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170V313092
Santa Clara — Civil I
S. Crabtree
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
Richard M. Ladden (SBN #59629)
1404 Acadia Avenue on 1/16/2020 12:47 PM
Milpitas, CA 95035 Reviewed By: S. Crabtree
Tel: (408)262-5993 Case #17CV313092
Envelope: 3899499
Defendant Pro Per
IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
SHERRY SEITZINGER ) CASE NO. 17CV313092
aka SHERRY ROSS,
Plaintiff, ) DEFENDANT’S SUPPLEMENTAL
) MEMORANDUM IN OPPOSITION TO
ora ) MOTION TO VACATE DEFAULT
10 ) (ORDER) AND DEFAULT JUDGMENT
RICHARD M. LADDEN ) ON THE PLEADINGS
I
Defendant.
; Dept: 20 - Hon. Judge Manoukian
12 ) (originally noticed for Dept. 19 Hon. J.
) Kirwan)
13 )
) Date: January 30, 2020
14 ) Time: 9 A.M.
) Action Filed: July 17, 2017
15 ) Trial Date: N/A - Summary Judgment for
) Defendant Granted April 25, 2019
16 )
)
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I. ARGUMENTS
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A. JUSTIFICATION FOR FILING SUPPLEMENTAL OPPOSITION -
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THE PLAINTIFF APPEARS TO HAVE COMPLETELY
CHANGED THE GROUNDS OF HER MOTION
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21 The plaintiff appears to have completely changed the grounds of her motion to vacate
22 the Default Judgment on the Pleading: The original Notice of Motion was “made pursuant to
23 Code of Civil Procedure § 473 on grounds that the Default (Judgment on the Pleadings) was
24 taken due to her mistake, surprise, inadvertence and excusable neglect ... or in the alternative,
25 1
Defendant’s Supplemental Memorandum In Opposition To Motion To Vacate Default (Order)
And Default Judgment On The Pleadings
mandatory relief, due to her attorney’s mistake and neglect ...” (Pl. Notice of Motion 1:18-22).
The “Supplemental” Notice of Motion appears to be an amended Notice of Motion which has
abrogated the original notice by completely changing the grounds of the motion: “to set aside
and vacate the Default Judgment ... “due to extrinsic fraud or mistake in violation of the
plaintiff's right of Due Process”. (Pl. Supp. Notice of Motion 1:19-21).
Not knowing how the court will interpret the plaintiff's two notices of motion, defendant
must therefore respond to both possible cases - (1) the “supplemental” notice is actually a
“supplemental” notice which only adds the omitted pleading required under § 473; and (2) the
“supplemental” notice is actually an amended notice in which the original grounds of the notice
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I have been abrogated and superseded.
12 B. NO DEFAULT JUDGMENT ON THE PLEADINGS WAS EVER GRANTED
13 Before addressing plaintiff's “supplemental” “(Proposed) Amended Causes of Action
14 With Particularity”, defendant must reiterate that no Default Judgment on the Pleadings wa:
15 ver granted. The defendant obtained summary judgment on April 25, 2019 against the plaintiff
16
in her independent action in equity to set aside defendant’s malicious prosecution default
le
judgment on grounds that the plaintiff failed to provide any admissible evidence to raise a
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triable issue of material fact to defeat the motion. (Order March 26, 2019: 7:20-23). Whether
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based on grounds of the original or “supplemental” notice, the plaintiff's motion is frivolous.
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(Def. Mem. In Opp. To Motion Arg. IIA 3: 7-17, Arg. ILC 2:1-15).
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C. THE MOTION IS LATE
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In case (1), i.e., if the “supplemental” notice is actually “supplemental”, the motion was
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filed beyond the § 473 six-month statutory requirement. (Def. Mem. In Opp. To Motion Arg.
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ILB 3:18-24). The plaintiff has ignored responding to this dispositive fact.
