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*2203378* *149*
DOCUMENT: Judgment: Amended [401136]
CASE: S-CV-0037210
DATE: 01/11/2018
LEWIS BRISBOIS BISGAARD & SMITH LLP EL, ee ED
ALEX A. GRAFT, SB# 239647 Superior Gaur’af Galiforn
=
E-Mail: Alex.Graft@lewisbrisbois.com
NYO
V. T. SATHIENMARS, SB# 282619 GAN 11 O08
E-Mail: V.Sathienmars@lewisbrisbois.com —
He
333 Bush Street, Suite 1100 dake Chatts ;
San Francisco, California 94104-2872 Bee Favion B A Werk
Fk
Telephone: 415.362.2580 ys ie Nay k STAR
Facsimile: 415.434.0882
A
Attorneys for Defendant
NIH
LYNN SEARLE
SUPERIOR COURT OF THE STATE OF CALIFORNIA — ~
CF
COUNTY OF PLACER
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mt
CO
RONALD MAZZAFERRO, CASE NO. S-CV-0037210
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Plaintiff, [PROPOSED] AMENDED JUDGMENT
me
NYO
vs.
He
mm
NILESH CHOUDHARY, et al.,
Bh
Action Filed: December 21, 2015
Defendants. Trial Date: None Set
wa
mm
HAO
DTD
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Be
PLEASE TAKE NOTICE that on October 27, 2017, the Court entered its Judgment
Om
against Plaintiff RONALD MAZZAFERRO, a true and correct copy of the notice of entry of
O6O
which is attached hereto as Exhibit | and is incorporated herein. Thereafter, Defendant LYNN
FS
SEARLE timely filed a cost memorandum to which there was no timely objection.
-&
NN
NO
IT IS ACCORDINGLY HEREBY ORDERED, ADJUGED, AND DECREED that
NY
Plaintiff shall take nothing by way of his Complaint, and that Defendant LYNN SEARLE is
NO
Oe
entitled to Judgment as a matter of law against Plaintiff, and to recover her costs against Plaintiff
PF
NH
on the Complaint in the amount of $495.00, as substantiated in Defendant’s timely filed cost bill,
Oo
NY
to which there was no timely objection.
NH
NY
Dated: IJ-/{7 7/8
INI
NY
HONORABLE CHARLES D. WACHOB
Judge of the Superior Court
oo
LEWIS
ry
BRISBOIS Presented To Judge
BISGAARD 433 Fase Review
é And/Or Signature 1
& SMITHLIP On _/-6-/¥ [PROPOSED] AMENDED JUDGMENT
ATTORNEYS AT LAW
Exhibit 1
we LEWIS BRISBOIS BISGAARD & SMITH LLP
ALEX A, GRAFT, SB# 239647
E-Mail: Alex.Graft@lewisbrisbois.com
BB
V. T. SATHIENMARS, SB# 282619
E-Mail: V.Sathienmars@lewisbrisbois.com
WwW
333 Bush Street, Suite 1100
San Francisco,
BB
California 94104-2872
Telephone: 415.362.2580
Facsimile: 415.434.0882 EXECU
MH
a
HAH
Attorneys for Defendant
°
LYNN SEARLE
FAX
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SF
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF PLACER
BY
GL
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RONALD MAZZAFERRO, CASE
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NO. S-CV-0037210
Plaintiff,
Be
NOTICE OF ENTRY OF JUDGMENT
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Be
VS.
NILESH CHOUDHARY,
RE
et al.,
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Action Filed: December 21, 2015
Defendants. Trial Date:
H
None Set
ew
UR
TO ALL PARTIES AND THEIR
ew
ATTORNEYS OF RECORD:
PLEASE
ew
TAKE NOTICE that on October 27, 2017, the Court entered its Judgment in
See
favor of Defendant LYNN
Be
SEARLE, a tre and correct copy of which is attached as Exhibit A,
DATED: November b, 2017 LEWIS BRISBOIS BISGAARD & SMITH LLP
RP
SF
YN
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Alex A. Graft
V, T. Sathienmars
FR
Attorneys for Defendant
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LYNN SEARLE
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LEWIS
BRISBOIS
BISGAARD 4840-6972-1939.1
& SMITH
LLP 1
ASTORNEYS AT LAW NOTICE OF ENTRY OF JUDGMENT
Exhibit A
me LEWIS BRISBOIS BISGAARD & SMITH LLP _
ALEX ee.
A. GRAFT, SB# 239647 FELLE wD
E-Mail: Alex.Graft@lewisbrisbois.com Superior Court of California
BB
V. T. SATHIENMARS, SB# 282619 ter: of Placer.
E-Mail: V.Sathienmars@lewisbrisbois.com |
WwW
oF]
333 Bush Street, Suite 1100 OCT 2: zOtT
San Francisco, California 94104-2872
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Jake Cha So
Telephone: 415.362.2580 BAe CI ve ote ihe ut
Facsimile: 415.434.0882 vM. Tay!
