On July 14, 2017 a
Motion,Ex Parte
was filed
involving a dispute between
Sherry Seitzinger,
and
Richard M. Ladden,
for civil
in the District Court of Santa Clara County.
Preview
Milpitas, CA 95035
IN AND FOR THE COUNTY OF SANTA CLARA
Plaintiff, DEFENDANT’S MEMORANDUM IN
VACATE DEFAULT (ORDER) AND
RICHARD M. LADDEN
Defendant.
Time: 9 A.M.
Trial Date: N/A - Summ
Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order) And Judgment
The defendant obtained summary judgment in this court against the plaintiff in her
independent action in equity . The court held that the
default judgment obtained on July 21, 2014 by the defendant in his malicious prosecution
action, Santa Clara Superior Court No. 114CV262282, not be set aside. The court granted
summary judgment on the grounds that the plaintiff failed to provide any admissible evidence to
raise a triable issue of material fact to defeat the motion. (Order 7:20-23). The court also noted
the failure of the plaintiff to comply with
The plaintiff has now brought two § 473(b) motions: (1) to vacate the
summary judgment and order based upon plaintiff’s [excusable] mistake, etc., and (2) to vacate
the default (order) and default judgment on the pleadings, also ba
[excusable] mistake, etc. The defendant has filed separate oppositions [and motions for
sanctions] to each motion.
This memorandum is addressed solely to the § 473(b) motion to vacate the default
(order) and default judgment on the pleadings. The fundamental reason pl
merit [and is frivolous] is that no such order and/or judgment exists or ever existed. The other
issues raised in the motion have been addressed from an overabundance of caution.
II. ARGUMENTS
A. NO DEFAULT (ORDER) AND/OR DEFAULT JUDGMENT
TS OR EVER EXISTED
The court ruled on defendant’s Motion for Judgment on the Pleadings on August 7,
2018, eight months before his successful summary judgment motion. The court refused to grant
a default and default judgment against plaintiff. The motion was completely unsuccessful with
Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order)
And Default Judgment On The Pleadings
respect to the plaintiff’s First Cause of Action and plaintiff was given leave to amend her
Court records will show that the plaintiff filed this identical motion shortly after the
court’s tentative summary judgment ruling adverse to her was published [which was withdrawn
after defendant threatened her with sanctions]. No rational, let alone legal basis, exists for
plaintiff’s motion to vacate a non-existent judgment and order. Nevertheless, plaintiff
FILED THIS MOTION WELL BEYOND
CODE OF CIVIL PROCEDURE § 473(b)
Application for § 473(b) relief shall be made in no case exceeding six months after the
judgment, dismissal, order, or proceeding was taken. (Code of Civ. Proc. § 473(b).) The order
udgment on the Pleadings was made over 9-1/2
months ago. This legally meritless motion has be 1/2 months belatedly.
C. PLAINTIFF HAS NOT SHOWN MISTAKE, SURPRISE,
INADVERTENCE OR EXCUSABLE NEGLECT
Plaintiff’s motion is based on the discretionary part of Code of Civ. Proc. § 473(b) -
purported mistake, surprise, inadvertence or excusable neglect. (Plaintiff’s Notice of Motion
1:19-21). Neither the plaintiff’s arguments nor declaration even hint at mistake, surprise or
Defendant is informed and believes that the plaintiff has been gran
status and filing this frivolous mo
Has this court ever encountered a more perverse waste of the court’s time than a litigant filing
a motion to vacate a non-existent judgment and court order?
The cavalier way in which the plaintiff treats this action and this court’s time is exemplified in
her attached declaration dated May 24, 2019, in which she declares “It has only been a few
weeks since judgment was entered against me.” (Seitzinger Decl. 2:12).
Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order)
And Default Judgment On The Pleadings
inadvertence. The totality of plaintiff’s arguments and declaration complain only that her
attorney failed to amend her Second and Third Causes of Action. While she alleges that he had
sufficient information to prepare amended pleading, her arguments and declaration fail to even
suggest what that information might have been. Instead, they infer neglect and
arguable malpractice.
