By Donna Westfall
When dealing with the judicial system, time deadlines are extremely important as are statutes of limitations. If a time deadline is missed in filing pertinent documents, a case can be dismissed and the battle is over.
In follow-up to a comment made to the first article by Linda Sutter, it’s important to understand these distinctions and realize why timely filing of paperwork with the court is so important. Herein is Ms. Sutter’s comment:
- Sometimes our minds develop fears when non truly exist. So is the case with Sandy Linderman and Wes Nunn. I made an attempt with Wes Nunn to sit down with Sandra Linderman and discuss any misunderstandings between them. Wes was not having it…so in all fairness to Sandy, she is doing her job WELL. She can’t resolve anything if Wes refuses to have a discussion with her and clear up any misunderstandings between them….
Wes Nunn’s response:
- Ms. Linda Sutter’s reply is as far removed from accuracy as any reply could ever be, and I will prove it by my letter to Judge Follett and Judge Follett’s response to my letter included with this reply.
- First, contrary to Ms. Sutter’s meritless assertion that I refused to discuss matters with Court Executive Officer Sandra Linderman, I did attempt to discuss a matter on July 9, 2013. Ms. Linderman responded by calling both the court bailiffs and 911 on me. When the bailiffs arrived, they refused to even take an incident report because there was no basis for the 911 call. When state police arrived in response to the call, they also saw no basis for a 911 call and declined to take a report (see attached, letter of complaint to Judge Follett). Ms. Sutter suffers either amnesia or convenient memory loss because Ms. Sutter was standing right there in the clerk’s office when this all occurred. As Donna Westfall was also standing right there in the clerk’s office, I’ll ask Ms. Westfall to tell us what she recalls about Ms. Linderman’s conduct.
- Second, contrary to Ms. Sutter’s meritless assertion that I refused mediation, I did request mediation on the matter. I formally requested the court appoint a mediator and Judge Follett specifically denied it. This is extremely well documented as shown by the letter below which I served on the court on July 16, 2013, in which I asked of Judge Follett (see attached, letter to Judge Follett page 3); “I also ask this court to appoint a mediator who will not make legal or judicial decisions, who is not openly hostile towards me, and who will not call law enforcement if I attempt to have the court clerk receive or file a document.”
- Third, Judge Follett ordered Ms. Linderman to file the document she had previously refused (see attached, letter to me from Judge Follett). Judge Follett went on to say that I should have presented the case law to Ms. Linderman. This is wrong, because it was a bit difficult to cite law to Ms. Linderman as Ms. Linderman was calling 911 on me. Further, Ms. Linderman is not an attorney or a judge, and cannot be making rulings on the matter. I find this part of Judge Follett’s letter a bit absurd.
- Nonetheless, Ms. Sutter’s assertion that I made no attempt to mediate is absolutely and totally contrary to the facts.
- So next time, Ms. Sutter, check at least a couple of facts. Of course, I predict you’ll retaliate to my reply and either fabricate facts on which to seek a restraining order or take personal jabs at me on some other ground, or do as Ms. Linderman did and make a baseless 911 call.
- It should also be pointed out that Judge Follett acknowledged the California Supreme Court ruling of Shalant v. Girardi (2011) 51 Cal.4th 1164, 1174-1175 in his letter of July 23, 2013 (copy shown below). Despite this acknowledgment, Judge Follett later violated his own acknowledgment by ruling directly against the Shalant v. Girardi case, refusing to abide by his own argument and causing the deprivation of my right to access the courts as protected by the constitutions of both California and the United States.
- Ms. Sutter; I must distance myself from you or anyone else who condones this type of conduct and the practice of depriving someone’s constitutionally protected rights pursuant to a personal agenda. The true and correct record shows clearly that I have been extremely reasonable and Ms. Linderman has not.
July 16, 2013
RE: Nunn v Fenswick, CVUJ 09-1323 and all related actions and proceedings
Dear Presiding Judge Follett,
On July 2, 2013, I proceeded to file a ‘proof of service’ and an ‘an issue memorandum’ with this court pursuant to Judge Doehle having previously approved the filing by signed minute order. Court Executive Officer Sandra Linderman refused the filing. When I returned with a witness, and with the court minute order, Ms. Linderman accepted the document as “received” but again refused to file and refused to file stamp my copy. At all times mentioned, Ms. Linderman displayed open hostility towards me.
On July 9, 2013, I attempted to file a motion in Case No. CVUJ 09-1323. Ms. Linderman refused the filing, stating “the judge told me” to refuse filing any motion from Mr. Nunn. I asked Ms. Linderman if she could produce any signed court order restricting me from filing a motion in a pending action and Ms. Linderman stated that there is, but added that she refused to produce it. Ms. Linderman then shifted the basis of her refusal and argued that she had read the vexatious litigant statutes and in reading she made the conclusion that the statutes authorized her to refuse the filing or receiving of my motion. Ms. Linderman then refused to hear anything further and called the Bailiff to escort me out. When Bailiffs arrived, I left peaceably and without incident, and without being asked or demanded to leave. I returned to the law library in the courthouse. Ms. Linderman approached mad and provided to me a ‘sticky note’ which stated only “CCP 391.7(d)” and which she represented as her ‘authority’. I looked up Code of Civil Procedure section 391.7(d) as I have before and confirmed this code may restrict the filing of motions in Family Code or Probate Code only, of which this case is neither.
