Preview
Richard Abel
1
707 Hahman Drive, No. 9301
2 Santa Rosa, CA 95405
Telephone: (707) 340-3894
3
4 Plaintiff, in pro per
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SONOMA
10
11
RICHARD ABEL, an individual; Case Number: SCV-263456
12
PLAINTIFF'S REPLY TO DOE
Plaintiff; DEFENDANTS' OPPOSITION TO
13
v. PLAINTIFF'S MOTION FOR LEAVE TO
14 FILE SECOND AMENDED COMPLAINT
B. EDWARD McCUTCHAN JR. an
15 individual; SUNDERLAND/McCUTCHAN,
Date: December 5, 2022
LLP, a general partnership; and DOES 1
16 Time: 1:30 p.m.
through 100, inclusive;
17
Dept: 10 - Hon. Christopher Honigsberg
Trial: March 10, 2023
Defendants.
18
19
Plaintiff Richard Abel ("Plaintiff") hereby submits this reply to the opposition by Doe
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defendants Davis, Nord, Hing, Fung, Poeng, Zdanek, and Duval (the "DOES" herein) to
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Plaintiff's motion for leave to file a Second Amended Complaint (the "SAC").
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I.
23 INTRODUCTION
24 In their introduction, the DOES contend that the August 4, 2021 Second Amended
25 Judgment (the "SAJ") superseded the March 20, 2017 amended judgment. (See Opp. p. 2:7-11.)
26 The DOES further contend that Plaintiff did not appeal the SAJ. (Id. p. 1:23.)
27 The Liebling judgment was amended in 2021 only as a result of a motion brought by the
28 DOES to correct Edward McCutchan's alleged "clerical errors" (the "Amendment Motion").
PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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1 There was no trial in 2021. The SAJ only identifies one (1) trial that took place back in
2 2016. (See, DOES' Request for Judicial Notice, ("RFJN") Ex. 1, at p.1:18.)
3 On October 24, 2019, DOES Davis and Nord brought the Amendment Motion to correct
4 McCutchan's clerical errors made in drafting the October 6, 2016 judgment and March 20, 2017
5 amended judgment nunc pro tunc pursuant to CCP §473(d). (See, Plaintiff's 2nd RFJN Ex. 3).
6 The Court may note that Edward McCutchan's name appears in the upper left hand corner
7 of each judgment. Edward McCutchan ("McCutchan" herein) was the person who drafted each
8 judgment on behalf of the DOES. (See, FAC, Exs. B, D, and DOES' RFJN Ex. 1.)
9 On January 15, 2020, Judge Arthur Wick in Department 18 granted the Amendment
10 Motion in part, and denied it in part (the "May 2020 Order"). (See, Plaintiff's RFJN, Ex. 2, p. 1).
11 On February 10, 2021, Judge Wick entered a Minute Order, which vacated the May 2020
12 Order and entered a new order on the Amendment Motion as follows:
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"The Motion is GRANTED to correct the mathematical error in the award to Richard
14 Abel at page 13, lines 4 and 5, nunc pro tunc as of October 6, 2016; and
15
The Motion is GRANTED to remove from the judgment the following parties who
16 were dismissed from the action (and for whom there is no claimed assignment): Vito
Lovero; Frederic Mann: Katherine Mann; Leon Sanders; Mary Lou Schmidt; Charles
17
Sebranek; Lindy Sinclair; Carmen Violin; and, Louse Escher York, nunc pro tunc as
18 of October 6, 2016.
19 In all other respects the Amendment Motion is DENIED, without prejudice to Mr.
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Abel bringing an otherwise proper motion to correct or amend the judgment.
Counsel for Mr. Davis and Mr. Nord shall submit a [proposed] second amended
21 judgment." (See, Plaintiff's RFJN, Ex. 2, at p. 3, in the Minute Order.)
22
The first thing to note about the August 4, 2021 SAJ is the caption. The caption does not
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identify it as being nunc pro tunc. (See, DOES' RFJN Ex. 1.) If the SAJ is, or was intended by
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the Court to be nunc pro tunc, then it does not supersede the previous judgment.
25
The second thing to note is that McCutchan changed the amount of each DOE's award.
26
Compare for example, Dale Davis' total award was $669,491.46 in the March 20, 2017
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judgment. (See, FAC Ex. D at p. 13.) In drafting the SAJ, McCutchan increased Dale Davis'
28
PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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1 award to $1,017,438.67. (See, DOES' RFJN Ex. 1, at p. 11:28.) The amount awarded to each
2 DOE was changed in the SAJ. When he drafted the SAJ for the DOES, McCutchan exceeded
3 the relief requested in the DOES' Amendment Motion, and exceeded what the Court had granted
4 pursuant to CCP §473(d). (See, Plaintiff's RFJN Ex. 2 at p. 3, in the Minute Order).
