Motion to Declare Vexatious Litigant in PAUL BUKOWSKI VS TONYA BARRETT| Trellis.Law

On August 31, 2020 a Motion,Ex Parte was filed involving a dispute between Bukowski Paul, and Barrett Tonya, for Contractual Fraud (General Jurisdiction) in the District Court of Los Angeles County.

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Electronically|HILED by Superior Court of California, County of Los Angeles on 06/03/2021 10:01 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Dejuty Clerk

Anthony Ukran, Esq. (SBN: 234605)
THE LAW OFFICES OF ANTHONY UKRAN, APC
15910 Ventura Blvd., Ste. 1405
Encino, CA 91436
Phone: (818) 387-8960
E-mail: anthony.ukran@gmail.com

Attorneys for Defendant,
TONYA BARRETT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

10
11 PAUL BUKOWSKI CASE NO.: 20STCV32984
12 Plaintiff, NOTICE OF MOTION AND MOTION TO)
DEEM PLAINTIFF PAUL BUKOWSKI A
13 Vv.
VEXATIOUS LITIGANT;
14 TONYA BARRETT, DECLARATION OF ANTHONY UKRAN,
ESQ.; AND MEMORANDUM OF POINTS|
15 and DOES 1 - 10, AND AUTHORITIES IN SUPPORT
THEREOF
16 Defendants.
7 Date: November 17, 2021
Time: 8:30 a.m.
18 Dept.: 45
RES. ID. 173233430298
19
20 TO PLAINTIFF, PAUL BUKOWSKI, in Pro Per:

21 NOTICE IS HEREBY GIVEN that on November 17, 2021, at 8:30 a.m., or as soon

22 thereafter as the matter may be heard, in Department 45 of the Los Angeles Superior Court,

23 located at 111 N. Hill Street, Los Angeles, CA 90012, Defendant TONYA BARRETT will

24 move for an order deeming Plaintiff PAUL BUKOWSKI a vexatious litigant as defined in Cal.

25 Code Civ. Pro. §391. Consistent with such a determination, Defendant respectfully requests

26 the Court order Plaintiff to furnish security in the instant action and issue a pre-filing order

27 prohibiting Plaintiff from filing any new litigation in the Courts of this State without first

28
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DEFENDANT'S MOTION TO DEEM PLAINTIFF A VEXATIOUS LITIGANT

Bukowski v. Barrett Case No. 20STCV32984
obtaining leave from the presiding judge of the Court where the litigation is proposed to be
filed.
This motion will be made on the ground that Plaintiff is a vexatious litigant and that
there is no reasonable probability that Plaintiff will prevail in this action against Defendant.
This motion will be made based on this Notice, the attached Memorandum of Points

and Authorities, the Declaration of Anthony Ukran, Esq., the attached exhibits, Request for
Judicial Notice filed on October 5, 2020, and such other oral and documentary evidence and

argument as may be submitted with the Defendant’s Reply Brief and at the hearing.

10 Dated: June 3, 2021 The Law Offices of Anthony Ukran, APC

12 By zo
ANTHO! UKRAN,
13 Attorneys for Defendant,
14 TONYA BARRETT

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DEFENDANT'S MOTION TO DEEM PLAINTIFF A VEXATIOUS LITIGANT

Bukowski v. Barrett Case No. 20STCV32984
TABLE OF CONTENTS
Memorandum of Points and Authorities
I Introduction .....
IL There is no reasonable probability that Plaintiff will prevail in this action against
Defendant

Ill. Plaintiff's history of litigation abuse .

1 Plaintiff’ s Request for Order to Modify Restraining Order ...
2. Bukowski’s Request for Order re Sanctions
3 Bukowski’s Motion to Quash Service of Motions

10 4 Plaintiff s Motion for Reconsideration was Frivolous
11 5 Plaintiffs “Marvin Action” is Barred by the Statute of Limitations sees
12 IV. Plaintiff's history of abuse of the discovery process
13 1 Bukowski’s Notice in Lieu of Subpoena Duces Tecum issued to Barrett pursuant
14 to Cal. Code of Civ. Pro. 1987(b)..
15 Bukowski caused to be issued a Subpoena to Barrett’s attorney regarding the
16 spelling of his name and his citizenship status
17 Bukowski caused to be issued a Subpoena to attorneys in a case involving
18 Anthony Ukran’s father 2.0 0.000. cc cece eec cece eee cee ee eee settee eeeeeeeeeees 5
19 Bukowski caused to be issued a subpoena to Defendant’s employer, Maya
20 Lieberman

21 Bukowski caused to be issued a subpoena to the Private Investigator Nils
22 Grevillius

23 Bukowski issued several discovery requests in this case during a stay of the
24 proceedings
25 Legal Arguments ..

26 1 The current lawsuit
27 2. Plaintiff's Request for Order to Modify Restraining Order 10

