Preview
~ VL-120
- [ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NUMBER: 210625 . FOR COURT USE ONLY
Name: Cunningham
FIRMNamE: Archibald
STREET ADDRESS: 1316 S. 64th St. ; I
cry: West Allis state: WI zip CODE: 53214 J K Dd
TELEPHONE NO.: 805 471-1110 FAX NO. ‘San Francisco County Superior Court
E-MAIL ADDRESS: archcunnghm@yahoo.com . .
|ATTORNEY FOR (namey:_ self-represented . ‘ MAY 22 2019
[_] COURT OF APPEAL, APPELLATE DISTRICT, DIVISION *
SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco F THE COURT
STREET ADDRESS: 400 McAllister St. =
MAILING ADDRESS:
‘Deputy Clerk
cITy AND IP CoE: San Francisco, CA 94104
BRANCH NAME: Dept. 501, Real Property/Housing/Evictions
PLAINTIFF/PETITIONER:
In re Michael Coombs
APPLICATION FOR ORDER TO VACATE PREFILING
ORDER AND REMOVE PLAINTIFF/PETITIONER FROM CASE NUMBER:
JUDICIAL COUNCIL VEXATIOUS LITIGANT LIST CPF 10-510760
‘Important, please read: This application must be filed in the court that entered the prefiling order, either in the action in which the
prefiling order was entered or in conjunction with a request-to the presiding justice or presiding judge to file new litigation under
Code of Civil Procedure section 391.7. If you have made an application to vacate a prefiling order that was denied, you may not
make another application to vacate in any California court until at least 12 months after the denial.
41. Ihave been determined to be a vexatious litigant under the California Code of Civil Procedure section 391. This application
requests that the court vacate its prefiling order and order my name removed from the statewide vexatious litigant list.
2. The prefiling order or orders were issued in the following case or cases (list all):
Court: SF Superior Ct, Housing Division Court: SF Family Law Court
Case Name: In re Michael Coombs Case Name: Wang v. Cunningham.
Case Number: CPF: 0-510760 Case Number: FDI03-753770
Date prefiling order entered: 7/16/2015 Date prefiling order entered: March 5, 2009
[21 Continued on Attachment (form MC-025).
3. I request that the prefiling order be vacated under Code of Civil Procedure section 391.8. (Describe below the material change in
the facts on which the order was granted and how the ends of justice would be served by vacating the order.)
STATEMENT OF FACTS:
* On July 17, 2015, Judge Quidachay issued an prefiling order (Exhibit A) against me even though | was the "defendant" in the
underlying arbitration case and the issue of Attorney John Scott McKay's extrinsic fraud on the arbitration has never been
litigated: (Extrinsic fraud is not an affirmative defense that I could have been asserted at the March 3, 2010 arbitration, where the
extrinsic fraud had occurred, or at the April, 2011 hearing on Attorney McKay's motion to confirm the arbitration award; *See,
Lazzarone v. Bank of America (1999) 181 Cal. App. 3d 581, 595). When I did have my attorney file a lawsuit for breach of the
2009 CC&Rs and Bylaws and extrinsic:fraud, Attorney McKay had the lawsuit dismissed even though | was represented and
shielded from the Vexatious Litigant Statute by the fact of representation. (*See CGC 11-511994). In fact, Attorney McKay has
filed no fewer than 14 vexatious litigant motions against me to deny me court access to challenge his extrinsic frauds.
*See, Attached Exhibits and Points and Authorities.
Continued on Attachment (form MC-025). ‘
t : Page 1 of 2
om groves fr Optional Use APPLICATION FOR ORDER TO VACATE PREFILING Gace fev Paces, 83917
Vts120 Rew September 1, 2018 ORDER AND REMOVE PLAINTIFF/PETITIONER FROM courts ca.90¥
JUDICIAL COUNCIL VEXATIOUS LITIGANT LISTVL-120
PLAINTIFF/PETITIONER: CASE NUMBER:
4. [5€] Ihave not made an application for an order to vacate a prefiling order in the last 12 months.
5. On Attachment (form MC-025) is a list of every case filed in the last five years in which I've been a plaintiff, cross-complainant, or
defendant, the approximate number of motions | filed in each case, and the number of requests for new litigation that | have filed.
(Include case name, case number, court in which filed, and date filed.)
| declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
S419 Archibald Cunningham b
(DATE) {TYPE OR PRINT NAME OF DECLARANT NW
i aS
\
Vi-120 (Rev. Seplomber 4, 2028] APPLICATION FOR ORDER TO VACATE PREFILING Pate 2012
ORDER AND REMOVE PLAINTIFF/PETITIONER FROM -
JUDICIAL COUNCIL VEXATIOUS LITIGANT LIST
For your protection and privacy, please press the Clear _ pa
This Form button after you have printed the form. [Print this form.| | Save this form | (Clear-this form.MC-025: Application to Vacate Prefiling ‘Order
SHORT TITLE: : CASE NUMBER:
In Re Michael Coombs . : CPF 10-510760
~ VL-120. 3. (continued). , :
> STATEMENT OF FACTS
In fact, Attorney McKay requested a prefiling in order to prevent me from challenging
non-lawyer court-appointed receiver Kevin Singer’s attempt to enforce his “fécially void”
Judgment for a “forced sale” of my condo under a 2007 TICA that “terminates” upon condo-
conversion and énly provides a remedy of a “forced sale” of a ‘defaulting Cotenant’s cotenancy
share.” Further, Attorney McKay requested the prefiling order to prevent me from litigating the
issue of when the 2007 TICA “terminated,” because he churned up over a $1,400,000 of attorney
fees as Mr. Coombs testified recently in the State Bar proceeding (No. 14-0-0659).! He relied on
the 2007 TICA as the “contractual basis” under CCP §1033.5(10) ‘to recover his attorneys fees as
“costs” for filing more than 14 vexatious litigant motion at both the trial and appellate courts.
1
https://webapps.sftc.org/ci/CaseInfo.dll?CaseNum=CPF105107608&SessionID=36DCAFEF173BC934F77F986B2ABA8
BA35364A99A
DGMENT
nOUIBAC HIS cL
‘COST BILL- AFTER JUDGMENT, $23,4
{CO8TS: PILED: BY. PETIIO! OK
REI OM! DEFENDANT: CUNNINGHS
3. INTEREST, $10,63;
1, Application to Vacate Prefiling Order , \Attorney McKay also wanted to prevent me from challenging non-lawyer receiver Kevin
Singer's attempt to “enforce” his facially void” Judgment by arguing that he had the right to
practice law as a receiver even though he was not licensed to practice and the right to immediate
possession of my real property under his reading of CCP §568, the “general powers” statute for
receivers. I tried to explain this to Judge Quidachay and filed a pleading on May 6, 2014 citing
the case law. (Exhibit B). Of course, Judge Quidachay did not have the authority to negate the
criminal misdemeanor’ of unlicensed practice (Bus. & Prof. Code §6106(a)) by reading section ~
568 as an exception to the State Bar Act so that he could allow non-lawyer receiver Singer to
commit the misdemeanor of unlicensed practice. Further, Judge Quidachay did not have the
authority to read section 568 as giving a non-lawyer receiver “possession” of an owner’s condo
in violation of the Enforcement of Judgment Act (EOJ) and the Unlawful Detainer Act and
Supreme Court and appellate precedent.? Section 681.010(c)‘ of the EOJ Act sets out clear
“procedures that “possession” of real property may only be obtained by use of the Unlawful
Detainer Act (CCP §712.010; §715.010). Under case law, only an owner, landlord, or new
In People v. Farley (2009) 46 Cal. 4 1053, 1119, the Supreme Court noted that it was the
“exclusive authority” of the Legislature, not trial courts to expand or limit the definition of
crimes: “We repeatedly have observed that "“"the power to define crimes and fix penalties is
vested exclusively in the legislative branch." (Keeler v. Superior Court{ (1970)] 2 Cal.3d 619.
