to

Charles Jensen, based on the alleged legitimacy of

her rulings of September 25, 2007 and November 20,

2007). Defendants should be protected by the

“poisoned fruit of a poisoned tree” doctrine from this

sort of judicial manipulation. (Nebbia v New York

(1934) 291 U.S. 502, 525; Byrne & Manou vu Nezhat

(2001) 261 F.3d 1075, n 110; Front Royal and

Warren County Industrial Park Corporation by Town

of Front Royal Virginia (1998) 135 F.3d 275)

#27. A fair trial in a fair tribunal is a basic require-

ment of due process. A summary denial of a writ

petition cannot be given “law of the case” effect, to

brush aside documented evidence of deliberate

judicial obstruction of justice. And higher courts

have the power to investigate fraud whenever it is

discovered. (In re Murchison (1955) 349 U.S. 133,

136; Kowis v Howard (1992) 3 Cal 4% 888, 897:

People v Malveaux (1996) 50 Cal.App. 4% 1425, 1434)

#28. Except for a repeated “second and third front

squeeze” created by the timing of Plaintiff's fees

motions, and manipulation (by Judge Chouteau) of

the timing of consideration of appeals from the

granting of these motions (by Judge Rushing),

Appellants would have been able to deal with a

manageable number of issues in an orderly frame-

work. However, the recent introduction of two new

fronts (a $19,000 fees award and institution ofa

“vexatious litigant” proceeding by Judge Rushing)

leaves no viable option for protecting Defendants

rights under CCP Sec 1086, except a direct Manda-

mus Appeal to the California Supreme Court. (Babb

v Superior Court of Sonoma County (1971) 3 Cal 3d

841, 851; Gromeeko v Superior Court (1952) 114

Cal.App.2d 754, 757; Louie Queriolo Trucking vu

Superior Court (1967) 252 Cal.App.2d 194, 197)

James Parker & Michael Halliwell First District

Defendants In Propria Persona Court of Appeal

271 E. Cotati Ave, Cotati CA 94931 Division Two

707-795-5526 halliwel@csulb.edu Case # A123266

CALIFORNIA SUPREME COURT 8170538

Sonoma County

Michael Halliwell, et al, Case # MCV 191306

Petitioner vs. FILED FEB 17 2009

Clerk Supreme Court

Superior Court of Defendants/Appellants’

California, County of Reply to Second Front

Sonoma, Respondent; Tactics by Real Party:

Appendix F for Petition re

Chrysanthe Paxinos, Corrective Mandamus

Real Party in Interest Pursuant to CCP § 1086

This Appendix is a condensation of Defen-

dants’ Stay Motion of January 9, 2009, which

extensively excerpts our Supersedeas Petition of

January 3, 2009, which quotes at length the

Federally related aspects of our California Supreme

Court filings. Defendants January 3, 2009 and

January 9, 2009 submissions were both ignored by

Sonoma County Superior Court Presiding Judge

Knoel Owen and Presiding Judge of the Appellate

Branch Rene Auguste Chouteau. Defendants’ most

basic Federal grievance is the Denial] of Equal

Protection of the Laws, arising from the total]

disregard of governing precedents by the trial court

(Judge Elaine Rushing) and Appellate Branch

(Presiding Judge Rene Auguste Chouteau). Because

the trial court and the Appellate Branch have

committed numerous violations of Due Process of

Law in the course of consideration (or refusing to

consider) important rights under State Law, this

portion of the case also has an important Federal

aspect. However the California Supreme Court’s

past and future rulings may be construed, this is not

the last word on federal issues. Brinkerhoff-Faris

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

notes that “it may be observed that the plaintiffs

claim is one arising under the federal Constitution

and, consequently, one on which the opinion of the

state court is not final.”

Dated this 17th day of February, 2009

Michael Halliwell PE . es ea

James Parker

Defendant pro se

‘ ; Defendant pro se

271 E. Cotati Ave 271 E. Cotati Ave

Cotati CA 94931 at

Cotati CA 94931

TABLE OF CONTENTS

1. Sonoma County tenants deserve Equal Protection

in the trial date setting process................ 98

2. Defendants have a First Amendment (Court

Access) right to enforce service rules........... 101

3. Disregarding caselaw defining a “special appear-

ance” is simply intolerable................... 105

4. Charles Jensen sabotaged discovery from the

outset by refusing to confer.................. 110

5. Charles Jensen blamed Defendants of HIS refusal

Go TRCHIIORTO GISCOVOEY 0. ccc ccc pe cece ecsseens 115

6. Putting right address in wrong place on Form UD-

150 was basis of jury denial try............... 120

7. Scope of State and Federal protection against

arbitrary discrimination. ...............eee08- 126

8. Judge Rushing completely vitiates the mandates

of anti-discrimination caselaw................ 132

9. Awarding attorney's fees with NO specific basis is

a clear Due Process violation................. 137

10. Judge Rushing systematically flouted the

Evidence Code to admit Exhibit #5............ 142

11. Judge Rushing and Evidence Code Sec 352 to

vitiate Evidence Code Sec 1200....... eee

12. Judge Rushing continues to evade crucial facts in

handling attorney’s fees..............2200065 156

13. Court files and briefing schedules have been

manipulated to obstruct justice............... 160

14. Judge Rushing sought ineffective advocacy, in

denying right to conduct own case............. 167

15. Judge Chouteau has ignored precedents re

standing to appeal standing.................. 171

16. Charles Jensen and Judge Rushing cooperate to

evade CCP Sec 703.580(a)&(c)............205. 175

17. Judge Rushing acted without jurisdiction to

enforce her fees judgment ................... 180

18. Procedural evasions by Appellate Branch to

minimize scrutiny of the fees issue............ 185

19. Judicial tolerance of (or participation in) file

tampering eliminates justice................. 190

20. Judicial evasiveness may be the most pernicious

form of judicial absolutism................... 195

21. Respondent refuses to address Judge Rushing’s

CJP censure or his involvement.............. 200

22. “There was no on-bench misconduct” (CJP, 2006)

is emphatically no longer true. ... . ae eaten 204

23. Judge Rushing’s duplicity and Judicial Perfor-

mance Commission cemsure.............e.05: 208

24. Judge Boyd’s proceedings postponement should

also apply to fresh fees motions............... 214

25. Self represented litigants deserve fully unob-

structed statutory preparation time........... 218

26. The timing of Plaintiffs fees motions and their

consideration was grossly unfair.............. 223

27. Without actual adjudication, there is no such

ee ee Pre ee aait

28. Severe deprivation of Due Process warrants a

writ pursuant to CCP Sec 1086............... 233

TABLE OF AUTHORITIES CITED

CASES

Abstract Investment Co. v Hutchison (1962) 204

Ce Pe ln ee, es oh a See ae esate a Res 147

Adams v Murakami (1991) 54 Cal 3d 105, 120... 98

Aires Develop. Co. v. Coastline Coastal Zone Cons.

Comm. (1975) 48 Cal.App.3d 534, 542......... 183

Alyeska Pipeline Service Co. v Wilderness Society

(rae ee Ge i et oe a ke ee ws we es 137

Armstrong v Manzo(1965) 380 U.S. 545, 552 171,190

Babb v Superior Court of Sonoma County (1971) 3

Cee ee ee es oe ee a ee ee a eee 237

Baker v Carr (1962) 369 U.S. 186, 204 . 164, 185, 195

Baldwin v Hale (1863) 68 U.S. 223, 233 ........175

Banks v Lucas (1992) 9 Cal.App.4t® 365, 369... . 129

Baugess v Paine (1978) 22 Cal 3d 626,638 ..... 150

Beverly Hospital v Superior Court (1993) 19 Cal.

App.4th 1289, 1293..................... 118, 120

Boddie v Connecticut (1971) 401 U.S. 371, 374, 375,

ee. oreo ck te kee ka we 164, 165, 208, 213

Bolling v Sharpe (1954) 347 U.S. 497, 499...... 205

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

281 U.S. 673, 678, 681-682. ....... 80, 102, 156, 160

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

UB GT, OO os oc eee 120

Byrne & Manov v Nezhat (2001) 261 F.3d 1075, fn

Bes sx be ho hee Oh eee eee 161

Chambers v Nasco, Inc. (1991) 501 U.S. 32, 44.. 105

Chronicle Publishing Co. v Superior Court (1960) 54

Cat 26 OGG, OGs. oo oss eevee 114, 115

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

Cat Age. 27 1,41 204. oi eee 159

Clancy v State Bar (1969) 71 Cal 2d 140, 148... 218

Clark v Millsap (1926) 197 Cal 765, 785. ....... 218

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

OES BGO ooh hee 173, 183, 184

Cooter & Gell v Hartmarx (1990) 496 U.S. 384, 405,

PGs ok alae ease hee eee 158

TO oe ee eek ae Shee ee eee eee 183

Craig v Boren (1976) 429 U.S. 190, 195 169, 187, 195

Crayton v Superior Court (1985) 165 Cal.App.3d 443,

B86

Delta Imports, Inc. v Municipal Court (1983) 146

Cal.App. 3d 1033, 1036...................-- 110

Denton v Smith (1951) 101 Cal.App.2d 841, 845 . 218

Di Sabatino v State Bar(1980) 27 Cal3d 159, 162 218

Ehret v Ichioka (1967) 247 Cal.App.2d 637, 640 . 188

Elkins v Superior Court of Contra Costa County

(2007) 41 Cal 4th 1337, 1354, 1864.... 153, 154, 234

Emerson Electric Co. v Superior Court (1997) 16 Cal

wc et we ewe eee 115

Estate of Buchman (1954) 123 Cal.App.2d 546, 560

SE 199

Exxess Electronixx v Heger Realty Corp. (1998) 64

Senna. GOS, TOG... wt te tees 139

Fairmont Insurance Co. v Superior Court (2000) 22

gs ek te te ee 118, 120

Faretta v California(1967) 422 U.S. 806, 812-813 168

Frohman v Bonelli(1949) 91 CalApp.2d 285, 291. 109

Front Royal & Warren Co. Industrial Park Corp v

Town of Front Royal (1998) 135 F.3d 275....... 214

Fuentes v Shevin (1972) 407 U.S. 67, 80....... 175

Gamet v Blanchard (2001) 91 Cal.App.4t* 1276, 1283

LE 178, 198, 219

Goldberg v Kelly (1970) 397 U.S. 254, 268-269, 271

Pe i RP A enn 153, 216, 227

Goldstein v Lees (1975) 46 Cal.App.3d 614, 618 . 218

Grannis v Ordean (1914) 234 U.S. 365......... 175

Grant v List & Lathrop (1992) 2 Cal.App.4% 993,

Oe ess wee owe eee eee 179

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

ee ee eee A eae Sh = 168

Green v Superior Court(1974) 10 Ca! 3d 616, 636 147

Greene v Louiseville & Interurban Railroad Co.

