Appendix — Halliwell v. Superior Court of California, Sonoma County (No. 09-171)
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®9-171 APR 20 2009
No. 09-__OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
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 Certiorari
To the California Supreme Court
APPENDIX, VOLUME I
Michael J. Halliwell & James F. Parker
Defendants in Propria Persona
271 E. Cotati Ave, Cotati CA 94931
707-795-5526, halliwel@csulb.edu
Aprii 20, 2009
ORDERS APPENDIX TABLE OF CONTENTS
Pe ey a ay es ee ees ote
1 Judge Rushing’s 7/12/07 fees motion Ruling 10
2. Appellate Branch 8/30/07 Appeal Notification. . 11
3. Judge Rushing’s 9/5/07 ban on all filings. .. 12
4. 1/14/08 Appellate Branch sets 6/26/08 Hearing . 13
5. Judge Chouteau Cancels 1/14/08 briefing Order 15
6. Appellate Branch 3/6/08 First Fees Ruling. 16
7. Plaintiffs 3/26/08 support of 3/6/08 panel Order 23
8. 5/13/08 Appellate Branch sets 9/25/08 Hearing . 25
9. Judge Chouteau’s 5/23/08 ban cn CR # use. 27
10. Judge Chouteau’s 5/23/08 no hearing rule 28
11. 5/23/08 Judge Chouteau denies rehearing 29
12. Appeilate Branch 10/7/08 Appeal Denial. . 30
13. Appellate Branch 11/17/08 affirms Denial. 32
14. First District 11/26/08 Mandamus Denial . 33
15. Appellate Branch 1/16/09 No Costs Renittitur 34
16. State Supreme Court 1/21/09 denial order 35
2
FOREWORD
The relief sought in Defendants’ April 20, 2009
Petition for Certiorari is simply preservation of their
right to federal review of their federal constitutional
rights, until there has been some disposition by the
California Supreme Court of our Petition (S171792)
secking to untangle what has become a very com-
plicated procedural situation. We supply here the
Orders of the California Superior Court which
determine the scope of the unexplained denials of
discretionary review by the California Court of
Appeal on November 26, 2008 (in A123226) and the
California Supreme Court on January 21, 2009 (in
5168827).
Attorney’s fees always relate to prior proceedings,
and there has never been a “clean” demarcation with
respect to what aspect of the case is covered, because
ALL of the fees awards in this case are completely
unexplained. This is not the place to offer our ex-
pianations of what we think was covered, because
“When making the required corrections to a petition,
no change to the substance of the petition may be
made.” We can, however, quote from the complete
texts of the relevant orders, to provide the reader
some guidance as to the pathway this case has
followed.
1) Judge Elaine Rushing’s Order of July 12,
2007 sets a fees hearing which never took place,
because Defendants were not informed of the July
31, 2007 hearing until that date was almost upon
them, and because Plaintiff never informed Defen-
dants of the filing of his July 3, 2007 Motion for
Attorney’s fees.
2) The replacement fees hearing set for August
28, 2007 did not take place either, because Judge
Rushing violated this prevision of her July 12, 2007
Order: “There will not be a tentative ruling — manda-
tory appearances will be required.” The Superior
Court's August 30, 2007 Notification was issued in
response to Defendants’ August 29, 2007 Appeal of
the $10,000 fees award made in Judge Rushing’s
August 28, 2007 Tentative Ruling.
3) Even though CCP Sec 916(a) precludes any
action (other than to preserve the status quo) by the
trial court with respect to a judgment under appeal,
Judge Rushing sealed off any opportunity for James
Parker to respond to the basis tne her $10,000 fees
award, the alleged fact that “JAMES PARKER did
4
not oppose the motion.” Judge Rushing’s Order of
September 5, 2007 states: “No further papers of
any kind will be permitted to be filed on this motion
prior to the next hearing date of September 25,
2007.”
4) Judge Rushing never served her Order of
September 25, 2007, but Defendants appealed her
bench ruling of that date: “Th2 Court 1s deeming the
matter submitted at this time, is denying the request
for a continuance for the reasons already stated and
is ordering that the plaintiff may have $10,000 in
attorney’s fees against Mr. Parker only.” (Transcript
at 475:27 to 476:2) Judge Rushing ruled that Defen-
dants’ September 26, 2007 Notice of Appeal was
invalid because “Mr. Halliwell is not an attorney.
He cannot represent you.” (Transcript 482:5-6)
However, Defendants renewed their challenge to the
$10,000 Fees award in their November 21, 2007
Notice of Appeal. This appeal was acknowledged by
the Appellate Branch, and their January 14, 2008
briefing order set a June 26, 2008 hearing date.
5) On February 4, 2008, a controversy erupted
over Defendants’ right to use their serial numbering
of filings in a designation of the record on appeal
(rather then having to wait for completion of the
chronological index), which led to a February 5,
2008 Appellate Branch Order vacating the January
14, 2008 briefing order.
6) The Appellate Branch Order of March 26,
2008 (at 1:25-27) acknowledges that the September
25, 2007 Hearing Transcript is not part of the record
on appeal, but it “reached out” (at 4:8-11) to uphold
Judge Rushing’s fees award: “Assuming arguendo
that Parker actually appealed the attorney fee
award against him ($10,000), there is no basis for
reversing the award. Parker never opposed the
motion for attorney fees. Defendant Halliwell, who
was not Parker’s attorney, and against whom no fees
were sought, did not have standing to oppose the
motion (against Parker) for attorney fees.”
7) For several months, the Appellate Branch
simply ignored Defendants’ Motion to Reconsider the
Order of March 6, 2008, leaving Plaintiffs March
26, 2008 Opposition to our Motion, the only written
defense of its reasoning. Therefore, the full text of
this Opposition 1s included in this sequence of
rulings in this case. Defendants’ positions on the
issues raised in the March 6, 2008 Order, are set
forth in our Footnote Appendix.
8) After Judge Rushing made a May 6, 2008
($20,720) fees award, for reading Defendants’
memoranda protesting the procedural quagmire
which had developed in the case, the Chronological
Index was updated to reflect events since January
14, 2008 (pages 7-8 of the Index), and the Appellate
Branch issued its May 13, 2008 order to resume
briefing on Defendants’ November 21, 2007 Notice of
Appeal.
9) On April 18, 2008, Presiding Judge of the
Appellate Branch Rene Auguste Chouteau signed an
order dealing with the dispute over eliminating the
use of Defendants’ serial numbering in designation
of the case record (we had previously been allowed to
submit a duplicate copy of all filings with serial CR,
or Case Record numbering on the bottom of each
page). However, this Order was not filed until May
23, 2008. It said in its entirety: “Appellant’s Petition
re No-Notice Change is denied.”
10) When it became apparent that the fees
hearing transcripts would not become available in
time for this issue to be argued at the January 24,
2008 Appellate Branch Hearing, Defendants
submitted a motion for separate appeal hearings to
Presiding Judge of the Sonoma County Superior
Court Robert S. Boyd. This motion was instead
eferred to Judge Chouteau, who denied it on April
18, 2008. This Order was also not filed until May
23, 2008. In its entirety, it said: “Appellant’s
Petition for Separate Hearings is moot and is denied
on that basis.”
11) A major focus of Defendants’ motions directed
against the Order of March 6, 2008, was inconsis-
tencies about assurances at the January 24, 2008
hearing that the fees issue would be left for consider-
ation at a June 26, 2008 hearing, and the attempt in
the Order of March 6, 2008 to summarily dispose of
the fees issue. On May 23, 2008, Judge Chouteau
made his only response to our March 20, 2008
reconsideration motion: “Appellant’s Motion for
Reconsideration and Appellant’s Petition to Resolve
Inconsistencies are deemed to be a Motion for
Rehearing, which was denied by operation of law on
April 5, 2008, pursuant to CRC 8.708.”
12) The Appellate Branch eventually got around
to hearing Defendants’ appeal from the $10,000 fees
award, on September 25, 2008, at which time a
denial of our appeal was announced from the bench.
The only part of the written Appellate Branch
Ruling After Appeal of October 7, 2008, which says
anything about the issues in the appeal, states: “The
appeals are DENIED. Appellants fail to demon-
strate any reversible error with respect to the
September 25, 2007 attorney fee order or any other
order appealed from by way of Appellants’ November
21, 2007 notice of appeal or appellants’ February 1,
2008 notice of appeal.”
13) On October 21, 2007, Defendants filed a
motion to reconsider and clarify the Order of October
7, 2008, which was ignored by the Appellate Branch
until November 12, 2008, when Judge Chouteau
signed a ruling denying our motion. By November
17, 2008, the other members of the panel had also
signed, and an Order was filed which said, in its en-
tirety: “The Petitions [Defendants also filed a motion
seeking reconsideration of the September 25, 2008
bench ruling] for Rehearing (erroneously titled
Motion for Reconsideration) is denied. The decision
became final on October 24, 2008 and any motion for
rehearing 1s deemed denied as of that date.
Alternatively, the petition lacks merit and is denied
on that basis.”
14) Defendants filed a Petition for Mandamus tn
the First District Court of Appeal, seeking to require
the Appellate Branch to address the substance of the
fees issue. This received a single-judge (per Presid
ing Justice Anthony J. Kline) denial (A123226) on
November 26, 2008, which said only: “The Petition
for writ of mandate is denied.”
15) On January 16, 2009, the Appellate Branch
issued a Remittitur which attached the Order of
October 7, 2008 and added an important detail, by
checking the line which said: “Costs are not awarded
in this proceeding.”
16) On January 21, 2009, the California Su-
preme Court ruled (in $168827) on the $10,000 fees
award which began with a July 3, 2007 negotiating
offer that became a motion. This ruling says only:
“The petition for review is denied.”
Hon. Elaine Rushing, Supervising Civil Judge
Superior Court of California, County of Sonoma
Department 19, 1450 Guerneville Road, Bldg. G
Santa Rosa, CA 95403 FILED
Telephone: (707) 521-6730 July 12, 2007
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Case No. MCV-191306
CHRYSTANTHE E. PAXINOS,
Plaintiff,
ORDER & NOTICE OF
Vv. POST-TRIAL MOTION
FOR ATTORNEY FEES
JAMES PARKER, et al.,
Defendants
Counsel for Plaintiff, having filed “Notice of
Motion for Attorney's Fees” on July 3, 2007, the
court hereby schedules this matter to be heard on
Tuesday, July 31, 2007 at 8:30 am, in Department
19 before the Hon. Elaine Rushing.
There will not be a tentative ruling - mandatory
appearances will be required.
All responsive pleadings to be filed according to
Statute
ITIS SO ORDERED.
Dated: July 12, 2007
KLAINE RUSHING
Judge of the Superior Court
Superior Court of California, County of Sonoma
600 Administration Drive, Room 107-J FILED
Santa Rosa, CA 95403-2878 AUG 30 2007
(707) 521-6500, www.SonomaSuperiorCourt.com
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Case No. MCV-191306
CHRYSTANTHE EE. PAXINOS Notification of
the Filing of the
PlaintiffRespondent Notice of Appeal!
Vs. [CRC Rule 8.750(b)|
MICHAEL HALLIWELL, et al
Defendant/Appellant
TO THE RESPONDENT\(S) ABOVE NAMED:
YOU AND EACH OF YOU will please take notice
that appellants Michael Halliwell and James Parker
filed a Notice of Appeal in the above-entitled action
on August 29, 2007 at the Superior Court of Califor
nia, County of Sonoma, and hereby appeals to the
Appellate Division, Superior Court of California,
County of Sonoma.
Date: August 30, 2007
DENISE GORDON
COURT EXECUTIVE OFFICER
by
Heide Keeble,
Senior Legal Processor
l2
Hon. Elaine Rushing, Supervising Civil Judge
Superior Court of California, County of Sonoma
Department 19, 1450 Guerneville Road, Bldg. G
Santa Rosa, CA 95403 FILED
Telephone: (707) 521-6730 SEP -5 2007
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Case No. MCV-191306
CHRYSTANTHE E. PAXINOS,
Plaintiff,
ORDER VACATING
Vv. TENTATIVE RULING &
RESETTING MOTION
JAMES PARKER, etal., FOR ATTORNEY FEES
Defendants
/
The court having inadvertently failed to notice
that it had previously stated that no tentative ruling
would be issued and that appearances would be
required for the hearing on plaintiffs Motion for
Attorneys Fees, the court hereby vacates its
tentative ruling and resets this for hearing on the
Law and Motion calendar of September 25, 2007 at
8:30 a.m. in Department 19. No further papers of
any kind will be permitted to be filed on this motion
prior to the next hearing date of September 25, 2007
ITIS SO ORDERED.
Dated: 9/5/07 HON. ELAINE RUSHING
Supervising Judge/Civil Div
Superior Court of California, County of Sonoma
600 Administratior. Drive, Room 107-J
Santa Rosa, CA 95403-2878
Civil Division (707) 527-1100 FILED
JAN 14, 2008
SUPERIOR COURT OF CALIFORNITA,
COUNTY OF SONOMA
, Case No. MCV-191306
CHRYSTANTHE E. PAXINOS,
Plaintiff/Respondent Notice of Time and
VS. Place for Filing of Briefs
JAMES PARKER, ect al,
Defendant/Appellant
/
/
TO: THE ABOVE-NAMED APPELLANTS AND
ATTORNEY OF RECORD AND TO TITE ABOVE
NAMED RESPONDENT AND ATTORNEY OF
RECORD:
YOU AND EACH OF YOU, are hereby notified that
the Record on Appeal in the above-entitled cause
was filed in the Appellate Division on November 21,
2007, and that the said Appeal will be heard on
JUNE 26, 2008 in the APPELLATE DIVISION OF
THE SUPERIOR COURT, in and for the County of
Sonoma, in courtroom number 4 at 4:00pm.
Pursuant to California Rules of Court, Rule 8.7U6,
appellant shall file an opening brief not later than
February 4, 2008. Respondent shall filed a brief
within twenty (20) days after the filing of appellant's
opening brief. Appellant may file a reply brief within
ten (10) days after the filing of respondent’s brief.
ALL BRIEFS ARE TO BE FILED IN TRIPLICATE
[Sonoma County Superior Court Rules, Rule 11.5]
The clerk will not file any brief which is tendered for
filing after the time fixed [CRC, Rule 8.706(e)}.
Failure to file a respondent’s brief may result in
Appeal being submitted on the Record and
Appellant's Opening Brief. Failure to prosecute
Appeal with diligence may result in Appeal being
dismissed [CRC, Rule 8.762(c)].
Date: January 14, 2008
DENISE GORDON
COURT EXECUTIVE OFFICER
by
Heide Keeble, Deputy Clerk
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Date: February 4, 2008 Courtroom: 19
Hon. RENE CHOUTEAU, Judge Heide Keeble,
Deputy Clerk
CHRYSANTHE PAXINOS,
Plaintiff FILED
FEB 05 2008
JAMES PARKER, et al,
Defendant Action # MCV-191306
NATURE OF PROCEEDING: Court’s Own Motion
to VACATE
UPON THE COURT'S OWN MOTION, pursuant to
the Code of Civil Procedure § 473, in order to correct
a clerical mistake, the Notice of Time and Place for
Filing Briefs filed on January 14, 2008 is hereby
vacated (an amended chronological index should
have been completed prior to mailing. A new Notice
will be mailed out along with the updated chrono-
logical index)
FEB 04 2008 (Rene Auguste Chouteau)
JUDGE OF THE SUPERIOR COURT
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
APPELLATE DIVISION FILED
MAR 6 2008
CHRYSTANTHE PAXINOS,
No. MCV-191306
Plaintiff/Respondent,
OPINION
MICHAEL HALLIWELL and JAMES PARKER,
Defendant/Appellants.
/
/
In this very simple unlawful detainer case the
trial court’s judgment is AFFIRMED. Appellants
fail to demonstrate any error by the trial court, let
alone any reversible error.
FACTS AND PROCEDURE
This was an unlawful detainer case. Plaintiff/
Respondent Chrysanthe (“Gus”) Paxinos (landlord)
filed an unlawful detainer action against Defendants
James PARKER and Michael HALLIWELL. The
action was based on a breach of the rental agree
ment —1.e,, tenant James Parker subletting to
Michael Halliwell in violation of the rental
agreement.
The case was originally before Judge Nadler, but
was then passed to Judge Rushing for trial. A jury
trial was held, and the jury returned a verdict in
favor of Plaintiff/Respondent and against Parker and
Halliwell.
This is an appeal from the unlawful detainer
judgment entered against Appellants/Defendants
James Parker and Michael Halhwell.
The record on appeal consists of those items
a June 19, 2007 hearing before Judge Nadler and
transcripts from the June 25/June 26 trial. There is
some confusion as to the nature of all the appeals,
and who has filed the appeals. This reviewing Court
is treating this as an appeal by both defendants from
the judgment and from any post-judgment orders.
ARGUMENTS
Appellants’ arguments are not a model of clarity,
and are spread out in the 100+ pages of material
filed by Appellants. Appellants’ briefs are rambling
and disjointed. Llowever, it appears the following
claims of error have been made:
(1)There were errors in setting the trial date: (2)
there were defects regarding service of the summons/
)
complaint; (3) Plaintiffs evaded discovery; (4) the
trial court’ erred in denying Defendants’ motion to
continue case to reopen discovery; (5) the trial court
erred in denying defendants’ motion to exclude
“Exhibit 5”: (6) the trial court erred in failing to
instruct the jury on the “Unruh Act’; (7) the trial
court unfairly circumscribed Defendants’ input on
jury instructions; (8) the trial court blocked key
evidence regarding retaliatory eviction; (9) the trial
court violated Local Rule 2.2D and 5.5A & Bin
consideration of attorney’s fees; and (10) the trial
court stripped Michael Halliwell of standing with no
legal foundation (regarding attorney fee issue).
Plaintiff/Respondent has filed an Opposition
Brief addressing the issues raised by Appellants. In
summary, Plaintiff argues the appeal is procedurally
defective in form, and substantively has no merit
whatsoever. This court agrees.
TRIAL DATE SETTING
Appellants complain of alleged procedural
irregularities in the trial setting procedures.
Appellants have failed to show any irregularities.
Furthermore, Appellants ultimately were given a
jury trial (after Judge Nadler reconsidered an earlier
ruling) as they wanted. Assuming arguendo any
irregularities, Appellants fail to show any reversible
error.
PROOF OF SERVICE ISSUES
Appellants appear to argue that the trial court
lacked jurisdiction because of defects in the proof of
service, and therefore the judgment is void.