COMPLY WITH SECTION 473(b)’S
REQUIREMENT THAT ANY APPLICATION FOR RELIEF BE ACCOMPANIED BY
A COPY OF THE ANSWER OR OTHER PLEADING PROPOSED TO BE FILED
Assuming that (1) the motion had legal merit, i.e.,a default and default
judgment on the pleadings had actually been granted; (2) the motion had been timely filed; and
(3) plaintiff’s arguments and declaration had demonstrated neglect, plaintiff has
failed to comply with section 473(b)’s requirement that any application for relief be
accompanied by a copy of the answer or other pleading proposed to be filed. No answer or other
relevant document has been filed. Upon failure to comply with the filing requirement, § 473(b)
mandates that the application not be granted. A pro per litigant is required to comply with
applicable court rules and procedures. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98,
Bistawros v. Greenberg
Alternatively, her prior attorney might have failed and refused to amend the pleadings because
no legal or ethical basis existed for the amendment. (See Summary Judgment Exhibits -
Answer Ex. G, H - plaintiff’s cross-complaint intentional tort and general negligence causes of
action and Ex. I, J - defendant’s interrogatory and plaintiff’s
that defendant did not interfere with plaintiff’s contractual relations and that the plaintiff had no
defense to the malicious prosecution causes of action. In an independent action in equity
must demonstrate it has a meritorious case
Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 982, Weil & Brown et al.,
Civ. Proc. Before Trial (The Rutter Group 2018) ¶ 5:435, p. 5-121, Lee v. An (2008) 168
Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order)
And Default Judgment On The Pleadings
After an adverse summary judgment, the plaintiff has belatedly filed a non-compliant
Code of Civ. Proc. § 473(b) motion showing only inexcusable neglect to vacate a
Default (Order) and Default Judgment. Needless to say, filing a motion to vacate the latter lacks
merit. It is objectively and s t. It can only be deemed to
be frivolous conduct designed to harass defendant, cause unnecessary delay and increase
defendant’s costs. Such conduct is sanctionable under both Code of Civ. Proc.
June 14, 2019 Respectfully submitted,
Richard M. Ladden
Defendant Pro Per
Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order)
And Default Judgment On The Pleadings
am over
by depositing
Document Filed Date
July 10, 2019
Case Filing Date
July 14, 2017
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Milpitas, CA 95035 IN AND FOR THE COUNTY OF SANTA CLARA Plaintiff, DEFENDANT’S MEMORANDUM IN VACATE DEFAULT (ORDER) AND RICHARD M. LADDEN Defendant. Time: 9 A.M. Trial Date: N/A - Summ Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order) And Judgment The defendant obtained summary judgment in this court against the plaintiff in her independent action in equity . The court held that the default judgment obtained on July 21, 2014 by the defendant in his malicious prosecution action, Santa Clara Superior Court No. 114CV262282, not be set aside. The court granted summary judgment on the grounds that the plaintiff failed to provide any admissible evidence to raise a triable issue of material fact to defeat the motion. (Order 7:20-23). The court also noted the failure of the plaintiff to comply with The plaintiff has now brought two § 473(b) motions: (1) to vacate the summary judgment and order based upon plaintiff’s [excusable] mistake, etc., and (2) to vacate the default (order) and default judgment on the pleadings, also ba [excusable] mistake, etc. The defendant has filed separate oppositions [and motions for sanctions] to each motion. This memorandum is addressed solely to the § 473(b) motion to vacate the default (order) and default judgment on the pleadings. The fundamental reason pl merit [and is frivolous] is that no such order and/or judgment exists or ever existed. The other issues raised in the motion have been addressed from an overabundance of caution. II. ARGUMENTS A. NO DEFAULT (ORDER) AND/OR DEFAULT JUDGMENT TS OR EVER EXISTED The court ruled on defendant’s Motion for Judgment on the Pleadings on August 7, 2018, eight months before his successful summary judgment motion. The court refused to grant a default and default judgment against plaintiff. The motion was completely unsuccessful with Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order) And Default Judgment On The Pleadings respect to the plaintiff’s First Cause of Action and plaintiff