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IN THE COURT OF APPEALS

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OF THE STATE OF CALIFORNIA

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FIRST APPELLATE DISTRICT

MICHAEL COOMBS
Plaintiff and Respondent

vs.

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Writ of Supersedeas No.

Appeal No. A144930
Sup. Ct. No. CPF-10-510760

ARCHIBALD CUNNINGHAM
Defendant and Appellant

________________________________________________________________
REQUEST FOR WRIT OF SUPERSEDEAS
TO REINSTATE APPEAL AND WRIT
AND TO RECALL REMITTITUR
IMMEDIATE STAY UNDER CRC 8.116/8.475
__________________________________________________________________

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From August 7, 2015 Orders Dismissing Appellants Appeal (A144930) and His Writ of
Supersedeas Pursuant to the Doctrine of Disentitlement And Based on Deliberate
Misrepresentations and Frauds Made By Attorney John S. McKay
In His June 30, 2015 Motion to Dismiss
From the Superior Court for San Francisco
Hon. Judge Ronald Evan Quidachay
Department 501, 415-551-3762
Archibald Cunningham
State Bar #210625
P.O. Box 54399
San Jose, CA
408 466-7819
Self-represented

Writ of Supersedeas, 1

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ISSUE PRESENTED 6

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TABLE OF CONTENTS

INTRODUCTION.6

STATEMENT OF CASE..6

AUTHENTICITY OF EXHIBITS.. 8

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BENEFICIAL INTEREST OF PETITIONER; CAPACITIES

OF RESPONDENT AND REAL PARTY IN INTEREST 8
BASIS FOR REVIEW... 9
PRAYER 11
VERIFICATION. ..... 12
STATEMENT OF FACTS.. 13
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF WRIT OF SUPERSEDEAS14

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I. The Court of Appeals That Has Inherent Authority To Dismiss An

Appeal For Failure to Comply With Court Orders Also Has Authority
to Reinstate An Appeal That Was Dismissed By Extrinsic Fraud14

A. The Court of Appeals Dismissal Order Was Made Pursuant to Its

Inherent Powers.15

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B. A Litigant Is Entitled to Procedural Due Process Before the

Dismissal of His/Her Appeal Pursuant to the Doctrine of
Disentitlement 15

C. Petitioner Was Not Provided Procedural Due Process Protections

Prior to the Dismissal of His Appeal17
1. Alleged Non-compliance with Order for Interrogatories. 17
2. Alleged Violation of Judgment. 18

4. Justice Kline Invents New Procedures to Replace CCP 1209.. 20

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5. Mr. McKays Bad Faith In Failing to File A Contempt

Affidavit.21

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3. Alleged Violation of Stay-Away Order. 19

II. Mr. McKays Motion to Dismiss Under the Doctrine of Disentitlement

Was Obtained by His Deliberate Misrepresentations and Frauds
Upon the Court... 22

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A. Mr. McKays Deliberate Suppression of Evidence Related to Change

of Material Facts.... 22
B. Mr. McKays Deliberate Suppression of Material Facts Related to
Post-Judgment Interrogatories 24
C. Mr. McKay Misrepresented the Material Facts Related to
Enforcement of Judgment Under the 2007 TICA 28
D. Mr. McKay Allegations of Petitioners Non-Compliance with Order
to Vacate and Stay Away From His Condo... 32

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CONCLUSION.. 39

Federal Courts

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Amster Corp. v. Envirotech Corp (9th Cir. 1984) 730 F. 2d 147635

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State Courts

Lara v. County of Santa Clara, U.S District Court, N.D. California,

C-11-0607 RS, (2012).. 34

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

Anderson v. Superior Court (1989), 213 Cal.App.3d 1321.. ...9
Arieta v. Mahon (1982) 31 Cal. 3d 381 ..34
Carr v. Kamins, 60 Cal. Rptr. 3d 196 .. ..14
Lyons v. Wickhorst (1986) 42 Cal. 3d 911 .15
MacPherson v. MacPherson 13 Cal. 2d 271 (1939). 16
Moncharch v. Heily & Blas (1992) 3 Cal. 4th 1.31
People v. Clark (1927) 201 Cal. 47411

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

People v. Kang (2003) 131 Cal. Rptr. 2d 44710, 15

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

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

Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal. App. 4th 736..15
Stone v. Bach (1978) 80 Cal. App. 3d 44216, 17
TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377.. 6, 15, 16

State Statutes
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Civil Code 1352..14, 19

CCP 391.2. 8

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CCP 391.4. 8

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Civil Code 1351(j)31

CCP 415.46 36, 38

CCP 512.01034

CCP 564(b)(7)33, 35

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CCP 56832
CCP 712.010 35, 38
CCP 715.050 35, 39

CCP 1161 33
CCP 1209.20
CCP 1209(a)(5) .20, 22
CCP 1211.5.. 18
CCP 1217. 18
CCP 1218(a).18
Penal Code 166(a)(4). 20
Vex. Litigant Statute

Passim

Federal Statutes

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1st Amendment. 6

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14th Amendment.. Passim

Treatise

3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, 50633

5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 599, p. 69.33

5 Witkin, Cal. Procedure (2d ed. 1970) 38

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ISSUE PRESENTED

INTRODUCTION

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

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Petitioner Archibald Cunningham files this writ seeking to reinstate appeals and
writs that were dismissed based on various motions filed by opposing counsel Mr. John
Scott McKay. Petitioner avers that Mr. McKay, in filing motions to dismiss, deliberately
misrepresented material facts and engaged in misconduct. Mr. McKay has argued that
Petitioner is disentitled to appeal for being in an attitude of contempt toward court
orders. Most recently, on June 30, 2015, Mr. McKay filed a motion to dismiss
Appellants appeal (A144930) of a March 23, 2015 order confirming the forced sale of
his condominium under a provision of a 2007 Tenants-in-Common Agreement (2007

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TICA) that applies only to a defaulting Cotenants cotenancy share. (*See,

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

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

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

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

granted his motion.

STATEMENT OF CASE

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In his Declaration, Mr. McKay alleged three separate grounds for invoking the socalled Doctrine of Disentitlement and dismissing Appellants appeal. (Declaration,

of

court orders to;

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

1) provide answers to post-judgment interrogatories; 2) to

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

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TICA despite the fact that section 14.7 applies only to a defaulting Cotenants cotenancy
share, not an owners fee-simple condominium; 3) stay-away from his own property
and adhere to an August 20, 2014 order granting the non-attorney court-appointed
receiver, Kevin Singer (hereinafter SINGER), a writ of possession.
In requesting the reinstatement of his various appeals and writs, Petitioner now
avers that opposing counsel Mr. John Scott McKay misrepresented events, omitted
material facts, and suppressed his own wrong-doings and illegal conduct in order to
prevent Petitioner from challenging on appeal the enforcement of his facially
ambiguous Judgment. In other words, Petitioner asserts that Mr. McKay has

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

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

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

complaint with the State Bar against Mr. McKay pointing out his ethical lapses, his
fraudulent conduct, and his apparent criminal conduct. (*See, Attachment A, pg. 45-72). 1

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Bylaws and to show Mr. McKays myriad frauds upon the court. Appellant has filed a

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

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

documents on file with respondent court, the San Francisco Assessors Office, the Court

of Appeal, the state Supreme Court, the San Francisco Sheriffs Department, except the

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

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Company. (Attachment A, pg. 132-139; Mr. McKay allotted almost $400,000 in fees).
BENEFICIAL INTEREST OF PETITIONER; CAPACITIES OF
RESPONDENT AND REAL PARTY IN INTEREST

Archibald Cunningham is the Petitioner in this action and was the defendant in
Respondents arbitration proceeding filed under the 2007 TICA (CPF-10-510760). He
was the plaintiff in the lawsuit for breach of the 2009 CC&Rs and Bylaws and for the
fraud of Mr. McKay who, when drafting the arbitration award, substituted out the
material terms defaulting Cotenants cotenancy share and inserted condominium.
(CGC-11-511994). This lawsuit was dismissed under section 391.4 of the Vexatious

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

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

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was not considered a decision on the merits of Appellants claims. 2 On appeal

improper and unconstitutional dismissal of myriad appeals and writs of Petitioner under
the Doctrine of Disentitlement. The justices role seemed to entail rubber-stamping Mr.
McKays motions without providing Petitioner any due process protections. (*See,
Attachment B).
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CCP section 391.2: At the hearing upon the motion the court shall consider any
evidence, written or oral, by witnesses or affidavit, as may be material to the ground of
the motion. Except for an order dismissing the litigation pursuant to subdivision (b) of
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(A134206), Justices Kline and Richman upheld the dismissal, the only issued raised at
the trial court and the only issue to be determined by the appellate court. In that sense, the

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parties contractual rights under the 2009 CC&Rs have never been adjudicated. After
being denied all access in the state court by virtue of Mr. McKays vexatious litigant

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

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he filed his civil rights section 1983 lawsuit in the federal district court along with the
pendant state-law claims. That matter is fully-briefed and now before the Ninth Circuit
Court of Appeals (14-15266). Further, a second federal civil rights suit was filed by
Petitioner after the non-attorney court-appointed receiver fraudulently obtained an EJ-130
from the San Francisco Superior Court and convinced the San Francisco Sheriffs
Department to wrongfully evict an owner and title-holder from his own condominium.
This matter of the wrongful eviction of an owner from his own condominium is now
before the Ninth Circuit (Ninth Circuit Court of Appeals, No. 15-15166).
BASIS FOR REVIEW

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

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

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

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

Section 391.3, no determination made by the court in determining or ruling upon the
motion shall be or be deemed to be a determination of any issue in the litigation or of
the merits thereof. (Emphasis added).
3

Anderson v. Superior Court (1989), 213 Cal.App.3d 1321, 1328.

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and/or prohibition are authorized [W]here the trial court denies the fundamental right to
a fair hearing, an extraordinary writ will be available to stop or correct the situation.

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In the instant case, Petitioner seeks the reinstatement of appeals and writs that
were dismissed pursuant to the Doctrine of Disentitlement and by exercise of the

appellate courts inherent authority. He also requests the recall of the remittitur. The

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state Supreme Court, in People v. Clark (1927) 201 Cal. 474 was confronted with the
issue of whether an appeal could be reinstated after it was dismissed by virtue of the
fugitive disentitlement doctrine. In assuming a court has the authority to reinstate an
appeal, the Supreme Court concluded (Id., 478):

"[such power] should only be exercised in those cases where it is plainly made
to appear that a denial of its exercise would work a palpable injustice or wrong
upon the appellant."
In People v. Kang (2003) 131 Cal. Rptr. 2d 447, the Court of Appeals for the Fourth
District refused to vacate the reinstatement of a criminal appeal. The Court of Appeals
stated (Id., at 478):

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

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In the instant case, Petitioner here seeks the reinstatement of his civil appeal. While the
issue of the reinstatement of an appeal, whether criminal or civil, has never been
definitely determined, the Supreme Courts ruling in Clark and the Court of Appeals
ruling in People v. Kang seem to have construed a courts inherent authority as
authorizing it.

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PRAYER

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

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

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

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2.

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Petitioner prays that this Court:

for the appeals listed in paragraph one.

3.

Grant such other relief as may be just and proper.

Respectfully submitted,

/s/ Archibald Cunningham

Dated: December 4, 2015

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________________________
Archibald Cunningham
Petitioner

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VERIFICATION

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

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

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

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

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I declare under penalty of perjury that the foregoing is true and correct and that
this verification was executed on December 4, 2015 at San Jose, California
/s/ Archibald Cunningham

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____________________
Archibald Cunningham, Esq.

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STATEMENT OF FACTS

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

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

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

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

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

California Subdivision Map Act, Mr. Coombs, Ms. Woods, and Petitioner were permitted
under the condo-conversion procedures to submit an application for conversion of their
two-unit tenancy-in-common building into condominiums, which they did in October,
2008.

On March 4, 2009, Bruce R. Storrs, the City and County Surveyor of San
Franciscos Dept. of Public Works, approved the parties parcel map after they had
passed mandated inspections by the SFBD, paid their application fees, and complied with
all requirements of the California Subdivision Map Act.

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

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

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

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

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

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

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separate condominiums. 4

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

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

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

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

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

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

MAR-13-2015

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Carr v. Kamins, 60 Cal. Rptr. 3d 196 - Cal: Court of Appeal, 2nd Appellate Dist., 8th
Div. 2007)"A judgment is void on its face if the court which rendered the judgment
lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting
relief which the court had no power to grant. [Citations.]" (Ibid.); Reid v. Balter (1993)
14 Cal. App. 4th 1186, 1194; "`A judgment absolutely void may be attacked anywhere,
directly or collaterally whenever it presents itself, either by parties or strangers. It is
simply a nullity, and can be neither a basis nor evidence of any right whatever.'"; "`A
void judgment [or order] is, in legal effect, no judgment. By it no rights are divested.
From it no rights can be obtained. Being worthless in itself, all proceedings founded upon
it are equally worthless. It neither binds nor bars any one.' [Citation.]" Bennett v. Wilson
(1898) 122 Cal. 509, 513-514).
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A. The Court of Appeals Dismissal Order Was Made Pursuant to Its Inherent
Powers.
On August 7, 2015, the Court of Appeals for the First Appellate District dismissed

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Petitioners appeal of an order confirming the forced sale of his condominium. In its

order/opinion, Justice Kline stated:

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Under the "disentitlement doctrine," an appellate court has the inherent power to
dismiss an appeal by a party that refuses to comply with a lower court order.
(Stoltenberg v. Ampton Investments (2013) 215 Cal.App.4th 1225, 1229; see
TMS, Inc. v. Aihara (1999) 71 Cal.App.4th 377, 379.)
While appellate courts have inherent authority to dismiss, the case law is clear that use
of the disentitlement doctrine should only be used in extreme circumstances and where
"the court's authority `cannot possibly be otherwise vindicated'. Lyons v. Wickhorst
(1986) 42 Cal. 3d 911, 917). Likewise, the Court of Appeals in Slesinger, Inc. v. Walt
Disney (2007) 155 Cal. App. 4th 736, stated, supra, at 757:

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There are, of course, limits on the inherent authority of California courts

inherent power may only be exercised to the extent not inconsistent with the
federal or state constitution, or California statutory law. (Citations omitted).

B. A Litigant Is Entitled to Procedural Due Process Before the Dismissal of His/Her

Appeal Pursuant to the Doctrine of Disentitlement

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As noted above in People v. Kang (2003) 131 Cal. Rptr. 2d 447, the Court of

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Appeals for the Fourth District refused to vacate the reinstatement of a criminal appeal
because the litigant was not provided procedural due process protections. (supra, at 478;
The court concluded that a dismissal would likely result in a palpable injustice unless
the litigant was provided a full review of the record with the benefit of briefing and oral
argument.).

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In his motion to dismiss, Mr. McKay stated that an appellate court was authorized
to dismiss an appeal under the Doctrine of Disentitlement without there having been a

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formal finding of contempt at the trial court. (Attachment A, pg. 85. RMTD, pg. 9, 2;
The court further explained that no judgment of contempt is required as a prerequisite

to the Court of Appeals exercise of the power to dismiss.). This was, at best, a half-

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truth. While it is true that the doctrine can be applied without a formal adjudication of
contempt, 7 the Court of Appeals of Aliota Fish Co. v. Aliota (1994) 27 Cal. App. 4th
1669 made clear that an appellate court must at least make a finding of willful
disobedience or obstructionist tactics before dismissing. (Id., at 1683):
Although the power to stay or dismiss an appeal is typically exercised when the
litigant is formally adjudicated in contempt of court, "the same principle applies to
willful disobedience or obstructive tactics without such an adjudication." (9
Witkin,Cal. Procedure (3d ed. 1985) Appeal, 172, p. 184; see
also Stone v. Bach, supra,80 Cal. App.3d at p. 444.)
In Aliota, the Court of Appeals concluded that the trial courts imposition of sanctions
contain judicial findings that appellants have persisted in willfully disobeying the trial

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courts orders. (Id., at 1683). In other words, contrary to Mr. McKays suggestions to

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

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

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Disentitlement without either a contempt ruling at the trial court or a judicial finding of
willful disobedience of a court order.

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C. Petitioner Was Not Provided Procedural Due Process Protections Prior to the
Dismissal of His Appeal.

In his motion to dismiss, Mr. McKay concedes he did not file a contempt action

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

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

1. Alleged Non-compliance With Order for Interrogatories.
With respect to his first ground of disobeying a court order to provide
interrogatory at a creditors examination, Mr. McKay did not show that Petitioner was
in contempt or refused to be sworn for examination as was the judgment creditor in
Stone v. Bach. (*See, fn 7). Instead, Mr. McKay offered bare allegations as he had done
previously in getting Petitioners earlier appeals dismissed, such as A136608.
(Attachment A, pg. 87; RMTD, pg. 11, 1; It should be noted that this Court dismissed
Cunninghams appeal in Case No. A134608 based on his failure to answer the post

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

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

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

disentitlement on similar facts and with a formal finding of contempt. The justices simply
accepted Mr. McKays bare allegations and, in doing so, in essence, and by a de facto
default, granted Mr. McKay $97,654 in fees. In his complaint to the Commission on
Judicial Performance, Petitioner alleged that the justices violated his constitutional rights.

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2. Alleged Violation of Judgment.

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

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

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

But Mr. McKay did not bring a contempt action under CCP 1209(a)(5) at the trial court
to resolve the issue of whether Petitioner was in disobedience of a lawful judgment.
If he had, Petitioner would have been entitled to a full evidentiary hearing if not a trial
with the right to testify, the right to call witnesses, the right to cross-examinations and to
do so after extensive discovery and depositions. (CCP 1211.5; 1217; 1218(a)).
Further, if Petitioner had the benefit of these procedural due process protections at
the trial court, he would have had the right to collaterally attack 8 the validity of the
underlying injunction contained in the Judgment. He would have finally been able to

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

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

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proposed arbitration award and subsequent pleadings. Hed have been able to call Bruce

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

People v. Gonzalez (1996) 12 Cal. 4th 804, 817: [O]ut of a concern to protect the
constitutional rights of those affected by invalid injunctive orders, and to avoid forcing
citizens to obey injunctive orders on pain of punishment for contempt, this court has
firmly established that a person subject to a court's injunction may elect whether to
challenge the constitutional validity of the injunction when issued, or to reserve that
claim until a violation of the injunction is charged as contempt of court.
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conversion a year before Mr. McKay filed his petition to compel arbitration on the
2007 TICA. Hed have been able to call co-owners Mr. Coombs and Ms. Woods to

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

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

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

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2007 TICA and asserted that the two-unit building was still held as a cotenancy rather
than separate condos. Also, Petitioner would have called an expert witness, perhaps Andy
Sirkin, the drafter of the 2007 TICA, to explain to Justice Kline 9 that the 2007 TICA
terminated by its own terms upon conversion (which occurred on September 30, 2009
when Mr. McKays clients, Coombs and Wood, and Petitioner recorded the Declaration).
3. Alleged Violation of Stay-Away Order.

With respect to his third ground for dismissal, Mr. McKay asserts that Petitioner
was also in contempt based on his refusal to vacate and stay away from the condo as
ordered by Exhibit E. (Attachment A, pg. 87; RMTD, pg. 11, 3). In his declaration, Mr.

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

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

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

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Cunningham at the court when Cunningham was present for hearings.). The fact is
Petitioner was not evicted based on the August 20, 2014 writ, but on the mandatory
9

At oral argument at A131914, Justice Kline asked Mr. McKay when the 2007 TICA
after Petitioner referred to the 2007 TICA as a zombie contract. Apparently, Justice
Kline had not read the termination clause in the 2007 TICA or recognized that under
Civil Code section 1352 that the two-unit building converted to separate condominium
units upon the recording of the Declaration.
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Judicial Council EJ-130 form SINGER fraudulently obtained from the clerk. Mr. McKay
knew this. For Mr. McKay to suggest that Petitioner was evicted for violating the

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

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

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

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obtaining the EJ-130 form and persuading the SF Sheriffs Department to evict him.
Oddly, in ruling on Petitioners habeas corpus petition challenging the criminal
contempt under Penal Code 166(a)(4), Justice Kline conceded that an owner such as
Petitioner was not subject to eviction under the Unlawful Detainer Act. (A146271). But
Justice Kline declined to address the uncontroverted proof of SINGERs fraudulent
conduct and Mr. McKays collusion in it. (*See, Attachment C).

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

In his pre-dismissal order in A136608, Justices Kline and Richman ordered
Petitioner to disprove Mr. McKays bare allegations, which they would accept as true

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without any collaboration unless Petitioner disproved them. The order provided: 10
Order filed.

Respondents' opposed motion to dismiss appeal, filed on February 6,

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

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03/10/2014

10

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

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Under their new-fangled procedures, Petitioner was required, within three weeks, to
disprove Mr. McKays allegations by getting an order from the trial court showing

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compliance or a letter from Mr. McKays to the same effect. Besides abdicating the
judicial role by delegating to Mr. McKay judicial powers and giving him a veto power

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

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

that there was some motion Petitioner could file at the trial court to unprove or
disprove the bare allegations Mr. McKay made at the appellate court. Further, the
justices essentially excused Mr. McKay from filing an affidavit for contempt at the trial
court level and demanded that Petitioner disprove bare allegations on appeal without any
of the procedural due process protections afforded a contemnor under CCP 1209(a)(5).
More disturbing yet, the justices asked that Petitioner provide a transcript that
evidenced his compliance. In that regard, Petitioner filed a writ of supersedeas related
to the appeal of the order confirming the sale (A144930). In his writ, Petitioner attached

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

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

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

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appeal along with the writ on the same day, August 7, 2015.
These new procedures were in excess of the justices jurisdiction and a violation

of Petitioners rights under the Due Process Clause. The justices should now reinstate the
appeals and writs as the result of the denial of procedural due process.
5. Mr. McKays Bad Faith In Failing to File A Contempt Affidavit.
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Mr. McKay did not file a contempt action at the trial court because he did not
want to give Petitioner an opportunity to collaterally attack the underlying and facially

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

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

Vexatious Litigant Statute. Hes now filed 15 such motions and at least three

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disentitlement motions to preempt every attempt Petitioner has made to vindicate his
rights under the 2009 CC&Rs and to expose Mr. McKays fraud.

Instead of filing a contempt action at the trial court, Mr. McKay called the police
and choreographed multiple arrests of Petitioner at the scheduled court hearings where
Mr. McKay knew Petitioner was available to be arrested. These arrests were for
trespassing at his own condo after he was evicted based on EJ-130 form that
SINGER and Mr. McKay had fraudulently obtained from the court clerk. This was
explained in the habeas corpus petition Justice Kline denied in his terse opinion.
(Attachment C).

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

challenge Mr. McKays bare allegations of non-compliance and to collaterally attack his

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

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witness to explain his actions, which hes placed beyond scrutiny with the great success
he has had filing 15 vexatious litigant motions and denying Petitioner evidentiary
hearings.
II. Mr. McKays Motion to Dismiss Under the Doctrine of Disentitlement Was
Obtained by His Deliberate Misrepresentations and Frauds Upon the Court.

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A. Mr. McKays Deliberate Suppression of Evidence Related to Change of Material

Facts.

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To begin with, Mr. McKays ultimate fraud upon the court relates to his deliberate
failure to mention the change in material facts underlying his allegations of

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

appeal of the order confirming the sale of Petitioners condominium (A144930).

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However, on June 9, 2015, the non-lawyer court-appointed SINGER closed escrow and
dispersed to Mr. McKay over $400,000 of the $700,000 of attorneys fees he had churned
up in arguing that Petitioners condominium was subject to a forced sale under section
14.7 of the 2007 TICA. Further, at least a week before he filed his June 30, 2015 motion
to dismiss, Mr. McKay knew that the new owner, Michael Simonich, had moved into the
condominium at 1489 McAllister St., San Francisco and moved all of Petitioner
belongs into public storage.

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

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2015, and the occupancy of the new owner, could no longer comply with any court order
to cooperate with the forced sale of his condo. Likewise, after the occupancy of the

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

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Petitioner was out of compliance with the stay-away order. Finally, after he pillaged
more than $400,000 at the close of escrow from the equity Petitioner had in his condo,
Mr. McKay could not in good faith assert that Petitioner was out of compliance with an
order to pay sanctions related to his alleged failure to provide answers to post-judgment
interrogatories. These events occurred three week before his June 30, 2015 motion.

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In short, Mr. McKay knew that the material facts of this case had changed but he
sought the dismissal of the appeal challenging the order confirming the sale. In view of

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

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

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

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same way, he states in his declaration that Petitioner was not in compliance with the
stay-away order when he knew that the new owner had moved into the condo and put
Petitioners property in storage. These statements evince his perjury.
To be clear, Mr. McKay made these representations in his sworn declaration. As
such, he is both misrepresenting facts and misleading the court while committing the
crime of perjury. He does not contend that Petitioners alleged noncompliance
continues even after the material facts changed. In view of the materially changed facts,
he knew that the matter of Petitioners compliance or non-compliance was impossible
and, thus, moot or irrelevant. However, in his clear and unequivocal statements in his

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declaration, Mr. McKay represents that Petitioners alleged non-compliance is on-

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

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

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challenge a facially unambiguous if not void Judgment.

B. Mr. McKays Deliberate Suppression of Material Facts Related to Post-Judgment
Interrogatories
Even if he had not misrepresented the material facts of the sale of the condo and
occurrence of escrow closing, Mr. McKay had misrepresented facts related to the post-

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judgment interrogatories. In his Declaration, Mr. McKay stated that Cunningham has
refused to comply with an order for answers to post-judgment interrogatories.

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(Attachment A, pg. 86; RMTD, pg. 10, 2; pg. 6, 2). In his Declaration, he elaborates
further (Att A, pg. 94; RMTD, pg. 18, 12):

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12. In an effort to enforce the Judgment in the Underlying Action, Coombs

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

In this sworn statement, Mr. McKay asserts that Petitioner did not respond to these
interrogatories in any way. Mr. McKays statements are false. These statements are a lie
and misrepresentation by omission. Mr. McKay deliberately and willfully suppresses and

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omits the actions Petitioner took to quash Mr. McKays examination of his finances.

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

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

request for interrogatories. 11

JAN-23-2014

EX PARTE APPLICATION FOR ORDER TO QUASH SERVICE OF

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

11

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAM
E=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
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EXAMINATION FILED BY DEFENDANT CUNNINGHAM, ARCHIBALD

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

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

March 20, 2014.

ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD CUNNINGHAM, ON

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

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JAN-28-2014

Yet, Mr. McKay omits these events and misleads the court into believing that Petitioner
did not respondin any way. Petitioner promptly complied with Judge Dorfmans new
orders and provided answers and documents. Next, Mr. McKay, after receiving the
answers and required documents, simply filed a motion to take the examination off
calendar.

ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD CUNNINGHAM, ON

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

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MAR-19-2014

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By deliberately suppressing any mention of Judge Dorfmans subsequent actions and his

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own motion to take the examination off calendar, Mr. McKay leads the court up the
briar patch. He creates the false impression that Petitioner did nothing and was willfully
indifferent or in an attitude of contempt.
Mr. McKay did not assert in his motion to dismiss or at the trial court that
Petitioners answers were not in good faith. For him to do that now, would

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undermine his deceit upon the court and his false allegation that Petitioner did nothing.
In the same way, Mr. McKay took the matter off calendar when Petitioner challenged

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

Judgment was facially void and predicated upon Mr. McKays initial fraud of

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

award.

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to defaulting Cotenants cotenancy share) when he drafted his proposed arbitration

In his declaration, Mr. McKay then boasts that his misrepresentations and perjured
statements related to the post-judgment interrogatories resulted in the dismissal of
Petitioners appeal (A136608) of his award of $97,654.71 in attorneys fees. (Att. A, pg.
94; RMTD, pg. 18, 13). By getting the appeal of the fee award dismissed, Mr. McKay
avoided having to litigate the issue of whether or when the 2007 TICA had terminated
and whether or if the 2007 TICA provided a contractual basis for awarding fees
incurred in filing multiple vexatious litigant motions at the trial court and appellate

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

the fee award. 12

Appellant's opening brief.

Defendant and Appellant: Archibald

Cunningham
Pro Per

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01/02/2013

12

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2025700
&doc_no=A136608
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In getting the appeal dismissed by fraudulently invoking the Doctrine of

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

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fraudulently substituting out material terms when he drafted the arbitration award. In
heaping another fraud on the court, Mr. McKay dodged scrutiny of his initial fraud and

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

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Disentitlement, Justices Kline and Richman essentially granted him $97,654 in fees by
default and placed his initial fraud beyond scrutiny or accountability.
C. Mr. McKay Misrepresented the Material Facts Related to Enforcement of
Judgment Under the 2007 TICA

In his declaration, Mr. McKay alleged that Petitioner was disentitled to appeal
because he was not in compliance with the April 13, 2011 Judgment. (Attachment A,
pg. 94-95; RMTD, pg. 18-19).

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

First, and as noted above, Mr. McKay represented that Petitioners alleged noncompliance with the Judgment was an on-going and unabated event. However, he knew
very well that the condo was sold, escrow had closed, and the new owner was occupying
the property. Petitioner could no longer cooperate or interfere with the forced sale.

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Yet Mr. McKay misrepresented these events by omitting their occurrence. His sworn
statement was an act of perjury. The factual basis for alleging Petitioners

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disentitlement was moot or irrelevant.

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

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

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interfered with it. The fact is that the Judgment was void on its face and a product of
Mr. McKays fraud. In drafting the arbitration award, Mr. McKay substituted out material
terms, inserting the word condominium in place of the 2007 TICA language for a
defaulting Cotenants cotenancy share. Mr. McKay asserted that Petitioner had not
cooperated with the judgment for a forced sale as contemplated by section 14.7 of
the TICA. (Attachment A, pg. 86; RMTD, 10, 3). He then attaches section 14.7 as his
Exhibit D and states that SINGERs first step was to obtain an appraisal of
Cunninghams condo and a listing. (Attachment A, pg. 83; RMTD, 7, 2).
Here again, Mr. McKay, even after attaching the section 14.7, tries to deceive the

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

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

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

However, section 14.7 does not say or contemplate an appraisal of Petitioners

condominium. Section 14.7 says nothing about an ownership interest held as a
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condominium. It refers to the appraisal, listing, and marketing of a defaulting

Cotenants cotenancy share. Obviously, Petitioner could not comply with a court order

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

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

the Judgments facial ambiguity was a mistake, void, or a product of Mr. McKays fraud.

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

the facially ambiguous Judgment that he drafted for the courts signature. Mr. McKay
does not try, nor could he try, to construe the section 14.7 term cotenancy share to
mean condominium or the term Cotenant to mean owner. Realizing he could not read
away these unequivocal section 14.7 terms, he simply ignores them, pretending that the
facial ambiguity does not exist and that the SINGER can appraise, list, and sell a
condominium under a contract provision that relates only to cotenancy shares. He
simply whitewashes or deletes the terms by ignoring them. He needs to misrepresent the
clear and unequivocal language of section 14.7 to support his disentitlement motion

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

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

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to a defaulting Cotenants cotenancy share, not an owners condominium:

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

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14.7A(2) refers to the offering price as the Appraised value of the Defaulting
Cotenants cotenancy Share.;

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14.7B Notice of Forced Sale. This provision provides that the non-defaulting
Cotentant is to provide notice of their intent to cause the Defaulting Cotenants
Cotenancy Share to be sold.

14.7 C. Valuation. In this provision, the non-defaulting Cotenant shall initiate

determination of the Appraised Value of the Defaulting Cotenants Cotenancy
Share.;

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14.7D. Listing for Forced Sale. This provides that the non-defaulting Cotenant
shall list the Defaulting Cotenants Cotenancy Share for sale at the offering
price

By deliberately distorting the language of section 14.7 by his acts of omission, Mr.
McKay can allege that Petitioner is out of compliance and muster support for his
disentitlement motion. Most importantly, Mr. McKays allegations of non-compliance
divert attention from the facially ambiguous language and his fraudulent substitution of
terms at the time he drafted his arbitration award.

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

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arbitrator when he substituted out the material term defaulting Cotenants cotenancy

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

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

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by suppressing any mention of the facial ambiguity. He does not argue that he had the
authority to rewrite the parties 2007 TICA, the 2009 CC&Rs, the California Subdivision
Map Act, or Civil Code section 1351(j) and sub in and sub out material terms. Nor could
he argue that the arbitrator could rewrite the parties agreement by substituting out

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

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

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In short, this alleged grounds for dismissing the appeal was based on Mr. McKays
suppression of material facts, misrepresentations of material contract terms, and attempts

to mislead the court.

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D. Mr. McKay Allegations of Petitioners Non-Compliance with Order to Vacate

and Stay Away From His Condo.
Mr. McKay asserted that Petitioner was disentitled to appeal because of his
refusal to vacate and stay away from the condo as ordered by Exhibit E. (Attachment A,
pg. 87; RMTD, pg. 11, 3). As noted above, after the sale and close of escrow, this basis
for invoking the doctrine of disentitlement was irrelevant. In any case, even if the
material fact had not changed, Mr. McKays reliance on this ground is steeped in factual
distortions and misrepresentations.

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

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possession on August 20, 2014. The writ of possession was based on the trial courts
broad reading of CCP section 568 and purported to grant SINGER possession of

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Petitioners condo by virtue of his appointment and without the need to evict under

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the Unlawful Detainer Act. (Attachment A, pg. 96; RMTD, pg. 20, 17-18):
17. To proceed with the sale, the receiver filed a motion asking the superior
court to grant the receiver possession of the condo pursuant to CCP 568, to issue
a writ of possession so as to allow removal of Cunningham from the property, and
for an order requiring Cunningham to stay away from the property. That motion
was granted by an order dated August 20, 2015, a true copy of which is attached
hereto as Exhibit E. Such order noted (at p. 2) that Cunningham was interfering
with the receivers efforts to sell the condo as ordered, and that no lesser means
are feasible for the receiver to be able to sell the property.
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18. Pursuant to Exhibit E, Cunningham was removed from the condo by

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

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Although CCP 564(b)(7) requires a receiver to obtain the courts approval before
bringing an eviction action, Mr. McKay and SINGER convinced the trial judge that
Petitioner, as the owner and title-holder, could be removed by the mere appointment
of a receiver.

However, Petitioner was not removed from his condo pursuant to SINGERs
August 20, 2014 self-drafted writ of possession. Rather, he was illegally evicted
from his own property by Mr. McKays and SINGERs frauds. Mr. McKay knew very
well that an owner could not be evicted from his own property. ("The statutory
situations in which the remedy of unlawful detainer is available are exclusive, and the

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

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

14

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

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owner and title-holder, so he engaged in a fraud on the court. 15 Mr. McKay and the nonlawyer SINGER managed to convince the trial judge that an owner could be removed

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

125-126; RMTD, McKays Exhibit E).

The San Francisco Sheriffs Department refused to enforce SINGERs August 20,

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2014 writ of possession because it was not on the mandatory Judicial Council EJ-130.
For Mr. McKay to suggest that Petitioner was removed by the Sheriffs Department
because he was out of compliance with the August 20, 2014 is a misrepresentation of
fact. The fact is that Petitioner was evicted because of the fraud of Mr. McKay and
SINGER. The San Francisco Sheriffs Department would not evict/remove the owner
(Petitioner) except under the mandated procedures and with the approved Judicial
Council forms promulgated after the Supreme Courts decision in Arieta v. Mahon
(1982) 31 Cal. 3d 381. (In Lara v. County of Santa Clara, U.S District Court, N.D.
California, C-11-0607 RS, (2012), the U.S. District Court Judge Richard Seeborg pointed

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

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

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claim of right to possession.)

15

In the criminal habeas corpus petition (A146271), Justice J. Anthony Kline conceded
that the owner Petitioner could not be evicted under the Unlawful Detainer Act
because he was not a tenant or an individual subject to the Act. Rather, he suggested
that Petitioner could be evicted pursuant to a writ of possession issued in a cause of
action to regain personal property under CCP section 512.010. (*See Justice Klines
opinion in Petitioners petition for review. Attachment C.)
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The EJ-130 form sets out the procedures, such as the need for a judgment for
possession after an unlawful detainer action. Code of Civil Procedure 715.050

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

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

of statutes: 16

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715.050. Except with respect to enforcement of a judgment for

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

Under the mandated procedures, the court clerk was to issue a writ of possession
on the mandated EJ-130 form after a judgment for possession was obtained in an
unlawful detainer act.

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

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

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Detainer. He and Mr. McKay may have convinced the trial judge to ignore mandated
procedures, but the Sheriffs Department followed procedures.
16

CCP section 564(b)(7) allowed SINGER to bring an unlawful detainer action if he

obtained approval. For Mr. McKay to suggest the unlawful detainer actions do not
apply to receiver is contradicted by this statute. Its proof of Mr. McKays deliberate
misreading and false statement of law. (Amster Corp. v. Envirotech Corp (9th Cir. 1984)
730 F. 2d 1476.
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Given the Sheriffs Departments compliance with mandated procedures, SINGER

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

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

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

A, pg. 141-155;, Note: Stamped Received at the Sheriffs Office on September 14,

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2014). In the EJ-130 form, SINGER checked the box indicating hed served
Petitioners roommates the Prejudgment Claim of Right to Possession. He had to
commit this fraud on the clerk and Sheriffs Dept if he wanted to get paid from the

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

SINGER deliberately misrepresented the fact that hed served the form on Petitioners

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

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

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

17

CCP 415.46. (a) In addition to the service of a summons and complaint in an action
for unlawful detainer upon a tenant and subtenant, if any, as prescribed by this article,
a prejudgment claim of right to possession may also be served on any person who
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unlawful detainer action, but nevertheless stated the unlawful detainer complaint was
filed on 9/29/10. (*See, 24(a) Possession of real property. The Complaint was filed on

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

Sheriffs Department, the court, and, ultimately, upon Petitioner. The 9/29/10 date was

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

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McKays Petition to Compel Arbitration on the 2007 TICA. 18 SINGERs ultimate fraud
was convincing the court clerk to swap out his August 28, 2014 special receivers writ
of possession for the official Judicial Council bona-fide there-has-been-an evictionproceeding EJ-130 form. 19 In short, he wrongfully evicted an owner under the Act.
If there is any doubt of an on-going series of frauds by Mr. McKay and his
confederate SINGER that was put to rest several weeks later. On September 29, 2014, the
trial judge allowed SINGER to revoke his first EJ-130 form (and the accompanying

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appears to be or who may claim to have occupied the premises at the time of the filing of
the action. Service upon occupants shall be made...

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

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SEP-29-2010

NTC OF HEARING ON PETITION TO COMPEL ARBITRATION AND FOR

APPOINTMENT OF NEUTRAL ARBITRATOR; MEMO OF P & A, DECLARATION
FILED BY PETITIONER COOMBS, MICHAEL WOODS, TAMARA HEARING SET
FOR OCT-19-2010 AT 09:30 AM IN DEPT 302

19

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAM
E=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
AUG-28-2014

ISSUANCE OF WRIT OF POSSESSION OF PROPERTY AGAINST ARCHIBALD

CUNNINGHAM AS PER ORDER FILED ON AUGUST 20, 2014 FILED BY OTHER
SINGER, KEVIN AS TO DEFENDANT CUNNINGHAM, ARCHIBALD

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

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

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

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In the Re-Issued Writ, SINGER resubmits essentially the same writ but this time he
does not check the box at section 24. Instead, he indicated he had not in fact served
Prejudgment Right to Possession forms on Petitioners roommates when he apparently
served the unlawful detainer complaint in compliance with 415.46. He also
misrepresents to the Sheriffs Department that he obtained a writ of possession some
five years before based on the Petition to Compel Arbitration. This misrepresented law
and fact. Its axiomatic that one does not obtain a Judgment for Possession in a hearing

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on a Petition to Compel Arbitration.:

By not checking box 24(a)(1) in the reissued writ, he misrepresents that his amendments
have somehow cured his failure to obtain a judgment for possession under the
Unlawful Detainer Act and as required by CCP 715.050, 715.010 & 712.010. Further,
he thinks by typing in Mr. Cunninghams name under the section for a Description of

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Property, that he has complied with procedures. Or, perhaps he believes this is the way
to alert the Sheriff to evict/remove the individual, along with his property but not

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

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

individual so as not to tip the Sheriffs to the fraud that the eviction involved the

In seeking the dismissal of the appeal under the Doctrine of Disentitlement, Mr.
McKay falsely represented that there was a removal, not under the Unlawful Detainer
Act, but under some special writ of possession exclusive to receivers. This was a boldfaced distortion of facts and law. A fraudulent representation certainly was not a ground
for asserting the Petitioner was disentitled to appeal. Mr. McKays myriad omissions
of facts, misrepresentations of events, and perjured statements denied Petitioner a fair
hearing on the issue of his non-compliance. Mr. McKays conduct amounted to

CONCLUSION

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

20

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

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Petitioners appeals and writs have been dismissed under the Doctrine of
Disentitlement without providing due process protections. Further, the dismissal was

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obtained by the deliberate misrepresentations and extrinsic fraud of Mr. McKay. In view
of these events, the Court of Appeals should now reinstate the appeals and writs.

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

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own investigation of Petitioners attorney, convinced themselves she had committed a

misrepresentation, and reported her to the State Bar.

0/07/2015 Letter
October 7, 2015 Director, Administrative Compliance Unit The State Bar
sent of California 1149 So. Hill Street, 5th Floor Los Angeles, CA 90015-2299
to:
Dear Madam/Sir: At the direction of the court, we are forwarding a copy of a
dismissal order filed by this court on August 7, 2015, case number A144930,
Coombs v. Cunningham, in Division Two, in compliance with Bus. & Prof.
Code, 6086.7; Cal. Rules of Court, rule 10.1017. The name and address of
the attorney whose conduct is described in the enclosed order is: Patricia J.
Barry 634 South Spring Street, Suite 823 Los Angeles, CA 90014 Very truly
yours, Diana Herbert Clerk/Administrator enc. cc: Patricia J. Barry

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

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Justice Kline and Richman should deal in a similar manner with the uncontroverted
evidence of Mr. McKays misrepresentations, his frauds upon the court, and his criminal

Dated: December 4, 2015

Respectfully submitted,

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perjuries.

/s/ Archibald Cunningham

_______________________
Archibald Cunningham

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TABLE OF ATTACHMENTS

Petition for Review, Habeas Corpus

A146271

44-183

184-230

11/24/14

10/14/15

231-276

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Attachment C

Commission on Judicial Council

Complaint, Justices Kline, Richman

11/13/15

Attachment B

State Bar Complaint Against Mr. McKay

With Various Exhibits

Attachment A

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Exhibits
Name of Pleading
Date Filed
Pages
___________________________________________________________________

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CERTIFICATE OF COMPLIANCE

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I, Petitioner Archibald Cunningham, hereby certify that, pursuant to Cal. Rules of Court,
rule 14(c)(1), this writ of supersedeas contains approximately 9014 words, including

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

/s/ Archibald Cunningham

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_______________
Archibald Cunningham

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ATTACHMENT A

ATTACHMENT A

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THE STATE BAR OF CALIFORNIA

CALIFORNIA ATTORNEY COMPLAINT FORM
Read instructions before filling in this for m .
Please mail to:

Office of Chief Trial Counsel I Intake Dept., State Bar of California

845 South Figueroa Street, Los Angeles, California 90017-2515

(1) Your contact information:

Your name:
Your address:

Archibald Cunningham
P.O. Box 54399
--------

Your city, state & zip code:

_
s_an Jo_s_
9 5_134
e, _C
_
_A
__

Your email address:

archcunnghm@yahoo.com

______
______
__

Your telephone numbers:

Home (408) 466-7819

Work

______

Cell

____

_
__

_
_

(2) Attorney's contact information:

Please provide the name, address and telephone

number of the attorney(s) you are complaining about. (NOTE: If you are complaining
about more than one attorney, please use a separate form or include on a separate
sheet for each attorney the information requested in items #2 through #7.)
Attorney's name:
Attorney's address:
Attorney's city, state & zip code:
Attorney's telephone number:
Attorney's California bar license number:

--------

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

NoO

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

Amount paid (if any): $

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

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(5) Include with this form (on a separate piece of paper) a statement of what the
attorney(s) did or did not do that is the basis of your complaint. Please state the facts
as you understand them. Do not include opinions or arguments. If you employed the
attorney(s), state what you employed the attorney(s) to do. Sign and date each
separate piece of paper. Additional information may be requested. (Attach copies of
pertinent documents such as a copy of the fee agreement, cancelled checks or
receipts, and relevant correspondence.)
(6) If your complaint is about a lawsuit, answer the following, if known:
a. Name of court (For example, Superior Court and name of the county)
Court of Appeals, First Appellate District, A 144930

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

Cunningham

v.

Singer

c. Case number of the suit

A144930

d. Approximate date the suit was filed

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

(7) Size of law firm complained about:

D
D
D
D
D

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

(8) Translation Information:

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

No D

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

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INTRODUCTION
This complaint against attorney John Scott McKay (SBN 95799) involves
his fraudulent efforts to dismiss an appeal (A144930) that Mr. Cunningham had
filed related to an order to confirm the sale of my condominium. In his motion to
dismiss my appeal, 1 he argued that Mr. Cunninghams appeal should be dismissed
under the Doctrine of Disentitlement because he asserted that Mr. Cunningham
was in an attitude of contempt with respect to court orders. (Attachment A). The
Court of Appeals for the First District dismissed the appeal of the March 23, 2015
order confirming the sale on Mr. Cunninghams condominium and denied his
attorneys motions for rehearing. 2
LEGAL AUTHORITY

Members of the California State Bar are subject to the California Rules of
Professional Conduct (CRPC), and to the California Business & Professions Code
1

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=21
07394&doc_no=A144930
6/30/2015 Motion to dismiss
filed (before
record).

Respondents' Motion to Dismiss Appeal;

Memorandum of Points and Authorities; Declarations
of J. Scott McKay and Michael Coombs

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=21
07394&doc_no=A144930
08/20/2015 Order
Appellant's "Petition for Rehearing Under CRC
denying
Court 8.268 of the Denial of a Writ of Supersedeas
rehearing
by of the Court of Appeals of the First District on the
petition filed. Grounds of Disentitlement Doctrine" is denied.

Complaint Against Attorney John Scott McKay, pg.1

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6000 et. seq. (Bus. & Prof. Code). CRPC Rule 5-200 ("CRPC 5-200") provides
in relevant part:
In presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the
member such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer or jury by an artifice
or false statement of fact or law . . .
CPRC Rule 5-220 (CPRC) provides in relevant part:
"A member shall not suppress any evidence that the member or the
member's client has a legal obligation to reveal or to produce."
Bus. & Prof. Code section 6068 (Bus. & Prof. Code) provides additional guidance
and outlines the duties of attorneys in this state. It states in relevant part:
It is the duty of an attorney to do all of the following:
***
(d) To employ, for the purpose of maintaining the causes confided to him or
her those means only as are consistent with truth, and never to seek to
mislead the judge or any judicial officer by an artifice or false statement of
fact or law.
Bus. & Prof. Code

section 6068(d) "unqualifiedly require[s] an attorney to

refrain from acts which mislead or deceive the Court." (Di Sabatino v. State Bar,
27 Cal.3d 159, 162 (1980); see Sullins v. State Bar, 15 Cal.3d 609, 620-621.
"Actual deception is not necessary to prove willful deception of a Court; it is
sufficient that the attorney knowingly presents a false statement which tends to
mislead the Court." Davis v. State Bar, 33Cal.3d 231, 240 (1983). It is the
endeavor

to

secure

an

advantage

by

means

of

falsity

which

is

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

Complaint Against Attorney John Scott McKay, pg.2

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

explicit false statements, and accordingly, is misconduct calling for discipline. (Di
Sabatino, at 163; Grove v. State Bar (1965) 63 Cal. 2d 312, 315; Davidson v.
State Bar (1976) 17 Cal. 3d 570, 574).
Therefore, under CRPC 5-200 and 5-220, and Bus. & Prof. Code section
6068(d), as officers of the court, attorneys have a duty of candor and not to
mislead the judge by any false statement of fact or law. These same rules of
candor and truthfulness apply when an attorney is communicating with opposing
counsel. (Hallinan v. State Bar (1948) 33 Cal. 2d 246, 249)..
McKAYS NUMEROUS DECEITS AND FRAUDS UPON THE
COURT IN FILING HIS MOTION TO DISMISS.
In his Motion to Dismiss the appeal (MTDA), Mr. McKay relies on case
law that states that an appellant is not entitled to appeal if he/she is out of
compliance with court order. He asserts that there is a long standing rule that the
appeal of a party who is in contempt of court may be dismissed. (Tms, Inc. v.
Aihara 91999) 71 Cal. App. 4th 377. (MTDA, Attachment A, pg. 9, 2). He then
alleges that Mr. Cunningham is in contempt for his willful failure to comply
with: (Exhibit A, pg. 1, 1):
(1) a court order requiring him to answer certain post judgment
interrogatories, and (2) the injunction issued as part of the judgment which
requires Cunningham to cooperate in, and enjoins him from interfering
with, the sale of his condominium, which sale is ordered by such judgment,
and (3) a court order requiring Cunningham to vacate and stay away from
his condominium so that it could be sold.

