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Milpitas, CA 95035
IN AND FOR THE COUNTY OF SANTA CLARA
Plaintiff, DEFENDANT’S REPLY MEMORANDUM
IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR IN THE
ALTERNATIVE SUMMARY
RICHARD M. LADDEN,
Defendant.
Dept: 19 - Hon. Judge Kirwan
Time: 9 A.M.
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
A. THE COURT IS PRESUMED TO HAVE JURISDICTION
WHERE THE PLAINTIFF ASSERTS A COLLATERAL ACTION AND THE DEFECT,
I.E., LACK OF SERVICE, DOES NOT APPEAR ON THE FACE OF THE RECORD
The plaintiff has conceded that her action is a collateral attack on the default judgment
and that extrinsic fraud, i.e., the [alleged] fraudulent proof of substituted service on Dan Martin
(Seitzinger) is the basis of all three causes of action. (Def. Ex. N, Pl. Sep. Stmt. Issue 4:2).
She has failed to address, let alone offer any authority to counter the rule that “Where a
collateral attack is made on a California judgment, the presumption of jurisdiction is
if the jurisdictional defect does not appear on the face of the record”. (Def. Mem. Arg. B.1, 8
Witkin (2008) Attack on Judgment in Trial Court § 11, also, §§ 12, 207-
208.) Nor does she present any admissible evidence to show the existence of a jurisdictional
defect on the face of the record. (Def. Obj. §§ A-C). The foregoing presumption is
thus dispositive of the issue of jurisdiction over the plaintiff. Her allegation of inadequate legal
representation is irrelevant in this summary judgment proceeding.
Defendant notes at the outset that plaintiff has not sought to dispute any of defendant’s legal
arguments, legal authorities or declaration and authentication of documents. In addition, while
the plaintiff has disputed virtually every undisputed fact offered by defendant, the basis for
each are bald assertions in the memorandum and/or separate statement response thereto
unsupported by admissible evidence, i.e., no references in separate statement responses or
memorandum to [non-existent] declarations under penalty of perjury and/or authenticated
document. These bald, assertions are objected to en toto. (See Defendant’s Summary Judgment
and Defendant Objections To Plaintiff’s (1) Memorandum And (2) Separate
Statement, hereinafter Def. Obj., Rule 3.1350(h)).
Herein and throughout her separate statement responses, plaintiff continually posits that the
defendant’s undisputed fact is “mere evidence”. “Evidence” means testimony, writings,
material objects, or other things presented to the senses that are offered to prove the existence
or nonexistence of a fact. § 140.) Defendant does not understand plaintiff’s
reasoning. The claimed undisputed fact is cited; the required evidence, e.g., admissible
statement and/or document to support the claimed fact is thereafter indicated.
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
B. THIS ACTION IS BARRED AS A MATTER OF LAW FOR FAILURE OF
PLAINTIFF TO ACT DILIGENTLY
This action is barred as a matter of law. The plaintiff has judicially admitted that she
learnt of the default judgment on the very same day that it was issued but waited 3 years to file
this independent action in equity. “Plaintiff first learned of the underlying lawsuit when default
judgment had been entered against her,” i.e., on July 21, 2014. (Complaint ¶ 13, Def. Sep. Stmt.
- Issue 6:3). Plaintiff attempts to obliterate this judicial admission with inadmissible statements
and excuses for delay in her separate statement responses. (Pl. Sep. Stmt. - Issue 6:2-3, Def.
Obj. §§ C.2, C3). But even had the plaintiff submitted relevant, admissible evidence, judicial
admissions cannot be controverted. (3 Witkin (2012) Hearsay § 98, 2 CEB
Procedure Before Trial (2018) Summary Judg
Plaintiff does not dispute any of defendant’s authorities that demonstrate diligence is
required for both equitable actions as well as § 473 motions once grounds to set aside a
judgment are discovered. (Def. Mem. Arg. C.3). The plaintiff's judicially admitted lack of
diligence in moving to set aside the default judgment bars this action. In addition, the plaintiff
had a second opportunity to exercise diligenc erly mailed Notice of
Entry of Default required under Code of Civil Procedure § 587, but refused to avail herself of
that opportunity. (Def. Mem. Arg. D).
C. PLAINTIFF’S ADMISSION THAT HER DECLARANT’S PRIOR DECLARATIONS
WERE THE PRODUCT OF THEIR FAULTY
“UNCLEAN HANDS” DOCTRINE TO
The plaintiff now seeks to justify the totally contradictory declarations made under
penalty of perjury in support of her two prior motions to set aside this judgment as being the
result of the inabilty of her declarants to recall the specifics of their whereabouts or daytime
activities two years earlier and that Dan Martin [Seitzinger] had his “memory refreshed” when
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
he allegedly found “newly discovered evidence”, i.e., store receipts in a jacket pocket. (Pl. Sep.
