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                                      In Pro Per

                                                           A Short Story

  Bent over almost double I'm trying to gently caress my excruciatingly painful stomach with my left hand as I weakly attempt to steer my car with my right. I'm in San Diego on Hiwy 5 north slowly heading to Scripps Memorial Hospital a few miles up the road in Encinitas. I've never been to this hospital. I've only noticed it in passing on the Freeway. But I'm real close to passing out and I need medical help. I've had an upset stomach for the past five days but last night the pain threshold shot thru the roof. I've been awake all night and when the pain hadn't subsided by this morning I decided to drive myself to the hospital. My roommate wasn't available because she's visiting her relatives back East and I didn't think to call anyone else. I just crawled into my jalopy, left my home in Del Mar and drove north towards what I hoped was the closest hospital

  I miraculously made it and checked myself in to the hospital at 3:25 in the afternoon of Sunday, Feb 6, 1994. They x-rayed my stomach and kept me over night for observation. At 8am the next morning they gave me a berium enema and again x-rayed my stomach. At 9am a doctor told me that they had decided that I had a hole in one of my intestines, that he was going to remove approximately a foot of my damaged intestine and that I would have a colostomy bag for the rest of my life. At 10:40am as they were wheeling me into surgery I signed a surgery consent form for an exploratory laporotomy, bowel resection and possible but not probable enterostomy. At that time I mentioned to the surgeon that I had had a small bowel movement this morning. He thought about what I had said and then dismissed it. This would prove to be a crucial miscalculation on his part

  After surgery I briefly woke up in the recovery room and with my eyes closed and mentally in a fog I started patting the right side of my stomach. A nurses voice asked what I was doing and I told her that I was looking for my colostomy bag. She snickered and said, “Oh just go back to sleep. You only had your appendix out. It had ruptured. No bag for you!” I immediately dropped into a dreamless sleep

  I spent four days in hospital recovering and during that time I discovered how close I had come to dying. My condition had been misdiagnosed allowing 48 to 72 hours to elapse after the rupture. By then I had acute peritonitis or an often fatal bacterial infection in the abdomen. According to the doctors the fact that I was in otherwise excellent health is what saved me

  They moved me to a western facing room and by mid-afternoon I started feeling the heat of the afternoon sun as it tried to penetrate the drawn blinds. I asked a nurse to please lift the blinds and let the sun's rays in. She did and my bed was soon bathed in our sun's healing power. I spent the next 3 days enjoying the suns rays while reminiscing and daydreaming about what led me to this place in time

  Six years ago I left San Francisco and followed a pert little blond down the coast to San Diego. Together we rented an apartment in North Park and while she immersed herself in her new job as banquet captain for the San Diego Marriott and Marina Hotel, I once again freelanced as an international tour director. This meant that I'd be gone a week or two and then be back for a week or two. The fact that when I wasn't on the road I was hanging around the house or hitting the beach didn't set too well with her. She suggested that I join the Marriott as a part time banquet waiter. There she figured I'd make new friends and keep out of mischief. I'd once owned a restaurant in San Francisco and understood and respected the role of a waiter. I'd never considered doing what she suggested but the more I thought about it the more it appealed to me. Join a younger, buffed cadre of San Diegans who could educate me about my new environment. Plus it would contribute to harmony in the home

  For the next four years, whenever I wasn't traveling the world, I was in the bowels of the largest hotel in San Diego, schlepping huge banquet trays (often stacked with 10 hot roast beef dinners) to the main banquet hall where as many as 800 conventioneers were seated. I'd then clear the salad and soup plates and schlep a teetering stack of dirty dishes and utensils back to the kitchen. Man I loved every minute of it. I was working as a team with kids half my age and every nationality. At the end of a huge banquet you were exhausted but proud of a job well done. I quickly formed friendships with a bunch of the guys and before long we were hitting the golf links on our days off. San Diego is a golfer's paradise with courses for every skill level and budget.

