Preview
Edward McCutchan (SBN 119376)
SUNDERLAND | McCUTCHAN, LLP
1083 Vine Street, Suite 907
Healdsburg, California 95448
Telephone: (707) 433-0377
Facsimile: (707) 433-0379
Attorneys for Defendant
JUSTIN POENG SUED AS DOE 11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA
RICHARD ABEL, an individual,
Plaintiff,
vs.
B. EDWARD McCUTCHAN, JR. an
LLP, a general partnership; and DOES 1
through 100, inclusive,
Defendants.
)
)
)
individual; SUNDERLAND | MeCUTCHAN, } Dept.: 17
)
)
)
)
CASE NO. SCV-263456
PROOF OF SERVICE
Hearing Date: June 29, 2022
Time: 3:00 p.m.
Assigned For All Purposes to the
Honorable Arthur A. Wick
Dept. 17
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PROOF OF SERVICEPROOF OF SERVICE
(CCP sections 1011, 1012, 1012.5, 1013)
STATE OF CALIFORNIA _ )
) ss.
COUNTY OF SAN DIEGO)
Lam a citizen of the United States and a resident of the County aforesaid; I am over the age of
18 years and not a party to the within action; my business address is: 1083 Vine Street, Suite
907, Healdsburg, California 95448.
On this date, May l ?_, 2022, I served the within FILED (FACE PAGES) WITH
ASSIGNED HEARING DATE OF JUSTIN POENG’S NOTICE OF MOTION TO
DISMISS PLAINTIFF RICHARD ABEL’S FIRST AMENDED COMPLAINT,
MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION OF JUSTIN
POENG, REQUEST FOR JUDICIAL NOTICE on the interested parties in said action,
including a true copy thereof, and served the same on the parties/counsel addressed as follows:
PLEASE SEE ATTACHED SERVICE LIST
The following is the procedure in which service of this document was affected:
XX U.S. Postal Service - placing such envelope(s) with postage thereon fully prepaid
in the designated area for outgoing mail in accordance with this office’s practice,
whereby the mail is deposited in a U.S. mailbox in the City of San Diego,
California, after the close of the day's business.
XX Electronic Mail - I transmitted such documents(s) to the addressees at the below
E-Mail addresses:
Facsimile - I transmitted such documents(s) to the addressee(s) at the following
facsimile number(s):
One Legal’s electronic service program. Using One Legal’s electronic
transmission program, a true and correct copy of the documents was served on
all counsel by e-mailing a copy to each addressee named below.
Personal Service - I caused to be delivered such envelope(s) to the addressee(s)
at the address(es) set forth below.
I declare under penalty of perjury that the foregoing is true and correct and this
document is executed at Healdsburg, California on May & » 2022
EDWARD MeCUTCHAY
PROOF OF SERVICESERVICE LIST
Abel v. McCutchan, et al.
Sonoma County Superior Court Case No. SCV-263456
Plaintiff in Pro Per: Richard Abel
Richard Abel USPS FIRST CLASS MAIL — ONLY
707 Hahman Drive, #9301
Santa Rosa, CA 95405-9301
Tel: (707) 340-3894
E-Mail: pererel(@gmail.com
Attorneys for Defendants: Sunderland | McCutchan, Inc., Sunderland | McCutchan, LLP,
B. Edward McCutchan, Jr.
Joseph S. Picchi, Esq. ELECTRONIC SERVICE —- ONLY
Aaron T. Schultz, Esq.