5 The third thing to note is that the award in the SAJ, was not divided pro-rata as the
6 plaintiffs had agreed in 2009 before the Liebling case started. (See, the Cooperation and Sharing
7 Agreement (the "Agreement") attached as Exhibit I to the appendix of proposed changes in
8 Plaintiff's Memorandum of Points and Authorities.)
9 The fourth thing to note about the SAJ is that Plaintiff received no awards for the claims
10 that were assigned to Plaintiff. DOES' agent and attorney McCutchan refused to make this
11 correction - even though, as Judge Wick found on February 10, 2021, that "their own moving
12 papers and [proposed] second amended judgment had contained all of the relevant information
13 (the names of the omitted judgment creditors and their damages, and which had assigned their
14 claims to Mr. Abel). (See, Plaintiff's RFJN, Ex. 2, at p. 2, lines 4 to 7.) The DOES are also
15 disputing their own pleading they made in 2014. (See, Plaintiff's 2nd RFJN Ex. 4, page 6:1-2.)
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II.
17 DOES' REQUEST FOR JUDICIAL NOTICE
18 The DOES' request for judicial notice does not comply with Evidence Code §453, which
19 requires the DOES to provide copies of each document that judicial notice is requested. The
20 DOES' request for judicial notice also does not comply with California Rule of Court 3.1306(c).
21 The DOES' request for judicial notice contains mostly argument. Argument is improper
22 in a request for judicial notice. The proper place for argument is in the Memorandum of Points
23 and Authorities. (See, In re Marriage of Heggie, (2002) 99 Cal.App.4th 28, footnote 3).
24 The only document attached to DOES' request for judicial notice is the August 4, 2021
25 Second Amended Judgment (the "SAJ" herein.) On page 1 of the SAJ in the upper left hand
26
corner appears the attorney's name, Edward McCutchan. The Court may therefore conclude that
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McCutchan was the attorney who drafted the SAJ and presented it to the Court on behalf of the
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DOES, whose names are listed in the SAJ.
PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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III.
1
THE DOES' STATEMENT OF FACTS
2
The DOES' statement of facts actually contains no salient facts. It is all argument. No
3
facts supported by admissible evidence were presented by the DOES by way of a declaration by
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any one of the DOES.
5
The DOES argue here that the SAJ "controls." Why does it "control"? The DOES offer
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no explanation for their contention. The SAJ is against Robert Zuckerman. (See, Opp. p. 4:16).
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The SAJ is not against Plaintiff. Torres v. City of San Diego has no application.
8
The DOES presented no evidence that they have suffered, or will suffer any prejudice if
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this instant motion is granted. Indeed, the DOES filed this opposition on October 14, 2022.
10
Plaintiff's deposition occurred on October 17-18, 2022. The Agreement, which is the basis for
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Plaintiff's proposed cause of action for Breach of Contract, was used as Exhibit 5 in Plaintiff's
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deposition. Plaintiff was already questioned about the matters alleged in the proposed SAC on
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October 17-18, 2022. (See, Abel Supp. Decl. ¶4.)
14
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IV.
LEGAL ARGUMENT
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A. The DOES Have Shown No Prejudice
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There was no delay. This action has moved forward at a very slow progress, where
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motions have been filed and get continued. There were three (3) reassignments of judges in
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2022 alone. Some motions that were set for March, 2022 were not heard until September 2022.
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It is reasonable for Plaintiff to see the pleadings of the DOES, and receive the DOES' answers to
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Plaintiff's discovery before bringing a motion to amend. Plaintiff learned new facts in the course
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of this litigation. The DOES plead the Agreement in their answers.
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DOE Dale Davis attached the Agreement to his Answer, and filed on December 23, 2021.
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DOE Jim Nord attached the Agreement to his Answer, and filed it on June 27, 2022. Plaintiff
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needed to see if Nord would plead the Agreement in his answer too. By pleading the Agreement
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in their Answers, the Agreement became a judicial admission, and an undisputed fact. After
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Plaintiff received Nord's Answer in June, Plaintiff filed this instant motion on July 15, 2022.
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PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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1 Upon seeing that Nord plead the Agreement in his Answer as Exhibit "1", Plaintiff then
2 realized that Davis, Nord and the other DOES breached the Agreement, and Plaintiff has further
3 causes of action. (See, Nord answer, filed June 27, 2022 at page 9:17-22; and its Ex. "1".)
4 The DOES have argued prejudice, but they have produced no admissible evidence that
5 they have actually been prejudiced. The trial date is set for March 10, 2023, eight (8) months
6 after this instant motion was filed on July 15, 2022. Discovery is still open. The DOES still
7 had plenty of time to file a motion for summary judgment. The DOES fail to show in their
8 opposition how they have been diligent in discovery, or what discovery they were prevented
9 from doing. In fact, the opposition presented nothing at all about the DOES' discovery efforts.
10 B. This Instant Motion is Not a Demurrer
11 Whether or not the proposed Second Amended Complaint is "ill pled" is irrelevant. This
12 instant motion is not a demurrer. A demurrer has different standards than a motion for leave to
13 amend. If the DOES decide to bring a demurrer, Plaintiff should have another opportunity to
14 amend. But a demurrer is not before the Court today.
