Judge Richard G. Cline
San Diego Superior Court
Please take notice that Petitioners... in the above-entitled
case demand that the Honorable Richard G. Cline, the
Judge to whom this case is assigned, be disqualified for
cause.  Judge Cline is prejudiced against Petitioners and
has failed to disqualify himself pursuant to
December 3, 2003.

On March 2, 2012 a day after the first hearing at judge
Cline's courtroom Petitioners drop off a preemptory
challenge form (CCP §170.6 (a)(2)).  

On March 6, 2012 Judge Cline denied Petitioners
preemptory challenge as untimely.

On March 12, 2012 Petitioners served Judge Cline with a
Statement to Disqualify Judge Cline and Demand for
Disqualification based on CCP Codes 170.1; 170.1 (a)(6)
(A)(i); 170.1 (a)(6)(A)(ii); 170.1 (c)(6)(B); 170.3; 170.1
(B0(2)(A); 170.6 (a) (2); 170.3(c)(1);170.3(a) (1);170-

On March 19, 2012, Judge Cline filed an Order Striking
Petitioner's Statement, without answering the challenges
brought forth in Petitioners Statement to Disqualify Judge
Cline as a matter of law. Without declaring facts to the
challenges, and refused to refer the case for
reassignment to a different judge are required by CCP
Section 170.3 (c)(5) and (c)(6).;  

A copy of Petitioners statement was mailed to the
California Judicial Counsel and the Administrative Offices
of the San Diego Court and the US Postal Service
tracking shows that it was received by both the California
Judicial Counsel and the San Diego Superior Court
Administrative Offices.  A copy of Petitioners Statement
to Disqualify Judge Cline was also given to North County
Supervision Judge Aaron H. Katz, after Judge Cline
Striking Order of Petitioners Demand to Disqualify Judge
Cline was received by Petitioners.  Based on the facts
and simultaneous conflicts of Interests jurisdiction in this
case has not been established.              

Therefore, Petitioners request that any proceedings in
this case be suspended until jurisdiction is established
and the matter of disqualification of Judge Cline is

As of April 9, 2012 no hearing has been set in Petitioners
case.  The case has not been either set for hearing on
the matter of Demand to Disqualify Judge Cline and no
Judge has been assigned to Petitioners case. Petitioners
complained that Judge Cline violated the Court’s Policy
Against Bias, Rule 989.3, Canon 3 (B)(5) and (6).  CCP
Section 170.3 (c) (6) States that:

"The judge deciding the question of disqualification may
decide the question on the basis of the statement of
disqualification and answer and any written arguments as
the judge requests, or the judge may set the matter for
hearing as promptly as practicable. If a hearing is
ordered, the judge shall permit the parties and the judge
alleged to be disqualified to argue the question of
disqualification and shall for good cause shown hear
evidence on any disputed issue of fact. If the judge
deciding the question of disqualification determines that
the judge is disqualified, the judge hearing the question
shall notify the presiding judge or the person having
authority to appoint a replacement of the disqualified
judge as provided in subdivision (a)."

Petitioners contend that Judge Cline, cannot rule on his
own impartiality in that serious disciplinary consequences
may follow a determination that a judge is biased,  In re
(In re Rassmussen (1987) 43 Cal.3d. 536, 538).

Petitioners rely on the venerable principle that ‘[T] he trial
of a case should not only be fair in fact, but that it also
should appear to be fair.  And where the contrary
appears, it shocks the judicial instinct to allow the
judgment to stand.  (emphasis supplied)  (Webber v.
Webber (1948) 33 Cal.2d 153, 155, quoting Pratt v. Pratt
(1903) 141 Cal. 247, 252).

Judge Cline conduct has destroyed the appearance of
judicial impartiality and has forever deprived Petitioners
of confidence that their Constitutional and Civil Rights
can or will be fairly and impartially considered and
determined by this jurist.   

The State of California, Commission on Judicial
Performance published “2002 Statistics: Types of
Conduct Resulting in Discipline.”  The Commission
recognized examples of such conduct (that has been
consciously directed toward Petitioners by Judge Cline)

Bias or Appearance of Bias
Failure to Ensure Rights
Abuse of Sanctions

                          DEMAND FOR RELIEF

Petitioners demands that:

•        Judge Cline and all judges of the San Diego
Superior Court be disqualified and that the case be
immediately signed to another judge for determination on
Judge Cline's Disqualifications.

•        That any proceedings in this case be suspended
until jurisdiction is established and the matter of
disqualification of Judge Cline is resolved.

•        The Chief Justice provide for the reassignment of
this case to a different judge, pursuant to the California
Constitution, Article VI, Section 6.  

•        That pursuant to CCP § 170.3(c)(5), the
Chairperson of the Judicial Council assign a judge to
hear this motion.

•        All rulings and orders rendered by Judge Cline be
vacated, as Petitioners Statement of Disqualification
provides evidence which clearly shows that grounds for
such disqualification existed.  (Wickoff v. Janes (1958)
159 Cal.App.2d 664, 670)

This Demand and Notice of Disqualification are based on
Petitioners Statement of Disqualification/Exhibits, all
records and files of this case, and any further oral or
documentary evidence introduced at the hearing of this

(S) 170.1; 170.1 (a)(6)(A)(i);
170.1 (a)(6)(A)(ii); 170.1
(c)(6)(B); 170.3; 170.1 (B0(2)(A);
170.6 (a) (2);

DEPT:     N-2   
JUDGE:  Hon. Richard Cline






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(See Motion to Disqualify below)

CASE No.: 37-2010-00150342-PR-TR-NC         
JUDGE:  Hon.  Richard G. Cline
COMPLAINT FILED:   July 15, 2010


Overview: Purpose of Statement of Disqualifications
To Command the Superior Court for the State of California for the County
of San Diego North County Division Judge Richard G. Cline to Recuse or
Disqualify Himself as Judicial Officer for Subject Case No. 37-2010-


Our case and many cases were transferred/rotated from Honorable
Judge Harry L. Powazek to Hon. Judge Richard G. Cline. Our case was in
Judge Harry L. Powazek for one year and a half.  
When we went to the fist hearings set forth by Defendant's attorney
Roland Achtel there was a posting in front of Judge Cline's door in the
message board.  The sign read:

Judicial Reassignment North County Division Probate
Effective January 30, 2012

"Judge Richard G. Cline will be judicial Officer assigned to hear the
probate calendar  effective January 30, 2012. Cases previously assigned
to Judge Harry L. Powazek in Department 23 will be reassigned to judge
Richard G. Cline on D-2

Pursuant to Code of civil procedure 170.6 (a) (2) peremptory challenges
are due within 15-days after notice of the case reassignment, or if the party
has not yet appeared in the action, then 15 days after the appearance."

Petitioners filed a Peremptory Challenge per CCP 170.6 the
following day after the first hearing with Judge Cline on March
2, 2012.

On March 2, 2012 our Peremptory Challenge was denied
as untimely by Judge Cline.


Judge Cline's and his staff are prejudiced against us for
representing ourselves before his court,
this has
prejudiced our case.  In the interest of justice.  Where there is
bias or appearance of bias a presiding judge must be
disqualified. Per  C.C.P. Sec. 170.1; 170-170.9 Judge Cline
must be disqualified from this case.  (B) Bias or prejudice
toward a lawyer [self represented individual] in the proceeding
may be grounds for disqualification. (CCP §170.1(a)(6)(A)(i)),

Petitioners have substantial doubt that Judge Cline could be
impartial (CCP §170.1(a)(6)(A)(ii)),
A person who was aware of the facts might reasonably
entertain a doubt about the judge’s impartiality (CCP §170.1(a)
(6)(A)(iii)); Commentary to Cal Rules of Ct, Code of Judicial
Ethics, Canon 3E. See Housing Auth. of Monterey County v
Jones (2005) 130 CA4th 1029, 1041–1042, 30 CR3d 676
(judge who decided pretrial motions against defendant in limited
civil case was
disqualified under CCP §170.1(a)(6)(A)(iii) from sitting on
appellate division panel that heard defendant’s appeal); DCH
Health Servs. Corp. v Waite (2002) 95 CA4th 829, 833, 115
847 (recusal may be required on basis of mere appearance of
impropriety); Gai v City of Selma (1998) 68 CA4th 213, 230–
233, 79 CR2d 910 (this provision does not apply to
hearing officers).