C3007) BO6 Ue SO Oe an ok so ee vk wees 160

Greene v McElroy (1959) 360 U.S. 474, 496-497 . 233

Greyhound Corp. v Superior Court (1961) 56 Cal 2d

a ee ee eee eee eee 114, 115, 119

Gromeeko v Superior Court (1952) 114 Cal.App.2d

TO, PEs oe ORR Ee 236

Grove v State Bar (1965) 63 Cal 2d 312, 315... . 218

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

DRO Ee oe bk ke ee Ce Oe ive

Harrison v NAACP (1959) 360 U.S. 167, 175... . 214

Hart v Massanan (2001, 9t® Cir.) 226 F.3d 1155,

Haworthyv Superior Court (2008) 164 Cal.App.4t

OGG, BG, BET, OAR... i ce cw ese deen 206, 207

Hazel-Atlas Glass Co. v Hartford-Empire Co. (1944)

Bayh Oo BO Os OD ok kn kw knees 105, 116, 233

Hernandez v Superior Court (2004) 115 Cal.App.4th

BE era te cat ate Vara ei earns 154

Holz v Superior Court (1970) 3 Cal 3d 296, 301. . 237

Hovey v Ellot (1897) 167 U.S. 409............ 175

Hsu v Abbara (1995) 9 Cal 4th 868, 873-874, 875. 139

In re Ames Department Stores, Inc. (1996) 76 F.3d

ee ee ee er rere ern ay 160

In re Catherine H (2002) 102 Cal.App.4th 1284, 1294

A do ace eg Oar agen eg te RECS tay ger ie en 182, 183

In re Cox (1970) 3 Cal 3d 205, 212, 216... . 128, 135

In re Gordon (1996) 13 Cal 4 472, 473 ........ 207

In re Murchison (1955) 349 U.S. 1383, 1386...... 227

In re Natasha A. (1996) 42 Cal.App.4th 28, 38...191

Inter national Industries v Olen (1978) 21 Cal 3d

Ey PR ig 65k re eee 142

International Shoe Co. v Washington (1945) 326 U.S.

eee, eee Oe cc ee abe eres 111, 142

Jennings v Superior Court (1967) 66 Cal 2d 867, 875-

ate ee a a oe kk a ee eee ee ee 178

Joint Anti-Facist Refugee Committee v McGrath

Pee en 6s BBP i awe ee See ee ee ee 160

Kloepfer v Commission on Judicial Performance

(1989) 49 Cal 3d 826, 865................ 206, 211

Koebke v Bernardo Heights Country Club (2005) 36

Cos ee, PP Ss nc oe ee wes oer hee 136

Kowis v Howard (1992) 3 Cal 4t 888, 897, 898 . . 232

Kulko v California Superior Court (1978) 436 U.S.

Ny soa ee ee a ee a eee 98

Lacrabere v Wise (1904) 141 Cal 554, 556...... 109

Lindsey v Normet (1972) 405 U.S. 56,90....... 110

Louie Queriolo Trucking v Superior Court (1967) 252

a ee ey ere 236

Marbury v Madison (1803) 5 U.S. 137, 163 ..... 195

Marina v Wolfson (1982) 30 Cal3d 721, 730

sy ene ee Sen ee ee ete 126, 129, 131, 135, 136

Mathews v Eldridge(1976) 424 U.S. 319, 333 171,190

McKenzie v Kaiser-Aetna (1976) 55 Cal.App.3d 84,

RE GG ba kee ees ee Oe ee ree 140

Milliken v Meyer (1940) 311 U.S. 457, 463...... 143

Moore v Ogilvie (1969) 394 U.S. 814, 816....... 190

Mulkey v Reitman(1966) 64 Cal 2d 528, 538 130, 136

NAACP v Button (1963) 371 U.S. 415, 428. . 101, 214

Nebbia v New York (1934) 291 U.S. 502, 525... . 223

Nelson v Adams (2000) 529 U.S. 460, 464, 472

Arata! ice) PLY a lt aR 174, 176, 180, 181

Nielsen v Stumbos (1990) 226 Cal.App.3d 301, 303

a Re re aa Sean ie aig ere 179, 185

Obregon v Superior Court (1998) 67 Cal.App.4th 424,

rae Sree fe err, oe Seen 115

On v Cow Hollow Properties (1990) 222 Cal.App.3d

sores es a ak eG ao a ao AE ee ee ee Ola 139

Osborn v United States (1966) 385 U.S. 323, 333 156

Parsons v Superior Court of Marin County (2007)

849 Cai. Anp.4™ Supp. 1,6... . 6... 0.66 cece 110

Pease v City of San Diego (1949) 93 Cal 2d 706, 710-

IMO ote Ree ta re gr ig ar Oe, eee 109

Pennoyer v Neff (1878) 95 U.S. 714, 732-733... . 149

People v Malveaux (1996) 50 Cal.App.4'* 1425, 1434

Ay SE AS lee a RC a ae PE SEN 233

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

err rr ee re re 167, 168, 169, 174, 188, 195

Reitman v Mulkey (1967) 387 U.S. 369, 371, 377,

| TET eee TT Teer Tre ee Te RT er See ee 126, 127

Romer v Evans (1996) 517 U.S. 620, 6383 ....... 127

St. Louis, Iron Mountain & Southern Railway Co. v

Wynn (1912) 224 U.S. 366, BGl ... wc cece 138

Santisas v Goodin (1998) 17 Cal 4th 599, 614 139-142

Schweiger v Superior Court (1970) 3 Cal 3d 507, 514

Tee eres re eee eee ee

Scott Co. v Blount (1999) 20 Cal 4t® 1103, 1109. .141

Serrano v Unruh (1982) 32 Cal 3d 621, 635..... 165

Shelley v Kraemer (1948) 334 U.S. 1, 14, 20 133, 136

Simmons v Superior Court (1950) 96 Cal.App.2d 119,

RR ala go a te eC at een ere ar er ee ae one 236

Singleton v Wulff (1976) 428 U.S. 106, 112-116

Berk ae ile tries anna 167, 169, 171, 176, 182, 195, 198

Sioux City Bridge Co v Dakota County (1923) 260

oe ee ea ae ee re eee 160

The 1880 Corporation v Superior Court (1962) 57 Cal

SP once eC. ty Gh, renal ted, BO Or ee 108

Townsend v Superior Court (1998) 61 Cal.App.4*

3601, BOB EGRO «os 06065555555 ee 114, 115

20th Century Insurance Co. v Choong (2000) 79 Cal.

Rip. 4 T2164, B80 t kc keene eee eel eee 182

United Investors Life Ins. Co v Waddell & Reed Inc

(2005) 125 CalApp.4th 13803-1304.............. 183

United States v Buffalano (1984) 727 F.2d 50, 54 218

United States v Fowlie(1994) 24 F.3d 1059, 1069 1438

United States v Haas (1978) 583 F.2d 216, 220. . 205

United States v Mississippi (1965) 380 U.S. 128, 132

(ewe eee ee eee eee 105

United States v Neisender (1984) 590 F.2d 1269,

jh gb 2) yg). Ser mnie SAA tO hy Co oe! 190

United States v Russell (1921) 255 U.S. 138, 143

re PA rg yr eae 156, 205, 218

United States v Sanchez-Lima (1998) 161 F.3d 545

cuca 64 ek awe bee ee re ee 143

United States v Silverman (1984) 745 F2d 1386,

BOO). 6 ine k a3 12444 e eee 156, 204

United States v Walasek(1975) 527 F2d 676, 680 161

Universal Oil Products Co. v Root Refining Co.

(1966) 326 U BS. 376, 680... ....3+.+0 2 een 98

Vadas v Sosnoski (1989) 210 Cal.App.3d 471, 474-

Ee 179

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

CE re 174, 214, 232

Walters v Marler (1978) 83 Cal.App.3d 1, 27-28 . 140

Warth v Seldin(1975) 422 U.S. 490, 504 171-182, 196

Webster v Sowders (1988) 846 F.2d 1032, 1040. . 219

Windsor v McVeigh (1876) 93 U.S. 274, 277. 165, 175

World-Wide Volkswagen Corp. v Woodson (1980) 444

RO EN, 5 wt tt ct ee eee 142, 149

Xuerab v Marcus & Millichap, Inc. (1992) 3 Cal.App.