Galloway, Lucchese, Everson & Picchi
A Professional Corporation
2300 Contra Costa Blvd., Suite 350
Pleasant Hill, CA 94523-2398
Tel: (925) 930-9090
Fax: (925) 930-9035
E-Mail: aschultz@glattys.com
PROOF OF SERVICEELECTRONICALLY FILED
Edward McCutchan (SBN 119376) Superior Court of California
SUNDERLAND | McCUTCHAN, LLP County of Sonoma
1083 Vine Street, Suite 907 __ 9/29/2022 11:26 AM
Healdsburg, California 95448 Arlene D. Junior, Clerk of the Court
Telephone: (707) 433-0377 By: Lorena Deloza, Deputy Clerk
Facsimile: (707) 433-0379
Attomeys for Defendant
JUSTIN POENG SUED AS DOE I1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA
RICHARD ABEL, an individual, CASE NO, SCV-263456
Plaintiff, DEFENDANT JUSTIN POENG’S
DECLARATION IN SUPPORT OF
MOTION TO DISMISS PLAINTIFF
v8, RICHARD ABEL’S FIRST AMENDED
COMPLAINT (CCP SECTION 583.210 et
B, EDWARD McCUTCHAN, JR. an seq.)
individual; SUNDERLAND | MeCUTCHAN, } jo Dat 6/29/22
LLP, a general partnership; and DOES 1 Time: 3:00 p.
through 100, inclusive, Dept.: ye P17
Defendanis.
I, Justin Poeng, declare as follows:
1. Jama defendant sued as DOE 11 by Richard Abel in his First Amended Complaint
in this matter. If called as a witness, I am competent to testify to the following facts.
2. Iwas served with the November 2, 2018 Summons, First Amended Complaint and.
022! with respect to Richard Abel’s claims in
my DOE amendment on or about M:
Sonoma County Superior Court Case No. SCY-263456.
I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct to the best of my knowledge.
MW
‘DEFENDANT JUSTIN POENG’S DECLARATION IN SUPPORT OF MOTION TO DISMISS PLAINTIFF RICHARD ABEL'S FIRST
AMENDED COMPLAINT (CCP SECTION 583.210 et seq.)
: 1Edward McCutchan (SBN 119376) ELECTRONICALLY FILED
SUNDERLAND | McCUTCHAN, LLP Superior Court of California
1083 Vine Street, Suite 907 County of Sonoma
. : : 3/29/2022 11:26 AM
Healdsburg, California 95448 Arlene D. Junior, Clerk of the Court
Telephone: (707) 433-0377 By: Lorena Deloza, Deputy Clerk
Facsimile: (707) 433-0379
Attorneys for Defendant
JUSTIN POENG AS DOE 11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA
RICHARD ABEL, an individual, CASE NO, SCV-263456
Defendants.
)
Plaintiff, DEFENDANT JUSTIN POENG’S
MEMORANDUM OF POINTS AND
; AUTHORITIES IN SUPPORT OF
vs. MOTION TO DISMISS RICHARD
) ABEL’S FIRST AMENDED
B, EDWARD McCUTCHAN, JR. an ) COMPLAINTAGAINST HIM (CCP
individual; SUNDERLAND | McCUTCHAN, ) SECTION 583.210 et seq.)
LLP, a general partnership; and DOES 1 3 Date:6/29/22
through 100, inclusive, } Time: 3,00 p.m.
Dept.: 1
I
STATEMENT OF THE PROCEEDINGS
Richard Abel (hereinafter “ABEL”), plaintiff in propria persona, filed this action on
November 2; 2018. (See accompanying request for judicial notice, item 1). ABEL named -
moving party, Justin Poeng as DOE 11 to this action on December 9, 2021, (See accompanying
request for judicial notice, jtem 2). Defendant, Justin Poeng sued as DOE 11 herein was served
with the November 2, 2018 issued Summons, the November 18, 2020 Complaint, and other
documents in this action on or about March 14, 2022. (See accompanying declaration of Justin
Poeng).
DEFENDANT JUSTIN POENG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.)
