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IN THE COURT OF APPEALS

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

MICHAEL COOMBS Plaintiff and Respondent Writ of Supersedeas No. Appeal No. A144930 Sup. Ct. No. CPF-10-510760 vs.

ARCHIBALD CUNNINGHAM Defendant and Appellant ________________________________________________________________

REQUEST FOR WRIT OF SUPERSEDEAS TO REINSTATE APPEAL AND WRIT

AND TO RECALL REMITTITUR IMMEDIATE STAY UNDER CRC 8.116/8.475

__________________________________________________________________

From August 7, 2015 Orders Dismissing Appellant’s Appeal (A144930) and His Writ of Supersedeas Pursuant to the Doctrine of Disentitlement And Based on Deliberate

Misrepresentations and Frauds Made By Attorney John S. McKay In His June 30, 2015 Motion to Dismiss

From the Superior Court for San Francisco

Hon. Judge Ronald Evan Quidachay Department 501, 415-551-3762

Archibald Cunningham

State Bar #210625 P.O. Box 54399

San Jose, CA 408 466-7819

Self-represented

Writ of Supersedeas, 1

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TABLE OF CONTENTS

ISSUE PRESENTED……………………………………………………… 6 INTRODUCTION……………………………………….…………………6 STATEMENT OF CASE…………………………………………………..6 AUTHENTICITY OF EXHIBITS……………………………………….. 8 BENEFICIAL INTEREST OF PETITIONER; CAPACITIES OF RESPONDENT AND REAL PARTY IN INTEREST……………… 8 BASIS FOR REVIEW……………………………………………………... 9

PRAYER…………………………………………………………………… 11

VERIFICATION…………………………………………………. ……..... 12

STATEMENT OF FACTS……………………………………………….. 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF SUPERSEDEAS……………………………………………14 I. The Court of Appeals That Has Inherent Authority To Dismiss An Appeal For Failure to Comply With Court Orders Also Has Authority to Reinstate An Appeal That Was Dismissed By Extrinsic Fraud………14 A. The Court of Appeals Dismissal Order Was Made Pursuant to Its’ Inherent Powers…………………………………………………………….15 B. A Litigant Is Entitled to Procedural Due Process Before the Dismissal of His/Her Appeal Pursuant to the Doctrine of Disentitlement……………………………………………………………… 15 C. Petitioner Was Not Provided Procedural Due Process Protections Prior to the Dismissal of His Appeal………………………………………17 1. Alleged Non-compliance with Order for Interrogatories……. 17 2. Alleged Violation of Judgment…………………………………. 18

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3. Alleged Violation of Stay-Away Order………………………. 19 4. Justice Kline Invents New Procedures to Replace CCP 1209.. 20 5. Mr. McKay’s Bad Faith In Failing to File A Contempt Affidavit…………………………………………………………….21 II. Mr. McKay’s Motion to Dismiss Under the Doctrine of Disentitlement Was Obtained by His Deliberate Misrepresentations and Frauds Upon the Court…………………………………………………………... 22 A. Mr. McKay’s Deliberate Suppression of Evidence Related to Change of Material Facts……………………………………………………….... 22 B. Mr. McKay’s Deliberate Suppression of Material Facts Related to Post-Judgment Interrogatories………………………………………… 24 C. Mr. McKay Misrepresented the Material Facts Related to Enforcement of Judgment Under the 2007 TICA…………………… 28 D. Mr. McKay Allegations of Petitioner’s Non-Compliance with Order to Vacate and Stay Away From His Condo…………………………... 32 CONCLUSION………………………………………………………….. 39

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Federal Courts

Amster Corp. v. Envirotech Corp (9th Cir. 1984) 730 F. 2d 1476……………35

Lara v. County of Santa Clara, U.S District Court, N.D. California, C-11-0607 RS, (2012)………………………………………………….. 34

State Courts

Alioto Fish Co. v. Aliota (1994) 27 Cal. App. 4th 1669………………..16

Anderson v. Superior Court (1989), 213 Cal.App.3d 1321………….. ...9 Arieta v. Mahon (1982) 31 Cal. 3d 381…………………………… …..34

Carr v. Kamins, 60 Cal. Rptr. 3d 196 …………….………………. …..14

Lyons v. Wickhorst (1986) 42 Cal. 3d 911………………………… ….15

MacPherson v. MacPherson 13 Cal. 2d 271 (1939)………………. …16

Moncharch v. Heily & Blasé (1992) 3 Cal. 4th 1……………………….31

People v. Clark (1927) 201 Cal. 474……………………………………11

People v. Gonzalez (1996) 12 Cal.4th 804………………………….. …18

People v. Kang (2003) 131 Cal. Rptr. 2d 447………………………10, 15

Reid v. Balter (1993) 14 Cal. App. 4th 1186………………………. …..14

Say & Say v. Castellano (1994) 22 Cal. App. 4th 88…………………..16

Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal. App. 4th 736……..15

Stone v. Bach (1978) 80 Cal. App. 3d 442…………………………16, 17

TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377……………….. 6, 15, 16

State Statutes

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Civil Code §1351(j)……………………………………………………31

Civil Code §1352…………………………………………………..14, 19

CCP §391.2……………………………………………………………. 8

CCP §391.4……………………………………………………………. 8

CCP 415.46……………………………………………………… 36, 38

CCP §512.010…………………………………………………………34

CCP §564(b)(7)……………………………………………………33, 35

CCP §568………………………………………………………………32

CCP §712.010………………………………………………………… 35, 38

CCP §715.050………………………………………………………… 35, 39

CCP §1161…………………………………………………………… 33

CCP §1209…………………………………………………………….20

CCP §1209(a)(5)………………………………………………… .20, 22

CCP §1211.5………………………………………………………….. 18

CCP §1217……………………………………………………………. 18

CCP §1218(a)………………………………………………………….18

Penal Code 166(a)(4)…………………………………………………. 20

Vex. Litigant Statute…………………………………………… Passim

Federal Statutes

1st Amendment…………………………………………………………. 6

14th Amendment………………………………………………….. Passim

Treatise

3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 506………………33 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 599, p. 69…………….33 5 Witkin, Cal. Procedure (2d ed. 1970) ……………………………… 38

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ISSUE PRESENTED

Must an appellate court reinstate an appeal (as well as an accompanying writ) and vacate its remittitur where it dismissed the appeal under the Doctrine of Disentitlement and failed to discern that the bare allegations of opposing counsel not only failed to prove that Petitioner was in “an attitude of contempt” but were a deliberate misrepresentation of fact and law, a willful distortion of material events, and constituted a fraud on the court?

INTRODUCTION Petitioner Archibald Cunningham files this writ seeking to reinstate appeals and

writs that were dismissed based on various motions filed by opposing counsel Mr. John

Scott McKay. Petitioner avers that Mr. McKay, in filing motions to dismiss, deliberately

misrepresented material facts and engaged in misconduct. Mr. McKay has argued that

Petitioner is disentitled to appeal for being “in an attitude of contempt” toward court

orders. Most recently, on June 30, 2015, Mr. McKay filed a motion to dismiss

Appellant’s appeal (A144930) of a March 23, 2015 order confirming the “forced sale” of

his condominium under a provision of a 2007 Tenants-in-Common Agreement (2007

TICA) that applies only to a “defaulting Cotenant’s cotenancy share.” (*See,

Respondent’s Motion to Dismiss Appeal, RMTD, Attachment A, pg. 74-100). In his

motion, Mr. McKay cited Tms, Inc. v. Aihara (1999) 71 Cal. App. 4th 377 for the

proposition that “an appeal of a party who is in contempt of court” may be dismissed by

an appellate court. (Attachment A, pg. 85; RMTD, pg. 9, ¶2). The Court of Appeal

granted his motion.

STATEMENT OF CASE

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In his Declaration, Mr. McKay alleged three separate grounds for invoking the so-

called Doctrine of Disentitlement and dismissing Appellant’s appeal. (Declaration,

RMTD, pg. 13-20; Attachment A, pg. 89-98). He asserted that Appellant was in violation

of court orders to; 1) provide answers to post-judgment interrogatories; 2) to

“cooperate” in the “forced sale” of his “condominium” under section 14.7 of the 2007

TICA despite the fact that section 14.7 applies only to a “defaulting Cotenant’s cotenancy

share,” not an owner’s fee-simple condominium; 3) “stay-away” from his own property

and adhere to an August 20, 2014 order granting the non-attorney court-appointed

receiver, Kevin Singer (hereinafter SINGER), a “writ of possession.”

In requesting the reinstatement of his various appeals and writs, Petitioner now

avers that opposing counsel Mr. John Scott McKay misrepresented events, omitted

material facts, and suppressed his own wrong-doings and illegal conduct in order to

prevent Petitioner from challenging on appeal the “enforcement” of his facially

ambiguous “Judgment.” In other words, Petitioner asserts that Mr. McKay has

deliberately and willfully mislead the appellate court in order to deny Appellant the right

to court access under the 14th Amendment, the right to petition grievances under the 1st

Amendment, and the right to vindicate his contractual rights under the 2009 CC&Rs and

Bylaws and to show Mr. McKay’s myriad frauds upon the court. Appellant has filed a

complaint with the State Bar against Mr. McKay pointing out his ethical lapses, his

fraudulent conduct, and his apparent criminal conduct. (*See, Attachment A, pg. 45-72).1

1 Likewise, Petitioner has filed a complaint with the Commission on Judicial Performance against Justice J. Anthony Kline and Justice James Richmond for their role in the

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AUTHENTICITY OF EXHIBITS

All attachments/exhibits accompanying this petition are true copies of original

documents on file with respondent court, the San Francisco Assessor’s Office, the Court

of Appeal, the state Supreme Court, the San Francisco Sheriff’s Department, except the

“escrow document” which was prepared by Connie McCrudden of First American Title

Company. (Attachment A, pg. 132-139; Mr. McKay allotted almost $400,000 in fees).

BENEFICIAL INTEREST OF PETITIONER; CAPACITIES OF RESPONDENT AND REAL PARTY IN INTEREST

Archibald Cunningham is the Petitioner in this action and was the defendant in

Respondents’ arbitration proceeding filed under the 2007 TICA (CPF-10-510760). He

was the “plaintiff” in the lawsuit for breach of the 2009 CC&Rs and Bylaws and for the

fraud of Mr. McKay who, when drafting the arbitration award, substituted out the

material terms “defaulting Cotenant’s cotenancy share” and inserted “condominium.”

(CGC-11-511994). This lawsuit was dismissed under section 391.4 of the Vexatious

Litigant Statute (VLS) when the represented Petitioner failed to post the $50,000 in

security Mr. McKay requested. Under section 391.2 of the VLS, the dismissal did not and

was not considered a decision on the merits of Appellant’s claims.2 On appeal

improper and unconstitutional dismissal of myriad appeals and writs of Petitioner under the Doctrine of Disentitlement. The justices’ role seemed to entail rubber-stamping Mr. McKay’s motions without providing Petitioner any due process protections. (*See, Attachment B). 2 CCP section 391.2: At the hearing upon the motion the court shall consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion. Except for an order dismissing the litigation pursuant to subdivision (b) of

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(A134206), Justices Kline and Richman upheld the dismissal, the only issued raised at

the trial court and the only issue to be determined by the appellate court. In that sense, the

parties’ contractual rights under the 2009 CC&Rs have never been adjudicated. After

being denied all access in the state court by virtue of Mr. McKay’s vexatious litigant

motions, Petitioner raised the federal constitutional issue of denial of court access when

he filed his civil rights section 1983 lawsuit in the federal district court along with the

pendant state-law claims. That matter is fully-briefed and now before the Ninth Circuit

Court of Appeals (14-15266). Further, a second federal civil rights suit was filed by

Petitioner after the non-attorney court-appointed receiver fraudulently obtained an EJ-130

from the San Francisco Superior Court and convinced the San Francisco Sheriff’s

Department to wrongfully “evict” an owner and title-holder from his own condominium.

This matter of the wrongful eviction of an owner from his own condominium is now

before the Ninth Circuit (Ninth Circuit Court of Appeals, No. 15-15166).

BASIS FOR REVIEW

Appellate courts have allowed the use of extraordinary writs “[W]hen the issue is

of a grave nature or of significant legal impact, or to review questions of first impression

and general importance to the bench and bar where general guidelines can be laid down

for future cases, review by writ is also appropriate.3 In the same way, writs of mandate

Section 391.3, no determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof. (Emphasis added). 3 Anderson v. Superior Court (1989), 213 Cal.App.3d 1321, 1328.

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and/or prohibition are authorized “[W]here the trial court denies the fundamental right to

a fair hearing, an extraordinary writ will be available to stop or correct the situation.”

In the instant case, Petitioner seeks the reinstatement of appeals and writs that

were dismissed pursuant to the “Doctrine of Disentitlement” and by exercise of the

appellate court’s “inherent authority.” He also requests the recall of the remittitur. The

state Supreme Court, in People v. Clark (1927) 201 Cal. 474 was confronted with the

issue of whether an appeal could be reinstated after it was dismissed by virtue of the

“fugitive disentitlement doctrine.” In assuming a court has the authority to reinstate an

appeal, the Supreme Court concluded (Id., 478):

"…[such power] should only be exercised in those cases where it is plainly made to appear that a denial of its exercise would work a palpable injustice or wrong upon the appellant."

In People v. Kang (2003) 131 Cal. Rptr. 2d 447, the Court of Appeals for the Fourth

District refused to vacate the reinstatement of a criminal appeal. The Court of Appeals

stated (Id., at 478):

In this case, granting the Attorney General's motions would effectively result in a dismissal of Kang's appeal. We cannot with confidence conclude that dismissing the appeal would not work a palpable injustice on Kang without a full review of the record with the benefit of briefing and oral argument.

In the instant case, Petitioner here seeks the reinstatement of his civil appeal. While the

issue of the reinstatement of an appeal, whether criminal or civil, has never been

definitely determined, the Supreme Court’s ruling in Clark and the Court of Appeal’s

ruling in People v. Kang seem to have construed a court’s “inherent authority” as

authorizing it.

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PRAYER

Petitioner prays that this Court:

1. Issue a writ of mandate/prohibition directing itself to reinstate the various

appeals, including A144930, A136608, A142115, and A134608.

2. Issue a writ of mandate/prohibitions directing itself to recall the remittiturs

for the appeals listed in paragraph one.

3. Grant such other relief as may be just and proper.

Respectfully submitted,

/s/ Archibald Cunningham

________________________ Dated: December 4, 2015 Archibald Cunningham Petitioner

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VERIFICATION

I, Archibald Cunningham, the Petitioner, declare as follows:

I am a licensed attorney and the petitioner in this case. I have read the foregoing

Petition for Writ of Supersedeas and know of its contents. The facts alleged in the

Petition are within my own knowledge and I know these facts to be true.

I declare under penalty of perjury that the foregoing is true and correct and that

this verification was executed on December 4, 2015 at San Jose, California

/s/ Archibald Cunningham

____________________ Archibald Cunningham, Esq.

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STATEMENT OF FACTS

On September 25, 2007, husband and wife, Mr. Coombs and Ms. Woods, signed a

“Tenants-in-Common Agreement” related to 1487-1489 McAllister St. with the other

“Co-tenant,” Archibald Cunningham. The TIC Agreement was drafted by Andrew Sirkin

at the behest of Mr. Coombs and Ms. Woods.

After owner-occupying their two-unit building for a year as mandated by the

California Subdivision Map Act, Mr. Coombs, Ms. Woods, and Petitioner were permitted

under the condo-conversion procedures to submit an application for conversion of their

two-unit “tenancy-in-common” building into condominiums, which they did in October,

2008.

On March 4, 2009, Bruce R. Storrs, the City and County Surveyor of San

Francisco’s Dept. of Public Works, approved the parties’ parcel map after they had

passed mandated inspections by the SFBD, paid their application fees, and complied with

all requirements of the California Subdivision Map Act.

On September 11, 2009, Mr. Coombs, Ms. Woods, and Mr. Cunningham went to

the office of Chicago Title Company and signed and executed and notarized Covenants,

Conditions & Restrictions (CC&Rs) required for condo-conversion.

On September 30, 2009, Ross Kennedy of Chicago Title recorded the

“Declaration of Restrictions for 1487-1489 McAllister Street, A Condominium

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Project,” thereby converting the two-unit “tenancy-in-common” property into two

separate condominiums. 4

On March 13, 2015, Petitioner filed a quiet title action and an accompanying lis

pendens motion on March 17, 2015 to finally resolve the issue of having two supposedly

valid contracts that occurred when Mr. McKay resurrected the zombie 2007 TICA.5

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WRIT OF SUPERSEDEAS

I. The Court of Appeals That Has Inherent Authority To Dismiss An Appeal For Failure to Comply With Court Orders Also Has Authority to Reinstate An Appeal That Was Dismissed By Extrinsic Fraud.6

4 Civil Code §1352: This title applies and a common interest development is created whenever a separate interest coupled with an interest in the common area or membership in the association is, or has been, conveyed, provided, all of the following are recorded: (a) A declaration. (b) A condominium plan, if any exists. (c) A final map or parcel map, if Division 2 (commencing with Section 66410) of Title 7 of the Government Code requires the recording of either a final map or parcel map for the common interest development. 5 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACGC15544693 MAR-13-2015 OTHER NON EXEMPT COMPLAINTS, COMPLAINT FILED BY PLAINTIFF

CUNNINGHAM, ARCHIBALD… 6 Carr v. Kamins, 60 Cal. Rptr. 3d 196 - Cal: Court of Appeal, 2nd Appellate Dist., 8th Div. 2007)"A judgment is void on its face if the court which rendered the judgment lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant. [Citations.]" (Ibid.); Reid v. Balter (1993) 14 Cal. App. 4th 1186, 1194; "`A judgment absolutely void may be attacked anywhere, directly or collaterally whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither a basis nor evidence of any right whatever.'"; "`A void judgment [or order] is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.' [Citation.]" Bennett v. Wilson (1898) 122 Cal. 509, 513-514).

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A. The Court of Appeals Dismissal Order Was Made Pursuant to Its’ Inherent Powers. On August 7, 2015, the Court of Appeals for the First Appellate District dismissed

Petitioner’s appeal of an order confirming the forced sale of his condominium. In its

order/opinion, Justice Kline stated:

Under the "disentitlement doctrine," an appellate court has the inherent power to dismiss an appeal by a party that refuses to comply with a lower court order. (Stoltenberg v. Ampton Investments (2013) 215 Cal.App.4th 1225, 1229; see TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379.) While appellate courts have “inherent authority to dismiss,” the case law is clear that use

of the disentitlement doctrine should only be used in “extreme circumstances” and where

"the court's authority `cannot possibly be otherwise vindicated'.” Lyons v. Wickhorst

(1986) 42 Cal. 3d 911, 917). Likewise, the Court of Appeals in Slesinger, Inc. v. Walt

Disney (2007) 155 Cal. App. 4th 736, stated, supra, at 757:

There are, of course, limits on the inherent authority of California courts — inherent power may only be exercised to the extent not inconsistent with the federal or state constitution, or California statutory law. (Citations omitted).

B. A Litigant Is Entitled to Procedural Due Process Before the Dismissal of His/Her Appeal Pursuant to the Doctrine of Disentitlement As noted above in People v. Kang (2003) 131 Cal. Rptr. 2d 447, the Court of

Appeals for the Fourth District refused to vacate the reinstatement of a criminal appeal

because the litigant was not provided procedural due process protections. (supra, at 478;

The court concluded that a dismissal would likely result in a “palpable injustice” unless

the litigant was provided a “full review of the record with the benefit of briefing and oral

argument.”).

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In his motion to dismiss, Mr. McKay stated that an appellate court was authorized

to dismiss an appeal under the Doctrine of Disentitlement without there having been a

formal finding of contempt at the trial court. (Attachment A, pg. 85. RMTD, pg. 9, ¶2;

“The court further explained that no judgment of contempt is required as a prerequisite

to the Court of Appeal’s exercise of the power to dismiss.”). This was, at best, a half-

truth. While it is true that the doctrine can be applied without a “formal adjudication of

contempt,”7 the Court of Appeals of Aliota Fish Co. v. Aliota (1994) 27 Cal. App. 4th

1669 made clear that an appellate court must at least make a finding of “willful

disobedience” or “obstructionist tactics” before dismissing. (Id., at 1683):

Although the power to stay or dismiss an appeal is typically exercised when the litigant is formally adjudicated in contempt of court, "the same principle applies to willful disobedience or obstructive tactics without such an adjudication." (9 Witkin,Cal. Procedure (3d ed. 1985) Appeal, § 172, p. 184; see also Stone v. Bach, supra,80 Cal. App.3d at p. 444.)

In Aliota, the Court of Appeals concluded that the trial court’s imposition of sanctions

“contain judicial findings that appellants have persisted in willfully disobeying the trial

court’s orders.” (Id., at 1683). In other words, contrary to Mr. McKay’s suggestions to

the contrary, appellate courts will not dismiss an appeal under the Doctrine of

7 Stone v. Bach (1977) 80 Cal. App. 3d, 442, 444, found twice to be in contempt for failing to be sworn for examination as judgment creditor; Tobin v. Casaus, (1954) 128 Cal. App. 2d 588, 589, no contempt, but bench warrant issued for failure to make court appearance; MacPherson v. MacPherson 13 Cal. 2d 271 (1939), “facts established the truth” that father had “contumaciously” removed children, had been held in contempt; TMS, INC. v. Aihara, Id. at 835, no contempt, but court’s finding of “willful disobedience” to answer post-judgment interrogatories as shown by moving to Japan. Say & Say v. Castellano (1994) 22 Cal. App. 4th 88, 94; litigant’s appeal dismissed where he had “been adjudged in contempt of court on three occasions in recent months.”

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Disentitlement without either a contempt ruling at the trial court or a judicial finding of

“willful disobedience” of a court order.

C. Petitioner Was Not Provided Procedural Due Process Protections Prior to the Dismissal of His Appeal. In his motion to dismiss, Mr. McKay concedes he did not file a contempt action

against Petitioner at the trial court with respect to his three grounds for dismissal.

Instead, he provides bare allegations on appeal that Petitioner was “in contempt.”

1. Alleged Non-compliance With Order for Interrogatories.

With respect to his first ground of disobeying a court order to provide

“interrogatory” at a creditor’s examination, Mr. McKay did not show that Petitioner was

“in contempt” or refused to be “sworn” for examination as was the judgment creditor in

Stone v. Bach. (*See, fn 7). Instead, Mr. McKay offered bare allegations as he had done

previously in getting Petitioner’s earlier appeals dismissed, such as A136608.

(Attachment A, pg. 87; RMTD, pg. 11, ¶1; “It should be noted that this Court dismissed

Cunningham’s appeal in Case No. A134608 based on his failure to answer the post

judgment interrogatories as ordered.”). For their part, Justices Kline and Richman

dismissed the appeal despite the absence of a “formal finding of contempt” at the trial

court and case law, Stone v. Bach, which predicated a dismissal on the basis of

disentitlement on similar facts and with a formal finding of contempt. The justices simply

accepted Mr. McKay’s bare allegations and, in doing so, in essence, and by a de facto

default, granted Mr. McKay $97,654 in fees. In his complaint to the Commission on

Judicial Performance, Petitioner alleged that the justices violated his constitutional rights.

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2. Alleged Violation of Judgment.

With respect to his second alleged contempt, Mr. McKay states in his motion that

Petitioner violated the “Judgment.” (Attachment A, pg. 87; RMTD, pg. 11, ¶2):

Cunningham had also violated the injunction that is part of the Judgment by denying the receiver access to the condo as required by section 14.7 of the TICA (which section is specifically referenced in the Judgment and in the order appointing the receiver).

But Mr. McKay did not bring a contempt action under CCP §1209(a)(5) at the trial court

to resolve the issue of whether Petitioner was in “disobedience” of a “lawful judgment.”

If he had, Petitioner would have been entitled to a full evidentiary hearing if not a trial

with the right to testify, the right to call witnesses, the right to cross-examinations and to

do so after extensive discovery and depositions. (CCP §1211.5; §1217; §1218(a)).

Further, if Petitioner had the benefit of these procedural due process protections at

the trial court, he would have had the right to “collaterally attack”8 the “validity” of the

underlying injunction contained in the “Judgment.” He would have finally been able to

demonstrate that Mr. McKay fraudulently substituted out terms (“cotenancy share”) from

section 14.7 of the 2007 TICA and inserted the word “condominium” when he drafted the

proposed arbitration award and subsequent pleadings. He’d have been able to call Bruce

Sturris of the SF Public Works Department to testify that he had approved the condo-

8 People v. Gonzalez (1996) 12 Cal. 4th 804, 817: [O]ut of a concern to protect the constitutional rights of those affected by invalid injunctive orders, and to avoid forcing citizens to obey injunctive orders on pain of punishment for contempt, this court has firmly established that a person subject to a court's injunction may elect whether to challenge the constitutional validity of the injunction when issued, or to reserve that claim until a violation of the injunction is charged as contempt of court.

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conversion a year before Mr. McKay filed his “petition to compel arbitration” on the

2007 TICA. He’d have been able to call co-owners Mr. Coombs and Ms. Woods to

testify that they had Chicago Title record the parties’ Declaration (the 2009 CC&Rs and

Bylaws). They would also have testified that they issued Petitioner/Cunningham a

“GRANT DEED” for a condominium six months before they had Mr. McKay sue on the

2007 TICA and asserted that the two-unit building was still held as a “cotenancy” rather

than separate condos. Also, Petitioner would have called an expert witness, perhaps Andy

Sirkin, the drafter of the 2007 TICA, to explain to Justice Kline9 that the 2007 TICA

“terminated” by its own terms upon conversion (which occurred on September 30, 2009

when Mr. McKay’s clients, Coombs and Wood, and Petitioner recorded the Declaration).

3. Alleged Violation of Stay-Away Order.

With respect to his third ground for dismissal, Mr. McKay asserts that Petitioner

was “also in contempt based on his refusal to vacate and stay away from the condo as

ordered by Exhibit E.” (Attachment A, pg. 87; RMTD, pg. 11, ¶3). In his declaration, Mr.

McKay states that Petitioner was “evicted” and then arrested twice for violating the

“stay-away” order attached to the August 20, 2014 “writ of possession.” (Att. A, pg. 96;

RMTD, pg. 20, ¶19; “I was present for two of those arrests, as the officers twice arrested

Cunningham at the court when Cunningham was present for hearings.”). The fact is

Petitioner was not “evicted” based on the August 20, 2014 writ, but on the mandatory

9 At oral argument at A131914, Justice Kline asked Mr. McKay when the 2007 TICA after Petitioner referred to the 2007 TICA as a “zombie contract.” Apparently, Justice Kline had not read the “termination” clause in the 2007 TICA or recognized that under Civil Code section 1352 that the two-unit building converted to separate condominium units upon the recording of the Declaration.

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Judicial Council EJ-130 form SINGER fraudulently obtained from the clerk. Mr. McKay

knew this. For Mr. McKay to suggest that Petitioner was “evicted” for violating the

August 20, 2014 writ is to heap one fraud upon another.

The fact that Petitioner, as an owner, was not subject to an “eviction” under the

Unlawful Detainer Act, did not deter SINGER and Mr. McKay from fraudulently

obtaining the EJ-130 form and persuading the SF Sheriff’s Department to evict him.

Oddly, in ruling on Petitioner’s habeas corpus petition challenging the “criminal

contempt” under Penal Code §166(a)(4), Justice Kline conceded that an “owner” such as

Petitioner was not subject to “eviction” under the Unlawful Detainer Act. (A146271). But

Justice Kline declined to address the uncontroverted proof of SINGER’s fraudulent

conduct and Mr. McKay’s collusion in it. (*See, Attachment C).

4. Justice Kline Invents New Procedures to Replace CCP §1209.

In his pre-dismissal order in A136608, Justices Kline and Richman ordered

Petitioner to disprove Mr. McKay’s bare allegations, which they would accept as true

without any collaboration unless Petitioner “disproved” them. The order provided:10

03/10/2014 Order filed. Respondents' opposed motion to dismiss appeal, filed on February 6, 2013, will be granted on April 1, 2014, unless prior to that date appellant presents written proof that he is in compliance with all orders of the superior court. Said written proof may be in the form of: 1) an order of the court; 2) a reporter's transcript evidencing the court's opinion that appellant has complied with all pending court orders; 3) a letter from respondents to the same effect; or 4) such other written proof that is acceptable to respondents. If appellant submits such proof by April 1, 2014, respondents' motion will stand denied.

10 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2025700&doc_no=A136608

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Under their new-fangled procedures, Petitioner was required, within “three weeks,” to

disprove Mr. McKay’s allegations by getting an order from the trial court showing

compliance or a “letter” from Mr. McKay’s to the “same effect.” Besides abdicating the

judicial role by delegating to Mr. McKay judicial powers and giving him a “veto power”

over the outcome of his own motion, the justices ignored the fact that there was no

“judicial finding” of contempt or “willful disobedience.” Further, the justices intimated

that there was some motion Petitioner could file at the trial court to “unprove” or

“disprove” the bare allegations Mr. McKay made at the appellate court. Further, the

justices essentially excused Mr. McKay from filing an affidavit for contempt at the trial

court level and demanded that Petitioner disprove bare allegations on appeal without any

of the procedural due process protections afforded a contemnor under CCP §1209(a)(5).

More disturbing yet, the justices asked that Petitioner provide a “transcript” that

“evidenced” his compliance. In that regard, Petitioner filed a writ of supersedeas related

to the appeal of the order confirming the sale (A144930). In his writ, Petitioner attached

documents showing that the escrow had closed, that his condo was sold, and that the new

owner had moved in. This writ “evidenced” the material changes in facts that made

“compliance” with the orders moot. Nevertheless, the justices summarily denied the

appeal along with the writ on the same day, August 7, 2015.

These new procedures were in excess of the justices’ jurisdiction and a violation

of Petitioner’s rights under the Due Process Clause. The justices should now reinstate the

appeals and writs as the result of the denial of procedural due process.

5. Mr. McKay’s Bad Faith In Failing to File A Contempt Affidavit.

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Mr. McKay did not file a “contempt” action at the trial court because he did not

want to give Petitioner an opportunity to “collaterally attack” the underlying and facially

ambiguous Judgment. In his civil rights suit (CGC-11-511994), Petitioner alleged that

Mr. McKay committed various frauds. But Mr. McKay got the suit dismissed under the

Vexatious Litigant Statute. He’s now filed 15 such motions and at least three

“disentitlement” motions to preempt every attempt Petitioner has made to vindicate his

rights under the 2009 CC&Rs and to expose Mr. McKay’s fraud.

Instead of filing a contempt action at the trial court, Mr. McKay called the police

and choreographed multiple arrests of Petitioner at the scheduled court hearings where

Mr. McKay knew Petitioner was available to be arrested. These arrests were for

“trespassing” at his own condo after he was “evicted” based on EJ-130 form that

SINGER and Mr. McKay had fraudulently obtained from the court clerk. This was

explained in the habeas corpus petition Justice Kline denied in his terse opinion.

(Attachment C).

Ironically, Petitioner had to be “arrested” to be afforded an opportunity to

challenge Mr. McKay’s bare allegations of non-compliance and to collaterally attack his

facially ambiguous “Judgment.” At the criminal trial, Mr. McKay will be called as a

witness to explain his actions, which he’s placed beyond scrutiny with the great success

he has had filing 15 vexatious litigant motions and denying Petitioner evidentiary

hearings.

II. Mr. McKay’s Motion to Dismiss Under the Doctrine of Disentitlement Was Obtained by His Deliberate Misrepresentations and Frauds Upon the Court.

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A. Mr. McKay’s Deliberate Suppression of Evidence Related to Change of Material Facts. To begin with, Mr. McKay’s ultimate fraud upon the court relates to his deliberate

failure to mention the change in material facts underlying his allegations of

noncompliance with court orders. On June 30, 2015, he filed his motion to dismiss the

appeal of the order confirming the sale of Petitioner’s condominium (A144930).

However, on June 9, 2015, the non-lawyer court-appointed SINGER “closed escrow” and

dispersed to Mr. McKay over $400,000 of the $700,000 of attorney’s fees he had churned

up in arguing that Petitioner’s condominium was subject to a “forced sale” under section

14.7 of the 2007 TICA. Further, at least a week before he filed his June 30, 2015 motion

to dismiss, Mr. McKay knew that the new owner, Michael Simonich, had moved into the

“condominium” at 1489 McAllister St., San Francisco and moved all of Petitioner

belongs into public storage.

As a result, Petitioner, after the sale of his condo, the close of escrow on June 9,

2015, and the occupancy of the new owner, could no longer comply with any court order

to “cooperate” with the “forced sale” of his condo. Likewise, after the occupancy of the

new owner, who changed the locks, Mr. McKay could not allege in good faith that

Petitioner was “out of compliance” with the “stay-away” order. Finally, after he pillaged

more than $400,000 at the close of escrow from the equity Petitioner had in his condo,

Mr. McKay could not in good faith assert that Petitioner was “out of compliance” with an

order to pay sanctions related to his alleged failure to provide answers to “post-judgment

interrogatories.” These events occurred three week before his June 30, 2015 motion.

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In short, Mr. McKay knew that the material facts of this case had changed but he

sought the “dismissal” of the appeal challenging the order confirming the sale. In view of

the sale of the condo and close of escrow, Mr. McKay knew that Petitioner could no

longer “interfere” with the sale even if he had wanted to. Yet, in his declaration, he

represents that Petitioner was still actively interfering with the “sale” of the condo. In the

same way, he states in his declaration that Petitioner was not “in compliance” with the

“stay-away order” when he knew that the new owner had moved into the condo and put

Petitioner’s property in storage. These statements evince his perjury.

To be clear, Mr. McKay made these representations in his sworn declaration. As

such, he is both misrepresenting facts and misleading the court while committing the

crime of perjury. He does not contend that Petitioner’s alleged “noncompliance”

continues even after the material facts changed. In view of the materially changed facts,

he knew that the matter of Petitioner’s “compliance or non-compliance” was impossible

and, thus, moot or irrelevant. However, in his clear and unequivocal statements in his

declaration, Mr. McKay represents that Petitioner’s alleged “non-compliance” is on-

going, deliberate, active, and unabated. He knew these were false statements. He

deliberately perjured himself to deny Petitioner the constitutional right to appeal and

challenge a facially unambiguous if not void “Judgment.”

B. Mr. McKay’s Deliberate Suppression of Material Facts Related to Post-Judgment Interrogatories

Even if he had not misrepresented the material facts of the sale of the condo and

occurrence of escrow closing, Mr. McKay had misrepresented facts related to the post-

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judgment interrogatories. In his Declaration, Mr. McKay stated that “Cunningham has

refused to comply with an order for answers to post-judgment interrogatories.”

(Attachment A, pg. 86; RMTD, pg. 10, ¶2; pg. 6, ¶2). In his Declaration, he elaborates

further (Att A, pg. 94; RMTD, pg. 18, ¶12):

12. In an effort to enforce the Judgment in the Underlying Action, Coombs served a set of post judgment interrogatories on Cunningham. Cunningham did not respond to these interrogatories in any way. Coombs therefore made a motion to compel answers to such interrogatories. Cunningham did not oppose such motion. On January 7, 2014, the Court ordered Cunningham to answer the interrogatories and hand serve such answers within 10 days of service of the order. The order was served on Cunningham by mail on January 8, 2014. See order and proof of service, true copies of which are attached hereto as Exhibit B. Answers were thus due, by hand delivery, on January 23, 2014. No answers have ever been provided by Cunningham. Cunningham was clearly available to answer such interrogatories, as he has filed many pleadings in various cases, and has appeared at numerous state and federal court hearings, since the due date for such answers.

In this sworn statement, Mr. McKay asserts that Petitioner “did not respond to these

interrogatories in any way.” Mr. McKay’s statements are false. These statements are a lie

and misrepresentation by omission. Mr. McKay deliberately and willfully suppresses and

omits the actions Petitioner took to quash Mr. McKay’s examination of his finances.

For example, Mr. McKay misrepresents the fact that Petitioner did in fact respond

by the alleged “due date” of January 23, 2014. Mr. McKay knew very well that on the so-

called January 23, 2014 due date, Petitioner Cunningham had filed a motion to quash his

request for interrogatories. 11

JAN-23-2014 EX PARTE APPLICATION FOR ORDER TO QUASH SERVICE OF

11 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760

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EXAMINATION FILED BY DEFENDANT CUNNINGHAM, ARCHIBALD

He also knew that at the trial court, in Dept. 514 where Judge Dorfman presided over the

“examination,” that Judge Dorfman had continued the hearing set for January 28, 2014 to

March 20, 2014.

JAN-28-2014 ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD CUNNINGHAM, ON JAN-28-2014 CONTINUED TO MAR-20-2014 AT 2:00 PM IN DEPT. 514 FOR FURTHER EXAMINATION AND COMPLIANCE WITH PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENA DUCES TECUM. COURT ORDERED MR. CUNNINGHAM TO RETURN ON MARCH 20, 2014 AT 2:00 PM, TO DEPRTMENT 514. NO FURTHER NOTICE IS REQUIRED. COURT ORDERED MR. CUNNINGHAM TO ANSWER QUESTIONS IN GOOD FAITH. MR. CUNNINGHAM TO PROVIDE MR. MCKAY ALL DOCUMENTS IN RESPONSE TO SUBPOENA DUCES TECUM BY FRIDAY JANUARY 31, 2014. J. SCOTT MCKAY, ESQ., APPEARING FOR JUDGMENT CREDITOR. PROCEEDINGS NOT REPORTED. (514)

Yet, Mr. McKay omits these events and misleads the court into believing that Petitioner

“did not respond…in any way.” Petitioner promptly complied with Judge Dorfman’s new

orders and provided answers and documents. Next, Mr. McKay, after receiving the

answers and required documents, simply filed a motion to take the “examination” off

calendar.

MAR-19-2014 ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD CUNNINGHAM, ON MAR-20-2014 OFF CALENDAR AT THE REQUEST OF THE MOVING PARTY. (514)

By deliberately suppressing any mention of Judge Dorfman’s subsequent actions and his

own motion to take the “examination” off calendar, Mr. McKay leads the court up the

briar patch. He creates the false impression that Petitioner did nothing and was willfully

indifferent or in an attitude of contempt.

Mr. McKay did not assert in his motion to dismiss or at the trial court that

Petitioner’s “answers” were not “in good faith.” For him to do that now, would

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undermine his “deceit” upon the court and his false allegation that Petitioner did nothing.

In the same way, Mr. McKay took the matter “off calendar” when Petitioner challenged

his motion and sought an evidentiary hearing where he could show the April 3, 2011

“Judgment” was facially void and predicated upon Mr. McKay’s initial fraud of

substituting out material terms (“condominium” inserted for 2007 TICA language related

to “defaulting Cotenant’s cotenancy share”) when he drafted his proposed “arbitration

award.”

In his declaration, Mr. McKay then boasts that his misrepresentations and perjured

statements related to the post-judgment interrogatories resulted in the dismissal of

Petitioner’s appeal (A136608) of his award of $97,654.71 in attorneys’ fees. (Att. A, pg.

94; RMTD, pg. 18, ¶13). By getting the appeal of the fee award dismissed, Mr. McKay

avoided having to litigate the issue of whether or when the 2007 TICA had terminated

and whether or if the 2007 TICA provided a “contractual basis” for awarding fees

incurred in filing multiple “vexatious litigant” motions at the trial court and appellate

court. Petitioner had already fully-brief the issue and raised constitutional challenges to

the fee award.12

01/02/2013 Appellant's opening brief. Defendant and Appellant: Archibald Cunningham Pro Per

12 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2025700&doc_no=A136608

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In getting the appeal dismissed by fraudulently invoking the “Doctrine of

Disentitlement,” Mr. McKay could avoid calling attention to the underlying fraud of

fraudulently substituting out material terms when he drafted the “arbitration award.” In

heaping another fraud on the court, Mr. McKay dodged scrutiny of his initial fraud and

pocketed $97,654 in fees in the process. By dismissing A136608 under the Doctrine of

Disentitlement, Justices Kline and Richman essentially granted him $97,654 in fees by

“default” and placed his initial fraud beyond scrutiny or accountability.

C. Mr. McKay Misrepresented the Material Facts Related to Enforcement of Judgment Under the 2007 TICA

In his declaration, Mr. McKay alleged that Petitioner was disentitled to appeal

because he was not in compliance with the April 13, 2011 “Judgment.” (Attachment A,

pg. 94-95; RMTD, pg. 18-19).

14. Cunningham has also failed and refused to comply with the Judgment in the Underlying Action. That Judgment (Exhibit A) requires the sale of Cunningham’s condo. Such Judgment also includes an injunction that requires Cunningham to cooperate in, and not do anything to interfere with, such sale. That Judgment became final on January 22, 2014 when this Court issued the remittitur in Court of Appeal Case No. A131914. Once that Judgment became final, Coombs pursued enforcement of the Judgment, including the sale of Cunningham’s condo. The superior court appointed a receiver (Kevin Singer) to conduct the sale. A true copy of the order appointing the receiver is attached hereto as Exhibit C. First, and as noted above, Mr. McKay represented that Petitioner’s alleged non-

compliance with the “Judgment” was an on-going and unabated event. However, he knew

very well that the condo was sold, escrow had closed, and the new owner was occupying

the property. Petitioner could no longer “cooperate” or interfere with the “forced sale.”

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Yet Mr. McKay misrepresented these events by omitting their occurrence. His sworn

statement was an act of perjury. The factual basis for alleging Petitioner’s

“disentitlement” was moot or irrelevant.

Second, even if the new owner had not moved into the condo, Petitioner could not

have “cooperated” with the “forced sale” of his condo anymore than he could have

“interfered” with it. The fact is that the “Judgment” was void on its face and a product of

Mr. McKay’s fraud. In drafting the arbitration award, Mr. McKay substituted out material

terms, inserting the word “condominium” in place of the 2007 TICA language for a

“defaulting Cotenant’s cotenancy share.” Mr. McKay asserted that Petitioner had not

“cooperated” with the judgment for a “forced sale” as “contemplated by section 14.7 of

the TICA.” (Attachment A, pg. 86; RMTD, 10, ¶3). He then attaches section 14.7 as his

Exhibit D and states that SINGER’s first step “was to obtain an appraisal of

Cunningham’s condo” and a “listing.” (Attachment A, pg. 83; RMTD, 7, ¶2).

Here again, Mr. McKay, even after attaching the section 14.7, tries to deceive the

court and suggests that Petitioner is “disentitled” to appeal because he was not in

compliance with court orders. (Attachment A, pg. 95; RMTD, pg. 19, ¶15):

15. The Judgment and the order appointing the receiver provide that the sale is to be conducted in accordance with the “Forced Sale” provisions (section 14.7) of the parties’ Tenancy In Common Agreement (the “TICA”). Under section 14.7(C) and (D) (a true copy of section 14.7 is attached hereto as Exhibit D), the first step in that process is to obtain an appraisal on Cunningham’s condo, and then list it with a real estate broker at the appraised value. Cunningham has continually vowed that he will not allow his condo to be sold. However, section 14.7 does not say or contemplate an “appraisal” of Petitioner’s

condominium. Section 14.7 says nothing about an ownership interest held as a

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“condominium.” It refers to the “appraisal, listing, and marketing” of a “defaulting

Cotenant’s cotenancy share.” Obviously, Petitioner could not comply with a court order

that is inherently ambiguous. Petitioner should not and was not “disentitled” to a appeal

but should have been “entitled” to an evidentiary hearing to resolve the issue of whether

the Judgment’s facial ambiguity was a mistake, void, or a product of Mr. McKay’s fraud.

In arguing for disentitlement, Mr. McKay deliberately suppresses any mention of

the facially ambiguous “Judgment” that he drafted for the court’s signature. Mr. McKay

does not try, nor could he try, to construe the section 14.7 term “cotenancy share” to

mean condominium or the term “Cotenant” to mean “owner.” Realizing he could not read

away these unequivocal section 14.7 terms, he simply ignores them, pretending that the

facial ambiguity does not exist and that the SINGER can “appraise, list, and sell” a

condominium under a contract provision that relates only to “cotenancy shares.” He

simply whitewashes or deletes the terms by ignoring them. He needs to misrepresent the

clear and unequivocal language of section 14.7 to support his “disentitlement” motion

and to cover-up the underlying fraudulent substitution of terms.13

Mr. McKay knew the unambiguous and unequivocal terms of section 14.7 relate

to a “defaulting Cotenant’s cotenancy share,” not an “owner’s” condominium:

13 Amstar Corp. v. Envirotech Corp. (9th Cir. 1984) 730 F. 2d 1476; “Distortion of the record, by deletion of critical language in quoting from the record, reflects a lack of the candor required by the MODEL RULES OF PROFESSIONAL CONDUCT, Rule 3.3 (1983), wastes the time of the court and of opposing counsel, and imposes unnecessary costs on the parties and on fellow citizens whose taxes support this court and its staff. A quotation containing deletions that so clearly distort the meaning and relevance of the quotation as to render it misleading will not in this court be encouraged by acquiescence.”

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14.7A(2) refers to the “offering price” as the “Appraised value of the Defaulting Cotenant’s cotenancy Share.”; 14.7B Notice of Forced Sale. This provision provides that the “non-defaulting Cotentant” is to provide notice of their intent “to cause the Defaulting Cotenant’s Cotenancy Share to be sold.” 14.7 C. Valuation. In this provision, “the non-defaulting Cotenant shall initiate determination of the Appraised Value of the Defaulting Cotenant’s Cotenancy Share.”; 14.7D. Listing for Forced Sale. This provides that the non-defaulting Cotenant “shall list the Defaulting Cotenant’s Cotenancy Share for sale at the offering price…”

By deliberately distorting the language of section 14.7 by his acts of omission, Mr.

McKay can allege that Petitioner is “out of compliance” and muster support for his

disentitlement motion. Most importantly, Mr. McKay’s allegations of non-compliance

divert attention from the facially ambiguous language and his fraudulent substitution of

terms at the time he drafted his arbitration award.

Whether Mr. McKay committed a “fraud” on the Petitioner, trial court, and

arbitrator when he substituted out the material term “defaulting Cotenant’s cotenancy

share” and substituted in “condominium” has never been adjudicated. He does not deny

or dispute he substituted out terms. Rather, he avoids calling any attention to his actions

by suppressing any mention of the facial ambiguity. He does not argue that he had the

authority to rewrite the parties’ 2007 TICA, the 2009 CC&Rs, the California Subdivision

Map Act, or Civil Code section 1351(j) and sub in and sub out material terms. Nor could

he argue that the arbitrator could rewrite the parties’ agreement by substituting out

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material terms (“The powers of an arbitrator derive from, and are limited by, the

agreement to arbitrate.” Moncharch v. Heily & Blasé (1992) 3 Cal. 4th 1, 8.)

In short, this alleged grounds for dismissing the appeal was based on Mr. McKay’s

suppression of material facts, misrepresentations of material contract terms, and attempts

to mislead the court.

D. Mr. McKay Allegations of Petitioner’s Non-Compliance with Order to Vacate and Stay Away From His Condo. Mr. McKay asserted that Petitioner was disentitled to appeal because of “his

refusal to vacate and stay away from the condo as ordered by Exhibit E.” (Attachment A,

pg. 87; RMTD, pg. 11, ¶3). As noted above, after the sale and close of escrow, this basis

for invoking the “doctrine of disentitlement” was irrelevant. In any case, even if the

material fact had not changed, Mr. McKay’s reliance on this ground is steeped in factual

distortions and misrepresentations.

In his declaration, Mr. McKay notes the trial court issued SINGER a “writ of

possession” on August 20, 2014. The “writ of possession” was based on the trial court’s

broad reading of CCP section 568 and purported to grant SINGER “possession” of

Petitioner’s condo by virtue of his “appointment” and without the need to “evict” under

the Unlawful Detainer Act. (Attachment A, pg. 96; RMTD, pg. 20, ¶17-¶18):

17. To proceed with the sale, the receiver filed a motion asking the superior court to grant the receiver possession of the condo pursuant to CCP §568, to issue a writ of possession so as to allow removal of Cunningham from the property, and for an order requiring Cunningham to stay away from the property. That motion was granted by an order dated August 20, 2015, a true copy of which is attached hereto as Exhibit E. Such order noted (at p. 2) that Cunningham was interfering with the receiver’s efforts to sell the condo as ordered, and that no lesser means are feasible for the receiver to be able to sell the property.

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18. Pursuant to Exhibit E, Cunningham was removed from the condo by the San Francisco County Sheriff on November 6, 2014, as Cunningham has acknowledged in his complaints about such eviction. Yet Cunningham promptly returned to the condo and stayed there, despite his removal and despite the court order (Exhibit E) requiring him to stay away. Cunningham has been arrested three times based upon his re-entry into the condo after his removal by the sheriff. I was present for two of those arrests, as the officers twice arrested Cunningham at the court when Cunningham was present for hearings…

Although CCP §564(b)(7) requires a receiver to obtain the court’s “approval” before

bringing an “eviction action,” Mr. McKay and SINGER convinced the trial judge that

Petitioner, as the owner and title-holder, could be “removed” by the mere “appointment”

of a receiver.

However, Petitioner was not “removed” from his condo “pursuant” to SINGER’s

August 20, 2014 self-drafted “writ of possession.” Rather, he was illegally “evicted”

from his own property by Mr. McKay’s and SINGER’s frauds. Mr. McKay knew very

well that an “owner” could not be evicted from his own property. ("The statutory

situations in which the remedy of unlawful detainer is available are exclusive, and the

statutory procedure must be strictly followed." (3 Witkin, Cal. Procedure (2d ed. 1971)

Pleading, § 506.)14 Mr. McKay realized that he could not “evict” Mr. Cunningham, the

14 The remedy of unlawful detainer is available in only three situations: ¶(a) Landlord against tenant for unlawfully holding over or for breach of the lease (the traditional and most important proceeding). (Code Civ. Proc. §1161); ¶ (b) Owner against servant, employee, agent, or licensee, whose relationship has terminated. (Code Civ. Proc., §1161(1); ¶(c) Purchaser at sale under execution, foreclosure, or power of sale in mortgage or deed of trust, against former owner and possessor. (Code Civ. Proc., §] 1161(a); 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 599, p. 69.)

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owner and title-holder, so he engaged in a fraud on the court.15 Mr. McKay and the non-

lawyer SINGER managed to convince the trial judge that an owner could be “removed”

by a two-paragraph “writ of possession” drafted by a receiver. (*See, Attachment A, , pg.

125-126; RMTD, McKay’s Exhibit E).

The San Francisco Sheriff’s Department refused to enforce SINGER’s August 20,

2014 “writ of possession” because it was not on the mandatory Judicial Council EJ-130.

For Mr. McKay to suggest that Petitioner was “removed” by the Sheriff’s Department

because he was out of “compliance” with the August 20, 2014 is a misrepresentation of

fact. The fact is that Petitioner was “evicted” because of the fraud of Mr. McKay and

SINGER. The San Francisco Sheriff’s Department would not “evict/remove” the owner

(Petitioner) except under the mandated procedures and with the approved Judicial

Council forms promulgated after the Supreme Court’s decision in Arieta v. Mahon

(1982) 31 Cal. 3d 381. (In Lara v. County of Santa Clara, U.S District Court, N.D.

