PETITION OF RON BRANSON

TO UNITED STATES SUPREME COURT

In exhaustion of attempted state court remedy

Re Parking Matter

 

Judicial cover-up of parking scam of the City of Los Angeles

operated by Lockheed Corporation, a private corporation.

(See Los Angeles Times article dated Feb.1, 2005 at the end)

 

Cert. was denied January 12. 1998

 

At first this reading may seem boring, but your interest will elevate as you read on, and will continue to climb.

 

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

 

RONALD BRANSON, PETITIONER

VS.

CITY OF LOS ANGELES, et al., RESPONDENTS

 

ON PETITION FOR A WRIT OF CERTIORARI TO

CALIFORNIA COURT OF APPEAL, SECOND APPELLATE DISTRICT

 

QUESTIONS PRESENTED

 

1. Whether the statutory scheme administering parking violations in California, to wit, California Vehicle Code §§40200 through 40230, is constitutional on its face.

2. Whether petitioner had a protected property interest to an appeal under Code of Civil Procedure §906 (“906 appeal”) and was deprived thereof without due process of law, in violation of the Fourteenth Amendment to the United States Constitution.

3. Whether the state court orders (Appendix A, B, C and D) are void on their face and nullities, depriving petitioner of a state remedy without due process of law, in violation of the First and Fourteenth Amendments to the United States Constitution.

 

A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:

CITY OF LOS ANGELES

LOS ANGELES DEPARTMENT OF TRANSPORTATION (LADOT)

ROBERT R. YATES, General Manager LADOT

LOCKHEED INFORMATION MANAGEMENT SERVICES COMPANY (LIMSC)

MATTHEW SILVERMAN, Senior Vice President LIMSC

CALIFORNIA DEPARTMENT OF MOTOR VEHICLES (DMV)*

FRANK S. ZOLIN, Director DMV*

 

*appeared as “STATE OF CALIFORNIA”

 

Defendant LOCKHEED etc. describes itself as follows:

 

“Lockheed IMS is a New York corporation and a private vendor, engaged in the business of processing parking citations. It specializes in this and other high technology applications for federal, state, county and local governments. At all times relevant to petitioner's complaint, Silverman was the Western Region Senior Vice President of Lockheed IMS.”

 

 

Petitioner does not have information regarding wholly owned subsidiaries and parent companies, except that Lockheed IMS is just one company within the Lockheed Corporation better known as a major international aircraft manufacturer. It is involved in both commercial and government contracts.

 

 

TABLE OF CONTENTS

 

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 3

STATEMENT OF THE CASE 4 - 12

REASONS FOR GRANTING THE WRIT 12 - 40

CONCLUSION 40

 

TABLE OF AUTHORITIES CITED

 

Abelleira v. District Court of Appeal (1941) 29

                       17 Cal.2d 280; 109 P.2d 942

 

Bell v. Burson (1971) 402 U.S. 535 15,16

 

Board of Regents v. Roth (1972) 408 U.S. 564 20

 

Byrum v. Brand (1990) 219 Cal.App.3d 926 39

 

County of Ventura v. Tillett (1982) 133 Cal.App.3d 105 30,33,37,38

 

Estate of Palmieri (1932) 120 Cal.App. 698; 8 P.2d 152 11,30-36,38

 

Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377 32

 

Ingraham v. Wright (1977) 430 U.S. 651 17

 

In re Britany S. (1993) 17 Cal.App.4th 1399; 22 Cal.Rptr.2d 50 21

 

In re Marriage of Griffin (1993) 15 Cal.App.4th 685; 19 Cal.Rptr.2d 94 21,22

 

Knodel v. Knodel (1975) 14 Cal.3d 752 21

 

Laird v. Workers' Comp. Appeals Bd. (1983) 147 Cal.App.3d 198 32

 

Leonardini v. Shell Oil. Co. (1989) 216 Cal.App.3d 547; 264 Cal.Rptr 883 39

 

Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422 5,15,16

 

Monroe v. Pape (1961) 365 U.S. 167 39

 

Nagel v. P&M Distributors Inc. (1969) 273 Cal.App.2d 176;

78 Cal.Rptr 65 30

 

Olson v. Cory (1983) 35 Cal.3d 390; 197 Cal.Rptr 843 25

 

Parratt v. Taylor (1981) 451 U.S. 527 5,15

 

Phelan v. Superior Court (1950) 35 Cal.2d 363; 217 P.2d 951 37

 

Pioneer Land Co. v. Maddux (1895) 109 Cal. 633 38

 

Sullivan v. Gage (1905) 145 Cal. 759 37

 

Vasquez v. Vasquez (1952) 109 Cal.App.2d 280; 240 P.2d 319 33,37

 

Zinermon v. Burch (1990) 494 U.S. 113 12,16,39,40

 

UNITED STATES CONSTITUTION:

 

First Amendment 7-10, 28,39

Fifth Amendment 10

Fourteenth Amendment 8-10,28

 

FEDERAL STATUTE:

 

28 U.S.C. §1257                  4,6,28,31,40

 

CALIFORNIA CONSTITUTION:

 

Article I, Sec. 1 17

Article XI, Sec. 11 14

 

CALIFORNIA STATUTES:

 

Civil Code                          §1573 39

 

Code of Civil Procedure    § 902 23

                                            § 904.1 6,19-21

                                                      § 904.1(a) 6,7,21,23        

                                                      § 904.2 19

                                                      § 906 6,7,18-20,23,27,28,35-38    

 

Vehicle Code                     §§40200 - 40230 5,14  

 

 

 

 

CALIFORNIA RULES OF COURT:

 

                                                      Rule 2(a) 22,25-27

                                                      Rule 2(a)(2) 6,7,18,27,28,35

                                                      Rule 2(d) 26

 

Miscellaneous:

 

Declaration of Independence (1776) [portion] 31

 

 

OPINIONS BELOW

 

The opinions of the highest state court to review the merits appears at Appendix A&B to the petition and both are unpublished.

 

The opinions of the trial court appears at Appendix C&D to the petition and both are unpublished.

 

JURISDICTION

 

The date on which the highest state court decided my case was July 16, 1997. A copy of that decision appears at Appendix E.

 

The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).

 

STATEMENT OF THE CASE

 

Re Question 1: The crux of petitioner's underlying state cause of action is the unconstitutional statutory scheme regulating parking enforcement procedures in California. The state courts have failed and refused to adjudicate petitioner's constitutional challenge and he now brings it to this Court under §1257 appeal. The complaint is generally based on violations of state law, however the constitutional challenge [App. F-27, 28] is based on federal due process principles, to wit, failure to provide an opportunity to be heard on liability prior to imposing a penalty (predeprivation hearing), failure to provide predeprivation notice, and creating an unlawful bill of attainder.

 

The unconstitutional statutory scheme itself creates a conspiracy among the defendants [App. I-57; M-6,7] to tortiously inflict upon petitioner the injuries alleged in the complaint and is the common thread that links all defendants together in this state action. It is the proximate cause of all tort damages alleged; all defendants are the responsible parties executing the scheme and are commonly subject to liability for the damages caused thereby. [App. I-57; L-5]. The constitutional torts alleged involve

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rights guaranteed by the California Constitution [App. I-5], implicating protection by the U.S. Constitution as well. [App. M-7].

