Preview
H Alison Madden
F E L
sAN-MATEO counaw
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P0 Box 620650, .Woodside, CA 94062 JUN 9; .
maddenproper@g'mail.com
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Phone: 650.270.0066; No Fax
In Pro Per
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO, BRANCH
SOUTHERN
CITY 0F REDWOOD crrY, UD Action case #. 18UDL00816
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Direct-Set to Dept. 2, Weiner, J.
Plaintiff,
VERIFIED MEMORANDUM OF POINTS &
V.
AUTHORITES IN SUPPORT OF MOTION TO
ALISON MKDOEN, CONSOLIDATE UD & CRAL ACTIONS AND
TO STAY UDL PENDING RES OLUTION OF
Defendént. CRAL, OR, IN THE ALTERNATIVE, TO STAY
UDL PENDING RESOLUTION OF CRAL '
ACTION WITHOUT CONS OLIDATION
FAIWBROUGH, ct al.,
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P1aihtifstPetitioner—Intervenors,
Civil Unlimited Case No.: 17CIV005387
Assignédfor all 'puiposes to Dept. 2, Weiner, J.
v.
REDWOOD CITY,
J UN? 7’9 . ”“4
Date/Time: W
Dept: 2 p.m.
Defendant. Action Filed: Sept. 4, 2018'
Trial Date: None set (Jury demanded, UDL)
"
LINTRODUCTION
This is "a Veried Memorandum in Support of the Motion captioned above. As notéd in the
Notice of Motion & Motion, the specic application for order (Motion)1s:
To Consolidate UD Action (case #1 8UDL00316) with pending CRAL (case #17CIV05387)
,and to Stay UD Action pending resolution of CRAL; or, in the alternative, to Stay UD
Action pending resolution of CRAL, even without Consolidation.
Veri ation
UD Defendant Madden is also a PetitioneIntervenor
-: in CRAL (“P-I Madden”). P-I
Madden veries this MPA by signature below, so this MPA constitutes a Declaration offered in
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18UDL00816 RWC v. Madden; 17CIV05387 Fambrough et al. _(C_RAL)
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N éuiapbit bf Motibh; Typically, deélaiations of self 6f others are relied kin-{but Madden is pro fer as a
party, with actual knowledgq, and thus veriels this MPA. Facts asserted are made on P—I’s personal
knowledge or as supported by matters judicially noticeable and noticed in this or another action,
whether Dept. 2 or other Superior Court or District Court(s) of Appeal judges, .or the Supreme Court.
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P—I Madden swears the above under penalty of perjury under the laws of the State of
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California and would testify the same under oath if so called.
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Dated: June 8, 2021
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Alison Madden, Pro Per
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II. SUMNIARY 0F ARGUMENT
It is an abuse of discretion not to consolidate or stay a UD action when the same iSsue has
arisen in another action,
going to the right of possession. See infra, §m Argument. A displacing
public entity may not seek UD/eviction in a case such as this, as it is an act in thherance of a public
project, and may not be undertaken before adoption of a CRAL Plan and settlement of payments. Id.
.
Morevoer, even without Consolidation, a Stay should issue for the UD Action; for the same cause.
Here, not only are the parties‘ ‘common” under CCP §1048 (Consolidation), they are
identical, and the manifoldissues are also common or identical:
to
(i) a-relocation plan must be enacted prior to any’displacing activity, including the ling
of a UD Action, and
(ii) relocation benets must be made available prior to displacement under CRAL, and
indeed, prior to any.displacing activity, including ling of a UD Action.
ton
It is, thus, abuse ofdiscretion not to Consolidate, and/or, to Stay the UD Action. See ina,
IV. Argment for'authority that'“no” displacing activity may occur without adhering to CRAL.
Eviction pursuant to a public project is clearly displacing activity. Moreover, Consolidation
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does not mean jury'trial on Aug. 2, 2021 Phase 1. It means UD may not go forward until CRAL is
resolved,. Then, the UDL may have its jury trial, if necessary and still (then) at-issUe.
to
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18UDL00816 / 17CIV05387 MTC / Stay !
As to the similar/identical issues:
(1) the issue of required predicate steps under CRAL prior to displacement exists in both
cases, including as a defense in UD;
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(2) Dept. 2 is fully versed, and the CRAL, vs. UD Action, is the best posture om whicfi to. I
determine predicate lack of procedure (see (i) above (no plan, no
payment) & see MPA).
Even if CRAL benets need not be “paid”, as in tendered, prior to the actual “day” of
displacement (which even that is disputed by defendant), the person may not be displaced when the
displacing public entity is claiming that CRAL does not apply, and benets will not be forthcoming -
in such a scenario it is compelling to protect the policies of the statute by not allowing displacement
until the issue of applicability and amount have been' determined by a court.’
Iatenant being displaced for a public project or purpose may not be displaced until:
Thus,
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(a) CRAL has beencomplied with, as to procedural and substantive steps ((i), supra);
(b) entitlement to benets has been established ((ii),
suprg); and
(c) such benets are readily available to the displaced person(s) ((ii), supra).
See MPA, citing Arroyo Vista Tenants Ass ’n, et al. v. City ofDublin, C—07-05794 (The Hon.
Marilyn Hall Patel, U.S. Dist. CL, Cal. N.D.) (dismissed with-prejudice after stipulated Settlement,
commitments to adopt CRAL plan and pay
included in Order and containing myriad specic
benets, among specific commitments in the project itself, talcing displaced persons into account).
Iworked for Judge Patel in law school and am not surprised the matter, as handled in
her
court, led to such a Settlement and Stipulation. The entire action C-07-05794 is available on!
PACER, the" federal judiciary search website. The City of Dublin and/or otherReal Parties or
Defendants in Arroyo Vista removed to federal court, as HUD was also at issue.