California, C-11-0607 RS, (2012), the U.S. District Court Judge Richard Seeborg pointed

out that the California Legislature has “effectively codified the holding in Arieta” and

provided “formal procedures” and “judicial council forms” for any individuals “making a

claim of right to possession.”)

15 In the criminal habeas corpus petition (A146271), Justice J. Anthony Kline conceded that the “owner” Petitioner could not be “evicted” under the Unlawful Detainer Act because he was not a “tenant” or an individual subject to the Act. Rather, he suggested that Petitioner could be “evicted” pursuant to a ‘writ of possession” issued in a cause of action to regain “personal property” under CCP section 512.010. (*See Justice Kline’s opinion in Petitioner’s petition for review. Attachment C.)

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The EJ-130 form sets out the procedures, such as the need for a “judgment for

possession” after an “unlawful detainer action.” Code of Civil Procedure §715.050

makes clear that a “writ of possession” is a step in the unlawful detainer process, not a

separate cause of action or proceeding a receiver can bring under some fanciful reading

of statutes:16

715.050. Except with respect to enforcement of a judgment for money, a writ of possession issued pursuant to a judgment for possession in an unlawful detainer action shall be enforced pursuant to this chapter without delay, notwithstanding receipt of notice of the filing by the defendant of a bankruptcy proceeding.

Under the mandated procedures, the court clerk was to issue a “writ of possession”

on the mandated EJ-130 form after a judgment for possession was obtained in an

unlawful detainer act.

CCP 712.010: After entry of a judgment for possession or sale of property, a writ of possession or sale shall be issued by the clerk of the court upon application of the judgment creditor and shall be directed to the levying officer in the county where the judgment is to be enforced. The application shall include a declaration under penalty of perjury stating the daily rental value of the property as of the date the complaint for unlawful detainer was filed…(emphasis added).

SINGER, however, never obtained a “judgment for possession” under the Unlawful

Detainer. He and Mr. McKay may have convinced the trial judge to ignore mandated

procedures, but the Sheriff’s Department followed procedures.

16 CCP section 564(b)(7) allowed SINGER to bring an unlawful detainer action if he obtained “approval.” For Mr. McKay to suggest the “unlawful detainer actions” do not apply to receiver is contradicted by this statute. It’s proof of Mr. McKay’s deliberate misreading and false statement of law. (Amster Corp. v. Envirotech Corp (9th Cir. 1984) 730 F. 2d 1476.

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Given the Sheriff’s Department’s compliance with mandated procedures, SINGER

recognized he could not “remove” the owner/Petitioner without the mandated Judicial

Council form (EJ-130). Hence, SINGER returned to the court clerk (Bowman Liu) on

August 28, 2015, filled out the EJ-130 form, and returned it to the Sheriff’s. (Attachment

A, pg. 141-155;, Note: Stamped “Received” at the Sheriff’s Office on September 14,

2014). In the EJ-130 form, SINGER checked the box indicating he’d “served”

Petitioner’s roommates the “Prejudgment Claim of Right to Possession.” He had to

commit this fraud on the clerk and Sheriff’s Dept if he wanted to get paid from the

receivership estate, that is, the $800,000 to $1,000,000 of equity in Petitioner’s condo.

SINGER deliberately misrepresented the fact that he’d served the form on Petitioner’s

roommates. He had not. His next deliberate misrepresentation was that he served the

form “in compliance with CCP 415.46.” But CCP §415.46 provides for service of the

form with the unlawful detainer “summons and complaint.”17 He knew there was no

17 CCP §415.46. (a) In addition to the service of a summons and complaint in an action for unlawful detainer upon a tenant and subtenant, if any, as prescribed by this article, a prejudgment claim of right to possession may also be served on any person who

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“unlawful detainer action,” but nevertheless stated the “unlawful detainer” complaint was

filed on “9/29/10.” (*See, 24(a) Possession of real property. The Complaint was filed on

(date) 09/29/10). That was his third or fourth bold-faced deceit upon the clerk, the

Sheriff’s Department, the court, and, ultimately, upon Petitioner. The “9/29/10” date was

not an unlawful detainer action that resulted in a “judgment for possession,” but Mr.

McKay’s Petition to Compel Arbitration on the 2007 TICA.18 SINGER’s ultimate fraud

was convincing the court clerk to swap out his August 28, 2014 special receiver’s “writ

of possession” for the official Judicial Council bona-fide “there-has-been-an eviction-

proceeding” EJ-130 form.19 In short, he wrongfully evicted an “owner” under the Act.

If there is any doubt of an on-going series of frauds by Mr. McKay and his

confederate SINGER that was put to rest several weeks later. On September 29, 2014, the

trial judge allowed SINGER to “revoke” his first EJ-130 form (and the accompanying

appears to be or who may claim to have occupied the premises at the time of the filing of the action. Service upon occupants shall be made... 18 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760

SEP-29-2010 NTC OF HEARING ON PETITION TO COMPEL ARBITRATION AND FOR APPOINTMENT OF NEUTRAL ARBITRATOR; MEMO OF P & A, DECLARATION FILED BY PETITIONER COOMBS, MICHAEL WOODS, TAMARA HEARING SET FOR OCT-19-2010 AT 09:30 AM IN DEPT 302

19 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760

AUG-28-2014 ISSUANCE OF WRIT OF POSSESSION OF PROPERTY AGAINST ARCHIBALD CUNNINGHAM AS PER ORDER FILED ON AUGUST 20, 2014 FILED BY OTHER SINGER, KEVIN AS TO DEFENDANT CUNNINGHAM, ARCHIBALD

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frauds) and resubmit a second EJ-130 form. (Attachment A, pg. 145-155). In his

September 29, 2015 letter to the trial judge Quidachay, SINGER states:

“…I had the Initial Writ re-issued, signed by the clerk (“Re-issued Writ”) and presented to the Sheriff (See “Exhibit 2” Attached)….I expect that this Reissued Writ will succeed in removing Respondent Archibald Cunningham. Once he is removed, I expect to be able to have the Property inspected, appraised and marketed for sale.

In the “Re-Issued Writ,” SINGER resubmits essentially the same writ but this time he

does not check the box at section 24. Instead, he indicated he had not in fact served

“Prejudgment Right to Possession” forms on Petitioner’s roommates when he apparently

served the unlawful detainer complaint “in compliance with 415.46.” He also

misrepresents to the Sheriff’s Department that he obtained a “writ of possession” some

five years before based on the Petition to Compel Arbitration. This misrepresented law

and fact. It’s axiomatic that one does not obtain a “Judgment for Possession” in a hearing

on a Petition to Compel Arbitration.:

By not checking box 24(a)(1) in the reissued writ, he misrepresents that his amendments

have somehow cured his failure to obtain a “judgment for possession” under the

Unlawful Detainer Act and as required by CCP §715.050, §715.010 & §712.010. Further,

he thinks by typing in Mr. Cunningham’s name under the section for a “Description of

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Property,” that he has complied with procedures. Or, perhaps he believes this is the way

to alert the Sheriff to “evict/remove” the “individual,” along with his property but “not

any current tenants.” There is the lesser fraud here of referring to the owner as an

“individual” so as not to tip the Sheriff’s to the fraud that the “eviction” involved the

illegal eviction of an “owner,” as opposed to a tenant.

In seeking the dismissal of the appeal under the Doctrine of Disentitlement, Mr.

McKay falsely represented that there was a “removal,” not under the Unlawful Detainer

Act, but under some special “writ of possession” exclusive to receivers. This was a bold-

faced distortion of facts and law. A fraudulent representation certainly was not a ground

for asserting the Petitioner was “disentitled” to appeal. Mr. McKay’s myriad omissions

of facts, misrepresentations of events, and perjured statements denied Petitioner a fair

hearing on the issue of his “non-compliance.” Mr. McKay’s conduct amounted to

extrinsic fraud that justifies the reinstatement of the dismissed appeals and writs.20

CONCLUSION

20 A void judgment may be set aside either on the theory of its invalidity or on the ground of extrinsic fraud. (5 Witkin, Cal. Procedure (2d ed. 1970) Attack on Judgment in Trial Court, §182; "Its [extrinsic fraud] essential characteristic is that it has the effect of preventing a fair adversary hearing, the aggrieved party being deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense." (5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 183.

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Petitioner’s appeals and writs have been dismissed under the Doctrine of

Disentitlement without providing due process protections. Further, the dismissal was

obtained by the deliberate misrepresentations and extrinsic fraud of Mr. McKay. In view

of these events, the Court of Appeals should now reinstate the appeals and writs.

Further, in their dismissal order of August 7, 2015, the justices conducted their

own investigation of Petitioner’s attorney, convinced themselves she had committed a

“misrepresentation,” and reported her to the State Bar.

0/07/2015 Letter sent to:

October 7, 2015 Director, Administrative Compliance Unit The State Bar of California 1149 So. Hill Street, 5th Floor Los Angeles, CA 90015-2299 Dear Madam/Sir: At the direction of the court, we are forwarding a copy of a dismissal order filed by this court on August 7, 2015, case number A144930, Coombs v. Cunningham, in Division Two, in compliance with Bus. & Prof. Code, § 6086.7; Cal. Rules of Court, rule 10.1017. The name and address of the attorney whose conduct is described in the enclosed order is: Patricia J. Barry 634 South Spring Street, Suite 823 Los Angeles, CA 90014 Very truly yours, Diana Herbert Clerk/Administrator enc. cc: Patricia J. Barry

In keeping with the adage that what is good for the goose is good for the gander,

Justice Kline and Richman should deal in a similar manner with the uncontroverted

evidence of Mr. McKay’s misrepresentations, his frauds upon the court, and his criminal

perjuries.

Dated: December 4, 2015

Respectfully submitted, /s/ Archibald Cunningham _______________________ Archibald Cunningham

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TABLE OF ATTACHMENTS Exhibits Name of Pleading Date Filed Pages ___________________________________________________________________ Attachment A State Bar Complaint Against Mr. McKay With Various Exhibits 11/13/15 44-183 Attachment B Commission on Judicial Council Complaint, Justices Kline, Richman 11/24/14 184-230 Attachment C Petition for Review, Habeas Corpus A146271 10/14/15 231-276

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CERTIFICATE OF COMPLIANCE

I, Petitioner Archibald Cunningham, hereby certify that, pursuant to Cal. Rules of Court,

rule 14(c)(1), this writ of supersedeas contains approximately 9014 words, including

footnotes, as computed by the Microsoft Word 7 word processor.

/s/ Archibald Cunningham

_______________ Archibald Cunningham

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ATTACHMENT A

ATTACHMENT A

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THE STATE BAR OF CALIFORNIA CALIFORNIA ATTORNEY COMPLAINT FORM

Read instructions before filling in this form.

Please mail to: Office of Chief Trial Counsel I Intake Dept., State Bar of California 845 South Figueroa Street, Los Angeles, California 90017-2515

(1) Your contact information:

Your name: Archibald Cunningham

Your address: P.O. Box 54399 ----------------------��

Your city, state & zip code: _s_an_Jo_s_e, _C_A_9_5_1_34 ________ _____ _

Your email address: archcunnghm@yahoo.com

Your telephone numbers:

Home (408) 466-7819 Work ______ Cell ________

_

(2) Attorney's contact information: Please provide the name, address and telephone number of the attorney(s) you are complaining about. (NOTE: If you are complaining about more than one attorney, please use a separate form or include on a separate sheet for each attorney the information requested in items #2 through #7.)

Attorney's name:

Attorney's address:

Attorney's city, state & zip code:

Attorney's telephone number:

Attorney's California bar license number: --------------­

(3) Have you or a member of your family complained to the State Bar about this attorney previously? Yes D No D

(4) Did you employ the attorney? Yes D NoO

If "Yes," give the approximate date you employed the attorney and the amount, if any, paid to the attorney.

Date employed: Amount paid (if any): $

If "No," what is your connection with the attorney(s)? Explain briefly.

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(5) Include with this form (on a separate piece of paper) a statement of what the attorney(s) did or did not do that is the basis of your complaint. Please state the facts as you understand them. Do not include opinions or arguments. If you employed the attorney(s), state what you employed the attorney(s) to do. Sign and date each separate piece of paper. Additional information may be requested. (Attach copies of pertinent documents such as a copy of the fee agreement, cancelled checks or receipts, and relevant correspondence.)

(6) If your complaint is about a lawsuit, answer the following, if known: a. Name of court (For example, Superior Court and name of the county)

Court of Appeals, First Appellate District, A 144930

b. Title of the suit (For example, Smith v. Jones)

Cunningham v. Singer

c. Case number of the suit A144930

d. Approximate date the suit was filed

e. If you are not a party to this suit, what is your connection with it? Explain briefly.

(7) Size of law firm complained about:

D 1 Attorney D 2 - 10 Attorneys D 11 + Attorneys D Government Attorney D Unknown

(8) Translation Information:

If you require that the State Bar utilize formal translation services in order to process your complaint, it may delay our communications with you. Is someone available to provide translation assistance for you so that the State Bar may communicate with you in English?

Yes D No D

If "no," state the language in which you need formal translation:

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INTRODUCTION

This complaint against attorney John Scott McKay (SBN 95799) involves

his fraudulent efforts to dismiss an appeal (A144930) that Mr. Cunningham had

filed related to an order to confirm the sale of my condominium. In his motion to

dismiss my appeal,1 he argued that Mr. Cunningham’s appeal should be dismissed

under the Doctrine of Disentitlement because he asserted that Mr. Cunningham

was in an “attitude of contempt” with respect to court orders. (Attachment A). The

Court of Appeals for the First District dismissed the appeal of the March 23, 2015

order confirming the sale on Mr. Cunningham’s condominium and denied his

attorney’s motions for rehearing.2

LEGAL AUTHORITY

Members of the California State Bar are subject to the California Rules of

Professional Conduct (CRPC), and to the California Business & Professions Code

1 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2107394&doc_no=A144930 6/30/2015 Motion to dismiss

filed (before record).

Respondents' Motion to Dismiss Appeal; Memorandum of Points and Authorities; Declarations of J. Scott McKay and Michael Coombs

2 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2107394&doc_no=A144930 08/20/2015 Order

denying rehearing petition filed.

Appellant's "Petition for Rehearing Under CRC Court 8.268 of the Denial of a Writ of Supersedeas by of the Court of Appeals of the First District on the Grounds of Disentitlement Doctrine" is denied.

Complaint Against Attorney John Scott McKay, pg.1

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§6000 et. seq. (Bus. & Prof. Code). CRPC Rule 5-200 ("CRPC 5-200") provides

in relevant part:

In presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law . . .

CPRC Rule 5-220 (CPRC) provides in relevant part:

"A member shall not suppress any evidence that the member or the member's client has a legal obligation to reveal or to produce."

Bus. & Prof. Code section 6068 (Bus. & Prof. Code) provides additional guidance

and outlines the duties of attorneys in this state. It states in relevant part:

It is the duty of an attorney to do all of the following: * * * (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

Bus. & Prof. Code section 6068(d) "unqualifiedly require[s] an attorney to

refrain from acts which mislead or deceive the Court." (Di Sabatino v. State Bar,

27 Cal.3d 159, 162 (1980); see Sullins v. State Bar, 15 Cal.3d 609, 620-621.

"Actual deception is not necessary to prove willful deception of a Court; it is

sufficient that the attorney knowingly presents a false statement which tends to

mislead the Court." Davis v. State Bar, 33Cal.3d 231, 240 (1983). It is the

endeavor to secure an advantage by means of falsity which is

denounced. Pickering v. State Bar of Cal., 24 Cal.2d 141, 145 (1944).

Complaint Against Attorney John Scott McKay, pg.2

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Furthermore, it is settled that concealment of material facts is just as misleading as

explicit false statements, and accordingly, is misconduct calling for discipline. (Di

Sabatino, at 163; Grove v. State Bar (1965) 63 Cal. 2d 312, 315; Davidson v.

State Bar (1976) 17 Cal. 3d 570, 574).

Therefore, under CRPC 5-200 and 5-220, and Bus. & Prof. Code section

6068(d), as officers of the court, attorneys have a duty of candor and not to

mislead the judge by any false statement of fact or law. These same rules of

candor and truthfulness apply when an attorney is communicating with opposing

counsel. (Hallinan v. State Bar (1948) 33 Cal. 2d 246, 249)..

McKAY’S NUMEROUS DECEITS AND FRAUDS UPON THE

COURT IN FILING HIS MOTION TO DISMISS. In his Motion to Dismiss the appeal (MTDA), Mr. McKay relies on case

law that states that an appellant is not entitled to appeal if he/she is out of

compliance with court order. He asserts that there is a “long standing rule that the

appeal of a party who is in contempt of court may be dismissed.” (Tms, Inc. v.

Aihara 91999) 71 Cal. App. 4th 377. (MTDA, Attachment A, pg. 9, ¶2). He then

alleges that Mr. Cunningham is “in contempt for his willful failure to comply

with”: (Exhibit A, pg. 1, ¶1):

(1) a court order requiring him to answer certain post judgment interrogatories, and (2) the injunction issued as part of the judgment which requires Cunningham to cooperate in, and enjoins him from interfering with, the sale of his condominium, which sale is ordered by such judgment, and (3) a court order requiring Cunningham to vacate and stay away from his condominium so that it could be sold.

Complaint Against Attorney John Scott McKay, pg.3

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Compliance With Interrogatories

In his MTDA, Mr. McKay states (Exhibit A, pg. 6, ¶2): “….On January 7, 2014, the Court ordered Cunningham to answer the interrogatories and hand serve such answers within 10 days of service of the order. The order was served on Cunningham by mail on January 8, 2014. See order and proof of service, Exhibit B hereto. Answers were thus due, by hand delivery, on January 23, 2014. No answers have ever been provided by Cunningham. Cunningham was clearly available to answer such interrogatories, as he has filed many pleadings in various cases, and has appeared at numerous state and federal court hearings, since the due date for such answers.”

In stating that Mr. Cunningham “never provided” an answer, Mr. McKay has

committed a deliberate misrepresentation and deceit upon the court. Mr. McKay

sought interrogatories related to his “examination” of Mr. Cunningham’s finances.

Mr. McKay knows very well that on the so-called “due date” of January 23, 2014,

Mr. Cunningham filed a motion to quash his request for interrogatories. 3

JAN-23-2014 EX PARTE APPLICATION FOR ORDER TO QUASH SERVICE OF EXAMINATION FILED BY DEFENDANT CUNNINGHAM, ARCHIBALD

He knows very well that the trial court, Judge Dorfman of Dept. 514 where the

“examination” was being held, then continued the hearing for March 20, 2014.

JAN-28-2014 ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD

CUNNINGHAM, ON JAN-28-2014 CONTINUED TO MAR-20-2014 AT 2:00 PM IN DEPT. 514 FOR FURTHER EXAMINATION AND COMPLIANCE WITH PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENA DUCES TECUM. COURT ORDERED MR. CUNNINGHAM TO RETURN ON MARCH 20, 2014 AT 2:00 PM, TO DEPRTMENT 514. NO FURTHER NOTICE IS REQUIRED. COURT ORDERED MR. CUNNINGHAM TO ANSWER QUESTIONS IN GOOD FAITH. MR. CUNNINGHAM TO PROVIDE MR. MCKAY ALL DOCUMENTS IN RESPONSE

3 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760

Complaint Against Attorney John Scott McKay, pg.4

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TO SUBPOENA DUCES TECUM BY FRIDAY JANUARY 31, 2014. J. SCOTT MCKAY, ESQ., APPEARING FOR JUDGMENT CREDITOR. PROCEEDINGS NOT REPORTED. (514)

Mr. Cunningham complied with Judge Dorfman’s orders and provided answers

and documents. Next, Mr. McKay, after receiving the answers and required

documents, simply filed a motion to take the “examination” off calendar.

MAR-19-2014 ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD

CUNNINGHAM, ON MAR-20-2014 OFF CALENDAR AT THE REQUEST OF THE MOVING PARTY. (514)

Mr. McKay deliberately suppresses any mention of Judge Dorfman’s subsequent

actions and his own motion to take the “examination” off calendar. (Franklin v.

State Bar (1986) 41 Cal. 3d 700, 709; half-truth is identical to a lie). Mr. McKay

took the matter off calendar instead of resolving any issues he might have had.

If he felt that Mr. Cunningham’s answers were not “in good faith,” then his

remedy was to go to the hearing and explain that to Judge Dorfman or file a

contempt case. Instead, he now misleads the court by omitting material facts. His

deliberate concealment of material facts is the same as lying. (In the Matter of

Chestnut (2000) 4 Cal. State Bar Cr. Rptr 166, 174). His intellectual deviousness

takes the form of providing an exhibit of “proof of service” but omitting all the

other material facts related to the continuance and his taking the matter off

calendar. He commits these frauds so he can deprive Mr. Cunningham of his right

to appeal under the “doctrine of disentitlement.” He does not want Mr.

Cunningham challenging the order confirming the sale of his “condominium”

Complaint Against Attorney John Scott McKay, pg.5

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under a provision of the 2007 Tenants-in-Common Agreement that provides for a

“forced sale” of a “defaulting Cotenant’s cotenancy share” as opposed to an

owner’s fee-simple condominium. He heaps another fraud upon the court to

conceal the underlying fraud that he fraudulently substituted out material terms

from the 2007 TICA that applied to the parties’ subsequent 2009 CC&Rs and

Bylaws.

Enjoined From Interfering With the Sale of His Condominium

Mr. McKay’s insists he is entitled to dismiss the appeal because of Mr.

Cunningham’s alleged failure “to cooperate with sale of his condominium under

section 14.7 of the 2007 TICA.” (Attachment A, pg. ¶1). He asserts that Mr.

Cunningham “failed or refused to comply with the Judgment’s injunction that

requires Cunningham to cooperate…and not do anything to interfere with, the sale

of his condo.” (Attachment A, pg. 10, ¶3). To be clear, the appeal he seeks to

dismiss is the appeal of the March 23, 2014 order confirming the sale of his

condominium. It defies reason to suggest that Mr. Cunningham is not

“cooperating” after the sale has been confirmed. Mr. McKay goes beyond

deliberate distortion and misrepresentation and commits a deliberate absurdity.

Mr. McKay’s deliberate lies and deceits reach the nadir of incredulity when

he suppresses the fact that the condo and been sold and escrow closed on June 9,

2015. (Attachment B). Mr. McKay, pocketed over $400,000 of fees at the close of

escrow on June 9, 2015, but turns around three weeks later, and has the audacity to

assert that Mr. Cunningham is not cooperating in the “forced sale” of his property.

Complaint Against Attorney John Scott McKay, pg.6

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Mr. McKay knew that the new owner, Michael Siminoch, had moved into the

property by June 15, 2015 and moved all of Mr. Cunningham’s belongings into

storage. But he suppresses these facts and intimidates that Mr. Cunningham is still

interfering with the “sale” or refusing to “stay away.” In cooking up a patch of red

herring, Mr. McKay notes that he had succeeded to have several other appeals

(A142115; A136608) dismissed on the basis of Mr. Cunningham alleged failure to

“answer post-judgment interrogatories.” (Attachment A, pg. 11, ¶1-2). Mr. McKay

references these past dismissal based on the “interrogatories” to give credence to

his new motion to dismiss and to deflect attention from the change in material

circumstances, that is, that the condo has been sold and escrow has closed and that

Mr. Cunningham could neither comply nor defy a “stay away” order after the sale

of his condo and the new owner’s occupancy. (Bach v. State Bar (1987) 43 Cal.

3d 848, 855-856; No distinction can therefore be drawn among concealment, half-

truth, and false statement of fact. Green v. State Bar 213 Cal. 403, 405; "It is the

endeavor to secure an advantage by means of falsity which is denounced."

(Pickering v. State Bar (1944) 24 Cal. 2d 141, 145; misleading the judge

constitutes an "act involving moral turpitude" condemned by Bus. & Prof.Code,

section 6106. (McMahon v. State Bar (1952) 39 Cal. 2d 367, 369).

Cooperation with Forced Sale In Accordance with 2007 TICA

Even if the new owner had not moved into the condo, Mr. Cunningham

could not have “cooperated” with the “forced sale” of his condo because the

“Judgment” was void on its face and a product of Mr. McKay’s fraud. In drafting

Complaint Against Attorney John Scott McKay, pg.7

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the arbitration award, Mr. McKay substituted out material terms, inserting the

word “condominium” in place of the 2007 TICA language for a “defaulting

Cotenant’s cotenancy share.” Mr. McKay asserts that Mr. Cunningham had not

“cooperated” with the judgment for a “forced sale” as “contemplated by section

14.7 of the TICA.” (Attachment A, pg. 10, ¶3). He then attaches section 14.7 as

his Exhibit D and states that SINGER’s first step “was to obtain an appraisal of

Cunningham’s condo” and a “listing.” (Attachment A, pg. 7, ¶2). Here again, Mr.

McKay, even after attaching the section, tries to deceive the court. Section 14.7

does not say or contemplate an “appraisal” of Mr. Cunningham’s condominium.

Section 14.7 says nothing about an ownership interest held as a “condominium.” It

refers to the “appraisal, listing, and marketing” of a “defaulting Cotenant’s

cotenancy share.”

Mr. McKay does not try, nor could he, try to construe the term “cotenancy

share” to mean condominium or the term “Cotenant” to mean “owner.” Realizing

he cannot read away these unequivocal terms, he simply ignores them, pretending

that the facial ambiguity does not exist and that the SINGER can “appraise, list,

and sell” a condominium under a contract provision that relates only to “cotenancy

shares.” He simply whitewashes or deletes the terms by ignoring them. (Amstar

Corp. v. Envirotech Corp. (9th Cir. 1984) 730 F. 2d 1476; “Distortion of the

record, by deletion of critical language in quoting from the record, reflects a lack

of the candor required by the MODEL RULES OF PROFESSIONAL CONDUCT,

Rule 3.3 (1983), wastes the time of the court and of opposing counsel, and imposes

Complaint Against Attorney John Scott McKay, pg.8

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unnecessary costs on the parties and on fellow citizens whose taxes support this

court and its staff. A quotation containing deletions that so clearly distort the

meaning and relevance of the quotation as to render it misleading will not in this

court be encouraged by acquiescence.”). Mr. McKay knew the unambiguous and

unequivocal terms of section 14.7 relate to a “defaulting Cotenant’s cotenancy

share,” not a condominium:

14.7A(2) refers to the “offering price” as the “Appraised value of the Defaulting Cotenant’s cotenancy Share.”; 14.7B Notice of Forced Sale. This provision provides that the “non-defaulting Cotentant” is to provide notice of their intent “to cause the Defaulting Cotenant’s Cotenancy Share to be sold.” 14.7 C. Valuation. In this provision, “the non-defaulting Cotenant shall initiate determination of the Appraised Value of the Defaulting Cotenant’s Cotenancy Share.”; 14.7D. Listing for Forced Sale. This provides that the non-defaulting Cotenant “shall list the Defaulting Cotenant’s Cotenancy Share for sale at the offering price…”;

After condo-conversion, which occurred a year before Mr. McKay filed his

petition on the defunct 2007 TICA and a year after his clients signed, executed and

recorded the superseding 2009 CC&Rs and Bylaws, Mr. Cunningham was no

longer a “Cotenant.” Further, he no longer possessed a “cotenancy share” to be

sold under section 14.7. This was clearly shown in the legal documents. (*See,

Attachment A, Mr. McKay’s Exhibit A, legal description of property as a

condominium as of August 3, 2009). Mr. McKay knew this. It was evident on the

very documents he used in drafting his “Judgment.” Mr. Cunningham had

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informed SINGER that he could not “cooperate” or “interfere” with the facially

ambiguous terms. If fraudulent, Mr. Cunningham expressed his unwillingness to

collude with Mr. McKay’s fraudulent substitution of terms. For his part, SINGER

recognized that he was not going to get paid unless he got the “forced sale,”

whether the “Judgment” was ambiguous or not.4 He breached his fiduciary duty to

seek clarification before doing Mr. McKay’s bidding.

Compliance with Order to Vacate and Stay Away From His Condo

Mr. McKay avers that Mr. Cunningham is in contempt of court for

violating the August 20, 2014 “writ of possession” with the trial judge’s hand-

written “stay-away order” directing Mr. Cunningham not to go back to his

condominium. (*See, Attachment A, Mr. McKay’s Exhibit E). In his MTDA, Mr.

McKay states that Mr. Cunningham was “removed from his condo by the San

Francisco County Sheriff’s Department” on November 6, 2014. (Attachment A,

pg. 8, ¶1). He points out that Mr. Cunningham, after his “removal,” has been

arrested three times for violating a “stay-away” order and for trespassing on his

own property. He attaches the August 20, 2014 “writ of possession” obtained by

the receiver, Kevin Singer, as the order Mr. Cunningham supposedly violated.

4 Normally, compensation for a receiver is payable from the property in receivership. "As a general proposition the costs of a receivership are primarily a charge upon the property in the receiver's possession and are to be paid out of said property." (Andrade v. Andrade (1932) 216 Cal. 108, 110; see also 6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 371, p. 309.)

Complaint Against Attorney John Scott McKay, pg.10

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The first deceit and misrepresentation by Mr. McKay is that an owner

(Cunningham) was “removed” by the August 20, 2014 writ of possession. That’s

simply false. Mr. Cunningham was not “removed” from his condo pursuant to the

August 20, 2014 “writ of possession.” Rather, he was illegally “evicted” from his

own property by Mr. McKay’s and SINGER’s frauds. Mr. McKay knew very well

that an “owner” could not be evicted from his own property. ("The statutory

situations in which the remedy of unlawful detainer is available are exclusive, and

the statutory procedure must be strictly followed." (3 Witkin, Cal. Procedure (2d

ed. 1971) Pleading, § 506.)5 Mr. McKay realized that he could not “evict” Mr.

Cunningham, the owner and title-holder, so he engaged in a fraud on the court.

Mr. McKay and the non-lawyer SINGER managed to convince the trial judge that

an owner could be “removed” by a two-paragraph “writ of possession” drafted by

a receiver. (*See, Attachment A, McKay’s Exhibit E).

But Mr. McKay knows that Mr. Cunningham was not “removed” under the

August 20, 2014 “writ of possession.” That is his second deceit. He knows very

well that Mr. Cunningham was “evicted” pursuant to an EJ-130 form that

SINGER fraudulently obtained from the court clerk. (Ainsworth v. State Bar

5 The remedy of unlawful detainer is available in only three situations: ¶(a) Landlord against tenant for unlawfully holding over or for breach of the lease (the traditional and most important proceeding). (Code Civ. Proc. §1161); ¶ (b) Owner against servant, employee, agent, or licensee, whose relationship has terminated. (Code Civ. Proc., §1161(1); ¶(c) Purchaser at sale under execution, foreclosure, or power of sale in mortgage or deed of trust, against former owner and possessor. (Code Civ. Proc., §] 1161(a); 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 599, p. 69.)

Complaint Against Attorney John Scott McKay, pg.11

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(1988) 45 Cal. 3d 1218; knowingly presenting a false statement with intent to

mislead the court). The San Francisco Sheriff’s Department refused to enforce

SINGER’s August 20, 2014 “writ of possession” because it was not on the

mandatory Judicial Council EJ-130. The EJ-130 form sets out the procedures, such

as the need for a “judgment for possession” after an “unlawful detainer action.”

Code of Civil Procedure §715.050 makes clear that a “writ of possession” is a step

in the unlawful detainer process, not a separate cause of action or proceeding a

receiver can bring under some fanciful reading of statutes:6

715.050. Except with respect to enforcement of a judgment for money, a writ of possession issued pursuant to a judgment for possession in an unlawful detainer action shall be enforced pursuant to this chapter without delay, notwithstanding receipt of notice of the filing by the defendant of a bankruptcy proceeding.

The San Francisco Sheriff’s Department would not “evict/remove” the owner

(Cunningham) except under the mandated procedures and with the approved

Judicial Council forms promulgated after the Supreme Court’s decision in Arieta

v. Mahon (1982) 31 Cal. 3d 381. (In Lara v. County of Santa Clara, U.S District

Court, N.D. California, C-11-0607 RS, (2012), the U.S. District Court Judge

Richard Seeborg pointed out that the California Legislature has “effectively

6 CCP section 564(b)(7) allowed SINGER to bring an unlawful detainer action if he obtained “approval.” For Mr. McKay to suggest the “unlawful detainer actions” do not apply to receiver is contradicted by this statute. It’s proof of Mr. McKay’s deliberate misreading and false statement of law. (Amster Corp. v. Envirotech Corp (9th Cir. 1984) 730 F. 2d 1476.

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codified the holding in Arieta” and provided “formal procedures” and “judicial

council forms” for any individuals “making a claim of right to possession.”)

Under the mandated procedures, the court clerk was to issue a “writ of

possession” on the mandated EJ-130 form after a judgment for possession was

obtained in an unlawful detainer act.

CCP 712.010: After entry of a judgment for possession or sale of property, a writ of possession or sale shall be issued by the clerk of the court upon application of the judgment creditor and shall be directed to the levying officer in the county where the judgment is to be enforced. The application shall include a declaration under penalty of perjury stating the daily rental value of the property as of the date the complaint for unlawful detainer was filed…(emphasis added).

SINGER, however, never obtained a “judgment for possession” under the

Unlawful Detainer. He and Mr. McKay may have convinced the trial judge to

ignore mandated procedures, but the Sheriff’s Department followed procedures.

action against the owner/Appellant.

Given the Sheriff’s Department’s compliance with mandated procedures,

SINGER recognized he could not “remove” the owner/Cunningham without the

mandated Judicial Council form (EJ-130). Hence, SINGER returned to the court

clerk (Bowman Liu) on August 28, 2015, filled out the EJ-130 form, and returned

it to the Sheriff’s. (Attachment C, Note: Stamped “Received” at the Sheriff’s

Office on September 14, 2014). In the EJ-130 form, SINGER checked the box

indicating he’d “served” Mr. Cunningham’s roommates the “Prejudgment Claim

of Right to Possession.” He had to commit this fraud on the clerk and Sheriff’s

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Dept if he wanted to get paid from the receivership estate, that is, the $800,000 to

$1,000,000 of equity Mr. Cunningham’s condo.

SINGER’s deliberately misrepresented that he’d served the form on Mr.

Cunningham’s roommates. He had not. His next deliberate misrepresentation was

that he served the form “in compliance with CCP 415.46.” But CCP 415.46

provides for service of the form with the unlawful detainer “summons and

complaint.”7 He knew there was no “unlawful detainer action,” but nevertheless

stated the “unlawful detainer” complaint was filed on “9/29/10.” (*See, 24(a)

Possession of real property. The Complaint was filed on (date) 09/29/10). That

was his third or fourth bold-faced deceit upon the clerk, the Sheriff’s Department,

the court, and, ultimately, upon Mr. Cunningham. The “9/29/10” date was not an

unlawful detainer action that resulted in a “judgment for possession,” but Mr.

7 CCP 415.46. (a) In addition to the service of a summons and complaint in an action for unlawful detainer upon a tenant and subtenant, if any, as prescribed by this article, a prejudgment claim of right to possession may also be served on any person who appears to be or who may claim to have occupied the premises at the time of the filing of the action. Service upon occupants shall be made...

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McKay’s Petition to Compel Arbitration on the 2007 TICA.8 SINGER’s ultimate

fraud was convincing the court clerk to swap out his August 28, 2014 special

receiver’s “writ of possession” for the official Judicial Council bona-fide “there-

has-been-an eviction-proceeding” EJ-130 form.9

If there is any doubt of an on-going series of frauds by Mr. McKay and his

confederate SINGER that was put to rest several weeks later. On September 29,

2014, the trial judge allowed SINGER to “revoke” his first EJ-130 form (and the

accompanying frauds) and resubmit a second EJ-130 form. (Attachment F). In his

September 29, 2015 letter to the trial judge Quidachay, SINGER states:

“…I had the Initial Writ re-issued, signed by the clerk (“Re-issued Writ”) and presented to the Sheriff (See “Exhibit 2” Attached)….I expect that this Reissued Writ will succeed in removing Respondent Archibald Cunningham. Once he is removed, I expect to be able to have the Property inspected, appraised and marketed for sale.

8 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760 SEP-29-2010 NTC OF HEARING ON PETITION TO COMPEL

ARBITRATION AND FOR APPOINTMENT OF NEUTRAL ARBITRATOR; MEMO OF P & A, DECLARATION FILED BY PETITIONER COOMBS, MICHAEL WOODS, TAMARA HEARING SET FOR OCT-19-2010 AT 09:30 AM IN DEPT 302

9 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760 AUG-28-2014 ISSUANCE OF WRIT OF POSSESSION OF PROPERTY AGAINST

ARCHIBALD CUNNINGHAM AS PER ORDER FILED ON AUGUST 20, 2014 FILED BY OTHER SINGER, KEVIN AS TO DEFENDANT CUNNINGHAM, ARCHIBALD

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In the “Re-Issued Writ,” SINGER resubmits essentially the same writ but this time

he does not check the box at section 24. Instead, he indicated he had not in fact

served “Prejudgment Right to Possession” forms on Appellant’s roommates when

he apparently served the unlawful detainer complaint “in compliance with

415.46.” He also misrepresents to the Sheriff’s Department that he obtained a

“writ of possession” some five years before based on the Petition to Compel

Arbitration. This misrepresented law and fact. It’s axiomatic that one does not

obtain a “Judgment for Possession” in a hearing on a Petition to Compel

Arbitration. (Attachment D, Mr. Singer’s Exhibit TWO):

By not checking box 24(a)(1) in the reissued writ, he misrepresents that his

amendments have somehow cured his failure to obtain a “judgment for

possession” under the Unlawful Detainer Act and as required by CCP §715.050,

§715.010 & §712.010. Further, he thinks by typing in Mr. Cunningham’s ‘s name

under the section for a “Description of Property,” that he has complied with

procedures. Or, perhaps he believes this is the way to alert the Sheriff to

“evict/remove” the “individual,” along with his property but “not any current

tenants.” There is the lesser fraud here of referring to the owner as an “individual”

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so as not to tip the Sheriff’s to the fraud that the “eviction” involved the illegal

eviction of an “owner,” as opposed to a tenant.

In seeking the dismissal of the appeal, Mr. McKay falsely represented that there

was a “removal,” not under the Unlawful Detainer Act, but under some special

“writ of possession” exclusive to receivers. This was a bold-faced distortion of

facts and law.

Furthermore, Mr. McKay argued at the state trial court (CPF 10-510760)

on May 6, 2014 and August 4, 2014 and at a hearing in the federal civil rights

case against SINGER and Mr. McKay that there was no need for no need for an

unlawful detainer action. (DC ND cv-14-03250 WHA; Attachment E; Transcript

January 8, 2015, pg. 18/14-28):

THE COURT: Well, was he evicted? Well, he was evicted? MR. MCKAY: He was evicted, despite his… THE COURT: He was evicted pursuant to what? MR. MCKAY: Code of Civil Procedure 568, which allows a receiver to obtain possession of property that’s subject to the receivership estate. You don’t have to file an unlawful detainer. THE COURT: The sheriff went out there to kick him out? Is that the way it worked? MR. McKAY: That’s correct.

But Mr. McKay knew very well that the owner/Cunningham was “evicted” by

SINGER’s fraudulent representations that there was an unlawful detainer action.,

SINGER presented false evidence to the Sheriff’s Depart to have Mr. Cunningham

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evicted. He then submitted false evidence to have him arrested for “trespassing”

on his own property. This constituted a “felony” under the Penal Code. (a felony

under Penal Code §136(b) “…giving false material evidence pertaining to a

crime.”).

For his party, Mr. McKay “aided and abetted” SINGER’s fraudulent

eviction, his illegal arrests, his unauthorized practice of law, and the illegal

“forced sale” of Mr. Cunningham’s condo under a provision related only to a TIC

share. Mr. McKay’s actions are criminal, constitute the obstruction of justice, and

involve matters of moral turpitude that should result in his disbarment. Under Bus.

& Prof. Code section 6102, subdivision (c), an attorney must be summarily

disbarred, regardless of mitigating circumstances, if: (1) an element of his offense

involves the intent to deceive or defraud (Bus. & Prof. Code §6102(c)(1)); (2) the

attorney committed the offense while practicing law (§ 6102, subd. (c)(2)). (In re

Ford 44 Cal. 3d xxx, 816, fn 6; 1 Witkin, Cal. Procedure (1988 supp.) Attorneys,

§ 381A, pp. 53-54…if the conviction meets specified criteria, the attorney must be

summarily disbarred when the judgment is final; In re Schwartz (1982) 31 Cal. 3d

395, 400; fraud is a “principal element” of moral turpitude; In re Craig (1938) 12

Cal. 2d 93; conspiracy to obstruct justice involves moral turpitude on its face).

Collateral Attack, Petition on 2007 TICA v. Suit on 2009 CC&R

In his MTDA, Mr. McKay testifies to facts by stating that Mr.

Cunningham’s lawsuit (CGC-11-511994), on the 2009 CC&Rs and Bylaws and

fraud, was a collateral attack on his arbitration award which was based on the

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2007 TICA. (Attachment A, pg. 2, ¶3). He then states that Mr. Cunningham’s

federal suit, based on the breach of 2009 CC&Rs and Mr. McKay’s fraud (DC NC

13-cv-04627), was also a “collateral attach” on his arbitration award. (Attachment

A, pg. 3, ¶3). Further, he states that Mr. Cunningham’s lawsuit related to

SINGER’s unlawful and illegal eviction was also a collateral attack on the

arbitration award. (DC NC 3: cv-14-03250; Attachment A, pg. 4, ¶2). Finally, he

states that Mr. Cunningham’s quiet title case (CGC 15-544693) in which Mr.

Cunningham sought to finally determine whether the 2007 TICA or the 2009

CC&Rs and Bylaws controlled after condo-conversion was also a “collateral

attack.” (Attachment A, pg. 5, ¶2).

In arguing that every lawsuit Mr. Cunningham takes on the 2009 CC&Rs

and Bylaws and for fraud, Mr. McKay misrepresents material facts and law and he

does this over and over again. First, Mr. McKay deliberately misrepresented the

fact that his Petition to Compel Arbitration (what he call the underlying action)

was taken on the 2007 TICA, not the 2009 CC&Rs. Second, Mr. McKay lies by

omission in failing to mention that his clients signed, executed, and recorded the

2009 CC&Rs and Bylaws and the San Francisco Department of Public Works

approved the condo-conversion of the two-unit building from a “tenancy-in-

common” to separately owned condo. Third, he distorts and suppresses the fact

that there his clients, Mr. Cunningham, the San Francisco Dept. of Public Works,

and the Civil Code section 1351(j) were all in accord that the 2009 CC&Rs were

Complaint Against Attorney John Scott McKay, pg.19

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the “governing agreement” after condo-conversion. There was no dispute until he

resurrected the 2007 TICA and insisted that it had not “terminated.”

At the October 20, 2010 hearing on his petition to compel arbitration on the

2007 TICA and on appeal, Mr. McKay insisted that his claims under the 2007

TICA had nothing to do with the 2009 CC&Rs. But now, he misrepresents his

petition as a disposition of any claims Mr. Cunningham makes on the 2009

CC&Rs as well as the various frauds he committed in rewriting the contracts and

substituting out material terms. Mr. McKay distorts the law and facts by

suppressing the rulings of the appellate court. In their opinion in A131914, the

Court of Appeals for the First District acknowledged that the 2009 CC&Rs were

not “relevant,” as Attorney McKay asserted, and they made no ruling on the rights

or remedies of the parties under the 2009 CC&Rs. (*See, appellate opinion,

A134206, pg. 21; "Respondent maintained they were bringing claims pursuant to

the TICA, and that the CC&Rs was not relevant to their claims.").

Despite Mr. McKay’s relentless allegations of “collateral attack” in his

MTDA, his suit to compel arbitration and Mr. Cunningham’s civil suits in the state

and federal where based on different contracts (2007 TICA, 2009 CC&Rs),

involved different issues, and had different rights and remedies under their various

provisions. Mr. Cunningham’s rights under the 2009 CC&Rs has never been

determined because Mr. McKay has filed 15 vexatious litigant motions, at the trial

court, on appeal, and in federal court, and done so whether he was represented or

“acting in propria persona.” In essence, Mr. McKay exploits Mr. Cunningham’s

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status as vexatious (declared vexatious twice in family court) to bolster his false

allegation and deliberate misrepresentation of “collateral attacks.”

Ultimately, Mr. McKay distorts the law related to the notion of “collateral

attack.” He cannot show a court ruling stating that the 2007 TICA trumped the

2009 CC&Rs and Bylaw because there is no such ruling. Instead, he manipulates

the court and invites them to infer that Mr. Cunningham is “collaterally attacking”

the arbitration award because he is, after all, a “vexatious litigant.” Mr. McKay

knows that the legal concepts of res judicata and collateral estoppel preclude

“collateral attacks” on a judgment or relitigation of issues previously decided. He

also knows that alleging or showing that a party is a “vexatious litigant” is not

proof of a “collateral attack.” Mr. McKay wants the court to believe that he proves

“collateral attack” by virtue of Mr. Cunningham’s status as “vexatious.” This is a

deliberate distortion of the law and evinces his intent to mislead the court.

Mr. McKay, a licensed attorney for over 35 years, knows that the doctrine

of collateral estoppel and res judiciata have specific requirements that must be

satisfied. (“Issue and claim preclusion (collateral estoppel and res judicata) have

specific requirement that must be satisfied before preclusion can be found.”;

McCuttchen v. City of Montclair (1999) 73 Cal. App. 4th 1138; litigants must

have a “full and fair opportunity to present their case for res judicata to apply”,

quoting 7 Witkin, California Procedure, Judge 339, 4th ed. 1997). Mr. McKay

knows that there has no determination of the parties’ rights under the 2009

CC&Rs or on the issue of his fraud because he has filed 15 vexatious litigant

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motions against Mr. Cunningham and had the suits dismissed under section 391.4

before there could be a determination on the merits.

Mr. McKay lies by omitting the fact and the suppressing any mention of the

law that a dismissal under the Vex. Litigant Statute for failure to post security is

not a determination of the merits of a case. (CCP section 391.2). He knows that

issue preclusion requires that he satisfies certain requirements. Instead, he

misrepresents the law insinuating that he’s satisfied those requirements by a mere

showing that Mr. Cunningham was declared “vexatious.” However, the doctrine

only prevents a party who has had a full and fair opportunity to litigate a particular

issue in a prior proceeding from relitigating it in a subsequent proceeding. (7

Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 339, p. 894.)

"A prior determination by a tribunal will be given collateral estoppel effect when (1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits." (Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329, 1339, 79 Cal. Rptr.2d 763.)

Mr. McKay knows that the issue at the October 20, 2010 hearing had nothing to

do with the 2009 CC&Rs and was limited to the narrow issue of whether there was

a binding arbitration clause. (“The only question implicated by the petition to

compel arbitration is whether the arbitration agreements should be specifically

enforced.” Rosenthal v. Great Western Bank Fin. Securities (1996) 14 Cal. 4th

394, 412). Mr. McKay knew that an arbitrator’s power to provide remedies was

Complaint Against Attorney John Scott McKay, pg.22

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restricted to the contract on which the parties were compelled into arbitration.

(“The powers of an arbitrator derive from, and are limited by, the agreement to

arbitrate.” Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1, 8). Mr. McKay know

that the 2007 TICA provides for the “forced sale” of a “defaulting Cotenant’s

cotenancy share,” not a condominium.

Nevertheless, Mr. McKay substituted out the material term “cotenncy

share” and “Cotenant” and substituted in “condominium.” (*See, Attachment Ac,

Mr. McKay’s Exhibit A, the Judgment” for a “forced sale” of a condo “in

accordance with section 14.7” of the TICA). In doing this, he rewrote the 2007

TICA, the 2009 CC&Rs, and great swaths of the Civil Code. He knew that under

the California Subdivision Map Act that the parties’ Declaration (2009 CC&Rs

and Bylaws) is the “governing document” after condo-conversion. Mr.

Cunningham has been pointing that out to him for almost six years. In short, Mr.

McKay now heaps new frauds on to his previous frauds. His assertion that Mr.

Cunningham is ‘collaterally attacking” the arbitration award is a deliberate

distortion of fact and law to cover up his initial fraud of suing on the defunct 2007

TICA after condo-conversion and his fraud of substituting out material terms

(when he drafted the “arbitration award” for the arbitrator’s signature).

The fact that the arbitrator did not notice or catch Mr. McKay’s fraudulent

substitution does not transform his fraud into a valid order or make it “final.” Yet,

Mr. McKay suggest that it does. (Code of Civil Procedure section 473(d); A void

judgment may be challenged at any time. (Heidary v. Yadollahi (2002) 99 Cal.

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app. 4th 857, 862; Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228,

1230; As we will discuss, we find that the amended judgment was and is void, as

is the order denying plaintiffs subsequent motion to vacate the amended

judgment, and that a void judgment or order may properly be attacked at any

time, directly or collaterally. We also conclude that the doctrine of res judicata

does not apply to void judgments or orders.).

CONCLUSION

The ultimate fraud and deceit upon the court here is that Mr. McKay

resurrected the 2007 TICA after condo-conversion because it provided him

certain remedies he wanted. First, the 2007 TICA, unlike the 2009 CC&Rs,

provided a binding mandatory arbitration provision and a waiver of the right to a

jury trial and extensive discover. Second, the 2007 TICA provided a “forced sale”

remedy against the “defaulting Cotenant” which provided that the “prevailing

party” could recover of all fees incurred. By suing on the 2007 TICA, Mr. McKay

could recover all his fees (over $700,000 billed) and his clients could get rid of a

co-owner who was upset about their extensive unpermitted work (moving a gas

furnace and various gas and electric lines and putting it under the stairs in

apparent violation of fire codes). The arbitration also precluded extensive

discovery that would have allowed Mr. Cunningham to show that Mr. McKay’s

clients (Mr. Coombs and wife Ms. Woods) committed “bank fraud” by failing to

disclose the unpermitted work when they sought to refinance. (Aviation Data v.

American Express Travel Related Services (2007) 152 Cal. App. 4th 1522,

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quoting Riggs v. Palmer (1889) 115 N.Y. 506, 511 N.E. 188, “[N]o one shall be

permitted to profit by his own fraud, or take advantage of his own wrong, or to

found any claim upon his own iniquity, or to acquire property by his own crime.”)

The fact that the “forced sale” remedy was obsolete and irrelevant because

Mr. Cunningham and Mr. McKay’s clients had owner-occupied their units for a

year, submitted their condo-application and their $10,000 fee to the SF Public

Works Dept., had a condo-inspection by the SF Building Department, recorded

their Declaration with the SF Assessor’s Office, and had their application

approved by Bruce Sturris of the SF Department of Public Works did not deter

Mr. McKay from committing his fraud. Mr. McKay and his clients wanted to

blitzkrieg the case through arbitration before Mr. Cunningham could expose their

various frauds. Mr. McKay has billed over $700,000 in fees, which is almost four

times the amount of Mr. Cunningham’s $170,000 share of the mortgage and 120

times the alleged unpaid “property expense” of $5,645 that was the pretext for

Mr. McKay suit. He now wants to dismiss the appeal of the order confirming the

sale so that Mr. Cunningham cannot get a chance to expose his frauds or overturn

the $700,000 in fees in pillaged from the $800,000 of equity Mr. Cunningham

had in his condominium.

