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LAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
TEL: 415-929-3197 * FAX: 415-929-3476
R. MICHAEL LIEBERMAN (SBN 120831)
LAW OFFICES OF R. MICHAEL LIEBERMAN
1398 POST STREET
SAN FRANCISCO, CALIFORNIA 94109
TELEPHONE: (415) 929-3197
FAX: (415) 929-3476
Attorneys for Defendants
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
09/04/2018
Clerk of the Court
BY: VANESSA WU
Deputy Clerk
CARROLL HENRY and CHARLES MCMACKIN
SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
TIMOTHY A.
individual
BONNICI, an
Plaintiff,
vs.
CHARLES MCMACKIN, an
individual, CARROLL HENRY, an
individual, and DOES I TO 200,
inclusive,
Defendants.
NO. CGC 17-557688
DEFENDANTS’ SUPPLEMENTARY
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
PLAINTIFF’S MOTION FOR RELIEF
FROM JUDGMENT PURSUANT TO
§473(B)
DATE: SEPTEMBER 4, 2018
TIME: 9:30 A.M.
DEPARTMENT NO.: 302
TRIAL DATE: NONE SET
ATTACHED DOCUMENTS: NO
1/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO §473(B)LAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94209
TEL: 415-929-3197 # FAX! 415-929-3476
IL. INTRODUCTION
Defendants CARROLL HENRY (“HENRY”) and CHARLES MCMACKIN
(“MCMACKIN”) respectfully submit this Supplementary Memorandum in
Opposition to plaintiff TIMOTHY A. BONNICI’s Motion for Relief from
Judgment.
IL. STATEMENT OF THE FACTS
Defendants’ counsel received in the mail an Amended Attorney
Affidavit of Fault dated August 16, 2018. The Amended Attorney Affidavit
came without a Proof of Service in an envelope without postage with a
return address of Western Attorney Services, 75 Columbia Square, San
Francisco, CA 94103. Defendants’ counsel has no idea when the envelope
arrived at defense counsel’s office.
Plaintiffs counsel’s Amended Attorney Affidavit of Fault contains
the following operative language of fault:
i 43, 1. 5: “my office prepared and I reviewed, an opposition...”
43, 1. 10: “I did not sufficiently monitor my office’s handling of our
response...”
2/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO §473(B)LAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
TEL: 415-929-3197 © FAX: 415-929-3476
N ®@ Go FF OBO DN
44, 1. 14: “again through failure on my part to monitor the actions,
or rather the inaction, of my office to follow the instructions of the
court, the complaint was no amended.”
44, 1. 16: “my office failed to protect the interests of the plaintiff...”
44, 1. 18: “I am informed and believe that the second demurrer was
sustained without leave to amend, on the basis of my office not
having filed an opposition.”
44, lL. 21: “The decision to rely on our original opposition was mine
alone, and was clearly mistaken.”
95, 1. 24: “in allowing the applicable statutes of limitation to lapse,
and in failing to adhere to the rules of pleading, ... my office failed
the plaintiff.”
45, 1. 25: “I understand that Iam responsible for the actions, or as in
this case, inaction of my office.”
45, 1. 1: “Any problems with the operation of my office, including,
but not limited to, not limited to calendaring of hearings and
response times, fall to me, and I accept this responsibility and admit
my failure.”
3/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO §473(B)TEL: 415-929-3197 * FAX: 415-929-3476
LAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
25
26
I. ARGUMENT
Plaintiff BONNICI argues that this Court should set aside its
Judgment against him because it was caused by the mistake, inadvertence,
surprise or neglect of his attorney, Gino J. Molinari.
Defendants respectfully submit that plaintiff BONNICI’s counsel’s
Amended Declaration does not alter the result that this Court reached in
its earlier tentative ruling and that this Court should deny plaintiff
BONNICI’s Motion for the following reasons.
1. C.C.P. §473(b) requires that a Motion for Relief from
Judgment “shall be made within a reasonable time, in no case exceeding
six months, after the judgment, dismissal, order or proceeding was taken.”
In this case, plaintiff BONNICI didn’t make his Motion within a
reasonable time. While plaintiff BONNICI appears to have drafted this
Motion on April 27, 2018, he did not file it for almost a month (i.e., on
May 21, 2018) and did not serve it for another two months (i.e., on July
16, 2018). Plaintiff BONNICI did not set this Motion for hearing for over
six months after the Court granted defendants’ Demurrer. Indeed, it was
set for hearing over six months after the Court entered Judgment against
plaintiff BONNICI.