However, the majority of the Settlement, Stipulation, and thereby ensuing Dismissal with
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Prejudice, was based on CRAL, as is evident 'om the docket. The issues were rst raised by way of
TRO/Motion for Injunction, and were continued and briefed thoroughly, prior to Dublin, Eden
Housing and the commercial'developer agreeing to numerous, substantial commitments, as well as
adopting a Plan (after ling
to
the action) and committing to residential relocation services and benet
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18UDL00816 / 17CIV05387 MTC / Stay u
entitlement payments. 'See Ex. 1 to this Veried WA ISO Motion (Set‘tlem'eqg‘gf Arroyo Vista).
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lWhen an,entfty dees not voluntarily issue CRAL benets, and they must be adjudicated (as
here), it is' a defense in UD that entitlement to benets. rst be
established,
and the aetual amounts
payable be ascertained, and ordered by the Court. Indeed, the aififhiave defense in UDL is even
a UD Action may not even beled prior to adoption of a plan and payment. Thus, Motion
broader—
to Stn'ke would (and will) to a stricken Complaint that may not be re-led until after CRAL.
lead
In the CRAL- Action, Phase 1 Trial'1s August 2021 & Phase 2, benet payments, is scheduled
forearly 2022. In addition, entitlement to- and amounts in Inverse:_Condemnation (“IC”)
1s at issue.-
Thus,thel UDL must yield pntil the CRAL/1C Action has been resolved, but specically
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CRAL. The only manner in which to do so is to Consolidate the actions and to Stay the UDL, or to
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Stay the UDL on its ‘own, pending of the CRAL/IC Action 17CIV05387, vilithout'
nalization
Consolidation. In any event, the Court has inherent power to designate “lead case” of the _t_wo.
Consolidating does “not” mean a parallel trial with CRAL. The UD may be consolidated and
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Stayed, or Stayed outright on its own.
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III.- PROCEDURAL BACKGROUND; FACTS _
Genesis of the Docktown Plan, Insuicient ‘Mggeals”Pracess; Denial at CRAL
In 2015, politically-connected attorney Ted Hannig (“Hannig”) brought a lawsuit,
together
law partner (Trevor
withhis life partner (on information and belief, an Elmer Guerrero) and his
«Ross),.with solely the three of them as plaintiff-petitioners and attorney (albeit also under the name
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of a “Citizens” type entity, but only the three of them as “Citizen”‘members)
(‘_‘Hannig' Shit”);
The Hannig Suit alleged environmental issues in Redwood Creek. at Docktown, later proven
to be unfounded, and alleged that liocktown'Marina “with liveaboards”, violated trust
the public
doctrine. Redeood City’s Council assumed jurisdiction it does not have by charter, and proceeded to.
settle the Hannig-Suit.without any early MOtions nor even an Answer (“Hannig Settlement”).
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l8UDL00816 / l7CIV05387 MTC / Stay
As part of the Hannig Settlement, Council agreed to pay Mr. Hannig $1.5 million and build
an underpass for a developer. It also agreed to formulate a Docktown Plan and remove allegedly
prohibited residential use (not all liveaboards are forbidden by‘the public trust doctrine or SLC). In
2016, Council adopted a Docktbwn Plan, in which it gen—ied CRAL applies, and attempted to provide
woefully insufcient “voluntary” relocation payments in lieu of statutory CML benets.
Council relied on the allegedly illegal nature of liveaboards to conclude CRAL does not
applyj' essentially it relied on the informal “legaladvice of counsel” letter of a California Dept; of
Justice “DAG” (Deputy AG), Andrew Vogel, which was informal advice givento the E.O. of SLC
staff, which letter came into the possession of Redwood City bythe E.O./staff waiving attorney-
client privilege (“Vogel Letter3’). The Vogel Letter had no tirnearne and was offered prior to
relevant‘actions by the SLC, the City and County of San Francisco, and even President Obama.
First, the Vogel Letter contemplated moving Docktown liveaboards onto a local property that
was not governed by the public trust doctrine (to wit, Ferrari Pond (as it is not “public tust 1and”))
and the Vogel Letter certainly never said “evict withintwo years“ and “CRAL does not apply”. blor
has the AG or
SLC “ever" argued that PRC §6009.1(c)(13) prohibits an independent Port.
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Second, as to the aforesaid entities and/or persons (SLC, S.F. and Obama), they either
entered into settlements (SLC/SF.) or signed legislation (Obama): that allowed affordable housing on'
tilled public trust upland at S.F.’s Port (SLC/SF settlement in which SLC agreed S.F. may build
housing on lled public trust upland), and/or retaining oating homes all over the Southeastern U.S.
(“TVA” properties) (Oba'ma’s nal act, signing U.S. Army Corps and other federal funding, and
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grandfathering over 1,500 oating homes on apprOXimately 50 properties in 13 Southeastern States,
in which the U.S. reps and senators (Democratic and Republican) stood up for the property and
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home rights of their constituents.)
Woe ll! Inadequate Docktown Plan & “Appeals” Process May not Snbstitute tor CRAL
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18UDL00816 l 17CIV05387 MTC/ Stay i
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“D.eupt. 2 hag alrea—dy consider-ea- the ocktown Plan and Appeals .process in 17CIV04680, also
titled Fambrough v. Redwood City, with many of the same paxticipants as in the CRAL Action.
In ALL CAPS, Dept. 2, Weiner, J., noted that CRAL-was denied by the Docktown Plan (its
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applicability) and that thus, the Hearing‘Ofcer in the Ap‘peals process did not consider CRAL, and
did not apply it nor make any aivards, gffers or decisions based upon it. '
UD Defendant and CRAL P—I Madden asserts CRAL does apply, and it is now being .
adjudicated (applicability and, if found to apply,-benet payments that must be Inade to “displaced
persons”, who (in this case) are primary residential property owners and/or lessees (or both).
City denied CRAL applies, denies this is a public project (evicting all occupants, failing to
run the marina as aggoing concern, and making plans for removal These are all to
and destruction).
be adjudicated, in which this court shall determine if this is a public project and P—I Madden is a
“displaced person”. Ifso, she is entitled to CRAL and/or IC benets/compensation, and such
must
be made available so she may relocate locally, see, e.g. Gov. Code §7261(c)(4) and other CRAL §§,
noted ina, §IV; Argument. Moreover, “no” act, not “any’_’ act in furtherance of a project nor
displacement may be undertaken prior to full and nal CRAL adjudication (the adoption of a Plan,
specic notices, and the provision of services and payments, not feigned'paper actions).
