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8/4/2019 Deamicis' -- CA Supreme Crt Petition for Writ of Certioriari FILED 9-22-11-1
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Case No. M-1502-CL-18351
IN
THE
SUPREME COURTO
F THE
STATE OF CALIFORNIAEN BANC
______________________________________________
Ruth M. Deamicis
PETITIONER
vs.
Superior Court of the State of California for the County of Kern,Metropolitan Division, Appellate Division; and Superior Court of the State
of California for the County of Kern, Mojave Branch, the
Honorable Kenneth Pritchard, Commissioner,
RESPONDENTS
______________________________________________
PETITION FOR WRIT OF CERTIORARI;
MEMORANDUM OF POINTS AND AUTHORITIES
______________________________________________
Ruth M. Deamicis
20416 Sierra Ave
Tehachapi CA 93561
661-823-4125
Self Represented
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PETITION FOR WRIT OF CERTIORARI
QUESTIONS PRESENTED
Did the Judicial Council of California/Administrative Office of the Courtsinclude within the Judges Benchguide 31 the specifically acknowledged
defense Title is at Issue to insure redress of due process issues inherent to
foreclosed homeowners such as statutorily implied prohibition from
demanding production of the Note and Deed of Trust and/or statutory
abrogation of default procedure by private agreement?
In constructing the non-judicial foreclosure statute(s) Cal. Civil Code 2924,
was the intention of the California Legislature to abrogate California
Commercial Code provision and private agreement right to demand
production of the Note and Deed of Trust from the party demanding
payment?
In constructing the non-judicial foreclosure statute(s) Cal. Civil Code 2924,
was the intention of the California Legislature to abrogate provisional
access to power of sale by private agreement, which abrogation is
prohibited under Article 1 Section 10 of the U.S. Constitution, in favor of
statutory access to power of sale to empower statutory non-judicial
foreclosure whereby is created a statutory waiver of due process prohibited
under the Fourteenth Amendment?
i
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RULE 8.552 STATEMENT
In the spirit of Rule 8.552.
THIS IS A CRISIS! In California between 9,000 and 18,000 Foreclosed
homes are confiscated EACH MONTH by the banking industry
(Information available at http://www.foreclosureradar.com/california-
foreclosures). The broadcast news media, newspaper and numerous
periodicals have raised public awareness that over ninety-nine percent of
these confiscated homes have been and will continue to be acquired by
fraudulent means. The small percentage of homeowners who rely upon the
California trial courts for protection under express laws are in most cases
met with abuse of discretion. This crisis of massive California homeowner
exile has been by the hand of the trial courts who are presumed to be under
oath to stand as guardians of law, equity and substantial justice to prevent
the very travesty of justice they continue to support. The Judicial Council
of California/Administrative Office of the Courts drew the line to insure the
rights of those who stood on there right to equal protection under the laws
would have issues of title, fraud and due process heard by an impartial
judiciary. Presently, in any proceeding dealing with foreclosure issues, the
trial court merely presides over a bank tribunal. This crisis requires the
immediate intervention of this honorable Court as week by week thousands
of homeowners are continually being evicted contrary to the
Constitutionally protected right to equal protection under the laws.
ii
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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Petitioner hereby certifies that she is not aware of any person or
entity that must be listed under the provisions of California Rule of Court
8.208(e).
