SAN BERNARDINO COUNTY SUPERIOR COURT

APPELLATE DIVISION

STUBBLEFIELD PROPERTIES,

Plaintiff – Respondent

vs.

BONNIE SHIPLEY,

Defendant – Appellant

Case No. ACIAS 1400026 [Trial Court UDDS1204130]

Appeal from a Final Judgment in

San Bernardino Superior Court

Entered on March 20, 2014

Honorable Michael A. Sachs

APPELLANT’S REPLY BRIEF

Clerk’s Transcript on Appeal and Reporter’s Transcript filed 7/31/14

Nancy D McCarron, CBN 164780

950 Roble Lane

Santa Barbara, CA 93103

nancyduffysb@yahoo.com

805-450-0450 fax 805-965-3492

Attorney for Appellant

\

TABLE OF CONTENTS

TABLE OF AUTHORITIES…………………………………………………………….. 0

INTRODUCTION………………………………………………………………………... 1

ARGUMENTS

I. Structural Defects Overcome Presumption of Correctness on Harmless Errors ............... 2

II. Shipley has Statutory Standing to Appeal under CCP §906………………………………. 3

A. Shipley Is Aggrieved by Structural Errors Which Were Not Harmless …….................. 4

B. Shipley Neither Invited Nor Waived Any Error Below By Her Conduct …………….. 5

III. Judge Sachs Serial Violations Were Not Harmless and Were Prejudicial to Shipley… 15

IV. The Appeal Can Not be Dismissed for Alleged Failure to Comply …………………..… 17

A. Shipley Cited to Matters in the Record 66 times in 20 pages (3 per page)………..... 17

B. Shipley Complied With All Rules of Court and Decorum…………………………….. 18

CONCLUSION …………………………………………………............................................. 19

CERTIFICATE OF WORD COUNT ……………………………………………………....... 20

PROOF OF SERVICE …………………………………………………………..............…… 20

0

TABLE OF AUTHORITIES

Apple, Inc. v. Franchise Tax Board (2011) 199 Cal.App.4th 1, 13 ............................... 4

Barham v. Southern Cal. Edison Co. (1999) 74 CA.4th 744, 751 ................................ 4

Bonfigli v. Strachan (2011) 192 CA.4th 1302, 1314 ................................................... 14

Caruso v. Snap-Tite, Inc. (1969) 275 CA. 2d 211, 214 ................................................. 4

Diaz v. Carcamo (2011) 51 Cal.4th

. 1148, 1161 .......................................................... 15

Estate of Hughes (1947) 80 Cal.App.2d 550, 554-555 .................................................. 4

Fink v. Shemtov (2010) 180 C.A.4th

1160, 1167-68 ................................................... 19

Friends of Aviara v. City of Carlsbad (2012) 210 CA.4th 1103, 1108 ........................ 4

Harrington v. Superior Court (1924) 194 Cal. 185, 188 ............................................. 16

Horsemens Ben. & Prot. Assn. v. Valley Racing Assn. (1992) 4 CA.4th 153, 155 ..... 14

In re Marriage of Goddard (2004) 33 Cal.4th 49, 54 .................................................. 16

Judith P. LA Supr Court (2002)102 CA.4th

535, 555 ................................................ 2, 3

Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 212-213 ................................ 14

Maxwell Hardware Co. v. Foster (1929) 207 Cal. 167, 170 ......................................... 4

People v. Landon (1991) 234 CA.3d, 66, 77 ................................................................. 2

People v. Marshall (1996) 13 Cal.4th

799, 851 .............................................................. 2

Powers v. City of Richmond (1995) 10 Cal. 4th 85, 93 ................................................. 4

Ricketts v. McCormack (2009) 177 CA.4th 1324, 1335 footnote 12............................ 4

Robinson v. Superior Court (1984) 158 CA.3d 98, 107 ................................................ 5

Sampson v. Parking Services. 2000 Com., Inc. (2004) 117 CA.4th 212, 217 n.4 ........ 4

San Mateo Union HS Dist. v. County of San Mateo (2013) 213 CA.4th 418, 436 ...... 14

Scott v. McNeal (1894) 154 U.S. 34, 46 ...................................................................... 16

Serrano v. Stefan Merli Plastering Co, Inc. (2008) 162 CA.4th 1014, 1026 ................ 4

Simmons v. Ware (2013) 213 CA.4th 1035, 1045 ......................................................... 4

Soldate v. Fidelity National Title (1998) 62 CA.4th 1069, 1073 ................................... 4

Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 959, fn. 1 ............................................. 4

Vant Rood v. County of Santa Clara (2003) 113 CA.4th 549, 560 ............................... 4

Vivid Video, Inc. v. Playboy Entertain. Group, Inc. (2007) 147 CA.4th 434, 440 ........ 3

STATUTES & RULES

CCP §663(b) ................................................................................................................ 10

CCP §906 ....................................................................................................................... 3

Civil §798.56(d) ..................................................................................... 3, 11, 12, 14, 15

CRC 3.130(d) ............................................................................................................... 13

CRC 3.1312 ................................................................................................ 6, 7, 8, 11, 16

San Bernardino Local Rule 530 ................................................................................... 17

San Bernardino Local Rule 591.3 .......................................................................... 13, 16

1

INTRODUCTION

The gravamen of Stubblefield’s derisory responding brief is that Shipley was

not aggrieved by the debauched order; she either invited or waived errors; and if

y’all don’t buy that bundle, then “piecemeal procedural errors” were harmless.

