Writ Filed by Doris M. Rich

DORIS M. RICH and ARDEN RICH

Petitioners,

-against-

HON. R. MICHAEL SMITH,

Respondent.

_____________________________________________________

NEEL RICH and MYRNA RICH,

Real Parties in Interest.

_____________________________________________________

SOLANO SUPERIOR COURT CASE No. P34215

Hon. R. Michael Smith, Judge

_____________________________________________________

PETITION FOR A WRIT OR MANDATE/ PROHIBITION OR OTHER APPROPRIATE RELIEF; MEMORANDUM OF POINTS AND AUTHORITIES ACCOMPANIED BY EXHIBITS IN SUPPORT THEREOF, STAY REQUESTED
_____________________________________________________

PETITION

By this verified petition, Doris M. Rich and Arden Rich allege:

1. Doris M. Rich is the respondent in an action which has been brought in the Solano County Superior Court entitled In re Doris M. Rich, Case No. P34215. This case was filed in March, 1994.

2. There have been numerous hearings in this matter, commencing in May, 1994. Prior to and including December 2, 1994, Doris M. Rich diligently attended these hearings and, on every possible occasion, objected to the imposition of a conservatorship upon her.

3. On July 29, 1994, a stipulation was entered into between the parties to this case that, for the sake of avoiding a lengthy trial and the inherent risks of litigation, Doris M. Rich would agree to have a property manager manage her rental properties and would agree to have an accountant review her finances. Doris M. Rich did not agree to give up any of her civil rights by virtue of this agreement.

4. Thereafter, this stipulation was violated repeatedly by Myrna Rich and Neel Rich. For example, none of the medical or financial accounting records which were supposed to be made available under the stipulation were made available. Similarly, none of the empty houses and apartments owned by Doris M. Rich were rented. In addition, John D. O'Hara, the attorney for Neel Rich, caused to be paid to himself the amount of $5591 in legal fees, from the bank account of Doris M. Rich, over the objections of and without the permission or authorization of Doris M. Rich.

5. After Doris M. Rich protested this and several other unauthorized payments made by the accountant and by Myrna Rich, the accountant, Calvin Carmichael, resigned.

6. As a result of the resignation of the accountant, John D. O'Hara, the attorney for Neel Rich, made an emergency ex-party motion for the appointment of a conservator, solely on the ground that, because of the resignation of the accountant, there was nobody to write the checks, including especially the checks to John D. O'Hara for the legal fees he was demanding from Doris M. Rich.

7. As a result of this ex-party motion on only two days notice and without any fact hearing, without any medical evidence whatever and without the testimony of witnesses of any kind, Judge R. Michael Smith appointed James A. Moore as the temporary conservator of the Estate of Doris M. Rich.

8. On the afternoon and evening of December 2, 1994, after Judge R. Michael Smith had imposed a temporary conservatorship on the estate of Doris M. Rich, the petitioners, Neel S. Rich and Myrna Rich, made abusive remarks to their mother. As a result, Doris M. Rich repeatedly called her other daughter, Arden Rich, and asked to come and rescue her from that situation.

9. On the morning of December 3, 1994, Arden Rich finally did come and, at the request of Doris M. Rich and after consulting counsel, took her to her home at 2550 Webster Street, San Francisco, Cal. 94115.

10. Thereafter, Myrna Rich and Neel Rich protested, claiming that Arden Rich had "kidnapped" their mother.

11. Thereafter, Tosh Yamamoto, the attorney for James A. Moore, filed a motion contending essentially that Arden Rich had usurped his role as conservator and demanded an order making him also the conservator of the person of Doris M. Rich.

12. Thereafter, Arden Rich, through counsel, moved pursuant to California Judicial Code Sec. 170.6 to disqualify Judge R. Michael Smith from hearing this case on the grounds that Judge Smith was personally biased against Arden Rich and Doris M. Rich and for cause. This motion was made on December 20, 1994 before Judge Nail and again on December 21, 1994 before Judge Smith. In spite of presenting adequate and sufficient grounds for said motion, both Judge Nail and Judge Smith denied the motion to disqualify Judge Smith.

