Preview
Superior
LED
Court ofC a
County of Placer ®
LEWIS BRISBOIS BISGAARD & SMITH LLP
ALEX A. GRAFT, SB# 239647 JAN 22 2018
E-Mail: Alex.Graft@lewisbrisbois.com Jake Chatters
V. T. SATHIENMARS, SB# 282619 Executive Officer& Clerk
ON
By: S. Hubbard, Deputy
E-Mail: V.Sathienmars@lewisbrisbois.com
333 Bush Street, Suite 1100
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San Francisco, California 94104-2872
Telephone: 415.362.2580
Facsimile: 415.434.0882
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Attorneys for Defendant
LYNN SEARLE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
C
COUNTY OF PLACER
Co
10
11 RONALD MAZZAFERRO, CASE NO. S-CV-0037210
12 Plaintiff, NOTICE OF ENTRY OF AMENDED
JUDGMENT
13 VS.
14 NILESH CHOUDHARY, et al.,
Action Filed: December 21, 2015
15 Defendants. Trial Date: None Set
16
17 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
18 PLEASE TAKE NOTICE that on January 11, 2018, the Court entered its Amended
19 Judgment in favor of Defendant LYNN SEARLE, a true and correct copy of which is attached as
20 Exhibit A.
21 DATED: January | ¥, 2018 LEWIS BRISBOIS BISGAARD & SMITH Lip
22
23
24 Alex A. Graft
Attorneys for Defendant
25 LYNN SEARLE
26
27
28
LEWIS
BRISBOIS
BISGAARD 4812-8907-8874.1 ]
& SMITHLIP NOTICE OF ENTRY OF AMENDED JUDGMENT
ATTORNEYS AT LAW
Exhibit A
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Ke LEWIS BRISBOIS BISGAARD & SMITH LLP
ALEX A. GRAFT, SB# 239647
E-Mail: Alex.Graft@lewisbrisbois.com
KY
V. T. SATHIENMARS, SB# 282619 ED
E-Mail: V.Sathienmars@lewisbrisbois.com Superior Court of California
333 Bush Street, Suite 1 1% elie liad
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San Francisco, California 94104-2872 JAN 11 2018
Telephone: 415.362.2580 . -
Facsimile: 415.434.0882 Jake Chatters
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Executive Ofiicer & Clerk
Attorneys for Defendant By: M. Taylor, Deputy
LYNN SEARLE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF PLACER
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RONALD MAZZAFERRO, CASE NO. S-CV-0037210
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Plaintiff, [RPROPOSEDT'A MENDED JUDGMENT
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vs.
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NILESH CHOUDHARY, et al.,
Action Filed: December 21, 2015
Defendants. Trial Date: None Set
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on October
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27, 2017, the Court entered its Judgment
against Plaintiff RONALD MAZZAFERRO, a true and correct copy of the notice of entry of
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which is attached hereto as Exhibit 1 and is incorporated herein. Thereafter, Defendant LYNN
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SEARLE timely filed a cost memorandum to which there was no timely objection.
IT IS ACCORDINGLY HEREBY ORDERED, ADJUGED, AND DECREED
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that
NY
Plaintiff shall take
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nothing by way of his Complaint, and that Defendant LYNN SEARLE is
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entitled to Judgment as a matter of law against Plaintiff, and to recover her costs against Plaintiff
on the Complaint in the amount of $495.00,
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as
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substantiated in Defendant’s timely filed cost bill,
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to which there was no timely objection.
Charles Wachob
NY
Dated: _/-//-/6
oct
HONORABLE CHARLES D. WACHOB
Judge of the Superior Court
NB
LEWIS
BRISBOIS
4831-3697-1864.1 1
&SMITHUP [PROPOSED] AMENDED JUDGMENT
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Exhibit 1
LEWIS BRISBOIS BISGAARD & SMITH LLP
ALEX A. GRAFT, SB# 239647
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E-Mail: Alex.Graft@lewisbrisbois.com
V. T. SATHIENMARS, SB# 282619
E-Mail: V.Sathienmars@lewisbrisbois.com
333 Bush Street, Suite 1100
San Francisco, California 94104-2872
Telephone: 415.362.2580
Facsimile: 415.434.0882
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Attorneys for Defendant
LYNN SEARLE
FAX
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
BY
COUNTY OF PLACER
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RONALD MAZZAFERRO, CASE NO. S-CV-0037210
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Plaintiff, NOTICE OF ENTRY OF JUDGMENT
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Action Filed: December 21, 2015
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Defendants. Trial Date: None Set
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on October 27, 2017, the Court entered its Judgment in
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favor of Defendant LYNN SEARLE, a true and correct copy of which is attached as Exhibit A.