28 3. Bukowski’s Request for Order re Sanctions ll
1

TABLE OF CONTENTS

Bukowski v. Barrett Case No. 20STCV32984
Bukowski’s Motion to Quash Service of Motions 11

Bukowski’s Motion for Reconsideration of Discovery Sanctions Lacked Merit

Plaintiff s Frivolous Marvin Action 12
Bukowski’s Notice in Lieu of Subpoena Duces Tecum issued to Barrett pursuant
to Cal. Code of Civ. Pro. 1987(b) 13

Bukowski caused to be issued a Subpoena to Barrett’s attorney regarding the
spelling of his name and his citizenship status 13

9 Bukowski’s subpoena to Mardirossian & Associates, Inc. ........0........00.04 14
10 10. Bukowski caused to be issued a subpoena to Defendant’s boss, Maya Lieberman
11 14

12 11. Subpoena to Nils Grevillius 14
13 12. Plaintiff Issued Discovery Requests During Stay of Proceedings 14
14 VI. Conclusion . . 15

15S

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TABLE OF CONTENTS

Bukowski v. Barrett Case No. 20STCV32984
TABLE OF AUTHORITIES

CASES
Askew v. Askew (1994) 22 Cal.App.4" 942
Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426 11
Dunkin v. Boskey (2000) 82 Cal.App.4" 171
Fuller v. Lindenbaum (1938) 29 Cal.App.2d 227 11, 14
Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal. App. 4th 1260
Hanna v. Little League Baseball, Inc. (2020) 53 Cal.App.5th 871 15

Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal. App.4th 970 10
10 Marvin v. Marvin (1976) 18 Cal.3d 660 12

1] Mineral Park Land Co. v. Howard (1916) 172 Cal. 289 10

12 Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal. App. 4th
13 798 11
14 Perry v. Atkinson (1987) 195 Cal.App.3d 14 7,9

15 Taliaferro v. Hoogs (1965) 236 Cal. App. 2d 521
16 Tri-State Mfg. Co. v. Superior Court of Los Angeles County (1964) 224 Cal.App.2d 442 . . 12
17 Inre TV. (2013) 217 Cal. App.4th 126 10

18 STATUTES
19 Cal. Civ. Code 843.4... 0.0. ec cece ccc c cece eect tebe ventbbeeeteetesteeeeeeeeees 9
20 Call. Civ. Code 843.5... 000. ccc ccc eee cece eect e eee eee eb ben ett bbc tet eet tiettaeeeieeea 9

21 Cal. Code. Civ Proc. § 339 12
22 Cal. Code Civ. Proc. § 391.1
23 Cal. Code Civ. Proc. § 391.3
24 Cal. Code Civ. Proc. § 391.6 14

25 Cal Code Civ Proc § 1008 12

26 Cal. Code. Civ. Proc. § 2017.010 13
27 Cal. Fam. Code §271 11

‘TABLE OF AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
Plaintiff Paul Bukowski (“Bukowski”) plainly meets the definition of a vexatious
litigant. Bukowski is and has been /n Propria Persona during all times discussed below, since

approximately July 8, 2019. Plaintiff and Defendant Tonya Barrett (“Barrett”) used to be ina
dating relationship but were never married and do not have any children. There is currently a

Domestic Violence Restraining Order (“DVRO”) in place protecting Barrett from Bukowski in
the L.A.S.C. Case No. 19STRO02573, issued on July 8, 2019, for a period of three years.

Bukowski has continued to harass Barrett by filing frivolous motions and issuing
10 harassing discovery requests seeking irrelevant information that is also protected by various
11 privacy rights. Bukowski has also generally been engaging in unmeritorious tactics.
12 As a means of preventing Bukowski from continuing to inflict emotional abuse upon
13 Barrett and avoiding the time and expense associated with Bukowski’s troublesome and
14 wasteful litigation, Defendant Tonya Barrett respectfully requests that the Court deem him a
15 vexatious litigant pursuant to Cal. Code of Civ. Pro. §391 et. seq. Upon doing so, Barrett

16 requests the Court require Bukowski to furnish security in the instant action and issue a pre-
17 filing order precluding him from filing any new litigation in the Courts of this state without first
18 obtaining permission from a Judge where the litigation is proposed to be filed.