15 The Agreement attached as Exhibit I to Plaintiff's appendix of changes, identifies the
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attorney Sunderland/McCutchan as a party to the Agreement in paragraph 2. "Scope of Duties"
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where it states:
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"CLIENTS have a duty to cooperate with Sunderland/McCutchan, LLP("ATTORNEY")
19 . . . . . " CLIENTS have a duty of good faith and fair dealing in their actions with
20 ATTORNEY. . . . ." (See, Exhibit I attached to Plaintiff's appendix).
21
For such a duty to be imposed on the "clients" by the "attorney", then the attorney is a party.
22
Pursuant to the California Rules of Professional Conduct 1.9, Sunderland/McCutchan
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owes continued fiduciary duties to Plaintiff. See Comment [1] to Rule 1.9: "After termination
24 of a lawyer-client relationship, the lawyer owes two duties to a former client. The lawyer may
25 not (i) do anything that will injuriously affect the former client in any matter in which the lawyer
26 represented the former client, or (ii) at any time use against the former client knowledge or
27 information acquired by virtue of the previous relationship. (See, Oasis West Realty, LLC v.
28 Goldman (2011) Cal.4th 811; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564).
PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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1 C. Plaintiff's Plead Sufficient Facts
2 As mentioned supra, this instant motion is not a demurrer. A demurrer has different legal
3 standards. A demurrer is not before the Court today.
4 1. Plaintiff Plead Ultimate Facts
5 California law "emphasizes ultimate fact pleading (with some exceptions) in ordinary and
6 concise language, and the test for adequacy is not absolute but whether the pleading as a whole
7 apprises the adversary of the factual basis of the claim." (See, Lim v. The TV Corp. Internat.
8 (2002) 99 Cal.App.4th 684, 690.) It is sufficient to plead ultimate facts.
9 Attorney McCutchan is the agent of the DOES. (See, FAC ¶ 7 ; proposed SAC ¶ 7).
10 As the Court is aware, behind every attorney is a client. The client is the real party in interest
11 who directs, authorizes, and ratifies the actions taken by the attorney. Here, the DOES are the
12 real parties who are directing, authorizing, and ratifying the actions of their attorney McCutchan.
13 It is undisputed that McCutchan is the person who drafted each of the judgments. (See,
14 FAC, Exs. B, D, and DOES' RFJN Ex. 1.) An attorney is an officer of the court. As an officer
15 of the court, McCutchan has a duty to be honest and truthful to the Court. The Court only knows
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whatever information presented to it by the attorney. Here, the 2021 SAJ happened only as
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result of the Amendment Motion that McCutchan brought on behalf of the DOES in 2020. The
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relief that the Court granted on the Amendment Motion was specific and very limited in scope.
19
(See, Plaintiff's RFJN, Ex. 2, at p. 3, the Minute Order.)
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2. The Second Amended Judgment Was Amended Based On CCP §473(d)
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Once a judgment is entered, trial courts lose jurisdiction to set aside or amend the
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judgment except in accordance with statutory procedures. (See, APRI Ins. Co. v. Superior Court
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(1999) 76 Cal.App.4th 176, 182; Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228,
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1238.)
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"The court may, upon motion of the injured party, or its own motion, correct clerical
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mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed,
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and may, on motion of either party after notice to the other party, set aside any void judgment or
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order." (Code of Civ. Proc. §473(d).)
PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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1 That is, courts have inherent powers to correct judgments by nunc pro tunc order where
2 there has been clerical error by the clerk or by the judge himself, or where some provision of, or
3 omission from, order or judgment was due to inadvertancies, or mistake of court. (Lane v.
4 Superior Ct. of Siskiyou Cty. (1950) 98 Cal.App.2d 165, 219.) This includes clerical errors
5 when made by an attorney who drafts the judgment. (See, In re Marriage of Kaufman (1980)
6 101 Cal.App.3d 147, 151.)
7 "A nunc pro tunc order or judgment is one entered as of a time prior to the actual entry,
8 so that it is treated as effective at the earlier date." (In re Marriage of Padgett (2009) 172
9 Cal.App.4th 830, 851.) Trial courts have authority to enter nunc pro tunc orders to address
10 clerical errors, but not judicial errors. (People v. Kim (2012) 212 Cal.App.4th 117, 124;
11 Sannmann v. Department of Justice (2020) 47 Cal.App.5th 676, 683.)
12 "Clerical error, however, is to be distinguished from judicial error which cannot be
13 corrected by amendment." (In re Candelario (1970) 2 Cal. 702, 705.) The distinction between
14 clerical error and judicial error is 'whether the error was made in rendering the judgment, or in
15 recording the judgment rendered.' (46 Am.Jur.2d, Judgments, § 202.) Any attempt by a court,
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under the guise of correcting clerical error, to 'revise its deliberately exercised judicial discretion'
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is not permitted. (In re Wimbs (1966) 65 Cal.2d 490, 498.) [¶] An amendment that substantially
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modifies the original judgment or materially alters the rights of the parties, may not be made by
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the court under its authority to correct clerical error, therefore, unless the record clearly
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demonstrates that the error was not the result of the exercise of judicial discretion. (Morgan v.
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State Bd. of Equalization (1949) 89 Cal.App.2d 674, 682; Waters v. Spratt (1958) 166
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Cal.App.2d 80, 86, [disproved on another ground]; Candelario, supra. at p.705.)