631 [87 Cal.Rptr. 481, 470 P.2d 617] ...; [citations].)" (Chun, supra, 45 Cal.3d at p. 1183.) The
courts may not expand the Legislature's definition of a crime (Keeler v. Superior Court, supra, 2
Cal.3d at p. 632), nor may they narrow a clear and specific definition. ”
> *See, Asuncion v. Superior Court (2009) 108:Cal. App. 3d 141.”We are prepared to hold
homeowners cannot be evicted, consistent with due process guaranties, without being permitted
to raise the affirmative defenses which if proved would maintain their possession and ownership.
Such a procedure would be as unfair as the situation forbidden in Vargas...”
*CA Civ Pro Code § 681.010 (2017); Except as otherwise provided by statute:
(c) A judgment for possession of real property is enforceable as provided in Chapter 3
(commencing with Section 715.010) of Division 3.
2, Application to Vacate Prefiling Orderpurchaser has “‘standing” to evict.> Judge Quidachay had no authority to ignore these*statutory
provisions and give.non-lawyer receiver SINER “possession” by a self-drafted writ of possession
(Exhibit C) which he scribbled a “stay-away order,” as if that affected a lawful eviction on the
X
basis of a valid writ.®
POINTS AND AUTHORITIES
As noted above, Attorney McKay filed a prefiling order in the trial court in 2015. after
being turned back by the appellate court in 2013 (A131914), which denied his section 391.1
motion.’ Although Attorney McKay knew full well that the “prefiling order” in the trial court
was not supported by the “plain language” of the VLS or case law just as it wasn’t in the
appellate he, he demanded one and Judge Quidachay was too happy to oblige him. The issuance
of that order was not valid then is should be unequivocally so now.
5 Berry v. Society of St. Pius X (1999) 69 Cal. App. 4" 354, 358: The procedure in unlawful detainer "is covered in
[Code of Civil Procedure section] 1161 et seq. The remedy, as broadened by statutory changes, is available in three
situations: [{] (a) Landlord against tenant for unlawfully holding over or for breach of the lease (the traditional and
most’ important proceeding). ([Code Civ. Proc., §] 1161;...) [{] (b) Owner against servant, employee, agent, or
licensee, whose relationship has terminated. ([Code Civ. Proc., §] 1161(1);...) [] (c) Purchaser at sale under
execution, foreclosure, or power of sale in mortgage or deed of trust, against former owner and possessor. ([Code
Civ. Proc., §] 1161a;...)" (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 599, p. 69.) The statutory situations in
which the remedy of unlawful detainer is available are exclusive and the statutory procedure must be strictly
, followed.
°in People v. Thompson (1996)-43 Cal. App. 4th 1265, 1270, the Court of Appeals made that clear: “In the present.
case, defendant had not been lawfully evicted. The landlord simply obtained a harassment restraining order
directing defendant to stay away from the boarding house. The restraining order did not, and could not, effect a
lawful eviction of the defendant. Even if the restraining order could be confused with a judgment effecting an
eviction, there must be a valid writ of possession (or execution) and five days' notice to allow the tenant to
voluntarily vacate the property. (Bedi v. McMullan, supra, 160 Cal. App.3d at p. 276; Code Civ. Proc., §§ 715.010,
subd. (b)(2), 715.020, subd. (c), 1174, subd. (d).)” (emphasis added)
https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1978744&doc_no=A131914&re
quest_token=NilwLSIkTkw6WzApSCMtSEJJQEAGUVxfICJOlztSMCAgCe%3D%3D
03/26/2012 Order filed. - The Court, having considered "Respondents' Motion to Require Furnishing of
. : Security by Vexatious Litigant" and all arguments and exhibits submitted by
the parties relating thereto, here by orders: The motion is denied. Neither
respondent is a "defendant" and appellant is not a "plaintiff, " as these terms
are used in Code of Civil Procedure section 391.1.
3, Application to Vacate Prefiling OrderIn Shalant v. Girardi (2011) 51 Cal. 4" 1164, some four years before Judge Quidachay’s
prefiling order, the Supreme Court pointed out that the VLS should be read by its “plain
language” and not “broadly construed” by the courts.® The plain language of section 391.7(c)
provides that a clerk cannot file a “prefiling orders” by a “vexataious litigant” and then makes
clear that the “vexatious litigant” is a “plaintiff” rather than a “defendant” as I am in this case.
(c) The clerk may not file any litigation presented by a vexatious litigant subject to a
prefiling order unless the vexatious litigant first obtains an order from the presiding
justice or presiding judge permitting the filing. If the clerk mistakenly files ‘the litigation
without the order, any party may file with the clerk and serve, or the presiding justice or
presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a
notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set
forth in subdivision...(emphasis added)
If there is any doubt that section 391.7 of the VLS was not intended to apply to self-represented
“vexatious defendants,” it was put to rest in John v. Sup. Ct. (2016) 61 Cal. 4" 93. In John, the
Supreme Court ruled that the VLS applies “exclusively to self-represented litigants”? and further
narrowed their ruling to “self-represented vexatious plaintiffs.” !° To eliminate any doubt as to
whether “prefiling orders” apply to “defendants” at either the trial or appellate courts, the
Supreme Court ruled (Id., at 97-98):
Additionally, when the court decided Mahdavi, subdivision (b) of section 391.7 provided
that if permission to file is granted to a vexatious litigant plaintiff, the presiding judge
may "condition the filing of the litigation upon the furnishing of security for the benefit of
8 Shalant, supra, at 1176: Even if a broader rule, barring vexatious litigants from filing or maintaining new litigation
in propria persona, would serve the statute's purposes better by ending more frivolous litigation more quickly, we
have no warrant to ignore section 391.7's unambiguous language in favor of such a rule. As the appellate court
below remarked: "We sympathize with the plight of already overburdened trial courts that are forced to contend with
the abusive conduct of vexatious litigants. But in their efforts to deal with the problem of vexatious litigants, courts
must observe the limits set by the applicable statutory scheme. If those limits are too confining, then it is the
function of the Legislature, not the courts, to expand them."
° John, supra, at 93: The vexatious litigant statutory scheme (Code Civ. Proc., §§ 391-391.7)4) applies exclusively
to self-represented litigants.
* John, supra, at 93: We conclude that section 391.7's prefiling requirements do not apply to a self-represented
litigant previously declared a vexatious litigant seeking to appeal an adverse judgment or interlocutory order in an
action where he or she was the defendant. A different interpretation would impede his or her right of access to the
appellate courts without advancing the underlying purpose of the vexatious litigant statutes.