HD
Attorneys for Defendant
DN
LYNN SEARLE
IY
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
eS
COUNTY OF PLACER
10
11 RONALD MAZZAFERRO, CASE NO. S-CV-0037210
12 Plaintiff, -{PROPOSED} JUDGMENT
13 vs.
14 NILESH CHOUDHARY, et al., .
Action Filed: December 21, 2015
1S Defendants. Trial Date: None Set
16
17 On June 23, 2017, the Court entered itsOrder After Hearing on Orders to Show Cause, a
18 true and correct copy of the notice of entry of which isattached as Exhibit 1.
19 IT IS ACCORDINGLY HEREBY ORDERED, ADJUDGED, AND DECREED that
20 Plaintiff RONALD MAZZAFERRO shall take nothing by way of his Complaint, and that
21 Defendant LYNN SEARLE isentitled to Judgment as a matter of law, and receive her costs
22 against Plaintiff on the Complaint, in an amount subject to proof, as substantiated in a timely filed
biphe Uche
23 cost bill.
24 Dated: l0-V]-! }
HONORABLE CHARLES D. WACHOB
25 Judge of the Superior Court
26
IS i en ey Presented To Judge
27
28
SEP 2°7 2017 OnFor iD
Review
2
And/Or Signature
LEWIS
BRISBOIS Superior Court of California
BISGAARD 4852-5585-4923.1 County of Placer
& SMITHLP
ATIORNEYS AT LAW
[PROPOSED] JUDGMENT
ms
Exhibit 1
AWD
Superlor
dn
Court
=
of
ID
California.
County of Placer
JUN 28 2017
DU
Jake Chatters
Executive Officer & Clerk
By: J.Tisdale, Deputy
POON
SUPERIOR COURT OF THE STATE OF CALIFORNIA
_ IN AND FOR THE COUNTY OF PLACER
1
Ff
1 RONALD MAZZAFERRO,
~
Case No.: SCV-37210
12
Plaintiff, ORDER AFTER HE ARING ON
13
vs,
ORDERS TO SHOW CAUSE
14
NILESH CHOUDHARY, et al.,
15
Defendants.
16 S
17
18
19 On May 9, 2017, the court issued orders to show Cause re: -
20 (1) Why the court should not dismiss the complaint and amended
21 complaint (filed December 3, 2016, and March 7, 2017,
22 respectively) as to all defendants due to plaintiff's failure to obtain a
23 presiding judge order to file either the complaint or the amended
24 complaint as required by Code of Civil Procedure section 391.7;
25 (2) Ifthe court does not dismiss the complaint and amended
26 complaint referred to in (1) as to all defendants, why the court
27 should not enter an order of dismissal of the complaint and
28
amended complaint as to defendants Lynn Searle and William Parisi
weNVauanune
or either of them:
(3) , Why. the court should not dismiss the cross-complaint filed by
defendant Nilesh Choudhary on April 3, 2017;
(4) Ifthe complaint,
‘
amended complaint, and/or CcFoss-complaint
referred to in items (1)-(3) above, are not dismissed, why they
should not be severed from this trial after arbitration action,
commenced
;
by plaintiff December 21, 2015, and ordered refiled by
the clerk as a separate action with a new case number;
So
:
(5) Why plaintiff should not be sanctioned for failing to bring the
December 2015 action to issue by obtaining the responsive
ee
pleading or
OGRE
default of defendant Nilesh Choudhary in contravention
of case management orders of this court filed August 23, 2016,
eee
October 18, 2016, January 24, 2017, and April 11, 2017,
The orders to show cause came on regularly for hearing on June 20,
2017, in Department 42 of the Placer County Superior Court, the Honorable
ee
Charles D. Wachob presiding. Plaintiff Ronald Mazzaferro appeared in pro
SECON
per. Defendant Nilesh Choudhary appeared in pro per. Lynn Searle,
Bw
Esq.
appeared on behalf of defendant William Parisi. Alex A. Graft, Esq. appeared
on behalf of defendant Lynn Searle. The court has considered the moving
SoNRRPRNRNNN
and opposition Papers on file, and the oral argument of the parties and
RENE
counsel made at the hearing.. The court rules on the submitted matter as
follows:
Plaintiff Ronald Mazzaferro is a vexatious litigant subject to a Prefiling
order entered in the Court of Appeal in January 2012. . Plaintiff initiated this
SNOB
action on December 21, 2015, by filing a pleading entitled “Request for Trial
de Novo/Appeal of Attorney Client Fee Arbitration Award” naming Nilesh
Choudhary (Choudhary) as defendant. The pleading was filed pursuant to
ol
.
