Hearing: MICHAEL HORESJI VS. THE SUPERIOR COURT OF THE CITY AND COUNTY

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Case Number: CPF-05-505846
Filing Date: Mar-06-2006 11:25
Juke Box: 001 Image: 01397841
RG ON PETITION FOR WRIT OF MANDATE, PROOF OF SERVICE

MICHAEL HORESJI VS. THE SUPERIOR COURT OF THE CITY AND COUNTY

001001397841

Instructions:
Please place this sheet on top of the document to be scanned.Ft de ID

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,

IN AND FOR THE CITY AND COUNTY OF SAN FRANGEG
BY: :

MICHAEL HORESII, CPF 05-505846
Petitioner,
vs,

THE SUPERIOR COURT OF THE
COUNTY OF ALAMEDA,
Respondent.

CAROLINE WESTERMAN,
Real Party in Interest.

PETITION FOR WRIT OF MANDATE
After Failure to Make A Demand Prior to Filing Small Claims Suit
And an Abuse of Discovery During Small Claims Proceedings

EDWARD M. HIGGINBOTHAM LEILA H. MONCHARSH
SBN 231636 SBN 74800

Law Office OF Edward M. Higginbotham Veneruso & Moncharsh
1096 Pine Street, Suite 501 5707 Redwood Rd Suite 10
San Francisco, CA 94109 Oakland, CA 94619

(415) 533-1900 (510) 482-0390

(415) 441-3089 (fax) (510) 482-0389 (fax)
Attomey for Petitioner Horesji Attomey for Petitioner

WestermanTOPICAL INDEX.

Table of Authorities

Petition for Writ of Mandate
Verification

Affidavit of Service

Memorandum of Points and Authorities
A. Statement of Material Facts

B. Questions Presented

C. Arguments and Authorities

1 Respondent Court had no jurisdiction to hear
the matter due to plaintiffs failure to follow
procedure. :

Il. Attorney for the Plaintiff Violated Discovery
Rules Resulting in an Unfair Trial.

D. Conclusion

wow eo ws DH

15PETITION FOR WRIT OF MANDATE

Petitioner respectfully petitions this Court for a writ directed to respondent court
and by this verified petition alleges that:

L
Petitioner is the defendant in the above-entitled action. The plaintiff in the above
action, Caroline Westerman et al, is named in this petition as the real party in interest.

Tl.

Petitioner was sued on December 29, 2003, in small claims court, class action suit for
negligent infliction of emotional distress caused by a public nuisance on petitioner’s
property. Petitioner, completely stunned, never having been contacted by any single
plaintiff, or plaintiff's hired counsel to demand payment or even to communicate a
problematic situation, was unaware there was any problem. Petitioner never received any
demand for payment, by any of the 25 plaintiffs, as required by law.

TIL,

Although the legislature determined the parameters of the discovery in a small claims
act proceeding, see Small Claims Act 116. 310(b), plaintiffs, via their attorney, Leila
Moncharsh conducted a full discovery, equivalent to discovery conducted in an unlimited
civil jurisdiction matter.. Iv.

Defendant, made a written request in the first trial for discovery and attomey for
the plaintiff, Moncharsh refused. Defendant attempted to conduct his own discovery and
was prevented from doing so by the attomey for the plaintiff. Prior to trial, when arriving
in the courtroom it is customary to allow adverse party to review all of the evidence to be
presented against them. Attorney for the plaintiff refused to share the more than 100

documents of evidence, used against defendant to achieve a verdict in the amount of
$62,000.00.

Vv.

At the trial de novo, Defendant retained counsel, Michael Sims. Counsel on behalf
of defendant made a written request for discovery. Attorney for the plaintiff, Moncharsh,
once again refused. Prior to the trial de novo, attorney for the plaintiff refused to share,
the newly expanded, volume of documents presented against Mr. Horesji, which resulted
in a judgment of $80,000.00. A 29% increase from the previous judgment.

VIL
During both trials, attorney for the plaintiff conducted the trial on behalf of
plaintiffs.-There was not one other single party that had any participation in the
conduction of the either trial, outside of attorney for the plaintiffs, Moncharsh.

Vin.

By this petition, an Order is sought from this Court to reverse the decision of the
trial courts for failure to enforce each and every procedural rule outlined by the
appellants. In the alternative, by this petition, an Order is sought from this Court
mandating respondent court to order to, allow defendant an opportunity to negotiate and
settle the plaintiff's claims. If no settlement is reached an Order is sought from this court
mandating respondent court to order to, force plaintiff's to produce all discovery used and
presented against defendant in the past, and all discovery that could be potentially used in
any future retrials. ,VII.
Petitioner is particularly aggrieved by trial courts lack of action, as he now has.
been burdened with over $100,000.00 in damages due large in part to the failure of the
court to enforce the rule of law in the Small Claims Act.

IX. .
The parties directly affected by this proceeding in respondent court are petitioner,
by and through counsel, Edward M. Higginbotham; respondent court, the Superior Court
of the City and County of San Francisco, State of Califomia; and the plaintiffs, by their
counsel, Leila H. Moncharsh. The parties have been served with a copy of this Petition
- pursuant to Code of Civil Procedure section 1107. -

xX.
All the proceedings about which this petition is concerned have occurred within
.the territorial jurisdiction of respondent court and of the Superior Court of the State of
California. .
XI.
No other petition for a writ has been made by, or on behalf of, this petitioner
relating to this matter.
XII.

Petitioner has no other plain, speedy or adequate remedy at law. ‘

WHEREFORE, petitioner prays that:

An altemative writ of mandate issues directing and requiring respondent court to
act in the manner set forth above or, in the alternative, to show cause before this Court at
a specified time and place why the relief prayed for should not be granted;

4and that;
Petitioner be granted such other and further relief as may be appropriate and just.

DATED: * Sl [0
Ry lly submitted,

EDWARD M. alee. —

mney for Petiti
MICHAEL HORESJIVERIFICATION
STATE OF CALIFORNIA )
. y ss.
CITY AND COUNTY OF ) .
SAN FRANCISCO ~ )

I, Edward M. Higginbotham, declare as follows:

Tam an attorney at law licensed to practice in all the courts of California.