Both Appellants filed an Answer. Although their
answers did contain one paragraph alleging proof of
service defects, their Answers also contained
answers on the merits of the case, and also
requested affirmative relief. Appellants then
participated in the action, and never filed a motion
to quash. The Answers constituted a general
appearance. A general appearance operates as
consent to jurisdiction of the parties; dispensing with
the requirement of service of process, and curing
defects in service. Dial 800 v Fesbinder (2004) 118
Cal.App.4') 32, 52.
Appellants never established any defects in
service. Even if there were defects, Appellants made
a general appearance in this case and therefore
submitted to the trial court’s jurisdiction.
EVASION OF DISCOVERY
There was no evasion of discovery. Appellants
never served any discovery requests.
DENIAL OF MOTION TO CONTINUE
TO REOPEN DISCOVERY
At the beginning of trial, Appellants orally
moved for a continuance to reopen discovery. The
motion was denied. Appellants fail to demonstrate
that the trial court abused its discretion in denying
the continuance, or denying a request to reopen
discovery.
EVIDENCE (Plaintiffs “EXHIBIT 5”)
At trial, Plaintiff introduced “Exhibit 5” (a Ietter
from the Homeowners’ Association). No objection
was made to its admission into evidence, and the
trial court admitted it into evidence. Later,
Appellants made a motion to strike “Exhibit 5” as an
anonymous letter, claiming it was hearsay. The
letter was admitted into evidence without objection.
Appellants waived any claim on appeal. Further-
more, Appellants have not shown that the trial court
erred in denying, subsequent to the letter'’s
admission into evidence, their motion to strike it.
Additionally, assuming arguendo some error
occurred, Defendant fails to demonstrate why a
reversal of the judgment is required.
“UNRUH ACT” CLAIMS,
AND JURY INSTRUCTIONS
Appellants fail to demonstrate any error in
failing to instruct the jury on the Unruh Act
discrimination claim. There was no evidence of
discrimination 1n violation of the Unruh Act. The
trial court allowed defendant to argue retaliatory
eviction and provided the jury with instructions
regarding the defense of retaliatory eviction. The
jury rejected the retaliatory eviction defense. The
trial court did not block admissible evidence, and did
not fail to give proper jury instructions.
ATTORNEY FEES
(Appellants arguments regarding attorney fees
(post judgment) are contained in their “Consol
dated” brief.) Respondent argues these assertions
relate to a motion for attorneys fees that concerned
only Defendant Parker. Respondent argues that Mr
Parker never appealed the motion for attorney’s fees
Therefore, Respondent argues the issue is not
properly before the Appellate Panel.
\s noted earher, it’s unclear from the several]
notices of appeal who was appealing what
ERE LLL
Assuming arguendo that Parker has actually
appealed the attorney fee award against him
($10,000), there is no basis for reversing the award
Parker never opposed the motion for attorney fees.
Defendant Halliwell, who was not Parker’s attorney,
and against whom no fees were sought, did not have
standing to oppose the motion (against Parker) for
attorney fees
CONCLUSION
Appellants fail to demonstrate any error, let
alone any reversible error. ‘I'he decision of the trial
court is affirmed.
DATED: February 29, 2008
Per Curiam
ALLAN D. HARDCASTLE
JUDGE OF THE SUPERIOR COURT
KENNETH J. GNOSS
JUDGE OF THE SUPERIOR COURT
RENE AUGUSTE CHOUTEAU
PRESIDING JUDGE APPELLATE DEPT.
Charles T. Jensen, Esq. sbn 69044 FILED
Kadin Blonski, Esq. sbn 244856
1622 4'h Street Santa Rosa, CA 95404 MAR 26 2008
Tel: 707-527-9911 Fax: 707-527-0908
Attorneys for Plaintiff: CHRYSANTE PAXINOS
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Case No. MCV-191306
Chrysanthe E. Paxinos, (Unlawful Detainer Case)
Plaintiff, vs PLAINTIFF'S
James Parker, Michael Halliwell OPPOSITION TO
Defendants DEFENDANTS’
MOTION FOR RE-
CONSIDERATION
DEFENDANTS’ CLAIM a “procedural error,” but
utterly fail to show its impact, if any there was, on
the decision of the three judge panel. The decision
clearly shows that there was “(no) error by the trial
court, let alone any reversible error...” (OPINION,
March 06, 2008, P. 1, Lines 14.)
The purported “Request for Reconsideration
herein is cobbled together with excerpts from thi
internet (irrelevant), misquoted legalisms
(irreverent), and the Defendants’ own conclusion as
to its impact (meaningless)
s,etween the trial of June 2007, and the appellate
arguments of January 2008, these Defendants filed,
and served more than 2900 pages of whimsy, dribble
and nonsense. Nowhere were there, or are there
cohesive legal thinking and conclusions based on law
and the facts of this case
This, as all other “pleadings,” are without merit
and it 1s respectfully requested that this “motion” be
denied
Dated: March 26, 2008
Charles T. Jensen, Esq
Co-Counsel for Plaintiff
Superior Court of California, County of Sonoma
600 Administration Drive, Room 107-+J
Santa Rosa, CA 95403-2878
Civil Division (707) 527-1100 kILED
MAY 13, 2008
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Case No. MCV-191306
CHRYSTANTHE E. PAXINOS,
Plaintiff/Respondent Notice of Time and
VS. Place for Filing of Briefs
JAMES PARKER, et al,
Defendant/Appellant
TO: THE ABOVE-NAMED APPELLANTS AND
ATTORNEY OF RECORD AND TO THE ABOVE
NAMED RESPONDENT AND ATTORNEY OF
RECORD:
YOU AND EACH OF YOU, are hereby notified that
the Record on Appeal in the above-entitled cause
was filed in the Appellate Division on November 21,
2007, and that the said Appeal will be heard on Sep-
tember 25, 2008 in the APPELLATE DIVISION OF
THE SUPERIOR COURT, in and for the County of
Sonoma, in courtroom number 4 at 4:00pm.
Pursuant to California Rules of Court. Rule 8.706.
appellant shall file an opening brief not later than
June 2, 2008. Respondent shall filed a brief within
fd he
twenty (20) days after the filing of appellant’s
opening brief. Appellant may file a reply brief within
ten (10) days after the filing of respondent’s brief
ALL BRIEFS ARE TO BE FILED IN TRIPLICATE
[Sonoma County Superior Court Rules, Rule 11.5]
The clerk will not file any brief which is tendered for
filing after the time fixed [CRC, Rule 8.706(e)].
failure to file a respondent's brief may result in
Appeal being submitted on the Record and
Appellant’s Opening Brief. Failure to prosecute
Appeal with diligence may result in Appeal being
. dismissed [CRC, Rule 8.762(c)]
Date: May 13, 2008
DENISE GORDON
COURT EXECUTIVE OFFICER
by
Mala Fernandez, Deputy Clerk
HON. RENE AUGUSTE CHOUTEAU
JUDGE OF THE SUPERIOR COURT
Hall of Justice, Room 204-J
600 Administration Drive
Santa Rosa, CA 95403
Telephone: (707) 521-6740 FILED
MAY 23 2008
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Case No.
CHRYSTANTHE E. PAXINOS, MCV-191306
Plaintiff/Respondent,
ORDER RE PETITION
RE NO-NOTICE
CHANGE
MICHAEL HALLIWELL &
JAMES PARKER,
Defendant/Appellants.
Appellant’s Petition re No-Notice Change is
denied
Dated: April 18, 2008
RENE AUGUSTE CHOUTEAU
JUDGE OF THE SUPERIOR COURT
HON. RENE AUGUSTE CHOUTEAU
JUDGE OF THE SUPERIOR COURT
Hall of Justice, Room 204-J
600 Administration Drive
Santa Rosa, CA 95403
Telephone: (707) 521-6740 FILED
MAY 23 2008
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Case No.
CHRYSTANTHE E. PAXINOS, MCV-191306
Plaintiff/Respondent,
ORDER ON PETITION
FOR SEPARATE
HEARINGS
MICHAEL HALLIWELL &
JAMES PARKER,
Defendant/Appellants.
/
Appellant’s Petition for Separate Hearings 1s
moot and ts denied on that basis.
Dated: April 18, 2008
RENE AUGUSTE CHOUTEAU
JUDGE OF THE SUPERIOR COURT
]
HON. RENE AUGUSTE CHOUTEAU
JUDGE OF THE SUPERIOR COURT
Hall of Justice, Room 204-J
600 Administration Drive
Santa Rosa, CA 95403
Telephone: (707) 521-6740 FILED
MAY 23 2008
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
Case No.
CHRYSTANTHE E. PAXINOS, MCV-191306
Plaintiff/Respondent,
ORDER ON MOTION
FOR RECONSIDER-
ATION AND PETI-
MICHAEL HALLIWELL & TION TO RESOLVE
JAMES PARKER, INCONSISTENCIES
Defendant/Appellants.
/
/
Appellant’s Motion for Reconsideration and
Appellant’s Petition to Resolve Inconsistencies are
deemed to be a Motion for Rehearing, which was
denied by operation of law on April 5, 2008.
pursuant to CRC 8.708.
Dated: May 23, 2008
RENE AUGUSTE CHOUTEAU
JUDGE OF THE SUPERIOR COURT
FILED
OCT 7 2008
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
APPELLATE DEPARTMENT
Case No.
CHRYSTANTHE PAXINOS. MCV-191306
Respondent/Plaintiff, RULING AFTER
APPEAL
JAMES PARKER, et al.,
Appellant/Defendant.
This matter was set for oral argument on the
appellate calendar of September 25, 2008. Seated en
banc were the Honorable Rene Auguste Chouteau,
presiding, the Honorable Dana Beernink Simonds
and the Honorable Gary Medvigy. Michael Hallwell
and James Parker were present on behalf of the
Appellants/Defendants. Attorney Charles Jensen
and Kadin Blonski were present on behalf of Res-
pondent/Plaintiff.
The appeals are DENIED.
Appellants fail to demonstrate any reversible
error with respect to the September 25, 2007
attorney fee order or any other order appealed from
by way of Appellants’ November 21, 2007 notice of
appeal or appellants’ February 1, 2008 notice of
appeal.
Dated: October 7, 2008
Per Curiam
RENE AUGUSTE CHOUTEAU
Judge of the Superior Court
DANA BEERNINK SIMONDS
Judge of the Superior Court
GARY MEDVIGY
Judge of the Superior Court
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA
APPELLATE DEPARTMENT
FILED
CHRYSTANTHE PAXINOS, | NOV 17 2008
Respondent/Plaintiff, Case No.
MCV-191306
RULING AFTER
JAMES PARKER, et al., APPEAL
Appellant/Defendant.
_)
The Petitions For Rehearing (erroneously titled
Motion For Reconsideration) is denied. The decision
became final on October 24, 2008 and any motion for
rehearing is deemed denied as of that date.
Alternatively, the petition lacks merit
and is denied on that basis. Per Curiam
Dated: November 12, 2008
RENE AUGUSTE CHOUTEAU
Judge of the Superior Court
DANA BEERNINK SIMONDS
Judge of the Superior Court
GARY MEDVIGY
Judge of the Superior Court
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
FILED
NOV 26 2009
MICHAEL HALLIWELL, et al.
Petitioner,
Vv.
SUPERIOR COURT OF CALIFORNIA, )
COUNTY OF SONOMA,
Respondent;
CHRYSTANTHE PAXINOS,
Real Party in Interest.
Sonoma County
Superior Court
No. MCV-191306
BY THE COURT:
The petition for writ of mandate is denied.
Dated: Nov 26 2009 KLINE, P.d.
Superior Court of California, County of Sonoma
600 Administration Drive, Room 107-J
Santa Rosa, California 95403-2878
(707) 565-1100, www.sonomasuperlorcourt.com
FILED
JAN 16, 2009
PLAINTIFF(S)/RESPONDENT(S):
CHRYSANTHE E. PAXINOS
DEFENDANT(S)/APPELLANT(S):
JAMES PARKER, ET AL
REMITTITUR Superior Court # MCV-191306
1, Denise Gordon, Court Executive Officer of the
Superior Court of California, County of Sonoma, do
hereby certify that the decision of the Appellate
Division has now become final
Appellant Respondent to recover costs
Each party to bear own costs
xX Costs are not awarded in this proceeding
See decision for costs determination
Witness my hand and the Seal of the Court affixed
at my office this 16'* day of January, 2009 (re the ap
peals filed November 21, 2007 & February 1, 2008).
DENISE GORDON,
COURT EXECUTIVE OFFICER
bv
Mala Fernandez, Senior Legal Processor
Court of Appeal, First Appellate District
Divison Two — No. A123226
5168827
IN THE SUPREME COURT OF CALIFORNIA
En Banc
MICHAEL HALLWELL, et al., Petitioners
.
SUPERIOR COURT OF SONOMA COUNTY,
Respondent:
+
CHRYSANTHE PAXINOS, Real Party in Interest
The petition for review is denied
SUPREME COURT
FILED
JAN 21 2009
Frederick K. Ohlrich, Clerk
GEORGE
Chief Justice
(D Sur pmo Court, U.S.
” 09-171 APR 2 0 2009
No. 09 OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
MICHAEL HALLIWELL & JAMES PARKER,
Petitioners,
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA,
Respondent,
CHRYSANTHE PAXINOS,
Real Party in Interest
On Petition for a Writ of Certiorari
To the California Supreme Court
APPENDIX, VOLUME II
Michael J. Halliwell & James F. Parker
Defendants in Propria Persona
271 E. Cotati Ave, Cotati CA 94931
707-795-5526, halliwel@csulb.edu
April 20, 2009
ISSUES APPENDIX TABLE OF CONTENTS
Tenants Limited to Arms-Length Ex Parte Input 7
2. No Recourse when Meet & Confer Rule violated 10
. No Remedy for Perjury by Landlord’s Attorney
. Sonoma Court First-Available Trial-Date policy
. Bogus UD-150 Trial-Date-Request in Case File
». Court Squelches Trial Date Setting Challenge
. Hiding $4000 Payment Coercion from the Jury
. Defendants Hurt by Assaults on Right to Jury
9 Effect of Plaintiffs Perjury re Service of Proce
O. Service Perjury Disrupts Discovery Process
1. Reopening of Discovery after New Trial Daté
Rejection of Caselaw-Based Jury Instructions
13. Tenants Barred from Hearings against Them
14. Total Bypassing of Arbitrary Discrimination
15. “Too Recent” Retaliation Evidence Disallowed
». Haliuwell Eviction Notice Evidence Kept Out
Letting in Anonymous Compilation of Hearsay |!
. Crucial Impact of Anonymous Hearsay Report 60
. Evasions re Backing Off from Proving Cause. . 64
No Contract Violation Means No Feces Shifting 65
Kvasive Maneuvers re Status of Fees Motion. . 67
. False Tentative aga No Opposition” Claim 69
Filing Ban in Order Vacating Tentative Ruling 70
Evasion of Plain Meaning of Notices of Appeal
)
' )
Unfairness of No-Notice Switch on Standing
ISSUES APPENDIX TABLE OF AUTHORITIES
CASES
\bstract Investment Co. v. Hutchison (1962) 204
Cal.App. 2d 242, 249
Adams v Murakami (1991) 54 Cal :
Au-Yang v Barton (1999) 21 Cal 4#
Beverly Hospital v Superior Court (1993) 19
Cal.App.4'® 1289, 1293 10
Chronicle Publishing Co. v Superior Court (1960) 54
Cal 2d 548, 561
Cooper v Superior Court(1961) 55 Cal 2d 291
Delta Imports, Inc. v Municipal Court (1983) 146
(‘al App. 3d 1033, 1036
Mhret v [Ichioka(1967) 247 CalApp2d 637, 640-641 74
Elkins v Superior Court (2007).41 C
1365
Mmerson Klectric v Superior Court (1997) 16 Cal
1101, 1108
Kxxess Klectronixx v Heg fealty Corp (1998) 64
Cal.App. 4°" 698, 708 66
Fairmont Insurance Co. \ u ‘Court (ZOO0O) 22
Cal 4th 245, 25] 10
Goldberg v Kelly (1970)
Grant v List & Lathrop (1992) 2 Cal.App.4t® 993
99" 14
Green v Superior Court (1974) 10 Cal 3d 616, 636. 35
Greyhound Corp. v Superior Court (1961) 56 Cal 2d
Hall v Superior Court (2005) 133 Cal.App.4'th 908
Hernandez v Superior Court (2004) 115 Cal.App.4"
1242, 1246 L&, 45
in re Hess (1955) 45 Cal 2d 171, 175 LO
In re Marriage ot Goddard (2004) 33 Cal 4t 49, 58 40
In re Michael G. (1993) 19 Cal.App.4' 1674, 1677. 55
International Industmes v Olen (1978) ¥1 Cal 3d
2918. PPA4A.9P75 )
Jennings v Superior Court (1967) 66 Cal 2d 867, 875
s/6 1¢)
Lacrabers Wise (1904) 141 ¢ Lt o04 rf
Longshore v Pu 1986) 176 Cal.App.3d G9
Marina Point Wolfso1 B29) 30 Cal 8d 18)
50, 52
McKenzie v Kaiser-Actna (1976) 55 CalApp3d 84
4.41) ty
Mulkev v Reitman (L966) 64 Cal 2d 5¥Y9. 538 1, 52
Nixon v Sirica (1978) 159 U.S.App.D.C. 58, 472 F2d
700, 26
Obregon v Superior Court (1998) 67 Cal App {' 194
134 ob
Parsons v Superior Court of Marin County (2007)
149 Cal. App.4™ Supp. 1, 6 32
Pease v City of San Diego (1949) 938 Cal 2d 706, 711.
(1Z L4
People v Buckowski (1951) 37 Cal 2d 629, 631 1O
People v Murphy (1963) 59 Cal 2d 818, 825 10
RP. ople Vv Sarazzawski (1945) 27 Cal 2d 7. 1 LO
Rosales v Thermex-Thermatron, Inc. (1998) 67
Cal.App.4t* 187, 199
Santisas v CGroodin (1998) 17 Cal 416 599. 614 66
yhelley v Kraemer (1948) 334 U.S. 1, 20 t+
Simon v City of San Francisco (1947) 79 Cal. App.2d
N90. 600 HR
The LS8O Corporation V ouperl r ( mrt (LOB) ny
Cal. 2d 840, 843 l4
Townsend V Superior Court IOQR) 61 CC » | \pp }!
1431, 1435 >. 4A]
United States v Nixon (1974) 418 U.S. 683, 712. . 26
Walters v Marler (1978) 83 Cal.App.3d 1, 27-28 . . 66
Xuerab v Marcus & Millichap, Inc. (1992) 3 Cal. App.
