Upland Validation-Answer To Complaint, 7-3-18 (1870)

Marjorie M.
Mikels SBN: 101102

1 1417 N. Euclid Avenue
Upland, CA 91786-2302
2 (909) 981-2030
3 Attorney IN PRO PER
4
5 SUPERIOR COURT OF CALIFORNIA
6 COUNTY OF SAN BERNARDINO
7 SAN BERNARDINO DISTRICT, CIVIL DIVISION
8
CITY OF UPLAND, A Municipal ) Case No.: CIVDS1812143
9 Corporation, )
) VERIFIED ANSWER TO VALIDATION
10 Plaintiff, ) COMPLAINT
)
11 vs. ) Action filed: May 16, 2018
ALL PERSONS INTERESTED IN THE )
12
MATTER OF THE VALIDITY AND THE ) Department: S-29 (Frangie)
CONFIRMATION OF PROCEEDINGS )
13 )
RELATED TO THE AGREEMENT FOR
)
14 PURCHASE AND SALE AND JOINT ESCROW )
INSTRUCTIONS BETWEEN THE CITY OF )
15 UPLAND AND SAN ANTONIO REGIONAL )
HOSPITAL TO SELL APPROXIMATELY )
16 4.631 ACRES OF REAL PROPERTY )
ADDRESSED AS 1299 SAN BERNARDINO )
17 ROAD (A PORTION OF ASSESSOR’S )
PARCEL NO. 1046-183-01), )
18 )
Defendants. ))
19
20
COMES NOW, Interested Party, MARJORIE M. MIKELS, a resident and
21
business owner in the City of Upland, born at the San Antonio
22
Community Hospital, and hereby answers the City of Upland’s verified
23
validation complaint in order to contest the legality and validity of
24
Upland’s prevarication, and fallacious legal action, which the city
25
filed in order to circumvent (and asking this honorable court to
26
sanction) the violation of the duly-enacted laws governing the City’s
27
28
Mikels’ Answer to Upland’s Complaint for Validation - 1

1 anticipated sale of Upland’s park land to private parties without a
2 vote of the electorate, as follows:
3 1. This answering interested party hereinafter responds to every
4 allegation of the Complaint, and each cause of action thereof, by
5 specifically referring to the paragraphs of the Complaint in which
6 each allegation is contained. Answering defendant denies that
7 Plaintiff has any right, or entitlement to the relief sought in the
8 complaint.
9 2. Paragraph 1:
10 a. Admit City filed a validation action;
11 b. Deny that the city is selling to San Antonio Regional
12 Hospital, (SARH) because the purchase and sale
13 agreement allows the buyer to be the hospital’s
14 “permitted assignee”, and section 13 of the agreement
15 expressly permits the hospital to assign its rights;
16 c. Because of insufficient information and belief and
17 contradictory assertions of facts contained in the
18 presenting documents, deny the city is selling 4.63
19 acres, since the purchase agreement referenced Exhibit
20 “A” for the description of land to be sold, which says
21 4.631 acres, but the form of the grant deed has not
22 been provided to the public, and the accompanying
23 parking easement agreement says 5.5 acre parcel, a
24 separate parcel map has not even been completed yet by
25 the city as would be required to convey, so no one can
26 see the actual amount of the city’s park land the city
27 council intends to convey to private parties;
28

1 d. Deny all net proceeds to be reinvested by the City to
2 implement the City’s anticipated Memorial Park Master
3 Plan, since such plan does not yet exist, has not been
4 prepared, or presented to the public or approved by the
5 City Council and by City’s own documents over $4
6 million additional moneys would be required to complete
7 such plan and the city has no present idea from where
8 that money will come.
9 3. Paragraph 2:
10 a. Admit Upland is a California municipal corporation;
11 b. Deny City is authorized to bring this action for the
12 following reasons: Upland asks the court to sanction
13 and approve its violation of its own General Plan and
14 zoning laws, to circumvent all of the legal Government
15 Code requirements pertaining to abandonment and sale of
16 public park land, to allow conversion of
17 park/recreation/open space to office/professional of
18 private owners for private business development without
19 so much as an Environmental Impact Report or compliance
20 with California environmental laws, to sell off 12% of
21 the valuable historic, irreplaceable 38.5 acres of
22 Memorial Park, (established in the 1930s when the
23 population was likely less than 10,000 people, at a
24 time now when the population has reached over 76,000
25 people), to deprive the lower-economic/minority
26 community in which Memorial Park is situated, of
27 recreational land, presently used as a ball park,
28 substituting therefor office/professional development