ES nae 138

Yick Wo v Hopkins (Sheriff) (1886) 118 U.S. 356,

ge0-a6/, 369-370, 373-374. ........0cs ees 200, 204

Ziello v Superior Court (1999) 75 Cal.App.4 651,

te te ees 179, 181, 184, 192

UNITED STATES CONSTITUTION

ee | 101, 117, 214

SS | 208

Sixth Amendment...... 116, 144, 148, 149, 150, 234

seventh Amenament............cccccevsccr 120

Fourteenth Amendment.101, 131, 137, 144, 149, 208

UNITED STATES CODES

18 U.S.C. § 1503 (Obstruction of justice)

ee er re ee 156, 161, 190, 191, 205, 218

CALIFORNIA STATUTES

AB 1400 (January 1, 2006) (Arbitrary discrimination

Pe ee er PE Pere oF oe 129, 135, 136

California Business & Professions Code Sec 6068(d)

(Attorney ethical behavior).............. 114, 218

California Civil Code Sec 51 (Unruh Fair Housing

Civil Biemte ACO)... onic cc csces 128, 129, 130, 135

California Civil Code Sec 1717 (Reciprocity required

for contractual attorneys fees)........ 139, 140, 141

California Civil Code Sec 1942.5(a) (Landlord’s

retaliatory eviction burden of proof)........... 132

California Code of Civil Procedure Sec 425.16(a)

(Redress of grievances court access)........... 134

California Code of Civil Procedure Sec 703.560(b)

(Factual basis for opposing Claim of Exemption). 179

California Code of Civil Procedure § 703.580(a)&(c)

(Amendment of a Claim of Exemption). .... 175, 178

935

California Code of Civil Procedure Sec 902

(Agerieved party’s right to appeal)... . 173, 183, 184

California Code of Civil Procedure Sec 916(a)

(Appeal stay of lower court action)......... 184, 215

California Code of Civil Procedure Sec 917.1(d) (No

appeal bond for fees-only order)....... 179, 184, 192

California Code of Civil Procedure Sec 1086

(Mandamus to preserve rights)........... 233, 237

California Code of Civil Procedure § 1170.5(c),(d),(e)

&(f) (UD trial delay rules)................... 106

Calif. Code of Civil Procedure § 1170.7 (5 day notice

for unlawful detainer summary judgment) . 124, 138

California Code of Civil Procedure Sec 2016.040

(Discovery meet & confer mandate)........... 107

California Code of Civil Procedure Sec 2033.220(a)

(Complete discovery answers)................ 117

California Code of Civil Procedure Sec 2033.710

(Unlawful Detainer interrogatories)....... 116, 117

California Evidence Code Sec 352 (Evidence more

time consuming than probative)...... 145, 149, 152

California Evidence Code Sec 1200 (Hearsay

evidence exclusion)................. 146, 149, 153

Proposition 14 (Initiative Constitutional Amendment

to authorize discrimination).......... 126, 130, 137

FEDERAL COURT PROCEDURES

Evidence Rule 807 (Exceptional circumstances

where hearsay is admissible)................. 143

CALIFORNIA RULES OF COURT

Rule 8.500(c) (Prior reconsideration required to seek

review of lower court issues and facts findings). . 229

Rule 8.708 (15-30 day period for filing, Appellate

Branch rehearing consideration).......... 166, 226

Rule 8.750(a) (Notices of Appeal sufficiency) 175, 179

Rule 8.751(a) (Deadlines for Notices of Appeal). . 202

Rules 8.1005 & 8.1008 (Transfer to and Certification

| er 234

CALIFORNIA CANONS OF JUDICIAL ETHICS

Canons 1 & 2A (Fairness, evenhandedness and

reputation of the judiciary).............. 206, 211

CALIF. COMM. on JUDICIAL PERFORMANCE

Inquiry #177 (February 16, 2006) re Judge Elaine

IS ho -p'c ate as Stee a oes we os 206, 209, 211, 230

WEBSITE INFORMATION

California Attorney Guidelines of Civility & Profes-

sionalism (www.calbar.ca.gov) #9............. 114

California Court’s Online Self Help Center

(www.courtinto.ca.gov/selfhelp)............... 102

SONOMA COUNTY SUPERIOR COURT RULES

Local Rule 2.2A (Unlawful detainer trial date setting

preconditions and input from parties).......... 101

Local Rule 2.2D (No tentative rulings in Unlawful

Detainer actions) .............. 157, 158, 164, 167

Local Rule 2.2E (Unlawful Detainer attorney fees

eR ae or ee re ewe een 142, 189, 236

Local Rule 4.10D (Consulting re case statement). 125

Loca! Rule 4.10H(1) (Jury instructions due before

first witness is sworn).............. 125, 126, 132

Local Rule 5.5 (Obligation of maker of motion to

meet and confer with opponent).............. 157

Local Rule 5.7D (Meet and confer obligation, when

an Ex Parte application is opposed)....... 112, 125

Local Rule 18.8 (Face sheet Notice of Hearing) .. 156

STANDARDIZED FORMS

Form UD-106 (interrogatories 71.7 & 77.1)

Ne A DADE te aes Rte Te oye aA 112, 114, 117, 126, 152

Form UD-150 (Trial date setting request)

Pinte PR er See RAL 100, 112, 119, 121, 122, 142, 167

SUMMARY OF FEDERAL ASPECTS

OF DEFENDANTS’ CLAIMS

All (page:line) references are to Defendants’

Stay Motion of February 9, 2009

1. Sonoma County tenants deserve Equal

Protection in the trial date setting process

Because tenants are not allowed the customary

five days after the landlord makes his request

to provide input on selection of a trial date,

Plaintiffs counsel Charles Jensen successfully

deprived Defendants of any opportunity for

discovery and thereby violated the mandate of

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

“The trial of a lawsuit is not a game where the

spoils of victory go to the clever and technical

regardless of the merits.” In Kulko v California

Superior Court (1978) 436 U.S. 84, 101, the U.S.

Supreme Court invoked Due Process consider-

ations to ‘reverse the California Supreme

Court’s refusal to quash improper service.

Depriving a defendant of an opportunity for

fact-finding is a denial of Due Process, so this

matter is subject to federal review. Because

document fraud was a key element in this

deprivation of Due Process, Universal Oil

Products Co. v Root Refining Co. (1946) 328 U.S.

575, 580 authorizes an independent federal

investigation of fraudulent tactics.

Recent Appeal briefing focuses on how the

Sonoma County process operates:

Charles Jensen asserts: “Counsel for

Respondent filed his request for trial at the

window and was given (he did not request a

specific date) the first possible trial date. This

is how the Sonoma County Superior Court

conducts “his process. If a “counter at-issue: is

filed the Court can/has changed the date for

trial if that is what is called for.” (Reply Brief

at 3) Charles Jensen knows why this process

prejudices defendants in unlawful detainer

actions. On June 25, 2007 he said to Judge

Rushing: “Your Honor, discovery in an

unlawful detainer is based on the date first

set for trial. That is the language of the code

section.” (Transcript at 162:13-15, emphasis

added.) (15:1-11)

Defendants immediately challenged the trial

date setting process, and the role in it of Charles

Jensen’s fraudulent claims re the service of

Plaintiffs trial-date setting request (14:11-25, 15:13-

23). However, this drew a rebuke from Judge Gary

Nadler, who warned Defendant for questioning the

Court’s trial setting process:

We need to have an understanding with each

other, Mr. Halliwell, you are now bordering in

an area with your argument that I find to be

disrespectful to this Court, and I’m going to

100

warn you right now, sir, whether you are a

lawyer or you are not, you are going to show

this Court respect. By making accusations to

the Court such as accusations of unfairness or

something along those lines, sir, that is

bordering on contempt of court. So I’m going

to admonish you right now, you need to hear

this very clearly, I will not sit here and I will

not listen to those sorts of arguments. If you

continue to make arguments like that, then I

will find you in contempt of court. If I do that,

sir, you are going to be facing the possibility of

fines and/or jail time for each instance of

contempt, okay? (Transcript at 16:15-17:1)

(15:24 to 16:5)

Defendant indicated that he didn’t mean to

show any lack of respect for court employees, but

stood by his assertion that the trial setting

procedure was manifestly unfair, and cited

aeeedionaed proof (provided by a window clerk in

Room 107J) that showed the falsity of Charles

Jensen’s service ciaims. (16:6-17)

Leaving aside the serious matter of how Mr.

Jensen’s BRIGHT BLUE form UD-150 could

have been overlooked in the Case File on June

11, 2007 (when Defendant Mike Halliwell had

a deputy clerk photocopy al! fourteen pages in

101

the file not submitted by Defendants, and

initial “C.O.” to verify that there were only

these fourteen pages not submitted by

Defendants, and so attested in his affidavit of

that date), the fact remains that form UD-

150 and every applicable precedent

contemplates that the other side will

have up to five days to submit a Counter-

Request BEFORE any decision is made

setting the case for trial. Mr. Charjes

Jensen has somehow twisted the mandate of

Local Rule 2.2A(1) which allows “a request to

set the time of the trial” only “when a case is

ready for trial,’ NOT AS A DEVICE TO PRE-

VENT A CASE FROM EVER BEING READY

FOR TRIAL BY PRECLUDING ALL DISCO-

VERY. Mr. Jensen somehow secured a deci-

sion on a trial date without the opportunity

for input from the other side explicitly

affirmed in Local Rule 2.2A(2). (16:18-25)

2. Defendants have a First Amendment (Court

Access) right to enforce service rules

As the U.S. Supreme Court affirms in NAACP v

Button (1963) 371 U.S. 415, 428 effective access

to the courts for resolution of ones grievances,

is a First Amendment Freedom, protected

against state infringement by the Fourteenth

Amendment. Perjury relating to service of

process is a dagger to the heart of proper

invocation of a court’s jurisdiction, which is a

right no state has legitimate power to destroy.

Simply ignoring Defendants’ well documented

charges of perjury re the service of essential

102

documents, violates the mandate of Brinker-

hoff-Faris Trust & Savings Co. v. Hill (1930) 281

U.S. 673, 682: “Whether acting through its judi-

ciary or through its Legislature, a state may not

deprive a person of all existing remedies for the

enforcement of a right, which the state has no

power to destroy, unless there is, or was,

afforded to him some real opportunity to

protect it.”

Defendants pointed out how Plaintiff's false

service claims deprived them of 10 days of

preparation time, ind cited procedures set forth by

the California Courts Online Self-Help Center

(www.courtinfo.ca.gov/selfhelp) in their attempt to

secure action on their challenge to the adequacy of

service before having to deal with other aspects of

the case (17:10 to 18:14).

Defendants did not seek any affirmative relief

in their Answer, only restoration of ten days of

preparation time and discovery they were

cheated out of by false service claims. Defen-

dants never had any channel to request affir-

mative relief, because Judge Nadler would not

allow them to get onto his Law and Motion

Calendar, and the Ex Parte channel offered no

opportunity to rebut misrepresentations by

103

the opposing party and no opportunity to

explain the situation via oral argument.