Se, ee ee ees ee eee 66
Ziello v Superior Court(1999) 75 CalApp4'th 651, 654-
UNITED STATES CONSTITUTION
Re I, i vo ee ee ee
Sixth Amendment
Fourteenth Amendment
STATE STATUTES
California Business & Professions Code § 6068(d). 36
California Civil Code Sec 51 (Unruh Act)
California Civil Code Sec 1717................
California Code of Civil Procedure Sec 410.50. ...
California Code of Civil Procedure Sec 415.45. . ‘
California Civil Code See 1942.5(a).............58
California Code of Civil Procedure § 703.580(a) & (c)
. 74
California Code of Civil Procedure Sec 916(a)....73
California Code of Civil Procedure Sec 917.1(d). . . 73
California Code of Civil Procedure Sec 1170.7 ....65
California Code of Civil Procedure Sec 1179(a).. . 34
California Code of Civil Procedure § 2033.220(a). . 38
California Code of Civil Procedure Sec. 2033.710. . 38
California Evidence Code Sec 352
California Evidence Code Sec 1200.............%
RULES OF COURT
California Rule of Court 8.750(a)
Sonoma Co. Superior Court Local Rule 2.2D..
Sonoma County Superior Court Local Rule 2.2E. . :
Sonoma Co. Superior Court Local Rule 4.10H(1).
Sonoma County Superior Court Local Rule 5.5...
Sonoma County Superior Court Local Rule 5.7D. .
Sonoma County Superior Court Local Rule 18.8. .
WEBSITE INFORMATION
California Attorney Guidelines of Civility & Profes-
sionalism www.calbar.ca.gov
STANDARDIZED FORMS
Form UD-106 (Form Interrogatories 71.7 & 77.1)
36, a0, 35, 57
form UD-150 (Trial date setting request). . 15-2:
ISSUES PRESENTED APPENDIX (Volume II)
1. Tenants Limited to Arms-Length Ex Parte Input
In Sonoma County Unlawful Detainer actions,
tenants are restricted to Ex Parte (on the papers
only) Applications during pre-trial proceedings. This
procedure requires that statements of grievances be
sent to the opposing party 24 hours in advance, with
the landlord’s attorney providing an opposing
Declaration when he appears at the “hearing.” This
procedure provides no contact with the judge making
the decision and no opportunity for a written
response to the opposing Declaration. A similar
affidavits-only denial of oral argument in Contra
Costa County family court was stricken down in
Elkins v Superior Court (2007) 41 Cal 4th 13837, 1354,
where Justice Kennard cited Goldberg v Kelly (1970)
397 U.S. 254, 269, which affirms: “Where credibility
and veracity are at issue, written submissions are a
wholly unsatisfactory basis for decision.”
Because of Defendants’ inability to get onto Judge
Nadler’s Law & Motion Calendar, they could secure
no opportunity to explain the dilemma they faced
because of false service claims by Plaintiff. The
Unlawful Detainer Notice to Quit is directly
S
challenged in Defendants’ Answers which say (at
CR-008): “An attempt is listed as having been made
at 10:40 PM on a day when the door would have
been answered if someone had knocked. 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.”
Defendants used the Ex Parte Application pro-
cedure to try to deal with this situation, challenging
a false claim of personal service which gave them on-
ly five days to Answer the Summons and Complaint,
instead of the 15 days they would have had if Plain-
tiff had been honest about the method of service
used. Defendants asked that Plaintiff be required to
“Provide Proofs of Service missing from Case File”
and that che Court “Postpone requested trial date 10
days.” Defendants motion also said: “Once a legally
adequate complaint is provided, Mr. Jensen can sim-
ply hand it to Defendants, and the Proof of Service
issue will vanish. But until then, how service was
performed is a critical issue, since false claims tn this
area have deprived Defendants of ten badly needed
days of preparciion time. Once Defendants know the
outlines of Plaintiff's case, and their side promptly
replies to requests for admissions and other discovery
requests, we may be prepared to go to a jury trial on
June 29, 2007. If not, we will cite any lack of coop-
eration by Plaintiff which requires a further contin-
uance.” All of the service-related aspects of this
motion were ignored by Judge Nadler, who denied
the motion because Defendants needed to use
another method for such clarification of a Complaint.
Here is the precise basis for Defendants’ request
for a ten-day continuance (which readily translates
into, “please wait until you have jurisdiction before
taking any other action, than facilitating proper
acquisition of jurisdiction.”):
It seems entirely unlikely that any sort of good
faith effort was made to serve papers personally,
as “Posting and Mailing” Service requires
(according to California
Tenants Rights at 15/14):
In limited situations, state law allows the
landlord’s process server to post copies of the
Summons and Complaint on your front door
and mail a second set of copies (CCP Sec
415.45). Before a landlord can use posting
and mailing, the landlord must get written
permission from a judge after showing that
the process server made several unsuccessful
attempts to serve the papers at reasonable
times. If this method of service is used, your
time to respond is extended from five to 15
days. (CR-014:4-10) (Defendants’ Petition to
Review (S163276) re March 6, 2008
Decision at 6)
Jennings v Supertor Court (1967) 66 Cal 2d 867,
875-876, cites some governing precedents on prepar-
ation time:
“While the determination of whether in any given
case a continuance should be granted ‘normally
rests in the discretion of the trial court’ (People v
Buckowskhi (1951) 37 Cal 2d 629, 631, that discre-
tion may not be exercised in such a manner as to
deprive the defendant of a reasonable opportunity
to prepare his defense. ‘That counsel for a defen-
dant has a right to reasonable opportunity to
prepare for trial is as fundamental as is the right
to counsel.’ (People v Sarazzawski (1945) 27 Cal
2d 7, 17; accord, Cooper v Superior Court (1961)
55 Cal 2d 291, 302.) It is also as fundamental as
the defendant's right to be advised of the charges
against him, for the latter right is illusory if he
then is denied sufficient time to prepare to meet
such charges. (See In re Hess (1955) 45 Cal 2d
171, 175, and cases cited.)” (People v Murphy
(1963) 59 Cal 2d 818, 825)
2. No Recourse When Meet & Confer Rule Violated
The consistent and total refusal of a landlord’s
attorney to discuss any aspect of the case or its
proceedings with self- represented tenants was a
direct violation of Local Rule 5.7D, when he opposes
an Ex Parte Application. Under the very tight pre-
trial time frame Defendants were allowed only one
follow-up to try to secure enforcement of Local Rule
5.7D. The Court's denial of this follow-up Appli-
cation claimed “not to understand the relief sought,”
and ruled against Defendants because “the moving
party will have an opportunity to present defenses at
trial.”
Charles Jensen’s non-communication policy has
been a vexing problem throughout the case, because
it allowed him to make evasive statements, which he
would have had to clarify in response to our in-
quiries. Sometimes Charles Jensen crossed the line
into outright lies, as James Parker has noted in
appeal briefing:
In his response to my Opening Briefs Conclusion,
Charles Jensen’s Reply Brief proclaims: “Counsel
for respondent has never been caught lying.” The
specific he I referred to in that brief was Charles
Jensen’s claim in Judge Rushing’s proceedings
that I had tried to conceal the presence of
Michael Halliwell at 1041 Copeland Creek Drive
In fact, I first called Michael Halliwell’s residency
to Charles Jensen's attention in a three-way
telephone conversation on April 12, 2007, well
before the trial started. But Charles Jensen
pretends this conversation never took place.
Charles Jensen hung up on Defendants during
this April 12th conversation, and immediately
severed aJl further communications with De-
fendants. This was part of his strategy to
prevent us from calling other inconvenient facts
to his attention.
Sonoma County Superior Court judges have al
lowed Charles Jensen to get away with being totally
evasive at hearings. He never said a word to dispute
the valdity of anything Defendants filed at any
hearing. Nor did he say a word in defense of his own
factual claims or legal theories. See: a) September
25, 2007 Hearing ‘Transcript at 472:23, Charles Jen-
sen sald: “Plaintiff will rely on piaintiffs pleadings.”
b) May 6, 2008 Hearing Transcript at 4:6-7, Charles
Jensen said: “Your Honor, we believe that our mo-
tion stands on the pleadings.” c) At the January 24,
2008 Appeal Hearing, Judge Chouteau asked: “Now,
Mr. Jensen, do you wish to add anything to your
papers?” Charles Jensen rephed: “No, Your Ilonor.”
(Transcript at 8:9-11) d) At the September 25, 2008
Appeal Hearing, Judge Chouteau asked: “Let me ask
Mr. Jensen, do you have anything to add to your
briefs?’ Charles Jensen replied: “I have nothing
further to add.” (Transcript at 6:9-11) e) November
20, 2009 Appeal Hearing Transcript at 11:11-12,
Charles Jensen said: “I will submit it on the plead-
ings that I will submit to you.”
3. No Remedy for Perjury by Landlord's Attorney
at
Providing an Ex Parte moving party with no
remedy for unequivocal perjury in Declarations
opposing an Ex Parte Application, is a deprivation of
Due Process of Law. Defendants’ July 27, 2007
Protest re fabricated claim of “June 2, 2007 persona!]
service” observes:
Charles Jensen has tiptoed around embarrassing
facts related to his false claims of service which
are set forth in Defendant’s Affidavit of July 27,
2007, which show that he cannot have testified
truthfully in the affirmations on this subject he
made in his June 14, 2007 Declaration. This
includes a) the fact that James Parker was not
alone on June 2, 2007 at 7:45 PM when a
“personal service” was alleged to have taken
place, b) the fact that the nearest approach to the
alleged June 2, 2007 personal service was a
mailing of papers which was postmarked June 4,
2007, c) the fact that Plaintiff was notified in a
letter of June 11, 2007 that the failure of his
attempts at service to that point failed to satisfy
the requirements of CCP sec 415.45 (a) & (b), and
d) the fact that a flagrantly inadequate tossing of
the summons and complaint over our fence on
June 1, 2007 (that was described as having been
delivered otherwise in these same papers) forced
Defendants’ to respond in their Answers of June
4, 2007. Defendants’ reply brief quotes the lan-
guage in their forced Answers which challenged
the clear inadequacy of service and notes: “When
an Answer squarely challenges the adequacy of
service in such a manner it qualifies as a ‘Special
Appearance’ and thus DOES NOT WAIVE THE
CHALLENGE TO THE SERVICE IT SEEKS TO
CALL TO THE COURT'S ATTENTION.
James Parker’s August 22, 2007 Brief on Fees
Related Implications of Plaintiffs Subterfuges
observes:
Charles Jensen argues in Item #6 of his Decla-
ration of June 14, 2007: “That per CCP Sec
410.50 both Defendants have waived as a
legal right any claim to invalid service,
having made general appearances before
this court.” However, the California Supreme
Court ruled in The 1880 Corporation v Superior
Court (1962) 57 Cal. 2d 840, 843 that raising
factual issues in a manner similar to Defendants’
Answers “are consistent with the character of a
proceeding had upon a spectal appearance.” 1880
Corporation cites Pease v City of San Diego (1949)
93 Cal 2d 706, 711 which held: “We do not
consider the filing of the answer [setting forth
petitioner's grounds for asserting a lack of
jurisdiction] to set aside the default a voluntary
general appearance or a watver of the objection to
the jurisdiction of the court.” 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.” (CR-383:24 to CR-384:6)
Our January 24, 2008 Appeal Transcript
Appendix notes:
At the January 24, 2008 Appeal Hearing, Defen
dant Michael Halliwell added another item to his
listing of pivotal aspects of the case: “IT had failed
to mention an important aspect of the case deal
ing with the perjury charges regarding Charles
Jensen relating to the [original service] and Form
UD-150, and neither of which were in the file
when the trial date was set — whatever your
policy is, as far as trial date setting, [it is wrong]
Lo set a trial date and have no proof of service
that we've received it, and no proof of service
relating to the UD-150. This is something that
Judge Nadler explicitly reserved ruling on, but
when we went to Judge Rushing, she said we’re
past all that. Basically, we were victims of
deliberate, unethical tactics.” (Transcript at 9:4
13) (Id: at 8:7-19)
Rosales v Thermex-Thermatron, Inc. (1998) 67
Cal.App. 4th 187, 199 penalizes unethical tactics
Palmer’s testimony is tantamount to a confession
that his responses to the requests for admissions
were deceptive. .... Litigation is supposed to be
a search for truth. Ilere the defense abandoned
its part of the search in favor of tactics that made
plaintiffs pretrial discovery more burdensome. It
is appropriate that the defense now pay for that
burden.
Rosales is cited re Resolution (2003) #1-07-03
(Beverly Hills Bar Association) against concealment
¥
~
tactics
[t is one of the intended purposes of the discovery
statutes in California to avoid trial by surprise
and ensure that the outcome of the trial will be
determined by a fair balancing of all the facts,
rather than by the precariousness of keeping one
party guessing as to another party’s intentions
(www.cdcba.ory/pdfs/R2003/01-07-03. pdf)
Defendants hoped that they would have a chance
in the trial date setting process called to their atten
tion by the Summons (CR-004) by a reference to
information found at (www.courtinfo.ca.gov/selfhelp)
to secure action on their challenge to the adequacy
of service before having to deal with other aspects of
the case. The Judicial Council's website describes a
process which allows 5 days for a tenant to respond
to a landlord's request before the court schedules a
trial for the case. But Charles Jensen admits:
“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
this process. Ifa “counter at-issue: 1s filed the Court
can/has changed the date for trial if that is what is
called for.” (Reply Bricf 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.)
Our January 24, 2008 Appeal ‘lranscript
\ppendix notes:
The first aspect 1s proper setting of the trial date
[f that is not set properly, of course, the whole
case falls right then and there. It is our position
that the Statewide policy is that the judge who
sets the trial date is supposed to receive input
from both sides before he sets the trial date,
which did not happen in this case. I[ did not know
it to be true, but Charles Jensen has said that the
policy in this jurisdiction is to automatically take
the earliest possible date and set the trial date
then. [Consider] the effect of that. And since the
initial trial date controls discovery, it is appar-
ently the inadvertent policy of this particular
Court, never to allow discovery except to the
extent that the other side voluntarily cooperates.
Because by setting the trial date at the earliest
possible date, and the cut off on completion of
discovery is five days before that, there’s just no
possible possibility of discovery.” (Transcript at
5:19 to 6:10) Judge Chouteau responded: “You
have covered this subject in the papers.’
(Transcript at 6:11-12) (Id. 4:15-21)
Elkins v Superior Court of Contra Costa County
(2007) 41 Cal 4 1337, 1365 makes justice the top
priority
Delay reduction and calendar management are
required for a purpose: to promote Lhe just
resolution of cases on their merits. [Citation
Accordingly decisions about whether to grant a
continuance or extend discovery “must be made
in an atmosphere of substantial justice. When
the two policies collide head-on, the strong public
policy favoring disposition on the merits out
weighs the competing policy favoring judicial
efficiency.” (Hernandez v Supertor Court (2004)
115 Cal App.4" 1242, 1246)
5. Bogus UD-150 Trial-Date-Request in Case File
Defendants were surprised by their notice of the
June 19" trial date, since they had not (and never
did) received a copy of Plaintiffs Form UD-150, and
when they went to Room 107J on June 11" there
was no (bright blue) Form UD-150 in the Case File
either (see listing of Filings by Plaintiff as of June
11th at 10:00 AM (CR-025), verified by window clerk
“C.0O.” (at CR-031). Defendants’ June 11, 2007
Memorandum Relating to Trial Date Setting
complains: “Form UD-150 was never provided to
Defendants, so the clock never started running for
a Counter-Request, creating many serious prob-
lems.” (CR-022) (CR-1478:3 to CR-1479:3
The integrity of court files (or lack thereof) has
been a key issue in this case (documented from the
first week of proceedings by Defendants and NEVER
addressed by any Judge). Defendants have docu-
mented (by window clerk “C.O.”) the absence of
Charles Jensen’s Proof of Service for his initial
Summons and Complaint from the Case File on June
11, 2007 (and at every inspection they were allowed
during the subsequent week) and the absence of
Charles Jensen’s Form UD-150 (for the same period
of time). These documents later appeared as if filed
on June 6; 2007 and contained false claims of a 7:45
PM June 2, 2007 personal service on James Parker
and of a substitute service on Michael Halliwell at
this same time (with a bogus claim that the signify-
cance of this substitute service was explained to
James Parker). There was also a similarly stamped
Form UD-150 (wherein Charles Jensen falsely
claims to have served a copy on James Parker).
Michael Halliwell protested Plaintiffs Form UD-
150 service and filing defects to Judge Nadler on
June 19, 2007:
First off, we have some factual predicates weve
really got to nail down here. I don’t think Your
Honor would rule and grant this motion if, in
fact, you believed that contrary to the proof of
service you have in the file that he never mailed
the [Form U.D.] 150 to us, 1n other words, the
fact that it is in the file, it was in the bowels of
the bureaucracy. I’m the one that went to the
Court. I got the httle initials at the top, “C.O.”
the person who was at the window, who gave me
the complete file as of the 11th. Not only am I
alleging to you that I never received a document
he says he mailed to me, I got one of the court
employees, because | actually enumerated the 14
pages in the file that were provided by other than
plaintiff, | mean defendant. We didn’t enumerate
our own things. But at the time on June 11th
when I served the document with the Court and
the opposition, it was 1n the case file, it lists the
actual documents other than those provided by us
that were physically in the file. And this docu-
ment, as of June 11 at 10:00 o'clock, signed off
by a person with initials “C.O.” and a receipt for
the 14 pages that were there, that I’ve even got a
copy of the actual 14 pages that were there.
(Transcript at 14:22 to 15:16) (CR-1141-1142)
Defendant Michael Halliwell affirmed in his July
19, 2007 Affidavit re Plaintiffs Misrepresented
Filings:
On June 11, 2007 both Defendant Mike Halliwell
and the window clerk in room 107J inspected the
Case File, and determined that the ONLY
documents in the file from Plaintiff were the
Summons and Complaint filed June 1, 2007.
Defendant both served on Mr. Jensen and filed a
Complete Listing of Documents in File
except Defendants’ filings (as of June 11, 2007
at approximately 10:00 AM); and the accuracy of
this listing was NEVER challenged by Plaintiffs
counsel in subsequent proceedings. (Notable in
their absence were Plaintiffs Proofs of Service
and Form UD-150 that later turned up in the file
Stamped as Filed on JUN 6 2007.) (CR-250: 15-22)
Leaving aside the serious matter of how Mr.
Jensen’s BRIGHT BLUE form UD-150 could have
been over-looked in the Case File on June 11,
2007 (when Defendant Mike Halliwell had a
deputy clerk photocopy all fourteen pages in 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.