 

The complaint challenges the constitutionality of the statutory scheme authorizing the allegedly wrongful course of conduct described in the complaint [App. F-27] that was executed by and through the challenged administrative procedures, i.e., California Vehicle Code §§40200 through 40230 and related statutes, upon which all defendants commonly rely for their actions taken against petitioner. Those procedures are the very source of the alleged injuries for which petitioner has been seeking a remedy in state court. [App. M-8]

 

Petitioner could have directly challenged the state procedures in federal court as a “Logan” violation (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 436), however he instead elected to make the challenge in state court as an independent post-deprivation tort action. (See Parratt v. Taylor (1981) 451 U.S. 527, 538). State court has failed to decide this question by (1) failing to address the subject matter of the complaint in trial court [Question 3], and (2) failing to grant the appeal to which petitioner is statutorily entitled [Question 2]. State supreme court denied review [App. E]. Petitioner now appeals under §1257.

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Re Question 2: The final act of deprivation in state court, destroying the state remedy, was the deprivation of the appeal to which petitioner is statutorily entitled under Code of Civil Procedure §906 which incorporates §904.1 and is referred to herein as “906 appeal.” The “906 appeal” deprivation took place on November 14, 1996 [App. A] when petitioner's state remedy was ultimately destroyed. Proceedings since that time were merely the exhaustion procedures required before taking this §1257 appeal.

 

The first opportunity to bring the federal question on this 906 appeal deprivation was by motion to vacate filed November 27, 1996 [App. J] wherein petitioner stated that he was conferred a protected property interest to an appeal from both orders listed on the notice of appeal under Code of Civil Procedure §§904.1(a) and 906, as well as Rule 2(a)(2) of the California Rules of Court [App. J-6], and that the November 14th order “is patently false and in violation of … the Due Process Clauses of the California and United States Constitutions.” [App. J-9].

 

Concealment of material facts by Court of Appeal: Significant regarding this appeal deprivation is the constructive fraud by the court of appeal described in the final petition for review [App. M-13 thru M-18]. Petitioner stated in the motion to vacate [App. J-17] that the dismissal order dated November 14th “is not

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sound because of the hidden material facts … which would materially affect the decision.” Not only is the dismissal order fraudulent, the entire appellate proceeding was fraudulent as shown on the record, destroying entirely petitioner's state court remedy.

 

Petitioner was defrauded into filing a premature petition for review to the state supreme court [App. M-15] wherein the federal questions on the November 14th deprivation were again brought in several places [App. K-12] (usurpation of power violating CCP §§904.1(a) and 906, Rule 2(a)(2) CRC, the First Amendment of the U.S. Constitution, and Due Process Clauses of both state and federal constitutions); [App. K-19] (petitioner's legitimate claim of entitlement to the “906 appeal” guaranteed under both state and federal constitutions); [App. K-28] court of appeal ignoring the “one final judgment” rule and violating statutory authority authorizing petitioner's appeal which violates the Due Process Clauses of both constitutions); [App. K-28,29] (petitioner's statutory right to appeal violated, depriving him of that protected property interest under constitutional guarantees, and by dismissing the appeal, depriving petitioner of access to the courts in violation of the First Amendment); [App. K-31] (the dismissal order in violation of statutory authority and rules of court, blocking petitioner's access to the court to remedy viola-

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tions of due process). Review of that petition was denied February 5, 1997.

 

Federal questions regarding the November 14th deprivation are brought in the final petition for review. [App. M-20] (the dismissal order of November 14, 1996, under the guise of “untimeliness” of appeal, denying access to appellate review, depriving petitioner of his statutory right of appeal); [App. M-24] (state courts have violated the First Amendment to the United States Constitution as well as the substantive component of the Due Process Clause protected by the Fourteenth Amendment); [App. M-25] (by arbitrary action and deliberate disregard of facts appearing on the record, the court of appeal has deprived petitioner of his statutory entitlement to appeal, thus denying him substantive due process and access to the courts, protected by the Fourteenth Amendment); [App. M-25] (the state has conferred this benefit on petitioner, thus creating a legitimate claim of entitlement to the “906 appeal” which is a property interest guaranteed and protected by the United States Constitution); [App. M-31] (the August 24th order and its affect on the timeliness of this appeal from both orders was ignored by the court when making its November 14th order, which arbitrarily blocked access to the legitimate statutory appeal that was due); [App. M-33, 34] (court of appeal

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refused to exercise its jurisdiction which arbitrarily denied petitioner access to the courts for an opportunity to be heard on the merits of his cause, depriving petitioner of his protected rights under the First Amendment, his statutory entitlements under state law, all protected under the substantive component of the Due Process Clause by the Fourteenth Amendment). Final review was denied July 16, 1997. Petitioner now resorts to this Court.

 

Re Question 3: The deprivation of access to the state courts is the “big picture” of which the “906 appeal” deprivation is a part. There has been a total close-out of a state remedy by the state judicial system. The initial access deprivation took place on March 17, 1995 when the trial court issued its first order of dismissal [App. C]. The second dismissal by the trial court, an exacerbation of the first access deprivation, occurred August 24, 1995 [App. D]. The denial of access to the court was the first federal question formally raised in this action [App. I-19, 20], on appeal [App. I-16 thru I-27; M-20].

 

The denial of access to trial court, i.e., the first and second access deprivations, is stated on appeal as “failure [of the trial court] to address the subject matter of the complaint.” [App. I-16]. The federal question is raised as “the right to protect one's property in a court of law” and “being deprived of an

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opportunity to defend ‘at a meaningful time and in a meaningful manner'.” [App. I-16, 17]; “[t]he Fourteenth Amendment … prohibits a state from depriving any person of property without due process of law” [App. I-17]; “[t]he United States Supreme Court has long recognized a constitutional right of access to the courts for all persons” [App. I-17]; “a cause of action is ‘a species of property' protected by the Fourteenth Amendment” [App. I-17]; “[t]he Fourteenth Amendment's Due Process Clause has been interpreted as preventing the states from denying potential litigants use of established adjudicatory procedures” [App. I-18]; “[t]he Fifth Amendment's Due Process Clause [applicable through the Fourteenth] … impose[s] ‘constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.'” [App. I-18]; “[p]laintiff's right of access to the courts is one aspect of the First Amendment right of petition … which is applicable … by the Fourteenth Amendment.” [App. I-19].

 

A material component of the trial court access deprivation question (the first and second access deprivations) is the “voidness question” raised as the third issue on appeal [App. I-32 thru I-37], titled “The [trial] judge acted in excess of jurisdiction

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in making the orders appealed from.” [App. I-32]. The voidness issue, caused by the trial judge acting in excess of his jurisdiction, is the means by which the federal violation arose in this action. The seminal California case directly on point involving the voidness issue is Estate of Palmieri (1932) 120 Cal.App. 698; 8 P.2d 152 [App. I-32 thru I-36].

 

Instead of adjudicating the access deprivation issues on appeal which necessarily includes the voidness question defined by Palmieri, supra, the court blocked the appeal by fraudulently depriving petitioner of the “906 appeal,” described ante, exacerbating denial of access to the entire state system. The denial of access issue, already raised as a federal question on appeal, was again raised in the petition for rehearing [App. L-17, 18], discussing the denials of access to both levels of state court and the two means by which the appellate court denied access to appeal, to wit, (1) failure to address and act on the voidness question (Issue III on appeal) [App. L-19, 20], and (2) failure to adjudicate the “one final judgment” rule (going to appellate jurisdiction and the “§906” deprivation) [App. L-20, 21].

 

The denial of access issue is raised in the final petition for review as “all court orders in this case are void on their face and nullities…” [App. M-35], discussing in detail each of

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the four state court orders issued in this case [App. M-35 thru M-41; M-41, 42; M-42 thru 49; M-50 thru M-52], concluding that “the state remedy is ‘adequate in theory, [but] not available in practice.'” [App. M-52].