UDS [ed based solely an “eager” without diligence, dead and gone people-sued
Residential tenants of Docktown were to have vacated by'an improper notice that stated Aug.
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31, 2018 by midnight. This was Friday of a 3-day Labor Day holiday in 2018. Many residents had
rushed to moxie by midnight, with and withouthaving signed agreements with the City, and those
who intended to vacate signed title and handed keys over. Notwithstanding this, the City on the
Tuesday following Labor Day (the day after Labor Day), led UD Actions in Superior Court:
The City sued “gone” people and dead people. Literally. The City sued John Logan, who had
long passed. The City sued individuals it absolutely should have known had tendered keys and
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18UDL00816/ 17CN05387 MTC l Stay i
signed over title. It is clear the City did and had had the UDs
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“ZERQ” diligence before ling,
prepared days if not weeks before, based on paper that should have been constantly shifting as
people signed title and agreements and tendered keys.
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Not only did the City sue such “gone” people, it then required those individuals to sign
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admissions they had “not” vacated, in order to get the measly, paltry (non-CRAL)
relocation benets
the person had agreed to. This‘happened to Cindy Siegl. Others, such as Robert‘- Taorrnina,‘were also
so extorted, but failed and refused to sign. Cindy signed a false declaration under duress (really
blackmail), got her money, then driving out of state, calling Aaron Aknin and advising him, never to
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speak with her again. Bob eventually got his money without giving in to blackmail. John Logan, the
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dead'man, was not dismissed until after weeks and hours of insistence and advocacy of P-I Madden.
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Against this backdrop, P-I Madden elected to le a Motion to Quash in her own UDL and to
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do so for others (she being a practicing attorney at the time) (“MTQ”). The MTQ cited the failure to
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plead venue, which is normally not required in civil actions, but is required in UD by statute.
whether a MTQ lies to challenge defects in a Complaint, vs. a Summons, would wend its
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Eventually,
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way to the California Supreme Court, in Stancil v. Super.- Ct. (Redwood City) Case #8253783, only
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recently decided May 3, 2021. Stancz'l was lead case of 10, with-Grace and Logan dismissed (Grace
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due to a‘rnove, Logan because everyone nally acknowledged he had long passed away, sadly).
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Ironically, the Supreme Court did not decide Stancil based on the failure to plead venue, but
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on anargument only tangentially made at the Law & Motion Dept. Superior Court level, which was
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the Charter jurisdiction issue. The Supreme Court did not, in Stancil, resolve this issue, it merely
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held that an issue such as a “bar” to UD, an affirmative defense, such as not having standing as a
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landlord due to charter jurisdiction, was more raised by_Motion to Strike or Demurrer.
properly
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P—I Madden most certainly intends to move to strike the UD Complaint based on charter
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jurisdiction. Moreover, P—I Madden believes the Supreme Court, in Stancil, specically drew a .
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18UDL00816/ 17CIV05387 MTC I Stay
bright line test: one may o_nlz move to quash for “failure” to plead an essential element of a UD
Action, but not for a fact mistake or substantive afrmative defens’e issue. Ingeed, when analyzed
closely, Stancil upheld the cases it discusses that were b'ased on “failure” to allege (such as alleging
landlord gave proper notice). Thus, Green, Parsons] and Delta Imports itself, are all preserved.
The Stencil decision is, quite honestly, a disappointment. It easily could have gone either
way with a logical, reasoned and intellectual opinion. I expected more from our Supreme Court than
the repetitive, duplicative and rather “junior” eatment of UD. 'Ihe lede asserted that UD is a “place
where landlords and tenants go to work things out” (essentially). When in reality, UD is a summary
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action, solelyfor recovery ofpossession. It is available “only” to landlords. A UD may not be
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commenced by a tenant who believes a
lease'breach
has occurred. UD may not be brought with
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ANY other cause, and no counterclaim or cross-claim is allowed. 0_nly right to possession is at issue.
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J UD is based on feudal, medieval law and is the most summary of all procedures known in
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civil practice. Accordingly, the issue deserved the due respect and that judges and practitioners
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care
have given it for over 35 years. Instead, it read like an adversarial advocacy piece and failed to even
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mention the true nature of UD. It was not-even worthy of a law school “Note” or Article (P-I
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-Madden having won the award for'best law review article at Hastings — I could, and likely will, write
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a good article on this, pointing out how a respectful writing and disposition was possible — and could
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have gone either way, and article will cOntain a short write-up of how-it would
indeed perhaps my
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have gone, either or both ways (i.e.' the one and then the other». The rather junior treatment may be
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due to the lack of experience of many judges in UD, as opposed to criminal prosecution and other
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types of civil actions deemed more worth and interesting.
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In any'event,'the Supreme Court clearly failed to grapple with the nuances that earlier courts
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gave respect to, and the Stancil opinion has left a clunky and unclear “bright line” test of “fail to
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allege something the UD statute requires”. On that basis, MTQ is still available for failure to plead
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18UDL00816/ l7CIV05387 MTC I Stay
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'vc‘nue, and MTS is. available on CRAL 'exhaustion, jurisdiction and other grounds. Demurrer as well.
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Moreover, UD is not even “at issue” until an Answer AFTER all of MTQ, MTS and Demurrer has
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occurred. A tria‘l demand-(set) may not be requested by City until MTQ, MTS and Demurrer have
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ALL-been done, and an Answer after MTQ/MTS/Demurrer has been filed.
But a Stay is proper now.
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'Agril 27 Héaring — benial without‘Pre"udice due-to Stgiwil-imd PriLrl_le_latian
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This Court heard Madden’s-rst Motion to Consolidate April 27, 2021. Madden di'd -no_t
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realize this “related” the UD cases to Dept. 2. This-is good. Had Madden- known,
Court/Depthad
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she may n'ot have the MTC, but rather solely a Motion to Stay UD pending CRAL.