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Here, the SAJ is based on the Amendment Motion brought in late 2019 by McCutchan on
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behalf of all DOES for the purpose of correcting McCutchan's alleged clerical errors. Since
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Plaintiff and all DOES are parties named in the SAJ, the rights of all parties in the SAJ were
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materially altered when the award amounts were changed by McCutchan. As a matter of law,
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the trial court only has authority to correct true clerical errors. The issues and causes of action
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plead in the proposed SAC are not based on clerical errors.
PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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1 3. The Second Amended Judgment Has No Preclusive Effect
2 California law permits issue preclusion when the issue sought to be precluded is identical
3 to that decided in a former proceeding, was actually litigated in that proceeding, and was
4 necessary to the outcome in that proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335,
5 341-342.) Additionally, issue preclusion should be applied only if its use aligns with the public
6 policy interests underlying it. (Id. at 343.)
7 "[A]n issue was actually litigated in a prior proceeding if it was properly raised,
8 submitted for determination, and determined in that proceeding." (Hernandez v. City of Pomona,
9 (2009) 46 Cal.4th 501, 511.)
10 Here is where the DOES' contention about the SAJ fails: There was no trial in 2021.
11 The four (4) proposed causes of action in Plaintiff's proposed SAC were not actually litigated
12 in 2021, or at any time. The 'identical issue' requirement addresses whether "identical factual
13 allegations" are at stake in the two proceedings, not whether the ultimate issues or dispositions
14 are the same. (Lucido, supra. 51 Cal.3d 335, at 342.)
15 The SAJ makes no mention of the issues plead in Plaintiff's proposed SAC, e.g. the
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breach of the Agreement, the assigned claims, the interference with prospective economic
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relations - none of these issues are mentioned in the SAJ. The relief granted by Judge Arthur
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Wick on the Amendment Motion was quite limited in scope.
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The SAJ is only against Robert Zuckerman (See, Opp. p. 4:16). The dispute here now is
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between Plaintiff and the DOES. The DOES have a duty of good faith and fair dealing in their
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actions with Plaintiff, which they breached along with other terms of the Agreement. (See,
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Plaintiff's Exhibit I in Plaintiff's appendix.) DOES' attorney McCutchan has continuing
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fiduciary duties to Plaintiff pursuant to California Rule of Professional Conduct 1.9.
24
Torres v. City of San Diego has no application because there was no "substantial
25
modification" of the judgment in 2021. The trial court only had jurisdiction to amend the
26
judgment in accordance with CCP §473(d).). (See, Rochin v. Pat Johnson Mfg. Co. supra. 67
27
Cal.App.4th at 1238.) The only purpose of the SAJ was to correct some "clerical errors."
28
Judge Arthur Wick was very specific about the scope of the corrections allowed.
PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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1 4. The DOES Were Not Denied "Proper" Discovery
2 Even an unreasonable delay does not justify denial of leave when leave is sought well
3 before trial and the proposed amendment only concerns the introduction of new legal theories
4 that "relate to the same general set of facts" previously plead. (See, Kittredge Sports Co. v. Sup.
5 Court (1989) 1045, 1048 (citation omitted); accord Morgan, supra, 172 Cal.App.2d at 530. "[I]t
6 is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so
7 that he may properly present his case." (Morgan, 172 Cal.App.2d at 530 (citations omitted).
8 Plaintiff is only introducing some new legal theories in the proposed SAC. For example,
9 the breach of contract claim is based on the Agreement plead in DOE Davis and Nord's answers.
10 This instant motion was filed on July 15, 2022. Plaintiff's deposition occurred on
11 October 17 and 18, 2022. The DOES had ample opportunity to ask any questions they wanted
12 about the four (4) proposed causes of action at the deposition, and did so. DOES have not
13 provided any explanation of why they could not have filed a motion for summary judgment.
14 5. The Last Overt Act Doctrine
15 Causes of action which continue to accrue due to subsequent actions run until
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commission of the last overt act. (See, Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784)
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This is known as the "last overt act doctrine." As long as two or more persons agree to perform a
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wrongful act, the law places civil liability for the resulting damage on all of them, regardless of
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whether they actually commit the tort themselves. (Id. at 784.)
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The continuing violation doctrine aggregates a series of wrongs or injuries for purposes
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of the statute of limitations, treating the limitations period as accruing for all of them upon
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commission or sufferance of the last of them. (See, Aryeh v. Canon Business Solutions (2013)
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55 Cal.4th 1185, 1192).
24
On September 19, 2022, this Court ruled that the August 4, 2021 entry of the Second
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Amendment Judgment in the Prior Action as the last act in a chain of causation was unavailing,
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as this act is not within the FAC. (See, Order After Hearing, September 19, 2022 at 7:22-27).
