Preview
11/13/2020
1 David R. Casady, Esq. (SBN 273282)
BERMAN BERMAN BERMAN
2 SCHNEIDER & LOWARY, LLP
2390 Professional Drive
3 Roseville, CA 95661
Telephone: (916) 846-9391
4 Facsimile: (916) 672-9290
E-mail: drcasady@b3law.com
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Attorneys for Defendants
6 MATTHEW JOHN BANTANG, MOBILE COPY SERVICE, INC.,
DONOVAN RICKETTS and FREDERICK RICKETTS
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF PLACER
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11 DONALD HUBBARD, an individual, ) CASE NO: S-CV-0045393
)
12 Plaintiff, ) DECLARATION OF DAVID R. CASADY,
) ESQ. IN SUPPORT OF DEFENDANTS’
13 v. ) MOTION FOR AN ORDER FOR
) DISMISSAL FOR FAILING TO TIMELY
14 MATTHEW JOHN BANTANG, [a.k.a., ) OBTAIN A PRE-FILING ORDER WITHIN
MATT BANTANG], and individual; ) 10 DAYS OF THE SECOND NOTICE
15 MOBILE COPY SERVICE, INC., a )
California Corporation; DONOVAN ) Date: December 11
16 RICKETTS, an individual and managing ) Time: 8:00 a.m.
employee of MOBILE COPY SERVICE, ) Dept.: 3
17 INC.; FREDRICK RICKETTS, an )
individual and managing employee of ) Complaint Filed: May 7, 2020
18 MOBILE COPY SERVICE, INC.; ) Trial Date: Not yet set
HANOVER INSURANCE GROUP, an )
19 unknown business entity; THE HANOVER )
AMERICAN INSURANCE COMPANY, )
20 a foreign stock company; JOHN CONNER )
ROCHE, an individual and managing )
21 employee of HANOVER INSURANCE )
GROUP; GWEN JONES, an individual )
22 and Agent of THE HANOVER )
AMERICAN INSURANCE COMPANY; )
23 ALLMERICA FINACIAL ALLIANCE, an )
unknown business entity; ARTHUR )
24 ANDERSON, an individual and Agent of )
THE HANOVER AMERICAN )
25 INSURANCE COMPANY; SCOT A. )
ERICKSON, an individual and Agent of )
26 THE HANOVER AMERICAN )
INSURANCE COMPANY; SUTTER )
27 HEALTH AND AETNA )
ADMINISTRATIVE SERVICES LLC dba )
28 SUTTER DIAGNOSTIC IMAGING and, )
)
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DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER
DOES 1 to 50, inclusive, )
1 )
Defendant(s). )
2 )
3 I, David R. Casady, hereby declare the following:
4 1. I am an attorney duly licensed by the State of California and employed with
5 Berman Berman, Berman, Schneider and Lowary, LLP, attorneys of record for defendants
6 MATTHEW JOHN BANTANG, MOBILE COPY SERVICE, INC., DONOVAN RICKETTS and
7 FREDERICK RICKETTS (collectively “Defendants”) in the above-referenced matter. I have
8 personal knowledge of the facts set forth herein and if called as a witness I could and would testify
9 competently to the truth of the facts set forth in this declaration.
10 2. On October 13, 2020, my office served Plaintiff with Defendants’ original Notice That
11 Plaintiff is a Vexatious Litigant Subject to Prefilling Order. A true and correct copy of the original
12 Notice has been served concurrently with this declaration as Request for Judicial Notice (“RJN”)
13 Number 1.
14 3. In response, Plaintiff “obtained” representation by Lyle Solomon, Esq. and served
15 Defendants with a substitution of attorney on October 15, 2020. A true and correct copy of the
16 substitution of attorney which was served on October 15, 2020 is attached to RJN No. 2 as Exhibit
17 C.
18 4. However, Plaintiff’s filing of the substitution of attorney does not cure his failure to obtain
19 the required pre-filing order. Rather, Defendants contend that it is a deliberate attempt to
20 circumvent the requirements and, frankly, is a “sham”. As a “sham”, this Court has the inherent
21 authority to disregard it and, require the prefiling order for the reasons below:
22 5. On August 1, 2017, in the matter of Hubbard v. Evett, Sacramento County Court Case 34-
23 2017-00211640 (“Evett Litigation”), Plaintiff was deemed a vexatious litigant. (RJN No. 2:
24 Exhibit A.) The Court entered a prefiling order prohibiting Plaintiff from filing a new lawsuit
25 without permission of the Presiding Judge of this Court. (RJN No. 2: Exhibit B.)