Complaint Against Attorney John Scott McKay, pg.3

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Compliance With Interrogatories

In his MTDA, Mr. McKay states (Exhibit A, pg. 6, 2):

.On January 7, 2014, the Court ordered Cunningham to answer the

interrogatories and hand serve such answers within 10 days of
service of the order. The order was served on Cunningham by mail on
January 8, 2014. See order and proof of service, Exhibit B hereto. Answers
were thus due, by hand delivery, on January 23, 2014. No answers have
ever been provided by Cunningham. Cunningham was clearly available to
answer such interrogatories, as he has filed many pleadings in various
cases, and has appeared at numerous state and federal court hearings,
since the due date for such answers.
In stating that Mr. Cunningham never provided an answer, Mr. McKay has
committed a deliberate misrepresentation and deceit upon the court. Mr. McKay
sought interrogatories related to his examination of Mr. Cunninghams finances.
Mr. McKay knows very well that on the so-called due date of January 23, 2014,
Mr. Cunningham filed a motion to quash his request for interrogatories. 3
JAN-23-2014

EX PARTE APPLICATION FOR ORDER TO QUASH SERVICE OF

EXAMINATION FILED BY DEFENDANT CUNNINGHAM, ARCHIBALD

He knows very well that the trial court, Judge Dorfman of Dept. 514 where the
examination was being held, then continued the hearing for March 20, 2014.

JAN-28-2014

ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD

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

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PR
GNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
Complaint Against Attorney John Scott McKay, pg.4

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TO SUBPOENA DUCES TECUM BY FRIDAY JANUARY 31, 2014. J. SCOTT

MCKAY, ESQ., APPEARING FOR JUDGMENT CREDITOR. PROCEEDINGS NOT
REPORTED. (514)

Mr. Cunningham complied with Judge Dorfmans orders and provided answers
and documents. Next, Mr. McKay, after receiving the answers and required
documents, simply filed a motion to take the examination off calendar.

MAR-19-2014

ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD

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

Mr. McKay deliberately suppresses any mention of Judge Dorfmans subsequent

actions and his own motion to take the examination off calendar. (Franklin v.
State Bar (1986) 41 Cal. 3d 700, 709; half-truth is identical to a lie). Mr. McKay
took the matter off calendar instead of resolving any issues he might have had.
If he felt that Mr. Cunninghams answers were not in good faith, then his
remedy was to go to the hearing and explain that to Judge Dorfman or file a
contempt case. Instead, he now misleads the court by omitting material facts. His
deliberate concealment of material facts is the same as lying. (In the Matter of
Chestnut (2000) 4 Cal. State Bar Cr. Rptr 166, 174). His intellectual deviousness
takes the form of providing an exhibit of proof of service but omitting all the
other material facts related to the continuance and his taking the matter off
calendar. He commits these frauds so he can deprive Mr. Cunningham of his right
to appeal under the doctrine of disentitlement. He does not want Mr.
Cunningham challenging the order confirming the sale of his condominium

Complaint Against Attorney John Scott McKay, pg.5

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

forced sale of a defaulting Cotenants cotenancy share as opposed to an
owners fee-simple condominium. He heaps another fraud upon the court to
conceal the underlying fraud that he fraudulently substituted out material terms
from the 2007 TICA that applied to the parties subsequent 2009 CC&Rs and
Bylaws.
Enjoined From Interfering With the Sale of His Condominium
Mr. McKays insists he is entitled to dismiss the appeal because of Mr.
Cunninghams alleged failure to cooperate with sale of his condominium under
section 14.7 of the 2007 TICA. (Attachment A, pg. 1). He asserts that Mr.
Cunningham failed or refused to comply with the Judgments injunction that
requires Cunningham to cooperateand not do anything to interfere with, the sale
of his condo. (Attachment A, pg. 10, 3). To be clear, the appeal he seeks to
dismiss is the appeal of the March 23, 2014 order confirming the sale of his
condominium. It defies reason to suggest that Mr. Cunningham is not
cooperating after the sale has been confirmed. Mr. McKay goes beyond
deliberate distortion and misrepresentation and commits a deliberate absurdity.
Mr. McKays deliberate lies and deceits reach the nadir of incredulity when
he suppresses the fact that the condo and been sold and escrow closed on June 9,
2015. (Attachment B). Mr. McKay, pocketed over $400,000 of fees at the close of
escrow on June 9, 2015, but turns around three weeks later, and has the audacity to
assert that Mr. Cunningham is not cooperating in the forced sale of his property.
Complaint Against Attorney John Scott McKay, pg.6

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Mr. McKay knew that the new owner, Michael Siminoch, had moved into the
property by June 15, 2015 and moved all of Mr. Cunninghams belongings into
storage. But he suppresses these facts and intimidates that Mr. Cunningham is still
interfering with the sale or refusing to stay away. In cooking up a patch of red
herring, Mr. McKay notes that he had succeeded to have several other appeals
(A142115; A136608) dismissed on the basis of Mr. Cunningham alleged failure to
answer post-judgment interrogatories. (Attachment A, pg. 11, 1-2). Mr. McKay
references these past dismissal based on the interrogatories to give credence to
his new motion to dismiss and to deflect attention from the change in material
circumstances, that is, that the condo has been sold and escrow has closed and that
Mr. Cunningham could neither comply nor defy a stay away order after the sale
of his condo and the new owners occupancy. (Bach v. State Bar (1987) 43 Cal.
3d 848, 855-856; No distinction can therefore be drawn among concealment, halftruth, and false statement of fact. Green v. State Bar 213 Cal. 403, 405; "It is the
endeavor to secure an advantage by means of falsity which is denounced."
(Pickering v. State Bar (1944) 24 Cal. 2d 141, 145; misleading the judge
constitutes an "act involving moral turpitude" condemned by Bus. & Prof.Code,
section 6106. (McMahon v. State Bar (1952) 39 Cal. 2d 367, 369).
Cooperation with Forced Sale In Accordance with 2007 TICA
Even if the new owner had not moved into the condo, Mr. Cunningham
could not have cooperated with the forced sale of his condo because the
Judgment was void on its face and a product of Mr. McKays fraud. In drafting
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the arbitration award, Mr. McKay substituted out material terms, inserting the
word condominium in place of the 2007 TICA language for a defaulting
Cotenants cotenancy share. Mr. McKay asserts that Mr. Cunningham had not
cooperated with the judgment for a forced sale as contemplated by section
14.7 of the TICA. (Attachment A, pg. 10, 3). He then attaches section 14.7 as
his Exhibit D and states that SINGERs first step was to obtain an appraisal of
Cunninghams condo and a listing. (Attachment A, pg. 7, 2). Here again, Mr.
McKay, even after attaching the section, tries to deceive the court. Section 14.7
does not say or contemplate an appraisal of Mr. Cunninghams condominium.
Section 14.7 says nothing about an ownership interest held as a condominium. It
refers to the appraisal, listing, and marketing of a defaulting Cotenants
cotenancy share.
Mr. McKay does not try, nor could he, try to construe the term cotenancy
share to mean condominium or the term Cotenant to mean owner. Realizing
he cannot read away these unequivocal terms, he simply ignores them, pretending
that the facial ambiguity does not exist and that the SINGER can appraise, list,
and sell a condominium under a contract provision that relates only to cotenancy
shares. He simply whitewashes or deletes the terms by ignoring them. (Amstar
Corp. v. Envirotech Corp. (9th Cir. 1984) 730 F. 2d 1476; Distortion of the
record, by deletion of critical language in quoting from the record, reflects a lack
of the candor required by the MODEL RULES OF PROFESSIONAL CONDUCT,
Rule 3.3 (1983), wastes the time of the court and of opposing counsel, and imposes
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unnecessary costs on the parties and on fellow citizens whose taxes support this
court and its staff. A quotation containing deletions that so clearly distort the
meaning and relevance of the quotation as to render it misleading will not in this
court be encouraged by acquiescence.). Mr. McKay knew the unambiguous and
unequivocal terms of section 14.7 relate to a defaulting Cotenants cotenancy
share, not a condominium:
14.7A(2) refers to the offering price as the Appraised value of the
Defaulting Cotenants cotenancy Share.;
14.7B Notice of Forced Sale. This provision provides that the nondefaulting Cotentant is to provide notice of their intent to cause the
Defaulting Cotenants Cotenancy Share to be sold.
14.7 C. Valuation. In this provision, the non-defaulting Cotenant shall
initiate determination of the Appraised Value of the Defaulting Cotenants
Cotenancy Share.;
14.7D. Listing for Forced Sale. This provides that the non-defaulting
Cotenant shall list the Defaulting Cotenants Cotenancy Share for sale at
the offering price;

After condo-conversion, which occurred a year before Mr. McKay filed his
petition on the defunct 2007 TICA and a year after his clients signed, executed and
recorded the superseding 2009 CC&Rs and Bylaws, Mr. Cunningham was no
longer a Cotenant. Further, he no longer possessed a cotenancy share to be
sold under section 14.7. This was clearly shown in the legal documents. (*See,
Attachment A, Mr. McKays Exhibit A, legal description of property as a
condominium as of August 3, 2009). Mr. McKay knew this. It was evident on the
very documents he used in drafting his Judgment. Mr. Cunningham had
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informed SINGER that he could not cooperate or interfere with the facially
ambiguous terms. If fraudulent, Mr. Cunningham expressed his unwillingness to
collude with Mr. McKays fraudulent substitution of terms. For his part, SINGER
recognized that he was not going to get paid unless he got the forced sale,
whether the Judgment was ambiguous or not. 4 He breached his fiduciary duty to
seek clarification before doing Mr. McKays bidding.
Compliance with Order to Vacate and Stay Away From His Condo
Mr. McKay avers that Mr. Cunningham is in contempt of court for
violating the August 20, 2014 writ of possession with the trial judges handwritten stay-away order directing Mr. Cunningham not to go back to his
condominium. (*See, Attachment A, Mr. McKays Exhibit E). In his MTDA, Mr.
McKay states that Mr. Cunningham was removed from his condo by the San
Francisco County Sheriffs Department on November 6, 2014. (Attachment A,
pg. 8, 1). He points out that Mr. Cunningham, after his removal, has been
arrested three times for violating a stay-away order and for trespassing on his
own property. He attaches the August 20, 2014 writ of possession obtained by
the receiver, Kevin Singer, as the order Mr. Cunningham supposedly violated.

Normally, compensation for a receiver is payable from the property in

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

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

(Cunningham) was removed by the August 20, 2014 writ of possession. Thats
simply false. Mr. Cunningham was not removed from his condo pursuant to the
August 20, 2014 writ of possession. Rather, he was illegally evicted from his
own property by Mr. McKays and SINGERs frauds. Mr. McKay knew very well
that an owner could not be evicted from his own property. ("The statutory
situations in which the remedy of unlawful detainer is available are exclusive, and
the statutory procedure must be strictly followed." (3 Witkin, Cal. Procedure (2d
ed. 1971) Pleading, 506.) 5 Mr. McKay realized that he could not evict Mr.
Cunningham, the owner and title-holder, so he engaged in a fraud on the court.
Mr. McKay and the non-lawyer SINGER managed to convince the trial judge that
an owner could be removed by a two-paragraph writ of possession drafted by
a receiver. (*See, Attachment A, McKays Exhibit E).
But Mr. McKay knows that Mr. Cunningham was not removed under the
August 20, 2014 writ of possession. That is his second deceit. He knows very
well that Mr. Cunningham was evicted pursuant to an EJ-130 form that
SINGER fraudulently obtained from the court clerk. (Ainsworth v. State Bar
5

The remedy of unlawful detainer is available in only three situations: (a)

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

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

mislead the court). The San Francisco Sheriffs Department refused to enforce
SINGERs August 20, 2014 writ of possession because it was not on the
mandatory Judicial Council EJ-130. The EJ-130 form sets out the procedures, such
as the need for a judgment for possession after an unlawful detainer action.
Code of Civil Procedure 715.050 makes clear that a writ of possession is a step
in the unlawful detainer process, not a separate cause of action or proceeding a
receiver can bring under some fanciful reading of statutes: 6
715.050. Except with respect to enforcement of a judgment for
money, a writ of possession issued pursuant to a judgment for
possession in an unlawful detainer action shall be enforced pursuant
to this chapter without delay, notwithstanding receipt of notice of
the filing by the defendant of a bankruptcy proceeding.

The San Francisco Sheriffs Department would not evict/remove the owner
(Cunningham) except under the mandated procedures and with the approved
Judicial Council forms promulgated after the Supreme Courts decision in Arieta
v. Mahon (1982) 31 Cal. 3d 381. (In Lara v. County of Santa Clara, U.S District
Court, N.D. California, C-11-0607 RS, (2012), the U.S. District Court Judge
Richard Seeborg pointed out that the California Legislature has effectively

CCP section 564(b)(7) allowed SINGER to bring an unlawful detainer action if he

obtained approval. For Mr. McKay to suggest the unlawful detainer actions do not
apply to receiver is contradicted by this statute. Its proof of Mr. McKays deliberate
misreading and false statement of law. (Amster Corp. v. Envirotech Corp (9th Cir. 1984)
730 F. 2d 1476.
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codified the holding in Arieta and provided formal procedures and judicial
council forms for any individuals making a claim of right to possession.)
Under the mandated procedures, the court clerk was to issue a writ of
possession on the mandated EJ-130 form after a judgment for possession was
obtained in an unlawful detainer act.
CCP 712.010: After entry of a judgment for possession or sale of property,
a writ of possession or sale shall be issued by the clerk of the court upon
application of the judgment creditor and shall be directed to the levying
officer in the county where the judgment is to be enforced. The application
shall include a declaration under penalty of perjury stating the daily rental
value of the property as of the date the complaint for unlawful detainer
was filed(emphasis added).

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

Unlawful Detainer. He and Mr. McKay may have convinced the trial judge to
ignore mandated procedures, but the Sheriffs Department followed procedures.
action against the owner/Appellant.
Given the Sheriffs Departments compliance with mandated procedures,
SINGER recognized he could not remove the owner/Cunningham without the
mandated Judicial Council form (EJ-130). Hence, SINGER returned to the court
clerk (Bowman Liu) on August 28, 2015, filled out the EJ-130 form, and returned
it to the Sheriffs. (Attachment C, Note: Stamped Received at the Sheriffs
Office on September 14, 2014). In the EJ-130 form, SINGER checked the box
indicating hed served Mr. Cunninghams roommates the Prejudgment Claim
of Right to Possession. He had to commit this fraud on the clerk and Sheriffs

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Dept if he wanted to get paid from the receivership estate, that is, the $800,000 to
$1,000,000 of equity Mr. Cunninghams condo.

SINGERs deliberately misrepresented that hed served the form on Mr.

Cunninghams roommates. He had not. His next deliberate misrepresentation was
that he served the form in compliance with CCP 415.46. But CCP 415.46
provides for service of the form with the unlawful detainer summons and
complaint. 7 He knew there was no unlawful detainer action, but nevertheless
stated the unlawful detainer complaint was filed on 9/29/10. (*See, 24(a)
Possession of real property. The Complaint was filed on (date) 09/29/10). That
was his third or fourth bold-faced deceit upon the clerk, the Sheriffs Department,
the court, and, ultimately, upon Mr. Cunningham. The 9/29/10 date was not an
unlawful detainer action that resulted in a judgment for possession, but Mr.

CCP 415.46. (a) In addition to the service of a summons and complaint in an

action for unlawful detainer upon a tenant and subtenant, if any, as prescribed
by this article, a prejudgment claim of right to possession may also be served on
any person who appears to be or who may claim to have occupied the premises at
the time of the filing of the action. Service upon occupants shall be made...

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McKays Petition to Compel Arbitration on the 2007 TICA. 8 SINGERs ultimate

fraud was convincing the court clerk to swap out his August 28, 2014 special
receivers writ of possession for the official Judicial Council bona-fide therehas-been-an eviction-proceeding EJ-130 form. 9
If there is any doubt of an on-going series of frauds by Mr. McKay and his
confederate SINGER that was put to rest several weeks later. On September 29,
2014, the trial judge allowed SINGER to revoke his first EJ-130 form (and the
accompanying frauds) and resubmit a second EJ-130 form. (Attachment F). In his
September 29, 2015 letter to the trial judge Quidachay, SINGER states:
I had the Initial Writ re-issued, signed by the clerk (Re-issued Writ)
and presented to the Sheriff (See Exhibit 2 Attached).I expect that this
Reissued Writ will succeed in removing Respondent Archibald
Cunningham. Once he is removed, I expect to be able to have the Property
inspected, appraised and marketed for sale.

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PR
GNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
SEP-29-2010 NTC OF HEARING ON PETITION TO COMPEL
ARBITRATION AND FOR APPOINTMENT OF NEUTRAL
ARBITRATOR; MEMO OF P & A, DECLARATION FILED BY
PETITIONER COOMBS, MICHAEL WOODS, TAMARA
HEARING SET FOR OCT-19-2010 AT 09:30 AM IN DEPT 302
9

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PR
GNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
AUG-28-2014 ISSUANCE OF WRIT OF POSSESSION OF PROPERTY AGAINST
ARCHIBALD CUNNINGHAM AS PER ORDER FILED ON AUGUST
20, 2014 FILED BY OTHER SINGER, KEVIN AS TO DEFENDANT
CUNNINGHAM, ARCHIBALD

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In the Re-Issued Writ, SINGER resubmits essentially the same writ but this time
he does not check the box at section 24. Instead, he indicated he had not in fact
served Prejudgment Right to Possession forms on Appellants roommates when
he apparently served the unlawful detainer complaint in compliance with
415.46. He also misrepresents to the Sheriffs Department that he obtained a
writ of possession some five years before based on the Petition to Compel
Arbitration. This misrepresented law and fact. Its axiomatic that one does not
obtain a Judgment for Possession in a hearing on a Petition to Compel
Arbitration. (Attachment D, Mr. Singers Exhibit TWO):

By not checking box 24(a)(1) in the reissued writ, he misrepresents that his
amendments have somehow cured his failure to obtain a judgment for
possession under the Unlawful Detainer Act and as required by CCP 715.050,
715.010 & 712.010. Further, he thinks by typing in Mr. Cunninghams s name
under the section for a Description of Property, that he has complied with
procedures. Or, perhaps he believes this is the way to alert the Sheriff to
evict/remove the individual, along with his property but not any current
tenants. There is the lesser fraud here of referring to the owner as an individual

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so as not to tip the Sheriffs to the fraud that the eviction involved the illegal
eviction of an owner, as opposed to a tenant.

In seeking the dismissal of the appeal, Mr. McKay falsely represented that there
was a removal, not under the Unlawful Detainer Act, but under some special
writ of possession exclusive to receivers. This was a bold-faced distortion of
facts and law.
Furthermore, Mr. McKay argued at the state trial court (CPF 10-510760)
on May 6, 2014 and August 4, 2014 and at a hearing in the federal civil rights
case against SINGER and Mr. McKay that there was no need for no need for an
unlawful detainer action. (DC ND cv-14-03250 WHA; Attachment E; Transcript
January 8, 2015, pg. 18/14-28):
THE COURT: Well, was he evicted? Well, he was evicted?
MR. MCKAY: He was evicted, despite his
THE COURT: He was evicted pursuant to what?
MR. MCKAY: Code of Civil Procedure 568, which allows a receiver to
obtain possession of property thats subject to the receivership estate. You
dont have to file an unlawful detainer.
THE COURT: The sheriff went out there to kick him out? Is that the way it
worked?
MR. McKAY: Thats correct.

But Mr. McKay knew very well that the owner/Cunningham was evicted by
SINGERs fraudulent representations that there was an unlawful detainer action.,
SINGER presented false evidence to the Sheriffs Depart to have Mr. Cunningham

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evicted. He then submitted false evidence to have him arrested for trespassing
on his own property. This constituted a felony under the Penal Code. (a felony
under Penal Code 136(b) giving false material evidence pertaining to a
crime.).
For his party, Mr. McKay aided and abetted SINGERs fraudulent
eviction, his illegal arrests, his unauthorized practice of law, and the illegal
forced sale of Mr. Cunninghams condo under a provision related only to a TIC
share. Mr. McKays actions are criminal, constitute the obstruction of justice, and
involve matters of moral turpitude that should result in his disbarment. Under Bus.
& Prof. Code section 6102, subdivision (c), an attorney must be summarily
disbarred, regardless of mitigating circumstances, if: (1) an element of his offense
involves the intent to deceive or defraud (Bus. & Prof. Code 6102(c)(1)); (2) the
attorney committed the offense while practicing law ( 6102, subd. (c)(2)). (In re
Ford 44 Cal. 3d xxx, 816, fn 6; 1 Witkin, Cal. Procedure (1988 supp.) Attorneys,
381A, pp. 53-54if the conviction meets specified criteria, the attorney must be
summarily disbarred when the judgment is final; In re Schwartz (1982) 31 Cal. 3d
395, 400; fraud is a principal element of moral turpitude; In re Craig (1938) 12
Cal. 2d 93; conspiracy to obstruct justice involves moral turpitude on its face).
Collateral Attack, Petition on 2007 TICA v. Suit on 2009 CC&R

In his MTDA, Mr. McKay testifies to facts by stating that Mr.

Cunninghams lawsuit (CGC-11-511994), on the 2009 CC&Rs and Bylaws and
fraud, was a collateral attack on his arbitration award which was based on the

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2007 TICA. (Attachment A, pg. 2, 3). He then states that Mr. Cunninghams
federal suit, based on the breach of 2009 CC&Rs and Mr. McKays fraud (DC NC
13-cv-04627), was also a collateral attach on his arbitration award. (Attachment
A, pg. 3, 3). Further, he states that Mr. Cunninghams lawsuit related to
SINGERs unlawful and illegal eviction was also a collateral attack on the
arbitration award. (DC NC 3: cv-14-03250; Attachment A, pg. 4, 2). Finally, he
states that Mr. Cunninghams quiet title case (CGC 15-544693) in which Mr.
Cunningham sought to finally determine whether the 2007 TICA or the 2009
CC&Rs and Bylaws controlled after condo-conversion was also a collateral
attack. (Attachment A, pg. 5, 2).
In arguing that every lawsuit Mr. Cunningham takes on the 2009 CC&Rs
and Bylaws and for fraud, Mr. McKay misrepresents material facts and law and he
does this over and over again. First, Mr. McKay deliberately misrepresented the
fact that his Petition to Compel Arbitration (what he call the underlying action)
was taken on the 2007 TICA, not the 2009 CC&Rs. Second, Mr. McKay lies by
omission in failing to mention that his clients signed, executed, and recorded the
2009 CC&Rs and Bylaws and the San Francisco Department of Public Works
approved the condo-conversion of the two-unit building from a tenancy-incommon to separately owned condo. Third, he distorts and suppresses the fact
that there his clients, Mr. Cunningham, the San Francisco Dept. of Public Works,
and the Civil Code section 1351(j) were all in accord that the 2009 CC&Rs were

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the governing agreement after condo-conversion. There was no dispute until he

resurrected the 2007 TICA and insisted that it had not terminated.
At the October 20, 2010 hearing on his petition to compel arbitration on the
2007 TICA and on appeal, Mr. McKay insisted that his claims under the 2007
TICA had nothing to do with the 2009 CC&Rs. But now, he misrepresents his
petition as a disposition of any claims Mr. Cunningham makes on the 2009
CC&Rs as well as the various frauds he committed in rewriting the contracts and
substituting out material terms. Mr. McKay distorts the law and facts by
suppressing the rulings of the appellate court. In their opinion in A131914, the
Court of Appeals for the First District acknowledged that the 2009 CC&Rs were
not relevant, as Attorney McKay asserted, and they made no ruling on the rights
or remedies of the parties under the 2009 CC&Rs. (*See, appellate opinion,
A134206, pg. 21; "Respondent maintained they were bringing claims pursuant to
the TICA, and that the CC&Rs was not relevant to their claims.").
Despite Mr. McKays relentless allegations of collateral attack in his
MTDA, his suit to compel arbitration and Mr. Cunninghams civil suits in the state
and federal where based on different contracts (2007 TICA, 2009 CC&Rs),
involved different issues, and had different rights and remedies under their various
provisions. Mr. Cunninghams rights under the 2009 CC&Rs has never been
determined because Mr. McKay has filed 15 vexatious litigant motions, at the trial
court, on appeal, and in federal court, and done so whether he was represented or
acting in propria persona. In essence, Mr. McKay exploits Mr. Cunninghams
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status as vexatious (declared vexatious twice in family court) to bolster his false
allegation and deliberate misrepresentation of collateral attacks.
Ultimately, Mr. McKay distorts the law related to the notion of collateral
attack. He cannot show a court ruling stating that the 2007 TICA trumped the
2009 CC&Rs and Bylaw because there is no such ruling. Instead, he manipulates
the court and invites them to infer that Mr. Cunningham is collaterally attacking
the arbitration award because he is, after all, a vexatious litigant. Mr. McKay
knows that the legal concepts of res judicata and collateral estoppel preclude
collateral attacks on a judgment or relitigation of issues previously decided. He
also knows that alleging or showing that a party is a vexatious litigant is not
proof of a collateral attack. Mr. McKay wants the court to believe that he proves
collateral attack by virtue of Mr. Cunninghams status as vexatious. This is a
deliberate distortion of the law and evinces his intent to mislead the court.
Mr. McKay, a licensed attorney for over 35 years, knows that the doctrine
of collateral estoppel and res judiciata have specific requirements that must be
satisfied. (Issue and claim preclusion (collateral estoppel and res judicata) have
specific requirement that must be satisfied before preclusion can be found.;
McCuttchen v. City of Montclair (1999) 73 Cal. App. 4th 1138; litigants must
have a full and fair opportunity to present their case for res judicata to apply,
quoting 7 Witkin, California Procedure, Judge 339, 4th ed. 1997). Mr. McKay
knows that there has no determination of the parties rights under the 2009
CC&Rs or on the issue of his fraud because he has filed 15 vexatious litigant
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motions against Mr. Cunningham and had the suits dismissed under section 391.4
before there could be a determination on the merits.
Mr. McKay lies by omitting the fact and the suppressing any mention of the
law that a dismissal under the Vex. Litigant Statute for failure to post security is
not a determination of the merits of a case. (CCP section 391.2). He knows that
issue preclusion requires that he satisfies certain requirements. Instead, he
misrepresents the law insinuating that hes satisfied those requirements by a mere
showing that Mr. Cunningham was declared vexatious. However, the doctrine
only prevents a party who has had a full and fair opportunity to litigate a particular
issue in a prior proceeding from relitigating it in a subsequent proceeding. (7
Witkin, Cal. Procedure (4th ed. 1997) Judgment, 339, p. 894.)
"A prior determination by a tribunal will be given collateral estoppel effect
when (1) the issue is identical to that decided in a former proceeding; (2)
the issue was actually litigated and (3) necessarily decided; (4) the doctrine
is asserted against a party to the former action or one who was in privity
with such a party; and (5) the former decision is final and was made on the
merits." (Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329, 1339,
79 Cal. Rptr.2d 763.)

Mr. McKay knows that the issue at the October 20, 2010 hearing had nothing to
do with the 2009 CC&Rs and was limited to the narrow issue of whether there was
a binding arbitration clause. (The only question implicated by the petition to
compel arbitration is whether the arbitration agreements should be specifically
enforced. Rosenthal v. Great Western Bank Fin. Securities (1996) 14 Cal. 4th
394, 412). Mr. McKay knew that an arbitrators power to provide remedies was

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restricted to the contract on which the parties were compelled into arbitration.
(The powers of an arbitrator derive from, and are limited by, the agreement to
arbitrate. Moncharsh v. Heily & Blas (1992) 3 Cal.4th 1, 8). Mr. McKay know
that the 2007 TICA provides for the forced sale of a defaulting Cotenants
cotenancy share, not a condominium.
Nevertheless, Mr. McKay substituted out the material term cotenncy
share and Cotenant and substituted in condominium. (*See, Attachment Ac,
Mr. McKays Exhibit A, the Judgment for a forced sale of a condo in
accordance with section 14.7 of the TICA). In doing this, he rewrote the 2007
TICA, the 2009 CC&Rs, and great swaths of the Civil Code. He knew that under
the California Subdivision Map Act that the parties Declaration (2009 CC&Rs
and Bylaws) is the governing document after condo-conversion. Mr.
Cunningham has been pointing that out to him for almost six years. In short, Mr.
McKay now heaps new frauds on to his previous frauds. His assertion that Mr.
Cunningham is collaterally attacking the arbitration award is a deliberate
distortion of fact and law to cover up his initial fraud of suing on the defunct 2007
TICA after condo-conversion and his fraud of substituting out material terms
(when he drafted the arbitration award for the arbitrators signature).
The fact that the arbitrator did not notice or catch Mr. McKays fraudulent
substitution does not transform his fraud into a valid order or make it final. Yet,
Mr. McKay suggest that it does. (Code of Civil Procedure section 473(d); A void
judgment may be challenged at any time. (Heidary v. Yadollahi (2002) 99 Cal.
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app. 4th 857, 862; Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228,
1230; As we will discuss, we find that the amended judgment was and is void, as
is the order denying plaintiffs subsequent motion to vacate the amended
judgment, and that a void judgment or order may properly be attacked at any
time, directly or collaterally. We also conclude that the doctrine of res judicata
does not apply to void judgments or orders.).
CONCLUSION
The ultimate fraud and deceit upon the court here is that Mr. McKay
resurrected the 2007 TICA after condo-conversion because it provided him
certain remedies he wanted. First, the 2007 TICA, unlike the 2009 CC&Rs,
provided a binding mandatory arbitration provision and a waiver of the right to a
jury trial and extensive discover. Second, the 2007 TICA provided a forced sale
remedy against the defaulting Cotenant which provided that the prevailing
party could recover of all fees incurred. By suing on the 2007 TICA, Mr. McKay
could recover all his fees (over $700,000 billed) and his clients could get rid of a
co-owner who was upset about their extensive unpermitted work (moving a gas
furnace and various gas and electric lines and putting it under the stairs in
apparent violation of fire codes). The arbitration also precluded extensive
discovery that would have allowed Mr. Cunningham to show that Mr. McKays
clients (Mr. Coombs and wife Ms. Woods) committed bank fraud by failing to
disclose the unpermitted work when they sought to refinance. (Aviation Data v.
American Express Travel Related Services (2007) 152 Cal. App. 4th 1522,
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quoting Riggs v. Palmer (1889) 115 N.Y. 506, 511 N.E. 188, [N]o one shall be
permitted to profit by his own fraud, or take advantage of his own wrong, or to
found any claim upon his own iniquity, or to acquire property by his own crime.)
The fact that the forced sale remedy was obsolete and irrelevant because
Mr. Cunningham and Mr. McKays clients had owner-occupied their units for a
year, submitted their condo-application and their $10,000 fee to the SF Public
Works Dept., had a condo-inspection by the SF Building Department, recorded
their Declaration with the SF Assessors Office, and had their application
approved by Bruce Sturris of the SF Department of Public Works did not deter
Mr. McKay from committing his fraud. Mr. McKay and his clients wanted to
blitzkrieg the case through arbitration before Mr. Cunningham could expose their
various frauds. Mr. McKay has billed over $700,000 in fees, which is almost four
times the amount of Mr. Cunninghams $170,000 share of the mortgage and 120
times the alleged unpaid property expense of $5,645 that was the pretext for
Mr. McKay suit. He now wants to dismiss the appeal of the order confirming the
sale so that Mr. Cunningham cannot get a chance to expose his frauds or overturn
the $700,000 in fees in pillaged from the $800,000 of equity Mr. Cunningham
had in his condominium.
For these reasons, Mr. Cunningham requests that the State Bar conduct a
full evidentiary hearing on the matters of Mr. McKays fraudulent conduct and
take the steps to disbar him for his criminal conduct after he has provided
restitution to the aggrieved parties.
Complaint Against Attorney John Scott McKay, pg.25

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TABLE OF ATTACHMENTS
Attachment A

Mr. McKay's Motion to Dismiss Appeal

6/30/15

Pre-filing Order
Attachment B

Close of Escrow Documents

Attachment C

Kevin Singer's First EJ-130 Eviction form

9/23/14

Attachment D

Receivers Report/Second EJ-130

9/29/14

Attachment E

Transcript from Federal Court (DC ND

cv-03250 WHA)

Complaint Against Attorney John Scott McKay, pg.26

6191115

1/8/15

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ATTACHMENT A

ATTACHMENT A

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A144930

IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION TWO

MICHAEL COOMBS, et al.,

Plaintiffs and Respondents,
v.
ARCHIBALD CUNNINGHAM, et al.,
Defendant and Appellant.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. A144930

Superior Court for the City
& County of San Francisco
No. CFP-10-510760
NOTICE OF APPEAL
DATE: 4/1/15

_______________________________
RESPONDENTS MOTION TO DISMISS APPEAL;
MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATIONS OF J. SCOTT MCKAY AND MICHAEL
COOMBS
_______________________________

J. SCOTT McKAY, ESQ., STATE BAR NO. 95799

McKAY & LEONG
2175 N. California Blvd., Suite 775
Walnut Creek, CA 94596
Telephone: (925) 932-6095
Fax: (925) 932-5434
Attorneys for Plaintiffs and Respondents
Michael Coombs and Tamara Woods

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TABLE OF CONTENTS
PAGE
MOTION TO DISMISS APPEAL............................................................................1
MEMORANDUM.....................................................................................................2
A. Factual Background..................................................................................2
B. This Appeal Should Be Dismissed Based
on Cunninghams Contempts..............................................................9
DECLARATION OF J. SCOTT McKAY..............................................................13
DECLARATION OF MICHAEL COOMBS.........................................................23

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TABLE OF AUTHORITIES
PAGE(S)
CASES
Tms, Inc. v. Aihara (1999) 71 Cal.App.4th 377......................................9, 12
STATUTES
California Code of Civil Procedure 391.1-391.4.......................3, 5, 14, 16
California Code of Civil Procedure 568................................................7, 20
COURT RULES
California Rules of Court, Rule 8.57...........................................................21
California Rules of Court, Rule 8.108.........................................................22

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MOTION TO DISMISS APPEAL
Plaintiffs and respondents Michael Coombs and Tamara Woods
(collectively, Coombs) move this Court to dismiss this appeal of defendant and
appellant Archibald Cunningham on the ground that Cunningham is in contempt of
court for his willful failure to comply with (1) a court order requiring him to
answer certain post judgment interrogatories, and (2) the injunction issued as part
of the judgment which requires Cunningham to cooperate in, and enjoins him from
interfering with, the sale of his condominium, which sale is ordered by such
judgment, and (3) a court order requiring Cunningham to vacate and stay away
from his condominium so that it could be sold.
This motion is based on the Memorandum and Declarations of J. Scott
McKay and Michael Coombs.

Dated: June 30, 2015

McKAY & LEONG

____________/s/________________
By: J. Scott McKay
Attorneys for Plaintiffs and
Respondents Michael Coombs and
Tamara Woods

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MEMORANDUM
A. Factual Background
A judgment in favor of Coombs and against Cunningham was entered in the
underlying action (San Francisco Superior Court Case No. CPF-10-510760, the
Underlying Action) on April 13, 2011. Such judgment (Judgment) granted
Coombs several types of relief. It granted money damages, ordered the sale of a
condominium owned by Cunningham, granted injunctive relief, and granted
certain costs and attorneys fees. A copy of such Judgment is attached hereto as
Exhibit A.
Cunningham appealed such Judgment in Court of Appeal Case No.
A131914. On October 24, 2013 the Judgment was affirmed in all respects in the
Court of Appeals decision.
While the appeal of the Judgment was pending, Cunningham went to
extraordinary lengths to avoid and delay enforcement of such Judgment. He
several times requested a stay from the trial court, which requests were denied. He
sought a stay of the Judgment from this Court, by way of a petition for a writ of
supercedeas, which petition was denied. He filed another trial court action
(Cunningham v. Woolard, et al, San Francisco Superior Court Case No. CGC511994, the Second Action) to collaterally attack the Judgment in the

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Underlying Action. That Second Action was dismissed when Cunningham, a
vexatious litigant, failed to provide security as ordered by the court pursuant to
CCP 391.1-391.4. Cunningham filed three appeals (Case Nos. A133560,
A134206, and A134759) from that dismissal. Cunningham subsequently
dismissed Case No. A133560. On the other two appeals, this Court again affirmed
the trial court decision in the Second Action in all respects.
Getting nowhere in the state courts, Cunningham filed a bankruptcy for the
stated purpose of trying to avoid and delay enforcement of the Judgment in the
Underlying Action. In the bankruptcy proceeding Cunningham objected to the
debt created by the Judgment in the Underlying Action, but the bankruptcy court
abstained from stepping into the state court proceedings. Cunningham dismissed
such bankruptcy case after Coombs obtained relief from the bankruptcy stay.
Cunningham then in October 2013 filed a federal district court action
(Cunningham v. McKay, et al, United States District Court, Northern District of
California, Case No. 3:13-cv-04627) again seeking to collaterally attack the
Judgment in the Underlying Action. That federal case was also dismissed, on
grounds of lack of subject matter jurisdiction and res judicata. Cunningham
appealed that dismissal as well, which appeal is pending. In that federal appeal,
Cunningham filed a motion for a stay, asking the Ninth Circuit to enjoin the San

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Francisco Superior Court from enforcing the Judgment against Cunningham. That
motion was denied.
His first federal action having been dismissed without leave to amend,
Cunningham just turned around and filed a second federal action, Cunningham v.
Singer, Northern District of California Case No. 3:14-cv-03250. In that federal
action Cunningham again tried to collaterally attack the Judgment and other orders
and determinations of the state court in the Underlying Action. In order to block
the sale ordered by the already final Judgment, Cunningham both recorded a lis
pendens, and filed a motion for an injunction to prohibit enforcement of the
Judgment. Coombs again filed a motion to dismiss on grounds that the district
court lacked subject matter jurisdiction to review state court decisions, and on
grounds of res judicata. That motion was granted and the case was dismissed. The
district court also designated Cunningham as a vexatious litigant under federal law.
Cunningham appealed that dismissal to the Ninth Circuit, which appeal is still
pending.
Not even waiting for the hearing or decision on the motion to dismiss his
second federal action, Cunningham just turned around and filed a third federal
action, Cunningham v. Singer, Central District of California Case No. 2:14-cv09104, in essence raising the same claims as were raised in the second federal

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action, but in the form of a class action. To block the sale Cunningham again filed
a motion for an injunction. Coombs again filed a motion to dismiss on grounds
that the district court lacked subject matter jurisdiction to review state court
decisions, and on grounds of res judicata. That motion was granted and such third
federal action was dismissed.
Cunningham then returned to the state court, and in March 2015 filed a
third state court action (Cunningham v. Singer, San Francisco Superior Court Case
No. CGC-15-544693) which again seeks to collaterally attack the Judgment in the
Underlying Action. Cunningham again recorded a lis pendens in connection with
that action so as to block the court ordered property sale. That action is still
pending at the moment, but has been stayed because Cunningham has again, as a
vexatious litigant, been ordered to provide security as a condition of proceeding
with such action, under CCP 391.1-391.4.
While these various collateral attacks on the Judgment in the Underlying
Action were pending in the state and federal courts, Cunningham filed a series of
appeals and petitions in the Court of Appeal and in the Supreme Court. So far
Cunningham has filed fifteen appeals and writ proceedings in the state Court of
Appeal, and six proceedings in the state Supreme Court. All of those proceedings
have been concluded other than the present appeal. Cunningham has not prevailed

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in any of the appellate proceedings.
Along with Cunninghams never ending efforts to relitigate issues,
Cunningham has refused to comply with orders made by the court in the
Underlying Action in order to impede enforcement of the Judgment against him.
First, in an effort to enforce the Judgment in the Underlying Action,
Coombs served a set of post judgment interrogatories on Cunningham.
Cunningham did not respond to these interrogatories in any way. Coombs
therefore made a motion to compel answers to such interrogatories. Cunningham
did not oppose such motion. On January 7, 2014, the Court ordered Cunningham
to answer the interrogatories and hand serve such answers within 10 days of
service of the order. The order was served on Cunningham by mail on January 8,
2014. See order and proof of service, Exhibit B hereto. Answers were thus due,
by hand delivery, on January 23, 2014. No answers have ever been provided by
Cunningham. Cunningham was clearly available to answer such interrogatories, as
he has filed many pleadings in various cases, and has appeared at numerous state
and federal court hearings, since the due date for such answers.
Second, Cunningham has also failed and refused to comply with the
Judgment in the underlying action. That Judgment (Exhibit A) requires the sale of
Cunninghams condo. Such Judgment also includes an injunction that requires

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Cunningham to cooperate in, and not do anything to interfere with such sale. Once
that Judgment became final, Coombs pursued enforcement of the Judgment,
including the sale of Cunninghams condo. The superior court appointed a
receiver (Kevin Singer) specifically to conduct the sale. See Exhibit C.
The Judgment provides that the sale is to be conducted in accordance with
the Forced Sale provisions (section 14.7) of the parties Tenancy In Common
Agreement (the TICA). Under sections 14.7(C) and (D) (a copy of section 14.7
is attached hereto as Exhibit D), the first step in that process is to obtain an
appraisal on Cunninghams condo, and then list it with a real estate broker at the
appraised value. Cunningham has continually vowed that he will not allow his
condo to be sold under the Judgment, and refused the receivers requests for access
to the condo to obtain the appraisal and list the condo with a broker. The receiver
therefore filed a motion asking the superior court to grant the receiver possession
of the condo pursuant to CCP 568, to issue a writ of possession so as to allow
removal of Cunningham from the property, and for an order requiring Cunningham
to stay away from the property. That motion was granted by the order that is
attached hereto as Exhibit E, which order noted (at p. 2) that Cunningham was
interfering with the receivers efforts to sell the condo as ordered, and that no
lesser means are feasible for the receiver to be able to sell the property.

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Cunningham was removed from the condo by the San Francisco County
Sheriff on November 6, 2014, but he promptly returned to the condo and stayed
there, coming and going as he pleased, despite his removal and despite the court
order (Exhibit E) requiring him to stay away. Cunningham has been arrested three
times based upon his violation of such order, which order he continues to defy.
Coombs set up a security camera above the area where the front doors to
both condos are located, and has monitored Cunninghams continued presence at
the condo that Cunningham was removed from. Cunningham threatened to
remove the security camera, and shortly thereafter it was indeed removed.
Coombs then set up the security camera behind a window above the front doors, so
that Cunningham could not steal it again. Since that time Cunningham keeps spray
painting the window so as to block the cameras view and conceal his presence.
Coombs has videos of Cunningham continuously coming and going at the condo,
and setting up a ladder and spray painting the window in front of the camera.
Attached as Exhibit F is a copy of a booking card, provided by
Cunningham, for one of his arrests. Attached hereto as Exhibit G is a copy of an
email from Cunningham saying that he will continue to return to his condo and be
arrested, and that he wants a trial on the matter.
In sum, Cunningham has violated the order requiring him to provide

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answers to post judgment interrogatories, has violated the injunction that is a part
of the Judgment since he has been actively interfering with the receivers efforts to
sell the condo, and has violated the order (Exhibit E) requiring him to vacate and
stay away from the condo.
B. This Appeal Should Be Dismissed Based on Cunninghams Contempts.
There is a long standing rule that the appeal of a party who is in contempt of
court may be dismissed. A case that is right on point is Tms, Inc. v. Aihara (1999)
71 Cal.App.4th 377. In that case, like here, the judgment debtor was served with
post judgment interrogatories, but failed to answer them. The judgment creditor
then obtained an order compelling answers to those interrogatories. The judgment
debtor still did not answer. The judgment debtor had appealed the judgment, and
that appeal was still pending. The Court of Appeal dismissed the appeal based on
the judgment debtors refusal to answer the interrogatories as ordered. The court
cited, at p. 379, a long list of cases holding that the Court of Appeal has the
inherent power to dismiss an appeal by any party who has refused to comply with
orders of the trial court. The court explained that a party cannot ask the assistance
of the court while he stands in contempt of the orders and processes of the courts.
The court further explained that no judgment of contempt is required as a
prerequisite to the Court of Appeals exercise of the power to dismiss. Id. The

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court therefore dismissed the appeal based upon the willful failure to comply with
the trial courts order to answer post judgment interrogatories.
This is precisely the situation presented here. In fact, Cunninghams
conduct is worse here. Cunningham has refused to comply with an order for
answers to post judgment, but he also has a long history of treating the courts and
litigants opposing him with nothing but contempt. As a consequence he has been
repeatedly designated as a vexatious litigant by both the state and federal courts.
He vows that he will stop at nothing to avoid and delay enforcement of this
Judgment, and his refusal to answer these interrogatories is just a part of his much
larger pattern of abusing the legal system.
Cunningham also failed and refused to comply with the Judgments
injunction that requires Cunningham to cooperate in, and not do anything to
interfere with, the sale of his condo. Cunningham denied the receiver access to the
property, thereby blocking the receivers ability to obtain the required appraisal, to
list the property with a real estate broker, or to show the property to brokers or
prospective purchasers, all as contemplated by section 14.7 of the TICA. The
Judgment specifically references the use of the sale procedure under section 14.7,
and the order appointing the receiver directs the receiver to follow such
procedures.

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It should be noted that on April 17, 2014 this Court dismissed
Cunninghams appeal in Case No. A134608 based on his failure to answer the post
judgment interrogatories as ordered. Coombs filed a motion to dismiss that appeal
in February 2014, shortly after Cunningham failed to answer the post-judgment
interrogatories in January 2014 as ordered.
Subsequently, on July 31, 2014, this Court dismissed Cunninghams appeal
in Case No. A142115 based on his contempts of court. By that time Cunningham
had also violated the injunction that is part of the Judgment by denying the receiver
access to the condo as required by section 14.7 of the TICA (which section is
specifically referenced in the Judgment and in the order appointing the receiver).
Faced with these motions to dismiss in those two appellate cases, Cunningham let
the appeals be dismissed rather than obey the court order and the injunction.
Now on this motion to dismiss the present appeal, Cunningham is also in
contempt based on his refusal to vacate and stay away from the condo as ordered
by Exhibit E. This appeal should be dismissed as well, since Cunningham is now
in contempt of not just the orders that the prior appellate dismissals were based on,
but also the more recent order that is Exhibit E. And of course it is apparent that
this appeal is just one more part of Cunninghams pattern of seeking to frustrate
the orders and judgments of the courts by all possible means, legitimate or not.