4, Application to Vacate Prefiling Orderthe defendants." (Italics added.) Former subdivision’ (c) noted that: "If the clerk
mistakenly files the litigation without the order, any party may file with the clerk and
. serve on the plaintiff and other parties a notice stating shat the plaintiff is a vexatious
litigant subjéct to a prefiling order as set forth in subdivision (a)," which effectively stays
“ the litigation. (Former § 391.7, subd. (c), italics added.) If the court 98*98 stays the
litigation but later grants permission for the filing, the same subdivision states, "the
defendants need not plead" until 10 days later. (bid, italics added.) The_italicized
language,,.which the Legislature retained in the 2011 amendment, shows the legislative
intent that section 391.7's_prefiling requirements apply to_unrepresented vexatious
litigant plaintiffs only, whether in the trial or appellate courts. (emphasis added)
As underscored, the Supreme Court unequivocally stated so as to disabuse any unethical lawyers
tyring to-. persuade some impressionable judge otherwise, “section 391.7’s_prefiling
requirements apply to unrepresented litigant plaintiffs only, whether in the trial or applellate
court.” While Attorney McKay might argue that his reading of section 391.7 was made in “good
faith and though the Supreme Court’s ruling in John y. Sup. Ct. occurred issued May 6, 2016 (a
year after his motion), hé knew he’d had this same legal argument rejected by the appellate court.
Further, he’s made no attempt to inform the court of the second “clarification” of law and he has
relied on his “prefiling order” to deny me access to challenge non-lawyer Singer’s “final report.”
CONCLUSION
"In light of the Supreme Coutt’s ruling in John v. Sup. Court that “prefiling orders” apply
only to “vexatious litigant plaintiffs” at either the trial or appellate court, the court should now
vacate the order and remove me from the “list of vexatious litigants.” This is necessary. so that I
can finally challenge the “facially void” orders and all the orders obtained by non-lawyer
SINGER whose orders were void given his unauthorized practice of law.
SS
LES Dated: 5/14/19
oC
Archibald wes
: 5, Application to Vacate Prefiling OrderEXHIBIT A
EXHIBIT A1] McKAY & LEONG
J. Scott McKay, Esq., #95799
2|| Linda H. Leong, Esq., #203500 « that a file
endorsed copy can be returned to my office. mo
If you would like any changes-to the.order form, please let me know and I will make it. ©
Thank you for your assistance.
: Sincerely yours,
McKAY.& LEONG.
Ss Scott McKay ,
\\
ce: ‘Archibald Cunningham (wlenclosures)
Kevin Singer (w/enclosures)_ EXHIBIT B
EXHIBIT Byh
0 Oe IN DH BF WN
MICHAEL coomss and TAMARA ‘| Case No. CPF-10-510760
Archibald Cunningham (CA Bar #210625)
1489 McAllister St. . odd E.
San Francisco, CA 94115 . . aster Cou oh, D
(415) 563-1828 : a9 Franco
archcunnghm@yahoo.com ~ MAY 06 g014
In Propria Persona
3 -
SUPERIOR COURT OF CALIFORNIA
FOR CITY AND COUNTY OF SAN FRANCISCO
WoOOoDs, XR
’ RESPONDENT’S SUPPLEMENTAL
Petitioners. ‘ MEMORANDUM IN OPPOSITION TO
. oo RECOVER’S EX PARTE APPLICATION
v. ‘| FOR ORDER FOR WRIT OF
. . . POSSESSION AND TO ‘STAY AWAY’
ARCHIBALD CUNNINGHAM, FROM THE PREMISES LOCATED AT
1489 MCALLISTER ST.
Respondent. :
. Date: May 6, 2014
Dept. 501 -
Time: 9:30 a.m. ”
A
‘ 1 INTRODUCTION
As the court is well aware, it has been and continues to be Respondent's position that the
judgment entered i in this action is void because the court lacked subject matter jurisdiction,
«
: However, without waving the foregoing objection, Respondent further contends that the .
“
application of the Receiver should be denied because it procedurally deféctive: (a) there is no
provision in the Code of Civil Procedure or any other California code known to Respondent
which allows a court to use a writ of possession to remove an owner of real property from his or
y
her premises, (b) it is not clear the Receiver; who is not a licensed California attomey, can
present this application “pro per” and not through licensed legal counsel, and © the facts
. 3
- . . A
underlying the application for the “stay order” involve actions by Petitioner that protected under
Vy :
w
Supp. Memo. in Opp. to Receiver’s Ex Parte Application
1 ©Com nr DAH F BW NY =
NN YM Se Be Be ew Be ew Se ewe ew
So =F SG 0D wm YN DH PB Ww NY |= S
23
issue an order to show cause (“OSC”) detailing the alleged violations of the judgment and
the anti-SLAAP statute. Whatever the merits, if any, pertaining to the claims asserted in the
application, Respondent submits that the proper procedure is-for the Receiver to ask the Court to
giving Respondent the right to respond.
Il. ARGUMENT
A. A PROPERTY OWNER CANNOT BE REMOVED FROM HIS OR
. HER PROPERTY BY A WRIT OF POSSESSION
The Code of Civil Procedure has two types of provisions under which a court can issue a
writ of possession. Sections 512.010-512.120 concern the use of a writ of possession to recover
personal property. Section 512.020(b) provides for in certain circumstances the issuance ofa -
writ ex parte. Sections 1159-1179a pertain to the recovery of real property when the property
has been subject to forcible entry (§1159), forcible detainer (§1 160) or unlawful detainer
(§1161). By its very terms this statutory scheme, which provides for a summary proceeding, is
for the benefit of an owner to recover property from a tenant or trespasser. It has nothing to do
with removing an owner of property from his or her own property. (Cf Drybread v. Chipain
Chiropractic Corp., (2007) 151 Cal.App.4th 1063, 1072; High v. Cavanaugh (1962) 205
Cal.App.2d 495, 498-499.) Of course, the judgment in this case did not divest Respondent from |
title to his property, it only required him to “cooperate” in the sale.
B. DOES A NON-ATTORNEY RECEIVER HAVE THE RIGHT TO
SUBMIT MOTIONS TO THE COURT?
Respondent acknowledges that Receiver Singer is an officer of the Court; however, by
submitting the subject application Receiver Singer in engaged in the practice law. Business &
Professions Code §6125 provides that “[nJo person shall practice law in California unless the
(
person is an active member of the State Bar.” For example, the Clerk of the Court is also an
officer of the Court and unless the Clerk is a member of the State Bar, he or she cannot practice -
Supp. Memo. in Opp. to Receiver’s Ex Parte Application
2 -law. Respondent has been unable to find any authority which allows a lay receiver to practice
law. Respondent notes that if the receiver needs to undertake actions that constitute the
practice of law, the receiver can apply to the court to hire his or her own legal counsel. (CRC
3.1180.) . ,
Cc. THE STAY AWAY ORDER SOUGHT BY THE RECEIVER ISA °
VIOLATION OF THE ANTI-SLAPP STATUTE
In addition to the fact that the application for the writ of possession lacks any procedural“
basis, there is an issue pertaining to Respondent’s right to petition and free speech upon which
the proposed order would infringe. The Receiver has cited various protected activities by
Respondent as the justification for the Court approving his application. In Item D of his
memorandum (pp. 5-6) he cites alleged threats by Respondent to sue arly purchaser of his unit.
In Item F (pp.'7-8) he complains about Respondent continuing to question the validity of the
judgment. These actions by Respondent fall with the preview of Code of Civil Procedure
§425.16, commonly known as the Anti-SLAPP Statute.
‘D. THE PROPER PROCEDURE WOULD HAVE BEEN TO
REQUEST THE COURT TO ISSUE AN ORDER TO SHOW
CAUSE :
A judgment not otherwise enforceable under the Enforcement of Judgments Law may
be enforced by civil contempt. B Witkin Calif. Pro. 5" Ed (2008) Enforcement of Judgment
§340 at p. 365.) The procedure calls for the person claiming that an opposing party has engaged
in contempt of, a court order ¢ or judgment to serve an affidavit stating the facts constituting the ,
contempt. (Id. §343 at 369-370.) Ifthe Court finds that the affidavit alleges sufficient facts
demonstrating contempt, the Court may iSsue an ex parte order to show cause (“OSC”). (Id.