iii
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TABLE OF CONTENTS
Page
PETITION FOR WRIT OF CERTIORARI (Index Tab 1)..........................1
PRELIMINARY AND JURISDICTIONAL STATEMENT.............1THE PARTIES...................................................................................5
FACTS AND LAW............................................................................6
REAL PROPERTY IN CERTAIN CASES............................6
CALIFORNIA JUDGES BENCHGUIDES............................7
ESTABLISHING JURISDICTION........................................8
CLAIMS ASSERTED........................................................................9
RELIEF SOUGHT...........................................................................10
VERIFICATION (Index Tab 2)......................................................11
MEMORANDUM OF POINTS AND AUTHORITIES (Index Tab 3).....12
Scope of Unlawful Detainer and Civil Limited Jurisdiction............12
Construction of Applicable Law.......................................................12
CONCLUSION............................................................................................15
CERTIFICATE OF COMPLIANCE (Index Tab 4)...................................17
ATTACHMENTS
A - Trial Court Minute Order........................................................................2
B - Trial Court Application For Stay Of Enforcement Of Judgment
and denial of Application........................................................................2
C - Appellate Division Request For Emergency Stay Of Execution
and denial of Request................................................................................2
D - Petition For Writ Of Supersedes to stay eviction pending appeal
and denial of Writ....................................................................................2
E - Petitioners Appellate Division appeal briefs..........................................2
iv
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EE - Petitioners Appellate Division oral argument transcript
and Appellant Division decision...........................................................2
ATTACHMENTS (cont.)F - Petitioners accepted certification of transferability to the State Court of
Appeal.................................................................................................2
G - State Court of Appeal denial of Petitioners case and
Appellate Division Remittitur...................................................................3
v
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TABLE OF AUTHORITIES
Page(s)
Cases
Abelleira v. District Court of Appeal,17 Cal.2d 280, 288 [109 P.2d 942, 132 A.L.R. 715]...................13,14
Asuncion v Superior Court,
(1980) 108 CA3d 141-146, 166 CR 306.........................................7,9
Auto Equity Sales, Inc. v. Superior Court
57 Cal. 2d 450 - Cal: Supreme Court 1962......................................13
Drouet v Superior Court
(2003) 31 C4th 583, 587, 3 CR3d 205..............................................7
Glendale Fed. Bank v Hadden,
(1999) 73 CA4th 1150, 1153, 87 CR2d 102......................................7
Globe Indemnity Co. v. Larkin,
62 Cal.App.2d 891, 894 [145 P.2d 633]...........................................15
Joyce v. U.S.
474 2D 215......................................................................................3,8
Latham v. Santa Clara County Hospital,104 Cal.App.2d 336, 340 [231 P.2d 513].........................................14
Manning v Franklin,
(1889) 81 C 205, 207, 22 P 550.........................................................8
Mehr v Superior Court,
(1983) 139 CA3d 1044, 1049, 189 CR 138........................................7
Melo v. U.S.
505 F 2d 1026....................................................................................8
Nork v Pacific Coast Med. Enters., Inc.,
(1977) 73 CA3d 410, 414, 140 CR 734..............................................7
vi
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Cases (cont.)
Old Wayne Mut. L. Assoc. v. Mcdonough
204 U. S. 8, 27 S. Ct. 236 (1907).......................................................8
People v. McGuire,
45 Cal. 56, 57-58..............................................................................14
Portnoy v. Superior Court,
20 Cal.2d 375 [125 P.2d 487]...........................................................13
Simmons v. Superior Court,
52 Cal.2d 373 [341 P.2d 13].............................................................13
Stuck v. Medical Examiners
94 Ca 2d 751. 211 P2d 389.............................................................3,8
Vella v Hudgins
(1977) 20 C3d 251, 255, 142 CR 414.................................................7
17 Cal.2d at p. 291.......................................................................................14
17 Cal.2d at p. 293.......................................................................................15
57 Cal.2d 456...............................................................................................15
Statutes
California Civil Code 1940............................................................................6
California Civil Code 2924............................................................................6
Code of Civil Procedure 988t...................................................................15
Code of Civil Procedure 1085....................................................................1
Code of Civil Procedure 1159-1179a.....................................................6,7
Code of Civil Procedure 1161a(b)(3)............................................................6
Code of Civil Procedure 1161.1....................................................................6
vii
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Code of Civil Procedure 1162.......................................................................6
Pen. Code, 1471........................................................................................15
Other AuthoritiesGoldberg, The Extraordinary Writs and The Review
of Inferior Court Judgments (1948) 36 Cal.L.Rev. 558, 576......................14
The Judges Benchguide 31.........................................................................2,7
III. APPLICABLE LAW...................................................................7
G Tenant Defenses 1. [31.26] Listing of Common
Defenses...................................................................................7
(8) Title is at issue...................................................................7
Additional defenses..................................................................7
RULES
California Rules of Court Rule 8.204(c)......................................................17
California Rules of Court Rule 8.486.........................................................1,2
Constitutional Provisions
The United States Constitution, Fourteenth Amendment............................13
Cal. Const., Art. VI, 4e.............................................................................15
California Constitution article VI, section 10................................................1
viii
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PETITION FOR WRIT OF CERTIORARI
TO THE HONORABLE JUSTICES OF
THE SUPREME COURT OF CALIFORNIA En Banc:
PRELIMINARY AND JURISDICTIONAL STATEMENT
1. By this original Verified Petition for Writ of Certiorari,
Petitioner hereby seeks an order directing Respondents to reverse, vacate
and dismiss the summary judgment decision of the trial court.
