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The Invitation My Petition for Division of Trust Milking the Trust Inquisitorial Motion

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The Prefiling Order

Click here to see my Opposition filed in response to the motion (with very short notice) & demand for jury trial


Why the pre-filing order is void and not a valid adjudication:


1.  The probate court had no jurisdiction in regard to the pre-filing motion :


       a.  In my objections to the proposed order and proposed findings  (click here to see), I pointed out that there was no notice, no motion, and no hearing under CAL.CIV.PROC.CODE  Sec. 391.1.  Notice was given of a hearing under CAL.CIV.PROC.CODE Sec. 391.7.


However, relief under Sec. 391.7 exists only "in addition to any other relief provided . . " in the title.  There must first be relief under Sec. 391.1 for there to be relief under Sec. 391.7.  City National did not make a motion under Sec. 391.1; and the court did not grant a motion under Sec. 391.1.   Nothing in City National's moving papers requests a security. The moving papers refer only to "future actions" - not to that particular action.


The court has no jurisdiction to make said finding.   Under Sec. 391.3 -- only after hearing the evidence "upon

the motion" (referring to a Sec. 391.1 motion) -- the court shall order plaintiff to furnish security. Since there was no such motion, there can be no such finding, or order.


Click here to see City National's VL motion (sans exhibits).


       b.  It is questionable if the court would have had jurisdiction even in regard to a "proper" motion under Sec. 391.1 - because even if a security were granted to "protect" the moving defendant, the judge himself has no "standing" to order an injuction in regard to the whole world.  The Legislature cannot create a "discretionary jurisdiction" for this where the California Constitution does not grant jurisdiction in an action where no one has standing.


       c.  A Sec. 391 ET SEQ MOTION IS INAPPROPRIATE IN THE CONTEXT OF A CAL.PROB.CODE Sec. 17200 NON-ADVERSARIAL, IN REM, PROCEEDING


A probate court proceeding is not a "civil action or proceeding" as contemplated by Sec. 391.  


In a civil action, the complaint brings the parties into the court's jurisdiction. However, the probate court has continuing jurisdiction over the trust. CAL.PROB.CODE Sec. 17000(a) concerns internal trust affairs. No one was forced into court by appellant's petition. The trustee and the beneficiaries are already under jurisdiction of the probate court.  CAL.PROB.CODE Sec. 17003(a) & (b).


The jurisdiction exercised by the probate court in supervising the administration of a trust is "in rem". Security-First Nat.Bank v. Superior Court of Los Angeles County 1 Cal.2d 749,755. Filing a petition under CAL.PROB.CODE Sec.17200 does not create the adversary relationship created in a true civil action.  A trust beneficiary has the right, as a party beneficially interested, to appear and contest an account or to participate in any other proceeding affecting the property of said estate, and which might tend to impair his beneficial interest in the trust created in his favor. Estate of Finch (1927) 202 Cal. 612,615. Section 391 et seq orders could intimidate pro se beneficiaries from exercising their right to object to a trustee's actions. The probate court should not "unduly deter contestants . . . from questioning the stewardship of executors and administrators through proceedings brought in good faith". Estate of Beach (1975) 15 Cal.3d 623,646.


       c.  The prefiling order is unconstitutional.  Please click on the following links regarding each issue of constitutionality:


TIMELINE

Citizens Law Journal

Legislative History of Sec. 391

Paradigms of Litigation

Due Process

Sec 391(b)(3) is Unconstitutionally Vague

Text of the VL Statute

Prior Restraint

Bill of Attainder


2.            a.   At the March 23,1995 hearing Judge Letteau did not say one word, expressed or implied, which would tend to show that he considered the issue of whether there is reasonable probability that I would prevail in my petition for division of trust.

