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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
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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
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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
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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
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Dated: _/-//-/6
oct
HONORABLE CHARLES D. WACHOB
Judge of the Superior Court
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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
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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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vs.
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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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By:
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Attorneys for Defendant
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LYNN SEARLE
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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
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RONALD MAZZAFERRO, . Case No.: SCV-37210
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ORDER AFTER HEARING ON
Plaintiff, ORDERS TO SHOW CAUSE
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vs.
NILESH CHOUDHARY, et al.,
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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
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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
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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
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pleading or default of defendant Nilesh Choudhary in contravention
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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. -
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The orders to show cause came on regularly for hearing on June 20,
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2017, in Department 42 of the Placer County Superior Court, the Honorable
Charles D. Wachob presiding. Plaintiff Ronald Mazzaferro appeared In pro
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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
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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
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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.
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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
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(Searle), and William Parisi (Parisi). There is no indication that Rapaport,
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Searle or Parisi are parties to the trial after arbitration action. The complaint
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includes affirmative claims for breach of contract, attorney malpractice,
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breach of fiduciary duty, and fraud, and seeks. monetary damages. Plaintiff
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did not request or obtain leave of the presiding judge permitting the filing of
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this complaint.
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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.
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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
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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
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automatically stayed the litigation. Further, the statute requires
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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).)
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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
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Searle filed the Notice of Mistaken
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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
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above. At no time prior to the filing of
the orders to show cause identified
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or since did plaintiff seek permission of the presiding
the ex parte application
amended complaint.
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judge of this court to file the complaint or
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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
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name
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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
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section 391.7 no longer apply to him. Although plaintiff filed an
Procedure
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Court, he
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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.
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vexatious litigant, does not have jurisdiction to vacate the
an application “shall be filed in the court that entered the prefiling
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or judge who entered the order,
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order” and “shall be made before the justice
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or judge Is avallable.” (Code of Civil Procedure section 391.8.)
if that justice
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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
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his name be
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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.
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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
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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
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further stated, “[cJomplaint is not at issue - Need responsive pleading,
default or dismissal as to Defendant: Nilesh Choudhary.” No appearance
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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!
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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
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novo/appeal.
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for which plaintiff was initially seeking a trial de
fee arbitration
plaintiff failed to obtain approval of the
to these pleadings,
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respect
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against him has
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and fails to e