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Cunningham is unhappy about losing, but his sole recognized remedy is an
appeal. He took his appeal and lost. That is the end of the matter. Cunningham
may disagree with the Judgment, but his disagreement does not give him license to
ignore and violate these final court orders. Under Tms, Inc. v. Aihara,
Cunningham cannot refuse to obey the orders and the Judgment in this matter, but
at the same time seek this Courts assistance by way of an appeal. This is
especially true where the prosecution of this appeal would just further
Cunninghams improper goals of delay and avoidance.
This Court should therefore dismiss this appeal based on Cunninghams
multiple refusals to obey the order compelling answers to post-Judgment
interrogatories, the injunction that is a part of the Judgment, and the order
requiring Cunningham to vacate and stay away from the condo, just as this Court
dismissed Cunninghams appeals in Case Nos. A136608 and A142115.
McKAY & LEONG

Dated: June 30, 2015

/s/
By: J. Scott McKay
Attorneys for Plaintiffs and
Respondents Michael Coombs, and
Tamara Woods

///
///
///
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DECLARATION OF J. SCOTT McKAY
I, J. SCOTT McKAY, declare:
1. I am an attorney licensed to practice in the State of California, and the
attorney of record for plaintiffs and respondents Michael Coombs and Tamara
Woods in this matter.
2. A judgment in favor of Coombs and against Cunningham was entered in
the underlying action (San Francisco Superior Court Case No. CPF-10-510760, the
Underlying Action) on April 13, 2011. Such judgment (Judgment) granted
Coombs several types of relief. It granted money damages, ordered the sale of a
condominium owned by Cunningham, granted injunctive relief, and granted
certain costs and attorneys fees. A true copy of such Judgment is attached hereto
as Exhibit A.
3. Cunningham appealed such Judgment in Court of Appeal Case No.
A131914. On October 24, 2013 the Judgment was affirmed in all respects in the
Court of Appeals decision.
4. While the appeal of the Judgment was pending, Cunningham went to
extraordinary lengths to avoid and delay enforcement of such Judgment. He
several times requested a stay from the trial court, which requests were denied. He
sought a stay of the Judgment from this Court, by way of a petition for a writ of

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supercedeas, which petition was denied. He filed another trial court action
(Cunningham v. Woolard, et al, San Francisco Superior Court Case No. CGC511994, the Second Action) to collaterally attack the Judgment in the
Underlying Action. That Second Action was dismissed when Cunningham, a
vexatious litigant, failed to provide security as ordered by the court pursuant to
CCP 391.1-391.4. Cunningham filed three appeals (Case Nos. A133560,
A134206, and A134759) from that dismissal. Cunningham subsequently
dismissed Case No. A133560. On the other two appeals, this Court again affirmed
the trial court decision in the Second Action in all respects.
5. Getting nowhere in the state courts, Cunningham filed a bankruptcy. In
communications at the time, Cunningham repeatedly stated that he filed this
bankruptcy for purposes of trying to avoid and delay enforcement of the Judgment
in the Underlying Action. In the bankruptcy proceeding Cunningham objected to
the debt created by the Judgment in the Underlying Action, but the bankruptcy
court abstained from stepping into the state court proceedings. Cunningham
dismissed such bankruptcy case after Coombs obtained relief from the bankruptcy
stay.
6. Cunningham then in October 2013 filed a federal district court action
(Cunningham v. McKay, et al, United States District Court, Northern District of

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California, Case No. 3:13-cv-04627) again seeking to collaterally attack the
Judgment in the Underlying Action. That federal case was also dismissed, on
grounds of lack of subject matter jurisdiction and res judicata. Cunningham
appealed that dismissal as well, which appeal is pending. In that federal appeal,
Cunningham filed a motion for a stay, asking the Ninth Circuit to enjoin the San
Francisco Superior Court from enforcing the Judgment against Cunningham. That
motion was denied.
7. Cunninghams first federal action having been dismissed without leave
to amend, Cunningham just turned around and filed a second federal action,
Cunningham v. Singer, Northern District of California Case No. 3:14-cv-03250.
In that federal action Cunningham again tried to collaterally attack the Judgment
and other orders and determinations of the state court in the Underlying Action. In
order to block the sale ordered by the already final Judgment, Cunningham both
recorded a lis pendens, and made a motion for an injunction to prohibit
enforcement of the Judgment. Coombs again filed a motion to dismiss on grounds
that the district court lacked subject matter jurisdiction to review state court
decisions, and on grounds of res judicata. That motion was granted and the case
was dismissed. The district court also designated Cunningham as a vexatious
litigant under federal law. Cunningham appealed that dismissal to the Ninth

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Circuit, which appeal is still pending.
8. Not even waiting for the hearing or decision on the motion to dismiss his
second federal action, Cunningham just turned around and filed a third federal
action, Cunningham v. Singer, Central District of California Case No. 2:14-cv09104, in essence raising the same claims as were raised in the second federal
action, but in the form of a class action. To block the sale Cunningham again filed
a motion for an injunction. Coombs again filed a motion to dismiss on grounds
that the district court lacked subject matter jurisdiction to review state court
decisions, and on grounds of res judicata. That motion was granted and such third
federal action was dismissed.
9. Cunningham then returned to the state court, and in March 2015 filed a
third state court action (Cunningham v. Singer, San Francisco Superior Court Case
No. CGC-15-544693) which again seeks to collaterally attack the Judgment in the
Underlying Action. Cunningham again recorded a lis pendens in connection with
that action so as to block the court ordered property sale. That action is still
pending at the moment, but has been stayed because Cunningham has again, as a
vexatious litigant, been ordered to provide security in order to proceed with such
action, under CCP 391.1-391.4.
10. While these various collateral attacks on the Judgment in the

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Underlying Action were pending in the state and federal courts, Cunningham filed
a series of appeals and petitions in the Court of Appeal and in the Supreme Court.
So far Cunningham has filed fifteen appeals and writ proceedings in the state
Court of Appeal (Case Nos. A131914, A133560, A134206, A134759, A136608,
A140675. A140675, A140958, A141788, A142115, A142672, A144930,
A145036, A143425, and A14335). The last two of these listed Court of Appeal
cases were filed by Cunningham supposedly on behalf of Humberto Ruiz, a
purported roommate of Cunningham. Yet Ruiz is not a party to the Underlying
Action, no orders in that action impacted Ruiz, and it was quite apparent that
Cunningham was using Ruiz as a puppet in order to attack the order requiring
Cunningham (and only Cunningham) to vacate the condo. Cunningham also filed
six proceedings in the state Supreme Court (Case Nos. S200833, S214578,
S214578, S214763, S218853 and S224173). The Supreme Court lists Case No.
S214578 twice on its site, as one relates to Court of Appeal Case No. A134206,
and the other relates to Court of Appeal Case No. A134759. All of these appellate
proceedings have been concluded other than the present appeal. Cunningham has
not prevailed in any of the appellate proceedings.
11. Along with Cunninghams never ending efforts to relitigate issues,
Cunningham has refused to comply with orders made by the court in the

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Underlying Action, so as to impede enforcement of the Judgment against him.
12. In an effort to enforce the Judgment in the Underlying Action, Coombs
served a set of post judgment interrogatories on Cunningham. Cunningham did
not respond to these interrogatories in any way. Coombs therefore made a motion
to compel answers to such interrogatories. Cunningham did not oppose such
motion. On January 7, 2014, the Court ordered Cunningham to answer the
interrogatories and hand serve such answers within 10 days of service of the order.
The order was served on Cunningham by mail on January 8, 2014. See order and
proof of service, true copies of which are attached hereto as Exhibit B. Answers
were thus due, by hand delivery, on January 23, 2014. No answers have ever been
provided by Cunningham. Cunningham was clearly available to answer such
interrogatories, as he has filed many pleadings in various cases, and has appeared
at numerous state and federal court hearings, since the due date for such answers.
13. On April 17, 2014 this Court dismissed Cunninghams appeal in Case
No. A134608 based on his failure to answer the post judgment interrogatories as
ordered.
14. Cunningham has also failed and refused to comply with the Judgment
in the Underlying Action. That Judgment (Exhibit A) requires the sale of
Cunninghams condo. Such Judgment also includes an injunction that requires

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Cunningham to cooperate in, and not do anything to interfere with, such sale. That
Judgment became final on January 22, 2014 when this Court issued the remittitur
in Court of Appeal Case No. A131914. Once that Judgment became final,
Coombs pursued enforcement of the Judgment, including the sale of
Cunninghams condo. The superior court appointed a receiver (Kevin Singer) to
conduct the sale. A true copy of the order appointing the receiver is attached
hereto as Exhibit C.
15. The Judgment and the order appointing the receiver provide that the
sale is to be conducted in accordance with the Forced Sale provisions (section
14.7) of the parties Tenancy In Common Agreement (the TICA). Under section
14.7(C) and (D) (a true copy of section 14.7 is attached hereto as Exhibit D), the
first step in that process is to obtain an appraisal on Cunninghams condo, and then
list it with a real estate broker at the appraised value. Cunningham has continually
vowed that he will not allow his condo to be sold. Cunningham refused the
receivers requests for access to the condo to obtain the appraisal and list the
condo with a broker, thereby effectively blocking the court ordered sale procedure.
16. On July 31, 2014, this Court dismissed Cunninghams appeal in Case
No. A142115 based on his contempts of court. By that time Cunningham had not
only refused to answer the post judgment interrogatories as ordered, but had also

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violated the injunction that is part of the Judgment by denying the receiver access
to the condo as required by section 14.7 of the TICA (which section is specifically
referenced in the Judgment and in the order appointing the receiver).
17. To proceed with the sale, the receiver filed a motion asking the superior
court to grant the receiver possession of the condo pursuant to CCP 568, to issue
a writ of possession so as to allow removal of Cunningham from the property, and
for an order requiring Cunningham to stay away from the property. That motion
was granted by an order dated August 20, 2015, a true copy of which is attached
hereto as Exhibit E. Such order noted (at p. 2) that Cunningham was interfering
with the receivers efforts to sell the condo as ordered, and that no lesser means are
feasible for the receiver to be able to sell the property.
18. Pursuant to Exhibit E, Cunningham was removed from the condo by
the San Francisco County Sheriff on November 6, 2014, as Cunningham has
acknowledged in his complaints about such eviction. Yet Cunningham promptly
returned to the condo and stayed there, despite his removal and despite the court
order (Exhibit E) requiring him to stay away. Cunningham has been arrested three
times based upon his re-entry into the condo after his removal by the sheriff. I was
present for two of those arrests, as the officers twice arrested Cunningham at the
court when Cunningham was present for hearings. Cunningham has also

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complained to me about a third arrest, but I do not know the particulars.
19. Attached as Exhibit F is a true copy of a booking card provided to me
by Cunningham concerning one of his arrests. Attached hereto as Exhibit G is a
true copy of an email from Cunningham saying that he will continue to return to
the condo and be arrested, and that he wants a trial on the matter.
20. On this third motion to dismiss the newest appeal, Cunningham is also
in contempt based on his refusal to vacate and stay away from the condo as
ordered by Exhibit E. This appeal should be dismissed as well, since Cunningham
is now in contempt of not just the orders that the prior appellate dismissals were
based on, but also the more recent order that is Exhibit E.
21. As required by California Rules of Court, Rule 8.57, the following facts
are stated:
a. The nature of this action is a petition to compel arbitration of a
contractual dispute between the parties, and then a petition to confirm the
arbitration award.
b. The attorney of record for Michael Combs and Tamara Woods is J. Scott
McKay of McKay & Leong, 2175 N. California Boulevard, Suite 775, Walnut
Creek, California 94596, 925-932-6095. The attorney of record for Archibald
Cunningham is Patricia J. Barry, 634 Spring Street, Suite 823, Los Angeles,

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A144930
California 90014, 213-995-0734.
c. This appeal is from an order dated March 23,2015, which approved the
terms of the sale of Cunninghams condo by the receiver. A formal written order
was filed on March 23, 2015, and written notice of such order was served on
March 24, 2014June 3, 2014.
d. There has been no extension of time to appeal under Rule 8.108.
e. The filing date of the notice of appeal was April 1, 2015. Such notice of
appeal was filed only in the San Francisco Superior Court, in Case No. CPF-10510760.
f. Cunninghams designation of the record was filed on April 30, 2015.
g. According to the San Francisco Superior Court clerk, the record is in
progress but has not yet been completed or certified. There is no order extending
time to prepare the record.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on the
30 th day of June, 2015.

/s/
J. Scott McKay

Page 22

98

99

A144930
DECLARATION OF MICHAEL COOMBS
I, MICHAEL COOMBS, declare:
1. I am one the plaintiffs and respondents herein.
2. This litigation concerns a two condominium property located at 14871489 McAllister Street in San Francisco. The front doors to the two condos are
right next to each other on a front porch.
3. Once Cunningham was removed from his condo by the San Francisco
Sheriff on November 6, 2014, I anticipated that Cunningham would return to the
premises despite the order requiring Cunningham to stay away from the property.
I therefore set up a security camera near the front doors of the two condos. I
reviewed the security camera video and indeed Cunningham simply returned to his
condo despite his removal, and would come and go as he pleased. I have many
hours of video from the security camera showing Cunningham coming to, staying
at, and leaving from, the condo on a daily basis. The camera footage covers most
of the period from Cunninghams removal by the sheriff on November 6, 2014
through just recently.
4. Cunningham repeatedly objected to the camera, which showed
Cunningham violating the court order requiring him to vacate and stay away. He
///

Page 23

99

100

A144930
said that if I did not remove the camera he would have somebody remove it.
Shortly after those statements the camera was taken down by somebody other than
me.
5. I then located another security camera to an area behind a window above
the front door of my condo, so that Cunningham could not take it again. I then
continued to monitor Cunninghams continual presence, which was continual.
Cunningham then, since he could not get to the camera, started spray paining the
glass in my window, so as to block the cameras view. Since that time I have
periodically cleaned the paint off the window, and then Cunningham repaints the
window. The footage from the camera clearly shows Cunningham painting the
window each time he does so, since he stands on a ladder maybe two feet from the
window when he does his painting, in full view of the security camera.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on the
24 th day of June, 2015.

/s/
Michael Coombs

Page 24

100

101

EXHIBIT A TO REST'ONDENTS'
MOTION TO DISMIISS APPEAL

EXHIBIT,A TO RIESP,ONDIDNTS'
MOTION TO DISMISJS APPE,AL

101

102
I
2

McKAY & L,EONG

J. Scott McKay, Esq.,#95799
Linda I{. Leong, Ilsq., #203500
2175 N. Califbmia Blvd., Suite 775

Walnut Creek, CA 94596

(925) 932-6095
l'clephone :
Facsimile: (925) 932-5434

Attomey fbr Plaintiffs

MICHAEL CIOOMIIS and
]'AMARA V/OODS

,H",,{",L
APR

En
ZUtt

CLERKOF

av,gpffi

7
8

IN 1'I'IIJ SIJPTIRIOR COURT OFTHE STATE OT.'CALIT,ORNIA

IN AND FOI{ TIIII CIlt'Y .,t,ND CCIUN]"Y OF SIAN FRANCISCO

UNLIMIl'ED CIVIT,

l0

JUTTI

SDICTION

ll
T2

CASE NO. CPF-10-510760

MICI IAEI- COOMBS:'|AMARA WOODS,

la

I'}etitioner(s),

IJ

.IUDGMI]NT' CONFIITMING ARI]I'f RA'f ION

t4

AW,\RI)

15

l6

AI{CI IIBA I.D CiJNNINCiFIAM; and DOES

to 20. irtclusivc,

11
tt

Responclent(s).

18

19

20
21

22
23

fhe arbitr"ation arvard of arbitrator V. Genc N{cDonald daled March 3.201I having becn
conlrrmed blt ordcr of this court datecl April 12,201l:,

I'l' IS ADJUDGIiD that pctitioners

Nl

ichael Coornbs and 'famara Woods rshall havc judgnrcnt

against respondent Archibald Cunningham on the following terms:

l.

M.r. Cunningham's condomriniurn, locatcd at and knou'n as 1489 McAllister Street. San

forlhlvith such sille shall

L+
^A

Francisco, Califbnia is to be sold

25

I-'orceci Salc pr:occdurcs sct

26

Agreemept trctrveen the parties to the extcut possibli:.

27

condominiurn is attached hereto as Ilxhibit,tr.

28

be conducted in conlbrmity with the

'fenancy In Cotnmon
fbrth in sectiot-t 14.7 of tlre October 2007
-fhr:

legal rJescription fbr Mr. Cunningham's

2. Attinjunction is hereby issuecl wh:ch requires ttrat Mr. Cunningharn

JL-]DGMEN'f CONF IRMING ARBI']-RATION AWAI{D

_1_

cooperate in the

102

103
I

listing. marketing, and sale o1'his condorninium in accordance with the provisions of section 14.7 of

the Tenancy In Cclmmon Agreement, and which prohibits Mr. Curnningham, or anybody acting in

concert with him, from interfering in any wa)' with such Forced Sale.

3.

Any judgrnent liens on either Mr. Cunningham's condlominium or on petitioners'

conclominiunt (1487 McAllister Strcet, San Irrancisco, California) wliich arise from any judgment
o

against Mr. Cunningham, shall be paid from the proceeds h'om the sale of Mr. Cunningham's

condominiurn to the cxtent

Cunningham's portion o1'the shared rnortgage, costs of sale, and any other sums as provided in

section 14.7 of the Tenancy In Commotr Agn:ement.

4. Clairnants

l0

thaLt

therc are fun<ls available f}om such salc allcr the payme nt of Mr.

are awarded $6,564.62 as Mr, Cunningham's unpaid poltioti of the sltarcd

ll

Propcrly expienscq! $37,460.0t1as attorncys Ices, $10,597.29 as cc,sts, and $,5,000.00 in liquiclatccl

l2

danrages. In accordance u'ith sections 1,1.7(A) and 14.7(II) of the'fenancy In Comnron Agreetrtcnt.

1a

l-)

if

l4

judgment proccdures, any unpaid po(ion of such sums shall be paid to clairnants from thc proccecis

l5

fiom the sale of Mr. Cunninghrarn's conclonrinium to the extcnt that therc arc funcls available lionr

16

such salc alicr the pal,mcnt of thc itenis spec;fred in llarag.raph 3 eLbove.

11

tl

such sums have not bcen previously rccovcred by claimants thrrtugh any euforccureut of-a

5. Claimants arc awarrled thc further sum of $669 53, rcpncsenting intcrest on the nlonetarv

18

portion of thr: arbitration award, I}om tlic datc of the Marclh 3, 2011 award through tl're datc o1'cntr1'

l9

of this .ludgment.

20
11

22
23

6. Claiprants afe awarcled thc further

sum of $40.C10 as the costs incurred bv petitioncrs irr

connection with the petition to conflrm the ai'bitration award.

7. Claimarits are awarded thc further sum of $4,5t10.00

as and for attorneys fee s incLrrrcd b1'

petitioners in conncction with the petition to confirm tlie arrbitrati,rn award.

24
25

'.--

26
27

Dated:

+,1

s/t

udge

28

JUDGMENT

CICNF

l/

k#%
f thc Superior

Court

RMING,{RBI.I.RATIOI! AWARD

-2-

(/
103

104

EXII{IBIT ('A''

/\ll that rs-a] prol)ertir 511.,or.,t in tirrl Cil.y iirrcl Cor.tuty oi Sa:r Frarrcist;o, Statc of
Calif<lrniei, rlescribecl i"rs follorNs:

Parcel One:

Llnjt 1z{89) [,ot No. 60) of pnrl:el A of l)arcel lt4ap N,:1. 5504, fi.led Autgust 3,
2009. in B1lok 1i0 ol'C<:r'r<lomirrir-rm Marps, l)ap;es l9b ancl 197 Olilcial ltecords o1 Sert't
firerllt:isc:o O:tunty Rccorcl s ("OtIicial llccorcls"), as suc:h Ulrit is shotl'tt otr [trc
Condortri:riLirn l)iat'r ("P)an"), attacl.rcd as an exhibit to thc Dec:lilrlrtion of Restrictiotrs
lbr I487- 1.1,59 McAllister" Streel ("Declaration"), recorclecl Sc1:l:crnber 30, 2009, Scries
No. 2OO9 - Ii\32.4.'l () O tficral Jiccorcis.

C<lndopripir.rn'r

Parcel Two:

An r,rncliviclecl ir1'l'o irltcl"est as Lcn?utt in corur:ron in atrcl tt.r t)re Corntrl<ln /vt:u l5'ing
q,ilhin saicj Parc:el A of l:)arccl Mall No. 550-l , as slic>wn ort the Plrur ernd defined irr tlr<:
Dcclari.rtiori. exr. e1:titlg a:td rerscr-ving theleit-ortr the f<-rllotl,ing,:

A.)

All riL)lt(li)rrrinrr.trrr ttnit.s sirou,n on t.tre F']art and dcrscrilted itr tite Dt:claration.

fl.)

Iixr..}r.r

o)

Norr.-exclr.rsivc easenteltt for use, etrjo.yment, ingrcss, eg,rcss an(l sl.tppoll in atrcl
to tfre Cornrn,ln lrrca as shown on tlre lr)lan ernd describecil in Llre lJeclaration.

r).)

All casertteutr; as clclrtrred in iht: Dt:ctrit'ation,

sivc Usc (lornnror) Arrras lirr ltcssession, Llsrt all(l ert-io)tntort of t.ltrts;t'z:rt:ils
ciesillnatccl on Lhc Plart atrrl clc{incd it-r lhe: Dcclat'crtiotr.

Parcel Thrcel
l,lort-ext:lusivc c:ilserrrents lir:r'r.rsc, t:njo.yrnerrt., ingress, ()gress trncl sttppot'1 itt a:rclr tr"l tl-re
gornti1op /u'ca, ils sltos,r'r on t-)re Plan eirrtl c,escritlcd in ltre Declararicltr, for the bcnclit oJ
l)ar<:el Ont: Irr:t'<:inatrovt:.

Parcel Four:
Ijxr:lrrsjve Lrse eitsentcllts, aii shorvn orr the' Plnn an'l des,.:ribecl ir-r the Declar'ation,
i:i.pl)urt(rr)al'l.l Lo l)arccl One hereinabove lbr the possession, us<: atrd enjo\rlnenl of

/\.)

Slorrrge At'ea S- 1489

APN's:

Lot 020, Block 0777 (portioll-cul'rerlt tax 'rearl

l..ot DC:0, Bloc:l,l 0777 (frr.trlre tax yearr)

104

105

EXHIBIT [I TO RESPONDENTS'
MOTION TO DISIMTSS APPE.AL

EXI{IBIT B TO RIDSPONDIINTS'
MOTION TO D]ISMISS AP]PEAL

105

fr

106

ctv-130
FOR COURT USE ONLY

ATTORNEY OR PARry WITHOUI ATTORI{EY fNano, Stata Bat number. and addrossJ

J. Scott McKay, Esq. SEIN 95799

cKAY & LEONG

2175 N. California Blvd., Suirc 775

Walnut Creck,
TELEPHoNE
E-MAIL ADDRESS

CA 94596
No.

(925) \)32-609

FAX

r\o (oprrona(g25) 93.2_5434

(Oplonalll

,h,",&,,,",0
$"J,
County ol San Franclgoo

fyligfi6el COOmbS and Tamara WOOdS

COUNry OF Sr\N FRANCISCIO
400 MCAlliSter StrCet

ATToRNEv FoR 1,vamo;:

.IAN

SUPERIOR COURT OF CALIFORNIA,

srREErADoREss:
MAILING ADDRESS

crwANDzrPCODE

San Francr;ico.

cA

94102

BRANCH NAME

PLAINTI FFlPETITIONER:

DEFENDANT/RESPON DENT:

MICI{,AEI- COOM,BS. ct al.

I-I I I3 AI,D CUI\IN INGI-IA M

A RC

CASE NUMBERI

NOTICE OF ENTRY OF "IUDGMENT

OR ORDER

17)

(Check

cASE f-l
demanded
$25,000)

uNLrMtrED
(Amount
exceeded

TO ALL PARTIES

cPF-l0-5I0760

r-rrrlrrEo cAsiE
(Amounl dem;rnded was
$25 000 or les;s)

1.

A judgment, decree, or order was entered in this action on (dizte):.

2.

A copy of the judgment, drcree, or order is attached to this notice,

.'anuary 7 .2014

Date:January 8,2014

J. Scott

McKay_

(rYPE oR PRrNr NAME

oF fy_l lrtonuey

[--l

ennrv wtrHour ArroRNE\,)

Pego 1 of
Form A!,provod

tq Optional

Use

Judicial Co!ncil of Caiilornia

CIV-130 lNew January 1,20101

coudinlo.ca gov

NOTICE OF ENTRY OF JUIDGMENT OR ORDE,R

106

fr

107
0OOMBS, et al.

PLAINTIFF/PETITIONER
DEFENDANT/RESPONDENT:

CUNNINGHAM, et al
PROOF OF SIERVICE BY FIRIIT.CLASS MAIL
NOTICE OF EhITRY OF JUDGMIENT OR ORDER

(NOTE: You cannot serue the Notice of Entry of Judgment or Order if you are a party
the notice must complete thi,s proof of service.)

in the action. The person who senred

1' lamatleastlSyearsoldandnotapartytothisaction. lamaresdentoforemployedinther countywherethemailingtook

place, andmyresidence orbusinessaddress is (:;pecify):2175 N.
California Blvo., Suite 775, Wilnut Creek, CA"94596

z. I served a copy of the Noticer of Entry of Judgment

or

fully prepaid and (check one):

a' I r
b. f]

order by enclosing it in a sealed envelope with postage

deposited the sealed envelope with the United state,s pos;tal service.
placed the sealed envelope for collection and procerssing for rnailing,
following this krusiness,s usual praclices,
with which I am readily familiar- On the same day correspondence is placed
for colprction and mailinq. il. is
deposited in the ordinary course of business with thr,' United States postal
Service.

The Notice of Entry of Judgrnent or Orderwas mailed:

a. on (date): January 8,21014

b.

from (city and state): Walnut Creek, CA

The envelope was addressed and rnailed as follovrs:

a.

Name of person seryed;

Street ilddress:

City: San Francisco

City:

State and zip code:

b.

Name,rf person served

Archibald Cunningham
Street address: 1489 M,cAllister Street

California 941 15

Name of person served:

State and zip code:

d.

Street address:

Name ,:f person seryed:

Street irddress:

CitY:

City:

State and zifr code:

State and zip code:

L_l

5.

Names and addressesr of additionai persons served are attached. (you may
ust form pcts-030(p).)
Number of pages attached

l--

I declare under penalty of perjur',r unde:r the laws of the State

of Californiir that the loregoing is true ano correct.

Date: January

8,2014
L

Linda Leong
(TYPE OR PRINT NAIIE OF OECLARANT)

CIV-130 [New January 1, 201 0]

(SICJNATURE OF DECTARANT)

Pag.2 ol

NOTICE OF ENTRY OF JUDGMENT OR OITDER

107

{r

108

ff l..Sg.ott McKay, Esq., #95799t

ff McKAY a LeONc

ziTiN

z ll

,ll il?$H::J:tt;3r,li;i..r*:
Facsimile: (gzsi gzz_sqz)+

if
;;: .i;,
-. F.

(gzsjgzz_sqti

. ff

4il
-ll

, ll $,Tq-.y1for
6ll

""

driiiii. q,y_o_.,suite 775

petitioners
and ramara woods

Mt.h;;iA;;;;;

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. r:. .]t,,;rt

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2al4

oF r;rg co
,rt'f}o
tv -{Lhu,-*,*a,3:ff:
oepliiD..rfr

7
8

SI.IPERIOR COURT OI] THE STATR

OF C,q.LIFORNI.A

oll

'll

rN AND FOFI THE crTy ArvD COUNTY

Fo s1$r FRANCrsco

10

I MICHAEL CooMBS; TAMARA woolDs,

ll

t2
.
t

tl

I^ lfll

v.

petitioner(s),

il

cuNNrNGrrArr{;
- ---' -.-r' and Dolls
'o ll $|t{IBAL.r)
to 20, inclusil'e,
l5
'"lli
ro

ll

ll

iTll

nespondenr.

CASE NO. CPF-IO-sI0760

g*pJ{g${Tn-vc MorroN ro coMpEL

ro posr ruocr,anNi
*Pjjpl.i^sPs
TNTERRoGAToRTES, aNo ron
SANC.U$S

-t

The motion of petitioners jMichael

coombs and Tamar:r woodr; for an order
compelling
::
19 ff respondent Arr:hibakl
cunningham to ansv/er petitioners'
first set of post judgment intenogatories,
^^ll *o lor sanctions' ceune on
regularly for hearing on Decemb er:23,2013
in Departme't 501 of this
ll
the Honorabte Ronalcl E.
Quidachav, presiding. petitirners, nrotion was unopposed,
and
lJ
party appeared so as to c'ntest
the
crourt's tentative rul.ing. The court
"tttn*
having read

ll

"

t::

l]
::

and

ll

t""ttoered the moving papers filed by

the petitirrners, and good cause appearing
therefor,
:1 ll
24ll
zqll
IT Is
eL-IS r.,pnDDun
ORDERED that
petit:ioner's motion is GRANTED.
Resprrndents shall provide responses
^_tl to post judgme't
2)
interrogatories'without obiections
ll
within l0 days of notice of entry of order
by
^-ll O"rt""al deliverry to petitioner,s
counsel. Sanctic,ns are
grante<Jlin the arnount of $660
to be paid

1l ll
zt ll rrr
28ll t//

ORDER CNANTTNC MOT'ON

TO

COMiffiPONiffi-POffiGMENT
_- .
rNTERRocATORrEri, AND FoR
s,c,Ncrrobis
108

{r

109
I

within l0 days of notice of entry

of order. \ro opposition fired.

2
J

Dated:

{W, Z, zo t y

Judg;e

of the Superrior Court

ru\RRY DORFMAT{

7
8

Approved

as

conlbrrning to

the order of the coun:

SEE EXHIBIT'A' RE

l0

WITH CRC 3.1312

1l

t2
ta
IJ

t4
t5

l6
I/

l8
t9
'rn
1!
LL

a1

LZ

1A

25

26

)1
28

'RDER

c ne

NTffil,{o

rroffi , co^;ir, *r-*'ES ro .offi"rrcNr

-'

INTI]RROGATORIES, AND
FOR SAIICTIONS

109

fr

110

MIcKAY & LEONG

ATTonNEYs AT LAw
2

CalrFoRtyrA ltLvD., SuITE t'7S

WALNUT CREEK, Crl.rFonNtA 9451jt6
TELEpHoNE (92i ) 932-6095
FAcstMlLE (92S) 9J2-S434
I 75 N.

Decemtrer 3tl, 2013

Judge Ronald E. Quidachay

San Francisco Superior Court, Dept. 501

400

McAllister Street
CA 94102

San Francisco,

RE:

Coombs v. Cunningham

Dear Judge Quidachay:

on December

20,2013 you isrsued a tenlative ruling

{fanting my client's motion to compel
rcspondent Cunningharn to answer rny client'sr first set o}-post judgment
interrogatories. Such
motion was unopposed, and neither party contested rthe tentaiive iuling.
I prepared a formal order
incorporating the language of the tentative ruling, anri sent it rto
lv1r. Cunnirrgham by email that day.
Mr' Cururingham hrs nol approved thr: order fonn, but also has not rcbjecteri
to it. His only response
(copy enclosed) was his fypical off topic response.
Enclosed please find an origirnal and onr: copy of the orderr
prepared and sent to Mr.
that I -it,
Cunningham.
If ther orderrneets u,ith your approval, please sign rud
and have the clerk file
{ate
it. I have enclosed a SASE so that u,fil*
cc,py of tne ordcr can br: returnJ;;';ffi;;,
"ndors.:d

Thank you fbr your assistance,.

SinLcercly yours:,

McKAlf

9rEoNG

/'

-4Y'u>,/41/AV
McKay
J. Sicott

JSIvI/
Enclosures

110

111

EXHIBTT C] TO REST'O\TDENTS'
MOTTON lIO DISMISS APPEAL

EXI{IBIT C: TO RIESPOI{DIINTS'
MOTION TO DISMISiS APIPE,AL

111

112

Mc
J. Sco

Linda

2t75
Wal

& LEONG
McKay', Esq., #9579)9
Leong, Esq., #203:i00
California Blvd.. Suite 775
, cA 94596

i.
:

T,
ll ll
LA:J

Facsi

:1

f--

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(o
cv

\]

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;a,

IZ

t'\.1

MIC
TA

t(92s) 937-6095
932-6095

ti925) 937-5434

fbr Petitioners
EL COOMBS and
WC}ODS

-r=
TN

THE SUIPERIOR COURT OF'IHE ]STATE OF CALIFORNIA

IN AND FOR THE

l0

CJTTY

AND COIINT'Y OF S;AN FRANCISCC)

LTNLIMITED

CIVI ruRISDICTION

ll
t2

COOMBS; l"AlvlARA WOODS|,

EI.,

1a
IJ

cAfilE

No.

cPF-10-s10760

Petitioner(s),

ORDER GFANTING MOTION FOR

APP:O]NTNIENT OF.RE-CEruER

t4

l5
ARC

l6 to 20,

ALD CLINNINGHT\M;

and DOES I

V,

t7

Respondent(s).

t8
t9

motiotl of petitioners Michael C':ombs and'l'amara Woods for an order appointing

20

recel

ZT

the t

22

July 20

ta

Scott

z)
.A

z+
25

to sell the condominiurn owned by' resporrdent Arshibald Cunningham in accordance witir
o

f the .judgpent entered in thisi action on

April

l:1

, 2a11 , came on regularll, for hearing on

in Department 301 of this Cour-t, the HonoraLble Peterr J. Busch, Judge, presiding.

J.

Kay appeared on beiralf of Michael Coombsrand',famara Woods. Archibalj Cunningham

in pro per. The Court having rmd and considered the moving, opposition, and reply papers

filed

parties, after oral argument, and good cause appearing therefor,

26

IIS

27

tretitioners' motiorr is granted.

28

i<levin Singer, whorse address is 795 Folsorn Street, 1't Floor, San Francisco, California

ORDERED as firllows:

ORDER GFI.ANTINC MOTION FOR APPOII,ITMENTOF RECEIVER

-1-

112

113

94107,

and

appointed receiver for purposes o1'selling respondent's c;ondominium, which is located at

known as 1489 McAllisl,er Slreet, San Frarrcisco, California, in accordance with the
judgrnerrt in this action, which jr-rdgrnent in turn referonces the provisiorrs of section 14.7

Ierms

in common agreement between the pa;fties. The legai description of'respondent's

of the

um is attached herrsto as Exhibit 1,.

iJefore entering on his duties as a receiver, Kevin Singer shall take an oath to perform the
duties

$10,

this C

receiver faithfully, shall execute an undertalcing, or secure a bond, in the amount of

to the State of Califomia flor the .[aithful performance of those duties sr-rbject to orders
and that the oath and undertaking or bond be filed with the Cler* of the Court;

On tlie filing of the executed rrath and undrlrtakirrg or bond, and pending further ord"er of

l0

Kevin Singer,

as n3ceiver, is jinstn.rcted to ;and shall undertake to take all steps and do all

ll

this C

12

things,

luding the execution of documents on behalf of r:espondr:nt, reasonably required to list

nt's condominium fcrr sale, to enter;and shorv (perrsonally or tluougli teal e,state brokers)

t3
14

such

l5

with

inium to prospective buyens, anrl to sell respondent's condominium, all in accordance

pril

13, 2011 judgment in this action, and rvith section 14.7 of the tenancy in common

in such judgment.

l6

as referenced

t7

K.evin Singer, as receiver, is instructed to r,etain iurd not disrtribute the net proceeds from

t8
t9
20
^t
LI

22

of

the sale
+J.o

co
be paid

to real

f r,:spondent's cond<lminium e>lcepl pursuant to frunher oi:der of this Court, or stipulation of

"Net proceeds" rerfers to the remrrining proceeds form

the. sale

of respondent's

afier payment of (a) mortg;ages and liens upc,n respondent's condominium that must
order to provide the purchaser witlt clear tille to the conclominium, (b) cc,mmissions

oling

brokers involved in suclt sale, attd (3) es,crow liees, ta>:es., and other costs that are

ily paid by sellers from escrow.

24

N'otwithstanding the above provisions, the receiver shall nc,t complete the sale of

z5

's condominium prior to August 1r5,2011, the

26

hearing n his motion to

27

in this

28

the

fix

tLLe

amount of an undertaking

darte
ernd

on w'hich respondent has noticed a

to stay enforcement of the judgrnent

tion pending appeal of zuch judgment. Furlher, sh,ruld the trial court or court of appeal in
order a stay of enforcement of the elitire jud.gme.nt, or a stay of the portion of the judgment

ORDER GRANTING MOTION FORAPPONITMENT OF RECEIVER

')

113

114
the sale of respondent' s condominium, then
the receiver shail act in accordance with the

ofsuch future order.

2
J

t1,4,zotl

)
6

Judge of the liuperion Court

7
8

Appro
order

<

as conforrnine to
e Court:

tlie

i0
1l
t1
t3
14

l5
16
17

:EXHIBITfrREu-.
,|\4PLtArilcE

WTtf cHo 3,1942

r8

I9
20

2l
"22

'23

24

25
26
27
28

.RDER .RANTTNG MolrroN ron.q.piDmrMENT

c,F RECEIVER

3-

114

115

EXHIBIT A

115

116

IDXI'IIRTT ((A,'

All

Ca

propertll sil.rr ated i.n the Ci['arrcl

County ol'Sru: Fran,lisco, Statc oj
'niu, rl,escribecl us follolvs:

aL r'r:ai

parc;er

I"rar
Ccr

lor

No.

A of t'Ltr;EI Map
{vraP lNo
Nt sso4,
obt)4, fjre:cr
l)Jc)d August
.Nl i,'0,1 nr t,ar.<,er
:ti]:lli;:
in
Brrr'rl< l.Ylll,,.]ill].1!11
l0 cor:r,ion,i.,.,l,,l-",1r'1,]"1",]it..^,e'
,Maps,, pa(es .t9ri arrct r.9i Ofrciat fieuorrJs ()'
'f
l;Tli,l]iytr
of r?r
,rr
.S:r,rr
ser
(:o Li:)r'rnt-v r<ccord.r
("(JJficlihr l;lccirrr.cre"),"as ,l.1li,ii.lli,liJ
$l.rr:rr. r-Jnit is sho,urr:;.,';;;\'rn
Ji:f :lll,fl.,:io'
i;,1:,!,il,,l:;:t',,!,,4;ljjl;$i'il;Hi;;;i:'il
)1'll.jl illl,ll]il':it.i|1,,,:lie;;;-u" .'iniii,u ro rhc Der:)a:rar.ion o{ Resrrir:riir:rns

i'tl;"l;;;;i,
,?;;-iiil'Ij;TH::;,u,:'""*i;'f
-l 852 4/+ <) O fTici al l?ccorcl$.
O9t

,=.#;;:ff[:::'#H]iffi,'H:[:

t,

nlt

wit)rr

l\rr'l'

jv'idecl 5 l,h irrt<lr.est

as
-lenaltt in cor:rrlton ir.: atrcl i;o the Colltlltr.rrt Artrrr lyl
sa.lrj Prrrt;cl l\ of J')arcel Ma;r
No, 55Cul, as shown orr ilre Pl,iur anrl
'ilttotl
c.lcfirrr:i
. exr.:eplipg

^,.,11

A.)

AiLl

esv:lirrg tl:ercfr.orl thu follorving:

cundr;milrittltl rt:lit's

shgrrrn on the plan

t1q

iriurc:

utxi rir:sclil:ec1 in tile Declar*l.ion.

Dxrlt'tsive use clornr',rr^1,,un:

tbr Pcssessior, r.rscr anr.i
clesillr:nted on l:he pj.arr arrqi cierl.ir.recl
irr !lrr: Declal.ation.

c,J.yme'[ ,f

r.]r'sr: a.rr:as

Norr.r:rrlcj rr sj r,c easgnt errt fn!

us:, en ioymerrt, ingrc ss, egrc ss an,ci sr.rpirorl in
aucl
to thr,'',)otrtnon Area us shorvrl on tite
PIan nnd cfi:scribeci irr lire Dr:cJau:atiorr,

I),)

All cas,::ur er"l ts as

cle.l-j:ncd

in thc, Dr:<;)rrlution.

usiye (:asetnerlts fol: u sc, lr:nJ<lynrelr l:,

lrrgress, (:Srfiss ttrld strl:P<.rr.{ il: eutcl
t.rr the
l'l ,Al'ca, as shorv:l: o11 thc PIarr
a.rrcl <;lescr.il:ccl in llte Deq';4..tirur, for
thc l:clrc[it ol
nr: Jrcr'cina bclvt:

Nort-r
Comr
Parcc

t:l

llxclr vc Ltse cla-senletits, as shotvn

on
rlpl)ur ,nnl).t to l)arccI One her.einabove ti:e l)lgn and describecl in thc l)ec.lar,alion,
.lbr t.he por;rifrssioD, Lls(t Itnd t:nJ<>1't1er:r(:
of
,^)

Storr.rge Area S-14g9

!,t>L

OZ0, Block 07717 (portialt cu t.tcnt krx

.ye,arJ

J,ot O(r0, Blo<;lr 077il (firrrrre

frrx yenr!

116
nl

117

6
JuL z

McKAY

dL

t$ll

LEONG

ATTo]RNETS AT LAw
2175 N. CelrFoRNrA BLvD., SutTE
7?5
lVA LNUT CR EF:K, C,{Lt FoRNT
941S96
TELEpfi orir 192S) 932-609S
FAcsrrf rLE (9:!S) 932-S4J4

July 26.2011

The

llono

Peter.L Busch

Departmerit
San Franci
400

McAllis

Superirrr Courl
Street

cA 94102

San Franc.i

RE:

Coombs, et al. v, Archibalil Cunningiram,

et al,

Dear.ludge

OnJ

ffi

please find a
sent to
day, saying
lhirn to para

#l:i:*i:';r1,ff::1i

*"

at the hearirrg.
as to either

20' 2011 you granted petitiouers' n)otion

for appointment of a receiver. ljnclosed
T:.*ul': Tliie on suchrmotion. rr," p.opo,,d orcrer was

hi

'lhe
proposed

original and

on" p,",iou,r;y

;i:f:i;f""":l::":,*:Tg.^o,T:ll
t5 of the order, where I added
ranguuge consiste'iwith

::glillT*::l

is enclosi:d. Mr.

:l"ln
pprrova.l or disapproval
of such order.

;'i;,#;";,::jilli

p,oui.[j ,i ni,".
rhe

r rhin poinred

.,","#"il;lr:"#::

cunni'gham r,u, noiresponde<J tuither

fur ob.iection having expired, r am submitting

thiis order fbr yoru.signatwe. If trre
sig'and date ttre .rder and hau. you,. cterk
fiJe the
::,:::i1l^y:ll-1.]:rt,please
a contbnned copy ro our olfice
iithe encros";;,;l*;;;:

#;#Hil::

have any questiotis, please dlo

rct

hesitat,: to cr:rntact ttre undersigned.

Sincerely yours:

McKA't' & LEONG

.ISM/

uffu

Enclosures

cc: Archibald

ngham (w/enclosure)

;,,;.?''{&EffitT

117

118
Page

ffiata
Re: Order
From: "Scott

To;

narch

of2

l*

5f{ALt BtJgtr'tgSs
y'

Wednesday, )uly 20,2011 9:03 pM

<scott@mckayleong law.com >

" <archcunnghrn@yahoo.com

>

Arch Lrcok at paragr

J. Scott McKay
MCKAY & LEON
2175 Nofth Cal

Atttornelys At Law

Walnut Creek.
Telephone
Facsimile: 92S

*-

On Wed.7

From: arch
Subject: Re:
-fo:
"Scott
Date:

which was added.

Boulevard, Suite 775

94596

-{i095
-5434
1,

rch

cu n n in g ha

<a

rch

c un ngh

<@y a h o o.

corn> wrote

m <archcunng hm@yahoo. com>

<scott@mckayleonglaw.com>
"luly 20, 2O11,8:12 pM

It4r. McKay:

Tlris looks
rny und
conditioned
and that is set
copy of the tr
ar clarify the
Archibald Cu
From: Scott
To: arch cunni
Sent: Wednesd
Subject: Order

y like the "order" y.u submitted betbre the

hearing. At the hearing, it was
judge

g that the

macle tlre granting rf any recei.,e,,ship

contingenr uporl or
my right to an undertaking. I have a rigirt to an ,underJa-r,dng/appeai
bond
a hea.ing on August l6th. your "r--,rderi'fails
t<l rcflect that. I have oldered
to this order and retuse to sign ir. perhaps or
r,* p*" heari'g
f 'f"r.-Tli::t

r ls Ire'eded.

ngham
<scott@mckayleong law.com>
<arc;hcu nn ghm@yahoo.com>
, July 2C),

201i 1:12 ptli

Arch Here is tlre o

inrmediately.

Itl you beliet,e that this does nrct conforrn to

the court's order, let me know
'wise please sign it and return it to me. J. Scott frrlcKay

MCKAY & L NG Attorneys At Larv

2175 North Cal
ia Boulevard, Suite 775
Walnut Creek, A 9'4596
Telephone: 925 32-609s

http:i/us.mc8 I5.nr

.yahoo.com/mc/showMessage?:sMi <):9&fid==%o2s,I.0soA2:;40search&f.

..

/zslz01l 118

119

EXHNBTT D TO RESPONDENTTS'
MOT'ION TO DISIMISS APPEAL

EXHIBTT D TO R]ESPOI\DIINTS'
MOTION TO DISMISS AP]PEAL

119

120
TENANCY IN coMMoN AGFIEEN/IENT FoR 1487-1489 Mc.ALLIllrER STREET

PAGE 31

THOUSAND Al{D 00/100 DOLLARS ($5,OOO.OO) as liquidated damages in addition to all other
payments due under this Agreement. Ttre Parties agree that a po.lion of t.he loss and extra
expense irLcurred by the non-Defautting Cotenant asr a conrsequence of a Default would be
difficult to asc,r:rtain and that this amount is a reasonable estimate of such loss and extra

exDense.

D.

No Stay or Cur,e of Default. The "Stalr" artd,f or "Cure" proceduLres described in connection with
,{ctionable Violrations are intended to be the exclusive rneans 1br a Party to contest or suspend
ra.n alleged Actionable Violation. If a Party fails to avail leim/herself of these procedures,
he/she
shall not tle entitled to dispute or conte:st the occurrence of the Actionable Violation, or to
suspend or challenge the imposition of the Default remr::dies pe:rmitted by this Agreement.

I4.7

FORCED SALE.

.pefinitions Applicable to Forced Sale and.Foreclosure. The follor,ving initially cerpitalized nouns
have the meanings set fcrrth below rvhr:never used in thr:: Aqreernent:

(1)

Offerine Date. The "Offering Derte" shall be the first (lst) business day after the
determination of the Appraisecl Val le of a Defaulting Cotenant's Cotenancy Share.

(21

Offe,rinq Price. The "Offering Price'" shall be the price at which the Defaulting Cotenant's
Cotr:nancy Share is ofI'ered for sat,e at an-y particular tinte. The Olfering erice on the
Offering Date shall be the Apprarsed Value o1' the trefaulting Cotenant's Cotenancy
Share. If the Defaulting Cotenant's interest in the Property is not subject to a ratified
purr:hase contract on the thirtieth (30th) day that a particular Offering Price has been
in effect, the Ofiering Price may be reducecl up to ten percent (1cry,) by the other
Cott-'nant.

(3)

Distlosition Expense. "Disposition Expense" shall be the sales commissions, transfer

tax and cust.omary seller r;losing costs in the er,'ent of sale of the Defaulting Cotenant's

Cotenancy Share.
(4)

Cotenant Equitv. "Cotenant Ec1uitr,," is the differr:nce between tl-re Offerirrg Price and the
Defeiult.ing cotenilnt's Shared Debt Percentage of'the Shared Mortgage.

(5)

Intril Group Oblieations. "lntra-Cjroup Obligat.ions" shall be the amounts which the
DefaLulting Cotenant ou'es the't'C or another Parrtl, s6"il-Lg from the following liabilities:

(al

Outsl.andins Monetarv Oblitrations. All sums owed by the Defaulting Cotenant

under this Agreement;

(b)

etutstandine Service Obligeltions. The reasona.ble cost of fulfilling all service

obligations of the Defau.ttinpl Cotenant un,Cer this; Agreement;

(c)

Advanced Amounts. An1' sums adrzanced on behzrlf of the Defraulting Cotenant

together with simple interest on such sums at the maximum rate allowed by
leLw; and

(d)

D'amaqes. Any outstanding danrages or losses which resulted from an

Actionable Violation inclludirrg late charges, peneLlties, fines, liquidated damages,
at.tornev's fees and court costs.

September 14,'2OO7 by D. i\ndrew Sirkrn. An1, reprocluction or use of this document, its content, or i1.s format in
connection with any transact:Lon ol.her than the one described rt:quires tLLe written cons;ent of the author.
(c)

120

121
TENANCI'IN coMMoN AGFIEEMIENT FoR r487-r489 Mc,A.LLItirER STREET

PAGE 32

(6)

Non-De.flaulting Cotenant Note Ter_ms. "Non-Dr::faulting Cotenant Note'Ibrms,' shall be

the terms of notes payilble to the l C or to a nor:L-Defaulting Cotenant under this Section
and sha.ll be as fbllows: Interest cn SUCh notes shall accrue at the rat.e of eight percent
(8o1,) per annum, interest and prin<:ipal shall be fully arnortized. over a period of three (3)
years, due and payable in thirty six (36) equal rrnonthll, installments. Any such note in
which tlee obligor is not the Dr:fau Lting cotenarrt shall be secured by a deed of trust on
the Deferulting Cotenant's former irrterest in the property.