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DATED: November f,_, 2017 LEWIS BRISBOIS BISGAARD & SMITH LLP
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Attorneys for Defendant
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4840-6972-1939,1 _1
NOTICE OF ENTRY OF JUDGMENT
Exhibit A
LEWIS BRISBOIS BISGAARD & SMITH LLP
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ALEX A. GRAFT, SB# 239647
E-Mail: Alex.Graft@lewisbrisbois.com FILED
Superior Court of Calitor
V. T. SATHIENMARS, SB# 282619
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County of Placer
E-Mail: V.Sathienmars@lewisbrisbois.com
333 Bush Street, Suite 1100 OCT 27 2017
San Francisco, California 94104-2872 Jake Cha
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Telephone: 415.362.2580 Executive Office:
Facsimile: 415.434.0882 By NW, Taytegne
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Attorneys for Defendant
LYNN SEARLE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF PLACER
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RONALD MAZZAFERRO, CASE NO. S-CV-0037210
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Plaintiff, PROPOSED} JUDGMENT
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vs.
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NILESH CHOUDHARY, etal.,
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Action Filed: December 21, 2015
Defendants. Trial Date: None Set
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On June 23, 2017, the Court entered its Order After Hearing on Orders to Show Cause, a
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true and correct copy of the notice of entry of which is attached as Exhibit 1.
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IT IS ACCORDINGLY HEREBY ORDERED, ADJUDGED, AND DECREED that
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Plaintiff RONALD MAZZAFERRO shall take nothing by way of his Complaint, and that
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Defendant LYNN SEARLE is entitled to Judgment as a matter of law, and receive her costs
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against Plaintiff on the Complaint, in an amount subject to proof, as substantiated in a timely filed
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cost bill.
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Dated:
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HONORABLE CHARLES D. WACHOB
Judge of the Superior Court
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RECEIVED
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Presented To Judge
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For Review And/Or Signature
SEP 27 2017
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LEWIS
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Superior Court of California
4852-5585-4923.1 County of Placer
&SMIHUP [PROPOSED] JUDGMENT
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Exhibit 1
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Superior Court of California .
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County of Placer
JUN 23 2017
Jake Chatters
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Executive Officer & Clerk
By: J.Tisdale, Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
BNSGRGONFSGoOMRVNanAWNHO
RONALD MAZZAFERRO, . Case No.: SCV-37210
RBR
ORDER AFTER HEARING ON
Plaintiff, ORDERS TO SHOW CAUSE
PK BP
vs.