Stmt. Issue 1:1-6).
“Dan came to visit me for the day and spent the night at my place in Concord, CA.
When he left the next day ... ” (Def. Mem. Arg. A, Def. Ex. E - Robert Forde declaration in
support of Motion to Vacate). “I was not at home all day long. I specifically remember not
being home on that date ...I distinctly remember visiting with my friend, Robert Forde and
staying overnight at his house in Concorde, CA ...” (Def. Ex. D - Dan Martin [Seitzinger]
declaration in support of Motion to Vacate). “I was unable to recall what I was doing at the
specific time of the alleged service ...” (Def. Ex. F - Dan Martin [Seitzinger] declaration in
tiff’s comment to Pl. Sep. Stmt. Issue 1:4).
In an effort to corroborate her son-tenant-employee’s latter declaration that he was in
Fremont during the day, plaintiff now argues that his first declaration was ambiguous as to
where he spent the “daytime” hours (Pl. Sep. Stmt. Issue 1:1) and asserts that Robert Forde was
shopping with her son-tenant-employee in Fremont. “The evidence proves he was out of town
shopping with his friend on the Friday evening he was allegedly served at his home in Gilroy,
Extensive documentary evidence, made up of [inadmissible] receipts and bank
statements proves he was in Fremont, CA and was using his personal credit card to make his
purchases at about 50 miles away from his home.” (Pl. Mem. 7:4-8, Cf. Def. Ex. F - Dan
Martin [Seitzinger] declaration - no mention of being with Robert Forde, let alone shopping
with him).
Rationale for abrogating Forde declaration (Def. Ex. E): “Robert did not state and could not
remember his specific whereabouts or daytime activities that took place 2 years earlier”. (Pl.
Sep. Stmt. Issue 1:2).
Objections have been made to plaintiff’s Exhibits 1, 2, 3, 4A-4C and 5 for lack of
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
Plaintiff’s presentation of contradictory declarations pertaining to events that transpired,
of which she now acknowledges the declarants had faulty, if any recollection, justifies
ne to bar this complaint in equity.
CONCLUSIVE PRESUMPTION OF JURISDICTION OVER
THE PLAINTIFF, ALL THE ISSUES
MEMORANDUM ARE IRRELEVANT
Although the rule “Where a collateral attack is made on a California judgment, the
presumption of jurisdiction is conclusive if the jurisdictional defect does not appear on the face
of the record” should be dispositive of this summary judgment, including the [alleged]
fraudulent return of service by Suzanne Solis based solely on the conceded misdescription of
him (Arg. A, , Pl. Sep. Stmt. Issue 2:1, 3.4), defendant must necessarily address all the
issues raised by the opposition.
In American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387-389, the
proof of service which allege Code of Civil Procedure § 415.10
described defendant as an Asian male. Defendant’s personal appearance at the motion to quash
service of process made it obvious that he was not Asian. His declaration that he found the
summons and the complaint on his doorstep 24 lleged time of service went
While the court may not weigh evidence in a summary judgment motion (Aguilar v. Atlantic
(2001) 25 Cal.4th 826, 856), it can recognize that a witness “willfully false in one
material part of his or her testimony is to be distrusted in others” and may disregard all his
contradictory declarations. (3 Witkin California Evidence Ed. 2012) Presentation at Trial
2.22 Witness Willfully False.) Plaintiff has discredited her own declarants
and admitted all three declarations to have been inaccurate, if not totally false.
