Preview
1 Ralph E. Laird (State Bar No. 166984)
FILED
Law Office of Ralph Laird ENDORSED
2 210 Magnolia Avenue, Suite 2 20!] FES II4 PH 2:50
Auburn, CA 95603
3 Tel: 916-724-1755
Fax: 530-889-1962 COUNT f o r SACRAMENTO
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Attomey for Defendant
5 Terry Richards
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
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11 ASHLEY M. NAGHASH., CaseNo. 34-2011-00113923
12 Plaintiff DEFENDANT TERRY RICHARDS'
REPLY TO PLAINTIFF'S
13 OPPOSITION TO MOTION TO
DISMISS FOR PLAINTIFF'S FAILURE
14 BOARD OF TRUSTEES OF THE TO BRING ACTION TO TRL^L
CALIFORNIA STATE UNIVERSITY, et al. WITHIN FIVE YEARS
15
Defendants.
16 Date: February 22, 2017
Time: 9:00am
17 Dept: 54
18 Action filed November 14,2011
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21 In her Opposition to Defendant Terry Richards' Motion to Dismiss for Failure to Bring
22 Action to Trial within Five Years, Plaintiff Ashley Naghash, Plaintiff argues that the motion should
23 be denied because the five year period lapsed due to delays serving the summons and complaint and
24 related issues. However, as stated in CCP. §583.360(b), "The requirements of this article are
25 mandatory and are not subject to extension, excuse, or exception except as expressly provided by
26 statute." Plaintiff cites no authority to support her argument in this regard. None of Defendant Terry
27 Richards' purported conduct during the course of the lawsuit has made bringing the action to trial
28 "impossible, impracticable, or fiitile." (See CCP. §583.340(c).)
1
Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss
1 To the contrary, "Time consumed by the delay caused by ordinary incidents of proceedings,
2 like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on
3 the court's calendar are not within the contemplation of these exceptions." (Baccus v. Superior
4 Court (1989) 207 Cal.App.3d 1526, 1532, citing Standard Oil Co. v. Superior Court (1976) 61
5 Cal.App.3d 852, 857. See also Massey v. Bank of America, 56 Cal.App.3d 29, 32-33: class action
6 certification and notice to the class constituted "ordinary incidents of proceedings.") "[The] focus
7 of the exception is on the 'justifiability' of the plaintiffs reason for not bringing the case to trial,
8 rather than on the defendant's complicity in the delay." (Ferk v. County of Lake (1988) 205
9 Cal.App.3d 268, 277.) In the Ferk case, the Court of Appeal rejected plaintiffs' argument that
10 defendant's conduct in failing to answer the cross-complaint prevented the case from being at issue
11 and thus rendered it impossible or impracticable to bring the matter to trial. "The argument
12 overlook[ed] the fact that no discovery was pursued, and no attempt was made by [plaintiffs] to bring
13 the case to trial by moving for preference and seeking to file an at-issue memorandum until the
14 five-year period had expired. We focus, as we must, upon the plaintiffs' diligence, not upon
15 defendants' contribution, if any, to the delay." (Id-> at p. 277, fn. 5.)
16 Plaintiff also argues that the five year period did not start to run until Terry Richards was
17 served with Simimons and Complaint. Plaintiff goes so far as to state that "no action has been
18 commenced against the defendant." (See Opposition Points & Authorities at Page 6, Line 1.)
19 However, this is incorrect. The goveming statutes state that the five year period runs from the time
20 "the action against the Defendant is commenced." (CCP. §583.310.) In addition, CCP.
21 §583.210(a) provides in part, "For the purpose of this subdivision, an action is commenced at the
22 time the complaint is filed." Moreover, "As to a defendant either expressly named in the original
23 complaint, or named in the original complaint by a fictitious name, the action commences on the date
24 ofthe filing ofthe complaint." (Gray v. Firthe (1987) 194 Cal.App.3d 202, 209.) Here, Plaintiff
25 filed her action against Defendant Terry Richards and others on November 14, 2011, which is the
26 date this action was commenced against Defendant Terry Richards.
27 Plaintiff s other argument, also without reference to any legal authority and without reference
28 to any facts, is that "it would have been fiitile to piecemeal the action and seek trial and separate
2
Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss
1 judgment against each individual defendant." (Plaintiffs Opposition Points &. Authorities, at Page
2 6, Lines 20-21.) Plaintiff provides no explanation or factual support for this statement. In any event,
3 Plaintiffs statement presents an incorrect application of the "one judgment rule," which pertains to
4 appeals.