NILESH CHOUDHARY, et al.,
NNNNNNNNRP BBP
Defendants. —
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On May 9, 2017, the court Issued orders to show cause re: ~
(1) Why the court should not dismiss the complaint and amended
complaint (filed December 3, 2016, and March 7, 2017,
respectively) as to all defendants due to plaintiff's failure to obtain a
presiding judge order to file either the complaint or the amended
complaint as required by Code of Civil Procedure section 391.7;
(2) If the court does not dismiss the complaint and amended
complaint referred to in (1) as to all defendants, why the court
should not enter an order of dismissal of the complaint and
ra (
DRWNHE amended complaint as to defendants Lynn Searle and William Parisi
or either of them;
(3) Why. the court should not dismiss the cross-complaint filed by
defendant Nilesh Choudhary on April 3, 2017;
(4) If the complaint, amended complaint, and/or cross-complaint
CONAN
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;
(5) Why plaintiff should not be sanctioned for failing to bring the
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December 2015 action to Issue by obtaining the responsive
BPP eB
ANauRKRWNH
pleading or default of defendant Nilesh Choudhary in contravention
BR
of case management orders of this court filed August 23, 2016,
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October 18, 2016, January 24, 2017, and April 11,2017. -
BP
The orders to show cause came on regularly for hearing on June 20,
NBBE
2017, in Department 42 of the Placer County Superior Court, the Honorable
Charles D. Wachob presiding. Plaintiff Ronald Mazzaferro appeared In pro
BHF
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per. Defendant Nilesh Choudhary appeared In pro per. Lynn Searle, 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
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and opposition papers on file, and the oral argument of the parties and
RBNRFRFRGOnNK
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
action on December 21, 2015, by filing a pleading entitled “Request for Trial
“OU
de Novo/Appeal of Attorney Client Fee Arbitration Award” naming Nilesh
Choudhary (Choudhary) as defendant. The pleading was filed pursuant to
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E Business and Professions Code section 6204(c), which allows any party to a
non-binding attorney fee arbitration proceeding to reject the award and
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pursue “a trial after arbitration” by “commenc[ing] an action in the court
having jurisdiction over the amount of money in controversy.” Plaintiff
obtained leave of the presiding judge of the court prior to filing the Request
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for Trial de Novo. Plaintiff has not filed proof of service of the Request for
Trial de Novo/Appeal of Attorney Client Fee Arbitration showing service on
Choudhary. Choudhary did appear in the action in August 2016 by filing a
case management statement, but did not otherwise file a response to the
Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration Award.
PNBPRPRBSRRESGSGYLAVHGEGNHNES
On December 5, 2016, plaintiff filed an additional complaint in this
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case with the same court case number. The complaint appears to name four|
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defendants including Choudhary, Joel Rapaport (Rapaport), Lynn Searle
RFP
(Searle), and William Parisi (Parisi). There is no indication that Rapaport,
BP
Searle or Parisi are parties to the trial after arbitration action. The complaint
BPN FY
includes affirmative claims for breach of contract, attorney malpractice,
BF
breach of fiduciary duty, and fraud, and seeks. monetary damages. Plaintiff
BF
did not request or obtain leave of the presiding judge permitting the filing of
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this complaint.
BFP
On March 7, 2017, plaintiff filed an amended complaint naming the
same defendants and including the same causes of action. Plaintiff did not
request or obtain leave of the presiding judge permitting the filing of this
amended complaint. On April 3, 2017, Rapaport and Choudhary filed
answers to the amended complaint, and Choudhary filed a cross-complaint
against plaintiff, seeking to confirm the arbitration award and asserting
claims of breach of contract and unjust enrichment. Plaintiff answered the
cross-complaint on May 2, 2017.
{
eR On April 19, 2017, Searle filed a document entitled “Notice of Mistaken
First Amended Complaint From Vexatious Litigant,” notifying the
Filing of
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plaintiff, who was subject to a prefiling order, had initiated new
court that
aunn
without obtaining approval of the presiding judge as required.
litigation
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to Code of Civil Procedure section 391.7(c), the filing of this
Pursuant
oo
automatically stayed the litigation. Further, the statute requires
document
be automatically dismissed “unless the plaintiff within 10
that the litigation
notice obtains an order from the presiding justice or
days of the filing of that
permitting the filing of the litigation”. (Code of Civil
presiding judge
On May 2, 2017, plaintiff requested entry of
Procedure section 391.7(c).)
DS
plaintiff requested entry of default as
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default as to Searle. On May 8, 2017,
mistakenly entered by the clerk despite the
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to Parisi. Both defaults were
was automatically stayed as of April 19, 2017, when
fact that the action
Filing. On May 9, 2017, Searle applied ex
CoANAUMA
Searle filed the Notice of Mistaken
BE
her default and dismiss the action. The court granted
parte to set aside
the default, and set the matter for hearing on
Searle’s request to set aside
EP
above. At no time prior to the filing of
the orders to show cause identified
KR
or since did plaintiff seek permission of the presiding
the ex parte application
amended complaint.