(18:15-21)

Defendants reminded Judge Nadler of the

central focus of their June 4, 2007 answers (WITH

RESPECT TO THE SUMMONS AND COMPLAINT

THAT TRIGGERS THE DEADLINE FOR AN

ANSWER TO AVOID A DEFAULT JUDGMENT,

THE OCCUPANTS OF 1041 COPELAND CREEK

DRIVE HAVE RECEIVED NOTHING IN PERSON

OR SO FAR IN THE MAIL. CR-008), which qualified

their involuntary participation in the case as a

special appearance. They also explained how

Charles Jensen’s misrepresentations about service

tried to obscure Defendants’ proper status in the

case, and Judge Nadler assured them that his mind

was still open with respect to “any findings akcui

service, whether it “as proper or not.” (18:24 to

104

Defendant Michael Halliwell responded: “I

had a motion to show that they engaged in

perjury in the process of getting this case

started, and that operated to deprive me of

any discovery by this manipulation of the time

line.” (Transcript at 443:3-6) When she

commented on this issue, Judge Rushing said:

“Such things as requests for finding Mr.

Jensen, for example, guilty of perjury or some

things that have to do with the service of

process, J ruled that those, either they’re

irrelevant, inadmissible in this trial or, per

timing, it’s too late.” (Transcript at 446:21-25)

Judge Rushing added: “In the Court’s view,

the defendants were trying to go backwards.

My job is to move the case forward.”

(Transcript at 447:1-2)

Judge Rushing seemed to miss the point that

Defendants were only trying to get back

to where Judge Nadler had left this

issue. Judge Nadler told the parties: “I’m

not making any findings right now, I

haven’t made any findings about service,

whether it was proper or not, I don’t

want you to have that impression.”

(Transcript at 14:2-5) (19:22 to 20:5)

Defendants also cited evidence of how the

alleged timing of “personal sesce” (on June 2, 2007

at 7:45 PM) and the June 4, 2007 postmark or

service by mail, showed the falsity of Charles

105

Jensen’s service claims. Defendants also cited their

June 11, 2007 letter to Plaintiffs counsel, pointing

out the defects in service and their futile request for

corrective action. (20:6-12)

3. Disregarding caselaw defining a “special

appearance” is simply intolerable

The stubborn refusal of the Sonoma County

Superior Court to consider evidence of

perjured-proofs of service, in the context of a

tenant’s right to a continuance to allow

discovery in an unlawful detainer action,

resembles the quality of justice available to

Blacks in Mississippi courts half a century ago.

(See United States v Mississippi (1965) 380 U.S.

128, 1382, which struck down a literacy test

which only 5% of voting age blacks were able

to pass, wherein “an applicant for registration

had to be able to read and copy in writing any

section of the Mississippi Constitution, and

give a reasonable interpretation of that section

to the county registrar.”) Chambers vu Nasco,

Inc. (1991) 501 U.S. 32, 44 cites Hazel-Atlas

Glass Co. v. Hartford-Empire Co. (1944) 322 U.S.

238, 245; discussing the severity of damage

from fraud, if a court were to simply turn a

blind eye to it: “This ‘historic power of equity to

set aside fraudulently begotten judgments,’ is

necessary to the integrity of the courts, for

‘tampering with the administration of justice in

[this] manner... involves far more than an

106

injury to a single litigant. It isa wrong against

the institutions set up to protect and safeguard

the public.”

Defendants cite Schweiger v Superior Court

(1970) 3 Cal 3d 507, 514, in support of the priority of

substantial justice over rigid application of the

summary procedure; for Unlawful Detainer actions,

and their willingness to comply with the procedures

to set forth in CCP Sec 1170.5(c) through 1750.5(f) to

protect Plaintiff's interest in assuring the payment

of accumulated rent. They pointed out that Plaintiff

was hiding behind expedited consideration pro-

cedures to avoid clarifying a “THIS TERMINATION

IS FOR CAUSE” assertion in his 60-Day Notice.

(20:24 to 21:21)

Michael Halliwell gave Defendants’

perspective on the service issue: “We do not

challenge the jurisdiction of this Court and

service is adequate to establish a jurisdiction,

but there are two alternatives under unlawful

detainer law. Under one we have five days.

Under the other we have 15. We allege and I

107

need to pursue this matter in some detail but

we allege they in fact said in open court that

they had personally served us, and this is

simply not true, and this document does not

support his sworn testimony, but instead

supports a different form of service. There-

fore, we were robbed of ten days.” (Transcript

at 158:26 to 159:8) After complaining of

Charles Jensen’s manipulations to preclude

discovery, Michael Halliwell continued: “And

his only defense to our discovery request is

that it is too late; therefore, this proof of

service on the matter of original service is

very much relevant inasmuch as the ten days

would have allowed us to do discovery.”

(Transcript at 159:13-16) (21:24 to 22:6)

Defendants describe how Charles Jensen's

completely and permanently severing all communi-

cations made it impossible for Defendants to lay a

foundation for a motion re compulsory discovery

pursuant to CCP Sec 2016.040. They also note how

Jensen’s own obstructionism was the reason why

Defendants were unable to utilize the normal

process 1n a special appearance of filing a motion to

quash service. (22:7-18)

108

Since the service issue was clouded by per-

jured Proofs of Service, Defendants were in no

position to file an immediate Motion to Quash

(which would have required a demonstration

that an “officer of the court” was acting in a

fashion that would make him vulnerable to

being drummed out of the legal profession).

The full extent of Charles Jensen’s perjury did

not become evident until documents missing

from the Case File on June 11, 2007 (CR-025,

CR-242, and CR-290 to CR-291) surfaced at

trial. (CR-1362-1363) (22:19-22)

Defendants also note how Judge Rushing

refused to consider the effects of lying by Charles

Jensen, and ruled: “If this is a motion for

continuance, the motion is officially denied, and so

I'd like to move on to jury selection issues.”

(Transcript at 1061:23-25) (22:23 to 23:7)

In The 1880 Corporation v Superior Court

(1962) 57 Cal 2d 840, 843 the court ruled that:

“Interrogatories which are relevant to the

subject matter of a motion to quash are

consistent with the character of a proceeding

had upon a special appearance.” The opinion

notes that a party's effort to enforce its

jurisdictional rights under the Code of Civil

Procedure did not constitute a general

appearance, because a contrary result would

109

“emasculate” the statute. Our State Supreme

Court therefore held that objections laying the

foundation for a motion to quash, do not

constitute a general appearance.

Pease v City of San Diego (1949) 93 Cal.App.

2d 706, 710-711 observes: “The ground stated

was that the defendant city was not properly

before the court and obviously the city did not

intend thereby to appear generally.” Defen-

dants in Paxinos v Halliwell & Parker never

sought “any relief which can only be granted

upon the hypothesis that the court has

jurisdiction of his person,” as Pease requires to

constitute a general appearance. Moreover,

Pease (93 Cal. App. 2d at 712) cites this exact

parallel with the position here of Defendants

Parker and Halliwell: “The city did not

demand that the action proceed to trial, or

consent to the trial thereof.” Defendants also

invoked the holding of Frohman v Bonelli

(1949) 91 Cal.App.2d 285, 291 that “an

appearance made only on the hypothesis that

the party is not properly before the court is a

special appearance and that to hold otherwise

would emasculate the statute.” (23:9 to 24:2)

Defendants also cite their long-standing right

under Lacrabere v Wise (1904) 141 Cal 554, 556, to

full adjudication of the service issue, according to

established rules of evidence. (24:3-8)

110

Parsons v Superior Court of Marin County

(2007) 149 Cal.App.4* Supp. 1, 6 notes this

basic principle: “Strict compliance with the

specifically prescribed notice conditions is a

prerequisite to invoking the summary

procedures of unlawful detainer.” Parsons

also notes that rules for a party’s challenging

the sufficiency of service should not be applied

so as to construe this as a general appearance,

because this “moots the very point he is seek-

ing to raise.” (Delta Imports, Inc. v Municipal

Court (1983) 146 Cal. App. 3d 1033, 1036.)

(24:9-14)

4. Charles Jensen sabotaged discovery from

the outset by refusing to confer

~ ——_—

Discovery is certainly an essential ingredient

in making the process of unlawful detainer

adjudication work effectively for a tenant who

is being wrongfully evicted. The special needs

of litigation involving one’s domicile are dis-

cussed by Justice Douglas in Lindsey v Normet

(1972) 405 U.S. 56, 90: “the home, even though it

be in the slums, is where a man’s roots are. To

put him in the street [without timely consider-

ation of an essential element of his defense]

deprives the tenant of a fundamental right

without any real opportunity to defend. Then

he loses the essence of the controversy, being

given only empty promises that somehow,

somewhere, someone may allow him to litigate

the basic question in the case.” If governing

state precedents had been followed in this

case, it could never have degenerated into the

Sid

1% year long ordeal it has become. Interna-

tional Shoe Co. v Washington (1945) 326 U.S.

316, 319 discusses the scope of Fourteenth

Amendment limitations on State legal proce-

dures: “Whether due process is satisfied must

depend, rather, upon the quality and nature of

the activity in relation to the fair and orderiy

administration of the laws which it was the

purpose of the due process clause to insure.”

Defendants’ page-by-page requests to clarify

the June 11, 2007 Case File notes:

The date “30 Mar 07” on the previcus page

may be significant, because the attachment

sets a Meadow Pines Homeowners Association

hearing date and time of “Monday, March 26,

2007 at 6:30 pm.” There is a presumption in

law that evidence in the possession of a party

would be divulged if that evidence was helpful

to his or her case. The results (if indeed the

hearing took place as scheduled) are unknown

to Defendants, in spite of their efforts to

secure this information from the Meadow

Pines Homeowners Association. This page is

a February 20, 2007 NOTICE OF HEARING,

not any sort of finding. The VIOLATION

REPORTED is “Ongoing threatening behavior

of your tenant toward other residents.” Defen-

dants have tried without success to learn the

name of the person who made this report or

the nature of the conduct alleged by this

anonymous person. Whoever the complainant

turns out to be, the nature of the complaint is

the pivotal factor in Plaintiffs case. The pos-

11i2

ture of total stone-walling by Plaintiff in this

cas :, again supports the legal presumption

that evidence on this point is not favorable to

Plaintiff. (CR-029).