1Edward McCutchan (SBN 119376) ELECTRONICALLY FILED
SUNDERLAND | McCUTCHAN, LLP Superior Court of California
i re i County of Sonoma
es ne Seer Sue 3148 3/29/2022 11:26 AM
ealdsbure, Vailtorma Arlene D. Junior, Clerk of the Court
Telephone: (707) 433-0377 By: Lorena Deloza, Deputy Clerk
Facsimile: (707) 433-0379 TENTATIVE RULINGS may be
obtained between 2:00 p.m. and 4:88 pam.
Attorneys for Defendant “ the court day price to the seheduled
caring af www.sonoms.courts.ca.20v
JUSTIN POENG SUED AS DOE 11 OR by phone at (707) 821-4006
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA
RICHARD ABEL, an individual, CASE NO. SCV-263456
Plaintiff, DEFENDANT JUSTIN POENG’S NOTICH
OF MOTION TO DISMISS PLAINTIFF
RICHARD ABEL’S FIRST AMENDED
vs. 3 COMPLAINT (CCP SECTION 583.210 et
seq.
B. EDWARD McCUTCHAN, JR. an . 6/29/22
individual; SUNDERLAND | McCUTCHAN, Hearing ae
LLP, a general partnership; and DOES 1 Dept: oP pm.
through 100, inclusive, ”
Defendants.
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
6/29/22 3:00
PLEASE TAKE NOTICE that on » 2022 at a.m.
in Department” of the Sonoma County Superior Court located at 3055 Cleveland Avenue,
Santa Rosa, California 95403, Defendant, JUSTIN POENG sued herein as DOE 11 (hereinafter.
“Defendant), will have his motion to dismiss Richard Abel’s First Amended Complaint against
him dismissed under CCP § 583.210 et seq., Weatherby v. Van Diest (1991) 233 Cal. App. 3d
506 and case law.
This action was filed on November 2, 2018. Defendant, Poeng, was named as DOE 11
on December 9, 2022 which is 1133 days from the November 2, 2018 filing of this action which
equates to three (3) years, 1 month and 7 days from the initial filing of this case and the
DEFENDANT JUSTIN POENG’S NOTICE OF MOTION TO DISMISS PLAINTIFF
RICHARD ABEL’S FIRST AMENDED COMPLAINT (CCP SECTION 583.210 et. seq.)
1Edward McCutchan (SBN 119376) ELECTRONICALLY FILED
SUNDERLAND | McCUTCHAN, LLP Superior Court of California
1083 Vine Street, Suite 907 see sea
Healdsburg, California 95448 Arlene D. Junior, Clerk of the Court
Telephone: (707) 433-0377 By: Lorena Deloza, Deputy Clerk
Facsimile: (707) 433-0379
Attorneys for Defendant
JUSTIN POENG SUED AS DOE 11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA
RICHARD ABEL, an individual, CASE NO. SCV-263456
Defendants.
2
Plaintiff, } DEFENDANT JUSTIN POENG’S
REQUEST FOR JUDICIAL NOTICE
vs. IN SUPPORT OF HIS MOTION TO
DISMISS PLAINTIFY’S FIRST
B. EDWARD McCUTCHAN, JR. an ) AMENDED COMPLAINT (CCP
individual; SUNDERLAND | McCUTCHAN, SECTION 583.210 et seq.)
LLP, a general partnership; and DOES 1 .
through 100, inclusive, J Hearing Date: Gr2si22
J ime: 3 0pm.
} Dept.:
)
TO THE COURT, ALL PARTIES HEREIN, AND THEIR ATTORNEYS OF RECORD:
Pursuant to Evidence Code section 450 et seq., Defendant, JUSTIN POENG sued as
DOE 11 herein requests that this court take judicial notice of the following facts and documents
in this action.
1. The November 2, 2018 filed complaint by Richard Abel in this action.
Relevance: Richard Abel failed to comply with CCP section 583.210 et seq., Weatherby v. Van
Diest (1991) 233 Cal. App. 3d 506 and case law in serving Justin Poeng sued as DOE 11 herein,
within the mandatory three (3) years of filing and returning the summons to the court
DEFENDANT JUSTIN POENG’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HIS MOTION
TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (CCP SECTION 583.210 et seq.)