  So now my pert little blond started complaining about all the time I'm spending on the golf course. I was still enjoying her company so rather than argue with her I decide to flip the switch. I knew she was very good with the public and was very knowledgeable about banquets so I offered to train her and ease her into my travel gigs. She jumped at the chance as I knew she would and I referred her to one of my clients who was looking for a second tour director to assist me with a large group I was scheduled to take to Canada. She was hired and our first stop on that tour was three rowdy days at the Calgary Stamped. Then it was on to the Canadian Rockies where we spent four days at the Banff Springs Hotel. While there the pert little blond accompanied our group to the monumental glaciers (I decided to throw her into the pool and let her handle the group that day on her own. She surfaced as a Katie Ledecky clone and worked the group flawlessly) I joined another tour director and got in a free round on the Hotel's magnificent golf course. I remember I had teed up my ball on the 16^th and was easing into my back swing when my buddy shouted for me to stop. I'm pissed because you never interrupt a back swing when he says, “Look down the fairway.” I did and saw a herd of elk leaving the Bow River on our left, crossing the fairway in front of me and entering the dense forest to our right. What a sight! A memory I'll never forget

  Well needless to say the pert little blond was hooked on my style of travel. She brought a lot of valuable food and beverage skills to the table and before long she had a long list of clients who required her services. She took a leave from the Marriott to pursue the exciting world of travel. In the meantime I was enjoying San Diego so much I didn't want to interrupt my fun life and leave for a week or two on a trip. Our lives were heading in opposite directions so we decide to separate as friends and I moved up to Del Mar. I continued having fun working the Marriott and occasionally taking out a tour group. On one of those intermittent trips to Florida, I meet a lady I'm gonna call Lola. Lola was a concierge at a 5 star resort in Florida and we immediately hit it off on that trip. I lucked out and within a month scored another trip to her hotel. This time we sealed the deal and she decided to move to Del Mar and share my humble abode. With Lola sharing my home I became even more reluctant to travel and started cutting back at both the Marriott and overseas travel. It was time to start looking into starting another business. At that time San Diego had a nascent but rapidly growing sightseeing market and I felt the time was ripe for me, with all my experience in sightseeing and travel, to jump in with something new. So I started performing my due diligence and was researching the San Diego sightseeing scene when my appendix ruptured.

  So now I'm thinking how that medical hiccup had set me back a bit. First I was going to have to recuperate and that would start the moment I returned home to Del Mar. I also knew that Lola was going to be shocked when she returned from visiting her relatives to find out I almost died. Hmm for sure I'm going be getting some special attention. Whoa! Will everything still work down there?! I've gotta find the buzzer and call the doctor and ask. Now is no time for problems in that department. Lola has rapidly climbed to the top of my favorite female friends and lovers list. We've been together for over a year and never once has she said no! Instead we've developed a delightful routine where every morning around 10am she'd get up, shower and then call out from the bedroom, “Ok I'm ready!” Then I'd quickly put aside what ever I was doing and eagerly join her in bed. I never asked because I sure didn't want to jinx anything but I'm sure someone told her the best way to keep your man happy was to treat him every day so he'll be too satisfied to stray. It sure worked for me

  By April, approximately 45 days after the emergency surgery, I was 20 lbs lighter but fit enough to start working for Old Town Trolley Tours as a driver/guide. At that time OTTT was the most popular tour of San Diego and I figured I might as well learn from the best while getting paid in the process. This move enabled me to research and study the history of the San Diego travel market. A very necessary first step towards starting my own company.

  Meanwhile I had to pay for my emergency surgery. In January of 1994 I had dropped my health insurance because my premium had doubled from the previous year. I had gambled that I wouldn't need it, and lost. Fortunately I had savings but before tapping into that I started researching what government programs might be available for the uninsured. By April I learned that I was not eligible for any government assistance and started making good-will payments to Scripps. By June I had settled all bills with the surgeon, the anesthesiologist, the pathologist and the radiologist. They were very happy to accept between 30%-50% of balance due. That left the hospital and it's large bill as my last remaining obligation. I endured a myriad of meetings with Scripps in an attempt to settle the bill while making multiple cash settlement offers. But as hard as I tried Scripps refused to budge and insisted on full payment.

  In July they started playing hardball. And so did I. By then I had all the facts regarding my surgery and proof that the hospital had misdiagnosed my condition resulting in an ugly and unnecessary eight inch scar. Remember that small bowel movement I mentioned to the surgeon as I was being wheeled into surgery? You can't have any type of bowel movement with a perforated intestine but you can with a ruptured appendix. But I also knew that I would be dead but for Scripps Hospital and that they deserved to be paid for their services. Just not the amount that they were asking. There are consequences for mistakes

  On August 2 I receive a letter from a San Diego law firm which informed me that they were now handling the Scripps Hospital billing issue and that I was no longer allowed to contact the hospital. In my mind I lamented the wasted months of good-faith negotiations with Scripps and accepted that I was going to have to start all over again.