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The Court noted that Plaintiff's motion for leave to file a second amended complaint may cure
28
this defect. (Id.) The Court continued the Dismissing Defendant's motions for dismissal to
PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT
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Preview
Richard Abel 1 707 Hahman Drive, No. 9301 2 Santa Rosa, CA 95405 Telephone: (707) 340-3894 3 4 Plaintiff, in pro per 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 11 RICHARD ABEL, an individual; Case Number: SCV-263456 12 PLAINTIFF'S REPLY TO DOE Plaintiff; DEFENDANTS' OPPOSITION TO 13 v. PLAINTIFF'S MOTION FOR LEAVE TO 14 FILE SECOND AMENDED COMPLAINT B. EDWARD McCUTCHAN JR. an 15 individual; SUNDERLAND/McCUTCHAN, Date: December 5, 2022 LLP, a general partnership; and DOES 1 16 Time: 1:30 p.m. through 100, inclusive; 17 Dept: 10 - Hon. Christopher Honigsberg Trial: March 10, 2023 Defendants. 18 19 Plaintiff Richard Abel ("Plaintiff") hereby submits this reply to the opposition by Doe 20 defendants Davis, Nord, Hing, Fung, Poeng, Zdanek, and Duval (the "DOES" herein) to 21 Plaintiff's motion for leave to file a Second Amended Complaint (the "SAC"). 22 I. 23 INTRODUCTION 24 In their introduction, the DOES contend that the August 4, 2021 Second Amended 25 Judgment (the "SAJ") superseded the March 20, 2017 amended judgment. (See Opp. p. 2:7-11.) 26 The DOES further contend that Plaintiff did not appeal the SAJ. (Id. p. 1:23.) 27 The Liebling judgment was amended in 2021 only as a result of a motion brought by the 28 DOES to correct Edward McCutchan's alleged "clerical errors" (the "Amendment Motion"). PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 1 1 There was no trial in 2021. The SAJ only identifies one (1) trial that took place back in 2 2016. (See, DOES' Request for Judicial Notice, ("RFJN") Ex. 1, at p.1:18.) 3 On October 24, 2019, DOES Davis and Nord brought the Amendment Motion to correct 4 McCutchan's clerical errors made in drafting the October 6, 2016 judgment and March 20, 2017 5 amended judgment nunc pro tunc pursuant to CCP §473(d). (See, Plaintiff's 2nd RFJN Ex. 3). 6 The Court may note that Edward McCutchan's name appears in the upper left hand corner 7 of each judgment. Edward McCutchan ("McCutchan" herein) was the person who drafted each 8 judgment on behalf of the DOES. (See, FAC, Exs. B, D, and DOES' RFJN Ex. 1.) 9 On January 15, 2020, Judge Arthur Wick in Department 18 granted the Amendment 10 Motion in part, and denied it in part (the "May 2020 Order"). (See, Plaintiff's RFJN, Ex. 2, p. 1). 11 On February 10, 2021, Judge Wick entered a Minute Order, which vacated the May 2020 12 Order and entered a new order on the Amendment Motion as follows: 13 "The Motion is GRANTED to correct the mathematical error in the award to Richard 14 Abel at page 13, lines 4 and 5, nunc pro tunc as of October 6, 2016; and 15 The Motion is GRANTED to remove from the judgment the following parties who 16 were dismissed from the action (and for whom there is no claimed assignment): Vito Lovero; Frederic Mann: Katherine Mann; Leon Sanders; Mary Lou Schmidt; Charles 17 Sebranek; Lindy Sinclair; Carmen Violin; and, Louse Escher York, nunc pro tunc as 18 of October 6, 2016. 19 In all other respects the Amendment Motion is DENIED, without prejudice to Mr. 20 Abel bringing an otherwise proper motion to correct or amend the judgment. Counsel for Mr. Davis and Mr. Nord shall submit a [proposed] second amended 21 judgment." (See, Plaintiff's RFJN, Ex. 2, at p. 3, in the Minute Order.) 22 The first thing to note about the August 4, 2021 SAJ is the caption. The caption does not 23 identify it as being nunc pro tunc. (See, DOES' RFJN Ex. 1.) If the SAJ is, or was intended by 24 the Court to be nunc pro tunc, then it does not supersede the previous judgment. 25 The second thing to note is that McCutchan changed the amount of each DOE's award. 26 Compare for example, Dale Davis' total award was $669,491.46 in the March 20, 2017 27 judgment. (See, FAC Ex. D at p. 13.) In drafting the SAJ, McCutchan increased Dale Davis' 28 PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 2 1 award to $1,017,438.67. (See, DOES' RFJN Ex. 1, at p. 11:28.) The amount awarded to each 2 DOE was changed in the SAJ. When he drafted the SAJ for the DOES, McCutchan exceeded 3 the relief requested in the DOES' Amendment Motion, and exceeded what the Court had granted 4 pursuant to CCP §473(d). (See, Plaintiff's RFJN Ex. 2 at p. 3, in the Minute Order). 5 The third thing to note is that the award in the SAJ, was not divided pro-rata as the 6 plaintiffs had agreed in 2009 before the Liebling case started. (See, the Cooperation and Sharing 7 Agreement (the "Agreement") attached as Exhibit I to the appendix of proposed changes in 8 Plaintiff's Memorandum of Points and Authorities.) 9 The fourth thing to note about the SAJ is that Plaintiff received no awards for the claims 10 that were assigned to Plaintiff. DOES' agent and attorney McCutchan refused to make this 11 correction - even though, as Judge Wick found on February 10, 2021, that "their own moving 12 papers and [proposed] second amended judgment had contained all of the relevant information 13 (the names of the omitted judgment creditors and their damages, and which had assigned their 14 claims to Mr. Abel). (See, Plaintiff's RFJN, Ex. 2, at p. 2, lines 4 to 7.) The DOES are also 15 disputing their own pleading they made in 2014. (See, Plaintiff's 2nd RFJN Ex. 4, page 6:1-2.) 