19 I THERE IS NO REASONABLE PROBABILITY THAT PLAINTIFF

20 WILL PREVAIL IN THIS ACTION AGAINST DEFENDANT

21 Plaintiff’ s First Cause of Action for Breach of Oral Contract contends that Defendant
22 breached an alleged promise to have children with Bukowski using donor eggs. Any promises
23 or agreements to have children are not enforceable in California.
24 Plaintiff s Second Cause of Action for Promissory Fraud is again based on the
25 Defendant’s alleged false promise to have children with Bukowski.
26 Plaintiff's Third Cause of Action is for Intentional Infliction of Emotional Distress,
27 which is based on the same promise to have children.
28

MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v, Barrett Case No. 20STCV32984
Plaintiff’ s Fourth Cause of Action for a Breach of Written Contract is based on the fact
that there was alleged written contract whereby Barrett agreed, that in the event of a “separation
or divorce” she would make available the donor eggs to Bukowski if he wishes. Barrett gifted
the donor eggs to Bukowski on or about July 24, 2020, prior to him filing this action.
TIL. PLAINTIFF’S HISTORY OF LITIGATION ABUSE

1. Plaintiff's Request for Order to Modify Restraining Order
On January 10, 2020, after the DVRO was issued against Bukowski protecting Barrett,
he filed a Request for Order to Modify the DVRO and for Property Control and Asset Freeze.

In said Request for Order, Bukowski moved the Court to amend the DVRO and force Barrett to
10 utilize mediation services in order to resolve their alleged “joint assets and any other
1 unresolved matters.” Bukowski also sought an asset freeze of various assets Bukowski believes
12 to be “joint assets” of the parties; requested temporary use, possession, and control of his 50%
13 of the alleged jointly owned assets; and for Barrett to accept from his payments on his half of
14 the storage fees of the allegedly jointly owned human donor eggs that the parties contemplated
15 on using to conceive a child prior to the breakdown of their relationship. The Court denied
16 Bukowski’s request on February 27, 2020. (See Reporter’s Transcript of Proceedings, dated
17 February 27, 2020, page 3, line 19 to page 4, line 21.)
18 2. Bukowski’s Request for Order re Sanctions

19 On April 17, 2020, Bukowski filed a Request for Order in the DVRO case re Sanctions

20 pursuant to Cal. Fam. Code §271 against Barrett and her attorney. Bukowski’s Request for
21 Order is based on the fact that Barrett refuses to enter into settlement discussions with him in
22 the DVRO case with respect to the alleged “joint property” after the Court had already found

23 that the Court has no subject matter jurisdiction to address any such issues in the DVRO case.
24 Barrett has no obligation to mediate any kind of property issues with Bukowski that are not at
25 issue in a case. Bukowski also presents no evidence whatsoever regarding Anthony Ukran’s
26 alleged violations of the rules of ethics or the Business and Professions code. Cal. Fam. Code
27 §271 also does not allow sanctions against attorneys. Bukowski’s request was denied on

28 October 21, 2021.
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MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
3. Bukowski’s Motion to Quash Service of Motions

On June 9, 2020, Bukowski filed a Motion to Quash Service of Barrett’s Order to Show

Cause — Contempt and Barrett’s Request for Order re Sanctions. On May 6, 2020, Barrett filed

a Proof of Service in the DVRO case evidencing that Nils Grevillius personally served
Bukowski with the documents in question on April 26, 2020. Despite the rebuttable
presumption created by the filing of the Proof of Service that the service was proper, Bukowski
failed to provide any evidence whatsoever in his moving papers, even though his moving
papers contained a 10 page declaration. In fact, Bukowski stated in his motion the following:
“T have evidence, which proves, without ANY doubt, that his claim of personal service is NOT
10 true.” (Emphasis in the original.) He went on to state in the next paragraph: “I also have
11 documentary evidence which proves, without ANY doubt, that | was NOT ‘at my van’ parked
12 near 1917 Palmerston Place, when Nils Grevillius falsely alleges he personally served me... .”
13 (Emphasis in the original.) Bukowski went on to state: “pursuant (sic.) Rule 5.98(b) of the

14 Title 5 Rules governing document exchange, I will NOT be providing attorney Anthony Ukran
15 a copy of my documentary evidence in advance, as it will be used to impeach both he and Nils
16 Grevillius at the Motion to Quash hearing on rebuttal.” In his Conclusion section, Bukowski

17 wrote: “Simply put, attorney Anthony Ukran is an absolute liar, and I eagerly anticipate seeing
18 the expression on his face, when I present my evidence at this Motion to Quash hearing, and
19 prove, on the record, that he and Nils Grevillius committed perjury when they filed their false
20 Proof of Service.” (Emphasis in the original.)
21 At the time of the hearing on Bukowski’s motion, which took place on August 20, 2020,
22 the Court made the following findings and orders: “1. Respondent’s Motion lacks any evidence
23 to overcome the rebuttable presumption that the Proof of Service filed by Petitioner on May 6,
24 2020 is accurate. 2. Respondent’s Motion to Quash is DENIED in its entirety, with prejudice.”

25 4. Plaintiff's Motion for Reconsideration was Frivolous
26 When Plaintiff filed his Motion for Reconsideration in the parties’ DVRO matter, asking
27 for the Court to reconsider its discovery sanctions order against him, he did not put into
28 evidence any "new or different facts, circumstances, or law."

MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
5. Plaintiff’s “Marvin Action” is Barred by the Statute of Limitations
On April 21, 2021, Plaintiff filed a “Marvin Action” against Defendant, alleging a
breach of oral contract. In his Verified Complaint, Plaintiff acknowledges that he knew that

Defendant breached the oral contract on April 19, 2019, more than two years earlier.

IV. PLAINTIFF’S HISTORY OF ABUSE OF THE DISCOVERY PROCESS
1 Bukowski’s Notice in Lieu of Subpoena Duces Tecum issued to Barrett
pursuant to Cal. Code of Civ. Pro. 1987(b).
On or about April 18, 2020, Barrett’s attorney was served with a Notice to Attend
Hearing or Trial and Bring Documents, addressed to Barrett, demanding that she produce her
10 income tax returns as well as her medical bills, so that he can “prove” that she allegedly
11 committed tax fraud. Barrett’s finances were not at issue and neither were any of her medical

12 bills or information, all of which is protected by privacy and doctor-patient privilege. The
13 Court quashed this Notice pursuant to Barrett’s Motion for a Protective Order on September 29,
14 2020.
15 2. Bukowski caused to be issued a Subpoena to Barrett’s attorney regarding the

16 spelling of his name and his citizenship status.
17 On or about May 1, 2020, Bukowski caused Defendant’s attorney to be personally
18 served at his private residence with a Civil Subpoena Duces Tecum, seeking his appearance at
19 the hearing on Barrett’s RFO re Attorney’s Fees and Sanctions as well an OSC re Contempt
20 against Bukowski. The Subpoena seeks his birth certificate and “its certified translation to
21 English (Latin Alphabet) showing the true translation and spelling of Anthony Ukran’s last
22 name in English... .” The subpoena also seeks a copy of his application for Naturalization as a
23 citizen of the United States and other related documents; and a record of him taking the “Oath

24 of Allegiance to the United States.” The Subpoena contains an attachment where Bukowski

25 attempts to justify the issuance of the Subpoena by claiming that he must discover the true
26 spelling of Mr. Ukran’s last name and his alleged citizenship of the “Communist controlled
27 Union of Soviet Socialist Republics.” This subpoena was quashed by the Court on September
28 29, 2020.
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MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
3. Bukowski caused to be issued a Subpoena to attorneys in a case involving
Anthony Ukran’s father
On or about May 1, 2020, Bukowski caused Defendant’s attorney to be served with a

copy of a subpoena issued to Mardirossian & Associates, Inc., attorneys who represented a
party in a lawsuit against Mr. Ukran’s father, related to a car accident. The subpoena sought
Mr. Ukran’s father’s responses to Form Interrogatories in that case in order to obtain the correct
spelling of Mr. Ukran’s name, which was quashed by the Court on September 29, 2020.
4. Bukowski caused to be issued a subpoena to Defendant’s employer, Maya
Lieberman

10 On or about May 1, 2020, Bukowski caused Defendant’s attorney to be served with a
11 copy of a Civil Subpoena Duces Tecum that he issued to Maya Lieberman, who is Barrett’s
12 employer and boss. Once Ms. Lieberman was served with the subpoena she showed it to
13 Barrett and was upset, in turn upsetting Barrett.

14 Said subpoena called for Ms. Lieberman to produce a copy of a letter sent to her by
15 Bukowski entitled “DEMAND for Preservation of Evidence.” Barrett alleges in her OSC re
16 Contempt against Bukowski that sending that letter to her boss was harassing, in violation of
17 the DVRO. However, there is no dispute as to the contents of the letter or the fact that
18 Bukowski sent it to her. A copy of the letter was also filed with the Court as an exhibit to
19 Barrett’s OSC re Contempt and available to the public, including Bukowski. There was no
20 reasonable need whatsoever for Bukowski to issue said subpoena other than harassment.
21 The subpoena also calls for Ms. Lieberman to appear in court at the sanctions hearing in
22 order to “Testify exactly how Mr. Bukowski’s conduct of properly issuing this ‘DEMAND for
23 Preservation of Evidence’ is ‘frustrating the settlement of the jointly owner donor eggs’, (sic.)
24 as alleged, under oath, by divorce attorney Anthony Ukran.”
25 This subpoena was quashed by the Court on September 29, 2020.
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27 11
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MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
5. Bukowski caused to be issued a subpoena to the Private Investigator Nils

Grevillius

In connection with his frivolous Motion to Quash Service, which was denied, on July
20, 2020, Bukowski caused to be issued a Civil Subpoena For Personal Appearance at Trial or