Charles Jensen concealed a report on a March

26, 2007 Homeowners’ Association meeting

which James Parker was not allowed to

attend, and violated discovery guidelines by

severing communications to prevent Defen-

dants from initiating procedures necessary to

secure this information. [When Defendants

used ex parte applications to try to secure an

opportunity for discovery, Plaintiffs counsel

violated Local Rule 5.7D by refusing to “meet

and confer” to clarify this situatiorn.] Jensen

also sidetracked Defendants’ efforts to use

Form Interrogatories 71.7 and 77.1 to find out

about alleged “ongoing threatening behavior

of your tenant toward other residents” and

falsified and circumvented the process

mandated by Form UD-150 for trial date

setting. (25:2-16)

Defendant explained to Judge Nadler why the

presumption that a lawyer is telling the truth

prevented the tenants facing eviction from filing

motions to enforce procedural rights without first

establishing a factual foundation on the service

issue. Because of the Sonoma County policy of

Boe ee

giving the landlord the first available trial date,

discovery was impossible, so Plaintiff had a “heads I

win, tails you lose” situation. (25:17 to 26:14)

James Parker also complained, “I had been

trying for six months to try to find out what

the issue is without any success.” (Transcript

at 11:20-22) Since Plaintiffs documents

relating to his request for a court trial were

missing from the case file, Defendants

protested the tactics of Plaintiffs attorneys in

their June 11, 2007 Request for Jury Trial: In

the most literal sense of this expression,

they are “trying to pull a fast one.” It is

difficult to imagine how this case can be fairly

adjudicated, unless Plaintiff is forced to

divulge the facts on which he relied in making

his decision to evict. The sort of “Star

Chamber” proceedings apparently utilized by

the Meadow Pines Homeowners Association,

wherein the complaint was anonymous, its

contents confidential and Mr. Parker had no

right to confront his accuser, nor to offer any

sort of defense, nor to learn what in fact

transpired in these proceedings, if any action

was indeed taken (pursuant to the notice

appended to Plaintiffs complaint alleging

“threatening behavior”); cannot be allowed to

stand as a basis for eviction. (CR-021) (CR-

1138-1139) (26:15-21)

On July 26, 2007 Charles Jensen asserted

that “counsel was under no obligation to

114

educate the defendants in counsel’s tactics at

trial.” In fact, Greyhound Corp. v Superior

Court (1961) 56 Cal 2d 355, 376 and Chronicle

Pub. Co. v Supertor Court (1960) 54 Cal 2d

548, 561 proclaim that legislatively mandated

legal procedures are :ntended to do away

“with the sporting theory of litigation — name-

ly, surprise at the trial.” Moreover, 1t was

Charles Jensen’s false claims with respect to

service which allowed him manipulate the

time line to avoid providing the answers

required in Form Interrogatories 71.7 & 77.1

(which were invoked in substance in Defen-

dant’s filing of June 17, 2007 and formally

presented on June 21, 2007). (26:22 to 23:5)

Charles Jensen flouted Business &

Professions Code Section 6068(d) and California

Attorney Guidelines of Civility and Professionalism

(calbar.ca.gov.) #9:

Attorneys are encouraged to meet and confer

early in order to explore voluntary disclosure,

which includes identification of issues,

identification of persons with knowledge of

such issues, and exchange of documents.

Townsend v Superior Court (1998) 61 Cal.App.

4% 1431, 1435 notes: “The Discovery Act

requires that, prior to the initiation of a

motion to compel, the moving party declare

that he or she has made a serious attempt to

L235

obtain ‘an informal resolution of each issue.”

Obregon v Superior Court (1998) 67 Cal.App.

4th 424, 434 observes:

As Townsend notes, it is a ‘central precept’ of

the Civil Discovery Act of 1986 that discovery

“be essentially self-executing.” (61 Cal.App.4th

at 1434.) Thus reasonable and good faith

efforts at informal resolution of discovery

disputes are no doubt a key part of the

discovery system. It is also a central precept

of the discovery system, however, that “f.,0

order to accomplish the various legislative

purposes [of the discovery law], the several

statutes must be construed liberally in favor

or disclosure. . .” Greyhound Corp. v Superior

Court (1961) 56 Cal 2d 355, 377; Emerson

Electric v Superior Court (1997) 16 Cal 4th

Ei0t, 1iGs.

Greyhound Corp. v Superior Court (1961) 56

Cal 2d 355, 376 observes: “Certainly, it can be

said, that the Legislature intended to take the

‘game’ element out of trial preparation while

yet retaining the adversary nature of the trial

itself. One of the principal purposes of

discovery was to do away ‘with the sporting

theory of litigation — namely, surprise at the

trial.’ (Chronicle Pub. Co. v Superior Court

(1960) 54 Cal 2d 548, 561.)” (27:3-19)

5. Charles Jensen blamed Defendants for HIS

refusal to facilitate discovery

If the State Legislature had not intended for

116

discovery to be a viable possibility in Unlawful

Detainer actions it would not have enacted

CCP Sec 2033.710 to authorize the Judicial

Council to develop Form Interrogatories, that

are clearly intended to assure a solid

foundation of facts for most landlord-tenant

controversies which could be anticipated.

Charles Jensen’s Filing a February 20, 2007

Notice of Hearing as an attachment to his

March 28, 2007 60-Day Termination Notice,

when the Report for the March 26, 2007

hearing was in hand was a clear defiance of

the Best Evidence rule and an obvious tactic to

surprise Defendants with the hearing Report

when it was too late for them to properly

evaluate its credibility. This tactic to deny the

underlying facts to Defendants and to the

court was every bit as premeditated as the

patent subterfuge in Hazel-Atlas Glass Co. v

Hartford-Empire Co. (1944) 322 U.S. 238, 251,

where Justice Roberts observes: “No fraud is

more odious than an attempt to subvert the

administration of justice. The court is

unanimous in condemning the transaction

disclosed by this record. Our problem is how

best the wrong should be righted and the

wrongdoers pursued.”

Defendants’ most important Federal grievance

is the infringement of the Bill of Rights by prevent-

ing James Parker from finding out the nature of the

charges against him (in violation of the Sixth

ne Oe

Amendment), and punishing his petitioning for the

redress of grievances (in violation of the First

Amendment). (28:5-15)

There is no such thing as a legitimate “sneak

attack” in the law, and the spirit embodied in

CCP Sec. 2033.220(a) should be reflected in

discovery and every other aspect of presenting

the facts of a case: “Each answer in response

to requests for admission shall be as complete

and straightforward as the information

available to the responding party permits.”

The California Judicial Council (under the

mandate of CCP Sec. 2033.710 in developing

UD-106) has sought to make sure that a

landlord’s “hidden intentions” do not remain

so, with Form Interrogatory 77.1 which says:

“State all reason that the NOTICE TO QUIT

was served or that defendant's tenancy was

not renewed and for each reason [details

omitted]. Form Interrogatory 71.7 says: “Has

any PERSON ever reported any nuisance or

disturbance at or destruction of the RENTAL

UNIT or PROPERTY caused by the

defendant or other occupant of the RENTAL

UNIT or their guests? If so, for each report

state [details omitted].

Charles Jensen asserts with respect to

Defendants: “They do not however state why

they delayed in serving their rea ~“sts. They

only make hearsay accusations t; +t counsel

evaded them. All they had to do was serve the

118

request.” (Reply Brief at 5) This does not

square with this aspect of Defendants’ search

for the results of the March 28, 2007 Hearing

described in Defendants’ Consolidated Brief

“It involved giving Defendants’ ‘Request to

Bar Surprise Evidence (CR-106) which mostly

consisted of Form Interrogatories 71.7 and

77.1 (CI: 0180), directly to Kadin Blonski

while the parties waited for Judge Nadler’s

decision on restoration of their right to a jury

trial; when Mr. Blonski passed this proposed

evidence sanction to Charles Jensen, he

tersely remarked, ‘This isn’t the law.” (4:23-

25). This is indeed hearsay, but Charles

Jensen does not contest the reliability of it,

and it is certainly more reliable than the

anonymously compiled second- and third-hand

complaints in Plaintiffs Exhibit #5 (CR-144)

In Fairmont Insurance Co. v Supertor Court

(2000) 22 Cal 4% 245, 251, the California

Supreme Court speaks approvingly of the

resetting of the discovery time clock endorsed

in Beverly Hospital v Superior Court (1993) 19

Cal.App.4 1289, 1293: “It is also consistent

with the legislative history of the provision

and the Civil Discovery Act of 1986 of which it

is part, which indicate that the purpose of the

statute was to eliminate a source of discovery

abuse and unnecessary trial delays caused by

parties seeking continuances or postpone-

ments of trial for the sole purpose of extending

the time for discovery.” There is nothing more

certain in the case at bar than that Charles

Jensen’s no-notice June 19, 2007 challenge to

119

Defendants’ right to a jury trial was NOT

motivatea “for the sole purpose of extending

the time for <liscovery.” [Appeal Briefing at

CR-1491 to 1482]. (28:16 to 29:11)

Charles Jensen lausxched a tirade about

“somebody who is uneducated, doesn’t know what he

is doing, and doesn’t choose to follow the law” to

divert Judge Rushing from his obstructing discovery

to achieve surprise at trial, in violation of Greyhound

Corp v Superior Court (1961) 56 Cal 2d 355, 376.

(29:13 to 30:5)

Because of setting the trial date on the basis

of fabrications embodied in Charles Jensen’s Form

UD-150, the only way Defendants’ could have

secured information about the results of a March 26,

2008 Homeowner’s Association hearing (referenced

in Plaintiffs 60-Day Notice to Quit and withheld

from James Parker for two months) is if the landlord

supplied these hearing results voluntarily. (30:6-19)

120

After the original June 19, 2007 trial date was

disrupted by Charles Jensen’s frivolous challenge to

Defendants’ right to a jury, Fairmont Insurance Co.

vu Superior Court (2000) 22 Cal 4th 245,246-247 and

Beverly Hospital v Supertor Court (1993) Cal.App.4th

1289, 1293, supported requiring Plaintiff to answer

to Form Interrogatories 71.7 & 77.1. (30:20 to 31:3)

6. Putting right address in wrong place on

Form UD-150 was basis of jury denial try

How any judge with his priorities straight

could, even temporarily, give a “misplaced”

address (which everyone knew already),

priority over tenants’ Seventh Amendment

right to a jury trial, is a mystery. After having

rectified this error, Judge Nadler showed an

extreme lack of fundamental fairness in deny-

ing Defendants a meaningful opportunity for

input on jury instructions (on the absurd

ground that they should have used the time

they had to devote to preparing a reconsider-

ation motion to restore their right to a jury,

into preparation of jury instructions, for what

was scheduled at the time to be a court trial).