(
a |
Business and Professions Code
LE
section 6204(c), which allows any party.to a
non-binding attorney fee arbitration Proceeding to reject the award and
pursue “a trial after arbitration” by “commencfing]
BW
an action in the court
having jurisdiction over the amount of money in controversy,” Plaintiff
obtained leave of the presiding judge of
DUH
the court prior to filing the Request
for Trial de Novo. Plaintiff has not filed proof of service of the Request for
Trial de Novo/Appeal of Attorney Client Fee Arbitration
MN
showing service on
Choudhary. Choudhary did appear in the action in August 2016 by filing a
case management statement, but did not otherwise file
SP
a response to the
1 Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration
7 oi Award.
On December 5, 2016, plaintiff
~
filed an additional complaint
12 case
in this
with the same court case number. The complaint appears to
13 defendants including Choudhary, Joel
nam e four,
Rapaport (Rapaport), Lynn Searle
14 (Searle), and William Parisi (Parisi). There is no indication that
15 Rapaport,
Searle or Parisi are Parties to the trial after arbitration action. The
16 includes affirmative claims for breach
complaint
of contract, attorney malpractice,
17 bre ach of fiduciary duty, and fraud, and seeks. monetary damages.
18 did not request or obtain leave of the
Plaintiff
presiding judge permitting
19 this com plaint.
the filing of
20 On March 7, 2017, plaintiff filed an amended complaint naming
21 Same defendants and including the
the
same causes of action. Plaintiff
22 did not
request or obtain leave of the presiding judge permitting the filing of this
23 amended complaint. On April 3, 2017, Rapaport and Choudhary filed
24 answers to the amended complaint, and Choudhary filed a cross-complaint
25 against plaintiff, Seeking to confirm the arbitration award and asserting
26 claims of breach of contract and unjust enrichment. Plaintiff answered
27 cross-complaint on May 2, 2017.
the
28
(
On April 19, 2017, Searle filed a document entitled “Notice of Mistaken
Filing of First Amended Complaint From
BwWD Vexatious Litigant,” notifying the
court that plaintiff, who was subject to a prefiling order, had initiated new
litigation without obtaining approval of the presiding judge as required.
Pursuant to Code of Civil Procedure Section 391.7(c), the filing
DMN
of this ~
document automatically stayed the litigation. Further, the statute requires
that the litigation be automatically dismissed “unless the plaintiff within 10
CMON
days of the filing of that notice obtains an order from the Presiding justice or
presiding judge permitting the filing of the litigation”. (Code of Civil
10 Procedure section 391 7(C).) On May 2, 2017, plaintiff requested entry of
Lk default as to Searle. On May 8, 2017, plaintiff requested entry of default as
12 to Parisi. Both defaults were mistakenly entered by the clerk despite the
13 fact that the action was automatically stayed as of April 19, 2017, when
14 Searle filed the Notice of Mistaken Filing. On May 9, 2017, Searle applied ex
15 parte to set aside her default and dismiss the action. The court granted
16 Searle’s request to set aside the default, and set the matter for hearing on
17 the orders to show cause identified above. At no time prior to the filing of
18 the ex parte application or since did plaintiff seek permission of the presiding
19 judge of this court to file the complaint or amended complaint.
20 In response to the orders to show cause, plaintiff asserts that Code of
21 Civil Procedure section 391.7 does not apply to him following the opinion
22 issued in John v. Superior Court (2016) 63 Cal.4th 91. In John v. Superior
23 Court, the California Supreme Court held that the vexatious litigant prefiling
24 requirement does not apply to a:self-represented vexatious litigant’s appeal
25 of a judgment in an action in which he was a defendant. Plaintiff appears to
26 argue that under the holding of John v. Superior Court, the Court of Appeal
27 determination that he is a vexatious litigant was erroneous. Plaintiff states
28 that he has requested by letter to the California Judicial Council that his
Cc t a {
name be removed from their list of vexatious litigants, and further asserts
anunanune
that he has been prevented from invoking the statutory process for
removing his name from list of vexatious litigants pursuant to Code of Civil
Procedure section 391.8 due to circumstances beyond his control. Plaintiff
{also argues that the court already “fully litigated” the question of whether
Plaintiff.was required to obtain approval of the presiding judge prior to filing
the December 5, 2016, complaint or March 7, 2017, first amended
Scar
complaint, through case management orders. |
Plaintiff fails to establish that the requirements of Code of Civil
Procedure section 391.7 no longer apply to him. Although plaintiff filed an
amicus curiae brief on behalf of the petitioner in John v. Superior Court,
ERE
he
was hot a party to that action. This court, which is unaware of the
eee
circumstances under which the Court of Appeal determined plaintiff to be a
vexatious litigant, does not have jurisdiction to vacate the prefiling order.
