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, 2023 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, 2022 [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 17^th 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.4^th 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.4^th 1399, 1404;

         22 Cal.Rptr2d 50.

 

According to both cases cited above, had petitioner brought a separate appeal on the March 17^th 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

---------------------------------------21------------------------------------

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

         [Emph. in orig.]

         In re Marriage of Griffin, supra, 15 Cal.App.4^th 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 14^th 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 17^th 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 17^th 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

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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 29^th, 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, 2022) [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.

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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 14^th 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 9^th 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 27^th. [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 24^th [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 14^th 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, 2022 [App. M-32] by a party upon petitioner who filed the notice of appeal on October 19, 2022 [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 24^th (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 14^th [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, 2022 [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, 2022, 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, 2022 [App. D]. By that nondisclosure, the court evaded and ignored consideration of the August 24^th 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, 2022 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 14^th 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 14^th 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 14^th, depriving petitioner of his statutory entitlement to a “906 appeal,” but by having done so, denied access (on November 14^th) 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

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(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 7^th, 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.4^th 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 17^th 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].

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         [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 17^th 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 17^th order “improper” according to Palmieri [App. L-8; App. M-38], the March

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

17^th 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 17^th 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

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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 14^th 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 14^th dismissal, the court of appeals had to remain hush-hush, refusing to discuss the August 24^th 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 14^th 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

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         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 14^th in violation of law, the court of appeal was required by law to exercise its appellate jurisdiction under CCP §906 and reverse the March 17^th 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].

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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, 2022 [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 14^th order [App. A] does not give validity to the orders of March 17^th [App. C] and August 24^th [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]

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Moreover, the November 14^th 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, 2022 [App. B] affirming the void August 24^th 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 30^th 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

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“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.

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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, 2022

 

Respectfully submitted,

 

RONALD BRANSON, Petitioner

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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