The most common examples of disqualifying bias are a judge’s
personal bias against a party, which may not be waived (CCP
§170.3(b)(2)(A)), and bias toward a lawyer in the proceeding
(CCP §170.1(a)(6)(B)). See In re Buckley (1973) 10 C3d 237,
256, 110 CR 121 (judge must be so personally embroiled with
lawyer that judge’s capacity for impartiality is destroyed). Bias
toward a witness is also grounds for disqualification. In re Henry
C. (1984) 161 CA3d 646, 653, 207 CR 751.

In this instant case Judge Cline was biased toward us and could
not see our case beyond the self representation.  Judge Cline's
personal bias against us caused him to sanction us without due
a process and disregarded our written and oral responses.  
Judge Cline disregarder an entire year of proceedings before
Judge Powazek in less than five minutes.  Judge Cline's actions
were evident in that he did not believe that a self represented
person was competent and capable, of understanding legal

Due to Judge Cline's prejudice against them Petitioners cannot
receive a fair hearing or trial in his courtroom. CCP §170.6(a)
(2).   CCP §170.6(a)(3). A party may obtain the disqualification
of a judge for prejudice  The judge must make an instant
determination no trial judge, commissioner, or referee may try
any civil or criminal case or hear any matter involving a
contested issue of law or fact if it is established that the judicial
officer is prejudiced against a party or attorney or the interest
of a party or attorney. CCP §170.6(a)(1).

Section C of Canon 3 of the Code of Judicial Conduct states
that a judge should recuse upon
motion of a party, or on the judge’s own initiative, whenever
“the judge’s impartiality may reasonably be questioned.” The
Canon then lists specific instances when recusal is appropriate.
The list is not intended to be exhaustive.


The judge has a personal bias or prejudice concerning a party.

While, Canon 3C states that a judge should recuse when “the
judge’s impartiality may reasonably be questioned.” Case law
states a judge should be disqualified when “a reasonable man
knowing all the circumstances would have doubts about the
judge’s ability to rule . . . in an impartial manner.” McClendon v.
Clinard, 38 N.C. App. 353, 356, 247 S.E.2d 783, 785 (1978). In
State v. Fie, 320 N.C. 626, 628, 359 S.E.2d 774, 776 (1987).

•        Judge Cline violated our constitutional due process, and
statutory rights  and sanctioned us $ 1,200 without cause or
due process of laws.  Based on  Judge Cline's bias against us
in his courtroom we believe and declare Judge Cline did not
follow the spirit of the law and the Judiciary Code of Conduct
and Ethics.

•        Judge Cline did not maintain professional competence in
judicial administration.

•        Judge Cline did not cooperate with other judges and court
officials in the administration of court business.  

•        Judge Cline's actions were negligent, in bad faith, and
violated public confidence in the integrity and impartiality of the

Based on the fact that Petitioner Silvia Peters was denied the
transcripts of the proceedings by Judge Cline's Court
Reporter.  We do declare, that the account of events is true
and correct to the best of our recollections.  

WHEREFORE, The Disqualification of Judge Richard G. Cline is
the only adequate remedy.
There was no Tentative Ruling posted online.  However a copy of the
Tentative Ruling was made available to Defendant's attorney Roland Achtel
prior to the hearing.  We checked the court's online Tentative Rulings
everyday from Monday thru Thursday March 1, 2012.  We checked for the
Court's Tentative Ruling throughout the day on Thursday through 2:00 p.m.
on Thursday afternoon.       

The afternoon of the hearing motions [two motions] for Defendant's motion
to Compel Interrogatories and Production of Records and Defendant's
Motion for Production of Records for Maria Bedolla were calendared and
held on March 1, 2012.  The CMC was calendared for March 1, 2012 at 9:30
a.m. we the Petitioners were present but were informed that it was moved to
2:30 on the same day March 1, 2012.

As we arrived to Judge Cline's courtroom, there was a signup sheet and
next to it were on or about six copies of the tentative ruling.  I glanced at the
ruling for about 30-seconds.  

Judge Cline came out, took the bench and asked if we had seen the
Tentative Ruling.  We stated that it was not posted online and we noticed it
was placed on the table but had not had a chance to read it.  He asked if we
needed five to six minutes to review the ruling before the hearing.  Silvia
stated that there were about five to six pages and that there was not be
enough time to read the Tentative Ruling.  Not posting the ruling for our
review denied us an opportunity to respond the inaccuracies in the Tentative

After we stated our names for the record, Judge Cline began the hearing by
looking at us and stating, "Just because you are not an attorney don't expect
special privileges...."  and repeated several times throughout the hearings
"get yourself counsel," he was very irritated we were representing ourselves
in court.  He made negative comments like, "next time don't turn in a pile of
loose documents to the court."

The documents that were turned into the court were attached in a packet but
not loose.  The court system is starting to scan documents.  If any
documents were loose, it was not caused by Petitioners rather court

Judge Cline asked, "do you have anything to say?"
I said, "your honor we have a right to self representation in this court, Section
35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress
and signed by President Washington one day before the Sixth Amendment
[422 U.S. 806, 813].  That right is codified in 28 U.S.C. 1654.  Bounds v.
Smith (430 U.S. 817, the 1977; (430 U.S. 817, the 1977; Ex Parte Hull, 312 U.
S. 546. (1941); Burns v. Ohio, 360 U.S. 708 (1961)  [See exhibit No 1].
Judge cline said, "let's move on, what do you have to say."

Silvia stated, "we filed complete responses to Defendant's Interrogatories
on three separate occasions and complete separate responses. The
complete responses were filed [for the second time] on July 8, 2011 June
27, 2011 and the beginning of July 2011.  The answers were filed and
served by mail they were due on the 24th [Friday June] and were sent on the
27th.  The time extended by Civil Code of Procedure Sec. 1013  (California
Accounts, Inc v. Superior Court (1975) 50 Cal app. 3d 483 [123 Cal Rptr.
304].  The original responses were sent to attorney Achtel on June 27, 2011
[Letter from attorney Jenny Goodman dated July 1, 2011 and Email from
Silvia Peters sent to Roland Achtel on Monday June 27, 2011 12:40 AM.]

Silvia asked, "you honor did you read our response and looked at the
exhibits we provided?" Judge Cline did not answer.  I offered the documents
for his review and he refused to accept them.

Judge Cline said, "the time is extended by five calendar days."  

Judge Cline turned to Respondent's attorney Achtel and asked, "did you get
the responses?"  Attorney Achtel response was "yes but they were
incomplete and had many objection" [Attorney Acthel motion and argument
on the documents was made based on the presumed allegations in which,  
he claimed our responses were late.]

Judge Cline turned to us and Silvia said, "his questions were indirect,
vague, incomplete and asking for generalities.  For example every question
asks, what proof do you have that David L. Bedolla was abused by
Alejandra.  What proof do you have that Roberto Bedolla abused his father...
further the answers were in the documents that were given to him and the
court. Records from the hospital and his own attorney file"   I enclosed a CD
and went beyond the request by scanning the documents into PDF files."  
Once again I asked, "your honor did you read the reply and the exhibits we
filed?"  Judge Cline did not answer.  

Judge Cline said to us, "you were suppose to list all the documents and
what they are for them."

Silvia answered, "the documents are listed as exhibits and are exhibits
introduced in detail in the trial brief  on file with the court and several copies
were given to them.  The Respondent's attorney was provided with these
documents several times."   

Attorney Roland Achtel misled the court and stated, "he did not receive the
documents and that all of our responses were always late."

