Note: This document is offered here solely as a convenience, with permission, and without editorial comment as to its merits or validity. It holds no legal status as presented here. The original document had attached to it 28 exhibits, none of which are presented here. If further inquiries are needed, contact with Mr. Burton Wolfe at the address below is recommended.


BURTON H. WOLFE
1095 Market Streets #814
San Francisco, CA 94103-1631
Telephone: (415) 487-1787

Plaintiff in propria persona

FILED
San Francisco County Superior Court
Jun – 6 2000

ALAN CARLSON Clerk
BY: ____S. DOUGLAS
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Unlimited Civil Jurisdiction

BURTON H. WOLFE,
on behalf of himself
and the general public

Plaintiff,

v.

JOHN M. TRUE, III;
CHRISTOPHER HO;
EMPLOYMENT LAW CENTER;
LEGAL AID SOCIETY OF SAN FRANCISCO: and
DOES 1 to 50, inclusive,

Defendants.

No. 308907

DECLARATION OP PLAINTIFF
BURTON H. WOLFE IN SUPPORT
OF HIS MOTION FOR A NEW TRIAL
AND TO SET ASIDE AND VACATE
JUDGMENT AND RENDER ANOTHER

______________________________

Date: June 28, 2000 (tentative)
Time: 9:30 a.m.
Dept.: 301 (Law & Motion)
Judge: Hon. David A. Garcia
Trial Date: November 27, 2000

----------------------------------------------------------------------

I, BURTON H. WOLFE, declare as follows:

l. I am the Plaintiff in propria persona in this action.

I have personal knowledge of all facts set forth below, and I can and will testify to them competently under oath if called as a witness to do so.

2. On October 14, 1982, under coercion from management of Sedan Operators Cooperatives Inc./dba DeSoto Cab Company (hereafter "DeSoto"), I signed a "Taxicab Lease Agreement" as a condition of being able to work as a driver of DeSoto's taxicabs. I attach to this declaration, as Exhibit 1, a true copy of the "Taxicab Lease Agreement" I signed. 

3. Though it has different names in different parts of the U.S., the "Taxicab Lease Agreement" is standard throughout the taxicab industry in its fundamental aspects. The model for it was written by Arthur B. Herold, senior partner of the Washington, D.C. law firm of Webster, Chamberlain & Bean. He is also chief counsel of the International Taxicab and Livery Association ("ITLA"), which represents almost all of the major taxicab and limousine companies in the U.S. The ITLA and Herold send literature all over the U.S. to taxicab and limousine companies and operators, advising them of how to deprive their employees of employee and union status as well as all statutory employee benefits, and how to beat the city, state and federal government out of city payroll taxes' state and federal income taxes and employer contributions to the unemployment, disability, and Social Security funds.

4. Here in San Francisco, the "Lease Agreement" was rewritten somewhat from Herold's model by labor lawyer James J. Meyers, Jr. At a hearing before the National Labor Relations Board ("NLRB"), Meyers testified that he changed Herold's term "independent contractor" to "self-employed person" as the purported description of the driver signed to the "Lease Agreement." Asked why, Meyers explained that "independent contractor" has legal definitions and tests attached to it (e.g. in California Labor Code Section 2750.5) and he wanted to avoid those legal definitions and tests.

5. I attach to this declaration, as Exhibit 2, a true copy of an article I wrote, published in April 1998, explaining how the "Lease Agreement" has destroyed the taxicab industry and caused great damage to the public.

6. By 1985 the conditions described in my article had become so wretched that I, like many other taxicab drivers, quit in disgust. According to DeSoto managements however, I did not quit my job; rather, I "canceled my lease agreement."

7. Upon experiencing difficulty in obtaining other work, I thought about applying for unemployment benefits. Unlike around ninety percent of taxicab drivers signed to the "Lease Agreement," I had continued to report income to the Internal Revenue Service ("IRS"), so that I was still in the tax system. According to the "Taxicab Lease Agreement," however, I was not eligible for unemployment or any other statutory employee benefits, being a "lessee" of the "leasing company's" vehicles and therefore a "self-employed person" (see attached Exhibit 1).

8. Though I had no concrete reason to consider the "Lease Agreement" an illegal fraud, since it had been approved by seemingly every government agency (city, state, and federal), nevertheless I was suspicious of it and wondered if I could challenge it and obtain unemployment benefits despite the language in it and my signature on it. So, I telephoned the California Labor Commissioner's office and was placed in touch with a Deputy Labor Commissioner, Al Weaver.

9. After I explained the purpose of my call, Mr. Weaver asked me a question: Does taxicab company management retain the right to fire a driver at will? I replied: not only does taxicab company management retain the right but also the right is exerted frequently, though management refers to it as "canceling the lease agreement" rather than firing or terminating a driver. Mr. Weaver said the language is beside the point, it is what happens, and retaining the right and exercising the right to fire at will establishes an employer-employee relationship. He told me not to take his word for it, but rather to go to a public law library and research the matter.

10. Having researched the matter and found that drivers such as myself are defined as employees in statutory and decisional law, I applied for unemployment compensation benefits at an office of the Employment Development Department ("EDD"). The intake person told me it had been established during the past five years, in a number of decisions of the Unemployment Insurance Appeals Board ("UIAB"), that taxicab drivers signed to the "Lease Agreement" are "independent contractors" and therefore are not eligible for benefits. I told him I felt that the drivers and/or their lawyers probably had not presented the case properly, and I wanted to appeal. The intake person told me it was useless, but handed me instructions for appeal to the UIAB.

11. I tried to obtain a lawyer to represent me on appeals but I was told by lawyer after lawyer that the matter had been settled and I would never get an administrative law judge ("ALJ") to find that I was an employee. So, I decided to file and argue my own appeal before the UIAB.

l2. On December 9, 1985, I appeared before ALJ Ronald L. Kammann (who has since become the Presiding Judge of the UIAB). I was opposed vigorously by a representative of DeSoto and a tax auditor of the EDD who told Judge Kammann that the matter already had been settled. The tax auditor presented decisions from ALJs of the UIAB holding that taxicab drivers signed to the "Lease Agreement" are "independent contractors." I presented documents establishing that they are employees.

First Break of the ’Lease Agreement'

13. The next morning – December 10, 1985 – I received in the mail a written decision from Judge Kammann finding that I was an employee of DeSoto which was the moving party in the separation, and I was eligible for unemployment benefits. I attach to this declaration, as Exhibit 3, a true copy of Judge Kammann's decision. To the best of my knowledge this was the first break of the 'Lease Agreement' anywhere in the U.S.

14. Seeing that I was deemed to be an employee and was awarded benefits, a tax auditor of the EDD, Miguel Estrada, telephoned me to express his amazement at my persuasiveness and to advise me: "We are going to have to audit all the taxicab companies and declare all the drivers employees. We can't discriminate. If you are an employees all the drivers are employees, because the 'Lease Agreement' is standardized." I offered to help him make the case and asked how long it would be before the tax auditors of the EDD began the audit. He said the audit would begin in two weeks. More than fourteen years later, I am still waiting for that audit to begin.

15. I know what happened because I saw a memorandum from the EDD headquarters in Sacramento. Estrada was ordered to cancel the audit and proceed on a case-by-case basis.

My Obtaining Benefits for Other Drivers

16. Somehow word spread through the local taxicab industry that Burton Wolfe had obtained unemployment compensation benefits despite the language in the "Lease Agreement" stating that as a "self-employed person" he was not eligible. Other drivers came to me for help and, under authority allowing a lay person to act as legal agent in administrative agency proceedings, I represented these drivers before the UIAB and obtained unemployment compensation benefits and disability benefits for them without opposition from the taxicab companies or their insurers.

17. Until Michael Sienkiewicz, a Luxor Cab Company driver, came to me for help in obtaining workers' compensation benefits, all of my work was in the unemployment and disability field. Then, around the middle or latter part of 1986 (I have lost track of exact time), the Luxor cab Michael was driving was rear-ended in the Broadway Tunnel, and he suffered substantial injuries and had to be taken by ambulance to San Francisco General Hospital.

18. Until the "Lease Agreement" went into effect, whenever a taxicab driver was injured on the job and went or was taken to San Francisco General Hospital, the most common treatment place for cab drivers injured at work, the taxicab company and its insurer footed the hospital bill. Once the "Lease Agreement" was in effect, taxicab company management began sending letters to the hospital stating that the injured is a "self-employed person" or "independent contractor" merely leasing the company's vehicles under a contract relieving the company of workers' compensation benefits. Bill Lazar, manager of Luxor at the time sent that kind of letter to San Francisco General Hospital when Luxor got the substantial bill for Michael, and the hospital billing department went after Michael for the money.

19. Unlike other cab drivers, Michael was not broke all the time and he owned property in Pacifica; and, with a mortgage and wife and child to supports the hospital bill was a burden and a worriment. So, he came to me for help, and I represented him as his legal agent before the Workers' Compensation Appeals Board ("WCAB"). As before the UIAB, I did so successfully, easily overcoming opposition from Luxor's labor lawyer and attorneys from Luxor's insurer, Golden Eagle Insurance Company. As usual I obtained a decision from the ALJ that a cab driver working under the circumstances in evidence in the San Francisco taxicab industry is an employee for purposes of workers' compensation benefits. Luxor and Golden Eagle paid Nichael benefits.

20. Thus, as early as 1986, I had established that cab drivers signed to the "Lease Agreement" are employees for purposes of unemployment, disability, and workers' compensation benefits, regardless of their having "agreed" in the "Lease Agreement" that they are not eligible for such benefits and will not ask for them.

21. With that, Michael placed a notice on Luxor's bulletin board advising drivers that if they needed any kind of statutory employee benefits Burton Wolfe would represent them before the appropriate administrative agency and obtain the benefit for them. Still unable to get a lawyer for any of these drivers, I handled the cases myself – until finally, after I had prevailed in case after case without opposition any more, lawyers began calling me on the phone, offering to represent the drivers.

How John True, Chris Ho, and the Employment Law Center
Started Representing Taxicab Drivers in 1987
And Why it Never Would Have Happened But for Me

22. As I have said, in the early years of the "Lease Agreement," 1979 1985, lawyers who had attempted to obtain statutory employee benefits for cab drivers signed to the "Lease Agreement" had struck out. They were simply too ignorant of how the taxicab industry works to do an effective job. Consequently, until I reversed the situations no lawyer would take on cab driver cases. I and cab drivers solicited dozens of lawyers without success until I set the table for a different ruling on the status of the drivers.