25 2
Defendant’s Supplemental Memorandum In Opposition To Motion To Vacate Default (Order)
And Default Judgment On The Pleadings
1 D. THE ISSUES RAISED BY PLAINTIFF’S SUPPLEMENTAL NOTICE HAVE
BEEN DECIDED ADVERSELY TO HER ON FIVE SEPARATE OCCASIONS
In case (2), if the original grounds of the notice have been superseded, i.e., “to set aside
and vacate the Default Judgment ... “due to extrinsic fraud or mistake in violation of the
plaintiff's right of Due Process”, the plaintiff is attempting to re-litigate the identical issues
previously decided adversely to her on five separate occasions by three different judges - (1)
Code of Civ. Proc. § 473(b) Motion to Vacate the Default Judgment (Hon. J. McGowen Order
8/19/16); (2) Code of Civ. Proc. § 473(b) Motion for Renewal of Motion to Vacate The Default
Judgment (Hon. J. Arand Order 8/23/17 2:5-14); (3) independent action in equity to set aside
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the default judgment (filed 7/17/17 - Hon. J. Kirwan Summary Judgment Order 3/26/19 6:5-
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7:23, Judgment 4/25/19); (4) Motion to Vacate [Summary] Judgment and Order (Hon. J.
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Kirwan Order 9/30/19 1:22-2:6); (5) Motion For Reconsideration Of Order Denying 473(b)
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Motion To Vacate Summary Judgment (1/23/20 (admittedly anticipated)). (See Request for
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Judicial Notice).
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E. THE PLAINTIFF’S PURPORTED PLEADING IS OBJECTED
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TO AS A MERELY A POORLY DISGUISED ARGUMENT
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Evidentiary objections can be made to proffered evidence in a motion. Evidentiary
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objections can be made in either a separate paper served and filed, and identified as such, or in a
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separate section of the opposition’s memorandum. The standards for admissibility of evidence
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are the same as for admissibility at trial and the same objections can be made. (1 CEB Civil
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Procedure Before Trial (2016) Noticed Motions § 12.98.) If plaintiffs purported pleading is
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actually a “pleading”, it is objected to in its entirety as being totally devoid of ultimate facts. It
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25 3
Defendant’s Supplemental Memorandum In Opposition To Motion To Vacate Default (Order)
And Default Judgment On The Pleadings
does not even contain arguably evidentiary facts. It is totally argumentative, without reference
to any facts.
Alternatively, if plaintiffs purported pleading is intended to be a memorandum, (1)
plaintiff has again failed to comply with the § 473 requirement that a proposed pleading be
submitted in conjunction with the motion; and (2) statements made in a memorandum are not
evidence (Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 735, Smith &
Kring v. Superior Court (1997) 60 Cal. App.4th 573, 578), i.e., statements of fact.
III. CONCLUSION
1. No default judgment on the pleadings was ever granted or ever existed. The defendant
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obtained summary judgment against the plaintiff in her independent action in equity to set aside
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defendant’s judgment. The plaintiffs motion is frivolous.
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2. The plaintiffs motion is late. It was filed beyond the § 473 six-month statutory
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14 requirement.
15 3. The issues raised by plaintiff's supplemental notice have been decided adversely to
16 her on five separate occasions by three different judges. Plaintiff is improperly attempting to re-
le litigate those matters.
18 4. The plaintiffs “(Proposed) Amended Causes of Action With Particularity” is either a
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pleading totally devoid of ultimate facts or an improper argument equally devoid of supporting
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evidence.
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January 9, 2020 Respectfully submitted,
22
Richard M. fadden
23 Richard M. Ladden
Defendant Pro Per
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25 4
Defendant’s Supplemental Memorandum In Opposition To Motion To Vacate Default (Order)
And Default Judgment On The Pleadings
PROOF OF SERVICE
CASE NAME: SHERRY SEITZINGER aka SHERRY ROSS v. RICHARD M. LADDEN
CASE NUMBER: 17 CV313092
I, the undersigned, declare as follows:
I am a resident of the County of Santa Clara, State of California. I am over the age of 18 and
not a party to the within action; my address is 1404 Acadia Avenue, Milpitas, CA 95035.
On the date below, I served the foregoing documents described as:
DEFENDANT’S SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO MOTION
TO VACATE DEFAULT (ORDER) AND DEFAULT JUDGMENT ON THE
PLEADINGS
10 on the following person(s) in this action:
11 Sherry Seitzinger, 2722 Bayview Drive, Fremont, CA 94538
12 X___ (VIA MAIL) by depositing the sealed envelope with the United States Postal Service
with the postage fully prepaid.
13
I declare under penalty of perjury under the laws of the State of California that the
14 above is true and correct and that this declaration was executed at Milpitas, California.