§346 at p. 374.) The party against whom the contempt citation has been issued has to be
‘personally served with the osc, (id. §347 at p. 374.) ‘(In this action, Respondent was served
‘Supp. Memo. in Opp. to Receiver’s Ex Parte Application .
3 .via email and Federal Express. (Singer POS dated 03/06/2014.)) Once served the party charged
with contempt has a right to a hearing. This is the procedure that the Receiver should have
employed if he believes that the actions of Respondent are in violation of the judgment.
Il. CONCLUSION
Whatever the merits of the Receiver’s claims underlying his application for the subject
orders, he has chosen the wrong procedure and a non-existent remedy. Furthermore, he should b
acting through licensed legal counsel and not attempting to be his own lawyer. For these reasons
the application should be denied.
Dated: May 6, 2014
Supp. Memo. in Opp. to Receiver’s Ex Parte Application
4EXHIBIT C
EXHIBIT C_KEVIN SINGER .
SUPERIOR COURT RECEIVER
RECEIVERSHIP SPECIALISTS . F “ I .
795 Folsom Street, 1° Floor Superior FS Galfornia
San Francisco, California 94107 :
Telephone: (415) 848-2984 AUG 20 2014
Fax: (415) 848-2301
E-mail: Kevin@ReceivershipSpecialists.com CLERK, IE COURT
Property Address: eo te
1487-1489 McAllister Street
San Francisco, CA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
MICHAEL COOMBS; TAMARA WOODS, )- CASENO: CPF-10-510760
Petitioner(s),
v. ) ORDER 4 oorve RECEIVER’S
) MOTION FOR WRIT OF POSSESSION”
ARCHIBALD CUNNINGHAM; and DOES 1 )
to 20, inclusive,
Respondent(s).
The motion of petitioners Michael Coombs and Tamara Woods for reconsideration of
the Court’s June 9, 2014 “Order Re: Receiver’s Motion For Writ of Possession,” came on
regularly for hearing on August 5, 2014 in'Department 501 of this Court, the Honorable
Ronald E. Quidachay, Judge, presiding. J. Scott McKay appeared on behalf of petitioners
Michael Coombs and Tamara Woods. Archibald Cunningham appeared in pro per. Kevin
Singer, the Court appointed receiver in this matter, appeared on his own behalf as receiver.
1 :
{PROPOSEDF ORDER27
28
-The Court having read and considered the moving, opposition, and reply papers for both the’
receiver’s motion for a writ of possession, and for the petitioner’s motion for reconsideration
of the order on the receiver’s motion, and the oral argument of the parties and the receiver,
and good cause appearing therefor;
If IS ORDERED:
1. Petitioner, Michael Coombs and Tamara Woods’ motion ta reconsider the Court’s
| June 9, 2014 “Order Re: Receiver’s Motion For Writ Of Possession,” is moot. The
Receiver's Motion for Writ of Possession is granted. Receiver has authority to sell the
property. Respondent interferes with Receiver's efforts to enforce the judgment and to sell
the property. In light of Respondent's non-cooperation no lesser means are feasible for
receiver to be able to sell the property.
2. A Writ of Possession shall be issued as to the.removal of Archibald Cunningham
from the property located at 1489 McAllister Street, San’ Francisco, CA. 94115. Any
current tenant who is residing on the property shal] not, be removed by this Order or by the
mt of Possession oie ve Archibald Rope ie im from the. toa Kee
fetes ats
5 2014, iat te GUIS Moker
) 1
By: Z 2
. ¥/ lt (f - » Hon. Ronald Evans Quidachay
Judge of the Superior Court
Approved as conforming to the order of the court:
Archibald Cunningham Dated
SEEEXHIBIT‘X’ RE
COMPLIANCE WITH CRC:3. 1312
PROPOSED] ORDERMCKAY & LEONG
ATTORNEYSATLAW
2175N. CALIFORNIA BLVD., SUITE 775
WALNUT. CREEK, CALIFORNIA 94596
oo. TELEPHONE (925) 932-6095
FACSIMILE (925) 932-5434
s
August 13, 2014
Judge Ronald E. Quidachay : .
San Francisco Superior Court, Dept. 501 ume : i in
400 McAllister Street EX -
San Francisco, CA 94102 . ~ Hesaa
RE: Coombs v. Cunningham }
: San Francisco Superior Court Ca: |. CPF-10-510760 . S
Dear Judge Quidachay:
On August 5, 2014 you issued rulings granting the motion of my ¢lients’ (Coombs and
Woods) motion Tor attomeys fees on appeal, and granting the receiver’s motion for a writ of
possession. On that day I prepared a proposed order on my clients’ fee motion. That same day the
receiver forwarded to me his proposed order on his writ of possession motion. Copies of such orders
are enclosed. :
Temailed these proposed orders to Mr. Cunningham that day (copy of email enclosed), plus
mailed him copies by regular mail. Mr. Cunningham has not signed these orders so as to approve
them as to form. Rather, on August 8, 2014 filed an objection to these orders, His objection,
however, is not to the form of the orders, and he does not submit any alternative form. Rather, Mr.
Cunningham’s “objection” justattempts to reargue both ‘of these motions, which is outside the
parameters of CRC, Rule 3.13 12, which concerns approval as to the form of the written order.
While Mr. Cunningham as the losing party wants to reargue the matter, I am not going to get pulled .
into Mr. Cunningham’s efforts to reargue the motions.
The only thing of relevance in Mr. Cunningham’s “objection?-i e 4, lines 15-22,
wherein Mr. Cunningham telegraphs. his apparent intention to retake possession of the premises *
(after his removal per the writ of possession) under the guise of being a subtenant o:
I note that the receiver’s proposed order specifies that ni ant is to be removed, thus
preserving any Ss Tights. But the receiver has expressed concern over Mr, Cunningham’s .
apparent intent fo retake possession by treating himself, the owner, as a subtenant,
The receivet’s motion requested a stay away order against Mr. Cunningham so as to prevent
his retaking of possession after being removed, and to prevent end runs on the receiver’s possessionMcKay & Leong
ATTORNEYS ATLAW
August 13, 2014
Page 2».
and ability to show the property as part of the sale process. The receiver therefore prepared a revised
“proposed order that makeg express reference to the stay away order that was a part of the motion that
was granted, so as to clarify RTC Mr-Conmtnga 18 not to retake possession after his removal.
Ihave enclosed an original and a copy of the fee motion order. I have enclosed an original
and one copy of each version of the order on the receiver’s motion, so that you can sign the version
you feel most appropriate. If you would like any changes to any of these order forms, please let me
know and I will make, or ask the receiver to. make, and desired changes. I have enclosed a SASE
so that file endorsed copies of the ordérs can be returned to my office. I will get the receiver’s order
back to the receiver.
\
Thank you for your assistance.
Sincerely, yours,
ee JEONG
i J.Scott McKay .
JSM/ .
Enclosures . :
cc: Archibald Cunningham (w/enclosures)
Kevin Singer (w/enclosures)Scott McKay : : em acs cs
From: Scott McKay —
Sent: Tuesday, August 05, 2014 4:04 PM
Toi ‘arch cunningham’
Ce: kevin@receivershipspecialists.com
Subject: Orders .