NNNNNNHBRRER
judge of this court to file the complaint or
BPNRBRREGBNFSG
to show cause, plaintiff asserts that Code of
In response to the orders
391.7 does not apply to him following the opinion
Civil Procedure section
Court (2016) 63 Cal.4th 91. In John v. Superior
issued in John v. Superior
Court held that the vexatious litigant prefiling
Court, the California Supreme
to aself-represented vexatious litigant’s appeal
requirement does not apply
he was a defendant. Plaintiff appears to
of a judgment in an action in which
of John v. Superior Court, the Court of Appeal
argue that under the holding
litigant was erroneous. Plaintiff states
determination that he is a vexatious
to the California Judicial Council that his
that he has requested by letter
co (
name
nundwWnN HE
be removed from their list of vexatious litigants, and further asserts
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
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complaint, through case management orders.
Plaintiff fails to establish that the requirements of Code of Civil
wo
section 391.7 no longer apply to him. Although plaintiff filed an
Procedure
HO
Court, he
Peo
amicus curiae brief on behalf of the petitioner In John v. Superior
was not a party to that action. This court, which is unaware of the
to be a
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circumstances under which the Court of.Appeal determined plaintiff
prefiling order.
BEE
vexatious litigant, does not have jurisdiction to vacate the
an application “shall be filed in the court that entered the prefiling
Such
or judge who entered the order,
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order” and “shall be made before the justice
BE
or judge Is avallable.” (Code of Civil Procedure section 391.8.)
if that justice
BHR
no evidence that he has attempted to comply with Code of
Plaintiff provides
391.8. Instead, plaintiff attaches a letter sent to the
Procedure section
CH
his name be
NNNNNNNeBP
Judicial Council on January 5, 2017, requesting that
California
list of vexatious litigants. On its face, this letter does not
removed from the
391.8.
RNGBGFRGAnNF
with the requirements of Code of Civil Procedure section
comport
argues that he has been prevented from complying with
Plaintiff
utilization of the Judicial Council form created for this
section 391.8 because
require him to permit perjury. Plaintiff's main concern
purpose would
that the Judicial Council form MC-703 refers to the applicant
appears to be
which plaintiff believes to be incorrect in his
as “plaintiff/petitioner”
However, given that plaintiff could simply make necessary
circumstance.
changes to the form
WHE application or draft his own application (Form MC-703
specifies on its face that it is for optional use), the court finds this argument
CONAN
unpersuasive.
Finally, plaintiff references minutes from case management
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conferences which occurred on August 23, 2016, and October 18, 2016, in
support of his argument that the issue of whether the prefiling process
continued to apply to him following the opinion in John 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 Michael Jacques,
who presided over the case management conferences. : ;
Plaintiff’s argument is not supported by the record. The minutes from
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August 23, 2016, note that the court continued the case management
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conference to October 18, 2016, and further stated, “[p]etition is not at
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issue — Need responsive pleading, default or dismissal as to: Nilesh .
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Choudhary.” The minutes from October 18, 2016, note that the court
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continued the case management conference to December 13, 2016, and
BB
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 appear at either hearing.
Plaintiff concludes that the court’s reference to a “complaint” in its
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October 18, 2016, minutes, as opposed to a “petition” which was referenced
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
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longer required to obtain approval of the presiding judge before initiating
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.
Rather, the minutes indicate in unambiguous language that the case was not!
f (
at issue because Choudhary, the named respondent in the Request for
yet
responded
C©OoOnNaunrnWwne
de Novo/Appeal of Attorney Client Fee Arbitration, had not
Trial
.
to the action.
Procedure section 391.7 requires the court to dismiss the
Code of Civil
any defendant files noticé that plaintiff is a vexatious litigant
litigation after
order, unless the plaintiff obtains an order from the
subject to a prefiling
10 days of the filing permitting the filing of the ,
presiding judge within
the complaint filed December 5, 2016, and the
litigation. As noted above,
filed March 7, 2017, asserted affirmative claims against
amended complaint
were not alleged to be parties to the underlying
additional defendants who
SO
novo/appeal.