This clearly brings into play the mandate of

Broad River Power Co. v South Carolina (1930)

281 U.S. 537, 540: “Whether the state court has

denied to rights asserted under local law the

121

protection which the Constitution guarantees 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 nonfederal 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,

constitutional obligations may not be thus

evaded.”

Charles Jensen challenged Defendants’ June

14, 2007 Jury Trial Request:

[This challenge pointed out that Defendants’

jury request form failed to answer two ques-

tions (because Charles Jensen had never sent

them a copy of his request for a court trial, as

he was required to do), the estimated duration

of the trial and whether Jensen’s request had

asked for a court reporter. Charles Jensen

then gave his main objections:]

It goes on to say, too, Your Honor, under the

rules that are required for the preparation of

the “at issue” itself that your U.D. Form 150,

which is what you hold in your hand, at

paragraph number two, must identify the

address in question. It goes on in that same

form in paragraph number five as to “any

dates you are not available, the reasons for

the unavailability.”

My argument is very simple, Your Honor.

Were I to bring such an “at issue” deficient in

L22

any one of those four, it would not be accepted

at the clerk’s office for filing. I am not here to

point fingers at Connie, the Court’s judicial

assistant. She is not empowered or trained in

the acceptance of forms. She accepted it as I

feel she should have, in the form in which it

was presented. Nevertheless, Your Honor, if I

were to bring an at issue memorandum

deficient in any one of those, it would not be

accepted. And at this time because the at

issue memorandum setting forth the request

for a jury trial is void and deficient on its face

in four separate instances, that the “at issue”

be stricken. (Transcript at 6:7-26) (31:20 to

32:7)

After Defendant Michael Halliwell explained

why he could not supply some of the information left

off of his Form UD-150 Counter-Request (because

the original request for a trial date was missing from

the court file), he pointed out that he had followed

the guidance of Judge Nadler’s judicial assistant

(with respect to the placement of the tenants’

address and Defendants being available to start the

trial whenever the necessary preliminaries were

completed). (32:13 to 33:18)

123

Judge Nadler gave his decision on Charles

Jensen’s motion for a court trial:

Okay, in trial we are. Let me start off with

ruling on some motions that were made this

morning. The motion to strike the counter-

demand is granted, and that will be the

counter-demand for a jury trial, based on the

deficiencies of the demand. (Transcript at

31:6-11) (CR-1148)

At the scheduled 9:00 AM time for the start of

proceedings Michael Halliwell presented a

copy of Defendant’s motion for reconsideration

of striking their demand for a jury trial to op-

posing counsel and to Judge Nadler’s judicial

assistant. Judge Nadler entered the court-

room at 9:37 AM, and addressed the parties:

I have the motion for reconsideration of the

Court’s order vacating or striking the demand

made by the Defendants in this case, and the

reason for the delay has been that the Court

has been reading the pleadings, re-evaluating

the Court’s decision in this case, and the

Court has reached the following conclusion,

which will come as some surprise.

In reality the argument is that the counter-

request left information out, and that it

should be construed strictly as it would for the

original filing, and if so construed the clerk

would not file it, therefore, the Court should

strike the counter-request. The argument

made by Defendants was that the information

124

that was left off of the counter request essen-

tially was information that was contained in

the original request. The law is clear that in

Unlawful Detainer cases a party is entitled to

a jury in most circumstances, almost all

circumstances, and the question then becomes

whether or not these defendants are or are not

entitled to a trial by jury.

It is convenient for the Court to consider the

realities of a jury trial in light of these

circumstances and to make a decision that

includes consideration of those realities. In

retrospect, and considering these issues, the

Court is inclined to grant the motion for

reconsideration in this case and allow this

case to go to a jury, reluctantly, but perhaps

that is the right thing to do. (33:19 to 34:10)

Defendants discuss the unfairness of Plain-

tiffs filing a summary judgment motion, without the

five days notice required by CCP Sec 1170.7. They

also point out that Plaintiffs time-consuming

summary judgment motion, made it especially

important that Defendants not be required to

provide their suggestions for jury instructions until

the time established by Local Rule 4.10H(1) “before

the first witness is sworn.” (34:21 to 35:15)

Judge Nadler ignored the complex pretrial

matters he had deferred from 6/18 to 6/19

(CR-082) as was made necessary by Charles

Jensen’s refusal to meet and confer as

required by Local Rule 5.7D (when he opposed

Defendants ex parte applications for proced-

urai relief), which Defendants expected to iron

out before any jury trial started on June 19'

(before Charles Jensen sidetracked everything

with two no-notice motions he read from his

own notes, without giving a copy to Defen-

dants). Thus he proclaimed:

Noon tomorrow is the Order, and the reason

for that, sir, is the rules require you to have

these papers [the other item was a joint

statement of the case, pursuant to Local Rule

4.10D, which could not be prepared until

Charles Jensen relented from his refusal to

confer with Defendants] prepared and ready

to go and should have had them prepared and

ready to go this week and did not do so.

(Transcript at 92:5-8) (35:16-22

{t turned out that the reason why a Friday

12:00 noon deadline for proposed jury instructions

was imposed, was to allow Judge Rushing’s Division

19 to shut down four hours before the normal 4:00

a *

17c

a we

PM closing time. Judge Nadler cut short Defen-

dants’ effort to cope with the various breaches of

statewide and local rules, by refusing to listen to our

final plea, saying: “I don’t want to hear it, Mr.

Halliwell, -I’m not the judge now.” (35:23 to 36:14)

It seems fundamentally unjust to Defendants

that Local Rules [4.10H(1)] can be swept aside

by “Court ordered deadlines” (which Judge

Nadler did by requiring proposed jury

instructions be submitted 72 hours before

they are required by Local Rules), without

providing an opportunity for self-represented

litigants to adjust to changes in the rules they

have gone to the trouble of learning, and are

doing their level best to comply with. (CR-

795:17-25) (86:14-17)

7. Scope of State and Federal protection

against arbitrary discrimination

Reitman vu Mulkey (1967) 387 U.S. 369, 371

invalidated Proposition 14, which said:

“Neither the State nor any subdivision or

agency thereof shall deny, limit or abridge,

directly or indirectly, the right of any person,

who is willing or desires to sell, lease or rent

any part or all of his real property, to decline

to sell, lease or rent such property to such

person or persons as he, in his absolute

discretion, chooses.” Reitman v Mulkey (1967)

127

387 U.S. 369, 377 rejected Prop 14 on federal

grounds because: “The right to discriminate,

including the right to discriminate on racial

grounds, was now embodied in the State's

basic charter, immune from legislative,

executive, or judicial regulation at any level of

the state government. Those practicing racial

discriminations need no longer rely solely on

their personal choice. They could now invoke

express constitutional authority, free from

censure or interference of any kind from

official sources.” Reitman v Mulkey (1967) 387

U.S. 369, 381 discussed the prohibited intent of

Prop 14: “The right to discriminate is now one

of the basic policies of the State. The Califor-

nia Supreme Court believes that the section

will significantly encourage and involve the

State in private discriminations. We have been

presented with no persuasive considerations

indicating that these judgments should be

overturned.” Romer vu Evans (1996) 517 U.S.

620, 633 affirms that equality requires impar-

tiality: “Central both to the idea of the rule of

law and to our own Constitution's guarantee of

equal protection is the principle that govern-

ment and each of its parts remain open on

impartial terms to all who seek its assistance.”

James Parker recalls his letters and conversa-

tion with landlord Gus Paxinos seeking his permis-

sion to attend Homeowners’ Association meetings

where his own complaints and disputes with

128

neighbors were to be discussed. Parker testified that

Paxinos never gave his permission, and observed

that when Michael Halliwell wrote to the landlord

supporting his co-tenant’s right to confront his

accusers, the landlord retaliated by issuing a three-

day eviction notice to Halliwell. (37:13 to 38:15)

Defendants’ June 11* filing also fleshed out

their anti-discrimination defense:

The Supreme Court ruled in Marina Point v

Wolfson (1982) 30 Cal 3d 721, 730:

Contrary to the municipal court’s conclusion,

the anti-discrimination provisions of the

Unruh Act are not confined only to a imited

category of “protected classes” but rather

protect “all persons” from any arbitrary

discrimination by a business establishment.