Our case was previously assigned to Honorable Judge Harry L. Powazek
who reviewed the case for one year and a half.  During the time there was a
discovery cutoff date of October 28, 2010.  Parties were to submit detailed
brief and list of witnesses by November 18, 2010.  Judge Powazek  had
previously denied Defendant's attorney Motion for Extension of Time and
motions for production of documents.

Judge Cline was on vacation for two weeks prior to our March 1, 2012 and
only hearing in his courtroom.  Judge cline did not read our court records
[over four large volumes] or the motions that were before him.  Judge Cline
only reviewed and relied on the Law clerk [possibly Nadia Jamil Keilani]
notes and written Tentative Ruling. Judge Cline affirmed the ruling and
sanctioned us $ 1,200.00 but failed to state why we were sanctioned.  

The Motion to Compel was based primary [also oral arguments] on the
allegations that we were late and because we were late we lost our right to
object to the questions.  At the hearing even Judge Cline acknowledged that
we were not late.

Secondly, Attorney Roland Achtel alleged on the pleading papers that our
answered interrogatories were not complete and introduced the first set of
interrogatories reply as evidence.  To began with there were two consecutive
responses that followed the first set and the later were full and complete.  
Yet, attorney Achtel wrote and gave false testimony to the court.  Judge Cline
prejudiced our entire case and refused to read our reply, exhibits or accept
the documents I had on the hearing as proof attorney Achtel was giving false
testimony before him.  

Judge Cline did not read the reply motions; he did not review the exhibits
and was not familiar with the case. Without going into the ruling but just to
state as an example of the Tentative Ruling the first paragraphs begins with
the subheadings:

1. Attorney of Record
The Tentative Ruling's position, is an argument that Petitioners did not make
and further states,
"Petitioners argument that Respondent's CCP Sec. 2030.040 declaration is
invalid because attorney Goodman is not the attorney of record is without

Petitioners had argued in the reply brief that, "Attorney Goodman
[Respondent Ex I] stated in her email to Petitioners that her justification for
an extension of time to file a Motion to Compel was to give the parties an
opportunity to "meet and confer" before the motion was filed.  That the
parties never had a meet and confer before the motion was filed and that
attorney Goodman stipulated and we agreed that there would be a meet and
confer before the motion was filed.  

Petitioners quoted CCP sec. 2030.040 to state that their questions
exceeded the statutory limitation per code.  Not to state that attorney
Goodman's declaration was invalid.  Important to Note that the declaration
was submitted and written by attorney Achtel and a letter by attorney
Goodman.  Completely different issues, the declaration submitted by
attorney Achtel in support of the Motion to Compel makes no mention that
there was a meet and confer as required by the CCP code and statute.

2. Meet and Confer. - the ruling states,
"....In the instant matter, it appears Petitioners are under the impression that
the parties must literally 'meet" in order for the meet and confer requirement
to be satisfied....Reviewing both the communications between the parties
and their context, it appears a good faith effort was made to effectuate
discovery without seeking court intervention and that was unfruitful, any
further action would have been redundant and unproductive. "

Petitioners had argued in their reply brief that Respondent's attorney did not
meet and confer prior to filing the motion to Compel as agreed upon by
attorney Goodman and Petitioners.  We did not believe that the parties had
to have a face to face meeting and we never stated this in our argument.  
There were no discussions either through email, mail or phone or face to
Further, Petitioners stated that there have never been any meet and confer
discussions between the parties in any shape or form as required by the

Attorney Roland Achtel has intentionally and consistently lied the Court
under penalty of perjury in every CMC form for over a year and a half.  In this
instant case attorney Achtel is stating that, "a motion to compel is pending
because Petitioners have not provided complete responses to written
discovery despite extensive meet and confer from Respondent."  

Judge Cline did not read the the replies to the motions and motions and did
not read or looked at the exhibits provided to the court in the reply briefs or
while we offered them for review at the March 1, 2012 hearing oral

CCP codes required that a motion to compel must be accompanied by an
attorney declaration that says that the parties 'meet and conferred.'  This was
not the case and our written argument showed that even Attorney Achtel's
own exhibits showed that he did not 'meet and confer' before filing the
motions. [Achtel Exhibit I & H].   There was also a mutual stipulation by
Petitioners and attorney Goodman to meet and confer prior to filing the
Motion to Compel. The Law Clerk believed and Judge Cline affirmed the
Tentative Ruling that it was not necessary because it would be unfruitful.  
Even when the meet and confer was a requirement by CCP codes prior to
filing of the Motion to Compel and even if there was a mutual written
agreement by both parties to meet and confer prior to filing the instant
Motion to Compel.

In addition, California Rules of Court Rule 335. Format of discovery motions
(a) [Separate statement required] Any motion involving the content of a
discovery request or the responses to such a request shall be accompanied
by a separate statement. The motions that require a separate statement

(1) a motion to compel further responses to requests for admission;
(2) a motion to compel further responses to interrogatories;
(3) a motion to compel further responses to a demand for inspection of
documents or tangible things.

Attorney Achtel did not file a Separate Statement with the moving Motion to
Compel Interrogatories and Production of Records as required by the
California Rules of the Court.  In essence, Judge Cline was asking us at the
hearing to draft one for Attorney Achtel.  We were ordered by Judge Cline to
right down what each and every document said for Achtel.  

Attorney Achtel lack of filing of a Separate Statement accompanied with his
Motion to Compel as required  California Rules of Court §§ 0331-0341;
California Rules of Court Rule 335. (b) prejudiced us; denied us; violated
our due process rights to justice and have meaningful access to the court.  
Attorney Achtel failure to file a Separate Statement denied us the opportunity
to respond to each and every document he alleged was not provided for him
or to respond to the questions he said were not answered.  

Judge Cline blamed me for Achtel's failure to file and said something like, "if
you believed that, you did not file the proper documentation, therefore you
have to provide them with all the documents. " Even when Silvia stated many
times that we had based on the request and questions that were made by
attorney Achtel.  

Silvia said, "he wants me to write it for him" [Achtel].  
judge Cline answered, "how do you know what he wants, you cannot read
his mind."

Silvia said, "I don't know what he wants, I cannot write a report on every page
that has been submitted to the court by March 15,2012 [two weeks].  There
are almost five volumes of documents."  Judge Cline said, "if you don't know
what you are doing get yourself an attorney."

The Separate Statement must be submitted with the motion by the moving party.  I
was not the moving party.   [CRC 3.1020
On the second motion for Production of Documents for Maria Bedolla and
followed after the Motion to Compel.  Attorney Achtel was making this ex
parte motion as well as the motion to compel well passed the discovery
date of October 28, 2011.  Well, after Honorable Judge Harry L. Powazek had
denied his motions for continuance and motion for discovery after the cutoff

On the ex parte motion before the court Achtel was seeking the records from
San Diego County Adult Protective Services for Maria Bedolla a person not a
party to this action.

Attorney Achtel:
•        Filed a subpoena on behalf of Roberto Bedolla and Graciela Meza on
December 7, 2011, for the records of Maria Bedolla.  Attorney Achtel was not
representing Roberto and Graciela Meza on December 7, 2011 when he
wrote and sent the subpoena.  

•        Roberto and Graciela were not a party to the action when Attorney
Achtel filed the Ex Parte Application with Roberto Bedolla and Graciela
Meza's name in the subpoena and proof of service.  The Ex Parte Application
was submitted February 9, 2012 by attorney Roland Achtel.  Roberto and
Graciela were represented by attorney Robin Montes Wood.  The parties
[Petitioners Roberto & Graciela/ attorney Robin Montes] had entered into an
agreement signed by Hon. Harry Powzek by January 7, 2011.  Both Graciela
and Roberto were no longer parties to the action when attorney Achtel
submitted the subpoena and when he submitted the Ex Parte Application.  

•        Attorney Achtel filed the Ex Parte Application for release of records for
Maria Bedolla and had a release of records form signed by Maria Trinidad
Villagomez AKA Maria Villagomez.  The names did not match.

•        Attorney Achtel filed the Ex Parte Application after the motion for
continuance was denied by Hon. Judge Harry L. Powazek.

•        Attorney Achtel filed the Ex Parte Application after the October 28, 2011
cutoff date.