For these reasons, Mr. Cunningham requests that the State Bar conduct a

full evidentiary hearing on the matters of Mr. McKay’s fraudulent conduct and

take the steps to disbar him for his criminal conduct after he has provided

restitution to the aggrieved parties.

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TABLE OF ATTACHMENTS

Attachment A Mr. McKay's Motion to Dismiss Appeal 6/30/15 Pre-filing Order

Attachment B Close of Escrow Documents 6191115

Attachment C Kevin Singer's First EJ-130 Eviction form 9/23/14

Attachment D Receivers Report/Second EJ-130 9/29/14

Attachment E Transcript from Federal Court (DC ND cv-03250 WHA) 1/8/15

Complaint Against Attorney John Scott McKay, pg.26

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ATTACHMENT A

ATTACHMENT A

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A144930

IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION TWO

MICHAEL COOMBS, et al.,

Plaintiffs and Respondents,

v.

ARCHIBALD CUNNINGHAM, et al.,

Defendant and Appellant.

)

)

)

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CASE NO. A144930

Superior Court for the City

& County of San Francisco

No. CFP-10-510760

NOTICE OF APPEAL

DATE: 4/1/15

_______________________________

RESPONDENTS’ MOTION TO DISMISS APPEAL;

MEMORANDUM OF POINTS AND AUTHORITIES;

DECLARATIONS OF J. SCOTT MCKAY AND MICHAEL

COOMBS

_______________________________

J. SCOTT McKAY, ESQ., STATE BAR NO. 95799

McKAY & LEONG

2175 N. California Blvd., Suite 775

Walnut Creek, CA 94596

Telephone: (925) 932-6095

Fax: (925) 932-5434

Attorneys for Plaintiffs and Respondents

Michael Coombs and Tamara Woods

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TABLE OF CONTENTS

PAGE

MOTION TO DISMISS APPEAL............................................................................1

MEMORANDUM.....................................................................................................2

A. Factual Background..................................................................................2

B. This Appeal Should Be Dismissed Based

on Cunningham’s Contempts..............................................................9

DECLARATION OF J. SCOTT McKAY..............................................................13

DECLARATION OF MICHAEL COOMBS.........................................................23

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TABLE OF AUTHORITIES

PAGE(S)

CASES

Tms, Inc. v. Aihara (1999) 71 Cal.App.4th 377......................................9, 12

STATUTES

California Code of Civil Procedure §§391.1-391.4.......................3, 5, 14, 16

California Code of Civil Procedure §568................................................7, 20

COURT RULES

California Rules of Court, Rule 8.57...........................................................21

California Rules of Court, Rule 8.108.........................................................22

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MOTION TO DISMISS APPEAL

Plaintiffs and respondents Michael Coombs and Tamara Woods

(collectively, “Coombs”) move this Court to dismiss this appeal of defendant and

appellant Archibald Cunningham on the ground that Cunningham is in contempt of

court for his willful failure to comply with (1) a court order requiring him to

answer certain post judgment interrogatories, and (2) the injunction issued as part

of the judgment which requires Cunningham to cooperate in, and enjoins him from

interfering with, the sale of his condominium, which sale is ordered by such

judgment, and (3) a court order requiring Cunningham to vacate and stay away

from his condominium so that it could be sold.

This motion is based on the Memorandum and Declarations of J. Scott

McKay and Michael Coombs.

Dated: June 30, 2015 McKAY & LEONG

____________/s/________________

By: J. Scott McKay

Attorneys for Plaintiffs and

Respondents Michael Coombs and

Tamara Woods

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MEMORANDUM

A. Factual Background

A judgment in favor of Coombs and against Cunningham was entered in the

underlying action (San Francisco Superior Court Case No. CPF-10-510760, the

“Underlying Action”) on April 13, 2011. Such judgment (“Judgment”) granted

Coombs several types of relief. It granted money damages, ordered the sale of a

condominium owned by Cunningham, granted injunctive relief, and granted

certain costs and attorneys fees. A copy of such Judgment is attached hereto as

Exhibit A.

Cunningham appealed such Judgment in Court of Appeal Case No.

A131914. On October 24, 2013 the Judgment was affirmed in all respects in the

Court of Appeal’s decision.

While the appeal of the Judgment was pending, Cunningham went to

extraordinary lengths to avoid and delay enforcement of such Judgment. He

several times requested a stay from the trial court, which requests were denied. He

sought a stay of the Judgment from this Court, by way of a petition for a writ of

supercedeas, which petition was denied. He filed another trial court action

(Cunningham v. Woolard, et al, San Francisco Superior Court Case No. CGC-

511994, the “Second Action”) to collaterally attack the Judgment in the

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Underlying Action. That Second Action was dismissed when Cunningham, a

vexatious litigant, failed to provide security as ordered by the court pursuant to

CCP §§391.1-391.4. Cunningham filed three appeals (Case Nos. A133560,

A134206, and A134759) from that dismissal. Cunningham subsequently

dismissed Case No. A133560. On the other two appeals, this Court again affirmed

the trial court decision in the Second Action in all respects.

Getting nowhere in the state courts, Cunningham filed a bankruptcy for the

stated purpose of trying to avoid and delay enforcement of the Judgment in the

Underlying Action. In the bankruptcy proceeding Cunningham objected to the

debt created by the Judgment in the Underlying Action, but the bankruptcy court

abstained from stepping into the state court proceedings. Cunningham dismissed

such bankruptcy case after Coombs obtained relief from the bankruptcy stay.

Cunningham then in October 2013 filed a federal district court action

(Cunningham v. McKay, et al, United States District Court, Northern District of

California, Case No. 3:13-cv-04627) again seeking to collaterally attack the

Judgment in the Underlying Action. That federal case was also dismissed, on

grounds of lack of subject matter jurisdiction and res judicata. Cunningham

appealed that dismissal as well, which appeal is pending. In that federal appeal,

Cunningham filed a motion for a stay, asking the Ninth Circuit to enjoin the San

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Francisco Superior Court from enforcing the Judgment against Cunningham. That

motion was denied.

His first federal action having been dismissed without leave to amend,

Cunningham just turned around and filed a second federal action, Cunningham v.

Singer, Northern District of California Case No. 3:14-cv-03250. In that federal

action Cunningham again tried to collaterally attack the Judgment and other orders

and determinations of the state court in the Underlying Action. In order to block

the sale ordered by the already final Judgment, Cunningham both recorded a lis

pendens, and filed a motion for an injunction to prohibit enforcement of the

Judgment. Coombs again filed a motion to dismiss on grounds that the district

court lacked subject matter jurisdiction to review state court decisions, and on

grounds of res judicata. That motion was granted and the case was dismissed. The

district court also designated Cunningham as a vexatious litigant under federal law.

Cunningham appealed that dismissal to the Ninth Circuit, which appeal is still

pending.

Not even waiting for the hearing or decision on the motion to dismiss his

second federal action, Cunningham just turned around and filed a third federal

action, Cunningham v. Singer, Central District of California Case No. 2:14-cv-

09104, in essence raising the same claims as were raised in the second federal

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action, but in the form of a class action. To block the sale Cunningham again filed

a motion for an injunction. Coombs again filed a motion to dismiss on grounds

that the district court lacked subject matter jurisdiction to review state court

decisions, and on grounds of res judicata. That motion was granted and such third

federal action was dismissed.

Cunningham then returned to the state court, and in March 2015 filed a

third state court action (Cunningham v. Singer, San Francisco Superior Court Case

No. CGC-15-544693) which again seeks to collaterally attack the Judgment in the

Underlying Action. Cunningham again recorded a lis pendens in connection with

that action so as to block the court ordered property sale. That action is still

pending at the moment, but has been stayed because Cunningham has again, as a

vexatious litigant, been ordered to provide security as a condition of proceeding

with such action, under CCP §§391.1-391.4.

While these various collateral attacks on the Judgment in the Underlying

Action were pending in the state and federal courts, Cunningham filed a series of

appeals and petitions in the Court of Appeal and in the Supreme Court. So far

Cunningham has filed fifteen appeals and writ proceedings in the state Court of

Appeal, and six proceedings in the state Supreme Court. All of those proceedings

have been concluded other than the present appeal. Cunningham has not prevailed

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in any of the appellate proceedings.

Along with Cunningham’s never ending efforts to relitigate issues,

Cunningham has refused to comply with orders made by the court in the

Underlying Action in order to impede enforcement of the Judgment against him.

First, in an effort to enforce the Judgment in the Underlying Action,

Coombs served a set of post judgment interrogatories on Cunningham.

Cunningham did not respond to these interrogatories in any way. Coombs

therefore made a motion to compel answers to such interrogatories. Cunningham

did not oppose such motion. On January 7, 2014, the Court ordered Cunningham

to answer the interrogatories and hand serve such answers within 10 days of

service of the order. The order was served on Cunningham by mail on January 8,

2014. See order and proof of service, Exhibit B hereto. Answers were thus due,

by hand delivery, on January 23, 2014. No answers have ever been provided by

Cunningham. Cunningham was clearly available to answer such interrogatories, as

he has filed many pleadings in various cases, and has appeared at numerous state

and federal court hearings, since the due date for such answers.

Second, Cunningham has also failed and refused to comply with the

Judgment in the underlying action. That Judgment (Exhibit A) requires the sale of

Cunningham’s condo. Such Judgment also includes an injunction that requires

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Cunningham to cooperate in, and not do anything to interfere with such sale. Once

that Judgment became final, Coombs pursued enforcement of the Judgment,

including the sale of Cunningham’s condo. The superior court appointed a

receiver (Kevin Singer) specifically to conduct the sale. See Exhibit C.

The Judgment provides that the sale is to be conducted in accordance with

the “Forced Sale” provisions (section 14.7) of the parties’ Tenancy In Common

Agreement (the “TICA”). Under sections 14.7(C) and (D) (a copy of section 14.7

is attached hereto as Exhibit D), the first step in that process is to obtain an

appraisal on Cunningham’s condo, and then list it with a real estate broker at the

appraised value. Cunningham has continually vowed that he will not allow his

condo to be sold under the Judgment, and refused the receiver’s requests for access

to the condo to obtain the appraisal and list the condo with a broker. The receiver

therefore filed a motion asking the superior court to grant the receiver possession

of the condo pursuant to CCP §568, to issue a writ of possession so as to allow

removal of Cunningham from the property, and for an order requiring Cunningham

to stay away from the property. That motion was granted by the order that is

attached hereto as Exhibit E, which order noted (at p. 2) that Cunningham was

interfering with the receiver’s efforts to sell the condo as ordered, and that no

lesser means are feasible for the receiver to be able to sell the property.

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Cunningham was removed from the condo by the San Francisco County

Sheriff on November 6, 2014, but he promptly returned to the condo and stayed

there, coming and going as he pleased, despite his removal and despite the court

order (Exhibit E) requiring him to stay away. Cunningham has been arrested three

times based upon his violation of such order, which order he continues to defy.

Coombs set up a security camera above the area where the front doors to

both condos are located, and has monitored Cunningham’s continued presence at

the condo that Cunningham was removed from. Cunningham threatened to

remove the security camera, and shortly thereafter it was indeed removed.

Coombs then set up the security camera behind a window above the front doors, so

that Cunningham could not steal it again. Since that time Cunningham keeps spray

painting the window so as to block the camera’s view and conceal his presence.

Coombs has videos of Cunningham continuously coming and going at the condo,

and setting up a ladder and spray painting the window in front of the camera.

Attached as Exhibit F is a copy of a booking card, provided by

Cunningham, for one of his arrests. Attached hereto as Exhibit G is a copy of an

email from Cunningham saying that he will continue to return to his condo and be

arrested, and that he wants a trial on the matter.

In sum, Cunningham has violated the order requiring him to provide

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answers to post judgment interrogatories, has violated the injunction that is a part

of the Judgment since he has been actively interfering with the receiver’s efforts to

sell the condo, and has violated the order (Exhibit E) requiring him to vacate and

stay away from the condo.

B. This Appeal Should Be Dismissed Based on Cunningham’s Contempts.

There is a long standing rule that the appeal of a party who is in contempt of

court may be dismissed. A case that is right on point is Tms, Inc. v. Aihara (1999)

71 Cal.App.4th 377. In that case, like here, the judgment debtor was served with

post judgment interrogatories, but failed to answer them. The judgment creditor

then obtained an order compelling answers to those interrogatories. The judgment

debtor still did not answer. The judgment debtor had appealed the judgment, and

that appeal was still pending. The Court of Appeal dismissed the appeal based on

the judgment debtor’s refusal to answer the interrogatories as ordered. The court

cited, at p. 379, a long list of cases holding that the Court of Appeal has the

inherent power to dismiss an appeal by any party who has refused to comply with

orders of the trial court. The court explained that a party cannot ask the assistance

of the court while he stands in contempt of the orders and processes of the courts.

The court further explained that no judgment of contempt is required as a

prerequisite to the Court of Appeal’s exercise of the power to dismiss. Id. The

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court therefore dismissed the appeal based upon the willful failure to comply with

the trial court’s order to answer post judgment interrogatories.

This is precisely the situation presented here. In fact, Cunningham’s

conduct is worse here. Cunningham has refused to comply with an order for

answers to post judgment, but he also has a long history of treating the courts and

litigants opposing him with nothing but contempt. As a consequence he has been

repeatedly designated as a vexatious litigant by both the state and federal courts.

He vows that he will stop at nothing to avoid and delay enforcement of this

Judgment, and his refusal to answer these interrogatories is just a part of his much

larger pattern of abusing the legal system.

Cunningham also failed and refused to comply with the Judgment’s

injunction that requires Cunningham to cooperate in, and not do anything to

interfere with, the sale of his condo. Cunningham denied the receiver access to the

property, thereby blocking the receiver’s ability to obtain the required appraisal, to

list the property with a real estate broker, or to show the property to brokers or

prospective purchasers, all as contemplated by section 14.7 of the TICA. The

Judgment specifically references the use of the sale procedure under section 14.7,

and the order appointing the receiver directs the receiver to follow such

procedures.

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It should be noted that on April 17, 2014 this Court dismissed

Cunningham’s appeal in Case No. A134608 based on his failure to answer the post

judgment interrogatories as ordered. Coombs filed a motion to dismiss that appeal

in February 2014, shortly after Cunningham failed to answer the post-judgment

interrogatories in January 2014 as ordered.

Subsequently, on July 31, 2014, this Court dismissed Cunningham’s appeal

in Case No. A142115 based on his contempts of court. By that time Cunningham

had also violated the injunction that is part of the Judgment by denying the receiver

access to the condo as required by section 14.7 of the TICA (which section is

specifically referenced in the Judgment and in the order appointing the receiver).

Faced with these motions to dismiss in those two appellate cases, Cunningham let

the appeals be dismissed rather than obey the court order and the injunction.

Now on this motion to dismiss the present appeal, Cunningham is also in

contempt based on his refusal to vacate and stay away from the condo as ordered

by Exhibit E. This appeal should be dismissed as well, since Cunningham is now

in contempt of not just the orders that the prior appellate dismissals were based on,

but also the more recent order that is Exhibit E. And of course it is apparent that

this appeal is just one more part of Cunningham’s pattern of seeking to frustrate

the orders and judgments of the courts by all possible means, legitimate or not.

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Cunningham is unhappy about losing, but his sole recognized remedy is an

appeal. He took his appeal and lost. That is the end of the matter. Cunningham

may disagree with the Judgment, but his disagreement does not give him license to

ignore and violate these final court orders. Under Tms, Inc. v. Aihara,

Cunningham cannot refuse to obey the orders and the Judgment in this matter, but

at the same time seek this Court’s assistance by way of an appeal. This is

especially true where the prosecution of this appeal would just further

Cunningham’s improper goals of delay and avoidance.

This Court should therefore dismiss this appeal based on Cunningham’s

multiple refusals to obey the order compelling answers to post-Judgment

interrogatories, the injunction that is a part of the Judgment, and the order

requiring Cunningham to vacate and stay away from the condo, just as this Court

dismissed Cunningham’s appeals in Case Nos. A136608 and A142115.

McKAY & LEONG

/s/

Dated: June 30, 2015 By: J. Scott McKay

Attorneys for Plaintiffs and

Respondents Michael Coombs, and

Tamara Woods

///

///

///

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DECLARATION OF J. SCOTT McKAY

I, J. SCOTT McKAY, declare:

1. I am an attorney licensed to practice in the State of California, and the

attorney of record for plaintiffs and respondents Michael Coombs and Tamara

Woods in this matter.

2. A judgment in favor of Coombs and against Cunningham was entered in

the underlying action (San Francisco Superior Court Case No. CPF-10-510760, the

“Underlying Action”) on April 13, 2011. Such judgment (“Judgment”) granted

Coombs several types of relief. It granted money damages, ordered the sale of a

condominium owned by Cunningham, granted injunctive relief, and granted

certain costs and attorneys fees. A true copy of such Judgment is attached hereto

as Exhibit A.

3. Cunningham appealed such Judgment in Court of Appeal Case No.

A131914. On October 24, 2013 the Judgment was affirmed in all respects in the

Court of Appeal’s decision.

4. While the appeal of the Judgment was pending, Cunningham went to

extraordinary lengths to avoid and delay enforcement of such Judgment. He

several times requested a stay from the trial court, which requests were denied. He

sought a stay of the Judgment from this Court, by way of a petition for a writ of

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supercedeas, which petition was denied. He filed another trial court action

(Cunningham v. Woolard, et al, San Francisco Superior Court Case No. CGC-

511994, the “Second Action”) to collaterally attack the Judgment in the

Underlying Action. That Second Action was dismissed when Cunningham, a

vexatious litigant, failed to provide security as ordered by the court pursuant to

CCP §§391.1-391.4. Cunningham filed three appeals (Case Nos. A133560,

A134206, and A134759) from that dismissal. Cunningham subsequently

dismissed Case No. A133560. On the other two appeals, this Court again affirmed

the trial court decision in the Second Action in all respects.

5. Getting nowhere in the state courts, Cunningham filed a bankruptcy. In

communications at the time, Cunningham repeatedly stated that he filed this

bankruptcy for purposes of trying to avoid and delay enforcement of the Judgment

in the Underlying Action. In the bankruptcy proceeding Cunningham objected to

the debt created by the Judgment in the Underlying Action, but the bankruptcy

court abstained from stepping into the state court proceedings. Cunningham

dismissed such bankruptcy case after Coombs obtained relief from the bankruptcy

stay.

6. Cunningham then in October 2013 filed a federal district court action

(Cunningham v. McKay, et al, United States District Court, Northern District of

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California, Case No. 3:13-cv-04627) again seeking to collaterally attack the

Judgment in the Underlying Action. That federal case was also dismissed, on

grounds of lack of subject matter jurisdiction and res judicata. Cunningham

appealed that dismissal as well, which appeal is pending. In that federal appeal,

Cunningham filed a motion for a stay, asking the Ninth Circuit to enjoin the San

Francisco Superior Court from enforcing the Judgment against Cunningham. That

motion was denied.

7. Cunningham’s first federal action having been dismissed without leave

to amend, Cunningham just turned around and filed a second federal action,

Cunningham v. Singer, Northern District of California Case No. 3:14-cv-03250.

In that federal action Cunningham again tried to collaterally attack the Judgment

and other orders and determinations of the state court in the Underlying Action. In

order to block the sale ordered by the already final Judgment, Cunningham both

recorded a lis pendens, and made a motion for an injunction to prohibit

enforcement of the Judgment. Coombs again filed a motion to dismiss on grounds

that the district court lacked subject matter jurisdiction to review state court

decisions, and on grounds of res judicata. That motion was granted and the case

was dismissed. The district court also designated Cunningham as a vexatious

litigant under federal law. Cunningham appealed that dismissal to the Ninth

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Circuit, which appeal is still pending.

8. Not even waiting for the hearing or decision on the motion to dismiss his

second federal action, Cunningham just turned around and filed a third federal

action, Cunningham v. Singer, Central District of California Case No. 2:14-cv-

09104, in essence raising the same claims as were raised in the second federal

action, but in the form of a class action. To block the sale Cunningham again filed

a motion for an injunction. Coombs again filed a motion to dismiss on grounds

that the district court lacked subject matter jurisdiction to review state court

decisions, and on grounds of res judicata. That motion was granted and such third

federal action was dismissed.

9. Cunningham then returned to the state court, and in March 2015 filed a

third state court action (Cunningham v. Singer, San Francisco Superior Court Case

No. CGC-15-544693) which again seeks to collaterally attack the Judgment in the

Underlying Action. Cunningham again recorded a lis pendens in connection with

that action so as to block the court ordered property sale. That action is still

pending at the moment, but has been stayed because Cunningham has again, as a

vexatious litigant, been ordered to provide security in order to proceed with such

action, under CCP §§391.1-391.4.

10. While these various collateral attacks on the Judgment in the

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Underlying Action were pending in the state and federal courts, Cunningham filed

a series of appeals and petitions in the Court of Appeal and in the Supreme Court.

So far Cunningham has filed fifteen appeals and writ proceedings in the state

Court of Appeal (Case Nos. A131914, A133560, A134206, A134759, A136608,

A140675. A140675, A140958, A141788, A142115, A142672, A144930,

A145036, A143425, and A14335). The last two of these listed Court of Appeal

cases were filed by Cunningham supposedly on behalf of Humberto Ruiz, a

purported roommate of Cunningham. Yet Ruiz is not a party to the Underlying

Action, no orders in that action impacted Ruiz, and it was quite apparent that

Cunningham was using Ruiz as a puppet in order to attack the order requiring

Cunningham (and only Cunningham) to vacate the condo. Cunningham also filed

six proceedings in the state Supreme Court (Case Nos. S200833, S214578,

S214578, S214763, S218853 and S224173). The Supreme Court lists Case No.

S214578 twice on its site, as one relates to Court of Appeal Case No. A134206,

and the other relates to Court of Appeal Case No. A134759. All of these appellate

proceedings have been concluded other than the present appeal. Cunningham has

not prevailed in any of the appellate proceedings.

11. Along with Cunningham’s never ending efforts to relitigate issues,

Cunningham has refused to comply with orders made by the court in the

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Underlying Action, so as to impede enforcement of the Judgment against him.

12. In an effort to enforce the Judgment in the Underlying Action, Coombs

served a set of post judgment interrogatories on Cunningham. Cunningham did

not respond to these interrogatories in any way. Coombs therefore made a motion

to compel answers to such interrogatories. Cunningham did not oppose such

motion. On January 7, 2014, the Court ordered Cunningham to answer the

interrogatories and hand serve such answers within 10 days of service of the order.

The order was served on Cunningham by mail on January 8, 2014. See order and

proof of service, true copies of which are attached hereto as Exhibit B. Answers

were thus due, by hand delivery, on January 23, 2014. No answers have ever been

provided by Cunningham. Cunningham was clearly available to answer such

interrogatories, as he has filed many pleadings in various cases, and has appeared

at numerous state and federal court hearings, since the due date for such answers.

13. On April 17, 2014 this Court dismissed Cunningham’s appeal in Case

No. A134608 based on his failure to answer the post judgment interrogatories as

ordered.

14. Cunningham has also failed and refused to comply with the Judgment

in the Underlying Action. That Judgment (Exhibit A) requires the sale of

Cunningham’s condo. Such Judgment also includes an injunction that requires

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Cunningham to cooperate in, and not do anything to interfere with, such sale. That

Judgment became final on January 22, 2014 when this Court issued the remittitur

in Court of Appeal Case No. A131914. Once that Judgment became final,

Coombs pursued enforcement of the Judgment, including the sale of

Cunningham’s condo. The superior court appointed a receiver (Kevin Singer) to

conduct the sale. A true copy of the order appointing the receiver is attached

hereto as Exhibit C.

15. The Judgment and the order appointing the receiver provide that the

sale is to be conducted in accordance with the “Forced Sale” provisions (section

14.7) of the parties’ Tenancy In Common Agreement (the “TICA”). Under section

14.7(C) and (D) (a true copy of section 14.7 is attached hereto as Exhibit D), the

first step in that process is to obtain an appraisal on Cunningham’s condo, and then

list it with a real estate broker at the appraised value. Cunningham has continually

vowed that he will not allow his condo to be sold. Cunningham refused the

receiver’s requests for access to the condo to obtain the appraisal and list the

condo with a broker, thereby effectively blocking the court ordered sale procedure.

16. On July 31, 2014, this Court dismissed Cunningham’s appeal in Case

No. A142115 based on his contempts of court. By that time Cunningham had not

only refused to answer the post judgment interrogatories as ordered, but had also

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violated the injunction that is part of the Judgment by denying the receiver access

to the condo as required by section 14.7 of the TICA (which section is specifically

referenced in the Judgment and in the order appointing the receiver).

17. To proceed with the sale, the receiver filed a motion asking the superior

court to grant the receiver possession of the condo pursuant to CCP §568, to issue

a writ of possession so as to allow removal of Cunningham from the property, and

for an order requiring Cunningham to stay away from the property. That motion

was granted by an order dated August 20, 2015, a true copy of which is attached

hereto as Exhibit E. Such order noted (at p. 2) that Cunningham was interfering

with the receiver’s efforts to sell the condo as ordered, and that no lesser means are

feasible for the receiver to be able to sell the property.

18. Pursuant to Exhibit E, Cunningham was removed from the condo by

the San Francisco County Sheriff on November 6, 2014, as Cunningham has

acknowledged in his complaints about such eviction. Yet Cunningham promptly

returned to the condo and stayed there, despite his removal and despite the court

order (Exhibit E) requiring him to stay away. Cunningham has been arrested three

times based upon his re-entry into the condo after his removal by the sheriff. I was

present for two of those arrests, as the officers twice arrested Cunningham at the

court when Cunningham was present for hearings. Cunningham has also

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complained to me about a third arrest, but I do not know the particulars.

19. Attached as Exhibit F is a true copy of a booking card provided to me

by Cunningham concerning one of his arrests. Attached hereto as Exhibit G is a

true copy of an email from Cunningham saying that he will continue to return to

the condo and be arrested, and that he wants a trial on the matter.

20. On this third motion to dismiss the newest appeal, Cunningham is also

in contempt based on his refusal to vacate and stay away from the condo as

ordered by Exhibit E. This appeal should be dismissed as well, since Cunningham

is now in contempt of not just the orders that the prior appellate dismissals were

based on, but also the more recent order that is Exhibit E.

21. As required by California Rules of Court, Rule 8.57, the following facts

are stated:

a. The nature of this action is a petition to compel arbitration of a

contractual dispute between the parties, and then a petition to confirm the

arbitration award.

b. The attorney of record for Michael Combs and Tamara Woods is J. Scott

McKay of McKay & Leong, 2175 N. California Boulevard, Suite 775, Walnut

Creek, California 94596, 925-932-6095. The attorney of record for Archibald

Cunningham is Patricia J. Barry, 634 Spring Street, Suite 823, Los Angeles,

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California 90014, 213-995-0734.

c. This appeal is from an order dated March 23,2015, which approved the

terms of the sale of Cunningham’s condo by the receiver. A formal written order

was filed on March 23, 2015, and written notice of such order was served on

March 24, 2014June 3, 2014.

d. There has been no extension of time to appeal under Rule 8.108.

e. The filing date of the notice of appeal was April 1, 2015. Such notice of

appeal was filed only in the San Francisco Superior Court, in Case No. CPF-10-

510760.

f. Cunningham’s designation of the record was filed on April 30, 2015.

g. According to the San Francisco Superior Court clerk, the record is in

progress but has not yet been completed or certified. There is no order extending

time to prepare the record.

I declare under penalty of perjury under the laws of the State of California

that the foregoing is true and correct and that this declaration was executed on the

30 day of June, 2015.th

/s/

J. Scott McKay

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DECLARATION OF MICHAEL COOMBS

I, MICHAEL COOMBS, declare:

1. I am one the plaintiffs and respondents herein.

2. This litigation concerns a two condominium property located at 1487-

1489 McAllister Street in San Francisco. The front doors to the two condos are

right next to each other on a front porch.

3. Once Cunningham was removed from his condo by the San Francisco

Sheriff on November 6, 2014, I anticipated that Cunningham would return to the

premises despite the order requiring Cunningham to stay away from the property.

I therefore set up a security camera near the front doors of the two condos. I

reviewed the security camera video and indeed Cunningham simply returned to his

condo despite his removal, and would come and go as he pleased. I have many

hours of video from the security camera showing Cunningham coming to, staying

at, and leaving from, the condo on a daily basis. The camera footage covers most

of the period from Cunningham’s removal by the sheriff on November 6, 2014

through just recently.

4. Cunningham repeatedly objected to the camera, which showed

Cunningham violating the court order requiring him to vacate and stay away. He

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A144930

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said that if I did not remove the camera he would have somebody remove it.

Shortly after those statements the camera was taken down by somebody other than

me.

5. I then located another security camera to an area behind a window above

the front door of my condo, so that Cunningham could not take it again. I then

continued to monitor Cunningham’s continual presence, which was continual.

Cunningham then, since he could not get to the camera, started spray paining the

glass in my window, so as to block the camera’s view. Since that time I have

periodically cleaned the paint off the window, and then Cunningham repaints the

window. The footage from the camera clearly shows Cunningham painting the

window each time he does so, since he stands on a ladder maybe two feet from the

window when he does his painting, in full view of the security camera.

I declare under penalty of perjury under the laws of the State of California

that the foregoing is true and correct and that this declaration was executed on the

24 day of June, 2015.th

/s/

Michael Coombs

100

100

EXHIBIT A TO REST'ONDENTS'MOTION TO DISMIISS APPEAL

EXHIBIT,A TO RIESP,ONDIDNTS'MOTION TO DISMISJS APPE,AL

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McKAY & L,EONGJ. Scott McKay, Esq.,#95799Linda I{. Leong, Ilsq., #2035002175 N. Califbmia Blvd., Suite 775Walnut Creek, CA 94596l'clephone : (925) 932-6095Facsimile: (925) 932-5434

Attomey fbr PlaintiffsMICHAEL CIOOMIIS and]'AMARA V/OODS

AI{CI IIBA I.D CiJNNINCiFIAM; and DOES I

to 20. irtclusivc,

.IUDGMI]NT' CONFIITMING ARI]I'f RA'f IONAW,\RI)

,H",,{",L E nAPR 1 3 ZUtt

IN 1'I'IIJ SIJPTIRIOR COURT OFTHE STATE OT.'CALIT,ORNIA

IN AND FOI{ TIIII CIlt'Y .,t,ND CCIUN]"Y OF SIAN FRANCISCO

UNLIMIl'ED CIVIT, JUTTI SDICTION

MICI IAEI- COOMBS:'|AMARA WOODS, CASE NO. CPF-10-510760

I'}etitioner(s),

Responclent(s).

fhe arbitr"ation arvard of arbitrator V. Genc N{cDonald daled March 3.201I having becn

conlrrmed blt ordcr of this court datecl April 12,201l:,

I'l' IS ADJUDGIiD that pctitioners Nl ichael Coornbs and 'famara Woods rshall havc judgnrcnt

against respondent Archibald Cunningham on the following terms:

l. M.r. Cunningham's condomriniurn, locatcd at and knou'n as 1489 McAllister Street. San

Francisco, Califbnia is to be sold forlhlvith such sille shall be conducted in conlbrmity with the

I-'orceci Salc pr:occdurcs sct fbrth in sectiot-t 14.7 of tlre October 2007 'fenancy In Cotnmon

Agreemept trctrveen the parties to the extcut possibli:. -fhr: legal rJescription fbr Mr. Cunningham's

condominiurn is attached hereto as Ilxhibit,tr.

2. Attinjunction is hereby issuecl wh:ch requires ttrat Mr. Cunningharn cooperate in the

JL-]DGMEN'f CONF IRMING ARBI']-RATION AWAI{D_1_

CLERKOFav,gpffi

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listing. marketing, and sale o1'his condorninium in accordance with the provisions of section 14.7 of

the Tenancy In Cclmmon Agreement, and which prohibits Mr. Curnningham, or anybody acting in

concert with him, from interfering in any wa)' with such Forced Sale.

3. Any judgrnent liens on either Mr. Cunningham's condlominium or on petitioners'

conclominiunt (1487 McAllister Strcet, San Irrancisco, California) wliich arise from any judgment

against Mr. Cunningham, shall be paid from the proceeds h'om the sale of Mr. Cunningham's

condominiurn to the cxtent thaLt therc are fun<ls available f}om such salc allcr the payme nt of Mr.

Cunningham's portion o1'the shared rnortgage, costs of sale, and any other sums as provided in

section 14.7 of the Tenancy In Commotr Agn:ement.

4. Clairnants are awarded $6,564.62 as Mr, Cunningham's unpaid poltioti of the sltarcd

Propcrly expienscq! $37,460.0t1as attorncys Ices, $10,597.29 as cc,sts, and $,5,000.00 in liquiclatccl

danrages. In accordance u'ith sections 1,1.7(A) and 14.7(II) of the'fenancy In Comnron Agreetrtcnt.

if such sums have not bcen previously rccovcred by claimants thrrtugh any euforccureut of-a

judgment proccdures, any unpaid po(ion of such sums shall be paid to clairnants from thc proccecis

fiom the sale of Mr. Cunninghrarn's conclonrinium to the extcnt that therc arc funcls available lionr

such salc alicr the pal,mcnt of thc itenis spec;fred in llarag.raph 3 eLbove.

5. Claimants arc awarrled thc further sum of $669 53, rcpncsenting intcrest on the nlonetarv

portion of thr: arbitration award, I}om tlic datc of the Marclh 3, 2011 award through tl're datc o1'cntr1'

of this .ludgment.

6. Claiprants afe awarcled thc further sum of $40.C10 as the costs incurred bv petitioncrs irr

connection with the petition to conflrm the ai'bitration award.

7. Claimarits are awarded thc further sum of $4,5t10.00 as and for attorneys fee s incLrrrcd b1'

petitioners in conncction with the petition to confirm tlie arrbitrati,rn award.

'.-- l/ ,k#%f thc Superior Court (/udge

Dated: +,1 s/t

JUDGMENT CICNF I RMING,{RBI.I.RATIOI! AWARD-2-

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103

EXII{IBIT ('A''

/\ll that rs-a] prol)ertir 511.,or.,t in tirrl Cil.y iirrcl Cor.tuty oi Sa:r Frarrcist;o, Statc ofCalif<lrniei, rlescribecl i"rs follorNs:

Parcel One:

C<lndopripir.rn'r Llnjt 1z{89) [,ot No. 60) of pnrl:el A of l)arcel lt4ap N,:1. 5504, fi.led Autgust 3,

2009. in B1lok 1i0 ol'C<:r'r<lomirrir-rm Marps, l)ap;es l9b ancl 197 Olilcial ltecords o1 Sert't

firerllt:isc:o O:tunty Rccorcl s ("OtIicial llccorcls"), as suc:h Ulrit is shotl'tt otr [trcCondortri:riLirn l)iat'r ("P)an"), attacl.rcd as an exhibit to thc Dec:lilrlrtion of Restrictiotrslbr I487- 1.1,59 McAllister" Streel ("Declaration"), recorclecl Sc1:l:crnber 30, 2009, ScriesNo. 2OO9 - Ii\32.4.'l () O tficral Jiccorcis.

Parcel Two:

An r,rncliviclecl ir1'l'o irltcl"est as Lcn?utt in corur:ron in atrcl tt.r t)re Corntrl<ln /vt:u l5'ingq,ilhin saicj Parc:el A of l:)arccl Mall No. 550-l , as slic>wn ort the Plrur ernd defined irr tlr<:

Dcclari.rtiori. exr. e1:titlg a:td rerscr-ving theleit-ortr the f<-rllotl,ing,:

A.) All riL)lt(li)rrrinrr.trrr ttnit.s sirou,n on t.tre F']art and dcrscrilted itr tite Dt:claration.

fl.) Iixr..}r.r sivc Usc (lornnror) Arrras lirr ltcssession, Llsrt all(l ert-io)tntort of t.ltrts;t'z:rt:ilsciesillnatccl on Lhc Plart atrrl clc{incd it-r lhe: Dcclat'crtiotr.

Norr.-exclr.rsivc easenteltt for use, etrjo.yment, ingrcss, eg,rcss an(l sl.tppoll in atrcl

to tfre Cornrn,ln lrrca as shown on tlre lr)lan ernd describecil in Llre lJeclaration.o)

r).) All casertteutr; as clclrtrred in iht: Dt:ctrit'ation,

Parcel Thrcel

l,lort-ext:lusivc c:ilserrrents lir:r'r.rsc, t:njo.yrnerrt., ingress, ()gress trncl sttppot'1 itt a:rclr tr"l tl-re

gornti1op /u'ca, ils sltos,r'r on t-)re Plan eirrtl c,escritlcd in ltre Declararicltr, for the bcnclit oJ

l)ar<:el Ont: Irr:t'<:inatrovt:.

Parcel Four:

Ijxr:lrrsjve Lrse eitsentcllts, aii shorvn orr the' Plnn an'l des,.:ribecl ir-r the Declar'ation,i:i.pl)urt(rr)al'l.l Lo l)arccl One hereinabove lbr the possession, us<: atrd enjo\rlnenl of

/\.) Slorrrge At'ea S- 1489

APN's: Lot 020, Block 0777 (portioll-cul'rerlt tax 'rearl

l..ot DC:0, Bloc:l,l 0777 (frr.trlre tax yearr)

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104

EXHIBIT [I TO RESPONDENTS'MOTION TO DISIMTSS APPE.AL

EXI{IBIT B TO RIDSPONDIINTS'MOTION TO D]ISMISS AP]PEAL

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105

ATTORNEY OR PARry WITHOUI ATTORI{EY fNano, Stata Bat number. and addrossJ

J. Scott McKay, Esq. SEIN 95799cKAY & LEONG

2175 N. California Blvd., Suirc 775Walnut Creck, CA 94596

E-MAIL ADDRESS (Oplonalll

ATToRNEv FoR 1,vamo;: fyligfi6el COOmbS and Tamara WOOdSSUPERIOR COURT OF CALIFORNIA, COUNry OF

srREErADoREss: 400 MCAlliSter StrCetMAILING ADDRESS

crwANDzrPCODE San Francr;ico. cA 94102BRANCH NAME

Sr\N FRANCISCIO

TELEPHoNE No. (925) \)32-609 5 FAX r\o (oprrona(g25) 93.2_5434

fr

CASE NUMBERI

cPF-l0-5I0760

ctv-130

Pego 1 of 2

PLAINTI FFlPETITIONER:

DEFENDANT/RESPON DENT:

MICI{,AEI- COOM,BS. ct al.A RC I-I I I3 AI,D CUI\IN INGI-IA M

(Check

NOTICE OF ENTRY OF "IUDGMENTOR ORDER

17) uNLrMtrED cASE f-l r-rrrlrrEo cAsiE(Amount demanded (Amounl dem;rnded wasexceeded $25,000) $25 000 or les;s)

TO ALL PARTIES :

1. A judgment, decree, or order was entered in this action on (dizte):. .'anuary 7 .2014

2. A copy of the judgment, d€rcree, or order is attached to this notice,

Date:January 8,2014

J. Scott McKay_(rYPE oR PRrNr NAME oF fy_l lrtonuey [--l ennrv wtrHour ArroRNE\,)

FOR COURT USE ONLY

$"J, ,h,",&,,,",0County ol San Franclgoo

.IAN I

Form A!,provod tq Optional UseJudicial Co!ncil of Caiilornia

CIV-130 lNew January 1,20101NOTICE OF ENTRY OF JUIDGMENT OR ORDE,R

w coudinlo.ca gov

106

106

frPLAINTIFF/PETITIONER

DEFENDANT/RESPONDENT:

0OOMBS, et al.

CUNNINGHAM, et al

PROOF OF SIERVICE BY FIRIIT.CLASS MAILNOTICE OF EhITRY OF JUDGMIENT OR ORDER

(NOTE: You cannot serue the Notice of Entry of Judgment or Order if you are a party in the action. The person who senredthe notice must complete thi,s proof of service.)

1' lamatleastlSyearsoldandnotapartytothisaction. lamaresdentoforemployedinther countywherethemailingtookplace, andmyresidence orbusinessaddress is (:;pecify):2175 N. California Blvo., Suite 775, Wilnut Creek, CA"94596

z. I served a copy of the Noticer of Entry of Judgment or order by enclosing it in a sealed envelope with postagefully prepaid and (check one):

a' I r I deposited the sealed envelope with the United state,s pos;tal service.b. f] placed the sealed envelope for collection and procerssing for rnailing, following this krusiness,s usual praclices,

with which I am readily familiar- On the same day correspondence is placed for colprction and mailinq. il. isdeposited in the ordinary course of business with thr,' United States postal Service.

The Notice of Entry of Judgrnent or Orderwas mailed:a. on (date): January 8,21014

b. from (city and state): Walnut Creek, CA

The envelope was addressed and rnailed as follovrs:

a. Name of person seryed;Archibald CunninghamStreet address: 1489 M,cAllister StreetCity: San Francisco

State and zip code: California 941 15

b. Name of person served:

Street address:

CitY:

State and zifr code:

Name,rf person served

Street ilddress:

City:

State and zip code:

d. Name ,:f person seryed:

Street irddress:

City:

State and zip code:

L_l Names and addressesr of additionai persons served are attached. (you may ust form pcts-030(p).)

5. Number of pages attached l--I declare under penalty of perjur',r unde:r the laws of the State of Californiir that the loregoing is true ano correct.

Date: January 8,2014L

Linda Leong(TYPE OR PRINT NAIIE OF OECLARANT)

)(SICJNATURE OF DECTARANT)

CIV-130 [New January 1, 201 0] NOTICE OF ENTRY OF JUDGMENT OR OITDERPag.2 ol 2

107

107

{rt

ff l..Sg.ott McKay, Esq., #95799tff McKAY a LeONc

z ll ziTiN driiiii. q,y_o_.,suite 775 . F. if f H,ll il?$H::J:tt;3r,li;i..r*:

"" - ;;: .i;, . , i,T ..g)Facsimile: (gzsi gzz_sqz)+. ff Facsimile: (gzsjgzz_sqti

; j\.. ,, . r:. .]t,,;rt

4il-ll i u'i 2al4

oepliiD..rfr

7

8 SI.IPERIOR COURT OI] THE STATR OF C,q.LIFORNI.Aoll'll rN AND FOFI THE crTy ArvD COUNTY Fo s1$r FRANCrsco

10

I I ll

MICHAEL CooMBS; TAMARA woolDs, CASE NO. CPF-IO-sI0760t2 tl

. ^ ll petitioner(s), g*pJ{g${Tn-vc MorroN ro coMpEL

t I lf v. *Pjjpl.i^sPs ro posr ruocr,anNiil TNTERRoGAToRTES, aNo ron

'o ll $|t{IBAL.r) cuNNrNGrrArr{; and Dolls I SANC.U$S

l5to 20, inclusil'e, - ---' -.-r'

, ll $,Tq-.y1for

petitioners ,rt'f}o oF r;rg co6ll

Mt.h;;iA;;;;; and ramara woods tv -{Lhu,-*,*a,3:ff:

'"llill nespondenr.

Iro ll

iTll

-

-t:: ll

The motion of petitioners jMichael coombs and Tamar:r woodr; for an order compelling19 ff respondent Arr:hibakl cunningham to ansv/er petitioners' first set of post judgment intenogatories,^^ll"

ll *o lor sanctions' ceune on regularly for hearing on Decemb er:23,2013 in Departme't 501 of this

l] lJ

t:: the Honorabte Ronalcl E. Quidachav, presiding. petitirners, nrotion was unopposed, and

:: ll "tttn* party appeared so as to c'ntest the crourt's tentative rul.ing. The court having read and

:1 ll t""ttoered the moving papers filed by the petitirrners, and good cause appearing therefor,

zqll IT Is r.,pnDDun eL--24ll IT IS ORDERED that petit:ioner's motion is GRANTED. Resprrndents shall provide responses^_tl2) ll to post judgme't interrogatories'without obiections within l0 days of notice of entry of order by^-ll1l ll

O"rt""al deliverry to petitioner,s counsel. Sanctic,ns are grante<Jlin the arnount of $660 to be paidzt ll rrr

28ll t//

ORDER CNANTTNC MOT'ON TO COMiffiPONiffi-POffiGMENTrNTERRocATORrEri, AND FoR s,c,Ncrrobis

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within l0 days of notice of entry of order. \ro opposition fired.

Dated: {W, Z, zo t y

Approved as conlbrrning tothe order of the coun:

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Judg;e of the Superrior Court

ru\RRY DORFMAT{

SEE EXHIBIT'A' RE

E WITH CRC 3.1312

'RDER c ne NTffil,{o rroffi , co^;ir, *r-*'ES ro .offi"rrcNrINTI]RROGATORIES, AND FOR SAIICTIONS

-'

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109

Judge Ronald E. QuidachaySan Francisco Superior Court, Dept. 501400 McAllister StreetSan Francisco, CA 94102

RE:

Thank you fbr your assistance,.

Dear Judge Quidachay:

on December 20,2013 you isrsued a tenlative ruling {fanting my client's motion to compelrcspondent Cunningharn to answer rny client'sr first set o}-post judgment interrogatories. Suchmotion was unopposed, and neither party contested rthe tentaiive iuling. I prepared a formal orderincorporating the language of the tentative ruling, anri sent it rto lv1r. Cunnirrgham by email that day.Mr' Cururingham hrs nol approved thr: order fonn, but also has not rcbjecteri to it. His only response(copy enclosed) was his fypical off topic response.

- Enclosed please find an origirnal and onr: copy of the orderr that I prepared and sent to Mr.Cunningham. If ther orderrneets u,ith your approval, please sign rud {ate -it,

and have the clerk fileit. I have enclosed a SASE so that u,fil* "ndors.:d

cc,py of tne ordcr can br: returnJ;;';ffi;;,

MIcKAY & LEONGATTonNEYs AT LAw

2 I 75 N. CalrFoRtyrA ltLvD., SuITE t'7SWALNUT CREEK, Crl.rFonNtA 9451jt6

TELEpHoNE (92i ) 932-6095FAcstMlLE (92S) 9J2-S434

Decemtrer 3tl, 2013

fr

SinLcercly yours:,

McKAlf 9rEoNG/'

-4Y'u>,/41/AVJ. Sicott McKay I

JSIvI/

Enclosures

Coombs v. Cunningham

110

110

EXHIBTT C] TO REST'O\TDENTS'MOTTON lIO DISMISS APPEAL

EXI{IBIT C: TO RIESPOI{DIINTS'MOTION TO DISMISiS APIPE,AL

111

111

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Mc & LEONGJ. ScoLinda

to 20,

McKay', Esq., #9579)9Leong, Esq., #203:i00

California Blvd.. Suite 7752t75Wal , cA 94596

t(92s) 932-6095T, i. t(92s) 937-6095: ti925) 937-5434Facsi

fbr PetitionersMIC EL COOMBS andTA WC}ODS

TN THE SUIPERIOR COURT OF'IHE ]STATE OF CALIFORNIA

IN AND FOR THE CJTTY AND COIINT'Y OF S;AN FRANCISCC)

LTNLIMITED CIVI ruRISDICTION

EI., COOMBS; l"AlvlARA WOODS|, cAfilE No. cPF-10-s10760

ORDER GFANTING MOTION FORAPP:O]NTNIENT OF.RE-CEruER

Petitioner(s),

ARC ALD CLINNINGHT\M; and DOES IV€,

Respondent(s).

motiotl of petitioners Michael C':ombs and'l'amara Woods for an order appointing a

recel to sell the condominiurn owned by' resporrdent Arshibald Cunningham in accordance witir

the t o f the .judgpent entered in thisi action on April l:1 , 2a11 , came on regularll, for hearing on

July 20 i i in Department 301 of this Cour-t, the HonoraLble Peterr J. Busch, Judge, presiding. J.

Scott Kay appeared on beiralf of Michael Coombsrand',famara Woods. Archibalj Cunningham

in pro per. The Court having rmd and considered the moving, opposition, and reply papers

filed parties, after oral argument, and good cause appearing therefor,

IIS ORDERED as firllows:

tretitioners' motiorr is granted.

i<levin Singer, whorse address is 795 Folsorn Street, 1't Floor, San Francisco, California

ORDER GFI.ANTINC MOTION FOR APPOII,ITMENTOF RECEIVER

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Ierms

of the

94107, appointed receiver for purposes o1'selling respondent's c;ondominium, which is located at

and known as 1489 McAllisl,er Slreet, San Frarrcisco, California, in accordance with the

judgrnerrt in this action, which jr-rdgrnent in turn referonces the provisiorrs of section 14.7

in common agreement between the pa;fties. The legai description of'respondent's

duties

this C

this C

inium to prospective buyens, anrl to sell respondent's condominium, all in accordance

the sale

um is attached herrsto as Exhibit 1,.

iJefore entering on his duties as a receiver, Kevin Singer shall take an oath to perform the

receiver faithfully, shall execute an undertalcing, or secure a bond, in the amount of

$10, to the State of Califomia flor the .[aithful performance of those duties sr-rbject to orders of

and that the oath and undertaking or bond be filed with the Cler* of the Court;

On tlie filing of the executed rrath and undrlrtakirrg or bond, and pending further ord"er of

, Kevin Singer, as n3ceiver, is jinstn.rcted to ;and shall undertake to take all steps and do all

things, luding the execution of documents on behalf of r:espondr:nt, reasonably required to list

nt's condominium fcrr sale, to enter;and shorv (perrsonally or tluougli teal e,state brokers)

such

with pril 13, 2011 judgment in this action, and rvith section 14.7 of the tenancy in common

as referenced in such judgment.

K.evin Singer, as receiver, is instructed to r,etain iurd not disrtribute the net proceeds from

f r,:spondent's cond<lminium e>lcepl pursuant to frunher oi:der of this Court, or stipulation of+J.o "Net proceeds" rerfers to the remrrining proceeds form the. sale of respondent's

co afier payment of (a) mortg;ages and liens upc,n respondent's condominium that must

be paid order to provide the purchaser witlt clear tille to the conclominium, (b) cc,mmissions oling

to real brokers involved in suclt sale, attd (3) es,crow liees, ta>:es., and other costs that are

ily paid by sellers from escrow.