13. After denying the motions by Arden Rich to disqualify Judge Smith from the case, Judge Smith proceeded to conduct a hearing, without the presence of Doris M. Rich, who could not attend because of illness. At the conclusion of the hearing, without any medical evidence of any kind regarding the mental capacity of Doris M. Rich having been presented, Judge Smith appointed James A. Moore as the conservator of the person of Doris M. Rich.

14. Since Doris M. Rich was not present in court on December 21, 1994, Judge Smith made an order which provided that, on December 24, 1994, Doris M. Rich would be picked up in San Francisco by Neel Rich and that Arden Rich would "cause" Doris M. Rich to be made available for pickup.

15. On December 24, 1994, Doris M. Rich, who had not been served with any of Judge Smith's orders, did not make herself available to be picked up by Neel Rich.

16. Thereafter, Neel Rich, through counsel, applied for an order adjudicating Arden Rich in contempt for failing to make her mother to be available for pickup by Neel Rich.

17. On January 6, 1995, Judge Nail directed Arden Rich to make her mother available for pickup at 1:00 PM on that day. Judge Nail stated that otherwise, he would order the Sheriff of San Francisco to break down her door and seize Doris Rich.

18. On January 6, 1995 at 1:00 PM, Doris M. Rich was not available for pick up because she had suffered an anxiety attack that morning and was hospitalized in the emergency room of the UCSF Hospital in San Francisco. Doris Rich was discharged after a stay of only about two hours. She then went to the San Francisco Superior Court in San Francisco City Hall, where she requested an order of protection against Myrna Rich on the grounds that Myrna Rich had twisted her thumbs, causing them to become black and blue, and also hit her in the forehead with a closed fist. A hearing was set on this matter for 9:30 AM on the morning of January 11, 1995.

19. On the early morning of January 9, 1995, Doris M. Rich was on her way to UCSF Medical Center to complete a mental health evaluation which she had commenced six weeks earlier in an effort to prove herself to be mentally fit, when James A. Moore accosted her and tried to take her by force into his custody. Doris M. Rich threatened to slap the face of Mr. Moore and then got into a waiting taxi before he could seize her.

20. Because of the attempt by James A. Moore to physically seize Doris M. Rich, she was unable to complete her mental health tests at UCSF Medical Center.

21. On the morning on January 10, 1995, Doris M. Rich went to the Women's Health Clinic at UCSF Medical Center for a complete physical examination by Dr. Harriet Stathakos, an internist.

22. On the same morning, January 10, 1995, Arden Rich appeared in the Solano County Superior Court. There, Judge Nail revealed that he was financially involved with John D. O'Hara, the attorney for Neel Rich, the petitioner, and that therefore he was disqualifying himself from the case. However, Judge Nail did not vacate the previous orders which he had issued in this case, including an order for the Sheriff of San Francisco to enter the house at 2550 Webster Street in San Francisco for the purpose of securing the whereabouts of Doris M. Rich. Thereafter, Judge Jensen heard the case. Arden Rich she was then jailed by Judge Jensen, apparently for civil contempt either for failure to reveal the whereabouts of her mother of failure to deliver her mother to James A. Moore.

23. On the morning of January 11, 1995, Doris M. Rich appeared in San Francisco Superior Court for a hearing on her request for an order of protection against being assaulted and beaten by her daughter, Myrna Rich. At that hearing, Mr. Yamamoto, attorney for James A. Moore, appeared, as did Myrna Rich, the respondent to that proceeding.

24. At that hearing, Mr. Yamamoto asserted that San Francisco Superior Court had no jurisdiction and asked that the temporary order of protection be vacated and the proceeding be dismissed on the grounds that Doris M. Rich had no capacity to bring a proceeding for an order of protection since a temporary conservator had been appointed. The application of Mr. Yamamoto was granted by the court and the proceeding dismissed, without the court even granting Doris M. Rich the opportunity to speak in opposition to the motion of Mr. Yamamoto.