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led
Mr. Blum attended
the. Apr. 27,
2021 CMC, at which the MTC was argued. On June 2, 2021,
Mr. Siegel attended a Law & Motion hearing. the Court/Dept. 2 asked the parties, in a tentative
ruling,.to attend. The June 2, 2021 L&M hearing was set by the Civil Clerk when P-I Madden led .
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. her parallel MTC ~1nthe UDL-on Apr. 27, 2021 prior to the CMC (not knowing yet about relation).
Madden to th'e Court/Dept. 2 at the Apr. 27, 2021 hearing for not having" led the
apologized
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_.“dual captioned” ling m both cases on the same day. The June 2, 2021 do'uble—booked hearing was
quite simply a mistake. Madden led by dropbox, and at the time Was unaware this Court/Dept. 2
had previously the UDs her Dept. In eect, the UDs are now and “direct set”
related to “special-set”
and‘ ‘single assigned” the Hon. Marie S. Weiner, but thiswas not then known".
to
Judge Weiner- denied without prejudice the MTC, based on' the prior relation, as well as .
Stancil having 'no‘t yet been decided. The June 2, 2021 MTC was served to City it
“blank” because I
was dropbbxed and the civil clerk gave it 2 hearing date of June 2, 2021 later.
the Dept.
Madden did notify the parties of the June 2, 2021 date by email and, believes she followed up.
at least one. additional time, to advise of her intent to take the June 2, 2021 MTC off calendar. That
got aware from her, bums-it now happens, it was a benet, as the parties and judge set the brieng
18UDL00816 l 17CIV053'87 MTC / Stay
H schedule for this Motion now.
The Court advised on June 2, 2021, that the prior MTC was denied because of failure to
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place it on both actions and dual-caption, but this is not the case. The court stated on April 27, 2021,
that due to prior relation and Stqncil still outstanding, the actions would not be ‘iconsoli'd'a'ted”.
However, a judge may Consolidate and Stay. And Madden is happy, relation and Stay. The
with
line is the UDL must be stayed, whether by Consolidation and-Stay, or outright Stay.
bottom
IV. ARGUMENT
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Consolidation is
justified-if not reguired; Court may consolidate and'Stay‘UD
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Several cases advise that failure to consolidate or stay a pending UD is abuse of discretion
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when there is a related, pending action also going-to the right to possession (whether by question of
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{inept otherwise). see, e.g. MartiniBr'agg v. Moore (2013) 219 Ca1.App.'4m 367; Wilson v. Gentile
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(1992) 8 Cal.App. 4‘“ 459; Asuncion v. Super. Ct. (1980) 108 Cal. 3d 141.
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App.
In this CRAL Action, the inability of a City to even take any act 1n furtherance of a is
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project
on the satire level as ‘right to possession”. Indeed, as noted above, it1s a basis to move to strike,
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without the ability of the entity to even re-le prior to observance of CRAL. See ina.
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CCP §10.4'8 a “common” question of law' or fact for consolidation. Here, the
only requires
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parties are identical and‘the issues ,of law and fact are common and some issues/defenses, identical.
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It reads, 1048:
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(a) When actions involving a common question of law or fact are pending before the court,
it may order a joint hearing or trial of any or all the matters in'issue in the actions; it may order all
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the act-ions consolidated an'd it may make such orders concerning proceedings therein as may tend to
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avoid unnecessary costs or delay.
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(b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials
will be conducive to expedition and economy, may order a
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trial of any cause of action“ .or
separate
of any separate issue or ofany number of causes of action or issues, preserving the right of trial by
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jury required by the Constitution or a statute of this state or United States.
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Moreover, the efciency and convenience referenced, are for the courts and justice primarily,
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not solely parties. These issues are considered to avoid duplication of evidence and procedure, and
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18UDL00816/ 17CIV05387 MTC / Stay ._ I
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before iiiffeient judges and/or
H the substantial danger of inconsistent adjudications due to being
t_ried
juries. See, e.g. v. Dalkou Shield Claimants Trust (1996) 48 Cai.App.4“‘ 976, 978—79.
Todgafs‘téhbefg
Although the Dalkon'Shield case Inay be a 'more complex Case, the same risks appear in our actions.
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This case also should be consolidated fully for pre-trial “and” trial purposes, because all of
the discovery would go to proof on both actions. See, e.g.,Jud Whitehead Heater Co. v. Oblei'
1952)
111 Cal.App.2d 86 1., 867- (no bar even that some evidence inadmissible in the other).
The cases above UDs “must” be combined if‘the common and/or identical issues
support that
go to the right 'of possession. Although under CRAL, the public entity may eventually‘be able to
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displace the perso‘ns, and thus “may” (on CRAL, solely, without other issues impacting this issue),
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ultimately have a superior right to possession in the long run, the ‘s‘raison-d’etre” of CRAL is that
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persons may not be displaced until it is adjudicated that CRAL applies and what the benefits are. .
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See, e.g., Gov. Codei§72’61_(c)(4) .(“Assure” a displaced person “shall not” be required to move om
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a dwelling unless the person has had a reasonable opportunity to relocate to a comparable
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replacement; see'also id., 7261(b)(3) (again “assure” prior to displacement-there"‘will be” available
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areas “not generally less desirable and at rents
or'prices
within the nancial means of displaced
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families and individuals and sanitary dwellings, sufcient in number to meet the
decent, safe,
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needs of, and available to, those those dwellings. . ..”). See also
displaced persons requiring
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discussion infra post-Stay section below,
of Arroyo Vista (Dublin).