EB
for which plaintiff was initially seeking a trial de
fee arbitration
plaintiff failed to obtain approval of the
to these pleadings,
WNE
respect
P
With
against him has
BR
and fails to e
Preview
Superior LED Court ofC a County of Placer ® LEWIS BRISBOIS BISGAARD & SMITH LLP ALEX A. GRAFT, SB# 239647 JAN 22 2018 E-Mail: Alex.Graft@lewisbrisbois.com Jake Chatters V. T. SATHIENMARS, SB# 282619 Executive Officer& Clerk ON By: S. Hubbard, Deputy E-Mail: V.Sathienmars@lewisbrisbois.com 333 Bush Street, Suite 1100 yD San Francisco, California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 rn Attorneys for Defendant LYNN SEARLE SUPERIOR COURT OF THE STATE OF CALIFORNIA C COUNTY OF PLACER Co 10 11 RONALD MAZZAFERRO, CASE NO. S-CV-0037210 12 Plaintiff, NOTICE OF ENTRY OF AMENDED JUDGMENT 13 VS. 14 NILESH CHOUDHARY, et al., Action Filed: December 21, 2015 15 Defendants. Trial Date: None Set 16 17 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 18 PLEASE TAKE NOTICE that on January 11, 2018, the Court entered its Amended 19 Judgment in favor of Defendant LYNN SEARLE, a true and correct copy of which is attached as 20 Exhibit A. 21 DATED: January | ¥, 2018 LEWIS BRISBOIS BISGAARD & SMITH Lip 22 23 24 Alex A. Graft Attorneys for Defendant 25 LYNN SEARLE 26 27 28 LEWIS BRISBOIS BISGAARD 4812-8907-8874.1 ] & SMITHLIP NOTICE OF ENTRY OF AMENDED JUDGMENT ATTORNEYS AT LAW Exhibit A L Ke LEWIS BRISBOIS BISGAARD & SMITH LLP ALEX A. GRAFT, SB# 239647 E-Mail: Alex.Graft@lewisbrisbois.com KY V. T. SATHIENMARS, SB# 282619 ED E-Mail: V.Sathienmars@lewisbrisbois.com Superior Court of California 333 Bush Street, Suite 1 1% elie liad Bw San Francisco, California 94104-2872 JAN 11 2018 Telephone: 415.362.2580 . - Facsimile: 415.434.0882 Jake Chatters DH Executive Ofiicer & Clerk Attorneys for Defendant By: M. Taylor, Deputy LYNN SEARLE emt SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF PLACER ec Ss RONALD MAZZAFERRO, CASE NO. S-CV-0037210 = Plaintiff, [RPROPOSEDT'A MENDED JUDGMENT HB vs. me BD NILESH CHOUDHARY, et al., Action Filed: December 21, 2015 Defendants. Trial Date: None Set UY DAH TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October we 27, 2017, the Court entered its Judgment against Plaintiff RONALD MAZZAFERRO, a true and correct copy of the notice of entry of SC which is attached hereto as Exhibit 1 and is incorporated herein. Thereafter, Defendant LYNN RD B&F SEARLE timely filed a cost memorandum to which there was no timely objection. IT IS ACCORDINGLY HEREBY ORDERED, ADJUGED, AND DECREED NR that NY Plaintiff shall take BH nothing by way of his Complaint, and that Defendant LYNN SEARLE is NN Fs entitled to Judgment as a matter of law against Plaintiff, and to recover her costs against Plaintiff on the Complaint in the amount of $495.00, nN as Be substantiated in Defendant’s timely filed cost bill, nA to which there was no timely objection. Charles Wachob NY Dated: _/-//-/6 oct HONORABLE CHARLES D. WACHOB Judge of the Superior Court NB LEWIS BRISBOIS 4831-3697-1864.1 1 &SMITHUP [PROPOSED] AMENDED JUDGMENT Tomes UW Exhibit 1 LEWIS BRISBOIS BISGAARD & SMITH LLP ALEX A. GRAFT, SB# 239647 eawnin E-Mail: Alex.Graft@lewisbrisbois.com V. T. SATHIENMARS, SB# 282619 E-Mail: V.Sathienmars@lewisbrisbois.com 333 Bush Street, Suite 1100 San Francisco, California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 an Attorneys for Defendant LYNN SEARLE FAX 2a SUPERIOR COURT OF THE STATE OF CALIFORNIA BY COUNTY OF PLACER 2 S RONALD MAZZAFERRO, CASE NO. S-CV-0037210 i SB a Plaintiff, NOTICE OF ENTRY OF JUDGMENT WKH vs. NILESH CHOUDHARY, et al., BF Action Filed: December 21, 2015 ee Defendants. Trial Date: None Set AAA oe TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: ee PLEASE TAKE NOTICE that on October 27, 2017, the Court entered its Judgment in Ce favor of Defendant LYNN SEARLE, a true and correct copy of which is attached as Exhibit A. He DATED: November f,_, 2017 LEWIS BRISBOIS BISGAARD & SMITH LLP SF KD KF KR KR o&Hnv By: Alex A. Graft KR V. T. Sathienmars FB Attorneys for Defendant NY LYNN SEARLE RP & Q8 