16 II. 17 DOES' REQUEST FOR JUDICIAL NOTICE 18 The DOES' request for judicial notice does not comply with Evidence Code §453, which 19 requires the DOES to provide copies of each document that judicial notice is requested. The 20 DOES' request for judicial notice also does not comply with California Rule of Court 3.1306(c). 21 The DOES' request for judicial notice contains mostly argument. Argument is improper 22 in a request for judicial notice. The proper place for argument is in the Memorandum of Points 23 and Authorities. (See, In re Marriage of Heggie, (2002) 99 Cal.App.4th 28, footnote 3). 24 The only document attached to DOES' request for judicial notice is the August 4, 2021 25 Second Amended Judgment (the "SAJ" herein.) On page 1 of the SAJ in the upper left hand 26 corner appears the attorney's name, Edward McCutchan. The Court may therefore conclude that 27 McCutchan was the attorney who drafted the SAJ and presented it to the Court on behalf of the 28 DOES, whose names are listed in the SAJ. PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 3 III. 1 THE DOES' STATEMENT OF FACTS 2 The DOES' statement of facts actually contains no salient facts. It is all argument. No 3 facts supported by admissible evidence were presented by the DOES by way of a declaration by 4 any one of the DOES. 5 The DOES argue here that the SAJ "controls." Why does it "control"? The DOES offer 6 no explanation for their contention. The SAJ is against Robert Zuckerman. (See, Opp. p. 4:16). 7 The SAJ is not against Plaintiff. Torres v. City of San Diego has no application. 8 The DOES presented no evidence that they have suffered, or will suffer any prejudice if 9 this instant motion is granted. Indeed, the DOES filed this opposition on October 14, 2022. 10 Plaintiff's deposition occurred on October 17-18, 2022. The Agreement, which is the basis for 11 Plaintiff's proposed cause of action for Breach of Contract, was used as Exhibit 5 in Plaintiff's 12 deposition. Plaintiff was already questioned about the matters alleged in the proposed SAC on 13 October 17-18, 2022. (See, Abel Supp. Decl. ¶4.) 14 15 IV. LEGAL ARGUMENT 16 A. The DOES Have Shown No Prejudice 17 There was no delay. This action has moved forward at a very slow progress, where 18 motions have been filed and get continued. There were three (3) reassignments of judges in 19 2022 alone. Some motions that were set for March, 2022 were not heard until September 2022. 20 It is reasonable for Plaintiff to see the pleadings of the DOES, and receive the DOES' answers to 21 Plaintiff's discovery before bringing a motion to amend. Plaintiff learned new facts in the course 22 of this litigation. The DOES plead the Agreement in their answers. 23 DOE Dale Davis attached the Agreement to his Answer, and filed on December 23, 2021. 24 DOE Jim Nord attached the Agreement to his Answer, and filed it on June 27, 2022. Plaintiff 25 needed to see if Nord would plead the Agreement in his answer too. By pleading the Agreement 26 in their Answers, the Agreement became a judicial admission, and an undisputed fact. After 27 Plaintiff received Nord's Answer in June, Plaintiff filed this instant motion on July 15, 2022. 28 PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 4 1 Upon seeing that Nord plead the Agreement in his Answer as Exhibit "1", Plaintiff then 2 realized that Davis, Nord and the other DOES breached the Agreement, and Plaintiff has further 3 causes of action. (See, Nord answer, filed June 27, 2022 at page 9:17-22; and its Ex. "1".) 4 The DOES have argued prejudice, but they have produced no admissible evidence that 5 they have actually been prejudiced. The trial date is set for March 10, 2023, eight (8) months 6 after this instant motion was filed on July 15, 2022. Discovery is still open. The DOES still 7 had plenty of time to file a motion for summary judgment. The DOES fail to show in their 8 opposition how they have been diligent in discovery, or what discovery they were prevented 9 from doing. In fact, the opposition presented nothing at all about the DOES' discovery efforts. 10 B. This Instant Motion is Not a Demurrer 11 Whether or not the proposed Second Amended Complaint is "ill pled" is irrelevant. This 12 instant motion is not a demurrer. A demurrer has different standards than a motion for leave to 13 amend. If the DOES decide to bring a demurrer, Plaintiff should have another opportunity to 14 amend. But a demurrer is not before the Court today. 15 The Agreement attached as Exhibit I to Plaintiff's appendix of changes, identifies the 16 attorney Sunderland/McCutchan as a party to the Agreement in paragraph 2. "Scope of Duties" 17 where it states: 18 "CLIENTS have a duty to cooperate with Sunderland/McCutchan, LLP("ATTORNEY") 19 . . . . . " CLIENTS have a duty of good faith and fair dealing in their actions with 20 ATTORNEY. . . . ." (See, Exhibit I attached to Plaintiff's appendix). 21 For such a duty to be imposed on the "clients" by the "attorney", then the attorney is a party. 