Stubblefield’s arguments are in the right pew---but the wrong church by a mile!

Because no appellate court has justified ten serial violations by a judicial officer

Stubblefield peppered arguments with ad hominem attacks on Shipley’s counsel.

He urges this court to review opposing counsel’s character rather than the issues.

Stubblefield prays the court will “put to bed” this over-litigated case. We agree!

Former Appellate Panel’s Writ of Mandate is the blanket designed to do just that.

Stubblefield misrepresents that Shipley failed to cite to the record on key points.

Shipley cites 42 times to Clerk’s Transcript [CT], 18 times to Reporter’s Transcript

[RT], a total 62 citations in 20 pages, which is an average of 3 references per page.

Struggling to find a scintilla of evidence to support baseless ad hominem attacks

Stubblefield compares errors below to harmless ones in criminal trials, family law

battles, and a plaintiff labeled vexatious litigant after losing 15 in pro per appeals.

Bonnie Shipley never sued anyone. Shipley is prevailing defendant entitled to

final judgment as ordered last year in former Appellate Panel’s Writ of Mandate.

Unwilling to accept defeat Stubblefield continues to wage ad hominem attacks.

Stubblefield argues Shipley’s facts are convoluted, urging the court to adopt his

paraphrased rendition of facts---just as he did below when he wrote a debauched

final judgment---paraphrasing former Panel’s findings and conclusions in its order.

Shipley’s facts are only 3 pages---succinctly reciting relevant procedural history.

He argues footnotes on a few pages were 12-point instead of 13 point. Even if

true, this occurred without counsel’s knowledge as she set it 13 in starting the brief.

Because he cannot justify Judge Sachs’ serial violations in star court proceedings,

Stubblefield grasps at any straw to deflect this court’s attention from the real issue;

structural defects [not harmless errors] rendered the judgment void ab initio.

2

I. Structural Defects Overcome Presumption of Correctness on Harmless Errors

Stubblefield cites People v. Landon (1991) 234 CA.3d, 66, 77 arguing courts must

presume validity. Landon found an erroneous jury instruction error was harmless.

This dwarfs in comparison to structural errors as explained by Supreme Court in 1996:

A structural defect is the type of error "affecting the framework within

which the trial proceeds, rather than simply an error in the trial process

itself," one that " 'transcends the criminal process' " and "defies analysis by

'harmless-error' standards." (Arizona v. Fulminante, supra, 499 U.S. at p.

309-311) … Examples of structural defects include total deprivation

of the right to counsel at trial (Gideon v. Wainwright (1963) 372 U.S. 335; ...

trial before a judge who is not impartial (Tumey v.Ohio (1927) 273 U.S. 510)

...Trial errors, by contrast, are errors that "occurred during the presentation of

the case to the jury, and which may therefore be quantitatively assessed in the

context of other evidence presented" in order to determine whether the error

was harmless. People v. Marshall (1996) 13 Cal.4th

799, 851

Citing Marshall the court in Judith P. v. LA Supr Court (2002)102 CA.4th

535 held:

….a per se reversible error standard should be applied, because the failure to

provide this kind of notice is in the nature of a structural, rather than a

trial, constitutional error. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-311;

People v.Marshall (1996) 13 Cal.4th 799, 851-852. Examples of such structural

errors that result in automatic reversal (the per se reversible error standard)

include total deprivation of the right to counsel at trial, a biased judge,

…failure to give Mother the minimum mandated 10 days' notice was a

structural error, and that the per se reversible error standard applies. …

The lack of reasonable notice was not only a violation of the statute, but also

a violation of constitutionally required due process….Judith P, supra @ 558

Stubblefield does not even deny Judge Sachs’ serial violations of Procedural Codes,

Statutes of Limitations, CA Rules of Court, San Bernardino Local Rules, and his ultra

vires revision of Civil §798.56[d] by mere judicial proclamation. Rather, Stubblefield

euphemizes 10 serial violations as “procedural oversights” [Respondent’s Brief, p. 6] 1

1 All future references to Respondent’s Brief will be abbreviated as “RB” page is “p.”

3

The court in Judith P, supra @ 557 held “the failure to give Mother the minimum

mandated 10 days' notice was a structural error, and that the per se reversible error

standard applies. … The lack of reasonable notice was not only a violation of the

statute, but also a violation of constitutionally required due process.”

Notwithstanding 10 serial violations, the most egregious violation occurred when

Stubblefield delivered final judgment to chambers without first serving it on Shipley.

Judge Sachs signed and entered a final judgment on the court’s docket immediately,

without waiting 10 days for Shipley to object—as required under Local Rule 591.3.

It was a structural error. The per se reversible error standard is applied in this case.

Judge Sachs conspired with Stubblefield to set this trap; first by entering the bizarre

internal order on March 17, 2014 (after his last hearing on entry of final judgment)

to retain Shipley’s file in chambers---rather than return it to a public access filing room;

second, by then signing a final judgment the minute Stubblefield delivered it to him;

third, by ordering his deputy to refuse to file Shipley’s objections to preclude them from

becoming part of her court file. Judge Sachs is not even subtle in apparent corruption.

