Courtney & Melody Gillespie;

c/o P.O. Box 8323

Porterville, California [93258]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF TULARE

TCSC Case # 10-238961;

MEMORANDUM OF POINTS & AUTHORITIES

Courtney Gillespie,
Melody Gillespie,
Plaintiffs/Cross Defendants
-VS-
Nicklas Hoffman Et Al,
OF Melody Gillespie IN SUPPORT OF HER RESPONSE
TO ORDER TO SHOW CAUSE WHY SANCTIONS
SHOULD NOT BE IMPOSED; SUPPORTING
AFFIDAVIT; MOTION OF Melody Gillespie TO
VACATE HEARING & WITHDRAW ORDER
TO SHOW CAUSE

Defendants/Cross Complainants HEARING DATE: / /2015;

DEPT: 2; TIME: 8:30 A.M. ;
_____________________________
STATEMENT OF FACTS

On 9/22/14, Plaintiff Melody Gillespie was issued an order to show cause before Dept. 2 Judge

Lloyd Hicks, why sanctions should not be imposed on her for filing a reply to the Opposition to

the prior Motion for leave to Amend the Petition for Injunctive Relief in this Case, wherein the

Court stated in its Minute Order of 9/22/14:

“Melody Gillespie is ordered to show cause why sanctions in the amount of $750.00 should not be
imposed for the improper filing on August 27, 2014 as to Objections to late Opposition and Reply to
Defendants/Cross Complainants Memorandum of Points and Authorities in Opposition to Motion for
Leave to File First Amended Complaint”

There is no statement by the Court in this minute order of any specific Statute or Rule of Court that

was Violated by the mere filing of a Reply to the Opposition to Motion For Leave to file an Amended

Complaint, which a Moving Party, Ordinarily has the Due Process Right to do, after Opposition has been

filed in response to a regularly served, filed and Calendered Motion before the trial court. The Court has
failed to inform Melody Gillespie of the specific basis in Law for a $ 750 sanction. Plaintiff Melody

Gillespie is completely in the dark concerning the Courts basis in Law for a $750 sanction for merely

filing a Reply to an Opposition to a Motion to Amend the Complaint; Before any Sanctions can issue

against Melody Gillespie from this Court, this Court is Required by Law under both State and Federal

Constitutions, Court Rulings, Statutes and Rules of Court to clearly state the basis in Law and what the

charge is. This has not yet happened, and before any proceedings are initiated demand is here made

that the Court fully state the basis in Law authorizing any Sanction. In absence of any such

information, this Court is required by both State and Federal Due Process of Law to withdraw the

Order to show Cause and Dismiss the charges, and Remove the matter from the Courts Calendar,

immediately and forthwith, as without such information provided by this Court there is no Notice or

Opportunity to Defend, and be heard, which denial of State and Federal Due Process of Law, inflicts

irreparable injury on Melody Gillespie. This Court stated on 9/22/14 in Court, it was setting a hearing

for sanctions against Melody Gillespie because she withdrew the Motion, and filed a Reply to Opposition;

At the time of filing the Notice of the intention to withdraw the Motion on 8/19/14, to Amend the

Complaint, an Opposition had already been filed on 8/15/14, which being the Case, a Hearing date having

been Calendared , an Order from the Court was required to remove the Motion from Calendar, which

never happened; there was never an Order from the Court, prior to the date for hearing the Motion;

there was no Notice from the Clerk or the Court by phone, email, or Postal mail &Affiant herein had no

knowledge and no Notice from the Court by either Phone or email, or otherwise that the Motion had

been taken off Calendar, therefore she had a Right to serve and file a Reply to the late Opposition of Bar

Attorney Robert Fletcher, until such time as she had been informed that the matter was off Calendar.