  Keep in mind that while all this drama with the hospital was unfolding I was working full time at OTTT and trying to maintain a care-free home life. Lola was 20 years my junior and joined me partially because I offered a sunny and fun filled life. To keep her happy I wanted to make our home drama-free. So I bought an old VW van. Using Rust-oleum I painted the bottom half red and the upper half white and it became my office. I would drive down to Torrey Pines State Beach, a few minutes from my home, park parallel to the ocean and open the passenger side sliding door which faced the ocean. The awesome Pacific Ocean was right in front of me, just past 100 feet of fine sand. I could sit on the floor of my van with my back supported by an outer wall and immerse myself in the natural force of the ocean. It became the place for me to unwind and think. A great move on my part

  Two weeks after starting negotiations with the new law firm I was served Breach of Contract papers. I was being sued and had 30 days to respond or else would lose the case by default. Realizing I was now in unfamiliar territory I contacted a former St. Mary's classmate who was now a very successful attorney in Kona, Hawaii. Jimmy contacted the San Diego firm on my behalf and then informed me that they promised not go for a default judgment as long as we continued to negotiate in good faith. So I stopped worrying about the 30 day deadline and once again tried to negotiate a settlement

  31 days later the Scripps firm broke their word and filed a default judgment. A judge and case number were assigned. If I didn't respond within 30 days, I would lose. I quickly called Jimmy in Kona and though surprised by the duplicity of the Scripps firm he said that the default was binding and that I had to respond. Now I had a decision to make. I was facing a large hospital bill which I knew that I owed; but did I want to add to that bill by hiring an attorney? No. I didn't. So I did what you are always told not to do. I became my own attorney. I went In Pro Per. I asked Jimmy what my next move should be and when he told me I was off and running. I only had a few weeks in which to learn as much as I could about procedure. Then I had to write the legal brief that I was going to submit to the court on my behalf. I moved a portable Olivetti typewriter into my van and spent my free days at my ocean front office, reading law books and attempting to type a cognizant legal brief

  I discovered that the Scripps firm had utilized a tactic frowned upon by the courts known as Quiet Speed. The law books informed me that “the law looks with disfavor upon a party who, regardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary." Thus, the 'quiet speed' of a plaintiff's counsel in seeking a default had been deemed a sufficient ground for setting aside a default.

  I wrote my brief and filed my answer to the default only to have it canceled. I had missed some deadline. But I did have another 30 days to file a correction.

  This was how I spent my next year. Learning the system, making mistakes and then taking the allotted 30 days to correct my mistakes. The first and biggest lesson I learned was that the law is very forgiving and designed for lightweights like me. Make an honest procedural mistake and you have 30 days to correct it. Another big takeaway from all this was that I developed a huge respect for the law and learned how fair and equitable it can be if you are honest and diligent.

  I'm not going to write about all the legal maneuvers and shenanigans that were employed because I don't want to turn this into a 500 page Scott Turow manuscript. But I am going to highlight the big moves

  First I was able to set aside the default and return everything to square one. Then over the next 10 months I wrote 5 legal briefs, some as long as 45 pages, and spent many a day in court before a very fair and patient female judge. When I first started interacting with the Scripps firm they assigned a rookie lawyer to handle my case. By the time we were appearing in court months later I was pleading my case face to face with the female owner of the firm. They had quickly decided that I wasn't going away, that my case had merit and that they had better take me seriously or wind up with egg on their face