23. Among those who had been approached unsuccessfully were John N. True, III, at that time chief counsel for the Employment Law Center ("ELC"), and an attorney on the ELC staff, Christopher ("Chris") Ho. Once they learned of my success, however, they agreed to take on representation of the cab drivers. I believe they started doing so late in 1987, but it might not have been until 1988.

24. So it was with other lawyers. Half a dozen of them in the unemployment-disability-workers' compensation administrative agency field began calling me and offering to take over the work I had been doing. "Hey' you don't have to do this any more, Burton," went the typical conversation. "I see you're obtaining benefits for the drivers without any opposition, and you're not getting paid for the work. Send me your clients. Yes, I’ll get paid, but not by the driver. The cab companies will have to pay my legal fees. You should love that."

The NLRB Proceedings

25. While the work before the UIAB and the WCAB was proceedings I and my colleagues were filing complaint after complaint with the California Labor Commissioner and the NLRB, demanding that they take steps to have taxicab drivers properly classified as employees. These efforts are discussed in the declaration of Michael Sienkiewicz who, by the way, is no longer a cab driver. He has climbed through the ranks of the computer business field to become international vice-president for marketing at one of the largest computer hardware companies in the world. A true copy of his declaration is attached to this declaration as Exhibit 4. It was meant to be part of the opposition to efforts of the taxicab companies, and government agencies in collusion with the taxicab companies, to have me declared a "vexatious litigant" because of the work I was doing to have the "Lease Agreement" invalidated. But it pertains to and discusses the efforts before the Labor Commissioner and NLRB.

26. Unable to induce the Labor Commissioner or the NLRB to hear cab drivers' cases because of their rulings that the drivers are not employees and only employees are allowed to file complaints, Michael and his colleagues took up a petition for union election at Luxor and City Cab companies. Because they were unable to obtain lawyers to help them, I represented the several hundred cab drivers petitioning at the ensuing NLRB hearings.

27. NLRB hearings typically are conducted by a hearing officer who is an attorney at law. The Luxor and City Cab hearings were conducted by Eugene Tom, much like a court trial.

28. At first Tom, who has since gone on to a successful private law practice, was rather hostile. After listening to my examination and cross-examination of witnesses and presentation of documents and argument, however, he turned around 180 degrees by the end of the second day. He met me in the hallway and spoke words close to these: "You're doing a great job, and these cab drivers can thank God they have you to represent them instead of lawyers." I asked: "Why do you say that?" He replied: "Because at the proceedings several years ago on the question of employee versus independent contractor status, the drivers were represented by lawyers from the Teamsters Union, and they completely mucked up the proceedings, which is why they got a ruling from Robert Miller [NLRB District 20 director] that the drivers are independent contractors and have no collective bargaining rights. You're doing the job that should have been done in the first place, but now it’s too late. You'll never get Miller to reverse himself. He just won't do that." I was stunned to hear all this – I had no prior knowledge of any of it – and I said to Tom: "You seem to be telling me that all this work I’m doing, and it's free by the way because I'm not charging these cab drivers anything, is for naught. No matter how completely I prove that these drivers are employees who have the right to petition for union election, Miller is going to rule they are independent contractors who have no such right, even though the term to be examined, by the way, is not 'independent contractor' but rather 'self-employed person,' because that is the classification in the 'Lease Agreement.' So, all I can do is establish a record for appeal. Is that right? Is that what you're telling me?" Tom replied: "That's it."

29. Actually, it is not an appeal which is taken from a NLRB denial of a petition for union election. One asks the U.S. Circuit Court of Appeals for review of the NLRB decision. I did so on behalf of the cab drivers. The Court of Appeals issued a two-sentence denial of review on the ground that a decision of the NLRB on a petition for union election is never a final decision, and therefore the Court of Appeals has no jurisdiction to review such a decision. In other words, you can go back to the NLRB with another petition, and another and another endlessly, and you can never obtain court review because the decision is "never final." You are on an unending merry-go-round. The flabbergasted cab drivers asked me: "Burton, how can this be? I've never heard of being unable to get a court review of an administrative agency decision." I replied as I would today: "It's politics. They're protecting the cab companies. God knows why. This is one of the most damaging industries in the country, and it's damaging the courts and the very judges and politicians protecting the cab companies, along with everybody else. Don't ask me why they're doing it. I don't know. It's crazy."

30. While we were striking out before NLRB District 20 director Robert Miller and the Ninth U.S. Circuit Court of Appeals, across the country in Florida there were different rulings. The NLRB district director in Orlando ruled that cab drivers signed to the "Lease Agreement" are employees who can unionize. They have unionized, they have brought damage suits against the cab companies, and the damages they have won have been upheld by the Eleventh U.S. Circuit Court of Appeals.

31. I attach to this declaration, as Exhibit 5, a true copy of one of the decisions of the Eleventh U.S. Circuit Court of Appeals in favor of the unionized cab drivers in Orlando. It is absolutely essential that the judge or anyone else reading this declaration understands that a cab driver in Orlando is no different in any way from a cab driver in San Francisco. The drivers in Orlando were signed to the same basic "Lease Agreement" as are the drivers in San Francisco. As taxicab company officials testified in the petition for union election hearings I conducted before the NLRB, wherein I asked them if there is any difference between a cab driver classified as an employee and a cab driver classified as an "independent contractor" or "self-employed person" or "lessees" or if there is any difference in the way they work: "No. A cab driver is a cab driver."

The Split-Fleet Issue that I Set Before Lawyers,
Including True and Ho at the ELC

32. The facts described above in paragraph 30 and 31 gave rise to a split-fleet issue. I had read decisional law, especially from the U.S. Supreme Courts that you cannot take a group of workers doing the same job and split them into two categories, unless a rational government interest in allowing the split classification can be demonstrated. And of course there is no government interests rational or otherwise, in having cab drivers split into two classifications. The result has been that the vast majority are classified as "independent contractors, or "self-employed persons," that has taken them out of the tax system, and the city, state, and federal governments have lost billions of dollars in uncollected taxes and what were once contributions to the various statutory employee benefit funds, state and federal – not to mention the losses to public clinics and hospitals, such as San Francisco General in uncollected medical bills that over the years have bulged into the millions of dollars.

33. Over the past fifteen years I have solicited help from several hundred lawyers and legal organizations, and one of the key issues I have waved at them is the split-fleet issue, which makes what is happening in the taxicab industry unconstitutional, and in violation of Fifth and Fourteenth Amendment rights to due process and equal protection of law. At the time I first presented that issue to John True and Chris Ho at the ELC the issue was very much alive right here in the San Francisco taxicab industry. It was either 1987 or 1988 that I first presented this issue to True, Ho and the ELC. At that time there were still several dozen drivers working on union/employee status at the major taxicab companies of San Francisco: Yellow, DeSoto, and Luxor. And at Speck Cab Company/dba Veterans Taxicab Company, the driver himself or herself was given the choice of whether to be an employee or "lease/self-employment" status, without any operational difference whatsoever between the two types of classified drivers. (I believer, but I am not certain, that Speck/Veterans still operates on this choice basis.)

First Efforts at Class Action

34. Unable to obtain lawyers, and by this time with several hundred taxicab drivers begging me to undertake legal action on their behalf, I decided to try to attempt to prosecute a class action on behalf of the drivers. On December 1, 1986, I filed a class action complaint in this Court entitled (short title) Wolfe v. Yellow Cab Co. et al. (No. 867662). Within the next few months there were hearings before Judge Roy Wonder of this Court. One of the lawyers opposing me, Bob Tollen, senior partner of Bronson, Bronson & McKinnon, asked Judge Wonder to declare me to be a "vexatious litigant" who was "practicing law without a license." Judge Wonder laughed him out of court. So, Tollen dug up another tactic to get rid of my suit: he found that although there was nothing in state law which precluded a pro se litigant from acting as both typical plaintiff and class counsel in pursuit of a class action, there had been half a dozen federal court decisions in which district judges had voiced disapproval. As I recall, these were not higher court decisions; they were from district judges and were published in Federal Supplement. Tollen used those decisions along with decisional law holding that when there is no state court ruling on a matter, the state court looks to the federal court for precedent. Judge Wonder seeing the precedent against a lay person acting as I proposed, and no decisional law in support, he granted summary judgment for Speck/Veterans Cab Company.

35. There were half a dozen other cab company defendants, but the ethics of the matter told me I should dismiss the action without putting the other defendants and the Court to the trouble of further summary proceedings, since the decision on whether or not I could pursue a class action would be the same. Consequently, on July 3, 1987, I dismissed the class action myself. Five years later, when Judge Stuart R. Pollak of this Court used that dismissal, inter alia, to find me to be a "vexatious litigant," I learned a lesson in why it does not pay to be ethical in the American judicial apparatus. Had I appealed and carried through on the rest of the defendants, there would have been a record showing no "final adverse determination" against me, since in state law that has to be on the merits and not on a technical matter of law. By dismissing the case, I left it open for Judge Pollak to rule that it was a "final adverse determination" against me as well as an example of how I behaved myself "vexatiously" by suing people and then dismissing an action. So it was that because I had behaved myself in an ethical manners I was construed to be vexatious." I was punished, called a "vexatious litigant," for having been a conscientious litigant. It was to become one in a string of travesties that are enough to leave one deeply embittered against lawyers, judges, and the judicial apparatus.

36. In reading the decisional law cited by Tollen, I noted first of all that the cases with one exception involved prisoners: a "jailhouse lawyer," i.e. a prisoner acting or trying to act on behalf of other prisoners, was attempting a class action. The district judges did not want that to happen. And they expressed concerns about allowing any lay person to pursue any kind of class action for two reasons: that might jeopardize by res judicata the rights of future persons, and it might "open the floodgates" to class actions pursued by lay persons. But, one of the opinions added in a footnote such considerations did not absolutely close the doors and there might be some case in the future wherein some lay person might come along who is skilled enough in law so as to represent a class and who might be allowed to be both typical plaintiff and class counsel when a lawyer could not be retained and the lay person could only help and not harm the class, especially if the class is being damaged and it is better to have somebody trying to do something about it than nobody and nothing. I felt that footnote pertained to me and the taxicab driver situation; and so on that basis I filed a class action August 10, 1987 in the U.S. District Court for the Northern District of California: Wolfe v. Yellow Cab Cooperative, Inc., et al. (No. C-87-4152-RHS).