Melody Gillespie was only informed the matter was actually removed from Calendar when she appeared

before the Court on the day of hearing the Motion; This being the Case the purported prosecution of

her by this Court for an “improper filing” is improper with no factual or legal basis and must be

withdrawn, and the hearing removed from the Courts Calendar; any “charges” must be Dismissed by
the Court. A partial chronology of only some of the numerous Violations of California Statutory Law, in

the Code of Civil Procedure, the Bar Code Rules of Court, and the Business

and Professions Code, not to mention California Rules of Court, as well as the Doctrine of Starre Decisis,

etc., by Bar Attorney Robert Fletcher before this Court, has been provided to this Court in the here

accompanying Affidavit, served and filed herewith this Memorandum, for which Bar Attorney Robert

Fletcher was never prosecuted by this Court for failing to follow Rules of Court or the Law, which

establishes a clear double standard being applied by the Court, which is invidious discrimination by the

Court against Melody Gillespie, which “invidious discrimination”, is a Violation of Due Process of Law,

and Equal Protection under the Law; which is irreparable harm and injury, unless the Court withdraws
the

Order to show cause, and removes the hearing from the Calendar. When I pointed out in the
Opposition

that Counsel Robert Fletcher, for the other side, had Violated California Law in the C.C.P. and or Rules of

Court in serving and filing a late Opposition, there was not a word or mention by the Court of his

blatant Violation, which has been his continued practice from the day one in this case; I have complained

numerous times to Judge Vortman previously about the unlawful pattern and practice of Bar Attorney

Robert Fletcher in intentionally serving and filing late Opposition papers in Violation of Rules of Court
and

California Code of Civil Procedure, which Complaints were ignored by Vortman who allowed the

unlawful practice throughout the court proceedings, which was intended by Fletcher to prevent the

Gillespies from being able to file a timely Reply to the Opposition which is an unlawful tactic, and

since complaining to this Court about it, Dept. 2 Judge Lloyd Hicks also has continued the unlawful

practice of ignoring the intentional Violations of the Law by Attorney Robert Fletcher, to the continued

detriment and Violation of the Gillespies Rights to fair, equal and impartial treatment by the Court,
Equal

Protection Under and of the Laws, State and Federal Due Process of Law; This continued practice by this
Court is an on Going Invidious Discrimination against the Gillespies& is unequal application of the Laws,

unequal enforcement of the laws for which Federal Courts have Ruled is Actionable in a Suit for

Equitable, Declaratory, and Injunctive Relief against any Government bodies who carry out such Policy

of Invidious Discrimination. This Court comes within the scope of such Viable Court Action; The

continued Prosecution of me for Monetary Sanctions by this Court for alleged Violations that are not

clearly stated in the Law of the State of California, and are not clearly stated or explained by this Court,

while at the same time, ignoring the pattern and Practice of Bar Attorney Robert Fletcher to continually

Violate California C.C.P. Law Expressly Mandating timely serving and filing of Opposition papers in Law

and Motion Proceedings, which are clear cut, numerous Violations in this Case, without any mention of

them by the Court, without any threat of any Monetary fines or Sanctions, without any issuance of any

Orders to show Cause, before the Court why Fletcher should not be Ordered to pay Monetary Sanctions

for his Continued breach of the Mandatory Law he is Sworn to Obey, in his Express Oath and Duties, set

out in the California Business and Professions Code, as a Bar Attorney, is an egregious blatant
application

of a double standard by this Court against the Gillespies which is an “Invidious Discrimination” and

such discrimination is also a breach of the California Administrative Rules of Court which Expressly

forbid any Court from exercising any discrimination against any Party before it; The minute Order issued

by the Court on 9/22/14: merely states an Order to show cause for sanctions for “ improper filing” on

8/27/14 ” there is no statutory authority in Law cited by this Court for Sanctions, and no Rule of Court

Cited as a basis for the Prosecution, this is a denial of State and Federal Due Process of Law for which
this

Court must either correct the Omission of any stated basis in Law, or it must withdraw the Order to show

Cause, and remove the matter from the Courts' Calendar immediately and forthwith.