This is a required finding under Sec. 391.3.    A prerequisite for requiring a vexatious litigant to post security for costs is that there is no reasonable probability the plaintiff will prevail in the immediate litigation against the defendant. Muller v. Tanner (1969) 2 Cal.App.3d 445

CAL.CIV.PROC.CODE Sec. 391.2 requires the court, at the hearing on the motion to "consider such evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion." (emphasis added). City National never made a motion under Sec. 391.2, never stated this issue as a ground of such a motion, and never provided evidence to support such a finding.  Furthermore, Judge Letteau stated specifically that only one finding  -- the finding of being a vexatious litigant -- was the basis for his order:


1"THE COURT: Only if this court determines that you're not a vexatious litigant, can we then proceed to trial on this matter. . . . 11 (App .1218) .   


In the instant case, the failure of the probate court to consider this issue is reversible error.   Muller,supra at p.465, ordered reversal based on this ground.


               b.   My petition for division of trust DID have merit.  Proof that my petition for division of trust did have at least a "reasonable probablity" of success is that, in 2000, the US Bankruptcy Court (in a turnover proceeding as part of my chapter 13 case) devoted five days of trial, including taking of expert testimony, on this exact same issue.  Click here to see transcript of beginning of that trial.


3.  I did not meet the statutory definition of vexatious litigant.


     a,  I  DID NOT LOSE FIVE LITIGATIONS IN THE PRIOR SEVEN-YEAR PERIOD


I lost, at most, three (or, depending on method of counting, four) -- not five -- actions during the prior seven years, and therefore I did not qualify as a "vexatious litigant" under CAL.CIV.PROC.CODE Sec. 391(b} (1}.   In its findings, the probate court cites, as grounds for it's  Sec.391.7 orders, the following five cases: BS012139, P732853, P730865, C675982, and C710036 (App.1286:1-2). These are discussed below:


             i.   Click here to see



             i.   I voluntarily dismissed C710036 without prejudice, as part of an agreement with opposing counsel. As consideration, opposing counsel agreed that I could amend my complaint in a different action, C675982, to include the cause of action in C710036. Settlement papers showing these facts are attached to my opposition papers at App.1144-1155. There was no "final determination adverse" to me in C710036. A "determination" means a decision by a court -- not a decision by a party to voluntarily dismiss an action.  


"Determination. The decision of a court or administrative agency .. . . " (BLACK'S LAW DICTIONARY, 6th ed. (1990), s. v. "Determination").


A dismissal "without prejudice" is "surely not a judgment on the merits". Brown v. Schroeder (1927) 88 Cal.App. 192,208 and is not an adverse determination as contemplated by Sec. 391.  "The term 'without prejudice,' in its general adaptation, means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as if no suit had ever been brought." (Chambreau v. Coughlan (2nd Dist.1968) 263 Cal.App.2d 712,718 -- emphasis added).  The facts regarding C710036 are not disputed by City National.


However, City National argues that. because the cause of action of C710036 was "rolled over" into that of C675982, and because (according to City National) C675982 was adversely determined to me, that therefore C675982 should be counted twice as having been adversely determined to me once as C675982 and once as C710036. See App.1202 and App.1234. The court apparently followed this reasoning at the March 23 hearing. See App.1234. The error, however, is confusing the terms "litigations" (used in Sec. 391) with "causes of action". The language of the statute taken as a whole shows clearly that the reference (to the litigations being counted) refers to "litigations" as distinguished from "causes of action". One litigation may incorporate several causes of action. It would be an unreasonable interpretation to construe the statute as meaning "causes of action" instead of just what it says-- "litigations". Therefore, for purposes of Sec. 391, C710036 was not a "litigation adversely determined to me".

.

     ii. CASE NO. P730865 -- VOLUNTARILY DISMISSED FOR GOOD CAUSE -CANNOT BE COUNTED AS A "LOSS" UNDER Sec. 391(b) (1)


Case no. P730865 (a will contest) was voluntarily dismissed without prejudice. This was because the court's exhibit room clerk (contrary to CAL.CIV.PROC.CODE Sec. 1952 &  Sec. 1952.3) destroyed the documentary exhibits which appellant had intended to enter into evidence (which were exhibits in C675982) -- including his mother's holographic will. See App.1054-1062.