II. Shipley has Statutory Standing to Appeal under CCP §906

Stubblefield argues as prevailing party Shipley has no standing to appeal. The right

to appeal is entirely statutory. 2 CCP §906 conveys a right to appeal part of any order:

… respondent, or party in whose favor the judgment was given, may, without

appealing from such judgment, request the reviewing court to and it may

review any of the foregoing matters for the purpose of determining whether

or not the appellant was prejudiced by the error or errors upon which he relies

for reversal or modification of the judgment from which the appeal is taken…

Appellate jurisdiction is the power of a reviewing court to correct errors below. 3

Standing is liberally construed; doubts are resolved in favor of the right to appeal. 4

2 Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 CA. 4th 434, 440

3 Powers v. City of Richmond (1995) 10 Cal. 4th 85, 93

4 Vant Rood v. County of Santa Clara (2003) 113 CA.4th 549, 560

4

A. Shipley Is Aggrieved by Structural Errors Which Were Not Harmless

Any aggrieved party may appeal, and a party is considered aggrieved when its

rights or interests are injuriously affected by the judgment. 5 A party who has not

obtained all of the relief requested is aggrieved and has a statutory right to appeal. 6

Stubblefield does not dispute Shipley was injured by a judgment reciting former Panel

held Stubblefield could evict a homeowner or resident under Civil Code §798.56(d).

This is exactly the opposite of what former Panel held; i.e. he could not evict Shipley

directly as they were not in privity of contract and his remedy was to proceed against

the homeowner for her or co-resident’s failure to comply with a reasonable rule:

◄ CT 184 7

◄ CT 185

5 Simmons v. Ware (2013) 213 CA.4th 1035, 1045; Serrano v. Stefan Merli

Plastering Co, Inc. (2008) 162 Cal. App. 4th 1014, 1026-1027.

6 Friends of Aviara v. City of Carlsbad (2012) 210 CA.4th 1103, 1108; Apple, Inc. v.

Franchise Tax Board (2011) 199 Cal.App.4th 1, 13; Ricketts v. McCormack (2009)

177 CA.4th 1324, 1335 footnote 12; Sampson v. Parking Services. 2000 Com., Inc.

(2004) 117 CA.4th 212, 217 n.4 (party awarded significantly less than requested was

aggrieved party for purposes of appeal); Barham v. Southern Cal. Edison Co. (1999)

74 CA.4th 744, 751 (party that prevails generally may appeal from the unfavorable

part of judgment); Soldate v. Fidelity National Title (1998) 62 CA.4th 1069, 1073;

Sturgeon v. Leavitt (1979) 94 Cal.App.3d 957, 959, fn. 1; Caruso v. Snap-Tite, Inc.

(1969) 275 CA. 2d 211, 214; (issues material to judgment deemed appealable);

Estate of Hughes (1947) 80 Cal.App.2d 550, 554-555 (unfavorable provisions) ;

Maxwell Hardware Co. v. Foster (1929) 207 Cal. 167, 170; 7 “CT” refers to Clerk’s Transcript - filed in this Appellate Division on 7/31/2014

5

Because Stubblefield knows Shipley has a statutory right to appeal any part of the

judgment against her interest, he cites an appellate court case holding that a prevailing

party has no right to appeal even if there is a claimed error; i.e. Robinson 8 However,

Robinson is distinguished because it did not involve a structural defect or error---

but rather a party seeking trial de novo after losing an arbitration over harmless error.

There is a strong public policy in California against appealing an arbitration award

absent fraud in the arbitration proceedings. This case is distinguished from Shipley.

B. Shipley Neither Invited Nor Waived Any Error Below By Her Conduct

Stubblefield misrepresents what happened below to swell the absurd argument that

Shipley invited errors and/or waived those errors by her conduct. Stubblefield argues

general principles about invited or waived errors soley in the context of a party’s

conduct in trial below (erroneous jury instructions, erroneous exclusion of evidence)

or waiving error by “failing to take the proper steps at trial to avoid or correct the

error” [RB, p. 8] The cited cases are distinguishable because they do not involve

structural defects in the manner in which the court conducted its own proceedings,

as opposed to harmless errors during trial proceedings.

Stubblefield argues “there is no doubt that a lot of effort was put into drafting the

final Order/Judgment.” [RB, page 9]. McCarron put a lot of effort into objecting to

star court proceedings Judge Sachs conducted during those hearings. Stubblefield

admits that Judge Sachs “ordered Stubblefield to prepare the judgment.” [RB, p.9]

THAT IS THE POINT! ONLY A BIASED JUDGE ORDERS THE LOSING

PARTY TO PREPARE THE PREVAILING PARTY’S FINAL JUDGMENT!

This violated CRC 3.1312 which calls for prevailing party to prepare the judgment.

What happened below is exactly why our Judicial Council enacted CRC 3.1312; i.e.

to ensure a loser does not tweak final judgment to transmute himself into a winner.

8 Robinson v. Superior Court (1984) 158 CA.3d 98, 107

6

Stubblefield misrepresents what happened at the final hearing on 3/17/2014 by

urging this panel to look at a clerk’s Minute Order---rather than an Official Transcript.