Attachments: 08-05-14 appeal fee order.pdf; 148 Motion re Writ vs - Proposed Order 08 05 14
v3.doc
Arch
As discussed with the court today, attached please find my order on the fee motion, and Kevin Singer's order on the writ
of possession motion. If these orders are in an acceptable firm, please sign and date each where indicated and return
them to me, | will then submit them to the judge for his signature. !f you have any objection to these orders, please so
notify me and Mr. Singer forthwith. .
J. Scott McKay
McKay & Leong
Attorneys At Law
2175 North California Boulevard, Suite 775
Walnut Creek, CA'94596
Telephone: 925-932-6095
Facsimile: 925-932-5434
Preview
~ VL-120 - [ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NUMBER: 210625 . FOR COURT USE ONLY Name: Cunningham FIRMNamE: Archibald STREET ADDRESS: 1316 S. 64th St. ; I cry: West Allis state: WI zip CODE: 53214 J K Dd TELEPHONE NO.: 805 471-1110 FAX NO. ‘San Francisco County Superior Court E-MAIL ADDRESS: archcunnghm@yahoo.com . . |ATTORNEY FOR (namey:_ self-represented . ‘ MAY 22 2019 [_] COURT OF APPEAL, APPELLATE DISTRICT, DIVISION * SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco F THE COURT STREET ADDRESS: 400 McAllister St. = MAILING ADDRESS: ‘Deputy Clerk cITy AND IP CoE: San Francisco, CA 94104 BRANCH NAME: Dept. 501, Real Property/Housing/Evictions PLAINTIFF/PETITIONER: In re Michael Coombs APPLICATION FOR ORDER TO VACATE PREFILING ORDER AND REMOVE PLAINTIFF/PETITIONER FROM CASE NUMBER: JUDICIAL COUNCIL VEXATIOUS LITIGANT LIST CPF 10-510760 ‘Important, please read: This application must be filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction with a request-to the presiding justice or presiding judge to file new litigation under Code of Civil Procedure section 391.7. If you have made an application to vacate a prefiling order that was denied, you may not make another application to vacate in any California court until at least 12 months after the denial. 41. Ihave been determined to be a vexatious litigant under the California Code of Civil Procedure section 391. This application requests that the court vacate its prefiling order and order my name removed from the statewide vexatious litigant list. 2. The prefiling order or orders were issued in the following case or cases (list all): Court: SF Superior Ct, Housing Division Court: SF Family Law Court Case Name: In re Michael Coombs Case Name: Wang v. Cunningham. Case Number: CPF: 0-510760 Case Number: FDI03-753770 Date prefiling order entered: 7/16/2015 Date prefiling order entered: March 5, 2009 [21 Continued on Attachment (form MC-025). 3. I request that the prefiling order be vacated under Code of Civil Procedure section 391.8. (Describe below the material change in the facts on which the order was granted and how the ends of justice would be served by vacating the order.) STATEMENT OF FACTS: * On July 17, 2015, Judge Quidachay issued an prefiling order (Exhibit A) against me even though | was the "defendant" in the underlying arbitration case and the issue of Attorney John Scott McKay's extrinsic fraud on the arbitration has never been litigated: (Extrinsic fraud is not an affirmative defense that I could have been asserted at the March 3, 2010 arbitration, where the extrinsic fraud had occurred, or at the April, 2011 hearing on Attorney McKay's motion to confirm the arbitration award; *See, Lazzarone v. Bank of America (1999) 181 Cal. App. 3d 581, 595). When I did have my attorney file a lawsuit for breach of the 2009 CC&Rs and Bylaws and extrinsic:fraud, Attorney McKay had the lawsuit dismissed even though | was represented and shielded from the Vexatious Litigant Statute by the fact of representation. (*See CGC 11-511994). In fact, Attorney McKay has filed no fewer than 14 vexatious litigant motions against me to deny me court access to challenge his extrinsic frauds. *See, Attached Exhibits and Points and Authorities. Continued on Attachment (form MC-025). ‘ t : Page 1 of 2 om groves fr Optional Use APPLICATION FOR ORDER TO VACATE PREFILING Gace fev Paces, 83917 Vts120 Rew September 1, 2018 ORDER AND REMOVE PLAINTIFF/PETITIONER FROM courts ca.90¥ JUDICIAL COUNCIL VEXATIOUS LITIGANT LISTVL-120 PLAINTIFF/PETITIONER: CASE NUMBER: 4. [5€] Ihave not made an application for an order to vacate a prefiling order in the last 12 months. 5. On Attachment (form MC-025) is a list of every case filed in the last five years in which I've been a plaintiff, cross-complainant, or defendant, the approximate number of motions | filed in each case, and the number of requests for new litigation that | have filed. (Include case name, case number, court in which filed, and date filed.) | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. S419 Archibald Cunningham b (DATE) {TYPE OR PRINT NAME OF DECLARANT NW i aS \ Vi-120 (Rev. Seplomber 4, 2028] APPLICATION FOR ORDER TO VACATE PREFILING Pate 2012 ORDER AND REMOVE PLAINTIFF/PETITIONER FROM - JUDICIAL COUNCIL VEXATIOUS LITIGANT LIST For your protection and privacy, please press the Clear _ pa This Form button after you have printed the form. [Print this form.| | Save this form | (Clear-this form.MC-025: Application to Vacate Prefiling ‘Order SHORT TITLE: : CASE NUMBER: In Re Michael Coombs . : CPF 10-510760 ~ VL-120. 3. (continued). , : > STATEMENT OF FACTS In fact, Attorney McKay requested a prefiling in order to prevent me from challenging non-lawyer court-appointed receiver Kevin Singer’s attempt to enforce his “fécially void” Judgment for a “forced sale” of my condo under a 2007 TICA that “terminates” upon condo- conversion and énly provides a remedy of a “forced sale” of a ‘defaulting Cotenant’s cotenancy share.” Further, Attorney McKay requested the prefiling order to prevent me from litigating the issue of when the 2007 TICA “terminated,” because he churned up over a $1,400,000 of attorney fees as Mr. Coombs testified recently in the State Bar proceeding (No. 14-0-0659).! He relied on the 2007 TICA as the “contractual basis” under CCP §1033.5(10) ‘to recover his attorneys fees as “costs” for filing more than 14 vexatious litigant motion at both the trial and appellate courts. 1 https://webapps.sftc.org/ci/CaseInfo.dll?CaseNum=CPF105107608&SessionID=36DCAFEF173BC934F77F986B2ABA8 BA35364A99A DGMENT nOUIBAC HIS cL ‘COST BILL- AFTER JUDGMENT, $23,4 {CO8TS: PILED: BY. PETIIO! OK REI OM! DEFENDANT: CUNNINGHS 3. INTEREST, $10,63; 1, Application to Vacate Prefiling Order , \Attorney McKay also wanted to prevent me from challenging non-lawyer receiver Kevin Singer's attempt to “enforce” his facially void” Judgment by arguing that he had the right to practice law as a receiver even though he was not licensed to practice and the right to immediate possession of my real property under his reading of CCP §568, the “general powers” statute for receivers. I tried to explain this to Judge Quidachay and filed a pleading on May 6, 2014 citing the case law. (Exhibit B). Of course, Judge Quidachay did not have the authority to negate the criminal misdemeanor’ of unlicensed practice (Bus. & Prof. Code §6106(a)) by reading section ~ 568 as an exception to the State Bar Act so that he could allow non-lawyer receiver Singer to commit the misdemeanor of unlicensed practice. Further, Judge Quidachay did not have the authority to read section 568 as giving a non-lawyer receiver “possession” of an owner’s condo in violation of the Enforcement of Judgment Act (EOJ) and the Unlawful Detainer Act and Supreme Court and appellate precedent.? Section 681.010(c)‘ of the EOJ Act sets out clear “procedures that “possession” of real property may only be obtained by use of the Unlawful Detainer Act (CCP §712.010; §715.010). Under case law, only an owner, landlord, or new In People v. Farley (2009) 46 Cal. 4 1053, 1119, the Supreme Court noted that it was the “exclusive authority” of the Legislature, not trial courts to expand or limit the definition of crimes: “We repeatedly have observed that "“"the power to define crimes and fix penalties is vested exclusively in the legislative branch." (Keeler v. Superior Court{ (1970)] 2 Cal.3d 619. 