In that capacity I make this verification on petitioner’s behalf for the reason that
the facts alleged therein are more within my knowledge than the petitioner's.

I have read the foregoing petition and the exhibits attached thereto or lodged with
this court, and I know the contents thereof to be tue based upon my representation of
petitioner.

I declare under penalty of perjury that the above is true and correct and that this
verification was executed on November 17, 2005 in San Francisco, California.

Algol

WARD M. Highs
Attomey for OeAFFIDAVIT OF SERVICE

I, the undersigned, say:

Tam over eighteen years of age and not a party to the above action. My business.
address is 1096 Pine Street, Suite #501, San Francisco, California 94109.

On November 17, 2005 I personally served copies of the attached Petition for Writ
of Mandate and Request for Stay of Proceedings on the following:

LEILA MONCHARSH
Veneruso & Moncharsh

440 Grand Avenue, Suite 360
Oakland, California 94610-5012

Clerk of the Superior Court

City and County of San Francisco
401 McAllister Street, Room 201
San Francisco, California 94103
For delivery to:

The Honorable

Judge of the Superior Court _

I declare under penalty of perjury that the foregoing is true and correct.
Executed on November 17, 2005 at Francisco, California.MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF MATERIAL FACTS

Petitioner was sued in small claims court, ina class action suit for
$125,000.00. Twenty-five plaintiffs sought recovery for emotional distress
damages that were allegedly inflicted by a public nuisance that was
stemming from petitioner’s property. The public nuisance in this matter
was drug trafficking and all activities that ensue as a result. In the -
complaint, plaintiffs allege that drug activity was a growing, disruptive
nuisance that resulted in severe emotional distress for residents living in the
neighborhood. Complaint further alleges that the actions or lack thereof, by
petitioner to secure his property and abate the nuisance were so inadequate
that defendant was responsible for the distress caused by the drug dealing.
Petitioner, cross-complained on an abuse of process theory.

Plaintiff's failed to meet the prerequisites for filing a small claims
action by failing to demand payment from Mr. Horesji: It is required by the .
Small Claims Act and Alameda County, to make a demand for payment
prior to filing a small claims action.

Plaintiff's counsel conducted a full discovery, as is prohibited in
The Smal! Claims Act, section 116.310(b). Plaintiff's counsel subpoenaed -
by way of her own office a plethora of documents numbering in the
hundreds, Petitioner, aware and concerned about this, made requests to
review discovery, but was refused on two different instances. Attomey for
the plaintiffs, Moncharsh, presented the case at trial, which took
approximately 2 hours. Moncharsh presented over 70 documents, none

"of which defendant had any opportunity to review.

Petitioner presented his own defense in the first action and a

judgment was entered against him in the amount of $62,000.00. At the€ C

initial trial defendant was refused his opportunity to present his cross-
complaint by trial judge. See Exhibit “A”.

Petitioner, after being out maneuvered by attomey for the plaintiff, /
Moncharsh, hired counsel and moved for a trial de novo, which took place
on April 8, 2005. Defense counsel made a written request for discovery to
Ms. Moncharsh but was denied.

Petitioner, once again, was defeated at the trial de novo and an even
greater judgment in the amount of $80,000.00 was entered against him.

On a motion to vacate based on Section 116.725 of the Small Claims
Act which provides for the trial court to vacate judgment if'a conclusion’

was reached based on an erroneous legal basis, trial court refused to hear
"defendant's oral arguments. : .

Presently, an additional 5 claims have been filed against defendant
based on the same legal theories, by some of the same parties who have
already received payment from the actions in questions, in the same venue
and represented once again by Ms. Moncharsh.

_ QUESTIONS PRESENTED

(1) If plaintiffs fail to follow required procedure in bringing a small
claims action, should not any resulting judgment be immediately reversed?

(2). Ifone party oversteps discovery boundaries and as a result obtains a
distinct and unfair advantage over the adverse party in a small claims
action, should not any resulting judgment be immediately reversed?ARGUMENT

: I. :
. RESPONDENT COURT FAILED TO DISMISS ALL CLAIMS
FROM PLAINTIFFS WHO PURPOSELY FAILED TO ATTEMPT
. TOMAKE A DEMAND

Small Claims Act Section 116.320(b), “The claim form shall be a simple
nontechnical form approved or adopted by the Judicial Council. The claim form shall set
forth a place for: .

(1) the name and address of the defendant, if known;

(2) the amount and the basis of the claim;

3) that the plaintiff, where possible, has demanded payment and, in applicable
cases, possession of the property;

(4) that the defendant has failed or refased to pay, and, where applicable, has
refesed to surrender the property; and

(5) that the plaintiff understands that the judgment on his or her claim will be conclusive
and without right of appeal.

Exhibit “B”, is the attached instruction form that is handed to
potential plaintiffs as a set of rules to follow in order to be able to proceed
with a small claims action in Alameda County. Under the second heading,
item 2 reads, “A person who sues in small claims court must first make a
demand if possible. This means that you have asked the defendant to pay,
and the defendant has refused.”

The law on this subject matter is abundantly clear. The reason for the
demand requirement is to preserve the integrity and principles of the smalls
claims courts, a court used to adjudicate minor disputes in a cost effective

and timely manner, a court of the people.

10Cc C

Here there is no contention as to the whether any form of a demand
was ever made, either in writing or any attempt at a verbal demand. Instead
plaintiff's, via their counsel have admitted repeatedly to never extending a
demand or manifesting any actions that could even remotely be interpreted
as an attempt to make a demand. If this verdict is upheld, it validates
plaintiff's actions and essentially gives precedent for doing away with the
demand for payment requirement, which is the polar opposite of the
legislative intent. Small claims courts are too important to the judicial
system and to taxpayers who cannot or choose not to assume the fincancial
burden of exercising their rights in superior court. It is essential to disallow
erosion of the protections afforded by the small claims courts, by ignoring,
sidestepping or refusing to comply with the well-documented procedural
requirements.