2. Petitioner requests immediate temporary stay of the trial court
judgment order in the Case No. M-1502-CL-18351, CJW. Eviction of
Petitioner from her home before decision of this petition is in process and
soon eminent, and warrants the immediate intervention of a temporary stay
by this Court to preserve Petitioners possession and current ability to
pursue judicial remedy to a lawful conclusion.
3. This Petition is brought on the grounds that an unlawful
detainer action was adjudicated in excess of jurisdiction; and the Appellate
Division was complicit in the trial courts abuse of discretion to confer
jurisdiction where none existed to bring validity to a void proceeding.
4. Petitioner respectfully invokes the original jurisdiction of this
Court pursuant to California Constitution article VI, section 10 and
California Code of Civil Procedure section 1085; and Rule 8.486 of the
1.
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California Rules of Court.
5. Addressing Rule 8.486 of the California Rules of Court,
Petitioners affirmative defenses were deemed quiet title issues and
improper before the trial court because of the summary nature of unlawful
detainer litigation (See Trial Court Final Ruling of Unlawful Detainer,
Attachment A). The ensuing efforts of Petitioner/Appellant for review
of the trial courts decision wherein jurisdiction in the Appellate Division
was raised pursuant to California law as provided within the Judges
Benchguide 31, is as follows:
(A) Trial Court Minute Order, December 23, 2011.
(B) Trial Court Application For Stay of Enforcement of Judgment ,
January 11, 2011and Denial of Stay , January 12, 2011
(C) Appellate Division Request For Emergency Stay Of Execution,
January 18, 2011 and Denial of Stay, January 28, 2011;
(D) Petition For Writ Of Supersedes to stay eviction pending appeal and
Denial of Writ;
(E) Petitioner/Appellants Briefs, March 11, 2011 and May 3, 2011;
(EE) Appellate Division Oral Argument Transcript and Final Ruling,
June 6, 2011;
(F) Granted Certification of Transferability, July 18, 2011.
(G) State Court of Appeal Notice of Record on Transfer
2.
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Acceptance to State Court of Appeal,, July 21, 2011;
(H) State Court of Appeal Denial of Petitioners Case; July 27, 2011
(I) State Court Appellate Division Remittiter, July 29, 2011.
At no point did the trial court or the reviewing court address the
jurisdictional challenge as required and held in higher court decisions that
"Once challenged, jurisdiction cannot be assumed, it must be proved to
exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d 389; "There is
no discretion to ignore lack of jurisdiction. "Joyce v. U.S. 474 2D 215.
The egregious departure from California law and its collateral effect
on foreclosed California homeowners mandates the original jurisdiction of
this honorable Court by its reverent authority to bring integrity and
substantial justice to the presently hostile climate within the Superior Court.
6. The issues presented by this Petition are ofgreat public
importance and need to be resolved promptly because of the increasing
severe economic impact on homeowners and this State1. It is in the
public interest to henceforth reestablish the authority of the Judicial Council
of California/Administrative Office of the Courts and the Supreme Court
Of The State Of California over the Superior Court of California to restore
the integrity of impartial referee quality of the Superior Court that has taken
a seemingly hostile position against foreclosed California homeowners to
deny relief afforded by raising an express specifically recognized defense
3.