ISSUES OF LAW

I
THE PROSECUTION OF Melody Gillespie BY THIS COURT FOR FILING A REPLY TO
THE OPPOSITION FILED BY BAR ATTORNEY ROBERT FLETCHER WITHOUT
 INFORMING HER OF A BASIS IN LAW FOR A $750 SANCTION AGAINST HER
IS A DENIAL OF STATE & FEDERAL DUE PROCESS & EQUAL PROTECTION
UNDER THE LAWS WHICH HAS CAUSED PREJUDICIAL HARM & INJURY TO
Melody Gillespie
A
IF THIS COURT FAILS TO REMEDY THIS DENIAL OF DUE PROCESS BEFORE
ANY FURTHER PROCEEDINGS Melody Gillespie WILL SUFFER IRREPARABLE
HARM & INJURY FOR WHICH THERE IS NO ADEQUATE SPEEDY REMEDY IN
THE ORDINARY COARSE OF LAW
B
THIS COURT IS REQUIRED BY BOTH STATE & FEDERAL DUE PROCESS OF LAW
TO NOW ISSUE A CLEAR STATEMENT OF A BASIS IN LAW FOR A $750 SANCTION FOR
MERELY FILING A REPLY TO OPPOSITION SHE NORMALLY HAD A RIGHT TO DO
C
IN ABSENCE OF A CLEAR STATEMENT OF A CLEAR BASIS IN LAW FOR A MONETARY
SANCTION OF $750 THIS COURT IS REQUIRED TO REMOVE THE HEARING FROM
CALENDAR & WITHDRAW THE ORDER TO SHOW CAUSE
-------------------------------------------------------------------------------------------------------------------------------

The Record before the Court clearly shows the Court entirely failed to set forth Statutory authority

or basis for prosecuting Melody Gillespie for Contempt of Court, in its Order to show cause, in which

it has expressly threatened and stated its clear intent to subject her to a monetary Sanction of $750

dollars. In light of the fact at the time she filed her Reply to Opposition, no notice was given by the

Tulare County Superior Court that her Motion had been removed from Calendar. Opposition had

been filed to that Motion, it would be absurdity to say that she did not have any Right to file a reply to

the late opposition until she was informed by the Court her Motion was removed from Calendar,

which didn't happen til the day of hearing, on 9/22/14. No Statute has been cited by this Court for

authority to punish Melody Gillespie for doing something she ordinarily had a right to do under State

and Federal Due Process of Law. Filing a Reply to Opposition is a regular, usual ordinary and allowed

activity in Court, and a statute attempting to bar, ban, or penalize such an activity would be absurd on

its face, as filing a Reply to Opposition is part of Due Process of Law in Court required for a fair

impartial hearing to be obtained by the moving party.

“No law is to be construed in such a manner as to result in a palpable absurdity.” Jefferson vs CA.,
U.I.A.B. (1976, 4th DCA) 59 C.A. 3d 72;

The Court in the Case of Burtnett VS King ( 1949) 33 Cal 2d. 805, 807, stated that:
“It has been held repeatedly, and recently, that where a statute requires a court to exercise its
jurisdiction in a particular manner, follow a particular procedure, or subject to certain limitations, an
act beyond those limits is in excess of its jurisdiction. Tabor v. Superior Court, 28 Cal.2d 505; Lord v.
Superior Court, 27 Cal.2d 855;Redlands etc. Sch. Dist. v. Superior Court, 20 Cal.2d 348; Abelleria v.
District Court of Appeal, 17 Cal.2d 280;132 A.L.R.; Fortenbury v. Superior Court, 16 Cal.2d 405
Evans v. Superior Court, 14 Cal.2d 563; Rodman v. Superior Court, 13 Cal.2d 262;Spreckels S. Co. v.
Industrial Acc. Com., 186 Cal. 256 ”

It is clear by the foregoing, that every step by a Trial Court is strictly controlled by Statute. If there

is no statute for Punishment for filing a Reply to Opposition, than the Court acting by informal court

rule under its inherent power. Even such informal practice must comply with Due Process of law.

“Courts have inherent power to adopt any suitable method to practice both in ordinary actions and
special proceedings, if procedure is not specified by statute, or by rules adopted by Judicial Council.”
Tidewater Asso. Oil Co. VS Superior Court (1963) 59 C. 2d 805. “Even informal court established rules
must not conflict with legislative enactments or rules promulgated by the Judicial Council.” In Re
Janette, H. (5th DCA, 1990) 225 C.A. 3d 25.”