Therefore, the lack of a demand precludes plaintiff's from satisfying
the prerequisites to bring a small claims action leaving the trial court
without jurisdiction to hear the matter. The fact that plaintiff retained
council, in this instant a well seasoned and highly qualified advocate with
experience in small claims matter, and still failed to make a demand leads
to the conclusion of malfeasance.

On this basis Appellate Court should reverse the judgment of

the trial court.

uc C

_ABUSE OF DISCOVERY RESULTED IN AN UNFAIR TRIAL
Here we have two separate, distinct abuses, either violation, standing
alone would have resulted in an unfair trial for petitioner, The combination
of the two, Presented by a skilled and motivated advocate resulted in a
completely one-sided, unfair trial. .
Defendants introduced evidence of subpoenas that were issued under
the signature of Attorney Moncharsh pursuant to this small claims case. See
Exhibits “C”, “D” & “E”. These subpoenas were issued from
Moncharsh’s office directly to the Oakland police department and the
Building and Code Enforcement Department demanding an infinite number
of documents for inspection. Inspecting documents is forbidden in the
Small Claims Act, Section 116. 310(b). The Act provides for parties to be
able to subpoena specific documents with the belief that those specifically
cited documents would be used to prove the truth of the matter asserted.
The Small Claims Act specifically forbids inspecting documents in pursuit
of discovering some unknown evidentiary ace to play. That is the reason
attomey for the plaintiff Moncharsh issued subpoenas directly from her
office as opposed to following the proper, legislatively provided procedure
of subpoenaing relevant documents via the small claims clerks’ office. The’
small claims clerk would have denied Ms. Moncharsh “carte blanche”

_ investigative powers, therefore Moncharsh maneuvered to circumvent this

12c C

procedural rule. The language in her subpoenas is identical to a discovery
request in a civil trial. See Exhibit “C", section 3, “Any and all police reports

related to 605 E. 17% Street, Oakland for the time period 1/1/04 to present. Any and all

police or incident reports related to 641-647 E 17 Street, Oakland for the time period

. 1/1/04 to present.”

Petitioner armed with this knowledge and not obtuse as to its
collateral effect it would have on any fair opportunity to present a defense
made repeated attempts to excercise his constitutional rights and preview
what evidence would be used against him. When counsel for defendant,
Michael Sims, wrote to attorney for the plaintiff Moncharsh asking for
copies of all documents she obtained, she refused to provide them. See ~
Exhibits “F”, “G” & “H” , Exhibit “F” is a letter from petitioner in
February of 2004, requesting discovery and information that should have
been included in their suit. Exhibit “G” is a response letter from attorney
for the plaintiff, Moncharsh, denying discovery request and acknowledging
that discovery is not allowed in small claims action. Exhibit “H” is a letter
from petitioner’s attomey during trial de novo.to review all documents used
in the first trial and that were going to be used in the upcoming, new trial.
No response was ever received, nor was lawful discovery request met.

A violation of the Civil Procedure Code Section 116.310 (b) the
pretrial discovery procedures described in subdivision (a) of Section 2019

are not permitted in small claims action.

13c ¢

Section 2019 (2) Any party may obtain discovery by one or more of the following

(1) Oral and written depositions.

(2) Interrogatories to a party

(3) Inspection of documents, things, and places

(4) Physical and mental examinations

(5) Requests for admissions

(6) Simultaneous exchanges of expert trial witness information

The Small Claim’s Act was violated as the Plaintiff's hired counsel,
Ms. Moncharsh conducted a full discovery; instead of following the
outlined small claims court rules. To compound the unfairness, attorney for
the plaintiff's refused both an oral and a written request for discovery. We -
present the argument that plaintiff's should be forbidden to pick and choose
which discovery rules and trial procedures to follow. If plaintiffs conducted
a full discovery in violation of section 116.310 of the Small Claims Act
then they should be compelled to follow all of the rules of discovery in an
unlimited civil jurisdiction. Evidence that attorney for plaintiffs attained
through full discovery, should either be shared in a timely manner with
opposing party as required by law or be barred. Any other action or inaction

results in an unfair trial for petitioner.

14IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO

MICHAEL HORESII, CPF 05-505846

Petitioners,

vs.

THE SUPERIOR COURT OF THE

COUNTY OF ALAMEDA,
Respondent.

CAROLYN WESTERMANN et al.,
Real Party in Interest,

EXHIBITS LODGED IN SUPPORT OF
PETITION FOR WRIT OF MANDATE

EDWARD M. HIGGINBOTHAM. LEILA H. MOCHARSH

SBN 231636 SBN 74800

Law Offices Edward M. Higginbotham VENERUSO & MONCHARSH
1096 Pine Street, Suite # 501 5707 Redwood Road, Suite 10
San Francisco, CA 94103 Oakland, CA 94619

(415) 533-1900 / (510) 482-0390

(415) 441-3089 (fax) (510) 482-0391 (fax)

Attorney for Petitioner Horesji Attorney for PetitionersC C

TABLE OF EXHIBITS

L Exhibit “A”... ... .. Mr. Horesji's counter-claim

i Exhibit“B”....... Instructions & Prerequisites for filing
a small claims cause of action in Alameda County

Uh - Exhibit"C”. ...... Plaintiff's attorney's direct subpoena
made to the Oakland Police Department for business records

IV. Exhibit“D”. .... -. . Plaintiffs attorney's direct subpoena
made to the Building and Code Enforcement Department for business
records

Vv. Exhibit“E”........ Plaintiff's attorney's direct
subpoena made to the Oakland Police Department's BEAT Health
Unit for business records