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provided by the Judicial Council of California/Administrative Office of the
Courts. By inference and express language of both statute and stare decisis
decision an Unlawful Detainer action is an improper venue to hear
litigation when title is at issue and litigation is between a plaintiff-lender
and defendant-homeowner. Respondents refusal to submit to the higher
court decisions results in an excess jurisdiction summary judgment for
possession of real property against most every California homeowner
following foreclosure. Additionally Petitioner moves this Court by this
Petition to order Respondents to show cause why subject case was
sustained in summary judgment once jurisdiction was challenged; and why
did Respondents assume and confer jurisdiction when none existed
resulting in the misleading appearance of lawful adjudication and verdict
that was in fact a void proceeding. This Petition does not present any
questions of fact the Court must resolve before issuing the relief sought.
Therefore, exercise of original jurisdiction is proper.
7. Petitioner has no adequate remedy at law. No other
proceeding is available to Petitioner to obtain a speedy and final resolution
of this denial of due process.
______________________________________________________
1Between 16,000 and 33,000 Foreclosure filings occur every month in California.
(www.foreclosureradar.com/california-foreclosures)
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4.
THE PARTIES
8. Petitioner is Defendant in the lawsuit entitled U.S. Bank
National Association As Indenture Trustee vs. Nelson E. Deamicis, Ruth
Deamicis and DOES 1 through 100, inclusive, Kern County Superior Court
- East Division- Mojave Branch Judicial District, Case No. M-1502-CL-
18351. Petitioner is currently in possession of the Property located at
20416 Sierra Ave., Tehachapi CA 93561. A writ of possession was issued
but not served and the automatic stay order following bankruptcy has been
lifted as of this filing.
9. U.S. Bank National Association As Indenture Trustee is
summary judgment Plaintiff granted possession of the Property and the
party whos interests will be affected by this petition.
10 The Superior Court of the State of California for the County
of Kern, Mojave Branch, Appellate Division presided over Petitioners
appeal and jurisdiction challenge.
11. The Superior Court of the State of California for the County
of Kern, Mojave Branch, the Honorable Kenneth Pritchard, Commissioner,
presided in excess of jurisdiction over the unlawful detainer action brought
against Petitioner.
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5.
FACTS AND LAW
12. REAL PROPERTY IN CERTAIN CASES. It is clear from
the language ofCalifornia Code of Civil Procedure Sections 1159-1179a
REAL PROPERTY IN CERTAIN CASES that recovery of possession of real
property is limited to leased or rented real property.
(Bold type used for emphasis)
1161 1. When he or she continues in possession, in person or by subtenant,
of the property, or any part thereof, after the expiration of the term for
which it is let to him or her;2. When he or she continues in possession, in person or by subtenant,
without the permission ofhis or her landlord, or the successor in estate of
his or her landlord, if applicable, after default in the payment of rent,
pursuant to the lease or agreement under which the property is held,
3. When he or she continues in possession, in person or by subtenant,
after a
neglect or failure to perform other conditions or covenants of the lease or
agreement under which the property is held,
5. As used in this section, tenant includes any person who hires real
property except those persons whose occupancy is described in subdivision(b) of Section 1940 of the Civil Code.
1161a
(b) In any of the following cases, a person who holds over and
continues in possession of a manufactured home, mobilehome, floating
home, or real property after a three-day written notice to quit the property
has been served upon the person, or if there is a subtenant in actual
occupation of the premises, also upon such subtenant, as prescribed in
Section 1162, may be removed therefrom as prescribed in this chapter:
(3) Where the property has been sold in accordance with Section 2924
of the Civil Code, under a power of sale contained in a deed of trust
executed by such person, or a person under whom such person claims, and
the title under the sale has been duly perfected.
(c) Notwithstanding the provisions of subdivision (b), a tenant or
subtenant in possession of a rental housing unit which has been sold by
reason of any of the causes enumerated in subdivision (b)...
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6.
13. California applicable law specifically supports the exclusion
of foreclosed homeowners with respect to CCP 1159-1179a.
(Bold type used for emphasis)
CALIFORNIA JUDGES BENCHGUIDES
Benchguide 31 LANDLORD-TENANT LITIGATION: UNLAWFUL
DETAINER
III. APPLICABLE LAWA. [31.3] General Background (Page 31-8) (Page references
added)
An unlawful detainer proceeding under CCP 1159-1179a is
a summary method for recovery of possession ofleased premises.