It is obvious that if inherent power to adopt an informal practice is forbidden from conflicting with

the formal Rules of the Judicial Council and statutory enactments, it certainly can not Violate or

Conflict with Express State or Federal Mandatory Due Process of Law, and Equal Protection under the

laws. Both State and Federal Due Process of Law require clear Notice and Opportunity to defend and to

be heard. This is not possible if the Court has not given any clear Notice of a basis in Law for a $750

Sanction. Whether it is by Statute, Rule of Court, Local Rule or Practice, inherent Powers, whatever

the basis, it must be clearly set forth and identified in the Order to Show Cause prior to any
Proceedings

against the accused and it must be timely served on her, in Order for Due Notice to be obtained for the

Purposes of Due Process of Law. As it now stands Melody Gillespie is in the dark as to the unlawful

action authorizing the $750 sanction, due to Failure of the Court to provide clear Notice of the Laws, or

Rules that were Violated.

II
Melody Gillespie CONTENDS SHE HAD A DUE PROCESS RIGHT TO FILE A REPLY
TO THE LATE OPPOSTION IN ABSENCE OF A NOTICE BY THE COURT HER
MOTION TO AMEND HER COMPLAINT HAD BEEN REMOVED FROM
CALENDAR & THE MOTION WITHDRAWN AFTER THE FILING OF
 OPPOSITION BY BAR ATTORNEY ROBERT FLETCHER
A
THE COURT IS NOT ALLOWED TO SANCTION ANYONE FOR DOING
WHAT THEY HAD A RIGHT TO DO UNDER THE LAW
-------------------------------------------------------------------------------------------------------------------

Melody Gillespie contends she had a Due Process Right to file a Reply to Opposition that the court
can not Sanction her for, in absence of due Notice that her Motion had been removed from the Court

Calendar, and withdrawn by the court after Opposition was filed by Robert Fletcher. “In Order to deprive

someone of life ,liberty, or property there must be some rational basis.” Blaylock VS Schwinden (1988)
856 F. 2d 107 (9th Cir.); Rochin VS California (1952), 342 US 165; “For the Government to punish a
person because they had done what the law plainly allows them to do is a due process Violation of the
most basic sort.” US VS Guthrie (1986) 789 F. 2d 356; US VS Pollard (1993) 994 F. 2d 1262. “When
Rights guaranteed by the Constitution are involved, there can be no rule making or legislation which
would abrogate them.” Miranda VS Arizona, (1966) 384 US 436; 86 S.Ct. 1602;“The claim and exercise
of a Constitutional Right can not be converted to a crime.” Miller VS US,(1956) 486 at page 489-490,
and cases cited therein. “The State can not diminish rights of the People,” Hurtado VS California,
(1884) 110 US 516; “There can be no sanction or penalty imposed upon one because of his exercise of
Constitutional Rights.” Sheror VS Cullen (1973), 481 F. 946; Farretta VS California (1975) 422 US 806;
“an Officer who acts in Violation of the Constitution ceases to represent the Government”. Brookfield
Co. VS Stuart (1964) 234 F. Supp 94, 99 ; “Equal Protection may be violated by the manner in which a
law is applied to an individual, though the law itself, as a whole is Constitutional”..”We recognize that
the unequal application of a law, fair on its face, may act as a denial of equal protection. Zeigler VS
Jackson (1981) 638 F. 2d 776 at page 779; Yick Woo VS Hopkins, (1886) 118 US 356, 373-374; ” “It is
appropriate to Judge Selective Prosecution claims according to ordinary equal protection standards.”
Wayte VS US (1985) 470 US 598; “Due Process of Law is Violated when government vindictively
attempts to penalize a person for exercising protected statutory or Constitutional Rights.” US VS
Conkins (9th Cir. 1993) 987 F. 2d 564. “Substantive due Process refers to certain actions that the
government may not engage in no matter how many procedural safeguards it employs.” Blaylock VS
Schwinden (1988,9th Cir.) 856 F.2d 107; Rochin VS California (1952) 342 US 165, Supra.

In absence of a basis in Law for a Sanction of $750 for filing a Reply in this Case the Order to Show

Cause must be withdrawn by this Court, and the hearing removed from Calendar.