1
Preview
Edward McCutchan (SBN 119376) SUNDERLAND | McCUTCHAN, LLP 1083 Vine Street, Suite 907 Healdsburg, California 95448 Telephone: (707) 433-0377 Facsimile: (707) 433-0379 Attorneys for Defendant JUSTIN POENG SUED AS DOE 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA RICHARD ABEL, an individual, Plaintiff, vs. B. EDWARD McCUTCHAN, JR. an LLP, a general partnership; and DOES 1 through 100, inclusive, Defendants. ) ) ) individual; SUNDERLAND | MeCUTCHAN, } Dept.: 17 ) ) ) ) CASE NO. SCV-263456 PROOF OF SERVICE Hearing Date: June 29, 2022 Time: 3:00 p.m. Assigned For All Purposes to the Honorable Arthur A. Wick Dept. 17 Ml Ml MI HI Ml Ml HI HI HM PROOF OF SERVICEPROOF OF SERVICE (CCP sections 1011, 1012, 1012.5, 1013) STATE OF CALIFORNIA _ ) ) ss. COUNTY OF SAN DIEGO) Lam a citizen of the United States and a resident of the County aforesaid; I am over the age of 18 years and not a party to the within action; my business address is: 1083 Vine Street, Suite 907, Healdsburg, California 95448. On this date, May l ?_, 2022, I served the within FILED (FACE PAGES) WITH ASSIGNED HEARING DATE OF JUSTIN POENG’S NOTICE OF MOTION TO DISMISS PLAINTIFF RICHARD ABEL’S FIRST AMENDED COMPLAINT, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION OF JUSTIN POENG, REQUEST FOR JUDICIAL NOTICE on the interested parties in said action, including a true copy thereof, and served the same on the parties/counsel addressed as follows: PLEASE SEE ATTACHED SERVICE LIST The following is the procedure in which service of this document was affected: XX U.S. Postal Service - placing such envelope(s) with postage thereon fully prepaid in the designated area for outgoing mail in accordance with this office’s practice, whereby the mail is deposited in a U.S. mailbox in the City of San Diego, California, after the close of the day's business. XX Electronic Mail - I transmitted such documents(s) to the addressees at the below E-Mail addresses: Facsimile - I transmitted such documents(s) to the addressee(s) at the following facsimile number(s): One Legal’s electronic service program. Using One Legal’s electronic transmission program, a true and correct copy of the documents was served on all counsel by e-mailing a copy to each addressee named below. Personal Service - I caused to be delivered such envelope(s) to the addressee(s) at the address(es) set forth below. I declare under penalty of perjury that the foregoing is true and correct and this document is executed at Healdsburg, California on May & » 2022 EDWARD MeCUTCHAY PROOF OF SERVICESERVICE LIST Abel v. McCutchan, et al. Sonoma County Superior Court Case No. SCV-263456 Plaintiff in Pro Per: Richard Abel Richard Abel USPS FIRST CLASS MAIL — ONLY 707 Hahman Drive, #9301 Santa Rosa, CA 95405-9301 Tel: (707) 340-3894 E-Mail: pererel(@gmail.com Attorneys for Defendants: Sunderland | McCutchan, Inc., Sunderland | McCutchan, LLP, B. Edward McCutchan, Jr. Joseph S. Picchi, Esq. ELECTRONIC SERVICE —- ONLY Aaron T. Schultz, Esq. Galloway, Lucchese, Everson & Picchi A Professional Corporation 2300 Contra Costa Blvd., Suite 350 Pleasant Hill, CA 94523-2398 Tel: (925) 930-9090 Fax: (925) 930-9035 E-Mail: aschultz@glattys.com PROOF OF SERVICEELECTRONICALLY FILED