15 Dated: January 9, 2020
~~
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(cia Ladden
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Preview
170V313092 Santa Clara — Civil I S. Crabtree Electronically Filed by Superior Court of CA, County of Santa Clara, Richard M. Ladden (SBN #59629) 1404 Acadia Avenue on 1/16/2020 12:47 PM Milpitas, CA 95035 Reviewed By: S. Crabtree Tel: (408)262-5993 Case #17CV313092 Envelope: 3899499 Defendant Pro Per IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION SHERRY SEITZINGER ) CASE NO. 17CV313092 aka SHERRY ROSS, Plaintiff, ) DEFENDANT’S SUPPLEMENTAL ) MEMORANDUM IN OPPOSITION TO ora ) MOTION TO VACATE DEFAULT 10 ) (ORDER) AND DEFAULT JUDGMENT RICHARD M. LADDEN ) ON THE PLEADINGS I Defendant. ; Dept: 20 - Hon. Judge Manoukian 12 ) (originally noticed for Dept. 19 Hon. J. ) Kirwan) 13 ) ) Date: January 30, 2020 14 ) Time: 9 A.M. ) Action Filed: July 17, 2017 15 ) Trial Date: N/A - Summary Judgment for ) Defendant Granted April 25, 2019 16 ) ) le I. ARGUMENTS 18 A. JUSTIFICATION FOR FILING SUPPLEMENTAL OPPOSITION - 19 THE PLAINTIFF APPEARS TO HAVE COMPLETELY CHANGED THE GROUNDS OF HER MOTION 20 21 The plaintiff appears to have completely changed the grounds of her motion to vacate 22 the Default Judgment on the Pleading: The original Notice of Motion was “made pursuant to 23 Code of Civil Procedure § 473 on grounds that the Default (Judgment on the Pleadings) was 24 taken due to her mistake, surprise, inadvertence and excusable neglect ... or in the alternative, 25 1 Defendant’s Supplemental Memorandum In Opposition To Motion To Vacate Default (Order) And Default Judgment On The Pleadings mandatory relief, due to her attorney’s mistake and neglect ...” (Pl. Notice of Motion 1:18-22). The “Supplemental” Notice of Motion appears to be an amended Notice of Motion which has abrogated the original notice by completely changing the grounds of the motion: “to set aside and vacate the Default Judgment ... “due to extrinsic fraud or mistake in violation of the plaintiff's right of Due Process”. (Pl. Supp. Notice of Motion 1:19-21). Not knowing how the court will interpret the plaintiff's two notices of motion, defendant must therefore respond to both possible cases - (1) the “supplemental” notice is actually a “supplemental” notice which only adds the omitted pleading required under § 473; and (2) the “supplemental” notice is actually an amended notice in which the original grounds of the notice 10 I have been abrogated and superseded. 12 B. NO DEFAULT JUDGMENT ON THE PLEADINGS WAS EVER GRANTED 13 Before addressing plaintiff's “supplemental” “(Proposed) Amended Causes of Action 14 With Particularity”, defendant must reiterate that no Default Judgment on the Pleadings wa: 15 ver granted. The defendant obtained summary judgment on April 25, 2019 against the plaintiff 16 in her independent action in equity to set aside defendant’s malicious prosecution default le judgment on grounds that the plaintiff failed to provide any admissible evidence to raise a 18 triable issue of material fact to defeat the motion. (Order March 26, 2019: 7:20-23). Whether 19 based on grounds of the original or “supplemental” notice, the plaintiff's motion is frivolous. 20 (Def. Mem. In Opp. To Motion Arg. IIA 3: 7-17, Arg. ILC 2:1-15). 21 C. THE MOTION IS LATE 22 In case (1), i.e., if the “supplemental” notice is actually “supplemental”, the motion was 23 filed beyond the § 473 six-month statutory requirement. (Def. Mem. In Opp. To Motion Arg. 24 ILB 3:18-24). The plaintiff has ignored responding to this dispositive fact. 25 2 Defendant’s Supplemental Memorandum In Opposition To Motion To Vacate Default (Order) And Default Judgment On The Pleadings 1 D. THE ISSUES RAISED BY PLAINTIFF’S SUPPLEMENTAL NOTICE HAVE BEEN DECIDED ADVERSELY TO HER ON FIVE SEPARATE OCCASIONS In case (2), if the original grounds of the notice have been superseded, i.e., “to set aside and vacate the Default Judgment ... “due to extrinsic fraud or mistake in violation of the plaintiff's right of Due Process”, the plaintiff is attempting to re-litigate the identical issues