RP RP oa RP 4840-6972-1939,1 _1 NOTICE OF ENTRY OF JUDGMENT Exhibit A LEWIS BRISBOIS BISGAARD & SMITH LLP em ALEX A. GRAFT, SB# 239647 E-Mail: Alex.Graft@lewisbrisbois.com FILED Superior Court of Calitor V. T. SATHIENMARS, SB# 282619 ww County of Placer E-Mail: V.Sathienmars@lewisbrisbois.com 333 Bush Street, Suite 1100 OCT 27 2017 San Francisco, California 94104-2872 Jake Cha eB Telephone: 415.362.2580 Executive Office: Facsimile: 415.434.0882 By NW, Taytegne AnH Attorneys for Defendant LYNN SEARLE ert SUPERIOR COURT OF THE STATE OF CALIFORNIA. COUNTY OF PLACER ec S RONALD MAZZAFERRO, CASE NO. S-CV-0037210 aaa KE Plaintiff, PROPOSED} JUDGMENT KH vs. BW NILESH CHOUDHARY, etal., BF Action Filed: December 21, 2015 Defendants. Trial Date: None Set AHA On June 23, 2017, the Court entered its Order After Hearing on Orders to Show Cause, a OIA me true and correct copy of the notice of entry of which is attached as Exhibit 1. me BO IT IS ACCORDINGLY HEREBY ORDERED, ADJUDGED, AND DECREED that we SF Plaintiff RONALD MAZZAFERRO shall take nothing by way of his Complaint, and that YD Defendant LYNN SEARLE is entitled to Judgment as a matter of law, and receive her costs KF against Plaintiff on the Complaint, in an amount subject to proof, as substantiated in a timely filed N ON ee Whcla cost bill. N JO-1]-17) (> Dated: eB RY HONORABLE CHARLES D. WACHOB Judge of the Superior Court NY Aa 5 fe RECEIVED YR Presented To Judge NR For Review And/Or Signature SEP 27 2017 ol On = l— LEWIS YP Superior Court of California 4852-5585-4923.1 County of Placer &SMIHUP [PROPOSED] JUDGMENT momen AUW Exhibit 1 KRWnNe FEE Superior Court of California . ©ON County of Placer JUN 23 2017 Jake Chatters AU Executive Officer & Clerk By: J.Tisdale, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER BNSGRGONFSGoOMRVNanAWNHO RONALD MAZZAFERRO, . Case No.: SCV-37210 RBR ORDER AFTER HEARING ON Plaintiff, ORDERS TO SHOW CAUSE PK BP vs. NILESH CHOUDHARY, et al., NNNNNNNNRP BBP Defendants. — KB On May 9, 2017, the court Issued orders to show cause re: ~ (1) Why the court should not dismiss the complaint and amended complaint (filed December 3, 2016, and March 7, 2017, respectively) as to all defendants due to plaintiff's failure to obtain a presiding judge order to file either the complaint or the amended complaint as required by Code of Civil Procedure section 391.7; (2) If the court does not dismiss the complaint and amended complaint referred to in (1) as to all defendants, why the court should not enter an order of dismissal of the complaint and ra ( DRWNHE amended complaint as to defendants Lynn Searle and William Parisi or either of them; (3) Why. the court should not dismiss the cross-complaint filed by defendant Nilesh Choudhary on April 3, 2017; (4) If the complaint, amended complaint, and/or cross-complaint CONAN 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; (5) Why plaintiff should not be sanctioned for failing to bring the OG December 2015 action to Issue by obtaining the responsive BPP eB ANauRKRWNH pleading or default of defendant Nilesh Choudhary in contravention BR of case management orders of this court filed August 23, 2016, HF October 18, 2016, January 24, 2017, and April 11,2017. - BP The orders to show cause came on regularly for hearing on June 20, NBBE 2017, in Department 42 of the Placer County Superior Court, the Honorable Charles D. Wachob presiding. Plaintiff Ronald Mazzaferro appeared In pro BHF OMO NNNNN per. Defendant Nilesh Choudhary appeared In pro per. Lynn Searle, 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 SC and opposition papers on file, and the oral argument of the parties and RBNRFRFRGOnNK 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 action on December 21, 2015, by filing a pleading entitled “Request for Trial “OU de Novo/Appeal of Attorney Client Fee Arbitration Award” naming Nilesh Choudhary (Choudhary) as defendant. The pleading was filed pursuant to \ E Business and Professions Code section 6204(c), which allows any party to a non-binding attorney fee arbitration proceeding to reject the