Michacl Halhiwell’s June 17, 2007 Affidavit
observes:
It would be difficult to imagine a case
where the right (in mandatory Form UD-
150) to make a COUNTER-REQUEST
relating to the setting of a trial date is more
important than in MCV 191306 as handled
by Plaintiff's attorney Charles Jensen.
Surprise, Surprise! This document is also
missing from the case file (see Complete
Listing of Documents in File —- except
Defendants’ filings, as of June 11, 2007 at
approximately 10:00 AM)... Defendant
should have some input relating to jury-
nonjury, estimated length of time the trial
will take, and dates of non-availability and
reasons therefore — before a suggestion
based on minimizing the opposing party’s
opportunity to prepare, is placed on the
calendar.
On Friday afternoon June 8, 2007 an Order
& Notice of Trial Unlawful Detainer in
CHRYSANTHE E. PAXINOS vs. MICHAEL J.
HALLIWELL, ET AL arrived at Defendants’
address (postmarked June 7, 2007). This
Notice said a trial had been set for June 19,
2007 at 8:30 AM. If somehow Michael J
Halliwell reacted with lightning speed and
got off an interrogatory seeking the name of
the anonymous complainer mentioned in
the February 20, 2007 Notice of a March 26,
2007 nearing attached to Plaintiff's March
30, 2007 Complaint, it would have arrived in
Mon-day’s (June 11, 2007) mail at Mr.
Charles Jensen’s office. He might have
waited until his response deadline on June
16, 2007 and not answered at all (since
discovery closed on June 14, 2007). He
might have said he didn’t know, or he might
have actually supplied the name of the
person who complained about Mr. Parker’s
“threatening behavior.” It wouldn’t have
made any difference as it was too late
for any follow-up. (CR 74-75)
Thus denial of discovery flows from biased trial
date setting and perjury, which is protected by file
tampering.
6. Court Squelches Trial Date Setting Challenge
Defendant answers Judge Nadler re trial-date
notice:
Yes, I did [receive it], but I never got this
document providing the information he says he
sent to us. The point being that had he actually
sent a document — first of all, I am perplexed.
There is one thing that’s quite clear, we answered
on the 4th, he got our answer on the 5th, he went
to the court and in one way or another got a
decision setting a trial date on the 6t». That’s in
the record, it is undisputed. Those are tie
timeline [facts]. Now how in the world can the
Court expect even if he had sent the document to
us as he claimed, he would know that such
document wasn't in the file on the 11*® when I
looked for it and I, in fact, filed a document with
this Court noting the absence of this document,
but even if it had been mailed to me, it would not
have reached me in time for me to do anything
about it because the Court simply didn’t wait for
any input from the other side.
It was patently obvious that if the Defendant
answers on the 4%, the Plaintiff shows up on the
5th and you set a trial date on the 6t, you don’t
really care what the other side has to say. It is
obvious on the face of it. It looks to me lke you
let him just climb aboard [as] on a Law and
Motion matter, like you ordinarily aren't able to
do, you just take the word of the attorney what
trial date he wanted and you gave it to him.
(Transcript at 15:19 to 16:14)
Judge Nadler warned Defendant for this protest:
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 disres-
pectful to this Court, and [m going to 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 argu-
ments. 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 possi-
bility of fines and/or jail time for each instance of
contempt, okay? (Transcript at 16:15-17:1)
Hiding $4000 Payment Coercion from the Jury
The foundation for the extraordinary (for an
unlawful detainer action) legal fees awarded in
Paxinos v Halliwell & Parker was established before
the case was transferred to Judge Elaine Rushing.
After Judge Gary Nadler indicated he intended to
reject Defendants’ demand for a jury trial, he
operated off the record as a mediator, to try to
arrange a settlement whereby Defendants would
drop their opposition to eviction, in exchange for
being given a reasonable time to find another place
to ive. Even though Local Rule 2.2E set the
allowable attorney’s fee for a normal court trial at
$375, and.no trial had yet been conducted, Judge
Nadler made no objection when Charles Jensen
demanded an UNREVIEWABLE $4000 payment as
a condition for ending the lawsuit.
In subsequent briefing Defendants made the
point that Charles Jensen was placing his own
interest .n fee generation ahead of his client’s
interest in 1:¢gaining possession of the disputed
premise. However, Judge Rushing would not allow
Jensen’s insistence on an unreviewable exorbitant
fee to be cited by Defendants’ as evidence of
improper motivation. In June 25, 2007 pre-tria!
proceedings, Judge Rushing ruled:
Then there was some discussion in your brief
about settlement discussions. That is absolutely
forbidden. There’s to be no mention, none, of any
offers made by anyone to settle this case prior to
coming to trial today in front of the jury. That
would cause a mistrial, which would require me
to excuse everybody who has come over, and |
would assess sanctions in terms of fines against
anyone who causes a mistrial after being warned;
okay? (Transcript at 154:28 to 155:7)
Our mistrial motion cited Defendant’s comment:
I was denied the right to say anything at all
about various ways in which the process of this
inquiry was obstructed by perjury and extortion.
The extortion was ruled out of bounds because it
took place in settlement talks. I believe that the
confidentiality of settlement — I mean the spon-
taneity, the uninhibitedness of the settlement
talks is the basic point here. That’s very similar
to executive privilege where President Nixon
asserted that defense because he wanted un-
guarded advice. It was the same principle about
in the case of criminal activity in Nixon v Sirica
land United States v Nixon], the privilege was set
aside. | was not allowed to make that argument.
(June 26, 2007 Transcript at 443:16-28)
Michael Halliwell then added: “I would like some
clarification on the Court’s grounds for denying all
the relief I requested, which I've just discussed.”
(Ibid at 444:1-3) (CR-1252:5-11) Judge Rushing
ignored this request for clarification of her handling
of the extortion issue
For fighting against this $4,000 unreviewable
fees award for giving up, Defendants were
eventually saddled with $10,000 in fees by Judge
Rushing, even though Santisas v Goodin (1998) 17
Cal 4th 599, 614 states: “We are satisfied that con-
cern for the efficient and equitable administration of
justice requires that the parties be left to bear their
own attorney’s fees.” International Industries v Olen
(1978) 21 Cal 3d 218, 224-225 explains: “The purpose
of litigation is to resolve participant’s disputes, not
compensate participating attorneys. Our courts are
sufficiently burdened without combat kept alive
solely for attorney fees.” (Defendants’ Petition to
Review (S163276) re March 6, 2008 Decision at 26)
8. Defendants Hurt by Assaults on Right to Jury
Although Judge Nadler eventually reversed
himself and granted Defendants a jury trial, our case
was damaged by the struggle it took to obtain this
basic Seventh Amendment right. Charles Jensen’s
attack on our right to a jury was based on three
items missing from our request form, and one which
was in the wrong place (we put the address of the
property in dispute at the top, and failed to realize
that the form called for it to be repeated further
down). Because Charles Jensen never sent us his
request for a court trial, we did not know whether he
had requested a court reporter and did not know
whether we agreed with his estimate for the
duration of the trial. The space for “any dates you
are not available” was left blank, because any trial
date which allowed for the essential preliminaries
was acceptable. Charles Jensen argued: “My
argument is very simple, Your Honor. Were I to
bring such an ‘at issue’ deficient in any one of those
four, it would not be accepted at the clerk’s office for
filing.” (See Transcript at 6:7-26)
Michael Halliwell responded to Charles Jensen's
motion:
I have a similar grievance, and that is when we
checked the file as of June 11, there was
nothing whatsoever in the file from him, not a
deficient document like he claims we left out
some of the information, but nothing whatso-
ever, [no U.D.] 150 or a facsimile. Somehow he
acquired a trial date on June 6, he was given a
trial date of June 19th, As I read the Form [U.D.]
150, it has some very important things on there.
The most important is the request/counter-
request. The point where he talks about the time
that you are not available for trial, it clearly in
my judgment looks like the judge is supposed to
do a weighing once people say this time is not
available (here is the reason, and this time is not
available, this is the reason) the judge sort of
balances the equities and sets a date. But the
judge never sets this date without any input from
the other party. The reason why the things that
were left off that he complains of is we were in
effect filing a counter-request. We thought the
property was already identified. We thought that
he had [caused] some error in the bureaucracy to
provoke the issuance of the trial] date, [by filing]
something to indicate these basic facts. I can’t
believe that the Court would deliberately issue
the original trial date without him specifying
what the property is, for instance. (Transcript at
7:17 to 8:13)
Judge Nadler granted Jensen’s motion for a court
trial:
Okay, in trial we are. Let me start off with ruling
on some motions that were made this morning
The motion to strike the counter-demand is
granted, and that will be the counter-demanid for
a jury trial, based on the deficiencies of the
demand. (Transcript at 31:6-11)
Defendants (who are non-lawyers) were none-
theless able to prepare a reconsideration motion
which Judge Nadler found persuasive (because all of
the information missing from Defendants’ counter
request had already been included in Charles
Jensen's request for a court trial). However, Judge
Nadler penalized Defendants for not having
submitted jury instructions, along with our motion
to allow a jury trial, and gave Defendants very little
(about % the amount set by Local Rules) to prepare
and deliver their proposed jury instructions to Judge
Rushing. (See Transcript at 91:26 to 92:13.) Our
March 20, 2008 motion for reconsideration states:
Judge Nadler insisted that Defendants file their
proposed jury instructions 72 hours before they
were actually due under Local Rule 4.10H(1).
Judge Rushing went along with Charles Jensen's
June 25, 2007 attack on the format of Defen-
dants’ submission: “They are in some form of a
legal treatise, but they’re not — they’re not BAJI.
They'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) (Id. at
98:23 to 99:4)
9. Effect of Plaintiffs Perjury re Service of Process
Defendants challenged Plaintiffs perjured Proofs
of Service, which claimed that personal service took
place on June 2, 2007, along with an alleged conver
sation about substitute service. No personal service
nor any conversation about substitute service ever
occurred.
Judge Nadler had said in his Order of July 18,
2007 that Defendants “will have an opportunity to
present defenses at trial.” However, at the outset of
proceedings, Judge Rushing failed to live up to this
promise, by declaring that we could only raise the
perjury issue “in some other lawsuit
After the jury was sent off to deliberate, Judge
Rushing permitted the parties “to place on the record
anything that was said at sidebar that wasn’t argued
on the record.” (Transcript at 442:9-10) Defendant
Michael Halliwell responded: “I had a motion to
show that they engaged in perjury 1n 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, I 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 vo backwards. My job i
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 find-
ings about service, whether it was proper or
not, | don’t want you to have that impression,”
(Transcript at 14:2-5)| (Defendants’ Petition to Re
view (S163276) re March 6, 2008 Decision at 12-13)
In defending this aspect of Judge Rushing’s
handling of the case, the Appellate Branch’s March
>
6, 2007 opinion states (3:2-3): “A general appearance
operates as consent to jurisdiction of the parties
dispensing with the requirement of service of
process. Parsons v Superior Court of Marin County
(2007) 149 Cal. App.4™ Supp. 1, 6 notes this basi
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 appear
ance, because this “moots the very point he 1
seeking to raise.” (Delta Imports, Inc. v Munictpal
Court (1983) 146 Cal. App. 3d 1033, 1036.)
Defendants have a right to invoke court processes
to challenge invalid service: The California Supreme
Court ruled in Lacrabere v Wise (1904) 141 Cal 554,
DD6:
It is an essential prerequisite to the maintenance
of an action for unlawful detainer, under section
1161 of the Code of Civil Procedure, and that a
three days’ notice ... should be served on the
defendants, as subdivision 2 of that section
requires. It is equally essential to allege the
service of such demand in the complaint, and, if
controverted, prove on the trial. Service is an act
to be performed before suit, a fact to be alleged in
bringing suit, and a fact to be proven to success-
fully maintain it, and such fact is to be proven as
any other disputed fact in the case. The rule is,
that best evidence must be produced which the
nature of the transaction will permit, the
testimony of witnesses given in open court where
the adverse party may have an opportunity of
cross-examination. Affidavits are not in the
nature of the best evidence by which to prove
issuable facts. They rank on no higher plane for
that purpose than hearsay evidence.
Judge Rushing seemed to never have quite
enough time to allow Defendants adequate
opportunity to prepare, for which she offered this
explanation: “There is a statutory right for very
short time frames in unlawful detainer actions.”
(Transcript at 159:19-20) After Charles Jensen
supported Judge Rushing on this point, Defendant
Halliwell replied: “I believe he referred, and Your
Honor referred to Civil Procedure Code 1179(a),
which does no more than establish unlawful detainer
priority over other cases. It in no way implies that
an unlawful detainer case itself should proceed more
rapidly than justice requires.” (Ibid. at 161:7-11)
However, Judge Rushing cut short Defendant’s plea,
saying: “If this is a motion for continuance, the
motion is officially denied, and so I'd like to move on
to jury selection issues.” (Ibid. at 161:23-25)
Although she had admitted to never having
conducted an Unlawful Detainer jury trial, Judge
Rushing seemed confident that she knew the proper
way to handle one. Thus she said in her comments
seeking to justify rushing through the Motions in
Limine phase of proceedings: “In unlawful detainer
actions, the time frames are much more truncated
than in any other civil litigation for many reasons.
The Court is bound to follow those rules.”
(Transcript at 447:3-6) Here is what the California
Supreme Court has said about the underlying
principle here in Green v Supertor Court (4974) 10
Cal 3d 616, 636:
The landlord contends, however, that the
recognition of such a defense will completely
undermine the speedy procedure contemplated
for unlawful detainer actions. In the first place,
however, while the state does have a significant
interest in preserving a speedy repossession
remedy, that interest cannot justify the exclusion
of matters which are essential to a just resolution
of the question of possession at issue. As the
Court of Appeal observed in Abstract Investment
Co. v. Hutchison (1962) 204 Cal.App.2d 242, 249.
“Certainly the interest in preserving the sum-
mary nature of an action cannot outweigh the
interest of doing substantial justice. To hold the
preservation of the summary proceeding of para-
mount importance would be analogous to the ‘tail
wagging the dog.” (CR-1255)
Problems relating to Plaintiffs service of the
Summons and Complaint should have been
straightened out before a trial date was set.
However, the premature setting of a trial date and
the five-days-before-trial deadline for discovery
allowed Plaintiff to “run out the clock” on
Defendants’ request for information contained in
Form (UD-106) Interrogatories 71.7 & 77.1.
Plaintiffs attorney Charles Jensen was the very
antithesis of the sort of member of the Bar pre-
scribed by Business & Professions Code § 6068(d)
who “shall employ, for the purpose of muintaining
the causes confided to the member such means only
as are consistent with truth.” With respect to
discovery, Charles Jensen acted as if he had never
heard of California Attorney Guidelines of Civility
and Professionalism (calbar.ca.gov.) which says:
#9: Attorneys are encouraged to meet and confer
early in order to explore voluntary disclosure,
which includes identification of issues, iden-
tification of persons with knowledge of such
issues, and exchange of documents.
Townsend v Superior Court (1998) 61 Cal.App.4t
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 obtain ‘an informal resolution of
each issue.” Obregon v Superior Conit (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.4t 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 “[iJn order to accomplish the
various legislative purposes [of the discovery
law], the several statutes must be construed
liberally in favor or disclosure. . .” Greyhound
Corp. vu Superior Court (1961) 56 Cal 2d 355, 377;
Emerson Electric v Supertor Court (1997) 16 Cal
4th 1101, 1108.
Grey:1ound 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 pr -paration 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.)”
Allowing documented charges of perjury to be
brushed aside, and provide a foundation for the
elimination of fact-finding from the case, violates the
basic principle set forth in Hall v Superior Court
(2005) 133 Cal.App.4t 908, 919:
Court rules should be designed to accomplish the
ends of justice, to protect rights, and to imple-
ment the substantive law. When a policy, practice
or rule operates instead to defeat these purposes,
and deprives an accused of a fair trial or determ1-
nation on the merits, then the policy, practice or
rule must give way.
11. Reopening of Discovery after New Trial Date
The refusal of Plaintiff's counsel to “meet and
confer” as required by discovery rules, and his
refusal to respond to Form [nterrogatories 71.7 &
77.1, clearly supported the reopening of discovery
when the trial date was shifted from June 19, 2007
to June 25, 2007 (as a result of PLAINTIFFS
frivolous challenges to Defendants’ right to a jury
trial). Defendant’s July 22, 2007 Affidavit re
Misconduct of Plaintiffs Counsel says:
There is no such thing as a legitimate “sneak
attack” in the law, and the spirit embodied in
CCP Sec. 2033.220(a) should be reflected in
discovery and every other aspect of presenting
the facts of a case: “Each answer in response to
requests for admission shall be as complete and
straightforward as the information available to
the responding party permits.” The California
Judicial Council (under the mandate of CCP Sec.
2033.710 in developing UD-106) has sought to
make sure that a landlord’s “hidden intentions”
do not remain so, with Form Interrogatory 77.1
which says: “State all reasons that the NOTICE
TO QUIT was served or that defendant's tenancy
was not renewed and for each reason [details
omitted]. Form Interrogatory 71.7 says: “Has any
PERSON ever reported any nuisance or distur-
bance at or destruction of the RENTAL UNIT or
PROPERTY caused by the defendant or other
occupant of the RENTAL UNIT or their guests?
If so, for each report state [details omitted].
Charles Jensen asserts with respect to
Defendants: “They do not however state why they
delayed in serving their requests. They only make
hearsay accusations that counsel evaded them. All
they had to do was serve the request.” (Reply Brief
at 5) This does not square with this aspect of
Defendants’ search for the results of the March 26,
2007 Hearing described in Defendants’ Consolidated
Brief “It involved giving Defendants’ ‘Request to Bar
Surprise Evidence’ (CR-106) which mostly consisted
of Form Interrogatories 71.7 and 77.1 (CI: 0180),
directly to Kadin Blonski while the parties waited
for Judge Nadler’s decision on restoration of their
right to a jury trial; when Mr. Blonski passed this
proposed evidence sanction to Charles Jensen, he
tersely remarked, “This isn’t the law.” (4:23-25).
This is indeed hearsay, but Charles Jensen does not
contest the reliability of 1t, and it is certainly more
rclhiable than the anonymously compiled second- and
third-hand complaints in Plaintiffs Exhibit #5 (CR-
144)
In Fairmont Insurance Co. v Supertor Court
(2000) 22 Cal 4th 245, 251, the California Supreme
Court speaks approvingly of the resetting of the
discovery time clock endorsed in Beverly Hospital v
Superior Court (1993) 19 Cal.App.4t» 1289, 1293: “It
is also consistent with the legislative history of the
provision and the Civil Discovery Act of 1986 of
which it is part, which indicate that the purpose of
the statute was to climinate a source of discovery
abuse and unnecessary trial] delays caused by parties
secking continuances or postponements of trial for
the sole purpose of extending the time for discovery.”