N'otwithstanding the above provisions, the receiver shall nc,t complete the sale of

's condominium prior to August 1r5,2011, the darte on w'hich respondent has noticed a

hearing n his motion to fix tLLe amount of an undertaking ernd to stay enforcement of the judgrnent

in this tion pending appeal of zuch judgment. Furlher, sh,ruld the trial court or court of appeal in

order a stay of enforcement of the elitire jud.gme.nt, or a stay of the portion of the judgment

ORDER GRANTING MOTION FORAPPONITMENT OF RECEIVER

the

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Approorder <

the sale of respondent' s condominium, then the receiver shail act in accordance with the

ofsuch future order.

t1,4,zotl

as conforrnine to tliee Court:

:EXHIBITfrREu-.,|\4PLtArilcE WTtf cHo 3,1942

.RDER .RANTTNG MolrroN ron.q.piDmrMENT c,F RECEIVER

Judge of the liuperion Court

3-

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EXHIBIT A

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115

nl

All r aL r'r:ai propertllCa 'niu, rl,escribecl

sil.rr ated i.nus follolvs:

the

IDXI'IIRTT ((A,'

Ci['arrcl County ol'Sru: Fran,lisco, Statc oj

in Brrr'rl< l. l0 'f cor:r,ion,i.,.,l,,l-",1r'1,]"1",]it..^,e' t'Ltr;EI {vraP lNo obt)4, l)Jc)d August 3

l;Tli,l]iytr ,Maps,, pa(es .t9ri arrct r.9i Ofrciat fieuorrJs of .S:r,r

Ccr i;,1:,!,il,,l:;:t',,!,,4;ljjl;$i'il;Hi;;;i:'il ,l.1li,ii.lli,liJ Ji:f :lll,fl.,:io' ,rr ser rI"rar

lor I

:ti]:lli;: Ylll,,.]ill].1!11 .Nl i,'0,1 nr t,ar.<,er A of parc;er Map Nt sso4, fjre:cr

(:o Li:)r'rnt-v r<ccord.r ("(JJficlihr l;lccirrr.cre"),"as $l.rr:rr. r-Jnit is sho,urr:;.,';;;\'rn ()' r?r

)1'll.jl illl,ll]il':it.i|1,,,:lie;;;-u" .'iniii,u ro rhc Der:)a:rar.ion o{ Resrrir:riir:rns,?;;-iiil'Ij;TH::;,u,:'""*i;'f i'tl;"l;;;;i, ,=.#;;:ff[:::'#H]iffi,'H:[:No. O9t -l 852 4/+ <) O fTici al l?ccorcl$.

t,

-lenaltt in cor:rrlton ir.: atrcl i;o theMa;r No, 55Cul, as shown orr ilre'ilttotl . exr.:eplipg

^,.,11t esv:lirrg tl:ercfr.orl thu follorving:

an,ci sr.rpirorl in aucllire Dr:cJau:atiorr,

t:l usiye (:asetnerltsl'l ,Al'ca, as shorv:l:

(:Srfiss ttrld strl:P<.rr.{ il: eutcl t.rr thellte Deq';4..tirur, for thc l:clrc[it ol

llxclr

nlt uwit)rrl\rr'l'

jv'idecl 5 l,h irrt<lr.est assa.lrj Prrrt;cl l\ of J')arcel Colltlltr.rrt Artrrr lyl t1q

Pl,iur anrl c.lcfirrr:i iriurc:

A.) AiLl cundr;milrittltl rt:lit's shgrrrn on the plan utxi rir:sclil:ec1 in tile Declar*l.ion.Dxrlt'tsive use clornr',rr^1,,un: tbr Pcssessior, r.rscr anr.i c,J.yme'[ ,f r.]r'sr: a.rr:asclesillr:nted on l:he pj.arr arrqi cierl.ir.recl irr !lrr: Declal.ation.

Norr.r:rrlcj rr sj r,c easgnt errt fn! us:, en ioymerrt, ingrc ss, egrc ssto thr,'',)otrtnon Area us shorvrl on tite PIan nnd cfi:scribeci irrAll cas,::ur er"l ts as cle.l-j:ncd in thc, Dr:<;)rrlution.

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fol: u sc, lr:nJ<lynrelr l:, lrrgress,o11 thc PIarr a.rrcl <;lescr.il:ccl innr: Jrcr'cina bclvt:

vc Ltse cla-senletits, as shotvn on,nnl).t to l)arccI One her.einaboveti:e l)lgn and describecl.lbr t.he por;rifrssioD, Lls(t

in thc l)ec.lar,alion,Itnd t:nJ<>1't1er:r(: of :

rlpl)ur

,^) Storr.rge Area S-14g9

!,t>L OZ0, Block

J,ot O(r0, Blo<;lr

07717 (portialt - cu t.tcnt krx .ye,arJ

077il (firrrrre frrx yenr!

116

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ffiv

The llono

San Franci

San Franc.i

RE:

Dear.ludge

please find asent today, sayinglhirn to para

at the hearirrg.as to either hi

proposed

original and

.ISM/Enclosurescc: Archibald

JuL z 6 t$ll

McKAY dL LEONGATTo]RNETS AT LAw

2175 N. CelrFoRNrA BLvD., SutTE 7?5lVA LNUT CR EF:K, C,{Lt FoRNT 941S96

TELEpfi orir 192S) 932-609SFAcsrrf rLE (9:!S) 932-S4J4

Departmerit

400 McAllis

July 26.2011

Peter.L BuschI

Superirrr CourlStreetcA 94102

Coombs, et al. v, Archibalil Cunningiram, et al,

pprrova.l or disapproval of such order.

20' 2011 you granted petitiouers' n)otion for appointment of a receiver. ljnclosed

#l:i:*i:';r1,ff::1i T:.*ul': Tliie on suchrmotion. rr," p.opo,,d orcrer was

;'i;,#;";,::jilli;i:f:i;f""":l::":,*:Tg.^o,T:ll *" on" p,",iou,r;y p,oui.[j ,i ni,". r rhin poinredt5 of the order, where I added ranguuge consiste'iwith rhe .,","#"il;lr:"#::::glillT*::l :l"ln is enclosi:d. Mr. cunni'gham r,u, noiresponde<J tuither

OnJ

'lhe r fur ob.iection having expired, r am submitting thiis order fbr yoru.signatwe. If trre

::,:::i1l^y:ll-1.]:rt,please sig'and date ttre .rder and hau. you,. cterk fiJe thea contbnned copy ro our olfice iithe encros";;,;l*;;;: #;#Hil::have any questiotis, please dlo rct hesitat,: to cr:rntact ttre undersigned.

Sincerely yours:

McKA't' & LEONG

;,,;.?''{&EffitT uffu

ngham (w/enclosure)

117

117

ffiataRe: OrderFrom: "Scott

To; narch c

Arch -

Lrcok at paragr

J. Scott McKayMCKAY & LEON

l*5f{ALt BtJgtr'tgSs

y' <scott@mckayleong law.com >" <archcunnghrn@yahoo.com >

6 which was added.

Atttornelys At Law

<scott@mckayleonglaw.com>

"luly 20, 2O11,8:12 pM

Page 1 of2

Wednesday, )uly 20,2011 9:03 pM

2175 Nofth Cal Boulevard, Suite 775Walnut Creek. 94596Telephone -{i095Facsimile: 92S -5434

*- On Wed.7 1, a rch cu n n in g ha m <a rch c u n n g h m <@y a h o o. corn> wrote :

From: arch m <archcunng hm@yahoo. com>Subject: Re:-fo:

"ScottDate:

It4r. McKay:

Tlris looksrny und

conditionedand that is setcopy of the trar clarify the

y like the "order" y.u submitted betbre the hearing. At the hearing, it wasg that the judge macle tlre granting rf any recei.,e,,ship contingenr uporl ormy right to an undertaking. I have a rigirt to an ,underJa-r,dng/appeai

bonda hea.ing on August l6th. your "r--,rderi'fails t<l rcflect that. I have oldered

f 'f"r.-Tli::t to this order and retuse to sign ir. perhaps or r,* p*" heari'g

r ls Ire'eded.

Archibald Cu ngham

From: Scott <scott@mckayleong law.com>To: arch cunni <arc;hcu nn ghm@yahoo.com>Sent: WednesdSubject: OrderArch -

, July 2C), 201i 1:12 ptli

Here is tlre o Itl you beliet,e that this does nrct conforrn to the court's order, let me knowScott frrlcKay

inrmediately. 'wise please sign it and return it to me. J.MCKAY & L NG Attorneys At Larv2175 North Cal ia Boulevard, Suite 775Walnut Creek, A 9'4596Telephone: 925 32-609s

http:i/us.mc8 I5.nr .yahoo.com/mc/showMessage?:sMi <):9&fid==%o2s,I.0soA2:;40search&f. .. 7 /zslz01l

118

118

EXHNBTT D TO RESPONDENTTS'MOT'ION TO DISIMISS APPEAL

EXHIBTT D TO R]ESPOI\DIINTS'MOTION TO DISMISS AP]PEAL

119

119

TENANCY IN coMMoN AGFIEEN/IENT FoR 1487-1489 Mc.ALLIllrER STREET PAGE 31

THOUSAND Al{D 00/100 DOLLARS ($5,OOO.OO) as liquidated damages in addition to all otherpayments due under this Agreement. Ttre Parties agree that a po.lion of t.he loss and extraexpense irLcurred by the non-Defautting Cotenant asr a conrsequence of a Default would bedifficult to asc,r:rtain and that this amount is a reasonable estimate of such loss and extraexDense.

D. No Stay or Cur,e of Default. The "Stalr" artd,f or "Cure" proceduLres described in connection with,{ctionable Violrations are intended to be the exclusive rneans 1br a Party to contest or suspendra.n alleged Actionable Violation. If a Party fails to avail leim/herself of these procedures, he/sheshall not tle entitled to dispute or conte:st the occurrence of the Actionable Violation, or tosuspend or challenge the imposition of the Default remr::dies pe:rmitted by this Agreement.

I4.7 FORCED SALE.

.pefinitions Applicable to Forced Sale and.Foreclosure. The follor,ving initially cerpitalized nounshave the meanings set fcrrth below rvhr:never used in thr:: Aqreernent:

(1) Offerine Date. The "Offering Derte" shall be the first (lst) business day after thedetermination of the Appraisecl Val le of a Defaulting Cotenant's Cotenancy Share.

(21 Offe,rinq Price. The "Offering Price'" shall be the price at which the Defaulting Cotenant'sCotr:nancy Share is ofI'ered for sat,e at an-y particular tinte. The Olfering erice on theOffering Date shall be the Apprarsed Value o1' the trefaulting Cotenant's CotenancyShare. If the Defaulting Cotenant's interest in the Property is not subject to a ratifiedpurr:hase contract on the thirtieth (30th) day that a particular Offering Price has beenin effect, the Ofiering Price may be reducecl up to ten percent (1cry,) by the otherCott-'nant.

Distlosition Expense. "Disposition Expense" shall be the sales commissions, transfertax and cust.omary seller r;losing costs in the er,'ent of sale of the Defaulting Cotenant'sCotenancy Share.

Cotenant Equitv. "Cotenant Ec1uitr,," is the differr:nce between tl-re Offerirrg Price and theDefeiult.ing cotenilnt's Shared Debt Percentage of'the Shared Mortgage.

Intril Group Oblieations. "lntra-Cjroup Obligat.ions" shall be the amounts which theDefaLulting Cotenant ou'es the't'C or another Parrtl, s6"il-Lg from the following liabilities:

(al Outsl.andins Monetarv Oblitrations. All sums owed by the Defaulting Cotenantunder this Agreement;

etutstandine Service Obligeltions. The reasona.ble cost of fulfilling all serviceobligations of the Defau.ttinpl Cotenant un,Cer this; Agreement;

(3)

(4)

(5)

(b)

(c)

(d)

Advanced Amounts. An1' sums adrzanced on behzrlftogether with simple interest on such sums at theleLw; and

D'amaqes. Any outstanding danrages or lossesActionable Violation inclludirrg late charges, peneLlties,at.tornev's fees and court costs.

of the Defraulting Cotenantmaximum rate allowed by

which resulted from anfines, liquidated damages,

(c) September 14,'2OO7 by D. i\ndrew Sirkrn.connection with any transact:Lon ol.her than

An1, reprocluction or use of this document, its content, or i1.s format inthe one described rt:quires tLLe written cons;ent of the author.

120

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TENANCI'IN coMMoN AGFIEEMIENT FoR r487-r489 Mc,A.LLItirER STREET PAGE 32

Non-De.flaulting Cotenant Note Ter_ms. "Non-Dr::faulting Cotenant Note'Ibrms,' shall bethe terms of notes payilble to the l C or to a nor:L-Defaulting Cotenant under this Sectionand sha.ll be as fbllows: Interest cn SUCh notes shall accrue at the rat.e of eight percent(8o1,) per annum, interest and prin<:ipal shall be fully arnortized. over a period of three (3)years, due and payable in thirty six (36) equal rrnonthll, installments. Any such note inwhich tlee obligor is not the Dr:fau Lting cotenarrt shall be secured by a deed of trust onthe Deferulting Cotenant's former irrterest in the property.

Defaultins Cotenant Note'Iernns, "Defaulting Cotenant Note Terms" shall be the termsof a notr:l payable to the Defauttin5l Cotenant ur:Lder this Section and shzrll be as follows:Intcrest on such notes shall ar:crur: at the rate of eight percent (B%) per annum and bedeferred to maturity, eill interr:st i:Lnd principal shall be due and payable after hve (5)years, and such notes shall be se<:ured by a deed of trust on the Defaulting Cotenant'sforrner interest in tl-te Propert,y. Deeds of 'llrust securing a note payable to theDetraulting Cotenant shall be recorded after and subordinate to all cleeds of trustcreated under the preceding Subsection.

Notice of Forced Seile. To cause a F orce rl Sale, the rLon-Defilulting Cotenarrt shall il provideNotice to the D,efaulting Cot.enant (the "Nr:,tice of Irorced Sale") including (i) a description of theDefault underl'ying the F'orced Sale and (ii) a statement that he/she intends to cause theDefaulting Cotenant's Cotenancy Share to be sold.

C. Valuation. Not later than five (5) calendal days from the Effective Date of the Notice of ForcedSale, the rLon-Defaulting Cotenant shall jnitiate determination of the Appraised Value of theDefaulting Cotenant's Cotenancy Share.

Listins for Forced Sale. Beginning on thre Offering Date and continuing r,rntil the DefaultingCotenant's Cotenancy Share is sold, thc' non-Defar"rlt.ing Cotenant shall list the DefaultingCotenant's Cotenancy Share for sale eLt thr:: Offering Prir:e with a licensed real estate agent whois a member of the local Mr"rltiple Listing liervice. The Defaulting Cotenant's Cotenancy Shareshall be listed lor perio<ls of sixty (6Ct) ca.tendar clays, with a sales r:ommission of six percent(6%) pavable fr<,rm sale procr:eds. NotwithLstanding the above, if and when the Offering Price isreduced to an amount which is les,s tl Lan the surn of the: Disposition Expense plus theDefaulting Cotenant's Shared Debt Percr:ntage of the Share<l Mortgage, the listing shall bet.erminated. A Defaulting Col.enant in possession of a L,tnit during a Iiorced SeLle shall allow theIJnit to be shown to prospect.ive purchasers following t',venty four (241 hours notice.

4\cc-eplg4g of ,Cffers. 'The non-Defaultir:.g Cotenant shall ar:cept any purchase offer "vhichrneets all ol'the following criteria;

Price. It is at or above the Offering Price;

Loan Asisumption. l'he purc.haser assurnesPercenterge of the Shared Mortgage;

the Defirulting Cotenant's Shared Debt

Dorvn Pavment. The purchaser milkes a r:ash rlown piryment which equals or exceedst.he lesser of the lbllou,ing amounts (i) the Cotenant. Equity, or (ii) tenL percent (10%) ofthe Offer-ing Price;

(4) Balzrnce of Purchase Price. If the Offering Price exceeds the sum of ttre down paymentand the Defaulting Cotenant's; ShLared Debt Pr::rcentage of the Shared Mortgage, thebalaLnce (the "Total Not.e Amou.nt") shall be pairl in notes payable as described in thisSecl.icln;

O September 14, 2OO7 by D. Andrew Sirkin. Any reproduction or use of this d,ccument, its content, or its format inconnection with any transact.ion c'ther than the one descriLred rt:quires the wril-ten consent of the author.

(6)

17l

B.

D.

E,

(1)

(21

(3)

121

121

TENANCT'lN coMMoN AGREEtr/IENT FoR 1487-1489 Mc.ALLiltrER STREET

F.

(5)

(6)

(11

l2l

PAGE 33Close o1' Escrow. It provides fcrr close of escrorv rvithin 1-hirty (30) calendar days; and

Other Contingencies. It contains no continlqencies or demands rvhich are not inaccordance with local r:ustom.

ln the event multiple offers simultaneously meet these requirernents, the Defaulting Cotenantshall select the most advant.ageous ofl'er.

Non-Defaultine cotenant's l?iqht l'o Prrrchase. The non-Defaulting Cotenant shall be permittedto purchase a Defaulting Cotenant's Cotenancy Share ilit the Offering price at any time. A non-Defaulting Cotenant may exercise this ri51ht to purchase by providing Notice to the DefaultingCotenant of hisr/her intent to do so beforr: or within fcrrty eight (48) tours after receipt of anypurchase offer' This Notice shall be binding ancl l'ailurr:: to conrplete the purchase on the termsand conditions and within the time frames stated in l-tre offer shall be an Actionable Violation.lf a non-Defaulting Cotenant fails to provide the Notice, he/s.he waives the right to purchase.No further purchase rights shall be creatr:d as a result of renegotiation of seLli: price or termslbllowing inspections or other. disclosures.

NSq:Dg&Ultins Cotenant's Risht To REis!.L purchasers, Befor,e zrccepting an1,, purchase offers,the non-Dr:faulting Cotenant may obtain a statement of the financlaf quatifications of theprospective transferee including a loan application, credit re;port, ancl, in the case of a self-ernployed person, the two most recent yeurs' Federal 'l'i:rx Returns, and arranfle an interview ofthe prosper:tive purchaser. 'lhe non-Defaulting Cotena.nt may reject a prosiiective purchaseron any bas;is which is (i) reasonable and (ii) not proh:ibited by law. To exeicise this right toreject, the non-Defaulting Cotr:nant must :rotify ttre Defaulting Cotenant of the rejection 1yitfrinfour (4) busines;s deivs of their receipt of lrhe purchase offer. 'l'his Notice murst state the basisfor the rejection. The non-Defaulting rlotenant r.l'a.ives the right to reject a prospectivepurchaser if the: Notice is not provided in time.

DtsEtnul]p:r of Cash Proceeglg. All czrsh proceeds frorn a Forced Sale shall be distributed asfollows:

Disposit:ion lDxpenses. They shall first be used t,o p3)r any Disposition F)xpense;

lntra.-Group Obligations. Any balaLnce remaininlg after payment of Disposition Expenseshall be used to pay Intra-Group C)bligations; llf the IrLtra-Group Obligations are ovu,edto rnore than one (1) Perrty, or to the TC collecl.iveiy ancl to one (1)or rnore partl'(s), thecash shall be split anlong such oLrligees in proportion to the respective obligat.ions toeach of them; ancl

G.

H,

I.

(3) DefaLulting Cotenant. Any bala.nce remaining zrfi-ershall be paid to the Defaulting (lotenant.

Distribution of lrlote Proceeds. To the ,3xtent an)l pralfisp sfpayable, they shLall be distribr,rted as followrs:

payrent of Intra-Group Obligations

the Offering Price is paid in a notes

(f) Non-Defrrulting Cotenant. If the r:ash proceedls have been inadequzrte to seitisfy allIntra-Group Obligations, a single rrote pa1'abler shall be executed by the purchaser infavor of all obligees collectivell' on terms :;atisfi;rctory to the non-Defaulting Cotenant.The amount of such rrote shalll be the lesser of (a) tht: 'l'otal Note Amount or (ii) therema'ining balance of t.he Intra-Group ObliS;atiorLs. The obligees shall agree to split theproceeds of such note in proportion to the respective obligations to eachr clf them.

O September 14,2OO7 by D. ,\ndrew Sirkin.connection with any transact.ion ot.her than

or use of this document, its content, or i1.s format inrequires tLLe wril.ten consent of the author'.

An1. reproductionthe one describecl

122

122

TENANCY IN coMMoN A IENT FoR 148i,-r48g McALLT STER STREET PAGE 34(21 Dellaultins cotenan-t. If the llotal Note Amount exceeds the remaining

Intra-Group obligations, a note ;rayable fbr such excess amount sh:rllthe purchaser in felu,or of thr: Dr:faulting cotr::nant on the DefaultingTerms.

balance of thebe executed byCotenant Note

Deficiencv. If t.he Cotenant Equity is lessr than the amrrunt of the Intra-Group Obligations, theDefaulting Cotenant shall execute a note llayable for thLe differ,:nce to all obligees collectively onthe following terms: Interest shall accrur:r at the rate of eight percent (B%) p6.

"n.rr-, interestand princiPal shall be fully amortized over aperiod o1'three (3) years, Aue anct payable in thirtysix (36) equal monthly installments.

'Transactio.n Costs and propertv Taxes. All work required lty Governmental Regulations inr:onnection with the transfer shall be completed trefore close of escrow, and all associated MRICosts shall be allocatecl as proviiled in this Agreement. All ot.her costs associated with thetransfer strall lbe allocated between the transferor and tranrsferee(s) in accor-dance with thecustomary practice for allocating such costs betn e:en bu1,er and seller of real propertyprevailing in San Francisco at the time of l.ransfer of titte.

Close of Er;crow on Forced Sale. Close o: Escrow shalil be the clate specihed in the purchaseof r. On or belore the Close of Escrorv, ttre following shall be cleposited into Escrow:

(1) Purchaser. 'lhe purchaser shrall rleposit (i) thc down payment ancl a.ny closing costscustomerril.y paid by a purchaser irt cash, and (:ii) notes payable on the terms clescribedin this Section; and

Defaultins Cotenant. The Defaultirrg Cotenant shall sign and deposit (i) a fully executedgrant dt-'ed conveving his/her intr:rest in the Propert.y to the purchaser, lii; ."..o*instruction in accorciance with t-he terrns o1' this Agreement, (iii) ali documentsnecessalry to fulfill the requirements of this z\greem,ent, and (iv) any note payablerequired unrler ttris Section.

l4'8 NoN-JUDICIAL FORECLOSURE. For the purpose o1' securing performance of each of theobligatiorrs desr:ribed in tleis .Aigreement, eilch Party hereby grants, transfers and conveys h1s/her ownershipinterest in the Property to Fiderlity National Title Insurance Company, ia corporation, as tiustee, and to each ofthe other Parties, as benellciitries, under the terms anrl 6ep6ilions of that certain fictitious deed of trustrecorded October 23, 1961 ir-r Book A332 at Page 905 of the Ofllcial Records of San Francisco County,CalifornieL which are herebf incorporated b1, 1s1sr,'..'.. In the errent <lf Defatrlt, the non-Defaulting Cotenantshall har"e a lien on the Defzlulting Cotenirnt's ov,inership inlerest in the property to tl:re extent of theDefaulting Cotenant's Intra-Group Obligations. 'fhe non'Defaulting C,ctenan1., or an agent on his/her behalf,is grante<j the power to s;ell the Defaulting, cotenant's;nterest in the Propr:rty at a public saie conductedpursuant to the applicable provisi<lns of Cerlifornia law for exercise of i;L non-jr.rdiciai power of sale in zr deed oftrust. The non-Defaulting cotr:nant is authc>rized to bid at such sale.

L4'9 JUDICIAL FoREcLosURE. For the purpos€: of securinig performance clf each of theobligations described in this,Agreement, ea<lh Party hereby p1"d1g"" htis/her interest to the other as securityfor such obligations and ackrLowledges that such irrteresi ii subject to foreclgsure rights. tn the event ofDefault, the non-DefaultinLg Cotenant may be proceerl wi':h judicial forreclosure or judicial execution once theobligation is reduced to judgment through arbitration.

14'1o EVICTION. "Er,'iction" rIearIS any 1.ype of action to rec,cver possession of the propertv from aParty or ia Party's relatives, guests, tenan.ts or subtenetnts. A Delaulting rlotenant's right to occupv anyportion ofthe Property unider this Agreemenl- sheill terminate imme<liatelylrpor. Default, and the DefaultingCotenant and such Cotenant's relatives, guests, teneLnts or subtenanl.s shall be subject to Flviction fiom thepremises following service of any legally required notices. By executing t.his Agieement, each Cotenantrtlsenfcmhe"la ottnT'-? uvvLLrrruL ' ,-, ouw7 by D. l\ndrew Sirkin. Any reproduction or use of t]ris dc"ar".ta"t, its content, or its format rnconnection with any transacti.on other than the one describ,:d requires th,e written consient of the author.

J.

L.

l2l

123

123

EXHIBIT E, TO RESPONDIiNTS'MOT'ION TO DISMISS APPE,AL

EXHIBIT E TO RI0SPOI\DIIINTS'MOTION TO DISMISS APIPEAL

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IGVIN SINGERSUPER]OR COURT REC:EIVERRECEIVERSHIP SPECIAI.ISTS795 Folsorn Street, 1't Flo,rrSan Francisco, Californ ia 9 4 | 07Telephorre: (,+l 5) 848-2984Fax: (415) B.4tl-2301E-rn ai I : Kev iL n@Receiverr;hi pSpecial ists. r;om

Property Address:1 487- I 489 Ivl cAl Iister StreretSan Francisco, CA

MICHAIII- COOMBS; TAMARA WOOI)S,

petitioner(s;),

\/

ARCHIBALD CTINNINGHAM; and DOIjSto 20, inc,lusive,

'urf,rvsk+,,fu.DAUG 2 0 ?au

SUPERIOR COUIIT CIF THE STA'TE OF CALIFORNI.A

COU}ITY OF SAN FRANCISCO

Respondent(s,),

f'he ttrotion of petitioners Mi,;hae, Coornbs and TamareL Wcrods for reconsideration ofthe Court's June 9, Z0l4 ,"Ord,er

Re:: Receiver,s Motir)n For Writ of possession,,, callte ot.l

regularly' for hearing on .August 5,207r[ in Departm,snt 501 crf this Court, the Honorable

Ronald Jl' Quidachay, Judge, presiding. J. Scott McK..ay appearerl on behalf of petitioners

Michael Coombs and Tamara Woo<is, ,a.r'chibalci CunLningl.rana appeared in pro per, l(evinSinger, the Court appointed receiver in tiris matler', appeared on his own behal{'as receiver.

1

) CASF: NO; CI,F-I0-510760)

\n,L/) 1f+epffifor ORDI}R GRANT]ING RDC]E,IVER'S) tto'flrcN FOR WI{IT Ot- pljs.sBsdtox,,)

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The court having read arrd conside.red the moving, opposition, andl reply papers for both thereceiver's rrotion for a u'rit of possession, and for the,petitionr:r's rnotion for rcconsidefation

of the 0rder on the receiver's motion, a,nd the oral arlgument of th,e parties and the receiver.

and good cause appearing; therefor;

IT IS OR-DERED:

l' Petitioner, Michael Coombr; and Tamara Woods'motion tcr res.r.l4.rthe couft,sJune 9' 2014 "order Re: Receiver's lriotion lFor writ of possession,,,is moot,.l'lieReceiver's ll{otion for writ of Posr;ession is gr,arrted. Receiver has authority, to sell theproperty" Respondent interferes with Receiver's e;fforts to enforce the judgrnent and to sellthe ploperty In light of Responclent's non-cooperation no lesser means are feasible ftrrreceiver to be able to sell the propert,y.

2' A writ of Possession shall be issued as to the removal of Archibald cunninsharrfrom the prOperty locaterc at 1489 Mc.,\llister istreet, san Francisco, cA. g4115. Anycurrent tenant who is resicling on the property shalJ not be remcrved by this order or bv the

#'ffi Mffiry; qrfr ig,-{iK'HH rv^,./ f,(fnf,r @t"r#.#m,

I / \r

Judge of the Su;perioiCourt

Approved as confbrming to the order of the, coul.r:

Archibald Cunningham Dated

SEE EXHIBIT TT RE

COMPLIANCE'uvlTH CRC 3.1!|12

2

t+fro?osrEDl oRDIR

126

126

EXHIBIT F.' TO REST'O]\DIE,NTS'MOTION TO DISIMISS APPEAL

EXI{IBIT F TO IRIiSPOI{DIINTS'MOTION TO D]ISMISiS APIPEAL

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127

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EXHIBIT G TO RESPONDENTS'MOTION .fO DISMIiSS APPE,AL

EXI{IBIT G TO IT]ESP,O]'\DE,NTS'MOTION I''O DISMII;S APPEAL

129

129

From:Sent:To:Subject:Attachments:

arch cunninc;ham <archcunnghm@yahoo.c,cm >

Tuesday, February 03, 21115 Sl:02 AMScott Mr-Kay

In re Accusation b/f state Sultreme CourtM c KayAccu satio n Cov.d oc; State Ba rP F Rzzz2.d oc

Mr. McKay

Enclosed please find accusation filed yesterday lvith Suprenne C()urt...if I need to take that to the U.S.Supreme Court I will...also, I'm awaiting for the "police report" regarding the arrest (DA dismissedcharges though I wanted a trial and will continue to get arre:;ted Ltntil I do since the SF Sup. Ct won'tgive me a hearing on your frauds). lt seems there is another lawsuit lurkinq there....

A

130

130

ATTACHMENT B

ATTACHMENT B

131

131

Page 36

132

132

Page 37

133

133

Page 38

134

134

Page 39

135

135

Page 40

136

136

Page 41

137

137

Page 42

138

138

Page 43

139

139

ATTACHMENT C

ATTACHMENT C

140

140

·········-····--·-·-······· ........... ,._ .•.. _ •.........

K~yr(;:Rf,;l;!Y .QP. PARTY \.'\~Ti-fO'JT ATTOR!'JF:Y iNnme. S1au1 B;:w numb91 {Jr.ri arJdro~si

t'Vlll Singer Superior Court Receiver

1+-+zig55

795 Folsom Strt~el, I st Floor ! San Francisco. CA 94107

FI LE D T~:~>',.()Nt:r«. (415) 848·2984 r~xNO (415) 848-2301 "·MAu ~oDRE"' Kev inca)ReccivcrshipSpi.?ciul ists.com

:.. r~ c.R1~f~--~-~~~---. C~:J.... _ _.it.~DnMr:.~~T CRfl)r~o~, .. J:Z.J 1\~s1GNl:t! .. ~:~-~~~?~~? ..... . SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

1-i;m At:eREs1:. 400 McAllister Street ·~~·: i'J'.\ 4ri:,i;;s;\ f{()Ull1 1 03 ,;,, ·'-'m z•Pcco1

· San Fnmcisco. CA 94102 B!'<A~-:~· .. ,.1 --.;.M; .. .......... •·•·······-····-······· ·-·· -·-···--············· -·· ......... ,. ........ ··-·--·-······---···········-······ .... ·········- -·i

PLAINTIFF MICHAEL COOMBS: TAMARA WOODS

GEFENDr\NT: ARC! llBALD CUNNINGlfAM: and DOES 1-20. incl us. I I

Superior Cour1 of California County of San Francisco

SEP 2 3 2014

BY:CLE~!j2URT Deputy Clerk

80WMANUU

f ..... , ·--····-·· ... ·----------------...................... -----·· .... ---·-"·•· .... ! ......... _. ····----··--·-··-· ·---·-----i i C:J EXECUTION (Money Judgment) I GASE r1uMBE~. CPF-10-5 l (1760 I WRIT [{-] POSSESSION OF D Personal Property ' '

l OF l.L.l Real Property ~,·-·-· Limited Civll Case .. D Small Ctal;;;~·c;;;--1 CJ SALE Unlimited Civil Case D Other __ '.

"'•• "-¥-••··--····--• ''°"'"'MH•O""'-"'''"''" .. ""-''"---··-··H-M"--•••M•••'''''""''' ___ ,._ ... .,.-.• -,,,., • .,_,,,_,, '' ·--·--... •·---------·•-''""--------··••o••••rn----··-·· 1 To the Sheriff or Marshal of the County of: City and Cmmty of Sun Francisco

You are directed to enforce the judgment described below with daily interest and your costs as provided by law.

2 To any registered proce6S server: You are authori2ed to serve this wn! only in accord with CCP 699.080 or CCP 115.040.

3 '.fliam'1) Kc\ in Singer. Superior CoLtrt Rcccivw ':l thC; c::::-1 judgrnerit creditor J assignee Of record Wnose address IS St10Wl1 011 this form above ttle CDllrfS name

4 Judgment debtor (name rype of legal entity stated in Jtid_gmont if not 1; naWr{J/ .oerson, mid last known cWC/f&S.>J r--···· -, Archibald Cunningham, an individual 1489 McAllister Street San Francisco, CA 94115

L.____ _ _ __j

CJ Additional judgment debtors on next page 5. Judgment entered on (dnto).· f5 ... 'Z.O -I '-J1i-t. 6. ::::._-:-] JudgmenPre';Lwefo~~ J.t. 7

9. [~1-J See next page for information on real or personal property to be delivered under a writ of possession or sold under a writ of sa!<!

10 c-·; This writ IS issued on a sister-state JUdgmom

11. Total judgment $ 12. Costs after judgmert (per ~iiad order or

memo CCP 685.090) 13. Subtotal (add 11and12)

14. Credits

$

s $

.... ··-··-·-~~-·~· ....

15. Subtotal (subtract 14 from 13). $ ·-··--···········--····-···-·····-···· -16 Interest after judgment (per flied affidavit

CCP 685.050) (not .:in GC 6103.5 fees) 17. Foe for issuance of writ .. 18. Total (add 15, 16. and 17)

19. Levying officer: (a) Add daily intere'1t from date of writ

(ar the /<;gal rat~ on 15) (not on GC 6103 5 fees) of

(bj Pay direc:!y to court costs included :n 11and17 (GC 6103 5, 68637:

$

CCP 699.520(i)) S

20 [] Tl'>e amounts ca!led for 111items11-19 are different tor each deotor. DEPUTY CLERK These amounts are stated for each debtor on Attachment 20

c::;~:·~~~~~.:~·~~~ND~•.ti '··--·-----············-· · ·----·-····· ~AffM-------

,. ' 141

141

·- ----~------~

• _,

---~ PLAIN".IF'F' MICHAEi. COOMBS: TAMARA \VOODS

CPF-10-510760 ·u1:.H:NL>ANT: ARCHIBALD CL'NNINGHAM; and DOES 1·20, inclus. ___ _..., ____ .. _ ..... ____ ..... ,, ___ ~-·····--..... ~······ .. ·--____J

- Items continued from page 1-21. L. J Additional Judgment debtor {name, type of legal entity stated

in judgmenc if not a natural person. and last known address}: r-- -------.. ,

' .

I ,t) '· , J ... f''

. jl'~i =.:i ;: 22 c:·J Notice of Hie has been requested by (name 8/ld aodress): ['"" ____ ,,_

r~··-·· .. ··~·~

2.3 . _ _,,.: L ......

I .&:-

n :r, ri·. l'I, "Ti c > (f;. rr,

Joint debtor was declared oounc by the i~idgrnent (CCP 989--994) ;: ~ ' ;.· a. on (date} ii ""' (flator . ,_ :~ 0 r,;; tJ name. !ype of ieigai entity slatei:: in judgment if '1Clt a b. f'&rr.e type of legai Elntity siatea in JUdgmen~ot f) :7' c

r.aturai perao•1 ant:I last known addro&& of je1nt debtor: a 11aturai p(!rson. and laat known address of~1t clebt)'.lr.:.1 ···----, r---- ...,.,---·-··:;--r··

I f ·~

_ __j [_ _______ _

i: ~ ___ ] Hddit1onal costs against certain joint debtors (itemize}:

24. Cl'] (Writ of Possession or Writ of Sale) Judgment was entered for the following:

a.C?..J Possession of real property The ccrnplaint was filetd on (date) 09/2t)/ I 0 {Check (1) or (2)):

(1) 2J The Prejua9ment Claim or Right to Possession was served 1n compliance with CCP 415.46. The judgment includes QI! tenants. subtenants. named claimants. and other occupants of tho premises

(2) CJ The Prejudgment Claim of Right to Possession was NOT served in compliance with CCP 44 5 46 (a) S was the daily ren!al value on the date the complaint was filed (b) The court will hear objections to enforcement of tne judgment under CCP 1174 3 on the foliowing

dates (specify):

o CJ Possession of personal property. = If delivery cannot be haa. then for the value iftemize in 240) specified in the judgment or supplernental order ··-1

c. _.i Sale of personal property. d L~ .. -J Sale of real property

e Dcsc:wt1cm uf prooe:1fy: ,-, Archibald Cunningham, an individual, excluding any curre·nt tenant residing on the property

r·· _ ----~-4~_9 ~cAflist~.'.'_~-~r.6.:!'._~_~nfrancis~o. C.A:~'.:115 .:·/ _ ····--------·--·- .. · ______ ..... -....... . . .•.. , NOTICE TO PERSON SERVED

WRIT OF EXECUTION OR SALE Your rights and duties are indicated on the accompanvin9 Notme of L&vy (Form EJ-150) WRIT OF POSSESSION OF PERSONAL PROPERTY. If the levying officer is not able to take custody of the property. the levying officer will make a demand upon you tor the property. If custOdy is not obtained follow1ng demand. the judgment may be entorceCJ as a money judgment for the va1ue of the property specified In the 1udgment or in a supplementalbrder. WRIT OF POSSESSION OF REAL PROPERTY. If the premises are not vacated within five days after the date of serv'ice on the occupant er. if service is by posting, within five days after service on you. the levying officer wiii remove the occupants trorn the real property and olace the judgment creditor in possession of the property .. •Except for a mobile home, personal property remaining on ihe pre.mises will be sold or otherwise disposed of in accordance 11'\ith c:cp 117 4 unlen you or the owner of the property pays the judgment creditor the reasonable cost of storage and taKespcgsession of the personal prop1trty not later than 15 days after the

; time the judgment creditor takes possession of the premises. \ · ·, , .. A Claim of Right to Possession fom1 EJr:companios /his writ (un/fJ6s the Swnmons was served in compliance with CCP 415 461 ---· .............. _., ....................... -----·-"""·-····-······----··---.. -~-----~· .. -·-·----............... ----..,;-.---······-·· ---.. ··· . ···-·---·-·----·-·'"········ ·------. , .. ·---·---......... ..

142

142

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ATTACHMENT D

ATTACHMENT D

144

144

I KEVIN SINGER SUPERIOR COURT RECEIVER

2 RECEIVERSHIP SPECIALISTS 795 FOLSOM STREET, 1 sr FLOOR

3 SAN FRANCISCO, CALIFORNIA 94107 TELEPHONE (415) 848-2984

4 FACSIMILE (415) 848-2301

F I. L E D Superior Court of California

County of San Francisco

SEP 2 9 Z013

CLE :-<OF THE COUR SY: -.&{ JO C< ~[M.M..

E-mail: Kevin@ReceivershipSpecialists.com Deputy Cler

5 Property Address:

6 1487-1489 McAllister Street San Francisco, CA

7

8

9

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO 10

11

MICHAEL COOMBS; TAMARA WOODS, CASE NO: CPF-10-510760 12

13 Petitioner( s ),

14 vs.

15 ARCHIBALD CUNNINGHAM; and DOES 1 to 20, inclusive,

16

Respondent(s). 17

18

19

20

21

22

23

24

25

26

27

28

SUPERIOR COURT RECEIVER'S REPORT FOR AUGUST 2014 AND NOTICE OF INTENT TO PAY RECEIVER'S FEES AND EXPENSES

NOTICE THAT AUGUST 29, 2014 WRIT HAS BEEN REVOKE AND SEPTEMBER 30, 2014 HEARING FOR CLAIM OF RIGHT OF POSSESSION FOR HUMBERTO RUIZ IS MOOT AND SHOULD NOT GO FORWARD

DEPT: 501

Judge: Hon. Ronald E. Quidachay

Court: San Francisco Superior Court 400 McAllister Street San Francisco, CA 94102

Receiver's Report 148

145

145

RECENERSHIP SPECIALISTS STATE AND U.S. FEDERAL COURT RECEIVERSffRUSTEES

SUPERIOR COURT RECEIVER'S REPORT FOR AUGUST 2014 AND NOTICE OF INTENT TO PAY RECEIVER'S FEES AND EXPENSES

Presented By: Kevin Singer, Superior Court Receiver

CASE NO. CPF-10-510760

MICHAEL COOMBS; TAMARA WOODS,

Petitioner(s)

vs.

ARCHIBALD CUNNINGHAM, and DOES 1 to 20, inclusive,

Respondent( s)

Judge: The Honorable Ronald E. Quidachay

Property: 1489 McAllister St., San Francisco, CA A Condominium Residence

September 25, 2014

Dear Vested Parties:

The Court appointed me Receiver over 1489 McAllister St., San Francisco, CA (the "Property") for the purpose of selling it to satisfy the April 13, 2011 judgment of Michael Coombs and Tamara Woods (collectively, "Petitioners") against Archibald Cunningham ("Respondent"), et al. Although I have an appraiser and a broker at the ready, Respondent has barred access to the Property, thus prohibiting a market rate sale.

As previously reported, on August 5, 2014, this Court granted Petitioners' motions for attorney fees, and granted my motion for a writ of possession. Per this Court's instructions, Petitioners' counsel prepared a proposed order on Petitioner's fee motion and I prepared a proposed order on my writ request, which the Court approved on August 19, 2014. Subsequently, my staff prepared a writ in keeping with the Court's order that the Court clerk signed ("Initial Writ"), and presented to the Sheriff to set a lock-out date (See "Exhibit l" attached).

On September 23, 2014, in an ex parte motion before the Court, Defendant contended that the Initial Writ was inconsistent in that it contained ambiguous language that could lead the Sheriff to remove the tenant, and not just Respondent Archibald Cunningham. Although the Court denied Respondent's motion, out of an abundance of

2

Receiver's Report 148

Corporate Headquarters Los Angeles 11150 W. Olympic Blvd. Suite 810 Los Angeles, CA 90064 Tel: (310) 552-9064 Fax: (3 I 0) 552-9066

San Francisco 795 Folsom Street 1st Floor San Francisco, CA 94107 Tel: ( 4 I 5) 848-2984 Fax: (415) 848-2301

San Diego 4370 La Jolla Village Drive Suite 400 San Diego, CA 92122 Tel: (858) 546-4815 Fax: (858) 646-3097

Sacramento 980 9th Street 16th Floor Sacramento, CA 95814 Tel: (916) 449-9655 Fax: (916) 446-7104

Las V1;gas 7251 W. Lake Mead Blvd. Suite 300 Las Vegas, Nevada 89128 Tel: (702) 562-4230 Fax: (702) 562-4001

B&!!Q 200 S. Virginia Street Suite 800 Reno, Nevada 89501 Tel: (775) 398-3103 Fax: (775) 686-2401

~ 40 N. Central Ave. Suite 1400 Phoenix, Arizona, 85004 Tel: (602) 343-1889 Fax: (602)343-1801

146

146

caution, I had the Initial Writ re-issued, signed by the clerk ("Re-issued Writ") and presented it to the Sheriff (See "Exhibit 2" attached). Therefore, since the initial writ which is identified in "Exhibit l," has been revoked, the September 30, 2014 bearing for Claim Of Right To Possession and Notice of Hearing for Humberto Ruiz is moot and should not go forward. I expect that this Reissued Writ will succeed in removing Respondent Archibald Cunningham. Once he is removed, I expect to be able to have the Property inspected, appraised and marketed for sale.

As noted previously, Respondent Cunningham named me in a new suit, along with Judge Quidachay and other judges of the Superior Court, the California Supreme Court and the California Court of Appeals. The gist of Respondent's claim is that the justices are not doing their jobs by allowing me in effect to practice law without a license (even though everything I have filed is in pro per, which does not require attorney representation under the law and notwithstanding that court "receivers" are permitted to seek instructions from the court). My Court-approved counsel, Ron Oliner, has informed me that Cunningham has submitted a number of amendments to his suit.

Please find the following additional documents:

1) Exhibit 3: Financial Statement for August 2014; and 2) Exhibit 4: Receiver's Billings for August 2014.

As always, I encourage input from all parties and strive to obtain mutually acceptable and beneficial solutions to the issues before the Receivership Estate.

Zesp tfully Submitted,

1

,......--~ ~0 Kevin Singer, Superior Court Re · er

3

Receiver's Report 148

147

147

' ..

EXHIBIT 1

148

148

' .

I. i~~;~~Nr··s'~~g~T; ;;,, r~our Ii f'TOH'i~:., NV;;,~ ·:~;,~;i""a; ~~;;,'/,~;~;~j·;tu-;;,;~i .... ·-··-·-----.. ·---·--.. ···r

- I I Sup.:riPr Cullrl R1;;c.:i:ivt.>r '

; 7<,15 l·-\>l~\Jlll Stn:•t:t. I :>l Flour S<tn 1:ranci!KO. C.'\ IJ4 I 07

·rpe.D:;r·v.. (41))848-2984 f<.<N''.I (415)848-2301 f"M•ll A('l0'1fl·' K-ev j n(uiRec.c·i·\i(.WShipS rec iul·iS·IS;(.'.\)111

•. r.;:· · .. ~.- ':>:.~~t~~. f.:'.~~ 1 ·.:· ·-·~1 .... ~'.:1~~Mr.t:t!_":~!_:?~?~ ... ~-7=J~:~~?~l;~-~~~f:~~7'.~~(J . SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO

:niti:n•rm,,F.s~ 400 McAllister Str~ct "'~ "'~' ,,r.:1r.F!'1: R(l0lll I OJ "''" •.·mz11 .. .::otJ" San l·rnncbt•<.l. Cl\ 94102

\~IC'l IM::t. COOMBS. '11\l'vli\l~l\ \VOC)l)S ····---!

r·:::Ft-:Nc>ANT .·\RC ·1 f113i\I D Cl .INNl1\CiH1\!VI: and DOES J .. 20. indw, I r·-·

L__ . .i EXECUTION (Money Judgment) ........ J.-·i:xri·Er;;;;nr.~

i

I WRIT

OF

CPF-10-51 <17()()

L.i.J Real Property CJ Limited Civil Case [_J Small Claims Case

'·

[j] POSSESSION OF CJ Personal Property i·-··· - --··----------.... ----C .. 1 SALE [( J Unlimited Givil Case c.=:J Other, _____ ...... _,, ....

. . . . . ..... ···--- -···· . . . .. . .... - ----··--~-· .......... ' ................ ·---·-··-.. •···· -· ..•. ,_ . .,_ ·--·-·· ... ---·-. ··-· .. . . . . . ··--·· .. ··----· .. . To the Sheriff or Marshal of the County of: Cit)' ancl C\JUl1()' of ~nn Francisco

'tra; art! :Jirecl•')d to ·~nlmcc' t:10 Jlldgmant descritiecJ bek>w with daily interest ano your cons as prtivided by l?.w

i.. To any registored process server: You are aut11onzed to serve 1t1is writ only in accord ~fith CCP 699.080 or CCP 7i$.040.

1rvomo} 1,~\ 111 Singer. St1perior Court Reccivt•r ,, thi; r::: judgment creditor EJ assignee of record Whose address is shown on this lorrn above the court's •lame.

~ Judgmant dnbtor (name rype of legal <mtify slalecl in _11.'!'.'',?"ll"li' ii mir "' na!urnl purscJn, uncJ last known . ~·J.:J: it'~· -·~.lj) r·· .. ·-- --.. --1 1

Archit,ald Cunningham. an individual ' '148!::l McAllister Street Sm1 Francisco, CA 94115

I !.. ...... _.

'.~- 'i AdcJrt1c:nal jt1dgm<~nt debtors on next page

5 .Judgment entered on r<lmol · g ,, l D ·•• 1 '-(it. • 1 .1uctgmE111Re~we&'o~msr i·t·

Notice of s~lc u·icJer ttif:i .·mt

c. ~:./) t1;is '''·'' b'Jan '"Q1.ms1m1. t:

b

9 ["lJ See next page for infc•rrnatron on real or person•il property tc !;ii;

t1elivered under a writ of possessron or sold under a wrrl of s:-Jle 10. l... ..... , This writ 1s •ssued tin a sister-state 11.1df.j!T1~~nt 11 Total :\1dgrnant $

12. Costs after iuLigmem irmr fiiod ort1er or

merno CCP 685.090) S 13 Subtotal (Cid'! i 1 ami 12) 3 ·14. Credits ·rs. Subtotal (subtract 14 from '1.3). ·15_ Interest aft<:1r juogment (per 1'1led affidavit

CCP 685.050) (not on GC 13·103 5 fees) ' 7 Fee for isi;1.11mce of writ . 18. Total (<;Cid ·1:; 16. and 171 19. Levying officer:

(a} Add daily intere,;1 from :late of wnt

(M flw l<iw81 m1e an ·15j ('lot o;• GC 6"103 6 feesj of

(b) F'ay Llirec\'Y to coul'I coo;t' incrurlod 1n 11 nnd ·1 i' (GC o10J.5, 6~63~;

s $ ...... _, ............. __ ... , ...... ..