4/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO §473(B)LAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
TEL! 415-929-3197 © FAX: 415-929-3476
Defendants respectfully submit that plaintiff BONNICI did not make
this Motion for Relief from Judgment within a “reasonable time.”
2. C.C.P. §473(b) provides that relief from Judgment under that
section is not required when “the court finds that the default or dismissal was
not in fact caused by the attorney’s mistake, inadvertence, surprise, or
neglect.”
In this case, defendants respectfully submit that the Judgment against
plaintiff BONNICI was not the result of Mr. Molinari’s “mistake, inadvertence,
surprise, or neglect.” Rather, it was the result of Mr. Molinari’s intentional
non-opposition to defendants’ Demurrer in the belief that plaintiff BONNICI
could raise the same issues in his Cross-Complaint in HENRY’s original case
against him. That would explain why Mr. Molinari drafted this Motion in April
of 2018, but did not serve it until just recently, after the Court in HENRY’s
original case threw out plaintiff BONNICI’s Cross-Complaint because of Mr.
Molinari’s failure to file an Opposition to HENRY’s Demurrer in that case.
Indeed, in his Amended Declaration at 94, line 21, Mr. Molinari specifically
admits that “The decision to rely on our original opposition was mine alonc,
and was clearly mistaken.” Courts have held that relief under C.C.P. §473(b)
is not available when the attorney’s omission or failure to respond was a
deliberate tactical choice. See State Farm Fire & Cas. Co. v. Pietak, 90
Cal.App.4" 600, 609-610, 109 Cal.Rptr.2d 256, 262 (2001). In that case, as in
the instant case, the tactical choice was to deal with the issues in a separate
case.
5/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO §473(B)TEL: 415-929-3197 * FAX: 415-929-3476
LAW OFFICES of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
25
26
Accordingly, since the Judgment resulted from Mr. Molinari’s tactical
choice rather than his “mistake, inadvertence, surprise, or neglect,” this Court
should not grant relief pursuant to C.C.P. §473(b).
3. C.C.P. §473(b) requires that any Motion for Relief from Judgment
under that Section be accompanied by “an attorney’s sworn affidavit attesting
to his or her mistake, inadvertence, surprise, or neglect.”
Defendants respectfully submit that even Mr. Molinari’s Amended
Attorney Affidavit of Fault does not meet the requirements of C.C.P. §473(b).
Mr. Molinari’s Amended Attorney Affidavit of Fault, quoted above, once again
merely claims that his “office” made mistakes that he is responsible for.
4. If this Court decides to grant this Motion, defendants respectfully
submit that this Court must award them compensatory legal fees and costs
pursuant to C.C.P. §473(b), which states: “The court shall, whenever relief is
granted based on an attorney’s affidavit of fault, direct the attorney to pay
reasonable compensatory legal fees and costs to opposing counsel or parties.”
Defendants respectfully request leave to file a separate Motion for Attorneys’
Fees and Costs should this Court decide to grant this Motion.
| 6/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO §473(B)‘TRL: 415-929-3197 * FAX: 415-929-3476
Law oFFices of R. Michael Lieberman
1398 Post Street, San Francisco, California 94109
25
26
IV. CONCLUSION
Accordingly, and for all of the foregoing reasons, defendants
respectfully request that this Court deny plaintiff BONNICI’s Motion for Relief
from Judgment. If this Court grants this Motion, defendants respectfully
|
|
| Tequest that this Court permit them leave a motion for reasonable
|
| attorneys’ fees and costs.
DATE: September 4, 2018
ICHAEL LIEBERMAN
Attorneys for Defendants
CARROLL HENRY and CHARLES
MCMACKIN
7/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM
{| JUDGMENT PURSUANT TO §473(B)PROOF OF SERVICE
I, MONICA TAURIELLO, declare:
I am over the age of eighteen years, not a party to this action and
am employed in the City and County of San Francisco at 1398 Post Street,
San Francisco, California 94109.