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Stay iustied
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CRC 3.515(h) permits a stay order, and a stay order suspends all proceedings in the action to-
which it applies. “Trial courts generally have the inherent power to__stay proceedings in
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the‘interests
ofjusticc and to promote judicial efciency. Freiberg v. City ofMission Viejo (1995) 33 Cal.A_pp.4‘h
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1484, 1489. Trial judges have inherent powers to manage and fashibn procedures to control litigation
to insure the orderly administration ofjustice. Cattle v. Super. Ct. (1992) 3 Cal.App.4‘h 1367, 1376—
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79. See also
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H Alison Madden F E L sAN-MATEO counaw E D h P0 Box 620650, .Woodside, CA 94062 JUN 9; . maddenproper@g'mail.com a» 2w Phone: 650.270.0066; No Fax In Pro Per \ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO, BRANCH SOUTHERN CITY 0F REDWOOD crrY, UD Action case #. 18UDL00816 - Direct-Set to Dept. 2, Weiner, J. Plaintiff, VERIFIED MEMORANDUM OF POINTS & V. AUTHORITES IN SUPPORT OF MOTION TO ALISON MKDOEN, CONSOLIDATE UD & CRAL ACTIONS AND TO STAY UDL PENDING RES OLUTION OF Defendént. CRAL, OR, IN THE ALTERNATIVE, TO STAY UDL PENDING RESOLUTION OF CRAL ' ACTION WITHOUT CONS OLIDATION FAIWBROUGH, ct al., - P1aihtifstPetitioner—Intervenors, Civil Unlimited Case No.: 17CIV005387 Assignédfor all 'puiposes to Dept. 2, Weiner, J. v. REDWOOD CITY, J UN? 7’9 . ”“4 Date/Time: W Dept: 2 p.m. Defendant. Action Filed: Sept. 4, 2018' Trial Date: None set (Jury demanded, UDL) " LINTRODUCTION This is "a Veried Memorandum in Support of the Motion captioned above. As notéd in the Notice of Motion & Motion, the specic application for order (Motion)1s: To Consolidate UD Action (case #1 8UDL00316) with pending CRAL (case #17CIV05387) ,and to Stay UD Action pending resolution of CRAL; or, in the alternative, to Stay UD Action pending resolution of CRAL, even without Consolidation. Veri ation UD Defendant Madden is also a PetitioneIntervenor -: in CRAL (“P-I Madden”). P-I Madden veries this MPA by signature below, so this MPA constitutes a Declaration offered in 1 18UDL00816 RWC v. Madden; 17CIV05387 Fambrough et al. _(C_RAL) ' 1295350v1 l H N éuiapbit bf Motibh; Typically, deélaiations of self 6f others are relied kin-{but Madden is pro fer as a party, with actual knowledgq, and thus veriels this MPA. Facts asserted are made on P—I’s personal knowledge or as supported by matters judicially noticeable and noticed in this or another action, whether Dept. 2 or other Superior Court or District Court(s) of Appeal judges, .or the Supreme Court. Ul . P—I Madden swears the above under penalty of perjury under the laws of the State of ON .V California and would testify the same under oath if so called. q ' Dated: June 8, 2021 m5O ~ Alison Madden, Pro Per E Z IV II. SUMNIARY 0F ARGUMENT It is an abuse of discretion not to consolidate or stay a UD action when the same iSsue has arisen in another action, going to the right of possession. See infra, §m Argument. A displacing public entity may not seek UD/eviction in a case such as this, as it is an act in thherance of a public project, and may not be undertaken before adoption of a CRAL Plan and settlement of payments. Id. . Morevoer, even without Consolidation, a Stay should issue for the UD Action; for the same cause. Here, not only are the parties‘ ‘common” under CCP §1048 (Consolidation), they are identical, and the manifoldissues are also common or identical: to (i) a-relocation plan must be enacted prior to any’displacing activity, including the ling of a UD Action, and (ii) relocation benets must be made available prior to displacement under CRAL, and indeed, prior to any.displacing activity, including ling of a UD Action. ton It is, thus, abuse ofdiscretion not to Consolidate, and/or, to Stay the UD Action. See ina, IV. Argment for'authority that'“no” displacing activity may occur without adhering to CRAL. Eviction pursuant to a public project is clearly displacing activity. Moreover, Consolidation ton does not mean jury'trial on Aug. 2, 2021 Phase 1. It means UD may not go forward until CRAL is resolved,. Then, the UDL may have its jury trial, if necessary and still (then) at-issUe. to 2 i 18UDL00816 / 17CIV05387 MTC / Stay ! As to the similar/identical issues: (1) the issue of required predicate steps under CRAL prior to displacement exists in both cases, including as a defense in UD; I (2) Dept. 2 is fully versed, and the CRAL, vs. UD Action, is the best posture om whicfi to. I determine predicate lack of procedure (see (i) above (no plan, no payment) & see MPA). Even if CRAL benets need not be “paid”, as in tendered, prior to the actual “day” of displacement (which even that is disputed by defendant), the person may not be displaced when the displacing public entity is claiming that CRAL does not apply, and benets will not be forthcoming - in such a scenario it is compelling to protect the policies of the statute by not allowing displacement until the issue of applicability and amount have been' determined by a court.’ Iatenant being displaced for a public project or purpose may not be displaced until: Thus, ‘ y I ' (a) CRAL has beencomplied with, as to procedural and substantive steps ((i), supra); (b) entitlement to benets has been established ((ii), suprg); and (c) such benets are readily available to the displaced person(s) ((ii), supra). See MPA, citing Arroyo Vista Tenants Ass ’n, et al. v. City ofDublin, C—07-05794 (The Hon. Marilyn Hall Patel, U.S. Dist. CL, Cal. N.D.) (dismissed with-prejudice after stipulated Settlement, commitments to adopt CRAL plan and pay included in Order and containing myriad specic benets, among specific commitments in the project itself, talcing displaced persons into account). Iworked for Judge Patel in law school and am not surprised the matter, as handled in her court, led to such a Settlement and Stipulation. The entire action C-07-05794 is available on! PACER, the" federal judiciary search website. The City of Dublin and/or otherReal Parties or Defendants in Arroyo Vista removed to federal court, as HUD was also at issue. However, the majority of the Settlement, Stipulation, and thereby ensuing Dismissal with NNNNNN - Prejudice, was based on CRAL, as is evident 'om the docket. The issues were rst raised by way of TRO/Motion for Injunction, and were continued and briefed thoroughly, prior to Dublin, Eden Housing and the commercial'developer agreeing to numerous, substantial commitments, as well as adopting a Plan (after ling to the action) and committing to residential relocation services and benet . 