  Throughout the Spring of '95 things were moving at a breakneck speed. So fast that at one point I made an almost fatal mistake. I didn't ask for a jury trial. My research hadn't gotten that far down the road so I wasn't aware of, and missed, a crucial deadline to ask for a jury trial. Even worse was the fact that I would be losing the judge that I, over the last year, had endeavored to build a necessary rapport. Instead my case was assigned to a new judge who would hear arguments from both sides and decide the verdict himself, without a jury. After putting up a valiant fight for over a year my fate now rested in the hands of a Pontius Pilate. I went downtown to his courtroom and watched a morning's proceedings. The judge adjudicated at least 40 cases during the mornings session and I immediately knew that my case had no chance in his courtroom. I quickly applied for an Ex Parte order for a jury trial. My application was granted and on April 15, 1995 plaintiff counsel and I met in my original judges chambers to argue whether I should be granted a jury trial. The Scripps boss-lady attorney argued that this was nothing more than a breach of contract case and that we should not be wasting the Court's valuable time and money on such a minor proceeding. I had prepared a 45 page brief complete with pictures of my open wound taken by a friendly nurse a day after my operation. I argued that this 8 inch incision was a mistake due to a misdiagnosis and that if my condition had been diagnosed correctly my surgery should have resulted in a half inch scar at most. I held nothing back and pleaded to be given my Constitutional Right to a jury trial of my peers. I had missed a deadline due to ignorance and that I had not intended to waive my right to a jury trial. I closed my oral argument with a declaration that Scripps Hospital should be made accountable for it's mistakes. Somehow it worked and two days later I was granted my jury trial

  Now the fun began because with a jury trial came subpoena power. I subpoenaed the head of Scripps Hospital, the attending surgeon, the radiologist, the pathologist and anesthesiologist. I figured it would cost the five of them combined almost $100,000 in lost wages while they spent three to four days twiddling their thumbs in court. A week after my subpoenas went out I received a certified letter from Scripps counsel advising me that they had decided to dismiss “all causes of action”. I could only picture what happened during that previous week as I imagined four angry doctors, who had settled their bills with me over a year ago, dragging the Scripps lawyer through hot coals while demanding to know why she had allowed this case to progress to this point. Settle the damn thing and they meant now! The same day I received the dismissal noticed I received registered letters from some of the largest and most influential law firms in San Diego informing me that they represented so and so doctor and said doctor will not be appearing in court due to plaintiff's dismissal of all causes of action. One letterhead listed 55 associates in their office. I must say a very impressive and very intimidating letterhead. If they had been the original Scripps law firm I'm not so sure I would have had the nerve to stand my ground and fight

  Now all that was left to do was to settle up, without any threats, what I owed. But before I consider a settlement I wanted to have a final examination by the doctor who performed the surgery. I wanted reassurances from him that my recovery was progressing normally and that no sponges had been inadvertently left behind. He was very reluctant to meet, especially without an attorney present, but I assured him that I never had a beef with him. He had made a mistake but he did save my life. He relented, we met and he gave me a clean bill of health. That was all I wanted

  So now I'm again back to negotiating with junior associates at the Scripps firm. They tell me that they'll accept the last settlement offer I had made over eight months ago. I tell them that's fine but I'm going to first deduct all the expenses that I incurred fighting their specious suit. This left a balance of $300 owed to Scripps. I sent the hospital a $10 monthly check for the next 30 months. I figured it cost the hospital more to process the check than for what it was worth

  Now that I had taken care of the past it was time to work the future. It's late summer and by then I had left OTTT. Talking for 8 hours a day, five days a week, had put a major strain on my voice. I had learned a lot but I wasn't ready to branch out on my own just yet. I still had some more research to do and lucked out when I joined, as a driver/guide, a transportation company, San Diego Express Charters, which was owned by a retired Navy pilot. I say lucked out because the owner was a very honest and fair individual who had charters to areas of San Diego that I was not familiar with. I had landed in a fun yet educational working environment.

  In the spring of 1996 Lola had had enough of the old guy and after one last delightful “OK I'm ready” moved on. I was getting close to starting a business in San Diego so I figured I'd move closer to downtown. I left picturesque and memorable Del Mar and moved into a small San Diego neighborhood in west Mission Valley called Silver Terrace. From there I was minutes to downtown and less than a mile to Mission Bay. I mention Mission Bay because for the next ten years I religiously walked from my home to Mission Bay where I'd either catch a spectacular sunset or power-walk the 6 mile circumference of the Bay. It was during this time that I fell madly in love with San Diego. I had lived all over the world but never had I experienced the natural beauty, clean air and moderate climate that was San Diego