OTE
Such an application “shall be filed in the court that entered the prefiling
order” and “shall be made before the justice or judge who entered
ee
the order,
if that justice or judge is available,” (Code of Civil Procedure section 391.8.)
OPN
Plaintiff provides no evidence that he has attempted to comply
Be
with Code of
Procedure section 391.8. Instead, plaintiff attaches a letter sent to the
California Judicial Council on January 5, 2017, requesting that his name be
ONRRPRNNNYM
removed from the list of vexatious litigants. On its face, this letter does not
comport with the requirements
NES
of Code of Civil Procedure section 391.8.
Plaintiff argues that he has been prevented from complying with
section 391.8 because utilization of the Judicial Council form created for this
Purpose would require him to permit perjury. Plaintiff's main concern
appears to be that the Judicial Council form MC-703 refers to the applicant
as “plaintiff/petitioner” which plaintiff believes to be incorrect in his
circumstance. However, given that plaintiff could simply make necessary
5r { (~ {
changes to the form application or draft
pe
his own application (Form MC-703
specifies on its face that it is for optional
BWhH use), the court finds this argument
unpersuasive.
Finally, plaintiff references minutes from caseé management
conferences which occurred on August 23, 2016, and October 18, 2016,
DH
in
Support of his argument that the issue of whether the prefiling process
continued to apply to him following the opinion in John
MAN
v. Superior Court had
already been “fully litigated” by this court in his favor. Plaintiff asserts that
this court may not disturb the prior orders of Commissioner
SCO
Michael Jacques,
who presided over the case management conferences, . |
Plaintiff’s argument is not supported by the record. The minutes
ee
HE
from
August 23, 2016, note that the court continued the case management
conference to October 18, 2016, and further stated, “[p]etition
ANaGEREEA
is not at
eee
issue — Need responsive pleading, default or dismissal as to: Nilesh _
Choudhary.” The minutes from October 18, 2016, note that the court
continued the case management conference to December 13, 2016,
ee
and
further stated, “[cJomplaint is not at issue — Need responsive pleading,
default or dismissal as to Defendant: Nilesh Choudhary.” No appearance
BB
was required, and plaintiff did not
OOH
appear at either hearing.
Plaintiff concludes that the court’s reference to a “complaint” in its
ONRRPRNNNNM
October 18, 2016; minutes, as opposed to a “petition” which was referenced
WHR
In the earlier minutes, was in recognition .of the holding of John v. Superior
Court and its impact on the instant case, specifically that plaintiff was no
longer required to obtain approval of the presiding judge
AMAR
before initlating
new litigation. There is no Support for this conclusion. The minutes of these
proceedings do not reflect any such finding, and do not refer in any way to
the case of John v. Superior Court or plaintiff’s vexatious litigant status.
ON
Rather, the minutes indicate in unambiguous language that the case was not
rv nw
yet at issue because Choudhary, the named respondent in the Request for
Trial de Novo/Appeal of Attorney Client
DH Fee Arbitration, had not responded
to the action.
AW
Code of Civil Procedure section 391.7 requires the court to dismiss the
litigation after any defendant files notice that plaintiff is
DUM
a vexatious litigant
subject to a prefiling order, unless the plaintiff obtains an order from the
presiding judge within 10 days of the filing permitting the filing of the
ON
litigation. As noted above, the complaint filed December 5, 2016, and the
amended complaint filed March 7, 2017, asserted
©
affirmative Claims against
additional defendants who were not alleged to be parties to the underlying
ES
fee arbitration for which plaintiff
ew
was initially seeking a trial de novo/appeal.
With respect to these pleadings, plaintiff failed to obtain approval of the
MANaABDAADNH
eee
presiding judge, and fails to establish that the prefiling order against him has
been vacated.
Based on the foregoing, the complaint filed December 5, 2016, and the
ee
first amended complaint filed March 7, 2017, are hereby dismissed.
Plaintiff’s
ewe
Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration
Award remains pending. The cross-complaint filed by Choudhary exists as
BB
an independent action, and also:remains pending. As plaintiff has filed an
DO
answer to the cross-complaint, that action is at issue. However, the Request
PNRNNNNNN
for Trial de Novo/Appeal of Attorney Client Fee Arbitration is still not at
RWNRH
issue
because there is no proof of service in the court’s file indicating that it was |
served on Choudhary, and Choudhary has not filed a response thereto. In
light of the complicated procedural posture of this action, the court will not
impose sanctions against plaintiff at this time based on prior case
AH
management orders. However, the court reserves the right to impose
Sanctions at the case management conference currently scheduled July 18,
ON
2017, if plaintiff continues to fail to file Proof of service of the Request for
vw . o- ~~
Trial de Novo/Appeal of Attorney Client Fee Arbitration Award, and take all
necessary steps to bring this case to issue.