3 - 18UDL00816 / 17CIV05387 MTC / Stay u entitlement payments. 'See Ex. 1 to this Veried WA ISO Motion (Set‘tlem'eqg‘gf Arroyo Vista). ' lWhen an,entfty dees not voluntarily issue CRAL benets, and they must be adjudicated (as here), it is' a defense in UD that entitlement to benets. rst be established, and the aetual amounts payable be ascertained, and ordered by the Court. Indeed, the aififhiave defense in UDL is even a UD Action may not even beled prior to adoption of a plan and payment. Thus, Motion broader— to Stn'ke would (and will) to a stricken Complaint that may not be re-led until after CRAL. lead In the CRAL- Action, Phase 1 Trial'1s August 2021 & Phase 2, benet payments, is scheduled forearly 2022. In addition, entitlement to- and amounts in Inverse:_Condemnation (“IC”) 1s at issue.- Thus,thel UDL must yield pntil the CRAL/1C Action has been resolved, but specically "' CRAL. The only manner in which to do so is to Consolidate the actions and to Stay the UDL, or to . Stay the UDL on its ‘own, pending of the CRAL/IC Action 17CIV05387, vilithout' nalization Consolidation. In any event, the Court has inherent power to designate “lead case” of the _t_wo. Consolidating does “not” mean a parallel trial with CRAL. The UD may be consolidated and - Stayed, or Stayed outright on its own. . ' III.- PROCEDURAL BACKGROUND; FACTS _ Genesis of the Docktown Plan, Insuicient ‘Mggeals”Pracess; Denial at CRAL In 2015, politically-connected attorney Ted Hannig (“Hannig”) brought a lawsuit, together law partner (Trevor withhis life partner (on information and belief, an Elmer Guerrero) and his «Ross),.with solely the three of them as plaintiff-petitioners and attorney (albeit also under the name I of a “Citizens” type entity, but only the three of them as “Citizen”‘members) (‘_‘Hannig' Shit”); The Hannig Suit alleged environmental issues in Redwood Creek. at Docktown, later proven to be unfounded, and alleged that liocktown'Marina “with liveaboards”, violated trust the public doctrine. Redeood City’s Council assumed jurisdiction it does not have by charter, and proceeded to. settle the Hannig-Suit.without any early MOtions nor even an Answer (“Hannig Settlement”). - 4 l8UDL00816 / l7CIV05387 MTC / Stay As part of the Hannig Settlement, Council agreed to pay Mr. Hannig $1.5 million and build an underpass for a developer. It also agreed to formulate a Docktown Plan and remove allegedly prohibited residential use (not all liveaboards are forbidden by‘the public trust doctrine or SLC). In 2016, Council adopted a Docktbwn Plan, in which it gen—ied CRAL applies, and attempted to provide woefully insufcient “voluntary” relocation payments in lieu of statutory CML benets. Council relied on the allegedly illegal nature of liveaboards to conclude CRAL does not applyj' essentially it relied on the informal “legaladvice of counsel” letter of a California Dept; of Justice “DAG” (Deputy AG), Andrew Vogel, which was informal advice givento the E.O. of SLC staff, which letter came into the possession of Redwood City bythe E.O./staff waiving attorney- client privilege (“Vogel Letter3’). The Vogel Letter had no tirnearne and was offered prior to relevant‘actions by the SLC, the City and County of San Francisco, and even President Obama. First, the Vogel Letter contemplated moving Docktown liveaboards onto a local property that was not governed by the public trust doctrine (to wit, Ferrari Pond (as it is not “public tust 1and”)) and the Vogel Letter certainly never said “evict withintwo years“ and “CRAL does not apply”. blor has the AG or SLC “ever" argued that PRC §6009.1(c)(13) prohibits an independent Port. . H Second, as to the aforesaid entities and/or persons (SLC, S.F. and Obama), they either entered into settlements (SLC/SF.) or signed legislation (Obama): that allowed affordable housing on' tilled public trust upland at S.F.’s Port (SLC/SF settlement in which SLC agreed S.F. may build housing on lled public trust upland), and/or retaining oating homes all over the Southeastern U.S. (“TVA” properties) (Oba'ma’s nal act, signing U.S. Army Corps and other federal funding, and -N grandfathering over 1,500 oating homes on apprOXimately 50 properties in 13 Southeastern States, in which the U.S. reps and senators (Democratic and Republican) stood up for the property and MN home rights of their constituents.) Woe ll! Inadequate Docktown Plan & “Appeals” Process May not Snbstitute tor CRAL to | I r . 5 , 18UDL00816 l 17CIV05387 MTC/ Stay i Z . I H “D.eupt. 2 hag alrea—dy consider-ea- the ocktown Plan and Appeals .process in 17CIV04680, also titled Fambrough v. Redwood City, with many of the same paxticipants as in the CRAL Action. In ALL CAPS, Dept. 2, Weiner, J., noted that CRAL-was denied by the Docktown Plan (its \oéoqcxm.-hualo applicability) and that thus, the Hearing‘Ofcer in the Ap‘peals process did not consider CRAL, and did not apply it nor make any aivards, gffers or decisions based upon it. ' UD Defendant and CRAL P—I Madden asserts CRAL does apply, and it is now being . adjudicated (applicability and, if found to apply,-benet payments that must be Inade to “displaced persons”, who (in this case) are primary residential property owners and/or lessees (or both). City denied CRAL applies, denies this is a public project (evicting all occupants, failing to run the marina as aggoing concern, and making plans for removal These are all to and destruction). be adjudicated, in which this court shall determine if this is a public project and P—I Madden is a “displaced person”. Ifso, she is entitled to CRAL and/or IC benets/compensation, and such must be made available so she may relocate locally, see, e.g. Gov. Code §7261(c)(4) and other CRAL §§, noted ina, §IV; Argument. Moreover, “no” act, not “any’_’ act in furtherance of a project nor displacement may be undertaken prior to full and nal