  One of my fondest memories was walking Mission Bay at sunset and catching glimpses of mullet fish jumping three feet out of the water while the setting sun reflected off their scales. A fisherman buddy said that they were showing off when they jumped like that. One time I was walking the Bay with the water to my left when I heard some splashing behind me. I knew it had to be a mullet jumping and figured he'd be gone by the time I turned around. Then I heard a another splash and then another. I stopped and turned around. I saw a seagull floating on the water and intently staring down into the water. Behind him a mullet suddenly popped his head out of the water and splashed about. The seagull heard the sloshing behind him and immediately turned around but by then the mullet had ducked back under water and dodged the seagulls open mouth lunge. Now the seagull is facing where he had last seen the fish. Sure enough the fish again pops his head out of the water directly behind the floating bird and once more disturbs the water to get the bird's attention. The seagull quickly turns around but once again was too slow to catch the diving mullet. I'm standing there in utter amazement. The mullet was teasing and playing with the seagull. That was the first time I realized that a fish could share human traits and personality. I was completely blown away by the beauty and mystery of nature. It was so easy to fall in love with San Diego

  Today, fourteen years down the road, I can vividly recall outstanding moments and events I experienced while living and thriving in San Diego. When I say 'vividly recall' I mean I can mentally travel back and step 100% into that moment. That's really fun to do on those days I'm catching the morning sun on my Sacramento balcony. Pure rocking chair memories

  But let's get back to the San Diego sightseeing market in 1997. There was one major player servicing the majority of that very large market, Old Town Trolley Tours (OTTT was a national chain which operated in eight US cities). Grey Line San Diego was a very distant second with a smattering of smaller, third tier players rounding out the bottom. In my mind a wide open market with huge upside

  OTTT, driving open air trolleys, offered a two hour narrated continuous loop tour of San Diego and Coronado Island for $26 per person. Along this loop OTTT made 8 stops where a customer could hop on or off and then catch the next trolley passing by. You could get off and on as often as you wanted but you could only go around the loop once. Every other sightseeing tour operator offered a more traditional two hour tour in an enclosed air-conditioned bus which made multiple brief stops

  I decided to take on OTTT. I designed a tour that offered not one but five narrated loops that covered the most popular areas of San Diego, La Jolla, Coronado, Shelter Island and Mission Bay. Many destinations that OTTT didn't cover. You could transfer from one loop to another and go around a loop as many times as you wished all for one price. A one day pass was $16 per person, children under 6 free. A two day pass was $24. A three day pass was $30. I wrote the narrative for all five loops and then hired former OTTT guides. Or I should say San Diego Express hired the guides that I suggested. While I was researching the SD market I started sharing my ideas with the owner of SD Express. He liked what I was thinking and offered to buy six new buses for my sole use and hire and pay the guides through his company. I just had to agree to use him exclusively. This arrangement saved me huge start-up time and costs. My initial expenses were licensing, commercial insurance and printing. I named the new company The Loop Tour

  In the previous two years that I had been working the SD tour market I had made a point to meet and befriend as many of the agents and concierge as I could in all the hotels in town so that when I was ready to launch my tour I would have a receptive audience. And they were.

  We launched in the Fall of 1997 and were an immediate hit. The hotels and clients loved us. But then OTTT started hitting back hard. Their corporate bosses from back east camped out in SD for an extended period as they orchestrated a huge counter attack. Within months we were stuck with ridership numbers that weren't sustainable and after eight months we closed. SD Express came out of the venture in really good shape. The added exposure of The Loop Tour buses drove business their way and they kept all the former OTTT guides I had recommended to service the new business

  Looking back now I realize that my unique concept for a tour was sound (today OTTT has incorporated many of my innovations into their current tours) but I made three structural/operational mistakes

  First OTTT had established a $26 price point. I should have gone with that instead of trying to promote a $16 price with added benefits. People were skeptical that I could offer a better tour at almost half the price. In the eyes of the buyer I had cheapened what I knew to be a superior product

  Secondly besides matching the OTTT price point I should have doubled my agents commission. At $26 I could easily afford to be more generous to my agents. OTTT would never have matched that commission and I'd probably still be in business today. One thing I learned in San Francisco is higher agent commissions always work

  Thirdly I should not have started with a color brochure. When you first start out you are going to make many changes as you massage and tweak your program. A color brochure slows down any changes because it can take up to two weeks to change and print the brochure. Plus it's a very costly endeavor. Print 30,000 color brochures only to throw most of them away when you update. During the eight months we were operating I printed three full color brochures. I could have printed more. Instead I should have started out with a less expensive blue & white brochure until everyone was comfortable with our program and then switch to color