was given leave to amend her Court records will show that the plaintiff filed this identical motion shortly after the court’s tentative summary judgment ruling adverse to her was published [which was withdrawn after defendant threatened her with sanctions]. No rational, let alone legal basis, exists for plaintiff’s motion to vacate a non-existent judgment and order. Nevertheless, plaintiff FILED THIS MOTION WELL BEYOND CODE OF CIVIL PROCEDURE § 473(b) Application for § 473(b) relief shall be made in no case exceeding six months after the judgment, dismissal, order, or proceeding was taken. (Code of Civ. Proc. § 473(b).) The order udgment on the Pleadings was made over 9-1/2 months ago. This legally meritless motion has be 1/2 months belatedly. C. PLAINTIFF HAS NOT SHOWN MISTAKE, SURPRISE, INADVERTENCE OR EXCUSABLE NEGLECT Plaintiff’s motion is based on the discretionary part of Code of Civ. Proc. § 473(b) - purported mistake, surprise, inadvertence or excusable neglect. (Plaintiff’s Notice of Motion 1:19-21). Neither the plaintiff’s arguments nor declaration even hint at mistake, surprise or Defendant is informed and believes that the plaintiff has been gran status and filing this frivolous mo Has this court ever encountered a more perverse waste of the court’s time than a litigant filing a motion to vacate a non-existent judgment and court order? The cavalier way in which the plaintiff treats this action and this court’s time is exemplified in her attached declaration dated May 24, 2019, in which she declares “It has only been a few weeks since judgment was entered against me.” (Seitzinger Decl. 2:12). Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order) And Default Judgment On The Pleadings inadvertence. The totality of plaintiff’s arguments and declaration complain only that her attorney failed to amend her Second and Third Causes of Action. While she alleges that he had sufficient information to prepare amended pleading, her arguments and declaration fail to even suggest what that information might have been. Instead, they infer neglect and arguable malpractice. COMPLY WITH SECTION 473(b)’S REQUIREMENT THAT ANY APPLICATION FOR RELIEF BE ACCOMPANIED BY A COPY OF THE ANSWER OR OTHER PLEADING PROPOSED TO BE FILED Assuming that (1) the motion had legal merit, i.e.,a default and default judgment on the pleadings had actually been granted; (2) the motion had been timely filed; and (3) plaintiff’s arguments and declaration had demonstrated neglect, plaintiff has failed to comply with section 473(b)’s requirement that any application for relief be accompanied by a copy of the answer or other pleading proposed to be filed. No answer or other relevant document has been filed. Upon failure to comply with the filing requirement, § 473(b) mandates that the application not be granted. A pro per litigant is required to comply with applicable court rules and procedures. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98, Bistawros v. Greenberg Alternatively, her prior attorney might have failed and refused to amend the pleadings because no legal or ethical basis existed for the amendment. (See Summary Judgment Exhibits - Answer Ex. G, H - plaintiff’s cross-complaint intentional tort and general negligence causes of action and Ex. I, J - defendant’s interrogatory and plaintiff’s that defendant did not interfere with plaintiff’s contractual relations and that the plaintiff had no defense to the malicious prosecution causes of action. In an independent action in equity must demonstrate it has a meritorious case Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 982, Weil & Brown et al., Civ. Proc. Before Trial (The Rutter Group 2018) ¶ 5:435, p. 5-121, Lee v. An (2008) 168 Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order) And Default Judgment On The Pleadings After an adverse summary judgment, the plaintiff has belatedly filed a non-compliant Code of Civ. Proc. § 473(b) motion showing only inexcusable neglect to vacate a Default (Order) and Default Judgment. Needless to say, filing a motion to vacate the latter lacks merit. It is objectively and s t. It can only be deemed to be frivolous conduct designed to harass defendant, cause unnecessary delay and increase defendant’s costs. Such conduct is sanctionable under both Code of Civ. Proc. June 14, 2019 Respectfully submitted, Richard M. Ladden Defendant Pro Per Defendant’s Memorandum In Opposition To Motion To Vacate Default (Order) And Default Judgment On The Pleadings am over by depositing