Un re Cox, 3 Cal 3d at p. 212.) In evaluating

the legality of the challenged exclusionary

policy in this case, we must recognize at the

outset that in California, unlike other

jurisdictions, the Legislature has sharply

circumscribed an apartment owner's

traditional discretion to accept or reject

tenants on the basis of the landlord’s own

likes and dislikes. (CR-016) (38:16-21)

Defendants cite AB 1400 (in effect more than

a year before eviction proceedings were initiated

against James Parker) which affirms that the cate-

gories listed in the Unruh Act are illustrative rather

than restrictive, and that California law prohibits

any arbitrary discrimination. Defendants point out

that making the disputed property into a “Bill of

Rights Free Zone,” where a tenant’s exercise of his

constitutional rights (to confront his accusers and

find out the nature of charges against him) becomes

a valid basis for eviction, certainly qualifies as arbi-

trary discrimination. (38:22 to 39:15)

Defendants cite Michael Halliwell’s June 19,

2007 testimony about AB 1400:

My first point on this, again, this is an anal-

ysis of AB 1400 adopted effective January 1*,

2006, in essence a recent amendment to the

Unruh Act, and it says the act protects as

amended, which basically is embracing the

reasoning of Marina v Wolfson, which I will

also quote, but this says the act protects all

persons from arbitrary discrimination by

130

business establishments, not just on the

grounds enumerated in the statute. In other

words, if we were able to establish that the

category being discriminated against was

uppity tenants, in other words, we want

tenants in our building, only the docile type

who don’t want the rules enforced, by golly in

this apartment building my word is law, and if

you don’t recognize that, I’m going to use my

power as a landlord to kick you out. Now if

the factual predicate were established for

that, would, in fact, that assertion or that

degree of power by a landlord constitute

arbitrary discrimination within the meaning

of the Unruh Act, because IJ think there is — it

is clear that it is general arbitrary discrimi-

nation that is precluded, not discrimination

against particular categories. (Transcript at

77:7-27) (CR-1163) (89:16-24)

Defendants pointed out in pre-trial proceed-

ings that any “right to discriminate” which might be

thought to exist in California law was squarely

rejected on federal grounds when an initiative

constitutional amendment (Proposition 14) sought to

place such a right in the California State Consti-

tution. [In Mulkey v Rettman (1966) 64 Cal 2d 528,

938, the California Supreme Court ruled that this

iss

federal anti-discrimination protection existed, be-

cause under the Fourteenth Amendment equality in

the enjoyment of property rights, was regarded as an

essential pre-condition to the realization of the other

basic civil rights and liberties which that amend-

ment was intended to guarantee. (89:25 to 40:23)

Judge Nadler asked Plaintiff to respond to

Defendant. Charles Jensen answered:

I have listened to this charade all day long. It

is the only anger I’ll express. If people wish to

quote the law, they should quote it correctly,

whether they are an attorney or a law stu-

dent, or a defendant. Marina v Wolfson and

its companion case, not surprisingly Wolfson v

Marina has to do with discrimination of

children, period. The only dicta that was

given to this court is just that, dicta, it is not

the holding of Wolfson. Wolfson very clearly

said you can no longer rent to so many adults

and so many children if they breathe air.

They are persons, and that’s why [in] 1982

CAA, California Apartment Association and

the PBC people changed all the rental agree-

ments and it now says people. To quote

Wolfson for other than that is to intentionally

and knowingly mislead the Court. The Court

is dead on the money with the application of

Unruh, and its nonapplication in this case.

132

(Transcript at 81:25-82:13) (CR-1166) (40:24

to 41:7)

Also, Judge Rushing ruled out vital evidence

of retaliation by the landlord within six months of

the filing of Plaintiff's lawsuit to enforce eviction, in

direct violation of the explicit terms of Civil Code Sec

1942.5(a). (41:8-25)

8. Judge Rushing completely vitiates the

mandates of anti-discrimination caselaw

Even though Judge Nadler had misapplied

Local Rule 4.10H(1), when he insisted that De-

fendants file their proposed jury instructions

72 hours before they were actually due under

Local Rule 4.10H(1), Judge Rushing went along

with Charles Jensen’s attack on the format of

Defendants’ submission: “They are in some

form of a legal treatise, but they’re not -

they’re not BAJI. They’re not CALJIC.” (Tran-

script at 166:23-25) Judge Rushing ruled that

the lack of a timely submission by Defendants

in the proper format constituted “a waiver of

their right to submit anything in the form ofa

written statement to be read or the jury

instructions. That time has come and gone.”

(Transcript at 169:21-23) Judge Rushing may

have felt she had authority, as a matter of state

law, to make her court into an indirect en-

forcer of the discrimination against tenants in

133

the complaint evaluation policy of the Meadow

Pines Homeowner’s Association. However,

state law CANNOT justify enforcement of such

a restrictive covenant in the face of FEDERAL

protection against arbitrary discrimination.

In the course of invalidating such a course of

action six decades ago, the U.S. Supreme Court

ruled in Shelley » Kraemer (1948) 334 U.S. 1, 20:

“The difference between judicial enforcement

and nonenjforcement of the restrictive cove-

nants is the difference to petitioners between

being denied rights of property available to

other members of the community and being

accorded full enjoyment of those rights on an

equal footing.”

Judge Rushing explained her rejection of

Defendants’ proposed jury instructions based on

protection against arbitrary discrimination: “The

document you submitted is not — I mean, there are

things in it that could be used as jury instructions,

but that’s — you’re making me do a lot of work for

you and that’s not my job.’ Because Judge Rushing

ruled that Homeowner’s Association policies which

made tenants into second-class citizens with respect

to redress of grievances were irrelevant, her ruling

134

was a direct challenge to the protection of key rights

in the Bill of Rights, affirmed in CCP Sec 425.16(a).

(42:13 to 43:12)

After a series of attempted questions and

objections relating to whether Gus Paxinos

would have wanted to do a credit check on any

replacement for Mr. Howard and why no

attempt had been made to inquire about the

creditworthiness of Mr. Halliwell, the witness

was asked this question about the basis for his

attempting to evict him by Michael Halliwell:

“In exercising your right to elect to allow me

to stay or not to stay, did you make any in-

quiries whatsoever from any source whatso-

ever about any characteristic whatsoever of

Michael Halliwell?” (Transcript at 224:6-9)

Charles Jensen intervened: “Objection, Your

Honor. Relevance.” (Transcript at 224:10)

Judge Rushing ruled: “Sustained.”

(Transcript at 224:11) Michael Halliwell

responded: “I’m asking him about his decision

making process; this is a discrimination case,

and I don’t understand how it could possibly

be irrelevant, [asking] how he is exercising his

discretion.” (Transcript at 224:12-15) Judge

Rushing replied: “I’m sustaining the

objection.” (Transcript at 224:16) (43:13-20)

Judge Rushing’s telling the jury with respect

to the 3-Day Notice demanding the eviction of

135

Defendant Michael Halliwell, “you cannot consider

the parties hidden intentions” and her refusal to

allow a jury finding the validity of this reason for

issuance of the 3-Day Notice, took the whole issue of

arbitrary discrimination off the jury’s radar screen

(since hardly anyone admits his reasons are

discriminatory). (43:21 to 44:9)

Charles Jensen admits with respect to Marina

v Wolfson (which is unequivocally a decision

applying the Unruh Civil Rights Act) that this

decision “does protect persons from arbitrary

discrimination.” Charles Jensen says: “Judge

Rushing disallowed the Unruh act argument,

and yet he [Michael Halliwell] goes on and on

about rulings or statements made by Judge

Nadler who did not try this matter. The

Unruh Act was designed to protect parties

from being discriminated against on the basis

of protected class.” (R8:11-15). See initial part

of Appellants’ Appendix re Respondent’s Jury-

Instruction Citations and Related Cases re

Marina v Wolfson for cases rejecting this idea.

In re Cox (1970) 3 Cal 3d 205, 216 ruled that

the categories in the Unruh Act were “illus-

trative rather than restrictive” and (about

when the Legislature, in adopting AB 1400,

codified what had previously been only dicta

in Marina v Wolfson) the California Supreme

136

Court noted in Koebke v Bernardo Heights

Country Club (2005) 36 Cal 4% 824, 839-840:

“We also concluded that in enacting the

Unruh Act, the Legislature intended to ban all

forms of arbitrary discrimination in public

accommodations.” (44:10-17)

Charles Jensen tries to pretend that the jury

was allowed to determine whether there had

been arbitrary discrimination in the landlord's

decision to evict, saying in his Reply Brief: “Tt

is true that Marina v Wolfson (1982) 30 Cal 3d

721, 730 does protect persons from arbitrary

discrimination. Appellants just refuse to accept

there was nothing arbitrary in evicting them.”

(R8:18-20) This assertion ignores Judge

Rushing’s actual rulings noted in Appellants’

Opening Brief (1A26:4-21):

Judge Rushing completely refused to

include anything about anti-discrimi-

nation law in her jury instructions, in

spite of Defendants’ bolstering Shelley

u Kraemer (1948) and Mulkey v Reit-

man (1966) with the clearly controlling

Marina Point v Wolfson (1982) prece-

dent and its legislative enactment by

AB 1400 (effective January 1, 2006) in

their proposed jury instructions (CR-

094). (44:18-25)

Michael Halliwell cited key governing

precedents in his June 19, 2007 testimony:

In Shelley v Kraemer [(1948) 334 U.S. 1, 14],

the [California Supreme] Court continues,

that’s a U.S. Supreme Court precedent, here

we have California’s [highest] Court applying

a precedent giving the interpretation of the

Federal Constitution by the U.S. Supreme

Court. Mulkey v Reitman [(1966) 64 Cal 2d

529, 538] continues: “In the broad sense state

action has been consistently found where the

state in any meaningful way has lent its

process to the achievement of discrimination,

even when that goal was not within the state's

purpose. In that case Shelley v Kraemer,

supra, the Court stated at page 14, ‘The

amendment makes void state action of every

kind which is inconsistent with the guarantees

therein contained in the 14* Amendment and

extends to manifestations of state authority in

the shape of laws, customs, judicial or execu-

tive proceedings.” Remember, Proposition 14

was struck down on this. (June 19, 2007

Transcript at 80:11-26) (45:1-8)

9. Awarding attorney’s fees with NO specific

basis is a clear Due Process violation

In the absence of a contract violation which is

explicitly covered by an attorney’s fees clause,

the “American system” requires each side ina

legal dispute to pay its own attorney’s fees.

Alveska Pipeline Service Co. v. Wilderness

Society (1975) 421 U.S. 240, 247 observes: “In the

United States, the prevailing litigant is

ordinarily not entitled to collect a reasonable

attorneys’ fee from the loser.” Since Plaintiff

138

abandoned his effort to show cause (and won

by invoking a landlord’s right to evict at will),

Federal Law makes ANY attorney fees award

to Plaintiff excessive. St. Louis, Iron Mountain

& Southern Railway Co. v Wynn (1912) 224 U.S.

354, 361 held: “When the plaintiff demands an

excessive amount, he isin the wrong. The

penalty and attorneys’ fee is for the benefit of

the one who is only seeking to recover after

demand what is due him under the terms of his

contract, and who is compelled to resort to the

courts to obtain it. [We purposely refrain from

considering Appellants’ other grounds.]

Confining ourselves to what is necessary for

the decision of the case in hand, we hold that

the statute, as construed and applied by the

state courts, is wanting in due process of law

and repugnant to the Fourteenth Amendment of

the Constitution of the United States.”