•        Attorney Achtel did not seek leave of the Court before he filed either the
Ex Parte Application or the Motion to Compel.  

We attempted to explain this to Judge Cline and Silvia included the
documents as exhibits in the Ex Parte Application Reply Brief.  We offered
the documents to Judge Cline at the hearing as well. Attorney Achtel gave
false testimony to Judge Cline and stated he was working on the
subpoenas since back in October 2011.  

I had the documents that proved otherwise on my hand, I said, "he is lying."  

Judge Cline said, "wait a minute there will be no name calling."

Judge Cline turned to Achtel and asked him,  "tell me what you want."

Attorney Achtel said, he did not recall any discussions of cutoff dates or trial
brief and witnesses.

Judge Cline repeated, "tell me what you want."

Attorney Achtel said he needed to do interrogatories.

Judge Cline asked Achtel, "what else do you want."

Attorney Achtel said, "depositions, and requested to extend the discovery

Judge Cline asked, "what else do you want"

Attorney Acthel said, "trial till after his first baby was born and have the trial in

Further attorney Acthel complained to judge Cline that Petitioner Silvia was
acting as an attorney.  Judge Cline accepted attorney Achtel's allegations
and admonished Petitioners.

In this Ex Parte Application Judge Cline states, "I am going to deny the
motion because the discovery cutoff date has expired."

A minute later Judge Cline proceeded to grant the Ex Parte Application and
extend the cutoff date without a pending motion to extend the cutoff date filed
or seeking leave of the court.  

In five minutes Judge Cline threw out every motion and ruling Hon. Judge
Harry Powazek had made in a year and a half.   Without reading the court file,
without reading the motions and replies.  Judge Cline fined us $ 1,200.  
without explanation or cause.

Attorney Acthel presented a proposed Court Order, Judge Cline said, "that is
not going to work let's do it this way, I will take care of it."

When we walked outside the courtroom, attorney Achtel had a big smirk on
his face and said, "oh yeah those records.  Just send me a letter that says
the records you sent me, are all the records you have."

Attorney Achtel once again gave false testimony under penalty of perjury on
the briefs and inside the court on the record stating that Petitioners did not
provide him with any documents. This was part of his argument, he clumped
up with the Motion to Compel interrogatories.

Judge Cline and the Law Clerk who wrote the Tentative Ruling did not
acknowledge that attorney Achtel had not followed the rules of procedure,
statutes or Rules of the Court.  Despite the record and our argument that we
have produced the documents required. The documents filed by attorney
Achtel were not filed in compliance with CCP or Cal Court Rules of
Procedure or local rules of the court and every single document attorney
Achtel submitted was defective.
Judge Cline willingly welcomed and accepted attorney Acthel written and
oral false testimony under penalty of perjury, with multiple violations of CCP
and Cal Court Rules of Procedure or local rules of the court.  The fact that
there was no Statement of Facts as required by the statute and no Tentative
Ruling available prior to the hearing violated Petitioners Constitutional Right
to have meaningful Access to the Court.  Judge Cline's prejudice against pro
per litigants further compounded the prejudice against Petitioners.  

The following day on or about 2:30 p.m. Silvia went to Judge Cline's
courtroom to drop off a preemptory challenge form (CCP §170.6 (a)(2)).  
Silvia was asked by the bailiff to sit down while the court was in session and
wait.  Silvia sat in the courtroom and observed several cases appearing
before Judge Cline.  When the judge took a break the bailiff followed him
behind with the preemptory challenge form.  At this point Silvia asked the
court reporter  [possibly named Peggy Tiess] if she could tell her how much
the transcripts would be for the March 1, 2012 hearings.  The Court Reporter
saw that Silvia had her original preemptory form and asked that she give it to
her so that she could make a copy.  She went back to make a copy for a few

Afterward she said, "they are going to be expensive."  Silvia asked her to tell
her how much the audio cost as well.

The Court Reporter once again said, "they are going to be expensive $
200.00 after three weeks and $ 400.00 if you want them sooner.  Believe me
you don't want them,  there is going to be a lot of stuff missing it's not worth
it. Let me give you some good advice, if I were you, I would take those $
200.00 dollars and hire an attorney.  

Silvia said, "I know I understand the system is very institutionalized."

The Court Reporter answered, "no it's your fault you were all over the place,
you don't know what you are doing.  You are better off getting an attorney."

Silvia said, "your comments and the judge's comments are precisely the
reason I did a preemptory challenge.  I have seen too many people
mistreated in this courtroom."

The Court Reporter said, "you are a very difficult person and walked away."

Silvia had never spoken to this Court Reporter before and had never had any
form of interactions with her prior to this date of March 2, 2012.


We believe that Judge Cline is prejudicial against us as pro per litigants and
he prejudiced our case. With such disgust an bias against pro per's Judge
Cline prejudice and bias has and will deny us of fair and equal access to
justice and to the courts and violate our Constitutional Due Process and
Equal Protection Rights.  Judge Cline does not believe pro per litigants are
credible and completely disregarded every argument and reply briefs and
exhibits we brought forth.

•        Judge Cline, failed to follow proper procedures and gave us no notice
of the proposed sanctions or allowed us the opportunity to justly respond to
the mistakes in the Tentative Ruling.

•        Judge Cline violated our Due Process Rights by not making a court
motion to show cause as to why we should not be sanctioned and denied
us equal access to the courts. When he disregarded our reply briefs,
exhibits and refused our request to review the exhibits on the day of the
hearing.  Judge Cline denied us access to the courts and to justice.

•        Judge Cline was not familiar and did not want to be familiar with our
Court Record or had read any of the briefs, replies and exhibits himself.  
Judge Cline and his court reporter were upset that we were representing
ourselves.  Judge Cline violated our rights to self representation and
discriminated and prejudiced our case by refusing to acquaint himself with
the court file, read our reply briefs and completely ignore our court oral

•        Judge Cline sanctioned us $ 1,200. when there were no violated court
orders and no fact or proof that we had violated any statutes or rules of the

•         Judge Cline abused his discretion in imposing monetary sanctions
without due process of laws. [Citation.]”  (Moyal, supra, 208 Cal.App.3d at p.
501, 256 Cal.Rptr. 296.)

•        Judge Cline's prejudicial bias against self represented litigants in his
courtroom violated Petitioners right to have meaningful access to the courts
and the right to adjudicated their case in an unbiased slanted environment.  
Where Judge Cline does not believe that self represented litigants should
stand before him because they do not know what they are doing and cannot
be trusted because they are not members of the bar.

•        Due to Judge Cline's lack of compliance with the legal standards and
purposes authorized by CCP Codes and California Rules of the Court, the
sanctions are legally erroneous, unsupported by the record, and a
prejudicial abuse of discretion.  

•        Judge Cline's conduct was (1) unjudicial and (2) by sanctioning us
without due cause or due process of laws. He committed in his judicial
capacity, and (3) he committed an act he knew was beyond his lawful power
and thus acted in bad faith.

•        Judge Cline dismissed all of the rulings Honorable Powazek's made in
a year and a half.  He reversed the cutoff date of discovery without
Defendant's making a motion for an extension of time [that motion had
already been denied].  

•        In less than five minutes Judge Cline dismissed Judge Powazek order
to submit a detailed brief listing all the witnesses and exhibits.  He allowed
Attorney Achtel to began discovery a year and a half after the case was filed.  
By these acts, Judge Cline failed to maintain professional competence in
judicial administration, and failed to cooperate with other judges and court
officials in the administration of court business.

•        Judge Cline's conduct was willful, prejudicial and lacked public
confidence in the integrity and impartiality of the judiciary.

•        Judge Cline's conduct was (1) unjudicial and (2) committed in his
judicial capacity, and (3) he committed an act he knew was beyond his
lawful power and thus acted in bad faith.    


Petitioner hereby requests that the reviewing court take notice of the entire
file as there are too many facts contained herein which are referenced to be
able to include in the Exhibits.