Hearing for the appearance of Nils Grevillius. Mr. Grevillius is a private detective that was
hired by Barrett in order to find and personally serve Bukowski with her OSC re Contempt, as
required by statute. Bukowski has been attempting to conceal his true address by using a P.O.
Box on all of his communications and papers filed with the Court.
Bukowski caused this subpoena to be issued for the appearance of Mr. Gevillius despite
10 the fact that Motions are usually determined by affidavits alone and Bukowski presented no
11 evidence whatsoever in his moving papers that would in any way justify his tactics.
12 This subpoena was quashed by the Court on September 29, 2020.
13 6. Bukowski issued several discovery requests in this case during a stay of the

14 proceedings.
15 After a Motion to Declare Plaintiff a Vexatious Litigant was filed by the Defendant in this
16 case, Plaintiff issued a Request for Admissions (Set One) on November 12, 2020; Form

17 Interrogatories — General (Set One) on November 12, 2020; Request for Production of

18 Documents (Set One) on December 21, 2020.

19 V. LEGAL ARGUMENTS
20 In any litigation pending in any court of this state, at any time until
final judgment is entered, a defendant may move the court, upon
21 notice and hearing, for an order requiring the plaintiff to furnish
22 security or for an order dismissing the litigation pursuant to
subdivision (b) of Section 391.3. The motion for an order requiring
23 the plaintiff to furnish security shall be based upon the ground, and
supported by a showing, that the plaintiff is a vexatious litigant and
24 that there is not a reasonable probability that he or she will prevail
25 in the litigation against the moving defendant.
Cal. Code Civ. Proc. § 391.1
26
27 California Code of Civil Procedure, Section 391, defines “vexatious litigant” as

28 follows:
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MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
“(b) “Vexatious litigant” means a person who does any of the following: ... (3) In any
litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or
other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or
solely intended to cause unnecessary delay.”
“Except as provided in subdivision (b), if, after hearing the evidence upon the motion,

the court determines that the plaintiff is a vexatious litigant and that there is no reasonable
probability that the plaintiff will prevail in the litigation against the moving defendant, the court
shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such
amount and within such time as the court shall fix.” Cal. Code Civ. Proc. § 391.3(a).
10 The requirement to furnish security does not unconstitutionally discriminate against
11 litigants who cannot afford to furnish the security. Yaliaferro v. Hoogs (1965) 236 Cal. App.
12 2d 521, 527.

13 The filing of only three unmeritorious motions may be enough for a finding of a
14 vexatious litigant. Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal. App. 4th
15 1260, 1266 — 1267.

16 In the case at bar, Plaintiff clearly meets the definition of a vexatious litigant. He has a
17 history of filing at least five unmeritorious motions and suits. Four of the motions have already
18 been denied by the Court. The Marvin Action filed by Plaintiff is clearly barred by the Statute
19 of Limitations. In the lawsuit herein Plaintiff has no reasonable probability of prevailing.
20 Plaintiff issued five discovery requests seeking irrelevant information for the sole purpose of
21 harassing Barrett and others, including her attorney. Lastly, Plaintiff issued three discovery
22 requests in these proceedings during a Stay.
23 1, The current lawsuit

24 In the current lawsuit, Bukowski pleads four causes of action. The second and third
25 causes of action are torts of Promissory Fraud and Intentional Infliction of Emotional Distress,

26 all based on an alleged promise to have children, which is categorically barred by Perry v.
27 Atkinson (1987) 195 Cal. App.3d 14, 19, holding that “Tort liability cannot apply to the choice,
28 however motivated, of whether to conceive or bear a child.”

MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v, Barrett Case No. 20STCV32984
The first cause of action is for Breach of Oral Agreement for Defendant to conceive or
bear a child through in vitro fertilization. Plaintiff cannot reasonably prevail on this cause of
action as the only recovery that is permitted is pursuant to Unjust Enrichment. Plaintiff cannot
recover under this theory because Defendant did not retain any benefit; the recovery is barred
in this case due to policy considerations of not interfering in people’s procreative decisions; in
that Unjust Enrichment is an equitable remedy and Plaintiff comes with Unclean Hands; that
Defendant did not in fact receive any benefit from the alleged breach; and that Plaintiff made
compliance with the alleged contract impossible or impractical.
In Dunkin v. Boskey (2000) 82 Cal.App.4" 171, 178, the parties entered into a written
10 contract to create a child by the use of artificial insemination. The woman did in fact give birth
11 toachild. /d, at 179. After the birth, her male partner cared for the child on a daily basis, but

12 he and the mother never married and he never adopted the child. /d. The mother then
13 terminated her relationship with him, moved to another state and denied to him any custody or
14 visitation rights. /d.
15 The appellate court held that “[t]o the extent appellant seeks damages for the loss of his
16 paternity rights, his action implicates an intensely private familial association in which the
17 court are reluctant to intervene. /d., at 195. The court however ruled that the father might be