631 [87 Cal.Rptr. 481, 470 P.2d 617] ...; [citations].)" (Chun, supra, 45 Cal.3d at p. 1183.) The courts may not expand the Legislature's definition of a crime (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632), nor may they narrow a clear and specific definition. ” > *See, Asuncion v. Superior Court (2009) 108:Cal. App. 3d 141.”We are prepared to hold homeowners cannot be evicted, consistent with due process guaranties, without being permitted to raise the affirmative defenses which if proved would maintain their possession and ownership. Such a procedure would be as unfair as the situation forbidden in Vargas...” *CA Civ Pro Code § 681.010 (2017); Except as otherwise provided by statute: (c) A judgment for possession of real property is enforceable as provided in Chapter 3 (commencing with Section 715.010) of Division 3. 2, Application to Vacate Prefiling Orderpurchaser has “‘standing” to evict.> Judge Quidachay had no authority to ignore these*statutory provisions and give.non-lawyer receiver SINER “possession” by a self-drafted writ of possession (Exhibit C) which he scribbled a “stay-away order,” as if that affected a lawful eviction on the X basis of a valid writ.® POINTS AND AUTHORITIES As noted above, Attorney McKay filed a prefiling order in the trial court in 2015. after being turned back by the appellate court in 2013 (A131914), which denied his section 391.1 motion.’ Although Attorney McKay knew full well that the “prefiling order” in the trial court was not supported by the “plain language” of the VLS or case law just as it wasn’t in the appellate he, he demanded one and Judge Quidachay was too happy to oblige him. The issuance of that order was not valid then is should be unequivocally so now. 5 Berry v. Society of St. Pius X (1999) 69 Cal. App. 4" 354, 358: The procedure in unlawful detainer "is covered in [Code of Civil Procedure section] 1161 et seq. The remedy, as broadened by statutory changes, is available in three situations: [{] (a) Landlord against tenant for unlawfully holding over or for breach of the lease (the traditional and most’ important proceeding). ([Code Civ. Proc., §] 1161;...) [{] (b) Owner against servant, employee, agent, or licensee, whose relationship has terminated. ([Code Civ. Proc., §] 1161(1);...) [] (c) Purchaser at sale under execution, foreclosure, or power of sale in mortgage or deed of trust, against former owner and possessor. ([Code Civ. Proc., §] 1161a;...)" (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 599, p. 69.) The statutory situations in which the remedy of unlawful detainer is available are exclusive and the statutory procedure must be strictly , followed. °in People v. Thompson (1996)-43 Cal. App. 4th 1265, 1270, the Court of Appeals made that clear: “In the present. case, defendant had not been lawfully evicted. The landlord simply obtained a harassment restraining order directing defendant to stay away from the boarding house. The restraining order did not, and could not, effect a lawful eviction of the defendant. Even if the restraining order could be confused with a judgment effecting an eviction, there must be a valid writ of possession (or execution) and five days' notice to allow the tenant to voluntarily vacate the property. (Bedi v. McMullan, supra, 160 Cal. App.3d at p. 276; Code Civ. Proc., §§ 715.010, subd. (b)(2), 715.020, subd. (c), 1174, subd. (d).)” (emphasis added) https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=1978744&doc_no=A131914&re quest_token=NilwLSIkTkw6WzApSCMtSEJJQEAGUVxfICJOlztSMCAgCe%3D%3D 03/26/2012 Order filed. - The Court, having considered "Respondents' Motion to Require Furnishing of . : Security by Vexatious Litigant" and all arguments and exhibits submitted by the parties relating thereto, here by orders: The motion is denied. Neither respondent is a "defendant" and appellant is not a "plaintiff, " as these terms are used in Code of Civil Procedure section 391.1. 3, Application to Vacate Prefiling OrderIn Shalant v. Girardi (2011) 51 Cal. 4" 1164, some four years before Judge Quidachay’s prefiling order, the Supreme Court pointed out that the VLS should be read by its “plain language” and not “broadly construed” by the courts.® The plain language of section 391.7(c) provides that a clerk cannot file a “prefiling orders” by a “vexataious litigant” and then makes clear that the “vexatious litigant” is a “plaintiff” rather than a “defendant” as I am in this case. (c) The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding justice or presiding judge permitting the filing. If the clerk mistakenly files ‘the litigation without the order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision...(emphasis added) If there is any doubt that section 391.7 of the VLS was not intended to apply to self-represented “vexatious defendants,” it was put to rest in John v. Sup. Ct. (2016) 61 Cal. 4" 93. In John, the Supreme Court ruled that the VLS applies “exclusively to self-represented litigants”? and further narrowed their ruling to “self-represented vexatious plaintiffs.” !° To eliminate any doubt as to whether “prefiling orders” apply to “defendants” at either the trial or appellate courts, the Supreme Court ruled (Id., at 97-98): Additionally, when the court decided Mahdavi, subdivision (b) of section 391.7 provided that if permission to file is granted to a vexatious litigant plaintiff, the presiding judge may "condition the filing of the litigation upon the furnishing of security for the benefit of 8 Shalant, supra, at 1176: Even if a broader rule, barring vexatious litigants from filing or maintaining new litigation in propria persona, would serve the statute's purposes better by ending more frivolous litigation more quickly, we have no warrant to ignore section 391.7's unambiguous language in favor of such a rule. As the appellate court below remarked: "We sympathize with the plight of already overburdened trial courts that are forced to contend with the abusive conduct of vexatious litigants. But in their efforts to deal with the problem of vexatious litigants, courts must observe the limits set by the applicable statutory scheme. If those limits are too confining, then it is the function of the Legislature, not the courts, to expand them." ° John, supra, at 93: The vexatious litigant statutory scheme (Code Civ. Proc., §§ 391-391.7)4) applies exclusively to self-represented litigants. * John, supra, at 93: We conclude that section 391.7's prefiling requirements do not apply to a self-represented litigant previously declared a vexatious litigant seeking to appeal an adverse judgment or interlocutory order in an action where he or she was the defendant. A different interpretation would impede his or her right of access to the appellate courts without advancing the underlying purpose of the vexatious litigant statutes. 