Vi. Exhibit“F’. 2... . . » Petitioner's first request for
discovery
Vi. Exhibit“G"?........ Plaintiff's attorney's refusal to

comply with rules of discovery

Xl. Exhibit“H”. .... . . Petitioner's attorney's request for
discoveryC C

-_Exnibit “A” 1ee

saemttoomateam Superior Court of Cuifemia, Co. of Alsmeds ‘ SC-125
600 Washin; St. Ozkiand, CA 94607
(510) 268-7737 SMALL CLAIMS CASE NO, WS03 133796
— NOTICE TO PLAINTIFF — 7 —AVISO AL DENANDANTE —
YOU ARE CEING BOLD AY URFENDANT i AUSTED LO eT MANDAnO® EL
Tether matics Tormayloue hecaoct yore, | Seivmninieche Ge feta tancoae my Canara gy avatcor 8
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pe tenan wrthovs torther warring trom Uwe court 7 Geran y ope eames da cu promlnded ail aviza sdicional pot
parte Oe sate Coste.
1 PaTIEROBANnOserT penne, canees, out mmaphone number stecety, ——T T SeR@mTpTAEH00 plume, ootouen, we arpnene 1
Hugh Tyler Ross Mca&eiEogw
cfo 440 Grand Avenue, #360 . $326 Willow Glen Place
Oskland, CA 94610 Castro Valley, CA 94546
(10420390 ENBORBED (510) 727-1091
“Tewptare mas FIL Jetepmane a -
ALAMEDA COURT Tet Mores |
APR 2 2 2004 5326 Willow Glen Place

Castro Valley, CA 94546

CLERK OF THE SEA OMDe
Denty

Ltomwensme: ($10) 727-1091 !

Leashes ra, Py.
Filet. Gus, Heme Sime Na. Expos: 1 see attached sheet for additional pisintils and defendants,
DEFENDANT'S CLAIM

4. Plointt¥ owas ma the sum of $5,000.00 net inchding court costs, bacausa (dascribe claim end dete). .
Plaintiff alleges drug teaficking by Def. & Def.'s tenants without Prove Plaintiff has abused the Smalt Claim
Court ess. Plaintiff is i ing w/contractual obligetions & his actions have resulted in loss of revenue.

awa thave asked ptaltf to pay this money, Dut R hes not been poid_ .

b. [2] I have NOT evied plain to pay this money bacautts (expen: I was threatened with errest should |
PERSONALLY contact plaintiff in this case. Letter of demand was mailed.

3.1 Colnave CZ] neve not iad moro than one cther small claims action unywrero In Caloris during this catendar yaar in
whlon tha amount demanded is more than $2,509. .

4, Lundarstend that
a. Tay talk to ant sttomey about this ctelm, but | cannot be represented by an sttemey ot the bial In the small claims cout.
b. [must eppeer st the time and piace of tial and bring af witnesses, books, recolpts, and other pepers or things lo prove my case.
¢, thave no right of appeal on my etatm, tar t msy sppest @ claim fied by the plain in tus case.
. If carmot etford to poy the foes for ing of service by = sharif or marshat {may fk thel the foes be walved.

5 Ihave received and read the Information sheet explaining some important rights of datendants in the entat cists cour:

6. No plaints in tha mihary service (_) except (name):

Idecters under panaty of pefury undar the Ines of the State of Calfornia thal the foregoing Is tru end correct
Date: Aprils, 2004 o~

Michtel EB, Horejsi Giza
((TVeE OR preert MAME) (RIGA Ture OF OSFENGAMTY

- ORDER TO PLAINTIFF :
You must appeer la this court on the trie! date and at tho tims LAST SHOWN itl THE BOX BELOW if you do not agree wih the
defendants ctaim Bring at witnesses, booxs, receipts, and other papers or things win you to support your Coed.

PATE OAT vst vtact COUNT ube

we 1 if22/od_—thur | 9:00) 600 weshington, Oakland, Dnt 137

FECHA 2

DEL x

JuICIO 2
Filed on (date): * __ Chath, by Deputy

The county provides email cisiens advisor services free of charge. —
a oe DEFENDANT'S CLAIM ANO ORDER TO PLAINTIFF cent areas
"nase Comet Contant

Sets a : (Small Cialena)INFORMATION FOR THE SMALL CLAIMS PLAI
This information sheet is wrtton for he person who suse H bee el Oct at ot come of the rules of and

Some general Information about the small claims court. It may also be helpful for the person who is sued.
WHAT IS SMALL CLAIMS COURT?

You go to court, but you cannot have a lawyer In court, Your claim cannot be for more than $5,000 (“see below). H you have a claim for
more than this amount, you may sue in the civil division of the trial court or you may sue in the small claims court and give up your right
to the amount over $5,000. You cannot, however, file more than two cases in small claims court for more than $2,500 each during a

calendar year,
WHO CAN FILE A CLAIM?

1, You must be at least 18 years old to file a claim. If you are
not yet 18, tell the clerk. You may ask the court to appoint a
guardian ad tem. This is a person who will act for you in
the case. The guardian ad litem Is usually a parent, a
relative, or an adutt friend.

2. Apperson who sues in small claims court must first make a
emand i possible. This means that you have asked the
defendant to pay, and the defendant has refused. tf your claim
1s for possession of property, you must ask the defendant to
give you the property.

3. Untess you fall within two technical you must be
the original owner of the claim. This means that If the claim
Is assigned, the buyer cannot sue in the small claims court.

‘You must also appear at the small claims hearing yourself
untess you filed the ciaim for a corporation or other entity
that is not a natural person.

tf a corporation files a claim, an empicyee, officer, or director
Must act on ts behalf. tf the claim Is fied on behalf of an
association or other entity that Is not a natural person, a
regularly employed person of the entity must act on Its behaff.

purpose of representing

sma claims court. You must file a declaration with the
Court to appear In any of these instances. (See
Authorization to Appear on Behalf of Party, form SC-109.))

WHERE CAN YOU FILE YOUR CLAIM?
‘You must sue in the right court and location, This rule le cafled +3. Where the contract was signed or carried out,

venue. Check the court's local rules if there Is more than one
court location In the county handling smafl claims cases,

If you file your claim in the wrong court, the court wil dismiss
‘the claim unless al defendants personally appear at tha hearing
and agree that the claim may be heard.