17l

Defaultins Cotenant Note'Iernns, "Defaulting Cotenant Note Terms" shall be the terms
of a notr:l payable to the Defauttin5l Cotenant ur:Lder this Section and shzrll be as follows:
Intcrest on such notes shall ar:crur: at the rate of eight percent (B%) per annum and be
deferred to maturity, eill interr:st i:Lnd principal shall be due and payable after hve (5)
years, and such notes shall be se<:ured by a deed of trust on the Defaulting Cotenant's
forrner interest in tl-te Propert,y. Deeds of 'llrust securing a note payable to the
Detraulting Cotenant shall be recorded after and subordinate to all cleeds of trust
created under the preceding Subsection.

B.

Notice of Forced Seile. To cause a F orce rl Sale, the rLon-Defilulting Cotenarrt shall il provide
Notice to the D,efaulting Cot.enant (the "Nr:,tice of Irorced Sale") including (i) a description of the
Default underl'ying the F'orced Sale and (ii) a statement that he/she intends to cause the
Defaulting Cotenant's Cotenancy Share to be sold.

C.

Valuation. Not later than five (5) calendal days from the Effective Date of the Notice of Forced
Sale, the rLon-Defaulting Cotenant shall jnitiate determination of the Appraised Value of the
Defaulting Cotenant's Cotenancy Share.

D.

Listins for Forced Sale. Beginning on thre Offering Date and continuing r,rntil the Defaulting
Cotenant's Cotenancy Share is sold, thc' non-Defar"rlt.ing Cotenant shall list the Defaulting
Cotenant's Cotenancy Share for sale eLt thr:: Offering Prir:e with a licensed real estate agent who
is a member of the local Mr"rltiple Listing liervice. The Defaulting Cotenant's Cotenancy Share
shall be listed lor perio<ls of sixty (6Ct) ca.tendar clays, with a sales r:ommission of six percent
(6%) pavable fr<,rm sale procr:eds. NotwithLstanding the above, if and when the Offering Price is
reduced to an amount which is les,s tl Lan the surn of the: Disposition Expense plus the
Defaulting Cotenant's Shared Debt Percr:ntage of the Share<l Mortgage, the listing shall be
t.erminated. A Defaulting Col.enant in possession of a L,tnit during a Iiorced SeLle shall allow the
IJnit to be shown to prospect.ive purchasers following t',venty four (241 hours notice.

E,

4\cc-eplg4g of ,Cffers. 'The non-Defaultir:.g Cotenant shall ar:cept any purchase offer
"vhich
rneets all ol'the following criteria;
(1)

Price. It is at or above the Offering Price;

(21

Loan Asisumption. l'he purc.haser assurnes the Defirulting Cotenant's Shared Debt
Percenterge of the Shared Mortgage;

(3)

Dorvn Pavment. The purchaser milkes a r:ash rlown piryment which equals or exceeds
amounts (i) the Cotenant. Equity, or (ii) tenL percent (10%) of
the Offer-ing Price;

t.he lesser of the lbllou,ing

(4)

Price. If the Offering Price exceeds the sum of ttre down payment
and the Defaulting Cotenant's; ShLared Debt Pr::rcentage of the Shared Mortgage, the
balaLnce (the "Total Not.e Amou.nt") shall be pairl in notes payable as described in this
Balzrnce of Purchase

Secl.icln;
O September 14, 2OO7 by D. Andrew Sirkin. Any reproduction or use of this d,ccument, its content, or its format in
connection with any transact.ion c'ther than the one descriLred rt:quires the wril-ten consent of the author.

121

122

TENANCT'lN coMMoN AGREEtr/IENT FoR 1487-1489 Mc.ALLiltrER STREET

(5)

Close

o1'

Escrow. It provides

Other Contingencies.

(6)

It

fcrr close of escrorv

PAGE 33

rvithin 1-hirty (30) calendar days; and

contains no continlqencies

accordance with local r:ustom.

or demands rvhich are not

in

ln the event multiple offers simultaneously meet these requirernents, the Defaulting Cotenant
shall select the most advant.ageous ofl'er.
F.

Non-Defaultine cotenant's l?iqht l'o Prrrchase. The non-Defaulting Cotenant shall be permitted
to purchase a Defaulting Cotenant's Cotenancy Share ilit the Offering price at any time. A nonDefaulting Cotenant may exercise this ri51ht to purchase by providing Notice to the Defaulting
Cotenant of hisr/her intent to do so beforr: or within fcrrty eight (48) tours after receipt of any
purchase offer' This Notice shall be binding ancl l'ailurr:: to conrplete the purchase on the terms
and conditions and within the time frames stated in l-tre offer shall be an Actionable Violation.
lf a non-Defaulting Cotenant fails to provide the Notice, he/s.he waives the right to purchase.
No further purchase rights shall be creatr:d as a result of renegotiation of seLli: price or terms
lbllowing inspections or other. disclosures.

G.

NSq:Dg&Ultins Cotenant's Risht To REis!.L purchasers, Befor,e zrccepting an1,, purchase offers,
the non-Dr:faulting Cotenant may obtain a statement of the financlaf quatifications of the
prospective transferee including a loan application, credit re;port, ancl, in the case of a selfernployed person, the two most recent yeurs' Federal 'l'i:rx Returns, and arranfle an interview of
the prosper:tive purchaser. 'lhe non-Defaulting Cotena.nt may reject a prosiiective purchaser
on any bas;is which is (i) reasonable and (ii) not proh:ibited by law. To exeicise this right to
reject, the non-Defaulting Cotr:nant must :rotify ttre Defaulting Cotenant of the rejection 1yitfrin
four (4) busines;s deivs of their receipt of lrhe purchase offer. 'l'his Notice murst state the basis
for the rejection. The non-Defaulting rlotenant r.l'a.ives the right to reject a prospective
purchaser if the: Notice is not provided in time.

H,

DtsEtnul]p:r of Cash Proceeglg. All czrsh proceeds frorn a Forced Sale shall be distributed as
follows:
(11

Disposit:ion lDxpenses. They shall first be used t,o p3)r any Disposition F)xpense;

l2l

lntra.-Group Obligations. Any balaLnce remaininlg after payment of Disposition Expense

shall be used to pay Intra-Group C)bligations; llf the IrLtra-Group Obligations are ovu,ed
to rnore than one (1) Perrty, or to the TC collecl.iveiy ancl to one (1)or rnore partl'(s), the
cash shall be split anlong such oLrligees in proportion to the respective obligat.ions to
each of them; ancl

(3)

DefaLulting Cotenant. Any bala.nce remaining zrfi-er

shall be paid to the Defaulting (lotenant.

I.

payrent of Intra-Group Obligations

Distribution of lrlote Proceeds. To the ,3xtent an)l pralfisp sf the Offering Price is paid in a notes
payable, they shLall be distribr,rted as followrs:

(f)

Non-Defrrulting Cotenant. If the r:ash proceedls have been inadequzrte to seitisfy all
Intra-Group Obligations, a single rrote pa1'abler shall be executed by the purchaser in
favor of all obligees collectivell' on terms :;atisfi;rctory to the non-Defaulting Cotenant.
The amount of such rrote shalll be the lesser of (a) tht: 'l'otal Note Amount or (ii) the
rema'ining balance of t.he Intra-Group ObliS;atiorLs. The obligees shall agree to split the
proceeds of such note in proportion to the respective obligations to eachr clf them.

O September 14,2OO7 by D. ,\ndrew Sirkin. An1. reproduction or use of this document, its content, or i1.s format in
connection with any transact.ion ot.her than the one describecl requires tLLe wril.ten consent of the author'.

122

123

TENANCY IN coMMoN
(21

IENT FoR 148i,-r48g McALLT STER STREET

PAGE 34

Dellaultins cotenan-t. If the llotal Note Amount exceeds the remaining balance
of the
Intra-Group obligations, a note ;rayable fbr such excess amount sh:rll be executed by
the purchaser in felu,or of thr: Dr:faulting cotr::nant on the Defaulting Cotenant Note

Terms.

J.

Deficiencv. If t.he Cotenant Equity is lessr than the amrrunt of the Intra-Group Obligations,
the
Defaulting Cotenant shall execute a note llayable for thLe differ,:nce to all obligees collectively
on
the following terms: Interest shall accrur:r at the rate of eight percent (B%) p6.
interest
and princiPal shall be fully amortized over aperiod o1'three (3) years, Aue anct payable
"n.rr-, in thirty
six (36) equal monthly installments.
'Transactio.n Costs and propertv Taxes. All work
required lty Governmental Regulations in
r:onnection with the transfer shall be completed trefore close of escrow, and
all associated MRI
Costs shall be allocatecl as proviiled in this Agreement. All ot.her costs associated with the
transfer strall lbe allocated between the transferor and tranrsferee(s) in accor-dance with the
customary practice for allocating such costs betn e:en bu1,er and seller of real property
prevailing in San Francisco at the time of l.ransfer of titte.

L.

Close of Er;crow on Forced Sale. Close o: Escrow shalil be the clate specihed in the purchase
On or belore the Close of Escrorv, ttre following shall be cleposited into Escrow:

of r.
(1)

Purchaser. 'lhe purchaser shrall rleposit (i) thc down payment ancl a.ny closing costs
customerril.y paid by a purchaser irt cash, and (:ii) notes payable on the terms clescribed

in this Section; and

l2l

Defaultins Cotenant. The Defaultirrg Cotenant shall sign and deposit (i) a fully executed
grant dt-'ed conveving his/her intr:rest in the Propert.y to the purchaser,
lii; ."..o*
instruction in accorciance with t-he terrns o1' this Agreement, (iii) ali documents
necessalry to fulfill the requirements of this z\greem,ent, and (iv) any note payable
required unrler ttris Section.

l4'8 NoN-JUDICIAL FORECLOSURE. For the purpose o1' securing performance of each of the
obligatiorrs desr:ribed in tleis .Aigreement, eilch Party hereby grants, transfers and conveys h1s/her ownership
interest in the Property to Fiderlity National Title Insurance Company, ia corporation, as tiustee, and to each of
the other Parties, as benellciitries, under the terms anrl 6ep6ilions of that certain fictitious deed of trust
recorded October 23, 1961 ir-r Book A332 at Page 905 of the Ofllcial Records of San Francisco County,
CalifornieL which are herebf incorporated b1, 1s1sr,'..'.. In the errent <lf Defatrlt, the non-Defaulting
Cotenant
shall har"e a lien on the Defzlulting Cotenirnt's ov,inership inlerest in the property to tl:re extent of the
Defaulting Cotenant's Intra-Group Obligations. 'fhe non'Defaulting C,ctenan1., or an agent on his/her behalf,
is grante<j the power to s;ell the Defaulting, cotenant's;nterest in the Propr:rty at a public saie conducted
pursuant to the applicable provisi<lns of Cerlifornia law for exercise of i;L non-jr.rdiciai power of sale in zr deed of
trust. The non-Defaulting cotr:nant is authc>rized to bid at such sale.
L4'9 JUDICIAL FoREcLosURE. For the purpos: of securinig performance clf each of the
obligations described in this,Agreement, ea<lh Party hereby p1"d1g"" htis/her interest to the other as security
for such obligations and ackrLowledges that such irrteresi ii subject to foreclgsure rights. tn the event of
Default, the non-DefaultinLg Cotenant may be proceerl wi':h judicial forreclosure or judicial execution
once the
obligation is reduced to judgment through arbitration.
14'1o EVICTION. "Er,'iction" rIearIS any 1.ype of action to rec,cver possession of the propertv from a
Party or ia Party's relatives, guests, tenan.ts or subtenetnts. A Delaulting rlotenant's right to occupv
any
portion ofthe Property unider this Agreemenl- sheill terminate imme<liatelylrpor. Default, and the
Defaulting
Cotenant and such Cotenant's relatives, guests, teneLnts or subtenanl.s shall be subject to Flviction fiom
the
premises following service of any legally required notices. By executing t.his Agieement,
each Cotenant
rtlsenfcmhe"la
ottnT by D. l\ndrew Sirkin. Any reproduction or
'-? uvvLLrrruL
use of t]ris dc"ar".ta"t, its content, or its format rn
' ,-, ouw7
connection with any transacti.on other than the one describ,:d requires th,e written consient of the
author.

123

124

EXHIBIT

E, TO

RESPONDIiNTS'
MOT'ION TO DISMISS APPE,AL

EXHIBIT E TO RI0SPOI\DIIINTS'
MOTION TO DISMISS APIPEAL

124

125

IGVIN SINGER

,
3

SUPER]OR COURT REC:EIVER

RECEIVERSHIP SPECIAI.ISTS
795 Folsorn Street, 1't Flo,rr
San Francisco, Californ ia 9 4 | 07
Telephorre: (,+l 5) 848-2984
Fax: (415) B.4tl-2301
E-rn ai

t)

'urf,rvsk+,,fu.D
0 ?au
lqom+lE coURT
AUG 2

Kev n@Receiverr;hi pSpecial ists. r;om

iL

Property Address:
1 487- I 489 Ivl cAl Iister
Streret
San Francisco, CA

SUPERIOR COUIIT CIF THE STA'TE OF CALIFORNI.A

COU}ITY OF SAN FRANCISCO

10
11

MICHAIII- COOMBS; TAMARA WOOI)S,

petitioner(s;),

I4
15
f,o

I1

ARCHIBALD CTINNINGHAM; and DOIjS

to 20, inc,lusive,

NO; CI,F-I0-510760

\n
,L/

\/

13

CASF:

r 1f+epffifo
ORDI}R GRANT]ING RDC]E,IVER'S
) tto'flrcN FOR WI{IT Otpljs.sBsdtox,,
)

)
)

Respondent(s,),

)
)
)
)

1B

)
)

19

)
)
)
)

11

)
)

22
23
24

25
26
)1
2B

f'he ttrotion of petitioners Mi,;hae, Coornbs and TamareL Wcrods

for reconsideration of
,"Ord,er
the Court's June 9, Z0l4
Re:: Receiver,s Motir)n For Writ of possession,,, callte ot.l
regularly' for hearing on .August 5,207r[ in Departm,snt
501 crf this Court, the Honorable
Ronald Jl' Quidachay, Judge, presiding. J. Scott McK..ay appearerl
on behalf of petitioners
Michael Coombs and Tamara Woo<is, ,a.r'chibalci CunLningl.rana
appeared in pro per, l(evin
Singer, the Court appointed receiver in tiris matler', appeared
on his own behal{'as receiver.
1

[+RoPEEIORD)0R

125

126

The court having read arrd conside.red

the moving, opposition, andl reply papers for both
the
receiver's rrotion for a u'rit of possession,
and for the,petitionr:r's rnotion for rcconsidefation
of the 0rder on the receiver's motion, a,nd the
oral arlgument of th,e parties and the receiver.
and good cause appearing; therefor;

IT IS OR-DERED:

l'

6
1

June

Petitioner, Michael Coombr; and Tamara

Woods'motion tcr res.r.l4.rthe couft,s

9' 2014 "order Re: Receiver's lriotion

Receiver's ll{otion for

lFor

writ of

possession,,,is moot,.l'lie

writ of Posr;ession is gr,arrted. Receiver

has authority, to sell the

property" Respondent interferes with

Receiver's e;fforts to enforce the judgrnent and to
sell

10

the ploperty In light of Responclent's non-cooperation

no lesser means are feasible ftrr
receiver to be able to sell the propert,y.

11

I2
13
1A

l5
1a
1,0

I1
18

19

2' A writ of Possession shall be issued as to the removal

of Archibald cunninsharr
from the prOperty locaterc at 1489 Mc.,\llister istreet,
san Francisco, cA. g4115. Any
current tenant who is resicling on the property
shalJ not be remcrved by this order or bv the

#'ffi

qrfr

Mffiry;

ig,-{iK'HH rv^,

,(fnf,r @t"r#.#m,
./

\r

Judge of the Su;perioiCourt

20

2t

Approved as confbrming to the order of the, coul.r:

22
23

Archibald Cunningham

Dated

24

z3
SEE EXHIBIT TT RE

26

COMPLIANCE'uvlTH CRC 3.1!|12

a1

28
2

t+fro?osrEDl oRDIR

126

127

EXHIBIT F.' TO REST'O]\DIE,NTS'

MOTION TO DISIMISS APPEAL

EXI{IBIT F TO IRIiSPOI{DIINTS'
MOTION TO D]ISMISiS APIPEAL

127

128

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128

129

EXHIBIT G TO RESPONDENTS'
MOTION .fO DISMIiSS APPE,AL

EXI{IBIT G TO IT]ESP,O]'\DE,NTS'
MOTION I''O DISMII;S APPEAL

129

130

From:
Sent:
To:

Subject:
Attachments:

arch cunninc;ham <archcunnghm@yahoo.c,cm

>

Tuesday, February 03, 21115 Sl:02 AM

Scott Mr-Kay
In re Accusation b/f state Sultreme Court
M c KayAccu satio n Cov.d oc; State Ba rP F Rzzz2.d oc

Mr. McKay
Enclosed please find accusation filed yesterday lvith Suprenne C()urt...if I need to take that to the U.S.
Supreme Court I will...also, I'm awaiting for the "police report" regarding the arrest (DA dismissed
charges though I wanted a trial and will continue to get arre:;ted Ltntil I do since the SF Sup. Ct won't
give me a hearing on your frauds). lt seems there is another lawsuit lurkinq there....
A

130

131

ATTACHMENT B

ATTACHMENT B

131

132

Page 36 132

133

Page 37 133

134

Page 38 134

135

Page 39 135

136

Page 40 136

137

Page 41 137

138

Page 42 138

139

Page 43 139

140

ATTACHMENT C

ATTACHMENT C

140

,.

141

1+-+zig55
.QP. PARTY

K t'Vlll Singer
~yr(;:Rf,;l;!Y

----- ...........,._ ... _.........

\.'\~Ti-fO'JT

ATTOR!'JF:Y iNnme. S1au1 B;:w numb91 {Jr.ri arJdro~si

Superior Court Receiver

795 Folsom Strt~el, I st Floor
! San Francisco. CA 94107
T~:~>',.()Nt:r. (415) 8482984
"MAu

~oDRE"'

r~xNO

:.. r~ c.R1~f~--~-~~~---. C~:J.... _.it.~DnMr:.~~T CRfl)r~o~, ..

1-i;m At:eREs1:.

,;,, '-'m zPcco 1

B!'<A~-:~.. ,.1

FI LE
D
California

(415) 848-2301

Superior Cour1 of

Kev inca)ReccivcrshipSpi.?ciul ists.com

County of San Francisco

J:Z.J 1\~s1GNl:t! ..~:~-~~~?~~?..... .

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

~~: i'J'.\ 4ri:,i;;s;\

SEP 23 2014

SAN FRANCISCO

400 McAllister Street

f{()Ull1 103
San

BY:CLE~!j2URT

Fnmcisco. CA 94102

GEFENDr\NT:

Deputy Clerk

--.;.M;..

. . . . . -- - ---- - .........,. ........ -------- . . --i

PLAINTIFF

'

MICHAEL COOMBS: TAMARA WOODS

80WMANUU

ARC! llBALD CUNNINGlfAM: and DOES 1-20. incl us.

---. .----------------...................... ----- . . ----"....!......... _. --------

--------i
C:J EXECUTION (Money Judgment)
I GASE r1uMBE~. CPF-10-5 l (1760

f.....,

WRIT
OF

[{-] POSSESSION OF

CJ

l.L.l

Personal Property

Real Property

'

~,--

Limited Civll Case ..

Unlimited Civil Case

SALE

"' "------ ''"'"'MHO""'-"'''"''"..""-''"----H-M"--M'''''""''' _ _ _,._... .,.-.-,,,., .,_,,,_,, ''

1 To the Sheriff or Marshal of the County of: City and Cmmty of Sun

'

Small Ctal;;;~c;;;--1
Other
__ '.

----------''""--------orn-----

- - - -...

Francisco

You are directed to enforce the judgment described below with daily interest and your costs as provided by law.

2 To any registered proce6S server: You are authori2ed to serve this wn! only in accord with CCP 699.080 or CCP 115.040.

3 '.fliam'1) Kc\ in Singer. Superior CoLtrt Rcccivw

':l

c::::-1 judgrnerit creditor

thC;

assignee

Of

record

Judgment debtor (name rype of legal entity stated in

Jtid_gmont if not 1; naWr{J/ .oerson, mid last known
cWC/f&S.>J
r--

-,

Archibald Cunningham, an individual

1489 McAllister Street
San Francisco, CA 94115

L.____

CJ

_ _ __j

Additional judgment debtors on next page

5. Judgment entered on (dnto).
'Z.O -I

6. ::::._-:-]

'-J1i-t.
JudgmenPre';Lwefo~~ J.t.
f5 . .

Wnose address

IS St10Wl1 011

9. [~1-J See next page for information on real or personal property to be

delivered under a writ of possession or sold under a writ of sa!<!

c-;

10
This writ IS issued on a sister-state JUdgmom
11. Total judgment
$
12. Costs after judgmert (per ~iiad order or
$
memo CCP 685.090)
13. Subtotal (add 11and12)
....
....
$
14. Credits
15. Subtotal (subtract 14 from 13).
$ -------- 16 Interest after judgment (per flied affidavit
CCP 685.050) (not .:in GC 6103.5 fees)
17. Foe for issuance of writ ..
18. Total (add 15, 16. and 17)
19. Levying officer:
(a) Add daily intere'1t from date of writ
(ar the /<;gal rat~ on 15) (not on
$
GC 6103 5 fees) of
(bj Pay direc:!y to court costs included :n
11and17 (GC 6103 5, 68637:

CCP 699.520(i))

DEPUTY CLERK

this form above ttle CDllrfS name

---~~-~

20 [ ] Tl'>e amounts ca!led for 111items11-19 are different tor each deotor.
These amounts are stated for each debtor on Attachment 20

c::;~:~~~~~.:~~~~ND~.ti
'--------
-----
~AffM-------

141

----~------~

142

'

_,

PLAIN".IF'F'
u1:.H:NL>ANT:

21.

L. J

---~

MICHAEi. COOMBS: TAMARA \VOODS

CPF-10-510760
ARCHIBALD CL'NNINGHAM; and DOES 120, inclus.
_ _ __...,_ _ _ _ .. _ .....____ . . ., ___
.....
~---

..--____J

- Items continued from page 1Additional Judgment debtor {name, type of legal entity stated
in judgmenc if not a natural person. and last known address}:

r--

-------..,

I
22

c:J____Notice
of Hie has been requested by (name 8/ld aodress):
['""
,,_

,t) '

..

r~- ~~

I
.&:-

L......
2.3 .__,,.: Joint debtor was declared oounc by the i~idgrnent (CCP 989--994)

a. on (date}
tJ name. !ype of ieigai entity slatei:: in judgment if '1Clt a
r.aturai perao1 ant:I last known addro&& of je1nt debtor:

i: ~ ___]

24.

Cl']

.jl'~i

=.:i ;:

l'I,

"Ti c

n :r,

>

(f;.

ri.

rr,

;:
~
' ;.
ii ""' (flator
.
,_
:~ 0 r,;;
b. f'&rr.e type of legai Elntity siatea in JUdgmen~ot f)
1
a 11aturai p(!rson. and laat known address of~1t clebt)'.lr.:.

----,

r----

__ _ j

[_ _______ _

... f''

:7' c
...,.,----:;--r
f ~

Hddit1onal costs against certain joint debtors (itemize}:

(Writ of Possession or Writ of Sale) Judgment was entered for the following:

a.C?..J

Possession of real property The ccrnplaint

was filetd on (date)

09/2t)/ I 0

{Check (1) or (2)):

(1)

2J The Prejua9ment Claim or Right to Possession was served 1n compliance with CCP 415.46.

(2)

CJ The Prejudgment Claim of Right to Possession was NOT served in compliance with CCP 44 5 46

The judgment includes QI! tenants. subtenants. named claimants. and other occupants of tho premises

CJ

(a) S
was the daily ren!al value on the date the complaint was filed
(b) The court will hear objections to enforcement of tne judgment under CCP 1174 3 on the foliowing
dates (specify):

Possession of personal property.

If delivery cannot be haa. then for the value iftemize in 240) specified in the judgment or supplernental order

c.

-1

_.i

Sale of personal property.

d L~ . -J
Sale of real property
e Dcsc:wt1cm uf prooe:1fy:

,-,

Archibald Cunningham, an individual, excluding any

r _

current tenant residing on the property

----~-4~_9 ~cAflist~.'.'_~-~r.6.:!'._~_~nfrancis~o. C.A:~'.:115 .:/

_-----------..

______ .....-........

. ...

NOTICE TO PERSON SERVED

WRIT OF EXECUTION OR SALE Your rights and duties are indicated on the accompanvin9 Notme of L&vy (Form EJ-150)
WRIT OF POSSESSION OF PERSONAL PROPERTY. If the levying officer is not able to take custody of the property. the levying
officer will make a demand upon you tor the property. If custOdy is not obtained follow1ng demand. the judgment may be entorceCJ
as a money judgment for the va1ue of the property specified In the 1udgment or in a supplementalbrder.
WRIT OF POSSESSION OF REAL PROPERTY. If the premises are not vacated within five days after the date of serv'ice on the
occupant er. if service is by posting, within five days after service on you. the levying officer wiii remove the occupants trorn the real
property and olace the judgment creditor in possession of the property ..Except for a mobile home, personal property remaining on
ihe pre.mises will be sold or otherwise disposed of in accordance 11'\ith c:cp 1174 unlen you or the owner of the property pays the
judgment creditor the reasonable cost of storage and taKespcgsession of the personal prop1trty not later than 15 days after the
; time the judgment creditor takes possession of the premises. \
,
, .. A Claim of Right to Possession fom1 EJr:companios /his writ (un/fJ6s the Swnmons was served in compliance with CCP 415 461
--- .............. _.,....................... ------"""---------.. .. ------...............----..,;-.---- ---.. . ----------'"
, .. ------......... ..
~-----~

------.

142

143

'

143

144

ATTACHMENT D

ATTACHMENT D

144

145

I
2

3
4

F I. L E D

KEVIN SINGER
SUPERIOR COURT RECEIVER
RECEIVERSHIP SPECIALISTS
795 FOLSOM STREET, 1sr FLOOR
SAN FRANCISCO, CALIFORNIA 94107
TELEPHONE (415) 848-2984
FACSIMILE (415) 848-2301
E-mail: Kevin@ReceivershipSpecialists.com

Superior Court of California

County of San Francisco

SEP 2 9 Z013
SY:

CLE :-<OF THE COUR

-.&{ JO C< ~[M.M..
Deputy Cler

Property Address:
1487-1489 McAllister Street
San Francisco, CA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO

10
11

12

MICHAEL COOMBS; TAMARA WOODS,

Petitioner(s),

13
14

vs.

15

ARCHIBALD CUNNINGHAM; and

DOES 1 to 20, inclusive,

16

Respondent(s).
17

18

CASE NO: CPF-10-510760

SUPERIOR COURT RECEIVER'S

REPORT FOR AUGUST 2014 AND
NOTICE OF INTENT TO PAY
RECEIVER'S FEES AND EXPENSES
NOTICE THAT AUGUST 29, 2014 WRIT HAS
BEEN REVOKE AND SEPTEMBER 30, 2014
HEARING FOR CLAIM OF RIGHT OF
POSSESSION FOR HUMBERTO RUIZ IS
MOOT AND SHOULD NOT GO FORWARD

19

DEPT: 501
20

Judge: Hon. Ronald E. Quidachay

21

22

Court: San Francisco Superior Court

400 McAllister Street
San Francisco, CA 94102

23
24

25
26
27
28

Receiver's Report

148

145

146

RECENERSHIP SPECIALISTS
STATE AND U.S. FEDERAL COURT RECEIVERSffRUSTEES

SUPERIOR COURT RECEIVER'S REPORT FOR AUGUST 2014 AND

NOTICE OF INTENT TO PAY RECEIVER'S FEES AND EXPENSES

Presented By: Kevin Singer, Superior Court Receiver

Corporate Headquarters
Los Angeles
11150 W. Olympic Blvd.
Suite 810
Los Angeles, CA 90064
Tel: (310) 552-9064
Fax: (3 I0) 552-9066

CASE NO. CPF-10-510760

San Francisco
795 Folsom Street
1st Floor
San Francisco, CA 94107
Tel: (4 I 5) 848-2984
Fax: (415) 848-2301

MICHAEL COOMBS; TAMARA WOODS,

Petitioner(s)
vs.

San Diego
4370 La Jolla Village Drive
Suite 400
San Diego, CA 92122
Tel: (858) 546-4815
Fax: (858) 646-3097

ARCHIBALD CUNNINGHAM, and DOES 1 to 20, inclusive,

Respondent(s)
Judge: The Honorable Ronald E. Quidachay
Property: 1489 McAllister St., San Francisco, CA
A Condominium Residence

Sacramento
980 9th Street
16th Floor
Sacramento, CA 95814
Tel: (916) 449-9655
Fax: (916) 446-7104

September 25, 2014

Dear Vested Parties:
The Court appointed me Receiver over 1489 McAllister St., San Francisco, CA
(the "Property") for the purpose of selling it to satisfy the April 13, 2011 judgment of
Michael Coombs and Tamara Woods (collectively, "Petitioners") against Archibald
Cunningham ("Respondent"), et al. Although I have an appraiser and a broker at the
ready, Respondent has barred access to the Property, thus prohibiting a market rate sale.
As previously reported, on August 5, 2014, this Court granted Petitioners'
motions for attorney fees, and granted my motion for a writ of possession. Per this
Court's instructions, Petitioners' counsel prepared a proposed order on Petitioner's fee
motion and I prepared a proposed order on my writ request, which the Court approved
on August 19, 2014. Subsequently, my staff prepared a writ in keeping with the
Court's order that the Court clerk signed ("Initial Writ"), and presented to the Sheriff
to set a lock-out date (See "Exhibit l" attached).

Las V1;gas
7251 W. Lake Mead Blvd.
Suite 300
Las Vegas, Nevada 89128
Tel: (702) 562-4230
Fax: (702) 562-4001
B&!!Q

200 S. Virginia Street

Suite 800
Reno, Nevada 89501
Tel: (775) 398-3103
Fax: (775) 686-2401
~

40 N. Central Ave.
Suite 1400
Phoenix, Arizona, 85004
Tel: (602) 343-1889
Fax: (602)343-1801

On September 23, 2014, in an ex parte motion before the Court, Defendant

contended that the Initial Writ was inconsistent in that it contained ambiguous language
that could lead the Sheriff to remove the tenant, and not just Respondent Archibald
Cunningham. Although the Court denied Respondent's motion, out of an abundance of
2

Receiver's Report

148

146

147

caution, I had the Initial Writ re-issued, signed by the clerk ("Re-issued Writ") and
presented it to the Sheriff (See "Exhibit 2" attached). Therefore, since the initial writ
which is identified in "Exhibit l," has been revoked, the September 30, 2014 bearing
for Claim Of Right To Possession and Notice of Hearing for Humberto Ruiz is moot
and should not go forward. I expect that this Reissued Writ will succeed in removing
Respondent Archibald Cunningham. Once he is removed, I expect to be able to have the
Property inspected, appraised and marketed for sale.
As noted previously, Respondent Cunningham named me in a new suit, along
with Judge Quidachay and other judges of the Superior Court, the California Supreme
Court and the California Court of Appeals. The gist of Respondent's claim is that the
justices are not doing their jobs by allowing me in effect to practice law without a
license (even though everything I have filed is in pro per, which does not require
attorney representation under the law and notwithstanding that court "receivers" are
permitted to seek instructions from the court). My Court-approved counsel, Ron Oliner,
has informed me that Cunningham has submitted a number of amendments to his suit.
Please find the following additional documents:
1) Exhibit 3: Financial Statement for August 2014; and

2) Exhibit 4: Receiver's Billings for August 2014.

As always, I encourage input from all parties and strive to obtain mutually
acceptable and beneficial solutions to the issues before the Receivership Estate.
esp tfully Submitted,

,......--~

~0

Kevin Singer,
Superior Court Re er

Receiver's Report

148

147

148
'

..

EXHIBIT 1

148

149
'

.
II

i~~;~~Nrs'~~g~T;

; , r~our

Ii f'TOH'i~:.,

NV;;,~ :~;,~;i""a; ~~;;,'/,~;~;~j;tu-;;,;~i .... -------..-----..

Sup.:riPr Cullrl R1;;c.:i:ivt.>r

; 7<,15 l-\>l~\Jlll Stn:t:t. I:>l Flour

'

S<tn 1:ranci!KO. C.'\ IJ4 I 07

(41))848-2984

rpe.D:;rv..

. r.;: ..~.- ':>:.~~t~~. f.:'.~~

(415)848-2301

f<.<N''.I

K-ev j n(uiRec.ci\i(.WShipS rec iuliSIS;(.'.\)111

f"Mll A('l0'1fl'

1.: -~1. . ~'.:1~~Mr.t:t!_":~!_:?~?~ ... ~-7=J~:~~?~l;~-~~~f:~~7'.~~(J

. SUPERIOR COURT OF CALIFORNIA, COUNTY OF

:niti:nrm,,F.s~

400 McAllister

"'~ "'~' ,,r.:1r.F!'1:

R(l0lll

SAN FRANCISCO

Str~ct

I OJ

"''" .mz11.. .::otJ" San lrnncbt<.l. Cl\ 94102

\~IC'l

r:::Ft-:Nc>ANT
r-
i

WRIT
OF

I'

.\RC 1 f113i\I D

Cl

.INNl1\CiH1\!VI: and DOES

L__ . .i

EXECUTION (Money Judgment)

[j]

POSSESSION OF

C.. 1 SALE

...

..... --- -

CJ

L.i.J

.. . .. ..... -

J .. 20.

indw,

i-
CJ

------~-

~nlmcc' t:10 Jlldgmant descritiecJ

Limited Civil Case

1rvomo} 1,~\ 111

bek>w with

assignee of record

Judgmant dnbtor (name rype of legal <mtify slalecl in

_11.'!'.'',?"ll"li' ii mir "' na!urnl purscJn, uncJ last known
. ~J.:J: it'~ -~.lj)

r .. --

--..--1

Archit,ald Cunningham. an individual

'

'148!::l McAllister Street

Sm1 Francisco, CA 94115
I

!.. ......_ .

'.~- 'i

AdcJrt1c:nal

jt1dgm<~nt

debtors on next page

g ,, l D 1'-(it.
1 .1uctgmE111Re~we&'o~msr it

5 .Judgment entered on r<lmol

Notice of s~lc uicJer ttif:i

c. ~:./)

.. .

.,_

'

of ~nn Francisco
daily interest ano your cons

C\JUl1()'

as prtivided by l?.w

~fith

CCP 699.080 or CCP 7i$.040.

Singer. St1perior Court Reccivtr

r::: judgment creditor EJ

,, thi;
~

Small Claims Case

J Unlimited Givil Case

To any registored process server: You are aut11onzed to serve 1t1is writ only in accord

i..

CPF-10-51 <17()()
------------.
. . ---[_J

c.=:J Other,_____ ...... _,,. ....

.......... ................ -----. - ...,_ . --- ... ----. - .. . .-- .. ---- ..
[(

ancl

........ J.-i:xriEr;;;;nr.~

Personal Property
Real Property

To the Sheriff or Marshal of the County of: Cit)'

'tra; art! :Jirecl')d to

---!

IM::t. COOMBS. '11\l'vli\l~l\ \VOC)l)S

.mt

Whose address is shown on this lorrn above the court's lame.

["lJ

10. l... ..... , This writ 1s ssued tin a sister-state 11.1df.j!T1~~nt

11 Total :\1dgrnant
$
12. Costs after iuLigmem irmr fiiod ort1er or
merno CCP 685.090)
S
13 Subtotal (Cid'! i 1 ami 12)
3
14. Credits
s

rs. Subtotal (subtract 14 from '1.3).

15_ Interest aft<:1r juogment (per 1'1led affidavit
CCP 685.050) (not on GC 13103 5 fees)
' 7 Fee for isi;1.11mce of writ .

$ ...... _,............. __ ...,...... .

18. Total (<;Cid 1:; 16. and 171

19. Levying officer:
(a}

t1;is ''''' b'Jan '"Q1.ms1m1.

See next page for infcrrnatron on real or personil property tc !;ii;

t1elivered under a writ of possessron or sold under a wrrl of s:-Jle

Add daily intere,;1 from :late of wnt

(M flw l<iw81 m1e an 15j ('lot o;

GC 6"103 6 feesj of
(b) F'ay Llirec\'Y to coul'I coo;t' incrurlod 1n
11 nnd 1 i' (GC o10J.5, 6~63~;

t:

CCP (i99.t>20fi))