26 6. By Plaintiff’s own admissions, Mr. Solomon has been “general counsel” and his “legal
27 advisor in some capacity for approximately ten years.” (RJN No. 2: Exhibit D: Declaration of
28 Donald Hubbard, p. 3 ¶11; see also RJN No. 2: Exhibit E: Declaration of Lyle D. Solomon, Esq.,
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DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER
1 p. 1 ¶¶2-3.) In fact, after Plaintiff was deemed a vexatious litigant in the Evett Litigation, Mr.
2 Solomon was substituted in as counsel. (RJN No. 2; Exhibit F.)
3 7. The present action is the second which Plaintiff has filed against Defendants. The first
4 action – Hubbard v. Bantang, et al. – Placer County Super Court Case No. S-CV-0044862 was
5 set aside for failure to pay the filing fees. (RJN No. 2: Exhibit G.) At the time of service the first
6 action, the undersigned office addressed the need for a Prefiling Order. In response to Defendants’
7 original objection in the original case related to the failure to obtain a Prefiling Order, Plaintiff
8 stated: “And, as I stated prior I will simply file a Substitution of Attorney form and scooch
9 my ass over one chair. I will still be the caption [sic] of the ship.”. (RJN No. 2: Exhibit H, p. 2
10 [emphasis added].)
11 8. Prior to this official substitution, Plaintiff has been long cc’ing and involving Mr. Solomon,
12 Esq. albeit acting as the “caption of the ship.” (See RJN No. 2: Exhibits I, J [“Further, if my filing
13 is rejected or contested, we will simply refile the matter with counsel.”], K, L and, M.) Despite
14 Mr. Solomon being cc’ed in the correspondence, Plaintiff continued to act in a vexing and
15 unprofessional manner. (RJN No. 2: Exhibit M as an example.)
16 9. In Plaintiff’s recent correspondence, which accompanied his sending of the substitution of
17 attorney, he expressly waived the right to counsel and invited direct discussions. (RJN No. 2:
18 Exhibit N: “But, if either of you have something that you would like to discuss with me directly – I
19 hereby waive the right of counsel.”; See also RJN No. 2: Exhibit O [“any and all negotiations shall
20 be conducted through me.”].) Moreover, Plaintiff directed his own office to serve the substitution
21 of attorney – completely cutting out Mr. Solomon. (RJN No. 2: Exhibits N and P.)
22 10. On October 13, 2020, Plaintiff acting in propria persona served Defendant Mobile Copy
23 Service, Inc. with Request for Admissions, Form Interrogatories and, Special Interrogatories. He
24 also purported to serve Defendant Matthew Bantang with Request for Production of Documents.
25 11. Later, after substituting in for Plaintiff, Mr. Solomon purported to serve Defendant Mobile
26 Copy Service, Inc. with Request for Admissions, Form Interrogatories and, Special Interrogatories.
27 He also purported to serve Defendant Matthew Bantang [or Mobile Copy Service as the documents
28 are unclear] with Request for Production of Documents.
3
DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER
1 12. The discovery which was served by Plaintiff while acting in propria persona is the exact
2 same discovery that was served by Mr. Solomon after his substitution for counsel. A review of the
3 discovery shows that the only change is the name on the top left hand corner of the caption page
4 and, the signature at the end. Otherwise, they are literally word-for-word mirror images of each
5 other. As way of example, attached hereto as Exhibit 1(a) is a true and copy of the Request for