‘The right location may be any of these:
1. Where the defendant lives or where the business involved Is
located,

2, Where the damage or accident happened;

4, I the defendant fs a corporation, where the contract was
broken;
5S. For a retal Instafiment account or sales contract or a motor

vehicle finance sale:

8, Where the buyer lives;

b, Where the buyer lived when the contract was entered Into;
G. Where the buyer signed the contract; or

d. Where the goods or vehicle are permanently kept.

SOME RULES ABOUT THE DEFENDANT (Including government agencies)
1. You must sue using the defendant's exact legal name. ifthe 2. Ifyou want to sue a government agency, you must first file a

defendant Is a business or a corporation and you do not know
the exact legal name, check with: the state or local licensing
agency; the county clerk's office; or the Office of the Secretary
of State, corporate status unit, Ask the clerk for help if you do
fot knew how to find this Information. # you do not use the
defendant's exact legal name, the court may be able to
correct the name on your claim at the hearing or after the
Judgment.

ctalm with the agency before you can file a lawsuit in court.
‘Strict time Smits apply. if you are In. a Department of
(Corrections or Youth Authority taciity, you must prove that the
agency denied your claim. Please attach a copy of the dental
to your claim.

HOW DOES THE DEFENDANT FIND OUT ABOUT THE CLAIM?

‘You must make sure the defendant finds out about your
lawsuit. This has to be done according to the rules or your case
may be dismissed or delayed. The correct way of telling the
defendant about the lawsutt Is called service of process. This
means giving the defendant a copy of the claim. YOU CANNOT
DO THIS YOURSELF, Here are four ways to serve the
defendant:

1. Service by a law officer — You may ask the marshal or
shertfl to serve the defendant. A fee will be charged.

2. Process server — You may ask anyone who Is nota partyin
your case and who ls at least 18 years ol/to serve the
defendant. The person !s called 2 process server and must
Personally give a copy of your claim to the defendant. The
person must also sign a proof of service form showing when

the defendant was served. Registered process servers will do
this for you for a fea. You may also ask a friend or relative to
dott,

Certified mail — You may ask the clerk of the court to serve
the defendant by certified mall. The clerk wil charge a fee. You
should check back with the court prior to the hearing to see if
the receipt for certified mail was retumed to the court. Service
by certified mail must be done by the clerk's office except
In motor vehicle accident cases invotving out-of-state
defendants.

Substituted service — This method lets you serve another
person instead of the defendant. You must follow the
procedures carefully. You may also wish to use the marshal or
sheriff or a registered process server.

* The $3,000 ima does not apply, and a $4,000 Ima applies, If a “defendant guarantor ... . is required to reepond besed upon the defeull, actions, or omissions of another

($2,500 Il the defendant guarantor does not charge a fee for the service}.

(Continued on reverse)

Pepe tof?

INFORMATION FOR THE PLAINTIFF
(Small Ctalms)

‘Cade of Covi Proven,
GH 116.110 of sac, 116.220{e4, 126.540(0)
tow courthie.ca.govBoayetere men

.. C

“A. Substituted service (continued)
Acopy of your claim must be feft
~at the defendant's business with the person In charge;

OR
~at the defendant's home with a competent person who Is at
least 18 years old. The person who receives the claim must
be told about Its contents. Another copy must be mailed, first
class, postage prepaid, to the defendant at the address where
the paper was left. The service Is not complete until 10 days
after the copy Is mated.

C

No matter which method of service you choose, the defendant
must be served by a certain date or the trial will be postponed. If
the defendant fives in the county, service must be completed at
least 15 days before the trial date. This period Is at least 20 daysif
the defendant fives outside the county.

‘The person who serves the defendant must sign a court paper
showing when the defendant was served. This paper Is called a
Proof of Service (lorm SC-104). It must be signed and returned to
the court clerk as soon as the defendant has been served.

WHAT IF THE DEFENDANT ALSO HAS A CLAIM?

Sometimes the person who was sued (the defendant) will _siso have a claim against the person who filed the lawsuit (the plaintiff).
‘This claim Is called the Defendant's Claim, The defendant may file this claim in the same lawsuit. This hetps to resolve all of the

disagreements between the parties at the same time.

ff the defendant decides to file the clalm in the small clalms court, the claim may not be for more than $5,000 (‘see reverse). If the
value of the clalm is more than this amount, the defendant may elther give up the amount over $5,000 and sue In the small claims court
of file a motion to transfer the case to the appropriate court for the full value of the claim.

‘The defendant's claim must be served on the plaintiff at least § days before the trial. If the defendant received the plaintiff's claim 70
days or less before the trial, then the claim must be served at least 1 day before the trial. Both claims will be heard by the court at the

same time.

WHAT HAPPENS AT THE TRIAL?

Be sure you are on time for the trial. The small claims trial fs Injormal. You must bring with you all witnesses, books, receipts, and
other papers of things to prove your case, You may ask the witnesses to come to court voluntarily. You may also ask the clerk of the

court to Issue a

A subpoena fe 4 court order that requires the witness to go to trial. The witness has 4 right to charge a fee.

for going to the trial. If you do not have the records or papers to prove your case, you may also get a court order prior to the trial date
requiring the papers to be brought to the trial. This order ts called a Smal Claims Subpoena and Declaration (form SC-107),

tfyou settle the case before the trial, you must file a dismissal form with the clerk.

The court's decision is usually mailed to you after the trial. It may also be hand delivered to you when the trial Is over and after the
Judge has made a decision. The decision appears on a form called tha Notica of Entry of Judgment (form SC-130).

WHAT HAPPENS AFTER JUDGMENT?
‘The court may have ordered one party to pay money to the other party, The party who wins the case and coflects the money Is

called the judgment creditor. The party who loses the case and owes the money fs called the judgment

debtor. Enforcement of the

Judgment Is postponed until the time for appeal ends or untif the appeal Is decided. This means that the Judgment creditor cannot

‘collect any money or take any action until this pariod Is over. Generally both parties may be represented by

tawyers after judgment

More Information about your rights after Judgment is available on the back of the Notice of Entry of Judgment form. The clerk may also

have this Information on a separate sheet.

