CALIFORNIA COURT OF
APPEAL
FIFTH APPELLATE DISTRICT
Melody and Courtney Gillespie ) No.
__________________
)
Petitioner
and Appellant )
)
Vs. )
)
SUPERIOR COURT OF TULARE )
Tulare County
Visalia Division ) Superior
Court
) No.
VCU238961
Respondent )
)
Nicklas Hoffman, Nickol Gerritsma, ) Trial judge:
H. M. WYSOCKI IRREVOCABLE ) Hon. Paul Vortmann
TRUST )
)
Real
Property in Interest )
______________________________
PETITION FOR PEREMPTORY WRIT OF
MANDATE/PROHIBITIONAND/OR OTHER
EXTRAORDINARY RELIEF
REQUEST
FOR IMMEDIATE STAY OF TRIAL
______________________________
TO THE HONORABLE PRSIDING JUSTICE AND
ASSOCIATE JUSTICES OF THE FIFTH DISTRICT COURT OF APPEAL:
Petitioners,
Courtney and Melody Gillespie, standing in their own stead, petitions for
a peremptory writ of mandate and
prohibition directed to the Respondent Court to grant terminating sanctions
against the real parties in interest for refusal to obey court orders to
produce discovery, to correct errors made by the court against the Petitioners,
and to prohibit Judge Paul Vortmann from proceeding to clear extra judicial
bias against the Petitioners.
I. INTRODUCTION:
A. NATURE
OF THE CASE
Early in year of 2004, Nicklas Arthur
Hoffman approach Courtney Gillespie, Petitioner, about buying property
together. Mr. Hoffman had just sold his
property in Terra Bella for approximately $280,000 (Two Hundred eighty thousand
dollars). Mr. Gillespie had the heavy
equipment Mr. Hoffman needed to develop the property, and the two had known
each other for a number of years. Both
Mr. Hoffman and Mr. Gillespie looked at
different properties and finally made a deal for 1831 North Lime street,
in Porterville, California. With an
oral agreement between the two men, Mr. Gillespie began excavating, preparing,
and developing the land to build. Mr.
Hoffman was not in good physical condition and did not help much with the
development. As a retired contractor he
had suffered physically debilitating injuries to his back and knees.
On
or about February 1, 2005, the two men signed a written agreement to evenly
divide the property into 2 five acre parcels, with Mr. Gillespie paying $60,000
(sixty thousand dollars) of the property’s price of $84,000 (eighty four
thousand dollars), with a balloon payment due at the end of 7 years. Mr. Hoffman had put down $20,000 (twenty
thousand dollars) and bought the permits for the property, while Mr. Gillespie
used his share of the down payment for materials and heavy equipment for the
development of the property.
Mr. Hoffman had the well installed, while
Mr. Gillespie built up the power supply and installed all of the other
utilities, The property was completely
barren and had no hook ups for utilities.
Mr. Gillespie dug the ditches, installed the electricity, and all of the
plumbing for the entire property. Mr.
Gillespie is a stationary engineer and does electrical and plumbing by trade.
As part of the written agreement,
Courtney Gillespie accepted a position of trustee of the H.M. WYSOCKI
IRREVOCABLE TRUST, and gained rights to the property upon the first
payment. The agreement was signed by
Mr. Hoffman as an agent of H.M.WYSOCKI TRUST.
In
August of 2009, Mr. Hoffman sent an email to Melody Gillespie, Petitioner,
stating that he was giving first chance to the petitioners to buy out Mr.
Hoffman, including Petitioners share of the property for $236,000 (two hundred
thirty six thousand dollars). The
Petitioners believed this to be outrageous.
The property was assessed for approximately $150,000 (one hundred fifty
thousand dollars), and the price gave no credit for all of the cash, labor, and
materials the Petitioners had already put into the property during the past 5
years. A dispute arose, and there was a
provision in the original agreement signed by the two men for a mediation with
church elders. At the mediation, it was
agreed that Mr. Hoffman was to continue with the original contract; the
petitioners would begin the property division.
Mr. Hoffman was angry with the fact that the elders of the church did
not agree with him that the petitioners should be forced off of the property if
the petitioners did not agree to his selling price. Within a week after the meeting, Mr. Hoffman demanded the full
price up front, $67,000 (sixty seven thousand dollars) for the petitioners’
share of the property. The petitioners
not only believed that $67,000 (sixty seven thousand dollars), was a lot more
than what was owed according to the agreement, and there were some issues with
dividing the property. The property was
under the Williamson act and could not be divided into less than 20 acre
parcels. This was a complete surprise
to the petitioners and was never disclosed by Mr. Hoffman when the agreement to
purchase the property was made. The
petitioners also found that Mr. Hoffman’s daughter, Nickol Gerritsma was the
trustee of H.M. WYSOCKI TRUST, on the grant deed for the property. When the petitioners sent requests to Ms.
Gerritsma to assist in the division of the property, Mr. Hoffman, Nickol
Gerritsma, and H.M. WYSOCKI TRUST filed an unlawful detainer against the
petitioners, claiming we were renters, and that the petitioners had a
commercial salvage business, on the property, creating a hazard. Because none of these allegations were true,
Mr. Hoffman, Nickol Gerritsma, and H.M. WYSOCKI did not prevail against the
petitioners. Mr. Hoffman posted the
property for sale by owner in the local newspapers and on the internet, and
began the process of having Petitioners constructively evicted by having the
electric and water shut off, removed all construction materials and equipment
from the petitioners’ property, as well as many acts of malice and
oppression. Petitioners filed a TRO
because of the threat of loss of life and property due to Mr. Hoffman’s acts of
violence, not only to the Petitioners, but to the neighbors who remained
friends with the petitioners. The TRO
was granted, but Mr. Hoffman became even more hostile and retaliatory, killing
petitioners animals, destroying crops and landscaping. Petitioners filed a Contempt of Court action
with an order to show cause. Mr.