37. Like attorney/NLRB hearing officer Eugene Tom, District Judge Robert H. Schnacke was hostile at first, but upon hearing what goes on in the taxicab industry, he found that I could state a claim. But he refused to allow me to pursue any claim as a class action, and on that basis gave me thirty days to amend to state my own grievances adding that the dismissal "doesn't operate as an adjudication on the merits." His adding that ruling (taken from the transcript of the proceedings) relieved me of any worry about this being another possible black mark on me as a "vexatious litigant." For, as he had in this Court before Judge Wonder, attorney Bob Tollen had again requested a finding that I was a "vexatious litigant"; and this time he was joined by the other attorneys, including the taxicab companies' major labor lawyer, Jim Meyers. Judge Schnacke denied the motion.

38. Judge Schnacke refused to let me talk any further, so all I could do was wait till the 30 days elapsed to tell him why I would not take up his offer to have me try my case as an individual action. At the proceeding of November 13, 1987, Judge Schnacke said he felt there was "some merit in what you [Wolfe] say" (from the transcript of the proceeding), and so he did not understand why I had not filed an amended complaints but if the problem was time "I can give you another two weeks to file your claim" (from the transcript). I then explained what I wanted to tell him in the first place: "I did not come into this Court to file a complaint on behalf of myself, which is what you ordered me to do. I have a complaint over in superior court for that purpose... I came in here to try to get a class action established" (from the transcript). Further from the transcript:

The Court: As I told you, you can't pursue a class action for other people. You can only represent yourself.

Mr. Wolfe: Well, that is why I asked you to appoint counsel so that this could be done. It is impossible for us to get a lawyer, and I can tell you all the reasons why that is, because I know them by now. We have been trying for two years.

The Court: Wells then I guess each of you will have to pursue his claim independently. And if you are not interested in doing that, and you tell me you are not, then I will dismiss the case for your failure to comply with the prior orders [the prior order to amend to state an individual claim].

Here again, I was acting in the way I construed to be ethical. I was already suing taxicab companies in this Court upon my own individual grievance and for my own redress of damages. Had I pursued the same individual claim in the District Courts I would have been merely duplicating actions. That, to me would have been unethical. That is why I effected what was for all practical purposes a voluntary dismissal. But this I say now: had I been possessed of an augur (or crystal ball) that warned me if I allowed the case to be dismissed, five years or six years later Justice Gary E. Strankman would use the case as one of five final adverse determinations which, according to him, made me a "vexatious litigant" rightfully and lawfully blacklisted from the state courts, THERE IS NO WAY IN THIS WORLD I WOULD HAVE ALLOWED THAT CASE TO BE DISMISSED. I had a federal judge eating out of the palm of my hand, so to speak. He was ready to push my case on to trial. But I was stupid and naive enough to believe that if I acted in an ethical and conscientious manner, that would be honored in the state courts. I want every person who may read this declaration, judge or otherwise, to know that the judicial apparatus, especially in its mischievous use of the "Vexatious Litigant Statute" (California Code of Civil Procedure Sections 391 et seq.), has caused me to have an entirely different perspective than what I had before I entered the courts. Before I believed that one should be absolutely honest and ethical, and not resort to stratagems for advantage. Judges, and especially Judge Stuart Pollak of this Court and Justice Strankman of the California Court of Appeals have since taught me the opposite lesson: grab every advantage you can, because that is what lawyers do, and if you do the opposite not only will you get no credit for it, but you will be punished for it. Once again, as I was before, I was punished five-six years later for an ethical act in the courts: this time in the federal court. Once again, for being a conscientious litigant, I was declared to be a vexatious litigant." Perhaps I at least deserve some credit for having survived such travesties, still causing me to boil inside myself, without exploding in wrath during any court proceeding, and without directing some very nasty epithets at judges and lawyers who overwhelmingly deserve them in regard to what has been done to me by certain lawyers and judges.

John True's Initial Rejection of Class Action

39. By the spring of 1988, John True and the ELC were taking enough cab driver cases, on a case-by-case basis, to lead me to think they might at last consider a class action so as to put an end to the "lease" racket altogether and also end the massively wasteful case-by-case proceedings all on the same questions: Is the subject cab driver an employee or not? Is the "Lease Agreement" an illegal fraud or not? So, I laid before True the idea of using any avenue in law available to prosecute the taxicab company operators, including the split-fleet issue. A true copy of his reply is attached to this declaration as Exhibit 6. His signature is absent because it was not on the original of the Memorandum, which I still have in my files for inspection if the Court or True's lawyers want to see it.

40. Though I was still on uncertain grounds about use of the Unfair Business Practices Act and the RICO Act, I mentioned them to True as possible means for a private lawyer representing a private party to use for prosecution of law violators. True rejected the idea. He said it could not be done. "Only the district attorneys the attorney general or the U.S. Attorney can prosecute for law violations" was his response.

An Admission from the IRS of Its Knowledge
That 90% of Taxicab Drivers
Are Out of the Tax System Because of the 'Lease’ Racket

41. My major efforts were legal-judicial because of the refusal of the executive/administrative and legislative branches of government to take any action on the "lease" racket. But I never abandoned my efforts on other levels. I have hundreds of pages of paper in my files documenting the efforts I made to induce San Francisco city and county agencies, various state government agencies and officials including legislators, and various federal government agencies and officials including U.S. senators and members of Congress, to take action to abort the taxicab companies' "lease" racket. It is true that I wound up trying to sue them by the dozens, resulting in the label "vexatious litigant'" but it was not before I used lengthy letters, phone calls, documents, testimony from cab drivers, and every means I could think of, to induce them to take action. At one point I even pulled an April Fool's Day prank in City Hall by plastering the walls, statutes, and the like with a news release claiming that as of the following month all workers in the city/county government would be removed from employee status and compelled to sign "lease agreements" as a condition of continued employment by the city/county. A clerk would lease-a desk, a court reporter would lease the steno machinery a laborer would rent a hand trucks etc. etc. Everybody would lease something, everybody therefore would be a "self-employed person," and there would be no more government union, no civil service status, no statutory employee benefits, no health and welfare plan, and no pension. I deliberately plastered the news releases on places where it is illegal in an effort to have myself arrested so that I could make newspaper and tv coverage. The Mayor and Board of Supervisors would not bite. Since the start of my campaign to have taxicab drivers classified properly and legally, their approach has been to ignore me and hope that the media and the vast majority of the public will ignore me. Have me arrested and provide publicity? Perish the thought.

42. In the early part of 1989 I received a long-distance telephone call from IRS headquarters in Washington, D.C., which I had been bombarding with letters, testimonials, and documentation of the massive tax evasion in the taxicab industry. The caller was Theodore (Ted) Strunk, who at that time, as I recall, was head of the Program Analysis Division at IRS headquarters. He told me there were two reasons for his calling me. The firsts he explained, was to "apologize" (his word) to me for the lack of help I was getting from the IRS. He spoke approximately these words: "Everything you say is true. I was in the field myself, so I know. I commend you for what you are doings and I'm sorry we've left you out there on your own with no help from us." I asked him why that is. He said it was because the IRS's budget had been cut. I told him that was incredible. There had just been an announcement from the IRS Commissioners reported on the front page of the Wall Street Journal, that the IRS was about to begin a crackdown on the "independent contractor rackets" under which employees are falsely and fraudulently classified as "independent contractors" or some similar term. How could the IRS do that, I wanted to know, if its budget is cut? And why would there be a budget cut of the IRS, of all agencies, when it is well known that any competent IRS agent brings in a hundred times his or her salary in revenue from uncollected taxes? If what Strunk was telling me was true, then the announcement of the IRS Commissioner had been hogwash. Strunk said he could not comment on that, and I would have to draw my own conclusion. Then he turned to the second reason for his phone call. He wanted to know how many taxicab drivers I had been talking to, whether or not the subject of their payment or non-payment of taxes had come up, and if so what my estimate was of the number not paying taxes at all. I replied that I had talked with several hundred taxicab drivers, the subject of taxes came up almost every time because so many are afraid of being involved in legal proceedings since they are out of the tax system and that is why they wanted me to do a class action instead of a multiple-plaintiff actions and the number not paying taxes at all I would put at 75 percent, with the rest grossly underreporting their earnings. Here is Strunk's reply, emblazoned in my memory, so that I can repeat it almost verbatim: Your estimate is too conservative. We know that the figure is closer to ninety percent." I asked him: "What do you mean, you know the figure is closer to ninety percent?" He replied: "Oh, we know what’s going on. We've taken studies." I said in disgust: "And yet you won't take action." He said: "Not now. Right now we've got bigger fish to fry. We'll get to it someday." But, as the Creedence Clearwater song goes, "someday never comes."

43. It is difficult to describe how enormously frustrating it has been to deal with the IRS on this subject. I have laid document after document on IRS agents and top administrators, all the way up to the present Commissioners Charles Rossotti, establishing that close to 90 percent of all cab drivers are entirely out of the tax system, not reporting their income to the state and federal governments, and the rest are grossly underreporting. At one point I became so frustrated that, at risk of possibly harming some drivers I know, I submitted to the IRS in San Francisco a list of 8,000 past and present taxicab drivers – with their cab company employer, their taxicab permit and badge number, their address and phone number, in some cases their Social Security numbers and the approximate amount of money net – not gross, but net – per year that they earn. (I know that figure because of my massive experience in the industry at all levels.) The local IRS office would take no action; neither would the main office. The reason why that is so frustrating is that, as every IRS agent knows, it is the IRS which could most easily and quickly break the lease racket: almost overnight, in fact. All the IRS has to do is obtain lists of taxicab drivers – readily obtainable not only from taxicab companies but also from taxicab regulatory authorities (here in San Francisco it is the Taxicab Detail of the Police Department) and local tax agencies (such as the San Francisco Tax Collector's office which has a complete list of cab drivers by company, badge number, address, etc.) The lists can be run through the IRS computer system in a matter of hours. Taxicab drivers whose names do not appear obviously are those not reporting income. The list is sent to various IRS local offices for mailing letters to the tax evaders to come in for interviews or even to pay up. That would break the lease racket. The only reason the "lease" racket survives is because the majority of taxicab drivers will not fight it so long as they are able to remain out of the tax system. Several hundred of them have told me they "want to come clean," and would welcome a proclamation from any legislative or administrative agency that they are employees. But as for now, their typical comment is: "If I can't get any benefits for my tax dollars why should I pay taxes?" So, they do not pay taxes, and if they want an accident plan or health insurance, they buy their own. But let the government demand that they pay taxes, and there would be a revolt against the "lease" racket which has taxicab drivers in a modern form of peonage and in a no man/no woman's land: called "self-employed persons'" but devoid of the rights of true self-employed persons, actually employees but denied all rights and benefits accorded to employees.

Why I Sued Government Agencies

44. Lawyers with no defense to issues I have raised in court keep ranting and raving about the number of litigations I pursued in regard to the taxicab industry. A great many of those litigations were against government agencies, not just taxicab companies and their operators and officers.