The summarized Minute Order recites only that Judge Sachs gave attorneys a copy of

his notes scribed onto his working copy of the proposed judgment Stubblefield filed.

Stubblefield artfully argues “the Trial Court informed counsel that he had revised

the proposed order/judgment” and that he “gave a copy of those notes to counsel.”

Stubblefield’s attorney tried to create a pretext or imply that Judge Sachs gave his

notes to McCarron during the hearing, implying she saw them and failed to object.

THIS WAS A DISHONEST, UNETHICAL BREACH OF ATTORNEY ETHICS.

As an officer of the court each attorney is expected to be honest and forthright in

the manner in which he presents arguments so as not to mislead an appellate panel.

A review of the 3/17/14 Reporter’s Transcript [RT 63:7] shows Judge Sachs did

not give the bailiff his notes until after he concluded the 3/17/14 judgment hearing:

7| Mr. WILLIAMSON: It is my understanding the court had

8| concluded this hearing.

9| THE COURT: It is concluded.

10| Thank you very much.

11| THE BAILIFF: Your Honor, did you want me to make

12| copies?

13| THE COURT: The record should reflect that I have

14| handed to Mari, my courtroom attendant, my worked up order

15| that she is going to make copies for everybody.

16| Thank you everybody.

17| Ms. McCARRON: Thank you

18| THE COURT: You are welcome.

19| (foregoing proceedings are concluded.) RT 63:7-19 [emphasis added]

The bailiff departed to another room to make copies while Ms. McCarron and Mr.

Williamson waited for the copies in the courtroom audience seats. Mr. Williamson sat

on the left side directly in front of the courtroom entry/exit door while McCarron sat

on the right side directly in front of the bailiff’s table on the right side of the room.

Judge Sachs’ bailiff returned a few minutes later with original notes and two copies.

7

The bailiff gave a copy of Judge Sachs’ notes to Mr. Williamson by the exit door.

He departed immediately. The bailiff then walked up to her desk and gave a copy to

McCarron, who was unable to do anything about the notes as Mr. Williamson had

already darted out the exit door before she had an opportunity to read the Judge notes.

Secondly, Judge Sachs had summoned the parties on the next case on calendar and

was listening to attorney arguments on their motion, with a court reporter recording it.

Attorney McCarron had no choice but to depart, wait for Mr. Williamson to serve her

the proposed order (which he had always done) - before submitting his order to court,

and then serve written objections back to Mr. Williamson within the 5-day window as

described in CRC 3.1312. McCarron believed he would repeat his regular practice.

Rule 3.1312. Preparation and submission of proposed order

(a) Prevailing party to prepare Unless the parties waive notice or the court

orders otherwise, the party prevailing on any motion must, within five days of the

ruling, serve by any means authorized by law and reasonably calculated to ensure

delivery to the other party or parties no later than the close of the next business day a

proposed order for approval as conforming to the court's order. Within five days after

service, the other party or parties must notify the prevailing party as to whether or not

the proposed order is so approved. The opposing party or parties must state any reasons

for disapproval. Failure to notify the prevailing party within the time required shall be

deemed an approval. The extensions of time based on a method of service provided

under any statute or rule do not apply to this rule. (Subd (a) amended effective January

1, 2011; previously amended effective July 1, 2000, and January 1, 2007.)

(b) Submission of proposed order to court The prevailing party must, upon

expiration of the five-day period provided for approval, promptly transmit the proposed

order to the court together with a summary of any responses of the other parties or a

statement that no responses were received.(Subd (b) amended effective January 1,

2007; previously amended effective July 1, 2000.)

On this single occasion Mr. Williamson deviated from his regular past practice of

complying with CRC 3.1312 by serving Ms. McCarron with his proposed order, and

waiting five days for her objections which he knew would be forthcoming. CT 172

A review of CT 172 shows the transmittal letter Mr. Williamson always served in the

past each time he proposed a judgment to submit to the court for signature:

8

CT 172 served 3/3/14

Mr. Williamson’s letter recited the last day to file objections before submission.

Because Mr. Williamson had always complied with CRC 3.1312 McCarron relied

on his past practice in always serving the judgment on her before submitting to court.

Williamson, presuming McCarron would wait for him to serve a proposed order,

deviated from his regular practice by hiring an attorney service to deliver the proposed

order directly to chambers on 3/20/14 without first serving it on McCarron for review.

This was only three days after the 3/17/14 hearing on a proposed judgment. CT 223.

A careful review of CT 223 shows how this contrivance was designed by Judge Sachs

and Mr. Williamson to intentionally prevent Shipley from filing any written objections

before Judge Sachs’ entered final judgment on the docket. CT 223 shows that Judge

Sachs accepted delivery of the judgment on 3/20/14 --- without a proof of service.

CT 223 also shows he signed and entered the order on the same day—3/20/2014!