WHEREFORE, Petitioners pray:

An issued order for Judge Cline to be disqualified from case No. 37-2010-

March 12, 2012                                ______________________________



I, ____________, am the Petitioner.  I have personally reviewed and am
familiar with the records, files and proceedings described in and the subject
of the present petition and know the facts set forth to be true and correct.

I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.

March 12, 2012                        ____________________________________

2012 Motion to disqualify Judge Cline
Blog posts re Roland Achtel
Disqualify Roland Achtel
The above events put the following story in a different perspective: it
appears Judge Cline doesn't like the public--or in pro per parties--to
have access to court records

Trial Judges Fire Back After Justice's Email
Defending $1.9 Billion IT System for Courts
Courthouse News (CN)
February 14, 2011

Trial judges around California are firing back after an appellate justice sent out an
email saying trial court judges "uniformly and enthusiastically" support a
controversial $1.9 billion IT system. The email was sent just before the release of
a blistering state audit that suggested administrators had hid the true cost of the
system and failed to make sure it was necessary before plunging ahead.

Mounting dissatisfaction with the massive IT project, where the current version is
called CCMS V-3, prompted state administrators to form a set of "oversight"
committees two weeks ago. In the first memo coming out of those committees,
Justice Terence Bruiniers said, "The judges who actually use CCMS uniformly,
and enthusiastically support CCMS."

That statement brought a rapid rebuttal from judges in San Diego, where the
system has been put in place.

"I dispute the contention that CCMSV3 works," wrote San Diego
Superior Court Judge Richard Cline in a response to Bruiniers.

Cline said in an interview that he no longer uses the system,
but did use it during his ten-year tenure as a probate judge.

[Maura Larkins comment:  Judge Cline is still a probate judge.]
takes many more steps to do the same job," Cline said, noting that
staff research attorney in probate had reported that it took 42 steps
just to post her work online through the system...

[Maura Larkins comment: What did the other staff attorneys report?  I
wonder if perhaps this staff research attorney might be one of the
dimmer bulbs in the courthouse.  When Judge Cline decided to
complain publicly about the system, why didn't he try posting something
Our case and many cases were transferred/rotated from
Honorable Judge Harry L. Powazek to Judge Richard G.
Cline to be refereed herein after as, "Judge Cline."  

Our case was in Judge Harry L. Powazek for one year and a
It is important to note that in that year and a half we never had
any problems with anyone in Judge Powazek's department or
Judge Powazek himself.   On our first hearing with Judge Cline
on March 1, 2011.  I and my brothers and sister had three
hearings submitted by Defendant's attorney Roland Achtel
on that day.  

Defendant's attorney Roland Achtel had made a motion to
Compel Interrogatories/ discovery documents, an Ex Parte
Application and a CMC hearing for the same day and time.  
Blog posts re Judge Cline
The following is one of the documents that Judge Cline doesn't want online
(see Courthouse News story below).
May 22, 2012

A petitioner in the David L. Bedolla probate case
(see right column) received notice from the court that her
probate case records would be destroyed if she didn't
request to have them turned over to her.  She filed
an ex parte request to pick up the documents.  

But Judge Richard Cline refused to allow her to have
the documents, ordering them to be destroyed instead.  
Interestingly, Judge Cline has told Courthouse News
(see next story) that he no longer uses the court's
new IT system to post documents online.  

Why is Judge Cline so opposed to
allowing the public, and even the
parties in a case, to have access
to case documents?
On May 24, 2012, Judge Richard Cline refused to order the clerk
to file pleadings for the petitioner.  Something apparently
happened overnight, because the next day he reversed himself.  
Mark Sullivan case
Blog posts Stutz Artiano
Shinoff & Holtz v. Maura Larkins
Leslie Devaney
Blog posts Judge Judith Hayes
Dec. 11, 2011 injunction
against free speech
Judge Sharon Armstrong (also a
graduate of Catholic University)
San Diego legal opinions are
kept secret
Judge James V. Selna
Judges with problems
Judge Judith Hayes
Judge Eddie Sturgeon
Judge Richard Cline
Secret world of judicial
Quigley v. Toler
Filed 3/2/10 Quigley v. Toler CA4/1

Plaintiffs and Respondents,
Defendant and Appellant.

(Super. Ct. No. PN28574)

APPEAL from a judgment of the Superior Court of San Diego County,
Richard G. Cline, Judge. Reversed.

Robert and Helene Quigley established a family trust providing that upon the
surviving spouse's death, the trust assets would be distributed equally to their
three adult children, Lawrence Quigley, Phillip Quigley and Clarice Dolly Toler
(Dolly).[1] Several years after both parents died, the Brothers, who were the
successor cotrustees, obtained a judgment that Dolly violated the trust's no
contest clause and forfeited her one-third interest in the trust based on her
answer to the Brothers' unlawful detainer complaint.

Dolly appeals.
We reverse. The language of the no contest clause does not
reflect an intent to disinherit a beneficiary based on the filing of this defensive
pleading under the particular circumstances of this case.


In 1992, Mother and Father created a trust (Family Trust), the principal asset of
which was a residence in Encinitas (the Encinitas home). Under the trust
provisions, the trust was irrevocable upon the death of the first spouse. Mother
and Father designated the Brothers as successor cotrustees, and their three
adult children as equal remainder beneficiaries. Specifically, the Family Trust
stated that "[o]n the death of the surviving Trustor, the Trust shall terminate and
the Trustee shall, as soon as reasonably possible, divide the net income and
principal remaining in the Trust into three (3) equal shares and distribute them
to the [three children]." Section 8.04 of the Trust gave the cotrustees "absolute
discretion" in determining the appropriate manner in which to equally divide the

The Family Trust also contained a no contest clause, which provided that a
beneficiary "absolutely forfeit[s]" any benefits under the trust if the beneficiary
"asserts any claim (except a legally enforceable debt), statutory election, or
other right or interest against or in Trustor's estate . . . , other than pursuant to
the express terms

[of the Trust]. . . , or directly or indirectly contests, disputes, or calls into
question, before any court, the validity of any provisions of this instrument . . .

Father died in 1999. In December 2000, the Brothers and Dolly agreed that
Dolly would move into the Encinitas home and serve as the primary caretaker for
Mother, who was in declining health. For the next five years, Dolly cared for
Mother until her death in April 2005.

Shortly after Mother's death, Dolly told the Brothers she would like to purchase
the home and to continue living there. Although initially receptive to this idea, the
Brothers soon stated a preference for selling the house to a third party and then
dividing the assets of the sale. They told Dolly to immediately move out of the
property and to contact them only through their attorney.

About six weeks after Mother's death,
Dolly's counsel (Susan
Stricklin Wilson)
and the Brothers' counsel (Boris
had a lengthy discussion about Dolly's desire to purchase the home
and discussed terms of a potential sale. Several days later, a second law firm
retained by the Brothers (Kimball, Tirey & St. John) served Dolly with a 60-day
notice to terminate her tenancy in the home. In response, Wilson wrote to Siegel
stating that "given the positive tenor of our telephone discussion last week, I was
surprised" to learn about the notice.

In a responsive letter, Siegel said he had been unaware the notice was going to
be served, but stated that the Brothers intended to institute unlawful detainer
proceedings if the siblings did not reach a prompt sales agreement and the
Brothers did not intend to abate the eviction process during the negotiations.
Siegel also said he agreed with Dolly's attorney "that the probate court is the
court of proper jurisdiction" for an unlawful detainer action, and that he "would
be willing to enter into a stipulation with you to have any unlawful detainer
proceeding heard [in the probate court] . . . ." Siegel also said that time was of
the essence with respect to the sale, and the Brothers did not want to list the
house for sale until Dolly moved out of the home.

The next day, on June 17, 2005, Dolly's attorney sent Siegel an offer to
purchase the house. During the next several weeks, the parties (through their
counsel) engaged in written negotiations over the price and terms of the
purchase offer. In mid-July, Siegel suggested the parties engage in a mediation
before retired Superior Court Judge David Moon as "part of a global settlement
of all claims between the parties," including the disposition of the Encinitas
property. Dolly's counsel agreed that Judge Moon would be an "excellent
mediator" to "expedite resolution of this matter."