 

REASONS FOR GRANTING THE PETITION

 

Generally:

 

The main reason for granting this petition is to obviate the need for petitioner to seek a federal remedy “where the state remedy, though adequate in theory, was not available in practice” (Zinermon v. Burch (1990) 494 U.S. 113, 124), by remanding the case to superior court where the acts in excess of jurisdiction began, and mandating the state court obey the applicable law and exercise its jurisdiction according to the facts of the case, and provide the state remedy due in petitioner's tort action. The state court system has failed and refused to do so, even resorting to fraud, particularly at the appellate level, by refusing to disclose critical facts on the docket [see e.g. App. M-13] and otherwise, as discussed infra, the omission of which materially affected the outcome of this case. By refusing to acknowledge and act upon critical factors that form the legal character and requirements of this lawsuit, brought to the courts' attention many times, the state courts have arbitrarily blocked

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and destroyed petitioner's tort remedy. Remedial relief from this Court is now sought by §1257 appeal.

 

The trial court refused to acknowledge and act upon the critical fact that petitioner's tort action is independent and outside of the administrative procedures, those procedures being the subject of constitutional attack and proximate cause of all damages alleged. At the hearing the trial judge dismissed the complaint based on the false premise of “failure to exhaust administrative remedies” [App. I-27, 28] (i.e., a dismissal without prejudice for want of jurisdiction), but then “shifted gears,” subsequently signing the written dismissal order prepared by opposing counsel converting that ruling into “failure to state facts sufficient to constitute a cause of action” [App. I-33, 34] (i.e., a dismissal with prejudice “on the merits”). The judge arbitrarily refused to correct the inconsistency when petitioner brought it to the court's attention [CT 263].

 

This tort action involves the unconstitutional procedures authorizing the processing of parking citations in California, affecting millions of people on a daily basis, amounting to what is in effect an unconstitutional money-making scheme, fleecing the people of multi-millions of dollars for the benefit of big business, with a “kick-back” to government. In Los Angeles, the

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processing agency is Lockheed Information Management Services Company (part of Lockheed Corporation), a private organization, whose participation in municipal revenue functions is forbidden under Article XI, §11, of the California Constitution [App. M-4] which the courts have disregarded.

 

The state courts have done nothing to remedy petitioner's cause, allowing this unconstitutional scheme to continue unabated. All four court orders, involving both the trial and appellate courts, are void on their face and nullities, deciding nothing [App. M-4], the judicial acts being arbitrary and capricious, unauthorized by state law, and carried out in deliberate disregard of petitioner's fundamental rights protected by the California and United States Constitutions and the rights of millions of others similarly situated.

 

1. The statutory scheme authorizing the administration of parking citations in California, to wit, California Vehicle Code §§40200 through 40230, is unconstitutional on its face.

 

Petitioner raised this challenge as part of his complaint for tort damages. [App. F-27, 28]. He could have brought this action directly in federal court under Logan principles:

 

           [I]t is the state system itself that destroys a complainant's

           property interest, by operation of law, … Logan is

           challenging not the Commission's error, but the

           “established state procedure” that destroys his

           entitlement without

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           according him proper procedural safeguards.

           Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422,

           436.

 

Instead, petitioner elected to have the state decide its own law since that is the preferred method in tort litigation. It turns out that the state courts refused to exercise their proper jurisdiction to afford petitioner a state remedy, including deciding this constitutional question.

 

The statutory scheme, titled “Enforcement of penalties,” indicates legislative intent that the administrative hearing that is provided applies only to post-deprivation process, i.e., penalty based on predisposed guilt and liability, the “administrative review” being part of that post-deprivation process and falling beyond the scope of due process for Vehicle Code violations established by law.

 

           [I]n Bell v. Burson, 402 U.S. 535 (1971), we reviewed

           a state statute which provided for the taking of the

           driver's license and registration of an uninsured

           motorist who had been involved in an accident. We

           recognized that a driver's license is often involved

           in the livelihood of a person and as such could not

           be summarily taken without a prior hearing. … In

           all these cases, deprivations of property were authorized

           by an established state procedure, and due process was

           held to require predeprivation notice and hearing in

           order to serve as a check on the possibility that a

           wrongful deprivation would occur.

           Parratt v. Taylor (1981) 451 U.S. 527, 538.

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This enforcement scheme allows the Department of Motor Vehicles to withhold vehicle registration until the penalty is paid which is an unlawful bill of attainder. The scheme not only fails to provide for the opportunity to be heard on liability, but it also fails to provide for predeprivation notice as well.

 

           “[T]he root requirement” of the Due Process Clause is

           “that an individual be given an opportunity for a

           hearing before he is deprived of any significant protected

           interest.” (citation) [Emph. in orig.]

           Zinermon v. Burch, supra, 494 U.S., 127.

 

As pointed out in Burson, vehicle registration, as well as the driver's license, is a significant protected interest deserving of predeprivation procedures. Petitioner has been deprived of registration of his vehicle since this action, and it is an ongoing violation until this litigation is resolved.

 

The standard of procedural due process is controlled by federal law, and petitioner is entitled to have a determination on this constitutional question based on federal standards.

 

           Each of our due process cases has recognized, either

           explicitly or implicitly, that because “minimum

           [procedural] requirements [are] a matter of federal

           law, they are not diminished by the fact that the State

           may have specified its own procedures that it may

           deem adequate for determining the preconditions to

           adverse official action.” Vitek v. Jones, 445 U.S. 480,

           491 (1980).

           Logan v. Zimmerman Brush Co., supra, p. 432.

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Petitioner's liberty interests sought to be protected by this constitutional challenge, and by this tort action in general, is his inalienable right to be free from unjustified intrusions into his private life by government and the continued harassment that follows, such as those events described in the complaint. [App. F]. Living in a Constitutional Republic, petitioner has an expectation of living free from uncontrolled government harassment, threat, and intimidation.

 

           The liberty preserved [under the Due Process Clause of

           the Fifth Amendment incorporated into the Fourteenth]

           from deprivation without due process include[s] the

           right “generally to enjoy those privileges long recognized

           at common law as essential to the orderly pursuit of

           happiness by free men.” (citations). Among the historic

           liberties so protected was a right to be free from, and

           to obtain judicial relief for, unjustified intrusions on

           personal security.

           Ingraham v. Wright (1977) 430 U.S. 651, 673.

 

The first section of the California Constitution provides:

 

           All people are by nature free and independent and

           have inalienable rights. Among these are enjoying

           and defending life and liberty, acquiring, possessing,

           and protecting property, and pursuing and obtaining

           safety, happiness, and privacy.

           Article I, sec.1, California Constitution

 

The statutory scheme under challenge does not meet those principles. Petitioner is entitled to have it judicially examined and determined under federal constitutional standards.

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2. The state court deprived petitioner of his statutorily conferred property interest in an appeal under Code of Civil Procedure §906, fraudulently destroying his state remedy.

 

The destruction of petitioner's state remedy occurred November 14, 1996, when the court of appeal filed a dismissal order [App. A] in deliberate disregard of applicable California law, i.e., Code of Civil Procedure §906 and Rule 2(a)2 of the California Rules of Court. By so doing, petitioner's cause of action is left undetermined after the trial court refused to recognize the legal character of the complaint as an independent action at law for tort damages, instead treating it as a request for judicial review of administrative proceedings. At no time did petitioner institute administrative proceedings, since he is challenging them as unconstitutional in an independent action. The appellate court blocked appeal of that matter by ignoring the fact that petitioner appealed two orders from the same action in trial court. The court based the dismissal on only the intermediate order, which deprived petitioner of his rightful appeal from both orders together under Code of Civil Procedure §906.