9

CT 223 –Rec’d/Entered 3/20/14

Attorney McCarron did not see the proposed judgment until she looked at her email

the next morning on Friday 3/21/14--- at which time she immediately typed up written

objections, transmitted them to Bonnie Shipley by email, who printed them in Highland

and drove over to file the objections. As explained in AOB on page 16, Judge Sachs

made a bizarre journal entry on 3/17/14 (right after his last hearing on judgment) reciting

“files retained in department.” (rather than returning to public access file room). CT 71

CT 71 – files retained in department

As explained in AOB, page 17 the clerk in the public filing room would not accept objections

on 3/21/14 due to the bizarre order about retaining her file in chambers. The clerk told Shipley

to go upstairs to Judge Sachs’ court to file objections. Judge Sachs’ clerk refused to accept them

stating that her objections were “late” because he entered judgment the day before---on 3/20/14.

10

When McCarron reviewed the online court docket no journal entry appeared on the docket

reciting that judgment was entered on 3/20/14. As of 3/25/14 no journal entry appeared on the

online docket indicating a judgment entered on 3/20/14. Despite 3 round trips to the courthouse

Shipley was never able to obtain a copy of the final judgment despite being the prevailing party!

Shipley and McCarron never saw a copy of the final judgment until 4/4/14 when McCarron

eventually received a copy Mr. Williamson served by mail on 4/1/2014 to her law office.

This was intentionally done to run the clock out on a 10-day window to file a writ petition.

(10 days from entry of judgment). Shipley was forced to file a regular appeal to avoid the

debauched judgment from ripening into an un-appealable final judgment. [see AOB, p.16-17]

The only reasonable inference which can be drawn from the above-described bizarre series of

events is that Judge Sachs acted as a de facto advocate for Stubblefield every step of the way by

conducting star court proceedings in Department S-32. Judge Sachs’ motivation is irrelevant.

The facts show that Judge Sachs, at worst, conspired with attorney Williamson by telephone,

or, at best, conducted proceedings in a bizarre manner to transmute Stubblefield into a winner.

It is not a series of 10 coincidences that Judge Sachs deviated from regular court procedures by:

1.) vacating a 5-month old summary judgment order after jurisdiction expired CCP §663(b)

(then re-writing it including paraphrased “findings” not recited in the hearing’s transcript)

2.) ordering the loser to compose prevailing party’s judgment violating CRC 3.1312 (3 times)

(including paraphrasing former Panel’s “findings” to change the import of those findings)

and revising a statute by mere judicial proclamation in violation of Separation of Powers to

carve out a new remedy to directly evict non-homeowner residents without contract privity

3.) after giving Williamson his notes [adding “or resident” to Civil §798.56(d)] on 3/17/14

ordering a bizarre journal entry maintaining Shipley’s case file in his chambers to exercise

exclusive control over what documents she tried to file would be accepted for filing--so he

could reject objections he knew she would try to file---as soon as she saw his judgment

4.) on 3/20/14 signing and entering final judgment the minute it was delivered to chambers---

without a proof of service or transmittal letter showing it had been served on Shipley, and

then rejecting Shipley’s attempt to file objections the next day on 3/21/14 when she saw it.

5.) making emphasis marks on CT 221 on the sentence he wants the panel to look at which

does not state that his notes were given to counsel after he concluded the hearing:

11

CT 221 w/emphasis drawn on the MO

This differs from the official minute order appearing on Register of Actions at CT 69:

CT 69-no emphasis marks appear on official MO

This is compelling evidence of a joint effort to mislead a panel on what occurred on 3/17/14

12

Although Judge Sachs announced he had revised his “working copy” of the final judgment

Stubblefield submitted, he never announced that he inter delineated the words “or resident” into

the language of Civil Code §798.56(d) typed up verbatim on Stubblefield’s proposed judgment.

If Judge Sachs announced this at the hearing McCarron would have vehemently objected to it.

The court said “plaintiff may proceed against the homeowner under §798.56(d) but never said

the words “or resident” would be inter delineated into the typed up Civil §798.56(d) language.

Stubblefield seized the opportunity to type up a final judgment with the words “or resident”

inserted thereon. He delivered a final judgment to chambers, without first serving McCarron.

Judge Sachs had already pre-arranged to sign and enter the final judgment the minute it hit his

desk in chambers, which is exactly what he did. All of these acts were conspired and executed

in a manner clearly designed to preclude Shipley from filing objections before it was entered,

and to thwart her ability to file objections even after the judgment was entered that same day!

6.) violating San Bernardino Local Rule 591.3 which requires all judges to hold a judgment

for 10 days before entering it to afford opposing parties an opportunity to object to entry.

7.) ordering his deputy and clerk to reject Shipley’s objections on 3/21/14 as “late” when

they were not late, and even if late, he was required to accept them under CRC 3.130(d)

8.) ensuring that Shipley’s objections were never part of the record on appeal so that

Stubblefield could argue Shipley “waived” any right to appeal by not filing objections

which is exactly what they did. RB page 8-11 in keeping with the joint effort to deceive.

The above described evidence demonstrates a serial pattern of a joint effort to deceive this

panel about what actually occurred---to argue that Shipley invited or waived errors by failing

to object during the hearing and/or before final judgment was entered on the court’s docket.

McCarron objected in advance to a serial pattern of fraud she suspected would occur. RT 60:25

13

25| Ms. McCARRON: Why can’t I file it, your Honor? He

26| is going to paraphrase again.