6 Admissions served on Defendant Mobile Copy Service while acting in propria persona.
7 Additionally, attached hereto as Exhibit 1(b) is a true and correct copy of the Request for
8 Admission served on Defendant Mobile Copy Service by Mr. Solomon.
9 13. By way of further example, attached hereto as Exhibit 2(a) are the Special Interrogatories
10 propounded on Defendant Mobile Copy Service by Plaintiff acting in propria persona. To
11 compare, Exhibit 2(b) are the Special Interrogatories propounded by Mr. Solomon on Defendant
12 Mobile Copy Service by Mr. Solomon after his substitution. The Special Interrogatories are the
13 exact same and, which considering the subject matter of some of them are absolutely egregious
14 and objectionable – to wit – asking about the financial condition of Mobile Copy Service without
15 first seeking leave of court under Code of Civil Procedure §3294. Even the typos are the same
16 [caption indicates the Special Interrogatories are being served on Mr. Bantang but, the body of the
17 documents indicate Mobile Copy Service, Inc.]. It would appear that Mr. Solomon merely re-
18 signed those propounded by Plaintiff without undertaking any duty as a neutral assessor of claims
19 and allowed such objectionable discovery to be re-served despite well settled, regarded and known
20 law that financial condition discovery is not allowed absent court-order.
21 14. Attached hereto for comparison are true and correct copies of the Form Interrogatories
22 served by Plaintiff, acting in propria persona (Exhibit 4(a)) and, those re-served by Mr. Solomon
23 after substitution. (Exhibit 4(b).) Absent the names and signatures, there is no difference.
24 15. Attached hereto for comparison are true and correct copies of the Request for Production of
25 Documents served by Plaintiff, acting in propria persona (Exhibit 4(a)) and, those re-served by Mr.
26 Solomon after substitution. (Exhibit 4(b).) Absent the names and signatures, again, there is no
27 difference.
28 16. Finally, despite attaching his name to the identical re-served discovery, Mr. Solomon was
4
DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER
1 actually cut off from the service process. The discovery was served by Ann of West 1 Equity –
2 Plaintiff’s company. And, while service may be properly effectuated by Ann, Mr. Solomon was
3 not even included on the e-mail; Plaintiff was. A true and correct copy of the email
4 correspondence is attached hereto as Exhibit 5.
5 17. As of the drafting of this declaration, counsel understands that neither Plaintiff nor Mr.
6 Solomon have even attempted to obtain the pre-filing order and/or responded to Defendants’
7 Second Notice in any manner. While Plaintiff opposed the original ex parte, it was not on the basis
8 of competent evidence related to the “sham” allegations. Preliminarily, the express language of
9 Code of Civil Procedure §391.7(c) does not allow for such a substitution. Code of Civ. Proc.
10 §397.1(c) [“…The litigation shall be automatically dismissed unless the plaintiff within 10 days of
11 the filing of that notice obtains an order from the presiding justice or judge permitting the filing of
12 the litigation as set forth in subdivision (b).”].
13 18. Defendants contend that a prefilling order is still required as long as Plaintiff is the
14 “caption of the ship”. See In re Kinney (2011) 201 Cal.App.4th 951, 958 [“Although the language
15 of the vexatious litigant statute refers to individuals acting in propria persona, it has also been
16 applied when hired counsel ‘acts as a mere puppet or conduit’ for abusive litigation’.”]; In re Shieh
17 (1993) 17 Cal.App.4th 1154, 1167 [“Rather, these attorneys who ostensibly ‘represent’ Shieh serve
18 as mere puppets. Based on these facts, we conclude a prefiling order limited to Shieh’s in propria
19 persona activities would be wholly ineffective as a means of curbing his out-of-control
20 behavior.”]; Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial, p. 1-236 ¶1:917.1
21 [“Representation by sham counsel disregarded.].
22 19. All documents attached to RJN Nos. 1 and 2 [and referenced above] are true and correct
23 copies thereof. The documents were not re-attached to this declaration as to not be repetitive and
24 cumbersome on the Court.
25 ///
26 ///
27 ///
28 ///
5
DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER
1 I declare under penalty of perjury under the law of the State of California that the foregoing
2 is true and correct, and that this declaration is executed on November 13, 2020 at Roseville,
3 California.
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5 _________________________________
David R. Casady, Esq., Declarant
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DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER
PROOF OF SERVICE
1
STATE OF CALIFORNIA )
2 ) ss.
COUNTY OF PLACER )
3
I am employed in the County of Placer, State of California. I am over the age of 18 and not
4 a party to the within action. My business address is 2390 Professional Drive, Roseville, CA
95661.