$

CCP (i99.t>20fi)) S

20. [' '_]The <imoimts called fo · u1 items 11-19 am cJiFfere11t tr,r eacti dellte: OEPtJf.Y C.LERK These flrnounts are s111ted for each cJebtor on Att<1chrnent 20

~~~=;~;~-~~J.izv~4 c'"''1'::~~ ""'"" ·---·· ~'!~'5:~!?.~~~-~~ SERV~~:_se~-~:_~~~o~~~A,~gjfj!.1~~~~:.· ...

. ... ····-·-··--· .................... _ .•• - ... ----···· ......... _ .............. ~~1~1 .. 1 or l C:nc11> °' r~·vti r~r<.t< .• :ri""'· 5~ ooi;.. ~\:;v i'~ 1. um. ; Jlj •:1~' WRIT OF EXECUTION : .. ··

L:

149

149

,----f''LAlr~'Tirr- 1vii('Tii\f.T0)0 M nS:~~:\:\·iA"iv\'"\\;()oD 5-----------T- :;~.;~;·:~:,~:t;FR ______________________ e,1_~u-~

CPI· -1 IJ-51 tr!(ilJ

: -~--'t~:~.'."lllAN ~~l~~~~~J_>._£'_~~ '.:'J_N !NOH A 1~.'.-'~~1-~l. l_).~J!:;~--L~~-(~. i_1H:I us~_L ______ _ - Items continued from page 1---

21 ! __ ! Aclditional )L!Clgment debtor (r1amo. type of legal en!tW stated ;n 1uag•1J1" •I If 1101 u na111rni µor son. imcl lr:1st Jmowri <Jddress) · ;---- - . -- . - -------, :-·-

I -----~

J l ____ .............. .

22. [ · · ··: Notice of sale has been requested by (name eno address). I ----·-1

:::i Jol11t debtor was rJ;;,i;in•c~(! t>OLo11c tJy cl1e ll1r:1gmo111 iCCP 9El9--(J9,li

" r;" r1!dlej ,-, ()f'\ (cli1f1'}

c, narnc: '.ypc! Lif l•~ga! ontity statec 111 JL1dgn1ent 1t 'IOI a r.at11m1 p~irscn and last known address of joint tfobtor

b flame type of 1€\gal 0n1ny stated in 1utt9nient 1f nnt ;i natural per::;on. a•1d last known arJclre:o;~,: ~;r iO·l tl lh,t;tor

------··--·1 ,---.. . ...... ---·-··

_______ J I ! ......

(; ':''. .. J ndditionnl costs agains1 cwta1n joint debtors (itemize).·

f.'4. ./..J 11/\'ril of Po.~sessmn or Wtil of S;1/c1j Judgment was entered for the follc1win9

a.( '{ _) Po5!;HSt;io11 cif nrnl propcirty The cc.111pla1nt was filed on (rfate) 09/29i I 0

(Check (1) or (2)).·

.. 1.1 ·-7-·_ nit- Prejudgment Clairn or Rigt1t to Po~~;ession was Stoived 1n compltance witt1 CCP 415 46 '·-· · n1e Judgrnent inclLtdes all len<ims. subtenants. named claimants. and othor occ:uµw1ts ot the p11•m11ges.

i2i [::.: .. ~; 'f!1e Pre1LJdgme11t G!011rn (Jf Righi to Possession was NOT served 1n complian:.::e witn CCP 4'5.413 (a) $ was the dally rental value on the datn the complaint was filed (b) The cm11i will hear objectio1·,s to enforcement of Hie judgment under CGP 11711 3 on tl1e foliow1n£i

dates (s1;ecify):

I> c=~ Poss'!lsr.ion of plC'rsnnal prnparty.

-~=·:: If ~ie!ivtHY r;:;111not bti l;acJ. then fl)r the value (1/emi2t1 in 240/ spec1fiec1 in the Jli<.Jgmunt 'Y" ~t1oi:1r:·in<-mlal or,_lt-1

r ~iuln of personai property

s,~le Qf real rwpnrty

,,, Do.~c:·11.•;m1; of p1oor-,r1y

Archibalcl Cunningham, an individual, excluding any current ten<ml resicling on the property 1489 McAllister Street, San Francisco. CA 94115

NOTICE TO PERSON SERVED WRIT OF EXECUTION OR SALE Your rights and duties aw inrJlcated on ttl~ ac;c;omp1.rny111J Notlc:a of l.&vy [Form EJ-1501. WF~IT OF POSSESSION OF PERSONAL PROPERTY If the ievying officer is not ablu to take custody of the property, til~) levying <:•fftcer will rnake a uernand upon you tor the property. If custe>d~· is not obtained tollow1ng demand, the )udgm<lnl may be entorced iis a rnoney iudgcnent for tl1a value rJf the property specified In the judgment or in a supplemental order WRIT OF POSSESSION O~ REAL PROPERTY. If ttie premises are not vacated within five days after the d;irn uf serv;c:e on the ;1cc.1p<1ril or, if S(irv1ce is by posting. within five tlays after seNice on you. the levying offiuer will remove tl1e occupants from tile reci: property aria plm:.I:! the judgment c:rnditor ill possession of the property, Except for a mobile home, personal property remaining 011 1h1· premises w_ill be sold or otheiw1se disposed of in <1ccord::inco with CCP 1174 unless you or the owner of the property pays 1l1e 1ud9mcm creditor the reasonable cost of stcJrage and taXE·S possessiM of the personal property nCJl l<tler than 15 rJays after the t111e \hP. 1udgment creditor takes possession of thei pre1TJisP.s 11> A Claim of R19nt to Possession form ar.compnnh1s this wri.' (unlos.s thc1 Swnmons was servuc'i in compl1an1:e with CCP 41.5 46)

···- ... . . . -·-· . . ------ ·-···· . ·-·- .. ··-··-· .. _ ... ------.......... ' .. . . . --· .. _. ···---···· . .. ··--···· ··--· .................... ···--- .. -...... .. -... ---·· , ..... -·"·-··.

WRIT OF EXECUTION Pill\)t 1 of 2

150

150

EXHIBIT 2

151

151

~QRtlEYSfi PARTY 'MTHOUT AnORNEY rN-. StalV Bar numo.r .na-·r FOR COURT l/U ONL. Y evm mger

Superior Court Receiver 795 Folsom Street, I st Floor San Francisco. CA 94107

TELEPHONENO .. (415) 848-2984 FAXNO ( 415) 848-230 I e-MA1LAOORESS Kevin@ReceivershipSpecialists.com

ATTORNEY FOR (l'llltllfl}.

o ATTORNEY FOR o JUDGMENT CREDITOR rn ASSIGNEE OF RECORD

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO STREET ADDRESS 400 McAllister Street

MAILING ADDRESS· Room 103 CITY A.ND ZIP C00E San Francisco, CA 94102

BRANCH NAME·

PLAINTIFF: MICHAEL COOMBS: TAMARA WOODS

DEFENDANT: ARCHIBALD CUNNINGHAM: and DOES 1-20. inclus.

D CASE NUMBER EXECUTION (Money Judgment)

WRIT [{] CPF-10-510760 POSSESSION OF 0 Personal Property

OF CZJ Real Property I D LimHltd Civil Caae D Small Clalma Case D SALE m Unllmltlld Clvll Caae D Other

1. To the Sheriff or Marshal of the County of: City and County of San Francisco You are directed to enforce the judgment described below with daily interest and your costs as provided by law.

2. To any registered proceaa server: You are authorized to serve this writ only in accord with CCP 699.080 or CCP 715.040.

3. (Name): Kevin Singer. Superior Court Receiver Is the D judgment creditor [L] assignee of record whose address is shown on this form above the court's name.

4. Judgment debtor (name, type of legal entity stated in judgment if not a natural person, and last known address):

1Archibald Cunningham, an individual 1489 McAllister Street

9. m See next page for information on real or personal property to be delivered under a writ of possession or sold under a writ of sale.

10. 0 This writ Is issued on a sister-state judgment. 11. Total jUdgment .......... , . . . . . . . . . $ 12. Costs after judgment (per filed order or

memo CCP 685.090) . . . . . . . . . . . $

I I I

'

San Francisco, CA 94115 13. Subtotal (add 11 and 12) . . . . . . . . . $ --------

L__ D Additional judgment debtors on next page

5. Judgment entered on (date): 8-20-14 by Order

6. D Judgment renewed on (dates):

7. Notice of sale under this writ a. CZJ has not been requested. b. D has been requested (see next page).

8. D Joint debtor information on next page.

(SEAL)

14. Credits . . . . . . . . . . . . . . . $

15. Subtotal (subtract 14 from 13). . . . . . . $ --------16. Interest after judgment (per filed affidavit

CCP 685.050) (not on GC 6103.5 fees)... $ 17. Fee for issuance of writ . . . . . . . . . . . . . . $ 18. Total (add 15, 16, and 17). . . . . . . . . . . . $ ======== 19. Levying officer:

(a) Add daily interest from date of writ (at the legal rate on 15) (not on GC 6103.5 fees) of ...... .

(b) Pay directly to court costs included in 11 and 17 (GC 6103.5, 68637;

$

CCP 699.520(i)) . . . . . . . . . . . $

20. D The amounts called for in items 11-19 are different for each debtor. These amounts are stated for each debtor on Attachment 20.

,__iss_ued_o_n_~_da_t_e)_: _____ __,! Clerk, by . Deputy

NOTICE TO PERSON SERVED: SEE NEXT PAGE FOR IMPORTANT INFORMATION.

WRIT OF EXECUTION

P1ge 1 ora Code of Civil"'°'*"'"· ff 6119 520. 712 010, 715010

ao......-~. f 0100.s ..-.cou111 ca pov

152

152

PLAINTIFF: MICHAEL COOMBS; TAMARA WOODS

,_DEFENDANT: ARCHIBALD CUNNINGHAM: and DOES 1-20, inclus. - it.ms continued from page 1-

21. D Additional judgment debtor (name, type of legal entity stated in judgment ff not a natural person, and last known address):

~- r-L__

22. D Notice of sale has been requested by (name and address):

r- ---i ,-L__ __J

23. D Joint debtor was declared bound by the judgment (CCP 989-994) a. on (date): a. on (date):

CASE NUMBER.

CPF-10-510760

___J

b. name. type of legal entity stated in judgment if not a b. name, type of legal entity stated in judgment if not natural person, and last known address of joint debtor: a natural person, and last known address of joint debtor:

r- --i

___J c. 0 additional costs against certain joint debtors (itemize):

24. [ZJ (WHt of Possession or Writ of Sale) Judgment was entered for the following: a.ClJ Possession of real property: The complaint was filed on (date): 09/29/ I 0

(Check (1) or (2)):

(1) D The Prejudgment Claim of Right to Possession was served in compliance with CCP 415.46. The judgment includes all tenants, subtenants, named claimants, and other occupants of the premises.

(2) [ZJ The Prejudgment Claim of Right to Possession was NOT served in compliance with CCP 415.46. (a) $ 0 was the daily rental value on the date the complaint was filed. (b) The court will hear objections to enforcement of the judgment under CCP 1174.3 on the following

dates (specify):

b. D Possession of personal property.

D If delivery cannot be had, then for the value (itemize in 246) specified in the judgment or supplemental order. c. D Sale of personal property. d. D Sale of real property. e. Description of property:

Archibald Cunningham, an individual, excluding any current tenant residing on the property 1489 McAllister Street, San Francisco, CA 94115

NOTICE TO PERSON SERVED WRIT OF EXECUTION OR SALE. Your rights and duties are indicated on the accompanying Notice of Levy (Form EJ-150). WRIT OF POSSESSION OF PERSONAL PROPERTY. If the levying officer is not able to take custody of the property, the levying officer will make a demand upon you for the property. If custody Is not obtained following demand, the judgment may be enforced as a money Judgment for the value of the property specified in the judgment or in a supplemental order. WRIT OF POSSESSION OF REAL PROPERTY. If the premises are not vacated within five days after the date of service on the occupant or, if service is by posting, within five days after service on you, the le'l)'ing officer wilf remove the occupants from the real property and place the judgment creditor In possession of the property. Except kir a mobile home, personal property remaining on the premises will be sold or otherwise disposed of in accordance with CCP 1174 unless you or the owner of the property pays the jl,ldgment creditor the reasonable cost of stora.ge and takes possession of the personal property not later than 15 days after the time the judgment creditor takes possession of tne premises . .,. A Claim of Right to Possession form accompanies this writ (unless the Summons was served in compliance with CCP 415.46).

EJ·130 [R .. .i.iuaty 1, 2012] WRIT OF EXECUTION

P1ge Zot Z

153

153

..----------------------------------- -·- ---··-·--.,.. • ' .

(;A$F. '-IUMflFR PLA1N:trr MICHAEi. COOMf3S: TA:\1ARA WOODS CPF· I 0-510760 i..

ul:.f't:NllANl /\RCHIBA!.D CL.:NNINGHAM; an<.l DOES 1-20. inclu:;. ----------- -----·---·-··-···-·--.. -- ... .. ............... _ .. .._,, - Items continued from page 1·-

21 ' Additional Judgment debtor roame, type of legal entity stateci in Jt1dgment if not a natural person. and li.lst known address;:

r- ---·-···1 I .

---~

i

L 22. ['"] Notice of sale has been requested by (name and address):

/) J .> f"

. ·~~~ ~ ~

23

['"-~--·-·-

n :r; rr, ::0 -r' c :>' J p;

Joint debtor was declared bounc by the 1udgment ·~ CCP 989--994) ~ .:?. <.r; ;· a. on (dste) ti on (cJator - '::? 0 r~ b name. 'ype of lega! entity statec: in judgment if 11ot a b. rame. type ·::if legal entity stated in judgrnent'!f:>lot f) ~ 1..:

natwai perso·1 and last known address of joint debtor· a natural person. and last known addres!l of.l.11;,nt del:ijpr.~.· ···---; i--- "' -- . '5""!.' _ _j [_ __ .

c ~-.. ] ad\iit1onal costs against certain joint debtors (itemize;.·

24. '. :;·] (Writ of Possession or Writ of Sale) Judgment was entered for the following

a.[?..J Possession of real property: The ccrnplaint was filed on (date) 09/29i I() (Check (1) or (2)):

(1) 2J The Prejudgment Claim of Right to Possession was ser;ed 1n compliance with CCP 415.46. The judgment includes all ter,ants. subtenants. named claimants. and other occupants of the premises

!2) r=·~::; The Pre1lJdgment C!a1rn of Right to Possession was NOT served 1n complian:e witn CCP 4, 5.46 (a) $ was the daily rental value on the date the c:mnplaint was filed (b) The court will hear objections to enforcement of the judgment under CCP 117 4 '.I on the foliow1ng

Clates (specify):

o '----~ Possession of personal property. =: If deiivery cannot be haa. then for the value u1emize in 240) soecif.ea in the judgment or supp:ernentiil order

c _ _i Sale of persona; property.

d L~ .. J Sale of reai property

e Desc;·1p\1cn of prooenty: ,;

Archibald Cunningham, an individual, excluding any curre·nt tenant residing on the propertf

, .. . ___ ___24~9 ~cAllist~~-~.~~e:!:_~-~-n Francis~~ Cft,_ ~4_115 <". · ···-·-··-·--· ·---........................ . i NOTICE TO PERSON SERVED i WRIT OF EXECUTION OR SALE. Youi rights and duties are indicated on the accompanying Notice of Levy (Form EJ-i50).

WRIT OF POSSESSION OF PERSONAL PROPERTY. If the levying officer is not able to take custody of the property. the levying officer will make a demand upon you tor the property. If custody is not obtained following demand. the Judgment may be entorcea

, as a money judgment for the va1ue of the property specified In the 1udgment or in a supplementalbrder. WRIT OF POSSESSION OF REAL PROPERTY If the premises are not vacated within five days after the date of ser.i;ce en the occupant or, if service is by posting, within five days after serv•ce on you. the levying officer wiii remove the occupants from tne real property and olace the jlJdgment creditor in possession of the property. :Except for a mot;ile home, personal property rema1n 1ng on ilie premises will be sold or otheJWise disposed of m accordance Vi(lth CCP 117 4 unless you or the owner of the property pays the judgment creditor the reasonable cost of storage and taKes#O!lsession of the personal property not later than 15 days after the 1 time the judgment creditor takes possession of the premises. ·~ · '

'...~ .. ~ ~1~1-~.°.!_ ~i~~t to !_°._s~.:~~1°-~'.°.C'.7.~ ~~'!!£!'.~''.i~:~_'.'.1i: __ ".".~1-~!'!!!!!~-t'._l_f!_ -~-~1nm.a..ns w~_s _~!!_~!!'.~~ ~ompli~~itl'.~CP 41-~ 46!___ ... .. ........... ~~····--;---· .......... -·----····---··•"""--~·-··-- ................ -~--···-······p;g·;··2 ;,·2 WRIT OF EX~CUTION

154

154

• ' ........... .....

'

155

155

ATTACHMENT E

ATTACHMENT E

156

156

Pages 1 - 26

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Before The Honorable William H. Alsup, Judge ARCHIBALD CUNNINGHAM, )

Plaintiff, ) )

vs. ) NO. C 14-03250 WHA

) )

KEVIN SINGER, Court-appointed ) receiver, RECEIVER SPECIALISTS,) a California licensed business,) JOHN SCOTT MCKAY, an officer of) the court and attorney in the ) underlying case, MICHAEL ) COOMBS, property owner and ) partner in condominium ) association; TAMARA WOODS, ) property owner and partner in ) condominium association, JUDGE ) DONALD EVANS QUIPACHAY, San ) Francisco $uperior Court Judge,) JUDGE LILLIAN SING, San ) Francisco Superior Court judge,) PRESIDING JUDGE MING-LEE,

1 Presiding judge of the San Francisco Superior Court, T .

. MICHAEL YUEN, Court Executive Officer for Superior Court of San Fr�mcisco, CHIEF JUSTICE CANTIL-SAKAUYE, Chief Justice of State Supreme Court, Chair of California Judicial Council,) PRESIDING JUSTICE ANTHONY. ) KLINE, California court of,· ) Appeals, First Appellate· · ) Division, JUDGE JAMES :RICHMOND,).· Justice of California ·c;purt of ) Appeals, First Appellate ) District, ,.· )

DOES 1-10.

' ) Defendants, and )

) ����������������>

...

San Francisco, California Thursday, January 8, 2015 8:45 a.m.

TRANSCRIPT OF PROCEEDINGS

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APPEARANCES: For Plaintiff Archibald Robert Cunningham:

For Defendants John Scott McKay; Michael Coombs; Tamara Woods:

For Defendant Kevin Singer:

BY:

BY:

Archibald Robert Cunningham Attorney at Law 1489 McAllister Lane San Francisco, CA 94115

(415) 563-1828

ARCHIBALD ROBERT CUNNINGHAM

McKay & Leong 2175 N. California Boulevard, Walnut Creek, CA 94596

(925) 932-6095

(925) 932-5434 (fax) J. SCOTT MCKAY

Duane Morris LLP One Market Street Spear Tower, Suite 2000

San Francisco, CA 94105-1104

(415) 957-3013

(415) 957-3000 (fax) BY: ARON MARK OLINER

2

suite 775

Reported By: Lydia Zinn, CSR No. 9223, Official Reporter

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THE COURT: Now we go to Archibald Cunningham versus

Kevin Singer and a long list of other defendants, Case Number

14 -3 250. Good morning.

MR. OLINER: Good morning, Your Honor.

MR. MC !CAY: Good morning, Your Honor.

MR. OLINER: Ron Oliner.

THE COURT: What?

MR. OLINER: Ron Oliner, Duane Morris, counsel to

Mr. Singer.

THE COURT: All right.

MR. MC !CAY: Scott McKay, Your Honor, on behalf of

12 myself, and Michael Coombs, and Tamara Woods.

13 THE COURT: Well, who represents all of these other

14 defendants?

15

16

17

18

19

20

21

MR. MC !CAY: They have not appeared yet.

THE COURT: They haven't appeared?

MR. MC !CAY: That's correct.

THE COURT: Have they been served?

MR. MC !CAY: I don't know. You'd have to ask Mr. -­

THE COURT: All right. And you are?

MR. CUNNINGHAM: I am Archibald.

22 Yeah, I believe they have.

23

24

25

THE COURT: You're Archibald?

MR. CUNNINGHAM: Right.

THE COURT: Cunningham?

21

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MR. CUNNINGHAM: Truly.

THE COURT: Are you a lawyer?

MR. CUNNINGHAM: I am.

4

1

2

3

4

5

6

THE COURT: Okay. so you're representing yourself?

MR. CUNNINGHAM: I am.

THE COURT: All right. Welcome.

7 Okay. Now, it's your motion.

8 Well, let me ask that preliminary question. Have you

9 served all these Judges and these other people?

10

11

12

MR. CUNNINGHAM: Yes, I think they have been served.

THE COURT: You think, or you know?

MR. CUNNINGHAM: My process server assured me that

13 they had been served.

14 THE COURT: As of?

15

16

MR. CUNNINGHAM: Probably August.

THE COURT: So as of August, everybody in this case

17 has been served. That's what you're telling me?

1 8

19

MR. CUNNINGHAM: Yes.

THE COURT: All right. So it's your motion to

20 dismiss. Go ahead.

21 MR. MC KAY: Your Honor, there are actually six

22 motions that have piled up over the last six months, as we've

23 kind of been bounced from j udge to j udge. I think there's

24 really only two motions here that need to be addressed. And

25 the first motion is the motion to dismiss for lack of

22

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1 jurisdiction.

2 As can be seen from the Complaint filed by Mr. Cunningham,

3 all that he is complaining about is erroneous decisions in

4 prior state court proceedings, all of which proceedings are

5 final. He's complaining of a judgment that was entered in a

6 state court proceeding back in April of 2011 that was appealed.

7 The judgment was --

8 . THE COURT: What was that judgment for? I thought it

9 went to arbitration, and --

10

11

MR. MC KAY: Yes.

THE COURT: So how could there be a judgment, if

12 there was an arbitration?

13 MR. MC KAY: The arbitration award was affirmed by a

14 judgment by the San Francisco Superior Court. So the award

15 became a judgment. That judgment was entered in April of 2011.

16 THE COURT: I thought there was a challenge, though,

17 by Mr. Cunningham to the validity of the arbitration award.

18 MR. MC .KAY: That's correct. And that's one of the

19 things he raised on appeal. And that was decided against

20 Mr. Cunningham on appeal.

THE COURT: Was that raised in the Superior Court?

MR. MC KAY: Sort of.

21

22

23 THE COURT: What did the judge .in the Superior Court

24 say?

25 MR. MC KAY: The judge decided that the tenancy in

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1 common agreement, which was the agreement that we said was the

2 controlling agreement -- the Court agreed with us; found that

3 to be the controlling agreement .

4 We then litigated the matter further on appeal. And the

5 Court of Appeal, in a decision that I've submitted to the

6 Court, again determined that we carried our burden of showing

7 that that was the controlling agreement. So that issue has

8 been fully litigated to finality in both the trial -- state

9 trial court, and the state court of appeal.

10

11

12

13

14

15

Mr.

lot

you

THE COURT: All right. So I'll just be frank,

Cunningham. I think the motions by the other side have a

of merit, but I want to give you an opportunity to say what

want to say.

MR. CUNNINGHAM: Well, first of all, this has been

one of I think the expression you used, "sleights of hand"

16 that's been going on for a long time. Mr. McKay's got a genius

17 for controlling the narrative. I give him credit for that.

18 He's hoodwinked judge after judge.

THE COURT: He's what?

MR. CUNNINGHAM: Hoodwinked judge after judge.

THE COURT: Well, you've sued judge after judge.

MR. CUNNINGHAM: Truly. In any

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23 THE COURT: So which is worse? Hoodwinking them, or

24 suing them? I mean, look at this long list of Judges that

25 you're suing.

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1 MR. CUNNINGHAM: Not too many.

2 THE COURT: You're suing the Chief Justice of the

3 State of California.

4

5 that --

6

MR. CUNNINGHAM: Well, is that the issue here, or is

THE COURT: Well, I just want to say you're coming

7 over here to Federal Court.

8

9

MR. CUNNINGHAM: Mm-hm.

THE COURT: And you1re claiming that your due-process

10 rights were violated.

11

12

MR. CUNNINGHAM: Mm-hm.

THE COURT: And you say things like, "They appointed

13 a Special Master or receiver who was not a lawyer."

14 So what? Where does it say in the Constitution a state

15 court special receiver has got to be a lawyer?

16 It doesn't.

17 This is the most frivolous argument I've seen in a long

18 time.

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20

MR. CUNNINGHAM: Well

THE COURT: And I can say the same thing about a lot

21 of your other arguments, too. Let's just stick with that one.

22 That's your main argument.

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MR. CUNNINGHAM: Which is my main argument?

THE COURT: From what I'm getting out of your papers,

25 which are incomprehensible, you say that this special receiver

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1 that was appointed by the state court should have been a

2 lawyer, and he was practicing law without a license. Don't you

3 say that?

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5

MR. CUNNINGHAM: I do say that.

THE COURT: Okay. That's ridiculous. They don't

6 have to be a lawyer to be a receiver. The court appoints them

7 to go in there and take charge of this real estate.

8 Law-enforcement officers are not lawyers, either. They

9 can be, but they're not, and they have a lot to do with the

10 law, but that's not practicing law. Where did you get the idea

11 that a receiver has to be a lawyer?

12 MR. CUNNINGHAM: No, I'm not saying a receiver has to

13 be a lawyer.

14 I'm saying that in order for a receiver to come into

15 court, he has to be a member of the bar in order to practice

16 law before the court.

17 THE COURT: All right. Let's assume for the sake of

18 argument, which -- I disagree with that, anyway.

19 MR. CUNNINGHAM: Mm-hm.

20 THE COURT: But let's assume for the sake of argument

21 you're right. Where does it say that in the Constitution?

22 Where does it say in the Constitution that a receiver, to come

23 into court, must be a member of the bar?

24 MR. CUNNINGHAM: What it does say in Business and

25 Professional Code 6 125 is that no member -- any person who

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1 isn't a member of the state bar cannot practice law in

2 California. So the cases that I've cited again and again said

3 that when receiver comes into court, he's acting in a

4 representative capacity. He's acting on behalf of the court.

5 He's not a neutral party. He's acting on behalf of the court.

6 California Rule of Court 113.1180 says that a receiver has

7 to get the approval of the court before he brings any motion,

8 any action, any proceeding in court. That's what the

9 California Rule of Court said.

10 So as far as the Constitution says, I think you could look

11 at Boddie versus Connecticut. That case talks about a

12 meaningful opportunity to be heard. And the fundamental

13 principles of due process is notice, and an opportunity to be

14 heard.

15 So, quite frankly, if I knew that a receiver, under your

16 view, could practice law without a license, and not be

17 committing a misdemeanor, because Business and Professional

18 Code 6 126(a) Says that anyone who holds themselves out to be a

19 lawyer or with the authority to practice law who is not a

20 licensed member of California, which Mr. Singer wasn't

21 THE COURT: But federal law doesn't regulate the

22 practice of lawyers in state court.

23

24 regulate

25

MR. CUNNINGHAM: Sure, it doesn't; but it does

THE COURT: So --

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1 MR. CUNNINGHAM: It does regulate statutes that are

2 unconstitutionally applied.

3 I'm saying this is unconstitutionally applied, in the

4 sense that the state law doesn't give me notice or an

5 opportunity to be heard in terms that a state court judge is

6 just going to decide: Hey, the requirement that somebody needs

7 to be a member of the bar can just be waived willy-nilly by a

8 state court judge, and a receiver can come in and practice law

9 without three years of law school, without passing the bar,

10 without taking continuing legal education of the bar. That's

11 my point.

12 THE COURT: All right. Mr. Cunningham, you may have

13 a point under state law; I rather doubt it, but possibly you

14 do.

15 Nonetheless, a violation of state law does not rise to the

16 level of a violation of due process. End of story. Period.

17 There is no decision in the history of the mankind that says

18 what you're telling me, that something like that could rise to

19 a due-process violation to allow you to sue under 1983 in

20 federal court. That's just wrong.

21 MR. CUNNINGHAM: You're saying that a violation of a

22 state statute

23

24

THE COURT: Correct.

MR. CUNNINGHAM: that makes practicing law a

25 misdemeanor -- some�ody comes into court, and --

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11

1 THE COURT: It's up to California. If they want to

2 say you can practice law or you can't practice law, that's up

3 to them.

4 On the federal side, we can't just say, "Oh, that violates

5 due process" to -- no. We can't start intervening and

6 regulating the practice,of law in state court. So that

7 look. You can always appeal. You can take an appeal. You've

8 already taken so many appeals to various courts, including the

9 Court of Appeals for the Ninth Circuit, you can take another

10 one; but I'm telling you this is wrong. The argument you're

11 making is just completely wrong. There's no federal claim

12 stated here.

13 MR. CUNNINGHAM: There was a federal case recently

14 saying that a receiver comes into federal court who isn't a

15 lawyer is not allowed to practice law, and so forth.

16 So again, applying a state statute in such a way, in a

17 novel way, where a judge is given the authority to essentially

18 negate a state law -- that would violate due process, as far as

19 I'm concerned. I'm not given notice that the state court

20 judge, with his inherent authority, has the right to negate a

21 state statute to essentially negate a criminal misdemeanor. I

22 mean, if that doesn't violate due process, then, you know, then

23 I truly am deluded. Okay? So maybe I'll take an appeal on

24 that.

25 THE COURT: I think you should, because I'm going to

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12

1 rule against you on that one.

2 All right. I want you to say whatever else you want to.

3 Let's move to the vexatious litigant. I'm inclined to

f'' 4 find that you' re a vexatious litigant. I want to give you a

5 full opportunity to say whatever you want on that. I think

6 these arguments that you have raised are beyond the pale. A

7 reasonable lawyer would not raise these, and I'm shocked. And

8 you've already been declared a vexatious litigant in the state

9 court, but you haven't been declared so in federal court yet,

10 but I'm going to do that unless you talk me out of it. So go

11 ahead try to talk me out of it.

12 MR. CUNNINGHAM: Well, as far as being declared a

13 vexatious litigant in state court, I was declared a vexatious

14 litigant twice in state court by Judge Patrick Mahoney. The

15 first time, I wasn't even there. I had pled. It was in a

16

17

family law proceeding.

THE COURT:

My wife ex-wife brought a claim.

What's that got to do with this? What

18 Judge Mahoney did has nothing do with what I would do here.

19 I'm basing it on: You have had a pattern of suing a long list

20 of people. I'm sure I'll be in the next group of defendants,

21 because every time you lose, you add that judge to your list.

22 MR. CUNNINGHAM: I know. That's the narrative. And

23 again, the issue that's been going on here for five years is

24 that --

25 THE COURT: Is it true, or not? It looks like it's

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1 true.

2 I'll read you the Judges you've sued.

3

4

MR. CUNNINGHAM: I get the point, sir.

THB COURT: Quidachay. Lillian Sing. Ming-Lee.

13

5 Cantil-Sakauye. Chief Justice Tony Kline. James Richmond. He

6 was -- I don't know if he's a judge. Is he a judge?

7

8

9 judge.

MR. MC KAY: Justice.

THB COURT: Justice. James Roberston [sic]. He's a

10 I mean, you don't like what somebody rules -- they're all

11 trying to do their job -- and you just sue them. Come on.

12 So I think you brought a bunch of frivolous claims here;

13 put a lot of people to a lot of work. And I don't see --

14 MR. CUNNINGHAM: Okay, well

15 THB COURT: I don't see why you're not a vexatious

16 litigant. Seems like you are, to me.

17 MR. CUNNINGHAM: Five years ago, Mr. McKay brought a

18 motion on a 2007 TIC agreement. At that time, WE HAD converted

19 our TIC agreement into condominiums. We had a CC&R and bylaws.

20 That was a controlling, governing document.

21 So Mr. McKay now has run up $700,000 in fees. I've asked

22 for a hearing on my rights under the CC&Rs. I'm being evicted

23 from my house, and I'm told my CC&Rs, signed in 2009, are

24 frivolous and unimportant.

25 And a prior agreement from 2007 -- the TIC agreements

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1 after condo conversion -- somehow negate and control CC&Rs and

2 the California Subdivision Map Act.

3 I've been asking for five years for a hearing on this. I

4 haven't been able to get that. I'm essentially being evicted

5 from my property by a nonlawyer.

6 Yeah. We'll -- if you want to go to the --

7 THE COURT: Well, what does it matter -- why -- if

8 you are being evicted by the receiver

9 MR. CUNNINGHAM: Mm-hm.

10 THE COURT: -- there's a Court Order that says the

11 receiver can do that. What difference does it make if he's a

12 lawyer or not a lawyer?

13 MR. CUNNINGHAM: It makes an incredible difference

14 because, one, in order to evict somebody, you have to be an

15 owner, a new purchaser, or have some standing in the property.

16 Mr. Singer has no standing. He has no interest in the

17 property. He's evicting an owner, when he has no property

18 interest in the property. That's why it's important: Because

19 if -- if somebody were to evict somebody, they'd have to be an

20 owner. Mr. Singer isn't. They don't have standing to evict.

21 THE COURT: Didn't the Superior Court issue a writ of

22 possession to the receiver, to take possession?

23 MR. CUNNINGHAM: They did, indeed. And what it says

24 under the Unlawful Detainer Act is that, in order to get a writ

25 of possession, you have to go through the Unlawful Detainer ..

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1 Act. That means you have to be a new purchaser. You have to

2 be an owner. You have to have interest in the property to

3 evict.

4 If Mr. Singer wanted to evict me under the receivership

5 statutes, Section 5 6 4 7 , it says he can go to the Court and ask

6 the Court for the right for an unlawful detainer.

7 He didn't do that, because even if he were appointed to

8 evict me, he doesn't have standing, because I own the property.

THE COURT: Well, are you still in the property?

MR . CUNNINGHAM: I own the property.

THE COURT: Well, are you still in it?

MR . CUNNINGHAM: Meaning?

THE COURT: Have you been evicted yet?

MR . CUNNINGHAM: I have been evicted.

THE COURT: You're out of the property?

MR . CUNNINGHAM: I've been evicted.

THE COURT: Is that true?

MR . MC KAY: No. He's still there.

THE COURT: Who is actually living --

9

10

11

12

13

14

15

16

17

18

19

20

21

Is this a residence, or is it an office?

22 roommates.

MR . CUNNINGHAM: I have - - I have roommates.

23 This is what happened in the state court.

24

25

THE COURT: Can't you answer my question?

MR . CUNNINGHAM: Mm-hm.

I have

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171

1

2

3

4

5

THE COURT: Is this a residential property?

MR. CUNNINGHAM: Two condominiums.

MR. MC KAY: It's a condominium.

16

THE COURT: All right. Does he live in one of them?

MR. MC KAY: He was evicted, but he moved himself

6 back in, notwithstanding his eviction.

THE COURT: So you left and came back? Is that it?

8 MR. CUNNINGHAM: I -- I have tenants, and I have

9 roommates. And so the roommates weren't evicted. The owner of

10 the condominium was evicted. How does that happen? You know.

11 THE COURT: Are these -- are you going to -- who is

12 the receiver here?

13 MR. OLINER: I am Ron Oliner. I represent

14 Mr. Singer, the Court-appointed receiver, pursuant to an Order

15 of the Court for the limited purpose of defending this lawsuit.

16 I am not his general counsel

17

18

19

THE COURT: All right.

MR. OLINER: in the state court.

THE COURT: All right. Well, what do you say to the

20 proposition that the receiver has used the improper procedures

21 in state court?

22 MR. OLINER: I'll address that very directly.

23 Mr. Cunningham is in the wrong court. He does not want to be

24 in state court.

25 Mr. Singer has dutifully followed each and every directive

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1 and order of the state court. A receiver, as you've already

2 alluded to, Your Honor, works for the Court. He's an officer

3 of the Court, and follows orders pursuant to powers directed by

4 the Court. Receivers file things every day in receivership

5 cases, where they're appointed receivership cases. They file

6 reports. They petition for instructions, as Mr. Singer has

7 done repeatedly here.

8 And then finally -- and you've already alluded to this, as

9 well

10 Incidentally, for the record, I j oined in these motions.

11 There have been a number of recusals, as I'm sure you're, no

12 doubt, aware. My j oinders were filed as Docket Numbers 18 and

13 3 3 . I didn't think to file another j oinder when the motion was

14 refiled the eighth time. I'm not sure how many times it was

15 refiled.

16 But in order to sue a receiver, you must first seek

17 approval from the Court that appointed the receiver. That

1 8 hasn't been done here.

19 The vexatious-litigant stuff is in the record. I cited to

20 it, but it's in the motion, itself. There are five prior

21 Orders.

22 THE COURT: Well, you are not answering my question.

23 I j ust want to --

24 All right. Mr. Cunningham complains that you should have

25 used -- the receiver should have used unlawful detainer instead

35

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1 of writ of possession.

2

3

4

MR. OLINER: I'm going to say --

THE COURT: What do you say to that?

MR. OLINER: I say that's wrong. That's how you

5 eliminate or remove a tenant from the property.

18

6 But the let me let my counsel here -- or the counsel here,

7 Mr. McKay, address that issue, because he's well informed on

8 that.

9

10

THE COURT: All right. What do you say to that?

MR. MC KAY: There has been no unlawful-detainer

11 action here. And Mr. Cunningham has not been evicted pursuant

12 to an unlawful-detainer action.

13 There are statutes.

14

15 evicted?

16

17

18

THE COURT: Well, was he evicted? Well, he was

MR. MC KAY: He was evicted, despite his --

THE COURT: He was evicted pursuant to what?

MR. MC KAY: Code of Civil Procedure 568, which

19 allows a receiver to obtain possession of property that's

20 subject to the receivership estate. You don't have to file an

21 unlawful detainer.

22 THE COURT: The sheriff went out there to kick him

23 out? Is that the way it worked?

24

25

MR. MC KAY: That's correct.

THE COURT: So he says that that wasn't the proper

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1 procedure. What do you say?

2 MR. MC ICAY: That is the proper procedure. A

19

3 receiver can be appointed to enforce a judgment. The j udgment

4 here requires the sale of Mr. Cunningham's condominium.

5 Mr. Cunningham wouldn't let anybody in there so we could

6 show the place; get it appraised; get a broker. So the

7 receiver requested possession of the condominium so that he

8 could do these things to comply with the Court's direction to

9 sell the condo. That is

10 Again, specifically, the possession by a receiver is

11 authorized by C. C. P. Section 56 8 . That's the specific

12 authority under which the possession and the eviction of

13 Mr. Cunningham was requested.

14 That was granted by the Court. That Order is final. It

15 was not appealed. It's done with�

16 And j ust to answer, I j ust disagree with virtually

17 everything Mr. Cunningham has said. He complains that he's

18 never had his day in court on these claims. There's exactly

19 one reason for that. This matter was routed into arbitration.

20 Mr. Cunningham refused to attend the arbitration. That was his

2 1 time to make any claims he wanted to make. So he -- and only

22 he -- is responsible.

23 THE COURT: Well, was he heard at the original

24 hearing to send it to arbitration?

25 MR. MC ICAY: Absolutely.

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20

THE COURT: Was he there for that? 1

2 MR. MC ICAY: He filed opposition. He attended the

3 hearing. He was personally there, and orally argued the

4 matter. Mr. Cunningham has attended all of the hearings in all

5 of these various cases, in both the state court and the cases

6 in the federal courts.

7

8 itself?

9

THE COURT: But you say but not the arbitration,

MR. MC ICAY: The arbitration, he refused to

10 participate.

11

12

THE COURT: Is that true?

MR. CUNNINGHAM: Let me be real clear about this.

13 There's a 2007 TIC agreement. That's tenancy in common

14 agreement.

15

16

THE COURT: Yeah.

MR. CUNNINGHAM: A year before that, the building WAS

17 condo converted. We were no longer tenants in common. We

18 filed and recorded and executed CC&Rs and bylaws, covenants,

19 conditions, and restrictions. Under the California Subdivision

20 Map Act, that was the governing and controlling document.

21 There was no agreement for mandatory arbitration after condo

22 conversion.

23 What Mr. McKay did was he filed a petition on the 2007 TIC

24 agreement. The rights and remedies on the 2007 TIC agreement

25 were the right to a forced sale of the defaulting cotenant's

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176

21

1 cotenancy share. I don't have a cotenancy share. I wasn't a

2 cotenant. The property had been condo converted for a year

3 before.

4 What had been going on for four months was Mr. McKay said,

5 "Agree to a forced sale under the 2007 TIC agreement, you know,

6 and you'll be responsible for all of my fees. You'll be

7 responsible for the forced sale. And you'll be kicked out of

8 your condominium, " is what he was saying.

9 And I was saying, "No. If you want to arbitrate, your

10 right is for the forced sale of my cotenancy agreement."

11 I don't have a cotenancy agreement, Mr. McKay. I have a

12 condominium. You should be suing --

13 THE COURT: Did you make these arguments to the state

14 court judge?

15 MR. CUNNINGHAM: The arbitration, I brought up the

16 fact that there was a -- 2009 CC&Rs, and the property had been

17 condo converted. It's on the transcript. I brought this up

18 again and again and again.

19 Then I went a year later to sue on the 2009 CC&Rs and

20 bylaws, for the fact that Mr. McKay -- where Section 14 .7 of

21 the TIC agreement says his remedy, as the so-called

22 "non-defaulting cotenant, " his remedy is the right for a forced

23 sale of the defaulting cotenancy -- cotenancy share.

24 I brought that up. I don't have a TIC agreement.

25 THE COURT: Well, but the judge ruled against you,

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1 evidently.

2 MR . CUNNINGHAM: The judge ruled. And this is

3 arbitration law. And I've quoted in my pleadings, again and

4 again and again, State Supreme Court case Rosenthal versus

5 Great Western. An arbitration hearing on petition to compel

6 arbitration only implicates the narrow issue of whether there's

7 a binding mandatory agreement to arbitrate. And it does. I

8 don't dispute that. The 2007 has a binding mandatory

9 arbitration agreement. Agreed. I don't dispute that. I told

10 the judge that's the case.

11 However, the 2009 does not. And my rights and remedies

12 aft.er condo conversion were controlled by the 2009 CC&Rs.

13 So - -

14 THE COURT: The judge must have rejected your

15 argument -- the state court judge. It sounds like you made the

16 point that you just made.

17 MR . CUNNINGHAM: No, I didn't make that point, sir.

18 THE COURT: You did, or did not?

19 MR . CUNNINGHAM: I did not. I said

20 THE COURT: Well, why not?

21 MR . CUNNINGHAM: I said to her -- I said the question

22 is: After condo conversion, there's a question of -- of

23 whether or not - - 2007 even applies.

24 She said, "Mr. Cunningham, did you sign" --

25 THE COURT: Who is she? The arbitrator or the judge?

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1

23

MR . CUNNINGHAM: Trial Judge Charlotte Woolard said,

2 "Mr. Cunningham, did you sign the 2007 TIC agreement? "

3

4

5

"Yes, I did. "

"Then you're going to arbitration. "

I also -- his clients also signed the 2009 CC&Rs. That

6 didn't matter to her. And that's the issue we've been fighting

7 about. I've been --

8

9

THE COURT: See, okay, that's a state-court issue.

MR . CUNNINGHAM: Mm-hm.

10 THE COURT: That's a state-court issue. Maybe they

11 got it wrong. That's why they have courts of appeal. If they

12 got it wrong in the court of appeal, life is not perfect,

13 but

14

15 disputing

16

MR . CUNNINGHAM: Right. And I'm not -- and I'm not

THE COURT: -- it is not a federal claim. It is not

17 a federal claim.

18 MR . CUNNINGHAM: Right. I'm not disputing the fact

19 that -- you know. I'm not trying to reargue the arbitration

20 award.

21 Compelling me into arbitration on a defunct, void

22 contract -- and Mr. McKay's willing to get his remedies for a

23 forced sale by TIC agreement. I don't have a TIC agreement for

24 him to sell. That's the problem. Now we've gone through this

25 for five years. And he wants to sell my TIC agreement. A year

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------------------- --- ------- --

24

1 before he filed his petition, it was a condo.

2 So what Mr. McKay did to get around all of this is was he

3 substituted out the term 11cotenancy share,11 and put it in

4 condominiums. That was a fraud on the Court again and again

5 and again.

6 THE COURT: Surely you ran into the court and said,

7 "Hey, this is a fraud," and pointed it out.

8 MR. CUNNINGHAM: On appeal. And what the appellate

9 j udge said was, "We're not here. You should have brought that

10 up. " I did bring this

11 THE COURT: Why didn't you bring that up?

12 MR. CUNNINGHAM: I did. I sued a year later on the

13 CC&Rs.

14 THE COURT: No. Why didn't you bring up when he

15 commits the fraud? You could have gone in and told that j udge

16 in there, "Hey, this is a fraud. "

17 MR. CUNNINGHAM: Mr. McKay didn't substitute out that

18 term until he wrote the arbitration agreement.

19 Why should I go to the arbitration agreement on a TIC

20 agreement when I have an agreement from my condominium?

21 He wanted rights and remedies under a defunct agreement,

22 and he got those.

23 I'm not here to dispute those. I'm here to vindicate my

24 rights under the 2009 CC&Rs.

25 THE COURT: All right. Here's the answer. I've got

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25

1 to move to other cases. I'm going to throw the case out. It

2 belongs in state court. If you didn't bring up the right

3 issues at the right time, that's your problem, Mr. Cunningham.

4 There's nothing. There is no federal claim that you can

5 possibly wring out of this. It cannot be litigated here in

6 federal court.

7 If you don't agree with me --

8 MR. CUNNINGHAM: I don't. And I will file with the

9 Ninth Circuit.

10 THE COURT: You've got my blessings to take it to the

11 Court of Appeals.

12 MR. CUNNINGHAM: Sure. And thanks for your

13 blessings, sir.

14 THE COURT: They may well reverse me. And if they

15 do, good for them. I will be happy to let you litigate it if

16 they say that we should.

17 All right. I'm going to get an Order out dealing with all

18 six motions.

19 Mr. Cunningham, before you leave, may I ask you this? Are

20 you in good standing with the state bar?

21 MR. CUNNINGHAM: Probably not after this hearing.

22 THE COURT: Well, I don't know. I may have to refer

23 this to the state bar. I want to know. Are you an active

24 member of the state bar?

25 MR. CUNNINGHAM: I am. And actually, I have a class

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26

1 action against Mr. McKay and a whole bunch of other Judges for

2 allowing the unlawful practice of law all throughout the state.

3 And of course it's frivolous and meritless and whatever, but

4 it's down in, you know, the Central District.

5

6 court?

7

8

9

10

11

12

13

THE COURT: Are you a member of the bar of this

MR. CUNNINGHAM: I am, indeed.

THE COURT: All right. I have to think about that.

MR. CUNNINGHAM: Oh, okay. Sure.

THE COURT: See you, Mr. Cunningham. Good day.

MR. OLINBR: Thank you, Your Honor.

MR. CUNNINGHAM: Justice. Justice. Justice.

THE COURT: Would the Marshals please escort my

14 would the marshal please escort Mr. CUnningham to the front

15 door of the building?

16 (At 9:14 a.m. the proceedings were concluded.)

17 I certify that the foregoing a correct transcript from the

18 record of proceedings in the above-entitled matter.

19

21 Signature of Court Reporter/Transcriber Lydia Zinn

22

23

24

25

January 13 , 2015

Date

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/

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ATTACHMENT B

ATTACHMENT B

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=

COMPLAINT AGAINST JUSTICES J. ANTHONY

KLINE AND JAMES RIC� OF THE

FIRST APPELLATE DISTRICT

I. INTRODUCTION

RECE;VE·D

NOV 2 4 2015 COMMISSION ON

JUDICIAL PERFORMANCE

This complaint relates to the "willful and prejudicial misconduct" of

Justices J. Anthony Kline and James �ichmond in dismissing multiple appeals and

writs I've filed, most recently an appeal I took of a March 23, 2015 order

confirming the sale of my "condorn)nium" under a 2007 Tenants-in-Common

Agreement. They dismissed my appeal and a writ on August 7, 2015. (Al44930;

Exhibit A).1 There are also a series of other appeals and dismissal of writs that

these justices have summarily denied under the Doctrine of Disentitlement (DOD)

based on my alleged "noncompliance with court orders" or under the Vexatious

Litigant Statute (VLS). The opposing counsel, John Scott McKay, has filed 15

vexatious litigant motions against me at both the trial and appellate courts and at

leasr three motions to dismiss under the Doctrine of Disentitlement. Now, Mr.

\kha: ciaims I'm . . out of compliance" with a Judgment related to the 2007

�IC-\. There are no judicial findings to support this but Justices Kline and

;:{�,:,�;L'Dd play along with Mr. McKay and grant his motions to dismiss under the

:JO Q. E \ ery action or suit I file based on a breach of the subsequent and

s:Jrerseding 2009 CC&Rs or my claims of fraud by Mr. McKay is dismissed under

eirher the DOD or the VLS. The merits, of my suits or fraud claims, have never

been determined.

In granting Mr. McKay's June 30, 2015 motion to dismiss my appeal

(A144930) under the DOD, I was denied the right to challenge the "forced sale" of

my $1,300,000 condo under a provision in the 2007 Tenants-in-Common

Agreement which relates only to the "forced sale" of a "cotenancy share," not a

http://appellatecases.courtinfo.ca.gov/search/case/ dockets.cfm ?dist= 1 &doc_ id=21073 94 &doc no=Al44930

CJP Complaint Against Justices Kline, Richmond, pg. 1

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fee simple condominium. In the same way, the dismissals have prevented me from

challenging an August 20, 2014 order granting the non-attorney receiver Kevin

Singer (SINGER) a “writ of possession” and the immediate right to possession of

my condominium. I had to be arrested three times before I could challenge the

validity of SINGER’s August 20, 2014 “writ of possession.” (Exhibit B). SINGER

used his “writ” not only to “evict” me on November 6, 2014 but to have me

arrested for trespassing on my own property. I also filed a “writ of supersedeas”

on August 5, 2015 seeking an order to recover a statutory homestead exemption

for $175,000 that I was denied at the close of escrow on June 9, 2015.2 The

receiver, who was appointed to enforce the “Judgment” for a “forced sale” under

the 2007 TICA failed to provide the exemption. The justices dismissed the writ at

the same time they granted Mr. McKay’s June 30, 2015 motion to dismiss the

appeal under the “Doctrine of Disentitlement.”

As a result of Justice Kline’s and Justice Richman’s willful misconduct and

prejudicial conduct in failing to follow the law, provide due process, I’ve been

denied all access to the appellate court. (“The public expects and embraces the

concept that a judge shall be faithful to the law. This is so fundamental to a system

of justice that it serves as a basic cornerstone of public confidence,” Inquiry

Concerning Judge O’Flaherty (2004) 49 Cal.4th CJP Supp. 1, 25, quoting from

special masters’ report.) Their dismissals of my appeals and writs has affected my

right to recover a $175,000 homestead exemption, the right to prevent the “forced

sale” of my $1,300,000 East Lake Victorian condo by the fraud of non-attorney

receiver (SINGER) and opposing counsel, Mr. McKay. Further, Justice Kline and

Justice Richman have applied the Doctrine of Disentitlement in an earlier case

2 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2107394&doc_no=A144930 08/05/2015 Petition for writ of supersedeas filed. Immediate

Stay Requested

CJP Complaint Against Justices Kline, Richman, pg. 2

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(A136608), preventing me from appealing Mr. McKay’s first fee request for

$91,654.17. He’s now churned up $700,000 in fees and claims the 2007 TICA

provides a “contractual basis” for recovering his fees even though his clients

executed a “superseding agreement,” the 2009 CC&Rs and Bylaws, and after the

two-unit building was condo-converted. Under the California Subdivision Map

Act, the building was condo-converted by recording the parties’ Declaration (2009

CC&Rs) but my lawsuit under the 2009 CC&Rs was dismissed under the VLS.

The justices upheld the dismissal of the lawsuit I filed for breach of the 2009

CC&Rs and for Mr. McKay’s civil fraud in substituting out material terms in

drafting his proposed arbitration award for the arbitrator’s signature.

Justice Kline’s and Justice Richman’s imposition of the Doctrine of

Disentitlement on the grounds that I’m out of compliance with a “Judgment” for a

‘forced sale” of my condo pursuant to section 14.7 of the 2007 TICA precludes

any action I bring on the 2009 CC&Rs or Mr. McKay’s fraud. Their use of the

DOD functions as an irrefutable and mandatory presumption that the “arbitration

award” under the 2007 TICA is dispositive of all issue I might raised under the

2009 CC&Rs and Bylaws and any issue of whether Mr. McKay committed fraud.

II. PROCEDURAL HISTORY DISMISSING MULTIPLE APPEALS UNDER THE DOCTRINE OF DISENTITLEMENT

I’m providing the factual and procedural background so that justices’

misconduct might be better understood. In their dismissal order (A144930), the

Justices adopted Mr. McKay’s allegations that I was “out of compliance with,

(Exhibit A, pg. 1, ¶1):

(1) a trial court order to answer certain postjudgment interrogatories; (2) an injunction issued as part of the judgment enjoining his interference with the sale of a condominium, which sale was ordered by the judgment; and (3) a court order requiring Cunningham to vacate and stay away from the condominium so it could be sold.

CJP Complaint Against Justices Kline, Richman, pg. 3

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Justices Kline and Richman had previously invented or fabricated procedures that

I was suppose to satisfy in order to avoid the dismissal of an earlier appeal

(A136608).3 They then applied these same “procedures” to Mr. McKay’s new

June 30, 2015 motion to dismiss my appeal (A144930) of the order confirming the

sale of my condominium. I objected to these procedures in the earlier appeal

(A136608):

02/06/2014 Motion to dismiss filed (after record).

Respondents' Motion to Dismiss Appeal

02/07/2014 Opposition filed. Appellant's Opposition to Defendants' Motion to Dismiss

02/07/2014 To court. Respondents' Motion to Dismiss Appeal

02/11/2014 Reply filed to: Respondents' Reply Re Motion to Dismiss Appeal

02/18/2014 Response filed to:

Appellant's Declaration in Response to Defendants' Motion to Dismiss and Reply

03/10/2014 Order filed. Respondents' opposed motion to dismiss appeal, filed on February 6, 2013, will be granted on April 1, 2014, unless prior to that date appellant presents written proof that he is in compliance with all orders of the superior court. Said written proof may be in the form of: 1) an order of the court; 2) a reporter's transcript evidencing the court's opinion that appellant has complied with all pending court orders; 3) a letter from respondents to the same effect; or 4) such other written proof that is acceptable to respondents. If appellant submits such proof by April 1, 2014, respondents' motion will stand denied.

These same procedures demanding that I provide a court order or transcripts or get

Mr. McKay’s assurance of “compliance” in either a letter or some other way that

is/was “acceptable” to Mr. McKay were then dusted off and reapplied here. In the

previous appeal, I requested that Justices Kline and Richman “clarify” these

procedures.

03/11/2014 Request filed to:

Appellant's Request for Clarification of Order Demanding the Appellant Prove He's in Compliance with all Orders of the Superior Court and Request for Oral Argument on the Judge's Legal Basis for Their Order and Their View as to Why the Doctrine of Disentitlement Applices to the Fact Here (to court)

3 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2025700&doc_no=A136608

CJP Complaint Against Justices Kline, Richman, pg. 4

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03/24/2014 Filed declaration of:

Appellant's Declaration in Support Opposition to Motion to Dismiss

03/26/2014 Order filed. On March 11, 2014, appellant filed "Request For Clarification Of Order Demanding The Appellant Prove He's In Compliance With All Orders Of The Superior Court And Request For Oral Argument On The Judge's Legal Basis For Their Order And Their Views As To Why The Doctrine Of Disentitlement Applies To Fact Here." The requests for clarification and oral argument are denied.

04/01/2014 Reply filed to:

Respondents' Reply Declaration of J. Scott McKay in Support of Motion to Dismiss Appeal

04/11/2014 Response filed to:

Appellant's Response/Declaration to Mr. McKay's Declaration in Support of Motion to Dismiss Appeal (to court)

04/17/2014 Dismissal order filed.

Respondents' opposed motion to dismiss is granted and the above-entitled appeal is hereby dismissed.

In A136608, I appealed Mr. McKay’s award of $91,654.17 in attorney’s fees. Mr.