1| THE COURT: It is his motion, it is his work I am

2| working off of and I am assuming counsel will do what I have

3| asked him to do. In fact, I am happy to give him my notes,

4| you can make a copy and both of you can share it. RT 60:25

There was no pending motion. Stubblefield’s attorney had never filed any motion.

Judge Sachs refused to allow prevailing party’s attorney to prepare her final judgment.

The only reasonable inference is that Judge Sachs wanted Stubblefield to prepare the

final judgment with language transmuting him into a winner, by way of carving out

a new remedy to evict residents, such as Shipley, directly without privity of contract.

Finally, the doctrine of invited error does not apply if a party objects but then

acquiesces in a judicial determination to the contrary. 9 This is because every litigant

has a duty to submit to the court’s rulings. After a litigant has done so, he or she may

demonstrate the error on appeal. 10

McCarron objected to the court’s authorizing

Stubblefield to compose her final judgment because she knew he would paraphrase

it to transmute himself from a loser to a winner. RT 60:25 (see directly above)

McCarron tried everything to urge Judge Sachs not to assign Stubblefield to

compose her final judgment but to no avail. Stubblefield did exactly as predicted and

Judge Sachs did everything in his power to ensure Stubblefield would gain an illegal

benefit from inserting “or resident” into Civil §798.56(d). Within a few weeks

Stubblefield circulated a letter to all residents, reciting how they could be evicted

directly under Civil §798.56(d). (see Motion to Augment, Exh. B)

9 Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 212-213;

Bonfigli v. Strachan (2011) 192 CA.4th 1302, 1314.

10 San Mateo Union HS Dist. v. County of San Mateo (2013) 213 CA.4th 418, 436

Horsemens Benev. & Prot. Assn. v. Valley Racing Assn. (1992) 4 CA.4th 153, 155

14

…

…

The above shows Stubblefield circulated his new weapon to all residents – not homeowners.

This is because he fully intends to use Civil Code §798.56(d) to evict non-homeowner residents

directly despite that he is only in privity of contract with homeowners---not non-homeowners.

Stubblefield intends to use Judge Sachs’ gratuitous gift as a device to steal more mobile homes

from poor, elderly residents, to stuff his portfolio of “rental units” inside a park he advertises as

“a homeowners park.” Shipley was prejudiced by Judge Sachs’ gratuitous gift to Stubblefield in

that he can now proceed to evict her under Civil Code §798.56(d) despite that he is not in privity

of contract with her, as explained in former Panel’s Writ of Mandate.

15

III. Judge Sachs Serial Violations Were Not Harmless and Were Prejudicial to Shipley

Stubblefield argues a general theory that errors must be prejudicial to trigger reversal,

citing our Supreme Court’s recent holding in Diaz v. Carcamo 11

which recited as follows:

“[t]o establish prejudice, a party must show ‘a reasonable probability that in the absence of

error, a result more favorable to [it] would have been reached.’” Stubblefield argues,

“Shipley did not, and cannot meet that burden here” [RB 12] without showing how Shipley

failed to meet the burden. Stubblefield’s naked premise, devoid of proof, is worthless fodder.

First, Diaz concerns an employer’s vicarious liability for a collision injuring a plaintiff,

where appellant failed to show a reasonable probability that a more favorable result would

have been reached absent erroneous admission of evidence at trial. Diaz is distinguished

because it involved harmless trial errors, as opposed to structural defects and errors,

which are per se reversible, as explained above in this REPLY at page 2-3.

Prejudice need not be proved where structural defects and errors are per se reversible.

Even if Shipley had to show “a reasonable probability that in the absence of error, a more

favorable result would have been reached” she clearly met that standard of proof herein.

If Judge Sachs allowed prevailing party Shipley to submit a proposed judgment, as called for

in CRC 3.1312, the judgment shown at CT 209-210 [composed by Shipley] would have

recited former Panel’s conclusions verbatim. If Judge Sachs had not vacated Judge Alvarez’s

summary judgment order Stubblefield could not have misconstrued his findings as well.

If Judge Sachs had complied with Local Rule 591.3 by holding the judgment for 10 days

to wait for objections, and had not rejected the objections Shipley tried to file the next day,

he may have crossed out the words such as defendant in the preliminary recitals, and the

words “or resident” in Civil §798.56(d) before entering judgment. A more favorable result

necessarily would have been reached---but for Judge Sachs’ serial violations of Procedural

Codes, Statutes of Limitations, CA Rules of Court and Local Rules. Stubblefield argues

there is no prejudice to Shipley because she prevailed. Shipley is prejudiced as the order

authorizes Stubblefield to evict her directly under Civil §798.56(d) despite a lack of privity

and contravening former panel’s conclusion that such eviction without privity is illegal.

11

Diaz v. Carcamo (2011) 51 Cal.4th

. 1148, 1161

16

The due process clauses of the United States and California Constitutions require

that a party be given reasonable notice of a judicial proceeding. 12

Yet, neither Judge

Sachs nor Williamson gave notice to Shipley or McCarron that he intended to submit

a new final judgment without first serving it on Shipley and giving her an opportunity

to object to its form before it was delivered to chambers for signature, as required

under CA Rules of Court, Rule 3.1312 and San Bernardino Local Rule 591.3.