It is a limited proceeding designed to permit a landlord to recoverpossession of real property from a tenant who is wrongfully in
possession. Glendale Fed. Bank v Hadden (1999) 73 CA4th 1150,
1153, 87 CR2d 102.
Because of its summary character, an unlawful detainer action
is not a suitable vehicle for trying complicated ownership issues
involving allegations of fraud.Mehr v Superior Court(1983) 139
CA3d 1044, 1049, 189 CR 138.
G. Tenant Defenses (Page 31-23)
1. [31.26] Listing of Common Defenses
A tenant may assert only those defenses that, if proved, wouldeither preserve the tenants possession of the property or preclude
the landlord from recovering possession.Drouet v Superior Court
(2003) 31 C4th 583, 587, 3 CR3d 205; Vella v Hudgins (1977) 20
C3d 251, 255, 142 CR 414. Specifically recognized defenses
include the following:(8) Title is at issue. The litigation is between a plaintiff-
lender and a defendant-homeowner, rather than between landlord
and tenant, 138 (because of summary nature of unlawful detainer
proceedings, it is unsuitable forum to try complicated ownership
issues);Asuncion v Superior Court(1980) 108 CA3d 141, 145-146,
166 CR 306 (eviction of homeowners following foreclosure raises
due process issues and must be heard in superior court).
Additional defenses. As discussed inNork v Pacific Coast
Med. Enters., Inc. (1977) 73 CA3d 410, 414, 140 CR 734, additional
specifically recognized defenses include the following:
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7.
There was no rental because the supposed tenant was really
the purchaser of a life estate. Manning v Franklin (1889) 81 C 205,
207, 22 P 550.
14. ESTABLISHING JURISDICTION. Respondents refused to
submit to the stare decisis authority of both California District Court and
U.S. Supreme Court decisions when Petitioner challenged the jurisdiction
of the trial court to hear litigation between parties clearly excluded from the
scope of an action in unlawful detainer.
15. Respondents refused to the mandate that "Once jurisdiction is
challenged, the court cannot proceed when it clearly appears that the court
lacks jurisdiction, the court has no authority to reach merits, but rather
should dismiss the action. "Melo v. U.S. 505 F 2d 1026; "Once challenged,
jurisdiction cannot be assumed, it must be proved to exist." Stuck v.
Medical Examiners 94 Ca 2d 751. 211 P2d 389; "There is no discretion to
ignore lack of jurisdiction. "Joyce v. U.S. 474 2D 215; "A court cannot
confer jurisdiction where none existed and cannot make a void proceeding
valid. It is clear and well established law that a void order can be
challenged in any court". Old Wayne Mut. L. Assoc. v. Mcdonough, 204
U.S. 8, 27 S. Ct. 236 (1907). The trial court chose to abuse its discretion to
ignore lack of jurisdiction and/or confer jurisdiction where none existed.
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8.
The Appellate Division supported the abuse of discretion and further
conferred jurisdiction where none existed.
CLAIMS ASSERTED
16. The Court held inAsuncion v Superior Court(1980) 108
CA3d 141, 145-146, 166 CR 306 (eviction of homeowners following
foreclosure raises due process issues and must be heard in superior court).
Petitioner/defendant-homeowner has been denied due process by
Respondents defiant pursuit to adjudicate an unlawful detainer action
despite the jurisdictional challenge based upon the express limited scope
restriction imposed upon the trial court when the parties are a plaintiff-
lender and defendant-homeowner and title is at issue.
17. Petitioner/defendant-homeowner has been denied due process
by Respondents defiant endeavor to deny Petitioner access to the courts of
proper jurisdiction by granting summary judgment in an improper court of
limited jurisdiction in order to persuade Petitioner from pursuing the issues
of title and the inherent due process issues that must be heard in a court
of civil unlimited jurisdiction.
18. The actions of Respondents resulted in the compound denial
of Petitioners right to due process of law, which the Judicial Council of
9.