CRAL adjudication (the adoption of a Plan, specic notices, and the provision of services and payments, not feigned'paper actions). UDS [ed based solely an “eager” without diligence, dead and gone people-sued Residential tenants of Docktown were to have vacated by'an improper notice that stated Aug. I 31, 2018 by midnight. This was Friday of a 3-day Labor Day holiday in 2018. Many residents had rushed to moxie by midnight, with and withouthaving signed agreements with the City, and those who intended to vacate signed title and handed keys over. Notwithstanding this, the City on the Tuesday following Labor Day (the day after Labor Day), led UD Actions in Superior Court: The City sued “gone” people and dead people. Literally. The City sued John Logan, who had long passed. The City sued individuals it absolutely should have known had tendered keys and t: l 6, l 18UDL00816/ 17CN05387 MTC l Stay i signed over title. It is clear the City did and had had the UDs p—A “ZERQ” diligence before ling, prepared days if not weeks before, based on paper that should have been constantly shifting as people signed title and agreements and tendered keys. ' Not only did the City sue such “gone” people, it then required those individuals to sign I admissions they had “not” vacated, in order to get the measly, paltry (non-CRAL) relocation benets the person had agreed to. This‘happened to Cindy Siegl. Others, such as Robert‘- Taorrnina,‘were also so extorted, but failed and refused to sign. Cindy signed a false declaration under duress (really blackmail), got her money, then driving out of state, calling Aaron Aknin and advising him, never to H o speak with her again. Bob eventually got his money without giving in to blackmail. John Logan, the r—n H dead'man, was not dismissed until after weeks and hours of insistence and advocacy of P-I Madden. p— N Against this backdrop, P-I Madden elected to le a Motion to Quash in her own UDL and to L9 p—t I do so for others (she being a practicing attorney at the time) (“MTQ”). The MTQ cited the failure to A plead venue, which is normally not required in civil actions, but is required in UD by statute. whether a MTQ lies to challenge defects in a Complaint, vs. a Summons, would wend its H Eventually, r—l way to the California Supreme Court, in Stancil v. Super.- Ct. (Redwood City) Case #8253783, only \l H m recently decided May 3, 2021. Stancz'l was lead case of 10, with-Grace and Logan dismissed (Grace H \D due to a‘rnove, Logan because everyone nally acknowledged he had long passed away, sadly). O N Ironically, the Supreme Court did not decide Stancil based on the failure to plead venue, but N H on anargument only tangentially made at the Law & Motion Dept. Superior Court level, which was N N-N the Charter jurisdiction issue. The Supreme Court did not, in Stancil, resolve this issue, it merely UJ N held that an issue such as a “bar” to UD, an affirmative defense, such as not having standing as a A M N landlord due to charter jurisdiction, was more raised by_Motion to Strike or Demurrer. properly N Q P—I Madden most certainly intends to move to strike the UD Complaint based on charter N\l ' jurisdiction. Moreover, P—I Madden believes the Supreme Court, in Stancil, specically drew a . N m 18UDL00816/ 17CIV05387 MTC I Stay bright line test: one may o_nlz move to quash for “failure” to plead an essential element of a UD Action, but not for a fact mistake or substantive afrmative defens’e issue. Ingeed, when analyzed closely, Stancil upheld the cases it discusses that were b'ased on “failure” to allege (such as alleging landlord gave proper notice). Thus, Green, Parsons] and Delta Imports itself, are all preserved. The Stencil decision is, quite honestly, a disappointment. It easily could have gone either way with a logical, reasoned and intellectual opinion. I expected more from our Supreme Court than the repetitive, duplicative and rather “junior” eatment of UD. 'Ihe lede asserted that UD is a “place where landlords and tenants go to work things out” (essentially). When in reality, UD is a summary H O action, solelyfor recovery ofpossession. It is available “only” to landlords. A UD may not be r—A I—I commenced by a tenant who believes a lease'breach has occurred. UD may not be brought with r—n N ANY other cause, and no counterclaim or cross-claim is allowed. 0_nly right to possession is at issue. H UJ J UD is based on feudal, medieval law and is the most summary of all procedures known in H -§ civil practice. Accordingly, the issue deserved the due respect and that judges and practitioners r—A LII care have given it for over 35 years. Instead, it read like an adversarial advocacy piece and failed to even v—n 0‘ r—A ‘1 mention the true nature of UD. It was not-even worthy of a law school “Note” or Article (P-I r—d 'm -Madden having won the award for'best law review article at Hastings — I could, and likely will, write r—t \o a good article on this, pointing out how a respectful writing and disposition was possible — and could N o have gone either way, and article will cOntain a short write-up of how-it would indeed perhaps my N H have gone, either or both ways (i.e.' the one and then the other». The rather junior treatment may be N N due to the lack of experience of many judges in UD, as opposed to criminal prosecution and other N DJ types of civil actions deemed more worth and interesting. N N Ul In any'event,'the Supreme Court clearly failed to grapple with the nuances that earlier courts ON IN gave respect to, and the Stancil opinion has left a clunky and unclear “bright line” test of “fail to N allege something the UD statute requires”. On that basis, MTQ is still available for failure to plead m N 18UDL00816/ l7CIV05387 MTC I Stay H 'vc‘nue, and MTS is. available on CRAL 'exhaustion, jurisdiction and other grounds. Demurrer as well. lg‘n. N Moreover, UD is not even “at issue” until an Answer AFTER all of MTQ, MTS and Demurrer has LL) occurred. A tria‘l demand-(set) may not be requested by City until MTQ, MTS and Demurrer have Ul'-P ALL-been done, and an Answer after MTQ/MTS/Demurrer has been filed. But a Stay is proper now. O\ 'Agril 27 Héaring — benial without‘Pre"udice due-to Stgiwil-imd PriLrl_le_latian Q This Court heard Madden’s-rst Motion to Consolidate April 27, 2021. Madden di'd -no_t 00 \O realize this “related” the UD cases to Dept. 2. This-is good. Had Madden- known, Court/Depthad , she may n'ot have the MTC, but rather solely a Motion to Stay UD pending CRAL. - led Mr. Blum attended the. Apr. 27, 2021 CMC, at which the MTC was argued. On June 2, 2021, Mr. Siegel attended a Law & Motion hearing. the Court/Dept. 2 asked the parties, in a tentative ruling,.to attend. The June 2, 2021 L&M hearing was set by the Civil Clerk when P-I Madden led . . . . her parallel MTC ~1nthe UDL-on Apr. 27, 2021 prior to the CMC (not knowing yet about relation). Madden to th'e Court/Dept. 2 at the Apr. 27, 2021 hearing for not having" led the apologized ‘ _.