1 that has not even yet been disclosed, planned or seen
2 by the interested affected public, deceitfully making
3 it appear that our great hospital needs the land for
4 parking when the assertion is patently false. Upland
5 asks this court to be a party to violations of law,
6 devastation of minority community recreational
7 facilities, circumvention of environmental protections,
8 deceit and omissions of material fact, via a validation
9 action. This court has no power to waive law and the
10 City of Upland may not rely on Code of Civil Procedure
11 §860 to evade compliance with law. Upland has no legal
12 authority to bring this validation action.
13 4. Paragraphs 3, 5, 27. Admit allegations concerning location
14 and venue.
15 5. Paragraphs 4, 7-10, 12-13, 15-16, 19-27, 30-31: Answering
16 interested party has insufficient information on which to
17 admit or deny the material factual allegations in these
18 paragraphs and on that basis denies them.
19 6. Paragraph 6:
20 a. Admit the general location of Upland Memorial
21 Park. No information or belief on which to admit
22 or deny the date of acquisition, and on such basis
23 denies.
24 b. OBJECTION TO FAILURE OF THE CITY TO PROVIDE TO
25 THE PUBLIC, OR TO THIS HONORABLE COURT, THE
26 CONVEYANCES OR DEEDS OR OTHER PERTINENT
27 INFORMATION DIVULGING THE MEANS, METHODS,
28 GRANTORS, DATES, AND POSSIBLE DEED RESTRICTIONS BY

1 WHICH THE CITY ACQUIRED THE SUBJECT PARK PROPERTY,
2 AND THE ACTIONS TAKEN BY THE CITY TO DEDICATE, OR
3 ACCEPT OR RECORD WITH THE COUNTY THE PARK PLANS OR
4 OTHERWISE FORMALIZE THE ACQUISITION AND
5 ESTABLISHMENT OF THE PARK. This omission is fatal
6 to the action herein, because the uses to which
7 park property may be devoted (including its
8 abandonment and sale) depends, to some extent,
9 upon the manner of its acquisition whether
10 dedicated by a donor, or purchased or condemned by
11 the municipality.1
12 7. Paragraph 11: Deny that the park is an “underused public
13 space” since this is a false assertion by the city attempting
14 to find grounds for justification to sell off the baseball
15 field2 to the Hospital’s assignee for office/professional
16 purposes based on the City’s own negligence and incompetence
17 in dealing with its city-wide homeless problem, and its
18 police department’s failure to prevent illegal conduct.
19 8. Paragraph 14: Deny the portion of this allegation saying
20 “SARH is in need of land for parking” as this allegation is
21 1
There is a “well-settled principal of law that land which has been
dedicated as a public park must be used in conformity with the terms of the
22 dedication, and it is without the power of a municipality to divert or
withdraw the land from use for park purposes”. Slavich v. Hamilton (1927)
23 201 Cal. 299, 302. The legislature has enacted three different schemes
concerning the abandonment of park property, and which one is used depends
24 on the manner of acquisition of the property when it became a park. See
California Attorney General Opinion No. 95-107 for a discussion of the three
25 schemes, all of which were avoided by this action which circumvents the
principal question of acquisition, and attempts to claim there is no
26 “abandonment” because the public will still get to use, “free of charge”
parking spaces at the new office-profession business development that is to
27 replace the ball park.
2
City’s plans show intent to eliminate two baseball fields in the park,
28 only one to be replaced using valuable open park space and chopping down
mature oak trees to do so.

