(Mod: Forget everything you have heard about this case. Obviously the City's message about nonexistent permits and paperwork has pretty much dominated the conversation these last few years. We have all read about it, and many have accepted that version of the story. But what if that account is wrong? How many stories have you heard from the City these last 10 years that haven't turned out to be entirely true? Below is the case that the Attorney for Jeff and Taryn Hildreth has put together. This matter is now before the Superior Court, and the outcome is no certain thing. Read it over and see if you don't come away with some questions that you didn't have before.)
David E. Rosenbaum STATE BAR NO. 49735 484 So. Euclid Avenue, Suite 105
Pasadena, California 91101
(626) 432-7422 FAX: (626) 792-5433
Attorney for Defendants
Jeffrey M. and Taryn N. Hildreth 5
SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
CITY OF SIERRA MADRE, a municipal corporation,
Plaintiff,
Case No. GC 046442
[Assigned to Hon. Edward C. Simpson, Dpt. R]
DEFENDANTS’ SUPPLEMENTAL OPPOSITION TO
RECEIVER’S PROPOSALS and REQUEST THAT THE ) COURT:
(a) CONSIDER LATE SUPPLEMENTAL OPPOSITION; and/or v.
JEFFREY M. HILDRETH, individually and d/b/a THE )
STERLING OAK; TARYN HILDRETH , individually
and d/b/a THE STERLING OAK; SUN TRUST MORTGAGE, INC., a Virginia Corporation and ) Does 1-50, inclusive,
Defendants.
(b) CONTINUE HEARING 10 DAYS TO PERMIT ) - Other parties to reply to (a);
- City to consider Hildreths’ new architect-drafted ) construction plans; and
- Hildreths’ new engineering firm to review said ) construction plans.
LODGED/FILED UNDER SEPARATE COVER:
Lodgment of Hildreths’ Architect-Drafted Construction
Plans completed on 2/8/2013;
Copies of Briefs re Receiver’s October 10, 2012 Proposal ) Filed by Hildreths before the October 16, 2012 MSC;
Date: February 19, 2013
Declarations of Jeffrey M. Hildreth and David E. Rosenbaum.
Time: 8:35 a.m. ) Dept: R
_________________________________________________________________________ Defendants’ Supplemental Opposition to Receiver’s Proposals

1 Defendants Jeffrey M. and Taryn N. Hildreth, having previously filed responses to the
October 10, 2012 Receiver’s Proposal in their MSC brief, hereby tender this Supplemental
3 Opposition for late filing. Under separate cover, we have lodged and are filing the following
4 items: (i) A full-sized set of the Hildreths’ new, architect-drafted construction plans, which were
5 completed on February 8, 2013. (ii) Declaration of Jeffrey Hildreth dated February 11, 2013. (iii)
6 Defendants’ MSC brief which responded to the Receiver’s October 10, 2012 Proposal.
7 Defendants respectfully request (1) that the Court consider this late Opposition –
8 especially Defendants’ new construction plans – and (2) that the Court continue the hearing now
9 scheduled for February 19, 2013 for 10 days or for such other period as affords sufficient time (i)
10 for the other parties to respond hereto; (ii) for the City to review the newly-drafted construction
11 plans; and (iii) for the Hildreths’ new engineering firm to review said plans, which review began
12 on February 11, 2013. Our Supplemental Opposition is as follows:
2
I. SUMMARY
• 41% of the court’s findings of “unpermitted” work Code violations are the result of Richard Temple’s fraud on the court, rendering the injunction and receiver orders void; such fraud may be raised “at any time”;
• Temple’s sworn statements that the Hildreths’ building permits had “expired” as of June 2009 were false; Temple had no knowledge concerning the matter and no reasonable grounds to believe those statements true; this constitutes fraud on the court, compounded by Castro’s declaration, and false representations by Ms. Wynder on 12/3/2011 and Mr. Litvak at the receivership hearing that the Hildreths’ building permits were never issued and were mere “applications” for permits. It also appears the someone in the City intentionally falsified the City records [a felony] for the purpose of defrauding this court;
• The City is estopped to prohibit the Hildreths’ construction based on the City’s claim that it has no approved plans because it violated its mandatory duty to preserve the Hildreths’ approved plans, possession of which its City Manager acknowledged on August 29, 2006.
• As to the Receiver’s 10/10/12 Proposal, our MSC Brief showed: Based on our expert witness declarations, abatement of the alleged Code violations will cost $4,900. The Proposal
_________________________________________________________________________ Defendants’ Supplemental Opposition to Receiver’s Proposals
1 contains no findings or abatement methods for any specific Code violation alleged in the
Complaint; attaches an expert structural engineer’s report that substantially agrees with our
3 expert’s finding that there are no significant structural problems (10/10/2010 Proposal, Ex. 2, p.