45. When I could not induce the IRS or the California Franchise Tax Board to collect taxes of their own volition, I sued both agencies and a number of their officers in an effort to get a court order compelling them to collect taxes. When the EDD broke its promise to audit the companies and declare drivers employees and force the companies to withhold income tax at the source and contribute to the Unemployment Insurance Fund, I sued the EDD and a number of its officials. I tried suing the Mayor of San Francisco and the San Francisco Board of Supervisors for its negligence and complicity in the "lease" racket. I tried to sue the California Labor Commissioner and the National Labor Relations Board for its complicity in the "lease" racket, its refusal to enforce labor laws, its discriminatory policies toward taxicab drivers, and overall its utter corruption in taxicab industry policies.

46. I even sued the Attorney General of California for failure to enforce laws against the taxicab companies, such as the tax laws. Under the California Constitution (Article 13, Section 1, if I remember correctly – I do not have it in front of me as I write this) the Attorney General is mandated to enforce the laws of the state. In regard to the taxicab companies, the Attorney General has never done it even though Attorney General knows full well that the bandits who run the taxicab companies have been violating scores of laws for the past twenty years.

The Refusal of All Judges to Rule
On the Issues Which I Raised

47. To this day no judge state or federal, has ever ruled on the fundamental issues I raised in my numerous lawsuits against the taxicab companies and those in complicity with the hoodlums who run those companies. The major issue was and remains very simple: Is the "Lease Agreement" an illegal fraud or is it not? No judge in any of my lawsuits would let me take that issue to trial. No judge hearing any of my lawsuits would rule on the issue. Instead, what judges began doing toward the end of 1991 was to find me a "vexatious litigant" so they could impose financial barriers and pre-filing injunctive orders that prevented me from taking the fundamental issue to trial.

Judge Ragan's Admission
That if I were Allowed to Take
The Fundamental Issue to Trial,
I would Prevail on That Issue

48. The only judge who was honest enough to state for the record why I was not allowed to take my fundamental issue to trial was Judge Ragan of this Court. After listening to him tell me how much he admired me for taking on a cause nobody else would I asked Judge Gerald Ragan why he did not let me take my fundamental issue to trial instead of imposing a financial barrier on me that made it impossible for me to proceed. Judge Ragan, in open courts shook his head from side to side and said: "You're talking bankruptcy. If I let you take that issue to trials you'll bankrupt the cab companies." What did that statement from Judge Ragan comprise? It comprised an admission of his that had I been allowed to take to trial the issue of whether or not the "Taxicab Lease Agreement" is an illegal fraud, I would have been the prevailing party.

Testimonials to My Work

49. During the course of this present action and other litigations, I have been vilified by attorneys opposing me and declared a "vexatious litigant" by four state court judges and one federal judge while four other state court judges and seven federal judges have ruled that I am not a "vexatious litigant. Since I continue to be vilified by attorneys who represent business and insurance interests, I think it is time I placed on the record the opposite picture.

50. I attach to this declaration, as Exhibit 7, a true copy of a testimonial letter from Michael Eisenscher, who at the time of the letter was overseeing the newly formed United Taxicab Workers for the Association for Workplace Justice subdivision of Communications Workers of America AFL-CIO.

51. I attach to this declaration, as Exhibit 8, a true copy of two laudatory letters from Assemblywoman (now State Senator) Jackie Speier, at the time she was Assembly Majority Whip. The Homosapiens Educational & Legal Project (H.E.L.P.) address refers to the organization I formed with half a dozen others in 1986 as the Hackers Educational & Legal Project, concerned only with taxicab drivers ("hackers"). It soon expanded into the broader organization. Points to be made about the two letters from Sprier are these:

· She tried to initiate taxicab industry reform as the result of my spurring her to do so; but she was unable to gain support in the Legislature or from the Governor.

· She could not understand why, when I obtained unemployment compensation benefits, the taxicab company employer was not required to pay them, and instead – as has happened every time – the money was taken out of a general slush fund maintained by the EDD. This Court is among the many employers that paid such benefits for taxicab drivers during the time when I was seeing to it that cab drivers got the benefits (since John True and his colleagues sold out my lawsuits the drivers are  no longer going after benefits and do not even know they could obtain benefits on the basis of my pioneering work).

· She refers to a case in which a taxicab company challenged, a challenge it eventually lost in court, an award of benefits to a driver on the "Lease Agreement." This is what happened when I was not the legal agent for the drivers. The cab companies and their insurers would not challenge me because I knew how to win the case, while lawyers did not.

· She states in her second letter that the EDD "will soon audit" some of the taxicab companies in regard to their work status. I started hearing such promises in 1986. The EDD has never fulfilled the promises, which is one of the main reasons why I sued or tried to sue the EDD. I have no idea where Jackie Speier got the information that the EDD audited 27 employers and found that "independent contractors" should have been treated as employees. My consistent information is that the EDD, under control of the Governor and the Legislature, has allowed companies to get away with this scam. In any event, none of the 27 employers referred to were taxicab companies.

52. I attach to this declaration, as Exhibit 9, two letters from attorneys stating why I should be selected for one of the non-lawyer positions on the State Bar's Committee to Ascertain Standards for Legal Technicians. These are true copies of originals still in my files.

53. I attach to this declaration, as Exhibit 10, a letter from Father Floyd A. Lotito, a priest at St. Boniface who also does yeoman work for St. Anthony's Tenderloin operation, urging District Judge D. Lowell Jensen to appoint counsel for me so I could turn a housing lawsuit into a class action. This is a true copy of an original in the files of the U.S. District Court. As the result of the letter and my own inducements, Judge Jensen sent an order to the San Francisco Bar Association federal project to provide counsel; and the Bar Association sent back a letter telling Judge Jens, to go fly a kite. So, all I could do was obtain some improvements for myself, though in the process I benefited a few others. This was one of numerous cases in which I was the prevailing party; and I point that out because if you go by the pleading papers and representations of lawyers opposed to me, I never prevailed.

54. Inasmuch as lawyers opposing me have made sure that the judges hearing my cases see every "vexatious litigant" order against me, I thought it might be a nice balance to show one of the orders from one of the many judges who do not consider me to be a "vexatious litigant." I attach to this declaration, as Exhibit 11, a true copy of an order from the Honorable Raymond J. Arata, Jr., Judge of this Courts denying a motion to have me declared a "vexatious litigant."

55. When the "vexatious litigant" campaign against me was escalated, and the tide turned against me beginning with a "vexatious litigant" finding by District Judge Charles A. Legged who eventually rescinded his "vexatious litigant" orders lawyers who know me and are familiar with my work began supporting me with declarations under oath in opposition to any finding that I am a "vexatious litigant." This was quite a risk for them to take. There are judges who despise pro se litigants and pro se litigations and who are particularly aggravated by me because I do unpopular public interest litigation with a great deal of skill, and they are outraged that such an upstart who never went to law school and took the Bar exam can manage complex pleading papers and argument. These judges love the "vexatious litigant" statutory scheme directed solely at pro se litigants, since it is a convenient tool for them to use to rid their courts of pro se litigants they detests such as myself. The lawyers supporting me took the risk of angering such judges by supporting me; and of course that could have prejudiced their own proceedings before such judges, if drawn. In any events they took the chance and supported me with declarations. I attach to this declaration, as Exhibit 12, declarations under oath of 18 attorneys opposing any finding that I am a "vexatious litigant," and I point out the following facts relevant to ongoing issues:

· Attorney Adams approves of my taxicab industry litigation as meritorious, and only declines to represent me because I am in an area outside the scope of his practice.

· Attorney Anolik represents the tourist industry in which "independent contractor" status is defended by him; so it is rather extraordinary to find him on my side. He explains why: the taxicab industry as reconstituted under the "lease" racket has been harmful to the tourist industry. Instead of my being declared a "vexatious litigant," he says I should be treated and protected as a whistleblower for seeking needed reforms.

· Attorney Benjamin supports my work and declines to represent me only because I cannot finance him.

· Attorney Bloom explains how I helped him win a large and heartbreaking taxicab workers' compensation case. He points out that the position I have taken since 1985 on taxicab driver work status has been upheld by the California Court of Appeal in Yellow Cab v. WCAB (1991) 226 Cal. App. 3d 1288. What he does not explain is that although an attorney got credit for this decisions this was originally my case and I am ultimately the person responsible for the decision. Bloom also explains how I dismissed what eventually became my major court attack on the taxicab companies so that the Employment Law Center could rewrite and pursue it as a class actions demonstrating that I was acting "selflessly on behalf of taxicab drivers." Bloom avers that I am "using the courts to bring about needed taxicab industry reform," not to harass anybody, and my "motivation is justice" rather than revenge, and so it "would be a travesty to make a finding" that I am a "vexatious litigant." I add to this that he only declined to provide representation in court because he sticks strictly to administrative agency work.

· Attorney Ron Burton testifies to "the excellent quality" of my pleading papers and my "valid claims against the taxicab industry which are of potential benefit to the public." He only declined representation because the project was too much for him, and he told me privately that I could do the job better than himself and most other lawyers.

· Attorney Cook expresses surprise and indignation that my dismissing my major lawsuit against the taxicab companies so the ELC could convert it into a class action should be used against me in "vexatious litigant" motions. It is especially vital, as to my present action against John True, that Cook sees my relinquishing my major taxicab lawsuit and handing it over to True as having been on the basis that True would represent my interest.

· Attorneys Coyle, Droeger, and Healy all attest to the high quality of my work, my social reform motivations and the absurdity of my being found a "vexatious litigant."

· Christopher Ho, who has tried on his own and through counsel to have me declared a "vexatious litigant" in order to get himself and the ELC out of my present lawsuit against them, is one of the attorneys on record as opposing a finding that I am a "vexatious litigant. AND THE MOST AMAZING PART OF HIS DECLARATION IS THAT HE CONFIRMS ALL OF THE MAJOR CLAIMS I have brought into court against John True, himself (Ho). and the ELC. He makes it clear enough that the purpose of my turning over my lawsuit to the ELC was so that there could be a determination that taxicab drivers are employees for all purposes, NOT just for unemployment and workers' compensation purposes.

· Attorney Horowitz testifies that I was not the first to have sued the taxicab companies' major labor lawyers Jim Meyers; and when I saw that my suit against Meyers was on shaky grounds in the opinion of the trial judge I decided to dismiss Meyers since it was not absolutely necessary to have him as a defendants and it was causing more trouble than it was worth.