1 false and is a ruse or red herring to try to make it appear
2 the hospital needs the baseball park property for parking
3 when in reality:
4 a. Upon approval of the patient tower expansion and the
5 MOB (medical office building) the city approved parking
6 plans to accommodate that growth, and required adequate
7 parking as a condition of approval of both expansions.
8 Duly-submitted parking plans were approved and are in
9 existence without the need for additional parking in
10 the Upland Memorial Park baseball field.
11 b. The park property being sold is not to be used for
12 parking, but for office/professional building
13 construction purposes, and only the same number of
14 parking spaces which exist today beside the baseball
15 field will be available for non-exclusive use by park
16 users as seen by paragraphs 21-24 of the Agreement.
17 9. Paragraphs 17 and 18: Deny. The March 26, 2018, meeting
18 agenda deceptively failed to properly identify the Upland
19 Memorial Park as the property which was being sold to SARH,
20 and there was no public hearing as required by law—the item
21 was merely listed on the agenda as a “business item” (as if
22 selling off 12% of the oldest park in the community was a
23 routine business item requiring no special input from the
24 community and no special opportunity to address the council
25 on that item). Exhibit 1 is not a true and correct copy of
26 the Agreement because it fails to provide the true legal
27 description (and indeed there is no proper legal description
28 yet since the city has not recorded a parcel map showing just

1 what is being sold) and fails to provide a copy of the deed,
2 showing the true assignee. No appraisal has ever been
3 disclosed to the public to justify the price alleged in
4 Paragraph 18, and based thereon answering party denies that
5 the sale and transfer is to SARH (because it is to SARH or
6 its assignee), denies that 4.63 acres are being sold, since
7 the parking easement agreement describes the property as 5.5
8 acres, and denies that the price is “$60,000 above the
9 appraised fair market price”, since no evidence of that fact
10 has been presented.
11 10. Paragraph 28 and 29. Answering Party denies
12 characterization of this agreement as “continued use of the
13 Property for Park purposes” (alleged in order to bypass the
14 legal requirements for selling park property) by saying that
15 the “easement for public parking at no cost” and “use of the
16 sales proceeds for Park improvement purposes” satisfies that
17 definition, when the Government Code (§§ 38440 – 38462)
18 prohibits sale of the public park property without a special
19 election, unless what is being sold is only a minor portion
20 of the park (not 12%) in exchange for an equal or greater
21 area or value of privately owned land contiguous to the park
22 after: 1. notice and a public hearing, 2. determination that
23 the exchange is in the public interest and 3. adoption of a
24 resolution of discontinuance. Answering interested party
25 denies that the city is in conformity with applicable
26 provisions of all laws and enactments et seq., as falsely
27 alleged in paragraph 29, because they took no steps
28 whatsoever to comply.

1 11. Paragraph 32: To the extent paragraph 32 incorporates
2 therein other material factual allegations of the complaint,
3 this answering party answers paragraph 32 by incorporation of
4 its denials and/or admissions as previously indicated above.
5 12. Paragraph 33 and all its subparagraphs are denied and
6 this answering party notes this paragraph asks the court to
7 participate in a fraud on the electors and residents of the
8 City of Upland by falsely asserting that this sale of park
9 land is in conformity with the laws and enactments
10 controlling these proceedings and that the agreement is
11 lawful, valid and not subject to further challenge, and
12 selling the land to the hospital or its assignee for
13 development of an office/professional building will be a
14 continued use by the public of the Property “for park
15 purposes” just so long as the public has an easement to park
16 on the building’s parking lot (at no cost) and there are the
17 same number of parking spaces as exist now, so therefore the
18 city has no need to comply with laws pertaining to sale of
19 park land. By this action they seek a court order saying
20 that everything the city was supposed to have done (if they
21 wanted to sell park land) but has not done, the court
22 approves and applies its seal of approval, forever forbidding
23 anyone from objecting. The entire paragraph 33 is asking the
24 court to collude in fraud on the citizens of Upland.
25
26 FIRST AFFIRMATIVE DEFENSE
27 13. As and for a first affirmative defense, this interested
28 party alleges that the Complaint in its entirely, and each and every