 

The dismissal was made under the guise of “untimeliness” of the notice of appeal which, as the court knows from the face of the record, is not true. The theory of “untimeliness” is used

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under the false pretense that the notice of appeal involved only the March 17, 1995 order, the intermediate order—not the final order from which the timeliness of appeal is determined. Despite the evidence of the timeliness of appeal, the court arbitrarily refused to vacate the dismissal [App. M-14].

 

The notice of appeal [App. H] was filed October 19, 1995, and states the following:

 

PLEASE TAKE NOTICE that plaintiff RONALD

BRANSON appeals to the Court of Appeal of the

State of California, Second Appellate District, from

the court action taken by Superior Court Judge

Gregory C. O'Brien, as follows:

1)  “Order of Dismissal” filed March 17, 1995;

2)  “Dismissal Pursuant to CCP §581(f)(1)” filed

                    August 24, 1995.

           Dated: October 19, 1995 [signed by petitioner]

           [App. H; App. M-24]

 

At no time did the court of appeal acknowledge the fact that the notice lists two orders from which the appeal is taken. [App. A]. The November dismissal order is concerned only with the March 17th order. Appellate jurisdiction in this case is determined by the fact of an appeal taken from both orders listed on the notice. The court refused to take cognizance thereof.

 

Petitioner's right of appeal is conferred under Code of Civil Procedure §906 which provides in pertinent part:

 

           Upon an appeal pursuant to section 904.1 or 904.2,

           the reviewing court may review the verdict or decision

           and any intermediate ruling, proceeding, order or

           decision which involves

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           the merits or necessarily affects the judgment or order

           appealed from or which substantially affects the

           rights of a party, … [Emph. added] [App. M-25, 26]

 

Petitioner refers to that statutory appeal as a “906 appeal.” At no time did the court even acknowledge the existence of CCP §906, although petitioner repeatedly reminded the court of its application to this appeal. [App. M-12; M-27]. Petitioner did not have an “abstract desire” for a single appeal from both orders together; he had a “protected property interest” therein, created by Code of Civil Procedure §906.

 

           To have a property interest in a benefit, a person

           clearly must have more than an abstract need or

           desire for it. He must have more than a unilateral

           expectation of it. He must, instead, have a legitimate

           claim of entitlement to it. It is a purpose of the ancient

           institution of property to protect those claims upon

           which people rely in their daily lives, reliance that

           must not be arbitrarily undermined. …

 

           Property interests … are not created by the Constitution.

           Rather, they are created and their dimensions are defined

           by existing rules or understandings that stem from an

           independent source such as state law….

           Board of Regents v. Roth (1972) 408 U.S. 564, 577

 

Petitioner repeatedly brought this fact of his entitlement to the court's attention. [App. J-6, 7; App. K-19; App. L-20; App. M-25], which the court continually and routinely disregarded.

CCP §906 incorporates §904.1, the basic authority governing appeals in California. The state court recently confirmed:

 

           “The right to appeal in California is wholly governed

           by statute, and appellate courts have

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           no jurisdiction to entertain appeals except as provided

           by the Legislature. [Citation]” (citation). The primary

           statute governing appeals in civil cases is Code of

           Civil Procedure section 904.1. Subdivision (a) thereof

provides for an appeal “[f]rom a judgment except (1) an interlocutory judgment….” In re marriage of

         Griffin (1993) 15 Cal.App.4th 685, 687; 19 Cal.Rptr2d 94.

 

Regarding section 906, the state court ruled:

 

         This statute [CCP §906] is part and parcel of the “one

         final judgment rule” which, as our Supreme Court

         has explained, exists because “piecemeal disposition

         and multiple appeals in a single action would be

         oppressive and costly, and … a review of intermediate

         rulings should await the final disposition of the case.”

         (citing Knodel v. Knodel (1975) 14 Cal.3d 752, 760).

         In re Britany S. (1993) 17 Cal.App.4th 1399, 1404;

         22 Cal.Rptr2d 50.

 

According to both cases cited above, had petitioner brought a separate appeal on the March 17th order alone, it would have been dismissed as “nonappealable” because “review of intermediate rulings should await the final disposition of the case” under the “one final judgment rule.” Petitioner would have been subjected to sanctions for bringing a “frivolous appeal” violating the “one final judgment rule” which is said to be “a fundamental principle of appellate practice in the United States.”

 

         The intent of Code of Civil Procedure, section 904.1

         “ … is to codify the final judgment rule, or rule of

         one final judgment, a fundamental principle of

         appellate practice in the United States. The theory

         is that piecemeal disposition and multiple appeals

         in a single action would be oppressive and costly

         and that a review of intermediate rulings should await

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         the final disposition of the case. [Citations]” (citations).

         [Emph. in orig.]

         In re Marriage of Griffin, supra, 15 Cal.App.4th at 687.

 

At no time did the court acknowledge or discuss the “one final judgment rule,” although it has been briefed at length by petitioner several times. [App. J-10 thru J-17; App. K-24 thru K-29; App. L-20, 21; App. M-26 thru M-29]. That rule is totally disregarded in the November 14th dismissal order. [App. A].

 

This cunningly devised “dismissal stratagem” began October 24, 1996, more than a year after the notice of appeal was filed, when the court suddenly served an order to show cause why the appeal should not be dismissed as to the defendants who are the subject

 of the March 17, 1995, dismissal order. [App. M-11]. The wording strongly suggests that the court knew (as it must have from the record) that the March 17th order [App. C] was not the only order involved in this appeal, although stealthily, the court never mentioned the fact and existence of the second order [App. D; App. M-12].

 

Petitioner, although taken aback by the court's sudden move, nevertheless responded in good faith to the OSC, stating as a matter of fact shown on the record that the March 17th order is not the appealable order; that the appeal is timely under Rule 2(a) of the California Rules of Court; that petitioner is the

------------------------------------------22------------------------------------

only aggrieved party with right of appeal under CCP §902; that statutory authority for this appeal is under CCP §§904.1(a) and 906; that there are no collateral matters or other exceptions to the one final judgment rule, and citing legal authority supporting those contentions [App. M-12]. A week later, petitioner filed his opening brief [App. M-13], unsuspecting of anything irregular taking place in this appeal.

 

Unbeknownst to petitioner at the time he responded to the OSC on October 29th, the court was embarking upon a fraudulent scheme to prevent litigation of his action. Now that the truth is out, shown by evidence that has developed over a six-month period (October 24, 1996 through April 30, 1997) [App. M-1 thru M-19], it is clear why the court evaded all discussion of the August order, the one final judgment rule, section 906 of the Code of Civil Procedure, or of any clarification of the matter specifically requested in writing by petitioner. [App. J; App. M-14].

 

That is why developments became very sticky and confusing starting January 2, 1997, when petitioner mysteriously received in the mail a “respondent's brief” after the court had already filed a “dismissal order” dismissing the appeal on November 14, 1996. [App. M-16]. The fruits of the fraud were blossoming.

-------------------------------------23-----------------------------------------

 

Ten days before receiving the brief, petitioner had already filed (under deception) a “petition for review” in the state supreme court [App. K] based on the November 14th dismissal of appeal, on advice of the clerk who was likewise deceived. [App. M-15]. There was no record of a respondent's brief being filed, and further, such filing would have been rejected because the “petition for review” removes jurisdiction to accept any subsequent filings in the case. [App. M-16]. The state attorney general's office, after delaying response an entire week, informed petitioner on January 9th that their brief was filed December 30, 1996. Again, the clerk denied that any such filing was made, nor could it have been done as a matter of law. [App. M-16, 17].

