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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0823%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2009

## Text

Peo: Ue.

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

2

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)

3

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

4

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

5
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.

6

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

7

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

9
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

10

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

12

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

14

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

16

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

17

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

18
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

19

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

20

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-

21

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

22
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

23

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

24
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

26
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

30
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

+4
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

oa

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

KB

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

34

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)

36

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

42

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

43

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

44
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

45

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

46

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

47

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

48
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

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

54

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

wm

5

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.

56

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.

57

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

58
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

59
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

60
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

61
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

63
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

64

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

69

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

70

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

72

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

ta

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

74

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

2

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)

76

#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

77

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

78

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)

79

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

on
BO

(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

51

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

82

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

83
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

84

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

87

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,

88

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

89

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

90
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

91

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

92

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

93

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

94

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

96

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

$7

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

98

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:

99

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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0823%3A2. Public record. Not legal advice.