· Attorney Katzenbach (the son of the former U.S. Attorney General) sees nothing but high quality and merit in my work, and declines representation only because I cannot finance him.

· Attorney Kilburg worked her way through law school as a driver for DeSoto at the same time I was with DeSoto. She could not represent me because my litigations against the taxicab companies were outside the scope of her practice. But she was so impressed with what I was doing that she tried to obtain an attorney for me.

· Attorney Levy explains how nearly impossible it is to obtain a lawyer to do the kind of work I have done in courts and why he himself declined to represent me despite his agreement with everything I have claimed from the beginning. I would especially like every judge reading this declaration to heed Levy’s following words: His [Wolfe's] arguments should be addressed on the merits by the courts in the cases before them. To place the weapon of an injunction in the hands of taxicab industry lawyers against a man unable to retain lawyers, but whose cause has been upheld in the courts, slams the door to the justice system shut against claims that deserve the considered attention of the courts.

· John True, who has tried through his attorney Amitai Schwartz to have me declared a "vexatious litigant'" is one of the attorneys "in opposition to motion re 'vexatious litigant' status" of myself. What he does not acknowledge in his declaration is that the administrative actions he discusses as having been undertaken by the ELC resulted from my pioneering work, without which the ELC would never have represented taxicab drivers. He also states falsely and fraudulently that he had considered a lawsuit against the taxicab companies before seeing my major complaint. The fact is that although I had "approached this office on several occasions for assistance in connection with ongoing litigation [i.e., MY litigation, which was the ONLY 'ongoing litigation] over the 'lease'", as True thus acknowledges in his declaration, he did NOT consider it. He rejected my requests for representation with hardly any examination of the causes of action and legal strategy I proposed, until he saw my major complaint and suddenly realized I was right all the time.

· Like True, attorney Zachs fails to acknowledge the complete extent to which his getting taxicab driver workers' compensation cases resulted from my pioneering work. He is one of the lawyers who, upon learning of my success, called me and asked me to send him clients. When Alfred Scott McLean discusses his successful workers' compensation case in his declaration in support of my lawsuit against John True et al., McLean is talking about a case that I turned over to Zachs. The reason Zachs was able to prevail was that I taught him how to plead the case.

· Attorney Zimmerman, formerly of the District Attorney’s office, sums up the case for my being the opposite of a "vexatious litigant."

56. All of the above declarations were presented to Judge Pollak when he had still another "vexatious litigant" motion before him. He refused to pay any attention them.

57. In 1996 I considered going to law school so as to overcome the bias in the courts against pro se litigants and do my public interest litigation with the official paper allowing me to do so as an attorney at law. Through my grades in college and the numerous recommendations I got from lawyers and judges, there was no problem in my gaining admission to law schools even at my advanced age. I finally decided against it for other reasons not relevant to anything that is happening now. I only mention this as an introduction to two letters of recommendation: from a former taxicab driver whose award from the WCAB I succeeded in doubling after his lawyer left him with an inadequate settlement, and from a school teacher whose discrimination suit I saved when she was on the brink of being thrown out of court. She mentions my having to ghostwrite pleading papers for the young lawyer eventually obtained to help her. That is nothing new for me. I have ghostwritten pleading papers for lawyers a number of times. I attach to this declaration, as Exhibit 13, true copies of letters from Vladimir Piljak and Gwen Carmen.

How John True and the ELC Got the Lawsuit at Issue
and The Agreement True Made with Me

58. Sometime In 1991 I made a further approach to John True at the ELC about suing the taxicab companies. Though I was still quite deficient at procedural law, I had learned enough to be confident that the Unfair Business Practices Act (Business & Professions Code 5) 17200 et seq.) could be used as an umbrella to prosecute the taxicab companies for a variety of law violations. But True continued to insist that the law could not be used in that manner by a private party. So, I drafted a complaint myself – deficient and far from the quality of complain I am capable of writing today – and filed it on August 5, 1991.

59. I attach to this declaration, as Exhibit 14, a true copy of the unfair practices complaint I filed in August 1991 against the taxicab companies: Wolfe v. Yellow Cab Cooperative et al. (No. 935179).

60. After I filed the complaint identified in paragraph 59, I showed it to Cliff O'Neill, coordinator of United Taxicab Workers. I asked him to see about getting taxicab drivers, the putative taxicab driver union he was coordinating, and the Communications Workers of America, involved in the lawsuit. Instead he showed my complaint to John True and told True: "This complaint that Burton has filed looks like a perfectly good complaint to me. Why can’t we pursue it?"

61. Once True saw my complaints he changed his mind. He called me on the telephone and spoke approximately these words: "Burton, you were right. We can pursue the kind of complaint you filed. Why don't you meet with me and Cliff O'Neill at the ELC office and we'll see what we can put together." Within a few days that meeting took place, and what transpired and the agreement made are described in the next paragraph.

62. At the meeting referred to in paragraph 61, True asked me if I would dismiss my complaint so that he could rewrite it into a class-action complaint. He explained that it would be easier to file an original complaint than to move to amend my complaint. We then discussed whether or not I would remain a plaintiff in the class action. True said he preferred to have active taxicab drivers as typical plaintiffs, and I had not been a cab driver for six years, and probably it would be best if I were not one of the plaintiffs. Instead he wanted a few drivers from each of the major taxicab companies of San Francisco as typical plaintiffs; and he asked me if I could "dig up the bodies." I said I could. He also asked me if I could produce past court decisions on the "Lease Agreement" scheme in other states and documents to support our cause. I said I could and would. "I'll sweep your way over to City Hall if you want," I added. "I've been trying for five years to get a lawyer to take on the taxicab companies." True smiled and said: "I know you have." Then we got into a discussion of strategy and money. True agreed that the two basic issues would be taken to trial: (1) the taxicab driver classified as a "self-employed person" is actually an employee, and (2) the "Taxicab Lease Agreement" is an illegal fraud. Entailed in the action would be prosecution of specific law violations by the taxicab companies. The Court would be asked to restore all profits gained by the taxicab companies through their "lease" racket to taxicab drivers and the general public. The typical Plaintiffs would share in the recovery, and since I was the one responsible for the lawsuit and it never would have been possible but for me, I would get an equivalent share of the recovery.

63. I attach to this declaration, as Exhibit 15, a true copy of the complaint drafted by True and filed in this Court on or about November 25, 2000, with the title (short title) of Joseph Tracy, et al. v. Yellow Cab Cooperatives et al. (S.F. Superior Court No. 938786). The lead Plaintiffs Joe Tracy, was hand-picked by me. The Plaintiff I relied on most to carry the ball, also my pick, was Alfred (Scott) McLean, whose declaration accompanies this one. The John Coleman/Carol Gahagan case is discussed in the declaration of attorney John Bloom (fourth declaration in Exhibit 12); and but for me Carol Gahagan, who was a powerful potential testifiant at trial, would not have been in the case at all. Other aspects about the complaint to be noted are as follows:

(1) The "Facts Common to All Causes of Action" were supplied to True by me.

(2) The quoted "Lease Agreement" was supplied by me.

(3) Richard Edwinson, whose workers' compensation case is discussed on page 20 of the complaint, was originally my client, and without me there would have been no Edwinson case that resulted in the landmark Court of Appeal decision establishing in court for the first time that taxicab drivers signed to the "Lease Agreement" are employees, at least for purposes of workers' compensation benefits.

(4) The law violations cited were established by me as law violations, and without me John True and his colleagues would not have known about the violations or which ones to cite.

(5) I supplied the information which enabled True to set up the causes of action appearing in the complaint.

(6) The injunctive relief set forth on page 35 of the complaint was what True had agreed with me to pursue: i.e., the seeking of a court order enjoining the taxicab companies from committing the law violations specified in the complaint.

(7) The declaratory relief set forth on pages 35-36 of the complaint was what True had agreed with me to pursue: i.e., a declaration of the Court that all of the law violations cited in the complaint were in fact the law violations being committed by the defendant taxicab companies.

(8) The restitution prayed for on page 37 of the complaint was what True agreed with me to pursue.

(9) The exhibits attached to the complaint were made possible by my work and were provided to True and his colleagues by me either directly or through the plaintiffs I picked. Summing up, this was MY lawsuits handed to John True and his colleagues on the proverbial silver platter, and True and his colleagues were supposed to pursue it, AGREED to pursue it, in EVERY one of its aspects all the way to trial, and had I so much as an inkling that they would do anything less, I would not have relinquished control of the lawsuit to them.

64. I attach to this declaration, as Exhibit 16, a news release from the Employment Law Center timed to coordinate with the filing of the aforesaid complaint on November 25, 1991. I do not know at this time for certain, but I believe, that John True drafted the news release or at least had a strong hand in the drafting of it. The news release attached as Exhibit 16 is a true copy of the one distributed to the press, except that certain sentences and phrases in it have been underlined by, I believe, Alfred Scott McLean, in order to show forcefully the intention of the lawsuit and what the lawyers pursuing it were supposed to accomplish through the lawsuit. Perhaps the headline is enough. As it shows, the purpose was not to establish that existing taxicab drivers were employees solely as to unemployment and workers' compensation laws, but rather the purpose was to INVALIDATE THE "LEASE AGREEMENTS" in use in the taxicab industry. It is impossible for me to understand how anyone, judge or otherwise, could look at the news release in combination with the complaints and fail to see where the lawyers pursuing the action were supposed to go with it.

Proof That I Was Not John True's Client

65. A key issue in my motion for new trials etc., is Judge David A. Garcia's flabbergasting statement that I was John True's "client." I attach to this declaration, as Exhibit 17, proof that I was not John True's client. The letter concerns my suspicions concerning the way True was handling the sad fact that all of the typical plaintiffs in the Tracy case were tax evaders except Alfred Scott McLean. I do not submit the letter for the purpose of showing that suspicion; I submit it to demonstrate the actual relationship between John True and myself. The letter makes it clear that John True was neither my lawyer, my agent, nor my representative. He was only a lawyer pursuing the suit that I handed to him on behalf of cab drivers and the public.   Nevertheless, at that time the agreement we had made was still in effects and it had not yet been breached.

66. That our agreement had not yet been breached, and True was cognizant of what he was supposed to do with the lawsuits is evident from a letter he wrote on May 26, 1994, and sent to the judge hearing the Tracy case at the time, the Honorable Stuart R. Pollak. I attach to this declaration, as Exhibit 18, a true copy of that letter. I believe the letter is from a pile of materials provided to me by Alfred Scott McLean and I believe Judge Pollak can confirm that he received it, though I have no knowledge of whether or not it is still in his files.