OEPtJf.Y C.LERK

20. [' '_]The <imoimts called fo u1 items 11-19 am cJiFfere11t tr,r eacti dellte:
These flrnounts are s111ted for each cJebtor on Att<1chrnent 20

~~~=;~;~-~~J.izv~4 c'"''1'::~~ ""'""

--- ~'!~'5:~!?.~~~-~~ SERV~~:_se~-~:_~~~o~~~A,~gjfj!.1~~~~:. . .

..

L:

WRIT OF EXECUTION

. ... ---- .................... _ . - ... ---- ......... _ ..............~~1~1 ..1

C:nc11>

' r~vti r~r<.t<. :ri""' 5~ ooi;.. ~\:;v

or

i'~ 1. um. ; Jlj :1~'

149

150

,----f''LAlr~'Tirr-

1vii('Tii\f.T0)0 MnS:~~:\:\iA"iv\'"\\;()oD5-----------T- :;~.;~;:~:,~:t;FR

: -~--'t~:~.'."lllAN ~~l~~~~~J_>._'_~~

'.:'J_N !NOH A1~.'.-'~~1-~l. l_).~J!:;~--L~~-(~.

-

21 !

______________________

e,1_~u-~

CPI -1 IJ-51 tr!(ilJ

i_1H:I us~_L ______ _

Items continued from page 1---

__! Aclditional )L!Clgment debtor (r1amo. type of legal en!tW stated

;n 1uag1J1" I If 1101 u na111rni or son. imcl lr:1st Jmowri <Jddress)

;---- . -- .
-------,
:--

-----~

22. [ : Notice of sale has been requested by

:::i

l ____...............

(name eno address).

-----1

Jol11t debtor was rJ;;,i;inc~(! t>OLo11c tJy cl1e ll1r:1gmo111 iCCP 9El9--(J9,li
,-, ()f'\ (cli1f1'}
" r;" r1!dlej
b flame type of 1\gal 0n1ny stated in 1utt9nient 1f nnt
c, narnc: '.ypc! Lif l~ga! ontity statec 111 JL1dgn1ent 1t 'IOI a
;i natural per::;on. a1d last known arJclre:o;~,: ~;r iOl tl lh,t;tor
r.at11m1 p~irscn and last known address of joint tfobtor
. ......

(; ':''... J
f.'4.

--------1

,---..

_______ J

!......

----

ndditionnl costs agains1 cwta1n joint debtors (itemize).

./..J 11/\'ril of Po.~sessmn or Wtil of S;1/c1j Judgment was entered for the follc1win9
a.( '{ _)

Po5!;HSt;io11 cif nrnl propcirty The cc.111pla1nt was filed on (rfate)

09/29i I0

(Check (1) or (2)).

-7-_ nit- Prejudgment Clairn or Rigt1t to Po~~;ession was Stoived 1n compltance witt1 CCP 415 46
'- n1e Judgrnent inclLtdes all len<ims. subtenants. named claimants. and othor occ:uw1ts ot the p11m11ges.
i2i [::.: ..~; 'f!1e Pre1LJdgme11t G!011rn (Jf Righi to Possession was NOT served 1n complian:.::e witn CCP 4'5.413
. 1.1

(a) $

was the dally rental value on the datn the complaint was filed
(b) The cm11i will hear objectio1,s to enforcement of Hie judgment under CGP 11711 3 on tl1e foliow1ni

dates (s1;ecify):
I> c=~

Poss'!lsr.ion of plC'rsnnal prnparty.

~iuln

-~=:: If ~ie!ivtHY r;:;111not bti l;acJ. then fl)r the value (1/emi2t1 in 240/ spec1fiec1 in the Jli<.Jgmunt 'Y" ~t1oi:1r:in<-mlal or,_lt-1

of personai property

s,~le

,,,

Do.~c:11.;m1;

Qf real rwpnrty
of p1oor-,r1y

Archibalcl Cunningham, an individual, excluding any current ten<ml resicling on the property
1489 McAllister Street, San Francisco. CA 94115
NOTICE TO PERSON SERVED
WRIT OF EXECUTION OR SALE Your rights and duties aw inrJlcated on ttl~ ac;c;omp1.rny111J Notlc:a of l.&vy [Form EJ-1501.
WF~IT OF POSSESSION OF PERSONAL PROPERTY If the ievying officer is not ablu to take custody of the property, til~) levying
<:fftcer will rnake a uernand upon you tor the property. If custe>d~ is not obtained tollow1ng demand, the )udgm<lnl may be entorced

iis a rnoney iudgcnent for tl1a value rJf the property specified In the judgment or in a supplemental order
WRIT OF POSSESSION O~ REAL PROPERTY. If ttie premises are not vacated within five days after the d;irn uf serv;c:e on the
;1cc.1p<1ril or, if S(irv1ce is by posting. within five tlays after seNice on you. the levying offiuer will remove tl1e occupants from tile reci:
property aria plm:.I:! the judgment c:rnditor ill possession of the property, Except for a mobile home, personal property remaining 011
1h1 premises w_ill be sold or otheiw1se disposed of in <1ccord::inco with CCP 1174 unless you or the owner of the property pays 1l1e
1ud9mcm creditor the reasonable cost of stcJrage and taXES possessiM of the personal property nCJl l<tler than 15 rJays after the
t111e \hP. 1udgment creditor takes possession of thei pre1TJisP.s
11> A Claim of R19nt to Possession form ar.compnnh1s this wri.' (unlos.s thc1 Swnmons was servuc'i in compl1an1:e with CCP 41.5 46)
- ...
.. . -- . .
- . -- ..-- .. _ ...
.......... ' .. . . . -- . _. --- .
.. -- -- .................... --- .. -...... ..
-... --- ,..... -"-.

------

------

WRIT OF EXECUTION

Pill\)t

1 of 2

150

151

EXHIBIT 2

151

152

numo.r .na-r
evm mger
Superior Court Receiver
795 Folsom Street, Ist Floor
San Francisco. CA 94107
TELEPHONENO.. (415) 848-2984
FAXNO
(415) 848-230 I
e-MA1LAOORESS Kevin@ReceivershipSpecialists.com

FOR COURT l/U ONL. Y

~QRtlEYSfi PARTY 'MTHOUT AnORNEY rN-. StalV Bar

ATTORNEY FOR (l'llltllfl}.

ATTORNEY FOR

JUDGMENT CREDITOR

rn

ASSIGNEE OF RECORD

SAN FRANCISCO
400 McAllister Street
Room 103
San Francisco, CA 94102

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

STREET ADDRESS
MAILING ADDRESS

CITY A.ND ZIP C00E

BRANCH NAME

PLAINTIFF:
DEFENDANT:

MICHAEL COOMBS: TAMARA WOODS

ARCHIBALD CUNNINGHAM: and DOES 1-20. inclus.
I

D
WRIT
OF

EXECUTION (Money Judgment)

[{] POSSESSION OF

SALE

0
CZJ

IDm

Personal Property
Real Property

1. To the Sheriff or Marshal of the County of:

I
I

CASE NUMBER

CPF-10-510760
LimHltd Civil Caae
Unllmltlld Clvll Caae

D
D

'

Small Clalma Case

Other

City and County of San Francisco

You are directed to enforce the judgment described below with daily interest and your costs as provided by law.

2. To any registered proceaa server: You are authorized to serve this writ only in accord with CCP 699.080 or CCP 715.040.
3. (Name): Kevin Singer. Superior Court Receiver
Is the D judgment creditor [L] assignee of record
4. Judgment debtor (name, type of legal entity stated in
judgment if not a natural person, and last known
address):

1
Archibald Cunningham, an individual
1489 McAllister Street
San Francisco, CA 94115
L__

D Additional judgment debtors on next page

5. Judgment entered on (date):
8-20-14 by Order

6.

Judgment renewed on (dates):

7. Notice of sale under this writ

a.
has not been requested.
b.
has been requested (see next page).

CZJ
D

8.

(SEAL)

Joint debtor information on next page.

whose address is shown on this form above the court's name.

9.

See next page for information on real or personal property to be

delivered under a writ of possession or sold under a writ of sale.
10. 0
This writ Is issued on a sister-state judgment.
11. Total jUdgment .......... , . . . . . . . . . $
12. Costs after judgment (per filed order or
memo CCP 685.090) . . . . . . . . . . . $
13. Subtotal (add 11 and 12) . . . . . . . . . $ - - - - - - - 14. Credits . . . . . . . . . . . . . . .
$
15. Subtotal (subtract 14 from 13). . . . . . . $ - - - - - - - 16. Interest after judgment (per filed affidavit
CCP 685.050) (not on GC 6103.5 fees)... $
17. Fee for issuance of writ . . . . . . . . . . . . . . $
18. Total (add 15, 16, and 17). . . . . . . . . . . . $ = = = = = = = =
19. Levying officer:
(a) Add daily interest from date of writ
(at the legal rate on 15) (not on
$
GC 6103.5 fees) of. . . . . . .
(b) Pay directly to court costs included in
11 and 17 (GC 6103.5, 68637;
CCP 699.520(i)) . . . . . . . . . . . $
20.

The amounts called for in items 11-19 are different for each debtor.
These amounts are stated for each debtor on Attachment 20.

,__iss_ued_o_n_~_da_t_e)_:_ _ _ _ ___,!

Clerk, by

. Deputy

NOTICE TO PERSON SERVED: SEE NEXT PAGE FOR IMPORTANT INFORMATION.

P1ge 1 ora

WRIT OF EXECUTION

Code of Civil"''*"'" ff 6119 520. 712 010, 715010

ao......- ~. f 0100.s

..-.cou111 ca pov

152

153

PLAINTIFF:
,_DEFENDANT:

21.

MICHAEL COOMBS; TAMARA WOODS

ARCHIBALD CUNNINGHAM: and DOES 1-20, inclus.

r-

L__

23.

Notice of sale has been requested by (name and address):

r-

---i

L__

__J

CPF-10-510760

- it.ms continued from page 1Additional judgment debtor (name, type of legal entity stated
in judgment ff not a natural person, and last known address):

~-

22.

CASE NUMBER.

,___J

Joint debtor was declared bound by the judgment (CCP 989-994)

a. on (date):
a. on (date):
b. name. type of legal entity stated in judgment if not a
b. name, type of legal entity stated in judgment if not
natural person, and last known address of joint debtor:
a natural person, and last known address of joint debtor:

r-

--i
___J

c.

additional costs against certain joint debtors (itemize):

24. [ZJ (WHt of Possession or Writ of Sale) Judgment was entered for the following:
a.ClJ Possession of real property: The complaint was filed on (date): 09/29/ I0
(Check (1)

(1)

or (2)):

The Prejudgment Claim of Right to Possession was served in compliance with CCP 415.46.
The judgment includes all tenants, subtenants, named claimants, and other occupants of the premises.
(2) [ZJ The Prejudgment Claim of Right to Possession was NOT served in compliance with CCP 415.46.
(a) $ 0
was the daily rental value on the date the complaint was filed.
(b) The court will hear objections to enforcement of the judgment under CCP 1174.3 on the following
dates (specify):
b. D

Possession of personal property.

If delivery cannot be had, then for the value (itemize in 246) specified in the judgment or supplemental order.
c. D
Sale of personal property.
d. D
Sale of real property.
e. Description of property:

Archibald Cunningham, an individual, excluding any current tenant residing on the property
1489 McAllister Street, San Francisco, CA 94115
NOTICE TO PERSON SERVED

WRIT OF EXECUTION OR SALE. Your rights and duties are indicated on the accompanying Notice of Levy (Form EJ-150).
WRIT OF POSSESSION OF PERSONAL PROPERTY. If the levying officer is not able to take custody of the property, the levying
officer will make a demand upon you for the property. If custody Is not obtained following demand, the judgment may be enforced
as a money Judgment for the value of the property specified in the judgment or in a supplemental order.
WRIT OF POSSESSION OF REAL PROPERTY. If the premises are not vacated within five days after the date of service on the
occupant or, if service is by posting, within five days after service on you, the le'l)'ing officer wilf remove the occupants from the real
property and place the judgment creditor In possession of the property. Except kir a mobile home, personal property remaining on
the premises will be sold or otherwise disposed of in accordance with CCP 1174 unless you or the owner of the property pays the
jl,ldgment creditor the reasonable cost of stora.ge and takes possession of the personal property not later than 15 days after the
time the judgment creditor takes possession of tne premises.
.,. A Claim of Right to Possession form accompanies this writ (unless the Summons was served in compliance with CCP 415.46).
EJ130 [R .. .i.iuaty 1, 2012]

WRIT OF EXECUTION

P1ge Zot Z

153

..----------------------------------.,..
154

PLA1N:trr

i..

an<.l

'

(;A$F. '-IUMflFR

MICHAEi. COOMf3S: TA:\1ARA WOODS

/\RCHIBA!.D CL.:NNINGHAM;

ul:.f't:NllANl

-- ------

CPF I 0-510760

DOES 1-20. inclu:;.

----------- -------------..--...

. ............... .. .._,,

- Items continued from page 121

' Additional Judgment debtor roame, type of legal entity stateci

in Jt1dgment if not a natural person. and li.lst known address;:
----1

rI

---~

/) J
.> f"

22. ['"] Notice of sale has been requested by (name and address):

. ~~~ ~ ~

['"-~----

n :r; rr,

::0 -r' c
:>' J p;
.:?. <.r; ;

Joint debtor was declared bounc by the 1udgment ~ CCP 989--994)

~
a. on (dste)
ti on (cJator
0 r~
b name. 'ype of lega! entity statec: in judgment if 11ot a
b. rame. type ::if legal entity stated in judgrnent'!f:>lot f) ~ 1..:
natwai perso1 and last known address of joint debtor
a natural person. and last known addres!l of.l.11;,nt del:ijpr.~.

23

'::?

c ~-..]

---;

i---

__ j

[_ __ .

"' -- . '5""!.'

ad\iit1onal costs against certain joint debtors (itemize;.

24. '. :;] (Writ of Possession or Writ of Sale) Judgment was entered for the following

a.[?..J

Possession of real property: The ccrnplaint was filed on (date)

09/29i I()

(Check (1) or (2)):

(1)

2J The Prejudgment Claim of Right to Possession was ser;ed 1n compliance with CCP 415.46.

The judgment includes all ter,ants. subtenants. named claimants. and other occupants of the premises
!2) r=~::; The Pre1lJdgment C!a1rn of Right to Possession was NOT served 1n complian:e witn CCP 4, 5.46
(a) $
was the daily rental value on the date the c:mnplaint was filed
(b) The court will hear objections to enforcement of the judgment under CCP 117 4 '.I on the foliow1ng
Clates (specify):

o '----~

=:

c _

Sale of persona; property.

_i

Possession of personal property.

If deiivery cannot be haa. then for the value u1emize in 240) soecif.ea in the judgment or supp:ernentiil order

d L~.. J Sale of reai property

e Desc;1p\1cn of prooenty:

,;

Archibald Cunningham, an individual, excluding any current tenant residing on the propertf
. ______24~9 ~cAllist~~-~.~~e:!:_~-~-n Francis~~ Cft,_ ~4_115

,..
i

<".

-----

---.. . . . . . . . . . . . .

NOTICE TO PERSON SERVED

WRIT OF EXECUTION OR SALE. Youi rights and duties are indicated on the accompanying Notice of Levy (Form EJ-i50).
WRIT OF POSSESSION OF PERSONAL PROPERTY. If the levying officer is not able to take custody of the property. the levying
officer will make a demand upon you tor the property. If custody is not obtained following demand. the Judgment may be entorcea
, as a money judgment for the va1ue of the property specified In the 1udgment or in a supplementalbrder.
WRIT OF POSSESSION OF REAL PROPERTY If the premises are not vacated within five days after the date of ser.i;ce en the
occupant or, if service is by posting, within five days after servce on you. the levying officer wiii remove the occupants from tne real
property and olace the jlJdgment creditor in possession of the property. :Except for a mot;ile home, personal property rema1n 1ng on
ilie premises will be sold or otheJWise disposed of m accordance Vi(lth CCP 1174 unless you or the owner of the property pays the
judgment creditor the reasonable cost of storage and taKes#O!lsession of the personal property not later than 15 days after the
time the judgment creditor takes possession of the premises. ~
'
'...~ ~ ~1~1-~..!_ ~i~~t to!_._s~.:~~1-~'..C'.7.~ ~~'!!!'.~''.i~:~_'.'.1i: ".".~1-~!'!!!!!~-t'._l_f!_ -~-~1nm.a..ns w~_s _~!!_~!!'.~~ ~ompli~~itl'.~CP 41-~
i

__

. ...........
WRIT OF

~~--;---

..........

--------"""--~---

................

46!___ ...

-~---p;g;2

;,2

EX~CUTION

154

155

'

............ . .
'

155

156

ATTACHMENT E

ATTACHMENT E

156

157

Pages 1

26

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
Before The Honorable William H. Alsup, Judge
ARCHIBALD CUNNINGHAM,
)
)
Plaintiff,
)
)

vs.

NO.

C 14-03250 WHA

)
)

KEVIN SINGER, Court-appointed

)
receiver, RECEIVER SPECIALISTS,)

a California licensed business,)

JOHN SCOTT MCKAY, an officer of)
the court and attorney in the
)

underlying case, MICHAEL

COOMBS, property owner and

partner in condominium
association;

)
)

TAMARA WOODS,

property owner and partner in

)
condominium association, JUDGE )
DONALD EVANS QUIPACHAY, San
)

Francisco $uperior Court Judge,)

JUDGE LILLIAN SING, San
)
Francisco Superior Court judge, )
PRESIDING JUDGE MING-LEE,
Presiding judge of the San

Francisco Superior Court, T .

. MICHAEL YUEN, Court Executive

Officer for Superior Court of

San Frmcisco, CHIEF JUSTICE

CANTIL-SAKAUYE, Chief Justice

of State Supreme Court, Chair
of California Judicial Council,)

PRESIDING JUSTICE ANTHONY.

KLINE, California court of,

Appeals, First Appellate

)
)

Division, JUDGE JAMES :RICHMOND,).

Justice of California c;purt of )
Appeals, First Appellate
)

District,

,.
'

DOES 1-10.

Defendants, and

)
)
)

...

San Francisco, California

Thursday, January 8, 2015

8:45 a.m.

>
TRANSCRIPT OF PROCEEDINGS

19 157

158
2

APPEARANCES:
For Plaintiff

Archibald Robert Cunningham

Archibald Robert

Attorney at Law

Cunningham:

1489 McAllister Lane

94115
San Francisco, CA
(415) 563-1828

3
BY:

4
5
6

ARCHIBALD ROBERT CUNNINGHAM

McKay & Leong

For Defendants

California Boulevard,

John Scott McKay;

2175 N.

Michael Coombs;

Walnut Creek,

Tamara Woods:

(925)
(925)

7
BY:

J.

CA

932-6095
932-5434

suite 775

94596

(fax)

SCOTT MCKAY

8
9

For Defendant

Duane Morris LLP

Kevin Singer:

One Market Street

Spear Tower,

Suite 2000

San Francisco,

10

CA
94105-1104
957-3013
957-3000 (fax)
ARON MARK OLINER
(415)
(415)

11
BY:

12
13
14

Reported By:

Lydia Zinn,

CSR No.

9223,

Official Reporter

15
16
17
18
19
20
21
22
23
24
25

20 158

159
3

THE COURT:

Now we go to Archibald Cunningham versus

Kevin Singer and a long list of other defendants,

14 -3 250.

Good morning.

MR.

OLINER:

Good morning,

Your Honor.

MR. MC !CAY:

Good morning,

Your Honor.

MR.

THE COURT:

MR.

Mr.

OLINER:

OLINER:

THE COURT:

11

MR.

myself,

MC !CAY:

THE COURT:

Ron Oliner,

Duane Morris,

counsel to

Your Honor,

on behalf of

All right.
Scott McKay,

Well,

and Tamara Woods.

who represents all of these other

defendants?

15

MR.

16

THE COURT:

17

MR. MC !CAY:

18

THE COURT:

19

MR.

20

THE COURT:

21

MR.

22

What?

and Michael Coombs,

13
14

Ron Oliner.

Singer.

10

12

Case Number

Yeah,

MC !CAY:

MC !CAY:

They have not appeared yet.

They haven't appeared?
That's correct.
Have they been served?
I

don't know.

All right.

CUNNINGHAM:

You'd have to ask Mr.

And you are?

I am Archibald.

I believe they have.

23

THE COURT:

24

MR.

25

THE COURT:

You're Archibald?

CUNNINGHAM:

Right.

Cunningham?

21 159

160
4

MR.

CUNNINGHAM:

THE

COURT:

MR.

CUNN INGHAM:

THE COURT:

MR.

THE COURT:

Truly.

Are you a lawyer?

I am.

Okay.

CUNN INGHAM:

so you're representing yourself?

I am.

All right.

Welcome.

Okay.

Well, let me ask that preliminary question.

Now, it's your motion.

served all these Judges and these other people?

10

MR.

CUNN INGHAM:

11

THE

COURT:

12

MR.

CUNNINGHAM:

13

THE COURT:

15

MR.

16

THE COURT:

has been served.

My process server assured me that

19

THE COURT:

dismiss.

As of?
Probably August.

So as of August, everybody in this case

That's what you're telling me?

MR.

21

You think, or you know?

CUNNINGHAM:

18

20

Yes, I think they have been served.

they had been served.

14

17

Have you

CUNNINGHAM:

Yes.

All right.

So it's your motion to

Go ahead.
MR.

MC KAY:

Your Honor, there are actually six

22

motions that have piled up over the last six months, as we've

23

kind of been bounced from j udge to j udge.

24

really only two motions here that need to be addressed.

25

the first motion is the motion to dismiss for lack of

I think there's
And

22 160

161
5

jurisdiction.
As can be seen from the Complaint filed by Mr.

Cunningham,

all that he is complaining about is erroneous decisions in

prior state court proceedings,

final.

state court proceeding back in April of 2011 that was appealed.

The judgment was --

8
9

He's complaining of a judgment that was entered in a

What was that judgment for?

THE COURT:

went to arbitration,
MR. MC KAY:

11

THE COURT:

Yes.
So how could there be a judgment,

MR.

judgment by the San Francisco Superior Court.

15

became a judgment.

16

by Mr.

So the award

That judgment was entered in April of 2011.

THE COURT:

thought there was a challenge,

though,

Cunningham to the validity of the arbitration award.

MR.

18

MC .KAY:

That's correct.

19

things he raised on appeal.

20

Mr.

And that's one of the

And that was decided against

Cunningham on appeal.

21

THE COURT:

22

MR.

23

THE COURT:

25

if

The arbitration award was affirmed by a

MC KAY:

14

24

thought it

there was an arbitration?

13

17

and --

10

12

all of which proceedings are

MC KAY:

Was that raised in the Superior Court?

Sort of.
What did the judge .in the Superior Court

say?
MR. MC KAY:

The judge decided that the tenancy in

23 161

162
6

common agreement,

which was the agreement that we said was the

controlling agreement -- the Court agreed with us;

to be the controlling agreement .

found that

We then litigated the matter further on appeal.

And the

Court of Appeal,

Court,

that that was the controlling agreement.

been fully litigated to finality in both the trial -- state

trial court,

10

in a decision that I've submitted to the

again determined that we carried our burden of showing

and the state court of appeal.

THE COURT:
Cunningham.

11

Mr.

12

lot of merit,

13

you want to say.

So I'll just be frank,

All right.

I think the motions by the other side have a

but I want to give you an opportunity to say what

MR. CUNNINGHAM:

14

Well,

first of all,

I think the expression you used,

15

one of

16

that's been going on for a long time.

17

for controlling the narrative.

18

He's hoodwinked judge after judge.

THE COURT:

20

MR. CUNNINGHAM:

21

THE COURT:

22

MR. CUNNINGHAM:

23

THE COURT:
suing them?

25

you're suing.

I mean,

Mr.

this has been

"sleights of hand"
McKay's got a genius

I give him credit for that.

He's what?

19

24

So that issue has

Well,

Hoodwinked judge after judge.

you've sued judge after judge.
Truly.

In any

So which is worse?

Hoodwinking them,

or

look at this long list of Judges that

24 162

163
7

MR.

CUNNINGHAM:

THE

COURT:

MR.
that

6
7

You're suing the Chief Justice of the

State o f California.

4
5

CUNNINGHAM:

THE COURT:

Well,

CUNNINGHAM:

THE

COURT:

Mm-hm.

And you1re claiming that your due-process

rights were violated.

11

MR.

12

THE COURT:

CUNNINGHAM:

Mm-hm.

And you say things like,

" They appointed

a Special Master or receiver who was not a lawyer."

14
15

I just want to say you're coming

over here to Federal Court.

MR.

13

Well, is that the issue here, or is

--

10

Not too many.

So what?

Where does it say in the Constitution a state

court special receiver has got to be a lawyer?

16

It doesn't.

17

This is the most frivolous argument I've seen in a long

18

time.

19

MR.

20

THE COURT:

CUNNINGHAM:

Well

And I can say the same thing about a lot

21

of your other arguments, too.

22

That's your main argument.

23

MR.

24

THE COURT:

25

CUNNINGHAM:

Let's just stick with that one.

Which is my main argument?

From what I'm getting out o f your papers,

which are incomprehensible,

you say that this special receiver

25 163

164
8

that was appointed by the state court should have been a

lawyer, and he was practicing law without a license.

say that?

MR.

CUNN INGHAM:

THE

COURT:

I do say that.

Okay.

That's ridiculous.

They don't

The court appoints them

have to be a lawyer to be a receiver.

to go in there and take charge of this real estate.

8
9

Law-enforcement officers are not lawyers, either.

can be, but they're not,

law, but that's not practicing law.

11

that a receiver has to be a lawyer?

MR.

13
14

CUNNINGHAM:

I'm not saying a receiver has to

I'm saying that in order for a receiver to come into

court,

16

law before the court.

18

No,

Where did you get the idea

be a lawyer.

15

17

They

and they have a lot to do with the

10

12

Don't you

he has to be a member of the bar in order to practice

THE COURT:

All right.

Let's assume for the sake of

argument, which -- I disagree with that, anyway.

19

MR.

20

THE COURT:

CUNNINGHAM:

Mm-hm.

But let's assume for the sake of argument

21

you're right.

22

Where does it say in the Constitution that a receiver, to come

23

into court, must be a member of the bar?

24
25

MR.

Where does it say that in the Constitution?

CUNNINGHAM:

What it does say in Business and

Professional Code 6 125 is that no member -- any person who

26 164

165
9

isn't a member of the state bar cannot practice law in

California.

that when receiver comes into court,

representative capacity.

He's not a neutral party.

So the cases that I've cited again and again said

he's acting in a

He's acting on behalf of the court.

He's acting on behalf of the court.

California Rule of Court 113.1180 says that a receiver has

6
7

to get the approval of the court before he brings any motion,

any action,

California Rule of Court said.

any proceeding in court.

That's what the

So as far as the Constitution says,

10

I think you could look

11

at Boddie versus Connecticut.

12

meaningful opportunity to be heard.

And the fundamental

13

principles of due process is notice,

and an opportunity to be

14

heard.
So,

15

quite frankly,

That case talks about a

if I knew that a receiver,

16

view,

17

committing a misdemeanor,

18

Code 6 126(a)

19

lawyer or with the authority to practice law who is not a

20

licensed member of California,

21

THE COURT:

22

could practice law without a license,

under your

25

because Business and Professional

Says that anyone who holds themselves out to be a

which Mr.

Singer wasn't

But federal law doesn't regulate the

practice of lawyers in state court.

MR.

23
24

and not be

CUNNINGHAM:

Sure,

it doesn't;

but it does

regulate
THE COURT:

So --

27 165

166
10

MR.

1
2

It does regulate statutes that are

CUNNINGHAM:

unconstitutionally applied.
I'm saying this is unconstitutionally applied,

in the

sense that the state law doesn't give me notice or an

opportunity to be heard in terms that a state court judge is

just going to decide:

to be a member of the bar can just be waived willy-nilly by a

state court judge,

without three years of law school,

Hey,

the requirement that somebody needs

and a receiver can come in and practice law

without passing the bar,

10

without taking continuing legal education of the bar.

11

my point.
THE COURT:

12

All right.

13

a point under state law;

14

do.

15

Nonetheless,

Mr.

Cunningham,

I rather doubt it,

a violation of

That's

you may have

but possibly you

state law does not rise to the

16

level of a violation of

17

There is no decision in the history of the mankind that says

18

what you're telling me,

19

a due-process violation to allow you to sue under 1983

20

federal court.

21

MR.

22

state statute

End of story.

Period.

that something like that could rise to

in

That's just wrong.

CUNNINGHAM:

23

THE COURT:

24

MR.

25

due process.

You're saying that a violation of a

Correct.

CUNNINGHAM:

that makes practicing law a

misdemeanor -- someody comes into court,

and --

28 166

167
11

If they want to

It's up to California.

THE COURT:

say you can practice law or you can't practice law,

to them.
On the federal side,

we can't just say,

"Oh,

due process" to -- no.

regulating the practice,of law in state court.

look.

already taken so many appeals to various courts,

Court of Appeals for the Ninth Circuit,

one;

11

making is just completely wrong.

12

stated here.

You've

including the

you can take another

but I'm telling you this is wrong.

CUNNINGHAM:

So that

You can take an appeal.

10

MR.

that violates

We can't start intervening and

You can always appeal.

13

that's up

The argument you're

There's no federal claim

There was a federal case recently

14

saying that a receiver comes into federal court who isn't a

15

lawyer is not allowed to practice law,

So again,

16

and so forth.

applying a state statute in such a way,

in a

17

novel way,

18

negate a state law -- that would violate due process,

19

I'm concerned.

20

judge,

21

state statute to essentially negate a criminal misdemeanor.

22

mean,

23

I truly am deluded.

24

that.

25

where a judge is given the authority to essentially

as far as

I'm not given notice that the state court

with his inherent authority,

has the right to negate a

if that doesn't violate due process,

THE COURT:

Okay?

then,

you know,

I
then

So maybe I'll take an appeal on

I think you should,

because I'm going to

29 167

168
12

f''

rule against you on that one.

All right.

I want you to say whatever else you want to.

Let's move to the vexatious litigant.

I'm inclined to

find that you' re a vexatious litigant.

I want to give you a

full opportunity to say whatever you want on that.

these arguments that you have raised are beyond the pale.

reasonable lawyer would not raise these,

And

you've already been declared a vexatious litigant in the state

court,

I think

and I'm shocked.

but you haven't been declared so in federal court yet,

10

but I'm going to do that unless you talk me out of it.

11

ahead try to talk me out of it.

12

MR.

CUNNINGHAM:

Well,

as far as being declared a

13

vexatious litigant in state court,

14

litigant twice in state court by Judge Patrick Mahoney.

15

first time,

16

family law proceeding.

17

I wasn't even there.

THE COURT:

So go

I was declared a vexatious

I had pled.

The

It was in a

My wife ex-wife brought a claim.

What's that got to do with this?

What

18

Judge Mahoney did has nothing do with what I would do here.

19

I'm basing it on:

20

of people.

21

because every time you lose,

22

again,

24

that --

25

I'm sure I'll be in the next group of defendants,

MR.

23

You have had a pattern of suing a long list

CUNNINGHAM:

you add that judge to your list.

I know.

That's the narrative.

And

the issue that's been going on here for five years is

THE COURT:

Is it true,

or not?

It looks like it's

30 168

169
13

true.
I'll read you the Judges you've sued.

MR.

THB COURT:

CUNNINGHAM:

I get the point,

Quidachay.

Lillian Sing.

Cantil-Sakauye.

Chief Justice Tony Kline.

was -- I don't know if he's a judge.

MR.

THB COURT:

9
10
11

12
13

MC KAY:

Justice.
Justice.

James Roberston [sic].

He's a

Come on.

So I think you brought a bunch of frivolous claims here;

put a lot of people to a lot of work.

THB COURT:

litigant.

CUNNINGHAM:

And I don't see --

Okay, well

I don't see why you're not a vexatious

Seems like you are, to me.

MR.

CUNNINGHAM:

Five years ago, Mr. McKay brought a

At that time, WE HAD converted

18

motion on a 2007 TIC agreement.

19

our TIC agreement into condominiums.

20

That was a controlling, governing document.

We had a CC&R and bylaws.

So Mr. McKay now has run up $700,000 in fees.

22

for a hearing on my rights under the CC&Rs.

23

from my house, and I'm told my CC&Rs,

24

frivolous and unimportant.

25

He

Is he a judge?

trying to do their job -- and you just sue them.

15

21

James Richmond.

I mean, you don't like what somebody rules -- they're all

MR.

17

Ming-Lee.

judge.

14

16

sir.

I've asked

I'm being evicted

signed in 2009, are

And a prior agreement from 2007 -

the TIC agreements

31 169

170

14

after condo conversion -- somehow negate and control CC&Rs and

the California Subdivision Map Act.

I've been asking for five years for a hearing on this.

haven't been able to get that.

from my property by a nonlawyer.

Yeah.

7
8

I'm essentially being evicted

We'll -- i f you want to go to the -THE

COURT:

Well, what does it matter -- why -- i f

you are being evicted b y the receiver

MR.

10

CUNNINGHAM:

THE COURT:

Mm-hm.

-- there's a Court Order that says the

What difference does it make if he's a

11

receiver can do that.

12

lawyer or not a lawyer?

13

MR.

CUNNINGHAM:

It makes an incredible difference

14

because, one, in order to evict somebody, you have to be an

15

owner, a new purchaser, or have some standing in the property.

16

Mr. Singer has no standing.

He has no interest in the

17

property.

18

interest in the property.

19

i f -- if somebody were to evict somebody, they'd have to be an

20

owner.

21
22
23

He's evicting an owner, when he has no property

Mr. Singer isn't.

THE COURT:

That's why it's important:

Because

They don't have standing to evict.

Didn't the Superior Court issue a writ of

possession to the receiver, to take possession?

MR.

CUNNINGHAM:

They did, indeed.

And what it says

24

under the Unlawful Detainer Act is that,

in order to get a writ

25

of possession, you have to go through the Unlawful Detainer

..

32 170

171
15

Act.

be an owner.

evict.

That means you have to be a new purchaser.

If Mr.

You have to have interest in the property to

Singer wanted to evict me under the receivership

statutes,

the Court for the right for an unlawful detainer.

7
8

Section 5 6 4 7 ,

He didn't do that,
evict me,

it says he can go to the Court and ask

because even if he were appointed to

he doesn't have standing,

Well,

THE

COURT:

10

MR

CUNNINGHAM:

11

THE COURT:

12

MR

13

THE COURT:

14

MR

15

THE COURT:

16

MR

17

THE

COURT:

18

MR

MC KAY:

19

THE

20

22
23

CUNNINGHAM:

MR

are you still in the property?

are you still in it?

Meaning?

Have you been evicted yet?

CUNNINGHAM:

I have been evicted.

You're out of the property?

CUNNINGHAM:

COURT:

because I own the property.

I own the property.

Well,

I've been evicted.

Is that true?
No.

He's still there.

Who is actually living --

Is this a residence,

21

You have to

CUNNINGHAM:

or is it an office?
I have -

I have roommates.

I have

roommates.
This is what happened in the state court.

24

THE COURT:

25

MR

Can't you answer my question?

CUNNINGHAM:

Mm-hm.

33 171

172
16

Is this a residential property?

THE COURT:

MR.

CUNNINGHAM:

MR.

MC KAY:

THE COURT:

MR.

MC KAY:

MR.

10
11
12
13

It's a condominium.
All right.

Does he live in one of them?

He was evicted, but he moved himself

back in, notwithstanding his eviction.

THE COURT:

Two condominiums.

roommates.

So you left and came back?

CUNNINGHAM:

Is that it?

I - - I have tenants, and I have

And so the roommates weren't evicted.

the condominium was evicted.

THE COURT:

The owner of

How does that happen?

You know.

Are these -- are you going to -- who is

the receiver here?

MR.

OLINER:

I am Ron Oliner.

I represent

14

Mr. Singer, the Court-appointed receiver, pursuant to an Order

15

of the Court for the limited purpose of defending this lawsuit.

16

I am not his general counsel

17

THE COURT:

18

MR.

19

THE COURT:

OLINER:

All right.
in the state court.
All right.

Well, what do you say to the

20

proposition that the receiver has used the improper procedures

21

in state court?

22

MR.

OLINER:

I'll address that very directly.

23

Mr. Cunningham is in the wrong court.

24

in state court.

25

He does not want to be

Mr. Singer has dutifully followed each and every directive

34 172

173
17

and order of the state court.

alluded to, Your Honor, works for the Court.

of the Court, and follows orders pursuant to powers directed by

the Court.

cases, where they're appointed receivership cases.

reports.

done repeatedly here.

He's an officer

Receivers file things every day in receivership

They file

They petition for instructions, as Mr. Singer has

And then finally -- and you've already alluded to this, as

8
9

A receiver, as you've already

well
Incidentally, for the record, I j oined in these motions.

10
11

There have been a number of recusals, as I'm sure you're, no

12

doubt, aware.

13

33.

14

refiled the eighth time.

15

refiled.

16

My j oinders were filed as Docket Numbers

I'm not sure how many times it was

But in order to sue a receiver, you must first seek

approval from the Court that appointed the receiver.

18

hasn't been done here.

The vexatious-litigant stuff is in the record.

20

it, but it's in the motion, itself.

21

Orders.

22
23
24
25

and

I didn't think to file another j oinder when the motion was

17

19

18

THE COURT:

That

I cited to

There are five prior

Well, you are not answering my question.

I j ust want to -All right.

Mr. Cunningham complains that you should have

used -- the receiver should have used unlawful detainer instead

35 173

174
18

of writ of possession.

MR.

THE COURT:

MR.

OLINER:

OLINER:

I'm going to say -What do you say to that?

I say that's wrong.

eliminate or remove a tenant from the property.

But the let me let my counsel here -- or the counsel here,

6
7

Mr.

that.

McKay,

address that issue,

THE COURT:
MR.

10

MC KAY:

And Mr.

because he's well informed on

All right.

What do you say to that?

There has been no unlawful-detainer

Cunningham has not been evicted pursuant

11

action here.

12

to an unlawful-detainer action.
There are statutes.

13

THE COURT:

14
15

That's how you

Well,

was he evicted?

W ell,

he was

evicted?

16

MR.

MC KAY:

17

THE COURT:

18

MR.

MC KAY:

He was evicted,

despite his --

He was evicted pursuant to what?

Code of Civil Procedure 568,

which

19

allows a receiver to obtain possession of property that's

20

subject to the receivership estate.

21

unlawful detainer.
THE COURT:

22
23

out?

You don't have to file an

The sheriff went out there to kick him

Is that the way it worked?

24

MR.

MC KAY:

25

THE COURT:

That's correct.
So he says that that wasn't the proper

36 174

175
19

1
2

procedure.

What do you say?

MR.

MC ICAY:

That is the proper procedure.

The j udgment

receiver can be appointed to enforce a judgment.

here requires the sale of Mr. Cunningham's condominium.

Mr. Cunningham wouldn't let anybody in there so we could

show the place; get it appraised; get a broker.

receiver requested possession of the condominium so that he

could do these things to comply with the Court's direction to

sell the condo.

10

So the

That is

Again, specifically, the possession by a receiver is

11

authorized by C. C. P. Section

12

authority under which the possession and the eviction of

13

Mr. Cunningham was requested.

14
15
16

56 8 .

That was granted by the Court.

was not appealed.

That's the specific

That Order is final.

It's done with

And j ust to answer, I j ust disagree with virtually

17

everything Mr. Cunningham has said.

18

never had his day in court on these claims.

19

one reason for that.

20

Mr. Cunningham refused to attend the arbitration.

21

time to make any claims he wanted to make.

22

he -- is responsible.

23
24
25

It

THE COURT:

He complains that he's

There's exactly

This matter was routed into arbitration.

That was his

So he -- and only

Well, was he heard at the original

hearing to send it to arbitration?

MR.

MC ICAY:

Absolutely.

37 175

176
20

THE COURT:

MR.

Was he there for that?

He filed opposition.

MC ICAY:

hearing.

matter.

of these various cases,

in the federal courts.

He was personally there,

Mr.

7
8

and orally argued the

Cunningham has attended all of the hearings in all

THE

COURT:

MR.

MC ICAY:

in both the state court and the cases

But you say but not the arbitration,

itself?

9
10

He attended the

The arbitration,

he refused to

participate.
Is that true?

11

THE

COURT:

12

MR.

CUNN INGHAM:

Let me be real clear about this.

13

There's a 2007 TIC agreement.

14

agreement.

That's tenancy in common

Yeah.

15

THE

COURT:

16

MR.

CUNN INGHAM:

A year before that,

the building WAS

We were no longer tenants in common.

17

condo converted.

18

filed and recorded and executed CC&Rs and bylaws,

19

conditions,

20

Map Act,

21

There was no agreement for mandatory arbitration after condo

22

conversion.

23

and restrictions.

We

covenants,

Under the California Subdivision

that was the governing and controlling document.

What Mr.

McKay did was he filed a petition on the 2007

TIC

24

agreement.

25

were the right to a forced sale of the defaulting cotenant's

The rights and remedies on the 2007 TIC agreement

38 176

177
21

cotenancy share.

cotenant.

before.

The property had been condo converted for a year

What had been going on for four months was Mr.

"Agree to a forced sale under the 2007

and you'll be responsible for all of my fees.

responsible for the forced sale.

your condominium, " is what he was saying.

9
10
11
12

And I was saying,

"No.

TIC agreement,

you know,

You'll be

And you'll be kicked out of

If you want to arbitrate,

I don't have a cotenancy agreement,

condominium.
THE

your

Mr. McKay.

I have a

You should be suing -COURT:

Did you make these arguments to the state

court judge?
MR.

15

The arbitration,

CUNNINGHAM:

16

fact that there was a -- 2009

17

condo converted.

18

again and again and again.

19

McKay said,

right is for the forced sale of my cotenancy agreement."

13
14

I wasn't a

I don't have a cotenancy share.

CC&Rs,

I brought up the

and the property had been

It's on the transcript.

I brought this up

Then I went a year later to sue on the 2009

20

bylaws,

21

the TIC agreement says his remedy,

22

"non-defaulting cotenant, " his remedy is the right for a forced

23

sale of the defaulting cotenancy -- cotenancy share.

24
25

for the fact that Mr.

CC&Rs and

I brought that up.

THE COURT:

McKay -- where Section 14 .7 of

as the so-called

I don't have a TIC agreement.

Well,

but the judge ruled against you,

39 177

178
22

evidently.

MR

CUNNINGHAM:

The judge ruled.

And this is

arbitration law.

And I've quoted in my pleadings,

again and again,

State Supreme Court case Rosenthal

Great Western.

arbitration only implicates the narrow issue of whether there's

a binding mandatory agreement to arbitrate.

don't dispute that.

arbitration agreement.

10

An arbitration hearing on petition to compel

And it does.

The 2007 has a binding mandatory

Agreed.

I don't dispute that.

However,

the 2009 does not.

I told

And my rights and remedies

12

afte
. r condo conversion were controlled by the 2009

13

So -

CC&Rs.

THE

14

The judge must have rejected your

COURT:

15

argument -- the state court judge.

16

point that you just made.

17

MR

18

THE

COURT:

19

MR

CUNNINGHAM:

20

THE

COURT:

21

MR

CUNNINGHAM:

CUNNINGHAM:

22

is:

23

whether or not -

25

versus

the judge that's the case.

11

24

again and

No,

You did,

Well,

She said,
THE

2007

"Mr.
COURT:

I didn't make that point,

sir.

or did not?

I did not.

I said

why not?
I said to her -- I said the question

After condo conversion,

It sounds like you made the

there's a question of -- of

even applies.

Cunningham,

did you sign" --

Who is she?

The arbitrator or the judge?

40 178

179
23

1
2

MR

"Mr.

CUNNINGHAM:

Cunningham,

Trial Judge Charlotte Woolard said,

did you sign the 2007

TIC agreement? "

"Yes,

I did. "

"Then you're going to arbitration. "

I also -- his clients also signed the 2009

didn't matter to her.

about.

I've been -See,

THE

COURT:

MR

CUNNINGHAM:

that's a state-court issue.

Mm-hm.

That's a state-court issue.

THE

11

got it wrong.

12

got it wrong in the court of appeal,

13

but
MR

14

COURT:

okay,

10

If they

That's why they have courts of appeal.

CUNNINGHAM:

THE COURT:

Right.

life is not perfect,

And I'm not -- and I'm not

-- it is not a federal claim.

It is not

a federal claim.
MR

18

CUNNINGHAM:

19

that -- you know.

20

award.

21

Maybe they

disputing

16
17

That

And that's the issue we've been fighting

15

CC&Rs.

Right.

I'm not disputing the fact

I'm not trying to reargue the arbitration

Compelling me into arbitration on a defunct,

22

contract -- and Mr.

23

forced sale by TIC agreement.

24

him to sell.

25

for five years.

void

McKay's willing to get his remedies for a

I don't have a TIC agreement for

That's the problem.

Now we've gone through this

And he wants to sell my TIC agreement.

A year

41 179

------- ---

-------

--

180
24

before he filed his petition, it was a condo.

So what Mr. McKay did to get around all of this is was he

2
3

substituted out the term 11cotenancy share,11 and put it in

condominiums.

and again.

6
7

10

"Hey, this is a fraud," and pointed it out.

MR.

CUNNINGHAM:

up. "

12

MR.

CUNNINGHAM:

I did.

No.

THE COURT:

Why didn't you bring up when he

16

in there, "Hey, this is a fraud. "

19
20
21
22
23
24
25

I sued a year later on the

CC&Rs.

commits the fraud?

18

You should have brought that

Why didn't you bring that up?

15

17

And what the appellate

I did bring this

THE COURT:

14

On appeal.

j udge said was, "We're not here.

11

13

Surely you ran into the court and said,

THE COURT:

8
9

That was a fraud on the Court again and again

MR.

You could have gone in and told that j udge

CUNNINGHAM:

Mr. McKay didn't substitute out that

term until he wrote the arbitration agreement.

Why should I go to the arbitration agreement on a TIC
agreement when I have an agreement from my condominium?
He wanted rights and remedies under a defunct agreement,
and he got those.
I'm not here to dispute those.
rights under the

2009

THE COURT:

I'm here to vindicate my

CC&Rs.
All right.

Here's the answer.

I've got

42 180

181
25

to move to other cases.

I'm going to throw the case out.

belongs in state court.

If you didn't bring up the right

issues at the right time, that's your problem, Mr. Cunningham.

There's nothing.

There is no federal claim that you can

possibly wring out of this.

federal court.

7
8
9
10
11
12
13
14

MR.

CUNN INGHAM:

Court of Appeals.
MR.

CUNNINGHAM:

And thanks for your

They may well reverse me.

THE COURT:

All right.

And if they

I will be happy to let you litigate it if

I'm going to get an Order out dealing with all

six motions.
Mr. Cunningham, before you leave, may I ask you this?

Are

you in good standing with the state bar?

21

MR.

22

THE COURT:

CUNNINGHAM:

this to the state bar.

24

member of the state bar?

MR.

Probably not after this hearing.

Well, I don't know.

23

25

Sure.

blessings, sir.

they say that we should.

20

And I will file with the

You've got my blessings to take it to the

THE COURT:

16

19

I don't.

Ninth Circuit.

do, good for them.

18

It cannot be litigated here in

If you don't agree with me --

15

17

It

I want to know.

CUNNINGHAM:

I am.

I may have to refer

Are you an active

And actually, I have a class

43 181

182
26

action against Mr. McKay and a whole bunch of other Judges for

allowing the unlawful practice of law all throughout the state.

And of course it's frivolous and meritless and whatever,

it's down in,

THE COURT:

5
6

you know,

but

the Central District.

Are you a member of the bar of this

court?

MR.

CUNNINGHAM:

THE

COURT:

MR.

CUNNINGHAM:

I am,

indeed.
I have to think about that.

All right.
Oh,

See you,

10

THE COURT:

11

MR.

OLINBR:

12

MR.

CUNNINGHAM:

13

THE COURT:

okay.
Mr.

Thank you,

Sure.

Cunningham.

Good day.

Your Honor.

Justice.

Justice.

Justice.

Would the Marshals please escort my

14

would the marshal please escort Mr.

15

door of the building?

CUnningham to the front

16

(At 9:14 a.m. the proceedings were concluded.)

17

18

record of proceedings in the above-entitled matter.

certify that the foregoing

a correct transcript from the

19

January 13 ,
21

Signature of Court Reporter/Transcriber

2015

Date

Lydia Zinn
22
23
24
25

44 182

Postal

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ERTIFIED MAIL RECEIPT

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CAMBRIAN PARK STA

1769 HILLSDALE
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CA
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0568630008
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(800)275-8777
3:09 PM
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Sale
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Ptf2-Day

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$6 :g-

<LOS ANGELES, CA
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183

184

ATTACHMENT B

ATTACHMENT B

184

185

COMPLAINT AGAINST JUSTICES J. ANTHONY

KLINE AND JAMES RIC

OF THE

FIRST APPELLATE DISTRICT

RECE;VED
NOV 2 4 2015
COMMISSION ON
JUDICIAL PERFORMANCE

I. INTRODUCTION
This complaint relates to the "willful and prejudicial misconduct" of
Justices J. Anthony Kline and James ichmond in dismissing multiple appeals and
writs I've filed, most recently an appeal I took of a March 23, 2015 order
confirming the sale of my "condorn)nium" under a 2007 Tenants-in-Common
Agreement. They dismissed my appeal and a writ on August 7, 2015. (Al44930;
1
Exhibit A). There are also a series of other appeals and dismissal of writs that
these justices have summarily denied under the Doctrine of Disentitlement (DOD)
b ased on my al l ege d

"noncompliance with court orders" or under the Vexatious

Litigant Statute (VLS). The opposing counsel, John Scott McKay, has filed 15
vexatious litigant motions against me at both the trial and appellate courts and at
leasr three motions to dismiss under the Doctrine of Disentitlement. Now, Mr.
\kha:

ciaims I'm

IC-\. There

are

. .

out of compliance" with a Judgment related to the 2007

no judicial findings to support this but Justices Kline and

;:{,:,;L'Dd play along with Mr. McKay and grant his motions to dismiss under the
:JO Q. E \ ery

a cti o n

or suit I file based on a breach of the subsequent and

s:Jrerseding 2 009 CC&Rs or my claims of fraud by Mr. McKay is dismissed under

eirher the DOD or the VLS. The merits, of my suits or fraud claims, have never
been determined.

In granting Mr. McKay's June 30, 2015 motion to dismiss my appeal

(A144930) under the DOD, I was denied the right to challenge the "forced sale" of
my

$1,300,000 condo under

a provision in the 2007 Tenants-in-Common

Agreement which relates only to the "forced sale" of a "cotenancy share," not a

http://appellatecases.courtinfo.ca.gov/search/case/ dockets.cfm?dist= 1 &doc_id=21073 94

&doc no=Al44930

CJP Complaint Against Justices Kline, Richmond, pg. 1

185

186

fee simple condominium. In the same way, the dismissals have prevented me from
challenging an August 20, 2014 order granting the non-attorney receiver Kevin
Singer (SINGER) a writ of possession and the immediate right to possession of
my condominium. I had to be arrested three times before I could challenge the
validity of SINGERs August 20, 2014 writ of possession. (Exhibit B). SINGER
used his writ not only to evict me on November 6, 2014 but to have me
arrested for trespassing on my own property. I also filed a writ of supersedeas
on August 5, 2015 seeking an order to recover a statutory homestead exemption
for $175,000 that I was denied at the close of escrow on June 9, 2015. 2 The
receiver, who was appointed to enforce the Judgment for a forced sale under
the 2007 TICA failed to provide the exemption. The justices dismissed the writ at
the same time they granted Mr. McKays June 30, 2015 motion to dismiss the
appeal under the Doctrine of Disentitlement.
As a result of Justice Klines and Justice Richmans willful misconduct and
prejudicial conduct in failing to follow the law, provide due process, Ive been
denied all access to the appellate court. (The public expects and embraces the
concept that a judge shall be faithful to the law. This is so fundamental to a system
of justice that it serves as a basic cornerstone of public confidence, Inquiry
Concerning Judge OFlaherty (2004) 49 Cal.4th CJP Supp. 1, 25, quoting from
special masters report.) Their dismissals of my appeals and writs has affected my
right to recover a $175,000 homestead exemption, the right to prevent the forced
sale of my $1,300,000 East Lake Victorian condo by the fraud of non-attorney
receiver (SINGER) and opposing counsel, Mr. McKay. Further, Justice Kline and
Justice Richman have applied the Doctrine of Disentitlement in an earlier case
2

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2107394
&doc_no=A144930
08/05/2015

Petition for writ of supersedeas filed.

Immediate
Stay Requested

CJP Complaint Against Justices Kline, Richman, pg. 2

186

187

(A136608), preventing me from appealing Mr. McKays first fee request for
$91,654.17. Hes now churned up $700,000 in fees and claims the 2007 TICA
provides a contractual basis for recovering his fees even though his clients
executed a superseding agreement, the 2009 CC&Rs and Bylaws, and after the
two-unit building was condo-converted. Under the California Subdivision Map
Act, the building was condo-converted by recording the parties Declaration (2009
CC&Rs) but my lawsuit under the 2009 CC&Rs was dismissed under the VLS.
The justices upheld the dismissal of the lawsuit I filed for breach of the 2009
CC&Rs and for Mr. McKays civil fraud in substituting out material terms in
drafting his proposed arbitration award for the arbitrators signature.
Justice Klines and Justice Richmans imposition of the Doctrine of
Disentitlement on the grounds that Im out of compliance with a Judgment for a
forced sale of my condo pursuant to section 14.7 of the 2007 TICA precludes
any action I bring on the 2009 CC&Rs or Mr. McKays fraud. Their use of the
DOD functions as an irrefutable and mandatory presumption that the arbitration
award under the 2007 TICA is dispositive of all issue I might raised under the
2009 CC&Rs and Bylaws and any issue of whether Mr. McKay committed fraud.
II. PROCEDURAL HISTORY DISMISSING MULTIPLE APPEALS
UNDER THE DOCTRINE OF DISENTITLEMENT
Im providing the factual and procedural background so that justices
misconduct might be better understood. In their dismissal order (A144930), the
Justices adopted Mr. McKays allegations that I was out of compliance with,
(Exhibit A, pg. 1, 1):

(1) a trial court order to answer certain postjudgment interrogatories; (2) an

injunction issued as part of the judgment enjoining his interference with the
sale of a condominium, which sale was ordered by the judgment; and (3) a
court order requiring Cunningham to vacate and stay away from the
condominium so it could be sold.

CJP Complaint Against Justices Kline, Richman, pg. 3

187

188

Justices Kline and Richman had previously invented or fabricated procedures that
I was suppose to satisfy in order to avoid the dismissal of an earlier appeal
(A136608).3 They then applied these same procedures to Mr. McKays new
June 30, 2015 motion to dismiss my appeal (A144930) of the order confirming the
sale of my condominium. I objected to these procedures in the earlier appeal
(A136608):
02/06/2014 Motion to
dismiss filed
(after record).

Respondents' Motion to Dismiss Appeal

02/07/2014 Opposition filed.

Appellant's Opposition to Defendants' Motion to Dismiss

02/07/2014 To court.

Respondents' Motion to Dismiss Appeal

02/11/2014 Reply filed to:

Respondents' Reply Re Motion to Dismiss Appeal

02/18/2014 Response filed

to:

Appellant's Declaration in Response to Defendants' Motion to Dismiss and

Reply

03/10/2014 Order filed.

Respondents' opposed motion to dismiss appeal, filed on February 6,

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

These same procedures demanding that I provide a court order or transcripts or get
Mr. McKays assurance of compliance in either a letter or some other way that
is/was acceptable to Mr. McKay were then dusted off and reapplied here. In the
previous appeal, I requested that Justices Kline and Richman clarify these
procedures.

03/11/2014 Request filed

Appellant's Request for Clarification of Order Demanding the Appellant Prove
to:
He's in Compliance with all Orders of the Superior Court and Request for Oral
Argument on the Judge's Legal Basis for Their Order and Their View as to Why the
Doctrine of Disentitlement Applices to the Fact Here (to court)

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2025700
&doc_no=A136608
CJP Complaint Against Justices Kline, Richman, pg. 4

188

189

03/24/2014 Filed
declaration
of:

Appellant's Declaration in Support Opposition to Motion to Dismiss

03/26/2014 Order filed.

On March 11, 2014, appellant filed "Request For Clarification Of Order

Demanding The Appellant Prove He's In Compliance With All Orders Of The
Superior Court And Request For Oral Argument On The Judge's Legal Basis For
Their Order And Their Views As To Why The Doctrine Of Disentitlement Applies To
Fact Here." The requests for clarification and oral argument are denied.

04/01/2014 Reply filed

to:

Respondents' Reply Declaration of J. Scott McKay in Support of Motion to

Dismiss Appeal

04/11/2014 Response
filed to:

Appellant's Response/Declaration to Mr. McKay's Declaration in Support of