 

Eighteen days after petitioner had filed a “petition for review” with the state supreme court, the clerk of the appellate division handling the appeal informed petitioner for the first time that the appeal was dismissed only as to certain defendants, admitting that the docket indicates “appeal dismissed.” [App. M-17]. The court refused to clarify that matter when petitioner requested it on November 27th. [App. M-14]. Also, for the first time petitioner was informed that a respondent's brief was filed December 30, 1996, admitting that such filing was not recorded on the docket, and despite the fact that petitioner had been in-

----------------------------------------24--------------------------------------

formed twice by the filing clerk that such a filing would not be possible as a matter of law. [App. M-17].

 

The court of appeal engaged in an elaborate scheme of concealment in order to fraudulently “justify” its dismissal order of November 14, 1996. Had the true facts been revealed and noted on the record, the dismissal for “untimeliness” could not have been made. By evading the fact that the appeal is from two orders, the court avoided accounting for the second, and final, order, thus evading the question of appealability and the question of timeliness from the appealable order.

 

         [S]ince the question of appealability goes to our

         jurisdiction, we are dutybound to consider it on our

         own motion. (citations).

         Olson v. Cory (1983) 35 Cal.3d 390, 398; 197 Cal.

         Rptr 843.

 

The court of appeal violated this duty and dismissed the appeal from a nonappealable order, while refusing to disclose the fact of the appealable order dated August 24th [App. A] listed on the notice of appeal [App. H]. [App. M-29].

 

Rule 2(a), California Rules of Court, governing timeliness of appeal, provides as follows:

 

(a)    [Normal time]. Except as otherwise provided by

         Code of Civil Procedure section 870 or other statute

         or rule 3, a notice of appeal from a judgment shall be

         filed on or before the earliest of the following dates:

(1)    60 days after the date of mailing by the clerk of

         the court of a document entitled “notice of entry” of

         judgment; (2) 60 days after the date of service of a

         document entitled “notice of

---------------------------------------25------------------------------------

         entry” of judgment by any party upon the party filing

         the notice of appeal; or (3) 180 days after the date of

         entry of the judgment. For the purposes of this sub-

         divison, a file-stamped copy of the judgment may be

         used in place of the document entitled “notice of entry.”

         [Emph. added].

 

The emphasized phrase “from a judgment” means from an appealable order as subdivision (d) provides:

 

         (d) [Appealable order]. As used in subdivision (a) and (c)

         of this rule, “judgment” means “appealable order” if the

         appeal is from an appealable order.

 

Therefore, the determination of “timeliness” of appeal depends on a determination of what is the appealable order. The court evaded that determination by ignoring and concealing the appealable order [App. D] from the record when dismissing the appeal on November 14th from the intermediate order only [App. C]. [App. M-31].

To determine the timeliness of the instant appeal, all facts set forth in the notice of appeal must be considered [App. H]. The first option under Rule 2(a) does not apply here, since no mailing was made by the clerk. The second option provides, on or before “60 days after the date of service of a document entitled ‘notice of entry' of judgment by any party upon the party filing the notice of appeal….” In the instant appeal, a document entitled “Notice of Entry of Judgment” was served on August 29, 1995 [App. M-32] by a party upon petitioner who filed the notice of appeal on October 19, 1995 [App. H], 51 days “after the date of

---------------------------------------26---------------------------------------

service of … ‘notice of entry' of judgment, etc.” Fifty-one days being within the 60-day allowance, the appeal was timely. [App. M-32, 33].

 

The third option, “180 days after entry of judgment” doesn't apply, since the second option is the “earliest of the following dates” required by Rule 2(a). Calculation of timeliness must be from the August 24th (the final and appealable) order. Therefore, the notice of appeal is timely pursuant to Rule 2(a)2. [App. M-33]. The state court has evaded that determination, and the bogus dismissal of November 14th [App. A] under false pretenses remains the destructive device of the state remedy herein, in violation of the First and Fourteenth Amendments.

 

2. All state court orders (Appendix A, B, C, and D) are void on their face and nullities, depriving petitioner of access to the courts to obtain a state remedy.

 

Petitioner was ultimately denied access to the courts on November 14, 1996 [App. A], the date petitioner's state remedy was destroyed by the court of appeal in violation of the Fourteenth Amendment, as aforesaid, when it failed and refused to exercise its appellate jurisdiction to which petitioner was statutorily entitled under Code of Civil Procedure (“CCP”) §906 and Rule 2(a) subpart 2 of the California Rules of Court (“CRC”). By the time

----------------------------------------27--------------------------------------

the court made its order of April 30, 1997 [App. B], petitioner's §906 appeal had already been fraudulently closed out by the court five and one-half (5-1/2) months earlier destroying the remedy, thus rendering the April order moot. Nothing stated in the April order corrects the damage already done; it merely serves as the exhaustion process required before this §1257 appeal is taken. Therefore, for purposes of this §1257 appeal, the focus is on November 14, 1996, and the effect that order [App. A] had on finally blocking access to the state courts in violation of the First and Fourteenth Amendments of the U.S. Constitution.

 

The destruction of petitioner's remedy was deliberately carried out by the court's fraudulent nondisclosure of material facts, beginning with the fact that the notice of appeal [App. H] had noticed the appeal from two orders in the same action, the final and appealable order dated August 24, 1995 [App. D]. By that nondisclosure, the court evaded and ignored consideration of the August 24th order and its status as the final appealable order, the one final judgment rule, CCP §906 governing and authorizing this appeal, and subpart (2) of Rule 2(a) CRC governing the timeliness of this appeal—all of which are necessary components of appellate jurisdiction for this case, as aforesaid. Governing statute is based on the facts of the particular case; ignoring

--------------------------------------------28----------------------------------

those facts appearing on the record does not change the law according to those facts. The facts, and all the facts, are controlling before the appropriate law is to be applied.

 

The November 14, 1996 dismissal order fails to discuss the material facts necessary to determine appellate jurisdiction. Such failure in light of the contents appearing on the face of the notice of appeal [App. H], and the court's reliance on that omission, exceeds the court's jurisdiction for which correction is necessary and due.

 

         [W]hen a statute authorizes prescribed procedure,

         and the court acts contrary to the authority thus

         conferred, it has exceeded its jurisdiction, and

         certiorari will lie to correct such excess.

         Abelleira v. District Court of Appeal (1941) 17 Cal.2d

         280, 290; 109 P.2d 942.

 

By the court's acting in excess of its jurisdiction (i.e., refusing to exercise its lawful jurisdiction and usurping a power it didn't possess), the November 14th order is void on its face and a nullity. The state courts have arbitrarily failed and refused to vacate or set aside the order, despite the evidence shown.

 

         A judgment [or order] 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). If the judgment is void, it is subject to

         collateral attack. (citation). One such method of attack

         is a subsequent motion to vacate or set aside the

         judgment as void. … The motion may be filed at any

         time after judgment. (citation).

----------------------------------------29-------------------------------------

 

 

 

[Emph. added]  County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110.

 

The motion to vacate filed November 27, 1996, [App. J] was summarily denied without comment or explanation December 3, 1996 [App. M-48], showing the arbitrary action of the court in refusing to address the facts and law. The November 14th dismissal order [App. A] remains void on its face and a nullity to this day, and petitioner continues his on-going attack upon a void judgment [App. L-6; App. M-48].

 

         A judgment absolutely void upon its face 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 the basis nor evidence

         of any right whatever. … (citations). Nagel v. P&M

         Distributors Inc. (1969) 273 Cal.App.2d 176, 180;

         78 Cal.Rptr 65. [App. J-18; App. M-48].

 

The court of appeal denied petitioner access to state court not only by the fraudulent dismissal of the appeal on November 14th, depriving petitioner of his statutory entitlement to a “906 appeal,” but by having done so, denied access (on November 14th) by fraudulently closing out adjudication of the voidness question presented as Issue III on appeal, titled “The [trial] judge acted in excess of jurisdiction in making the orders appealed from” [App. I-32; App. M-35], the April order [App. B] notwithstanding.