Stubblefield tries to justify Judge Sachs’ violation of Local Rule 530 (presiding

judge re-assigns) by saying Judge Alvarez’ clerk reassigned a new judge, citing how a

presiding judge can delegate her authority to another judge. Even if true, how does it

compute to a low-level courtroom clerk assuming the power to re-assign judges?

This argument is preposterous on its face. Stubblefield argues no prejudice when

Judge Sachs vacated Judge Alvarez’s order. This opened the door for Stubblefield to

paraphrase Judge Alvarez’s findings, adding the word “such as defendant” to his

findings---implying he found Shipley was an unlawful occupant. He never found that.

Stubblefield argues “such as defendant” did not prejudice Shipley because Judge

Sachs said those words were irrelevant. Why include them in an order if irrelevant?

Why didn’t he order the words stricken if they were irrelevant? It makes no sense!

Stubblefield argues adding the word or resident was irrelevant as the actual order

written by last year’s Panel was attached as Exhibit A. The answer is transparent.

Stubblefield intends to copy only Judge Sachs’ 3-page order and show it to residents

to intimidate them into submission. Either comply with his whims or be evicted.

Stubblefield will never attach Exhibit A or B to the order when used as a weapon.

If the words were irrelevant why did Judge Sachs have three hearings on the final

judgment to make sure those words were included in it? The answer is transparent!

12

Scott v. McNeal (1894) 154 U.S. 34, 46; Harrington v. Superior Court (1924)

194 Cal. 185, 188; In re Marriage of Goddard (2004) 33 Cal.4th 49, 54

17

IV. The Appeal Can Not be Dismissed for Alleged “Failure to Comply”

Stubblefield’s ad hominem attack on Shipley’s counsel is clearly unwarranted,

not Shipley’s Cut & Paste of a few key excerpts in the Court or Reporter Transcripts.

A. Shipley Cited to Matters in the Record 66 times in 20 pages (3 per page)

Stubblefield misrepresents that Shipley failed to cite to the record on key points.

Shipley cites 42 times to Clerk’s Transcript [CT], 18 times to Reporter’s Transcript

[RT], a total 62 citations in 20 pages, which is an average of 3 references per page.

Struggling to find a scintilla of evidence to support baseless ad hominem attacks

Stubblefield compares errors below to harmless ones in criminal trials, family law

battles, and a plaintiff labeled as vexatious litigant after losing 18 in pro per appeals.

Shipley never sued anyone. Shipley is prevailing defendant entitled to entry of final

judgment as ordered by former Panel’s Writ of Mandate issued over a year ago.

Unwilling to accept defeat Stubblefield continues to wage ad hominem attacks.

Because Stubblefield has no valid arguments on the merits he wastes the panel’s

time splitting hairs over purported di minimus “failures to comply” with 13 point font

because footnotes on a few pages were purportedly 12 points instead of 13 points.

Dismissal is a remedy used for only the most egregious failures to comply with rules.

The remedy here, if the court felt the brief did not comply was to ask counsel to re-

submit it. The court apparently did not care if a few footnotes were inadvertently

printed at 12 instead of 13 point. The brief substantially complied with the rules.

Counsel set the typeface at 13. Perhaps Word 2010 has internal code which assigns

footnotes at 12 points instead of 13 despite the document being set to 13 points.

Stubblefield whines about “cut and paste” used in AOB. This is because he

realizes these demonstrate key points facially, without the reader having to search

through a 292 page Transcript to get the point. Stubblefield argues it is “improper”

yet failed to cite any court rule prohibiting the pasting of identified excerpts from the

record. Each cut & paste showed the corresponding page in the CT or RT records.

18

B. Shipley Complied With All Rules of Court and Decorum

Stubblefield argues Shipley made “unwarranted personal attacks” on the court,

Stubblefield and his counsel. If it looks like a duck, quacks like a duck, and walks

like a duck----it’s a duck! Shipley calls a spade a spade and calls it exactly like it is.

When a Judge runs a Star Chamber Court she identifies it as a Star Chamber Court.

Shipley cut and pasted Wikipedia’s definition of Star Court. [see AOB, footnote 1].

Stubblefield argues there is nothing improper in addressing counsel as “ma’am”

arguing it is a polite way to address a woman you don’t know. Judge Sachs knew

McCarron’s name because she announced it every time she appeared before him.

If Judge Sachs cannot remember a name he heard five minutes earlier he should be

tested for Altzheimers; if suffering from it he should resign. Even if he could not

remember a name five minutes later, he should address each attorney as “counsel” –

not ma’am in a loud condescending voice intended to demean the standing attorney.

It is unacceptable for a Judge to demean female attorneys by calling them “ma’am.”

Judge Sachs called Stubblefield’s attorney either Mr. Williamson or counsel every

time he appeared. Demeaning conduct should not be encouraged in any courtroom.

Stubblefield’s argument that Judge Sachs used “ma’am” to “stop attorney

McCarron from interrupting” is preposterous. A careful reading of all Reporter’s

Transcripts shows that nearly every time Judge Sachs called McCarron “ma’am”

he was interrupting her---to prevent her from recording objections on the transcript.

Stubblefield’s past bribes to county officials are fair game as they are documented.

The news releases about his bribes are published on various online websites.