McKay insisted the parties’ 2007 Tenants-in-Common Agreement provided a

“contractual basis” under CCP §1033.5(10) for recovery even though his clients,

Mr. Coombs and Ms. Woods, had signed, executed, and recorded a subsequent

2009 CC&Rs (and Bylaws) when we converted our two-unit building from a

“tenancy-in-common” to two separately owned condominium. He churned up

these attorney’s fees on appeal and the various “vexatious litigant motions” he had

filed and insisted the fees were recoverable as “costs” under CCP 1033.5(10). In

the earlier appeal (A136608), I had already filed my “opening brief” (Exhibit C).

and argued that the 2007 TICA was “terminated” when I and Mr. McKay’s clients

signed, executed, and recorded the subsequent 2009 CC&Rs.4 I argued the 2007

TICA, therefore, provided no basis for recovering fees.

In the earlier appeal (A136608), as noted above, I not only “opposed” the

motion to dismiss, but requested that Justices Kline and Richman “clarify” their

4 A136608, AOB, pg. 1: “If the appellate court rules that the 2007 TICA was terminated by the parties’ recording of a superseding CC&Rs on September 30, 2009, then it stands to reason that Mr. McKay had no “contractual basis” to recover post-judgment attorney’s fees. On the other hand, if the appellate court rules that the 2007 TICA remained valid even after condo-conversion and the recording of the 2009 CC&Rs, then there was a “contractual basis” under CCP §1033.5(a)(10) for the recovery of post-judgment attorney fees.”

CJP Complaint Against Justices Kline, Richman, pg. 5

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impromptu procedures, provide me oral argument on the issue, and explain the

“factual basis” for their use of the Doctrine of Disentitlement because there had

been no finding of “contempt” at the trial court or any finding that I was not in

“compliance.” Although the Justices realized there was no “contempt” hearing at

the trial level and no “judicial findings” that I was out of compliance, they denied

me oral argument on March 26, 2014. Other than some vague reference to their

“inherent power,” they have not explained the factual and legal basis for their

“procedures.” Nor have they explained the legal or evidentiary basis for adopting

Mr. McKay’s bare allegation of my being in an attitude of “contempt” and,

therefore, subject to dismissal under the Doctrine of Disentitlement.

A. CONTEMPT OR FINDINGS OF WILLFUL DISOBEDIENCE IN TRIAL COURT

In this case, Mr. McKay never filed a “contempt” action at the trial court

(CPF 10-510760) in relation to any of the “court orders” he said I was allegedly

out of compliance with. If he had, I would have been able to “collaterally attack”5

the “validity” of those orders, including the facially ambiguous “Judgment” to sell

my condo “in accordance with section 14.7 of the TICA.” Section 14.7 only

applies to a “forced sale” of a “defaulting Cotenant’s cotenancy share,” not an

owner’s separately owned “condominium.” Mr. McKay asserts that I’m not “in

compliance with” these court orders but there has never been a contempt case or

any finding of “willful disobedience” of the underlying orders.

In his motion to dismiss, Mr. McKay states that an appellate court can

dismiss an appeal under the Doctrine of Disentitlement without there having been

a finding of contempt at the trial court. This is a misstatement of law by deliberate

omission. While it is true that the doctrine can be applied without a “formal

5 *See, People v. Gonzalez (1996) 12 Cal.4th 804 , 50 Cal.Rptr.2d 74; 910 P.2d 1366)

CJP Complaint Against Justices Kline, Richman, pg. 6

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190

adjudication of contempt,”6 the Court of Appeals of Aliota v Fish Co. v. Aliota

(1994) 27 Cal. App. 4th 1669 made clear that an appellate court must at least make

a finding of “willful disobedience” or “obstructionist tactics” before dismissing.

(Id., at 1683):

Although the power to stay or dismiss an appeal is typically exercised when the litigant is formally adjudicated in contempt of court, "the same principle applies to willful disobedience or obstructive tactics without such an adjudication." (9 Witkin,Cal. Procedure (3d ed. 1985) Appeal, § 172, p. 184; see also Stone v. Bach, supra,80 Cal. App.3d at p. 444.)

In Aliota, the Court of Appeals concluded that the trial court’s imposition of

sanctions “contain judicial findings that appellants have persisted in willfully

disobeying the trial court’s orders.” (Id., at 1683).

In the most recent appeal (A144930) or in the earlier appeal, there was no

“formal adjudication of contempt” against me. Likewise, in the earlier appeal as

well as the most recent appeal, there has been no “judicial findings” that I’m out of

“compliance” with any court order. However, the trial judge, on August 20, 2014,

issued the non-attorney receiver, Kevin Singer, a “writ of possession” to “remove”

me from my condominium. (Exhibit B). This “writ of possession” that SINGER

drafted for the trial judge’s signature sought my removal. Mr. McKay presented

this “proposed order” to the trial judge in a letter in which he also stated that I was

“interfering” with the receiver’s attempt to enforce the “forced sale” of my condo

under the TIC provision that related only to a “cotenancy share.” The trial judge

6 Stone v. Bach, Id. at 444, found twice to be in contempt for failing to be sworn for examination as judgment creditor; Tobin v. Casaus, (1954) 128 Cal. App. 2d 588, 589, no contempt, but bench warrant issued for failure to make court appearance; MacPherson v. MacPherson, Id. “facts established the truth” that father had “contumaciously” removed children, had been held in contempt; TMS, INC. v. Aihara, Id. at 835, no contempt, but court’s finding of “willful disobedience” to answer post-judgment interrogatories as shown by moving to Japan. Say & Say v. Castellano (1994) 22 Cal. App. 4th 88, 94; litigant’s appeal dismissed where he had “been adjudged in contempt of court on three occasions in recent months.”

CJP Complaint Against Justices Kline, Richman, pg. 7

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then scribbled a “stay-away” order on SINGER’s “proposed writ of possession”

when he signed off on it. I was never allowed to challenge my so-called

“interference” with SINGER.

B. DISMISSAL OF MULTIPLE APPEALS UNDER THE VLS AND DOCTRINE OF DISENTITLEMENT

In dismissing my appeal (A144930), Justice Kline points out that my appeal

of McKay’s award of $91,654 in fees was dismissed. Justice Kline also notes that

my appeals, A140675 and A140958, were dismissed under the Vexatious Litigant

Statute. Justice Kline also notes that my “writ of supersedeas” related to my

statutory right to a $175,000 homestead exemption was denied.

He also notes that my appeal, filed through by attorney, Patricia Barry was

dismissed under the Doctrine of Disentitlement for being “not in compliance with

trial court orders.” (Exhibit A, pg. 2, ¶5). He also claims that the motion was

unopposed, but my attorney filed a Motion for Rehearing and sought the

immediate reinstatement of the appeal. The appeal involved SINGER’s attempt to

“remove” me, the owner and title-holder, from my condo on the basis of the

August 20, 2014 “writ of possession” (Exhibit B) he drafted for the court’s

signature. After the Court of Appeals refused to reinstate the appeal, I filed a

federal civil rights suit against SINGER and Mr. McKay for conspiring to

wrongfully evict an owner from his condo. (DC NC 14-cv-03250 WHA).

08/04/2014 Rehearing petition filed.

"Appellant's Request for Rehearing Under CRC 8.268 and Immediate Reinstatement of Appeal"

08/11/2014 Received copy of:

1) Order dated 8/4/14 from U.S. District Court, Northern District of California for case No. CV 14-03250 JCS in Cunningham v. Singer et al. signed by Richard W. Wieking, Clerk of Court 2) Order Setting Initial Case Management Conference Re: Dkt. No. 10 dated 8/6/14 from U.S. District Court, Northern District of California for Case No. 14-cv-03250-VC (VC) in Cunningham v. Singer et al. signed by Vince Chhabria, United States District Judge

08/15/2014 Order denying rehearing petition filed.

Appellant's request for rehearing and immediate reinstatement of appeal is denied.

CJP Complaint Against Justices Kline, Richman, pg. 8

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On August 20, 2014, the trial judge granted SINGER’s hand-drafted “writ of

possession” on August 20, 2015 (Exhibit B). Prior to this, I had filed a writ of

mandate challenging SINGER’s unlicensed practice. When Justice Kline

summarily denied the writ I filed a petition for review with the Supreme Court

(S218853). The “appeal” (A142672) I took of the August 20, 2014 “writ of

possession” was denied by Judge Kline on August 22, 2014 because I had not filed

for “permission” to file within 10 days. Given Justice Kline’s refusal to hear my

writ on the issue of SINGER’s unlicensed practice and the trial judge’s refusal to

enforce the prohibition of unlicensed practice in Bus. & Prof. Code §6126, I filed

the federal civil rights lawsuit.

C. AUGUST 20, 2014 WRIT, ENSUING EVICTION AND ARRESTS

In his motion to dismiss A144930, Justice Kline cites the August 20, 2014

order as the third court order that I was allegedly not in “compliance with.”

(Exhibit A, pg. 1, ¶1):

(3) a court order requiring Cunningham to vacate and stay away from the condominium so it could be sold.

To be clear, the August 20, 2014 order was not an “order to vacate,” but

SINGER’s self-drafted “writ of possession” on which the trial judge attached a

“stay-away order.” (*See, Exhibit B). SINGER would approach the San Francisco

Sheriff’s Department with his August 20, 2014 writ, but the Sheriff’s Department

refused to “evict” me without the mandatory Judicial Council EJ-130 form. To get

around this obstacle, SINGER would fill out the EJ-130 form. (Exhibit D & E ).

However, the EJ-130 form was to be issued by the clerk CCP 715.050 only after a

“judgment for possession” was entered in favor a landlord, owner, or new

purchaser in an unlawful detainer action. SINGER knew that there was no

“unlawful detainer action” but represented to the clerk that there was. He would

then submit the EJ-130 form to the SF Sheriff’s Department and I’ve be “evicted”

on November 6, 2014.

CJP Complaint Against Justices Kline, Richman, pg. 9

193

193

Then, SINGER filled out a “citizen’s arrest” form and persuade the San

Francisco Police Department to have me arrested three times for “trespassing” on

my own property and for violating the “stay-away” order. (Exhibit F).

D. LACK OF JUDICIAL FINDING REGARDING RE THE THREE SETS OF COURT ORDERS

As noted above, Justices Kline and Richman simply accepted Mr. McKay’s

bare allegations in his June 30, 2015 motion that I was not in “compliance with

court orders.” There was no “formal contempt adjudication” regarding any of

these orders. Nor was there any “judicial findings” that I was in “willful

disobedience” with any of these court orders. In fact, I was denied any “notice” of

being “out of compliance” until Mr. McKay filed his motions in the appellate court

and made his allegations. On May 6, 2014, I filed a pleading that SINGER was

engaged in the misdemeanor of practicing law without a license. I also alleged that

Mr. McKay should file a “contempt” motion if he believed I was out of

“compliance.” (Exhibit G), May 6, 2014 Pleading). I certainly was not provided a

hearing at the trial court and an opportunity to challenge Mr. McKay’s allegations

of “noncompliance.”

The fact is that all three of Mr. McKay’s alleged grounds of my non-

compliance with court orders are false. His claims, in his June 30, 2015 motion to

dismiss under the Doctrine of Disentitlement are not simply false, but are

deliberate misrepresentations, willful distortions of material facts, and frauds upon

the court intended to deny me due process of law and the right to court access.

Justices Kline and Richman just presumed Mr. McKay’s bare assertions were

truthful without substantiating them. The justices dismissed my appeals and

denied me court access and due process of law and made their rulings on the false

statements of Mr. McKay.

1. SINGER’s August 20, 2014 Writ of Possession and Stay-Away Order

CJP Complaint Against Justices Kline, Richman, pg. 10

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194

At an August 5, 2014 hearing, SINGER and McKay argued that the non-

attorney SINGER was entitled to a “writ of possession” by virtue of his

appointment as a receiver. They argued at the trial court and the federal civil rights

suit that there was no need for an unlawful detainer action and that I could be

“removed” as the owner via SINGER’s writ. However, the San Francisco Sheriff’s

Department would not “evict” unless they had the mandatory EJ-130 form.

SINGER then committed various frauds in filling out the EJ-130 and representing

that there was an unlawful detainer act and that he had obtained a “judgment for

possession.” (Exhibits D & E).

Furthermore, if there had been a “hearing” at the trial or appellate level or

oral argument at the appellate level, I could have provided “evidence” of Mr.

McKay’s frauds on the court. Justice Kline could have made a “judicial finding”

on the basis of facts, evidence, and testimony instead of the unsubstantiated and

bare allegation of Mr. McKay. Instead, the justice denied such due process

protections.

Ironically, I had to be arrested three times for allegedly violating the

August 20, 2014 writ with its “stay-away” order before I was given an opportunity

to challenge the validity of the order and given a chance to expose SINGER’s

frauds upon the court. I then filed a habeas corpus writ. On appeal from the trial

court, Justice Kline got a chance to review the evidence and the EJ-130 I

submitted. Justice Kline apparently read my writ regarding SINGER’s unlicensed

practice and illegal conduct related to my November 6, 2014 eviction and must

have realized he’d denied my appeal of the August 20, 2014 order. In his denial of

my habeas corpus writ, Justice Kline ruled that SINGER’s unlicensed practice was

not improper and that the “writ of possession” was not improper. His terse opinion

holding, which I appealed to the Supreme Court (S229939, Exhibit H), stated:

10/09/2015 Order denying petition

Archibald Cunningham has filed a petition for writ of habeas corpus challenging his arrest and pending prosecution for multiple counts of violating California Penal Code, section 166(a)(4), disobeying a court order.

CJP Complaint Against Justices Kline, Richman, pg. 11

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filed. Cunningham claims the "stay-away order" he is charged with violating is not valid because 1) it arose from a writ of possession, which, petitioner claims, can only issue in the context of an unlawful-detainer action; 2) it was secured by a court-appointed receiver engaging in the unlicensed practice of law. These claims are without merit. The writ-of-possession procedure is commonly used in proceedings other than unlawful detainer to obtain property that is security for a debt in default or to obtain property whose ownership is in dispute. (See, e.g. Edwards v. Sup. Ct. (1991) 230 Cal.App.3d 173.) Further, as petitioner concedes, the Code of Civil Procedure, section 564, permits the court to appoint a receiver in authorized cases "to do such acts respecting the property as the Court may authorize." (Code Civ. Proc., § 568.) Here, it undisputed, the receiver acted in his appointed capacity as the superior court had authorized. The cases petitioner cites in this regard are thus wholly inapposite. Petitioner's additional arguments are rejected as frivolous. The petition for writ of habeas corpus and petitioner's motion to recuse Justices Kline and Richman are denied.

In upholding the lower court, Justice Kline cited the case of Edwards v. Sup. Ct.

as authority for SINGER to “evict” an owner from his own property. The Edwards

case, however, involved a cause of action for a writ of possession of “personal

property” under CCP §512.010 to recover a prized show-dog named “Notty

Nada.” Justice Kline knew that SINGER was not trying to recover “personal

property,” but sought “possession” of real property. It defies reason to believe that

Justice Kline, with 20-30 years of appellate experience, cannot grasp the

difference between a “writ of possession” related to “real property” as opposed to

“personal property.” His citation to this case cannot be explained by ineptitude or

a good-faith error. It defies any notion of fair play or reasonableness for Justice

Kline not to “research” the law if he didn’t understand the distinction between

personal and real property. Further, in my petition, I pointed out SINGER’s frauds

related to his obtaining the EJ-130 form. But Justice Kline just ignored these facts

and refused to admit or acknowledge the almost incontrovertible evidence of his

fraud.

In any case, by the time Mr. McKay filed his June 30, 2015 motion, he was

aware that the material facts and circumstances of the case had changed. I could

not very well comply with an order to “vacate” or “stay-away” from my property

after SINGER had sold the property and the new owner had moved in by June 15,

2015, two weeks before Mr. McKay alleged I was out of compliance. These new

CJP Complaint Against Justices Kline, Richman, pg. 12

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facts should have been self-evident to Justice Kline because he was named as a

defendant in the federal civil rights suit (DC ND 14-cv-03250 WHA). Further, in

granting Mr. McKay’s motion, he dismissed the appeal I took of the order

confirming the sale of my condo. Justice Kline simply failed to notice the material

facts and ignored Mr. McKay’s deliberate suppression of them to mislead the

court and obtained a dismissal under the DOD.

2. There Was No Finding of a Failure to Respond to Interrogatories

In his June 30, 2015 order to dismiss my appeal under the Doctrine of

Disentitlement, Mr. McKay states ( pg. 6, ¶2):

“….On January 7, 2014, the Court ordered Cunningham to answer the interrogatories and hand serve such answers within 10 days of service of the order. The order was served on Cunningham by mail on January 8, 2014. See order and proof of service, Exhibit B hereto. Answers were thus due, by hand delivery, on January 23, 2014. No answers have ever been provided by Cunningham. Cunningham was clearly available to answer such interrogatories, as he has filed many pleadings in various cases, and has appeared at numerous state and federal court hearings, since the due date for such answers.”

In stating that I “never provided” an answer, Mr. McKay has committed a

deliberate misrepresentation and deceit upon the court. Mr. McKay sought

interrogatories related to his “examination” of my finances. Mr. McKay knows

very well that on the so-called “due date” of January 23, 2014, I filed a motion to

quash his request for interrogatories. 7

JAN-23-2014 EX PARTE APPLICATION FOR ORDER TO QUASH SERVICE OF EXAMINATION FILED BY DEFENDANT CUNNINGHAM, ARCHIBALD

7 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760

CJP Complaint Against Justices Kline, Richman, pg. 13

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He knows very well that the trial judge, Judge Dorfman of Dept. 514 (where the

“examination” was being held), then continued the hearing for March 20, 2014.

JAN-28-2014 ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD CUNNINGHAM, ON JAN-28-2014 CONTINUED TO MAR-20-2014 AT 2:00 PM IN DEPT. 514 FOR FURTHER EXAMINATION AND COMPLIANCE WITH PRODUCTION OF DOCUMENTS PURSUANT TO SUBPOENA DUCES TECUM. COURT ORDERED MR. CUNNINGHAM TO RETURN ON MARCH 20, 2014 AT 2:00 PM, TO DEPRTMENT 514. NO FURTHER NOTICE IS REQUIRED. COURT ORDERED MR. CUNNINGHAM TO ANSWER QUESTIONS IN GOOD FAITH. MR. CUNNINGHAM TO PROVIDE MR. MCKAY ALL DOCUMENTS IN RESPONSE TO SUBPOENA DUCES TECUM BY FRIDAY JANUARY 31, 2014. J. SCOTT MCKAY, ESQ., APPEARING FOR JUDGMENT CREDITOR. PROCEEDINGS NOT REPORTED. (514)

I complied with Judge Dorfman’s orders and provided answers and documents.

Next, Mr. McKay, after receiving the answers and required documents, simply

filed a motion to take the “examination” off calendar.

MAR-19-2014

ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD CUNNINGHAM, ON MAR-20-2014 OFF CALENDAR AT THE REQUEST OF THE MOVING PARTY. (514)

Mr. McKay deliberately suppresses any mention of Judge Dorfman’s subsequent

actions and his own motion to take the “examination” off calendar. (Franklin v.

State Bar (1986) 41 Cal. 3d 700, 709; half-truth is identical to a lie). Mr. McKay

took the matter off calendar instead of resolving any issues he might have had.

If he felt that my answers were not “in good faith,” then his remedy was to

go to the hearing and explain that to Judge Dorfman or file a contempt case as I

pointed out in my May 6, 2014 pleading. (*See, Exhibit G). Instead, he willfully

and deliberately mislead the court in this appeal (A143930) and in the previous

appeal (A136608) related to his fee request of over $91,654. He misleads the court

by omitting material facts that Judge Dorfman had taken the entire matter of the

“examination” and his request for “interrogatories” off calendar. His deliberate

CJP Complaint Against Justices Kline, Richman, pg. 14

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concealment of material facts is the same as lying. (In the Matter of Chestnut

(2000) 4 Cal. State Bar Cr. Rptr 166, 174).

Justice Kline’s acceptance of Mr. McKay’s bare allegations as the gospel

truth without investigation and without providing me an oral argument or an

opportunity not only denied me procedural due process but amounted to

“collusion” in Mr. McKay’s fraud on the court. His deliberate refusal to verify

facts and research the matter evinces bad faith.

3. The Issue of Complying With the Injunction Was Irrelevant After Sale.

In his motion to dismiss, Mr. McKay states that I was out of compliance

with the “injunction” in the April 13, 2011 “Judgment” for the sale of my

condominium “in accordance with section 14.7 of the 2007 TICA.” Justice Kline,

in his dismissal order states (Exhibit A, pg. ¶1):

(2) an injunction issued as part of the judgment enjoining his interference with the sale of a condominium, which sale was ordered by the judgment;

For the sake of clarification, the “injunction” required that I “cooperate” rather

than not “interfere” with the “forced sale” of my “condominium” in “accordance

with section 14.7 of the TICA.” Section 14.7 of the 2007 TICA, however,

provided for the “forced sale” of the “defaulting Cotenant’s cotenancy share,” not

my separately owned condominium. Section 14.7 related to the “cotenancy share,”

not a separately owned condominium. After conversion of the two unit building to

condominium on September 30, 2009, when I and the co-owners Coombs and

Woods recorded our Declarations (2009 CC&Rs), the property was converted

under the Cal. Subdivision Map Act. I could neither “cooperate” nor “interfere”

with a facially ambiguous order that resulted from Mr. McKay’s initial fraud on

the arbitrator. (In drafting his proposed arbitration award, he substituted out the

material terms “defaulting Cotenant’s cotenancy share” from the 2007 TICA and

inserted “condominium.”).

CJP Complaint Against Justices Kline, Richman, pg. 15

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III. JUSTICE KLINE’S BAD FAITH RULINGS IN THE CRIMINAL CONTEMPT ACTION UNDERMINES THE BASIS FOR APPLIYING THE

DISENTITLEMENT DOCTRINE IN THE CIVIL CASE (A144930).

Mr. McKay asserted that I was “out of compliance” with the receiver’s

August 20, 2014 “writ of possession” with its attached “stay-away” order.

(Exhibit B). However, at the time he filed his declaration on June 30, 2015, I

could not be in or out of compliance with an order to “stay-away” from my own

condo because my condo was sold and the new owner had moved in. These facts

were evident on the face of the appeal and the supporting documents in the writ of

supersedeas. Yet, Justice Kline deliberately and willfully failed to substantiate Mr.

McKay’s bare allegations. In that way, they apparently allowed Mr. McKay to

mislead the court or enabled him suppress facts and events.

Next, and as explained in greater detail below, Justices Kline and Richman

simply presumed I was out of compliance with the “stay-away” order. The trial

court never made a determination on the issue nor did Mr. McKay file a

“contempt” action at the trial court where I could have challenged the “validity” of

the August 20, 2014 writ. In fact, I had to be evicted and “arrested” three times in

order to collaterally attack the validity of the August 20, 2014 “stay-away order”

in a habeas corpus petition. (Exhibit B, Exhibit H).

On appeal of my habeas corpus petition, I filed a motion to “disqualify”

Justices Kline and Richman because the issues in the habeas corpus case were

identical to the matters in Mr. McKay’s motion to dismiss the appeal under the

DOD. 8 They had already dismissed the appeal on Mr. McKay’s bare allegations.

09/24/2015 Motion filed.

Petitioner Cunningham's "Motion to Recuse Justices Anthony Kline and James Richman Pursuant to Judicial Canon"

8 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2120780&doc_no=A146271

CJP Complaint Against Justices Kline, Richman, pg. 16

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In dismissing the appeal, the justices merely presumed I was out of compliance

with the August 20, 2014 writ. They presumed that Mr. McKay and SINGER had

acted properly. They presumed a non-lawyer receiver was authorized to practice

law without a license and “remove” an owner from his own property by virtue of

his appointment. They presumed the underlying orders were “valid” and proper.

Now, to rule in my favor in the criminal case, they’d also have to admit they were

manipulated by Mr. McKay and had issued erroneous decisions. To rule in my

favor, they would have to reverse themselves and act contrary to all of their

presumptions. To do so they’d implicitly have to acknowledge I was denied

procedural due process in the civil appeal by their presumptions. On the other

hand, to refuse to recuse themselves, Justices Kline and Richman would also be

appearing to advocate not just for Mr. McKay, but for their own opinions and own

rulings. Whether they realized it not, their refusal to recuse themselves created the

appearance that they could be advocating for their own rulings and thereby save

face in having to reverse multiple of their own orders and rulings.

To avoid these issues and the appearance of bias, they should have recused

themselves, but they refused to do so without a word of explanation. It would

seem any reasonable person would question whether their decision was in good

faith. After reading Justice Kline’s patently erroneous and terse opinion in the

habeas corpus ruling, it’s hard to quibble that he was not acting in bad faith.

Moreover, it’s not just that his opinion is patently erroneous that I find

objectionable. In my habeas corpus writ to the Court of Appeals, I included

pleadings from the court-appointed receiver, SINGER, that showed that I was not

“evicted” on the basis of the August 20, 2014 writ, but on the mandatory Judicial

Council EJ-130 forms that SINGER fraudulently obtained from the court clerk

after misrepresenting material facts. (*See, Exhibits D & E). Both my eviction

and multiple arrests were the product of the fraud of SINGER who was aided and

abetted by Mr. McKay testimony in the state and federal courts.

CJP Complaint Against Justices Kline, Richman, pg. 17

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Yet, in his opinion on the habeas corpus petition, Justice Kline simply

ignored the evidence I attached. Confronted with evidence that seemingly refuted

any presumption that I was “out of compliance” with a “stay-away” order, Justice

Kline rendered an opinion that is clearly erroneous. Worse yet, confronted with

evidence of SINGER’s fraud, he ignored the evidence. At the same time, he

conceded that I could not be “removed/evicted” under the Unlawful Detainer Act

since I am/was the owner as opposed to a tenant. (A146271)9:

10/09/2015 Order denying petition filed.

Archibald Cunningham has filed a petition for writ of habeas corpus challenging his arrest and pending prosecution for multiple counts of violating California Penal Code, section 166(a)(4), disobeying a court order. Cunningham claims the "stay-away order" he is charged with violating is not valid because 1) it arose from a writ of possession, which, petitioner claims, can only issue in the context of an unlawful-detainer action; 2) it was secured by a court-appointed receiver engaging in the unlicensed practice of law. These claims are without merit. The writ-of-possession procedure is commonly used in proceedings other than unlawful detainer to obtain property that is security for a debt in default or to obtain property whose ownership is in dispute. (See, e.g. Edwards v. Sup. Ct. (1991) 230 Cal.App.3d 173.) Further, as petitioner concedes, the Code of Civil Procedure, section 564, permits the court to appoint a receiver in authorized cases "to do such acts respecting the property as the Court may authorize." (Code Civ. Proc., § 568.) Here, it undisputed, the receiver acted in his appointed capacity as the superior court had authorized. The cases petitioner cites in this regard are thus wholly inapposite. Petitioner's additional arguments are rejected as frivolous. The petition for writ of habeas corpus and petitioner's motion to recuse Justices Kline and Richman are denied.

However, he suggested I could be removed/evicted under another type of “writ”

such as the one used in the Edwards v. Superior Court case. But the Edwards case

did not involve a “writ of possession” for possession of real property as did

SINGER’s August 20, 2014 writ. Rather, the Edwards case involved a writ of

possession for “personal property” (CCP 512.010) of a prized show-dog named

Notty Nada. For Justice Kline to suggest that I could be “removed” from my

condo by a statute related to “personal property” defies reason.

For an experienced Yale-educated appellate justice such as Kline not to

understand the distinction between writs of possession for “personal property” as

opposed to “real property” is beyond the pale. It’s incredulous. A first-year law

9 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2120780&doc_no=A146271

CJP Complaint Against Justices Kline, Richman, pg. 18

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student would be flunked out of a reputable law school for failing to comprehend

the distinction between “real” and “personal” property. Justice Kline’s legal error

could not reasonably be argued to have been made in “good faith,” particularly

where he ignores evidence of Mr. McKay’s misleading statements and SINGER’s

illegal actions. (While the Supreme Court has ruled that “good faith legal error” is

not a basis to discipline a judge for violation of the Code of Judicial Ethics, the

court specified certain instances of conduct or circumstances that “in addition” to

the “legal error,” would support a finding of judicial misconduct by the

commission, namely, “bad faith,” “bias,” “abuse of authority,” “disregard for

fundamental rights,” “intentional disregard of the law,” “or any purpose other than

the faithful discharge of judicial duty.” Oberholzer v. Commission on Judicial

Performance (1999) 20 Cal.4th 371, 482).

IV. Justice Kline and Justice Richman Committed Multiple Acts of Judicial Misconduct.

A. Procedural Invalidity of Dismissal.

1. The Justices Failed to Follow Case Law Related to Doctrine of Disentitlement.

In dismissing the appeal under the Doctrine of Disentitlement, Justice Kline

and Justice Richman engaged in willful misconduct as well as prejudicial conduct.

First, they ignored the settled procedures for dismissing an appeal under the

doctrine. As noted in Aliota Fish Co., an appellate court does not need to rely on a

“formal adjudication of contempt” to support a dismissal but there must be a

“judicial finding” of “willful misconduct” or “obstructionists tactics.” Instead of

following these settled procedures, Justice Kline and Richman relied on the bare

allegations of Mr. McKay. They simply presumed that Mr. McKay’s statements

were true without any judicial findings at the trial level. This denied me procedural

due process protections at the trial court level and excused Mr. McKay from

substantiating his claims of non-compliance. If Mr. McKay believed I was out of

CJP Complaint Against Justices Kline, Richman, pg. 19

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compliance, he should have filed an affidavit for contempt under CCP §1209 as I

suggested in my pleading of May 6, 2014 or sought some sanctions based on my

“willful disobedience.” (*See, Exhibit G). By accepting Mr. McKay’s bare

allegations, the justices negated the need for Mr. McKay to follow mandated

contempt procedures (CCP §1209) or to make a showing of “willful disobedience”

at the trial level. (In Cannon v. Commission on Judicial Qualifications (1975) 14

Cal. 3d 678), the Supreme Court held that ignorance of proper contempt

procedures, without more, constituted bad faith.).

2. The Justices Invented New Procedures For Implementing Doctrine of Disentitlement. Second, Justice Kline and Richman invented and fabricated procedures that

I had to satisfy in order to “disprove” Mr. McKay’s unsubstantiated allegations.

While courts have inherent rule-making authority, the exercise of such authority

must not be “inconsistent with the Constitution or case law.” (Rutherford v.

Owens-Illinois (1997) 16 Cal. 4th 953, 967-968).10 Their new procedures ignored

the controlling case law, such as Aliota Fish Co., Stone v. Bach, McPherson, etc.

This constituted willful misconduct. They knew that there was no “formal

adjudication of contempt” or finding of “willful disobedience” at the trial level.

Their new procedures did not require Mr. McKay to provide “evidence” that I was

in “an attitude of contempt,” but required me to “disprove” his allegations. They

gave Mr. McKay an end-around the case-law and mandated procedures. In that

10 Elkins v. Sup. Ct. (2007) 41 Cal. 4th 1337, 1345: Reviewing courts have not hesitated to strike down local court rules or policies on the ground they are inconsistent with statute, with California Rules of Courtpromulgated by the Judicial Council, or with case law or constitutional law. Appellate decisions have invalidated local rules or restricted their application in many areas of affected litigation, including dissolution actions,[5] litigation under the Trial Court Delay Reduction Act (Gov.Code § 68600 et seq.) (fast track litigation),[6] complex litigation (Cal. Rules of Court, rule 3.400 et seq.),[7] and general civil litigation.[8] We also have disapproved rules and procedures adopted by the Courts of Appeal (seePeople v. Pena (2004) 32 Cal.4th 389, 400, 9 Cal.Rptr.3d 107, 83 P.3d 506), as well as rules adopted by the Judicial Council. (See People v. Hall (1994) 8 Cal.4th 950, 963, 35 Cal.Rptr.2d 432, 883 P.2d 974.)

CJP Complaint Against Justices Kline, Richman, pg. 20

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respect, they dismissed my appeal (the sale of my condo) and my writ ($175,000

homestead exemption) not based on any “evidence” but based on my “failure to

disprove” bare allegations. (The misconduct in this matter is especially serious

because it indicates that the judge was willing to fabricate justifications for a

challenged ruling. This is misconduct of the worst kind, evidencing moral

turpitude and dishonesty. We agree with the Commission that Judge Ryan

committed willful misconduct.” Ryan v. Commission on Judicial Performance

(1988) 45 Cal.3d 518, 545 (1988).

3. New Procedures Upend Evidence Code and Evince Lack of Impartiality.

Third, the justices’ new procedures evince their underlying lack of

impartiality, bias, and animus toward me. In fabricating new procedures, they

prejudiced my case as well as engaging in willful misconduct. Justice Kline’s and

Justice Richman shifted the burden to me by demanding I “disprove” non-

compliance. In doing this, they rewrote the Evidence Code with respect to the

burden of proof, mandatory presumptions, etc., and relieved Mr. McKay of the

burden of proving his claim of noncompliance or contempt at the trial level under

Evid. Code section 500. Instead, they required me to “disprove” noncompliance on

appeal as a defense to his bare allegations and to do so without a hearing and to

Mr. McKay’s satisfaction. Rigging a game as they did here can hardly be

considered a matter of “good faith.”

The procedures called for me to get a court order within three weeks,

provide a transcript, or get a “letter” from Mr. McKay or some other “written

proof” that was “acceptable” to him. In imposing these procedures, the justices

delegated their responsibility as judges to a party to the litigation. In essence, the

justices delegated to Mr. McKay the right to act in a “judicial capacity” and to

determine the outcome of the case. They gave Mr. McKay a veto power over my

right to appeal, my right to a homestead exemption, and my right to prevent the

“forced sale” of my condo by the frauds of Mr. McKay and receiver, Kevin

CJP Complaint Against Justices Kline, Richman, pg. 21

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Singer. In doing this, they abandoned their role as neutral adjudicators and

displayed their favoritism toward Mr. McKay. (Preamble to Code of Jud. Ethics.

Judges cannot be advocates for the interests of any parties; they must be, and be

perceived to be, neutral arbitrator of both fact and law). In fact, their improvised

procedures, in the greater context, amount to willful misconduct.

4. Justices Refusal to Clarify New Procedures or Provide Oral Argument Deny Me Procedural Due Process.

Fourth, Justice Kline and Justice Richman, in denying me “oral argument”

on the issue of non-compliance engaged in prejudicial misconduct if not willful

misconduct. On March 13, 2014 I filed “opposition” to their “new procedures

(A136608), sought oral argument on the factual and legal basis for the doctrine,

and I even requested “clarification” of the standards I would have to “satisfy” to

avoid a dismissal of an appeal. They applied this same standard in my appeal of

Mr. McKay’s $97,654 fee request as well as the instant appeal challenging the

non-lawyer receiver’s “sale” of my “condo” under a TIC provision that related

only to a “defaulting Cotenant’s cotenancy share.” They based their dismissal on

erroneous presumptions, such at validity of the receiver’s August 20, 2014 “writ of

possession” with its “stay-away order.” But, as shown above, SINGER evicted me

by fraudulently obtaining the mandatory Judicial Council EJ-130 form and

misrepresenting facts and law. He then submitted false statements to the SF Police

to have me arrested multiple times. Mr. McKay “aided and abetted” him by

misleading the district court to the nature of the eviction.

In denying me “oral argument” at the appellate level,11 the justices not only

denied me an opportunity to challenge the factual and legal basis of the

11 "Mistakes, errors, fallacies and flaws elude us in spite of ourselves unless the case is pounded and hammered at the Bar”; Moles v. Regents of University of California (1982) 32 Cal. 3d 867, 872; “…not infrequently oral argument develops a new issue overlooked or not adequately briefed. This gives the court an opportunity to instruct counsel to prepare supplemental briefing during a

CJP Complaint Against Justices Kline, Richman, pg. 22

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applicability of the Doctrine of Disentitlement, but enabled Mr. McKay’s

fraudulent allegations to be accepted as the gospel. Further, the dismissal of my

appeal and writ not only allowed Mr. McKay and SINGER to sell by condo and

pillage $800,000 I had in equity to recover the fees they rang up in committing

their various frauds, but it paved the way for having me arrested multiple times.

Justice Kline and Richman summarily denied my writs related to SINGER’s

unlicensed practice. They denied me court access under the VLS to appeal or file

writs related to his SINGER’s request for a “writ of possession,” which I again

challenged on the grounds that all order by unlicensed parties are null and void.

In view of the fact that Mr. McKay could not dismiss my criminal habeas

corpus writ by virtue of the VLS or the Doctrine of Disentitlement, Justice Kline

was finally forced to address the issue. As noted above, Justice Kline ruled that I

could be “removed/evicted” by virtue of SINGER’s writ of possession. He cited to

the Edwards case, a case involving a “writ of possession” for recover of

“personal property,” not a writ related to ‘possession” of “real property.” This is

not some simple erroneous decision. His ruling cannot be explained as a matter of

error. Justice Kline has over 30 years of experience as a judge and it’s beyond the

pale that he doesn’t comprehend distinction between “real” and “personal”

property. (An experienced judge’s failure to research proper procedures as been

found to constitute bad faith under the Wenger two-prong test. Ryan, supra, at

533).

5. Justices Kline and Richman Ignored the Significance of Mr. McKay’s Filing of 14 Vexatious Litigant Motions (A Vexatious Attorney?) And Refused to Follow Case law Holding That “Prefiling Orders” Do Not Apply to Defendants.

Fifth, Justice Kline and Justice Richman fault me as a “vexatious litigant”

in their order dismissing my appeal (Exhibit A, pg. 1, ¶2). They say that I’ve filed

specified period." (Mosk, In Defense of Oral Argument (1999) 1 J.App.Prac. & Proc. 25, 27.)

CJP Complaint Against Justices Kline, Richman, pg. 23

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an “extraordinary number of appeals from postjudgment orders in this case” and

that I’m subject to a “prefiling order.” Yet, they neglect to mention that Mr.

McKay has filed 13 or 14 “vexatious litigant” motions in this case. Yet, I’m the

“defendant” in the underlying arbitration case. They know or should know that

there is case law saying I’m not subject to “prefiling orders” as a “defendant.”

(Mahdavi v. Sup. Ct. (2008) 166 Cal. App. 4th 32; John v. Sup. Ct. of Los

Angeles (2014) B256604; “Section 391.7's Prefiling Order Requirements Do Not

Apply to a Self-represented Defendant Appealing from an Adverse Judgment,”

and; Imposing the VLS against a pro per defendant “impedes a self-represented

defendant's right of access to the appellate courts.”).

Further, they know or should know that Mr. McKay has filed 13 to 14

“vexatious litigant” motions against me in the trial court, in the appeals, and

whether I’m represented or the “defendant.” I’m been denied court access every

time I file a motion related to Mr. McKay’s fraud in substituting out material

terms or when I try to vindicate my rights under the 2009 CC&Rs and Bylaws.

Justice Kline and Justice Richman know that the plain language of the VLS allows

“moving defendants” to bring “vexatious litigant” motions, but they have allowed

Mr. McKay, the “moving Plaintiff” to file at least three such motion in the appeals

and have upheld his doing so at the trial court. In so doing, they knowingly acted

in excess of statutory authority and “beyond their lawful authority.” (Ryan v.

Commission on Judicial Performance, supra, at 635). This was both prejudicial

and willful misconduct.

6. Justices Engaged in Willful Misconduct in Declaring Me Vexatious on Appeal.

Sixth, Justice Kline and Justice Richman acted in bad faith and

prejudicially when they themselves decided to determine, on appeal, that I was

“vexatious.” On appeal, Justice Kline and Justice Richman were the judicial

officer’s who found me vexatious by counting “recusal motions” not considered at

CJP Complaint Against Justices Kline, Richman, pg. 24

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the trial court. (A124717, full text of opinion is available on Google Scholar).12

Under the ruling of Leone v. Medical Board of Cal. (2000) 22 Cal. 4th 660, they

could not count “summarily denied” writs and petitions as “vexatious,” so they

scrambled to find cases to keep me among the vexatious. They conducted their

own self-serving and one-sided investigation. They turned their appellate court

into an impromptu trial court and brought up the issue of my “recusal motions”

against judges. These matters were not before the trial court and not before them

on appeal. They counted these as “vexatious” to keep me within the ranks of the

“vexatious.” ("By undertaking a collateral investigation [the judge] abdicated his

responsibility for deciding the parties' dispute on pleadings and evidence properly

brought before him." Wenger v. Commission on Judicial Performance (1981) 29

Cal. 3d 615, 656).

They did not request “additional briefing” or give me oral argument. I was

not given any notice they were doing this or provided any opportunity to set them

straight as to their erroneous presumptions. This was at once a denial of my

procedural due process rights, an act in excess of their jurisdiction, and an “abuse

of the judicial process.” (A judge's attempt to "take [an attorney] unawares" by

concealing material information, as petitioner did here, is "an abuse of the

judicial process" constituting willful misconduct. (Wenger v. Commission on

Judicial Performance (1981) 21 Cal. 3d 615, 631).

When I appealed a “vexatious litigant” ruling from the family law court

(A121417), I pointed out in my opening brief that there was an on-going criminal

contempt case against me. I noted that I was appointed an attorney in the criminal

case, Peter Furst. I had taken a 5th Amendment plea. At the time Peter Furst failed

to show up for the second scheduled contempt trial, Judge Donald Sullivan was

rotated to a new department. Commissioner Slabach conducted an all-purpose

12 https://scholar.google.com/scholar_case?case=17086511006369671895&q=A124717&hl=en&as_sdt=2006

CJP Complaint Against Justices Kline, Richman, pg. 25

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hearing on January 22, 2009 where Mr. Furst’s partner, Margret Pendergrass,

showed up and explained that Mr. Furst would be unavailable for 6-8 weeks.

Instead of ordering a “Marsden” hearing, Commissioner Slabach, over my

objections, set a “status conference” for February 9, 2009. I told her I’d taken a 5th

Amendment plea and would not attend and she told Ms. Pendergrass to inform

Peter Furst of the hearing. He failed to show up at that “status conference” hearing

as well.

Commissioner Slabach also appointed Judge Patrick Mahoney to preside

over the on-going contempt case and “trailing matters” in the dissolution case.

Before the status conference, I sought to recuse the newly-appointed Judge

Mahoney who was to hear the criminal contempt case. Because the court-

appointed attorney for the criminal contempt, Peter Furst, was “unavailable,” I had

to write and submit my preemptory challenge (CCP §170.6) myself. But Judge

Mahoney refused to recuse himself. Then Justice Kline “summarily denied” one of

the writs I had to file because Mr. Furst was unavailable to file it. Justice Kline not

only found one of my writs “defective” but he counted all of them in order to

have me “qualify” as “vexatious.” (A124717):

Cunningham v. Superior Court (A123942, filed Feb. 4, 2009.) We denied this writ petition on February 6, 2009, with an order stating: "The petition for writ of mandate is denied. Petitioner attempted to challenge two judges in one challenge under Code of Civil Procedure section 170.6. That section, however, allows for a party to only challenge one judge. [Citation.] Thus, the challenge filed by Petitioner was invalid on its face.

By bringing up the issue of whether my “recusal motions” should be considered

vexatious on appeal, Justice Kline deprived me of any opportunity to challenge his

factual and legal presumptions related to them. He clearly did not understand that

if Mr. Furst was “unavailable,” he was not able to write the 170.6 preemptory

challenge he found “defective” or the writs related to the fact that Judge Mahoney

refused to recuse himself. In short, I was denied due process to challenge the

rulings and to point out that I was deprived my 6th Amendment right to effective

CJP Complaint Against Justices Kline, Richman, pg. 26

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assistance of counsel. In their ruling (A124717), Justice Kline laments he “failed

to see” any factual relation but he makes this statement after denying me a hearing

where I would have opened his eyes to the facts.

Cunningham contends the court violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel when it denied his right to court-appointed counsel at "critical stages" of the proceedings, including the February 9, 2009 status conference and hearing on Perry's application for an OSC at which the court reissued the OSC.

The court appointed counsel for Cunningham for the limited purpose of representing him in the contempt proceeding initiated by Wang. Cunningham was not entitled to court-appointed counsel at proceedings unrelated to that contempt matter. We fail to see how Cunningham's appearance without counsel at the February 9, 2009 status conference or at hearings on Perry's OSC application would violate his Fifth or Sixth amendment rights. (emphasis added).

The fact is that there would have been no “status conference” with Judge Mahoney

if Peter Furst had provided effective assistance of counsel by not disappearing for

6-8 weeks and if he had written the 170.6 preemptory challenge as the “court-

appointed” attorney. Likewise, if Peter Furst had attended the status conference he

would have informed the newly-appointed Judge Patrick Mahoney that the

“contempt case” was given a scheduling priority and that attorney Maria Schopp’s

attempt to bump her “vexatious litigant” motion to the front of the line was not

only contemptuous of Judge Sullivan’s prior scheduling order but an a fraud on

the court.

In summary, Justice Kline and Justice Richman impromptu consideration of

my “recusal motions” on appeal reviews matters that were not raised at the trial

court, prevented me from addressing the factual underpinnings and overlap with

the criminal contempt case and the family law actions. They just presumed to

know the facts and presumed I was not denied my 6th Amendment right to

effective assistance of counsel. Clearly, if Peter Furst wrote the 170.6 motions and

the writs then those “actions” would not have been counted against me when

CJP Complaint Against Justices Kline, Richman, pg. 27

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Justice Kline ferreted out other “writs” to add up to brand me a “vexatious

litigant.” To this day, I’m considered “vexatious” because of their failure to

provide me procedural due process and their “failure to see” (because of their

improper and illegal use of their appellate court as a trial court) how I was denied

“effective assistance” of counsel. The failure of Justice Kline and Richman “to

see” how I was denied effective assistance of counsel while denying me

procedural due process with “oral argument,” is itself a form of collusion in the

denial of my right to counsel. (The California Supreme Court held in Gonzalez v.

Commission on Judicial Performance, (1983) 33 Cal. 3d 539 held that

conducting judicial proceedings in the absence of counsel constitutes judicial

misconduct, Id. at 372).

8. The Justices Are Embroiled In This Case as Evinced By Their Plague of Erroneous Decisions.

Justice Kline and Justice Richman are both embroiled in this conflict as

shown by their conduct noted above and their implicit judgment that I’m filing “an

extraordinary number of appeals.” (Exhibit A, pg. 1, ¶2). Mostly, they are

invested in covering up their “extraordinary number” of erroneous decisions. For

instance, they upheld a judgment confirming an “arbitration award” that Mr.

McKay took on the 2007 TICA, not the 2009 CC&Rs and Bylaws. (*See,

A131914). Mr. McKay filed for “arbitration” on the 2007 TICA even though his

clients had signed, executed, and recorded their Declaration (2009 CC&Rs and

Bylaws) and the two-unit building was converted from ownership held as a

“cotenancy” and into separately owned condominiums. (*See, Civil Code §§1352-

1353). This conversion occurred by “operation of law,” yet Mr. McKay sued on

the 2007 TICA. The trial judge ordered the parties into “arbitration” on the 2007

TICA, not the 2009 CC&Rs (which did not have a binding mandatory arbitration

clause).

At the October 19, 2010 hearing on Mr. McKay’s petition to compel

arbitration, the trial judge’s subject matter jurisdiction was limited to the narrow

CJP Complaint Against Justices Kline, Richman, pg. 28

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issue of whether there was an agreement to arbitrate. (“The only question

implicated by the petition to compel arbitration is whether the arbitration

agreements should be specifically enforced.” Rosenthal v. Great Western Bank

Fin. Securities (1996) 14 Cal. 4th 394, 412). The trial judge ordered me and Mr.

McKay’s clients into “arbitration” on the 2007 CC&Rs without making any ruling

on the issue of having dueling contracts or whether there was any “interplay”

between them. At arbitration, the arbitrator’s authority to fix remedies was limited

to the 2007 TICA. (“The powers of an arbitrator derive from, and are limited by,

the agreement to arbitrate.” Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1, 8).

In drafting his proposed arbitration award, Mr. McKay’s remedy under the 2007

TICA was a “forced sale” of the “defaulting Cotenant’s cotenancy share.” He

knew this but asked for a “forced sale” of “Mr. Cunningham’s condominium.” He

substituted out material terms and inserted “condominium.” In doing this, he

rewrote the 2007 TICA, the 2009 CC&Rs, the California Subdivision Map Act,

and contract provisions related to mutual intent (Civil Code §§635-649).

On appeal (A131914),13 Justice Kline ignored and dismissed my claims that

Mr. McKay had improperly rewrote the contracts. They ruled that this matter was

not raised in the trial court and that my allegations of improper or fraudulent

conduct by Mr. McKay was an ad hominem attacks on him. (“And he engages in

ad hominem attacks against respondents' attorney, which is most inappropriate—

not to mention that they have no support in the record.”). When I hired an attorney

and sued Mr. McKay and his clients for fraudulently substituting out material

terms (CGC-11-511994), Mr. McKay got the lawsuit dismissed under section

391.4 of the VLS when I did not post $50,000 in security. Even though case law

provided that I didn’t need “permission” to file a new lawsuit as a “vexatious

litigant” (Shalant v. Girardi (2011) 51 Cal. 4th 1164; Flores v. Georgeson (2011)

13 https://scholar.google.com/scholar_case?case=15326774383041227289&q=A131914&hl=en&as_sdt=2006

CJP Complaint Against Justices Kline, Richman, pg. 29

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191 Cal. App. 4th 881), Justices Kline and Richman upheld the dismissal, upheld

the trial court’s award of $27,000 in fees, and upheld the construction of the VLS

as applying against a “represented vexatious litigant.” Once again, they even

characterized my “fraud claims,” that is, Mr. McKay’s apparent improper,

unethical, and illegal conduct in substituting out material terms as “ad hominem

attacks.” Their bias in favor of Mr. McKay was so blinding that my fraud claims

(with the requisite allegations) were reduced to being “ad hominem” attacks.

Moreover, in upholding Mr. McKay’s view of the VLS, they allowed Mr.

McKay to bring what amounted to the “third” vexatious litigant ruling against me.

They knew I’d been declared “vexatious” multiple times in the family law court

(because they heard my appeals of custody matters) but then allowed Mr. McKay

to bring a “third” motion at the trial court and a “fourth” one on appeal. The right

to filed “multiple” vexatious litigant motions against an individual is not supported

by statute or case law. On appeal (A131914; A134207), the justices allowed Mr.

McKay to bring the fourth motion in which he sought to have me post $50,000 in

the appeal before I could argue that the $50,000 security as the trial level was

improper. The justices even allowed him “oral argument” on the issue but deny

me oral argument on the matter of clarify the legal and factual basis for their