5 "The one judgment rule has been articulated thusly:' [A]s a general rule there can be only one
6 final judgment in a single action.' [Citation.] A fmal, ordinarily single, judgment is a prerequisite
7 to appealing from an action, its purpose to avoid piecemeal appeals." (Leader v. Cords (2010) 182
8 CaI.App.4th 1588, 1594.) As stated in Cuevas v. Truline ConJ. (2004) 118 Cal.App.4th 56:
9 The one final judgment rule for appellate proceedings does not... prohibit separate
or partial judgments against some, but not all, defendants. Such incomplete or partial
10 dispositions are familiar in our jurisprudence. For example. Code of Civil Procedure
section 579 allows entry of judgment against one defendant while continuing the
11 action against another defendant. (See Vandenberg v. Superior Court (1999) 21
Cal.4th 815,824 [88 Cal. Rptr. 2d 366,982 P.2d 229]; Ti&R Painting Construction,
12 Inc. V. St. Paul Fire & Marine Ins. Co. (1994) 23 Cal.App.4th 738,742-743 [29 Cal.
Rptr. 2d 199].) The law also permits separate judgments against defaulting and
13 nondefaulting defendants. In addition, it allows separate judgments by summary
judgment. And Proposition 51 permits separate judgments for noneconomic
14 damages. (Civ. Code, § 1431.2.) What the one final judgment rule prohibits is
appealing from partial dispositions while other unresolved matters remain pending
15 against other parties.
16 (Cuevas v. Truline Corp.. supra, 118 Cal.App.4th at pp. 60-61.)
17 Not only does Plaintiff fail to provide any explanation or factual basis for her argument, she
18 does not address the points and authorities raised in Defendant's moving papers, including but not
19 limited to Southem Pacific Co. v. Superior Court of Sacramento County (1958) 157Cal.App.2d 168.
20 Plaintiff does not explain prior statements on her behalf that the five year deadline was "fast
21 approaching." As stated in Defendant's moving papers, there is no reason why Plaintiff could not
22 have proceeded with her case against Mr. Richards. The alleged wrongdoing of the State Actor
23 entities is totally independent of Defendant Terry Richard's alleged wrongdoing. The only alleged
24 circumstance that overlaps Plaintiffs claims against Defendant Terry Richards and the State Actor
25 defendants is that the alleged incident allegedly occurred in her dormitory on the CSUS campus.
26 ///
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28 ///
Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss
1 Based on the foregoing, Defendant respectfiilly requests that the Court dismiss this action.
2 Dated: 2-14-17 MACKENROT>i/& LAIRD
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RALPH E. D
5 Attomey for Defendant Terry Richards
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Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss
1 PROOF OF SERVICE
2 Case Name: Ashley Naghash v. Board of Tmstees, et al
Court: Sacramento County Superior Court
3 CaseNo: 34-2011-00113923
4 I am a citizen of the United States and a resident of the State of Califomia. I am over the age
of eighteen (18) years and not a party to the within above-entitled action. I am familiar with the Law
5 Office of Ralph Laird's practice whereby the mail is sealed, given the appropriate postage and placed
in a designated mail collection area. Each day's mail is collected and deposited in a United States
6 mailbox by the close of each day's business.
7 On l4 -1*7 ^ J served the following:
8
DEFENDANT TERRY RICHARDS' REPLY TO PLAINTIFF'S OPPOSITION TO MOTION
9 TO DISMISS FOR PLAINTIFF'S FAILURE TO BRING ACTION TO TRIAL WITHIN FIVE
YEARS
10 ••
11 (By Mail) placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States
mail at Auburn , California, addressed as follows.
12 [ ] (By Federal Express/Express Mail) placing a true copy thereof enclosed in a sealed envelope, prepaid, deposited with
the with the Federal Express or Express Mail carrier at Auburn, California, addressed as follows.
13 [ ] (By Personal Service) delivering by hand and leaving a true copy with the secretary/receptionist/person addressed as
follows.
14 (By Facsimile) transmitting to the parties in this action the foregoing document(s) by facsimile machine pursuant to Rule
2005. The transmission was reported as complete and in compliance with Rule 2003(3), no error was reported by the
15 machine. Pursuant to Rule 2005(1), I caused the machine to print a transmission record of the transmission.
[ ] (By E-Mail) transmitting to the parties in this action the foregoing document(s) by electronic mail. The transmission was
16 r ported as complete and in compliance with Rule 2003(3), no error was reported. I printed a confirmation record of the
transmission.
17
18 ..
Roger E. Naghash
19 Law Offices of Rober E. Naghash
One Newport Place
20 19900 MacArthur Blvd., Suite 1150
Irvine, CA 92612-8433
21 Tel: 949-955-1000
Fax: 949-852-9511
22
23 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing
24 is tme and correct and that this declaration was executed on g.-iH-'T
25 at the Law Office of Ralph Laird, 210 Magnolia Avenue, Suite 2, Auburn, CA 95603.