Motion to Dismiss Appeal (to court)

04/17/2014 Dismissal
order filed.

Respondents' opposed motion to dismiss is granted and the above-entitled

appeal is hereby dismissed.

In A136608, I appealed Mr. McKays award of $91,654.17 in attorneys fees. Mr.

McKay insisted the parties 2007 Tenants-in-Common Agreement provided a
contractual basis under CCP 1033.5(10) for recovery even though his clients,
Mr. Coombs and Ms. Woods, had signed, executed, and recorded a subsequent
2009 CC&Rs (and Bylaws) when we converted our two-unit building from a
tenancy-in-common to two separately owned condominium. He churned up
these attorneys fees on appeal and the various vexatious litigant motions he had
filed and insisted the fees were recoverable as costs under CCP 1033.5(10). In
the earlier appeal (A136608), I had already filed my opening brief (Exhibit C).
and argued that the 2007 TICA was terminated when I and Mr. McKays clients
signed, executed, and recorded the subsequent 2009 CC&Rs. 4 I argued the 2007
TICA, therefore, provided no basis for recovering fees.
In the earlier appeal (A136608), as noted above, I not only opposed the
motion to dismiss, but requested that Justices Kline and Richman clarify their

A136608, AOB, pg. 1: If the appellate court rules that the 2007 TICA was terminated
by the parties recording of a superseding CC&Rs on September 30, 2009, then it stands
to reason that Mr. McKay had no contractual basis to recover post-judgment
attorneys fees. On the other hand, if the appellate court rules that the 2007 TICA
remained valid even after condo-conversion and the recording of the 2009 CC&Rs, then
there was a contractual basis under CCP 1033.5(a)(10) for the recovery of postjudgment attorney fees.
CJP Complaint Against Justices Kline, Richman, pg. 5

189

190

impromptu procedures, provide me oral argument on the issue, and explain the
factual basis for their use of the Doctrine of Disentitlement because there had
been no finding of contempt at the trial court or any finding that I was not in
compliance. Although the Justices realized there was no contempt hearing at
the trial level and no judicial findings that I was out of compliance, they denied
me oral argument on March 26, 2014. Other than some vague reference to their
inherent power, they have not explained the factual and legal basis for their
procedures. Nor have they explained the legal or evidentiary basis for adopting
Mr. McKays bare allegation of my being in an attitude of contempt and,
therefore, subject to dismissal under the Doctrine of Disentitlement.
A. CONTEMPT OR FINDINGS OF WILLFUL
DISOBEDIENCE IN TRIAL COURT
In this case, Mr. McKay never filed a contempt action at the trial court
(CPF 10-510760) in relation to any of the court orders he said I was allegedly
out of compliance with. If he had, I would have been able to collaterally attack 5
the validity of those orders, including the facially ambiguous Judgment to sell
my condo in accordance with section 14.7 of the TICA. Section 14.7 only
applies to a forced sale of a defaulting Cotenants cotenancy share, not an
owners separately owned condominium. Mr. McKay asserts that Im not in
compliance with these court orders but there has never been a contempt case or
any finding of willful disobedience of the underlying orders.
In his motion to dismiss, Mr. McKay states that an appellate court can
dismiss an appeal under the Doctrine of Disentitlement without there having been
a finding of contempt at the trial court. This is a misstatement of law by deliberate
omission. While it is true that the doctrine can be applied without a formal

*See, People v. Gonzalez (1996) 12 Cal.4th 804 , 50 Cal.Rptr.2d 74; 910 P.2d
1366)
CJP Complaint Against Justices Kline, Richman, pg. 6

190

191

adjudication of contempt, 6 the Court of Appeals of Aliota v Fish Co. v. Aliota

(1994) 27 Cal. App. 4th 1669 made clear that an appellate court must at least make
a finding of willful disobedience or obstructionist tactics before dismissing.
(Id., at 1683):
Although the power to stay or dismiss an appeal is typically exercised when
the litigant is formally adjudicated in contempt of court, "the same principle
applies to willful disobedience or obstructive tactics without such an
adjudication." (9 Witkin,Cal. Procedure (3d ed. 1985) Appeal, 172, p.
184; see also Stone v. Bach, supra,80 Cal. App.3d at p. 444.)
In Aliota, the Court of Appeals concluded that the trial courts imposition of
sanctions contain judicial findings that appellants have persisted in willfully
disobeying the trial courts orders. (Id., at 1683).
In the most recent appeal (A144930) or in the earlier appeal, there was no
formal adjudication of contempt against me. Likewise, in the earlier appeal as
well as the most recent appeal, there has been no judicial findings that Im out of
compliance with any court order. However, the trial judge, on August 20, 2014,
issued the non-attorney receiver, Kevin Singer, a writ of possession to remove
me from my condominium. (Exhibit B). This writ of possession that SINGER
drafted for the trial judges signature sought my removal. Mr. McKay presented
this proposed order to the trial judge in a letter in which he also stated that I was
interfering with the receivers attempt to enforce the forced sale of my condo
under the TIC provision that related only to a cotenancy share. The trial judge
6

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

CJP Complaint Against Justices Kline, Richman, pg. 7

191

192

then scribbled a stay-away order on SINGERs proposed writ of possession

when he signed off on it. I was never allowed to challenge my so-called
interference with SINGER.
B. DISMISSAL OF MULTIPLE APPEALS UNDER THE VLS
AND DOCTRINE OF DISENTITLEMENT
In dismissing my appeal (A144930), Justice Kline points out that my appeal
of McKays award of $91,654 in fees was dismissed. Justice Kline also notes that
my appeals, A140675 and A140958, were dismissed under the Vexatious Litigant
Statute. Justice Kline also notes that my writ of supersedeas related to my
statutory right to a $175,000 homestead exemption was denied.
He also notes that my appeal, filed through by attorney, Patricia Barry was
dismissed under the Doctrine of Disentitlement for being not in compliance with
trial court orders. (Exhibit A, pg. 2, 5). He also claims that the motion was
unopposed, but my attorney filed a Motion for Rehearing and sought the
immediate reinstatement of the appeal. The appeal involved SINGERs attempt to
remove me, the owner and title-holder, from my condo on the basis of the
August 20, 2014 writ of possession (Exhibit B) he drafted for the courts
signature. After the Court of Appeals refused to reinstate the appeal, I filed a
federal civil rights suit against SINGER and Mr. McKay for conspiring to
wrongfully evict an owner from his condo. (DC NC 14-cv-03250 WHA).
08/04/2014 Rehearing
petition filed.

"Appellant's Request for Rehearing Under CRC 8.268 and Immediate

Reinstatement of Appeal"

08/11/2014 Received copy

of:

1) Order dated 8/4/14 from U.S. District Court, Northern District of

California for case No. CV 14-03250 JCS in Cunningham v. Singer et al.
signed by Richard W. Wieking, Clerk of Court 2) Order Setting Initial Case
Management Conference Re: Dkt. No. 10 dated 8/6/14 from U.S. District
Court, Northern District of California for Case No. 14-cv-03250-VC (VC) in
Cunningham v. Singer et al. signed by Vince Chhabria, United States
District Judge

08/15/2014 Order denying

rehearing
petition filed.

Appellant's request for rehearing and immediate reinstatement of appeal

is denied.

CJP Complaint Against Justices Kline, Richman, pg. 8

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On August 20, 2014, the trial judge granted SINGERs hand-drafted writ of
possession on August 20, 2015 (Exhibit B). Prior to this, I had filed a writ of
mandate challenging SINGERs unlicensed practice. When Justice Kline
summarily denied the writ I filed a petition for review with the Supreme Court
(S218853). The appeal (A142672) I took of the August 20, 2014 writ of
possession was denied by Judge Kline on August 22, 2014 because I had not filed
for permission to file within 10 days. Given Justice Klines refusal to hear my
writ on the issue of SINGERs unlicensed practice and the trial judges refusal to
enforce the prohibition of unlicensed practice in Bus. & Prof. Code 6126, I filed
the federal civil rights lawsuit.
C. AUGUST 20, 2014 WRIT, ENSUING EVICTION AND ARRESTS
In his motion to dismiss A144930, Justice Kline cites the August 20, 2014
order as the third court order that I was allegedly not in compliance with.
(Exhibit A, pg. 1, 1):
(3) a court order requiring Cunningham to vacate and stay away from the
condominium so it could be sold.
To be clear, the August 20, 2014 order was not an order to vacate, but
SINGERs self-drafted writ of possession on which the trial judge attached a
stay-away order. (*See, Exhibit B). SINGER would approach the San Francisco
Sheriffs Department with his August 20, 2014 writ, but the Sheriffs Department
refused to evict me without the mandatory Judicial Council EJ-130 form. To get
around this obstacle, SINGER would fill out the EJ-130 form. (Exhibit D & E ).
However, the EJ-130 form was to be issued by the clerk CCP 715.050 only after a
judgment for possession was entered in favor a landlord, owner, or new
purchaser in an unlawful detainer action. SINGER knew that there was no
unlawful detainer action but represented to the clerk that there was. He would
then submit the EJ-130 form to the SF Sheriffs Department and Ive be evicted
on November 6, 2014.

CJP Complaint Against Justices Kline, Richman, pg. 9

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Then, SINGER filled out a citizens arrest form and persuade the San
Francisco Police Department to have me arrested three times for trespassing on
my own property and for violating the stay-away order. (Exhibit F).
D. LACK OF JUDICIAL FINDING REGARDING RE
THE THREE SETS OF COURT ORDERS
As noted above, Justices Kline and Richman simply accepted Mr. McKays
bare allegations in his June 30, 2015 motion that I was not in compliance with
court orders. There was no formal contempt adjudication regarding any of
these orders. Nor was there any judicial findings that I was in willful
disobedience with any of these court orders. In fact, I was denied any notice of
being out of compliance until Mr. McKay filed his motions in the appellate court
and made his allegations. On May 6, 2014, I filed a pleading that SINGER was
engaged in the misdemeanor of practicing law without a license. I also alleged that
Mr. McKay should file a contempt motion if he believed I was out of
compliance. (Exhibit G), May 6, 2014 Pleading). I certainly was not provided a
hearing at the trial court and an opportunity to challenge Mr. McKays allegations
of noncompliance.
The fact is that all three of Mr. McKays alleged grounds of my noncompliance with court orders are false. His claims, in his June 30, 2015 motion to
dismiss under the Doctrine of Disentitlement are not simply false, but are
deliberate misrepresentations, willful distortions of material facts, and frauds upon
the court intended to deny me due process of law and the right to court access.
Justices Kline and Richman just presumed Mr. McKays bare assertions were
truthful without substantiating them. The justices dismissed my appeals and
denied me court access and due process of law and made their rulings on the false
statements of Mr. McKay.
1. SINGERs August 20, 2014 Writ of Possession and Stay-Away Order

CJP Complaint Against Justices Kline, Richman, pg. 10

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At an August 5, 2014 hearing, SINGER and McKay argued that the nonattorney SINGER was entitled to a writ of possession by virtue of his
appointment as a receiver. They argued at the trial court and the federal civil rights
suit that there was no need for an unlawful detainer action and that I could be
removed as the owner via SINGERs writ. However, the San Francisco Sheriffs
Department would not evict unless they had the mandatory EJ-130 form.
SINGER then committed various frauds in filling out the EJ-130 and representing
that there was an unlawful detainer act and that he had obtained a judgment for
possession. (Exhibits D & E).
Furthermore, if there had been a hearing at the trial or appellate level or
oral argument at the appellate level, I could have provided evidence of Mr.
McKays frauds on the court. Justice Kline could have made a judicial finding
on the basis of facts, evidence, and testimony instead of the unsubstantiated and
bare allegation of Mr. McKay. Instead, the justice denied such due process
protections.
Ironically, I had to be arrested three times for allegedly violating the
August 20, 2014 writ with its stay-away order before I was given an opportunity
to challenge the validity of the order and given a chance to expose SINGERs
frauds upon the court. I then filed a habeas corpus writ. On appeal from the trial
court, Justice Kline got a chance to review the evidence and the EJ-130 I
submitted. Justice Kline apparently read my writ regarding SINGERs unlicensed
practice and illegal conduct related to my November 6, 2014 eviction and must
have realized hed denied my appeal of the August 20, 2014 order. In his denial of
my habeas corpus writ, Justice Kline ruled that SINGERs unlicensed practice was
not improper and that the writ of possession was not improper. His terse opinion
holding, which I appealed to the Supreme Court (S229939, Exhibit H), stated:

10/09/2015 Order
denying
petition

Archibald Cunningham has filed a petition for writ of habeas corpus

challenging his arrest and pending prosecution for multiple counts of violating
California Penal Code, section 166(a)(4), disobeying a court order.

CJP Complaint Against Justices Kline, Richman, pg. 11

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filed.

Cunningham claims the "stay-away order" he is charged with violating is not

valid because 1) it arose from a writ of possession, which, petitioner claims,
can only issue in the context of an unlawful-detainer action; 2) it was secured
by a court-appointed receiver engaging in the unlicensed practice of law.
These claims are without merit. The writ-of-possession procedure is
commonly used in proceedings other than unlawful detainer to obtain
property that is security for a debt in default or to obtain property whose
ownership is in dispute. (See, e.g. Edwards v. Sup. Ct. (1991) 230
Cal.App.3d 173.) Further, as petitioner concedes, the Code of Civil
Procedure, section 564, permits the court to appoint a receiver in authorized
cases "to do such acts respecting the property as the Court may authorize."
(Code Civ. Proc., 568.) Here, it undisputed, the receiver acted in his
appointed capacity as the superior court had authorized. The cases petitioner
cites in this regard are thus wholly inapposite. Petitioner's additional
arguments are rejected as frivolous. The petition for writ of habeas corpus
and petitioner's motion to recuse Justices Kline and Richman are denied.

In upholding the lower court, Justice Kline cited the case of Edwards v. Sup. Ct.
as authority for SINGER to evict an owner from his own property. The Edwards
case, however, involved a cause of action for a writ of possession of personal
property under CCP 512.010 to recover a prized show-dog named Notty
Nada. Justice Kline knew that SINGER was not trying to recover personal
property, but sought possession of real property. It defies reason to believe that
Justice Kline, with 20-30 years of appellate experience, cannot grasp the
difference between a writ of possession related to real property as opposed to
personal property. His citation to this case cannot be explained by ineptitude or
a good-faith error. It defies any notion of fair play or reasonableness for Justice
Kline not to research the law if he didnt understand the distinction between
personal and real property. Further, in my petition, I pointed out SINGERs frauds
related to his obtaining the EJ-130 form. But Justice Kline just ignored these facts
and refused to admit or acknowledge the almost incontrovertible evidence of his
fraud.
In any case, by the time Mr. McKay filed his June 30, 2015 motion, he was
aware that the material facts and circumstances of the case had changed. I could
not very well comply with an order to vacate or stay-away from my property
after SINGER had sold the property and the new owner had moved in by June 15,
2015, two weeks before Mr. McKay alleged I was out of compliance. These new

CJP Complaint Against Justices Kline, Richman, pg. 12

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facts should have been self-evident to Justice Kline because he was named as a
defendant in the federal civil rights suit (DC ND 14-cv-03250 WHA). Further, in
granting Mr. McKays motion, he dismissed the appeal I took of the order
confirming the sale of my condo. Justice Kline simply failed to notice the material
facts and ignored Mr. McKays deliberate suppression of them to mislead the
court and obtained a dismissal under the DOD.
2. There Was No Finding of a Failure to Respond to Interrogatories
In his June 30, 2015 order to dismiss my appeal under the Doctrine of
Disentitlement, Mr. McKay states ( pg. 6, 2):
.On January 7, 2014, the Court ordered Cunningham to answer the
interrogatories and hand serve such answers within 10 days of
service of the order. The order was served on Cunningham by mail on
January 8, 2014. See order and proof of service, Exhibit B hereto. Answers
were thus due, by hand delivery, on January 23, 2014. No answers have
ever been provided by Cunningham. Cunningham was clearly available to
answer such interrogatories, as he has filed many pleadings in various
cases, and has appeared at numerous state and federal court hearings,
since the due date for such answers.
In stating that I never provided an answer, Mr. McKay has committed a
deliberate misrepresentation and deceit upon the court. Mr. McKay sought
interrogatories related to his examination of my finances. Mr. McKay knows
very well that on the so-called due date of January 23, 2014, I filed a motion to
quash his request for interrogatories. 7
JAN-23-2014 EX PARTE APPLICATION FOR ORDER TO QUASH SERVICE OF
EXAMINATION FILED BY DEFENDANT CUNNINGHAM,
ARCHIBALD

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PR
GNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
CJP Complaint Against Justices Kline, Richman, pg. 13

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He knows very well that the trial judge, Judge Dorfman of Dept. 514 (where the
examination was being held), then continued the hearing for March 20, 2014.
JAN-28-2014 ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD
CUNNINGHAM, ON JAN-28-2014 CONTINUED TO MAR-20-2014
AT 2:00 PM IN DEPT. 514 FOR FURTHER EXAMINATION AND
COMPLIANCE WITH PRODUCTION OF DOCUMENTS PURSUANT
TO SUBPOENA DUCES TECUM. COURT ORDERED MR.
CUNNINGHAM TO RETURN ON MARCH 20, 2014 AT 2:00 PM, TO
DEPRTMENT 514. NO FURTHER NOTICE IS REQUIRED. COURT
ORDERED MR. CUNNINGHAM TO ANSWER QUESTIONS IN
GOOD FAITH. MR. CUNNINGHAM TO PROVIDE MR. MCKAY
ALL DOCUMENTS IN RESPONSE TO SUBPOENA DUCES TECUM
BY FRIDAY JANUARY 31, 2014. J. SCOTT MCKAY, ESQ.,
APPEARING FOR JUDGMENT CREDITOR. PROCEEDINGS NOT
REPORTED. (514)

I complied with Judge Dorfmans orders and provided answers and documents.
Next, Mr. McKay, after receiving the answers and required documents, simply
filed a motion to take the examination off calendar.
MAR-192014

ORDER FOR EXAMINATION AS TO RESPONDENT ARCHIBALD

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

Mr. McKay deliberately suppresses any mention of Judge Dorfmans subsequent

actions and his own motion to take the examination off calendar. (Franklin v.
State Bar (1986) 41 Cal. 3d 700, 709; half-truth is identical to a lie). Mr. McKay
took the matter off calendar instead of resolving any issues he might have had.
If he felt that my answers were not in good faith, then his remedy was to
go to the hearing and explain that to Judge Dorfman or file a contempt case as I
pointed out in my May 6, 2014 pleading. (*See, Exhibit G). Instead, he willfully
and deliberately mislead the court in this appeal (A143930) and in the previous
appeal (A136608) related to his fee request of over $91,654. He misleads the court
by omitting material facts that Judge Dorfman had taken the entire matter of the
examination and his request for interrogatories off calendar. His deliberate

CJP Complaint Against Justices Kline, Richman, pg. 14

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concealment of material facts is the same as lying. (In the Matter of Chestnut
(2000) 4 Cal. State Bar Cr. Rptr 166, 174).
Justice Klines acceptance of Mr. McKays bare allegations as the gospel
truth without investigation and without providing me an oral argument or an
opportunity not only denied me procedural due process but amounted to
collusion in Mr. McKays fraud on the court. His deliberate refusal to verify
facts and research the matter evinces bad faith.
3. The Issue of Complying With the Injunction Was Irrelevant After Sale.
In his motion to dismiss, Mr. McKay states that I was out of compliance
with the injunction in the April 13, 2011 Judgment for the sale of my
condominium in accordance with section 14.7 of the 2007 TICA. Justice Kline,
in his dismissal order states (Exhibit A, pg. 1):
(2) an injunction issued as part of the judgment enjoining his interference
with the sale of a condominium, which sale was ordered by the judgment;
For the sake of clarification, the injunction required that I cooperate rather
than not interfere with the forced sale of my condominium in accordance
with section 14.7 of the TICA. Section 14.7 of the 2007 TICA, however,
provided for the forced sale of the defaulting Cotenants cotenancy share, not
my separately owned condominium. Section 14.7 related to the cotenancy share,
not a separately owned condominium. After conversion of the two unit building to
condominium on September 30, 2009, when I and the co-owners Coombs and
Woods recorded our Declarations (2009 CC&Rs), the property was converted
under the Cal. Subdivision Map Act. I could neither cooperate nor interfere
with a facially ambiguous order that resulted from Mr. McKays initial fraud on
the arbitrator. (In drafting his proposed arbitration award, he substituted out the
material terms defaulting Cotenants cotenancy share from the 2007 TICA and
inserted condominium.).

CJP Complaint Against Justices Kline, Richman, pg. 15

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III. JUSTICE KLINES BAD FAITH RULINGS IN THE CRIMINAL

CONTEMPT ACTION UNDERMINES THE BASIS FOR APPLIYING THE
DISENTITLEMENT DOCTRINE IN THE CIVIL CASE (A144930).
Mr. McKay asserted that I was out of compliance with the receivers
August 20, 2014 writ of possession with its attached stay-away order.
(Exhibit B). However, at the time he filed his declaration on June 30, 2015, I
could not be in or out of compliance with an order to stay-away from my own
condo because my condo was sold and the new owner had moved in. These facts
were evident on the face of the appeal and the supporting documents in the writ of
supersedeas. Yet, Justice Kline deliberately and willfully failed to substantiate Mr.
McKays bare allegations. In that way, they apparently allowed Mr. McKay to
mislead the court or enabled him suppress facts and events.
Next, and as explained in greater detail below, Justices Kline and Richman
simply presumed I was out of compliance with the stay-away order. The trial
court never made a determination on the issue nor did Mr. McKay file a
contempt action at the trial court where I could have challenged the validity of
the August 20, 2014 writ. In fact, I had to be evicted and arrested three times in
order to collaterally attack the validity of the August 20, 2014 stay-away order
in a habeas corpus petition. (Exhibit B, Exhibit H).
On appeal of my habeas corpus petition, I filed a motion to disqualify
Justices Kline and Richman because the issues in the habeas corpus case were
identical to the matters in Mr. McKays motion to dismiss the appeal under the
DOD. 8 They had already dismissed the appeal on Mr. McKays bare allegations.
09/24/2015 Motion
Petitioner Cunningham's "Motion to Recuse Justices Anthony
filed. Kline and James Richman Pursuant to Judicial Canon"

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2120780
&doc_no=A146271
CJP Complaint Against Justices Kline, Richman, pg. 16

200

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In dismissing the appeal, the justices merely presumed I was out of compliance
with the August 20, 2014 writ. They presumed that Mr. McKay and SINGER had
acted properly. They presumed a non-lawyer receiver was authorized to practice
law without a license and remove an owner from his own property by virtue of
his appointment. They presumed the underlying orders were valid and proper.
Now, to rule in my favor in the criminal case, theyd also have to admit they were
manipulated by Mr. McKay and had issued erroneous decisions. To rule in my
favor, they would have to reverse themselves and act contrary to all of their
presumptions. To do so theyd implicitly have to acknowledge I was denied
procedural due process in the civil appeal by their presumptions. On the other
hand, to refuse to recuse themselves, Justices Kline and Richman would also be
appearing to advocate not just for Mr. McKay, but for their own opinions and own
rulings. Whether they realized it not, their refusal to recuse themselves created the
appearance that they could be advocating for their own rulings and thereby save
face in having to reverse multiple of their own orders and rulings.
To avoid these issues and the appearance of bias, they should have recused
themselves, but they refused to do so without a word of explanation. It would
seem any reasonable person would question whether their decision was in good
faith. After reading Justice Klines patently erroneous and terse opinion in the
habeas corpus ruling, its hard to quibble that he was not acting in bad faith.
Moreover, its not just that his opinion is patently erroneous that I find
objectionable. In my habeas corpus writ to the Court of Appeals, I included
pleadings from the court-appointed receiver, SINGER, that showed that I was not
evicted on the basis of the August 20, 2014 writ, but on the mandatory Judicial
Council EJ-130 forms that SINGER fraudulently obtained from the court clerk
after misrepresenting material facts. (*See, Exhibits D & E). Both my eviction
and multiple arrests were the product of the fraud of SINGER who was aided and
abetted by Mr. McKay testimony in the state and federal courts.

CJP Complaint Against Justices Kline, Richman, pg. 17

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Yet, in his opinion on the habeas corpus petition, Justice Kline simply
ignored the evidence I attached. Confronted with evidence that seemingly refuted
any presumption that I was out of compliance with a stay-away order, Justice
Kline rendered an opinion that is clearly erroneous. Worse yet, confronted with
evidence of SINGERs fraud, he ignored the evidence. At the same time, he
conceded that I could not be removed/evicted under the Unlawful Detainer Act
since I am/was the owner as opposed to a tenant. (A146271) 9:
10/09/2015 Order
denying
petition
filed.

Archibald Cunningham has filed a petition for writ of habeas corpus

challenging his arrest and pending prosecution for multiple counts of violating
California Penal Code, section 166(a)(4), disobeying a court order. Cunningham
claims the "stay-away order" he is charged with violating is not valid because 1)
it arose from a writ of possession, which, petitioner claims, can only issue in the
context of an unlawful-detainer action; 2) it was secured by a court-appointed
receiver engaging in the unlicensed practice of law. These claims are without
merit. The writ-of-possession procedure is commonly used in proceedings other
than unlawful detainer to obtain property that is security for a debt in default or
to obtain property whose ownership is in dispute. (See, e.g. Edwards v. Sup. Ct.
(1991) 230 Cal.App.3d 173.) Further, as petitioner concedes, the Code of Civil
Procedure, section 564, permits the court to appoint a receiver in authorized
cases "to do such acts respecting the property as the Court may authorize."
(Code Civ. Proc., 568.) Here, it undisputed, the receiver acted in his
appointed capacity as the superior court had authorized. The cases petitioner
cites in this regard are thus wholly inapposite. Petitioner's additional arguments
are rejected as frivolous. The petition for writ of habeas corpus and petitioner's
motion to recuse Justices Kline and Richman are denied.

However, he suggested I could be removed/evicted under another type of writ

such as the one used in the Edwards v. Superior Court case. But the Edwards case
did not involve a writ of possession for possession of real property as did
SINGERs August 20, 2014 writ. Rather, the Edwards case involved a writ of
possession for personal property (CCP 512.010) of a prized show-dog named
Notty Nada. For Justice Kline to suggest that I could be removed from my
condo by a statute related to personal property defies reason.
For an experienced Yale-educated appellate justice such as Kline not to
understand the distinction between writs of possession for personal property as
opposed to real property is beyond the pale. Its incredulous. A first-year law
9

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2120780
&doc_no=A146271
CJP Complaint Against Justices Kline, Richman, pg. 18

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student would be flunked out of a reputable law school for failing to comprehend
the distinction between real and personal property. Justice Klines legal error
could not reasonably be argued to have been made in good faith, particularly
where he ignores evidence of Mr. McKays misleading statements and SINGERs
illegal actions. (While the Supreme Court has ruled that good faith legal error is
not a basis to discipline a judge for violation of the Code of Judicial Ethics, the
court specified certain instances of conduct or circumstances that in addition to
the legal error, would support a finding of judicial misconduct by the
commission, namely, bad faith, bias, abuse of authority, disregard for
fundamental rights, intentional disregard of the law, or any purpose other than
the faithful discharge of judicial duty. Oberholzer v. Commission on Judicial
Performance (1999) 20 Cal.4th 371, 482).
IV. Justice Kline and Justice Richman Committed Multiple Acts of Judicial
Misconduct.
A. Procedural Invalidity of Dismissal.
1. The Justices Failed to Follow Case Law Related to Doctrine of
Disentitlement.
In dismissing the appeal under the Doctrine of Disentitlement, Justice Kline
and Justice Richman engaged in willful misconduct as well as prejudicial conduct.
First, they ignored the settled procedures for dismissing an appeal under the
doctrine. As noted in Aliota Fish Co., an appellate court does not need to rely on a
formal adjudication of contempt to support a dismissal but there must be a
judicial finding of willful misconduct or obstructionists tactics. Instead of
following these settled procedures, Justice Kline and Richman relied on the bare
allegations of Mr. McKay. They simply presumed that Mr. McKays statements
were true without any judicial findings at the trial level. This denied me procedural
due process protections at the trial court level and excused Mr. McKay from
substantiating his claims of non-compliance. If Mr. McKay believed I was out of

CJP Complaint Against Justices Kline, Richman, pg. 19

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compliance, he should have filed an affidavit for contempt under CCP 1209 as I
suggested in my pleading of May 6, 2014 or sought some sanctions based on my
willful disobedience. (*See, Exhibit G). By accepting Mr. McKays bare
allegations, the justices negated the need for Mr. McKay to follow mandated
contempt procedures (CCP 1209) or to make a showing of willful disobedience
at the trial level. (In Cannon v. Commission on Judicial Qualifications (1975) 14
Cal. 3d 678), the Supreme Court held that ignorance of proper contempt
procedures, without more, constituted bad faith.).
2. The Justices Invented New Procedures For Implementing Doctrine
of Disentitlement.
Second, Justice Kline and Richman invented and fabricated procedures that
I had to satisfy in order to disprove Mr. McKays unsubstantiated allegations.
While courts have inherent rule-making authority, the exercise of such authority
must not be inconsistent with the Constitution or case law. (Rutherford v.
Owens-Illinois (1997) 16 Cal. 4th 953, 967-968). 10 Their new procedures ignored
the controlling case law, such as Aliota Fish Co., Stone v. Bach, McPherson, etc.
This constituted willful misconduct. They knew that there was no formal
adjudication of contempt or finding of willful disobedience at the trial level.
Their new procedures did not require Mr. McKay to provide evidence that I was
in an attitude of contempt, but required me to disprove his allegations. They
gave Mr. McKay an end-around the case-law and mandated procedures. In that

Elkins v. Sup. Ct. (2007) 41 Cal. 4th 1337, 1345: Reviewing courts have not hesitated
to strike down local court rules or policies on the ground they are inconsistent with
statute, with California Rules of Courtpromulgated by the Judicial Council, or with case
law or constitutional law. Appellate decisions have invalidated local rules or restricted
their application in many areas of affected litigation, including dissolution
actions,[5] litigation under the Trial Court Delay Reduction Act (Gov.Code 68600 et
seq.) (fast track litigation),[6] complex litigation (Cal. Rules of Court, rule 3.400 et
seq.),[7] and general civil litigation.[8] We also have disapproved rules and procedures
adopted by the Courts of Appeal (seePeople v. Pena (2004) 32 Cal.4th 389, 400, 9
Cal.Rptr.3d 107, 83 P.3d 506), as well as rules adopted by the Judicial Council.
(See People v. Hall (1994) 8 Cal.4th 950, 963, 35 Cal.Rptr.2d 432, 883 P.2d 974.)
10

CJP Complaint Against Justices Kline, Richman, pg. 20

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respect, they dismissed my appeal (the sale of my condo) and my writ ($175,000
homestead exemption) not based on any evidence but based on my failure to
disprove bare allegations. (The misconduct in this matter is especially serious
because it indicates that the judge was willing to fabricate justifications for a
challenged ruling. This is misconduct of the worst kind, evidencing moral
turpitude and dishonesty. We agree with the Commission that Judge Ryan
committed willful misconduct. Ryan v. Commission on Judicial Performance
(1988) 45 Cal.3d 518, 545 (1988).
3. New Procedures Upend Evidence Code and Evince Lack of
Impartiality.
Third, the justices new procedures evince their underlying lack of
impartiality, bias, and animus toward me. In fabricating new procedures, they
prejudiced my case as well as engaging in willful misconduct. Justice Klines and
Justice Richman shifted the burden to me by demanding I disprove noncompliance. In doing this, they rewrote the Evidence Code with respect to the
burden of proof, mandatory presumptions, etc., and relieved Mr. McKay of the
burden of proving his claim of noncompliance or contempt at the trial level under
Evid. Code section 500. Instead, they required me to disprove noncompliance on
appeal as a defense to his bare allegations and to do so without a hearing and to
Mr. McKays satisfaction. Rigging a game as they did here can hardly be
considered a matter of good faith.
The procedures called for me to get a court order within three weeks,
provide a transcript, or get a letter from Mr. McKay or some other written
proof that was acceptable to him. In imposing these procedures, the justices
delegated their responsibility as judges to a party to the litigation. In essence, the
justices delegated to Mr. McKay the right to act in a judicial capacity and to
determine the outcome of the case. They gave Mr. McKay a veto power over my
right to appeal, my right to a homestead exemption, and my right to prevent the
forced sale of my condo by the frauds of Mr. McKay and receiver, Kevin
CJP Complaint Against Justices Kline, Richman, pg. 21

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Singer. In doing this, they abandoned their role as neutral adjudicators and
displayed their favoritism toward Mr. McKay. (Preamble to Code of Jud. Ethics.
Judges cannot be advocates for the interests of any parties; they must be, and be
perceived to be, neutral arbitrator of both fact and law). In fact, their improvised
procedures, in the greater context, amount to willful misconduct.
4. Justices Refusal to Clarify New Procedures or Provide Oral
Argument Deny Me Procedural Due Process.
Fourth, Justice Kline and Justice Richman, in denying me oral argument
on the issue of non-compliance engaged in prejudicial misconduct if not willful
misconduct. On March 13, 2014 I filed opposition to their new procedures
(A136608), sought oral argument on the factual and legal basis for the doctrine,
and I even requested clarification of the standards I would have to satisfy to
avoid a dismissal of an appeal. They applied this same standard in my appeal of
Mr. McKays $97,654 fee request as well as the instant appeal challenging the
non-lawyer receivers sale of my condo under a TIC provision that related
only to a defaulting Cotenants cotenancy share. They based their dismissal on
erroneous presumptions, such at validity of the receivers August 20, 2014 writ of
possession with its stay-away order. But, as shown above, SINGER evicted me
by fraudulently obtaining the mandatory Judicial Council EJ-130 form and
misrepresenting facts and law. He then submitted false statements to the SF Police
to have me arrested multiple times. Mr. McKay aided and abetted him by
misleading the district court to the nature of the eviction.
In denying me oral argument at the appellate level, 11 the justices not only
denied me an opportunity to challenge the factual and legal basis of the

11

"Mistakes, errors, fallacies and flaws elude us in spite of ourselves unless the
case is pounded and hammered at the Bar; Moles v. Regents of University of
California (1982) 32 Cal. 3d 867, 872; not infrequently oral argument
develops a new issue overlooked or not adequately briefed. This gives the court
an opportunity to instruct counsel to prepare supplemental briefing during a
CJP Complaint Against Justices Kline, Richman, pg. 22

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applicability of the Doctrine of Disentitlement, but enabled Mr. McKays

fraudulent allegations to be accepted as the gospel. Further, the dismissal of my
appeal and writ not only allowed Mr. McKay and SINGER to sell by condo and
pillage $800,000 I had in equity to recover the fees they rang up in committing
their various frauds, but it paved the way for having me arrested multiple times.
Justice Kline and Richman summarily denied my writs related to SINGERs
unlicensed practice. They denied me court access under the VLS to appeal or file
writs related to his SINGERs request for a writ of possession, which I again
challenged on the grounds that all order by unlicensed parties are null and void.
In view of the fact that Mr. McKay could not dismiss my criminal habeas
corpus writ by virtue of the VLS or the Doctrine of Disentitlement, Justice Kline
was finally forced to address the issue. As noted above, Justice Kline ruled that I
could be removed/evicted by virtue of SINGERs writ of possession. He cited to
the Edwards case, a case involving a writ of possession for recover of
personal property, not a writ related to possession of real property. This is
not some simple erroneous decision. His ruling cannot be explained as a matter of
error. Justice Kline has over 30 years of experience as a judge and its beyond the
pale that he doesnt comprehend distinction between real and personal
property. (An experienced judges failure to research proper procedures as been
found to constitute bad faith under the Wenger two-prong test. Ryan, supra, at
533).
5. Justices Kline and Richman Ignored the Significance of Mr.
McKays Filing of 14 Vexatious Litigant Motions (A Vexatious
Attorney?) And Refused to Follow Case law Holding That Prefiling
Orders Do Not Apply to Defendants.
Fifth, Justice Kline and Justice Richman fault me as a vexatious litigant
in their order dismissing my appeal (Exhibit A, pg. 1, 2). They say that Ive filed
specified period." (Mosk, In Defense of Oral Argument (1999) 1 J.App.Prac. &
Proc. 25, 27.)

CJP Complaint Against Justices Kline, Richman, pg. 23

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an extraordinary number of appeals from postjudgment orders in this case and

that Im subject to a prefiling order. Yet, they neglect to mention that Mr.
McKay has filed 13 or 14 vexatious litigant motions in this case. Yet, Im the
defendant in the underlying arbitration case. They know or should know that
there is case law saying Im not subject to prefiling orders as a defendant.
(Mahdavi v. Sup. Ct. (2008) 166 Cal. App. 4th 32; John v. Sup. Ct. of Los
Angeles (2014) B256604; Section 391.7's Prefiling Order Requirements Do Not
Apply to a Self-represented Defendant Appealing from an Adverse Judgment,
and; Imposing the VLS against a pro per defendant impedes a self-represented
defendant's right of access to the appellate courts.).
Further, they know or should know that Mr. McKay has filed 13 to 14
vexatious litigant motions against me in the trial court, in the appeals, and
whether Im represented or the defendant. Im been denied court access every
time I file a motion related to Mr. McKays fraud in substituting out material
terms or when I try to vindicate my rights under the 2009 CC&Rs and Bylaws.
Justice Kline and Justice Richman know that the plain language of the VLS allows
moving defendants to bring vexatious litigant motions, but they have allowed
Mr. McKay, the moving Plaintiff to file at least three such motion in the appeals
and have upheld his doing so at the trial court. In so doing, they knowingly acted
in excess of statutory authority and beyond their lawful authority. (Ryan v.
Commission on Judicial Performance, supra, at 635). This was both prejudicial
and willful misconduct.
6. Justices Engaged in Willful Misconduct in Declaring Me Vexatious
on Appeal.
Sixth, Justice Kline and Justice Richman acted in bad faith and
prejudicially when they themselves decided to determine, on appeal, that I was
vexatious. On appeal, Justice Kline and Justice Richman were the judicial
officers who found me vexatious by counting recusal motions not considered at

CJP Complaint Against Justices Kline, Richman, pg. 24

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the trial court. (A124717, full text of opinion is available on Google Scholar). 12
Under the ruling of Leone v. Medical Board of Cal. (2000) 22 Cal. 4th 660, they
could not count summarily denied writs and petitions as vexatious, so they
scrambled to find cases to keep me among the vexatious. They conducted their
own self-serving and one-sided investigation. They turned their appellate court
into an impromptu trial court and brought up the issue of my recusal motions
against judges. These matters were not before the trial court and not before them
on appeal. They counted these as vexatious to keep me within the ranks of the
vexatious. ("By undertaking a collateral investigation [the judge] abdicated his
responsibility for deciding the parties' dispute on pleadings and evidence properly
brought before him." Wenger v. Commission on Judicial Performance (1981) 29
Cal. 3d 615, 656).
They did not request additional briefing or give me oral argument. I was
not given any notice they were doing this or provided any opportunity to set them
straight as to their erroneous presumptions. This was at once a denial of my
procedural due process rights, an act in excess of their jurisdiction, and an abuse
of the judicial process. (A judge's attempt to "take [an attorney] unawares" by
concealing material information, as petitioner did here, is "an abuse of the
judicial process" constituting willful misconduct. (Wenger v. Commission on
Judicial Performance (1981) 21 Cal. 3d 615, 631).
When I appealed a vexatious litigant ruling from the family law court
(A121417), I pointed out in my opening brief that there was an on-going criminal
contempt case against me. I noted that I was appointed an attorney in the criminal
case, Peter Furst. I had taken a 5th Amendment plea. At the time Peter Furst failed
to show up for the second scheduled contempt trial, Judge Donald Sullivan was
rotated to a new department. Commissioner Slabach conducted an all-purpose

12

https://scholar.google.com/scholar_case?case=17086511006369671895&q=A124717&hl
=en&as_sdt=2006
CJP Complaint Against Justices Kline, Richman, pg. 25

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hearing on January 22, 2009 where Mr. Fursts partner, Margret Pendergrass,
showed up and explained that Mr. Furst would be unavailable for 6-8 weeks.
Instead of ordering a Marsden hearing, Commissioner Slabach, over my
objections, set a status conference for February 9, 2009. I told her Id taken a 5th
Amendment plea and would not attend and she told Ms. Pendergrass to inform
Peter Furst of the hearing. He failed to show up at that status conference hearing
as well.
Commissioner Slabach also appointed Judge Patrick Mahoney to preside
over the on-going contempt case and trailing matters in the dissolution case.
Before the status conference, I sought to recuse the newly-appointed Judge
Mahoney who was to hear the criminal contempt case. Because the courtappointed attorney for the criminal contempt, Peter Furst, was unavailable, I had
to write and submit my preemptory challenge (CCP 170.6) myself. But Judge
Mahoney refused to recuse himself. Then Justice Kline summarily denied one of
the writs I had to file because Mr. Furst was unavailable to file it. Justice Kline not
only found one of my writs defective but he counted all of them in order to
have me qualify as vexatious. (A124717):
Cunningham v. Superior Court (A123942, filed Feb. 4, 2009.) We denied this
writ petition on February 6, 2009, with an order stating: "The petition for writ of
mandate is denied. Petitioner attempted to challenge two judges in one challenge
under Code of Civil Procedure section 170.6. That section, however, allows for a
party to only challenge one judge. [Citation.] Thus, the challenge filed by
Petitioner was invalid on its face.

By bringing up the issue of whether my recusal motions should be considered

vexatious on appeal, Justice Kline deprived me of any opportunity to challenge his
factual and legal presumptions related to them. He clearly did not understand that
if Mr. Furst was unavailable, he was not able to write the 170.6 preemptory
challenge he found defective or the writs related to the fact that Judge Mahoney
refused to recuse himself. In short, I was denied due process to challenge the
rulings and to point out that I was deprived my 6th Amendment right to effective

CJP Complaint Against Justices Kline, Richman, pg. 26

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assistance of counsel. In their ruling (A124717), Justice Kline laments he failed

to see any factual relation but he makes this statement after denying me a hearing
where I would have opened his eyes to the facts.
Cunningham contends the court violated his Fifth Amendment right against selfincrimination and his Sixth Amendment right to counsel when it denied his right
to court-appointed counsel at "critical stages" of the proceedings, including the
February 9, 2009 status conference and hearing on Perry's application for an OSC
at which the court reissued the OSC.
The court appointed counsel for Cunningham for the limited purpose of
representing him in the contempt proceeding initiated by Wang. Cunningham was
not entitled to court-appointed counsel at proceedings unrelated to that contempt
matter. We fail to see how Cunningham's appearance without counsel at the
February 9, 2009 status conference or at hearings on Perry's OSC application
would violate his Fifth or Sixth amendment rights. (emphasis added).

The fact is that there would have been no status conference with Judge Mahoney
if Peter Furst had provided effective assistance of counsel by not disappearing for
6-8 weeks and if he had written the 170.6 preemptory challenge as the courtappointed attorney. Likewise, if Peter Furst had attended the status conference he
would have informed the newly-appointed Judge Patrick Mahoney that the
contempt case was given a scheduling priority and that attorney Maria Schopps
attempt to bump her vexatious litigant motion to the front of the line was not
only contemptuous of Judge Sullivans prior scheduling order but an a fraud on
the court.
In summary, Justice Kline and Justice Richman impromptu consideration of
my recusal motions on appeal reviews matters that were not raised at the trial
court, prevented me from addressing the factual underpinnings and overlap with
the criminal contempt case and the family law actions. They just presumed to
know the facts and presumed I was not denied my 6th Amendment right to
effective assistance of counsel. Clearly, if Peter Furst wrote the 170.6 motions and
the writs then those actions would not have been counted against me when
CJP Complaint Against Justices Kline, Richman, pg. 27

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Justice Kline ferreted out other writs to add up to brand me a vexatious

litigant. To this day, Im considered vexatious because of their failure to
provide me procedural due process and their failure to see (because of their
improper and illegal use of their appellate court as a trial court) how I was denied
effective assistance of counsel. The failure of Justice Kline and Richman to
see how I was denied effective assistance of counsel while denying me
procedural due process with oral argument, is itself a form of collusion in the
denial of my right to counsel. (The California Supreme Court held in Gonzalez v.
Commission on Judicial Performance, (1983) 33 Cal. 3d 539 held that
conducting judicial proceedings in the absence of counsel constitutes judicial
misconduct, Id. at 372).
8. The Justices Are Embroiled In This Case as Evinced By Their
Plague of Erroneous Decisions.
Justice Kline and Justice Richman are both embroiled in this conflict as
shown by their conduct noted above and their implicit judgment that Im filing an
extraordinary number of appeals. (Exhibit A, pg. 1, 2). Mostly, they are
invested in covering up their extraordinary number of erroneous decisions. For
instance, they upheld a judgment confirming an arbitration award that Mr.
McKay took on the 2007 TICA, not the 2009 CC&Rs and Bylaws. (*See,
A131914). Mr. McKay filed for arbitration on the 2007 TICA even though his
clients had signed, executed, and recorded their Declaration (2009 CC&Rs and
Bylaws) and the two-unit building was converted from ownership held as a
cotenancy and into separately owned condominiums. (*See, Civil Code 13521353). This conversion occurred by operation of law, yet Mr. McKay sued on
the 2007 TICA. The trial judge ordered the parties into arbitration on the 2007
TICA, not the 2009 CC&Rs (which did not have a binding mandatory arbitration
clause).
At the October 19, 2010 hearing on Mr. McKays petition to compel
arbitration, the trial judges subject matter jurisdiction was limited to the narrow
CJP Complaint Against Justices Kline, Richman, pg. 28

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issue of whether there was an agreement to arbitrate. (The only question

implicated by the petition to compel arbitration is whether the arbitration
agreements should be specifically enforced. Rosenthal v. Great Western Bank
Fin. Securities (1996) 14 Cal. 4th 394, 412). The trial judge ordered me and Mr.
McKays clients into arbitration on the 2007 CC&Rs without making any ruling
on the issue of having dueling contracts or whether there was any interplay
between them. At arbitration, the arbitrators authority to fix remedies was limited
to the 2007 TICA. (The powers of an arbitrator derive from, and are limited by,
the agreement to arbitrate. Moncharsh v. Heily & Blas (1992) 3 Cal.4th 1, 8).
In drafting his proposed arbitration award, Mr. McKays remedy under the 2007
TICA was a forced sale of the defaulting Cotenants cotenancy share. He
knew this but asked for a forced sale of Mr. Cunninghams condominium. He
substituted out material terms and inserted condominium. In doing this, he
rewrote the 2007 TICA, the 2009 CC&Rs, the California Subdivision Map Act,
and contract provisions related to mutual intent (Civil Code 635-649).
On appeal (A131914), 13 Justice Kline ignored and dismissed my claims that
Mr. McKay had improperly rewrote the contracts. They ruled that this matter was
not raised in the trial court and that my allegations of improper or fraudulent
conduct by Mr. McKay was an ad hominem attacks on him. (And he engages in
ad hominem attacks against respondents' attorney, which is most inappropriate
not to mention that they have no support in the record.). When I hired an attorney
and sued Mr. McKay and his clients for fraudulently substituting out material
terms (CGC-11-511994), Mr. McKay got the lawsuit dismissed under section
391.4 of the VLS when I did not post $50,000 in security. Even though case law
provided that I didnt need permission to file a new lawsuit as a vexatious
litigant (Shalant v. Girardi (2011) 51 Cal. 4th 1164; Flores v. Georgeson (2011)

13

https://scholar.google.com/scholar_case?case=15326774383041227289&q=A131914&hl
=en&as_sdt=2006
CJP Complaint Against Justices Kline, Richman, pg. 29

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191 Cal. App. 4th 881), Justices Kline and Richman upheld the dismissal, upheld
the trial courts award of $27,000 in fees, and upheld the construction of the VLS
as applying against a represented vexatious litigant. Once again, they even
characterized my fraud claims, that is, Mr. McKays apparent improper,
unethical, and illegal conduct in substituting out material terms as ad hominem
attacks. Their bias in favor of Mr. McKay was so blinding that my fraud claims
(with the requisite allegations) were reduced to being ad hominem attacks.
Moreover, in upholding Mr. McKays view of the VLS, they allowed Mr.
McKay to bring what amounted to the third vexatious litigant ruling against me.
They knew Id been declared vexatious multiple times in the family law court
(because they heard my appeals of custody matters) but then allowed Mr. McKay
to bring a third motion at the trial court and a fourth one on appeal. The right
to filed multiple vexatious litigant motions against an individual is not supported
by statute or case law. On appeal (A131914; A134207), the justices allowed Mr.
McKay to bring the fourth motion in which he sought to have me post $50,000 in
the appeal before I could argue that the $50,000 security as the trial level was
improper. The justices even allowed him oral argument on the issue but deny
me oral argument on the matter of clarify the legal and factual basis for their
reading of the DOD. Not only would they uphold the dismissal of a lawsuit against
a represented litigant, but they would later allow Mr. McKay to recover $91,654
(A1366080) as the costs of the appeal under CCP section 1033.5(10). He
claimed the 2007 TICA as the contractual basis for the award.