HOW TO GET HELP WITH YOUR CASE

1, Lawyers —Both parties may ask a lawyer about the case,
but a tawyer may not represent either party in court at the
small claims trial. Generally, after Judgment and on appeal,
both parties may be represented by a lawyer.

2. Interpreters —{f you do not speak English, you may take a
family member or friend to court with you. The court should
keep a [ist of interpreters who will interpret for you. Some
interpreters charge a reasonabte or no fee. Hf an Interpreter ts
not available, the court must postpone the hearing one time
only so that you have time to get one.

3. Walver of fees —The court charges fees for some of its
procedures. Fees ara also charged for serving the defendant
with the claim. The court may excuse you from paying these
fees H you cannot afford them, Ask the clerk for the
Information Sheet on Waiver of Court Fees and Costs (form
982(a)(17)(A)) to find out I you meet the requirements so thet
you do not have to pay the fees.

4. Night and Saturday court —tf you cannot go to court
during working hours, ask the clerk if the court has trials at
night or on Saturdays.

5. Parties who are In Jaif —if you are in jail, the court may
excuse you from going to the trial. Instead, you may ask
another person who !s not an attomey to go to the trial for
you. You may mall writen dectarations to the court to support

case.

6. SCeommodations it you have a disability and need
assistance, please ask the court immediately to help
sccommodate your needs. If you are hearing impaired and
need assistance, please notify the court immediately.

7. Forms —You can get small claims forms and more
information at the Califomia Courts Self-Help Center Web site
(1ww.courtinfo.ca.gov), your county taw library, of at the
courthouse nearest you.

8. Smail claims advisors —The law requires each county to
provide assistance In small claims cases free of charge.

(Small claims advisor information):

‘90-150 [Plav, July 1, 2003)

INFORMATION FOR THE PLAINTIFF

Pope Retz.

(Saft Ctalms)a Vorays \

982(a)(15.2)
(FOR COURT USE OMY

"ATTORNEY OR PARTY WITHOUT ATTORNEY (aon, slate bay eummber, ad ocean
[.. Leita H. Moncharsh (74800)
Veneruso & Moncharsh
440 Grand Ave., STE 360
Oakland, CA 94610

revepHont no: (510) 433-0390 X 2 Faxon: (510) 433-0389
ATTORNEY FOR paome Plajntifts

THAME OF COURT:
* Alameda County Superior Court
STREET MOORESR 1921 Oak St.
MARINO AOORESS. Oakland, CA
cook:

DEFENDANT/ RESPONDENT: Horejsi.

DEPOSITION SUBPOENA CSEMMOER
For Production of Business Records WS03133908

THE PEOPLE OF THE STATE OF CALIFORNIA, TO/neme, address, end telephone number of deponent, # known):
Custodian of Records, Oakland Police Department, 455 Seventh St, Oakland 94607

1._YOU ARE ORDERED TO PRODUCE THE BUSINESS RECORDS described in ttam 3, a8 follows:
To (name of deposition officer. LEILA H. MONCHARSH.
‘On (dstey. December 8, 2004 At (timey: 10:00 A.M.
| _ Location (adoressy. 449 GRAND AVE., STE 360, OAKLAND, CA 94610
Do not release the requested records to the deposition officer prior to the date and time stated above.

©. (I by detvering 2 trus, legible, end durable copyof the business records described in Rem 3, enclosed in a sesied inner
wrapper with the tile and number of the ection, name of winess, and dale of subpoena clearly wiltien on i. The inner
‘wrapper shail then be enciosed in an ouler envelope of wrapper, sealed, and malied to the deposition officer at the
akiress Hi hom 1.

b. (J by delivering a true, legble, end durable copyof the business records described In Hem 3 to the deposition officer at the
witness's address, on receipt of payment in oash or by check of the reasonabie costs of preparing the copy, ss determined

business hours.

2. The records are to be produced by ihe dete and time shown in tem 1 (but not sooner than 20 deys efter the issvence of the
epostion subpoene, or 14 days afer service, whichever date is later}. Ressonsdie costs of loceting records, making them
avaliable or copying them, and postaps, if any, are recoversble as set forth in Evidence Code section 1563(b). The records shel be
accompanied by an affidevil al the custodian or other qualified witness pursuant to Evidence Code section 1561.

3. The records to be produced are deecribed ss follows:

‘Any and all potice of incident reports related to 605 E. (7th Street, Oaklead for the time period 1/1A}4 to present
Anv and all nolice or incklent rennres related #1 641-647 B. 87th St. Oakland foe the time nerind 1/1/04 in orcxent
J Continued on Attachment 3.

4 IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER

CODE OF CIVIL PROCEDURE SECTION 1925.3 OR 1988.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN

SERVED ON YOU, A CQURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE
AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE GONSUMER OR EMPLOYEE RECORDS.

DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE
FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY.

Date Issued: November 19, 2004

wo. Heilg He Moncbarsd oo. 6s Vor ee De, pe

((TYPE.OR PRENT WAM) (ROMA TURE OF PERSON ISSUING SUBPOENA)
‘Attorney for Plaintiffs
omy
(Proof of sarvica on raverns)
Famneoret ie ura DEPOSITION SUBPOENA FOR PRODUCTION Come a Proare
eaaene ner Bey PO OF BUSINESS RECORDS eeeceecsd coannen ETRY

GBCETHPSTbTIOL WOMd YIBt2d Se8e-6-NONa “

962(a)(15.2)
ATTORedEY OR PARTY WATHOUT ATTORNEY Pama, seat bar aumber, eng acme: F0m COURT USE OLY
t. Leila H. Monchersh (74800)
VENERUSO & MONCHARSH
~— 440 Grand Ave., STE 360
Oakland, CA 94610

TELEPHONE NO: ($10) 433-0390 ext. 2 Faxwa: (510) 433-0389

ATTORNEY FOR emer, Plaintiffs

(NAME OF COURT. .,
Superior Court of California, County of Alameda Small Claims
‘STREET ADOREBS: 609 Washington St, Ept. 137