 

Regarding Issue III, petitioner cited a case directly on point with the facts of this case, to wit, Estate of Palmieri

---------------------------------------30---------------------------------------

(1932) 120 Cal.App. 698; 8 P.2d 152. [App. I-32 thru I-36]. However, the court of appeal intentionally evaded that, and all issues on appeal, by its afore-described fraudulent nondisclosure of material facts and bogus dismissal (i.e., close-out) of appeal November 14, 1996. Petitioner was forced to present the Palmieri issue (the voidness question) a second time in his petition for rehearing [App. L-6 thru L-13]; upon denial of rehearing, petitioner presented Palmieri a third time in his final petition for review to the state supreme court [App. M-35 thru M-45; App. M-50, 51]; upon denial of review, petitioner now presents Palmieri a fourth time in this “§1257 appeal” to the United States Supreme Court. The issue WILL NOT GO AWAY until it is judicially addressed on the evidence presented, i.e., all facts shown on this record including those concealed by state court.

 

         In every stage of these oppressions we have petitioned

         for redress in the most humble of terms: our repeated

         petitions have been answered only by repeated injury.

         A prince, whose character is thus marked by every act

         which may define a tyrant, is unfit to be the ruler of a

         free people.

Declaration of Independence (1776) [portion].

[App. M-34, 35]

 

FOURTH PRESENTATION OF THE PALMIERI ISSUE: At the hearing on the first demurrer on March 7, 1995, the trial court ruled that petitioner (plaintiff) “failed to exhaust [the] administrative remedy.” [RT1 5:24-25] which is supported by the minute order of

---------------------------------------31---------------------------------------

that hearing [App. G; App. I-14]. By that ruling on March 7th, the court determined that it lacked jurisdiction to proceed in the case. (Laird v. Workers' Comp. Appeals Bd. (1983) 147 Cal.App.3d 198, 204, “The exhaustion requirement is jurisdictional in California”; also Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377, 391, “Exhaustion applies only where an agency has exclusive jurisdiction over a case.”) Having so determined, the trial court divested itself of jurisdiction to decide any further matters, including defendants' demurrers. [App. I-32; App. M-36].

 

         [W]hen the court … determined that it was without

         jurisdiction, it determined that it had no power, right

         or authority to consider the general demurrers to the

         petition, since to do so would be to exercise a

         jurisdiction which it determined, though erroneously,

that it did not possess. Estate of Palmieri (1932)

120 Cal.App. 698, 700; 8 P.2d 152.

 

“When a court has determined that it has no

         jurisdiction of the subject matter of an action, it

         cannot properly consider any other questions raised

         in the case.” (citation). Id., p.701.

         [App. I-32, 33; App. L-6,7; App. M-36]

 

Accordingly, in ruling on the demurrers and other matters [App. I-33, 34], the trial court “exercise[d] a jurisdiction which it determined, though erroneously, that it did not possess.” Thus, both trial court orders of dismissal listed on the notice of appeal (including the March 17th order from which the appeal was fraudulently dismissed) are void on their face and were to be set aside directly on appeal. [App. I-34; App. M-36].

-------------------------------------32--------------------------------------

 

         [A] decision which oversteps the jurisdiction and

         power of the court is void and may be set aside

         directly or collaterally. (citations). Vasquez v. Vasquez

         (1952) 109 Cal.App.2d 280, 283; 240 P.2d 319.

[App. I-34, 35; App. L-7; App. M-37] (See also County of Ventura v. Tillett, supra.)

 

Based on the trial court's determination that petitioner had failed to exhaust administrative remedies [App. G], even though it was an erroneous determination that could have been tested on appeal, the court was required by law to enter a judgment of dismissal for want of jurisdiction, without prejudice, and not to have proceeded further in ruling on the merits of the demurrers. [App. I-35; App. L-8; App. M-37].

 

         Upon determining that it has no jurisdiction, the

         court may not only refuse to proceed further and

         determine other objections or the rights of the

         parties, but it is also improper to decide upon the

         sufficiency of other matters… and a judgment of

         dismissal for want of jurisdiction or without

         prejudice should be entered, after which the court

         has no authority to proceed (citing 15 Corpus Juris,

         section 176, p.854.) Estate of Palmieri, supra, p.700.

         [App. I-35; App. L-8; App. M-37].

 

However, inconsistent with its ruling at the hearing on March 7, 1995 [App. G], the trial judge signed the March 17th order [App. C] which reflects not his decision, but contrary thereto, a determination of the sufficiency of the complaint, i.e., a ruling on the merits of the demurrer [App. I-33, 34], thus acting in excess of its pronounced jurisdiction. Not only is the March 17th order “improper” according to Palmieri [App. L-8; App. M-38], the March

--------------------------------------33----------------------------------------

17th order is void on its face for want of jurisdiction. [App. L-9; App. M-38].

 

As in Palmieri, petitioner's case involves two demurrers and a determination by the trial court that it had no jurisdiction to proceed in the case, and the court's proceeding to rule on the demurrers anyway without jurisdiction to do so by its own pronouncement. [App. L-9; App. M-38]. The ruling on the first demurrer (March 17th order) should have been a dismissal without prejudice for want of jurisdiction, as aforesaid [App. L-8; App. M-37], and there should have been no ruling on the second demurrer since jurisdictionally it is moot. Petitioner had already been “put out of court.”

 

         Nor should the second demurrer have been acted on by

         the court, as the effect of its decision upon the first

         demurrer was to put the plaintiff out of court. We shall,

         therefore, regard the judgment as having been

         pronounced upon the question of jurisdiction made

         under the first demurrer, and the parties as occupying

         the same attitude they would have done, if the court

         had not acted at all upon the second demurrer.

         Estate of Palmieri, supra, pp 701-702.

 

The above was cited on page 22 of the opening appellate brief [App. I-35, 36], on page 5 of the petition for rehearing [App. L-9], and at the bottom of page 22 of the final petition for review [App. M-41, 42]. Nevertheless, the state courts refused to discuss Palmieri at any time, for to do so would have foiled the court's

---------------------------------------34---------------------------------------

fraudulent scheme of nondisclosure of material facts relating to the second demurrer and second order until after the appeal was dismissed by judicial fiat on November 14th from the first order alone. To acknowledge Palmieri would have forced the issue of the second order out into the open. However, to maintain its veil of secrecy and deception in order to pull the November 14th dismissal, the court of appeals had to remain hush-hush, refusing to discuss the August 24th order, the one final judgment rule, Code of Civil Procedure §906, the application of subpart (2) of Rule 2(a), or touch upon any clarification regarding the true status of the appeal as was requested by petitioner in his motion to vacate. [App. M-14]. Had the court of appeal taken up those facts, it would have had to account for the Palmieri decision and its application to the facts of petitioner's case; the court would not have been able to contrive, by judicial fiat, its “justification” of the November 14th dismissal -and hence, the fraudulent blocking of litigation of this tort action which, evidence shows, the court wanted to avoid at all cost, even of its integrity.

 

The Palmieri court made the following disposition of that case which is procedurally similar to petitioner's case:

 

         We conclude that by its determination that it was

         without jurisdiction, the trial court determined that it

         had no power or authority to pass on any other questions

         or take any judicial action in the proceedings except to

         dismiss

----------------------------------------35-------------------------------------

         the petition for want of jurisdiction. This being so, we

         must assume that the trial court did not pass on the

         general demurrers … since to do [so] would be to exercise

         a jurisdiction which it expressly determined that it did

         not possess. … [T]he effect of the trial court's decision

         on the question of jurisdiction was to put appellants out

         of court. Appellants' only course was the one taken by an

         appeal to have the trial court's decision declining

         jurisdiction reversed so that the trial court would thereby

         be compelled to assume the jurisdiction that it had

         judicially determined that it did not possess. …

 

         Accordingly, the judgment of dismissal is reversed,

         with directions to the trial court to assume jurisdiction,

         rule on respondents' general demurrers and take such

         further proceedings as may be proper. Id., at pp 702-703.