In that way, the justice allowed Mr. McKay to recover $118,654 in
attorneys fees ($91,654 + $27,000 at the trial court) to dismiss my lawsuit and to
prevent a hearing on the issue of whether Mr. McKay committed fraud in
substituting out material terms. In fact, the justices, in A136608, dismissed my
appeal of Mr. McKays fee award of $91,654 in which I argued that the 2007
TICA could not be a contractual basis for a fee award because it terminated by
operation of law on September 29, 2009 under Civil Code 1352. At that point,
CJP Complaint Against Justices Kline, Richman, pg. 30

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Justice Kline and Justice Richman created the perfect procedural Catch-22. The
preempted any finding on the issue of when or how of even if the 2007 TICA can
or had terminated. They ruled that I was out of compliance with the Judgment
and the fundamental factual basis for their rulings has never been addressed. Their
use of the Doctrine of Disentitlement preempts any fact finding on the issue of the
2007 TICA being terminated, which result in a default judgment on Mr.
McKays fee awards.
Of course, the use of the doctrine had the effect of presuming that the 2007
TICA did not or cannot terminate. It also presumes that Mr. McKay did not
commit a fraud in substituting out material terms when he drafted the award.
Further, it presumes that the arbitration settled all matters related to both the 2007
TICA and the 2009 CC&Rs. The justices presumptions are not even consistent
with there own ruling. In the appeal of the arbitration award (A131914), Justice
Kline and Judge Richman state:
"Respondent maintained they were bringing claims pursuant to the TICA,
and that the CC&Rs was not relevant to their claims. Based on this theory
of the case, we see no reason why respondents were required to submit the
CC&Rs to the court for review."). Conversely, we see no reason why
appellant could not submit them to the court himself as part of his
opposition, with whatever argument he might have about their relevance.
What the justices willfully and deliberately dont see is the inherent problem
created when Mr. McKay resurrected the 2007 TICA after his clients executed the
subsequent 2009 CC&Rs. His clients even granted me a grant deed for a condo
unit in the building. In resurrecting the 2007 TICA, there were then two
supposedly valid contracts, one relating to ownership held as a cotenancy as the
other related to real property held as a fee simple condominium. Just as water
cannot at once be steam and ice, a two-unit building cannot be both a cotenancy
and fee-simple condominium complex. The 2007 TICA and 2009 CC&Rs had
different remedies, different rights (jury trial v. mandatory arbitration) and
different procedures.
CJP Complaint Against Justices Kline, Richman, pg. 31

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Further, for Justice Kline and Justice Richman to suggest that I should
have submitted them (the CC&Rs) with whatever argument he might have about
their relevance betrays their complete failure to understand arbitration statutes,
case law on arbitration, and the terms of either the 2007 TICA and 2009 CC&Rs.
The refuse to review the facts or research the law. They fail to under the relevance
of the issue of having two contracts. On the one hand, I had the right to file a
lawsuit on the CC&Rs, the right to seek a jury trial after extensive discovery, and
the right to take depositions. On the other hand, neither I nor Mr. McKays clients
could be compelled into arbitration on the 2009 CC&Rs because it did not contain
a binding mandatory arbitration clause. Likewise, I could not be compelled into
arbitration to prove or disprove that the 2009 CC&Rs were valid or the governing
document because that was not matter we agreed to arbitrate. (Arbitration may
not be compelled absent an agreement to submit the particular claims at issue to
arbitration. Baddie v. Bank of America (1998) 67 Cal. App. 4th 779, 787-88).
In failing to research the proper procedures in the arbitration case and their
failure to recognize my contractual rights under the 2009 CC&Rs, Justice Kline
and Justice Richman impaired my right to contract under the state Constitution
(Art. I, sec 9) and prevented me from vindicating my rights under the CC&Rs and
California Subdivision Map Act. This was prejudicial and willful conduct.
9. The Post-Judgment Award of $700,000 In Attorney Fees Is
Misconduct
In appeal A136608, Justice Kline and Justice Richman dismissed my
appeal of Mr. McKays request for attorney fees under the Doctrine of
Disentitlement. They concluded, on Mr. McKays bare allegations, that I was out
of compliance with the Judgment to cooperate with the forced sale of my
condominium. In essence, they granted Mr. McKay $91,654 in fees by default
either under the VLS or under the DOD and based on the false allegations of Mr.
McKay that Im out of compliance. Since then, every appeal Ive taken of Mr.
McKays various fee awards for filing his multiple vexatious motions, which have
CJP Complaint Against Justices Kline, Richman, pg. 32

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prevented me from vindicating my rights under the 2009 CC&Rs or exposing his
frauds, has been denied. Justices Kline and Richman have, in dismissing my
appeals, awarded him over $700,000 in fees. They did this without every allowing
me a fully-litigated hearing on the issue of when the 2007 TICA had terminated or
remained a valid contract and a contractual basis for fee recovery under CCP
section 1033.5(10). In fact, at oral argument in A134207, Justice Kline asked Mr.
McKay how the zombie 2007 TICA might terminate. He knew or should have
known the procedures for condo-conversion had been satisfied a year before Mr.
McKays suit and that the 2007 TICA made condo-conversion a grounds for
termination. Clearly, Justice Kline was not in acting in good faith if he could not
read applicable law, the pleadings, and the California Bar Act.
VI. JUSTICE KLINE AND JUSTICE RICHMAN IMPROPERLY ACCUSE
MY ATTORNEY PATRICIA J. BARRY
After apparently conducting some impromptu investigation or after making
slap judgments, .Justice Kline and Justice Richman in their dismissal (Exhibit A)
slammed my appellate attorney, Patricia J. Barry. Without providing me or my
attorney oral argument or any hearing at the appellate level on the applicability of
the DOD, they conclude that she acted improperly in at least two ways. First, they
claim shes misrepresenting Mr. McKays legal position as demanding a
prefiling order in this appeal. (Exhibit A, pg. 3, 2). Second, they fault her for
not recognizing or realizing that their previous ruling in which I was subject to the
disentitlement doctrine (A136608) is now a permanent order. (Exhibit A, pg.
2, 2):
Finally, counsel should have been aware of our order in case No.
A13660o8 establishing the showing required of Cunningham to counter
plaintiffs representations that he is out of compliance with trial court
orders.
In response, as an initial matter, there is no reason that I or Ms. Barry would have
known that Justice Kline and Justice Richman would interpreted their inherent

CJP Complaint Against Justices Kline, Richman, pg. 33

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powers as allowing them to permanently deny me appellate court access on the

basis of a two to three year old ruling.
A. Permanent Denial of Appellate Court Access Under the DOD
First, the justices dismissal order was in excess of their jurisdiction.
Neither I nor Ms. Barry were given notice or an opportunity to challenge Justice
Klines and Justice Richmans vast expansion of their powers to deny my
constitutional rights. While appellate courts have inherent authority to dismiss,
the case law is clear that use of the disentitlement doctrine should only be used in
extreme circumstances and where "the court's authority `cannot possibly be
otherwise vindicated'. Lyons v. Wickhorst (1986) 42 Cal. 3d 911, 917). Likewise,
the Court of Appeals in Slesinger, Inc. v. Walt Disney (2007) 155 Cal. App. 4th
736, stated, supra, at 757:
There are, of course, limits on the inherent authority of California courts
inherent power may only be exercised to the extent not inconsistent with the
federal or state constitution, or California statutory law. (Citations
omitted).
Under CCP 704.703, I had the right to a $175,000 homestead exemption. The
homestead exemption was also a constitutional right (Cal. Const. Art XX, sec.
1.5). I had the right to challenge on appeal (A144930), consistent with the Due
Process Clause of the 14th Amendment, the forced sale of my $1,300,000
condominium on the basis of the facially ambiguous Judgment resulting from
Mr. McKays fraudulent substitution of material terms. By presuming that Im
out of compliance with this very Judgment without any judicial finding of
contempt at the trial court, Justice Kline and Justice Richman not only deny me
court access but preclude me from challenging the enforcement of the Judgment
and its facial invalidity. Im denied constitutional rights in multiple ways.
In that respect, there is no reason Ms. Barry should have known that the
justices would construe their inherent power as giving them the right to apply
the DOD on a permanent basis. There is no reason she would believe that the

CJP Complaint Against Justices Kline, Richman, pg. 34

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justices believed they had the inherent power to override her clients statutory
and constitutional right to a homestead exemption or challenge a facially void
order. Mr. McKay may have deceived the trial court, the arbitrator, and Justice
Kline and Justice Richman in drafting the arbitration award and substituting out
material terms (fraudulently rewriting the 2007 TICA, the 2009 CC&Rs, the
California Subdivision Map Act, etc.) but that did not deprive her client from
challenging the enforcement of the Judgment as void under CCP section
473(d). The justices had no authority to overrule the Code of Civil Procedure.
Further, I complied with the California Subdivision Map Act, got my twounit building condo-converted as mandated by the Civil Code section 1352. The
justices imposition of the DOD here impairs my right to contract under the state
and federal Contract Clause (Art. I, sec.10). Under the 2009 CC&Rs, I also had
the right to a jury trial, which their dismissal of my civil suit (CGC-11-511994)
under the VLS, violated. Ms. Barry had no reason to expect the justice would act
in such flagrant disregard to her clients rights and their complete disregard to any
limits or restrictions to their inherent authority. (A judges reckless or utter
indifference to whether judicial acts being performed exceed the bounds of the
judges prescribed power is a state of mind properly characterized as bad faith.
Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1076,
1092.)
B. Alleged Misrepresentations Related to Prefiling Order
Second, Justices Kline and Richman reprove Ms. Barry for filing an
opposition to Mr. McKays motion to dismiss, stating that (Exhibit A, pg. 3):
Moreover, the opposition attributes to plaintiffs' motion a request to impose
prefiling requirements in this appeal-a request the motion does not make.
This constitutes a misrepresentation to the court.
The first problem here is that Justice Kline and Justice Richman should have
been aware of their own rulings and Mr. McKays request for a prefiling order
in the underlying arbitration case. (CPF 10-510760). Previously, Mr. McKay
CJP Complaint Against Justices Kline, Richman, pg. 35

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filed for a prefiling order when I appealed the arbitration award (A131914).
Justices Kline and Richman denied the motion, apparently under the mandate by
the Supreme Court in Shalant v. Girardi (2011) 51 Cal. 4th 1164 to observe plain
language and the limits set by the statutory framework. 14
03/26/2012 Order
The Court, having considered "Respondents' Motion to Require
filed. Furnishing of Security by Vexatious Litigant" and all arguments and
exhibits submitted by the parties relating thereto, hereby orders: The
motion is denied. Neither respondent is a "defendant" and appellant
is not a "plaintiff, " as these terms are used in Code of Civil
Procedure section 391.1.

Under the concept of stare decisis, rule of the case, and res judicata, this ruling
was binding on Mr. McKay. Nevertheless, after he sold my condo and closed
escrow on June 9, 2015 and pocketed $400,000 of the $700,000 in fees he had run
up, he obtained a prefiling order at the trial court where Im the defendant.
The plain language of the VLS provides that a prefiling order applies against
new litigation. Mr. McKay filed the arbitration suit on September 29, 2010.
Despite the justices prior ruling on appeal, the plain language of the VLS, and
case law suggesting that the VLS was not meant to apply to defendants, 15 Mr.
McKay sought a prefiling order at the trial court. 16
JUN-25-2015

REAL PROPERTY/HOUSING MOTION 501, PETITIONERS MICHAEL COOMBS

AND TAMARA WOODS' MOTION FOR INJUNCTION AGAINST THE FILING OF
ANY LITIGATION TO FURTHER LITIGATE MATTERS ALREADY LITIGATED
IN THIS ACTION IS GRANTED, AND A PREFILING ORDER REQUIRING
CUNNINGHAM TO OBTAIN LEAVE OF COURT BEFORE FILING ANY

14

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1978744
&doc_no=A131914

(Mahdavi v. Sup. Ct. (2008) 166 Cal. App. 4th 32; John v. Sup. Ct. of Los
Angeles (2014) B256604; Section 391.7's Prefiling Order Requirements Do Not
Apply to a Self-represented Defendant Appealing from an Adverse Judgment,
and; Imposing the VLS against a pro per defendant impedes a self-represented
defendant's right of access to the appellate courts.)

15

16

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAM
E=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
CJP Complaint Against Justices Kline, Richman, pg. 36

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FURTHER LITIGATION IS GRANTED. PREVAILING PARTY TO PREPARE AND

SUBMIT AN ORDER IN COMPLIANCE WITH CRC 3.1312(B). JUDGE: RONALD
E. QUIDACHAY; CLERK L. FONG; MATTER NOT REPORTED. (501)

In filing a motion against me, a defendant at the trial court, Mr. McKay is trying
to circumvent the law by an end-around. Hes trying to avoid Justices Klines and
Richmans prior two-year old ruling at the appellate court and hoping their
memories are short. Oddly, when I went to appeal Mr. McKays recent vexatious
litigant order, I was denied permission under the VLS to appeal by the Court of
Appeal.
SEP-23-2015

ORDER DENYING APPLICATION FOR PERMISSION TO APPEAL (A146223,

APPEAL FILED 9/4/5)

In that regard, Mr. McKay failed to lock me out of the appellate court by his
previous motion on appeal (A131914, denied by Kline) but has now managed to
achieve the same result by locking me out of the trial court and then relying on the
VLS to create the perfect procedural loop where appellate review is denied and
judicial accountability is scuttled. He slipped this procedural gamesmanship right
past the willfully indifferent Justices Kline and Richman.
C. Bad Faith Shown In Admonishing Ms. Barry As My Attorney
First, Justices Kline and Richman failed to understand that Mr. McKay had
in fact filed more vexatious litigant motions at the trial court. Ms. Barry pointed
this out in her opposition and noted that such an order would have direct
consequence related to my right to appeal.
Second, Justices Kline and Richman failed to recognize that they
themselves had denied Mr. McKays vexatious motion in an appeal in this case.
(A131914, noted above). The fact is that Mr. McKay, in filing his motion to
dismiss under the DOD, failed to mention, or rather, deliberately suppressed the
fact that hed filed for a prefiling order at the trial court. He knew very well that
this would affect and has affected my right to appeal. He knew that Justices Kline

CJP Complaint Against Justices Kline, Richman, pg. 37

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and Richman ruled against him on appeal but he knew that trial judge Ronald
Quidachay would rubber-stamp his motion. Ms. Barry pointed this out in her
opposition. She was not misrepresenting Mr. McKays position regarding his
filing multiple vexatious litigant motion to deny me due process. Rather, she
was addressing the actual issue at play, that is, the denial of court access by either
the DOD or VLS. She pointed that out in her opposition. Its not that Ms. Barry is
not misrepresenting Mr. McKays position. Rather, hes suppressing facts
related to his filing prefiling orders, ignoring case law related to imposing
prefiling orders against defendants, and committing frauds on the court. The fact
is that Mr. McKay, in avoiding the prior appellate court ruling, is committing
another fraud on the court and is the one who is in an attitude of contempt.
Third. Justices Kline and Richman were deliberately manipulated by Mr.
McKays misrepresentations of other material facts and events. In his June 30,
2015 motion to dismiss, Mr. McKay sought to dismiss my appeal under the DOD.
In his declaration, he asserted I was out of compliance with the Judgment
regarding me not to interfere with the sale of my condo and an order to stay
away from the property. The fact is that on June 9, 2015, escrow closed and by
June 15, 2015, the new owner had moved into the property. In his declaration, Mr.
McKay deliberately suppressed these facts and omitted these transactions to
conceal the change in material facts. He perjured himself. If he had admitted these
material changes in facts, hed have had no factual basis for his view that I was
out of compliance with court orders. At the time he filed his motion on the DOD
on June 30, 2015, the issue of non-compliance was moot. Mr. McKays willful
suppression of these facts was motivated to deny me court access and the right to
challenge the order confirming the sale of my property on a facially ambiguous
and void Judgment. The failure of Judge Kline and Richman to ascertain Mr.
McKays perjured statements speaks to prejudicial misconduct.
Fourth, Justices Klines and Richmans presumptions that Mr. McKays
allegations in support of his DOD motion are true not only enabled Mr. McKays
CJP Complaint Against Justices Kline, Richman, pg. 38

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various misrepresentations and frauds on the court but it reveals their lack of
impartiality and animus toward Ms. Barry. In considering Mr. McKays motion
under the DOD, the justices presumed facts and law, ignored their previous
appellate vexatious litigant ruling, ignored the significance of his new vexatious
litigant motion at the trial court and went out of their way to conclude that Ms.
Barry was misrepresenting Mr. McKays position. This line of action and
reasoning betrays their abandonment of impartiality and animus toward Ms. Barry.
They rushed to conclude that Ms. Barry was making false misrepresentations
while placing Mr. McKay above and beyond the slightest reproach. This disparate
treatment cannot be characterized as those of a neutral adjudicator. Worse yet, in
my writ of supersedeas, I included documentation, such as the close of escrow
documents that showed that the condo was sold and the new owner had taken
occupancy. In that way, it was evident on the face of my pleadings that the basis
for Mr. McKays motion to dismiss was moot. Nevertheless, the justice remained
willfully ignorant of the facts before them, the facts in front of their eyes.
Fifth, Justices Kline and Richman after being manipulated by Mr. McKay
and failing to recognize that he perjured himself about the continued factual
basis of his DOD motion and the significance of his new prefiling order at the
trial level, take it upon themselves to admonish Ms. Barry. The fact is that its
Mr. McKay who should be admonished for his misrepresentations and frauds
upon the court. In their footnote, its clear that the justices investigated Ms.
Barrys disciplinary record and were aware that there is an on-going State Bar
action against her. Its not clear if they reported their admonishment against Ms.
Barry to the State Bar. If so, or perhaps by even publishing this opinion, the
justices are acting in bad faith and improperly trying to influence the outcome of
that proceeding. 17
17

A judge's public comment on a pending case threatens the state's interest in

maintaining public confidence in the judiciary whether or not the case to which the
comment is directed is pending before the commenting judge. When the case is pending
CJP Complaint Against Justices Kline, Richman, pg. 39

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V. JUSTICES KLINE AND RICHMAN ARE RETALITATING

AGAINST MY ATTORNEY
I was the appellate attorney when Ms. Barry and her client, Michele
Fotinos, were declared vexatious. To be clear, the trial court on November 9,
2012 declared both a client and her attorney vexatious. Then, on November 16,
2012, Presiding Judge Beth Labsom Friedman submitted a prefiling order on the
mandatory Judicial Council MC-700 form. I timely appealed the prefiling order
of November 16, 2012 within 60 days, but Justices Richman and Kline held that
the November 9, 2012 order, which declared Ms. Barry and her client
vexatious, was actually the prefiling order that needed to be appealed.
(A137647, *See Unpublished Opinion on Google Scholar). 18
The court's order of November 9 was the one which imposed a prefiling
order requirement on Fotinos. The additional step of filing a form MC-700
appears to have fulfilled one primary purpose: those forms are to be forwarded to
the Judicial Council so that the vexatious litigant's name may be added to a
statewide list of those subject to a prefiling order requirement. ( 391.7, subd. (f).)
We do not view this as an order appealable independently of the November 9
order. We see no reason why Fotinos should be given a second opportunity or a
longer period to appeal when the issue had been determined on November 9, and
she was fully informed of it by service of the order on November 15. We deem
the appeal period to have begun on November 15, 2012, when Sells served the
November 9 order on Fotinos.

The justices ruling is erroneous for at least two separate reasons and raises issue
of bias and bad faith. In Shalant v. Girardi (2011) 51 Cal. 4ht 1164, the Supreme
Court pointed out that the VLS provided two distinct remedies, supra, at 1171):
before the commenting judge, the public may perceive the comment as indicating that the
judge has prejudged the merits of the controversy or is biased against or in favor of one
of the parties. (Rothman, Cal. Judicial Conduct Handbook (1990) 160.550, p. I-39.)
When the case is pending before a judge other than the commenting judge, the public
may perceive the comment as an attempt to influence the judge who is charged with
deciding the case. (Ibid.) Such comments may also create the public impression that the
judge has abandoned the judicial role to become an advocate for the judge's own ruling
or for the position advanced by one of the parties.
18

https://scholar.google.com/scholar_case?case=5887645888322496087&q=a137647&hl=
en&as_sdt=2006
CJP Complaint Against Justices Kline, Richman, pg. 40

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To summarize, our vexatious litigant statutes provide courts and nonvexatious

litigants with two distinct and complementary sets of remedies.
In pending litigation, a defendant may have the plaintiff declared a vexatious
litigant and, if the plaintiff has no reasonable probability of prevailing, ordered to
furnish security. If the plaintiff fails to furnish the security, the action will be
dismissed. ( 391.1-391.6.) In addition, a potential defendant may prevent the
vexatious litigant plaintiff from filing any new litigation in propria persona by
obtaining a prefiling order and, if any new litigation is inadvertently permitted to
be filed in propria persona without the presiding judge's permission, may then
obtain its dismissal. ( 391.7.)

A. Conflating Separate Remedies Under the VLS

First, the November 9, 2012 hearing was filed under section 391.1 and sought to
have the parties declared vexatious. On the other hand, the Presiding Judge, not
the trial judge, was authorized to issue a prefiling order, which she did on
November 16, 2012 on the mandatory judicial council MC-700 form. The justices
first failed to read or research or understand the Supreme Courts ruling in
Shalant. They failed to understand the fundamental distinction between remedies
and believed that the two remedies could be granted at the hearing on a section
391.1 motion to find and declare a plaintiff vexatious. This error was pointed
out in People v. Harrison (2002) 92 Cal. App. 4th 780, 785:
In the case at bench, it appears Judge Nunez was attempting to issue a prefiling
order, as contemplated by Code of Civil Procedure section 391.7. Before there
can be a prefiling order, however, there must be a "vexatious litigant" within the
contemplation of the code.[7] While a court may enter a prefiling order on its own
motion, the statutes do not appear to envision that a court may, on its own motion,
find a plaintiff to be a vexatious litigant in the first instance.

The justices conflate the 391.1 hearing to declare a defendant vexatious in

pending litigation with the remedy of a prefiling order issued by a presiding
judge in new litigation.
Another error they made is that prefiling orders are issued by presiding
judges, not trial judges as Justice Kline and Richman would allow by designating
the November 9, 2012 order as a prefiling order. Further, prefiling orders, as
noted by the Supreme Court in Shalant, apply to new litigation, not on-going
CJP Complaint Against Justices Kline, Richman, pg. 41

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pending litigation. The justices ruling would mean that the pending litigation in
the probate court would automatically and mysteriously become new litigation
once a defendant was declared vexations, which would then subject them to
such a remedy (if they were not acting in propria persona.). Thats simply not a
plausible construction. By designating the November 9, 2012 order finding Ms.
Fotinos and Ms. Barry vexatious as also a prefiling order, the justices ignore the
clear ruling of Shalant, rewrite the plain language of the VLS, ignored case
law, and create inconsistencies and contradictions.
In so ruling, the justices also deny Ms. Fotinos and Ms. Barry their
constitutional right to appeal. To arrive at their erroneous ruling the justices had to
commit at least five erroneous readings of statutes and case. Its defies reason to
believe this can be explained away by simple legal error or ineptitude. It speaks
to their bad faith.
B. Imposing the VLS Against an Attorney Who Was Representing Her Client
Is Bad Faith
Justice Kline and Justice Richman also commit another erroneous ruling if
not a deliberately void order. In their unpublished opinion (A137647):
After hearing testimony that an attorney, one Patricia Barry, had been guiding and
advising Fotinos with respect to her pro per filings, the court made the prefiling
order applicable to Barry, as well, insofar as she might seek to file any "petition,
application, or motion other than a discovery motion, for any order on behalf of
Ms. Michele Fontinos without first obtaining leave of the presiding judge.
(emphasis added).

Here, the erroneous ruling is applying the VLS against an attorney, Ms. Barry,
who was merely representing her client at the probate hearing. When I filed my
opening brief, I cited the Ninth Circuit case of Weissman v. Quail Lodge, Inc.,
179 F.3d 1179 (9th Cir. 1999) which ruled that, (Id., at 1197):
Insofar as our research has uncovered, no court in this circuit has ever imposed a
vexatious litigant order on an attorney. We do not believe that the vexatious
litigant doctrine was ever intended to control attorney conduct and we do not
propose to approve its application in this case as a means of controlling attorney
conduct. For example, the California vexatious litigant statute limits the definition
CJP Complaint Against Justices Kline, Richman, pg. 42

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227

of a "vexatious litigant" to one who acts "in propria persona." Cal.Civ.Proc.Code

391.7.We therefore conclude that an attorney appearing on behalf of a client
cannot be sanctioned as a vexatious litigant; by definition, he or she is acting as an
attorney and not as a litigant.

On appeal, I included this case in my pleadings but that did not deter Justices
Kline or Richman from imposing a prefiling order against Ms. Barry. Although
the Ninth Circuit stated that no court in this circuit has ever imposed a vexatious
litigant order on an attorney, Justice Kline and Justice Richman saw fit to break
new judicial barriers. Ms. Barry is now the only attorney appearing on the list of
those who was declared vexatious while representing a client.
In order to arrive at their erroneous if not void ruling, the justices had to
commit another five misreadings of statute and case law. As an initial matter, they
seem to even misread the trial judges November 9, 2012 order, which they claim
is a prefiling order requiring Ms. Barry to first obtain leave of the presiding
judge before filing any motion on behalf of her client. Justice Kline and Richman
define the trial judges November 9, 2012 order as a prefiling order but then
suggest Ms. Barry must obtain leave from the presiding judge. This creates
inconsistencies and contradictions in the statutory language. The trial judge can
issue the prefiling order on November 9th but only the presiding judge can
enforce when Ms. Barry obtains leave?
Further, to impose a prefiling order against the attorney who was
representing her client required the justices to make myriad misreadings of statute
and case law. Section 391.7, by its plain language, applies to vexatious litigants
acting in propria persona. But the justices applied it to an attorney representing
her client. Further, the Supreme Court in Shalant stated that representation is
not absurd. The obvious response is that Justices Klines and Richmans ruling
renders this statement absurd. Moreover, the Supreme Court in Shalant and the
Court of Appeals in Flores v. Georgeson (2010) 191 Cal. App. 881 ruled that
represented vexatious litigants were shielded from prefiling orders. (Flores,

CJP Complaint Against Justices Kline, Richman, pg. 43

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supra, at 883; We hold that a prefiling order, issued pursuant to Code of Civil
Procedure section 391.7, subdivision (a), does not require a vexatious litigant who
is represented by counsel to obtain permission from the presiding judge to present
litigation for filing.). The justices simply ignored statutes and controlling
authority.
C. Obstruction of Justice And Suppression of Evidence
If there is any doubt that these two erroneous rulings, based on 10-12
misreading of statutes and case law, one only has to look at Ms. Fotinos appeal
of the denial of the trial court to vacate the vexatious litigant order. I represented
Ms. Fotinos in that appeal as well. When I pointed out that the Presiding Judge
Beth Labsom Freedman had recused herself and included the 170.6 motion with
her signature, the justices scoffed. They did not deny that CCP 170.4(d)
prevented a disqualified judge from acting in any proceedings. Nor did they
question Presiding Judge Freemans signature on the hand-written 170.6 motion
that Ms. Fotinos drafted. Nor could they deny the fact that the transcript of the
November 9, 2012 proceeding unequivocally showed that Presiding Judge
Freeman interrupted the hearing at least four times to talk to the trial judge. In
addressing the matter of the Presiding Judges apparent improper meddling in a
vexatious litigant hearing, Justices Kline and Richman just ignored the evidence.
They did not even entertain the possibility of Presiding Judges obstruction of
justice. (A139165). 19
The fourth and last ground for the applications was the claimed
disqualification of Judge Freeman, who, according to Fotinos, "granted a
preemptory challenge . . . on July 23, 2012." The trial court's register of this
action for July 23, 2012 does not show any such action by Judge Freeman, or,
indeed, any action at all involving Judge Freeman. Even if there was such a
disqualification, and Judge Freeman's order was void, that consequence would not
be significant. As we made clear in our dismissal order, it was Judge Karesh's
antecedent order that counts. Thus, the validity of Judge Freeman's subsequent
order would likewise be a moot issue.
19

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2050502
&doc_no=A139165
CJP Complaint Against Justices Kline, Richman, pg. 44

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229

After reading this order, I immediately filed for a rehearing under Title Eight
rules and attached the Register of Actions showing she was disqualified.

20

Clearly, Justice Richman conducted his own investigated and rendered his opinion
on evidence not before him, a violation of the Judicial Canon. 21
04/08/2014 Opinion filed.

(Signed Unpublished) For each and all of these

reasons, the order is affirmed.

04/16/2014 Rehearing petition filed.

Appellant

04/24/2014 Order denying rehearing

petition filed.

Appellant's petition for rehearing is denied.

I quoted CCP 170.4(d), cited the transcripts showing her calls to the trial court,
and pointed out the illegality of a presiding judge improperly influencing a trial
court. Justice Richmans reasoning that the outcome would not have mattered
even if there were such a disqualification, is flawed for several reasons. First, it
bootstraps their present ruling to the first erroneous ruling (that the November 9,
2012 could be both a prefiling order and a section 391.1 hearing) that they
presume is correct rather than void for being applied against an attorney and her
client. Second, if Presiding Judge Freeman were disqualified, she had no right to
be calling and trying to influence the outcome of the hearing. Even if she had
not been disqualified, she had no right to interfere with the independent judgment
of the trial court. In short, the justices ruling avoids addressing the issue of
whether the presiding justice had obstructed justice here.
D. Appearance of Retaliation In Refusing to Recuse.

20

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2050502
&doc_no=A139165
21
3B(7) A judge shall accord to every person who has a legal interest in a proceeding, or
that persons lawyer, the full right to be heard according to law. Unless otherwise
authorized by law, a judge shall not independently investigate facts in a proceeding and
shall consider only the evidence presented or facts that may be properly judicially
noticed.
CJP Complaint Against Justices Kline, Richman, pg. 45

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I and my attorney, Patricia Barry, filed a class action against non-attorney

SINGER for his unauthorized practice of law. (UPL)> I had filed a writ of
mandate which Justice Kline and Justice Richman summarily denied. In that
regard, there arose an issue of whether they had enabled or aided and abetted
SINGER in refusing to rule on the issue. In ;the class action (DC CD 14-cv-09104
GW), I and Ms. Barry named both justices as defendants. The failure of the
justices to recuse themselves on their own initiative and then to turn around and
slam Ms. Barry in their ruling speaks to bias, bad faith and retaliation.
CONCLUSION
It clear for the plague of erroneous rulings, the deliberate disregard of case
law and statutes, and the shameless misreading of case law that these justices are
acting in bad faith if not engaging in willful misconduct. Id ask that the
Commission conduct a hearing on this matter as soon as possible.

Respectfully submitted,

______________________
Archibald Cunningham

CJP Complaint Against Justices Kline, Richman, pg. 46

230

231

ATTACHMENT C

ATTACHMENT C

231

232
SUPREME COURT

FILED

20i CC1 I p; 3:

09 IN THE SUPRE i WU.T

P 3: C9

OCT 1 4 ZOl5

STATE CJ\IJIFORNIA c: ;-::

:,:.r;r.i f.r .-,... ,.. : _;(lF-:THE

:,;,f,.,:,\t-;:J.:lJ, A:.lL
..

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.....

Clerk
Frank A. McGuire

Deputy
In re ARCHIBALD CUNNINGHAM,
on Habeas Corpus.

Habeas Corpus No.

Writ No.

A146271

6968

SF Sup Ct. No.

.

15006518

PETITION FOR REVIEW

OF DENIAL OF PETITION FOR HABEAS CORPUS
\VRIT BY COURT OF APPEALS FOR THE FIRST APPELLATE
DISTRICT ON OCTOBER 9, 2015

From the September 9,

2015 Denial of Habeas Corpus Writ

Superior Court for San Francisco

Hon. Renee Navarro
Department 22,

415 551-03 22

Archibald Cunningham
State Bar

#210625

P.O. Box 54399

CA 95154
408 466-7819

San Jose,

Self-represented
----------

gI

: Wd

AB

I 1:10 SIOZ

232

233

TABLE OF CONTENTS

ISSUES PRESENTED.. 1
INTRODUCTION ... 1
STATEMENT OF CASE. 2

RETALIATION BY SAN FRANCISCO DISTRICT

ATTORNEY .. 4
PROCEDURAL HISTORY, COURT OF APPEALS
AND SUPERIOR COURT 5
GROUNDS FOR REVIEW... 5
STATEMENT OF FACTS 10

MEMORANDUM OF POINTS AND AUTHORITIES IN

SUPPORT OF PETITION FOR REVIEW 11
I. The Court of Appeals Denial of the Writ of Habeas Corpus is
Reversible Error.. 11
A. Court of Appeals Conflates the Legal Basis for the Writ of
Possession. 11
1. The Relevant Issue Related to the Writ of Possession.. 11
2. Personal Property v. Real Property12
3. Eviction By Writ of Possession
or By Receivers Fraud.. 12
II. The Stay Away Order Underpinning the Criminal Contempt Is
Invalid.. 12
A. An Invalid Order Cannot Be the Basis for a Criminal
Contempt Under PC 166
III. The Stay Away Order Is Founded Upon or Bootstrapped to
An Invalid Order Issued By the Superior Court 13
A. The Stay Away Order Is a Nullity in that It Deprived an Owner

233

234

of Possession Without Procedural Due Process Protections.. 14

1. Petitioner, As Owner of a Condo, Is Not Subject to
Unlawful Detainer Act 14
2. A Writ of Possession Is Not A Separate Action From An
Eviction 15
B. Judge Navarro and Justice Kline Fail to Consider the False
Evidence Underpinning the Contempt Case 16
1. Mr. Singer Proceeded By Way of Fraud.. 17
2. Receiver SINGER Engaged In An Illegal Eviction
Scheme.. 21
C. The Stay-Away Order Is Void Given the Receivers Unlicensed
Practice of Law23
D. The Stay-Away Order Is Invalid and Not a Basis for A
Contempt Case 26
CONCLUSION 27

ii

234

235

Federal Cases
Alexander v. Robertson (9th Cir. 1989) 882 F. 2d 421 9
Keller v. State Bar of California, (1999) 496 U.S. 1 6
In re Garcia (9th Cir. BAP 2005) 335 B.R. 717 24
In re Shattuck, 411 BR 378 (BAP 10th Cir. 2009) 7, 26

Lara v. County of Santa Clara (U.S District Court, N.D. California,

C-11-0607 RS, (2012), 17
Teamsters Local v. Lucas Flour Co. (1962). 369 U.S. 95, 103

25

State Cases
Arieta v. Mahon (1982) 31 Cal. 3d 38117
Birbrower, Montalbano, Condon & Frank v. Superior Court
(1998) 17 Ca. 4th 119..

25, 26

Campell v. Jewish Com. For P. Services (1954) 125 Cal. App. 2d 771. 7
City of Downey v. Johnson (1968) 263 Cal. App. 2d 275 7
DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th 593 25
Edwards v. Sup. Ct. (1991) 230 Cal.App.3d 173 11, 12
Estate of Condon (1998) 65 Cal. App. 4th 1138.

24

Frankfort Digital Services (9th Cir. BAP 2004) 315 B.R. 544 .24
Franklin & Franklin v. 7-Eleven Owners, 102 Cal. Rept. 770 27
Gerhard v. Stephen (1968) 68 Cal. 2d 864.

In re Berry (1968) 68 Cal. 2d, 137 13, 14

In re Gordon J (1980) 108 Cal. App. 3d 907 7
Keller v. State Bar (1989) 47 Cal. 3d. 1152.. 6
Kimmel v. Goland (1990) 51 Cal. 3d 202.. 25
Mowrer v. Superior Court (1969) 3 Cal. App. 3d 223. 13
People v. Gonzales (1996) 12 Cal. 4th 804 1, 6, 15
Russell v. Dopp (1995) 36 Cal. App. 765. . 19

Security Pacific National Bank v. Geernaert (1988)

199 Cal. App. 3d 1425.8

iii

235

236

Shalant v. Girardi (2011) 51 Cal. 4th 1164 9

State Bar of California v. Sup. Ct. (1929) 207 Cal. 323..

Tieran v. Trustees of Cal. State University & Colleges

(1982) 33 Cal. 3d 211 25
Torres v. Friedman (1985) 169 Cal. App. 3d 880. 7
Watsonville Canning & Frozen Food Co. v. Superior Court (1986) 178
Cal. App. 3d, 124213

Ziegler v. Nickel (1998) 64 Cal. App. 545 8

State Statutes
Bus. & Prof. Code 61251, 8, 24
Bus. & Prof. Code 6126

1, 24

CCP 415.46 1, 16, 18, 20

CCP 526 13

CCP 564.Passim
CCP 568. 22, 23, 24
CCP 512.010.

3, 12, 16, 22

CCP 712.0107, 10, 15

CCP 715.010 13, 16, 17
CCP 715.050 15, 16
CCP 712.010 18

CCP 1161 14
CCP 1297.11. 24
Penal Code 166(a)(4)

1, 5

Unlawful Detainer Act

Passim

Receivership Statutes..

Passim

Federal Statutes
14th Amendment. Passim
California Constitution

iv

236

237

Cal. Const. Art. III, sec. 3 .

Cal. Art. V, sec 13

California Rules of Court

CRC 3.1150 27

CRC 8.500(b)(1) 5
CRPC 1-100. 9
Treatise
1 Witkin, Cal. Procedure (3d ed. 1985; Attorneys, 294, p. 330..20
2 Witkin, Cal. Procedure, supra, Jurisdiction, 277, p. 683. 13

3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, 506

14

5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 599, p. 69.15

6 Witkin, Cal. Procedure, supra, Provisional Remedies 330, p. 278...16
8 Witkin, Cal. Procedure, supra, Enforcement of Judgment, 342, p. 294..6

237

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ISSUES PRESENTED
In a criminal contempt under Penal Code 166(a)(4), is the underlying court
order granting a writ of possession valid for purposes of upholding the
contempt of court charges where the order was obtained by a non-attorney
court-appointed receiver who was practicing law without a license in apparent
violation of Bus. & Prof. Code 6126(a)?
Is a writ of possession drafted by a non-attorney receiver, which sought the
removal of an owner from his condominium as well as a stay-away order
against the owner, a valid order for purposes of a criminal contempt where the
trial court issued the writ of possession without a judgment for possession
obtained after an unlawful detainer action?
Can a criminal contempt be upheld where a non-attorney receiver persuaded
the court clerk to issue him the mandatory Judicial Council form EJ-130,
which the San Francisco Sheriffs Department requires for eviction, and the
receiver deliberately concealed the fact that he had not obtained a judgment
for possession, deliberately misrepresented the fact that he had not filed a
summons and complaint for an unlawful detainer, and willfully mislead the
clerk by lying that hed served the summons and complaint for an unlawful
detainer action in accordance with CCP 415.46?
INTRODUCTION
Ultimately, this criminal contempt case boils down not to the
misdemeanor charges against Petitioner for allegedly violating a court order to
stay-away from his own condominium but whether the non-attorney courtappointed receiver was engaged in the misdemeanor of practicing law without a
license when he obtained the stay-away order. (Bus. & Prof. Code 6126(a)).
The prosecution of Petitioner Archibald Cunningham is factually and legally
predicated upon court orders the non-attorney court-appointed receiver, Kevin
Singer, obtained while he was practicing law without a license. Petitioner defends
himself by collaterally attacking the validity of these underlying court orders.
In the underlying civil case, the trial court, over Petitioners objections,
interpreted the receivership statutes (CCP 564-568) as granting the receiver the
right to practice law without a license. Further, the trial court construed these
Petition for Review, pg. 1
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statutes as granting the receiver the right to immediate possession to Petitioners

condominium by virtue of his appointment. In one fell swoop, one broad reading
of the state receivership statutes, the trial court, ignoring the Separation of Powers
Clause, 1 became an impromptu Legislature. While the State Bar Act of 1927 sets
the standards for membership into the State Bar and the right to practice law, the
trial judge ignored the Act. In the same way, the Unlawful Detainer Act sets the
procedures for obtaining a writ for possession related to real property, but the
trial judge brushed the Act aside.
By this legal legerdemain, the trial judge allowed the non-attorney receiver
to both practice law without a license and to immediate possession of Petitioners
condominium. In essence, the mere act of appointing the receiver served to bestow
the right to practice law on the receiver and divested the owner/Petitioner of the
right to possession of his own property. While the habeas corpus petition seeks
Petitioners vindication, it implicates much larger state-wide issues related to the
unauthorized practice of law by non-attorney receivers, the forfeiture of real
property to a receiver without due process of law, and the undermining of public
policies related to allowing non-lawyer receivers to engage in unlicensed practice.
STATEMENT OF CASE
Soon after the order granting his writ of possession, the receiver would
remove/evict the Petitioner, the owner and title-holder, from his condominium.
To be clear, the San Francisco Sheriffs Department did not evict Petitioner on
the basis of the August 20, 2014 writ of possession (with its stay-away order)
that the receiver drafted and prepared for the trial courts signature. Rather, the
Sheriffs Department required the mandatory Judicial Council EJ-130 form before
any eviction. In view of the procedural obstacle of the EJ-130 form, the nonattorney court-appointed receiver, Kevin Singer, filled out the form, approached

Cal. Const. Art. III, sec. 3.

Petition for Review, pg. 2
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the court clerk (Bowman Liu), and had a new writ of possession reissued on the
official mandatory EJ-130 form.
The problem, however, was that Kevin Singer, in filling out the EJ-130
form, represented to the clerk that he had filed a summons and complaint for an
unlawful detainer action and obtained a judgment for possession. This was a
deliberate misrepresentation if not an unequivocal fraud on the court. The
Petitioner was never afforded any of the procedural due process protections
associated with the Unlawful Detainer Act. After the Sheriffs Department
evicted Petition on November 6, 2014, the receiver filled out a citizens arrest
form and choreographed three separate arrests of Petitioner for trespassing on
his own property and violating the order to stay-away from his own property.
At the first arrest, on January 8, 2015, Mr. Singer had Detective Seeborg of
the San Francisco Police Department waylay Petitioner at the Federal Building
just after oral argument in the civil rights lawsuit Petitioner had filed against Mr.
Singer. (DC NC 14-cv-03250 WHA). The second arrest, on January 23, 2015,
occurred when Detective Seeborg agreed to meet Petitioner but immediately
arrested him. The third arrest, choreographed at the San Francisco Superior Court
by the trial judge that issued the writ of possession, occurred when Petitioner
tried to attend a hearing regarding the forced sale of his condominium. He was
thrown in jail instead.
In essence, the receiver first came into the San Francisco Superior Court
with his proposed hand-drafted writ of possession. Next, he asserted he had the
right to practice law in pro per while acting in a representative capacity as a
receiver. Then he demanded that he be issued a writ of possession without
having filed either a complaint under the Unlawful Detainer Act or a cause of
action for possession of personal property under CCP 512.010. Of course, the
14th Amendment provides that an individual cannot be deprived of life, liberty, or
property without due process of law, but the trial judge ignored this bauble.
Petition for Review, pg. 3
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Likewise, the State Bar Acts requirements that those practicing law have a certain
level of skill and competence, as reflected by three-years of law school, passage of
the state bar examination, and compliance with CLE requirements, did not apply,
apparently, to the receiver.
At its heart, the prosecution of Petitioner is predicated upon a court-order
that is void for being obtained by a non-lawyer receiver who was engaged in the
misdemeanor of unlicensed practice. Moreover, the stay-away order is void for
being issued in the absence of subject-matter jurisdiction or for being obtained by
the deliberate fraud of the court-appointed receiver.
RETALIATION BY SAN FRANCISCO DISTRICT ATTORNEY
At its dark center, the prosecution of Petitioner smacks of retaliation by San
Francisco District Attorney George Gascon. In June of 2014, Petitioner went to the
Consumer Fraud Division of the District Attorneys Office and filed a complaint
with Phoebe Maffei regarding Mr. Singers unauthorized practice of law. (UPL).
The San Francisco DAs Office took no action.
After his eviction on November 6, 2014, Petitioner, a licensed attorney,
filed a class action against Kevin Singer for his UPL. (DC CD 14-cv-09104 GW).
In the class action, Petitioner named various district attorneys, such as DA George
Gascon, as party defendants, for their failure to enforce the misdemeanor
prohibition against unlicensed practice. Although DA Gascon would dismiss the
charges against Petitioner related to his arrest on January 23, 2015, he would team
up with Kevin Singer and attorney Scott McKay and arrest Petitioner again on
essentially the same charges. In the class action, Petitioner once again apprised
DA Gascon of the facts and illegality of Kevin Singers unlicensed practice.
However, DA Gascon once again refused to investigate Mr. Singers UPL.
(hereinafter SINGER). Ironically, Petitioner is now prosecuted for misdemeanor
contempt charges based on a stay-away order that is predicated upon the
misdemeanor of non-attorney receiver SINGER. To prosecute Petitioner while he
Petition for Review, pg. 4
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allows SINGERs crimes to slide, DA Gascon appears to be acting in bad faith if

not in retaliation.
PROCEDURAL HISTORY, COURT OF APPEALS
AND SUPERIOR COURT
On September 9, 2015, Judge Renee Navarro of Dept. 22 of the San
Francisco Superior Court denied Petitioners habeas corpus writ (No. 6968).
Petitioner then appealed. On October 9, 2015, Justices J. Anthony Kline of the
Court of Appeals for the First District denied Petitioners habeas corpus petition.
In his petition, Petitioner challenged his arrest and alleged contempt under Penal
Code 166(a)(4) for eight counts of violating the stay-away order that was
attached to the receivers writ of possession. In his terse order, Justice Kline
rejected Petitioners various challenges to the validity of the underlying order.
GROUNDS FOR REVIEW
This criminal case involves a matter of first impression affecting both civil
and criminal litigants throughout the state. (CRC 8.500(b)(1).The Supreme Court
should now settle the important issue of whether a non-lawyer receiver is
authorized to practice law in California in his role as receiver and whether the
State Bar Act should be amended to reflect new procedures needed to
accommodate an exception for non-attorney receivers. A paucity of decisions on
the issue seems to have created uncertainty within the judiciary and provided a
way for unscrupulous receivers to take advantage of the unsuspecting. Confronted
with the issue of unlicensed practice, the judiciary is left without clear direction
and grasps for straws in rendering orders or decisions.

For instance, in this

criminal case, Justice Kline and Judge Navarro could not cite any statutes or case
law that expressly and unequivocally authorizes non-attorney receivers to practice
law without a license. There simply are no such statutes or decisions.
Its as if the judiciary presumes that non-attorney receivers must be
authorized to practice law because neither the Attorney General nor the District
Petition for Review, pg. 5
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Attorneys have stepped up and prosecuted a receivers UPL. While the state
constitution (Art. V, sec 13) provides that its the duty of the Attorney General
to prosecute any violations of law of which the superior court shall have
jurisdiction, the Attorney General has taken no action with respect to unlicensed
practice by receivers. On the other hand, at least one district attorney has acted
aggressively in prosecuting the UPL in the context of foreclosures or immigration
law. For instance, former District Attorney Steve Cooley issued a Manual on the
Unauthorized Practice of Law a press release: 2
"Unqualified and unlicensed con artists are preying on a growing number of
unsuspecting victims, especially new immigrants, Cooley said. "Theyre
not only taking their money but also violating their legal rights. As District
Attorney, I am committed to combating this serious form of fraud
"This office has initiated numerous investigations and prosecutions against
these unscrupulous operators. We also have led statewide efforts to
strengthen Californias laws and the penalties for the unauthorized practice
of law," Cooley said. "Working closely with the State Bar of California and
community bar associations, I have launched a broad-scale effort to identify
and prosecute these crimes."
While the Attorney General shall have all the powers of a district attorney to
enforce the law under the state constitution (Const. Art. V., sec 13), the AG has
not addressed the UPL in the context of receiverships. Nor has the State Bar.
(Keller v. State Bar of California, (1999) 496 U.S. 1, 5; Keller v. State Bar (1989)
47 Cal. 3d. 1152, 1160, In addition to those duties, the State Bar enforces the law
relating to the unlawful practice of law (Citations omitted))
Thats not to say there are no rulings on point with respect to judicial
officers being held accountable for allowing the UPL in their court rooms. In a
1995 ruling by the Commission on Judicial Performance, Chief Counsel Victoria
B. Henley found that Judge Thomas M. Kelly of the Alpine Judicial District of

http://da.lacounty.gov/mr/archive/2004/021904b.htm
Petition for Review, pg. 6
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California had aided and abetted an unlicensed lawyers unauthorized practice of

law (Attachment B):
The trial court determined that Judge Kelly, by agreeing that the Nevada
attorney would handle the management of the lawsuits in the absence of a
court order permitting the Nevada attorney to appear as counsel, after
signing the complaints prepared by the attorney, unlawfully aided and
abetted the unauthorized practice of law. (emphasis added).
More recently, the Tenth Circuit in In re Shattuck, 411 BR 378 (BAP 10th Cir.
2009) ruled that a non-lawyer receiver had no right to practice law in federal court
in his role as receiver on the theory that he was acting in his own interest and
thus entitled to the right to self-representation. (*See, fn 18). In reaction to this
Tenth Circuit case, Peter Donaldson, a well-known California receiver, posted a
blog cautioning receivers to hire attorneys if appearing in court or filing pleadings
in federal courts to avoid being arrested for engaging in the UPL. (Attachment
C). 3
Mr. Donaldsons suggestion that non-attorney receivers will no longer be
able to practice law in federal courts should apply equally to state courts.
California courts have categorically refused to allow non-lawyers, whether
guardian ad litems, trustees, spouses or siblings, to appear in court or file
pleadings while acting in a representative capacity. 4 With respect to non-

Peter Donaldson, Attachment C: It appears, therefore, the best course of action

for receivers and bankruptcy trustees, when filing pleadings or appearing in
district or bankruptcy court (which is merely a division of the district court) is to