award and O©OON AWN pursue “a trial after arbitration” by “commenc[ing] an action in the court having jurisdiction over the amount of money in controversy.” Plaintiff obtained leave of the presiding judge of the court prior to filing the Request AM for Trial de Novo. Plaintiff has not filed proof of service of the Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration showing service on Choudhary. Choudhary did appear in the action in August 2016 by filing a case management statement, but did not otherwise file a response to the Request for Trial de Novo/Appeal of Attorney Client Fee Arbitration Award. PNBPRPRBSRRESGSGYLAVHGEGNHNES On December 5, 2016, plaintiff filed an additional complaint in this Be case with the same court case number. The complaint appears to name four| N Be defendants including Choudhary, Joel Rapaport (Rapaport), Lynn Searle RFP (Searle), and William Parisi (Parisi). There is no indication that Rapaport, BP Searle or Parisi are parties to the trial after arbitration action. The complaint BPN FY includes affirmative claims for breach of contract, attorney malpractice, BF breach of fiduciary duty, and fraud, and seeks. monetary damages. Plaintiff BF did not request or obtain leave of the presiding judge permitting the filing of NN this complaint. BFP On March 7, 2017, plaintiff filed an amended complaint naming the same defendants and including the same causes of action. Plaintiff did not request or obtain leave of the presiding judge permitting the filing of this amended complaint. On April 3, 2017, Rapaport and Choudhary filed answers to the amended complaint, and Choudhary filed a cross-complaint against plaintiff, seeking to confirm the arbitration award and asserting claims of breach of contract and unjust enrichment. Plaintiff answered the cross-complaint on May 2, 2017. { eR On April 19, 2017, Searle filed a document entitled “Notice of Mistaken First Amended Complaint From Vexatious Litigant,” notifying the Filing of wWwrn plaintiff, who was subject to a prefiling order, had initiated new court that aunn without obtaining approval of the presiding judge as required. litigation ra to Code of Civil Procedure section 391.7(c), the filing of this Pursuant oo automatically stayed the litigation. Further, the statute requires document be automatically dismissed “unless the plaintiff within 10 that the litigation notice obtains an order from the presiding justice or days of the filing of that permitting the filing of the litigation”. (Code of Civil presiding judge On May 2, 2017, plaintiff requested entry of Procedure section 391.7(c).) DS plaintiff requested entry of default as OREO default as to Searle. On May 8, 2017, mistakenly entered by the clerk despite the YNE to Parisi. Both defaults were was automatically stayed as of April 19, 2017, when fact that the action Filing. On May 9, 2017, Searle applied ex CoANAUMA Searle filed the Notice of Mistaken BE her default and dismiss the action. The court granted parte to set aside the default, and set the matter for hearing on Searle’s request to set aside EP above. At no time prior to the filing of the orders to show cause identified KR or since did plaintiff seek permission of the presiding the ex parte application amended complaint. NNNNNNHBRRER judge of this court to file the complaint or BPNRBRREGBNFSG to show cause, plaintiff asserts that Code of In response to the orders 391.7 does not apply to him following the opinion Civil Procedure section Court (2016) 63 Cal.4th 91. In John v. Superior issued in John v. Superior Court held that the vexatious litigant prefiling Court, the California Supreme to aself-represented vexatious litigant’s appeal requirement does not apply he was a defendant. Plaintiff appears to of a judgment in an action in which of John v. Superior Court, the Court of Appeal argue that under the holding litigant was erroneous. Plaintiff states determination that he is a vexatious to the California Judicial Council that his that he has requested by letter co ( name nundwWnN HE be removed from their list of vexatious