WP
Searle’s requests for contempt and/or monetary sanctions against
plaintiff, or
KR
an order requiring plaintiff to post a bond pursuant to Code of
Civil Procedure sections 391.7 et seq. are deniéd. The court declines to find
DY
plaintiff in contempt at this time based on the circumstancés described
above. Searle’s request for monetary sanctions is made pursuant to Code of
ON
Civil Procedure sections 128.5 and 128.7. Section 128.5(a) authorizes the
court to order
Oo
a party to pay reas
Preview
*2203378* *149* DOCUMENT: Judgment: Amended [401136] CASE: S-CV-0037210 DATE: 01/11/2018 LEWIS BRISBOIS BISGAARD & SMITH LLP EL, ee ED ALEX A. GRAFT, SB# 239647 Superior Gaur’af Galiforn = E-Mail: Alex.Graft@lewisbrisbois.com NYO V. T. SATHIENMARS, SB# 282619 GAN 11 O08 E-Mail: V.Sathienmars@lewisbrisbois.com — He 333 Bush Street, Suite 1100 dake Chatts ; San Francisco, California 94104-2872 Bee Favion B A Werk Fk Telephone: 415.362.2580 ys ie Nay k STAR Facsimile: 415.434.0882 A Attorneys for Defendant NIH LYNN SEARLE SUPERIOR COURT OF THE STATE OF CALIFORNIA — ~ CF COUNTY OF PLACER oOo mt CO RONALD MAZZAFERRO, CASE NO. S-CV-0037210 mk &S& Plaintiff, [PROPOSED] AMENDED JUDGMENT me NYO vs. He mm NILESH CHOUDHARY, et al., Bh Action Filed: December 21, 2015 Defendants. Trial Date: None Set wa mm HAO DTD TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Be PLEASE TAKE NOTICE that on October 27, 2017, the Court entered its Judgment Om against Plaintiff RONALD MAZZAFERRO, a true and correct copy of the notice of entry of O6O which is attached hereto as Exhibit | and is incorporated herein. Thereafter, Defendant LYNN FS SEARLE timely filed a cost memorandum to which there was no timely objection. -& NN NO IT IS ACCORDINGLY HEREBY ORDERED, ADJUGED, AND DECREED that NY Plaintiff shall take nothing by way of his Complaint, and that Defendant LYNN SEARLE is NO Oe entitled to Judgment as a matter of law against Plaintiff, and to recover her costs against Plaintiff PF NH on the Complaint in the amount of $495.00, as substantiated in Defendant’s timely filed cost bill, Oo NY to which there was no timely objection. NH NY Dated: IJ-/{7 7/8 INI NY HONORABLE CHARLES D. WACHOB Judge of the Superior Court oo LEWIS ry BRISBOIS Presented To Judge BISGAARD 433 Fase Review é And/Or Signature 1 & SMITHLIP On _/-6-/¥ [PROPOSED] AMENDED JUDGMENT ATTORNEYS AT LAW Exhibit 1 we LEWIS BRISBOIS BISGAARD & SMITH LLP ALEX A, GRAFT, SB# 239647 E-Mail: Alex.Graft@lewisbrisbois.com BB V. T. SATHIENMARS, SB# 282619 E-Mail: V.Sathienmars@lewisbrisbois.com WwW 333 Bush Street, Suite 1100 San Francisco, BB California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 EXECU MH a HAH Attorneys for Defendant ° LYNN SEARLE FAX I SF SUPERIOR COURT OF THE STATE OF CALIFORNIA oc COUNTY OF PLACER BY GL Fe RONALD MAZZAFERRO, CASE Ln NO. S-CV-0037210 Plaintiff, Be NOTICE OF ENTRY OF JUDGMENT GOP Be VS. NILESH CHOUDHARY, RE et al., ee Action Filed: December 21, 2015 Defendants. Trial Date: H None Set ew UR TO ALL PARTIES AND THEIR ew ATTORNEYS OF RECORD: PLEASE ew TAKE NOTICE that on October 27, 2017, the Court entered its Judgment in See favor of Defendant LYNN Be SEARLE, a tre and correct copy of which is attached as Exhibit A, DATED: November b, 2017 LEWIS BRISBOIS BISGAARD & SMITH LLP RP SF YN RR YY Alex A. Graft V, T. Sathienmars FR Attorneys for Defendant RRR LYNN SEARLE AeM S72 oe LEWIS BRISBOIS BISGAARD 4840-6972-1939.1 & SMITH LLP 1 ASTORNEYS AT LAW NOTICE OF ENTRY OF JUDGMENT Exhibit A me LEWIS BRISBOIS BISGAARD & SMITH LLP _ ALEX ee. A. GRAFT, SB# 239647 FELLE wD E-Mail: Alex.Graft@lewisbrisbois.com Superior Court of California BB V. T. SATHIENMARS, SB# 282619 ter: of Placer. E-Mail: V.Sathienmars@lewisbrisbois.com | WwW oF] 333 Bush Street, Suite 1100 OCT 2: zOtT San Francisco, California 94104-2872 BR Jake Cha So Telephone: 415.362.2580 BAe CI ve ote ihe ut Facsimile: 415.434.0882 vM. Tay! HD Attorneys for Defendant DN LYNN SEARLE IY Oo SUPERIOR COURT OF THE STATE OF CALIFORNIA eS COUNTY OF PLACER 10 11 RONALD MAZZAFERRO, CASE NO. S-CV-0037210 12 Plaintiff, -{PROPOSED} JUDGMENT 13 vs. 14 NILESH CHOUDHARY, et al., . Action Filed: December 21, 2015 1S Defendants. Trial Date: None Set 16 17 On June 23, 2017, the Court entered itsOrder After Hearing on Orders to Show Cause, a 18 true and correct copy of the notice of entry of which isattached as Exhibit 1. 