         [App. I-36; App. L-10, 11; App. M-39]

 

Similarly here, instead of dismissing the appeal on November 14th in violation of law, the court of appeal was required by law to exercise its appellate jurisdiction under CCP §906 and reverse the March 17th order [App. C] with directions to the trial court to assume original jurisdiction of the tort action and thereunder rule on respondents' general demurrers (restoring all parties to this action) and take such further proceedings as may be proper under that jurisdiction. The demurrers must be ruled on in the first instance by the trial court in exercise of its proper jurisdiction. Until that is done, the court of appeal has no jurisdiction to “review de novo” any rulings on demurrer that are void for want of jurisdiction; there are no valid orders to “review.” [App. L-11; App. M-40].

---------------------------------------36---------------------------------------

 

The second demurrer, being moot, should have been taken off calendar by the trial court; and its order thereon [App. D] being made in excess of jurisdiction, as is the first order [App. C], is also void on its face for want of jurisdiction (see County of Ventura v. Tillett, and Vasquez v. Vasquez, both cited ante), and is nevertheless appealable.

 

         It has long been the general rule in this state that where

         the law allows an appeal from a judgment or order, it is

         appealable even though void. (citations).

         Phelan v. Superior Court (1950) 35 Cal.2d 363, 366;

         217 P.2d 951. [App. I-35].

 

The second trial court order [App. D] was to have been set aside as void by the court of appeal exercising its appellate jurisdiction under CCP §906, and the ruling on the second demurrer made August 21, 1995 [CT 317-318] [App. I-15] treated as though the trial court had not acted at all upon the second demurrer [App. I-35; App. M-42].

 

The November 14th order [App. A] does not give validity to the orders of March 17th [App. C] and August 24th [App. D]:

 

         [T]he dismissal of appeal from the order was not an

         affirmance of the order so as to give it any validity which

         otherwise it did not possess. A dismissal of an appeal is

         an affirmance of the judgment only in a limited sense.

         If the judgment is void on its face, the dismissal of the

         appeal from it in no wise cures such vital defect.

         Sullivan v. Gage (1905) 145 Cal. 759, 770-771.

         [App. J-18; App. L-13, 14; App. M-46]

-----------------------------------------37------------------------------------

 

Moreover, the November 14th dismissal order [App. A] is itself void on its face and a nullity for exceeding the appellate jurisdiction warranted by the facts of this case, as aforesaid.

 

Furthermore, the order of April 30, 1997 [App. B] affirming the void August 24th order [App. D], the latter being the appealable order from which this entire appeal should have been adjudicated under CCP §906, is void as affirming a void order.

 

         The judgment of affirmance rendered by this court

         could not impart to it validity, but would itself be void

         by reason of the nullity of the judgment appealed from.

         (citation). Pioneer Land Co. v. Maddux (1895) 109 Cal.

         633, 642. [App. L-14; App. M-47; App. M-51]

 

         [A]n order giving effect to a void judgment is also void

         and is subject to attack. (citation). County of Ventura v.

         Tillett, supra, 133 Cal.App.3d at 110. [App. J-19;

         App. L-13; App. M-46]

 

The April 30th order affirms the sustaining of the “second demurrer” which “should [not] have been acted on by the [trial] court” in the first place. (Estate of Palmieri, supra, 120 Cal. App., at 701-702.) That demurrer should have been taken off calendar, as aforesaid.

 

Petitioner has been denied access to the state courts by arbitrary acts in excess of jurisdiction, even involving fraudulent practice by the court of appeal as shown by the evidence. Nondisclosure of material facts by a fiduciary is considered

----------------------------------------38--------------------------------------

“constructive fraud” in California under Civil Code §1573. (Byrum v. Brand (1990) 219 Cal.App.3d 926, 937-938.)

 

It has been established that California has a “strong public policy [favoring] open access to the courts for the resolution of conflicts.”

 

         [I]t has been held that access to the courts is a

         constitutional right founded upon the First Amendment

         to the United States Constitution. (citations). But

         regardless of any constitutional basis for the policy, it is

         beyond dispute that the strong public policy of this state

         favors open access to the courts for the resolution of

         conflicts. (citations). “The courts of the state are open

         to every citizen for the redress of his wrongs, and unless

         he is at liberty to seek such redress without rendering

         himself liable in damages to the defendant, in case he

         shall fail to establish his complaint, this right would

         in many instances be a barren privilege.” (citation).

         [Emph. added]. Leonardini v. Shell Oil Co. (1989)

         216 Cal.App.3d 547, 566; 264 Cal.Rptr 883.

         [App. I-19, 20]

 

The state court has not measured up to this “strong public policy” in petitioner's case. The court has arbitrarily and fraudulently deprived petitioner of a state remedy. Neither the issues raised by the complaint, nor the issues on appeal, have been reached due to arbitrary action of the courts.

 

         As was noted in [Monroe v. Pape (1961) 365 U.S. 167,

         176], in many cases there is “no quarrel with the state

         laws on the books, … instead, the problem is the way

         those laws are or are not implemented by state officials.

         Zinermon v. Burch, supra, 494 U.S. at 125.

---------------------------------------39---------------------------------------

 

In this case, the state remedy is “adequate in theory, [but] not available in practice.” Id., at 124. [App. M-52].

 

 

 

CONCLUSION

 

Petitioner is not bound by the state court orders herein; litigation of the issues has been blocked by judicial fiat; nothing has been decided. This case involves an important issue of statewide importance, affecting millions of people on a daily and recurring basis. State court has refused to provide a remedy. Petitioner must now appeal to the federal system to obtain the remedy due as a matter of law.

 

This petition for a writ of certiorari (§1257 appeal from state court) should be granted for the reasons stated herein.

 

Dated: October 2, 1997

 

Respectfully submitted,

 

RONALD BRANSON, Petitioner

---------------------------------------40---------------------------------------

 

 

Only Lockheed filed an opposition to this petition and its integrity can be seen from BRANSON's reply, which follows:

 

 

DECLARATION OF RONALD BRANSON

IN REPLY TO LOCKHEED'S OPPOSITION TO PETITION

 

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:

 

I, RONALD BRANSON, declare and say:

 

Introduction

 

1. That I am plaintiff and appellant in the underlying state tort action, and petitioner in this §1257 appeal therefrom.

2. That the facts herein stated are personally known to me to be true, and that I stand ready, willing, and able to testify thereto if called upon to do so.

3. That other matters herein stated of a conclusory nature are based on my information and belief, and as to those matters, I believe them to be true.

4. That I reply in declaration form because of Lockheed's reliance on the fraud and deception of the California courts in depriving me of a judicial remedy, and Lockheed's perpetuation of that fraud in its opposition.

 

EXHIBITS TO THE COMPLAINT ARE IRRELEVANT

 

5. That the exhibits to the Complaint [Opp. Fn.1] are irrelevant to this petition, since the subject matter of the Complaint and the merits thereof have yet to be adjudicated by any court. [Pet. 9; App. I-16].

--------------------------------------1------------------------------------

 

LOCKHEED'S FIRST ARGUMENT DOES NOT APPLY

 

6. That Lockheed is continuing to concentrate on the merits of the administrative procedures on which all defendants rely.