There is nothing more certain in the case at bar than
that Charles Jensen’s no-notice June 19, 2007
challenge to Defendants’ right to a jury trial was
NOT motivated “for the sole purpose of extending
the time for discovery.”
In re Marriage of Goddard (2004) 33 Cal 4t 49
58 quotes Au- Yang v Barton (1999) 21 Cal 4th 958,
963:
The policy of the law is to have every litigated
case tried on its merits, and it looks with disfavor
upon a party, who regardless of the merits of the
case, attempts to take advantage of the mistake,
surprise, inadvertence, or neglect of his
adversary
One might wonder why Defendants would wish to
“meet and confer” with anyone as abusive as Charles
Jensen, but his abusiveness has a purpose. In
Defendants’ Motion for Reconsideration (at 66:15
24), which Charles Jensen treats so disdainfully
Defendants note how Charles Jensen successfuliy
employed his abusive style to sidetrack Michael
Halliwell’s effort to have Judge Rushing explain her
ruling on Exhibit #5 (allowing into evidence an
anonymous compilatio,: of hearsay complaints). He
starts by denouncing Dr. Halliwell (who ha. taught
university courses about legal protection of political
rights) as “somebody who ts uneducated, doesn't
know what he ts doing, and doesn't choose to follow
the law.” (Transcript at 444:10-12) After praising
Judge Rushing, Charles Jensen continues: “The
Evidence Code sets forth what your parameters are.
You haven't violated any of them. But what isa
continuLn, * violation here of even the most basic
preliminary discovery ts completely steamrollered by
somebody who can't read.” (Transcript at 444:15-19)
After bypassing the vital role of consultation noted
in Townsend v Superior Court (1998) 61 Cal.App.4*
1431, 1434-1435 and cases cited therein, Charles
Jensen continues his denunciation of Dr. Halliwell:
“He chose not to. And now, like the two boys in
Southern California, Menendez, having blown thetr
parents apart at short range with a shotgun, nou
they come in sentencing and they say, give us
consideration for now we are orphans. He’s got just
about as much validity. They don’t even read the
code section. If they did, perhaps the words are too
big and they don't understand it.” (Transcript at
414:24 to 445:2) Charles Jensen then tries to
proclaim the legitimacy of his successful campaign to
Vitiate Greyhound Corp v Supertor Court (1961) 56
Cal 2d 355, 376 (“One of the principle purposes
of discovery was to do away ‘with the sporting
theory of litigation - namely, surprise at
trial.”) Next, Charles Jensen invents out of whole
cloth sidebars in Judge Nadler’s pretrial proceedings
[who dealt with all ex parte applications without
seeing either side] which supposedly dealt with three
ex parte applications: “Things that went on al
sidebar, because Judge Nadler having seen three ex
partes with absolutely no bases whatsoever, first year
student, the school that you graduated from, pulled a
stunt luke that, any one of the professors would have
given him a quarter and said call your mama, you'r
not going to make tl as an atlorney. And yet he
indulged because he’s far brighter than lam and far
more patient than lam right now.” (Transcript at
445:9-16) Evenif it were true that a self represented
litigant were to overlook one or more of the technical
aspects of the discovery process, this does not make
denial of any discovery appropriate. (California
Supreme Court Appendix EF at 6)
12. Rejection of Caselaw-Based Jury Instructions
Judge Rushing told Michael Halliwell, “you didn't
file any jury instructions.” He replied, “Yes, I did
Pardon me, Your Honor. I| certainly intended to.’
explained:
We have a document (CR-093 to CR-096) that has
that he [Charles Jensen] refers to as a legal
treatise, that | have two proposed jury instruc
tions with the supporting case law. The jury -
proposed jury instructions are at the bottom of
each one. | give the case law first, and then in
bold capital letters is my proposed jury instruc-
tion number 1 — on the issue of discrimination
and retaliation. And then on the issue of burden
of proof, which is the second jury, proposed jury
instruction, I cite appropriate case law and
1uthorities, and again in capital letters 1s the
proposed jury instruction number 2. (Transcript
at 174:23 to 175:5)
Judge Rushing responded: “The document that
you submitted 1s not I mean, there are things 1n it
that could’ be used as jury instructions, but that’s
youre making me do a lot of work for you and that
not my job.” (Transcript at 175:18-21) (CR
This sort of bending the rules to favor Plaintiff
became an issue in Appeal Briefing (for a January
24, 2008 hearing on jury trial issues)
Charles Jensen’s Reply Brief (at 7) notes: “Judge
Rushing doesn’t have to assume an attorney Is
correct.” Appellants agree, but nevertheless she
said early in proceedings before her: “ve never
tried an unlawful detainer case, a jury trial,
so if there’s any difference of what I’m
saying, l expect Mr. Jensen to speak up.
(Transcript at 163:23-26) Charles Jensen
continues: “Judge Rushing is a very experienced
jurist and makes her rulings based on the state of
the law.” (Reply Brief at 7) In fact, the state of
the law is precisely what the California Supreme
Court authoritatively affirms, in its decision in
Elkins v The Superior Court of Contra Costa
County of August 6, 2007. Elkins v Supertor
Court (2007) 41 Cal 4t® 1337, 13864-1365 points
out the harm caused by excessive rigidity in
applying deadlines:
xe) example iT) Hernands a Oupe rior Court
(2004) 115 Cal.App.4™ 1242, 1246, the
reviewing court held that the trial court
abused its discretion in refusing, in relian
upon a local fast track rule, to reopen
discovery ‘Strict adherence to these delay
reduction standards has dramati ally reduced
trial court backlogs and increased thi
likelihood that matters will be disposed of
efficiently, to the benefit of every litigant
[Citation.|] Here, the trial court’s orders
promote judicial efficiency by maintaining
strict time deadlines. But efficiency 1s not ar
end in itself. Delay reduction and calendar
management are required for a purpose: to
promote the just resolution of cases on then
merits. [Citations.] Accordingly, decisions
about whether to grant aicontinuance or
extend discovery ‘must be made in an
atmosphere of substantial justice. When the
two policies collide head-on, the strong public
policy favoring disposition on the merits
outweighs the competing policy favoring
yudicial efficiency.” (CR-1479 to 1480)
13. Tenants Barred from Hearings against Them
Defendant quotes a February 4, 2007 rent-check
letter:
| have not heard back from you about attending
an upcoming Homeowners’ Association meeting
with me to clear the air about recent events |
referred to in last month’s rent check letter, as
well as set some standards with the Board about
ways to establish the true legitimacy and
redibility of any future situation they ma\
claim has occurred. (Transcript at 322:3-I1(
hs )
Michae i{ rtliwe I] i ked |) You re all Writing
that? (Transcript at 322:11) James Parke
nswered: “Yes, I d lranscript at 322:12
Viichaec!l Halliwell asked lid you receL ins
response lranscript at 32 }) Jame irke
inswered and expl led: “I did n lt Was yu ,
reminder (; fwhat 1! had previously asked hin
n the preceding letter, the last rent che etter. ||
with me toa homeowners mecting because I cant
go unk I'm invited by the homeowner.” (Tran Ipt
it 322:14-17) (CR-1397 598)
Michael Halliwell asked James Parke
recalled writing this in his February 4" letter
Please let me know when you would be able to
ittend, and I'll be there.” (Transcript at 322:22-24)
James Parker answered Yes.” (Trans ript
122:25) Michael Halliwell then asked, “Did he ever
offer to accompany you to a Homeowner
\ssociation meeting?’ (Transcript at 322:26-2
James Parker replied, “Never.” (Transcript at
2:28) (CR-1398)
In recent settlement negotiations (conducted
under the cloud of Judge Nadler’s expressed
intention to deny a jury trial) in separate mediation
by the Court’s mediation service and also in Gary
Nadler’s intervention in his non-judicial capacity (as
an experienced expert in Unlawful Detainer cases) it
become unequivocally clear that during whatever
time James Parker and Mike Halliwell would be
allowed to remain at 1041 Copeland Creek Drive,
they would not be allowed to appear at Homeowners’
Association proceedings to give their side in any
disputes. THIS IS TANTAMOUNT TO HANGING
A SIGN ON THE PROPERTY WHOSE OCCU-
PANCY IS IN DISPUTE SAYING, “THIS IS A
BILL-OF-RIGHTS-FREE ZONE; ANY TENANT
SEEKING TO ASSERT HIS CONSTITUTIONAL
RIGHTS HERE REMAINS AT THE PLEASURE
OF, AND MAY BE EVICTED AT THE DISPLEA-
SURE OF THE MANAGEMENT.” (CR-102:20 to
CR-103:14) (CR-11340)
Judge Rushing may have felt she had authority,
as a matter of state law, to make her court into an
indirect enforcer of the discrimination against
tenants in the complaint evaluation policy of the
C
4&
Meadow Pines Homeowner's Association. However,
state law CANNOT justify enforcement of such a
restrictive covenant in the face of FEDERAL
protection against arbitrary discrimination. In the
course of invalidating such a course of action six
decades ago, the U.S. Supreme Court ruled in
Shelley v Kraemer (1948) 334 U.S. 1, 20: “The
difference between judicial enforcement and nonen-
forcement of the restrictive covenants ts the difference
to petitioners between being denied rights of property
available to other members of the community and
being accorded full enjoyment of those rights on an
equal footing.”
Judge Rushing would not allow any discussion of
the implications of the restrictive covenants of the
Meadow Pines Homeowners’ Association, whose
Kangaroo Court style of resolving disputes between
homeowners and tenants, was the source of a Report
(Exhibit #5) which was identified at trial by Plaintiff
(see Transcript at 378:3-18) as the ONLY reason for
James Parker's eviction).
Michael Halliwell tried to ask James Parker
whether “there was any avenue whatsoever for you
to get your side of this [dispute] into the hands of the
Homeowners’ 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.”
(Transcript at 285:9) (CR-1388)
Michael Halliwell started to go over “this surprise
document” (the March 26th Hearing Report):
“Number one, that’s crossed out; isn’t it?” (Transcript
at 351:2-6) James Parker answered: “Yes. The
name is crossed out.” (Ibid. at 351:7) Michael
Halliwell added: “And no matter how you hold it. up
to the light, you can’t really figure out who that is?”
(Ibid. at 351:8-9) James Parker answered: “Who the
person is? No.” (Ibid. at 351:10) Michael Halliwell
continued: “So an anonymous person has made a
charge. This person is anonymous?” (Ibid. at 351:11-
12) James Parker answered: “That’s what it appears
to be, yes.” Ubid. at 351:13) When Michael Halhwell
tried to lay a foundation for asking James Parker
how he felt about being accused on the basis of such
unreliable evidence, Charles Jensen objected, saying:
“This is going to ask for a legal conclusion.” (tbid. at
351:16-17) Judge Rushing ruled: “It is irrelevant.”
(Ibid. at 351:18) (CR-1416)
14. Total Bypassing of Arbitrary Discrimination
Defendants’ Transcript Excerpts quote a June 19,
2007 hearing debate about the scope of Marina Point
vu Wolfson. Defendant Michael Halliwell argued:
3 Within the governing precedent, I think Alarina
Point v Wolfson is still good law, having been
affirmed by the state Legislature, explicitly in the
course of this amendment I’m citing, it says in
Marina v Wolfson in negating the exclusionary
policy in this case, you must recognize at the
outset that California, unlike many other juris-
dictions, the Legislature has sharply circum-
scribed an apartment or [{homeowner’s] discretion
to accept and reject tenants on the basis of the
landlord’s own likes and dislikes. This is directly
out of the governing precedent recently affirmed
explicitly by the Unruh Act [amendment] by the
Legislature. So I believe I can stand very strong
on the idea that Marina Point v Wolfson is still
good law, the question would be how Your Honor
interpreted that precedent. I don't think it’s been
overruled.
But I have more. And that is this, the argument
that the landlord is basica!ly saying, and I’ve
heard repeated in one way or another in Mr.
Jensen's refusals to talk about any other aspect of
the case, that is this, the landlord doesn’t need to
have a reason, he can discriminate, not against
certain protected classes, but he can discriminate.
If you are being discriminated against in an
arbitrary fashion but you are outside of a pro-
tected class, too bad. That’s what I think is the
gravamen of what they are saying. This is very
similar to an argument asserted by Proposition
14 in 1964 which had the full force of state law
behind it because it was a constitutional
amendment adopted by two-thirds of the people,
which, of course, constitutional amendments
sweep away everything in their path as far as
State law is concerned. Nevertheless, there is one
last line of defense, and that is the Due Process
Clause of the 14% Amendment, because the
Federal Constitution is supreme, and 1f it can be
shown that the discrimination in this case vio-
lates the Federal Constitution, the Due Process
Clause thereof, then we are okay, even if we are
not within the safe harbor of the Unruh Act
itself. (Transcript at 78:8-79:17)
Michael Halliwell continues to discuss appli-
cations of the 14t» Amendment to prohibit housing
discrimination:
Now the scope of the Due Process Clause of the
14th Amendment was authoritatively interpreted
by the California Supreme Court in Mulkey vu
Rettman in 1966. This was a previously pled
case, that’s why I wanted to show you exactly
where it is, but in this decision, there was a head-
on collision between Proposition 14, the full and
complete expression of state authority intended
to repeal the Rumford Fair Housing Act and the
Unruh Act, which were both on the books at the
time, and when the dust cleared the Unruh Act
and the Rumford Fair Housing Act were left
standing, and Proposition 14, if you will, lay dead
on the battlefield. Because the Supreme Court of
California ruled in Mulkey v Reitman it is now
beyond dispute that the 14th Amendment protects
the rights to acquire, enjoy and own property,
equality and enjoyment of property rights was
regarded by that amendment as an essential pre-
condition to the realization of the other basic civil
rights and.- liberties which the amendment was in-
tended to guarantee. (Transcript at 79:18-80:11)
(CR-1164-1165)
Charles Jensen insisted that only discrimination
agains® children is covered by Marina vu Wolfson:
I have listened to this charade all day long. It is
the only anger [1l express. If people wish to
quote the law, they should quote it correctly,
whether they are an attc .aey or a law student, or
a defendant. Marina v Wolfson and its compan-
ion case, not surprisingly Wolfson v Marina has
to do with discrimination of children, period. The
only dicta that was given to this court is just that,
dicta, it is not the holding of Wolfson. Wolfson
very clearly said you can no longer rent to so
many adults and so many children if they breathe
air. They are persons, and that’s why [in] 1982
CAA, California Apartment Association and the
PBC people changed all the rental agreements
and it now says people. To quote Wolfson for
other than that is to intentionally and knowingly
mislead the Court. The Court is dead on ctie
money with the application of Unruh, and its
non-application in this case. (Transcript at
81:25-82:13) (CR-1166)
One can read Judge Rusuing’s jury instructions
in their entirety, and not realize that California has
any housing discrimination laws.
15. “Too Recent” Reialiation Evidence Disaliowed
Defendants cite Appeal Briefing (for the January
24, 2008 jury trial Appeal Hearing). Charles Jensen
stops short in his quotation of Civil Code Sec
1942.5(a) just after listing “has given notice” as
triggering a six month burden of proof obligation,
while leaving out two other crucial benchmarks.
Thus Defendants’ Reply continues (at CR-1519):
Charles Jensen realizes that 180 days before his
seeking to recover possession of 1041 Copeland
Creek Drive in an unlawful detainer action or
proceeding (on June 1, 2U007) is a viable “evidence
window” and so is the 180 days before his causing
the lessee to quit involuntarily (on July 5, 2007).
In other words, Plaintiffs attorney knows that all
of the evidence excluded by Judge Rushing
because it was “too recent” should have been
allowed to be introduced.
Judge Rushing ruled that the jury could not
consider whatever role was played hy Mr. Paxinos in
post-notice concealment 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).
16. Halliwell Eviction Notice Evidence Kept Out
Defendants’ November 13, 2007 Analysis of
Judge Nadler’s Proceedings says:
[Defendants give| their main defense (in their
Answer at CR-007): “It is clearly arbitrary
discrimination in rentals to exclude someone
because he knows something about his legal
rights, and is willing to help a co-tenant in his
legal battle. The three-day eviction notice 1s
clearly and plainly 2: attempt to use retaliatory
eviction to intimidate
Mr. Halliwell.” (CR-1136)
Judge Rushing kept Defendants from making
the 3 Day Notice to Quit (which Gus Paxinos
never tried to have enforced), a line of attack in
their case. “Composite Brief’ discusses (in
Footnote 3 at CR-1642) a key exclusionary ruling:
After a series of attempted questions and objec-
tions relating to whether Gus Paxinos would have
wanted to do a credit check on any replacement
for Mr. Howard and why no attempt had been
made to inquire about the creditworthiness of Mr.
Halliwell, the witness was asked this question
about the basis for his attempting to evict him by
Michael Halliwell: “In exercising your right to
elect to allow me to stay or not to stay, did you
make any 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.” (Ibid. 224:10) Judge Rushing
ruled: “Sustained.” (Ibid. 224:11) Michael
Halliwell responded: “I’m asking him about his
decision making process; this is a discrimination
case, and [ don’t understand how it could possibly
be irrelevant, [asking] how he is exercising his
discretion.” (Ibid. 224:12-15) Judge Rushing
replied: “I’m sustaining the objection.” (Ibid.
224:16) Ud. at 112:13 to 113:2)
17. Letting in Anonymous Compilation of Hearsay
In re Michael G. (1998) 19 Cal.App.4t* 1674,
1677, says of hearsay exclusion:
Evidence Code section 1200 provides, in pertinent
part: “(a) ‘Hearsay evidence’ is evidence of a
statement that was made other than by a witness
while testifying at a hearing and that is offered to
prove the truth of the matter stated. (b) Except
as provided by law, hearsay evidence is inadmis-
sible.”
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 1s not
under oath and whose demeanor cannot be
observed by the trier of fact.
Defendants’ December 7, 2007 Transcript
Excerpts says:
Judge Rushing did not appear to be much
concerned about such principles [prohibitions in
Evidence Code Sec 1200 against hearsay], since
she responded to Michael Halliwell’s invocation of
the Sixth Amendment (which mandates every
court in this nation to respect these fundamental
rules of evidence) by ruling: “It 1s irrelevant.”