Plaintiff has also backtracked her false allegation of criminal conduct by the defendant, i.e.,
subornation of perjury. (Penal Code § 127) (Pl. Sep. Stmt. Issue 1:5-6, Def. Mem. Arg. A 5:14-
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
In contrast to , the process server’s description of plaintiff’s substitute-served son-
tenant-employee as being lighter than he actually was, 4 inches shorter, 55 rather than 64 years
old, and having gray rather than dark blond hair made from an observation of him in unknown
lighting at dusk in April is not unreasonable ] observer. It does not
hint of perjury on the part of the registered process server by a preponderance of the evidence
Summers v. McClanahan (2006) 140 Cal.App.4th 403, 405-407, 411, 413-415, cited by
the plaintiff for the proposition “[N]o California appellate court has gone so far as to uphold a
service of process solely on the ground the defendant received actual notice when there has
been a complete failure to comply with the statutory requirements for se
defendant. The defendant in received actual notice from his attorney, who in turn had
received process from defendant’s personal manager. Because the latter was not authorized by
the defendant or law to accept service of process on her behalf, it was held to fail to
substantially comply with the statutory requirements of Code of Civil Procedure section
Contrast the fact pattern in with the record in the instant case, amplified in the
next section, Arg. E, infra, which shows compliance with the criteria specified in Zara at 391,
ory requirements of
Also, unlike the cases cited in at 393, there were no false proofs of service or
attempt to mislead or conceal, and there was an uncontradicted [by admissible evidence] good
faith, reasonable attempt at compliance with
E. PLAINTIFF RECEIVED MULTIPLE NOTICES OF THE LAWSUIT
IN COMPLIANCE WITH STATUTORY REQUIREMENTS
Although the rule “Where a collateral attack is made on a California judgment, the
presumption of jurisdiction is conclusive if the jurisdictional defect does not appear on the face
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
1. Plaintiff does not deny existence of the ne
summons and complaint and Request for Entry of Default in paragraph 10 of her complaint.
Nor could she. Judicial admissions cannot be controverted. (3 Witkin (2012) Hearsay
Civil Procedure Before Trial (2018) Summary Judgment §§ 36.131-36.132.) Nor
tation relevant. (Pl.
2. Plaintiff’s bald assertions of non-receipt of the mailed summons and complaint and
Request for Entry of Default do not overcome the presumptions of evidence code §§ 641 and
a. Plaintiff’s bald assertion that her Gilroy address was an improper address in which
to serve her by mail because her registered address was in Fremont and she did not live Gilroy
(Pl. Sep. Stmt. Issue 3:1-3, 7:1-3) both lacks evidentiary support and fails to contradict the
defendant’s declaration under penalty of perjury that “7392 Crews Road Gilroy, CA 95020 was
the publicly registered address of plaintiff Sherry Seitzinger’s business, the University of
Silicon Valley Law School, on file nia...” (Def. Decl. 1:17-2:7).
b. Plaintiff’s bald assertion that she failed to receive both the mailed summons and
complaint and Request for Entry of Default at her publicly registered address in Gilroy (Pl.
Sep. Stmt. Issue 2:1, 2:2, 3:5, 3:6, 7:1-3, Def. Mem. Arg. B.2)
come the presumption of § 641 that “A letter correctly
addressed and properly mailed is presumed to have been received in the ordinary course of
mail” or Evidence Code § 647 that the return of a registered process server establishes a
presumption of the facts stated in the return. (Def. Mem. Arg. B.2).
of the record” should be dispositive of this summary judgment (Arg. A, ), defendant must
ised in his summary judgment motion.
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
Plaintiff does not deny that her son-tenant-employee was a person who more likely than
not would deliver process to her. (Pl. Sep. Stmt. Issue 3:7, Def. Mem. Arg. B.2,
(2009) 177 Cal.App.4 1193, 1203, Trackman v. Kenney (2010) 187 Cal.App.4 175,
179, 185.) Her denial in Pl. Sep. Stmt. Issue 3:8 is based solely on what she alleges to be
defendant’s mischaracterization of the evidence, i.e., her son-tenant-employee’s false
declarations under penalty of perjury. Plaintiff’s son-tenant-employee, unlike the personal
manager in , had a close connection with the defendant such that it was “highly
probable” that he would deliver process, i.e.,both the summons and complaint and the later
mailed Request for Entry of Default, to her. This latter fact is important because actual
notification of a lawsuit is provided to a party by mailing the summons and complaint to that
party, not from the substituted service on a competent member of the household or a person
apparently in charge of the office. (Def. Mem. Arg. E, Khourie Crew & Jaeger v. Sabek, Inc.
(1990) 220 Cal.App.3d 1009, 1013.) Also, unlike the situation in
process failed to comply with the statutory requirements of Code of Civil Procedure section
416.90, all the statutory requirements of Code of Civil Procedure section 415.20 were complied
F. THE FAILURE OF THE FIRST CAUSE OF ACTION TO ALLEGE EXTRINSIC
WITH PARTICULARITY AND SP
COURT TO GRANT DEFENDANT’S MOTION
The plaintiff has conceded that her action is a collateral attack on the default judgment.
(Def. Ex. N, Pl. Sep. Stmt. Issue 4:2). As such, any allegation of extrinsic fraud must be pled
with particularity and specificity. (Def. Mem. Arg. C, 12:11-13, Kuehn v. Kuehn (2000) 85 Cal.