4 38). Most importantly, the Proposal contains no findings supporting any need for West
5 Builders’ $400,000 proposal to “convert” the basement or for the Receiver’s proposal to “fill in
6 the hole” (Proposal, p. 5:16-22) except for a single clause in West’s proposal, which states
7 ONLY that the proposal is “based on our observations during the jobwalk ib 9.18.2012.” (Id.,
8 Ex. 1, p. 7, 1st ¶, 2nd sentence.) The Receiver’s Supplemental Proposal is defective for the same
9 reasons, for it simply relies on the non-findings in the 10/10/2012 Proposal.
10 • The Receiver’s Proposals will demolish the Hildreths’ home and/or destroy their
11 $133,921-plus investment in this project without a trial; without any evidence that any
12 condition on the property threatens public safety, health or welfare; and without affording the
13 Hildreths the “ample opportunity” to remedy violations that is required by the Due Process
14 Clause (Hawthorne Sav. & Loan Ass’n. v. City of Signal Hill, 19 Cal.App.4th 148, 158-159
(1993)) and by Health & Safety Code §17980.7(c)(14).
II. REASONS WHY THE COURT SHOULD CONSIDER THIS LATE-FILED OPPOSITION AND
CONTINUE HEARING IF DESIRED BY ADVERSE PARTIES
The Hildreths’ instant Opposition is based primarily on matters that transcend the Receiver’s Proposals and go to the validity of continuation of any proceedings herein premised on Orders secured as a result of fraud upon this honorable Court.
1. A ruling obtained by fraud on the court “‘is void, and thus “vulnerable to direct or collateral attack at any time.”’” County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1225, quoting from People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660. (Emphasis by the court.) This Court’s power to set aside orders obtained by such fraud is an inherent one “not derived from [C.C.P.] section 473” (McGuinness v. Superior Court (1925) 196 Cal. 222, 231), but rather, “from article VI, section 1 of the California Constitution....” Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267. It is particularly important that defendants bring such fraud to the Court’s attention before the court considers ordering their house
_________________________________________________________________________ Defendants’ Supplemental Opposition to Receiver’s Proposals
1 demolished.
2. The Hildreths diligently followed this Court’s suggestion that they find independent,
3 licensed professionals to prepare a new set of construction plans for presentation to the Court and
4 to the City. Those plans were not completed until the afternoon of February 8, 2013, and have
5 been submitted to a new engineering firm for review. The Court should have the opportunity to
6 review those plans and take them into consideration in ruling on the Receiver’s Proposals.
7 Additionally, the adverse parties should have the opportunity to respond to the material
8 contained in this late-filed Opposition. Counsel attempted to obtain a stipulation to a
9 continuance; however, was unsuccessful in his first call during which counsel for Defendant
10 SunTrust advised that his client has no objection to a continuance, but would not stipulate to one.
III. THE RECEIVER’S PROPOSALS SHOULD BE REJECTED OR PLACED IN SUSPENSION BECAUSE THE UNDERLYING ORDERS ARE VOID DUE TO THE CITY’S FRAUD ON THE COURT
About 41% of this court’s findings of “public nuisances” at the Hildreths’ premises are based on the determination that the construction was performed without City permits. (See Complaint, ¶24, a, c, j, k, l, o, q, s, u, v, x, and f, adopted by this court in each of its substantive orders.) Those court findings are based on false statements made in the November 29, 2010 declaration of Richard Temple (“Temple”), which formed the core of the City’s evidence on the TRO, injunction and receivership; and on false representations compounding Temple’s fraud by the City’s attorneys in open court. We assert this claim based on the following:
In his 11/29/2010 declaration under penalty of perjury, Temple identified Exhibit G thereto, Photos 52-55 on pp. 17-18, as being photocopies of the actual “building permits” that had been issued by the City to the Hildreths in 1998-1999 [i.e., Building, Mechanical, Plumbing, & Electrical permits]. Each such permit is on a dual-function form entitled “Application- Permit,” completed with the City’s official time stamp at the top and a handwritten City validation at the bottom. After identifying and authenticating those permits, Mr. Temple stated that “all permits ... have expired without final inspection.” (Id., p. 3, item #14.) On this basis, Temple issued a June 9, 2009 stop-work order that has remained in effect for 4 years. (Id., Ex. E)
3 _________________________________________________________________________ Defendants’ Supplemental Opposition to Receiver’s Proposals
1 The falsity of Temple’s statement and the chain of events the led to the discovery of that
falsity in this Court’s library during the October 16, 2012 MSC is traced in detail in the February
3 11, 2013 Declaration of Jeffrey Hildreth, ¶¶2-8, which we summarize briefly as follows.