  Finally there was “the nuclear option” that I decided not to invoke because it was too harsh. The California Public Utilities Commission is the government regulatory authority for all sightseeing companies in CA. It has very stringent regulatory guidelines that all companies must follow if they wish to operate in CA. One very crucial rule that is strictly enforced is that all companies printed material must display their current and valid operating permit number or TCP number. In marketing against OTTT I stressed to my hotels that OTTT was a theatrical company masquerading as a sightseeing company and many of my larger hotels bought that argument. Privately I knew that OTTT was not well versed in the PUC bylaws. The biggest mistake I uncovered was that OTTT never included their TCP number in any of their printed material which, if I notified the PUC, would result in the immediate removal of all OTTT brochures in San Diego until the error was corrected. I never exercised this option. Such a move would have resulted in complete chaos in the market. We would have initially noticed a huge increase in traffic as we absorbed OTTT clients but that increase was more than my smaller fledgling company could adequately handle and in the end the SD sightseeing market would have suffered by such a move. I loved this business more than my desire to succeed at any cost so I instead informed a woman that OTTT had surreptitiously sent over to apply for a marketing position in the hopes of planting a spy within my company that she should go back to OTTT and inform their theatrical director of this huge oversight. She went slithering back like the snake she was and informed OTTT. It took the company a full month to print and replace all brochures. A month where I know I could have solidified The Loop Tours position if I had revealed what I knew, but at what cost to the market. At least this way my conscious was clear and I could continue to sleep at night,

  By the spring of 1998 we closed the five loop tour. But The Loop Tour was still in business. One of my loops had been to the Barona Casino, a huge resort and casino 40 minutes north east of downtown SD owned and operated by the Barona Band of Mission Indians. I had sold them on being part of my tour package and they in turn had purchased the back panel on my brochure to promote their casino. I kept that one loop operating and provided continuous daily shuttle service to Barona from downtown SD. A very lucrative contract for me and a prime revenue stream for the Casino

  While operating the five loops I quickly discovered that the La Jolla loop was the most popular and was a destination that OTTT did not offer. So I decided to capitalize on that very attractive market. First I contacted a transportation company up the coast in Huntington Beach and leased one of their motorized Cable Cars for the summer. I positioned this Cable Car in La Jolla and ran a 'Ride All Day for $3' continuous loop seven stop narrated tour of La Jolla Village and The Cove on my newly minted The La Jolla Cable Car. While this was operating I was negotiating with SD Express to buy one of their smaller buses nicknamed Stubby. I was ready to get my own PUC license and start hiring my own employees. After purchasing Stubby I completely remodeled and upgraded the interior and built a shelf above the driver where I put a TV set with a built in VHS player. Then I approached every business that was on the Cable Car loop and informed them that besides operating the LJCC I was going to be operating the only daily, continuous loop shuttle from downtown SD to La Jolla Village and was naming it The La Jolla Shuttle (LJS). My guests would be paying $6 in each direction, a huge savings from the current $30 plus taxi ride. And would these LJ businesses be interested in advertising on my shuttle? For Free! I would video tape their establishment and include it in a master tape that would run continuously inside my shuttle on my VHS player. In addition all my guests will receive a La Jolla Shuttle map titled “La Jolla's Little Secrets” which promoted the different establishments that advertised with me. All I asked in return was that the establishment offer a generous discount to my clients when they presented you with my map. More than 18 shops and boutiques signed up for my 'Passport to Discounts' and in the fall of 1998 The La Jolla Shuttle began operating

  With the start of the LJS I decided to close the LJ Cable Car. It had been a fun summer operating that tour in LJ but the cost of leasing the vehicle outweighed the benefits. But I did learn a very valuable lesson about that tour. Kids really enjoyed riding the Cable Car. One mother I interviewed said that of everything her family had experienced in San Diego, her six year old son had enjoyed The La Jolla Cable Car the most. For some strange reason that comment got me thinking about creating and writing an illustrated children's book with a cable car as the main character. I played with that idea for the next two years as I concentrated on building my sightseeing/transportation business.

(WC6005

                                                             To be continued at King Porte