Plaintiff started out with a contract claim, and

tried to secure a verdict by Judge Nadler on

that basis with a June 19, 2007 no-notice

motion for summary judgment (in violation of

CCP Sec 1170.7). But Judge Nadler never

ruled on this motion and Charles Jensen

never renewed it before Judge Rushing, as

Judge Nadler suggested he might (probably

because Charles Jensen no longer had the

element of surprise). Xuerab v Marcus &

Millichap, Inc. (1992) 3 Cal. App.4t 1338,

1341-1342 ruled out this sort of “bait and

switch” method of securing fees because

“although the buyers initially sued for breach

of contract, they did not go to tnal on that

139

basis.” Moreover, Exxess Electronixx v Heger

Realty Corp. (1998) 64 Cal.App.4t* 698, 708,

citing numerous passages in Santisas v

Goodin (1998) 17 Cal 4th 599, affirms that

“the question of whether to award attorney’s

fees turns on the language of the contractual

provision, 1.e., whether the party seeking fees

has ‘prevailed’ within the meaning of the

provision and whether the type of claim is

within the scope of the provision.”).

Hsu v Abbara (1995) 9 Cal 4t8 863, 873-874

discusses clear legislative intent:

In 1987, the Legislature amended [Civil Code]

section 1717 to its current form. (Stats. 1987,

ch. 1080, Sec 1, p. 3648.) The Legislature

replaced the term “prevailing party” with the

term “party prevailing on the contract,” evi-

dently to emphasize that the determination of

prevailing party for purposes of contractual

attorney fees was to be made without refer-

ence to the success or failure of noncontract

claims. (See, e.g., On v Cow Hollow Properties

(1990) 222 Cal.App. 3d 1568, 1574.)

Hsu v Abbara (1995) 9 Cal 4% 863, 875 gives

an example of applying Sec 1717:

One case, for example, involved cross-actions

by neighboring landowners for breach of cove-

nants, conditions, and restrictions (CC&R's

containing an attorney fees provision. (Banks

v Lucas (1992) 9 Cal.App.4 365, 369): [In

Banks v Lucas supra] because ultimately no

140

relief was awarded to any party under the

CC&R’s, the Court of Appeal found, asa

matter of law, that there was no party pre-

vailing on the contract under section 1717.

(45:24 to 46:15)

Judge Rushing entirely disregarded the fact

that Plaintiff abandoned ANY effort to prove a

contract violation (or any cause at all for eviction).

She disregarded everything in James Parker's

August 22, 2007 Opposition brief (which she

pretended did not exist as a basis for a $10,000

default judgment in Plaintiffs favor). (46:16 to 47:25)

Parker cites Walters v Marler (1978) 83 Cal.

App.3d 1, 27-28 quoting McKenzie v Katser-

Aetna (1976) 55 Cal. App.3d 84, 89-90 rejecting

the idea that the Legislature in enacting Civil

Code sec 1717 meant to include “all provisions

in the contract allowing for attorney’s fees,

whether or not those fees are incurred to

enforce the provisions of the contract.” It

states that the only reasonable interpretation

of section 1717 is “the allowance of attorney’s

fees only when such fees are incurred to en-

force the provisions of the contract.” Parker’s

August 224 Memorandum points out: “The

jury has found NO breach of contract and the

contractual language (clause #13 in the rental

141

contract allows attorney’s fees only ‘to enforce

any part of this agreement.’)” (46:19-23)

The ONLY case cited in Plaintiffs brief seek-

ing $20,680 for reading Defendants’ various

filings, which relates to the work for which

compensation is sought, squarely supports

Defendants’ position that contract claims are

the only ones which may generate attorney’s

fees, and then only for the legal work per-

formed in the defense of such claims: “When a

party obtains a simple, unqualified victory by

completely prevailing on or defeating all

contract claims in the action and the contract

contains a provision for attorney fees, section

1717 entitles the successful party to recover

reasonable attorney fees incurred in the

prosecution or defense of those claims.” Scott

Co. v. Blount (1999) 20 Cal 4 1103, 1109.

(See Plaintiffs March 25, 2008 Brief at 7:15-

19.) (47:8-13)

James Parker’s reasoning on the need for a

party to show a contract violation to invoke a

contractual provision for attorney’s fees was

directly supported by Santisas v Goodin

(1998) 17 Cal.4t 599 at 602, 608-609, 617,

619. This governing precedent holds that “the

question of whether to award attorney’s fees

turns on the language of the contractual

attorneys’ fees provision” and “whether the

type of claim is within the scope of the

provision.” (48:1-4)

142

Appellants’ April 18, 2008 Petition (at 8:19 to

9:6) discusses how Charles Jensen refused to

accept the $375 specified by Local Rule 2.2E

for the prevailing party in a normal court trial

(he demanded an UNREVIEWABLE

$4,000 even though, when faced with Judge

Nadler’s refusal to allow a jury trial because

the address of the property was put in the

wrong place on Defendants’ form UD-150,

Defen-dants were willing to voluntarily leave

the property). For fighting against this $4,000

unreviewable fees award for giving up,

Defendants were eventually saddled with

$10,000 in fees by Judge Rushing, even

though Santisas v Goodin (1998) 17 Cal 4th

599, 614 states: “We are satisfied that concern

for the efficient and equitable administration

of justice requires that the parties be left to

bear their own attorney’s fees.” International

Industries v Olen (1978) 21 Cal 3d 218, 224-

225 explains: “The purpose of litigation is to

resolve participant’s disputes, not compensate

participating attorneys. Our courts are

sufficiently burdened without combat kept

alive solely for attorney fees.”). (48:10-17)

10. Judge Rushing systematically flouted the

Evidence Code to admit Exhibit #5

World-Wide Volkswagen Corp. v Woodson (1980)

444 U.S. 286, 292 affirms that federal Due

Process review ensures that a State procedural

rule “does not offend traditional notions of fair

play and substantial justice.” International

Shoe Co. v Washington (1945) 326 U.S. 316, 326

143

quoting Milliken uv Meyer (1940) 311 U.S. 457,

463.) United States v Sanchez-Lima (1998) 161

F.3d 545 cites Federal evidentiary standards:

“Hearsay evidence sought to be admitted

under Rule 807 must have circumstantial

guarantees of trustworthiness equivalent to

the listed exceptions to the hearsay rule. See

United States v Fowlie, 24 F.3d 1059, 1069 (9th

Cir. 1994). Furthermore, the statement must (1)

be evidence of a material fact; (2) be more

probative on the point for which it is offered

than any other evidence which the proponent

can procure through reasonable efforts; and (3)

serve the general purposes of the Rules of

evidence and the interests of justice by its

admission into evidence. Fed.R.Evid.807.”

Defendants knew from their one and only

(April 12, 2007) telephone conversation with

Charles Jensen, that his main reason for

severing communications was to avoid

discussing Plaintiffs reason’s for eviction.

After an unsuccessful two-month struggle to

try to obtain the March 26, 2008 Report of the

Homeowner's Association (alluded to but not

provided in the 60-Day Termination Notice),

Defendants suspected that Charles Jensen

would try to sneak this Report in when it was

too late for Defendants to effectively challenge

its credibility. Therefore, Defendants tried to

block introduction of what became Exhibit #5

in an off-the-record sidebar, and followed up

at their first opportunity with a written

motion to exclude the March 26 Report.

144

Defendants’ rejected “Motion to Strike No-

Notice Anonymous Evidence (Redacted

Hearing Results)” provided (CR-835):

1. Anonymous evidence is precluded by the

Sixth Amendment, and this is an element of

Due Process in other contexts as well, binding

on States via the Fourteenth Amendment.

2. Evidence withheld until the last minute,

then disclosed too late in the trial process for

any possibility of rebuttal evidence being

gathered, is prejudicial and has no reliable

probative value.

3. Defendants repeatedly requested this very

piece of evidence, i.e. the results of the March

26, 2007 hearing, on several occasions after

the February 20, 2007 Hearing Notice was

attached to Plaintiffs complaint, and Mr.

Charles Jensen adamantly refused to supply

it.

Accordingly, for both evidentiary and

procedural reasons, Plaintiffs Exhibit dated

March 28, 2007 (containing Meadow Pines

Homeowners Association Hearing Results) is

hereby stricken from the Record. (CR-1240-

1241)

Defendants’ November 26, 2007 Transcript

Appendix analyzes trial proceedings:

Judge Rushing [as part of document dump

which Defendant described at the time: “They

L&5

just dumped a pack of letters, undifferen-

tiated, saying here’s 24 letters, plop.” (Tran-

script at 242:27-28)] admitted a report filled

with third-hand hearsay: complaints made by

un-specified persons, compiled into a report by

an anonymous person, and put into evidence

as a result of it being conveyed by a third

person (not available for cross examination)

who wrote on the bottom of the anonymous

report “This was submitted by a neighbor.”

(Exhibit 5, filed by Defendants after trial at

CR-144). However, when Michael Halliwell

asked James Parker (Transcript at 299:21 to

300:6) about a communication to him by

“Chris and Christine, the people who lived

next door to me” he was not allowed to answer

this question: “Did either of these people ever

communicate with you that they received any

satisfaction on this basic grievance?” Charles

Jensen interrupted at this point, saying:

“Objection, Your Honor. Any response will be

hearsay.” Judge Rushing responded.

“Sustained.” (CR-1239) (49:3 to 50:6)

Judge Rushing would not let Defendants go

over most of the 1-page anonymous compilation of

hearsay complaints in Exhibit #5, saying: “I have the

right to control the means and manner, and also

there’s an Evidence Code section called 352 which

prevents repetition and cumulative evidence and

146

things that are more time consuming than proba-

tive. The jury is only here for a limited time. We

need to get through the rest of this case.” This

completed Judge Rushing’s flouting of the rules

against hearsay in Evidence Code Sec 1200 in this

matter. At one point, Judge Rushing offered to

explain her prior refusal to address the merits of

Exhibit #5’s admissibility (saying “We are going to

stay on the record to permit the parties to place on

the record anything that was said at sidebar that

wasn’t argued on the record.”) However, after

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