25. Thereafter, Mr. Yamamoto informed the court that he would be taking Doris M. Rich into his custody. Thereafter, he and Doris M. Rich left the courtroom. However, in the hallway, Doris M. Rich refused to go with Mr. Yamamoto, and instead sat on a bench in the corridor. Mr. Yamamoto then attempted to convince Doris Rich to go with him. Doris Rich refused. Mr. Yamamoto then called the sheriff's deputies . About a dozen more or less sheriff's deputies thereafter surrounded Doris Rich and prevented her from leaving City Hall. Mr. Yamamoto then presented them with an order of Judge Nail stating that the Sheriff of the City of San Francisco was directed to enter the residence of Arden Rich at 2550 Webster Street, San Francisco for the purpose of securing Doris M. Rich.

26. After a lengthy discussion and altercation in San Francisco City Hall lasting about one hour, the San Francisco Sheriff's Department decided that this order was insufficient to give them the authority to seize Doris M. Rich by force, and that therefore she was free to go.

27. Upon hearing this, Doris M. Rich left San Francisco City Hall and boarded the Number 42 bus and departed.

28. Upon the departure of Doris M. Rich, Mr. Yamamoto called the Solano County Court on his cellular telephone and told them that Doris Rich had absconded and therefore Arden Rich, who had been brought from her jail cell and was present in courtroom before Judge Jensen, should be sent back to jail.

29. As a result, Arden Rich was once again jailed.

30. On January 13, 1995, Arden Rich was released from jail by the order of Judge Jensen with instructions to return to court on Tuesday, January 17, with her mother or else face a possible six months in jail.

31. On January 14, 1995, unbeknownst to Arden Rich, Doris M. Rich had suffered another anxiety attack and had voluntarily checked herself into Alameda Hospital in Alameda, so that none of her relatives, including Myrna Rich, Neel Rich and Arden Rich, knew where she was.

32. On January 17, 1995, Arden Rich returned to Solano County Superior Court and was once again jailed by Judge Jensen for failing to produce her mother.

33. On the afternoon of January 17, 1995, after Arden Rich had been in jail for several hours, a newspaper reporter for the San Francisco Chronicle told Robert Kroll, attorney for Arden Rich, where Doris Rich was. Mr. Kroll then entered into an agreement with the other parties before the court that he would reveal the whereabouts of Doris Rich provided that she be allowed to complete her medical tests and examinations and that Myrna Rich move out of the house. After securing the agreement of all parties and after this agreement had been approved by the court, Kroll revealed that Doris M. Rich was a patient in Alameda Hospital. Thereafter, Arden Rich was released from jail.

34. On the morning of January 18, 1995, James A. Moore went to Alameda Hospital for the purpose of taking Doris M. Rich into his custody. However, Alameda Hospital refused to release Doris M. Rich to him. Thereafter, James A. Moore applied to the court and obtained an ex-party order that no family member be allowed to speak or communicate with Doris M. Rich.

35. Because of the confinement of Doris M. Rich in the hospital plus the fact that she was not allowed to communicate with the outside world, she did not undergo her cataract surgery which had previously been scheduled for February 1, 1995 at UCSF Medical Center nor was she fitted for the hearing aid which she had ordered prior to the appointment of a conservator.

36. On February 3, 1995, Alameda Hospital gave Doris M. Rich a clean bill of health, except for a gall bladder problem, and ordered her discharged. Thereafter, James A. Moore picked her up from the hospital and brought her back to her original home at 733 York St. in Vallejo.

37. Since February 3, 1995, Doris M. Rich has been confined against her will at 733 York St. in Vallejo. Two nurses aids are present in the house, but James A. Moore has provided them with no money to purchase food for Doris M. Rich. Therefore, Doris M. Rich has had very little to eat for the past week. Doris M. Rich has not been allowed to keep her medical appointments, and her medical condition is being neglected. Because Doris M. Rich is being held under house arrest, there is no way she can obtain her own food or to secure the medical attention which she required. More than that, Neel Rich and Myrna Rich have a financial interest in having their mother die as soon as possible, so that they will get her money that much quicker.