1 cause of action therein, fails to state facts sufficient to
2 constitute a cause of action against answering party.
3 SECOND AFFIRMATIVE DEFENSE
4 14. As and for a separate and second affirmative defense, this
5 answering interested party alleges that Plaintiff has no cause of
6 action for validation because the scheme to sell off this park land
7 without a vote of the electorate was and is fraudulent from its
8 inception, and is defective, void and unenforceable against the
9 public interests of the citizens of Upland and this answering party.
10 THIRD AFFIRMATIVE DEFENSE
11 14. As and for a separate and third affirmative defense, this
12 answering party alleges that Plaintiff is barred from recovery in
13 this matter by the equitable doctrine of unclean hands.
14 FOURTH AFFIRMATIVE DEFENSE
15 15. As and for a separate and fourth affirmative defense, this
16 answering party alleges that the sale of this park land is a part of
17 a larger pattern of fraud and corruption, self-dealing, conflict of
18 interest, concealment of material fact, and trickery, designed by the
19 city attorney and other officials, some elected and some “appointed”,
20 to manage sale for private profit and interests, of the public’s park
21 land, using their official authority and the guise and color of law
22 to circumvent the laws designed to protect and preserve precious
23 valuable open-space, park land, environmental amenities and
24 recreational areas of the city. Those who orchestrated this
25 deceitful scheme and theft on the public, again depriving the
26 citizens of Upland of their statutory and Constitutional right to
27 vote on issues pertaining to their public property, should be
28

1 prosecuted criminally and civilly, not have their scheme sanctioned
2 by this honorable court.
3 FIFTH AFFIRMATIVE DEFENSE
4 16. As and for a separate and fifth affirmative defense, this
5 answering party alleges that the Purchase and Sale Agreement and
6 Escrow Instructions and all accompanying documents approved by the
7 Upland City Council majority on March 26, 2018 at the behest of and
8 upon assurances of the Upland city attorney are defective and
9 unenforceable inasmuch as they violate the United States and
10 California Constitutions’ Equal Protection clauses by treating some
11 similarly situated and benefited properties and persons (i.e., lower-
12 income minority families, neighborhoods and communities) differently
13 than others, by depriving these communities of their precious park
14 land, while planning to build parks far away in the N/W quadrant of
15 the city, on land owned by wealthy favored private persons and
16 developers, at locations not accessible by children on bicycle and
17 foot, but only by vehicle, close to the upscale neighborhoods of the
18 city, all without any rational bases for such disparate treatment,
19 and without prior notice or opportunity to file a protest against or
20 contest such unequal treatment.
21 SIXTH AFFIRMATIVE DEFENSE
22 17. As and for a separate and sixth affirmative defense, this
23 answering Party alleges that the Plaintiff and its officers were
24 negligent and careless and lazy with respect to the matters alleged
25 in the Complaint and that such carelessness and negligence in
26 violating statute, the general plan, zoning and environmental laws
27 proximately causes this Sales Agreement to be defective and that
28 fault on the part of the City attorney in advising and promulgating

1 this scheme (instead of merely complying with the law) causes the
2 City of Upland and its taxpayers to bear unnecessary attorney’s fees
3 and costs, which should be borne by the negligent officials and their
4 appointed city attorney, not by the people of Upland.
5 SEVENTH AFFIRMATIVE DEFENSE
6 18. As and for a separate and seventh affirmative defense, this
7 answering Party alleges that the improper conduct of Plaintiff as
8 alleged herein constitutes a breach of conditions which are precedent
9 to any right or theory of recovery in this action which might
10 otherwise be applicable.
11 WHEREFORE, this answering Party prays:
12 1. That Plaintiff takes nothing by its complaint or any of the
13 causes of action therein alleged;
14 2. That this answering party be awarded judgment against the
15 Plaintiff;
16 3. That plaintiff’s attorneys be ordered to relinquish any fees
17 incurred prosecuting this validation action which is
18 tantamount to promulgating a fraud on the people of Upland,
19 who should not be burdened with the fees expended to deprive
20 them of their park land in violation of statute, all without
21 a vote, and all for the private gain and profit of a few
22 well-situated individuals.
23 4. For costs of suit;
24 5. For such other relief as the Court deems just and proper.
25 Dated this 4th day of July, 2018