reading of the DOD. Not only would they uphold the dismissal of a lawsuit against

a represented litigant, but they would later allow Mr. McKay to recover $91,654

(A1366080) as the “costs” of the appeal under CCP section 1033.5(10). He

claimed the 2007 TICA as the “contractual basis” for the award.

In that way, the justice allowed Mr. McKay to recover $118,654 in

attorney’s fees ($91,654 + $27,000 at the trial court) to dismiss my lawsuit and to

prevent a hearing on the issue of whether Mr. McKay committed fraud in

substituting out material terms. In fact, the justices, in A136608, dismissed my

appeal of Mr. McKay’s fee award of $91,654 in which I argued that the 2007

TICA could not be a “contractual basis” for a fee award because it “terminated” by

operation of law on September 29, 2009 under Civil Code §1352. At that point,

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Justice Kline and Justice Richman created the perfect procedural Catch-22. The

preempted any finding on the issue of when or how of even if the 2007 TICA can

or had “terminated.” They ruled that I was out of “compliance” with the Judgment

and the fundamental factual basis for their rulings has never been addressed. Their

use of the Doctrine of Disentitlement preempts any fact finding on the issue of the

2007 TICA being terminated, which result in a “default” judgment on Mr.

McKay’s fee awards.

Of course, the use of the doctrine had the effect of presuming that the 2007

TICA did not or cannot terminate. It also presumes that Mr. McKay did not

commit a fraud in substituting out “material terms” when he drafted the award.

Further, it presumes that the arbitration settled all matters related to both the 2007

TICA and the 2009 CC&Rs. The justices’ presumptions are not even consistent

with there own ruling. In the appeal of the arbitration award (A131914), Justice

Kline and Judge Richman state:

"Respondent maintained they were bringing claims pursuant to the TICA, and that the CC&Rs was not relevant to their claims. Based on this theory of the case, we see no reason why respondents were required to submit the CC&Rs to the court for review."). Conversely, we see no reason why appellant could not submit them to the court himself as part of his opposition, with whatever argument he might have about their relevance.

What the justices willfully and deliberately don’t “see” is the inherent problem

created when Mr. McKay resurrected the 2007 TICA after his clients executed the

subsequent 2009 CC&Rs. His clients even granted me a “grant deed” for a “condo

unit” in the building. In resurrecting the 2007 TICA, there were then two

supposedly valid contracts, one relating to ownership held as a “cotenancy” as the

other related to real property held as a fee simple “condominium.” Just as water

cannot at once be steam and ice, a two-unit building cannot be both a “cotenancy”

and “fee-simple condominium complex.” The 2007 TICA and 2009 CC&Rs had

different remedies, different rights (jury trial v. mandatory arbitration) and

different procedures.

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Further, for Justice Kline and Justice Richman to suggest that I should

“have submitted them” (the CC&Rs) with whatever argument he might have about

their relevance” betrays their complete failure to understand arbitration statutes,

case law on arbitration, and the terms of either the 2007 TICA and 2009 CC&Rs.

The refuse to review the facts or research the law. They fail to under the relevance

of the issue of having two contracts. On the one hand, I had the right to file a

lawsuit on the CC&Rs, the right to seek a jury trial after extensive discovery, and

the right to take depositions. On the other hand, neither I nor Mr. McKay’s clients

could be compelled into arbitration on the 2009 CC&Rs because it did not contain

a binding mandatory arbitration clause. Likewise, I could not be compelled into

arbitration to prove or disprove that the 2009 CC&Rs were valid or the governing

document because that was not matter we agreed to arbitrate. (“Arbitration may

not be compelled absent an agreement to submit the particular claims at issue to

arbitration.” Baddie v. Bank of America (1998) 67 Cal. App. 4th 779, 787-88).

In failing to research the proper procedures in the arbitration case and their

failure to recognize my contractual rights under the 2009 CC&Rs, Justice Kline

and Justice Richman impaired my right to contract under the state Constitution

(Art. I, sec 9) and prevented me from vindicating my rights under the CC&Rs and

California Subdivision Map Act. This was prejudicial and willful conduct.

9. The Post-Judgment Award of $700,000 In Attorney Fees Is Misconduct

In appeal A136608, Justice Kline and Justice Richman dismissed my

appeal of Mr. McKay’s request for attorney fees under the Doctrine of

Disentitlement. They concluded, on Mr. McKay’s bare allegations, that I was “out

of compliance” with the Judgment to “cooperate with the forced sale of my

condominium.” In essence, they granted Mr. McKay $91,654 in fees by “default”

either under the VLS or under the DOD and based on the false allegations of Mr.

McKay that I’m “out of compliance.” Since then, every appeal I’ve taken of Mr.

McKay’s various fee awards for filing his multiple vexatious motions, which have

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prevented me from vindicating my rights under the 2009 CC&Rs or exposing his

frauds, has been denied. Justices Kline and Richman have, in dismissing my

appeals, awarded him over $700,000 in fees. They did this without every allowing

me a fully-litigated hearing on the issue of when the 2007 TICA had terminated or

remained a valid contract and a “contractual basis” for fee recovery under CCP

section 1033.5(10). In fact, at oral argument in A134207, Justice Kline asked Mr.

McKay how the “zombie” 2007 TICA might terminate. He knew or should have

known the procedures for “condo-conversion” had been satisfied a year before Mr.

McKay’s suit and that the 2007 TICA made “condo-conversion” a grounds for

“termination.” Clearly, Justice Kline was not in acting in good faith if he could not

read applicable law, the pleadings, and the California Bar Act.

VI. JUSTICE KLINE AND JUSTICE RICHMAN IMPROPERLY ACCUSE MY ATTORNEY PATRICIA J. BARRY

After apparently conducting some impromptu investigation or after making

slap judgments, .Justice Kline and Justice Richman in their dismissal (Exhibit A)

slammed my appellate attorney, Patricia J. Barry. Without providing me or my

attorney oral argument or any hearing at the appellate level on the applicability of

the DOD, they conclude that she acted improperly in at least two ways. First, they

claim she’s “misrepresenting” Mr. McKay’s legal position as demanding a

“prefiling order in this appeal.” (Exhibit A, pg. 3, ¶2). Second, they fault her for

not recognizing or realizing that their previous ruling in which I was subject to the

“disentitlement doctrine” (A136608) is now a “permanent” order. (Exhibit A, pg.

2, ¶2):

Finally, counsel should have been aware of our order in case No. A13660o8 establishing the showing required of Cunningham to counter plaintiffs’ representations that he is out of compliance with trial court orders.

In response, as an initial matter, there is no reason that I or Ms. Barry would have

known that Justice Kline and Justice Richman would interpreted their “inherent

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powers” as allowing them to “permanently” deny me appellate court access on the

basis of a two to three year old ruling.

A. Permanent Denial of Appellate Court Access Under the DOD

First, the justices’ dismissal order was in excess of their jurisdiction.

Neither I nor Ms. Barry were given notice or an opportunity to challenge Justice

Kline’s and Justice Richman’s vast expansion of their powers to deny my

constitutional rights. While appellate courts have “inherent authority to dismiss,”

the case law is clear that use of the disentitlement doctrine should only be used in

“extreme circumstances” and where "the court's authority `cannot possibly be

otherwise vindicated'.” Lyons v. Wickhorst (1986) 42 Cal. 3d 911, 917). Likewise,

the Court of Appeals in Slesinger, Inc. v. Walt Disney (2007) 155 Cal. App. 4th

736, stated, supra, at 757:

There are, of course, limits on the inherent authority of California courts — inherent power may only be exercised to the extent not inconsistent with the federal or state constitution, or California statutory law. (Citations omitted).

Under CCP 704.703, I had the right to a $175,000 homestead exemption. The

homestead exemption was also a constitutional right (Cal. Const. Art XX, sec.

1.5). I had the right to challenge on appeal (A144930), consistent with the Due

Process Clause of the 14th Amendment, the “forced sale” of my $1,300,000

condominium on the basis of the facially ambiguous “Judgment” resulting from

Mr. McKay’s fraudulent substitution of material terms. By presuming that I’m

“out of compliance” with this very “Judgment” without any judicial finding of

contempt at the trial court, Justice Kline and Justice Richman not only deny me

court access but preclude me from challenging the “enforcement” of the Judgment

and its facial invalidity. I’m denied constitutional rights in multiple ways.

In that respect, there is no reason Ms. Barry should have “known” that the

justices would construe their “inherent power” as giving them the right to apply

the DOD on a permanent basis. There is no reason she would believe that the

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justices believed they had the “inherent power” to override her client’s statutory

and constitutional right to a homestead exemption or challenge a facially void

order. Mr. McKay may have deceived the trial court, the arbitrator, and Justice

Kline and Justice Richman in drafting the arbitration award and substituting out

material terms (fraudulently rewriting the 2007 TICA, the 2009 CC&Rs, the

California Subdivision Map Act, etc.) but that did not deprive her client from

challenging the “enforcement” of the Judgment as “void” under CCP section

473(d). The justices had no authority to overrule the Code of Civil Procedure.

Further, I complied with the California Subdivision Map Act, got my two-

unit building condo-converted as mandated by the Civil Code section 1352. The

justices’ imposition of the DOD here impairs my right to contract under the state

and federal Contract Clause (Art. I, sec.10). Under the 2009 CC&Rs, I also had

the right to a “jury trial,” which their dismissal of my civil suit (CGC-11-511994)

under the VLS, violated. Ms. Barry had no reason to expect the justice would act

in such flagrant disregard to her client’s rights and their complete disregard to any

limits or restrictions to their inherent authority. (A “judge’s reckless or utter

indifference to whether judicial acts being performed exceed the bounds of the

judge’s prescribed power is a state of mind properly characterized as bad faith.”

Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1076,

1092.)

B. Alleged Misrepresentations Related to Prefiling Order

Second, Justices Kline and Richman reprove Ms. Barry for filing an

opposition to Mr. McKay’s motion to dismiss, stating that (Exhibit A, pg. 3):

Moreover, the opposition attributes to plaintiffs' motion a request to impose prefiling requirements in this appeal-a request the motion does not make. This constitutes a misrepresentation to the court.

The first problem here is that Justice Kline and Justice Richman “should have

been aware” of their own rulings and Mr. McKay’s request for a “prefiling order”

in the underlying “arbitration case.” (CPF 10-510760). Previously, Mr. McKay

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filed for a “prefiling order” when I appealed the arbitration award (A131914).

Justices Kline and Richman denied the motion, apparently under the mandate by

the Supreme Court in Shalant v. Girardi (2011) 51 Cal. 4th 1164 to observe “plain

language” and the “limits set by the statutory framework. 14

03/26/2012 Order filed.

The Court, having considered "Respondents' Motion to Require Furnishing of Security by Vexatious Litigant" and all arguments and exhibits submitted by the parties relating thereto, hereby orders: The motion is denied. Neither respondent is a "defendant" and appellant is not a "plaintiff, " as these terms are used in Code of Civil Procedure section 391.1.

Under the concept of stare decisis, rule of the case, and res judicata, this ruling

was binding on Mr. McKay. Nevertheless, after he sold my condo and closed

escrow on June 9, 2015 and pocketed $400,000 of the $700,000 in fees he had run

up, he obtained a “prefiling order” at the trial court where I’m the “defendant.”

The plain language of the VLS provides that a “prefiling order” applies against

“new litigation.” Mr. McKay filed the “arbitration” suit on September 29, 2010.

Despite the justices’ prior ruling on appeal, the plain language of the VLS, and

case law suggesting that the VLS was not meant to apply to “defendants,”15 Mr.

McKay sought a “prefiling order” at the trial court.16

JUN-25-2015 REAL PROPERTY/HOUSING MOTION 501, PETITIONERS MICHAEL COOMBS AND TAMARA WOODS' MOTION FOR INJUNCTION AGAINST THE FILING OF ANY LITIGATION TO FURTHER LITIGATE MATTERS ALREADY LITIGATED IN THIS ACTION IS GRANTED, AND A PREFILING ORDER REQUIRING CUNNINGHAM TO OBTAIN LEAVE OF COURT BEFORE FILING ANY

14 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1978744&doc_no=A131914 15 (Mahdavi v. Sup. Ct. (2008) 166 Cal. App. 4th 32; John v. Sup. Ct. of Los Angeles (2014) B256604; “Section 391.7's Prefiling Order Requirements Do Not Apply to a Self-represented Defendant Appealing from an Adverse Judgment,” and; Imposing the VLS against a pro per defendant “impedes a self-represented defendant's right of access to the appellate courts.”) 16 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760

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FURTHER LITIGATION IS GRANTED. PREVAILING PARTY TO PREPARE AND SUBMIT AN ORDER IN COMPLIANCE WITH CRC 3.1312(B). JUDGE: RONALD E. QUIDACHAY; CLERK L. FONG; MATTER NOT REPORTED. (501)

In filing a motion against me, a “defendant” at the trial court, Mr. McKay is trying

to circumvent the law by an end-around. He’s trying to avoid Justices Kline’s and

Richman’s prior two-year old ruling at the appellate court and hoping their

memories are short. Oddly, when I went to appeal Mr. McKay’s recent “vexatious

litigant order,” I was denied “permission” under the VLS to appeal by the Court of

Appeal.

SEP-23-2015 ORDER DENYING APPLICATION FOR PERMISSION TO APPEAL (A146223, APPEAL FILED 9/4/5)

In that regard, Mr. McKay failed to lock me out of the appellate court by his

previous motion on appeal (A131914, denied by Kline) but has now managed to

achieve the same result by locking me out of the trial court and then relying on the

VLS to create the perfect procedural loop where appellate review is denied and

judicial accountability is scuttled. He slipped this procedural gamesmanship right

past the willfully indifferent Justices Kline and Richman.

C. Bad Faith Shown In Admonishing Ms. Barry As My Attorney

First, Justices Kline and Richman failed to understand that Mr. McKay had

in fact filed more vexatious litigant motions at the trial court. Ms. Barry pointed

this out in her “opposition” and noted that such an order would have direct

consequence related to my right to appeal.

Second, Justices Kline and Richman failed to recognize that they

themselves had denied Mr. McKay’s vexatious motion in an appeal in this case.

(A131914, noted above). The fact is that Mr. McKay, in filing his motion to

dismiss under the DOD, failed to mention, or rather, deliberately suppressed the

fact that he’d filed for a “prefiling order” at the trial court. He knew very well that

this would affect and has affected my right to appeal. He knew that Justices Kline

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and Richman ruled against him on appeal but he knew that trial judge Ronald

Quidachay would rubber-stamp his motion. Ms. Barry pointed this out in her

opposition. She was not “misrepresenting” Mr. McKay’s position regarding his

filing multiple “vexatious litigant” motion to deny me due process. Rather, she

was addressing the actual issue at play, that is, the denial of court access by either

the DOD or VLS. She pointed that out in her opposition. It’s not that Ms. Barry is

not “misrepresenting” Mr. McKay’s position. Rather, he’s suppressing facts

related to his filing “prefiling orders,” ignoring case law related to imposing

prefiling orders against “defendants,” and committing frauds on the court. The fact

is that Mr. McKay, in avoiding the prior appellate court ruling, is committing

another fraud on the court and is the one who is “in an attitude of contempt.”

Third. Justices Kline and Richman were deliberately manipulated by Mr.

McKay’s misrepresentations of other material facts and events. In his June 30,

2015 motion to dismiss, Mr. McKay sought to dismiss my appeal under the DOD.

In his declaration, he asserted I was out of compliance with the “Judgment”

regarding me not to “interfere” with the sale of my “condo” and an order to “stay

away” from the property. The fact is that on June 9, 2015, escrow closed and by

June 15, 2015, the new owner had moved into the property. In his declaration, Mr.

McKay deliberately suppressed these facts and omitted these transactions to

conceal the change in material facts. He perjured himself. If he had admitted these

material changes in facts, he’d have had no factual basis for his view that I was

“out of compliance” with court orders. At the time he filed his motion on the DOD

on June 30, 2015, the issue of non-compliance was moot. Mr. McKay’s willful

suppression of these facts was motivated to deny me court access and the right to

challenge the order confirming the sale of my property on a “facially ambiguous

and void” Judgment. The failure of Judge Kline and Richman to ascertain Mr.

McKay’s perjured statements speaks to prejudicial misconduct.

Fourth, Justices Kline’s and Richman’s presumptions that Mr. McKay’s

allegations in support of his DOD motion are true not only enabled Mr. McKay’s

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various misrepresentations and frauds on the court but it reveals their lack of

impartiality and animus toward Ms. Barry. In considering Mr. McKay’s motion

under the DOD, the justices presumed facts and law, ignored their previous

appellate “vexatious litigant” ruling, ignored the significance of his new vexatious

litigant motion at the trial court and went out of their way to conclude that Ms.

Barry was “misrepresenting” Mr. McKay’s position. This line of action and

reasoning betrays their abandonment of impartiality and animus toward Ms. Barry.

They rushed to conclude that Ms. Barry was making false misrepresentations

while placing Mr. McKay above and beyond the slightest reproach. This disparate

treatment cannot be characterized as those of a “neutral adjudicator.” Worse yet, in

my writ of supersedeas, I included documentation, such as the close of escrow

documents that showed that the condo was “sold” and the new owner had taken

occupancy. In that way, it was evident on the face of my pleadings that the basis

for Mr. McKay’s motion to dismiss was moot. Nevertheless, the justice remained

willfully ignorant of the facts before them, the facts in front of their eyes.

Fifth, Justices Kline and Richman after being manipulated by Mr. McKay

and failing to recognize that he perjured himself about the “continued” factual

basis of his DOD motion and the significance of his new “prefiling order” at the

trial level, take it upon themselves to “admonish” Ms. Barry. The fact is that it’s

Mr. McKay who should be “admonished” for his misrepresentations and frauds

upon the court. In their footnote, it’s clear that the justices “investigated” Ms.

Barry’s “disciplinary record” and were aware that there is an “on-going” State Bar

action against her. It’s not clear if they reported their “admonishment” against Ms.

Barry to the State Bar. If so, or perhaps by even “publishing” this opinion, the

justices are acting in bad faith and improperly trying to influence the outcome of

that proceeding. 17

17 A judge's public comment on a pending case threatens the state's interest in maintaining public confidence in the judiciary whether or not the case to which the comment is directed is pending before the commenting judge. When the case is pending

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V. JUSTICES KLINE AND RICHMAN ARE RETALITATING AGAINST MY ATTORNEY

I was the appellate attorney when Ms. Barry and her client, Michele

Fotinos, were declared “vexatious.” To be clear, the trial court on November 9,

2012 declared both a client and her attorney vexatious. Then, on November 16,

2012, Presiding Judge Beth Labsom Friedman submitted a “prefiling order” on the

mandatory Judicial Council MC-700 form. I timely appealed the “prefiling order”

of November 16, 2012 within 60 days, but Justices Richman and Kline held that

the November 9, 2012 order, which “declared” Ms. Barry and her client

“vexatious,” was actually the “prefiling order” that needed to be appealed.

(A137647, *See Unpublished Opinion on Google Scholar).18

The court's order of November 9 was the one which imposed a prefiling order requirement on Fotinos. The additional step of filing a form MC-700 appears to have fulfilled one primary purpose: those forms are to be forwarded to the Judicial Council so that the vexatious litigant's name may be added to a statewide list of those subject to a prefiling order requirement. (§ 391.7, subd. (f).) We do not view this as an order appealable independently of the November 9 order. We see no reason why Fotinos should be given a second opportunity or a longer period to appeal when the issue had been determined on November 9, and she was fully informed of it by service of the order on November 15. We deem the appeal period to have begun on November 15, 2012, when Sells served the November 9 order on Fotinos.

The justices’ ruling is erroneous for at least two separate reasons and raises issue

of bias and bad faith. In Shalant v. Girardi (2011) 51 Cal. 4ht 1164, the Supreme

Court pointed out that the VLS provided “two distinct” remedies, supra, at 1171):

before the commenting judge, the public may perceive the comment as indicating that the judge has prejudged the merits of the controversy or is biased against or in favor of one of the parties. (Rothman, Cal. Judicial Conduct Handbook (1990) § 160.550, p. I-39.) When the case is pending before a judge other than the commenting judge, the public may perceive the comment as an attempt to influence the judge who is charged with deciding the case. (Ibid.) Such comments may also create the public impression that the judge has abandoned the judicial role to become an advocate for the judge's own ruling or for the position advanced by one of the parties. 18 https://scholar.google.com/scholar_case?case=5887645888322496087&q=a137647&hl=en&as_sdt=2006

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To summarize, our vexatious litigant statutes provide courts and nonvexatious litigants with two distinct and complementary sets of remedies. In pending litigation, a defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to furnish the security, the action will be dismissed. (§§ 391.1-391.6.) In addition, a potential defendant may prevent the vexatious litigant plaintiff from filing any new litigation in propria persona by obtaining a prefiling order and, if any new litigation is inadvertently permitted to be filed in propria persona without the presiding judge's permission, may then obtain its dismissal. (§ 391.7.)

A. Conflating Separate Remedies Under the VLS

First, the November 9, 2012 hearing was filed under section 391.1 and sought to

have the parties “declared” vexatious. On the other hand, the Presiding Judge, not

the trial judge, was authorized to issue a prefiling order, which she did on

November 16, 2012 on the mandatory judicial council MC-700 form. The justices

first failed to read or research or understand the Supreme Court’s ruling in

Shalant. They failed to understand the fundamental distinction between remedies

and believed that the two remedies could be granted at the hearing on a section

391.1 motion to find and declare a “plaintiff” vexatious. This error was pointed

out in People v. Harrison (2002) 92 Cal. App. 4th 780, 785:

In the case at bench, it appears Judge Nunez was attempting to issue a prefiling order, as contemplated by Code of Civil Procedure section 391.7. Before there can be a prefiling order, however, there must be a "vexatious litigant" within the contemplation of the code.[7] While a court may enter a prefiling order on its own motion, the statutes do not appear to envision that a court may, on its own motion, find a plaintiff to be a vexatious litigant in the first instance.

The justices conflate the 391.1 hearing to declare a “defendant” vexatious in

“pending litigation” with the remedy of a “prefiling order” issued by a presiding

judge in “new litigation.”

Another error they made is that “prefiling orders” are issued by “presiding

judges,” not trial judges as Justice Kline and Richman would allow by designating

the November 9, 2012 order as a “prefiling order.” Further, prefiling orders, as

noted by the Supreme Court in Shalant, apply to “new litigation,” not on-going

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pending litigation. The justices ruling would mean that the “pending litigation” in

the probate court would automatically and mysteriously become “new litigation”

once a “defendant” was declared “vexations,” which would then subject them to

such a remedy (if they were not “acting in propria persona.”). That’s simply not a

plausible construction. By designating the November 9, 2012 order finding Ms.

Fotinos and Ms. Barry vexatious as also a “prefiling order,” the justices ignore the

clear ruling of Shalant, rewrite the “plain language” of the VLS, ignored case

law, and create inconsistencies and contradictions.

In so ruling, the justices also deny Ms. Fotinos and Ms. Barry their

constitutional right to appeal. To arrive at their erroneous ruling the justices had to

commit at least five erroneous readings of statutes and case. It’s defies reason to

believe this can be explained away by simple “legal error” or ineptitude. It speaks

to their bad faith.

B. Imposing the VLS Against an Attorney Who Was Representing Her Client Is Bad Faith Justice Kline and Justice Richman also commit another erroneous ruling if

not a deliberately void order. In their unpublished opinion (A137647):

After hearing testimony that an attorney, one Patricia Barry, had been guiding and advising Fotinos with respect to her pro per filings, the court made the prefiling order applicable to Barry, as well, insofar as she might seek to file any "petition, application, or motion other than a discovery motion, for any order on behalf of Ms. Michele Fontinos without first obtaining leave of the presiding judge. (emphasis added).

Here, the erroneous ruling is applying the VLS against an attorney, Ms. Barry,

who was merely representing her client at the probate hearing. When I filed my

opening brief, I cited the Ninth Circuit case of Weissman v. Quail Lodge, Inc.,

179 F.3d 1179 (9th Cir. 1999) which ruled that, (Id., at 1197):

Insofar as our research has uncovered, no court in this circuit has ever imposed a vexatious litigant order on an attorney. We do not believe that the vexatious litigant doctrine was ever intended to control attorney conduct and we do not propose to approve its application in this case as a means of controlling attorney conduct. For example, the California vexatious litigant statute limits the definition

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of a "vexatious litigant" to one who acts "in propria persona." Cal.Civ.Proc.Code § 391.7….We therefore conclude that an attorney appearing on behalf of a client cannot be sanctioned as a vexatious litigant; by definition, he or she is acting as an attorney and not as a litigant.

On appeal, I included this case in my pleadings but that did not deter Justices

Kline or Richman from imposing a “prefiling order” against Ms. Barry. Although

the Ninth Circuit stated that “no court in this circuit has ever imposed a vexatious

litigant order on an attorney,” Justice Kline and Justice Richman saw fit to break

new judicial barriers. Ms. Barry is now the only “attorney” appearing on the list of

those who was “declared” vexatious while representing a client.

In order to arrive at their erroneous if not void ruling, the justices had to

commit another five misreadings of statute and case law. As an initial matter, they

seem to even misread the trial judge’s November 9, 2012 order, which they claim

is a “prefiling order” requiring Ms. Barry to “first obtain leave of the presiding

judge” before filing any motion on behalf of her client. Justice Kline and Richman

define the trial judge’s November 9, 2012 order as a “prefiling order” but then

suggest Ms. Barry must obtain leave from the ‘presiding judge.” This creates

inconsistencies and contradictions in the statutory language. The trial judge can

issue the “prefiling order” on November 9th but only the “presiding judge” can

enforce when Ms. Barry “obtains leave”?

Further, to impose a “prefiling order” against the attorney who was

representing her client required the justices to make myriad misreadings of statute

and case law. Section 391.7, by its plain language, applies to vexatious litigants

“acting in propria persona.” But the justices applied it to an attorney representing

her client. Further, the Supreme Court in Shalant stated that “representation” is

not absurd. The obvious response is that Justices Kline’s and Richman’s ruling

renders this statement absurd. Moreover, the Supreme Court in Shalant and the

Court of Appeals in Flores v. Georgeson (2010) 191 Cal. App. 881 ruled that

represented vexatious litigants were shielded from “prefiling orders.” (Flores,

CJP Complaint Against Justices Kline, Richman, pg. 43

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supra, at 883; “We hold that a prefiling order, issued pursuant to Code of Civil

Procedure section 391.7, subdivision (a), does not require a vexatious litigant who

is represented by counsel to obtain permission from the presiding judge to present

litigation for filing.”). The justices simply ignored statutes and controlling

authority.

C. Obstruction of Justice And Suppression of Evidence

If there is any doubt that these two erroneous rulings, based on 10-12

misreading of statutes and case law, one only has to look at Ms. Fotinos “appeal”

of the denial of the trial court to vacate the “vexatious litigant” order. I represented

Ms. Fotinos in that appeal as well. When I pointed out that the Presiding Judge

Beth Labsom Freedman had recused herself and included the 170.6 motion with

her signature, the justices scoffed. They did not deny that CCP §170.4(d)

prevented a disqualified judge from acting “in any proceedings.” Nor did they

question Presiding Judge Freeman’s signature on the hand-written §170.6 motion

that Ms. Fotinos drafted. Nor could they deny the fact that the transcript of the

November 9, 2012 proceeding unequivocally showed that Presiding Judge

Freeman interrupted the hearing at least four times to talk to the trial judge. In

addressing the matter of the Presiding Judge’s apparent improper meddling in a

“vexatious litigant” hearing, Justices Kline and Richman just ignored the evidence.

They did not even entertain the possibility of Presiding Judge’s obstruction of

justice. (A139165).19

The fourth and last ground for the applications was the claimed disqualification of Judge Freeman, who, according to Fotinos, "granted a preemptory challenge . . . on July 23, 2012." The trial court's register of this action for July 23, 2012 does not show any such action by Judge Freeman, or, indeed, any action at all involving Judge Freeman. Even if there was such a disqualification, and Judge Freeman's order was void, that consequence would not be significant. As we made clear in our dismissal order, it was Judge Karesh's antecedent order that counts. Thus, the validity of Judge Freeman's subsequent order would likewise be a moot issue.

19 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2050502&doc_no=A139165

CJP Complaint Against Justices Kline, Richman, pg. 44

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After reading this order, I immediately filed for a “rehearing” under Title Eight

rules and attached the Register of Actions showing she was disqualified. 20

Clearly, Justice Richman conducted his own investigated and rendered his opinion

on evidence not before him, a violation of the Judicial Canon.21

04/08/2014 Opinion filed. (Signed Unpublished) For each and all of these reasons, the order is affirmed.

04/16/2014 Rehearing petition filed. Appellant

04/24/2014 Order denying rehearing petition filed.

Appellant's petition for rehearing is denied.

I quoted CCP §170.4(d), cited the transcripts showing her calls to the trial court,

and pointed out the illegality of a presiding judge improperly influencing a trial

court. Justice Richman’s reasoning that the outcome would not have mattered

“even if there were such a disqualification,” is flawed for several reasons. First, it

bootstraps their present ruling to the first erroneous ruling (that the November 9,

2012 could be both a prefiling order and a section 391.1 hearing) that they

presume is correct rather than void for being applied against an attorney and her

client. Second, if Presiding Judge Freeman were disqualified, she had no right to

be calling and trying to “influence” the outcome of the hearing. Even if she had

not been disqualified, she had no right to interfere with the independent judgment

of the trial court. In short, the justices’ ruling avoids addressing the issue of

whether the presiding justice had “obstructed justice” here.

D. Appearance of Retaliation In Refusing to Recuse.

20 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2050502&doc_no=A139165 21 3B(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the full right to be heard according to law. Unless otherwise authorized by law, a judge shall not independently investigate facts in a proceeding and shall consider only the evidence presented or facts that may be properly judicially noticed.

CJP Complaint Against Justices Kline, Richman, pg. 45

229

229

I and my attorney, Patricia Barry, filed a class action against non-attorney

SINGER for his unauthorized practice of law. (UPL)> I had filed a “writ of

mandate” which Justice Kline and Justice Richman summarily denied. In that

regard, there arose an issue of whether they had enabled or “aided and abetted”

SINGER in refusing to rule on the issue. In ;the class action (DC CD 14-cv-09104

GW), I and Ms. Barry named both justices as “defendants.” The failure of the

justices to “recuse” themselves on their own initiative and then to turn around and

slam Ms. Barry in their ruling speaks to bias, bad faith and retaliation.

CONCLUSION

It clear for the plague of erroneous rulings, the deliberate disregard of case

law and statutes, and the shameless misreading of case law that these justices are

acting in bad faith if not engaging in willful misconduct. I’d ask that the

Commission conduct a hearing on this matter as soon as possible.

Respectfully submitted,

______________________

Archibald Cunningham

CJP Complaint Against Justices Kline, Richman, pg. 46

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ATTACHMENT C

ATTACHMENT C

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OCT 1 4 ZOl5

Frank A. McGuire Clerk

Deputy In re ARCHIBALD CUNNINGHAM,

on Habeas Corpus. Habeas Corpus No. A146271 Writ No. 6968 SF Sup. Ct. No. 15006518

PETITION FOR REVIEW OF DENIAL OF PETITION FOR HABEAS CORPUS

\VRIT BY COURT OF APPEALS FOR THE FIRST APPELLATE DISTRICT ON OCTOBER 9, 2015

From the September 9, 2015 Denial of Habeas Corpus Writ Superior Court for San Francisco

Hon. Renee Navarro Department 22, 415 5 51-03 22

Archibald Cunningham State Bar #210625

P.O. Box 54399 San Jose, CA 95154

------�--------AB

g I :£ Wd �I 1:10 SIOZ

408 466-7819 Self-represented

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TABLE OF CONTENTS ISSUES PRESENTED……………………………………………….. 1

INTRODUCTION …………………………………………………….…….. 1

STATEMENT OF CASE……………………………………………………. 2

RETALIATION BY SAN FRANCISCO DISTRICT ATTORNEY ………………………………………….……………………. 4 PROCEDURAL HISTORY, COURT OF APPEALS AND SUPERIOR COURT…………………………………………… 5 GROUNDS FOR REVIEW…………………………………………... 5

STATEMENT OF FACTS………………………………………………… 10

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR REVIEW………………………… 11

I. The Court of Appeals’ Denial of the Writ of Habeas Corpus is Reversible Error…………………………………………………….. 11 A. Court of Appeals’ Conflates the Legal Basis for the Writ of Possession……………………………………………………………. 11

1. The Relevant Issue Related to the Writ of Possession….. 11

2. Personal Property v. Real Property………………………12

3. Eviction By Writ of Possession or By Receiver’s Fraud…………………………………….. 12

II. The Stay Away Order Underpinning the Criminal Contempt Is Invalid……………………………………………………………….. 12

A. An Invalid Order Cannot Be the Basis for a Criminal Contempt Under PC §166

III. The Stay Away Order Is Founded Upon or Bootstrapped to An Invalid Order Issued By the Superior Court………………… 13 A. The Stay Away Order Is a Nullity in that It Deprived an Owner

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of Possession Without Procedural Due Process Protections…….. 14

1. Petitioner, As Owner of a Condo, Is Not Subject to Unlawful Detainer Act……………………………………… 14 2. A Writ of Possession Is Not A Separate Action From An Eviction……………………………………………………… 15

B. Judge Navarro and Justice Kline Fail to Consider the False Evidence Underpinning the Contempt Case……………………… 16 1. Mr. Singer Proceeded By Way of Fraud……………….. 17 2. Receiver SINGER Engaged In An Illegal Eviction

Scheme……………………………………………………….. 21 C. The Stay-Away Order Is Void Given the Receiver’s Unlicensed Practice of Law………………………………………………………23 D. The Stay-Away Order Is Invalid and Not a Basis for A Contempt Case……………………………………………………… 26 CONCLUSION……………………………………………………… 27

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Federal Cases

Alexander v. Robertson (9th Cir. 1989) 882 F. 2d 421…………………… 9

Keller v. State Bar of California, (1999) 496 U.S. 1…………………… 6

In re Garcia (9th Cir. BAP 2005) 335 B.R. 717……………………………… 24

In re Shattuck, 411 BR 378 (BAP 10th Cir. 2009)………………………… 7, 26

Lara v. County of Santa Clara (U.S District Court, N.D. California, C-11-0607 RS, (2012), ……………………………………………………… 17 Teamsters Local v. Lucas Flour Co. (1962). 369 U.S. 95, 103……………… 25

State Cases

Arieta v. Mahon (1982) 31 Cal. 3d 381………………………………………17

Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Ca. 4th 119……………………………………………………….. 25, 26 Campell v. Jewish Com. For P. Services (1954) 125 Cal. App. 2d 771…. 7

City of Downey v. Johnson (1968) 263 Cal. App. 2d 275………………… 7

DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th 593………………………… 25

Edwards v. Sup. Ct. (1991) 230 Cal.App.3d 173…………………… 11, 12

Estate of Condon (1998) 65 Cal. App. 4th 1138…………………………. 24

Frankfort Digital Services (9th Cir. BAP 2004) 315 B.R. 544…………… .24

Franklin & Franklin v. 7-Eleven Owners, 102 Cal. Rept. 770…………… 27

Gerhard v. Stephen (1968) 68 Cal. 2d 864………………………………. 8

In re Berry (1968) 68 Cal. 2d, 137…………………………………… 13, 14

In re Gordon J (1980) 108 Cal. App. 3d 907……………………………… 7

Keller v. State Bar (1989) 47 Cal. 3d. 1152……………………………….. 6

Kimmel v. Goland (1990) 51 Cal. 3d 202………………………………….. 25

Mowrer v. Superior Court (1969) 3 Cal. App. 3d 223……………………. 13

People v. Gonzales (1996) 12 Cal. 4th 804………………………………… 1, 6, 15

Russell v. Dopp (1995) 36 Cal. App. 765………………………………………. . 19

Security Pacific National Bank v. Geernaert (1988) 199 Cal. App. 3d 1425……………………………………………………….8

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Shalant v. Girardi (2011) 51 Cal. 4th 1164……………………………… 9 State Bar of California v. Sup. Ct. (1929) 207 Cal. 323……………….. 8 Tieran v. Trustees of Cal. State University & Colleges (1982) 33 Cal. 3d 211…………………………………………………… 25 Torres v. Friedman (1985) 169 Cal. App. 3d 880………………………. 7 Watsonville Canning & Frozen Food Co. v. Superior Court (1986) 178 Cal. App. 3d, 1242………………………………………………………………13 Ziegler v. Nickel (1998) 64 Cal. App. 545……………………………… 8

State Statutes Bus. & Prof. Code §6125…………………………………………………1, 8, 24

Bus. & Prof. Code §6126………………………………………………… 1, 24

CCP §415.46……………………………………………………… 1, 16, 18, 20

CCP §526……………………………………………………………………… 13

CCP §564.……………………………………………………………Passim

CCP §568.……………………………………………………… 22, 23, 24

CCP §512.010………………………………………………. 3, 12, 16, 22

CCP §712.010……………………………………………………………7, 10, 15

CCP §715.010………………………………………………………… 13, 16, 17

CCP §715.050……………………………………………………………… 15, 16

CCP §712.010………………………………………………………………… 18

CCP § 1161……………………………………………………………… 14

CCP §1297.11……………………………………………………………. 24

Penal Code §166(a)(4)……………………………………………………… 1, 5

Unlawful Detainer Act…………………………………………………… Passim

Receivership Statutes…………………………………………………….. Passim

Federal Statutes

14th Amendment……………………………………………………………. Passim

California Constitution

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Cal. Const. Art. III, sec. 3 …………………………………………. 2

Cal. Art. V, sec 13 ………………………………………………… 6

California Rules of Court

CRC 3.1150………………………………………………………………… 27

CRC 8.500(b)(1)……………………………………………………… 5

CRPC 1-100……………………………………………………………. 9

Treatise

1 Witkin, Cal. Procedure (3d ed. 1985; Attorneys, § 294, p. 330……..20 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 277, p. 683………………. 13 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 506…………… 14 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 599, p. 69……….15 6 Witkin, Cal. Procedure, supra, Provisional Remedies § 330, p. 278...16 8 Witkin, Cal. Procedure, supra, Enforcement of Judgment, § 342, p. 294…..6

v

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ISSUES PRESENTED

In a criminal contempt under Penal Code §166(a)(4), is the underlying court order granting a “writ of possession” valid for purposes of upholding the contempt of court charges where the order was obtained by a non-attorney court-appointed receiver who was practicing law without a license in apparent violation of Bus. & Prof. Code §6126(a)? Is a “writ of possession” drafted by a non-attorney receiver, which sought the removal of an owner from his condominium as well as a “stay-away” order against the owner, a valid order for purposes of a criminal contempt where the trial court issued the “writ of possession” without a “judgment for possession” obtained after an unlawful detainer action? Can a criminal contempt be upheld where a non-attorney receiver persuaded the court clerk to issue him the mandatory Judicial Council form EJ-130, which the San Francisco Sheriff’s Department requires for eviction, and the receiver deliberately concealed the fact that he had not obtained a “judgment for possession,” deliberately misrepresented the fact that he had not filed a summons and complaint for an unlawful detainer, and willfully mislead the clerk by lying that he’d “served” the summons and complaint for an “unlawful detainer” action “in accordance with CCP §415.46?

INTRODUCTION

Ultimately, this criminal contempt case boils down not to the

“misdemeanor” charges against Petitioner for allegedly violating a court order to

“stay-away” from his own condominium but whether the non-attorney court-

appointed receiver was engaged in the misdemeanor of practicing law without a

license when he obtained the “stay-away’ order. (Bus. & Prof. Code §6126(a)).

The prosecution of Petitioner Archibald Cunningham is factually and legally

predicated upon court orders the non-attorney court-appointed receiver, Kevin

Singer, obtained while he was practicing law without a license. Petitioner defends

himself by collaterally attacking the validity of these underlying court orders.

In the underlying civil case, the trial court, over Petitioner’s objections,

interpreted the receivership statutes (CCP §564-§568) as granting the receiver the

right to practice law without a license. Further, the trial court construed these

Petition for Review, pg. 1

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statutes as granting the receiver the right to immediate possession to Petitioner’s

condominium by virtue of his appointment. In one fell swoop, one broad reading

of the state receivership statutes, the trial court, ignoring the Separation of Powers

Clause,1 became an impromptu Legislature. While the State Bar Act of 1927 sets

the standards for membership into the State Bar and the right to practice law, the

trial judge ignored the Act. In the same way, the Unlawful Detainer Act sets the

procedures for obtaining a “writ for possession” related to real property, but the

trial judge brushed the Act aside.

By this legal legerdemain, the trial judge allowed the non-attorney receiver

to both practice law without a license and to immediate possession of Petitioner’s

condominium. In essence, the mere act of appointing the receiver served to bestow

the right to practice law on the receiver and divested the owner/Petitioner of the

right to possession of his own property. While the habeas corpus petition seeks

Petitioner’s vindication, it implicates much larger state-wide issues related to the

unauthorized practice of law by non-attorney receivers, the forfeiture of real

property to a receiver without due process of law, and the undermining of public

policies related to allowing non-lawyer receivers to engage in unlicensed practice.

STATEMENT OF CASE

Soon after the order granting his “writ of possession,” the receiver would

“remove/evict” the Petitioner, the owner and title-holder, from his condominium.

To be clear, the San Francisco Sheriff’s Department did not “evict” Petitioner on

the basis of the August 20, 2014 “writ of possession” (with its “stay-away” order)

that the receiver drafted and prepared for the trial court’s signature. Rather, the

Sheriff’s Department required the mandatory Judicial Council EJ-130 form before

any eviction. In view of the procedural obstacle of the EJ-130 form, the non-

attorney court-appointed receiver, Kevin Singer, filled out the form, approached

1 Cal. Const. Art. III, sec. 3.

Petition for Review, pg. 2

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the court clerk (Bowman Liu), and had a new “writ of possession” reissued on the

official mandatory EJ-130 form.

The problem, however, was that Kevin Singer, in filling out the EJ-130

form, represented to the clerk that he had filed a summons and complaint for an

unlawful detainer action and obtained a “judgment for possession.” This was a

deliberate misrepresentation if not an unequivocal fraud on the court. The

Petitioner was never afforded any of the procedural due process protections

associated with the Unlawful Detainer Act. After the Sheriff’s Department

“evicted” Petition on November 6, 2014, the receiver filled out a “citizen’s arrest

form” and choreographed three separate “arrests” of Petitioner for trespassing on

his own property and violating the order to “stay-away” from his own property.

At the first arrest, on January 8, 2015, Mr. Singer had Detective Seeborg of

the San Francisco Police Department waylay Petitioner at the Federal Building

just after oral argument in the civil rights lawsuit Petitioner had filed against Mr.

Singer. (DC NC 14-cv-03250 WHA). The second arrest, on January 23, 2015,

occurred when Detective Seeborg agreed to meet Petitioner but immediately

arrested him. The third arrest, choreographed at the San Francisco Superior Court

by the trial judge that issued the “writ of possession,” occurred when Petitioner

tried to attend a hearing regarding the forced sale of his condominium. He was

thrown in jail instead.

In essence, the receiver first came into the San Francisco Superior Court

with his proposed hand-drafted “writ of possession.” Next, he asserted he had the

right to practice law in “pro per” while acting in a representative capacity as a

receiver. Then he demanded that he be issued a “writ of possession” without

having filed either a complaint under the Unlawful Detainer Act or a cause of

action for possession of “personal property” under CCP §512.010. Of course, the

14th Amendment provides that an individual cannot be deprived of “life, liberty, or

property” without due process of law, but the trial judge ignored this bauble.

Petition for Review, pg. 3

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Likewise, the State Bar Act’s requirements that those practicing law have a certain

level of skill and competence, as reflected by three-years of law school, passage of

the state bar examination, and compliance with CLE requirements, did not apply,

apparently, to the receiver.

At its heart, the prosecution of Petitioner is predicated upon a court-order

that is void for being obtained by a non-lawyer receiver who was engaged in the

misdemeanor of unlicensed practice. Moreover, the “stay-away’ order is void for

being issued in the absence of subject-matter jurisdiction or for being obtained by

the deliberate fraud of the court-appointed receiver.

RETALIATION BY SAN FRANCISCO DISTRICT ATTORNEY

At its dark center, the prosecution of Petitioner smacks of retaliation by San

Francisco District Attorney George Gascon. In June of 2014, Petitioner went to the

Consumer Fraud Division of the District Attorney’s Office and filed a complaint

with Phoebe Maffei regarding Mr. Singer’s unauthorized practice of law. (UPL).

The San Francisco DA’s Office took no action.

After his eviction on November 6, 2014, Petitioner, a licensed attorney,

filed a class action against Kevin Singer for his UPL. (DC CD 14-cv-09104 GW).

In the class action, Petitioner named various district attorneys, such as DA George

Gascon, as party defendants, for their failure to enforce the misdemeanor

prohibition against unlicensed practice. Although DA Gascon would “dismiss” the

charges against Petitioner related to his arrest on January 23, 2015, he would team

up with Kevin Singer and attorney Scott McKay and arrest Petitioner again on

essentially the same charges. In the class action, Petitioner once again apprised

DA Gascon of the facts and illegality of Kevin Singer’s unlicensed practice.

However, DA Gascon once again refused to investigate Mr. Singer’s UPL.

(hereinafter SINGER). Ironically, Petitioner is now prosecuted for misdemeanor

contempt charges based on a stay-away order that is predicated upon the

misdemeanor of non-attorney receiver SINGER. To prosecute Petitioner while he

Petition for Review, pg. 4

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allows SINGER’s crimes to slide, DA Gascon appears to be acting in bad faith if

not in retaliation.

PROCEDURAL HISTORY, COURT OF APPEALS AND SUPERIOR COURT

On September 9, 2015, Judge Renee Navarro of Dept. 22 of the San

Francisco Superior Court denied Petitioner’s habeas corpus writ (No. 6968).

Petitioner then appealed. On October 9, 2015, Justices J. Anthony Kline of the

Court of Appeals for the First District denied Petitioner’s habeas corpus petition.

In his petition, Petitioner challenged his arrest and alleged contempt under Penal

Code §166(a)(4) for eight counts of violating the “stay-away” order that was

attached to the receiver’s “writ of possession.” In his terse order, Justice Kline

rejected Petitioner’s various challenges to the validity of the underlying order.

GROUNDS FOR REVIEW

This criminal case involves a matter of first impression affecting both civil

and criminal litigants throughout the state. (CRC 8.500(b)(1).The Supreme Court

should now settle the important issue of whether a non-lawyer receiver is

authorized to practice law in California in his role as receiver and whether the

State Bar Act should be amended to reflect new procedures needed to

accommodate an exception for non-attorney receivers. A paucity of decisions on

the issue seems to have created uncertainty within the judiciary and provided a

way for unscrupulous receivers to take advantage of the unsuspecting. Confronted

with the issue of unlicensed practice, the judiciary is left without clear direction

and grasps for straws in rendering orders or decisions. For instance, in this

criminal case, Justice Kline and Judge Navarro could not cite any statutes or case

law that expressly and unequivocally authorizes non-attorney receivers to practice

law without a license. There simply are no such statutes or decisions.

It’s as if the judiciary presumes that non-attorney receivers must be

authorized to practice law because neither the Attorney General nor the District

Petition for Review, pg. 5

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Attorneys have stepped up and prosecuted a receiver’s UPL. While the state

constitution (Art. V, sec 13) provides that it’s the “duty” of the Attorney General

to “prosecute any violations of law of which the superior court shall have

jurisdiction,” the Attorney General has taken no action with respect to unlicensed

practice by receivers. On the other hand, at least one district attorney has acted

aggressively in prosecuting the UPL in the context of foreclosures or immigration

law. For instance, former District Attorney Steve Cooley issued a Manual on the

Unauthorized Practice of Law a press release:2

"Unqualified and unlicensed con artists are preying on a growing number of unsuspecting victims, especially new immigrants,’’ Cooley said. "They’re not only taking their money but also violating their legal rights. As District Attorney, I am committed to combating this serious form of fraud…” "This office has initiated numerous investigations and prosecutions against these unscrupulous operators. We also have led statewide efforts to strengthen California’s laws and the penalties for the unauthorized practice of law," Cooley said. "Working closely with the State Bar of California and community bar associations, I have launched a broad-scale effort to identify and prosecute these crimes."

While the Attorney General “shall have all the powers of a district attorney to

enforce the law” under the state constitution (Const. Art. V., sec 13), the AG has

not addressed the UPL in the context of receiverships. Nor has the State Bar.

(Keller v. State Bar of California, (1999) 496 U.S. 1, 5; Keller v. State Bar (1989)

47 Cal. 3d. 1152, 1160, “In addition to those duties, the State Bar enforces the law

relating to the unlawful practice of law…” (Citations omitted))

That’s not to say there are no rulings on point with respect to judicial

officers being held accountable for allowing the UPL in their court rooms. In a

1995 ruling by the Commission on Judicial Performance, Chief Counsel Victoria

B. Henley found that Judge Thomas M. Kelly of the Alpine Judicial District of

2 http://da.lacounty.gov/mr/archive/2004/021904b.htm

Petition for Review, pg. 6

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California had aided and abetted an unlicensed lawyer’s “unauthorized practice of

law” (Attachment B):

The trial court determined that Judge Kelly, by agreeing that the Nevada attorney would handle the management of the lawsuits in the absence of a court order permitting the Nevada attorney to appear as counsel, after signing the complaints prepared by the attorney, unlawfully aided and abetted the unauthorized practice of law. (emphasis added).

More recently, the Tenth Circuit in In re Shattuck, 411 BR 378 (BAP 10th Cir.

2009) ruled that a non-lawyer receiver had no right to practice law in federal court

in his role as receiver on the theory that he was acting in “his own interest” and

thus entitled to the right to self-representation. (*See, fn 18). In reaction to this

Tenth Circuit case, Peter Donaldson, a well-known California receiver, posted a

blog cautioning receivers to hire attorneys if appearing in court or filing pleadings

in federal courts to avoid “being arrested” for engaging in the UPL. (Attachment

C).3

Mr. Donaldson’s suggestion that non-attorney receivers will no longer be

able to practice law in federal courts should apply equally to state courts.

California courts have categorically refused to allow non-lawyers, whether

guardian ad litems, trustees, spouses or siblings, to appear in court or file