employ counsel for such purposes. Failure to do so may not only result in the
pleading or complaint being stricken, but could subject the receiver to criminal
liability for the unauthorized practice of law.
4
*See, Torres v. Friedman (1985) 169 Cal. App. 3d 880, 888; non-attorney
guardian ad litem; City of Downey v. Johnson (1968) 263 Cal. App. 2d 275, 279,
nonlawyer conservator representing his mothers estate; Abar v. Rogers (1981)
124 Ca. App. 3d 862, 865, a non-lawyer husband; In re Gordon J (1980) 108 Cal.
App. 3d 907, 914, non-lawyer father; Campell v. Jewish Com. For P. Services
(1954) 125 Cal. App. 2d 771, non-lawyer brother).
Petition for Review, pg. 7
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attorney receivers, there is case law holding that such receivers are acting in a
representative capacity in their role as receiver. (In other words, a receiver acts
as a fiduciary on behalf of both parties as a representative and officer of the
court." Security Pacific National Bank v. Geernaert (1988) 199 Cal. App. 3d
1425, 1431-1432). With respect to non-lawyers acting in representative capacities,
there are cases ruling that such non-lawyers are engaged in the UPL. (A
nonattorney trustee who represents the trust in court is representing and affecting
the interests of the beneficiary and is thus engaged in the unauthorized practice of
law. Ziegler v. Nickel (1998) 64 Cal. App. 545, 549).
However, there is no appellate decision holding that a non-lawyer receiver
is or is not engaging in the UPL while acting in his role as a receiver. Its in this
apparent no-mans land, this gray area, that receivers such as Mr. Singer have
operated, practicing law throughout the state and charging fees for what amounts
to legal services. The Supreme Court should now define the boundaries of this
no-mans land. In the absence of an appellate decision exactly on point, trial courts
throughout the state, based on fanciful readings of the receivership statutes, go
along with or allow non-attorney receivers to practice law. In Birbrower, the
Supreme Court noted that the strong public policy underlying the prohibition
against unlicensed practice in section 6125 serves the statutes goal of assuring
the competence of all attorneys practicing law in this state. (Id, at 132). 5 If
attorneys must be licensed so that the public is protected from being advised and
represented by persons who are not qualified to practice law (Gerhard v. Stephen
(1968) 68 Cal. 2d 864, 917-918), it undermines this public policy to allow nonattorney receivers to practice law.

*See, State Bar of California v. Sup. Ct. (1929) 207 Cal. 323. The Supreme
Court noted that the public interest must "be safeguarded against the ignorances
or evil dispositions of those who may be masquerading beneath the cloak of the
legal and supposedly learned and upright profession." (Ibid. 331).
Petition for Review, pg. 8
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There is a second public policy that is also undermined by allowing nonlawyer receivers to engage in unlicensed practice. The second policy consideration
underlying the prohibition against the UPL relates to the integrity of the legal
profession itself. The Ninth Circuit Court of Appeals has found that the litigation
of cases by unlicensed attorneys threatens the integrity of the judicial process
itself. (Alexander v. Robertson (9th Cir. 1989) 882 F. 2d 421, 423-425). In that
respect, the Supreme Court in Shalant v. Girardi (2011) 51 Cal. 4th 1164 noted
that attorneys, unlike non-lawyers, were presumed to act as ethical gatekeepers
(Id., 1176):
"Attorneys are governed by prescribed rules of ethics and professional
conduct, and, as officers of the court, are subject to disbarment, suspension,
and other disciplinary sanctions not applicable to litigants in propria
persona."
In the instant case, SINGER claims to have over 200 cases in which he has been
appointed receiver. In the class action Petitioner brought against SINGER (DC CD
14-cv-09104 GW), SINGER has initiated all manner of ctions while acting in pro
per, including criminal or quasi-criminal contempts, evictions, and judicial
foreclosures. He is not a lawyer, has no legal training, no ethical instruction, has
not attended a three-year law school, nor passed a bar exam or been required to
take CLE courses. There is no state agency in place holding him accountable for
his unlicensed practice. He cannot be reported to the State Bar because he is not a
bar member and is not bound by Cal. Rules of Prof. Conduct such as 1-100. 6 He
cannot be sanctioned by the court like a lawyer and is not bound by the
restraints noted above in Shalant that might curb or dissuade a lawyer from
untoward, unethical or improper conduct. There is no incentive for SINGER to act
ethically. And, as evinced by his actions in fraudulently obtaining the EJ-130
form, he hasnt.

CRPC 1-100: A member shall comply with

Petition for Review, pg. 9
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The Supreme Court should now settle the important questions of law
related to a non-lawyer receivers unlicensed practice and the public policy
concerns of allowing unskilled and untrained non-lawyers receivers to practice law
even if they are acting under the guidance of the trial court.
STATEMENT OF FACTS
On August 20, 2014, the trial judge for the San Francisco Superior Court
granted an order for a writ of possession filed by SINGER. The writ sought to
authorize the receiver to remove the owner and title-holder, Petitioner, from his
condominium. (A146271, Attachment B, Petitioners Writ of Habeas Corpus,
Exhibit A, August 20, 2014). The proposed order was submitted after an August
5, 2014 hearing. SINGER stated he was appearing on his own behalf as
receiver. (Exhibit A, pg. 1).
On November 6, 2014, Petitioner was evicted from his condominium by the
San Francisco Sheriffs Department based on Mr. Singers reissued EJ-130 form
rather than his drafted August 20, 2014 writ of possession. (A146271,
Attachments E & F).
On January 8, 2015, Detective Seeborg of the North Station San Francisco
Police Department, approached Petitioner at the federal district court and served
an infraction against him for trespassing on his own property (condominium)
and for violating the August 20, 2014 stay away order. (A146271, Attachment
B, Petitioners Writ, Exhibit B).
On January 23, 2015, Detective Seeborg and Lieutenant Sawyer arrested
Petitioner based on the citizens arrest form filed by the court-appointed
receiver, SINGER. (A146271, Attachment B, Petitioners Writ, Exhibit C). The
district attorney dismissed the charges against Petitioner in the interest of
justice.
On March 18, 2015, Petitioner appeared at a court-hearing related to the
sale of his condominium at the San Francisco Superior Court. He was arrested by
Petition for Review, pg. 10
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a pack of Sheriffs who were acting at the apparent direction of attorney Scott
McKay and the trial judge.
On March 19, 2014, Petitioner was arraigned by the criminal court.
Petitioner was charged with multiple counts of contempt for violating the
August 20, 2014 stay away order. Petitioner entered a plea of not guilty and
was released on his own recognizance.
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PETITION FOR REVIEW
I. The Court of Appeals Denial of the Writ of Habeas Corpus is Reversible
Error.
A. Court of Appeals Conflates the Legal Basis for the Writ of Possession.
1. The Relevant Issue Related to the Writ of Possession.
In denying the habeas corpus petition, Justice Kline characterizes
Petitioners first attack on the validity of the underlying order as follows:
Cunningham claims the "stay-away order" he is charged with violating is
not valid because 1) it arose from a writ of possession, which, petitioner
claims, can only issue in the context of an unlawful-detainer action. The
writ-of-possession procedure is commonly used in proceedings other than
unlawful detainer to obtain property that is security for a debt in default or
to obtain property whose ownership is in dispute. (See, e.g. Edwards v.
Sup. Ct. (1991) 230 Cal.App.3d 173.)
Petitioner never argued that a writ of possession can only issue in an unlawful
detainer action. Its axiomatic that a writ of possession may issue in a cause of
action for personal property under Code of Civil Procedure 512.010(a) as well
as the Unlawful Detainer Act. (*See, Title 7, Chapter 2. Claim and Delivery of
Personal Property. CCP 511.010 to 512.120). Justice Klines characterization
obscures the relevant issue here. Justice Klines view fails to make the distinction
between a writ of possession issued for real property as opposed to one issued
for personal property. These two types of writs provide distinct and separate
remedies, serve distinct purposes, and present different procedures.
Petition for Review, pg. 11
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2. Personal Property v. Real Property.

Obviously, a party may file a cause of action for a writ of possession of
personal property under CCP 512.010(a), In this case, however, SINGER sought
a writ of possession related to Petitioners real property. Justice Kline does not
suggest that SINGER or the other condo co-owner, Michael Coombs, filed an
action for a writ of possession for personal property under CCP 512.010. In
any case, Petitioners East Lake Victorian condo, by definition, is not personal
property that could be returned to its rightful owner under CCP 512.010. Yet, in
relying on Edwards v. Superior Court, 7 (Id., pg. 175), Justice Kline seems to
suggest SINGER could wrestle possession of real property from the
owner/Petitioner by a writ of possession under CCP 512.010. Petitioner cannot
find any legal authority for evicting an owner under section 512.010 or using it
as a basis to repossess real property.
3. Eviction By Writ of Possession or By Receivers Fraud.
In his petition on appeal, Petitioner pointed out and provided evidence in
his petition that SINGER removed him not by his August 20, 2014 writ of
possession, but by fraudulently obtaining a EJ-103 form from the court clerk.
Yet, Justice Kline simply refused to acknowledge the possibility of SINGERs
apparent fraud on the court. Clearly, false evidence presented by SINGER in
obtaining his EJ-130 form cannot support contempt charges but it may support
felony charges against him (Penal Code 136(b) giving false material evidence
pertaining to a crime.).
II. The Stay Away Order Underpinning the Criminal Contempt Is Invalid.
A. An Invalid Order Cannot Be the Basis for a Criminal Contempt Under PC

Edwards, supra, at 175; Edwards involved a cause of action for possession of

personal property. The personal property in question was a prized show dog
named Shavin Kingsmere Notty Nada.
Petition for Review, pg. 12
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166.
The rule is well settled in California that a void order cannot be the basis
for a valid contempt judgment. California law defines misdemeanor contempt as,
among other things, disobedience of an order "lawfully issued" by a court. (Penal
Code 166 (a)(4).) California law has long established there can be no contempt of
an invalid injunctive order. (In re Berry (1968) 68 Cal. 2d, 137, 147; void order
cannot sustain contempt judgment; where order is void, "petitioner should not
have been adjudged guilty of contempt"; Watsonville Canning & Frozen Food
Co. v. Superior Court (1986) 178 Cal. App. 3d, 1242, 1246; violation of invalid
court order cannot produce valid contempt judgment based on violation of order). 8
The Supreme Court in Gonzales, noted that in Berry, a misdemeanor
contempt case like the present one, that they ruled that "the violation of an order
in excess of the jurisdiction of the issuing court cannot produce a valid judgment
of contempt [citations], and that the `jurisdiction' in question extends beyond mere
subject matter or personal jurisdiction...." (supra, at 817). The Supreme Court, in
defining a trial courts jurisdiction in Berry stated (supra, at 817):
"`any acts which exceed the defined power of a court in any instance,
whether that power be defined by constitutional provision, express statutory
declaration, or rules developed by the courts and followed under the
doctrine of stare decisis, are in excess of jurisdiction.'"
III. The Stay Away Order Is Founded Upon or Bootstrapped to An Invalid
Order Issued By the Superior Court.
In the instant case, the trial courts stay-away is void on at least three
grounds. First, neither the trial court nor the court-appointed receiver complied

People v. Gonzales (1996) 12 Cal. 4th 804, 817: (See also Mowrer v. Superior
Court (1969) 3 Cal. App. 3d 223, 229-230 [83 Cal. Rptr. 125][violation of invalid
court order cannot produce valid contempt judgment]; 2 Witkin, Cal. Procedure,
supra, Jurisdiction, 277, p. 683 [void order never binding; violation cannot
constitute contempt].
8

Petition for Review, pg. 13

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with the procedural requirements for the issuance of injunctive relief under CCP
526. Second, the order was obtained by SINGER, an unlicensed receiver who
had no authority to appear in court and practice law without a license. Third, the
stay away order is bootstrapped to a writ of possession that was not obtained
pursuant to a judgment for possession as mandated by the Unlawful Detainer
Act. (CCP 715.050).
A. The Stay Away Order Is a Nullity in that It Deprived an Owner of
Possession Without Procedural Due Process Protections.
1. Petitioner, As Owner of a Condo, Is Not Subject to Unlawful
Detainer Act.
In his order, Justice Kline, as noted above, confused writs of possession
used to recover real property with those to repossess personal property. For his
part, Judge Renee Navarro rightly recognized that the Unlawful Detainer Action
did not apply to an owner of real property. Yet, he suggested that the trial court
could proceed by writ of possession, not an unlawful detainer.

(Navarros

Order, pg. 3/24-4/5):

Petitioner does not articulate how his ownership interest is subject to
an unlawful detainer. An unlawful detainer applies to a person who
is a tenant of real property. (CCP 1161). The court proceeded under
a writ of possession, not an unlawful detainer. (Petitioner's Writ of
Habeas Corpus, Exhibit A). Petitioner does not have the type of
property right that would require unlawful detainer procedures; therefore,
the court properly proceeded by way of writ of possession.
Judge Navarro correctly noted that an owner of real property was not subject to the
Unlawful Detainer Act. ("The statutory situations in which the remedy of unlawful
detainer is available are exclusive, and the statutory procedure must be strictly
followed." (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, 506.) 9 Because

The remedy of unlawful detainer is available in only three situations: (a)

Landlord against tenant for unlawfully holding over or for breach of the lease (the
Petition for Review, pg. 14
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fellow condo co-owners Michael Coombs and Tamara Woods, were no longer
Cotenants with Petitioner after condo-conversion and were not the owners, new
purchasers, or the landlord, they had no standing to bring an eviction action
against Petitioner or his roommates. Clearly, the remedy of an unlawful detainer
action was not available to the co-owners or SINGER.
2. A Writ of Possession Is Not A Separate Action From An Eviction.
In their orders, both Justice Kline and Judge Navarro seem to come to the
conclusion that a writ of possession under the Unlawful Detainer Act was not
the proper legal basis to remove owner/Petitioner from his condo.
On the other hand, Judge Navarro suggests that SINGER could proceed by
writ of possession. However, he does not cite any statutory authority or case law,
like the prized show-dog Notty Nada case of Edwards v. Sup. Ct., which Justice
Kline cited as authority for evicting/removing an owner from his real property.
Its unclear if he erroneously believes, like Justice Kline, that an owner can be
evicted under the statute for personal property or whether he fails to
recognized that a writ of possession is a step in an unlawful detainer action. If
the later case, Code of Civil Procedure 715.050 makes clear that a writ of
possession is a step in the unlawful detainer process, not a separate cause of
action or proceeding:
715.050. Except with respect to enforcement of a judgment for
money, a writ of possession issued pursuant to a judgment for
possession in an unlawful detainer action shall be enforced pursuant
to this chapter without delay, notwithstanding receipt of notice of

traditional and most important proceeding). (Code Civ. Proc. 1161); (b) Owner
against servant, employee, agent, or licensee, whose relationship has terminated.
(Code Civ. Proc., 1161(1); (c) Purchaser at sale under execution, foreclosure, or
power of sale in mortgage or deed of trust, against former owner and possessor.
(Code Civ. Proc., ] 1161(a); 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading,
599, p. 69.)

Petition for Review, pg. 15

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the filing by the defendant of a bankruptcy proceeding.

Likewise, section Code of Civil Procedure 715.010 provides that a judgment for
possession may be enforced by a writ of possession. 10 Subsections (b)(1-7)
states that the writ of possession must also contain, inter alia, a description of
the property, a five-day notice to vacate, the date the complaint was filed, the
rental value on the date the unlawful detainer was filed and that service of the
complaint was made in accordance with section 415.46. CCP section 415.46
makes clear that the complaint to be served is for an unlawful detainer action. 11
In essence, when read together, CCP 715.050, CCP 715.010, Civil Code
415.46, Civil Code 1166(a) and case law, clearly indicate that a writ of
possession is issued only after a judgment for possession is obtained by a
landlord, owner, or new purchaser in an unlawful detainer proceeding. In that
regard, if Judge Navarro believes that there is an action for a writ of possession
for purposes of eviction separate and apart from an unlawful detainer act he is
mistaken. In short, Petitioner, as the owner, could not be evicted under the
Unlawful Detainer Act any more than he could be removed as personal
property under CCP 512.010.
B. Judge Navarro and Justice Kline Fail to Consider the False Evidence
Underpinning the Contempt Case.
Both Justice Kline and Judge Navarro failed to acknowledge at least three

10

Section 715.010. (a) A judgment for possession of real property may be

enforced by a writ of possession of real property issued pursuant to Section
712.010
11
CCP 415.46. (a) In addition to the service of a summons and complaint in an
action for unlawful detainer upon a tenant and subtenant, if any, as prescribed
by this article, a prejudgment claim of right to possession may also be served on
any person who appears to be or who may claim to have occupied the premises at
the time of the filing of the action. Service upon occupants shall be made...
Petition for Review, pg. 16
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fundamental facts underpinning this criminal contempt case. First, both Judge
Navarro and Justice Kline refuse to concede the fact that the Sheriffs Department
evicted Petitioner pursuant to EJ-130 and the Unlawful Detainer Act. Second,
they both refused to consider or acknowledge that the eviction of an owner from
his own property occurred in this case. They both scramble, unsuccessfully, to
justify the removal/eviction of Petitioner by citing other grounds for the eviction
or they refer to the act as a removal. Third, they both seem to have a
pathological aversion to admitting or accepting SINGERs misconduct or frauds in
obtaining the eviction.
1. Mr. Singer Proceeded By Way of Fraud.
Justice Kline and Judge Navarro deny the fundamental fact in this case. The
fact is that Petitioner was evicted as a result of SINGERs misconduct, his fraud.
While Judge Navarro mistakenly states that the receiver could proceed by way of
a writ of possession, the San Francisco Sheriffs Department would not
evict/remove the owner except under the mandated procedures and with the
approved Judicial Council forms promulgated after the Supreme Courts decision
in Arieta v. Mahon (1982) 31 Cal. 3d 381. (In Lara v. County of Santa Clara,
U.S District Court, N.D. California, C-11-0607 RS, (2012), the U.S. District Court
Judge Richard Seeborg pointed out that the California Legislature has effectively
codified the holding in Arieta and provided formal procedures and judicial
council forms for any individuals making a claim of right to possession.)
As noted above, section 715.010 requires that the writ of possession
include a five-day notice to vacate, a description of the property, and the date of
the unlawful detainer complaint. In other words, there can be no eviction or
removal under the controlling statute unless there is an unlawful detainer action.
If the non-attorney court appointed receiver did not realize this when he filed his
self-drafted writ with the court, he quickly learned otherwise. He was informed by
the San Francisco Sheriffs Department that his drafted August 20, 2014 writ
Petition for Review, pg. 17
254

255

of possession was lacking all the required information. Under the mandated
procedures, the court clerk was to issue the writ of possession on the mandated
EJ-130 form.
CCP 712.010: After entry of a judgment for possession or sale of property,
a writ of possession or sale shall be issued by the clerk of the court upon
application of the judgment creditor and shall be directed to the levying
officer in the county where the judgment is to be enforced. The application
shall include a declaration under penalty of perjury stating the daily rental
value of the property as of the date the complaint for unlawful detainer
was filed(emphasis added).
SINGER had never obtained a judgment for possession under the Unlawful
Detainer action against the owner/Petitioner. Realizing he could not remove the
owner/Petitioner without the mandated Judicial Council form (EJ-130), SINGER
returned to the court clerk (Bowman Liu) on August 28, 2015, filled out the EJ130 form, and returned it to the Sheriffs. (A146271; Attachment E, Note:
Stamped Received at the Sheriffs Office on September 14, 2014). In the EJ-130
form, SINGER checked the box indicating hed served Petitioners roommates
the Prejudgment Claim of Right to Possession. He had to commit this fraud on
the Sheriffs Dept if he wanted to get paid from the receivership estate, that is, the
$800,000 to $1,000,000 of equity Petitioner had in his condo.

SINGERs first deliberate misrepresentation was that hed served the form on
Petitioners roommates. He had not. His second deliberate misrepresentation was
that he served the form in compliance with CCP 415.46. But CCP 415.46, as
Petition for Review, pg. 18
255

256

noted above, provides for service of the form with the unlawful detainer
summons and complaint. He knew there was no unlawful detainer action, but
nevertheless stated the unlawful detainer complaint was filed on 9/29/10.
(*See, 24(a) Possession of real property. The Complaint was filed on (date)
09/29/10). That was his third bold-faced deceit upon the clerk, the Sheriffs
Department, and the court. The 9/29/10 date was not an unlawful detainer action
that resulted in a judgment for possession, but Mr. McKays Petition to Compel
Arbitration on the 2007 TICA. 12 SINGERs ultimate fraud was convincing the
court clerk to swap out his August 28, 2014 writ of possession for the EJ-130.13
Its arguable that SINGER was not actively trying to defraud the court, the
court clerk, or the Sheriffs Department when he presented an EJ-130 form
indicating that there had been an unlawful detainer that resulted in a judgment for
possession. Its possible he was merely an untrained, non-attorney receiver who
was practicing law without a license and had no idea what he was doing. If so, and
as a result, his writs of possession should be considered a nullity and not a valid
order for purposes of a contempt action. (The general American rule is that an
unlicensed person cannot appear in court for another person, and that the

12

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PR
GNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
SEP-29-2010

NTC OF HEARING ON PETITION TO COMPEL ARBITRATION AND FOR

APPOINTMENT OF NEUTRAL ARBITRATOR; MEMO OF P & A,
DECLARATION FILED BY PETITIONER COOMBS, MICHAEL WOODS,
TAMARA HEARING SET FOR OCT-19-2010 AT 09:30 AM IN DEPT 302

13

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAM
E=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF10510760
AUG-28-2014

ISSUANCE OF WRIT OF POSSESSION OF PROPERTY AGAINST ARCHIBALD

CUNNINGHAM AS PER ORDER FILED ON AUGUST 20, 2014 FILED BY OTHER
SINGER, KEVIN AS TO DEFENDANT CUNNINGHAM, ARCHIBALD

Petition for Review, pg. 19

256

257

resulting judgment is a nullity. Russell v. Dopp (1995) 36 Cal. App. 765, 775; "A
judgment obtained against a party represented by an unlicensed person is
invalid." 1 Witkin, Cal. Procedure (3d ed. 1985; Attorneys, 294, p. 330.).
However, several weeks later on September 29, 2014, SINGER was
allowed to revoke his first EJ-130 form (and the accompanying frauds) and
resubmit a second EJ-130 form. (A146271; Attachment F). In his September 29,
2015 letter to the trial judge, Mr. Singer states:
I had the Initial Writ re-issued, signed by the clerk (Re-issued Writ)
and presented to the Sheriff (See Exhibit 2 Attached).I expect that this
Reissued Writ will succeed in removing Respondent Archibald
Cunningham. Once he is removed, I expect to be able to have the Property
inspected, appraised and marketed for sale.
In the Re-Issued Writ, SINGER resubmits essentially the same writ but this time
he does not check the box at section 24. Instead, he indicated he had not in fact
served Prejudgment Right to Possession forms on Petitioners roommates when he
apparently served the unlawful detainer complaint in compliance with 415.46.
He also misrepresents to the Sheriffs Department that he obtained a writ of
possession some five years before based on the Petition to Compel Arbitration.
This misrepresented law and fact. (A146271; Attachment F, Mr. Singers Exhibit
TWO):

By not checking box 24(a)(1) in the reissued writ, he misrepresents that his
amendments have somehow cured his failure to obtain a judgment for
possession under the Unlawful Detainer Act and as required by CCP 715.050,
Petition for Review, pg. 20
257

258

715.010 & 712.010. Further, he thinks by typing in Petitioners name under the
section for a Description of Property, that the Sheriff with realize to
evict/remove him along with his property but not any current tenants.

Both Justice Kline and Judge Navarros rulings are predicated upon the

mistaken factual assumption that Petitioner was removed by the August 20,
2014 writ. He was not. Their rulings are predicated upon the legal assumption
that there was a statutory basis for removing/evicting an owner from his own
property. There is not. Even if an owner could be evicted under the Unlawful
Detainer Act, SINGERs EJ-130 writs of possession, obtained by a deliberate
fraud upon the court clerk and the Sheriffs Department, would not support a
contempt action. These writs were false evidence since there was no unlawful
detainer action resulting in a judgment for possession.
In short, these writs, which are either void for being issued in excess of the
trial courts jurisdiction or obtained by SINGERs fraud, can not reasonably be
characterized as valid for purposes of upholding contempt charges against
Petitioner.

14

2. Receiver SINGER Engaged In An Illegal Eviction Scheme.

In his order, Judge Navarro states that the Petitioner did not articulate
how his ownership interest is subject to an unlawful detainer. First, Judge
Navarros statement speaks to the judicial officers denial of the fact that
Petitioner was, in fact, evicted by SINGERs fraudulent use of the EJ-130 form.
SINGER convinced the Sheriffs Department to evict an owner who was not
subject to an unlawful detainer. SINGER accomplished that by fraud. Second,

14

*See, Gonzales at fn 8.
Petition for Review, pg. 21
258

259

Judge Navarros statement speaks to the mistaken presumption that there was
some other statute, some other writ of possession procedure for evicting an
owner from his own property (an owner removal writ?). If there is, it is not
section 512.010. If there were, there is no showing that Petitioner was presented
with any notice or hearing under the unidentified statute that gave him an
opportunity to challenge his removal/eviction.
To be clear, neither Justice Kline nor Judge Navarro disputes the fact that
Petitioner was removed on November 14, 2014. They just refuse to concede it
was an unlawful and fraudulent eviction. The fact is that Petitioner was not
subject to eviction nor removal under SINGERs drafted writ of
possession, the Unlawful Detainer Act, or section 512.010. Rather, Petitioner
asserts that SINGER, Mr. McKay, and co-owners engaged in an illegal scheme to
remove Petitioner so that they could sell his property. They had churned up
hundreds of thousands dollars in fees in trying to enforce a facially void
judgment. That judgment provided for a forced sale of a condominium under
a 2007 Tenants-in-Common Agreement which applied only to a defaulting
Cotenants cotenancy share, not Petitioners fee simple condominium. Petitioner
had $1,000,000 of equity in his property to be plundered.
Faced with the fact that his clients lacked standing to evict Petitioner as an
owner, Mr. McKay and SINGER devised a scheme to remove the owner by
broadly interpreting CCP 568 as granting a receiver the right to possession
immediately upon his appointment without regard to the Due Process Clause of
the 14th Amendment. Mr. McKay explained his view during a hearing at the civil
rights suit against McKay and SINGER, DC ND 14-cv-03250 WHA (A146271;
Attachment B, Writ Exhibit D, Transcript January 8, 2015, pg. 18/14-24);
THE COURT: Well, was he evicted? Well, he was evicted?
MR. MCKAY: He was evicted, despite his
THE COURT: He was evicted pursuant to what?
MR. MCKAY: Code of Civil Procedure 568, which allows a receiver to
obtain possession of property thats subject to the receivership estate. You
Petition for Review, pg. 22
259

260

dont have to file an unlawful detainer.

THE COURT: The sheriff went out there to kick him out? Is that the way it
worked?
MR. McKAY: Thats correct.
But Mr. McKay cites no decision that has interpreted the receivership statutes as
an automatic grant of possession to a receiver. Nor does he suggest that the
parties agreed or stipulated in their 2007 Tenants-in-Common Agreement, their
2009 CC&Rs and Bylaws, or in their mortgage to a partys forfeiture of
possession in the event of an alleged default. In any case, Mr. McKay, in
arguing for these broad reading of these statutes, knew that his confederate
SINGER got Petitioner evicted with the EJ-130 form and his accompanying
misrepresentations. In his statement in federal court, Mr. McKay willfully
deceives the district court judge as to the manner in which Petitioner was evicted.
C. The Stay-Away Order Is Void Given the Receivers Unlicensed Practice of
Law.
In their orders, both Justice Kline and Judge Navarro reject the argument
that SINGER was engaged in the UPL. Neither Judge Kline nor Judge Navarro
dispute that SINGERs actions in drafting his writ of possession or appearing in
court to argue for a broad reading of the receivership statutes was the practice of
law. For his part, Judge Navarro concludes that SINGERs actions are not
unauthorized practice because section 568 permits him to practice law as a
receiver (Order, pg. 3/11-13):
Here, Mr. Singer, was appointed pursuant to statute and that statute
empowers him to bring and defend actions. (See CCP 568). As such, he is
properly acting and not conducting the unlicensed practice of law.

(Order, pg. 3/ 11-13). For his part, Justice Kline whitewashes the issue by stating
that SINGER acted in his appointed capacity as the superior court had
authorized. In essence, both judicial officers seem to reason or construe the
Petition for Review, pg. 23
260

261

language of sections 564-568 as implicitly allowing a court-appointed receiver to

practice.
In this regard, both judicial officers read section 568 as a judicial
exception to the absolute prohibition in Bus. & Prof. Code 6125 against the UPL.
("No person shall practice law in California unless the person is an active member
of the State Bar."). This is evident in Judge Navarros comment that [A] receiver
has the power to "bring and defend actions" and "generally to do such acts
respecting the property as the Court may authorize." (CCP 568). (Order, pg. 3/13). In their rulings, they do not cite to any court rule or statute that makes an
exception for a non-attorney receiver to practice law without a license.
As an initial matter, Petitioner notes that SINGER, in drafting pleadings
that deprive an owner of possession of his property and by appearing in court to
assert his right to practice law, is practicing law. 15 In that regard, section 6126(a)
provides that unless there is a statute or court rule or decision holding that an
unlicensed receiver may practice law, SINGER was engaged in the misdemeanor
of UPL. As noted above, any of his order/judgments obtained during the
unlicensed practice of law, are a nullity. In his petition, Petitioner noted that the
Title Nine court rules limited exceptions to unlicensed practice to law students
(CRC 9.42) or out-of-state attorneys who have obtained court approval. (CRC
9.40). With respect to statutory exceptions, the Legislature has made two statutory
exceptions 16 to section 6125 which are not applicable to non-lawyer receivers such

15

In In re Garcia (9th Cir. BAP 2005) 335 B.R. 717, 728; Estate of Condon
(1998) 65 Cal. App. 4th 1138; Frankfort Digital Services (9th Cir. BAP 2004) 315
B.R. 544, 552.
16
One exception if for international disputes resolved in California under the
states rules for arbitration and conciliation of international commercial disputes.
(CCP 1297.11 et seq; The parties may appear in person or be represented or
assisted by any person of their choice. A person assisting in representing a party
need not be a member of the legal profession or licensed to practice law in
California. :CCP 1297.351).). The other exception if for labor negotiations and
Petition for Review, pg. 24
261

262

as Mr. Singer.
Finally, the California Supreme Court in Birbrower, Montalbano, Condon
& Frank v. Superior Court (1998) 17 Ca. 4th 119, refused to fashion a judicial
exception for unlicensed out-of-state lawyers. In declining to fashion an
arbitration exception to section 6125s prohibition of the unlicensed practice of
law, the Supreme Court reasoned that an exception for arbitration is best left to
the Legislature. (Id., 133-134). The Supreme Court construed the meaning of the
statute by looking at the words and giving them their usual and ordinary
meaning. The Supreme Court noted that the plain meaning of the words
controls our interpretation of the statute. (Id, 137, citing DaFonte v. Up-Right,
Inc. (1992) 2 Cal. 4th 593; Kimmel v. Goland (1990) 51 Cal. 3d 202, 208-209;
Tieran v. Trustees of Cal. State University & Colleges (1982) 33 Cal. 3d 211,
218).
For his part, Judge Navarro reads into the bring and defend language of
section 568 the right of a receiver to practice law without a license. In Birbrower,
the Supreme Court noted that Legislature enacted 6125 in 1927 as part of the
State Bar Act. The State Bar Act provides a comprehensive scheme regulating the
practice of law in the state. (Id, 127). Judge Navarro does not explain why the
Legislature did not exempt non-attorney receivers from the State Bar Act as it
expressly did with non-lawyers in cases involving international disputes (fn. 16;
CCP 1297). To construe the general powers of a receiver in 568 without
considering the State Bar Act is not consistent with rules for statutory
construction. Further, the Supreme Court in Birbrower rejected the same
reasoning related to the general powers of an arbitrator. The Supreme Court
stated (Id., fn 4):
The dissent focuses on an arbitrator's powers in an attempt to justify its

arbitrations arising under collective bargaining agreement in industries subject to

federal law. (Teamsters Local v. Lucas Flour Co. (1962). 369 U.S. 95, 103).
Petition for Review, pg. 25
262

263

conclusion that an out-of-state attorney may engage in the unlicensed

representation of a client in an arbitration proceeding.This narrow focus
confuses the issue here. An arbitrator's powers to enforce a contract or
"award an essentially unlimited range of remedies" has no bearing on the
question whether unlicensed out-of-state attorneys may represent
California clients in an arbitration proceeding.
Petitioner cited this Birbrower passage in his petition. But neither Justice Kline
nor Judge Navarro explain why language related to the general powers of
receivers would be interpreted differently by the Supreme Court than those of
arbitrators. Further, they do not address the holding of In re Shattuck 411 BR 378
(BAP 10th Cir. 2009) where the Tenth Circuit rejected the argument that a nonattorney receiver had the right to practice law in his role as a receiver on the theory
that he was acting in pro per for his own interest. 17
As noted in Birbrower, the Supreme Court noted that exceptions for
arbitrators, and presumably receivers, is best left to the Legislature. Under
principals of stare devises, the judicial officers here should have deferred to the
Legislature instead of fashioning judicial exceptions. Their judicial exceptions
are in excess of their jurisdiction inasmuch as these rulings contradict the express
statutory declaration against the prohibition against unlicensed practice. Hence,
Mr. Singers orders are a nullity and cannot be the basis of a contempt action.
D. The Stay-Away Order Is Invalid and Not a Basis for A Contempt Case.
Justice Klines order does not address this issue. In his order, Judge
17

In re Shattuck, supra, at 384: Mr. Bondurant asserts that he was

appointed as receiver by the Adams County District Court as an "individual."
Nothing in the record, however, suggests that Mr. Bondurant, as an individual, had
any personal claim against the Shattucks or their estate, or that he was exclusively
advocating his own personal rights and interests. Clearly, in filing and prosecuting
the Motion to Dismiss, Mr. Bondurant was acting in a representative capacity on
behalf of the receivership estate of the LLC, and by extension, on behalf of
creditors of that estate

Petition for Review, pg. 26

263

264

Navarro rejects Petitioner's argument that the "stay-away order" was issued
without "statutory authority." (Order, pg. 7/4-17). He rules that the "stay-away
order" was proper because it was "included as part of the writ ofpossession." He
states that the reason for the stay-away order was Petitioner's "noncooperation
with the sale of the property." As noted above, the writ of possession was
improper and, therefore, not a proper basis for a stay-away order.
Petitioner concedes that trial courts have inherent authority to issue
injunctive relief to prevent interference with a judgment that would render the
judgment "ineffective." (CCP 526(a)(3)). In Franklin & Franklin v. 7-Eleven

Owners, 102 Cal. Rept. 770, 776, the Court of Appeals, quoting 6 Witkin, Cal.
Procedure (4th ed. 1997) Provisional Remedies, 300, pg. 239, stated "An injunction
is expressly authorized during an action where it appears that a party is doing or
about to do ... an act . .. that tends to render the judgment ineffective. (C.C.P.
526(a)(3); (citations omitted).
At the same time, Petitioner notes that, even if the writ of possession were
properly issued, court rules related to the issuance of injunctions Cal. Rule of
Court 3.1150 must provide him a notice and a hearing on the activity to be
enjoined. (CRC 3.1 lSO(d). "The TRO must describe the conduct to be enjoined.").
In this case, however, Petitioner was never provided notice or given an
opportunity to challenge his alleged interference with the forced sale of his
property.
CONCLUSION
For the reasons stated, the Petitioner asks that a writ of habeas corpus or an
order to cause be issued.

Dated:~ /V

/rT /r'>
264

265

Petitioner

Petition for Review, pg. 28

265

266

CERTIFICATE OF COMPLIANCE

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

Rules of Court, rule 14(c)(l), this petition for review (habeas corpus) contains

approximately 8398 words, including footnotes, as computed by the Microsoft

Word 7 word processor.

Petition for Review, pg. 29

266

267

PROOF OF SERVICE

l d~clare that I am over the age of eighteen (18) years. My address is P.O. Box

54399, San Jose, CA 95154.

[ x] On October 14, 2015 I served the Petitioner's Petition for Review by
delivering a true copies to the addresses below:
Judge Navarro
Dept. 22
Hall of Justice
850 Byrant
San Francisco, CA 94109
District Attorney George Gascon
Dept. 322
Hall of Justice
850 Byrant
San Francisco, CA 94109
Court of Appeals
350 McAllister St.
San Francisco, CA 94102

I declare under penalty of perjury that the foregoing is true and correct and
that this declaration was executed on October 14, 2015 at San Jose, CA.

Stephen James

Petition for Review, pg. 30

267

268

ATTACHMENT A

ATTACHMENT A

268

269

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT
DIVISION TWO

In re ARCHIBALD CUNNINGHAM,

OCT -9 l'.:015

Al46271

by

Uc;uty Clerk

(San Francisco C~ou==n==t~y=:=:==::::::::;:;;;;::;;:;;;:::,.::.::::::..;;:.::::.:.:J

on Habeas Corpus.

Super. Ct. No. 15006518)

BY THE COURT:
Archibald Cunningham has filed a petition for writ of habeas corpus challenging
his arrest and pending prosecution for multiple counts of violating California Penal Code,
section 166(a)(4), disobeying a court order. Cunningham claims the "stay-away order"
he is charged with violating is not valid because 1) it arose from a writ of possession,
which, petitioner claims, can only issue in the context of an unlawful-detainer action; 2) it
was secured by a court-appointed receiver engaging in the unlicensed practice of law.
These claims are without merit. The writ-of-possession procedure is commonly
used in proceedings other than unlawful detainer to obtain property that is security for a
debt in default or to obtain property whose ownership is in dispute. (See, e.g. Edwards v.

Sup. Ct. (1991) 230 Cal.AppJd 173.) Further, as petitioner_q_oncedes, the Code of Civil
Procedure, section 564, permits the court to appoint a receiver in authorized cases "to do
such acts respecting the property as the Court may authorize." (Code Civ. Proc., 568.)
Here, it undisputed, the receiver acted in his appointed capacity as the superior court had
authorized. The cases petitioner cites in this regard are thus wholly inapposite.
Petitioner's additional arguments are rejected as frivolous. The petition for writ of
habeas corpus and petitioner's motion to recuse Justices Kline and Richman are denied.

Date

!<"

OCT-92015

L ,: ~: P, "--~ ,
1

- - - - - - - - - - - - - ' P.J.
1

269

270

ATTACHMENT B

ATTACHMENT B

270

271

Ji>iafc Df California

(Ermtmissinn on 3Jufrtriai |Jerf0rrnanrE

Ifll Jtofcarb ^freef, ^ u t f e 300
^ a n (IfranriscD, QjA 94105
(415)904-3650
FAX (41 5) 904-3666

February 28, 1995

Honorable Thomas M. Kelly

Judge of the Justice Court
Alpine Judicial District
P. O. Box 515
Markleeville, CA 96120-0515
Dear Judge Kelly:
The Commission on Judicial Performance has determined that
you should be publicly reproved for the following conduct:
"In 1987, before justice court judges were prohibited from
practicing law by California Constitution Article VI 17 and
Government Code 71607, Judge Kelly became attorney of record
for the plaintiff in Okoye v. Citicorp, Los Angeles Superior
Court Case No. C 683268. Judge Kelly signed a complaint
prepared by a Nevada attorney whose law library and office
Judge Kelly sometimes used. Judge Kelly accommodated the
Nevada attorney without receiving a fee or promise of fee, and
without expecting a fee. The attorney had told Judge Kelly
that he intended to handle the case and would file a motion to
appear pro hac vice, seeking the court's permission to appear
as an out-of-state attorney with Kelly, a California attorney,
associated as counsel. However, within a month after the
complaint was filed, the Nevada attorney abandoned his plan to
file the application, and so advised Judge Kelly.
Because Kelly was counsel of record in Okoye v. Citicorp,
the defendant's counsel communicated with Judge Kelly at the
Nevada counsel's address. A demurrer to the complaint was
filed. Judge Kelly and the Nevada attorney discussed the matter
and agreed to stipulate to the demurrer. A first amended
complaint was filed; a demurrer to that complaint was
sustained, as well. No second amended complaint was filed.
During the spring and summer of 1987, defense counsel
contacted Judge Kelly four times to schedule the plaintiff's
deposition. Although Judge Kelly informed the Nevada attorney,
Judge Kelly did not notify the plaintiff. On one occasion,
Judge Kelly told defense counsel that he could not attend a
deposition because he was scheduled on a judicial assignment.
271

272

Honorable Thomas M. Kelly

February 28, 1995
Page Two
No discovery pertinent to the merits of the case was
provided to the defense. On July 8, 1987, a motion to compel
production of documents was heard. There was no appearance for
plaintiff. The court ordered production of the requested
documents and ordered sanctions against Judge Kelly and the
plaintiff, which were later paid by the Nevada attorney. Judge
Kelly never notified the plaintiff.
On August 25, 1987, Judge Kelly appeared at a hearing on
defendant's motion to dismiss. This was the first occasion on
which the plaintiff and Judge Kelly met with each other. The
court ordered the case dismissed for failure to file a second
amended complaint, and imposed sanctions of $2,500 on both
Judge Kelly and the plaintiff.
A federal complaint signed by Judge Kelly also was filed on
behalf of the plaintiff, in April of 1987. It was dismissed
for lack of prosecution, and the motion to set the dismissal
aside was dismissed without hearing in December 1987.
The plaintiff sued Judge Kelly and the Nevada attorney for
breach of contract, fraud, and legal malpractice in their
representation of him in the Okoye v. Citicorp case. After a
court trial, the court found Judge Kelly and the Nevada
attorney liable on the cause of action for legal malpractice.
The Nevada attorney was also held liable for breach of
contract. Both were ordered to pay a judgment of $351,000.
The judgment was affirmed on appeal.
The trial court determined that Judge Kelly, by agreeing
that the Nevada attorney would handle the management of the
lawsuits in the absence of a court order permitting the Nevada
attorney to appear as counsel, after signing the complaints
prepared by the Nevada attorney, unlawfully aided and abetted
the unauthorized practice of law, contrary to Business and
Professions Code 6126(a) and Code of Professional
Responsibility Rule 3-101. The commission finds that by his
conduct in the case, including abandoning, for all intents and
purposes, a client for whom he was attorney of record, Judge
Kelly committed a breach of fiduciary duty and committed legal
malpractice. Judge Kelly's conduct constitutes conduct
prejudicial to the administration of justice that brings the
judiciary into disrepute."
This public reproval is being issued with your consent.
Very truly yours,
i / ;

^--N i \

VICTORIA B. HENLEY
Director-Chief Counsel

/
!

272

273

ATTACHMENT C

ATTACHMENT C

273

274
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Ask the Receiver

Posted Feb. 19, 2014 in Ask the Receiver

Can a State Court Receiver Appear in the Bankruptcy

Court or the District Court on Behalf of the
Receivership Estate?
by Peter A. Davidson
QUESTION: I have been a receiver for quite some time and know how the
system works. I have a case without much money currently in it. Instead of
ECJ Viewpoints
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Estatements
On Writs and Wine
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The Commercial Loan Ranger

hiring counsel, can I file pleadings in the bankruptcy court or the district court,
on behalf of the receivership estate, or do I need to employ counsel to do so?
ANSWER: A new appellate decision calls into question the ability of a receiver,
and, in fact a bankruptcy trustee, to file pleadings and represent the estate
(receivership or bankruptcy) in federal court. The case holds that only
attorneys can appear and sign pleadings on behalf of the estate, which as most
attorneys know is the requirement for corporations or partnerships. The case,
In re Shattuck, 411 B. R. 378 (10th Cir. BAP 2009), decided by the 10th Circuit
Bankruptcy Appellate Panel, arose out of a state court receiver for an LLC filing
a motion in the bankruptcy court to dismiss the debtors chapter 13 case on the

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ground that the debtors did not meet the eligibility limits under Section 109(e)
of the Bankruptcy Code due to the fact that the debtors owed the receivership
estate in excess of $800,000.00. The receiver filed the motion to dismiss on his
own, without the assistance of counsel. The receiver was not an attorney.
The debtors moved to strike the receivers motion on the ground that because
the receiver was not a licensed attorney he had no authority to file pleadings
on behalf of the LLC, citing a District Court of Colorado local rule which is
similar, but not exactly the same as, local rules for the district courts in
California. The rule provided that: Only pro se individual parties and members
of this courts bar may appear or sign pleadings, motions or other papers. The
receiver asserted that he was appointed receiver for the LLC by the state court
and was appointed to be receiver as an individual and, as an individual, he was
appearing pro se.
The bankruptcy court overruled the motion to strike the receivers objection on
the basis that it felt it had discretion to allow non-lawyers to file pleadings and
appear in court on behalf of an entity. The court determined that the debtors
liabilities exceeded the limits of Section 109(e) and ordered their bankruptcy
case dismissed.
On appeal the BAP reversed, citing 28 U.S.C. 1654, which provides: In all
courts of the United States the parties may plead and conduct their own cases
personally or by counsel as, by the rules of such courts, respectively, are
permitted to manage and conduct causes therein. It held it is well settled

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that a lay person, while allowed to represent himself or herself, may not
represent the interests or rights of anyone else. The court held that the statue
does not permit artificial entities, such as corporations, partnerships,
associations, LLCs, trusts or estates to prosecute or defend in federal court
except through an attorney, admitted to practice in that particular court. The
BAP cited a number of authorities in support of its ruling including Rowland v.
Cal. Mens Colony, 506 U.S. 194, 201-202 (1993), where the Supreme Court
stated: It has been the law for the better part of two centuries that a
corporation may appear in the federal courts only through licensed counsel. As
the courts have recognized, the rationale for that rule applies equally to all
artificial entities the lower courts have uniformly held that 28 U.S.C. 1654,
providing that parties may plead and conduct their own cases personally or by
counsel, does not allow corporations, partnerships or associations to appear in
federal court otherwise than through a licensed attorney.
As to the receivers contention that he was appearing as an individual, the court
dismissed that argument because, as an individual, the receiver had no
personal claim against the debtors. The receiver was not advocating his
personal rights, but was acting in a representative capacity on behalf of the
receivership estate of the LLC. Because the LLC could not appear in federal
court, except through counsel, neither could the receiver. The receiver argued,
in addition, that his position as receiver was analogous to that of a trustee of
an estate. The BAP held, however, that if a trustee is not a licensed attorney he
too lacks the legal capacity to appear and represent an estate in federal court,
citing a number of authorities including 9th Circuit and California district court
opinions to that affect. These cases state a party may only represent
themselves where they are representing themselves alone, asserting their own
personal rights or interests exclusively. If an individual purporting to appear
pro se is not the actual beneficial owner of the claims being asserted, they are
not viewed as a party conducting their own case personally within the
meaning of the statute, Alpha Land Company v. Little, 238 F.R.D. 497 (E.D.
Cal. 2006).
Import of the Decision
While this decision comes from the Tenth Circuit its reasoning appears sound. It
has long been the rule in the district and bankruptcy court that only individuals
can represent themselves without an attorney. The decision merely applies this
long standing rule to a receivership estate, and arguably a bankruptcy estate,
both artificial entities. Whether the district courts and bankruptcy courts in
California will follow the decision, and possibly apply it to bankruptcy trustees,
remains to be seen.
The BAP seemed to feel that if the receiver had been an attorney himself, he
would have been permitted to appear and file pleadings on behalf of the
receivership estate. While the BAP may have allowed this, the fact that a
receiver or a bankruptcy trustee is also an attorney should not empower them
to appear on behalf of an estate in federal court unless they have been
employed, by either the receivership or the bankruptcy court, to act as an
attorney in the case. Generally, receivers and bankruptcy trustees, while they
may be attorneys, are not acting in that capacity, and they are not
compensated as attorneys.
Both state court rules and bankruptcy rules allow receivers or trustees to be
employed as counsel for the estate, although bankruptcy courts are often
reluctant to allow a trustee to act as counsel in the case. It appears, therefore,
the best course of action for receivers and bankruptcy trustees, when filing
pleadings or appearing in district or bankruptcy court (which is merely a
division of the district court) is to employ counsel for such purposes. Failure to
do so may not only result in the pleading or complaint being stricken, but could
subject the receiver to criminal liability for the unauthorized practice of law.

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Business and Professions Code Section 6125 provides: No person shall

practice law in California unless the person is an active member of the State
Bar. Section 6126(a) provides that any person practicing law who is not an
active member of the State Bar is guilty of a misdemeanor, and can be liable
for civil penalties and possibly contempt of court.

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Appointing a Neutral Receiver

Should Receivers Appear Only Through Counsel To Avoid Civil Liability?

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