For reasons not apparent in the record, the communication between the parties
stopped at this point, and on August 15, 2005, the Brothers filed an unlawful
detainer complaint against Dolly in superior court. The complaint was a form
pleading filed by the Brothers' second law firm (Kimball, Tirey & St. John), and
provided no indication of the nature of the dispute between the Brothers and
Dolly, or the reason that Dolly was living in the home at the time. Under
applicable statutes, a party must file a response to an unlawful detainer
complaint within five days. (Code Civ. Proc.,  1167, 1167.3.)

Four days later, on August 19, Dolly filed a safe harbor petition in the probate
court requesting a ruling on whether a proposed petition seeking to partition the
property and compel the Brothers to sell her the Encinitas home constituted a
"contest" under the Family Trust. (Prob. Code,  21320.) In the proposed petition,
Dolly sought an order "[a]uthorizing and directing her brothers . . . to sell her
[the Encinitas home] at fair market value. . . ." Specifically, Dolly alleged that the
Brothers "want to evict her from her home and sell it out from under her out of
spite, and in direct and flagrant breach of their fiduciary duty as co-trustees to
treat all trust beneficiaries fairly and impartially. [Dolly] seeks a purchase at fair
market value an asset of which she is, as a practical matter, an owner of an
undivided one-third interest, subject to the administration of the . . . Family

On that same date, Dolly filed an answer (Answer) to the Brothers' unlawful
detainer complaint in the civil court. In the Answer, Dolly asked the court for an
order denying the unlawful detainer action "and finding that probate court, in
San Diego Superior Court Case No. PN 28574, is the proper forum for this
dispute between the three heirs of the Quigley Family Trust as to the disposition
of trust real property." (Italics added.) Dolly then set forth the background of the
dispute, and used some of the same language in her proposed petition for
partition, including that she is seeking "a purchase at fair market value an asset
of which she is, as a practical matter, an owner of an undivided one-third
interest, subject to the administration of the Quigley Family Trust." Dolly also
alleged that the Brothers were acting "out of spite" in seeking to evict her from
the property and refusing to sell her the property, and therefore they violated
their fiduciary duties to her as a beneficiary. Dolly concluded by stating that she
intends to seek a stay of the unlawful detainer proceedings in the probate court.

On September 12, Dolly filed an application in the probate court to stay the
unlawful detainer proceedings pending the hearing on the safe harbor petition in
the probate court. Dolly asserted that "the outcome of the declaratory relief
petitions and the outcome of the underlying petitions will determine the right to
the possession of the . . . real property that is the subject of the unlawful
detainer proceedings." In a supporting declaration, Dolly's counsel stated:
"Since this court had jurisdiction over the Trust when [the Brothers] filed the
unlawful detainer proceedings, and because the unlawful detainer proceedings
involve the internal affairs of the Trust, this Court has exclusive jurisdiction over
Trust matters and should stay the unlawful detainer proceedings."

Four days later, Dolly's counsel wrote to Siegel again confirming Dolly's interest
in purchasing the Encinitas home, and stated that Dolly would agree to stipulate
to the entry of judgment in the unlawful detainer proceeding and to vacate the
property no later than January 1, 2006, allowing time for the parties to agree on
the terms of a sales agreement. The Brothers' counsel responded that the
Brothers were not interested in selling the property to Dolly because of her "self
serving and dishonest behavior in the past," but they would be willing to
entertain an offer if it complies with the terms set forth in counsel's previous
letter. The Brothers also opposed a stay of the unlawful detainer action.

On October 5, the Brothers filed an opposition to Dolly's safe harbor petition on
the proposed partition action, arguing that the proposed action was a contest
because it was an attempt to "circumvent both the authority and discretion of the
co-trustees to administer the Trust pursuant to its terms. . . ."

Two days later, the court issued a tentative ruling finding Dolly's proposed
partition action would constitute a "contest" under the Family Trust's no contest
clause. The court stated it agreed with the Brothers that Section 8.04 of the
Trust gave the trustees "total discretion" with respect to distribution of assets,
and Dolly was seeking to "bypass or eliminate that discretion by substituting it
with a court order." (Italics added.) The court also denied Dolly's application to
stay the unlawful detainer proceeding.

Less than two weeks later, on November 3, the parties entered into a Stipulation
for Judgment in the unlawful detainer proceeding, in which the parties agreed
judgment would be entered in the Brothers' favor. In the stipulated judgment, the
parties agreed: (1) Dolly would return possession of the premises to the
Brothers; (2) the parties would attend a mediation on November 7 with retired
Judge Moon in an "attempt to reach an agreement by which [Dolly] may
purchase" the Encinitas home from the Family Trust; (3) the parties' failure to
reach an agreement in the mediation would not be a basis for Dolly to set aside
the stipulated judgment; and (4) any issues of back rent would be decided by
the probate court.

Four days later, the parties attended the mediation with Judge Moon, after which
Dolly was to provide the Brothers with certain documentation of her financial
ability to purchase the home. Two weeks later, on November 21, the probate
court entered a final order finding that Dolly's proposed partition action would
constitute a contest under the Family Trust's no contest clause.

During the next month, the parties continued to discuss Dolly's possible
purchase of the home. Although another mediation was scheduled, the Brothers
declined to attend, and thereafter refused to sell the home to Dolly. On or about
December 31, 2005, eight months after her mother died, Dolly moved out of the

More than two years later, in February 2008, the Brothers petitioned for
instructions seeking to enforce the no contest clause in the Family Trust based
solely on Dolly's Answer in the unlawful detainer action.[5] The Brothers
acknowledged that Dolly's safe harbor petition protected her actions in the
probate court, but argued that by filing the defensive pleading in the unlawful
detainer proceedings, Dolly sought to interfere with the Brothers' discretion
pertaining to the Encinitas home. Specifically, the Brothers argued that "[b]y
alleging in her answer that [she] was an owner of 'an undivided one-third
interest' in the Property," Dolly made a claim that was contrary to the Family
Trust's express terms, under which the "Trustees were . . . the only owners of
the Property."

The probate court held an evidentiary hearing on the Brothers' petition. At the
hearing, the Brothers did not call any witnesses, and instead relied primarily on
the terms of the Family Trust and Dolly's Answer in the unlawful detainer action
to argue that Dolly forfeited her one-third interest in the trust assets. In
opposition, Dolly presented the evidence summarized above, including the
correspondence between counsel during the negotiations over Dolly's desire to
purchase the property. Dolly also presented her counsel's testimony that the
purpose of filing the Answer was to inform the court that the probate court was
the proper forum for the dispute and to preserve the status quo while Dolly
obtained a determination on her safe harbor petition with respect to the partition
claim. Counsel explained that because of the five-day deadline to file an answer
in an unlawful detainer proceeding, she believed it necessary to file a
responsive pleading to preserve Dolly's rights while the probate court was
addressing the safe harbor petition and other issues pertaining to the ownership
of the home. Dolly alternatively argued the Brothers could not enforce the no
contest clause because they acted in bad faith and contrary to Mother's intent,
who had expressed her strong desire that Dolly remain living in the property.

After the hearing, the probate court ruled that Dolly's Answer constituted a
contest of the Family Trust. The court stated that the Answer "assert[ed]
ownership of, and rights to, the Subject Property" and "ask[ed] the [civil] court to
recognize [her] rights and to act accordingly." The court found that these claims
were "inconsistent with the plain language of the [Family] Trust, which indicates
that the Trustees are the owners of the. . . property," and were "directly contrary
to the desires and efforts of the Trustees to exercise their discretion with regard
to the disposition of trust property." The court thus found that Dolly's Answer
was a contest because it "sought to bypass or eliminate the trustees' discretion
by substituting it with a court order."