67. I attach to this declaration, as Exhibit 19, a true copy of a letter I sent to Judge Pollak in support of the position True expressed in his letter of May 26, 1994. So, it is clear not only from True's letters but also from this one of mine, that even though we were no longer communicating, we were still proceeding on the same path.

First Indication that True Intended
To Change Position and Sell Out the Lawsuit

68. Within four or five months of taking the position he did in his letter of May 26, 1994, True was bent on a course of action undercutting his own position, selling out the lawsuit with which he was entrusted, selling out taxicab drivers, and selling out the general public which he also promised to represent in the Tracy case. I attach to this letter, as Exhibit 20, a true copy of a letter dated October 24, 1994, to John True (who by then had quit the ELC and become a partner in the law firm of Rudy 6 Zeiff) from attorney James Michael Carroll, who had been a taxicab driver for seven years and was assisting with the Tracy case. The letters objecting to True's attempts to sell out the lawsuits documents True's treachery, deceit, and efforts to pressure the typical plaintiffs in the lawsuit to dump it.

69. So that Judge Garcia, or anyone else who reads this declaration, can understand what True was up to, I attach to this declaration, as Exhibit 21, proposals that True and his colleagues made to Judge Pollak. I believe Exhibit 21 is a true copy of the proposals as True summarized them for Judge Pollak and all of the typical plaintiffs. Alfred Scott McLean informs me that he received the proposals from True as shown in Exhibit 21 and learned from other typical plaintiffs that they got the same. In order for Judge Garcia and others to comprehend what the terms mean, and how they demonstrate True's intention to sell out the lawsuits I explain them as follows:

Gate Differential – A "gate" is and always has been a shared commission which taxicab companies substituted more than 50 years ago for the old meter split between driver and employing taxicab company. It is a fixed company share of the fares and tips earned by the cab driver on the work shift assigned to the driver, and it is based on the amount of money the driver can be expected to earn on any given work shift. For example, it is higher for a day driver on Friday than on Saturday because the driver can earn more money on Friday than on Saturday. It is higher for a night driver on Saturday night than on Sunday night because the driver can earn more money on Saturday night than on Sunday night. The shared commission was always referred to as that in the days when cab drivers were unionized employees. The term is found in collective bargaining agreements between unions and taxicab companies. The taxicab companies did not begin referring to it as a "lease payment" or "rent payment" until the "lease" racket went into effect around 1979 or 1980 in San Francisco (a little earlier in other parts of the country). To this day, other than in the so-called "Lease Agreements" nobody in the taxicab industry refers to the shared commission in such terms. It is referred to by all, employer and employees as the "gate." Consequently, when True refers to "gate differentials" he is referring to the proposed difference between the gate that a driver on employee status will pay to the company and a driver on purported "lessee" and "self-employed person" status will pay to the company at the end of the work shift. In turn, the difference refers to a so-called "choice" that the taxicab companies and True and his colleagues proposed to Judge Pollak: a "choice" between being an employee or a so-called "lease driver" (a term that appears nowhere except in taxicab company Newspeak and, if defined, would mean "one who drives a lease," though how one can drive a lease has never been explained). This purported "choice" was how the "lease" racket was instituted here in San Francisco around 1979-1980 (earlier elsewhere). The drivers were told that they had the choice of remaining on unionized employee status or becoming "lease drivers." If they chose to remain on union/employee status, they would pay a higher gate, take what was left of work shifts after the prime shifts were doled out to the "lease drivers," and be saddled with whatever taxicabs were left after the best were given to the "lease drivers." As any cab driver knew and knows, to take the union-employee status "choice" means to have between $200 and $300 a week taken out of your pocket as the result of paying the higher gate, working on a shift wherein the earnings are $100 less (and maybe that is too conservative an estimate) than on the prime shifts when the most fares are available, experiencing down time for repairs as the result of being assigned to a junk wagons and having aggravated passengers reducing tips or not paying any tips at all because of their disgust in finding themselves shaking and vibrating and scared silly in a dirty, dilapidated taxicab. That is where the "lease" racket stood at its inception, leaving no choice at all and resulting in almost all drivers opting for the "lease" arrangement, and now this is where John True proposed to take them and the suffering public once more.

· Employee v. Lessee – Though not specified in the proposal, the terms make it clear that True and his colleagues were prepared to allow the split classification and the "lease" arrangement they were supposed to invalidate to continue in place, and instead of being invalidated, it would be legalized by a court-approved settlement of the one lawsuit which was to have been the pioneer breaking of the "lease" racket, setting what those of us involved had hoped to be the precedent-setting end, once and for all, to the "lease" racket. Instead, True proposed not only to leave it in place, but also provide it with the stamp of legal-judicial approval. In short, True was proposing to sell out the announced purpose of the litigation.

The Possible Defrauding of Lead Plaintiff Tracy

70. Though Alfred Scott McLean believes the summary of proposals attached as Exhibit 21 was sent to all typical plaintiffs in the Tracy case, I have reason to doubt it. The reason for my doubt is contained in a letter dated October 24, 1994, from lead Plaintiff Joe Tracy to True. I attach to this declaration, as Exhibit 22, a true copy of that letter. I believe the star and handwriting at the top of it are those of Alfred Scott McLean. This letter shows that lead Plaintiff Tracy was being led by True to believe that whatever the settlement negotiations were, they were going to result in the full purpose of the lawsuit: to invalide the "lease agreement" altogether. I say so because I cannot believe that Tracy would still harbor such a total misunderstanding of True's intentions unless the proposals attached as Exhibit 21 were concealed from him. Of course the explanation could be that as of October 24, 1994, the proposals had not yet been sent to Tracy. The exact truth of this matter cannot be known without discovery proceedings. For now the suspicion remains that Tracy was defrauded by True.

The Resort of True to Coercion

71. Despite intense efforts of True to induce the typical plaintiffs in the Tracy case to go along with his proposals, several of them resisted. He then resorted to coercion. He offered them $5,000 each to settle and warned them that if they did not accept that, they would get nothing. When McLean made me aware of what was happening, I decided to resume communicating with True and wrote him a nasty letter.

72. I attach to this declaration, as Exhibit 23, a true copy of the nasty letter, dated July 21, 1995, from me to John True, warning him that if he stayed on the course he was on, and the typical plaintiffs were fooled or coerced or induced to accept his monetary offer and suit sellout, I would sue all of them and take the $5,000 away from them. It should be noted that I sent copies of the letter to all typical plaintiffs whose addresses were known to me, and to Judge Pollak, and to other interested parties.

73. I attach to this declaration, as Exhibit 24, a true copy of a letter that I sent to Judge Pollak, dated July 21, 1995, along with a copy of my letter to True described above in paragraph 72. I do not recall why I used the address of my H.E.L.P. co-director Andrew Kotakis at the time of this letter.

74. I do not know as of now whether Judge Pollak recused himself as the result of my letter to him, or the case wound up with Judge Cahill for some other reason. I have asked for that information through interrogatories, but there has been no response.

75. I do know that my letters caused a disruption in True's plans. I was told by McLean, who was before Judge Pollak at the time, that Judge Pollak expressed grave doubts about the integrity and effectiveness of True's proposal, and apparently would not approve them because of my letter. That may have been the reason why he ceased to be the judge hearing the case: it may be that True and his colleagues somehow deliberately got the Tracy case transferred to Judge Cahill. As I says I will not know the truth of the matter until my questions are answered.

76. I have in my possession a copy of a letters dated April 8, 1996, that John True sent to Alfred Scott McLean, marked "Confidential-Pursuant to Attorney-Client Privilege." Elsewhere I have expressed legal grounds for holding that this letter cannot be construed as confidential. Until that is decided by the Court, if it is decided by the Court, I will not attach it to this declaration. I can summarize the position taken in it, however, without fear of breaching confidentiality, because the position has been taken publicly by True. His positions as expressed to the typical plaintiffs in the Tracy case, and to the ELC and to all concerned with the Tracy case is as follows, along with my comments on the invalidity of the position:

True's Position 

(1) It would not be appropriate to take the case to trial, as promised, because the essential legal question to be decided is whether or not "lease drivers" are employees or independent contractors within the meaning of applicable law.

My Comment

As True knew then and knows now, there is no such person or thing as a "lease driver." That is a claptrap term, invented by labor lawyer Jim Meyers, which does not exist anywhere in the English language or anywhere except in the jargon of Meyers and the bandits who run the taxicab companies. The essential legal question is improperly put for that reason and because the term "independent contractors" while at issue elsewhere, was and is not at issue in the San Francisco taxicab industry because that term is not used. As I explained above, it was assiduously avoided by Meyers in the "Lease Agreement" he wrote, and no taxicab driver in San Francisco has signed that pile of nonsense with the descriptive term "independent contractor" appearing in it. The two terms in the "Lease Agreement" used to describe the driver compelled to sign it as a condition of obtaining work as a taxicab driver are "lessee" and "self-employed person." Since those terms have no specific statutory definitions at trial the question, pursuant to Civil Code Section 1644, was to be whether or not those terms, as used in common or ordinary English languages can be applied to a taxicab driver working for a taxicab company boss on an assigned work shift, under the rules and regulations of the taxicab company boss, with no ownership in the company, no say in her/his working conditions, and subject to being fired at will by the taxicab company boss. It was absolutely agreed between True and myself, and between True and Alfred Scott McLean and other typical plaintiffs, that this issue WOULD BE TAKEN TO TRIAL. And, since the decision does not depend upon any statutory or decisional law, contrary to what True told everybody it is not a question that is most properly decided by a judge through a summary proceeding, but rather a question properly decided by a jury of the taxicab company owners' and the cab drivers, peers, based on how the terms at issue are used in ordinary language.

True's Position

(2) He and his colleagues decided not to take the case to trial because only equitable relief was to be sought, and not damages.

My Comment

Such a statement sent through the mail constitutes mail fraud, one of the predicate acts to be used in a RICO Act suit, and Alfred Scott McLean and I already have decided, and we now make this known to Judge David Garcia and all concerned, that if Judge Garcia allows John True to demur himself out of this lawsuits we will go to the U.S. District Court with a RICO Act lawsuit naming True and his colleagues as co-defendants. John True will not be allowed to demur himself out of a lawsuit that brings him to trial for the evil, criminal acts he has committed. Here is why what he wrote and sent through the U.S. mail comprises mail fraud: It was never the intention to limit the Tracy case to equitable relief. Damages were to be sought, and not only were they to be sought, but in fact a certain type of damages, very limited, were awarded after summary judgment. But most importantly, the main agreement True made, AS SHOWN ON THE FACE OF THE COMPLAINT HE DRAFTED, was to seek restitutionary relief consisting of recovery of the millions of dollars which the hoodlums who run the taxicab companies have garnered in the form of illegally evaded taxes and illegally evaded union employee benefits. So, when True stated in his letters that this was not the intention, he lied. And the critical importance of that lying shows up in the next position taken by True in his letters, revealing the tax evasion of his clients except for McLean and his intention to help them and the taxicab company criminals continue to evade taxes.