litigants, and further asserts 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 On complaint, through case management orders. Plaintiff fails to establish that the requirements of Code of Civil wo section 391.7 no longer apply to him. Although plaintiff filed an Procedure HO Court, he Peo amicus curiae brief on behalf of the petitioner In John v. Superior was not a party to that action. This court, which is unaware of the to be a AWN circumstances under which the Court of.Appeal determined plaintiff prefiling order. BEE vexatious litigant, does not have jurisdiction to vacate the an application “shall be filed in the court that entered the prefiling Such or judge who entered the order, eNAH order” and “shall be made before the justice BE or judge Is avallable.” (Code of Civil Procedure section 391.8.) if that justice BHR no evidence that he has attempted to comply with Code of Plaintiff provides 391.8. Instead, plaintiff attaches a letter sent to the Procedure section CH his name be NNNNNNNeBP Judicial Council on January 5, 2017, requesting that California list of vexatious litigants. On its face, this letter does not removed from the 391.8. RNGBGFRGAnNF with the requirements of Code of Civil Procedure section comport argues that he has been prevented from complying with Plaintiff utilization of the Judicial Council form created for this section 391.8 because require him to permit perjury. Plaintiff's main concern purpose would that the Judicial Council form MC-703 refers to the applicant appears to be which plaintiff believes to be incorrect in his as “plaintiff/petitioner” However, given that plaintiff could simply make necessary circumstance. changes to the form WHE application or draft his own application (Form MC-703 specifies on its face that it is for optional use), the court finds this argument CONAN unpersuasive. Finally, plaintiff references minutes from case management EA conferences which occurred on August 23, 2016, and October 18, 2016, in support of his argument that the issue of whether the prefiling process continued to apply to him following the opinion in John 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 Michael Jacques, who presided over the case management conferences. : ; Plaintiff’s argument is not supported by the record. The minutes from Re August 23, 2016, note that the court continued the case management Re conference to October 18, 2016, and further stated, “[p]etition is not at Be issue — Need responsive pleading, default or dismissal as to: Nilesh . BR Choudhary.” The minutes from October 18, 2016, note that the court BH continued the case management conference to December 13, 2016, and BB 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 appear at either hearing. Plaintiff concludes that the court’s reference to a “complaint” in its NNN October 18, 2016, minutes, as opposed to a “petition” which was referenced 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 NNN longer required to obtain approval of the presiding judge before initiating 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. Rather, the minutes indicate in unambiguous language that the case was not! f ( at issue because Choudhary, the named respondent in the Request for yet responded C©OoOnNaunrnWwne de Novo/Appeal of Attorney Client Fee Arbitration, had not Trial . to the action. Procedure section 391.7 requires the court to dismiss the Code of Civil any defendant files noticé that plaintiff is a vexatious litigant litigation after order, unless the plaintiff obtains an order from the subject to a prefiling 10 days of the filing permitting the filing of the , presiding judge within the complaint filed December 5, 2016, and the litigation. As noted above, filed March 7, 2017, asserted affirmative claims against amended complaint were not alleged to be parties to the underlying additional defendants who SO novo/appeal. EB for which plaintiff was initially seeking a trial de fee arbitration plaintiff failed to obtain approval of the to these pleadings, WNE respect P With against him has BR and fails to e