(Transcript at 351:18) In a government of laws,
not men and women, respect for the Constitution
must transcend respect for any judge determined
to brush aside such considerations. Trial by Jury
is a citadel that our Founding Fathers placed in
our Constitution, precisely to provide a means of
protecting the Rule of Law from the sort of
judicial abuse that was so familiar to them. In an
effort to appeal to the sense of 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) Judge Rushing nipped in the bud any
thoughts Michael Halliwell might have had of
mentioning the California Evidence Code, with
this response (Transcript at 351:20-25) to his
x allusion to the Bill of Rights: “You know what,
Mr. Halliwell, ’m going to stop you from making
those comments anymore in this courtroom.
When I make a ruling that something is irrele-
vant, you don’t comment to the jury that the
Sixth Amendment is irrelevant, and I consider
that contemptuous behavior. [| won't tolerate it.”
(CR-1417)
Defendants had been trying from the time the
March 28, 2007 60-Day Notice to Quit made refer-
ence to a March 26, 2007 Homeowners’ Association
hearing, to try to obtain a report on the results of
this hearing (which was to consider the “threatening
behavior’ of James Parker). When Charles Jensen
refused to discuss this matter on April 12, 2007 and
permanently severed communications with Defen
dants, we began our efforts to prevent the intro-
duction of the March 26, 2007 Report into evidence
(until and:unless we had time to examine it before
trial and call its author(s) as witnesses). This was
one of the most important defenses which Judge
Nadler promised Defendants would have an oppor
tunity to present at trial. However, Judge Rushing
gave no more heed to this application of Judge
Nadler’s commitment, than she did to his reserving
the perjury issue for future consideration. Judge
Rushing explained her refusal to rule on Defendant
exclusionary motion (directed at surprise evidence
within the ambit of Form Interrogatories 71.7 &
etiay
Normally — let me just explain something. We'rs
in the middle of a jury trial. I never have juror:
outside waiting. This is not the time to do thi
That’s not what we do to puro! I neve. keep
jurors waiting [| don't care what anyone wants t
file. and | dont know that these are fileable, in
proper form or whatever, but I’m just telling you
right now, once a jury trial started — you wanted
the jury, you have got them. They are out there.
I’m not keeping them waiting. We’re going to put
on the case. If there’s a break, we can let them go
later, and [ can consider some papers if you
would hke. (Transcript at 316:23 to 317:5)
There was a final opportunity to focus Judge
Rushing’s attention on Defendants’ right to know the
nature of the charges against them (which were
certain to have been addressed in the March 26,
2007 “Report”). Charles Jensen said to Judge Rush-
ing: “Your Honor, before we begin, my — the parties
may we do a sidebar on a procedural matter? It will
make a difference in time.” Judge Rushing replied
“Yes.” Charles Jensen called over Defendant to
participate in an unrecorded (Conference at the
Bench). (June 25, 2007 Transcript at 198:2-7)
Defendants were pot successful in changing
Judge Rushing’s unwillingness to protect what they
viewed as their evidentiary rights, but she seemed to
have second thoughts about keeping our efforts out
of the record, when she made this offer the next day
;
We are rpoing to stay on the record to permit the
parties to place on the record anything that was said
at sidebar that wasn’t argued on the record.” (June
26, 2007 Transcript at 442:8-10) Defendant made
the handling of Exhibit 5 the first issue he raised,
although he could not remember its number: “I had a
motion to strike the March 28* letter with the redac-
tions in it that — I’m not sure of the exhibit number.
March 28 should identify it clearly enough. On the
srounds that it was improper due to the anonymous
nature of the complaint and other procedural rea-
sons.” (Ibid. at 442:23-28) Judge Rushing addressed
every OTHER issue raised by either side, but then
hacked off from trying to justify her handling cf
Exhibit 5. She simply wound up the discussion by
saying: “I’m not making any further rulings than
that. We are going to be in adjournment.” (Ibid
147:18-20)
Defendants’ November 26, 2007 Transcript
kixcerpts cite tral proceedings, which compared her
very lax standard for admitting hearsay offered by
Plaintiff, to her total exclusion of any second hand
report otfere d by Det ndant =
Judge Rushing [as part of document dump which
Defendant described at the time: “They just
dumped a pack of letters, undifferentiated, saying
here's 24 letters, plop.” (Transcript at. 242:27-28)|
complaints made by unspecified persons,
compiled into a report by an anonymous person,
and put into evidence as a result of it being
conveyed by a third person (not available for
cross examination) who wrote on the bottom of
the anonymous report “This was submitted by a
neighbor.” (Exhibit 5, filed by Defendants after
trial at CR-144). [lowever, when Michael
Halliwell asked James Parker (Transcript? at
299:21 to 300:6) about a communication to him by
‘Chris and Christine, the people who lived next
admitted a report filled with third-hand hearsay
door to me,” he was not allowed to answer this
question: “Did either of these people ever
communicate with you that they received any
satisfaction on this basic grievance?” Charles
Jensen interrupted at this point, saying:
‘Objection, Your Honor. Any response will be
hearsay.” Judge Rushing responded
‘Sustained.” (CR-1239)
18. Crucial Impact of Anonymous Hearsay Report
Appellants’ Opening Brief discusses Judge
Rushing’'s biased handling of Exhibit #5
After rejecting Defendants motion to strike
Plaintiff's anonymous compilation of hearsay
complaints, Judge Rushing curtailed their right
to discuss in detail the alleged defects of this
Report. Michael Halliwell was eliciting testimony
on this page of complaints from James Parker
when he said: “Moving on to number B (of the
second complainer being discussed)’ (‘Transcript
at 367:10). This was the second specific charge
made by the last redacted name in the document
6 ]
(it is not clear how many different individuals
were involved, four of the felt-tip cross-outs were
of names of exactly the same length). At this
point 16 lines of the 39 lines (CR-144) setting
forth various complaints had been covered, the
remaining 23 lines included ALL of the com-
plaints made by persons whose locations were
specified (CR-145) on an accompanying map. (CR-
1336)
Defendants’ December 7, 2007 Transcript
Excerpts further documents Judge Rushing’s
shielding of Exhibit #5 from full examination:
Judge Rushing interrupted James Parker’s
discussion of Exhibit #5 (Transcript at 355:17-18)
and Michael Halliwell protested: “I want to go
through the evidence.” (bid. at 355:19) Judge
Rushing responded: “Actually, sir, I have the
right to control the means and manner, and also
there’s an Evidence Code section called 352 which
prevents repetition and cumulative evidence and
things that are more time consuming than
probative. The jury is only here for a limited
time. We need to get through the rest of this
case.” (bid. at 355:20-26) Michael Halliwell
responded: “Considering the critical nature of
this document, I'd like to be able to go through it
line by line. Are you ruling that out? (Ibid. at
355:27 to 356:1) Judge Rushing answered: “I
am.” (Ibid. at 356:2) (CR-1421)
Appellants’ Opening Brief points out an
important effect of Judge Rushing’s handling of
Exhibit #5:
Michael Halliwell explained his purpose: “[m
trying to tic together.” (Transcript at 367:20) He
continued to note the importance of a clear
picture based on as much evidence as possible,
but Judge Rushing insisted: “In the interests of
time, I’m going — you can ask one more question
on this, then we’re moving on.” (Ibid. at 367:25-
26) (CR-1337)
Defendants’ December 7, 2007 Transcript
Excerpts says how Judge Rushing enhanced the
obscurity of Exhibit #5:
In fact, all of the names found in this compilation
of complaints were redacted. By preparing a map
showing the location of complainers who were not
named.and REDACTED, Charles Jensen was
attempting to counteract the appearance of
anonymity, yet not allow the Defendants time
enough to make any actual identifications.
However, by the time Defendants were about to
start with the map-location identified complain-
ers, Judge Rushing pulled the rug out from under
Defendants [with her invocation of Evidence Code
See 352]. (Transcript at 367:25-26) (CR-1411)
Defendants’ March 20, 2008 reconsideration
motion tells why Exhibit #5 had a decisive role in the
Case:
From the perspective of Defendant Parker’s right
to confront his accusers and to cross-examine
them, those who made the complaints in Exhibit
#5 were totally anonymous. Nor is there the
slightest doubt that these complaints are second
and third hand hearsay, as any judge who looks
at them can plainly see. The “neighbor” who com-
piled these complaints about “Resident 1041” on
the “WeekEnd of 2/17, 18/2007” does not refer to
himself or herselfin any fashion whatsoever. The
devastating impact of this compilation of com-
plaints is obvious, and Charles Jensen acknow-
ledges its decisive nature. After Judge Rushing
ruled against Defendants’ motion to exclude this
document, Charles Jensen recalled his chent Gus
Paxinos to the stand and this exchange ensued:
Q. Did you read the allegations of the seven or
eight different residents?
A. Yes.
Q. In terms of what they allege Mr. Parker or
somebody in 1041 ::d?
A. Yes.
Q. Did that bother you? Did it bother you?
A. Well, of course.
Q. What, if anything, did you do then?
A. | called you, and I brought tnis to your
attention.
Q. Was it the following day on the 30 that
you served the 60- day notice’?
A. Yes.
Q. Was there any other reason that you served
tne 60 day notice other than what’s in that
letter?
64
A. No. (June 26, 2007 Transcript at 378:3-18)
(id. at 64:12 to 65:10) (Defendants’ Petition to
Review (8163276) re March 6, 2008 Decision
at 21-22)
19. Evasions re Backing Off from Proving Cause
Judge Rushings’ June 26, 2007 Courtroom
Minutes say “Mr. HALLIWELL requests "efendants
be allowed to enter Plaintiffs complaint into
evidence. Court DENIES Defendant’s request
(explaining complaints are not by the rules of
evidence permitted in evidence).” (CR-324:4-5)
Judge Rushing referred to a Notice of Hearing,
slated to take place on March 26, 2007, as noted by
Plaintiffs March 30, 2007 Complaint, which said
(CR-039): “PER THE ATTACHED, THIS TERMI-
NATION IS FOR CAUSE.” The attachment (CR-
040) said “VIOLATION REPORTED: ‘Ongoing
threatening behavior of your tenant towards other
residents” Judge Rushing turned to Charles Jensen
and said: “I notice that in your notice, you listed
cause.” (Transcript at 172:25) Charles Jensen
responded: “That is correct, Your Honor.” (Ibid. at
172:26) Jujige Rushing asked: “Is that the theory
you're proceeding on?” (Ibid. at 172:27-28) Charles
Jensen answered: “/t us not, Your Honor, sumply
because the code section says no cause is needed.”
(Transcript [bid. at 173:1-2) Judge Rushing
responded: “Right.” (Ibid. at 173:3) Defendants tried
to point out the evasiveness involved in withholding
the hearing results which Plaintiff had in hand when
he filed his complaint, and in pulling back from
trying to establish the validity of the cause sted in
their complaint. Judge Rushing ruled out such a
line of questioning based on Plaintiffs Complaint,
which Defendants tried to introduce into evidence.
Judge Rushing said, “Well, Complaints aren't
entered into evidence.” (Transcript at 211:6-/)
Michael Halliwell protested: “Well, but he signed it.”
(Ibid. at 211:8) Judge Rushing insisted: “Sir, I have
just made a ruling.” (bid. at 211:9) (CR-040)
20. No Contract Violation Means No Fees Shifting
The Plaintiff started out with a contract claim,
and tried to secure a verdict by Judge Nadler on that
basis, with a June 19, 2007 no-notice motion for
summary judgment (in violation of CCP Sec 1170.7).
But Judge Nadler never ruled on this motion and
Charles Jensen never renewed ‘t before Judge
Rushing, as Judge Nadler suggested he might (pro-
bably because Charles Jensen no longer had the
66
element of surprise). Xuerab v Marcus & Millichap,
Inc. (1992) 3 Cal. App.4*® 1338, 1341-1342, ruled out
this sort of “bait and switch” method of securing fees
because “although the buyers initially sued for
breach of coniract, they did not go to trial on that
basis.” Moreover, Exxess Electronixx v Heger Realty
Corp. (1998) 64 Cal.App.4* 698, 708, citing numer-
ous passages in Sar:tisas v Goodin (1998) 17 Cal 4th
599, affirming that “the question of whether to award
attorney's fees turns on the language of the contrac-
tual provision, t.e., whether the party seeking fees has
‘prevatled’ within the meaning of the provision and
whether the type of claim ts within the scope of the
provision,”
James Parker’s supposedly non-existent
Opposition (at CR-416) points out why Charles
Jensen was entitled to NO fees at all, because
Jensen explicitly stated that his theory of the case
was NOT seeking to prove cause, i.e. a violation of
the rental agreement, “because the code section says
no cause is needed” (see June 25, 2007 Transcript at
172:25 to 173:3). Parker cites Walters v Marler
(1978) 83 Cal.App.3d 1, 27-28, quoting McKenzie vu
Katser-Aetna (1976) 55 Cal.App.3d 84, 89-90,
67
rejecting the idea that the Legislature in enacting
Civil Code sec 1717 meant to include “all provisions
in the contract allowing for attorney’s fees, whether
or not those fees are incurred to enforce the
provisions of the contract.” It states that the only
reasonable interpretation of section 1717 is “the
allowance of attorney’s fees only when such fees are
incurred to enforce the provisions of the contract.”
?’arker’s August 22" Memorandum points out: “The
jury has found NO breach of contract and the
contractual language (clause #13 in the rental
contract allows attorney’s fees only ‘to enforce any
part of this agreement.’)”
21. Evasive Maneuvers re Status of Fees Motion
When a hearing was held on Plaintiffs $10,000
attorney fees motion, Charles Jensen followed his
uniform policy in fees matters, of saying NOTHING
about the underlying merits. Before the September
25, 2007 fees hearing took place, Charles Jensen
made a determined effort to win by evasive maneu-
vering, which flouted Local Rules: a) Plaintiffs
attorney refused to “meet and confer” to discuss
possible settlement “in accordance with app]icable
law” (as required by Loral Rule 5.5); b) Char s
Jensen refused to bring his July 3, 2007 fees motion
before the court by listing the known (August 28,
2007) time and place of the hearing on the face sheet
(as required by Local Rule 18.8); and c) he did not
provide an endorsed filed copy of the motion when
filed (promised by a July 3, 2007 letter of convey-
ance, that described its document, as an unfiled
motion being given to Defendants to facilitate
negotiation over the amount of fees).
Plaintiffs evasive maneuvering violated the
fundamental principle cited from Adams v
Murakami (1991) 54 Cal 3d 105, 120:
The issue is not merely a question of trial
strategy. As our former colleague Justice Peters
aptly put it, “The trial of a lawsuit is nota
game where the spoils of victory go to the
clever and technical regardless of the
merits, but a method devised by a civilized
society to settle peaceably and justly disputes
between litigants. The rules of the contest are
not an end in themselves.” (Simon vu City of San
Francisco (1947) 79 Cal.App.2d 590, 600)
When the Appellate Branch issued its unex-
plained Order Upholding Judge Rushingy’s unex-
plained $10,690 fees award, it stretched deference to
a trial court's discretion beyond what is acceptable
under well established governing precedent:
i
mp
Although discretion is vested in the trial judge,
that discretion is not unfettered. It cannot be
exercised arbitrarily, but must be an impartial
discretion to be exercised in conformity with the
spirit of the law and in a manner to subserve the
ends of substantial justice. (Longshore v Pine
(1986) 176 Cal.App.3d 731, 737)
22. False Tentative Ruling “No Opposition” Claim
James Parker refuted the supporting rationale of
Judge Rushing’s award of $10,000 in attorney’s fees
to Plaintiff in his Affidavit Re Charles Jensen's
Proposed Judgment After Order (CR-523 to CR-524):
So that there can be no mistaking these crucial
points, I hereby emphasize for the record that
Judge Rushing did indeed rule [in conformity
with Local Rule 2.2D] with respect to the
hearing on Mr. Jensen’s “Post-Trial Motion for
Attorney’s Fees” (at CR-296): “There will not be
a tentative ruling — mandatory appearances
will be required.” There is no doubt that Mr.
Jensen remembers this ruling, and this is why he
showed up at 8:30 a.m. on ‘Tuesday August 28,
2007 in Division 19, without Defendants’ needing
to remind him before 4:00 p.m. the preceding day.
In his proposed JUDGMENT AFTER MOTION,
Charles Jensen states: “Defendant JAMES
PARKER did not oppose the motion.” There is no
doubt that Mr. Jensen knows that this statement
is FALSE. Jensen probably ordered Mr. Blonski
to sever e-mail communications with Defendants,
but that did not prevent his becoming aware of
Defendants’ e-mail in spite of this ban (CR-458)
70
sent 9:24:54 on Mon, 27 Aug to kadinblonski
@hotmail.com captioned “Attention Charles
Jensen.” The first sentence of this e-mail states:
“Today's Court Filing provides one attached new
document (dated August 27“ infra, and the
August 22.4 documents infra, previously sent to
you via e-mail only).” Mr. Jensen certainly
knows (since he had six full days to study these
documents before the hearing) that the listed
“August 22, 2007 DEFENDANT'S REVIEW OF
SUBTERFUGES RELATING TO ATTORNEY'S
FEES” was not accidental in its use of the
singular in “DEFENDANT'S” and that the
Defendant who signed this August 22, 2007
Opposition to Charles Jensen’s fees motion
was JAMES F. PARKER.
Soon Judge Rushing’s bad faith became even
more clear.
23. Filing Ban in Order Vacating Tentative Ruling
Judge Rushing’s next move, in her Order of
September 5, 2007, was to make sure that James
Parker could not cure his alleged failure to oppose
the motion. Michael Halliwell’s “Affidavit re
Handling of Attorney Fees Hearing” discusses what
should have been an August 28, 2007 Fees hearing,
and Judge Rushing’s subsequent explanation of her
cancellation of it:
Judge Rushing said when she vacated her
Tentative Ruling that she “inadvertently”
overlooked that she had informed the parties that
there would be no tentative ruling in the case.