38. Throughout all of these proceedings, there has been no medical evidence of any kind showing that Doris M. Rich is suffering from any mental impairment whatever which requires the appointment of a conservator. To the contrary, Doris M. Rich has been examined by numerous doctors, and all of them agree that Doris M. Rich is not in any way mentally incompetent. In short, there has never been any legal or factual basis for the appointment of a conservator either of the person or of the estate of Doris M. Rich.

39. Judge R. Michael Smith was legally required to disqualify himself based upon the motion made by counsel for Arden Rich on December 20, 1994 and renewed on December 21, 1994 that Judge Smith was personally biased against Arden Rich and Doris M. Rich. Judge Smith previously had stated in open court that "This case reveals the dark side of humanity." Such a remark shows Judge Smith's personal bias, especially when Doris M. Rich and Arden Rich are merely trying to defend their civil and constitutional rights. Had Judge Smith disqualified himself, as he was legally required to do, he would never have issued an order appointing a conservator of the person of Doris M. Rich.

40. The jailing of Arden Rich was illegal and unconstitutional. Arden Rich did not know where her mother was and did not have the power to deliver even if she knew. On January 11, 1995, Doris M. Rich was in the presence of Mr. Yamamoto, attorney for James A. Moore, for about three hours from 9:30 AM, the time of the scheduled hearing in San Francisco Superior Court, until about 12:30, when Doris Rich caught the 42 bus. Mr. Yamamoto spent about one hour of this time talking to Doris M. Rich. Mr. Yamamoto also had Doris Rich surrounded by about a dozen sheriff's deputies. Therefore, Mr. Yamamoto knew where Doris Rich was but did not take her into custody because he lacked the physical power to do so. Therefore, it was illegal for the Solano County Superior Court to keep Arden Rich in jail for something which she clearly lacked the power to do and which Mr. Yamamoto could better have done.

41. Unless an extraordinary writ is granted, Doris M. Rich will suffer irreparable harm and possibly even death because of the lack of food and medical attention being provided by the "temporary conservator".

PRAYER

WHEREFORE, Petitioners pray that this court:

1. Either issue its peremptory writ of mandate directing Respondent Superior Court Judge R. Michael Smith to vacate his orders dated December 2, 1994 and December 21, 1994 appointing a temporary conservator of the estate and the person of Doris M. Rich and to vacate all other orders in this case which have affected the civil rights of Doris M. Rich and/or Arden Rich and to thereafter recuse and disqualify himself from this case on the grounds of personal bias against the petitioners or (b) issue an alternative writ directing Judge R. Michael Smith to show cause why he should not be so directed, and upon return to the alternative writ, issue a peremptory writ as set forth in subparagraph (a) above.

2. Award to Doris M. Rich and Arden Rich costs and legal fees incurred in this proceeding.

Respectfully submitted,

_____________________ ______________________
Doris M. Rich Arden Rich

VERIFICATION

I, Doris M. Rich, declare as follows:

I have read the foregoing petition for a writ of mandate and know its contents. The facts alleged in the petition are true to my own knowledge.

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

_________________________
Doris M. Rich

I, Arden Rich, declare as follows:

I have read the foregoing petition for a writ of mandate and know its contents. The facts alleged in the petition are true to my own knowledge.

I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on _____________, 1995.

_________________________
Arden Rich

CERTIFICATE OF SERVICE

I, Arden Van Upp, do hereby certify that on February 10, 1995 I served the petition for an extraordinary writ my mailing a true copy to the following persons:

Hon. R. Michael Smith
Solano County Superior Court
600 Union Ave.
P. O. Caller 5000
Fairfield, CA 94533

John D. O'Hara
850 Tuolumne Street
Vallejo CA 94590

James A. Moore
P. O. Box 163657
Sacramento CA 95816

Tosh Yamamoto
930 Florin Road, # 200
Sacramento CA 95831

Myrna Rich
733 York St.
Vallejo CA 94590

Neel Rich
277 West "H" St.
Benicia CA 94510

________________________
Arden Van Upp

Contact address - please send e-mail to the following address: Sloan@ishipress.com