“dual captioned” ling m both cases on the same day. The June 2, 2021 do'uble—booked hearing was quite simply a mistake. Madden led by dropbox, and at the time Was unaware this Court/Dept. 2 had previously the UDs her Dept. In eect, the UDs are now and “direct set” related to “special-set” and‘ ‘single assigned” the Hon. Marie S. Weiner, but thiswas not then known". to Judge Weiner- denied without prejudice the MTC, based on' the prior relation, as well as . Stancil having 'no‘t yet been decided. The June 2, 2021 MTC was served to City it “blank” because I was dropbbxed and the civil clerk gave it 2 hearing date of June 2, 2021 later. the Dept. Madden did notify the parties of the June 2, 2021 date by email and, believes she followed up. at least one. additional time, to advise of her intent to take the June 2, 2021 MTC off calendar. That got aware from her, bums-it now happens, it was a benet, as the parties and judge set the brieng 18UDL00816 l 17CIV053'87 MTC / Stay H schedule for this Motion now. The Court advised on June 2, 2021, that the prior MTC was denied because of failure to ‘ place it on both actions and dual-caption, but this is not the case. The court stated on April 27, 2021, that due to prior relation and Stqncil still outstanding, the actions would not be ‘iconsoli'd'a'ted”. However, a judge may Consolidate and Stay. And Madden is happy, relation and Stay. The with line is the UDL must be stayed, whether by Consolidation and-Stay, or outright Stay. bottom IV. ARGUMENT ' ‘ -.-‘ Consolidation is justified-if not reguired; Court may consolidate and'Stay‘UD 5, Several cases advise that failure to consolidate or stay a pending UD is abuse of discretion :3 .. when there is a related, pending action also going-to the right to possession (whether by question of 5 {inept otherwise). see, e.g. MartiniBr'agg v. Moore (2013) 219 Ca1.App.'4m 367; Wilson v. Gentile C3 I (1992) 8 Cal.App. 4‘“ 459; Asuncion v. Super. Ct. (1980) 108 Cal. 3d 141. H App. In this CRAL Action, the inability of a City to even take any act 1n furtherance of a is G project on the satire level as ‘right to possession”. Indeed, as noted above, it1s a basis to move to strike, ax HI—A \1 without the ability of the entity to even re-le prior to observance of CRAL. See ina. r—n oo CCP §10.4'8 a “common” question of law' or fact for consolidation. Here, the only requires \o H parties are identical and‘the issues ,of law and fact are common and some issues/defenses, identical. 8 It reads, 1048: H _ N ‘ (a) When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in'issue in the actions; it may order all to N the act-ions consolidated an'd it may make such orders concerning proceedings therein as may tend to 4 avoid unnecessary costs or delay. N uo (b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a N A trial of any cause of action“ .or separate of any separate issue or ofany number of causes of action or issues, preserving the right of trial by ur N jury required by the Constitution or a statute of this state or United States. . ax N Moreover, the efciency and convenience referenced, are for the courts and justice primarily, \1 N not solely parties. These issues are considered to avoid duplication of evidence and procedure, and oo N . - 10 i ‘ 18UDL00816/ 17CIV05387 MTC / Stay ._ I I before iiiffeient judges and/or H the substantial danger of inconsistent adjudications due to being t_ried juries. See, e.g. v. Dalkou Shield Claimants Trust (1996) 48 Cai.App.4“‘ 976, 978—79. Todgafs‘téhbefg Although the Dalkon'Shield case Inay be a 'more complex Case, the same risks appear in our actions. i This case also should be consolidated fully for pre-trial “and” trial purposes, because all of the discovery would go to proof on both actions. See, e.g.,Jud Whitehead Heater Co. v. Oblei' 1952) 111 Cal.App.2d 86 1., 867- (no bar even that some evidence inadmissible in the other). The cases above UDs “must” be combined if‘the common and/or identical issues support that go to the right 'of possession. Although under CRAL, the public entity may eventually‘be able to r—A O displace the perso‘ns, and thus “may” (on CRAL, solely, without other issues impacting this issue), r—l p—A ultimately have a superior right to possession in the long run, the ‘s‘raison-d’etre” of CRAL is that N H persons may not be displaced until it is adjudicated that CRAL applies and what the benefits are. . r—t DJ See, e.g., Gov. Codei§72’61_(c)(4) .(“Assure” a displaced person “shall not” be required to move om A n—t a dwelling unless the person has had a reasonable opportunity to relocate to a comparable Ul H ‘ replacement; see'also id., 7261(b)(3) (again “assure” prior to displacement-there"‘will be” available p—t a I q p—I areas “not generally less desirable and at rents or'prices within the nancial means of displaced in 00‘ b—A families and individuals and sanitary dwellings, sufcient in number to meet the decent, safe, \O' i—i needs of, and available to, those those dwellings. . ..”). See also displaced persons requiring O t0 discussion infra post-Stay section below, of Arroyo Vista (Dublin). H N Stay iustied N N . CRC 3.515(h) permits a stay order, and a stay order suspends all proceedings in the action to- which it applies. “Trial courts generally have the inherent power to__stay proceedings in N the‘interests ofjusticc and to promote judicial efciency. Freiberg v. City ofMission Viejo (1995) 33 Cal.A_pp.4‘h N 1484, 1489. Trial judges have inherent powers to manage and fashibn procedures to control litigation to insure the orderly administration ofjustice. Cattle v. Super. Ct. (1992) 3 Cal.App.4‘h 1367, 1376— m .-N 11 ’n-. 18UDL00816I 17CIV05387 MTC / Stay 79. See also