4, Application to Vacate Prefiling Orderthe defendants." (Italics added.) Former subdivision’ (c) noted that: "If the clerk mistakenly files the litigation without the order, any party may file with the clerk and . serve on the plaintiff and other parties a notice stating shat the plaintiff is a vexatious litigant subjéct to a prefiling order as set forth in subdivision (a)," which effectively stays “ the litigation. (Former § 391.7, subd. (c), italics added.) If the court 98*98 stays the litigation but later grants permission for the filing, the same subdivision states, "the defendants need not plead" until 10 days later. (bid, italics added.) The_italicized language,,.which the Legislature retained in the 2011 amendment, shows the legislative intent that section 391.7's_prefiling requirements apply to_unrepresented vexatious litigant plaintiffs only, whether in the trial or appellate courts. (emphasis added) As underscored, the Supreme Court unequivocally stated so as to disabuse any unethical lawyers tyring to-. persuade some impressionable judge otherwise, “section 391.7’s_prefiling requirements apply to unrepresented litigant plaintiffs only, whether in the trial or applellate court.” While Attorney McKay might argue that his reading of section 391.7 was made in “good faith and though the Supreme Court’s ruling in John y. Sup. Ct. occurred issued May 6, 2016 (a year after his motion), hé knew he’d had this same legal argument rejected by the appellate court. Further, he’s made no attempt to inform the court of the second “clarification” of law and he has relied on his “prefiling order” to deny me access to challenge non-lawyer Singer’s “final report.” CONCLUSION "In light of the Supreme Coutt’s ruling in John v. Sup. Court that “prefiling orders” apply only to “vexatious litigant plaintiffs” at either the trial or appellate court, the court should now vacate the order and remove me from the “list of vexatious litigants.” This is necessary. so that I can finally challenge the “facially void” orders and all the orders obtained by non-lawyer SINGER whose orders were void given his unauthorized practice of law. SS LES Dated: 5/14/19 oC Archibald wes : 5, Application to Vacate Prefiling OrderEXHIBIT A EXHIBIT A1] McKAY & LEONG J. Scott McKay, Esq., #95799 2|| Linda H. Leong, Esq., #203500 « that a file endorsed copy can be returned to my office. mo If you would like any changes-to the.order form, please let me know and I will make it. © Thank you for your assistance. : Sincerely yours, McKAY.& LEONG. Ss Scott McKay , \\ ce: ‘Archibald Cunningham (wlenclosures) Kevin Singer (w/enclosures)_ EXHIBIT B EXHIBIT Byh 0 Oe IN DH BF WN MICHAEL coomss and TAMARA ‘| Case No. CPF-10-510760 Archibald Cunningham (CA Bar #210625) 1489 McAllister St. . odd E. San Francisco, CA 94115 . . aster Cou oh, D (415) 563-1828 : a9 Franco archcunnghm@yahoo.com ~ MAY 06 g014 In Propria Persona 3 - SUPERIOR COURT OF CALIFORNIA FOR CITY AND COUNTY OF SAN FRANCISCO WoOOoDs, XR ’ RESPONDENT’S SUPPLEMENTAL Petitioners. ‘ MEMORANDUM IN OPPOSITION TO . oo RECOVER’S EX PARTE APPLICATION v. ‘| FOR ORDER FOR WRIT OF . . . POSSESSION AND TO ‘STAY AWAY’ ARCHIBALD CUNNINGHAM, FROM THE PREMISES LOCATED AT 1489 MCALLISTER ST. Respondent. : . Date: May 6, 2014 Dept. 501 - Time: 9:30 a.m. ” A ‘ 1 INTRODUCTION As the court is well aware, it has been and continues to be Respondent's position that the judgment entered i in this action is void because the court lacked subject matter jurisdiction, « : However, without waving the foregoing objection, Respondent further contends that the . “ application of the Receiver should be denied because it procedurally deféctive: (a) there is no provision in the Code of Civil Procedure or any other California code known to Respondent which allows a court to use a writ of possession to remove an owner of real property from his or y her premises, (b) it is not clear the Receiver; who is not a licensed California attomey, can present this application “pro per” and not through licensed legal counsel, and © the facts . 3 - . . A underlying the application for the “stay order” involve actions by Petitioner that protected under Vy : w Supp. Memo. in Opp. to Receiver’s Ex Parte Application 1 ©Com nr DAH F BW NY = NN YM Se Be Be ew Be ew Se ewe ew So =F SG 0D wm YN DH PB Ww NY |= S 23 issue an order to show cause (“OSC”) detailing the alleged violations of the judgment and the anti-SLAAP statute. Whatever the merits, if any, pertaining to the claims asserted in the application, Respondent submits that the proper procedure is-for the Receiver to ask the Court to giving Respondent the right to respond. Il. ARGUMENT A. A PROPERTY OWNER CANNOT BE REMOVED FROM HIS OR . HER PROPERTY BY A WRIT OF POSSESSION The Code of Civil Procedure has two types of provisions under which a court can issue a writ of possession. Sections 512.010-512.120 concern the use of a writ of possession to recover personal property. Section 512.020(b) provides for in certain circumstances the issuance ofa - writ ex parte. Sections 1159-1179a pertain to the recovery of real property when the property has been subject to forcible entry (§1159), forcible detainer (§1 160) or unlawful detainer (§1161). By its very terms this statutory scheme, which provides for a summary proceeding, is for the benefit of an owner to recover property from a tenant or trespasser. It has nothing to do with removing an owner of property from his or her own property. (Cf Drybread v. Chipain Chiropractic Corp., (2007) 151 Cal.App.4th 1063, 1072; High v. Cavanaugh (1962) 205 Cal.App.2d 495, 498-499.) Of course, the judgment in this case did not divest Respondent from | title to his property, it only required him to “cooperate” in the sale. B. DOES A NON-ATTORNEY RECEIVER HAVE THE RIGHT TO SUBMIT MOTIONS TO THE COURT? Respondent acknowledges that Receiver Singer is an officer of the Court; however, by submitting the subject application Receiver Singer in engaged in the practice law. Business & Professions Code §6125 provides that “[nJo person shall practice law in California unless the ( person is an active member of the State Bar.” For example, the Clerk of the Court is also an officer of the Court and unless the Clerk is a member of the State Bar, he or she cannot practice - Supp. Memo. in Opp. to Receiver’s Ex Parte Application 2 -law. Respondent has been unable to find any authority which allows a lay receiver to practice law. Respondent notes that if the receiver needs to undertake actions that constitute the practice of law, the receiver can apply to the court to hire his or her own legal counsel. (CRC 3.1180.) . , Cc. THE STAY AWAY ORDER SOUGHT BY THE RECEIVER ISA ° VIOLATION OF THE ANTI-SLAPP STATUTE In addition to the fact that the application for the writ of possession lacks any procedural“ basis, there is an issue pertaining to Respondent’s right to petition and free speech upon which the proposed order would infringe. The Receiver has cited various protected activities by Respondent as the justification for the Court approving his application. In Item D of his memorandum (pp. 5-6) he cites alleged threats by Respondent to sue arly purchaser of his unit. In Item F (pp.'7-8) he complains about Respondent continuing to question the validity of the judgment. These actions by Respondent fall with the preview of Code of Civil Procedure §425.16, commonly known as the Anti-SLAPP Statute. ‘D. THE PROPER PROCEDURE WOULD HAVE BEEN TO REQUEST THE COURT TO ISSUE AN ORDER TO SHOW CAUSE : A judgment not otherwise enforceable under the Enforcement of Judgments Law may be enforced by civil contempt. B Witkin Calif. Pro. 5" Ed (2008) Enforcement of Judgment §340 at p. 365.) The procedure calls for the person claiming that an opposing party has engaged in contempt of, a court order ¢ or judgment to serve an affidavit stating the facts constituting the , contempt. (Id. §343 at 369-370.) Ifthe Court finds that the affidavit alleges sufficient facts demonstrating contempt, the Court may iSsue an ex parte order to show cause (“OSC”). (Id. §346 at p. 374.) The party against whom the contempt citation has been issued has to be ‘personally served with the osc, (id. §347 at p. 374.) ‘(In this action, Respondent was served ‘Supp. Memo. in Opp. to Receiver’s Ex Parte Application . 