MAUNG ADORESS. Oak tend, CA
Crry AND 2° COoE:

RANCH MAME: Aller lustice Center
PLAINTIFF PETITIONER: CAROLYN A. WESTERMAN

OEFENOANT/ RESPONDENT: MICHAEL AND PATRICIA HOREJSL

DEPOSITION SUBPOENA (CASE NUMBER
For Production of Business Records WS03133908

THE PEOPLE Of THE STATE OF CALIFORNIA, TO (name, address, and telephone number of deponent, if known):
CUSTODIAN OF RECORDS FOR CEDA - BUILDING AND CODE ENFORCEMENT DEPARTMENT

1, YOU ARE ORDERED TO PRODUCE THE BUSINESS RECORDS described In Item 3, as fatlows:
To (name of deposition officer}: Leite H. Moncharsh
On (dete): FEBRUARY 16, 2004 At (timer BY MAIL - SEE BELOW
Location (address): VI IARSH, 440 GRAND AVE., STE 360, OAKLAND, CA 9461:
Do not release the requested records to tha deposition officer prior to the date and time stated above.

1». (7) by cetvering a true, legible, and durable copyof the business records described in item 3, enclosed in a sealed inner
wrapper with the tite and number of the ection, name of witness, and date of subpoena cisarty written on i. The mner
wrapper shail then be enciosed In an cuter envelope or wrapper, sealed, and malted to the deposition officer at the

Ss address in item 1.

b. (2) by dotivering & true, legible, snd durable copyol the business records described In Kem 3 to the deposition officer at the
witness's ackirees, on recelt of payment in cash or by check of the reasonable costs of preparing the copy, as determined
under Evidence Code section 1563(b).

. [} by making the original business records described in item 3 available for Inspection st your business eddress by the
atiomey’s representative and permitting copying at your business address under reasonable conditions during normal
dusingss hours.

2. The recorus are to be produced by the date end tine shown in item 1 (but not sooner than 20 days efter the issuance of the
daposition subpoene, or 1§ days after service, whichever date [s Isteq. Reasonedie costs of locating records, making them
avaiable or copying them, end postage, i any, are recoverable as set forth in Evidence Code section 1563(b). The records shall be
accompanied by an affidavit of the custodian or other qualified witness pursuent to Evidence Code section 1561.

4. The records to be produced are described ss follows;

1. ANY AND ALL RECORDS, DEFICIENCY NOTICES, MEMOS AND CORRESPONDENCE RELATED TO BUILDING
“ODE VIOLATIONS AT 605 E. 17TH ST.. OAKLAND FROM JANUARY 1.2600 TO THE PRESENT.
Continued on Attachment 3.

4. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER
CODE OF CIVIL PROCEDURE SECTION 1685.3 OR 1986.8 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN
SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE
AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS,

DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT, YOU WILL ALSO SE LIABLE
FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY.

Oate issued: JANUARY 14, 2004

.
wees « LEILAT,MONCHARSH, 0... an oan OE,
(TYPE OF PRINT HAE} [SIGNATURE OF PERS: ‘SUBPOENS)
mney
~ (Proof of service on reverse}
Fors Atop erry om DEPOSITION SUBPOENA FOR PRODUCTION Coosa Gea rena.
seaiis oor dora 1 2 OF BUSINESS RECORDS [Sireeeoerd coannen dhs

od 68QETbbSTbT OL *WOMd U6S?T@ = $282-6-A0Ne82(aj(18.2)_

"ATTORNEY OR PRATY VESHORT ATTORMEY Plas, siete ber enctthe, end acter ‘OR COUNT URE ORLY

Onkiand, CA 94610 -
‘Tearoom an: (510) 433-0990 ext. 2 rece: (510) 433-0389
arvosvaty 208 tome: Phaintifis

eaaal OF CONT:
prnaer ccna: Sepertar Com of Ca Rtornies Commty of Abeewecin
Wane KOMEN. Oukdead, CA $4607

DEFENDANT! RESPONDENT: MICHAEL AND PATRICIA HOREISI

DEPOSITION SUBPOENA : Cn nee
Fer Production of Business Records” ‘WS03 133908

‘THE PEOPLE OF THE STATE OF CALIPORIGA, TOfsamne, acidrees, end telephone number of deporvent, if knowa):
BEAT HEALTH UNIT, OAKLAND POLICE DEPARTMENT, 2651 73rd St, OAKLAND, CA 94605 .

4. YOU ARK ORDERED TO PROOUCE THE BUSINESS RECORDS described in Hons 3, 20 follows:

To (seme of dapoalion offcer: CUSTODIAN OF RECORDS POR BEATHEALTHUMT _
On (dele! FEBRUARY 16,2004 * At (leek: BY MAIL -SEE BELOW

fectiresst VE! AN

‘Do not remase the requested records te the depesition officer prior te the dste and Gms stated above.

= [C2] by detvaring 2 tr, lepthte, and durable copyel the business records described in tien 5, enciossd in a seeled inner

. wrapper Wih the tite and number of he ecios, name of winess, end dete of subpoene clearly vation on R. The inner
wrapper shail then be enclosed in en outer eavelops or wrapper, susied, snd mailed to fhe deposition officer at the
axtdress ip Rens 1. " : :

2. CX] by delivering s tus, legible, and durable copyo! the business records decried In tent $ to the deposition officer at the
wrinaas’s address, on receia of payment is cash orby check of the resonable costs of prepering the copy. 9s determined
under Evidence Code section 158%). ° -

S 12 by mating the original business records dencibed in Tham 3 evedtable for nepecton at you tasiness address by the
aXomey’s representative end permiting copying ot your businees acidrass under reseonebie condifions duriyg normal
business hours.