This inadvertence was deliberate since Judge
Rushing certainly saw that Charles Jensen and
the Defendants both showed up on August 28,
2007 expecting a hearing to take place. (We were
in the front row and had announced our presence
to the clerk in Court-room 19.) Judge Rushing
rearranged the order of cases posted outside the
courtroom that day, so that as she called one by
one all the cases listed after MCV 191306 were
completed, before she called a recess and swiftly
left the courtroom. When I stood up and clearly
said “Your Honor,” the bailiff demanded that I
immediately go out into the hallway. I informed
the bailiff that Judge Rushing’s own order said
that there would NOT be a tentative ruling and
that mandatory appearances would be required,
and offered to show him the order. The bailiff
went back and checked with Judge Rushing, and
returned with an order that we leave the
premises at once or be arrested. Charles Jensen
was standing right next to Michael Halliwell and
James Parker while all this was going on, and
could easily have returned to the court-room with
us and taken part in oral argument, had Judge
Rushing not insisted on banishment instead. On
September 25th, Judge Rushing again employed
her strategy of deliberate inadvertence and
refused to allow me to point out the inconsistency
of her new position on standing with her own
prior rulings. She would not allow me to address
the court On any subject, When I said two words
to correct James Parker's reference to Judge
Rushing’s “prior motion” (when he clearly meant
“prior ruling” the bailiff threatened me with
immediate banishment from the courtroom if I
said another word.
(CR-707:20 to CR-721:6)
To combat reluctance by higher courts to believe
that a trial judge would deliberately flout Local
Rules, and would try to prevent litigants from
documenting what she was doing, Defendants’
response to the Order of September 5, 2007 attached
a copy of the actual order and Local Rule 2.2D:
Attachment #4 is Judge Rushing’s Order of
September 5, 2007, which was a temporary
retreat in the face of the explicit terms of Local
Rule 2.2D (quoted in full in Attachment #11) that
“All law and motion matters in unlawful detainer
actions shall be scheduled on the Unlawful
Detainer Law & Motion Calendar” AND “No
tentative rulings will be made available for
matters on this calendar.” Appellants’ April 18,
2008 Petition (at 14:8-17) discusses how Judge
Rushing tried to PREVENT James Parker from
curing the “defects” of memoranda opposing an
award of attorney's fees which were submitted by
Defendant Halliwell, by resubmiiting the same
arguments in his own name. Her Order of
September 5 states: “No further papers of any
kind will be permitted to be filed on this motion
prior to the next hearing date of September 25,
2007.” As Appendix B Transcript Analysis notes
(at 6:15-16) when James Parker came to the
September 25, 2007 hearing and said “I have
some papers to put in, if | may?” Judge Rushing
replied “No, it’s too late for that, sir.” (Transcript
at 330:26-28) (Defendants’ Petition to Review
(S163276) re March 6, 2008 Decision at 24)
24. Evasion of Plain Meaning of Notices of Appeal
Judge Rushing’s evasiveness became WORSE in
the enforcement phase of her $10,000 tees award
After Judge Rushing cancelled the November 13,
2007 hearing (without notice to the parties, who
found out only when they showed up at the
scheduled starting time), she backed away from her
attempt to set a date for the hearing (November 14,
2007) which was still well short of the required ten
days notice.
When the rescheduled Claim of Exemption
hearing took place on November 20, 2007, Charles
Jensen cited no precedents to contradict the holding
of Ziello v Superior Court (1999) 75 Cal.App.4™ 651,
654-655, and CCP § 916(a) & 917.1(d) that a motion
consisting only of attorney's fees and other costs was
not enforceable during the pendency of an appeal!
without the appellant having to post an undertaking
(appeal bond). It turned out that Charles Jensen's
ground for opposition was an attempt to do an end
run around CRC 8&.750(a) that requires Notices of
Appeal to be liberally interpreted in favor of their
sufficiency. In spite of James Parker's totally
unambiguous support for Defendants’ appeals from
the $10,000 attorney's fees award, Charles Jensen
was able to convince Judge Rushing that Defen-
dants’ appeal! from the initial award of the $10,000
should be ignored, because ‘t was vacated and rein-
stated after the appeal. This is a direct contradiction
of Grant v List & Lathrop (1992) 2 Cal.App.4t* 993,
997. Charles Jensen convinced Judge Rushing to
disregard Defendants’ appeal from the renewed
award of the $10,000 on the ground that only
Defendant Halliwell had signed it. This quibble is
rejected in Ehret v Ichioka (1967) 247 Cal.App.2d
637, 640-641. Judge Rushing further trampled on
the rule of law by refusing to allow James Parker
any opportunity to respond to Charles Jensen
grounds, once they had been disclosed at the
hearing. This was a direct violation of CCP Se
(03.580 (a) & (c)
25. Untfairness of No-Notice Switch on Standing
Judge Rushing’s no-notice reversal of her
recognition of Defendant Michael Halhwell's nght t:
seek a continuance of a fi hearing (and grant
his motion), in the face of Plain-tiff's explicit
challenge to Defendant Halliwell’s standing,
constituted a denial of Due Process of Law to
Defendant James Parker, when he was forced to
defend aspects of the case previously managed by
Defendant Halliwell (without ANY opportunity to
prepare to do so).
Judge Rushing cited no authority for her
standing edict:
Under California law, if onc is self-represented, a
self represented person is the only one who may
speak for himself or herself. Other persons may
show up as support persons and give information
and advice to the person but this is the exact
same rule in every case. I’m not deviating from
it, and so what I am going to say is if Mr. Parker
would like to address the motion for attorney’s
fees, he may do so. (Transcript at 466:2-8)
Judge Rushing would not even let Dr. Halliwell
speak:
Michael Halliwell: “Could I address this
matter?” (Ibid. at 466:9)
Judge Rushing: “Excuse me. First, ld
appreciate you not interrupting me. I’m
addressing this question to Mr. Parker. I’m
saying, Mr. Parker, would you like to argue
against the imposition of attorney's
fees?” (ibid. at 466:10-13)
James Parker: “I would, Your Honor, but not
at this time. I’m not prepared. | did not think
this was going to happen. My belief was that
Mr. — Dr. Halliwell was going to be able to
argue this.” (Ibid at 466:14-17)
Judge Rushing: “I don’t understand why you
would think this in light of —” bid. at 466:18-
19)
James Parker: “Because you vacated your
tentative ruling.” (Ibid. at 466:20)
Michael Halliwell: “Could I address it.” (Ibid.
at 466:21)
Judge Rushing: “No. I’m talking to Mr.
Parker.” (Ibid. at 466:22)
Judge Rushing again invokes unspecified legal
authority:
Mr. Parker, you do not — when persons are
self represented, the Court 1s under no
obligation to teach them how to practice
law or how to conduct their case. The
statements I have just made are in the law
library in all the practice books, and ’m
inviting you, Mr. Parker, at this time if you
wish to argue against the imposition of
attorney’s fees against you, to do so. (Ibid.
at 466:22-28)
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 [ should be allowed to
speak?” (bid. 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. [ object for the record.” (Ibid. at 467:6-7)
Judge Rushing terminated the discussion: “Mr.
Halbwell, I’ve just made my ruling.” (Ibid. at 467:8)
(May 5, 2008 Supreme Court Appendix B at 4:3 to
5:13)
James Parker protested the lack of warning that
ne would have to present oral argument:
Well, I would take exception, Your Honor, to this
because at this point I feel ’'m being railroaded
here. I’m sorry, but it’s fair to give me the
opportunity. I had no idea I was going to have to
be here and give oral argument, and I cannot
speak extemporaneously on this and serve myself
well at all or serve myself period, Your Honor. So
please, give me the opportunity. I will only ask
one more time for an extension on this so that —
this is $10,000. You know, to me, Your Honor —
that may not be much to you but it’s very much to
me, and { would like the opportunity, if ’'m forced
to address the Court solely by myself on this, to
be given the opportunity to — to prepare, at least
something that I can read, you know. Give me a
few weeks to do this, Your Honor, please.
(Transcript at 473:24 to 474:9)
After trying to blame Defendants for the two
prior hearing postponements, Judge Rushing ruled:
“I don’t see the basis for a continuance.” (Transcript
at 475:7-8) Judge Rushing would not allow James
Parker to explain why Defendant Halliwell was not
acting as an attorney, but as an equally injured
Defendant under their equal cost sharing agreement.
Charles Jensen had previously said: “Plaintiff has no
oral argument to offer the Court.” (Transcript at
472:21-22) So, Judge Rushing shut down the fees
hearing without saying a word about the merits:
The Court is deeming the matter submitted at
this time, is denying the request for a continu-
ance for the reasons already stated and 1s
ordering that the plaintiff may have $10,000 in
attorney's fees against Mr. Parker only.
(Transcript at 475:27 to 476:2)
At the next fees hearing on the day after we cited
this ruling in Appendix B), James Parker asked
Judge Rushing: “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.” (May 6, 2008 Transcript at
5:10-12) Judge Rushing replied: “I’m not required to
do so and I decline that request.” (Ibid. at 5:13-14.)
Us.
oO Supreme Court
99-171 APR 20 208
No. 09- OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
MICHAEL HALLIWELL & JAMES PARKER,
Petitioners.
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SONOMA,
Respondent,
CHRYSANTHE PAXINOS,
Real Party in Interest
On Petition for a Writ of Certiorari
lo the California Supreme Court
APPENDIX, VOLUME III
Michael J. Halliwell & James F. Parker
Defendants in Propria Persona
271 L. Cotati Ave, Cotati CA 9493]
707-795-5526, halliwel(@csulb.edu
April 20, 2009
Lower Court Footnote APPENDIX CONTENTS
Appellate Branch Opinion of March 6, 2008...... 10
Defendants’ Footnotes to March 6, 2008 Opinion
A. Introduction (overview & listing of parties) FN
Appeal (issues appealed and filings) FN #17-27
D. Claims of Error (8 trial-related, 2 re fees) FN #28-
is AB
E.. Perspective (threshold claims of parties) FN # 38-
Bi..
[. Faulty Instructions (discrimination/reprisal)
EF N#87-93
J. Premature Fees Rulings (before transcript)
KF N#94-107 .
TABLE OF AUTHORITIES CITED
CASES
Abstract Investment Co. v Ilutchison (1962) 204
Cal.App .2d 242, 249
Adams v Murakami (1991) 54 Cal 3d 105, 120
Sain ia cles Saat a Get a to ee ae ad aera 21, 41, 46
Au-Yang v Barton (1999) 21 Cal 48 958, 963. .... 16
Bahl v Bank of America (2001) 89 Cal.App.4t) 389,
ES Peete Ste ¥
Barela v Superior Court (1981) 30 Cal 3d 244, 250
Beverly Hospital v Superior Court (1993) Cal. App.
4th 1289, 12938. . 97, 130
Brock v Fouchy (1946) 76 Cal.App.2d 363, 370
Chronicle Publishing Co. v Superior Court (1960) 54
Cal 2d 548, 561
City of Shasta Lake v County of Shasta (1999) 75
Cal. App. 4? 1,
Delta Imports Inc v Municipal Court (1983) 146 Cal.
App. 3d 1033, 1036. ...
Drouet v Superior Court (Broustis) (2003) 31 Cal.
App. 4'» 583, 592 150
Khret v Ichioka (1967) 247 Cal.App.2d 627, 640-641
37
Elkins v Superior Court of Contra Costa County
(2007) 41 Cal 4th 1337, 1364....... wes |
Kmerson Electric v Superior Court (1997) 16 Cal 4t
LeU. ELUS.... wee se ; . , leo
Fairmont Insurance Co v Superior Court (2000) 22
Cal 4h 245, 246-247
Frohman v Bonelli (1949) 91 Cal.App.2d 285, 291. 29
Grant v List & Lathrop (1992) 2 Cal.App.4" 993,
Green v Superior Court (1974) 10 Cal 3d 616, 636
AP er a eerie at eae . 30, 86
Greyhound Corp. v Superior Court (1961) 56 Cal 2d
Gg of a aa 06, 57, 125
Hall v Superior Court (2005) 133 Cal.App.4*" 908,
Tog ce ed rise ggg beg Ae 8 ee oie
Hernandez v Superior Court (2004) 115 Cal.App.4th
ee ea ae kk ARR 19, 59
Housing Authority of Monterey County v Jones
(2005) 130 Cal. App.4% 1029................... 18
In re Cox (1970) 3 Cal 3d 205, 212, 216.....23, 142
In re Marriage of Goddard (2004) 33 Cal 4° 49, 58 16
In re Michael G.(1993) 19 Cal.App.4t? 1674, 1677 138
In re Ramirez (2001) 89 Cal. App.4t® 1312, 1320... 18
[International Industries v Olen (1978) 21 Cal 3d
218. 224-225
Koebke v Bernardo Heights Country Club (2005) 36
Ort OBE BAe... cc ct eee eee aee ven 142
Lacrabere v Wise (1904) 141 Cal 554, 556...... 116
Longshore v Pine (1986) 176 CalApp.3d 731, 737 100
Marina Point v Wolfson (1982) 30 Cal 3d 721, 730
., 23, 24, 26, 64, 66, 142, 143
Mulkey v Reitman (1966) 64 Cal 2d 529, 538
NP rae Pa er 65, 67, 69, 143
Obregon v Superior Court (1998) 67 Cal.App.4th 424,
cg Re ee | eer
Parsons v Superior Court of Marin County (2007)
149 Cal. App.4t*Sup 1,6....... Pree 33, 116
Pease v City of San Diego (1949) 93 Cal.App.2d 706,
710-711, 712. soar ... 20, a2
Powers v Ohio (1991) 499 U.S. 400, 410-411... . 164
Santisas v Goodin (1998) 17 Cal 4%» 599, 614. ... 162
Schweiger v Superior Court (1970) 3 Cal 3d 507, 514
gh Nee Ome LG, iz2
Shelley v Kraemer (1948) 334 U.S. 1, 14....67, 142
Simon v City of San Francisco (1947) 79 Cal. App.2d
ochre ra ee ara ga ate ae ea" soi ee ore ee
S.P. Growers Assn v Rodriguez(1972) 17 Cai 3d 719,
730 70
The 1880 Corporation v Superior Court (1962) 57 Cal
Og OR. Eee ne ee ne a
Townsend v Superior Court (1998) 61 Cal.App.4"
bt rere, Mb
United States v Fowlie(1994) 24 F.3d 1059, 1069 139
United States v Sanchez-Lima (1998) 161 F.3d 545
BS ag i Ss er CRO cae ae es te nao re aerate ae NEP AREA Se gi ey ae a aa 139
Western Land Office, Inc. v Cervantes (1985) 175
ee, ne es eo oe oe nh eee le a ee 148
UNITED STATES CONSTITUTION
Pelt GF SMCS... 6 ec eee eee ev » OF, 101, 102, 156
First Amendment.............. eres eo
Sixth Amendment... 51. 102. 12:
iw
, 139, 148, 156, 13]
Fourteenth Amendment... .......65, 67, 102, 122
CALIFORNIA STATUTES
AB 1400 (1/1/06) (Bans arbitrary discrimination)
SP ee oe orn mee oy, £62, £43
California Business & Prof Code § 6068(d) (Attorney
honesty). a kc te eet 124
Cahfornia Civil Code § 51 (Unruh Civil Rights Act)
» 00 8 ew 6 8 ee 11, 13, 24, 65, 71, 142-145
California Civil Code § 1717 (Reciprocal contract
attorney TOGG co a ss ce ee ee OS
California Civil Code § 1942.5(a) (Retaliatory
evidence)... 2 15, 45, 71, 144, 148-151
California Code of Civil Procedure § 410.50 (Service
of PrOCORE) J rec cc ce tee ee ee Oe
a4
California Code of Civil Procedure §415.45
(Summons service)............ccecrersseel 58, 99
California Code of Civil Proc § 425. 16(a) (Petitioning
for redress of grievances)................. 70, 122
California Code of Civil Procedure § 1170.5(a) (UD
trial date)... 7. _ 5]
California Code of Civil Proc § 1170.5(c)(d)(e)(f) (Way
to adjudicate complex unlawful detainer actions) 122
California Code of Civil Procedure § 1179(a)
(Unlawful Detainer scheduling priority). ... 122, 132
California Code of Civil Proc § 2016.040 (Discovery
meet and confer requirements) 123
California Code of Civil Procedure § 2024(a) (Start of
GINCOVOLY DTOCOES). 6 ccs cece ees Pee
California Code of Civil Procedure § 2030(f) (Cutoff
Gate fOF GIGCOVErY) . 0... cc ccc weer er vere ensees OO
California Code of Civil Procedure §2033.220(a)
(Candor required in discovery).............. 128
California Code of Civil Procedure § 2033.710 (Form
inquires for Unlawful Detainer actions)........ 128
California Evidence Code § 352 (Evidence admission:
time consuming versus probative value)... . 152, 153
California Evidence Code §1200 (Inadmissibility of
hearsay evidence) | 138, 154, 155
Proposition 14 (Initiative Constitutional Amendment
to authorize housing discrimination). ........ 64-68
FEDERAL COURT PROCEDURES
Evidence Rule 807(Exceptional hearsay allowed) 139
CALLFORNIA RULES OF COURT
Rule 8.750(a) (Liberal Notice of Appeal construction)
37, 160-161
Rule 8.754 (Contents of Record on Appeal)... . 10, 35
CALIFORNIA ATTORNEY ETHICS GUIDELINES
California Attorney Guideline re Civility &
Professionalism (calbar.ca.gov) #9.......... . 124
WEBSITE INFORMATION
Self-Help Website (www.courtinfo.ca.gov/selfhelp) of
California Judicial Council................ 38, 43
June 1998 Voter’s Pamphlet (www.sos.ca.gov)
argument against Proposition 220............168
SONOMA COUNTY SUPERIOR COURT RULES
Local Rule 2.2D (No tentative rulings in Unlawful
Detainer actions)....... 11,17, 72, 75, 156, 165, 167
Local Rule 2.2E (Unlawful Detainer attorney fees
standards). ) Lee area
Local Rule 4.10D (Consultation between parties to
prepare joint statement of case)............... 95
Local Rule 4.10H(1) (Jury instruction submission
deadline) :........... . eras ... 94, 97, 98
Loca! Rule 5.5 (Prehearing consultation obligation)
are bikie esta eae aes 11, 72, 74, 156
Local Rule 5.7D (Meet and confer obligation when
opposing an Ex Parte application)........54, 74, 95
Local Rule 18.8 (Face sheet Notice of Hearing) 28, 74
STANDARDIZED FORMS
Form POS-010 (Summons Proof of Service)
51. 75. 104. LOO
Form SUM-130 (Summons used to initiate Unlawful
Detainer actions) . 42, 105
Form UD-106 (Form Interrogatories 71.7 & 77.1)
18, 36, 54, 57, 58, 128, 129, 133, 137, 138
Form UD-150 (Trial date setting request) 29
s 6 0 6 6 « @¢ eee
46, 47, 49, 54, 72-74, 87, 89, 94, 99, 119, 126-128, 136
Appellate Branch Opinion of March 6, 2008
[In this very simple unlawful detainer case[1] the
trial court’s judgment is AFFIRMED.[2] Appellants
fail to demonstrate any error by the trial court,[3]
let alone any reversible crror.[4]
This was an unlawful detainer case.[5}] Plaintiff/
Respondent Chrysanthe (“Gus”) Paxinos (land-
lord)[6] filed an unlawful detainer action against
Defendants James PARKER and Michael HALLI-
WELL.[7] The action was based on a breach of the
rental agrcementf8] — 1.e., tenant James Parker
subletting to Michael Halliwell in violation of the
rental agreement.[9]
The case was originally before Judge Nader,[10] but
was then passed to Judge Rushing for trial.[11] A
jury trial was held,{12] and the jury returned a
verdict in favor of Plaintiff/Respondent[13] and
against Parker[14] and Halliwell.[15]
This is an appeal from the unlawful detainer
judgment entered against Appellants/Defendants
James Parker and Michael Halliwell.[16]
The record on appeal consists of those items
specified in CRC 8.754 et seq. and a transcript from
a June 19, 2007 hearing before Judge Nadler{17]
and transcripts from the June 25/June 26 trial.[18]
There is some confusion as to the nature of all the
appeals,[19] and who has filed the appeals.[20] This
reviewing Court is treating this as an appeal by both
defendants from the judgment[21] and from any
post-judgment orders.[22
Appellants’ arguments are not a model of clarity,[23]
and are spread out in the 100+ pages of material[{24]
filed by Appellants.[{25}] Appellants’ briefs are ramb-
ling and disjointed. [26]
However, it appears the following claims of error
have been made:[{27] 1) There were errors in setting
the trial date;{28] (2) there were defects regarding
service of the summons/ complaint;[29] (3) Plaintiffs
evaded discovery;{30] (4) the trial court erred in
denying Defendants’ motion to continue case to
reopen discovery;[{31] (5) the trial court erred in
denying defendants’ motion to exclude “Exhibit
5”;[32] (6) the trial court erred in failing to instruct
the jury on the “Unruh Act”;[33] (7) the trial court
unfairly circumscribed Defendants’ input on jury
instructions;[34] (8) the trial court blocked key
evidence regarding retaliatory eviction;[35] (9) the
trial court violated Local Rule 2.2D and 5.5A & Bin
consideration of attorney’s fees;[36] and (10) the
trial court stripped Michael Halliwell of standing
with no legal foundation (regarding attorney fee
issue).[37]
Plaintiff/Respondent has filed an Opposition Brief
addressing the issues raised by Appellants.[38] In
summary, Plaintiff argues the appeal is procedurally
defective in form,[39] and substantively has no merit
whatsoever.[{[40] This court agrees.[41]
Appellants complain of alleged procedural
irregularities in the trial setting procedures.[42]
Appellants have failed to show any irregular-
ities. [43] Furthermore, Appellants ultimately were
12
given a jury trial[44] (after Judge Nadler re-
considered an earlier ruling)[45] as they wanted.[46]
Assuming arguendo any irregularities,[47] Appel-
lants fail to show any reversible crror.[48]
Appellants appear to argue that the trial court lack-
ed jurisdiction[49] because of defects in the proof of
service,[50] and therefore the judgment is void.[51]
Both Appellants filed an Answer.[52] Although
their answers did contain one paragraph alleging
proof of service defects,[53] their Answers also
contained answers on the merits of the case,[54] and
also requested affirmative rehef.[55] Appellants
then participated in the action, [56] and never filed a
motion to quash.[57] The Answers constituted a
general appearance.[58] A general appearance
operates as consent to jurisdiction of the parties;[59]
dispensing with the requirement of service of
process,[60] and curing defects in service. Dial 800 v
Fesbinder (2004) 118 Cal.App.4t) 32, 52.[61]
Appellants never established any defects in
service.[62] Even if there were defects,[63]
Appellants made a general appearance in this case
and therefore submitted to the trial court’s juris-
diction.[64] There was no evasion of discovery.[65}
Appellants never served any discovery requests. [66]
At the beginning of trial,[67] Appellants orally
moved for a continuance to reopen discovery .[68]
The motion was denied.[{68] Appellants fail to
demonstrate that the trial -ourt abused its discretion
in denying the continuance,{70] or denying a request
to reopen discovery.[71]
At trial,{72] Plaintiff introduced “Exhibit 5”’[73] (a
letter from the Homeowners’ Association).[74] No
objection was made to its admission into evi-
dence,[{75] and the trial court admitted it into
evidence.[76] Later,{[77] Appellants made a motion
to strike “Exhibit 5” as an anonymous letter,[78]
claiming it was hearsay.[79}
The letter was admitted into evidence without
objection.f{80}] Appellants waived any claim on
appeal.[81] Furthermore, Appellants have not
shown that the trial court erred in denying,[82]
subsequent to the letter’s admission into
evidence,[83] their motion to strike it.[84]
Additionally, assuming arguendo some error
occurred,[85] Defendant fails to demonstrate why a
reversal of the judgment is required.[86]
Appellants fail to demonstrate any error in failing to
instruct the jury on the Unruh Act discrimination
claim.[87] There was no evidence of discrimination
in violation of the Unruh Act.[(88] The trial court
allowed defendant to argue retaliatory eviction[89]
and provided the jury with instructions regarding
the defense of retaliatory eviction.[90] The jury
rejected the retaliatory eviction defense.[91] The
trial court did not block admissible evidence,[92] and
did not fail to give proper jury instructions.[93]
(Appellants’ arguments regarding attorney fees (post
judgment) are contained in their “Consolidated”
brief.) [94]
Respondent argues these assertions relate to a
motion for attorneys fees that concerned only
Defendant Parker.[95] Respondent argues that Mr.