7. That Lockheed continues to evade the fact that those procedures are under constitutional challenge since the inception of this lawsuit and is the first issue presented to this Court in the petition. [Pet. 14-17]

8. That Lockheed continues to place this case into the same category as Love and Tyler, the plaintiffs therein being administrative subjects under the statutory scheme which is being challenged herein from a jurisdiction outside the administrative forum. That anything decided in those cases is jurisdictionally distinct from my case. This fact has been continually ignored.

9. That there has been no decision by any court on the constitutionality of Vehicle Code §§40200 through 40230 from an independent jurisdiction, beyond the statutory scheme itself.

 

LOCKHEED'S SECOND ARGUMENT IS FRIVOLOUS

 

10.        That I continue to stand on my protected liberty and property interests under Code of Civil Procedure §906 as well as the Due Process Clause of the Fourteenth Amendment.

11.        Lockheed continues to conceal the subject matter of the notice of appeal in this case which controls appellate jurisdic-

---------------------------------------2---------------------------------------

tion. Lockheed is perpetuating the court's fraud of nondisclosure. [Pet. 22-26]

 

12.        That I also continue to stand on my substantive right of access to the court as part of my right of petition for redress of grievances under the First and Fourteenth Amendments.

13.        That the Crowder court, cited by Lockheed, states on page 812, that if state officials wrongfully and intentionally conceal information crucial to a person's ability to obtain redress through the courts, a constitutional violation is committed. (884 F.2d at 812). That Lockheed did not address the cover-up of crucial facts by the appellate court violating my right of access to the court on appeal described in the petition.

14.        That just passing through courthouse doors and presenting legal documents, as Lockheed argues [Opp. 9], does not pass constitutional muster. As Crowder states, access must be “adequate, effective, and meaningful” (p. 811), none of which is here.

 

ONLY THE PARTY PROHIBITED FROM PARTICIPATING

IN THE MUNICIPAL PROGRAM PRESENTED AN OPPOSITION

 

15.        That Lockheed, a private New York corporation, is the only party herein forbidden under the California Constitution from participating in the challenged statutory scheme on behalf of the City of Los Angeles, and many other California cities

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[Pet. 13-14], which calls into question Lockheed's standing. Yet, Lockheed is the only party responding to this petition.

 

COMPELLING REASON IS STATED IN THE PETITION

 

16.        The fact that Lockheed ignores the compelling reasons stated in the petition does not vitiate them. The main reason is to obviate the necessity of my having to seek a remedy by a separate federal action. [Pet. 12].

17.        That my petition goes beyond my personal interests. It involves substantive and procedural federal interests affecting millions of Californians [Pet. 13].

 

LEGAL NOTICE TO LOCKHEED IMS

AND TO THE CITY OF LOS ANGELES

 

18.        That on this record, I hereby place Lockheed IMS and the City of Los Angeles, its contracting agent under the statutory scheme at issue before this Court, on notice that I am continuing to receive harassing notices from Lockheed IMS under the name of “LDC Collection Systems,” its collection agency, on behalf of the City of Los Angeles under contract, regarding the underlying parking violation in this action. That the most recent such notice is dated December 9, 1997, four days after the date of Lockheed's opposition to this petition pending before this Court. Please take notice that I have shown on the record that every court decision by the California courts in this tort action is

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void and a nullity, and that issue, among others, is now before this United States Supreme Court. That unless and until that voidness question is adjudicated, it remains undecided, and nothing arising from this action carries any validity.

 

That I have shown on the record that the California courts involved in this underlying tort action have committed fraud by failing to disclose and act upon the subject matter of the complaint (trial court) and by failing to disclose and act upon the subject matter of the notice of appeal (appellate court), all of which is fully set forth in the petition before this Court.

 

That any further harassing and damaging action taken by Lockheed IMS, the City, the Department of Motor Vehicles, or any other entity involved now or in the future in parking citation No. 373096544, will be used as evidence against such entities and parties should further litigation become necessary. That any further notices or action in this regard by Lockheed or any other parties it brings in, are just as void and fraudulent as the court orders shown on this record, and such damage will be ongoing as long as it continues without remedy.

 

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

Dated: December 15, 1997

RONALD BRANSON

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(See the Los Angeles Times article below dated Feb. 1, 2005)

http://www.latimes.com/technology/la-me-windfall1feb01,0,2573443,print.story?coll=la-headlines-technology

 

CALIFORNIA

Parking Windfall Angers Officials

Los Angeles authorities say the city did not receive its fair share of fines collected by two firms. One contractor is $20 million richer.

By Patrick McGreevy
Times Staff Writer

February 1, 2005

In 1998, city officials struck a deal to split the money from a new fine on scofflaws with the firm that collected parking ticket payments. But for seven years, city officials failed to ask for their share. Now, the firm is $20 million richer and city officials want the windfall back.

But it may be too late.

The city Department of Transportation has negotiated a tentative settlement with Affiliated Computer Services, which took over the contract three years ago from a unit of Lockheed. But Robert Andalon, a department official, said the deal may provide the city with only “several million dollars” in free services.

Elected city officials are angry that the lapse went uncorrected for seven years and the full amount may not be recovered.

”The loss of these kinds of public funds is staggering,” said Councilman Antonio Villaraigosa, chairman of the City Council's Transportation Committee, which will take up the proposed settlement next week. Villaraigosa said transportation officials failed to follow procedures.

The head of the city union that represents parking ticket officers said the mix-up should lead the city to take over the collection of its parking fines, so the city can keep all of the money.

”We'll see an international company give something back to the city? In my lifetime?” asked Julie Butcher, leader of Service Employees International Union Local 347. “This is money that went to line Lockheed's pockets instead of lining the streets with asphalt.”

The snafu is related to a contract approved in 1997 by the City Council with Lockheed Information Management Services to process and collect parking citations. The contract was taken over in 2002 by Affiliated Computer Services, which bought the information management unit from Lockheed.

In 1998, a city parking administrator approved an amendment to the contract to give Lockheed more incentives for collecting delinquent parking tickets.

Under the amendment, Lockheed was allowed to collect an 18% special collections fee on the fines taken in when the city seized a vehicle having five or more unpaid citations.

Under the agreement, Lockheed could keep up to $2.5 million, but would provide services to the city for revenue over that amount, said Wayne K. Tanda, general manager of the Department of Transportation.

Officials said the department never required Lockheed to provide any additional services, leaving Lockheed with $20 million or more in extra cash. And the city paid Lockheed $2.3 million for additional services that should have been covered by the agreement.

An internal investigation found that the City Council, not transportation officials, had the authority to approve the agreement. Tanda said that because of that, the deal was not legally binding.

Tanda blamed the lapse on “a loss of continuity of key DOT staff.” He said the parking administrator who approved the deal retired shortly afterward, as did one of his key assistants. A second parking administrator retired a year later.

A fourth parking administrator saw the agreement and raised alarms a few years ago.


When she became aware of the letter of agreement she consulted with the city attorney's office and was advised that [it] was probably not legally enforceable,” Tanda wrote. “No further action was taken, and the general manager was not consulted.”

Tanda said the amendment represented a “significant revision to the scope of work and the payments to the contractor,” and therefore should have been approved by the general manager, subject to approval of the council.

”The contract required this procedure. This was not done,” Tanda wrote in a report to the City Council. “Due to an extraordinary set of circumstances involving the departure of key DOT staff, compliance with the letter of agreement did not occur,” Tanda wrote.

Officials with Affiliated Computer Services did not return calls.

Mayor James K. Hahn has asked the city administrative officer to review the proposed deal before extending the firm's contract for another five years.

”The mayor, more than anything, wants to make sure the taxpayers get the best possible deal and get what they are entitled to,” said Sahar Moridani, a spokeswoman for the mayor.

 

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