True’s Position

(3) If damages were to be claimed, a "Pandora's Box" would be opened up, especially when the damages were loss of wages. True explained that not only the typical plaintiffs, but also the class members (taxicab drivers of San Francisco) would be forced at trial to answer questions about their earnings and what they have reported to the IRS and the California Franchise Tax Board. And when all was said and dance this became the critical reason for not taking to trial the issues of whether or not the drivers are employees and whether or not the "Lease Agreement" is an illegal fraud.

My Comments

It is essential that Judge Garcia and anybody else who may read this has some understanding of what the law is pertaining to this particular tax evasion situation, and how egregiously True was lying about it, with knowledge that he was lying. The fact is, as demonstrated in administrative agency proceedings wherein actual employees obtain benefits that employers have withheld on the excuse of their being non-employees, that when the issue of non-payment of taxes comes up it is the employer who is held responsible and not the employee. Since True was and is an expert in this field, he knew that he was lying to everybody when he stated that the typical plaintiffs and class members could be in trouble for not reporting their income to the IRS and the Franchise Tax Board. The truth, as True knew and knows perfectly well, is that upon a finding that the cab drivers were and are employees of the taxicab companies, it is the taxicab company owners and not their employed cab drivers who would be dunned for the back taxes, since it is the taxicab company owners who are supposed to withhold taxes at the source given employee status of their workers. So it was that this critical excuse which True offered for not going to trial was total bunk. To the extent that he sent it through the mail and over the telephones, he committed mail fraud and wire fraud.

True's Position

(4) Among his statements to the typical plaintiffs was that there was "no evidence" of the taxicab companies having been involved in criminal activities, and that is why he and his colleagues decided not to pursue the original plan of using the Unfair Business Practices Act as the umbrella to prosecute the taxicab companies for law violations that are criminal in nature.

My Comments

This is one of the wildest of all of True's lies. True himself incorporated the criminalities in the complaint he drafted, and there were many other criminal law violations to be uncovered through discovery proceedings. Here are a few examples.

· The Internal Revenue Code, beginning at Title 26 USC § 6011 and extending through 26 USC § 6053, spells out specific requirements that companies and their officers, agents, and employees must follow. The hoodlums who run the taxicab companies were violating and continue to violate every one of those code sections. Under Title 26 USC § 7201, that makes the bandits who run the taxicab companies guilty of felonies: "Any person [which by definition includes a company] who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof" is "guilty of a felony" [or defeat emphasized because that language is critical in regard to what the taxicab company operators have done and continue to do].

· Section 19406 of the California Revenue and Taxation Code mandates imprisonment or fine for any person [includes a company] that fails to file a tax return or fails "to supply any information with intent to evade any tax" or who supplies any false information." The evidence to demonstrate that the taxicab company bosses and their companies are guilty under Section 19406 is massive, and nobody knows that better than John True.

· Among the San Francisco Police Code violations being committed by the taxicab companies are those under Article 16 of the Code: e.g., illegal transfers or assignments of permits (Section 1084), cabs in unsafe operating condition (Section 1097) prohibiting of unlawful leases (Section (Section 1124). Those are not civil law violations. They are misdemeanors.

· Take a look at the complaint that True drafted and filed through the ELC. The complaint lists a series of Labor Code Violations, Unemployment Insurance Code Violations, and Workers' Compensation Act violations. Those are not civil law violations. Those are misdemeanors.

· And then there are violations of the Social Security Act regarding frauds used to evade contributions. Those are misdemeanors and felonies.

77. The frauds of True detailed above in paragraph 76 are just examples. There are many other false and fraudulent statements contained in his letters to the typical plaintiffs in the Tracy case for which True can and ought to be prosecuted and disciplined by the State Bar.

78. Throughout 1996 and into 1997, Alfred Scott McLean and I were doing all that we could to stop True and his colleagues from selling out the Tracy case lawsuit. But he had so thoroughly defrauded and coerced the other typical plaintiffs that we were unsuccessful in heading off what we were able to envision as the disaster which finally occurred.

79. To get McLean out of the way of making his illegal and corrupt deal with the taxicab companies enabling the companies to continue perpetrating their "lease" racket, as of March 1997 True and Chris Ho initiated legal steps to eliminate McLean as one of their clients, though McLean remained a plaintiff in the class action. Eventually that was done, so that at the time the illegal deal was finally effected, McLean was no more a client of True than I was.

80. By the spring of 1997 the Tracy case had somehow been taken out of the hands of Judge Pollak, and William Cahill was the hearing judge. I wrote to True protesting the choice of Cahill as judge on the ground that Cahill had been a partner in the law firm of Bronson, Bronson & McKinnon along with Bob Tollen, and therefore representation of part of the taxicab industry was at issue: especially so because one of the taxicab company defendants in the Tracy case, Speck/Veterans, was a client of Bronson, Bronson & McKinnon. I also protested to Judge Cahill. True would not be moved to ask recusal and Judge Cahill refused to recuse himself.

81. By April 1997 Judge Cahill had before him either one proposed settlement of the Tracy lawsuit or several proposed settlements. I cannot know how many agreements are at issue until obtaining them through discovery proceedings. Nor can I know what the final terms were until discovery can be had. All I can do at the present time is attach to this declarations as Exhibit 25, a copy of a transcript of a hearing on April 24, 1997, before Judge Cahill, in which Alfred Scott McLean objects vigorously to any settlement agreement with the taxicab companies which does not result in total invalidation of the "Lease Agreement" scheme. Note in the transcripts at page 10 thereof, that McLean also protests the limitation of the summary judgment brought by True and his colleagues to just two issues: driver eligibility for unemployment and workers' compensation. Note also on page 17 of the transcript that McLean contradicts Judge Cahill's pronouncement that the plaintiffs in the Tracy case "won" by means of the summary judgment in their favor: "I continue to say that we did not win in this case." And note that McLean tells Judge Cahill: "On the face of it, the settlement is as bogus as they come" (transcript page 20, lines 5-6). Note: This copy of the transcript was furnished to me by McLean, and it is his handwriting which appears all over the copy; and the reason for the corrections, he told me, is that the court reporter made numerous mistakes.

82. After summary judgment was final and settlement agreements were approved by Judge Cahill, the Tracy case went on appeal to the California Court of Appeal. It was not until last week that McLean was able to provide me with what seems to be the final ruling of the Court of Appeal on matters; but I still do not have the final order and judgment of Judge Cahill, so that I do not know what it says. Here is what I do know from talking to several hundred working taxicab drivers:

(1) As the result of whatever the settlement was that John True and his colleagues effected with the taxicab companies, all of the drivers I have questioned are signed to the "Lease Agreement" which True and his colleagues, and the ELC, promised to take to trial to invalidate.

(2) None of the drivers opted to be on employee status because the gate charged, along with the undesirable work shift and cab assigned, make it too difficult to earn a livings and also because there is constant harassment from the taxicab company bosses.

(3) Almost all of the drivers remain out of the tax system.

(4) All of the several hundred drivers I have talked to believe that under the "Lease Agreement" scheme they are ineligible for workers' compensation and unemployment benefits, and so they would not apply for them and they do not apply for them.

(5) After security deposits were returned to existing drivers under the settlement agreements, the taxicab companies imposed new security requirements, double the old ones.

(6) The drivers cannot unionize because all but a few are working under the "Lease" scheme wherein they are classified as "self-employed persons" thereby unqualified to unionize under the provisions of the National Labor Relations Act.

83. On the basis of my interviews with several hundred working taxicab drivers, I can state factually, without knowing just what the settlement agreement says or the settlement agreements says that the following results exist as the result of the settlement agreement(s) regardless of the summary judgment decision of Judge Cahill:

(1) The Lease Agreement which True and his colleagues and the ELC were supposed to invalidate via the Tracy lawsuit is in full force and effect in the taxicab industry.

(2) Though the drivers were deemed employees eligible for unemployment and workers' compensation benefits in the summary judgment decisions they have been compelled to sign "Lease Agreements" that state they are ineligible for statutory benefits, and they are not even seeking the benefits, and thus whatever the settlement agreement(s) might be, it or they TOTALLY HAVE UNDERMINED THE SUMMARY JUDGMENT DECISION.

(3) The drivers are unable to unionize.

(4) Without protection against management’s whimsy the drivers can be fired and are being fired at will.

(5) There are no health and welfare benefits for the drivers, and no pension.

(6) More than 90 percent of the drivers are not reporting income to the IRS or the California Franchise Tax Board, and so they are out of the tax system.

(7) The taxicab companies are not contributing to the Unemployment and Social Security Funds.

(8) The City and County of San Francisco government is losing more than one million dollars a year in city payroll taxes that the taxicab companies used to provide but no longer do under the "Lease" scheme.

(9) San Francisco General Hospital and public health clinics and other hospitals have been hit with tens of thousands of dollars in unrecovered medical bills because the taxicab companies, which used to pay these bills, claim the injured drivers are not their responsibility, being "self-employed," and therefore the companies do not have to pay workers' compensation (though they carry up to a million dollars a year in workers' compensation premiums because their insurance carriers demand it)

(10) Because of the wretched conditions prevailing under the "Lease" scheme and new drivers entering the trade are not able to learn quickly enough how to overcome the high gate and lack of benefits, there is nearly a 40 percent annual turnover of the driver fleet: unprecedented in any industry wherein the number of jobs either remains constant or increases; and thus the industry has become destabilized and deprofessionalized, with the resultant horrible service which is the subject of so many ongoing complaints. THOSE ARE SOME OF THE INSIDIOUS RESULTS FROM JOHN TRUE AND HIS COLLEAGUES, AND THE ELC, SELLING OUT THE TRACY LAWSUIT.

84. I attach to this declaration, as Exhibit 26, a document or copy of a document sent to me recently by James L. Szekely, director of the International Taxi Drivers Safety Council. It shows that OSHA is unable to enforce safety laws in the taxicab industry because the drivers are not on employee status as the result of the "Lease" scheme, and the result is that taxicab driving has become the most dangerous trade in the U.S. Had True and his colleagues and the ELC pursued the Tracy lawsuit all the way to invalidation of the "Lease Agreements" as they promised to do, that would have broken the "lease" racket, established that cab drivers are employees of cab companies, and enabled OSHA to establish and enforce proposed programs for cab driver safety. Because True and his colleagues sold out the lawsuits OSHA cannot act, the hoodlums who run the taxicab companies will not voluntarily implement safety procedures, and taxicab drivers are being assaulted and murdered in record numbers. The blood of these injured and murdered cab drivers is on the hands of True, Ho, their colleagues, and the ELC.

