PsychoBusting - Melody and Courtney Gillespie vs. Nicklas Hoffman, Nickol Gerritsma, H. M. WYSOCKI IRREVOCABLE TRUST

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 15^th 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.