Shipley calls a spade a spade. If he does not want to be criticized then Stubblefield

should stop offering bribes to county and city officials. Stubblefield intimidates

every official in San Bernardino County because he has a reputation for bank-rolling

opposing candidates against officials who do not do exactly as he demands.

Stubblefield's comparing Shipley to plaintiff in Fink v. Shemtov l 3 is over the top.

The court labeled Fink a vexatious litigant after 15 failed lawsuits and losing appeals.

Shipley never sued anyone. Shipley is defendant. prevailing on final judgment as

ordered in a Writ of Mandate. Unwilling to accept defeat Stubblefield cotltinues to

wage ad hominem attacks on counsel because he is unable to justify serial violations.

CONCLUSION

For the reasons cited above and in Appellant's Opening Brief, Shipley

respectfully asks Presiding Panel to grant the relief she prayed for in her opening

brief, to vacate the order Judge Sachs entered on 3120114, to reinstate Judge Alvarez'

order granting summary judgment on 1012 1113, to enter the final judgment Shipley

offered at CT 209. and to direct Judge Sachs to recuse himself from this case.

Dated: 10/14/14

I3 Fink v. Shemtov (2010) ,180 c.A.~'" 1160, 1167-68

X D a v i d M. Fink vs. Eddie S. YLSE286 Fed. Appx 498 (9th Cir. 2008). Mr. Fink appealed an order of the district court, and the Court of Appeals affirmed the district court. "2) David M Fink vs. Eddie YLST, 198 Fed. Appx. 587 (9th Cir. 2006). Mr. Fink appealed from a judgment, and the Court of Appeals affirmed. "3) David Fink vs. Hollywood Marble, Inc. B190153. Mr. Fink appealed, and judgment was affirmed. "4) DavidFink vs. Warren Garth KiMn, G038711. Mr. Fink's appeal was dismissed as untimely. "5) David Fink vs. Moreno, Becerra & Guerrero, lnc.. B201957. Mr. Fink appealed from a post- judgment order, and the appellate court affirmed. "6) David Fink vs. Warren Garth KiMn. G039395. Mr. Fink's appeal was dismissed as untimely. "7) David Fink vs. Jacobe Enterprises, 30-2008-0010571 1. Mr. Fink filed, and subsequently dismissed, this action. "8) David Fink vs. Global Natural Stones et. al., G039689. Mr. Fink's petition to the Court of Appeal was summarily denied. "9) David Fink vs. Robe.rt Gaynor et. a/., ~038703. Mr:'Fink's petition to the Court of Appeal was summarily denied. _. "10) David Fink vs. Jerome +$+Stark, G037274. Mr. Fink abandoned his appeal. "1 1) David Fink vs. Sailor Kennedy. G035771. Mr. Fink's petition to the Court of Appeal was summarily denied. "12) David Fink vs. Calstar Properties, LLC, G035730. Mr. Fink's petit~on to the Court of Appeal was summarily denied. "13) David Fink vs Sailor Kennedy, G034765. Mr. Fink's petition to the Court of Appeal was summarily denied. "14) David FInk vs. Sailor Kennedy, G034656. Mr. Fink's petition to the Court of Appeal was summarily denied; and "15) DavId Fink vs. Jose Calderon e t al., G030717. Mr. Fink's petition to the Court of Appeal was summarily denied.

CERTIFICATE OF WORD COUNT

REPLY Brief contains 6, 600 words [excluding cover & tables], is size 13

roman typeface. The undersigqed relied on status bar WORD 2010 word count

October 14, 2014

PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN BERNARDlNO

Stubblefield v. Shivley Court Case: UDDSI 204130 APPEAL Case: ACIAS1400026

The undersigned is counsel for Bonnie Shipley, who is appellant in this appeal. (Appellate Division) and defendant in UDDS 1204130 in limited jurisdiction below.

950 Roble Lane, Santa Barbara, California. 93 103 nanc~duf fvsb@vahoo .c~ -

cell phone: 805-450-0450 fax and phone: 805-965-3492

On the date recited below the undersigned served this document as indicated below:

APPELLANT'S REPLY BRIEF

[x] PERSONAL DELIVERY to Panel & Judge Sachs as Justice Center on 10/14/14

Presiding Panel, Appellatt Division Hon. Michael A Sachs S-28 San Bernardino Justice Center San Bemardino Justice Center 247 West Third Street 247 West Third Street San Bernardino, CA 924 15-0063 San Bemardino. CA 9241 5-0063 tel 909-521-3574 fax 909-521-3563 909-708-8699 fax 909-708-8586

[x] US MAIL SERVICE to ~ t u b b l e f i e l d ~ r o ~ e r t i e s on 10/14/14 addressed to:

Robert Williamson, Esq. for Stubblefield Properties HartKing 4 Hutton Drive, Suite 900 / . .

Santa Ana, CA92707 tel 714-432-8700 " fax.714-546-7457

I am familiar wifh mail,c$llection in Santa Barbara. I deposited the envelopes in the mail at San Bemardino, CA. I know on a party motion. service is presumed invalid if postal cancellation date is more than one day after deposit date on service affidavit.

[x] (STATE) I declare under penalty of perjury and laws of California that the above statements are true. Executed in San Bemardino CA on the date below.

October 14,2014