At App.1164, is a copy of the February 24,1995 minute order (Hon.Arnold H. Gold, Dept.,setting aside and vacating the summary judgment which had been incorrectly entered against me (and dismissing the will contest} and, at App.1166-1173, is a copy of the hearing transcript.   Therefore, in P730865 also, the final determination was not adverse to me.  The only "final determination of an issue" in case no. P730865 was in regard to a discovery sanction order against me, and was finally determined favorably to me.  Click here to see appellate order.  A copy of the opinion in California Court of Appeal, 2nd Appellate Dist, Div.2 case no. B055300 is attached to my Sec.391.7 opposition papers. App.1046-1052.


   iii.  THE FINAL APPELLATE OPINION IN C675982 WAS PARTIALLY FAVORABLE


Case no. C675982 resulted in an appellate opinion (in B037812) - and a Supreme Court opinion -  favorable to me.  Click here to see.

 

Case no. C675982 resulted in another appellate opinion (in B07558) which modifies the lower court judgment in part, and otherwise affirms it. See App.1091. It was partially favorable to me.   Nothing in Sec.391 indicates that a partially favorable result should be counted as a loss for purposes of the statute. Sanctions should not be  imposed except in the clearest of cases. In re Marriage of Flaherty (1982) 31 Cal.3d 637,650. Therefore, in this case, I should be given benefit of the doubt.


    iv.  THE UNDERLYING MATTER OF P732853 WAS DETERMINED FAVORABLY


Case no. P732853, was for injunctive relief while a federal action determined ultimate rights. Technically, this interlocutory matter was determined adversely to me. However, the underlying issue was determined favorably for me by the Federal 9th Circuit Court of Appeals in In re Neuton (9th Cir,1990) 922 F.2d 1379, where the matter was remanded for reconsideration by the lower court. Case no. P732853 was, by its nature, interlocutory, and therefore not a "final determination of the matter" under Sec. 391.


     v.  CASE NO. BS012139 ARISING FROM AN EMPLOYEE-RELATIONS-BOARD HEARING IS "ABSOLUTELY PRIVILEGED" (AS PER CITY OF LONG BEACH V. BOZEK)


Case no. BS012139 was an appeal to the superior court (by petition for writ of mandate) from a decision of the Employee Relations Board of  the City of Los Angeles (an Unfair Employee Relations Practice Claim concerning a workplace grievance). See App.601-606. A proceeding before an administrative agency is not considered a "court proceeding" or "litigation". See Bearns v. Department of Industry.  Labor and Human Relations (Wis.1981) 306 N.W.2d 22,25. BS012139 should not be counted as a "litigation" for purposes of Sec. 39l(b) (1).  Moreover, its filing was seeking to draw attention to an unfair labor practice affecting many local-government employees. In my rank-and-file labor union, supervisory employees -- who were also union officials -- voted whether or not to take rank-and-file grievances through the arbitration process.   I pursued my First Amendment right to petition, without contemplation of financial reward. Although, technically a "loss", the litigation was successful in improving my workplace conditions.


My chief argument was as follows: Supervisory employees are precluded from voting on or otherwise handling, a grievance of a rank-and-file employee. The Meyers-Milias-Brown Act (CAL.GOV.CODE Sec. 3500 et seq) is applicable to local government employees. However, it is silent on this issue. California state employee supervisors are prohibited from handling a rank-and file grievance under CAL.GOV.CODE Sec. 3529(b). The case, Public Employees of Riverside County. Inc. v. County of Riverside (1978) 75 Cal.App.3d 882, holds that the Court should look to the state Employer-Employee Relations Act in analyzing the Meyers-Milias-Brown Act. Therefore, CAL.GOV.CODE Sec.3529(b) should also be applicable to local government employees.   Although the court ruling was against me, the litigation had the positive result that my union revised its constitution to require a rank and file committee to issue an advisory rulings for rank and file grievances that come before the executive board (which usually includes supervisory employees).