4 At the time and continuing to date, the California Building Code [“CBC”], as adopted by
5 the City, provided that a building permit only expires if the work is not commenced within 180
6 days or is thereafter suspended or abandoned for 180 days or more. The same provision also
7 controls the expiration of permits under the Mechanical Code (§114.4) and Plumbing Code
8 (§103.3.4). The Hildreths’ receipts and records for the construction work show that construction
9 commenced within the first 180 days after the City issued each permit; that the City’s authorized
10 Building Official confirmed that all of the Hildreths’ permits were active, unrevoked, and
11 unexpired as of June/July 2005; that the Hildreths expended $133,921.93 over the entire period
12 from January 1999 to June 9, 2009 on materials, supplies and services for the job; and that the
13 job was never suspended or abandoned.
14 Temple’s employment with the City began in January 2009 (Temple Dec., ¶ 1), no more
than 166 days before he issued the June 9, 2009 stop-work order. He could not possibly have
16 personally “observed” any [hypothetical] 180-day suspension of work, a sine qua non for his
17 stop-work order. Ergo, Temple could not possibly have issued such stop-work order based on
18 facts personally known to him – which we have shown never existed at all. Mr. Hildreths’
19 thorough review of the City’s files on the project disclosed no report, mention or other indication
20 that the project had even been suspended or abandoned – for a day, a week, or for any other
21 period. Counsel hereby represents to the court that a review of the file shows that each and
22 every time any communication or action occurred over the 14-year history in that file, an
23 individual in the Building Division memorialized it by memo, letter or in writing with his/her
24 name or initials and the date. A supplemental declaration of Mr. Hildreth to this effect will be
25 filed at or before the hearing herein.
The foregoing, standing alone, shows that Temple’s statement about “expiration” was
27 false and made with fraudulent intent under well-settled precedent. I.e., he knew that he did not
28 have knowledge of the matter or had no reasonable grounds for believing what he said was true.
_________________________________________________________________________ Defendants’ Supplemental Opposition to Receiver’s Proposals
1 Civil Code §1710; Lerner v. Riverside Citrus Assn. (1953) 115 Cal.App.2d 544, 547.
However, in this particular case, Temple’s fraud goes beyond “negligent” deceit under
3 Civil Code §1710(b), for it appears that the City’s official record of the Hildreths’ Building
4 Permit was falsified at some time after Mr. Pock checked the status of the Hildreths’ permits in
5 June/July 2005. The falsification was made by hand-printing the word “expired” on that permit
6 [but not on the other two permits that also would have expired if suspended for 180 days],
7 without initials, date or explanation, at some point before the documents comprising Exhibit G to
8 his declaration were assembled by the City’s attorneys. This could have been done only by City
9 employees and officials with access to Building Division files between June/July 2005 and
10 November 29, 2010, the date of Temple’s declaration. Until Temple’s statements, no one in the
11 City made any mention suggesting that the Hildreths’ permits had expired. We submit that in
12 these circumstances, it is reasonable to conclude that Temple is the person who wrote the word
13 “expired” on the Building Permit; and that in doing so, he intentionally concealed the source of
14 the writing, and the fact that such an assertion could not have been based on any facts personally
known to him. But whoever the writer of that word was, his or her concealment of its author and
16 date exhibits a consciousness of guilt that makes this an intentional fraud on the court, regardless
17 of who authored it. For well over a century, the courts have held that when one makes a false
18 statement knowing that he has no knowledge on the matter, this is intentional
19 misrepresentation.1 Worse yet in this case, the misrepresentation simultaneously committed a
20 felony under Penal Code §§115(a), 132, 133, and/or 134.
21 The misrepresentations were compounded by Castro’s 11/29/2010 declaration that the
22 Hildreths failed to inaugurate the conditional use permit by “by failing to obtain ... [a] building
23 permit”; and by Ms. Wynder’s representation at the TRO hearing that defendants never has
_________________________________________________________________________ Defendants’ Supplemental Opposition to Receiver’s Proposals
1 In Knickerbocker Merchandising Co. v. United States, 13 F.2d 544 (2d Cir. 1926) (per Learned Hand, J.), adopted by California in People v. Gordon (1945) 71 Cal.App.2d 606, 624, Judge Hand found that ever since Lord Herschell’s opinion in Derry v. Peck, L.R. 14 App.Cas. 337 (1889), it has generally been accepted that “all unconditional utterances, intended to be taken seriously, imply at least a belief, and, if the utterer does not believe them, they are false, though his mind be quite indeterminate as to the truth. The law in this country is so settled by a great number of precedents....” As one example, such “reckless” fraud was held to satisfy the requisite scienter for deliberate criminal fraud in Irwin v. United States, 338 F.2d 770, 774 (9th Cir. 1964), cert. denied, 381 U.S. 911.