26
27
28
Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss
Preview
1 Ralph E. Laird (State Bar No. 166984) FILED Law Office of Ralph Laird ENDORSED 2 210 Magnolia Avenue, Suite 2 20!] FES II4 PH 2:50 Auburn, CA 95603 3 Tel: 916-724-1755 Fax: 530-889-1962 COUNT f o r SACRAMENTO 4 Attomey for Defendant 5 Terry Richards 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 ASHLEY M. NAGHASH., CaseNo. 34-2011-00113923 12 Plaintiff DEFENDANT TERRY RICHARDS' REPLY TO PLAINTIFF'S 13 OPPOSITION TO MOTION TO DISMISS FOR PLAINTIFF'S FAILURE 14 BOARD OF TRUSTEES OF THE TO BRING ACTION TO TRL^L CALIFORNIA STATE UNIVERSITY, et al. WITHIN FIVE YEARS 15 Defendants. 16 Date: February 22, 2017 Time: 9:00am 17 Dept: 54 18 Action filed November 14,2011 19 20 21 In her Opposition to Defendant Terry Richards' Motion to Dismiss for Failure to Bring 22 Action to Trial within Five Years, Plaintiff Ashley Naghash, Plaintiff argues that the motion should 23 be denied because the five year period lapsed due to delays serving the summons and complaint and 24 related issues. However, as stated in CCP. §583.360(b), "The requirements of this article are 25 mandatory and are not subject to extension, excuse, or exception except as expressly provided by 26 statute." Plaintiff cites no authority to support her argument in this regard. None of Defendant Terry 27 Richards' purported conduct during the course of the lawsuit has made bringing the action to trial 28 "impossible, impracticable, or fiitile." (See CCP. §583.340(c).) 1 Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss 1 To the contrary, "Time consumed by the delay caused by ordinary incidents of proceedings, 2 like disposition of demurrer, amendment of pleadings, and the normal time of waiting for a place on 3 the court's calendar are not within the contemplation of these exceptions." (Baccus v. Superior 4 Court (1989) 207 Cal.App.3d 1526, 1532, citing Standard Oil Co. v. Superior Court (1976) 61 5 Cal.App.3d 852, 857. See also Massey v. Bank of America, 56 Cal.App.3d 29, 32-33: class action 6 certification and notice to the class constituted "ordinary incidents of proceedings.") "[The] focus 7 of the exception is on the 'justifiability' of the plaintiffs reason for not bringing the case to trial, 8 rather than on the defendant's complicity in the delay." (Ferk v. County of Lake (1988) 205 9 Cal.App.3d 268, 277.) In the Ferk case, the Court of Appeal rejected plaintiffs' argument that 10 defendant's conduct in failing to answer the cross-complaint prevented the case from being at issue 11 and thus rendered it impossible or impracticable to bring the matter to trial. "The argument 12 overlook[ed] the fact that no discovery was pursued, and no attempt was made by [plaintiffs] to bring 13 the case to trial by moving for preference and seeking to file an at-issue memorandum until the 14 five-year period had expired. We focus, as we must, upon the plaintiffs' diligence, not upon 15 defendants' contribution, if any, to the delay." (Id-> at p. 277, fn. 5.) 16 Plaintiff also argues that the five year period did not start to run until Terry Richards was 17 served with Simimons and Complaint. Plaintiff goes so far as to state that "no action has been 18 commenced against the defendant." (See Opposition Points & Authorities at Page 6, Line 1.) 19 However, this is incorrect. The goveming statutes state that the five year period runs from the time 20 "the action against the Defendant is commenced." (CCP. §583.310.) In addition, CCP. 21 §583.210(a) provides in part, "For the purpose of this subdivision, an action is commenced at the 22 time the complaint is filed." Moreover, "As to a defendant either expressly named in the original 23 complaint, or named in the original complaint by a fictitious name, the action commences on the date 24 ofthe filing ofthe complaint." (Gray v. Firthe (1987) 194 Cal.App.3d 202, 209.) Here, Plaintiff 25 filed her action against Defendant Terry Richards and others on November 14, 2011, which is the 26 date this action was commenced against Defendant Terry Richards. 27 Plaintiff s other argument, also without reference to any legal authority and without reference 28 to any facts, is that "it would have been fiitile to piecemeal the action and seek trial and separate 2 Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss 1 judgment against each individual defendant." (Plaintiffs Opposition Points &. Authorities, at Page 2 6, Lines 20-21.) Plaintiff provides no explanation or factual support for this statement. In any event, 3 Plaintiffs statement presents an incorrect application of the "one judgment rule," which pertains to 4 appeals. 