On September 4, 2018, I served the within document(s) entitled:
DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF
FROM JUDGMENT PURSUANT TO §473(B)
by fax and by placing in the United States Mail a true and correct copy
thereof in a sealed envelope, with postage thereon fully prepaid,
addressed to:
GINO J. MOLINARI
LAW OFFICES OF GINO J. MOLINARI
3366 22? STREET
SAN FRANCISCO, CA 94110
FAX: 415-648-3130
I declare under penalty of perj he laws of the State of
California that the foregoing is truea
DATED: September 4, 2018
8/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM
JUDGMENT PURSUANT TO §473(B)
Preview
LAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 TEL: 415-929-3197 * FAX: 415-929-3476 R. MICHAEL LIEBERMAN (SBN 120831) LAW OFFICES OF R. MICHAEL LIEBERMAN 1398 POST STREET SAN FRANCISCO, CALIFORNIA 94109 TELEPHONE: (415) 929-3197 FAX: (415) 929-3476 Attorneys for Defendants ELECTRONICALLY FILED Superior Court of California, County of San Francisco 09/04/2018 Clerk of the Court BY: VANESSA WU Deputy Clerk CARROLL HENRY and CHARLES MCMACKIN SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION TIMOTHY A. individual BONNICI, an Plaintiff, vs. CHARLES MCMACKIN, an individual, CARROLL HENRY, an individual, and DOES I TO 200, inclusive, Defendants. NO. CGC 17-557688 DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B) DATE: SEPTEMBER 4, 2018 TIME: 9:30 A.M. DEPARTMENT NO.: 302 TRIAL DATE: NONE SET ATTACHED DOCUMENTS: NO 1/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B)LAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94209 TEL: 415-929-3197 # FAX! 415-929-3476 IL. INTRODUCTION Defendants CARROLL HENRY (“HENRY”) and CHARLES MCMACKIN (“MCMACKIN”) respectfully submit this Supplementary Memorandum in Opposition to plaintiff TIMOTHY A. BONNICI’s Motion for Relief from Judgment. IL. STATEMENT OF THE FACTS Defendants’ counsel received in the mail an Amended Attorney Affidavit of Fault dated August 16, 2018. The Amended Attorney Affidavit came without a Proof of Service in an envelope without postage with a return address of Western Attorney Services, 75 Columbia Square, San Francisco, CA 94103. Defendants’ counsel has no idea when the envelope arrived at defense counsel’s office. Plaintiffs counsel’s Amended Attorney Affidavit of Fault contains the following operative language of fault: i 43, 1. 5: “my office prepared and I reviewed, an opposition...” 43, 1. 10: “I did not sufficiently monitor my office’s handling of our response...” 2/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B)LAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 TEL: 415-929-3197 © FAX: 415-929-3476 N ®@ Go FF OBO DN 44, 1. 14: “again through failure on my part to monitor the actions, or rather the inaction, of my office to follow the instructions of the court, the complaint was no amended.” 44, 1. 16: “my office failed to protect the interests of the plaintiff...” 44, 1. 18: “I am informed and believe that the second demurrer was sustained without leave to amend, on the basis of my office not having filed an opposition.” 44, lL. 21: “The decision to rely on our original opposition was mine alone, and was clearly mistaken.” 95, 1. 24: “in allowing the applicable statutes of limitation to lapse, and in failing to adhere to the rules of pleading, ... my office failed the plaintiff.” 45, 1. 25: “I understand that Iam responsible for the actions, or as in this case, inaction of my office.” 45, 1. 1: “Any problems with the operation of my office, including, but not limited to, not limited to calendaring of hearings and response times, fall to me, and I accept this responsibility and admit my failure.” 3/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B)TEL: 415-929-3197 * FAX: 415-929-3476 LAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 25 26 I. ARGUMENT Plaintiff BONNICI argues that this Court should set aside its Judgment against him because it was caused by the mistake, inadvertence, surprise or neglect of his attorney, Gino J. Molinari. Defendants respectfully submit that plaintiff BONNICI’s counsel’s Amended Declaration does not alter the result that this Court reached in its earlier tentative ruling and that this Court should deny plaintiff BONNICI’s Motion for the following reasons. 1. C.C.P. §473(b) requires that a Motion for Relief from Judgment “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order or proceeding was taken.” In this case, plaintiff BONNICI didn’t make his Motion within a reasonable time. While plaintiff BONNICI appears to have drafted this Motion on April 27, 2018, he did not file it for almost a month (i.e., on May 21, 2018) and did not serve it for another two months (i.e., on July 16, 2018). Plaintiff BONNICI did not set this Motion for hearing for over six months after the Court granted defendants’ Demurrer. Indeed, it was set for hearing over six months after the Court entered Judgment against plaintiff BONNICI. 