pleadings while acting in a “representative” capacity.4 With respect to non-

3 Peter Donaldson, Attachment C: “It appears, therefore, the best course of action for receivers and bankruptcy trustees, when filing pleadings or appearing in district or bankruptcy court (which is merely a division of the district court) is to employ counsel for such purposes. Failure to do so may not only result in the pleading or complaint being stricken, but could subject the receiver to criminal liability for the unauthorized practice of law.” 4 *See, Torres v. Friedman (1985) 169 Cal. App. 3d 880, 888; non-attorney guardian ad litem; City of Downey v. Johnson (1968) 263 Cal. App. 2d 275, 279, nonlawyer conservator representing his mother’s estate; Abar v. Rogers (1981) 124 Ca. App. 3d 862, 865, a non-lawyer husband; In re Gordon J (1980) 108 Cal. App. 3d 907, 914, non-lawyer father; Campell v. Jewish Com. For P. Services (1954) 125 Cal. App. 2d 771, non-lawyer brother).

Petition for Review, pg. 7

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attorney receivers, there is case law holding that such receivers are acting in a

“representative capacity” in their role as receiver. (“In other words, a receiver acts

as a fiduciary on behalf of both parties as a representative and officer of the

court." Security Pacific National Bank v. Geernaert (1988) 199 Cal. App. 3d

1425, 1431-1432). With respect to non-lawyers acting in representative capacities,

there are cases ruling that such non-lawyers are engaged in the UPL. (“A

nonattorney trustee who represents the trust in court is representing and affecting

the interests of the beneficiary and is thus engaged in the unauthorized practice of

law.” Ziegler v. Nickel (1998) 64 Cal. App. 545, 549).

However, there is no appellate decision holding that a non-lawyer receiver

is or is not engaging in the UPL while acting in his role as a receiver. It’s in this

apparent no-man’s land, this “gray area,” that receivers such as Mr. Singer have

operated, practicing law throughout the state and charging fees for what amounts

to “legal services.” The Supreme Court should now define the boundaries of this

no-man’s land. In the absence of an appellate decision exactly on point, trial courts

throughout the state, based on fanciful readings of the receivership statutes, go

along with or allow non-attorney receivers to practice law. In Birbrower, the

Supreme Court noted that the strong public policy underlying the prohibition

against unlicensed practice in section 6125 “serves the statute’s goal of assuring

the competence of all attorneys practicing law in this state.” (Id, at 132).5 If

attorneys must be licensed so that the public is protected from being advised and

represented by persons who are not qualified to practice law (Gerhard v. Stephen

(1968) 68 Cal. 2d 864, 917-918), it undermines this public policy to allow non-

attorney receivers to practice law.

5 *See, State Bar of California v. Sup. Ct. (1929) 207 Cal. 323. The Supreme Court noted that the public interest must "be safeguarded against the ignorances or evil dispositions of those who may be masquerading beneath the cloak of the legal and supposedly learned and upright profession." (Ibid. 331).

Petition for Review, pg. 8

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There is a second public policy that is also undermined by allowing non-

lawyer receivers to engage in unlicensed practice. The second policy consideration

underlying the prohibition against the UPL relates to the integrity of the legal

profession itself. The Ninth Circuit Court of Appeals has found that the litigation

of cases by unlicensed attorneys threatens the integrity of the judicial process

itself. (Alexander v. Robertson (9th Cir. 1989) 882 F. 2d 421, 423-425). In that

respect, the Supreme Court in Shalant v. Girardi (2011) 51 Cal. 4th 1164 noted

that attorneys, unlike non-lawyers, were presumed to act as ethical “gatekeepers”

(Id., 1176):

"Attorneys are governed by prescribed rules of ethics and professional conduct, and, as officers of the court, are subject to disbarment, suspension, and other disciplinary sanctions not applicable to litigants in propria persona."

In the instant case, SINGER claims to have over 200 cases in which he has been

appointed receiver. In the class action Petitioner brought against SINGER (DC CD

14-cv-09104 GW), SINGER has initiated all manner of ctions while acting in “pro

per,” including criminal or quasi-criminal contempts, evictions, and judicial

foreclosures. He is not a lawyer, has no legal training, no ethical instruction, has

not attended a three-year law school, nor passed a bar exam or been required to

take CLE courses. There is no state agency in place holding him accountable for

his unlicensed practice. He cannot be reported to the State Bar because he is not a

“bar member” and is not bound by Cal. Rules of Prof. Conduct such as 1-100.6 He

cannot be sanctioned by the court like a lawyer and is not bound by the

“restraints” noted above in Shalant that might curb or dissuade a lawyer from

untoward, unethical or improper conduct. There is no incentive for SINGER to act

“ethically.” And, as evinced by his actions in fraudulently obtaining the EJ-130

form, he hasn’t.

6 CRPC 1-100: A member shall comply with…

Petition for Review, pg. 9

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The Supreme Court should now settle the important questions of law

related to a non-lawyer receiver’s unlicensed practice and the public policy

concerns of allowing unskilled and untrained non-lawyers receivers to practice law

even if they are acting under the guidance of the trial court.

STATEMENT OF FACTS

On August 20, 2014, the trial judge for the San Francisco Superior Court

granted an order for a “writ of possession” filed by SINGER. The writ sought to

authorize the receiver to “remove” the owner and title-holder, Petitioner, from his

condominium. (A146271, Attachment B, Petitioner’s Writ of Habeas Corpus,

Exhibit A, August 20, 2014). The “proposed order” was submitted after an August

5, 2014 hearing. SINGER stated he was “appearing on his own behalf as

receiver.” (Exhibit A, pg. 1).

On November 6, 2014, Petitioner was evicted from his condominium by the

San Francisco Sheriff’s Department based on Mr. Singer’s reissued EJ-130 form

rather than his drafted August 20, 2014 “writ of possession.” (A146271,

Attachments E & F).

On January 8, 2015, Detective Seeborg of the North Station San Francisco

Police Department, approached Petitioner at the federal district court and served

an “infraction” against him for trespassing on his own property (condominium)

and for violating the August 20, 2014 “stay away order.” (A146271, Attachment

B, Petitioner’s Writ, Exhibit B).

On January 23, 2015, Detective Seeborg and Lieutenant Sawyer arrested

Petitioner based on the “citizen’s arrest” form filed by the court-appointed

receiver, SINGER. (A146271, Attachment B, Petitioner’s Writ, Exhibit C). The

district attorney dismissed the charges against Petitioner “in the interest of

justice.”

On March 18, 2015, Petitioner appeared at a court-hearing related to the

sale of his condominium at the San Francisco Superior Court. He was arrested by

Petition for Review, pg. 10

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a pack of Sheriffs who were acting at the apparent direction of attorney Scott

McKay and the trial judge.

On March 19, 2014, Petitioner was “arraigned” by the criminal court.

Petitioner was charged with multiple counts of “contempt” for violating the

August 20, 2014 “stay away” order. Petitioner entered a plea of “not guilty” and

was released on his own recognizance.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR REVIEW

I. The Court of Appeals’ Denial of the Writ of Habeas Corpus is Reversible Error. A. Court of Appeals’ Conflates the Legal Basis for the Writ of Possession.

1. The Relevant Issue Related to the Writ of Possession.

In denying the habeas corpus petition, Justice Kline characterizes

Petitioner’s first attack on the validity of the underlying order as follows:

“Cunningham claims the "stay-away order" he is charged with violating is not valid because 1) it arose from a writ of possession, which, petitioner claims, can only issue in the context of an unlawful-detainer action…. The writ-of-possession procedure is commonly used in proceedings other than unlawful detainer to obtain property that is security for a debt in default or to obtain property whose ownership is in dispute. (See, e.g. Edwards v. Sup. Ct. (1991) 230 Cal.App.3d 173.)”

Petitioner never argued that a “writ of possession” can “only issue” in an unlawful

detainer action. It’s axiomatic that a “writ of possession” may issue in a cause of

action for “personal property” under Code of Civil Procedure §512.010(a) as well

as the Unlawful Detainer Act. (*See, Title 7, Chapter 2. Claim and Delivery of

Personal Property. CCP §511.010 to §512.120). Justice Kline’s characterization

obscures the relevant issue here. Justice Kline’s view fails to make the distinction

between a “writ of possession” issued for real property as opposed to one issued

for personal property. These two types of writs provide distinct and separate

remedies, serve distinct purposes, and present different procedures.

Petition for Review, pg. 11

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2. Personal Property v. Real Property.

Obviously, a party may file a cause of action for a writ of possession of

personal property under CCP §512.010(a), In this case, however, SINGER sought

a “writ of possession” related to Petitioner’s real property. Justice Kline does not

suggest that SINGER or the other condo co-owner, Michael Coombs, filed an

action for a “writ of possession” for personal property under CCP §512.010. In

any case, Petitioner’s East Lake Victorian condo, by definition, is not “personal

property” that could be returned to its rightful owner under CCP §512.010. Yet, in

relying on Edwards v. Superior Court,7 (Id., pg. 175), Justice Kline seems to

suggest SINGER could wrestle “possession” of real property from the

owner/Petitioner by a “writ of possession” under CCP §512.010. Petitioner cannot

find any legal authority for “evicting” an owner under section 512.010 or using it

as a basis to repossess “real property.”

3. Eviction By Writ of Possession or By Receiver’s Fraud.

In his petition on appeal, Petitioner pointed out and provided evidence in

his petition that SINGER “removed” him not by his August 20, 2014 “writ of

possession,” but by fraudulently obtaining a EJ-103 form from the court clerk.

Yet, Justice Kline simply refused to acknowledge the possibility of SINGER’s

apparent fraud on the court. Clearly, false evidence presented by SINGER in

obtaining his EJ-130 form cannot support contempt charges but it may support

felony charges against him (Penal Code §136(b) “…giving false material evidence

pertaining to a crime.”).

II. The Stay Away Order Underpinning the Criminal Contempt Is Invalid. A. An Invalid Order Cannot Be the Basis for a Criminal Contempt Under PC

7 Edwards, supra, at 175; Edwards involved a cause of action “for possession of personal property.” The personal property in question was a prized show dog “named Shavin Kingsmere Notty Nada.”

Petition for Review, pg. 12

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§166.

The rule is well settled in California that a void order cannot be the basis

for a valid contempt judgment. California law defines misdemeanor contempt as,

among other things, disobedience of an order "lawfully issued" by a court. (Penal

Code §166 (a)(4).) California law has long established there can be no contempt of

an invalid injunctive order. (In re Berry (1968) 68 Cal. 2d, 137, 147; void order

cannot sustain contempt judgment; where order is void, "petitioner should not

have been adjudged guilty of contempt"; Watsonville Canning & Frozen Food

Co. v. Superior Court (1986) 178 Cal. App. 3d, 1242, 1246; violation of invalid

court order cannot produce valid contempt judgment based on violation of order).8

The Supreme Court in Gonzales, noted that in Berry, a misdemeanor

contempt case like the present one, that they ruled that "the violation of an order

in excess of the jurisdiction of the issuing court cannot produce a valid judgment

of contempt [citations], and that the `jurisdiction' in question extends beyond mere

subject matter or personal jurisdiction...." (supra, at 817). The Supreme Court, in

defining a trial court’s jurisdiction in Berry stated (supra, at 817):

"…`any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction.'"

III. The Stay Away Order Is Founded Upon or Bootstrapped to An Invalid Order Issued By the Superior Court. In the instant case, the trial court’s stay-away is void on at least three

grounds. First, neither the trial court nor the court-appointed receiver complied

8 People v. Gonzales (1996) 12 Cal. 4th 804, 817: (See also Mowrer v. Superior Court (1969) 3 Cal. App. 3d 223, 229-230 [83 Cal. Rptr. 125][violation of invalid court order cannot produce valid contempt judgment]; 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 277, p. 683 [void order never binding; violation cannot constitute contempt].

Petition for Review, pg. 13

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with the procedural requirements for the issuance of injunctive relief under CCP

§526. Second, the order was obtained by SINGER, an unlicensed receiver who

had no authority to appear in court and practice law without a license. Third, the

stay away order is bootstrapped to a “writ of possession” that was not obtained

pursuant to a “judgment for possession” as mandated by the Unlawful Detainer

Act. (CCP §715.050).

A. The Stay Away Order Is a Nullity in that It Deprived an Owner of Possession Without Procedural Due Process Protections.

1. Petitioner, As Owner of a Condo, Is Not Subject to Unlawful Detainer Act.

In his order, Justice Kline, as noted above, confused “writs of possession”

used to recover real property with those to repossess personal property. For his

part, Judge Renee Navarro rightly recognized that the Unlawful Detainer Action

did not apply to an “owner” of real property. Yet, he suggested that the trial court

could “proceed by writ of possession, not an unlawful detainer.” (Navarro’s

Order, pg. 3/24-4/5):

Petitioner does not articulate how his ownership interest is subject to an unlawful detainer. An unlawful detainer applies to a person who is a tenant of real property. (CCP § 1161). The court proceeded under a writ of possession, not an unlawful detainer. (Petitioner's Writ of Habeas Corpus, Exhibit A). Petitioner does not have the type of property right that would require unlawful detainer procedures; therefore, the court properly proceeded by way of writ of possession.

Judge Navarro correctly noted that an owner of real property was not subject to the

Unlawful Detainer Act. ("The statutory situations in which the remedy of unlawful

detainer is available are exclusive, and the statutory procedure must be strictly

followed." (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 506.)9 Because

9 The remedy of unlawful detainer is available in only three situations: ¶(a) Landlord against tenant for unlawfully holding over or for breach of the lease (the

Petition for Review, pg. 14

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fellow condo co-owners Michael Coombs and Tamara Woods, were no longer

“Cotenants” with Petitioner after condo-conversion and were not the “owners, new

purchasers, or the landlord,” they had no standing to bring an eviction action

against Petitioner or his roommates. Clearly, the remedy of an unlawful detainer

action was not available to the co-owners or SINGER.

2. A Writ of Possession Is Not A Separate Action From An Eviction.

In their orders, both Justice Kline and Judge Navarro seem to come to the

conclusion that a “writ of possession” under the Unlawful Detainer Act was not

the proper legal basis to “remove” owner/Petitioner from his condo.

On the other hand, Judge Navarro suggests that SINGER could “proceed by

writ of possession.” However, he does not cite any statutory authority or case law,

like the prized show-dog Notty Nada case of Edwards v. Sup. Ct., which Justice

Kline cited as authority for evicting/removing an “owner” from his real property.

It’s unclear if he erroneously believes, like Justice Kline, that an owner can be

“evicted” under the statute for “personal property” or whether he fails to

recognized that a “writ of possession” is a step in an unlawful detainer action. If

the later case, Code of Civil Procedure §715.050 makes clear that a “writ of

possession” is a step in the unlawful detainer process, not a separate cause of

action or proceeding:

715.050. Except with respect to enforcement of a judgment for money, a writ of possession issued pursuant to a judgment for possession in an unlawful detainer action shall be enforced pursuant to this chapter without delay, notwithstanding receipt of notice of

traditional and most important proceeding). (Code Civ. Proc. §1161); ¶ (b) Owner against servant, employee, agent, or licensee, whose relationship has terminated. (Code Civ. Proc., §1161(1); ¶(c) Purchaser at sale under execution, foreclosure, or power of sale in mortgage or deed of trust, against former owner and possessor. (Code Civ. Proc., §] 1161(a); 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 599, p. 69.)

Petition for Review, pg. 15

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the filing by the defendant of a bankruptcy proceeding.

Likewise, section Code of Civil Procedure §715.010 provides that a “judgment for

possession” may be enforced by a “writ of possession.”10 Subsections (b)(1-7)

states that the “writ of possession” must also contain, inter alia, a description of

the property, a five-day notice to vacate, the date the complaint was filed, the

“rental value” “on the date the unlawful detainer” was filed and that service of the

complaint was made “in accordance with section 415.46.” CCP section 415.46

makes clear that the “complaint” to be served is for an unlawful detainer action.11

In essence, when read together, CCP §715.050, CCP §715.010, Civil Code

§415.46, Civil Code §1166(a) and case law, clearly indicate that a “writ of

possession” is issued only after a “judgment for possession” is obtained by a

landlord, owner, or new purchaser in an unlawful detainer proceeding. In that

regard, if Judge Navarro believes that there is an action for a “writ of possession”

for purposes of eviction separate and apart from an unlawful detainer act he is

mistaken. In short, Petitioner, as the owner, could not be “evicted” under the

Unlawful Detainer Act any more than he could be “removed” as “personal

property” under CCP §512.010.

B. Judge Navarro and Justice Kline Fail to Consider the False Evidence Underpinning the Contempt Case.

Both Justice Kline and Judge Navarro failed to acknowledge at least three

10 Section 715.010. (a) A judgment for possession of real property may be enforced by a writ of possession of real property issued pursuant to Section 712.010… 11 CCP 415.46. (a) In addition to the service of a summons and complaint in an action for unlawful detainer upon a tenant and subtenant, if any, as prescribed by this article, a prejudgment claim of right to possession may also be served on any person who appears to be or who may claim to have occupied the premises at the time of the filing of the action. Service upon occupants shall be made...

Petition for Review, pg. 16

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fundamental facts underpinning this criminal contempt case. First, both Judge

Navarro and Justice Kline refuse to concede the fact that the Sheriff’s Department

“evicted” Petitioner pursuant to EJ-130 and the Unlawful Detainer Act. Second,

they both refused to consider or acknowledge that the “eviction” of an owner from

his own property occurred in this case. They both scramble, unsuccessfully, to

justify the “removal/eviction” of Petitioner by citing other grounds for the eviction

or they refer to the act as a “removal.” Third, they both seem to have a

pathological aversion to admitting or accepting SINGER’s misconduct or frauds in

obtaining the eviction.

1. Mr. Singer Proceeded By Way of Fraud.

Justice Kline and Judge Navarro deny the fundamental fact in this case. The

fact is that Petitioner was evicted as a result of SINGER’s misconduct, his fraud.

While Judge Navarro mistakenly states that the receiver could “proceed by way of

a writ of possession,” the San Francisco Sheriff’s Department would not

“evict/remove” the owner except under the mandated procedures and with the

approved Judicial Council forms promulgated after the Supreme Court’s decision

in Arieta v. Mahon (1982) 31 Cal. 3d 381. (In Lara v. County of Santa Clara,

U.S District Court, N.D. California, C-11-0607 RS, (2012), the U.S. District Court

Judge Richard Seeborg pointed out that the California Legislature has “effectively

codified the holding in Arieta” and provided “formal procedures” and “judicial

council forms” for any individuals “making a claim of right to possession.”)

As noted above, section 715.010 requires that the “writ of possession”

include a five-day notice to vacate, a description of the property, and the date of

the unlawful detainer complaint. In other words, there can be no “eviction” or

“removal” under the controlling statute unless there is an unlawful detainer action.

If the non-attorney court appointed receiver did not realize this when he filed his

self-drafted writ with the court, he quickly learned otherwise. He was informed by

the San Francisco Sheriff’s Department that his “drafted” August 20, 2014 “writ

Petition for Review, pg. 17

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of possession” was lacking all the required information. Under the mandated

procedures, the court clerk was to issue the “writ of possession” on the mandated

EJ-130 form.

CCP 712.010: After entry of a judgment for possession or sale of property, a writ of possession or sale shall be issued by the clerk of the court upon application of the judgment creditor and shall be directed to the levying officer in the county where the judgment is to be enforced. The application shall include a declaration under penalty of perjury stating the daily rental value of the property as of the date the complaint for unlawful detainer was filed…(emphasis added).

SINGER had never obtained a “judgment for possession” under the Unlawful

Detainer action against the owner/Petitioner. Realizing he could not “remove” the

owner/Petitioner without the mandated Judicial Council form (EJ-130), SINGER

returned to the court clerk (Bowman Liu) on August 28, 2015, filled out the EJ-

130 form, and returned it to the Sheriff’s. (A146271; Attachment E, Note:

Stamped “Received” at the Sheriff’s Office on September 14, 2014). In the EJ-130

form, SINGER checked the box indicating he’d “served” Petitioner’s roommates

the “Prejudgment Claim of Right to Possession.” He had to commit this fraud on

the Sheriff’s Dept if he wanted to get paid from the receivership estate, that is, the

$800,000 to $1,000,000 of equity Petitioner had in his condo.

SINGER’s first deliberate misrepresentation was that he’d served the form on

Petitioner’s roommates. He had not. His second deliberate misrepresentation was

that he served the form “in compliance with CCP 415.46.” But CCP 415.46, as

Petition for Review, pg. 18

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noted above, provides for service of the form with the unlawful detainer

“summons and complaint.” He knew there was no “unlawful detainer action,” but

nevertheless stated the “unlawful detainer” complaint was filed on “9/29/10.”

(*See, 24(a) Possession of real property. The Complaint was filed on (date)

09/29/10). That was his third bold-faced deceit upon the clerk, the Sheriff’s

Department, and the court. The “9/29/10” date was not an unlawful detainer action

that resulted in a “judgment for possession,” but Mr. McKay’s Petition to Compel

Arbitration on the 2007 TICA.12 SINGER’s ultimate fraud was convincing the

court clerk to swap out his August 28, 2014 “writ of possession” for the EJ-130.13

It’s arguable that SINGER was not actively trying to defraud the court, the

court clerk, or the Sheriff’s Department when he presented an EJ-130 form

indicating that there had been an unlawful detainer that resulted in a “judgment for

possession.” It’s possible he was merely an untrained, non-attorney receiver who

was practicing law without a license and had no idea what he was doing. If so, and

as a result, his “writs of possession” should be considered a nullity and not a valid

order for purposes of a contempt action. (“The general American rule is that an

unlicensed person cannot appear in court for another person, and that the

12 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760 SEP-29-2010 NTC OF HEARING ON PETITION TO COMPEL ARBITRATION AND FOR

APPOINTMENT OF NEUTRAL ARBITRATOR; MEMO OF P & A, DECLARATION FILED BY PETITIONER COOMBS, MICHAEL WOODS, TAMARA HEARING SET FOR OCT-19-2010 AT 09:30 AM IN DEPT 302

13 http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760

AUG-28-2014 ISSUANCE OF WRIT OF POSSESSION OF PROPERTY AGAINST ARCHIBALD CUNNINGHAM AS PER ORDER FILED ON AUGUST 20, 2014 FILED BY OTHER SINGER, KEVIN AS TO DEFENDANT CUNNINGHAM, ARCHIBALD

Petition for Review, pg. 19

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resulting judgment is a nullity.” Russell v. Dopp (1995) 36 Cal. App. 765, 775; "A

judgment obtained against a party represented by an unlicensed person is

invalid." 1 Witkin, Cal. Procedure (3d ed. 1985; Attorneys, § 294, p. 330.).

However, several weeks later on September 29, 2014, SINGER was

allowed to “revoke” his first EJ-130 form (and the accompanying frauds) and

resubmit a second EJ-130 form. (A146271; Attachment F). In his September 29,

2015 letter to the trial judge, Mr. Singer states:

“…I had the Initial Writ re-issued, signed by the clerk (“Re-issued Writ”) and presented to the Sheriff (See “Exhibit 2” Attached)….I expect that this Reissued Writ will succeed in removing Respondent Archibald Cunningham. Once he is removed, I expect to be able to have the Property inspected, appraised and marketed for sale.

In the “Re-Issued Writ,” SINGER resubmits essentially the same writ but this time

he does not check the box at section 24. Instead, he indicated he had not in fact

served Prejudgment Right to Possession forms on Petitioner’s roommates when he

apparently served the unlawful detainer complaint “in compliance with 415.46.”

He also misrepresents to the Sheriff’s Department that he obtained a “writ of

possession” some five years before based on the Petition to Compel Arbitration.

This misrepresented law and fact. (A146271; Attachment F, Mr. Singer’s Exhibit

TWO):

By not checking box 24(a)(1) in the reissued writ, he misrepresents that his

amendments have somehow cured his failure to obtain a “judgment for

possession” under the Unlawful Detainer Act and as required by CCP §715.050,

Petition for Review, pg. 20

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§715.010 & §712.010. Further, he thinks by typing in Petitioner’s name under the

section for a “Description of Property,” that the Sheriff with realize to

“evict/remove” him along with his property but “not any current tenants.”

Both Justice Kline and Judge Navarro’s rulings are predicated upon the

mistaken factual assumption that Petitioner was “removed” by the August 20,

2014 writ. He was not. Their rulings are predicated upon the legal assumption

that there was a statutory basis for “removing/evicting” an owner from his own

property. There is not. Even if an owner could be “evicted” under the Unlawful

Detainer Act, SINGER’s EJ-130 “writs of possession,” obtained by a deliberate

fraud upon the court clerk and the Sheriff’s Department, would not support a

contempt action. These writs were false evidence since there was no unlawful

detainer action resulting in a judgment for possession.

In short, these writs, which are either void for being issued in excess of the

trial court’s jurisdiction or obtained by SINGER’s fraud, can not reasonably be

characterized as “valid” for purposes of upholding contempt charges against

Petitioner. 14

2. Receiver SINGER Engaged In An Illegal Eviction Scheme.

In his order, Judge Navarro states that the “Petitioner did not articulate

how his ownership interest is subject to an unlawful detainer.” First, Judge

Navarro’s statement speaks to the judicial officers’ denial of the fact that

Petitioner was, in fact, “evicted” by SINGER’s fraudulent use of the EJ-130 form.

SINGER convinced the Sheriff’s Department to “evict” an owner who was not

“subject to an unlawful detainer.” SINGER accomplished that by fraud. Second,

14 *See, Gonzales at fn 8.

Petition for Review, pg. 21

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Judge Navarro’s statement speaks to the mistaken presumption that there was

some other statute, some other “writ of possession” procedure for evicting an

owner from his own property (an owner removal writ?). If there is, it is not

section 512.010. If there were, there is no showing that Petitioner was presented

with any notice or hearing under the unidentified statute that gave him an

opportunity to challenge his “removal/eviction.”

To be clear, neither Justice Kline nor Judge Navarro disputes the fact that

Petitioner was “removed” on November 14, 2014. They just refuse to concede it

was an unlawful and fraudulent eviction. The fact is that Petitioner was not

subject to “eviction” nor “removal” under SINGER’s “drafted” writ of

possession, the Unlawful Detainer Act, or section 512.010. Rather, Petitioner

asserts that SINGER, Mr. McKay, and co-owners engaged in an illegal scheme to

“remove” Petitioner so that they could sell his property. They had churned up

hundreds of thousands dollars in fees in trying to “enforce” a facially void

judgment. That judgment provided for a “forced sale” of a “condominium” under

a 2007 Tenants-in-Common Agreement which applied only to a “defaulting

Cotenant’s cotenancy share,” not Petitioner’s fee simple condominium. Petitioner

had $1,000,000 of equity in his property to be plundered.

Faced with the fact that his clients lacked standing to evict Petitioner as an

“owner,” Mr. McKay and SINGER devised a scheme to “remove” the owner by

broadly interpreting CCP §568 as granting a receiver the right to “possession”

immediately upon his appointment without regard to the Due Process Clause of

the 14th Amendment. Mr. McKay explained his view during a hearing at the civil

rights suit against McKay and SINGER, DC ND 14-cv-03250 WHA (A146271;

Attachment B, Writ Exhibit D, Transcript January 8, 2015, pg. 18/14-24);

THE COURT: Well, was he evicted? Well, he was evicted? MR. MCKAY: He was evicted, despite his… THE COURT: He was evicted pursuant to what? MR. MCKAY: Code of Civil Procedure 568, which allows a receiver to obtain possession of property that’s subject to the receivership estate. You

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don’t have to file an unlawful detainer. THE COURT: The sheriff went out there to kick him out? Is that the way it worked? MR. McKAY: That’s correct.

But Mr. McKay cites no decision that has interpreted the receivership statutes as

an automatic grant of “possession” to a receiver. Nor does he suggest that the

parties agreed or stipulated in their 2007 Tenants-in-Common Agreement, their

2009 CC&Rs and Bylaws, or in their mortgage to a party’s forfeiture of

“possession” in the event of an alleged default. In any case, Mr. McKay, in

arguing for these broad reading of these statutes, knew that his confederate

SINGER got Petitioner “evicted” with the EJ-130 form and his accompanying

misrepresentations. In his statement in federal court, Mr. McKay willfully

deceives the district court judge as to the manner in which Petitioner was evicted.

C. The Stay-Away Order Is Void Given the Receiver’s Unlicensed Practice of Law.

In their orders, both Justice Kline and Judge Navarro reject the argument

that SINGER was engaged in the UPL. Neither Judge Kline nor Judge Navarro

dispute that SINGER’s actions in drafting his writ of possession or appearing in

court to argue for a broad reading of the receivership statutes was the practice of

law. For his part, Judge Navarro concludes that SINGER’s actions are not

“unauthorized practice” because section 568 permits him to practice law as a

receiver (Order, pg. 3/11-13):

Here, Mr. Singer, was appointed pursuant to statute and that statute empowers him to bring and defend actions. (See CCP § 568). As such, he is properly acting and not conducting the unlicensed practice of law.

(Order, pg. 3/ 11-13). For his part, Justice Kline whitewashes the issue by stating

that SINGER “acted in his appointed capacity as the superior court had

authorized.” In essence, both judicial officers seem to reason or construe the

Petition for Review, pg. 23

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language of sections 564-568 as implicitly allowing a court-appointed receiver to

practice.

In this regard, both judicial officers read section 568 as a “judicial

exception” to the absolute prohibition in Bus. & Prof. Code 6125 against the UPL.

("No person shall practice law in California unless the person is an active member

of the State Bar."). This is evident in Judge Navarro’s comment that “[A] receiver

has the power to "bring and defend actions" and "generally to do such acts

respecting the property as the Court may authorize." (CCP § 568). (Order, pg. 3/1-

3). In their rulings, they do not cite to any court rule or statute that makes an

exception for a non-attorney receiver to practice law without a license.

As an initial matter, Petitioner notes that SINGER, in drafting pleadings

that deprive an owner of possession of his property and by appearing in court to

assert his right to practice law, is practicing law.15 In that regard, section 6126(a)

provides that unless there is a “statute or court rule” or decision holding that an

unlicensed receiver may practice law, SINGER was engaged in the misdemeanor

of UPL. As noted above, any of his order/judgments obtained during the

unlicensed practice of law, are a nullity. In his petition, Petitioner noted that the

Title Nine court rules limited exceptions to unlicensed practice to law students

(CRC 9.42) or out-of-state attorneys who have obtained court approval. (CRC

9.40). With respect to statutory exceptions, the Legislature has made two statutory

exceptions16 to section 6125 which are not applicable to non-lawyer receivers such

15 In In re Garcia (9th Cir. BAP 2005) 335 B.R. 717, 728; Estate of Condon (1998) 65 Cal. App. 4th 1138; Frankfort Digital Services (9th Cir. BAP 2004) 315 B.R. 544, 552. 16 One exception if for international disputes resolved in California under the state’s rules for arbitration and conciliation of international commercial disputes. (CCP §1297.11 et seq; “The parties may appear in person or be represented or assisted by any person of their choice. A person assisting in representing a party need not be a member of the legal profession or licensed to practice law in California. :”CCP §1297.351).). The other exception if for labor negotiations and

Petition for Review, pg. 24

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as Mr. Singer.

Finally, the California Supreme Court in Birbrower, Montalbano, Condon

& Frank v. Superior Court (1998) 17 Ca. 4th 119, refused to “fashion” a judicial

exception for unlicensed out-of-state lawyers. In “declining” to fashion an

“arbitration exception to section 6125’s prohibition of the unlicensed practice of

law,” the Supreme Court reasoned that an “exception for arbitration is best left to

the Legislature.” (Id., 133-134). The Supreme Court construed the meaning of the

statute by looking at the words and giving them “their usual and ordinary

meaning.” The Supreme Court noted that the “plain meaning” of the words

“controls our interpretation of the statute.” (Id, 137, citing DaFonte v. Up-Right,

Inc. (1992) 2 Cal. 4th 593; Kimmel v. Goland (1990) 51 Cal. 3d 202, 208-209;

Tieran v. Trustees of Cal. State University & Colleges (1982) 33 Cal. 3d 211,

218).

For his part, Judge Navarro reads into the “bring and defend” language of

section 568 the right of a receiver to practice law without a license. In Birbrower,

the Supreme Court noted that Legislature enacted §6125 in 1927 as part of the

State Bar Act. The State Bar Act provides a comprehensive scheme regulating the

practice of law in the state. (Id, 127). Judge Navarro does not explain why the

Legislature did not exempt non-attorney receivers from the State Bar Act as it

expressly did with “non-lawyers” in cases involving international disputes (fn. 16;

CCP §1297). To construe the “general powers” of a receiver in §568 without

considering the State Bar Act is not consistent with rules for statutory

construction. Further, the Supreme Court in Birbrower rejected the same

reasoning related to the “general powers” of an arbitrator. The Supreme Court

stated (Id., fn 4):

The dissent focuses on an arbitrator's powers in an attempt to justify its

arbitrations arising under collective bargaining agreement in industries subject to federal law. (Teamsters Local v. Lucas Flour Co. (1962). 369 U.S. 95, 103).

Petition for Review, pg. 25

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conclusion that an out-of-state attorney may engage in the unlicensed representation of a client in an arbitration proceeding….This narrow focus confuses the issue here. An arbitrator's powers to enforce a contract or "award an essentially unlimited range of remedies" has no bearing on the question whether unlicensed out-of-state attorneys may represent California clients in an arbitration proceeding.

Petitioner cited this Birbrower passage in his petition. But neither Justice Kline

nor Judge Navarro explain why language related to the “general powers” of

receivers would be interpreted differently by the Supreme Court than those of

arbitrators. Further, they do not address the holding of In re Shattuck 411 BR 378

(BAP 10th Cir. 2009) where the Tenth Circuit rejected the argument that a non-

attorney receiver had the right to practice law in his role as a receiver on the theory

that he was acting in pro per for his “own interest.” 17

As noted in Birbrower, the Supreme Court noted that “exceptions” for

arbitrators, and presumably receivers, “is best left to the Legislature.” Under

principals of stare devises, the judicial officers here should have deferred to the

Legislature instead of fashioning “judicial exceptions.” Their judicial exceptions

are in excess of their jurisdiction inasmuch as these rulings contradict the “express

statutory declaration” against the prohibition against unlicensed practice. Hence,

Mr. Singer’s orders are a nullity and cannot be the basis of a contempt action.

D. The Stay-Away Order Is Invalid and Not a Basis for A Contempt Case.

Justice Kline’s order does not address this issue. In his order, Judge

17 In re Shattuck, supra, at 384: Mr. Bondurant asserts that he was appointed as receiver by the Adams County District Court as an "individual." Nothing in the record, however, suggests that Mr. Bondurant, as an individual, had any personal claim against the Shattucks or their estate, or that he was exclusively advocating his own personal rights and interests. Clearly, in filing and prosecuting the Motion to Dismiss, Mr. Bondurant was acting in a representative capacity on behalf of the receivership estate of the LLC, and by extension, on behalf of creditors of that estate…

Petition for Review, pg. 26

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Navarro rejects Petitioner's argument that the "stay-away order" was issued

without "statutory authority." (Order, pg. 7 /4-17). He rules that the "stay-away

order" was proper because it was "included as part of the writ of possession." He

states that the reason for the stay-away order was Petitioner's "noncooperation

with the sale of the property." As noted above, the writ of possession was

improper and, therefore, not a proper basis for a stay-away order.

Petitioner concedes that trial courts have inherent authority to issue

injunctive relief to prevent interference with a judgment that would render the

judgment "ineffective." (CCP §526(a)(3)). In Franklin & Franklin v. 7-Eleven

Owners, 102 Cal. Rept. 770, 776, the Court of Appeals, quoting 6 Witkin, Cal.

Procedure (4th ed. 1997) Provisional Remedies, 300, pg. 239, stated "An injunction

is expressly authorized during an action where it appears that a party is doing or

about to do ... an act . .. that tends to render the judgment ineffective. (C.C.P.

§526(a)(3); (citations omitted).

At the same time, Petitioner notes that, even if the writ of possession were

properly issued, court rules related to the issuance of injunctions Cal. Rule of

Court 3.1150 must provide him a notice and a hearing on the activity to be

enjoined. (CRC 3.1 lSO(d). "The TRO must describe the conduct to be enjoined.").

In this case, however, Petitioner was never provided notice or given an

opportunity to challenge his alleged interference with the forced sale of his

property.

CONCLUSION

For the reasons stated, the Petitioner asks that a writ of habeas corpus or an

order to cause be issued.

Dated:~ /V /rT /r'>

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Petitioner

Petition for Review, pg. 28

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CERTIFICATE OF COMPLIANCE

I, Petitioner Archibald Cunningham, hereby certify that, pursuant to Cal.

Rules of Court, rule 14(c)(l), this petition for review (habeas corpus) contains

approximately 8398 words, including footnotes, as computed by the Microsoft

Word 7 word processor.

Petition for Review, pg. 29

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PROOF OF SERVICE

l d~clare that I am over the age of eighteen (18) years. My address is P.O. Box

54399, San Jose, CA 95154.

[ x] On October 14, 2015 I served the Petitioner's Petition for Review by delivering a true copies to the addresses below:

Judge Navarro Dept. 22 Hall of Justice 850 Byrant San Francisco, CA 94109

District Attorney George Gascon Dept. 322 Hall of Justice 850 Byrant San Francisco, CA 94109

Court of Appeals 350 McAllister St. San Francisco, CA 94102

I declare under penalty of perjury that the foregoing is true and correct and

that this declaration was executed on October 14, 2015 at San Jose, CA.

Stephen James

Petition for Review, pg. 30

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ATTACHMENT A

ATTACHMENT A

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO OCT -9 l'.:015

In re ARCHIBALD CUNNINGHAM,

on Habeas Corpus.

BY THE COURT:

Al46271 by Uc;µuty Clerk (San Francisco C~o u==n==t~y=:=:==::::::::;:;;;;::;;:;;;:::,.::.::::::..;;:.::::.:.:J

Super. Ct. No. 15006518)

Archibald Cunningham has filed a petition for writ of habeas corpus challenging

his arrest and pending prosecution for multiple counts of violating California Penal Code,

section 166(a)(4), disobeying a court order. Cunningham claims the "stay-away order"

he is charged with violating is not valid because 1) it arose from a writ of possession,

which, petitioner claims, can only issue in the context of an unlawful-detainer action; 2) it

was secured by a court-appointed receiver engaging in the unlicensed practice of law.

These claims are without merit. The writ-of-possession procedure is commonly

used in proceedings other than unlawful detainer to obtain property that is security for a

debt in default or to obtain property whose ownership is in dispute. (See, e.g. Edwards v.

Sup. Ct. (1991) 230 Cal.AppJd 173.) Further, as petitioner_q_oncedes, the Code of Civil

Procedure, section 564, permits the court to appoint a receiver in authorized cases "to do

such acts respecting the property as the Court may authorize." (Code Civ. Proc., § 568.)

Here, it undisputed, the receiver acted in his appointed capacity as the superior court had

authorized. The cases petitioner cites in this regard are thus wholly inapposite.

Petitioner's additional arguments are rejected as frivolous. The petition for writ of

habeas corpus and petitioner's motion to recuse Justices Kline and Richman are denied.

Date OCT-92015 !<" L ,: ~: 1 P, "--~ , -------------' P.J.

1

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ATTACHMENT B

ATTACHMENT B

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270

Ji>iafc Df California

(Ermtmissinn on 3Jufrtriai |Jerf0rrnanrE Ifll Jtofcarb ^freef, ^ u t f e 300 ^ a n (IfranriscD, QjA 94105

(415)904-3650 FAX (41 5) 904-3666

February 28, 1995

Honorable Thomas M. Kelly Judge of the Justice Court Alpine Judicial District P. O. Box 515 Markleeville, CA 96120-0515 Dear Judge Kelly:

The Commission on Judicial Performance has determined that you should be publicly reproved for the following conduct:

"In 1987, before justice court judges were prohibited from practicing law by California Constitution Article VI §17 and Government Code §71607, Judge Kelly became attorney of record for the plaintiff in Okoye v. Citicorp, Los Angeles Superior Court Case No. C 683268. Judge Kelly signed a complaint prepared by a Nevada attorney whose law library and office Judge Kelly sometimes used. Judge Kelly accommodated the Nevada attorney without receiving a fee or promise of fee, and without expecting a fee. The attorney had told Judge Kelly that he intended to handle the case and would file a motion to appear pro hac vice, seeking the court's permission to appear as an out-of-state attorney with Kelly, a California attorney, associated as counsel. However, within a month after the complaint was filed, the Nevada attorney abandoned his plan to file the application, and so advised Judge Kelly.

Because Kelly was counsel of record in Okoye v. Citicorp, the defendant's counsel communicated with Judge Kelly at the Nevada counsel's address. A demurrer to the complaint was filed. Judge Kelly and the Nevada attorney discussed the matter and agreed to stipulate to the demurrer. A first amended complaint was filed; a demurrer to that complaint was sustained, as well. No second amended complaint was filed.

During the spring and summer of 1987, defense counsel contacted Judge Kelly four times to schedule the plaintiff's deposition. Although Judge Kelly informed the Nevada attorney, Judge Kelly did not notify the plaintiff. On one occasion, Judge Kelly told defense counsel that he could not attend a deposition because he was scheduled on a judicial assignment.

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Honorable Thomas M. Kelly February 28, 1995 Page Two

No discovery pertinent to the merits of the case was provided to the defense. On July 8, 1987, a motion to compel production of documents was heard. There was no appearance for plaintiff. The court ordered production of the requested documents and ordered sanctions against Judge Kelly and the plaintiff, which were later paid by the Nevada attorney. Judge Kelly never notified the plaintiff.

On August 25, 1987, Judge Kelly appeared at a hearing on defendant's motion to dismiss. This was the first occasion on which the plaintiff and Judge Kelly met with each other. The court ordered the case dismissed for failure to file a second amended complaint, and imposed sanctions of $2,500 on both Judge Kelly and the plaintiff.

A federal complaint signed by Judge Kelly also was filed on behalf of the plaintiff, in April of 1987. It was dismissed for lack of prosecution, and the motion to set the dismissal aside was dismissed without hearing in December 1987.

The plaintiff sued Judge Kelly and the Nevada attorney for breach of contract, fraud, and legal malpractice in their representation of him in the Okoye v. Citicorp case. After a court trial, the court found Judge Kelly and the Nevada attorney liable on the cause of action for legal malpractice. The Nevada attorney was also held liable for breach of contract. Both were ordered to pay a judgment of $351,000. The judgment was affirmed on appeal.

The trial court determined that Judge Kelly, by agreeing that the Nevada attorney would handle the management of the lawsuits in the absence of a court order permitting the Nevada attorney to appear as counsel, after signing the complaints prepared by the Nevada attorney, unlawfully aided and abetted the unauthorized practice of law, contrary to Business and Professions Code § 6126(a) and Code of Professional Responsibility Rule 3-101. The commission finds that by his conduct in the case, including abandoning, for all intents and purposes, a client for whom he was attorney of record, Judge Kelly committed a breach of fiduciary duty and committed legal malpractice. Judge Kelly's conduct constitutes conduct prejudicial to the administration of justice that brings the judiciary into disrepute."

This public reproval is being issued with your consent. Very truly yours, i / ; ^-—-N i \

VICTORIA B. HENLEY / Director-Chief Counsel !

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ATTACHMENT C

ATTACHMENT C

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Ask the Receiver®Bytes, Sites & RightsConstruction ChaosEstatementsOn Writs and WineStaff InfectionTaxing MattersThe Commercial Loan Ranger

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Posted Feb. 19, 2014 in Ask the Receiver®

Can a State Court Receiver Appear in the Bankruptcy Court or the District Court on Behalf of the Receivership Estate?

by Peter A. Davidson

QUESTION: I have been a receiver for quite some time and know how the system works. I have a case without much money currently in it. Instead of hiring counsel, can I file pleadings in the bankruptcy court or the district court, on behalf of the receivership estate, or do I need to employ counsel to do so?

ANSWER: A new appellate decision calls into question the ability of a receiver, and, in fact a bankruptcy trustee, to file pleadings and represent the estate (receivership or bankruptcy) in federal court. The case holds that only attorneys can appear and sign pleadings on behalf of the estate, which as most attorneys know is the requirement for corporations or partnerships. The case, In re Shattuck, 411 B. R. 378 (10th Cir. BAP 2009), decided by the 10th Circuit Bankruptcy Appellate Panel, arose out of a state court receiver for an LLC filing a motion in the bankruptcy court to dismiss the debtors’ chapter 13 case on the ground that the debtors did not meet the eligibility limits under Section 109(e) of the Bankruptcy Code due to the fact that the debtors owed the receivership estate in excess of $800,000.00. The receiver filed the motion to dismiss on his own, without the assistance of counsel. The receiver was not an attorney.

The debtors moved to strike the receiver’s motion on the ground that because the receiver was not a licensed attorney he had no authority to file pleadings on behalf of the LLC, citing a District Court of Colorado local rule which is similar, but not exactly the same as, local rules for the district courts in California. The rule provided that: “Only pro se individual parties and members of this court’s bar may appear or sign pleadings, motions or other papers”. The receiver asserted that he was appointed receiver for the LLC by the state court and was appointed to be receiver as an individual and, as an individual, he was appearing pro se.

The bankruptcy court overruled the motion to strike the receiver’s objection on the basis that it felt it had discretion to allow non-lawyers to file pleadings and appear in court on behalf of an entity. The court determined that the debtors’ liabilities exceeded the limits of Section 109(e) and ordered their bankruptcy case dismissed.

On appeal the BAP reversed, citing 28 U.S.C. § 1654, which provides: “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” It held it is “well settled”

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that a lay person, while allowed to represent himself or herself, may not represent the interests or rights of anyone else. The court held that the statue does not permit artificial entities, such as corporations, partnerships, associations, LLC’s, trusts or estates to prosecute or defend in federal court except through an attorney, admitted to practice in that particular court. The BAP cited a number of authorities in support of its ruling including Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201-202 (1993), where the Supreme Court stated: “It has been the law for the better part of two centuries … that a corporation may appear in the federal courts only through licensed counsel. As the courts have recognized, the rationale for that rule applies equally to all artificial entities … the lower courts have uniformly held that 28 U.S.C. § 1654, providing that ‘parties may plead and conduct their own cases personally or by counsel,’ does not allow corporations, partnerships or associations to appear in federal court otherwise than through a licensed attorney”.

As to the receiver’s contention that he was appearing as an individual, the court dismissed that argument because, “as an individual”, the receiver had no personal claim against the debtors. The receiver was not advocating his personal rights, but was acting in a representative capacity on behalf of the receivership estate of the LLC. Because the LLC could not appear in federal court, except through counsel, neither could the receiver. The receiver argued, in addition, that his position as receiver was analogous to that of a trustee of an estate. The BAP held, however, that if a trustee is not a licensed attorney he too lacks the legal capacity to appear and represent an estate in federal court, citing a number of authorities including 9th Circuit and California district court opinions to that affect. These cases state a party may only represent themselves “where they are representing themselves alone, asserting their own personal rights or interests exclusively. If an individual purporting to appear pro se is not the actual ‘beneficial owner of the claims being asserted,’ they are not viewed as a party conducting their ‘own case personally’ within the meaning of the statute, Alpha Land Company v. Little, 238 F.R.D. 497 (E.D. Cal. 2006).

Import of the Decision

While this decision comes from the Tenth Circuit its reasoning appears sound. It has long been the rule in the district and bankruptcy court that only individuals can represent themselves without an attorney. The decision merely applies this long standing rule to a receivership estate, and arguably a bankruptcy estate, both artificial entities. Whether the district courts and bankruptcy courts in California will follow the decision, and possibly apply it to bankruptcy trustees, remains to be seen.

The BAP seemed to feel that if the receiver had been an attorney himself, he would have been permitted to appear and file pleadings on behalf of the receivership estate. While the BAP may have allowed this, the fact that a receiver or a bankruptcy trustee is also an attorney should not empower them to appear on behalf of an estate in federal court unless they have been employed, by either the receivership or the bankruptcy court, to act as an attorney in the case. Generally, receivers and bankruptcy trustees, while they may be attorneys, are not acting in that capacity, and they are not compensated as attorneys.

Both state court rules and bankruptcy rules allow receivers or trustees to be employed as counsel for the estate, although bankruptcy courts are often reluctant to allow a trustee to act as counsel in the case. It appears, therefore, the best course of action for receivers and bankruptcy trustees, when filing pleadings or appearing in district or bankruptcy court (which is merely a division of the district court) is to employ counsel for such purposes. Failure to do so may not only result in the pleading or complaint being stricken, but could subject the receiver to criminal liability for the unauthorized practice of law.

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« Appointing a Neutral ReceiverShould Receivers Appear Only Through Counsel To Avoid Civil Liability? »

Business and Professions Code Section 6125 provides: “No person shall practice law in California unless the person is an active member of the State Bar”. Section 6126(a) provides that any person practicing law who is not an active member of the State Bar is guilty of a misdemeanor, and can be liable for civil penalties and possibly contempt of court.

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