18 entitled to recovery for “special damages for readily ascertainable economic loss under an
19 unjust enrichment theory.” /d. “The equitable remedy of restitution to avoid ‘unjust
20 enrichment’ has its roots in the common law. ‘[O]ne person should not be permitted unjustly to
21 enrich himself at the expense of another, but should be required to make restitution of or for
22 property or benefits received, retained, or appropriated, where it is just and equitable that such
23 restitution be made, and where such action involves no violation or frustration of the law or

24 opposition to public policy, either directly or indirectly.’” Jd.
25 In the case at bar, Defendant did not obtain any benefit as a result of her breaking her
26 promise to have children with Plaintiff. Defendant did not obtain the benefit of having a child.
27 Defendant also did not retain the benefit of purchasing the donor eggs as she gifted them to
28
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MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
Plaintiff, as he wanted. Plaintiff allegedly paid for the donor eggs and he can have the donor
eggs.
Plaintiff’ s recovery is also barred by “anti-heart-balm” statute and policy
considerations. “If no cause of action can exist in tort for fraudulent promise to fulfill the
rights, duties and obligations of a marriage relationship, then logically no cause of action can
exist for a fraudulent promise by a married man to impregnate a woman not his wife.” Perry v.
Atkinson (1987) 195 Cal.App.3d 14, 19.
Although the Perry case only refers to a tort cause of action, in Askew v. Askew (1994)
22 Cal.App.4"* 942, 954, (where the suit was for fraud based on a breach of promise of love and
10 affection and to hold Plaintiffs property in trust for him and his children) the court held that
11 “tort labels of fraud and deceit are by themselves irrelevant. Courts must look to the substance
12 of the lawsuit.” The court then went into extensive analysis of prior case law, reasoning that
13 the court must look at the substance of the facts and that if the facts are essentially that a cause
14 of action is to punish the wife for fraudulent representations, it is barred regardless of the label
15 of the cause of action. The court held that “the policy behind the anti-heart-balm statutes [Cal.
16 Civ. Code §43.4 and 43.5] ... . these statutes ... a basic reluctance on the part of both the
17 Legislature and the judiciary to allow recovery for promises of love. This reluctance stems, no
18 doubt, from the sheer unseemliness of litigating tender matters of romantic or sexual emotion in
19 courts of law.” Jd., at 957 — 958.

20 In the case at bar, enforcing a promise, whether contractual or otherwise, for Defendant
21 to have children with Plaintiff is exactly the kind of action that is barred. Defendant’s decision
22 of whether to have or not to have children with Plaintiff is no different than a promise of love,
23 affection and romantic emotion.
24 Plaintiff also comes with Unclean Hands. Since the only allowed recovery is in equity,

25 “Tt]he doctrine demands that a plaintiff act fairly in the matter for which he seeks a remedy. He
26 must come into court with clean hands, and keep them clean, or he will be denied relief,

27 regardless of the merits of his claim. ... The doctrine promotes justice by making a plaintiff
28 answer for his own misconduct in the action. It prevents "a wrongdoer from enjoying the fruits
9

MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
of his transgression” Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th
970, 978.
Here, the Court held that Plaintiff committed Domestic Violence against Defendant.
Defendant stated in her request for a Domestic Violence Restraining Order (See Exhibit U, 94),
on April 19, 2019, that Plaintiff has been engaging in Domestic Violence against her for at least
a year prior to that date, encompassing the date of September 2, 2018, which is the date that
Plaintiff claims that she allegedly breached the contract. (See Complaint, { 50). It would be
unconscionable for the Court to grant Plaintiff relief for Defendant’s alleged breach of promise
to have children with him when Plaintiff was engaging in Domestic Violence against her.
10 Lastly, “where performance depends upon the existence of a given thing, and such
11 existence was assumed as the basis of the agreement, performance is excused to the extent that
12 the thing ceases to exist or turns out to be nonexistent.” Mineral Park Land Co. v.
13 Howard (1916) 172 Cal. 289, 292.
14 In agreeing to have children with Plaintiff, Defendant must have relied on the fact that
15 Plaintiff would not violate the law by committing Domestic Violence against her. Domestic
16 Violence between the parents is considered child abuse. “Exposing children to recurring
17 domestic violence may be sufficient to establish jurisdiction under section 300, subdivision
18 (b).” Inre T.V. (2013) 217 Cal.App.4th 126, 134. As such, when Plaintiff committed

19 Domestic Violence against Defendant, he made it impossible for her to have children with him.
20 The fourth cause of action is for an alleged breach of contract to allow Bukowski to
21 have the donor eggs purchased by the parties in contemplation of having children. This cause
22 of action is moot as Barrett has in fact gifted the donor eggs to Bukowski on or about July 24,
23 2020, prior to Bukowski filing this action. (See Dec. Anthony Ukran, Ex. “A.”).
24 2. Plaintiff’s Request for Order to Modify Restraining Order