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California/Administrative Office of the Courts and higher court decisions
have endeavored to protect.
RELIEF SOUGHT
WHEREFORE, Petitioner prays this Court by a writ of certiorari:
1. Direct Respondents to comply with applicable law and
jurisdiction restriction guidelines forthwith;
2. Direct Respondent Commissioner Kenneth Pritchard, to
vacate judgment order and dismiss the unlawful detainer action Case No.
M-1502-CL-18351.
3. Direct Respondents to show cause for non-compliance of
Unlawful Detainer controlling law and jurisdictional challenge;
4. Order immediate stay of enforcement of the Unlawful
Detainer Judgment Order dated December 23, 2010; Case No. M-1502-CL-
18351, CJW;
5. For such other and further relief as the Court may deem just
and proper.
Dated: September 17, 2011 By______________________________
Ruth M. Deamicis, Petitioner/Defendant
10.
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MEMORANDUM OF POINTS AND AUTHORITIES
Scope of Unlawful Detainer and Civil Limited Jurisdiction
The Judicial Council of California/Administrative Office of the
Courts exercised the necessary forethought to address the due process issue
inherently raised in an unlawful detainer action between a plaintiff-lender
and defendant-homeowner wherein an answer and affirmative defenses are
required of the defendant-homeowner, and that those affirmative defenses
would inevitably raise issues that could not be heard in a summary action
court. The Unlawful Detainer Court expressly exists to hear litigation
between a landlord and tenant under a lease/rental agreement and expressly
cannot hear litigation between plaintiff-lender and defendant-homeowner.
The trial court is constrained by statute and applicable law to reach verdict
based upon the admissible evidence, which includes the status of the
defendant as determined by the defendant-homeowners responsive
pleading. Should the defendant-homeowner fail to motion, demurer or
raise the appropriate specifically recognized defense regarding issue of
title and/or fraud, the trial court is not required to draw conclusions outside
the pleadings of the parties.
Construction of Applicable Law
Equal Protection Of the Laws Is Fundamental To Californias
11.
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Constitutional Structure. The Judges Benchguide 31 provides the
California Superior Court with the appropriate view and required action to
ensure the Constitutionally protected rights of homeowners under the
Fourteenth Amendment are not denied or violated and the rights of
landlords and tenants under contractual agreement are protected. Upon a
defendant-homeowners first assertion of title issues and foreclosure fraud
or challenge of excess jurisdiction, the trial court cannot move forward to
evict a defendant-homeowner from the premises but is constrained to
exercise other procedural options available sua sponte.
In the case ofAuto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d
450 - Cal: Supreme Court 1962 the Court held [2] Certiorari, like
prohibition, is, of course, a "jurisdictional" writ. While it cannot be used to
attack an error of a lower tribunal committed in the exercise of its
jurisdiction, it is available when that tribunal has acted in excess of its
"jurisdiction." (Simmons v. Superior Court, 52 Cal.2d 373 [341 P.2d 13];
Portnoy v. Superior Court, 20 Cal.2d 375 [125 P.2d 487].) [3] The meaning
of "jurisdiction" for [57 Cal.2d 455] the purposes of certiorari and
prohibition is different and broader than the meaning of the same term
when used in connection with "jurisdiction" over the person and subject
matter. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 288 [109 P.2d
12.
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942, 132 A.L.R. 715]; Goldberg, The Extraordinary Writs and The Review
of Inferior Court Judgments (1948) 36 Cal.L.Rev. 558, 576.) [4] In
commenting on the meaning of "jurisdiction" in a prohibition case, it was
said inAbelleira that, "Speaking generally, any acts which exceed the
defined power of a court in any instance, whether that power be defined by
constitutional provision, express statutory declaration, or rules developed
by the courts and followed under the doctrine ofstare decisis, are in excess
of jurisdiction, in so far as that term is used to indicate that those acts may
be restrained by prohibition or annulled on certiorari." (17 Cal.2d at p. 291.)
