Motion-Secondary: Youquin Cao et al vs California Homes and Kitchen Design Center, Inc. et al

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                                Robert B. Kopelson, Esq. SBN: 83523
     75 E. Santa Clara Street, Suite 1180
     San Jose, CA 95113
     Phone Number (408) 293-4000
     Fax Number: (408) 293-8369
     Email: kopelaw@hotmail.com


     Attorney in Pro Per




                           SUPERIOR COURT OF THE STATE OF CALIFORNIA

                                  FOR THE COUNTY               OF SANTA CLARA


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     ROBERT B. KOPELSON                                             Case No.: 17CV311858
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                                 Plaintiff,
12                                                                  PLAINTIFF'S             MEMORANDUM OF
            vs.                                                     POINTS AND              AUTHORITIES IN
                                                                    SUPPORT OF              MOTION TO DISCHARGE
13                                                                  AND DISMISS              PLAINTIFF FROM THE
     ANAND KAROSHI, MAHESH KAROSHI,
                                                                    ACTION AND TO AWARD                       FEES AND
14   MAHANTESH KAROSHI and PRAVEEN
                                                                    COSTS.
     KAROSHI,
1S                                                                  DATE: September 25, 2018
                                                                    TIME: 9:00 A.M.
16                               Defendants.                        DEPT:       6
                                                                    Judge:      Theodore C. Zayner
17                                                                  Action Filed:          June 6, 2017
                                                                    Trial Date:          Unassigned
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20                                                         FACTS

21          Plaintiff was    retained   by    Defendants     with     respect       to    a wrongful      death   claim   of the

22   spouse/mother of the Defendants. Defendants consented to a policy limit settlement in the amount

23   of $100,000.00 total. Defendants consented to attorney's fees and costs being deducted from that

24   settlement. The balance of the settlement remaining               was $65,206.02.           Plaintiff attempted to get

25   Defendants to agree amongst themselves to divide the funds. Conflicting claims were made, and no

26   agreement was reached. After many attempts to get the parties to agree to a division or binding

27   arbitration, and after a lengthy passage of time with no response, Plaintiff filed this Interpleader.

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                                                   1
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISCHARGE
                 AND DISMISS PLAINTIFF FROM THE ACTION AND TO AWARD FEES AND COSTS
Mt

                                      I
          WHEN CONFLICTING CLAIMS ARE MADE TO MONEY BEING HELD, THE
     PERSON HOLDING THE FUNDS MAY FILE AN INTERPLEADER AND THEN BE
     DISCHARGED FROM LIABILITY TO ALL OF THE CONFLICTING CLAIMANTS.


            CCP§ 386(a)


                                      Il.
           IN ORDERING THE DISCHARGE OF AN INTERPLEADER PLAINTIFF, THE
     COURT MAY AWARD SUCH PARTY HIS COSTS AND REASONABLE ATTORNEY'S
     FEES FROM THE AMOUNT IN DISPUTE WHICH HAS BEEN DEPOSITED WITH THE
     COURT.
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11          CCP§ 386.6(a
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13                                      Til.
           A PARTY SHALL NOT BE DENIED THE ATTONEY'S FEES AUTHORIZED BY
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     CCP§ 386.6(a) FOR THE REASON THAT HE IS HIMSELF AN ATTORNEY APPEARING
15   IN PRO SE AND PERFORMING HIS OWN LEGAL SERVICES.

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            CCP§386.6(b)
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                                      IV.
19        WHEN A DEFENDANT HAS NOT APPEARED IN THE ACTION, SERVICE OF
     NOTICE OR PAPERS NEED NOT BE MADE UPON THE DEFENDANT.
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21          CCP§ 1014.
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23          Defendants MANANTESH         KAROSHI, ANAND        KAROSHI, and PRAVEEN KAROSHI,
24   have all been served long ago, and have not appeared in the action.
25

26   Ml
27   Mh
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                                                      -2-
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISCHARGE
                 AND DISMISS PLAINTIFF FROM THE ACTION AND TO AWARD FEES AND COSTS
Vv.
          THE QUESTION AS TO WHETHER A DOCUMENT NEEDS TO BE SERVED
     ABROAD IS DETERMINED ACCORDING TO THE LAW OF THE FORUM, LE. BY THE
     COURT OF THE STATE WHERE THE LAWSUIT IS PENDING UNDER ITS OWN LAW.


              Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988)

              ("Hence neither the language of the Convention nor the negotiating history
              contradicts our interpretation of the Convention according to which the internal
              law of the forum is presumed to determine whether there is occasion for service
              abroad") (Id. at P. 704)

              The forum state is California, and notices are not required to be served on Defendants who

     have not appeared per CCP§1014.      Despite that, Plaintiff has sent courtesy copies of the Notice and

     Motion via email, to the other Defendants.
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                                                  CONCLUSION
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              Plaintiff could not distribute the funds he had been holding in trust for Defendants,    without
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     them agreeing to the distribution.   Defendants did not agree, and made competing claims for
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     portions of the funds
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              All Defendants have been served, and only Defendant MAHESH KAROSHI,                has
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     Answered/Appeared.
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              Plaintiff has been forced to incur $2,007.70 in costs for filing fees, fees for service of
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     process, (3 under the Hague Convention) and filing electronically with the court. Plaintiff has been
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     required to spend at least 27.9 hours of time at $450.00/hr. Fees requested are $12,555.00.
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                                                                     Respectfully submitted
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                                                                                   )
                                                                                           Kp
     DATED:     August I      2018
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                                                                                   wh      M
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                                                                           {
26                                                                      ROBERT‘ B. KOPELSON
                                                                        In Pro Per
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                                                  3
      PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISCHARGE
                 AND DISMISS PLAINTIFF FROM THE ACTION AND TO AWARD FEES AND COSTS