Edward McCutchan (SBN 119376) Superior Court of California SUNDERLAND | McCUTCHAN, LLP County of Sonoma 1083 Vine Street, Suite 907 __ 9/29/2022 11:26 AM Healdsburg, California 95448 Arlene D. Junior, Clerk of the Court Telephone: (707) 433-0377 By: Lorena Deloza, Deputy Clerk Facsimile: (707) 433-0379 Attomeys for Defendant JUSTIN POENG SUED AS DOE I1 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA RICHARD ABEL, an individual, CASE NO, SCV-263456 Plaintiff, DEFENDANT JUSTIN POENG’S DECLARATION IN SUPPORT OF MOTION TO DISMISS PLAINTIFF v8, RICHARD ABEL’S FIRST AMENDED COMPLAINT (CCP SECTION 583.210 et B, EDWARD McCUTCHAN, JR. an seq.) individual; SUNDERLAND | MeCUTCHAN, } jo Dat 6/29/22 LLP, a general partnership; and DOES 1 Time: 3:00 p. through 100, inclusive, Dept.: ye P17 Defendanis. I, Justin Poeng, declare as follows: 1. Jama defendant sued as DOE 11 by Richard Abel in his First Amended Complaint in this matter. If called as a witness, I am competent to testify to the following facts. 2. Iwas served with the November 2, 2018 Summons, First Amended Complaint and. 022! with respect to Richard Abel’s claims in my DOE amendment on or about M: Sonoma County Superior Court Case No. SCY-263456. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct to the best of my knowledge. MW ‘DEFENDANT JUSTIN POENG’S DECLARATION IN SUPPORT OF MOTION TO DISMISS PLAINTIFF RICHARD ABEL'S FIRST AMENDED COMPLAINT (CCP SECTION 583.210 et seq.) : 1Edward McCutchan (SBN 119376) ELECTRONICALLY FILED SUNDERLAND | McCUTCHAN, LLP Superior Court of California 1083 Vine Street, Suite 907 County of Sonoma . : : 3/29/2022 11:26 AM Healdsburg, California 95448 Arlene D. Junior, Clerk of the Court Telephone: (707) 433-0377 By: Lorena Deloza, Deputy Clerk Facsimile: (707) 433-0379 Attorneys for Defendant JUSTIN POENG AS DOE 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA RICHARD ABEL, an individual, CASE NO, SCV-263456 Defendants. ) Plaintiff, DEFENDANT JUSTIN POENG’S MEMORANDUM OF POINTS AND ; AUTHORITIES IN SUPPORT OF vs. MOTION TO DISMISS RICHARD ) ABEL’S FIRST AMENDED B, EDWARD McCUTCHAN, JR. an ) COMPLAINTAGAINST HIM (CCP individual; SUNDERLAND | McCUTCHAN, ) SECTION 583.210 et seq.) LLP, a general partnership; and DOES 1 3 Date:6/29/22 through 100, inclusive, } Time: 3,00 p.m. Dept.: 1 I STATEMENT OF THE PROCEEDINGS Richard Abel (hereinafter “ABEL”), plaintiff in propria persona, filed this action on November 2; 2018. (See accompanying request for judicial notice, item 1). ABEL named - moving party, Justin Poeng as DOE 11 to this action on December 9, 2021, (See accompanying request for judicial notice, jtem 2). Defendant, Justin Poeng sued as DOE 11 herein was served with the November 2, 2018 issued Summons, the November 18, 2020 Complaint, and other documents in this action on or about March 14, 2022. (See accompanying declaration of Justin Poeng). DEFENDANT JUSTIN POENG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS RICHARD ABEL’S FIRST AMENDED COMPLAINTAGAINST HIM (CCP SECTION 583.210 et seq.) 1Edward McCutchan (SBN 119376) ELECTRONICALLY FILED SUNDERLAND | McCUTCHAN, LLP Superior Court of California i re i County of Sonoma es ne Seer Sue 3148 3/29/2022 11:26 AM ealdsbure, Vailtorma