22 Pursuant to the California Rules of Professional Conduct 1.9, Sunderland/McCutchan 23 owes continued fiduciary duties to Plaintiff. See Comment [1] to Rule 1.9: "After termination 24 of a lawyer-client relationship, the lawyer owes two duties to a former client. The lawyer may 25 not (i) do anything that will injuriously affect the former client in any matter in which the lawyer 26 represented the former client, or (ii) at any time use against the former client knowledge or 27 information acquired by virtue of the previous relationship. (See, Oasis West Realty, LLC v. 28 Goldman (2011) Cal.4th 811; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564). PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 5 1 C. Plaintiff's Plead Sufficient Facts 2 As mentioned supra, this instant motion is not a demurrer. A demurrer has different legal 3 standards. A demurrer is not before the Court today. 4 1. Plaintiff Plead Ultimate Facts 5 California law "emphasizes ultimate fact pleading (with some exceptions) in ordinary and 6 concise language, and the test for adequacy is not absolute but whether the pleading as a whole 7 apprises the adversary of the factual basis of the claim." (See, Lim v. The TV Corp. Internat. 8 (2002) 99 Cal.App.4th 684, 690.) It is sufficient to plead ultimate facts. 9 Attorney McCutchan is the agent of the DOES. (See, FAC ¶ 7 ; proposed SAC ¶ 7). 10 As the Court is aware, behind every attorney is a client. The client is the real party in interest 11 who directs, authorizes, and ratifies the actions taken by the attorney. Here, the DOES are the 12 real parties who are directing, authorizing, and ratifying the actions of their attorney McCutchan. 13 It is undisputed that McCutchan is the person who drafted each of the judgments. (See, 14 FAC, Exs. B, D, and DOES' RFJN Ex. 1.) An attorney is an officer of the court. As an officer 15 of the court, McCutchan has a duty to be honest and truthful to the Court. The Court only knows 16 whatever information presented to it by the attorney. Here, the 2021 SAJ happened only as 17 result of the Amendment Motion that McCutchan brought on behalf of the DOES in 2020. The 18 relief that the Court granted on the Amendment Motion was specific and very limited in scope. 19 (See, Plaintiff's RFJN, Ex. 2, at p. 3, the Minute Order.) 20 2. The Second Amended Judgment Was Amended Based On CCP §473(d) 21 Once a judgment is entered, trial courts lose jurisdiction to set aside or amend the 22 judgment except in accordance with statutory procedures. (See, APRI Ins. Co. v. Superior Court 23 (1999) 76 Cal.App.4th 176, 182; Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, 24 1238.) 25 "The court may, upon motion of the injured party, or its own motion, correct clerical 26 mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, 27 and may, on motion of either party after notice to the other party, set aside any void judgment or 28 order." (Code of Civ. Proc. §473(d).) PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 6 1 That is, courts have inherent powers to correct judgments by nunc pro tunc order where 2 there has been clerical error by the clerk or by the judge himself, or where some provision of, or 3 omission from, order or judgment was due to inadvertancies, or mistake of court. (Lane v. 4 Superior Ct. of Siskiyou Cty. (1950) 98 Cal.App.2d 165, 219.) This includes clerical errors 5 when made by an attorney who drafts the judgment. (See, In re Marriage of Kaufman (1980) 6 101 Cal.App.3d 147, 151.) 7 "A nunc pro tunc order or judgment is one entered as of a time prior to the actual entry, 8 so that it is treated as effective at the earlier date." (In re Marriage of Padgett (2009) 172 9 Cal.App.4th 830, 851.) Trial courts have authority to enter nunc pro tunc orders to address 10 clerical errors, but not judicial errors. (People v. Kim (2012) 212 Cal.App.4th 117, 124; 11 Sannmann v. Department of Justice (2020) 47 Cal.App.5th 676, 683.) 12 "Clerical error, however, is to be distinguished from judicial error which cannot be 13 corrected by amendment." (In re Candelario (1970) 2 Cal. 702, 705.) The distinction between 14 clerical error and judicial error is 'whether the error was made in rendering the judgment, or in 15 recording the judgment rendered.' (46 Am.Jur.2d, Judgments, § 202.) Any attempt by a court, 16 under the guise of correcting clerical error, to 'revise its deliberately exercised judicial discretion' 17 is not permitted. (In re Wimbs (1966) 65 Cal.2d 490, 498.) [¶] An amendment that substantially 18 modifies the original judgment or materially alters the rights of the parties, may not be made by 19 the court under its authority to correct clerical error, therefore, unless the record clearly 20 demonstrates that the error was not the result of the exercise of judicial discretion. (Morgan v. 21 State Bd. of Equalization (1949) 89 Cal.App.2d 674, 682; Waters v. Spratt (1958) 166 22 Cal.App.2d 80, 86, [disproved on another ground]; Candelario, supra. at p.705.) 