App. 4th 827, 828, 831.) The plaintiff does not dispute in either her opposition memorandum or
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
separate statement that the [alleged] extrinsic fraud, i.e., the fraudulent proof of substituted
service on Dan Martin (Seitzinger), is the basis of all three causes of action. (Pl. Sep. Stmt.
Issue 4:2) and that the remaining First Cause of Action fails to allege extrinsic fraud with
l. Sep. Stmt. Issue 4:1).
The plaintiff furthermore does not dispute that (1) a false recital of service is treated as
extrinsic fraud or mistake in the context of an equitable action to set aside a default judgment;
(2) extrinsic fraud must be pled with particularity and specificity; and (3
of Action, which merely alleges lack of personal jurisdiction due to the misdescription of the
person substitute served, fails to allege extrinsic fraud, let alone with particularity and
specificity. (Def. Mem. Arg. C.1). The First Cause of Action thereby fails to state facts
sufficient to constitute a cause of action. Her allegation of inadequate
again irrelevant. (Pl. Sep. Stmt. Issue 4:1, 2).
G. THE FIRST CAUSE OF ACTION FAILS TO PLEAD A MERITORIOUS
DEFENSE AND HER PREVIOUS DISCOVERY RESPONSES SHOW
THAT IT IS IMPO
The plaintiff has not responded to this issue in her memorandum, but asserts in her
separate statement responses that this issue has nothing to do with her action in equity
regarding failed service of process and void default and default judgment. (Pl. Sep. Stmt. Issue
s chosen to ignore the authorities in defendant’s memorandum that a
false recital of service is treated as extrinsic fraud or mistake in the context of an equitable
action to set aside a default judgment and that the first pleading requirement applicable to an
independent action in equity alleging extrinsic fraud is that the defaulted party must
demonstrate it has a meritorious case. (Def. Mem. Arg. C 12:4-13, Rappleyea v. Campbell
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
(1994) 8 Cal. 4th 975, 982, Weil & Brown et al., Civ. Proc. Before Trial
(The Rutter Group 2018) ¶ 5:435, p. 5-121). It is incumbent upon the complainant to plead and
prove that the result in the main action would have been different had the fraud or mistake not
occurred, since equity will not grant relief to a party who claims only the barren right of being
permitted to defend against a claim to which he has no defense. (Def. Arg. C.2,
Hibernia Bank 47 Cal.2d 540, 554, Wilson v. Wilson (1942) 55 Cal.App.2d 421, 427,
Smith v. Busniewski
The plaintiff’s interrogatory responses in
Court No. 109CV151044, showed that the defendant did not interfere with her contractual
relations and that the plaintiff has no defense to the malicious prosecution causes of action:
(Def. Mem. Arg. C.2 14:3-15, Def. Ex. G, H - plaintiff’s cross-complaint intentional tort and
general negligence causes of action, Def. Ex. I, J - defendant’s interrogatory and plaintiff’s
II. CONCLUSION
1. Plaintiff has proffered no admissible evidence to contradict any of defendant’s
undisputed facts, nor attempted to controvert any of defendant’s legal arguments, legal
n and authentication of documents. (Arg. A fn. 1).
2. The court is presumed to have jurisdiction since the plaintiff has
asserted a collateral action and the defect, i.e.,lack of service, does not appear on the face of
3. This action is barred as a matter of law for failure of plaintiff to act diligently to set
aside the judgment. The plaintiff has judicially admitted that she learnt of the default judgment
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication
on the very same day that itwas issued but waited 3 years to file this independent action in
4. This action is barred by the doc
5. All the issues raised in plaintiff’s opposing memorandum, including the minor
misdescription of her substitute served son-tenant-employee, are irrelevant due to the
presumption of jurisdiction ove
6. Evidence that plaintiff received multiple notices of the lawsuit in compliance
with statutory requirements of Code of Civil Procedure section 415.20 is not refuted by her
in her opposing memorandum and separate statement. (Arg. E).
7. The failure of the first cause of action to allege extrinsic fraud with particularity and
grant defendant’s motion. (Arg. F).
8. The failure of the first cause of action fails to plead a meritorious defense and her
previous discovery responses showing that it is impossible to plead one requires the court to
grant defendant’s motion. (Arg. G).
January 23, 2019 Respectfully submitted,
Richard M. Ladden
Defendant Pro Per
Defendant’s Reply Memorandum In Support Of Motion For Summary Judgment
Or In The Alternative Summary Adjudication