19 IT IS ACCORDINGLY HEREBY ORDERED, ADJUDGED, AND DECREED that 20 Plaintiff RONALD MAZZAFERRO shall take nothing by way of his Complaint, and that 21 Defendant LYNN SEARLE isentitled to Judgment as a matter of law, and receive her costs 22 against Plaintiff on the Complaint, in an amount subject to proof, as substantiated in a timely filed biphe Uche 23 cost bill. 24 Dated: l0-V]-! } HONORABLE CHARLES D. WACHOB 25 Judge of the Superior Court 26 IS i en ey Presented To Judge 27 28 SEP 2°7 2017 OnFor iD Review 2 And/Or Signature LEWIS BRISBOIS Superior Court of California BISGAARD 4852-5585-4923.1 County of Placer & SMITHLP ATIORNEYS AT LAW [PROPOSED] JUDGMENT ms Exhibit 1 AWD Superlor dn Court = of ID California. County of Placer JUN 28 2017 DU Jake Chatters Executive Officer & Clerk By: J.Tisdale, Deputy POON SUPERIOR COURT OF THE STATE OF CALIFORNIA _ IN AND FOR THE COUNTY OF PLACER 1 Ff 1 RONALD MAZZAFERRO, ~ Case No.: SCV-37210 12 Plaintiff, ORDER AFTER HE ARING ON 13 vs, ORDERS TO SHOW CAUSE 14 NILESH CHOUDHARY, et al., 15 Defendants. 16 S 17 18 19 On May 9, 2017, the court issued orders to show Cause re: - 20 (1) Why the court should not dismiss the complaint and amended 21 complaint (filed December 3, 2016, and March 7, 2017, 22 respectively) as to all defendants due to plaintiff's failure to obtain a 23 presiding judge order to file either the complaint or the amended 24 complaint as required by Code of Civil Procedure section 391.7; 25 (2) Ifthe court does not dismiss the complaint and amended 26 complaint referred to in (1) as to all defendants, why the court 27 should not enter an order of dismissal of the complaint and 28 amended complaint as to defendants Lynn Searle and William Parisi weNVauanune or either of them: (3) , Why. the court should not dismiss the cross-complaint filed by defendant Nilesh Choudhary on April 3, 2017; (4) Ifthe complaint, ‘ amended complaint, and/or CcFoss-complaint referred to in items (1)-(3) above, are not dismissed, why they should not be severed from this trial after arbitration action, commenced ; by plaintiff December 21, 2015, and ordered refiled by the clerk as a separate action with a new case number; So : (5) Why plaintiff should not be sanctioned for failing to bring the December 2015 action to issue by obtaining the responsive ee pleading or OGRE default of defendant Nilesh Choudhary in contravention of case management orders of this court filed August 23, 2016, eee October 18, 2016, January 24, 2017, and April 11, 2017, The orders to show cause came on regularly for hearing on June 20, 2017, in Department 42 of the Placer County Superior Court, the Honorable ee Charles D. Wachob presiding. Plaintiff Ronald Mazzaferro appeared in pro SECON per. Defendant Nilesh Choudhary appeared in pro per. Lynn Searle, Bw Esq. appeared on behalf of defendant William Parisi. Alex A. Graft, Esq. appeared on behalf of defendant Lynn Searle. The court has considered the moving SoNRRPRNRNNN and opposition Papers on file, and the oral argument of the parties and RENE counsel made at the hearing.. The court rules on the submitted matter as follows: Plaintiff Ronald Mazzaferro is a vexatious litigant subject to a Prefiling order entered in the Court of Appeal in January 2012. . Plaintiff initiated this SNOB action on December 21, 2015, by filing a pleading entitled “Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration Award” naming Nilesh Choudhary (Choudhary) as defendant. The pleading was filed pursuant to ol . ( a | Business and Professions Code LE section 6204(c), which allows any party.to a non-binding attorney fee arbitration Proceeding to reject the award and pursue “a trial after arbitration” by “commencfing] BW an action in the court having jurisdiction over the amount of money in controversy,” Plaintiff obtained leave of the presiding judge of DUH the court prior to filing the Request for Trial de Novo. Plaintiff has not filed proof of service of the Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration MN showing service on Choudhary. Choudhary did appear in the action in August 2016 by filing a case management statement, but did not otherwise file SP a response to the 1 Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration 7 oi Award. On December 5, 2016, plaintiff ~ filed an additional complaint 12 case in this with the same court case number. The complaint appears to 13 defendants including Choudhary, Joel nam e four, Rapaport (Rapaport), Lynn Searle 14 (Searle), and William Parisi (Parisi). There is no indication that 15 Rapaport, Searle or Parisi are Parties to the trial after arbitration action. The 16 includes affirmative claims for breach complaint of contract, attorney malpractice, 17 bre ach of fiduciary duty, and fraud, and seeks. monetary damages. 