Parker never appealed the motion for attorney’s
fees.[96] Therefore, Respondent argues the issue is
not properly before the Appellate Panel.[97]
As noted earlier, it’s unclear from the several notices
of appeal who was appealing what.[{98] Assuming
arguendo that Parker has actually appealed the
attorney fee award against him ($10,000),[99] there
is no basis for reversing the award.[100] Parker
never opposed the motion for attorney fees.{101]
Vefendant Halliwell, who was not Parker’s
attorney,[102] and against whom no fees were
sought,[103] did not have standing to oppose the
motion (against Parker) for attorney fees.[104]
Appellants fail to demonstrate any error,[105] let
alone any reversible error.[106] The decision of the
trial court is affirmed.[107]
1S
4
Derendants’ Footnotes to March 6, 2008 Order
A. Introduction (overview & listing of parties)
1. The opinion begins (1:13): “In this very simple
unlawful detainer case”
This may have seemed to be a potentially simple
case to Charles Jensen, on April 25, 2007 when
property manager (de facto landlord) Gus Paxinos
showed him a letter from Michael Halliwell (that
announced Dr. Halliwell’s intention to stand up for
James Parker’s right to confront his accusers and
know the nature of the charges against him, which
were mentioned in the 60-Day Notice to Quit which
Mr. Parker had received on March 28, 2007).
However, Plaintiffs counsel “steamed across his own
towline” (as in the film Caine Mutiny) by persuading
Judge Rushing to reject ALL evidence earlier than
October 2, 2006 (six months before the March 28,
2007 60-Day Notice) or after March 28, 2007, there-
by making the circumstances of the issuance of the
3-Day Notice near the end of April 2007 ENTIRELY
IRRELEVANT. This is contrary to explicit provi-
sions of Civil Code Sec 1942.5, but this is the way
Judge Rushing required the case to be adjudicated.
Defendants’ January 24, 2008 Appeal Transcript.
Appendix states (5:15-19):
Appellants’ Reply Brief (at CR-1480:17-20)
protests Judge Rushing’s faulty time limits:
Hall v Superior Court (2005) 133 Cal.App.4th
908, 919 notes a fundamental principle:
Court rules should be designed to
accomplish the ends of justice, to
protect rights, and to implement the
substantive law. When a policy, practice
or rule operates instead to defeat these
purposes, and deprives an accused of a
fair trial or determination on the
merits, then the policy, practice or rule
must give way.
Defendants’ January 24, 2008 Appeal Transcript
Appendix cites further caselaw:
Defendants protested (CR-1911:2-6) Judge
Rushing’s “use of arbitrary time cut-offs, on
the calendar and in the courtroom” and cited
Schweiger v Supertor Court (1970) 3 Cal 3d
507, 514:
Certainly the interest in preserving the
summary nature of an action cannot
outweigh the interest of doing substan-
tial justice. To hold the preservation of
the summary proceeding of paramount
importance would be analogous to the
“tail wagging the dog.” (1d. at 6:20-25):
Defendants’ January 24, 2008 Appeal Transcript
Appendix cites another key ruling:
Appellants’ January 14, 2008 summary brief
(at CR-1596:20-23) cites In re Marriage of
Goddard (2004) 33 Cal 4th 49, 58 quoting Au-
Yang v Barton (1999) 21 Cal 4th 958, 963:
The policy of the law is to have every
litigated case tried on its merits, and it
looks with disfavor upon a party, who
regardless of the merits of the case,
attempts to take advantage of the
mistake, surprise, inadvertence, or
neglect of his adversary. (Id. at 8:1-6):
2. The opinion states (1:13): “the trial court’s
judgment is AFFIRMED.”
Judge Rushing NEVER cited a supporting precedent
in the entire time she has been handling Paxinos v
Halliwell & Parker, and never issued an order of her
own after September 5, 2007. (This order vacated
her Tentative Ruling issued in violation of Local]
Rule 2.2D, which she had indicated she would
support, and “banned all further papers of any kind”
by EITHER James Parker or Michael Halliwell.)
Henceforth she only signed totally unexplained
orders presented to her by Charles Jensen. There-
fore it has been difficult to understand the scope of
this affirmation, and very hard to come to grips with
it.
3. The opinion states (1:13-14): “Appellants fail to
demonstrate any error by the trial court,”
The burden of demonstrating an error in prior
proceedings rests on Appellants. But the Appellate
Branch is required to maintain the appearance of
fairness, and cannot simply brush aside Appellants
arguments which seek to demonstrate that errors
have occurred.
In re Ramirez (2001) 89 Cal.App.4 1312, 1320 fn5
and Housing Authority of Monterey County v Jones
(2005) 130 Cal.App.4 1029, 1039, 1042 cite key
constitutional and California Rules of Court provi-
sions, which emphasize the vital importance of the
independence of the appellate division of unified
Superior Courts, and the need to avoid procedures,
which “would threaten the apparent or perceived
independence and objectivity of the reviewing court
in limited-jurisdiction cases.”
4. The opinion states (1:14) [There was no error] “let
This case has been a pitched battle over funda-
mental procedural rights from the outset. Three
early and middle-stage issues are dominant: A) The
Sonoma County Superior Court’s policy of giving the
earliest available trial date to the landlord when a
request is filed (without allowing any opportunity for
input by the tenant); B) The use of perjury by
Plaintiffs attorney with regard to his service of
documents (thereby eliminating discovery by further
distorting the case timeline) and the lack of oppor-
tunity for Defendants to present their evidence that
key documents were NEVER served and certainly
not placed in the Case File until long after their
current date stamps suggest that they were filed; C)
Allowing the use at trial of an anonymous compila-
tion of second and third hand hearsay complaints at
trial (instead of answers to Form Interrogatories
71.7 and 77.1, which Defendants had repeatedly
tried to secure). (Defendants’ Petition (S163276)
seeking review re March 6, 2008 Decision at 2)
5. The opinion states (1:16): “This was an unlawful
>
detainer case.
Appeal Briefing discusses Judge Rushing’s openly
biased procedural rulings:
Charles Jensen’s Reply Brief (at 7) notes:
“Judge Rushing doesn't have to assume an
attorney is correct.” Appellants agree, but
nevertheless she said early in proceedings
before her: “ve never tried an unlawful
detainer case, a jury trial, so if there’s
any difference of what I’m saying, I
expect Mr. Jensen to speak up.”
(Transcript at 163:23-26) Charles Jensen
ienced jurist and makes her rulings based on
the state of the law.” (Reply Brief at 7) In
fact, the state of the law is precisely what the
Cahfornia Supreme Court authoritatively
affirms, in its decision in Klkins v The
Superior Court of Contra Costa County of
August 6, 2007. Elkins v Superior Court
(2007) 41 Cal 4% 1337, 1364-1365 points out
the harm caused by excessive rigidity in
applying deadlines:
For example, in Hernandez v Superior
Court (2004) 115 Cal.App.4t 1242,
1246, the reviewing court held that the
trial court abused its discretion in
refusing, in reliance upon a local fast
track rule, to reopen discovery. “Strict
adherence to these delay reduction
standards has dramatically reduced
trial court backlogs and increased the
likelihood that matters will be disposed
of efficiently, to the benefit of every lLiti
gant. [Citation.] Here, the trial court’s
orders promote judicial efficiency by
maintaining strict time deadlines. But
efficiency is not an end in itself. Delay
reduction and calendar management
are required for a purpose: to promote
the just resolution of cases on their
merits. [Citations.] Accordingly,
decisions about whether to grant a
continuance or extend discovery ‘must
be made in a atmosphere of substantial
justice. When the two policies collide
head-on, the strong public policy
favoring disposition on the merits
outweighs the competing policy favoring
judicial efficiency.” (CR-1479 to 1480)
6. The opinion states (1:16-17): [The] “Plaintiff/
Respondent [was] Chrysanthe (“Gus”) Paxinos
(landtord)”
The Appellate Branch confuses the property
manager, Gus Paxinos, with his daughter,
Chrysanthe Paxinos, who is the landlord (for estate
planning purposes). In spite of a provision in Local]
Rule 2.2 that a Property Manager cannot act in
behalf of the property owner in an unlawful detainer
action, Defendants never made an issue of the
signing of key documents by Gus Paxinos. This was
reciprocated by the opposing party and the Court, in
allowing either Defendant to sign documents and
speak for the other at their discretion, throughout
Judge Nadler’s proceedings and the first two months
of Judge Rushing’s proceedings, until Judge Rushing
concluded that resorting to technicalities was the
only basis on which she could find in Charles
Jensen’s favor on the fees issue. In upholding a
resort to technicalities, the Appellate Branch panel
ignored the principle cited from Adams v Murakami
(1991) 54 Cal 3d 105, 120 in Appellants’ Reply to
Respondent’s Opposition (at 31:6-10):
The issue is not merely a question of trial
strategy. As our former colleague Justice
Peters aptly put it, “The trial of a lawsuit is
not a game where the spoils of victory go
to the clever and technical regardless of
the merits, but a method devised by a
civilized society to settle peaceably and justly
disputes between litigants. The rules of the
contest are not an end in themselves.” (Simon
v City of San Francisco (1947) 79 Cal.App.2d
590, 600)
7. The opinion states (1:17-18): [The property man
Defendants James PARKER and Michael HALL
WELL.’
ager| “filed an unlawful detainer action against
The integrity of court files (or lack thereof) has been
a key issue in this case (documented from the first
week of proceedings by Defendants and NEVER ad
dressed by any Judge). Defendants have documented
(by window clerk “C.O”) the absence of Charles
Jensen's Proof of Service for his initial Summons and
Complaint from the Case File on June 11, 2007 (and
at every inspection they were allowed during the
subsequent week) and the absence of Charles
Jensen's Form UD-150 (for the same period of time).
These documents later appeared as if filed on June
6, 2007 and contained false claims of a 7:45 PM June
2, 2007 personal service on James Parker, of a
substitute service on Michael Halliwell at this same
time (with a bogus claim that the significance of this
substitute service was explained to James Parker).
There was also a similarly stamped Form UD-150
(wherein Charles Jensen falsely claims to have
served a copy on James Parker).
B. Preliminary (nature of case and trial issues)
8-9. ‘The opinion states (1:18-19): “The action was
based on q breach of the rental agreement — L.e.,
tenant James Parker subletting to Michael Halliwell
in violation of the rental agreement.”
Defendants’ November 13, 2007 Analysis of Judge
Nadler’s Proceedings says:
[Defendants give] their main defense (in their
Answer at CR-007): “It is clearly arbitrary
discrimination in rentals to exclude someone
because he knows something about his legal!
rights, and is willing to help a co-tenant in his
legal battle. The three-day eviction notice is
clearly and plainly an attempt to use retalia
tory eviction to intimidate Mr. Halliwell.” (CR-
1136)
Defendants June 11" filing also fleshed out
their anti-discrimination defense:
The State Supreme Court ruled in Marina
Point v Wolfson (1982) 30 Cal 3d 721, 730:
Contrary to the municipal court’s conclusion,
the anti-discrimination provisions of the
Unruh Act are not confined only to a limited
category of “protected classes” but rather
protect “all persons” from any arbitrary
discrimination by a business establishment
(In re Cox, 3 Cal 3d at p. 212.) In evaluating
the legality of the challenged exclusionary
policy in this case, we must recognize at the
outset that in California, unlike other
jurisdictions, the Legislature has sharply
circumscribed an apartment owner's
traditional discretion to accept or reject
tenants on the basis of the landlord’s own
likes and dislikes. (CR-016)
The same filing notes legislative ratification of
this concept in 2006:
AB 1400 states that “it 1s the intent of the
Legislature that these enumerated bases [of
prohibited discrimination] shall continue to be
construed as illustrative rather than restrict-
ive.” This means that California law continues
to prohibit any arbitrary discrimination.
(CR-016) (CR-1137-1138)
Defendants cite Michael llalliwell’s June 19
2007 analysis of AB 1400
My first point on this, again, this is an
analysis of AB 1400 adopted effective January
1st, 2006, in essence a recent amendment to
the Unruh Act, and it says the act protects as
amended, which basically is embracing the
reasoning of Marina v Wolfson, which I will
also quote, but this says the act protects all
persons from arbitrary discrimination by
business establishments, not just on the
grounds enumerated in the statute. In other
words, if we were able to establish that the
category being discriminated against was
uppity tenants, 1n other words, we want
tenants in our building, only the docile type
who don’t want the rules enforced, by golly in
this apartment building my word is law, and if
you don't recognize that, I'm going to use my
power as a landlord to kick you out. Now if the
factual predicate were established for that,
would, in fact, that assertion or that degree of
power by a landlord constitute arbitrary
discrimination within the meaning of the
Unruh Act, because I think there is — it is
clear that it is general arbitrary discrim1-
nation that is precluded, not discrimination
against particular categories. (Transcript at
77:7-27) (CR-1163)
After Judge Nadler declined to rule in Plaintiff's
favor on the issue of subtenancy (motion for
summary judgment on the pleadings), Charles
Jensen declined to renew his motion in proceedings
before Judge Rushing, as Judge Nadler suggested he
might. (Transcript at 93:10-
This text is long and has been trimmed here. Open the source document for the complete record.
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