Arlene D. Junior, Clerk of the Court Telephone: (707) 433-0377 By: Lorena Deloza, Deputy Clerk Facsimile: (707) 433-0379 TENTATIVE RULINGS may be obtained between 2:00 p.m. and 4:88 pam. Attorneys for Defendant “ the court day price to the seheduled caring af www.sonoms.courts.ca.20v JUSTIN POENG SUED AS DOE 11 OR by phone at (707) 821-4006 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA RICHARD ABEL, an individual, CASE NO. SCV-263456 Plaintiff, DEFENDANT JUSTIN POENG’S NOTICH OF MOTION TO DISMISS PLAINTIFF RICHARD ABEL’S FIRST AMENDED vs. 3 COMPLAINT (CCP SECTION 583.210 et seq. B. EDWARD McCUTCHAN, JR. an . 6/29/22 individual; SUNDERLAND | McCUTCHAN, Hearing ae LLP, a general partnership; and DOES 1 Dept: oP pm. through 100, inclusive, ” Defendants. TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 6/29/22 3:00 PLEASE TAKE NOTICE that on » 2022 at a.m. in Department” of the Sonoma County Superior Court located at 3055 Cleveland Avenue, Santa Rosa, California 95403, Defendant, JUSTIN POENG sued herein as DOE 11 (hereinafter. “Defendant), will have his motion to dismiss Richard Abel’s First Amended Complaint against him dismissed under CCP § 583.210 et seq., Weatherby v. Van Diest (1991) 233 Cal. App. 3d 506 and case law. This action was filed on November 2, 2018. Defendant, Poeng, was named as DOE 11 on December 9, 2022 which is 1133 days from the November 2, 2018 filing of this action which equates to three (3) years, 1 month and 7 days from the initial filing of this case and the DEFENDANT JUSTIN POENG’S NOTICE OF MOTION TO DISMISS PLAINTIFF RICHARD ABEL’S FIRST AMENDED COMPLAINT (CCP SECTION 583.210 et. seq.) 1Edward McCutchan (SBN 119376) ELECTRONICALLY FILED SUNDERLAND | McCUTCHAN, LLP Superior Court of California 1083 Vine Street, Suite 907 see sea Healdsburg, California 95448 Arlene D. Junior, Clerk of the Court Telephone: (707) 433-0377 By: Lorena Deloza, Deputy Clerk Facsimile: (707) 433-0379 Attorneys for Defendant JUSTIN POENG SUED AS DOE 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA RICHARD ABEL, an individual, CASE NO. SCV-263456 Defendants. 2 Plaintiff, } DEFENDANT JUSTIN POENG’S REQUEST FOR JUDICIAL NOTICE vs. IN SUPPORT OF HIS MOTION TO DISMISS PLAINTIFY’S FIRST B. EDWARD McCUTCHAN, JR. an ) AMENDED COMPLAINT (CCP individual; SUNDERLAND | McCUTCHAN, SECTION 583.210 et seq.) LLP, a general partnership; and DOES 1 . through 100, inclusive, J Hearing Date: Gr2si22 J ime: 3 0pm. } Dept.: ) TO THE COURT, ALL PARTIES HEREIN, AND THEIR ATTORNEYS OF RECORD: Pursuant to Evidence Code section 450 et seq., Defendant, JUSTIN POENG sued as DOE 11 herein requests that this court take judicial notice of the following facts and documents in this action. 1. The November 2, 2018 filed complaint by Richard Abel in this action. Relevance: Richard Abel failed to comply with CCP section 583.210 et seq., Weatherby v. Van Diest (1991) 233 Cal. App. 3d 506 and case law in serving Justin Poeng sued as DOE 11 herein, within the mandatory three (3) years of filing and returning the summons to the court DEFENDANT JUSTIN POENG’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HIS MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (CCP SECTION 583.210 et seq.) 1