23 Here, the SAJ is based on the Amendment Motion brought in late 2019 by McCutchan on 24 behalf of all DOES for the purpose of correcting McCutchan's alleged clerical errors. Since 25 Plaintiff and all DOES are parties named in the SAJ, the rights of all parties in the SAJ were 26 materially altered when the award amounts were changed by McCutchan. As a matter of law, 27 the trial court only has authority to correct true clerical errors. The issues and causes of action 28 plead in the proposed SAC are not based on clerical errors. PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 7 1 3. The Second Amended Judgment Has No Preclusive Effect 2 California law permits issue preclusion when the issue sought to be precluded is identical 3 to that decided in a former proceeding, was actually litigated in that proceeding, and was 4 necessary to the outcome in that proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 5 341-342.) Additionally, issue preclusion should be applied only if its use aligns with the public 6 policy interests underlying it. (Id. at 343.) 7 "[A]n issue was actually litigated in a prior proceeding if it was properly raised, 8 submitted for determination, and determined in that proceeding." (Hernandez v. City of Pomona, 9 (2009) 46 Cal.4th 501, 511.) 10 Here is where the DOES' contention about the SAJ fails: There was no trial in 2021. 11 The four (4) proposed causes of action in Plaintiff's proposed SAC were not actually litigated 12 in 2021, or at any time. The 'identical issue' requirement addresses whether "identical factual 13 allegations" are at stake in the two proceedings, not whether the ultimate issues or dispositions 14 are the same. (Lucido, supra. 51 Cal.3d 335, at 342.) 15 The SAJ makes no mention of the issues plead in Plaintiff's proposed SAC, e.g. the 16 breach of the Agreement, the assigned claims, the interference with prospective economic 17 relations - none of these issues are mentioned in the SAJ. The relief granted by Judge Arthur 18 Wick on the Amendment Motion was quite limited in scope. 19 The SAJ is only against Robert Zuckerman (See, Opp. p. 4:16). The dispute here now is 20 between Plaintiff and the DOES. The DOES have a duty of good faith and fair dealing in their 21 actions with Plaintiff, which they breached along with other terms of the Agreement. (See, 22 Plaintiff's Exhibit I in Plaintiff's appendix.) DOES' attorney McCutchan has continuing 23 fiduciary duties to Plaintiff pursuant to California Rule of Professional Conduct 1.9. 24 Torres v. City of San Diego has no application because there was no "substantial 25 modification" of the judgment in 2021. The trial court only had jurisdiction to amend the 26 judgment in accordance with CCP §473(d).). (See, Rochin v. Pat Johnson Mfg. Co. supra. 67 27 Cal.App.4th at 1238.) The only purpose of the SAJ was to correct some "clerical errors." 28 Judge Arthur Wick was very specific about the scope of the corrections allowed. PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 8 1 4. The DOES Were Not Denied "Proper" Discovery 2 Even an unreasonable delay does not justify denial of leave when leave is sought well 3 before trial and the proposed amendment only concerns the introduction of new legal theories 4 that "relate to the same general set of facts" previously plead. (See, Kittredge Sports Co. v. Sup. 5 Court (1989) 1045, 1048 (citation omitted); accord Morgan, supra, 172 Cal.App.2d at 530. "[I]t 6 is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so 7 that he may properly present his case." (Morgan, 172 Cal.App.2d at 530 (citations omitted). 8 Plaintiff is only introducing some new legal theories in the proposed SAC. For example, 9 the breach of contract claim is based on the Agreement plead in DOE Davis and Nord's answers. 10 This instant motion was filed on July 15, 2022. Plaintiff's deposition occurred on 11 October 17 and 18, 2022. The DOES had ample opportunity to ask any questions they wanted 12 about the four (4) proposed causes of action at the deposition, and did so. DOES have not 13 provided any explanation of why they could not have filed a motion for summary judgment. 14 5. The Last Overt Act Doctrine 15 Causes of action which continue to accrue due to subsequent actions run until 16 commission of the last overt act. (See, Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784) 17 This is known as the "last overt act doctrine." As long as two or more persons agree to perform a 18 wrongful act, the law places civil liability for the resulting damage on all of them, regardless of 19 whether they actually commit the tort themselves. (Id. at 784.) 20 The continuing violation doctrine aggregates a series of wrongs or injuries for purposes 21 of the statute of limitations, treating the limitations period as accruing for all of them upon 22 commission or sufferance of the last of them. (See, Aryeh v. Canon Business Solutions (2013) 23 55 Cal.4th 1185, 1192). 24 On September 19, 2022, this Court ruled that the August 4, 2021 entry of the Second 25 Amendment Judgment in the Prior Action as the last act in a chain of causation was unavailing, 26 as this act is not within the FAC. (See, Order After Hearing, September 19, 2022 at 7:22-27). 27 The Court noted that Plaintiff's motion for leave to file a second amended complaint may cure 28 this defect. (Id.) The Court continued the Dismissing Defendant's motions for dismissal to PLAINTIFF'S REPLY TO OPPOSITION TO MOTION TO FILE SECOND AMENDED COMPLAINT 9