# Appendix — Halliwell v. Superior Court of California, Sonoma County (No. 09-171) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0920%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2009 ## Text (3) Supreme Court US. ®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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0920%3A2. Public record. Not legal advice.