85. I refer the Court and everyone who reads this declaration to the warnings and predictions contained in my letter of July 21, 1995 to John Truest attached to this declaration as Exhibit 23. Everything I said has come true.

86. I attach to this declaration, as Exhibit 27, a true copy of interrogatories I propounded to Defendant Chris Ho. His lawyer has refused to respond. I assert that if answered fully and truthfully, they would establish Ho’s and others' liability in this present lawsuit.

87. I attach to this declaration, as Exhibit 28, true copies of interrogatories propounded to John True and "responses" sent to me by his attorney. Each "response" states falsely and fraudulently that my action was stayed pursuant to the provisions of Code of Civil Procedure Section 391.7, whereas in fact the action was not stayed because CCP Section 391.7 was and is inapplicable to me. It is my assertion that if the Court had been availed of full and truthful answers to these interrogatories, liability of True and his colleagues would have been established.

88. Rather than attach the transcript of the demurrer proceeding before the Honorable David A. Garcia in this Court on May 9, 2000, to this declarations I am submitting that separately. But I make statements about it here so that they can be under oath.

89. My comment at page 3, lines 15-17 of the transcripts forms the basis for my statement that I was taken by surprise by what occurred at the hearing on the demurrer; and I do mean surprise: total surprise. My comments at the top of page 4 of the transcript explain what I expected to be the basis of the demurrer. I was completely unprepared for Judge Garcia's reasons for sustaining the True demurrer. There was no way I could have guessed that he would conclude that I was True's client or that Judge Garcia would say True and his colleagues did not effect a settlement, and that the plaintiffs in the Tracy lawsuit prevailed on the claims, and all the other flabbergasting things that Judge Garcia said without any foundation in fact or reality. I was utterly bamboozled and could hardly collect my thoughts, because what Judge Garcia stated was so unexpected and so devoid of reality. If I had known in advance what was on Judge Garcia's mind, I would have presented this declaration and its attached exhibits to demonstrate that Judge Garcia is absolutely dead wrong. But I did not know in advance and had no way of guessing or anticipating that Judge Garcia would come to conclusions which are devoid of reality. And so it is not until now that I can respond, objects protests and demonstrate to the Court that the decision on the demurrer was based on illusions of the hearing judge.

90. Herewith I repeat the statements of Judge Garcia and demonstrate how and why they are utterly devoid of fact, evidence reality, or even reason.

Judge Garcia: "when one reviews the record of that case [the Tracy] case, it appears that they [the Defendants, including John True] didn't settle."

The Facts: They did settle. My information thus far is that there were several settlement agreements. But at least it is absolutely established that there was at least one settlement agreement. And it is also an absolute, indisputable fact that the one settlement or several settlements undermined the summary judgment decision of Judge Cahill. At least it was established by summary judgment that the cab drivers working for the major taxicab companies of San Francisco are employees for purposes of unemployment and workers' compensation benefits. The settlement effected by John True and his colleagues utterly subverted and overthrew that established finding by means of these unethical and unscrupulous if not criminal lawyers – True and company – agreeing to allow the taxicab companies to continue the "Lease Agreement" with its provision denying statutory employee benefits to the drivers forced to sign the "Agreement" as the condition of obtaining work as a cab driver.

Judge Garcia: "they obtained a victory after litigation" [by means of summary judgment].

The Facts: It was not a victory. Nobody who knows anything about the Tracy case would call it a "victory." That term is inapplicable to what happened. The lawyers established temporarily what I had already established as of 1986, and what True and the ELC had established as of 1988: that drivers signed to the "Lease Agreement" were eligible for unemployment and workers' compensation benefits notwithstanding the language in the "Lease Agreement" stating they were not eligible. The summary judgment was not necessary to establish what was already established. Moreover, the so-called "victory" was quickly scrapped by means of the settlement agreement(s) which, says Judge Garcia, did not exist. But if the settlement agreement does not exist, neither does Judge Garcia exist.

Judge Garcia: "if the essential premise of your claim is inaccurate, there is no cause of action."

The Facts: The essential premise of my claim is not inaccurate. It is accurate down to the last detail of it. The claim is that True, Ho, their colleagues, and the ELC agreed to TAKE TO TRIAL THE VALIDITY OF THE LEASE AGREEMENT and the law violations committed by the taxicab companies, gain restitution of all the illgotten gains of the taxicab company bandits from all the law violations, and break the "lease" racket once and for all; and instead of doing that, the lawyers used a summary proceeding to establish what vas already established, and then they effected a settlement agreement which scrapped even that much, leaving the "Lease Agreement" in full force and effects and taking us back to where we were before the lawsuit started. That is the gravamen of my complaints those are the claims in my complaints and as it turns out they are understated. If given a chance to amends I will make it clear that we wind up worse than before the Tracy lawsuit. At least before the settlement(s) effected by the unscrupulous lawyers, the "Lease Agreement" was not "legalized" by lawyers purportedly representing taxicab drivers and the public. Now that has been done, and so we are worse off than before. Some "victory"!!!

Judge Garcia: "while I think it's quite noble of you to want to enforce the Internal Revenue Code and...the Revenue and Taxation Code of the State of California...I would just as soon leave it to them [the IRS and the Franchise Tax Board]."

The Facts: Nowhere in my complaints nowhere in my claims, do I state that I am trying to enforce the tax laws. My complaint states that John True and company, in effecting the settlements they effected, put themselves into complicity with tax evasion of their own clients, taxicab drivers, and the taxicab companies they were supposed to be prosecuting for law violations. By doing so, True and company breached their agreement with me and McLean, breached the duty they undertook with the Tracy lawsuits and VIOLATED THE UNFAIR BUSINESS PRACTICES ACT. So, I am not trying to enforce the tax laws. I am doing what the California Supreme Court says I have the right to do: to prosecute, as a private attorney general any practice that can be construed as unethical, unfair, or illegal; but it does not have to be illegal to be an unfair business practice under the broad definition given that term by the California Supreme Court. But more basically, I am doing what first-year law school students are taught that one can do under contract law: I am enforcing a contract made with me by True, Ho, and the ELC. That is what I am doings not enforcing tax laws. I am enforcing a contractual agreement.

Judge Garcia: "It is a little bit troubling to me that you would argue in essence that a lawyer can be held to have breached a contract with a client because they didn't obtain a bench trial, that they obtained relief pursuant to a Motion for Summary Judgment."

The Facts: I was not John True's clients or Chris Ho's clients or the ELC's clients or anybody else's client. I am not now and never have been a client of any of the lawyers who represented taxicab drivers and the general public in the Tracy case. Nor did those lawyers obtain relief pursuant to a motion for summary judgment. One can only obtain relief when there is something to be relieved of. The lawyers in the Tracy case got a decision that cab drivers were entitled to what they already were established to be entitled to: established by me, by John True, by Chris Ho, and by the ELC. So, it was not "relief." It was merely a statement of the court as to what was already established. Moreover, my claim is that no sooner had the lawyers obtained the "relief" than they junked it, so that there vas no longer any "relief." And before they committed that enormously damaging act, at least the "relief" did exist.

Judge Garcia: "the problem I have is very simple. How does a lawyer breach an obligation to a client when they obtain relief through summary judgment as opposed to trying the case?"

The Pacts: That is not the problem or the issue because I was not the client. And the way that True and Ha and the ELC breached their obligation me, as the other party to the contract and not as a clients was to do a severely limited motion for summary judgment that did not reach the point they agreed to reach and the issues they agreed to try, and then afterward sold out not only the lawsuit but also the summary judgment decision and thus the whole purpose of the lawsuit. That was how they breached their obligations not only to me, but also to Alfred Scott McLean, taxicab drivers, and the general public. The trouble is that Judge Garcia did not state the problem even close to what it actually is.

Judge Garcia: "Because assumptively if they [True and the other lawyer defendants] obtained relief through summary judgments they obtained all the relief they would have been entitled to have at the trial."

The Facts: The lawyers did not obtain relief through summary judgment. And the relief they would have been entitled to either on summary judgment or at trials HAD THEY PURSUED THE RELIEF, is as follows:

· Invalidation of the "Lease Agreement" altogether by decree of the Court that the "Lease Agreement" is an illegal fraud and may no longer be used by the taxicab companies.

· Declaration of the Court that taxicab drivers signed to the "Lease Agreement" were and are employees for all legal purposes, not just for purposes of unemployment and workers' compensation benefits.

· An injunction enjoining the taxicab companies from violating the provisions of the Labor Code, the Unemployment Insurance Act, and the Workers Compensation Act, cited in the complaint.

· In short, OUTLAWING OF THE ENTIRE LEASE AGREEMENT SCHEME AND THE RE-ESTABLISHMENT OF THE CLASSIFICATION AND WORK STATUS OP TAXICAB DRIVERS THAT THEY ENJOYED PRIOR TO THE INSTITUTION OF THE LEASE AGREEMENT RACKET: THAT OF EMPLOYEES. The lawyers did not obtain that relief through summary judgments though that is exactly the relief they promised to obtain. And since they did not obtain the relief to which they would have been entitled by summary judgment, they did not obtain the relief to which they would have been entitled at trial.

91. Now I state my purpose in writing a 64-page declaration and attaching to it 28 exhibits. I have done so in the good faith belief that Judge Garcia not only abused his judicial discretion, but also exceeded his judicial authority, at the hearing of May 9, 2000, and in his sustaining of John True's demurrer and in his ordering judgment for True. I have done so in the good faith belief that Judge Garcia has misstated almost everything there is to misstate factually and that Judge Garcia has totally misapplied the law to this action. My ultimate purpose in going to such great lengths to convince Judge Garcia that he is wrong, and to convince Judge Garcia to reverse himself, is to prevent the multiplicity of litigation which will inevitably occur if Judge Garcia does not reverse himself.

92. I made an absolute commitment to Alfred Scott McLean that John Truest Chris Ho, their colleagues, and the ELC, would be prosecuted for selling out the Tracy lawsuit. Unlike True, Ho, their colleagues, and the ELC I live up to my commitments. John True and his colleagues will be prosecuted.

I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on June 4, 2000' at San Francisco, California.

                                (signed)

 

                             BURTON H. WOLFE

 

 

 

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