25 The first frivolous Motion filed by Bukowski in Pro Per in the case L.A.S.C. Case No.
26 19STRO02573 (See Req. Jud. Not., “B”) was for the sole harassment of Barrett and was denied
27 by the Court. (See Req. Jud. Not., “C”). In that Motion, Bukowski asked for orders relating to

28 allegedly “joint property” even though there is nothing in the Domestic Violence Prevention
10

MEMORANDUM OF POINTS AND AUTHORITIES,

Bukowski v. Barrett Case No. 20STCV32984
Act that would authorize the Court to make the orders he sought, as was found by the Court.
(See Reporter’s Transcript of Proceedings, dated February 27, 2020, page 3, line 19 to page 4,
line 21). His request in said Motion to force Barrett to mediate issues with him that were not
the subject of the court proceedings was for the sole purpose of harassing Barrett, in violation
of the DVRO. (See Req. Jud. Not., “A”).
3. Bukowski’s Request for Order re Sanctions
Bukowski filed a Request for Order re Sanctions against Barrett and her attorney

pursuant to Cal. Fam. Code §271. (See Req. Jud. Not., “D”). First, such sanctions cannot be
sought against an attorney. Orange County Dept. of Child Support Services v. Superior Court

10 (2005) 129 Cal. App. 4th 798, 804. Second, Cal. Fam. Code §271 authorizes sanctions to the
11 “extent to which the conduct of each party or attorney furthers or frustrates the policy of the
12 law to promote settlement of litigation and, where possible, to reduce the cost of litigation by

13 encouraging cooperation between the parties and attorneys.” Since the Court had already found

14 that it has no subject matter jurisdiction over alleged property rights ina DVRO matter, Barrett
15 cannot possibly be obligated to engage in any kind of settlement discussions with respect to
16 property rights and certainly cannot be sanctioned for refusing to do so in the DVRO case.
17 Bukowski’s Request for Sanctions was denied by the Court.
18 4. Bukowski’s Motion to Quash Service of Motions

19 Bukowski’s Motion to Quash (See Req. Jud. Not., “E”) was for the sole purpose of
20 delaying the proceedings and harassing Barrett, her attorney and the private investigator who
21 was hired to serve him. Despite the fact that “[i]t has been held that the filing of a proof of
22 service creates a rebuttable presumption that the service was proper,” Dill v. Berquist
23 Construction Co. (1994) 24 Cal.App.4th 1426, 1441, Bukowski failed to attach any evidence
24 whatsoever to his Motion showing or tending to show that he was not served as indicated on

25 the Proof of Service. Bukowski ignored the law that states that “motions are usually made and

26 determined on affidavits alone ... .” Fuller v. Lindenbaum (1938) 29 Cal.App.2d 227, 230. In
27 an affidavit facts must be positively set forth, and an affidavit which merely states conclusions

MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984
or opinions of the affiant is insufficient. Tri-State Mfg. Co. v. Superior Court of Los Angeles
County (1964) 224 Cal. App.2d 442, 445.
On August 20, 2020, the Court found that Bukowski’s Motion lacks any evidence to

overcome the presumption and denied the Motion. (See Req. Jud. Not., “F”).
5. Bukowski’s Motion for Reconsideration of Discovery Sanctions Lacked Merit

"(a) When an application for an order has been made to a judge, or to a court, and
refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected
by the order may, within 10 days after service upon the party of written notice of entry of the
order and based upon new or different facts, circumstances, or law, make application to the
10 same judge or court that made the order, to reconsider the matter and modify, amend, or revoke
11 the prior order." Ca/ Code Civ Proc § 1008.
12 When Plaintiff filed his Motion for Reconsideration in the parties’ DVRO matter, he did

13 not put into evidence any "new or different facts, circumstances, or law." In his Income and

14 Expense Declaration, filed on September 17, 2020, prior to the hearing, he clearly states that
15 his unemployment benefits are expiring. In his Motion for Reconsideration, Plaintiff argues
16 that the new facts or circumstances are that he received a letter stating that he will no longer be
17 receiving Unemployment benefits. There is no difference between these two facts. At the time
18 of the original hearing, it was established that Plaintiff will not be receiving Unemployment
19 benefits going forward. Plaintiff's Motion was denied by the Court.
20 6. Plaintiffs Frivolous Marvin Action

21 “Within two years:

22 1. An action upon a contract, obligation or liability not founded upon an instrument of writing,
23 except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of
24 this code; ... .” Cal. Code. Civ Proc. § 339.
25 Plaintiffs causes of action in his latest civil suit against Defendant is a “Marvin Action’ »
26 brought pursuant to Marvin v. Marvin (1976) 18 Cal.3d 660, which authorizes parties in a non-
27 marital relationship to enforce certain express and implied contracts. These causes of actions
28 are now time barred.
12

MEMORANDUM OF POINTS AND AUTHORITIES,

Bukowski v. Barrett Case No. 20STCV32984
Plaintiff asserts three causes of action: (1) Breach of Express Contract based on oral
agreement; (2) Breach of Implied Oral Agreement; and (3) Specific Performance based on the

breaches in (1) and (2). Plaintiff knew or should have known that these causes of action arose
by no later than April 19, 2019, when he was personally served with Defendant’s Temporary
Domestic Violence Restraining Order containing a Move Out order, effectively evicting him
from her residence. Moreover, Plaintiff admits in each of the three causes of action that

Defendant breached the alleged oral contracts on April 19, 2019. Plaintiff filed his suit on
April 21, 2021, more than two years later.