18 did not request or obtain leave of the Plaintiff presiding judge permitting 19 this com plaint. the filing of 20 On March 7, 2017, plaintiff filed an amended complaint naming 21 Same defendants and including the the same causes of action. Plaintiff 22 did not request or obtain leave of the presiding judge permitting the filing of this 23 amended complaint. On April 3, 2017, Rapaport and Choudhary filed 24 answers to the amended complaint, and Choudhary filed a cross-complaint 25 against plaintiff, Seeking to confirm the arbitration award and asserting 26 claims of breach of contract and unjust enrichment. Plaintiff answered 27 cross-complaint on May 2, 2017. the 28 ( On April 19, 2017, Searle filed a document entitled “Notice of Mistaken Filing of First Amended Complaint From BwWD Vexatious Litigant,” notifying the court that plaintiff, who was subject to a prefiling order, had initiated new litigation without obtaining approval of the presiding judge as required. Pursuant to Code of Civil Procedure Section 391.7(c), the filing DMN of this ~ document automatically stayed the litigation. Further, the statute requires that the litigation be automatically dismissed “unless the plaintiff within 10 CMON days of the filing of that notice obtains an order from the Presiding justice or presiding judge permitting the filing of the litigation”. (Code of Civil 10 Procedure section 391 7(C).) On May 2, 2017, plaintiff requested entry of Lk default as to Searle. On May 8, 2017, plaintiff requested entry of default as 12 to Parisi. Both defaults were mistakenly entered by the clerk despite the 13 fact that the action was automatically stayed as of April 19, 2017, when 14 Searle filed the Notice of Mistaken Filing. On May 9, 2017, Searle applied ex 15 parte to set aside her default and dismiss the action. The court granted 16 Searle’s request to set aside the default, and set the matter for hearing on 17 the orders to show cause identified above. At no time prior to the filing of 18 the ex parte application or since did plaintiff seek permission of the presiding 19 judge of this court to file the complaint or amended complaint. 20 In response to the orders to show cause, plaintiff asserts that Code of 21 Civil Procedure section 391.7 does not apply to him following the opinion 22 issued in John v. Superior Court (2016) 63 Cal.4th 91. In John v. Superior 23 Court, the California Supreme Court held that the vexatious litigant prefiling 24 requirement does not apply to a:self-represented vexatious litigant’s appeal 25 of a judgment in an action in which he was a defendant. Plaintiff appears to 26 argue that under the holding of John v. Superior Court, the Court of Appeal 27 determination that he is a vexatious litigant was erroneous. Plaintiff states 28 that he has requested by letter to the California Judicial Council that his Cc t a { name be removed from their list of vexatious litigants, and further asserts anunanune that he has been prevented from invoking the statutory process for removing his name from list of vexatious litigants pursuant to Code of Civil Procedure section 391.8 due to circumstances beyond his control. Plaintiff {also argues that the court already “fully litigated” the question of whether Plaintiff.was required to obtain approval of the presiding judge prior to filing the December 5, 2016, complaint or March 7, 2017, first amended Scar complaint, through case management orders. | Plaintiff fails to establish that the requirements of Code of Civil Procedure section 391.7 no longer apply to him. Although plaintiff filed an amicus curiae brief on behalf of the petitioner in John v. Superior Court, ERE he was hot a party to that action. This court, which is unaware of the eee circumstances under which the Court of Appeal determined plaintiff to be a vexatious litigant, does not have jurisdiction to vacate the prefiling order. OTE Such an application “shall be filed in the court that entered the prefiling order” and “shall be made before the justice or judge who entered ee the order, if that justice or judge is available,” (Code of Civil Procedure section 391.8.) OPN Plaintiff provides no evidence that he has attempted to comply Be with Code of Procedure section 391.8. Instead, plaintiff attaches a letter sent to the California Judicial Council on January 5, 2017, requesting that his name be ONRRPRNNNYM removed from the list of vexatious litigants. On its face, this letter does not comport with the requirements NES of Code of Civil Procedure section 391.8. Plaintiff argues that he has been prevented from complying with section 391.8 because utilization of the Judicial Council form created for this Purpose would require him to permit perjury. Plaintiff's main concern appears to be that the Judicial Council form MC-703 refers to the applicant as “plaintiff/petitioner” which plaintiff believes to be incorrect in his circumstance. However, given that plaintiff could simply make necessary 5r { (~ { changes to the form application or draft pe his own application (Form MC-703 specifies on its face that it is for optional BWhH use), the court finds this argument unpersuasive. Finally, plaintiff references minutes from caseé management conferences which occurred on August 23, 2016, and October 18, 2016, DH in Support of his argument that the issue of whether the prefiling process continued to apply to him following the opinion in John MAN v. Superior Court had already been “fully litigated” by this court in his favor. Plaintiff asserts that this court may not disturb the prior orders of Commissioner SCO Michael Jacques, who presided over the case management conferences, . | Plaintiff’s argument is not supported by the record. The minutes ee HE from August 23, 2016, note that the court continued the case management conference to October 18, 2016, and further stated, “[p]etition ANaGEREEA is not at eee issue — Need responsive pleading, default or dismissal as to: Nilesh _ Choudhary.” The minutes from October 18, 2016, note that the court continued the case management conference to December 13, 2016, ee and further stated, “[cJomplaint is not at issue — Need responsive pleading, default or dismissal as to Defendant: Nilesh Choudhary.” No appearance BB was required, and plaintiff did not OOH appear at either hearing. Plaintiff concludes that the court’s reference to a “complaint” in its ONRRPRNNNNM October 18, 2016; minutes, as opposed to a “petition” which was referenced WHR In the earlier minutes, was in recognition .of the holding of John v. Superior Court and its impact on the instant case, specifically that plaintiff was no longer required to obtain approval of the presiding judge AMAR before initlating new litigation. There is no Support for this conclusion. The minutes of these proceedings do not reflect any such finding, and do not refer in any way to the case of John v. Superior Court or plaintiff’s vexatious litigant status. ON Rather, the minutes indicate in unambiguous language that the case was not rv nw yet at issue because Choudhary, the named respondent in the Request for Trial de Novo/Appeal of Attorney Client DH Fee Arbitration, had not responded to the action. AW Code of Civil Procedure section 391.7 requires the court to dismiss the litigation after any defendant files notice that plaintiff is DUM a vexatious litigant subject to a prefiling order, unless the plaintiff obtains an order from the presiding judge within 10 days of the filing permitting the filing of the ON litigation. As noted above, the complaint filed December 5, 2016, and the amended complaint filed March 7, 2017, asserted © affirmative Claims against additional defendants who were not alleged to be parties to the underlying ES fee arbitration for which plaintiff ew was initially seeking a trial de novo/appeal. With respect to these pleadings, plaintiff failed to obtain approval of the MANaABDAADNH eee presiding judge, and fails to establish that the prefiling order against him has been vacated. Based on the foregoing, the complaint filed December 5, 2016, and the ee first amended complaint filed March 7, 2017, are hereby dismissed. Plaintiff’s ewe Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration Award remains pending. The cross-complaint filed by Choudhary exists as BB an independent action, and also:remains pending. As plaintiff has filed an DO answer to the cross-complaint, that action is at issue. However, the Request PNRNNNNNN for Trial de Novo/Appeal of Attorney Client Fee Arbitration is still not at RWNRH issue because there is no proof of service in the court’s file indicating that it was | served on Choudhary, and Choudhary has not filed a response thereto. In light of the complicated procedural posture of this action, the court will not impose sanctions against plaintiff at this time based on prior case AH management orders. However, the court reserves the right to impose Sanctions at the case management conference currently scheduled July 18, ON 2017, if plaintiff continues to fail to file Proof of service of the Request for vw . o- ~~ Trial de Novo/Appeal of Attorney Client Fee Arbitration Award, and take all necessary steps to bring this case to issue. WP Searle’s requests for contempt and/or monetary sanctions against plaintiff, or KR an order requiring plaintiff to post a bond pursuant to Code of Civil Procedure sections 391.7 et seq. are deniéd. The court declines to find DY plaintiff in contempt at this time based on the circumstancés described above. Searle’s request for monetary sanctions is made pursuant to Code of ON Civil Procedure sections 128.5 and 128.7. Section 128.5(a) authorizes the court to order Oo a party to pay reas