III
BAR ATTORNEY ROBERT FLETCHER PREVIOUSLY FILED A DOCUMENT IN CASE #
VCU-249049 WHICH IS A RELATED CASE NOW ON APPEAL IN 5TH DCA #: F068677
“NOTICE OF HEARING AND APPLICATION BY DEFENDANT NICKLAS HOFFMAN FOR
IMPOSITION OF SECURITY REQUIREMENTS BY VEXATIOUS LITIGANT PLAINTIFFS,
MOTION TO STRIKE COMPLAINT AND / OR DEMURRER TO COMPLAINT”
A
THE COURT DEPT. 10 JUDGE LLOYD HICKS ADMITTED IN HIS WRITTEN RULING
ON THE PURPORTED “MOTION” THAT IT WAS “PROCEDURALLY IMPROPER”
BUT THAT HE WOULD RULE ON THE MERITS OF THE PURPORTED “MOTION”
ANYWAY DESPITE THE FACT IT WAS “PROCEDURALLY IMPROPER ” AND
WAS FILED BY A MEMBER OF THE CALIFORNIA BAR CORPORATION
 ------------------------------------------------------------------------------------------------------------------

Previously, as set forth above, Bar Attorney Robert Fletcher filed a “Procedurally Improper”

document in Related Case # 249049, now pending in the 5th DCA on Appeal; in Violation of several

Mandatory Statutory provisions of the Law of the State of California, after Plaintiffs, the Gillespies

pointed those Violations out to the Court in their Opposition to said Document. The Court admitted the

document filed by Bar Attorney Fletcher was “Procedurally Improper” but instead of removing the

matter off Calendar as it would have certainly done if such a “Procedurally Improper” document were

filed by Melody or Courtney Gillespie, the Court Judge Lloyd Hicks who sits in this Case now merely

stated he would rule on the merits of the Document anyway, despite the fact that it was procedurally

improper and filed by a Licensed Bar Attorney, Robert Fletcher, the same Bar Attorney who is filing

procedurally improper documents in this Case before this Court. A double standard is clear and

apparent in the record before this Judge and this Court, in that recently in this Case this Judge

instructed Melody Gillespie to “Brief it” when she asked the Court to release to her the prior

subpoenad police Reports which were for use in discovery to obtain the names of witnesses to

be called at trial, and when Melody Gillespie filed a sworn Declaration stating the relevance of the

reports for preparing her Case for Trial, obtaining witness information, etc., the Court cited her for

contempt of Court and hit her with a $ 250 dollar Sanction, for filing what amounted to a basic affidavit

of Materiality, which is what is required in the California Evidence Code for subpoenaing documents and

records; at most the only basis for a sanction against Melody Gillespie for filing an Affidavit of

materiality, after the court told her to “brief it”, would be for filing a “Procedurally improper”

document, though even that is questionable in light of the fact one is required by statute to

subpoena records and documents such as Police Reports, etc. This was clearly not equal treatment

before the law in light of the fact that Melody Gillespie is not a Bar Attorney licensed by the

California Bar Corporation to engage in the “practice” of “Law” for financial gain and profit as is

Attorney Robert Fletcher; she has not been practicing law for over 35 years in the state of California as
has Robert Fletcher, she has not sworn an Oath to comply with the Laws of the State of California and

the United States of America, as has Attorney Robert Fletcher; and Melody Gillespie does not get paid

$250 or more dollars an hour for the documents she files in Court as does Attorney Robert Fletcher;

In the Case of: Central Airlines Inc. VS US , 138 F. 3d 333, (8th Cir., 1998), the Court Ruled at page 335,
“The Equal Protection Clause also prohibits government officials from selectively applying the law in a
discriminativ4 way.” citing the cases of : Snowden VS Hughs (1944) 321 US 1, 8; 64 S.Ct. 397, 401; 88
L.Ed.497; Batra VS Bd. Of Regents of Univ. of Nebraska (8th Cir. 1996) “Equal Protection may be
violated by the manner in which a law is applied to an individual, though the law itself, as a whole is
Constitutional”..”We recognize that the unequal application of a law, fair on its face , may act as a denial
of equal protection. ZEIGLER VS JACKSON (1981) 638 F. 2d 776 at page 779; YICK WOO VS
HOPKINS, (1886) 118 US 356, 373-374; 6 S. Ct. 1064, 1073, 30 L.Ed. 220”