Moment later, a California Highway Patrol officer entered the law library and made contact with me. Seeing only peaceable use of the law library, the officer left. The next morning, I contacted the Cresent City office of the CHP and affirmed that the officer was called to the courthouse regarding the incident above.
The acts of Ms. Linderman are pursuant to her own personal legal conclusion and her own corresponding judicial order and without the authority or involvement of a judge or the court. The above acts of Ms. Linderman were performed in front of two witnesses who accompanied me.
More recently, Ms. Linderman approached local attorneys and announced the vexation ruling against me, apparently using her position as court executive officer to deter attorneys from considering my case. Ms. Linderman has taken a campaign against me personally and seems to believe that a litigant deemed vexatious has fewer constitutional rights than a felon. I am a person that has never been in trouble with the law and my background is ‘squeaky’ clean. In adddition to my right to petition being repeatedly violated by Ms. Linderman, so are my substantive liberty rights.
In 2011, the California Supreme Court in Shalant v Girardi (2011) 51 Cal.4th 1164, 1174-1175 held; the filing of a motion is not the “new litigation” contemplated by Legislature and does not require pre-filing application. “section 391.7, then is not reasonably susceptible to a reading under which a prefiling order would bar the vexatious litigant from filing motions or other papers in propria persona… Nowhere in this history is there any suggestion that the new section would bar vexatious litigants from filing motions or papers in pending litigation” Id. at 1175 (see attached). The filing of motions in a pending action are simply not the new litigation contemplated int he vexatious litigant statutes and there is no requirement for a plaintiff to apply for court permission to file a motion with the specific exception of Family Code or Probate Code (CCP 391.7(d)). Accordingly, Ms. Linderman’s legal decision was not only unauthorized, but also erroneous.
The legal and judicial decisions propounded by Ms. Linderman are not only inconsistent, arbitrary, unwritten, and unauthorized by law or by the court or by the office of the court clerk, but are also in direct conflict with the above Supreme Court caselaw that specifically negates any requirement to obtain court permission for filing motions within a pending action, and in the absence of any court requirement me to do so; performing these acts in breach and dereliction of her duties as the Court Clerk and in violation of my procedural due process and liberty rights as guaranteed by the Constitution of the State and of the United States and exceeding any authority exercised by the office of the court clerk. A full report and complaint, including a request for investigation, including Ms. Linderman’s well documented prior acts of bias against Mr. Nunn, are being served on the Administrative Office of the Courts, on the Judicial Council, and on the Commission On Judicial Performance, as the conduct of the Court Executive Officer is ultimately the responsibility of the local presiding and seated judges.
I request, should this court rule to require a prefiling requirement exceeding the statutory “new litigation” prefiling requirement, that these procedural rules be set by the court, and served on me, and that the court require the procedure be followed by Ms. Linderman and by the court clerks. I fully understand that the filing of new litigation as defined by statute, in this court at this point, is subject to a prefiling order. At this time I should not be forced to guess at Ms. Linderman’s arbitrary procedure, nor should I be forced to contend with Ms. Linderman and her open hostility towards me under the threat of being arrested for attempting to file documents in the normal course of civil procedure. I have additional documents that are awaiting filing, some of which are not untimely due to Ms. Linderman’s refusal to file or accept the documents. I cannot ask Ms. Linderman what arbitrary and self made rule she will create and enforce today without risk of my arrest and further violation of my liberty rights.
In addition to the request above, I also ask this court to appoint a mediator who will not make legal or judicial decisions, who is not openly hostile towards me, and who will not call law enforcement if I attempt to have the court clerk receive or file a document.
A proof of service is enclosed as Ms. Linderman recently enforces a ruled that I must include a proof of service with letters to the court although this is not required of opposing counsel.
Presiding Judge William H. Follett’s response:
July 23, 2013
Dear Mr. Nunn:
This acknowledges receipt of your letter dated July 16, 2013, and received by the court on July 18th. I reviewed the case that you cited, Shalant v Girardi (2011) 51 Cal.4th 1164, and agree with your position that even though you have been determined to be a vexatious litigant you are entitled to file motions in case CVUJ09-1323 without first obtaining permission from the Presiding Judge.
I informed Ms. Linderman of my conclusion and I understand that she so informed you on July 19, 2013.
After reviewing your letter and discussing the matter with Ms. Linderman, I am convinced that she did not decline to file your papers as a result of any animosity toward you, but rather due to a misreading of subdivision (d) of the California Code of Civil Procedure section 391.7. I must admit that I find the punctuation in that subsection makes its direction unclear. The trial judge in Shalant, apparently also read section 391.7 in a similar fashion. If you had cited the Shalant case to Ms. Linderman directly, I believe this issue would have been resolved even more quickly.
While I cannot guarantee that mistakes will not be made in the future, I can assure you that we will strive to treat you in a professional and courteous manner and in full conformance with the law. I do not find that appointing a “mediator” would serve any purpose.
NOTE BY EDITOR Donna Westfall: On July 9, 2013, at 1:55 pm, I was present as Wes Nunn tried to file documents. I can attest that CEO Linderman not only refused to record said documents but she called in the Bailiff, Sgt. Drew Davis. I wanted to video record the interaction, but another court clerk shook her head indicating that I shouldn’t.