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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