5 "The one judgment rule has been articulated thusly:' [A]s a general rule there can be only one 6 final judgment in a single action.' [Citation.] A fmal, ordinarily single, judgment is a prerequisite 7 to appealing from an action, its purpose to avoid piecemeal appeals." (Leader v. Cords (2010) 182 8 CaI.App.4th 1588, 1594.) As stated in Cuevas v. Truline ConJ. (2004) 118 Cal.App.4th 56: 9 The one final judgment rule for appellate proceedings does not... prohibit separate or partial judgments against some, but not all, defendants. Such incomplete or partial 10 dispositions are familiar in our jurisprudence. For example. Code of Civil Procedure section 579 allows entry of judgment against one defendant while continuing the 11 action against another defendant. (See Vandenberg v. Superior Court (1999) 21 Cal.4th 815,824 [88 Cal. Rptr. 2d 366,982 P.2d 229]; Ti&R Painting Construction, 12 Inc. V. St. Paul Fire & Marine Ins. Co. (1994) 23 Cal.App.4th 738,742-743 [29 Cal. Rptr. 2d 199].) The law also permits separate judgments against defaulting and 13 nondefaulting defendants. In addition, it allows separate judgments by summary judgment. And Proposition 51 permits separate judgments for noneconomic 14 damages. (Civ. Code, § 1431.2.) What the one final judgment rule prohibits is appealing from partial dispositions while other unresolved matters remain pending 15 against other parties. 16 (Cuevas v. Truline Corp.. supra, 118 Cal.App.4th at pp. 60-61.) 17 Not only does Plaintiff fail to provide any explanation or factual basis for her argument, she 18 does not address the points and authorities raised in Defendant's moving papers, including but not 19 limited to Southem Pacific Co. v. Superior Court of Sacramento County (1958) 157Cal.App.2d 168. 20 Plaintiff does not explain prior statements on her behalf that the five year deadline was "fast 21 approaching." As stated in Defendant's moving papers, there is no reason why Plaintiff could not 22 have proceeded with her case against Mr. Richards. The alleged wrongdoing of the State Actor 23 entities is totally independent of Defendant Terry Richard's alleged wrongdoing. The only alleged 24 circumstance that overlaps Plaintiffs claims against Defendant Terry Richards and the State Actor 25 defendants is that the alleged incident allegedly occurred in her dormitory on the CSUS campus. 26 /// 27 /// 28 /// Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss 1 Based on the foregoing, Defendant respectfiilly requests that the Court dismiss this action. 2 Dated: 2-14-17 MACKENROT>i/& LAIRD 3 4 RALPH E. D 5 Attomey for Defendant Terry Richards 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss 1 PROOF OF SERVICE 2 Case Name: Ashley Naghash v. Board of Tmstees, et al Court: Sacramento County Superior Court 3 CaseNo: 34-2011-00113923 4 I am a citizen of the United States and a resident of the State of Califomia. I am over the age of eighteen (18) years and not a party to the within above-entitled action. I am familiar with the Law 5 Office of Ralph Laird's practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a United States 6 mailbox by the close of each day's business. 7 On l4 -1*7 ^ J served the following: 8 DEFENDANT TERRY RICHARDS' REPLY TO PLAINTIFF'S OPPOSITION TO MOTION 9 TO DISMISS FOR PLAINTIFF'S FAILURE TO BRING ACTION TO TRIAL WITHIN FIVE YEARS 10 •• 11 (By Mail) placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Auburn , California, addressed as follows. 12 [ ] (By Federal Express/Express Mail) placing a true copy thereof enclosed in a sealed envelope, prepaid, deposited with the with the Federal Express or Express Mail carrier at Auburn, California, addressed as follows. 13 [ ] (By Personal Service) delivering by hand and leaving a true copy with the secretary/receptionist/person addressed as follows. 14 (By Facsimile) transmitting to the parties in this action the foregoing document(s) by facsimile machine pursuant to Rule 2005. The transmission was reported as complete and in compliance with Rule 2003(3), no error was reported by the 15 machine. Pursuant to Rule 2005(1), I caused the machine to print a transmission record of the transmission. [ ] (By E-Mail) transmitting to the parties in this action the foregoing document(s) by electronic mail. The transmission was 16 r ported as complete and in compliance with Rule 2003(3), no error was reported. I printed a confirmation record of the transmission. 17 18 .. Roger E. Naghash 19 Law Offices of Rober E. Naghash One Newport Place 20 19900 MacArthur Blvd., Suite 1150 Irvine, CA 92612-8433 21 Tel: 949-955-1000 Fax: 949-852-9511 22 23 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing 24 is tme and correct and that this declaration was executed on g.-iH-'T 25 at the Law Office of Ralph Laird, 210 Magnolia Avenue, Suite 2, Auburn, CA 95603. 26 27 28 Defendant Terry Richard's Reply to Opposition to Defendant's Motion to Dismiss