1 obtained a building permit [to which the Court responded that “main issue is securing a building
permit”]; and by Mr. Litvak’s representation on July 31, 2012 that the copies of the building
3 permits in the Hildreths’ possession “were “applications that were never finalized ... [t]hey died
4 on the vine.”
IV. THIS COURT SHOULD RECONSIDER ITS RECEIVERSHIP ORDER SUA SPONTE BASED ON THE ABOVE AND BECAUSE THE CITY IS ESTOPPED FROM REFUSING TO PERMIT THE HILDRETHS’ CONSTRUCTION BY THE CITY’S VIOLATION OF ITS MANDATORY DUTY TO PRESERVE THE HILDRETHS’ CONSTRUCTION PLANS
This Court has the inherent power to reconsider its own decisions and orders at any time before final judgment is entered. Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105-1109. Defendants respectfully request that the Court reconsider its injunctions and receivership orders herein and vacate both orders based on the above-described fraud practiced on the Court.
In considering this request, defendants believe that the Court will also be concerned with the issue of whether the Hildreths should be permitted to go forward with their project without the limitations imposed by the injunction. As further shown in the Hildreth Declaration, this issue arose at the end of the MSC, after the Court confronted the City with counsel’s copy of the building permits in Exhibit G of the Temple declaration. When confronted with the showing that the City had in fact issued the building permits, contrary to the City’s representations to this Court, the City responded that it could not agree to the Hildreths’ resumption of their project because the City has no approved construction plans for it. The Court at that point strongly suggested that the Hildreths have new plans drafted, which they have lodged with the Court.
As further shown in the Hildreth declaration (¶¶10-11): Pursuant to the City’s December 7, 2005 request, the Hildreths’ provided the City with their last original set of approved plans in January 2006. The then-City Manager acknowledged that the City had possession of those plans by letter dated August 29, 2006. At all times when Mr. Hildreth has provided plans to the City, his understanding has been the plans remain the Hildreths’ property; that after the period that the CBC requires the City to retain them, those documents are returned to the owners or made available for pick up. His understandings are based on Section 107.5 of the current Code and the general practice of building officials throughout the area.
_________________________________________________________________________
Defendants’ Supplemental Opposition to Receiver’s Proposals
As will be shown in the Declaration of David E. Rosenbaum, on December 10, 2012 the Hildreths executed and served on the City their Amended Claim For Damages Under California Tort Claims Act and Demand For Damages Under 42 United States Code §1983. One demand therein was that the City forthwith return each and every set of construction plans that the Hildreths have supplied to the City. Thereafter, counsel received a letter from the City denying all of the Hildreths’ claims and demands.
The City’s refusal to return the plans – whatever the cause – violates Civil Code §§ 1822 & 1823; Health and Safety Code §§19850 and 34090; §107.5 of the Uniform Building Code of the International Conference of Building Officials, adopted as California state law in Health and Safety Code §17922(a)(2); City ordinances #1128 § 4, 1996; #1172 § 1 (A), 1999; #1198 § 1 (A), 2003; #1273 § 1 (part), 2007; #1315, § 1, 2011; and Local Government Records Management Guidelines issued by the Secretary Of State pursuant to Gov. Code §12236 in February 2006.
Based on the foregoing, the City is estopped to prevent the continuation of the construction. Medina v. Board of Retirement (2003) 112 Cal.App.4th 864, 868-869.
DATED: February 14, 2012
Respectfully submitted,
______________________ DAVID E. ROSENBAUM Attorney for Defendants
_________________________________________________________________________ Defendants’ Supplemental Opposition to Receiver’s Proposals
STATE OF CALIFORNIA ) ) COUNTY OF LOS ANGELES )
PROOF OF SERVICE
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 484 South Euclid Avenue, Suite 105, Pasadena, California 91101.
On February 14, 2013, I served the foregoing document described as:
DEFENDANTS’ SUPPLEMENTAL OPPOSITION TO RECEIVER’S PROPOSAL
on the interested parties in this action by transmitting true and correct copies of same by email to the following individuals at the following email addresses:
Charlene Wynder
Dapeer Rosenblit & Litvak LLP 11500 W Olympic Blvd Ste 550 Los Angeles, CA 90064
Email: cwynder@drllaw.com

Ben A. Eilenberg
Severson & Werson
19100 Von Karman Avenue, Suite 700 Irvine, CA 92612
Email: bae@severson.com
David J. Pasternak, Esq.
Pasternak, Pasternak & Patton 1875 Century Park East, Suite 2200 Los Angeles, CA 90067
Email: david@paslaw.com

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
DATED: February 14, 2013
______________________ DAVID E. ROSENBAUM
http://sierramadretattler.blogspot.com