Evidence of Invidious Discrimination; Application of a Double Standard;

Unequal Application of the Laws; Selective Enforcement of the Laws:

After it was pointed out to this Court in the R.I.C.O. law suit in related Case # VCU-249049 in the

Reply of the Gillespies, that Nicklas Hoffman and his Attorney of Record had filed a document moving

for an Order declaring the Gillespies vexatious litigants, which failed to meet preliminary threshold

requirements for a hearing, Violated more than one Mandatory Procedural Requirement, this Court

issued a Ruling expressly admitting Fletchers document was “Procedurally improper” and instead of

removing it from Calendar, and Sanctioning him, this Court allowed the Bar Attorney to get away with the

several violations in a single document, and stated it would rule on the merits, despite failure to comply

with threshold requirements precluded any hearing by Court, according to language in the provisions

on Vexatious Litigants; this Violated the spirit of the law and clear intent of the Legislature, who intended

these requirements as threshold requirements to be met in order to obtain a hearing before the Court

on such Motion. If past experience in Court is any indication, it is clear if Gillespies filed a document

Violating Mandatory requirements this Court would have removed it from Calendar, and issued an Order

to show cause why Sanctions should not be imposed on Gillespies for Violating the statutes. This is an

undeniable double standard of treatment unfair and prejudicial and is forbidden by State &Federal Due

Process of Law, the Administrative Rules of Court, California Judicial Canon, and numerous published
Court Rulings by State and Federal Courts, as set forth herein.

IV
ALL THE FOREGOING VIOLATIONS OF DUE PROCESS &EQUAL PROTECTION ALSO
VIOLATE VARIOUS PROVISIONSOF THE CALIFOIRNIA JUDICIAL CANONS 2 & 3
A
ALL THE FOREGOING VIOLATIONS OF DUE PROCESS & EQUAL PROTECTION ALSO
VIOLATE RULE 10.603 OF CALIFORNIA ADMINISTRATIVE RULES OF COURT
--------------------------------------------------------------------------------------------------------------------------

The foregoing Violates the California Judicial Canon #'s 2 & 3; (emphasis added) CANON 2:

A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN

ALL OF THE 4 JUDGE’S ACTIVITIES; A.Promoting Public Confidence: A judge shall respect
and comply with the law and shall act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary

ADVISORY COMMITTEE COMMENTARY: Public confidence in the judiciary is eroded by

irresponsible or improper conduct by judges. A judge must avoid all impropriety* and appearance
of impropriety.”...“The test for the appearance of impropriety is whether a person aware of the facts
might reasonably entertain a doubt that the judge would be able to act with integrity, impartiality,
and competence. As to membership in organizations that practice invidious discrimination, see also
Commentary under Canon 2C.

CANON 3: “Canon 3. A judge shall perform the duties of judicial office impartially,” “...”...”

(2) A judge shall be faithful to the law regardless of partisan interests, public clamor, or fear of
criticism,” “...”..”
(5) “ A judge shall perform judicial duties without bias or prejudice. ”...”...”
(7) “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s
lawyer, full right to be heard according to law.

The foregoing also establishes the Violation of Calif. Adminis. Rules of Ct. in Rule 10.603, as follows:

“Rule 10.603. Authority and duties of presiding judge”, Mandates in appropriate part:

“(a) General responsibilities; The presiding judge is responsible, with the assistance of the court
executive officer, for leading the court, establishing policies, and allocating resources in a manner that
promotes access to justice for all members of the public, provides a forum for the fair and expeditious
resolution of disputes,”..””..”

Applying a double standard in favor of Licensed Bar Attorneys, against non Bar Attorneys is obviously

not “the fair and expeditious resolution of disputes” required under the Administrative Rules of Court.

-CONCLUSION-

In light of all the foregoing it is clear in the record that the Court must state a clear basis in law for a
$750 Sanction, or withdraw the Order to show Cause and remove the hearing from Calendar immediately

and forthwith. Respondent requests the Court to do just that.

Dated: 1/ /2015 ______________________________

Melody Gillespie