The probate court also rejected Dolly's alternative contention that the Brothers
acted in bad faith and with an improper motive in administering the trust and in
engaging in negotiations with her. The court found the evidence did not support
these claims, and the Brothers were not legally required to consider Dolly's
"claim of a special relationship" to the Encinitas home in distributing the trust
assets. The court also agreed with the Brothers' argument that Mother's
expressed intent about the disposition of the house was not relevant because
the trust became irrevocable at Father's death.

The court thus entered a judgment finding that Dolly forfeited her one-third
interest in the assets of the Family Trust. Dolly appeals.


I. Governing Legal Principles

A no contest clause " 'essentially acts as a disinheritance device, i.e., if a
beneficiary contests or seeks to impair or invalidate the trust instrument or its
provisions, the beneficiary will be disinherited and thus may not take the gift or
devise provided under the instrument.' [Citation.] 'The purpose of no contest
clauses "is to discourage will contests by imposing a penalty of forfeiture against
beneficiaries who challenge the will." ' " (Betts v. City National Bank (2007) 156
Cal.App.4th 222, 231 (Betts).) The primary factor determining whether a
particular action constitutes a "contest" is the intent of the drafter as expressed
in the instrument. (Id. at p. 232; Crook v. Contreras (2002) 95 Cal.App.4th 1194,

Two conflicting policies underlie the interpretation of no contest clauses. On the
one hand, no contest clauses are favored because they discourage litigation
and give effect to the testator's intent. (Betts, supra, 156 Cal.App.4th at p. 232.)
On the other hand, no contest clauses are disfavored by the policy against
forfeitures. (Ibid.) In balancing these concerns, the Legislature gave greater
weight to the policy against forfeitures, mandating that courts apply a rule of
strict construction in interpreting a no contest clause. (Prob. Code,  21304.)[6]
As the California Supreme Court has stated, " '[b]ecause a no contest clause
results in a forfeiture . . . , a court is required to strictly construe it and may not
extend it beyond what was plainly the testator's intent." (Burch v. George (1994)
7 Cal.4th 246, 254.)

In applying the rule of strict construction, the determination whether a particular
action constitutes a contest within the meaning of the no contest clause depends
on the specific facts and circumstances of each case. (See Betts, supra, 156
Cal.App.4th at  

p. 233; McKenzie v. Vanderpoel (2007) 151 Cal.App.4th 1450; Estate of Davies
(2005) 127 Cal.App.4th 1164, 1173.) " '[T]he answer cannot be sought in a
vacuum, but must be gleaned from a consideration of all the circumstances, and
the purposes that the [testator] sought to attain by the provisions of [his] will.'
[Citation.]." (Burch v. George, supra,7 Cal.4th at p. 255.) " 'Each case depends
upon its own peculiar facts and thus case precedents have little value when
interpreting a [no contest clause].' " (Betts, supra, at  

p. 233.)

Where, as here, the trial court's determination did not depend on a resolution of
disputed facts, we review the court's ruling de novo.[7] (Balian v. Balian (2009)
179 Cal.App.4th 1505, 1511; Bradley v. Gilbert (2009) 172 Cal.App.4th 1058,

II. Analysis

The Family Trust defines a "contest" to include a claim that "directly or indirectly
contests, disputes, or calls into question, before any court, the validity of any
provisions of this instrument or of said [Trust]. . . ." In concluding that Dolly's
Answer fell within this definition, the court relied on particular language in which
Dolly appeared to claim an ownership interest in the property, and a right to
compel the Brothers to sell her the property. However, the probate court did not
examine this language within the context of the entire pleading and the parallel
probate proceedings. As explained below, the court's ruling was erroneous
because it was based on too narrow a reading of the pleading and was
inconsistent with the rule that a court must strictly interpret a no contest clause
to encompass only those actions the testator would have plainly intended to
reach. (See Perrin v. Lee (2008) 164 Cal.App.4th 1239, 1248-1249.)

In her Answer, Dolly discussed her relationship to the Encinitas property and the
scope of the Brother's discretionary authority to distribute the trust assets, but
she did not request the court to rule in a particular way on those issues. Instead,
she specifically asked that the court not rule on the issues and that the court
allow those claims to be heard in the probate court, pending the outcome of her
safe harbor petition on the proposed partition action. In the very first paragraph
of the Answer, Dolly made clear that she was asking the court to deny the
unlawful detainer complaint "andfind[ ] that [the] probate court . . . is the proper
forum for this dispute . . . . " (Italics added.) The next several paragraphs
describe the nature of the dispute and Dolly's relationship to the property.
These facts were necessary because the Brothers had not provided any
background information in their form complaint. In the final substantive
paragraph of the Answer, Dolly stated that she had filed a petition for
declaratory relief in probate court pertaining to the property, and that she
"intends to seek an order of the probate court staying these unlawful detainer
proceedings until such time as the probate court has entered its ruling on the
pending petitions for declaratory relief and for partition of the subject real
property by sale." Dolly stated that she believed the probate court would issue a
stay "[a]s there are already actions pending in the probate court addressing the
issue of" her entitlement to occupy the Encinitas home.

Viewing the entire pleading, Dolly was not asking the unlawful detainer court to
rule that she had an ownership or possessory interest in the house or that the
Brothers' discretion was limited. Instead, Dolly asked that the unlawful detainer
court defer such findings to the probate court where such matters were pending.
Because Dolly's ability to remain in legal possession of the property was
dependent on the probate court's ruling on the safe harbor petition and that
ruling was pending in the probate court, Dolly filed the Answer seeking to
maintain the status quo until she obtained the ruling. Dolly was essentially
seeking a continuance to allow the issues to work their way through the probate
court. It is well settled a request for a continuance does not itself trigger a no
contest clause. (Prob. Code,  1043, subd. (c).)

Dolly thereafter took no steps in the unlawful detainer action to assert that she
had a right to purchase the property or had an ownership or possessory interest
in the property. Instead, Dolly's subsequent actions were fully consistent with the
limited purpose of her Answer. First, she requested the probate court to stay the
unlawful detainer action pending the probate court's determination of her safe
harbor petition. Second, shortly after the court issued a tentative ruling that her
partition petition would constitute a contest, Dolly entered into a stipulated
judgment agreeing to vacate the property, and she did in fact leave the property
by December 31. These actions support that Dolly was not seeking to challenge
the Brother's discretionary authority in the unlawful detainer proceedings, and
instead was seeking to continue the matter to allow the court to rule on the safe
harbor petition. Although Dolly did not expressly include within her safe harbor
petition the issue whether her Answer in the unlawful detainer proceedings
would constitute a contest, under the circumstances Dolly's petition for
declaratory relief can be fairly read to encompass such pleading. As soon as
Dolly learned of the court's ruling that her partition petition would constitute a
contest, she stipulated to judgment in the unlawful detainer action.[8]

Moreover, the fact that Dolly filed the Answer without specifically requesting a
"continuance" in the unlawful detainer court, does not undermine our conclusion
that the Answer did not constitute a contest. In determining whether a particular
action falls within the scope of a no contest clause, our focus must be on the
substance of the action, rather than the form. (Giammarrusco v. Simon (2009)
171 Cal.App.4th 1586, 1608.) As a practical matter, it was reasonable for Dolly's
counsel to seek a stay of the unlawful detainer proceeding in the probate court,
rather than the civil court, particularly because the Brothers' counsel had
previously agreed that this would be the proper forum to litigate any eviction

The Brothers argue that the Answer constituted a "contest" because Dolly
specifically alleged that she is a part owner of the Encinitas home, an allegation
that is inconsistent with the Family Trust terms appointing the Brothers as the
successor cotrustees (and thus the legal owners of the property). Specifically, in
the introductory paragraph of the Answer, Dolly stated that she was "in fact an
owner of an undivided one-third interest in the subject property, subject to the
administration of the trust, as are the two plaintiffs, who are the defendant's
brothers and the named trustees of the [Family] Trust." However, viewed in
context of the entire paragraph, Dolly's statement as to a one-third ownership
interest was not a "claim" of a current ownership right; instead it was an
explanation of the allegations being asserted in the probate court, and the fact
that these ownership issues were subject to trust administration and were before
the probate court. As we have noted, Dolly was not asking the court to recognize
any such ownership right, and instead was seeking a ruling that these issues be
addressed in the probate court. In determining whether an action constitutes a
contest "the effect of the . . . action" is controlling. (Giammarrusco v. Simon,
supra, 171 Cal.App.4th at p. 1608.)