[6] Under the doctrine ofstare decisis, all tribunals exercising inferior
jurisdiction are required to follow decisions of courts exercising superior
jurisdiction. Otherwise, the doctrine ofstare decisis makes no sense. [7]
The decisions of this court are binding upon and must be followed by all
the state courts of California. [8] Decisions of every division of the District
Courts of Appeal are binding upon all the justice and municipal courts and
upon all the superior courts of this state, and this is so whether or not the
superior court is acting as a trial or appellate court. [9] Courts exercising
inferior jurisdiction must accept the law declared by courts of superior
jurisdiction. It is not their function to attempt to overrule decisions of a
higher court. (People v. McGuire, 45 Cal. 56, 57-58; Latham v. Santa Clara
13.
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County Hospital, 104 Cal.App.2d 336, 340 [231 P.2d 513]; Globe
Indemnity Co. v. Larkin, 62 Cal.App.2d 891, 894 [145 P.2d 633].) [57
Cal.2d 456] [10] This rule requiring a court exercising inferior jurisdiction
to follow the decisions of a court exercising a higher jurisdiction has
particular application to the appellate departments of the superior court.
Until very recently, the decisions of those courts were not subject to
appellate review except by the use of original writs in exceptional cases.
Even under the recent constitutional amendment (Cal. Const., art. VI, 4e),
which is not here applicable, the right of review is strictly limited (Code
Civ. Proc., 988t; Pen. Code, 1471). It would create chaos in our legal
system if these courts were not bound by higher court decisions.
[11] The Abelleira case, supra, held that the rule of stare decisis was a rule
of jurisdiction for the purposes of the writ of prohibition (17 Cal.2d at p.
293). For the reasons stated in that case, that rule is also one of jurisdiction
for the purposes of the writ of certiorari.
CONCLUSION
Petitioner was not summoned by the trial court to argue issues of a
rental agreement as none existed. Petitioner was not summoned to redress
the issues of foreclosure fraud or fraudulent conveyance of title and lack of
standing to foreclose non-judicially. Petitioner was summoned by the trial
14.
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court to answer a summons for unlawful detainer under threat of default
judgment within 5 days of service with affirmative defenses that cannot and
will not be heard by the very court making summons in order to summarily
grant judgment to dispossess Petitioner of the Property for failure to raise
defenses that are proper before the trial court in unlawful detainer. This
abuse of discretion and disregard for higher court decision demonstrate
Respondents resolve to deprive Petitioner of property in pursuit of some
unknown agenda. Respondents had procedural options sua sponte, to avoid
exercising excess jurisdiction and abuse of discretion but chose a path
independent of established jurisprudence.
For the foregoing reasons, Petitioner respectfully asks this Court to
grant the petition for writ of certiorari and order Respondents to bring
themselves into compliance with California law and show cause for non-
compliance of Unlawful Detainer controlling law and jurisdictional
challenge.
Petitioners case reflects a statewide matter of substantial justice and
great public importance of an emergency nature that requires immediate
resolution.
Respectfully submitted,
By ____________________________
DATED September 17, 2011 Ruth M. Deamicis, Petitioner
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CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby
certify that this petition contains 4470 words, including footnotes. In
making this certification, I have relied on the word count of the computer
program used to prepare this petition.
__________________________________
Ruth M. Deamicis, Petitioner/Defendant
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VERIFICATION
STATE OF CALIFORNIA
COUNTY OF KERN
BEFORE ME personally appeared Ruth M. Deamicis who, being by
me identified in accordance with California law, deposes and says:
My name is Ruth M. Deamicis, Petitioner herein. I have read the
foregoing Petition for Writ of Mandate and know the contents thereof. I am
informed and believe and based on said information and belief I allege that
the contents therein are true of my own personal knowledge.
I declare under penalty of perjury that the foregoing is true and
correct.
Executed on September 17, 2011 in Kern County, California.
By:_______________________________
Ruth M. Deamicis, Petitioner
On September 17, 2011 before me,_______________________________________
Name, Title of Officer E.G., Jane Doe, Notary PublicPersonally appeared Ruth M. Deamicis, who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
__________________________________(SEAL)
NOTARY PUBLIC SIGNATURE
_____________________________
Notary Public
My commission expires:
17.