By:
26
Marjorie M. Mikels,
27 Attorney in Pro Per
28

1
3 VERIFICATION
4
STATE OF CALIFORNIA
5 COUNTY OF SAN BERNARDINO
6
I have read the foregoing Answer to Validation Complaint and
7
know its contents.
8
I am a party to this action. The matters stated in the
9 foregoing document are true of my own knowledge except as to those
10 matters which are stated on information and belief, ad as to those
matters I believe them to be true.
11
I am an attorney, licensed to practice in all of the courts of
12
the State of California, and certified to practice in the U.S.
13 Supreme Court, the U.S. Ninth Circuit Court of Appeals, and the U.S.
14 Central District of California and in said capacity, in this matter
15
I am acting in pro per.
16
Executed July 4, 2018 at Upland, California.
17
18 I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE

19 OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
20
______________________________
21
Marjorie M. Mikels,
22 Interested Party
23
24
25
26
27
28

Upland Validation-Answer To Complaint, 7-3-18 (1870)

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Upland Validation-Answer To Complaint, 7-3-18 (1870)

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Marjorie M.

Mikels SBN: 101102

5 SUPERIOR COURT OF CALIFORNIA

6 COUNTY OF SAN BERNARDINO

7 SAN BERNARDINO DISTRICT, CIVIL DIVISION

Mikels’ Answer to Upland’s Complaint for Validation - 1

2 vote of the electorate, as follows:

3 1. This answering interested party hereinafter responds to every

4 allegation of the Complaint, and each cause of action thereof, by

5 specifically referring to the paragraphs of the Complaint in which

6 each allegation is contained. Answering defendant denies that

7 Plaintiff has any right, or entitlement to the relief sought in the

10 a. Admit City filed a validation action;

11 b. Deny that the city is selling to San Antonio Regional

12 Hospital, (SARH) because the purchase and sale

13 agreement allows the buyer to be the hospital’s

14 “permitted assignee”, and section 13 of the agreement

15 expressly permits the hospital to assign its rights;

16 c. Because of insufficient information and belief and

17 contradictory assertions of facts contained in the

18 presenting documents, deny the city is selling 4.63

19 acres, since the purchase agreement referenced Exhibit

20 “A” for the description of land to be sold, which says

22 been provided to the public, and the accompanying

23 parking easement agreement says 5.5 acre parcel, a

24 separate parcel map has not even been completed yet by

25 the city as would be required to convey, so no one can

27 council intends to convey to private parties;

Mikels’ Answer to Upland’s Complaint for Validation - 2

2 implement the City’s anticipated Memorial Park Master

4 prepared, or presented to the public or approved by the

5 City Council and by City’s own documents over $4

6 million additional moneys would be required to complete

8 that money will come.

10 a. Admit Upland is a California municipal corporation;

11 b. Deny City is authorized to bring this action for the

12 following reasons: Upland asks the court to sanction

13 and approve its violation of its own General Plan and

14 zoning laws, to circumvent all of the legal Government

15 Code requirements pertaining to abandonment and sale of

16 public park land, to allow conversion of

17 park/recreation/open space to office/professional of

18 private owners for private business development without

19 so much as an Environmental Impact Report or compliance

20 with California environmental laws, to sell off 12% of

21 the valuable historic, irreplaceable 38.5 acres of

22 Memorial Park, (established in the 1930s when the

23 population was likely less than 10,000 people, at a

24 time now when the population has reached over 76,000

25 people), to deprive the lower-economic/minority

26 community in which Memorial Park is situated, of

27 recreational land, presently used as a ball park,

28 substituting therefor office/professional development

Mikels’ Answer to Upland’s Complaint for Validation - 3

2 by the interested affected public, deceitfully making

3 it appear that our great hospital needs the land for

4 parking when the assertion is patently false. Upland

5 asks this court to be a party to violations of law,

6 devastation of minority community recreational

7 facilities, circumvention of environmental protections,

8 deceit and omissions of material fact, via a validation

9 action. This court has no power to waive law and the

10 City of Upland may not rely on Code of Civil Procedure