The Brothers' reliance on Paragraph 9 of the Answer is similarly misplaced. In
Paragraph 9, Dolly alleged that the Brothers were acting in breach of their
fiduciary duties because the Brothers were acting out of spite in refusing to
permit her to "purchase at fair market value an asset of which she is, as a
practical matter, an owner of an undivided one-third interest, subject to the
administration of the . . . Family Trust." This assertion was made in the context of
her allegation that the Brothers had breached their fiduciary duties, a claim that
as a matter of public policy cannot constitute a contest. (Bradley v. Gilbert,
supra, 172 Cal.App.4th at pp. 1069-1071.)

We are also unpersuaded by the Brothers' reliance on the probate court's denial
of Dolly's safe harbor petition to support the court's subsequent ruling that the
Answer constituted a contest. The Brothers argue that Dolly's use of similar
language in her proposed partition petition and in the Answer filed in the
unlawful detainer proceedings means the result should be the sameboth actions
constitute a contest under the Family Trust's no contest clause. In asserting this
argument, the Brothers ignore that the pleadings were filed for different
purposes and each sought a different result. In the safe harbor proceedings,
Dolly attached her proposed petition which specifically sought an order
compelling the Brothers to sell the property to her based on claimed rights in the
property. The court ruled that these allegations sought to substitute a court
order for the Trustees' absolute discretion, and thus would constitute a contest.
But in the Answer, Dolly sought to preclude the unlawful detainer court from
making any rulings on any potential possessory rights until the probate court
had ruled on the safe harbor petition. Given the different circumstances under
which the pleadings were filed, the court's earlier ruling on the safe harbor
petition did not support a similar ruling on the issue of whether the Answer
constituted a contest.

In reaching our conclusions, we recognize that Dolly's counsel could have
drafted the Answer with more precision to make absolutely clear that Dolly was
not seeking a ruling on the merits of the Brothers' claims. However, we are
required to examine the challenged conduct in a practical manner in view of all
the circumstances and construe the trust narrowly so as not to cause a forfeiture
unless such forfeiture was clearly intended. (See Perrin v. Lee, supra, 164
Cal.App.4th at p. 1249; Betts, supra, 156 Cal.App.4th at pp. 232-233.) As this
court has stated, " '[o]nly where an act comes strictly within the express terms of
the forfeiture clause may a breach thereof be declared.' " (Graham v. Lenzi
(1995) 37 Cal.App.4th 248, 255.)

The key consideration in determining whether a beneficiary has violated a no
contest provision is the drafter's intent as expressed in the controlling
instrument. (Betts, supra, 156 Cal.App.4th at p. 232.) In this case, Dolly's acts
do not come within the express terms of the forfeiture clause. The Trust
instrument reflects the intent of Mother and Father that each of their three
children would share equally in the trust assets. They also appointed the two
eldest siblings to serve as trustees, and included a no contest clause. There is
nothing in the language of the clause that would fairly suggest that merely by
filing an answer in the unlawful detainer proceedings in which Dolly sought to
maintain the status quo until the probate court could rule on the issues and until
the parties could resolve their negotiations, the parents would have intended
their daughter to forever lose entitlement to any inheritance. The Brothers'
proposed interpretation is simply not a fair or reasonable way of reading the
trust, and the court's order was not consistent with the parents' intent as it was
expressed in the trust instrument.


Judgment reversed. The court shall vacate its judgment ruling that Clarice Dolly
Toller has forfeited her interest in the Quigley Family Trust, and enter a
judgment denying Brothers' petition for instructions to enforce the no contest
clause. Respondents to bear appellant's costs on appeal.



BENKE, Acting P. J.


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[1] To avoid confusion, we shall refer to the Quigley children by their commonly
used first names, and to their parents as Mother and Father. We shall refer
collectively to Lawrence and Phillip as the Brothers.

[2] Section 8.04 states: "On any division of the assets of the Trust Estate into
shares or partial shares and on any final or partial distribution of the assets of
the Trust estate or any trust provided for in this Declaration, the Trustee, in its
absolutely discretion, may divide and distribute such assets in kind, may divide
or distribute undivided interests of such assets, or may sell all or any part of
such assets and make division or distribution in cash or partly in cash and partly
in kind. The decision of the Trustee, either prior to or on any division or
distribution of such assets, as to what constitutes a proper division of such
assets of the Trust Estate or other trust provided for in this Declaration shall be
binding on all persons in any manner interested in any trust provided for in this

[3] The no contest clause states: "The beneficial provisions of this instrument . .
. are intended to be in lieu of any other rights, claims, or interest of whatsoever
nature, whether statutory or otherwise, except bona fide pre-death debts, which
any beneficiary hereunder may have against or in Trustor's estate or the
properties in trust hereunder. Accordingly, if any beneficiary hereunder asserts
any claim (except a legally enforceable debt), statutory election, or other right or
interest against or in Trustor's estate, Trustor's Will, or any properties of this
Trust, other than pursuant to the express terms hereof or of said Will, or directly
or indirectly contests, disputes, or calls into question, before any court, the
validity of any provisions of this instrument or of said Will, then: [] a) Such
beneficiary shall thereby absolutely forfeit any and all beneficiary interests of
whatsoever kind and nature which such beneficiary might otherwise have under
this instrument and the interests of the other beneficiaries shall be
proportionately increased and/or advanced; [] b) All of the provisions of this
instrument, to the extent that they confer any benefits, powers, or right
whatsoever upon such claiming, electing, or contesting beneficiary, shall
thereupon become absolutely void and revoked; and [] c) Such claiming,
electing, or contesting beneficiary, if then acting as a Trustee hereunder, shall
automatically cease to be a Trustee and shall thereafter be ineligible either to
select, remove or become a Trustee hereunder. [] The foregoing shall not be
construed, however, to limit the appearance of any beneficiary as a witness in
any proceeding involving this instrument or said Will nor to limit any beneficiary's
appearance in any capacity in any proceeding solely for the construction of
either of said documents."

[4] In addition to this safe harbor petition on the proposed partition action, Dolly
previously brought two other safe harbor petitions seeking a determination
whether a creditor's claim against the Family Trust would constitute a contest.
Because the nature of these petitions is not relevant to the issues here, we will
not detail the facts underlying the petitions or the court's rulings on the petitions.

[5] Before seeking this relief, the Brothers filed a safe harbor petition to
determine whether filing a petition for instructions would itself constitute a
contest. The probate court concluded it would not, and this court affirmed that
ruling. (Toler v. Quigley

(Dec. 4, 2007, D049382) [nonpub. opn.].)

[6] Effective January 1, 2010, the Legislature repealed Probate Code section
21304, and enacted a major revision of the statutory scheme governing no
contest clauses. The new statute limits the enforceability of no contest clauses
to only three types of claims: (1) direct contests brought without probable cause;
(2) challenges to the transferor's ownership of property at the time of the
transfer if expressly included in the no contest clause; and (3) creditor's claims
and actions based on them, if expressly included in the no contest clause.
(Stats. 2008, ch. 174, 2, p. 483; see Johnson v. Greenelsh (2009) 47 Cal.4th
598, 601, fn. 2.) This new law does not apply to the order before us. (See Prob.
Code, 3, subd. (e).) All statutory references are to the statutes in effect at the
time of the no contest hearing in October 2008.

[7] Although the court made factual determinations on issues related to Dolly's
claims the Brothers acted in bad faith and with improper motives, we do not
reach these claims because we agree with Dolly's initial contention that her
Answer did not constitute a "contest" within the meaning of the Family Trust.

[8] Further as a practical matter, there was no time to obtain a ruling on a safe
harbor petition with respect to the Answer, because the Answer needed to be
filed within five days, or the Brothers would have a right to a default.
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