Filing suit against a government entity represents an exercise of the right to petition the government for redress of legitimate grievances (U.S.Constitution, 1st Amendment; California Constitution Art 1, Sec.3) and is "absolutely privileged". City of Long Beach v. Bozek (1982) 31 Cal.3d 527,532 (reiterated at 33 Cal.3d 727). Such a suit cannot form the basis for imposition of civil liability even for malicious prosecution. Bozek,supra, at 539. This First Amendment right encompasses the act of filing a lawsuit whether it be to vindicate individualized wrongs or draw attention to issues of broad public significance and interest. Wilcox v. Superior Court (2nd Dist.1994) 27 Cal.App.4th 809,826.


4.   I DID NOT REPEATEDLY FILE UNMERITORIOUS PAPERS -THEREFORE, I DID NOT QUALIFY AS A "VEXATIOUS LITIGANT"

UNDER Sec. 391(b) (3)


I did not, by any standard and especially not by the standard of a layman pro se litigant -" repeatedly file unmeritorious motions, pleadings, or other papers" or engage in other tactics that are "frivolous". Therefore, I did not qualify as a "vexatious litigant" under CAL.CIV.PROC.CODE Sec.391(b) (3).


     a.  I DID NOT "REPEATEDLY FILE" ANY OF MY PAPERS, WHATSOEVER


In enacting Sec. 391 et seq the Legislature was concerned with "the persistent and obsessive litigant" who continues to relitigate a matter over and over. Statement of Reasons attached to Senate Bill 1179 (1963) (see App.Req.Jud.Not.8) cites "an apt example is Stafford v. Russell, 201 A.C.A. 795 in which the appellate court was compelled to rule directly on the validity of a judgment for the fifth time, and which judgment had been indirectly ruled on five other times; each time at the instance of the losing party below, who appeared throughout in pro per.". Consistent with this concern, Sec. 391(b) (3), added by 1990 statutory amendment, brings within the "vexatious litigant" definition, "one who repeatedly files unmeritorious motions, pleadings, or other papers ... ".


However, a paper is not "repeatedly filed" if it is filed only once. "Repeated" means "renewed or recurring again and again". Webster's Third New International Dictionary of the English Language. Unabridged (1981), s.v. "repeated").


In the instant case, the Sec.391.7 findings (at App.1286) list seven papers which I am deemed to have "repeatedly filed". However, as the record shows, not one of those papers was filed more than once. I did not attempt to relitigate a matter or issue decided against me -- whether at the pleading level or the motion level. Therefore, I do not qualify as a "vexatious litigant" under ?391(b) (3).


Furthermore, even if I had filed a motion more than once -that would not be conc;I.usive that it was filed "repeatedly" for purposes of Sec.391(b}(3}.

Two violations of a standard, alone, do not form the basis of a "repeatedly" violation under the Occupational Safety and Health Act; "repeatedly" is read to mean "more than once in a manner that flaunts." the legislation. Bethlehem Steel Corp v. Occupational Safety and Health Review Commission (1976) 540 F.2d 157,162. Even more than twice also may not constitute that flaunting necessary to establish a "repeatedly" violation. See Todd Shipyards Corp. v. Secretary of Labor (1978) 586 F.2d 683,684. Moreover, in these cases there was a warning -- by prior citations -- of a violation prior to sanctions -- and they concern people who are professionals within their respective industries. However, under Sec. 391(b) (3) there is no warning involved prior to the imposition of (much more severe) sanctions -- and it concerns people (laymen pro se litigants) who are not nowledgeable about what is expected of them.  Therefore, under Sec.391(b) (3) only the most egregious flaunting of the statute should result in a sanction. The issue is not arithmetical. The issue is whether or not the conduct constitutes a flagrant abuse of the judicial process. The cases would seem to support this view.



In the instant case, I filed nothing at all even remotely resembling an abuse of the judicial process.

  

My goal throughout the litigation was to GET AWAY from City National - the opposite of harassment.


I didn't (and I don't) want any association at all with the gangsters at that bank.  However, because the trust is a so-called "spendthrift trust" the only way to accomplish this is via division of trust.

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5.  My in limine "inquisitorial" motion was not frivolous.  See chapter 5 for discussion of this motion.