7. Bukowski’s Notice in Lieu of Subpoena Duces Tecum issued to Barrett
10 pursuant to Cal. Code of Civ. Pro. 1987(b).
11 “TA]ny party may obtain discovery regarding any matter, not privileged, that is relevant
12 to the subject matter involved in the pending action or to the determination of any motion made
13 in that action, if the matter either is itself admissible in evidence or appears reasonably

14 calculated to lead to the discovery of admissible evidence. Cal. Code. Civ. Proc. § 2017.010.
15 On or about April 18, 2020, Barrett’s attorney was served with a Notice to Attend
16 Hearing or Trial and Bring Documents, addressed to Barrett, demanding that she produce her

17 income tax returns as well as her medical bills, so that he can “prove” that she allegedly
18 committed tax fraud. (See Dec. Anthony Ukran, Ex. “B”). Barrett’s finances were not at issue
19 and neither were any of her medical bills or information, all of which is protected by privacy
20 rights and doctor-patient privilege.
21 8. Bukowski caused to be issued a Subpoena to Barrett’s attorney regarding the

22 spelling of his name and his citizenship status.
23 On or about May 1, 2020, Bukowski caused Defendant’s attorney to be personally
24 served at his private residence with a Civil Subpoena Duces Tecum. (See Dec. Anthony Ukran,

25 Ex. “C”). Said subpoena sought documents from Mr. Ukran regarding the spelling of his name
26 and his citizenship status. The frivolity of this subpoena is self-explanatory. It was Quashed
27 by the Court on September 29, 2020.
28 ///
13

MEMORANDUM OF POINTS AND AUTHORITIES,

Bukowski v. Barrett Case No. 20STCV32984
9. Bukowski’s subpoena to Mardirossian & Associates, Inc.

As with the subpoena to Mr. Ukran, the frivolity of the subpoena caused to be issued by
Bukowski to attorneys in his father’s car accident case (See Dec. Anthony Ukran, Ex. “D”),
against seeking the spelling of Mr. Ukran’s last name is self-explanatory. It was Quashed by
the Court on September 29, 2020.
10, Bukowski caused to be issued a subpoena to Defendant’s boss, Maya

Lieberman

On or about May 1, 2020, Bukowski caused Defendant’s attorney to be served with a

copy of a Civil Subpoena Duces Tecum that he issued to Maya Lieberman, who is Barrett’s
10 employer. (See Dec. Anthony Ukran, Ex. “E”). Since Bukowski does not dispute that he sent

11 the letter nor does he dispute the authenticity of the letter attached as an exhibit to Barrett’s
12 motions, the subpoena to Barrett’s employer was for the sole purposes of harassment. It was
13 Quashed by the Court on September 29, 2020.
14 11. Subpoena to Nils Grevillius

1S Bukowski issued a subpoena to the private investigator Nils Grevillius for the hearing
16 on his frivolous Motion to Quash even though “motions are usually made and determined on
17 affidavits alone ... .” Fuller v. Lindenbaum (1938) 29 Cal.App.2d 227, 230. (See Dec.

18 Anthony Ukran, Ex. “F”). Bukowski also presented no evidence to rebut the presumption of
19 the Proof of Service. As such, this subpoena was for the sole purposes of causing a delay and
20 harassment.

21 12. Plaintiff Issued Discovery Requests During Stay of Proceedings

22 "Except as provided in subdivision (b) of Section 391.3, when a motion pursuant to
23 Section 391.1 is filed prior to trial the litigation is stayed. " Cal. Code Civ. Proc. § 391.6.
24 In a case dealing with discovery motions and sanctions, the appellate Court held:
25 "Under the plain language of section 391.6, the entirety of the litigation is stayed once the

26 defendant files a motion to determine that the plaintiff is a vexatious litigant . . . Section 391.6
27 does not carve out any exception for proceedings that may continue during that period except
28
14

MEMORANDUM OF POINTS AND AUTHORITIES

Bukowski v. Barrett Case No. 20STCV32984

ee
for the dismissal of the action under section 391.3, subdivision (b)." Hanna v. Little League
Baseball, Inc. (2020) 53 Cal.App.5th 871, 875-876.

VI. CONCLUSION

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June 03, 2021

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Motion,Ex Parte: PAUL BUKOWSKI VS TONYA BARRETT

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