Hoffman agreed to settle out of court, to pay the petitioners’ court costs and
restore the water and electricity, in lieu of a jail sentence and fine. Mr. Hoffman’s violence became worse, in
which the petitioners fully believe that he made two attempts to kill Melody
Gillespie, to make it look like an accident.
Meanwhile,
many people were coming to look at the property, so the petitioners believed
that an Injunction was required to stop any sale until ownership and interest
could be determined. In August of 2010,
an injunction was filed by the Petitioners to stop the possible selling of the
property to an unsuspecting third party.
The
first hearing was scheduled for October 5, 2010, in which the petitioners had
expected a status conference, and the sheriff’s department had sent to the
court police reports that had been subpoenaed by the petitioners. Instead, when the appearance by both parties
was made, Judge Vortmann refused to hear anything petitioners had to say
because he said there was a tentative ruling and we did not request oral
argument. Petitioners were shocked and
amazed as there had been no motion before the court for any tentative
ruling. Petitioners just wanted the
police reports in order to be able to have necessary information for a
preliminary injunction. Judge Vortmann
had already ruled on a preliminary injunction never submitted and refused to
hear anything else, cutting off the petitioners’ questions rudely and going on
to the next case as if the petitioners were not even there. Judge Vortmann did answer questions of the
attorney that appeared for the other side.
Petitioners
had another motion put on calendar for the release of the police reports for
November 5, 2010. The attorney for the
other side, Robert Fletcher, put in an opposition, and never served it on the
petitioners, or conferred with petitioners that he intended to oppose it. Judge Vortmann denied Petitioners request
and granted Mr. Fletcher’s opposition.
Three days later the petitioners received Mr. Fletcher’s opposition in
the mail. Judge Vortmann stated that
the petitioners had probably issued the subpoenas themselves, although there
was no evidence before that court that any such thing had happened. The fact that the sheriff’s department
responded by sending the reports requested to the court indicated that the
subpoenas were properly issued by the clerk.
However, Judge Vortmann stated that petitioners had to go thru him to
have subpoenas issued. The other side
was given no such fetter to their defense.
Mr.
Fletcher demurred to petitioners’ complaint which was not sustained, and was
ordered to answer. On or about November
19, 2010, Mr. Fletcher filed a quiet title action against the petitioners. The petitioners had no knowledge of the
quiet title action until process of service which was on December 23, 2010. Just prior to being served the quiet title
action, the petitioners responded to Mr. Fletcher’s answer to the complaint
with a demurrer. The demurrer was
scheduled to be heard on January 18, 2011.
The
quiet title action had the same causes of action as the unlawful detainer that had
been previously adjudicated and failed muster.
Again the petitioners are called renters and Mr. Fletcher is attempting
to move the court to evict the petitioners as having no interest in the
property. In this new complaint, the
story has changed as the last story told to the court in the unlawful detainer
was found to be untrue. The petitioners
were working on a motion to strike the complaint and a demurrer when Judge
Vortmann gave an tentative ruling, four days early, not sustaining the demurrer
to Mr. Fletcher’s answer to the petitioners’ complaint, and that petitioners
must answer “forthwith”. That was
January 14, 2011. The petitioners had
nine more days to file a motion to strike and a demurrer. Since the complaint for the quiet title
action had over 40 conflicts from the testimony given by Mr. Hoffman during the
unlawful detainer trial, a judicial estoppel would apply. The entire quiet title action should have
been collaterally stopped because most of the complaint had already been
adjudicated on the merits. At the very
least, a judicial determination upon which parts had not already been
litigated, and the rest striken. Mr.
Hoffman, et al, had not filed an appeal, or any other remedy to have the ruling
overturned. Submitting an answer to the
quiet title action was premature. A
large portion of the complaint is a complete fabrication. Petitioners were caught by surprise at the
early tentative ruling, and missed the deadline for oral argument, and so
therefore filed a motion for reconsideration about Judge Vortmann’s order to answer
“forthwith” when the court rules clearly indicated the petitioners had 30 days
in which to file a motion to strike and demurrer prior to an answer and that
the answer was premature. The motion for reconsideration was scheduled to
be heard in February 2011, and was continued by the court, on its own, until
April 15, 2011. At the April 15th
hearing, Judge Vortmann had apparently not read the 2 motions before the court,
assumed that the motion for reconsideration was for the demurrer to the
defendants’ answer to the petitioners complaint, did not allow for oral
argument from petitioners, or allow any discussion from petitioners. Judge Vortmann did ask if the other side if
Robert Fletcher had anything to say.
Judge Vortmann refused to discuss or rule on the motion to strike and
demurrer to the quiet title action. The
petitioners requested an order by the court for the motion to strike and for
the demurrer and instead the judge walked out of the room without giving an
order. On or about May 5, 2011, the
petitioners went to review the record for the order of the court, the
petitioners found that the record was taken by Robert Blue, an attorney for the
court, and found that the record was gone and would not be available for the
next 30 days. That included the minute
order, which was not available. The
petitioners ordered that transcript of that hearing, but did not receive it
until around June 15, 2011.
On
or about May 20, 2011, Robert Fletcher filed a clerks default against the
petitioners.