3 .via email and Federal Express. (Singer POS dated 03/06/2014.)) Once served the party charged with contempt has a right to a hearing. This is the procedure that the Receiver should have employed if he believes that the actions of Respondent are in violation of the judgment. Il. CONCLUSION Whatever the merits of the Receiver’s claims underlying his application for the subject orders, he has chosen the wrong procedure and a non-existent remedy. Furthermore, he should b acting through licensed legal counsel and not attempting to be his own lawyer. For these reasons the application should be denied. Dated: May 6, 2014 Supp. Memo. in Opp. to Receiver’s Ex Parte Application 4EXHIBIT C EXHIBIT C_KEVIN SINGER . SUPERIOR COURT RECEIVER RECEIVERSHIP SPECIALISTS . F “ I . 795 Folsom Street, 1° Floor Superior FS Galfornia San Francisco, California 94107 : Telephone: (415) 848-2984 AUG 20 2014 Fax: (415) 848-2301 E-mail: Kevin@ReceivershipSpecialists.com CLERK, IE COURT Property Address: eo te 1487-1489 McAllister Street San Francisco, CA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO MICHAEL COOMBS; TAMARA WOODS, )- CASENO: CPF-10-510760 Petitioner(s), v. ) ORDER 4 oorve RECEIVER’S ) MOTION FOR WRIT OF POSSESSION” ARCHIBALD CUNNINGHAM; and DOES 1 ) to 20, inclusive, Respondent(s). The motion of petitioners Michael Coombs and Tamara Woods for reconsideration of the Court’s June 9, 2014 “Order Re: Receiver’s Motion For Writ of Possession,” came on regularly for hearing on August 5, 2014 in'Department 501 of this Court, the Honorable Ronald E. Quidachay, Judge, presiding. J. Scott McKay appeared on behalf of petitioners Michael Coombs and Tamara Woods. Archibald Cunningham appeared in pro per. Kevin Singer, the Court appointed receiver in this matter, appeared on his own behalf as receiver. 1 : {PROPOSEDF ORDER27 28 -The Court having read and considered the moving, opposition, and reply papers for both the’ receiver’s motion for a writ of possession, and for the petitioner’s motion for reconsideration of the order on the receiver’s motion, and the oral argument of the parties and the receiver, and good cause appearing therefor; If IS ORDERED: 1. Petitioner, Michael Coombs and Tamara Woods’ motion ta reconsider the Court’s | June 9, 2014 “Order Re: Receiver’s Motion For Writ Of Possession,” is moot. The Receiver's Motion for Writ of Possession is granted. Receiver has authority to sell the property. Respondent interferes with Receiver's efforts to enforce the judgment and to sell the property. In light of Respondent's non-cooperation no lesser means are feasible for receiver to be able to sell the property. 2. A Writ of Possession shall be issued as to the.removal of Archibald Cunningham from the property located at 1489 McAllister Street, San’ Francisco, CA. 94115. Any current tenant who is residing on the property shal] not, be removed by this Order or by the mt of Possession oie ve Archibald Rope ie im from the. toa Kee fetes ats 5 2014, iat te GUIS Moker ) 1 By: Z 2 . ¥/ lt (f - » Hon. Ronald Evans Quidachay Judge of the Superior Court Approved as conforming to the order of the court: Archibald Cunningham Dated SEEEXHIBIT‘X’ RE COMPLIANCE WITH CRC:3. 1312 PROPOSED] ORDERMCKAY & LEONG ATTORNEYSATLAW 2175N. CALIFORNIA BLVD., SUITE 775 WALNUT. CREEK, CALIFORNIA 94596 oo. TELEPHONE (925) 932-6095 FACSIMILE (925) 932-5434 s August 13, 2014 Judge Ronald E. Quidachay : . San Francisco Superior Court, Dept. 501 ume : i in 400 McAllister Street EX - San Francisco, CA 94102 . ~ Hesaa RE: Coombs v. Cunningham } : San Francisco Superior Court Ca: |. CPF-10-510760 . S Dear Judge Quidachay: On August 5, 2014 you issued rulings granting the motion of my ¢lients’ (Coombs and Woods) motion Tor attomeys fees on appeal, and granting the receiver’s motion for a writ of possession. On that day I prepared a proposed order on my clients’ fee motion. That same day the receiver forwarded to me his proposed order on his writ of possession motion. Copies of such orders are enclosed. : Temailed these proposed orders to Mr. Cunningham that day (copy of email enclosed), plus mailed him copies by regular mail. Mr. Cunningham has not signed these orders so as to approve them as to form. Rather, on August 8, 2014 filed an objection to these orders, His objection, however, is not to the form of the orders, and he does not submit any alternative form. Rather, Mr. Cunningham’s “objection” justattempts to reargue both ‘of these motions, which is outside the parameters of CRC, Rule 3.13 12, which concerns approval as to the form of the written order. While Mr. Cunningham as the losing party wants to reargue the matter, I am not going to get pulled . into Mr. Cunningham’s efforts to reargue the motions. The only thing of relevance in Mr. Cunningham’s “objection?-i e 4, lines 15-22, wherein Mr. Cunningham telegraphs. his apparent intention to retake possession of the premises * (after his removal per the writ of possession) under the guise of being a subtenant o: I note that the receiver’s proposed order specifies that ni ant is to be removed, thus preserving any Ss Tights. But the receiver has expressed concern over Mr, Cunningham’s . apparent intent fo retake possession by treating himself, the owner, as a subtenant, The receivet’s motion requested a stay away order against Mr. Cunningham so as to prevent his retaking of possession after being removed, and to prevent end runs on the receiver’s possessionMcKay & Leong ATTORNEYS ATLAW August 13, 2014 Page 2». and ability to show the property as part of the sale process. The receiver therefore prepared a revised “proposed order that makeg express reference to the stay away order that was a part of the motion that was granted, so as to clarify RTC Mr-Conmtnga 18 not to retake possession after his removal. Ihave enclosed an original and a copy of the fee motion order. I have enclosed an original and one copy of each version of the order on the receiver’s motion, so that you can sign the version you feel most appropriate. If you would like any changes to any of these order forms, please let me know and I will make, or ask the receiver to. make, and desired changes. I have enclosed a SASE so that file endorsed copies of the ordérs can be returned to my office. I will get the receiver’s order back to the receiver. \ Thank you for your assistance. Sincerely, yours, ee JEONG i J.Scott McKay . JSM/ . Enclosures . : cc: Archibald Cunningham (w/enclosures) Kevin Singer (w/enclosures)Scott McKay : : em acs cs From: Scott McKay — Sent: Tuesday, August 05, 2014 4:04 PM Toi ‘arch cunningham’ Ce: kevin@receivershipspecialists.com Subject: Orders . Attachments: 08-05-14 appeal fee order.pdf; 148 Motion re Writ vs - Proposed Order 08 05 14 v3.doc Arch As discussed with the court today, attached please find my order on the fee motion, and Kevin Singer's order on the writ of possession motion. If these orders are in an acceptable firm, please sign and date each where indicated and return them to me, | will then submit them to the judge for his signature. !f you have any objection to these orders, please so notify me and Mr. Singer forthwith. . J. Scott McKay McKay & Leong Attorneys At Law 2175 North California Boulevard, Suite 775 Walnut Creek, CA'94596 Telephone: 925-932-6095 Facsimile: 925-932-5434