4/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B)LAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 TEL! 415-929-3197 © FAX: 415-929-3476 Defendants respectfully submit that plaintiff BONNICI did not make this Motion for Relief from Judgment within a “reasonable time.” 2. C.C.P. §473(b) provides that relief from Judgment under that section is not required when “the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” In this case, defendants respectfully submit that the Judgment against plaintiff BONNICI was not the result of Mr. Molinari’s “mistake, inadvertence, surprise, or neglect.” Rather, it was the result of Mr. Molinari’s intentional non-opposition to defendants’ Demurrer in the belief that plaintiff BONNICI could raise the same issues in his Cross-Complaint in HENRY’s original case against him. That would explain why Mr. Molinari drafted this Motion in April of 2018, but did not serve it until just recently, after the Court in HENRY’s original case threw out plaintiff BONNICI’s Cross-Complaint because of Mr. Molinari’s failure to file an Opposition to HENRY’s Demurrer in that case. Indeed, in his Amended Declaration at 94, line 21, Mr. Molinari specifically admits that “The decision to rely on our original opposition was mine alonc, and was clearly mistaken.” Courts have held that relief under C.C.P. §473(b) is not available when the attorney’s omission or failure to respond was a deliberate tactical choice. See State Farm Fire & Cas. Co. v. Pietak, 90 Cal.App.4" 600, 609-610, 109 Cal.Rptr.2d 256, 262 (2001). In that case, as in the instant case, the tactical choice was to deal with the issues in a separate case. 5/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B)TEL: 415-929-3197 * FAX: 415-929-3476 LAW OFFICES of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 25 26 Accordingly, since the Judgment resulted from Mr. Molinari’s tactical choice rather than his “mistake, inadvertence, surprise, or neglect,” this Court should not grant relief pursuant to C.C.P. §473(b). 3. C.C.P. §473(b) requires that any Motion for Relief from Judgment under that Section be accompanied by “an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” Defendants respectfully submit that even Mr. Molinari’s Amended Attorney Affidavit of Fault does not meet the requirements of C.C.P. §473(b). Mr. Molinari’s Amended Attorney Affidavit of Fault, quoted above, once again merely claims that his “office” made mistakes that he is responsible for. 4. If this Court decides to grant this Motion, defendants respectfully submit that this Court must award them compensatory legal fees and costs pursuant to C.C.P. §473(b), which states: “The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” Defendants respectfully request leave to file a separate Motion for Attorneys’ Fees and Costs should this Court decide to grant this Motion. | 6/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B)‘TRL: 415-929-3197 * FAX: 415-929-3476 Law oFFices of R. Michael Lieberman 1398 Post Street, San Francisco, California 94109 25 26 IV. CONCLUSION Accordingly, and for all of the foregoing reasons, defendants respectfully request that this Court deny plaintiff BONNICI’s Motion for Relief from Judgment. If this Court grants this Motion, defendants respectfully | | | Tequest that this Court permit them leave a motion for reasonable | | attorneys’ fees and costs. DATE: September 4, 2018 ICHAEL LIEBERMAN Attorneys for Defendants CARROLL HENRY and CHARLES MCMACKIN 7/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM {| JUDGMENT PURSUANT TO §473(B)PROOF OF SERVICE I, MONICA TAURIELLO, declare: I am over the age of eighteen years, not a party to this action and am employed in the City and County of San Francisco at 1398 Post Street, San Francisco, California 94109. On September 4, 2018, I served the within document(s) entitled: DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B) by fax and by placing in the United States Mail a true and correct copy thereof in a sealed envelope, with postage thereon fully prepaid, addressed to: GINO J. MOLINARI LAW OFFICES OF GINO J. MOLINARI 3366 22? STREET SAN FRANCISCO, CA 94110 FAX: 415-648-3130 I declare under penalty of perj he laws of the State of California that the foregoing is truea DATED: September 4, 2018 8/ DEFENDANTS’ SUPPLEMENTARY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO §473(B)