2 The records tre to be produced iy te dale aad Reve shows: is amt 1 (bat aot sooner trav 20 eye alter tte lesuance of 0
Oapostion subpoena, or 15 "afer service, whichever dala Is jeter}. Peesonetie costs of iovaling records, making farm
avamabte or copying fam, [postege, if any, are recoverstle as set forés in Evidanne Code section 1S53bj. The records shel be
sccompanied by an effdard of the custodian or other qualified miners porsusnt to Evidence Cade saction 1561,

3. Tha recerda to be produced are decribed ee fotiows: .
ANY EDITED VIDEOTAPE OF SURVEILLANCE TAKEN IN 2003 OF 605 E. 17TH ST.

THES AS A CUSTODIAN OF EMPLOYEE RECORDS |
Hee Aen. PROCEDURE SECTION 1988.3 OR 1995.8 AND A MOTION TO QUASH OR AN OBJECTION HAD BEEN
Reet ot TOU. A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OF EMTLONSE
WWUST DE OBTAINED BEFORE YOU ARE REQUIRED TO PROOUCE CONSUMER OR EMPLOYEE RECORDS.

SISCEEDNENGE OF THES SUBPOENA MAY BE PUNSHED AS CONTEMPT BY THES COURT, YOU WILL ALSO BE LIABLE

TOR THE SUM OF PIVE HUNDITED DOLLARS AND ALL DAMAGES RESULTING PROM YOUR FARLURE TO OBEY.

Dake besued: JANUARY 14,2008

A‘d GEQSTHPSTOT AOL swoels Yeat2a SeG2-6-0NNOU-9-2225 82:2GA FROM: T0:241544132689 P.14

Cc C

Michael B. Horejsi

P.O. Box 2883
Castro Valley, CA 94546
February 3, 2004
Leita H. Moncharsh
Veneruso & Moncharsh
440 Grand Avenue, #360
Oakland, CA 94610
Re: SOS E. 17th Street, Oakland. CA; Case No, WS 03133908
Dear Ms. Moncharsh:

As your address and phone number appear for all named plaintiffs on the
documents filed against me in the aboverreferenced case, I (recently) requested the
residence address and phone numbers of those individuals who are suing me in Small
Claims Court. You indicated that you are representing them and that all communications
with them must be made through you.

First, in compliance with the Small Claims Court rules, you cannot represent these
individuals prior to or during the hearing, you can only advise them. To do so,
completely circumvents the Smal! Claims’ Process. It is also malicious and effectively
Prevents me from defending myself, preparing my case with the Necessary information
and facts, and preparing subpoenas for information, which may only be referenced by
their home address.

By your ections, you are violating my constitutional rights of freedom of speech
and the right to petition for the redress of grievances.

T again request that you please provide me with the residence address and phone
number of all those individuals who have filed suit against me. This information can be
sent to my facsimile number, (510) 727-1091,

TET have not received this information by February 6, 2004, I will file a letter with
the court requesting judicial intervention and sanctions,

Sincerely,

Michael E. Horejsi
MEH:secC Cc
- Eyhibit WG 4Enet P

March 11, 2004
Mr. Michael E. Horejsi
P.O. Box 2883
Castro Valley, CA 94546

RE: Drug Abstement et 605 6 17 Street
Dear Mike: :

Your letter of yesterday is confusing. Previously, we offered to shere our set of
police reports with you in exchenge for your enfering into stipulation that you would be
execcising your right to challenge the pro tem Judge. This would allow the court to
continue the matter an April 22, 2004 to a datc when a judge [s available to hear it and
would avoid having 25 plaintiffs come to court just to watch you fill out the challenge
forms. My understanding wes that yoo did not wane the pro tem to hear this matter

‘At first you seerned agrosable and then left 2 message that you had spoken with
an attorney who apparently advised you that it would be better fo instcad leave it up in

_ the air as to what you intended to do, thus forcing all the plaintiffs Into court on April 22,

2004, In your message, you added that as « result of your message, I might not want to
share the police reports with you. ‘You elso did not show up for our meeting oa Monday

As to number 26, & police officer recently entered the unit, arrested « man wha
gave the same building as his address; he had possession of three crack plpes. Your
Tenant told the afflcer that people on drugs often come tothe unit and use drugs. Ina
prior police report, the same tenant Indicated that he {s : “self-employed” and working out
of the unit. We have seen three other men living fn the unit with him, As to unit one,
despite that you rented to one worm with « child, there are three men residing in this
unit and there js a good deal of short stay foot traffic. .

‘To sll of the information above and other observations, you deny that any of it Is
true. Your position also is that if you attempt to evict any tenant, the tenant will sus you
and win under the Just cause eviction ordinance. Thave offered to produce neighbors and” you-9-2005 geresn FROM: c TA 154109 P.18

Mr, Michael €. {lorejsi
P.O. Box 2883

Castro Valley, CA 94546
Re: 605 £17" St,
March 11, 2004

Pege2

even serify myselfon yoor behalf however you are adentand that you will not evict my.
of the tenant.

Srrall elas docs not allow for cacoverys however a uperlar court ection woutd
allow you to take depositions, exk written questions, demand demand production of all
documents, ete, Given that we have gotten exactly nowhere with resolving the issucs and
thet you feel disinclined to evict anyone t seems the mete practice] solution would be to
file m separate action in superior court seeking injunctive relict, only.

G ‘We will select four or five plaintiffs from the xmall claims case and within the-
. next week, file e superior court complaint sccking injunctive relief, Le., that the court
close the building. ‘We will continue to purrue the small clams case at the same time
- | which will allow you to have discovery in both cases and at the same time gets
" resolution to our dispute, These two cases legally cannot be consolidated but the judges
will resolve lhe fesuet which I'm mare you would Uke es couch as the neighbors. |

Afler we file the superior court action, we will immediately schedule a motion for
what's called 9 prelirainary injunction. This will allow us to produce our evidence for a
Taw and motion judge, If the judge does not agree with us that we are entitled to closure
of the building, that will resolve that issue. If the judge docs agree, of course we will ask
that the order be cfifcetive forthwith. This hearing should vecur about the time the smal!
claims case comes up, allowing both sides to resolve a