previously decided adversely to her on five separate occasions by three different judges - (1) Code of Civ. Proc. § 473(b) Motion to Vacate the Default Judgment (Hon. J. McGowen Order 8/19/16); (2) Code of Civ. Proc. § 473(b) Motion for Renewal of Motion to Vacate The Default Judgment (Hon. J. Arand Order 8/23/17 2:5-14); (3) independent action in equity to set aside 10 the default judgment (filed 7/17/17 - Hon. J. Kirwan Summary Judgment Order 3/26/19 6:5- I 7:23, Judgment 4/25/19); (4) Motion to Vacate [Summary] Judgment and Order (Hon. J. 12 Kirwan Order 9/30/19 1:22-2:6); (5) Motion For Reconsideration Of Order Denying 473(b) 13 Motion To Vacate Summary Judgment (1/23/20 (admittedly anticipated)). (See Request for 14 Judicial Notice). 15 E. THE PLAINTIFF’S PURPORTED PLEADING IS OBJECTED 16 TO AS A MERELY A POORLY DISGUISED ARGUMENT le Evidentiary objections can be made to proffered evidence in a motion. Evidentiary 18 objections can be made in either a separate paper served and filed, and identified as such, or in a 19 separate section of the opposition’s memorandum. The standards for admissibility of evidence 20 are the same as for admissibility at trial and the same objections can be made. (1 CEB Civil 21 Procedure Before Trial (2016) Noticed Motions § 12.98.) If plaintiffs purported pleading is 22 23 actually a “pleading”, it is objected to in its entirety as being totally devoid of ultimate facts. It 24 25 3 Defendant’s Supplemental Memorandum In Opposition To Motion To Vacate Default (Order) And Default Judgment On The Pleadings does not even contain arguably evidentiary facts. It is totally argumentative, without reference to any facts. Alternatively, if plaintiffs purported pleading is intended to be a memorandum, (1) plaintiff has again failed to comply with the § 473 requirement that a proposed pleading be submitted in conjunction with the motion; and (2) statements made in a memorandum are not evidence (Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 735, Smith & Kring v. Superior Court (1997) 60 Cal. App.4th 573, 578), i.e., statements of fact. III. CONCLUSION 1. No default judgment on the pleadings was ever granted or ever existed. The defendant 10 obtained summary judgment against the plaintiff in her independent action in equity to set aside I defendant’s judgment. The plaintiffs motion is frivolous. 12 2. The plaintiffs motion is late. It was filed beyond the § 473 six-month statutory 13 14 requirement. 15 3. The issues raised by plaintiff's supplemental notice have been decided adversely to 16 her on five separate occasions by three different judges. Plaintiff is improperly attempting to re- le litigate those matters. 18 4. The plaintiffs “(Proposed) Amended Causes of Action With Particularity” is either a 19 pleading totally devoid of ultimate facts or an improper argument equally devoid of supporting 20 evidence. 21 January 9, 2020 Respectfully submitted, 22 Richard M. fadden 23 Richard M. Ladden Defendant Pro Per 24 25 4 Defendant’s Supplemental Memorandum In Opposition To Motion To Vacate Default (Order) And Default Judgment On The Pleadings PROOF OF SERVICE CASE NAME: SHERRY SEITZINGER aka SHERRY ROSS v. RICHARD M. LADDEN CASE NUMBER: 17 CV313092 I, the undersigned, declare as follows: I am a resident of the County of Santa Clara, State of California. I am over the age of 18 and not a party to the within action; my address is 1404 Acadia Avenue, Milpitas, CA 95035. On the date below, I served the foregoing documents described as: DEFENDANT’S SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO MOTION TO VACATE DEFAULT (ORDER) AND DEFAULT JUDGMENT ON THE PLEADINGS 10 on the following person(s) in this action: 11 Sherry Seitzinger, 2722 Bayview Drive, Fremont, CA 94538 12 X___ (VIA MAIL) by depositing the sealed envelope with the United States Postal Service with the postage fully prepaid. 13 I declare under penalty of perjury under the laws of the State of California that the 14 above is true and correct and that this declaration was executed at Milpitas, California. 15 Dated: January 9, 2020 ~~ 16 (cia Ladden 17 18 19 20 21 22 23 24 25