5
On November 13, 2020, I served the foregoing document described as "DECLARATION
6 OF DAVID R. CASADY, ESQ. IN SUPPORT OF DEFENDANTS’ MOTION FOR AN
ORDER FOR DISMISSAL FOR FAILING TO TIMELY OBTAIN A PRE-FILING
7 ORDER WITHIN 10 DAYS OF THE SECOND NOTICE" on the interested parties in this
action by placing a [X] true copy thereof [] the original document enclosed in a sealed envelope
8 addressed as follows:
9 [SEE ATTACHED SERVICE LIST]
10 X (BY MAIL) In accordance with the regular mail collection and processing practices of
this business office, with which I am familiar, by means of which mail is deposited with the
11 United States Postal Service at Roseville, California that same day in the ordinary course of
business, I deposited such sealed envelope for collection and mailing on this same date following
12 ordinary business practices.
13 (BY ELECTRONIC MAIL) Based on the parties’ agreement to accept service by
electronic transmission, I sent the above document(s) to the person(s) at the electronic address(es)
14 noted in the attached service list from my electronic service address which is
“damain@b3law.com”
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(BY OVERNIGHT MAIL)
16 ___ I caused such envelope to be delivered by hand to the office of the
addressee, either by overnight delivery via Federal Express or Overnite Express.
17
(BY PERSONAL SERVICE)
18 By personally delivering copies to the person served.
I delivered such envelope by hand to the office of the addressee pursuant to
19 C.C.P. Section 1011.
I caused such envelope to be delivered by hand to the office of the
20 addressee, by local courier service.
I caused such envelope to be delivered to the office of the addressee, by
21 telecopier or facsimile machine. Proof of such delivery is attached hereto.
22 STATE
23 X I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
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Executed November 13, 2020, at Roseville, California.
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26 Debbie Main___________
Name Signature
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DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER
Service List
1 __________________________________________________
Hubbard v. Bantang, et al.
2 Placer County Superior Court Case No: SCV0044862
___________________________________________________
3
Lyle D. Solomon, Esq.
4 P.O. Box 1411
Rocklin, CA 95677
5 Tel: (916) 836-8306
E-mail: lyleds56@yahoo.com
6 Attorney for PLAINTIFF DONALD HUBBARD
7 Stephen M. Hayes, Esq.
Tyler R. Austin, Esq.
8 Jamie A. Radack, Esq.
HAYS SCOTT BONINO ELLINGSON
9 GUSLANI SIMONSON & CLAUSE, LLP
999 Skyway Road, Suite 310
10 San Carlos, CA 94070
Tel: (650) 637-9100
11 Fax: (650) 637-8071
E-mail: jradack@hayesscott.com
12 TAustin@hayesscott.com
acalderon@hayesscott.com
13 Attorneys for DEFENDANTS ALLMERICA FINANCIAL BENEFIT
INSURANCE; JOHN CONNER ROCHE, GWEN JONES, ARTHUR
14 ANDERSON AND SCOT ERIKSON
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DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER
Preview
11/13/2020 1 David R. Casady, Esq. (SBN 273282) BERMAN BERMAN BERMAN 2 SCHNEIDER & LOWARY, LLP 2390 Professional Drive 3 Roseville, CA 95661 Telephone: (916) 846-9391 4 Facsimile: (916) 672-9290 E-mail: drcasady@b3law.com 5 Attorneys for Defendants 6 MATTHEW JOHN BANTANG, MOBILE COPY SERVICE, INC., DONOVAN RICKETTS and FREDERICK RICKETTS 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF PLACER 10 11 DONALD HUBBARD, an individual, ) CASE NO: S-CV-0045393 ) 12 Plaintiff, ) DECLARATION OF DAVID R. CASADY, ) ESQ. IN SUPPORT OF DEFENDANTS’ 13 v. ) MOTION FOR AN ORDER FOR ) DISMISSAL FOR FAILING TO TIMELY 14 MATTHEW JOHN BANTANG, [a.k.a., ) OBTAIN A PRE-FILING ORDER WITHIN MATT BANTANG], and individual; ) 10 DAYS OF THE SECOND NOTICE 15 MOBILE COPY SERVICE, INC., a ) California Corporation; DONOVAN ) Date: December 11 16 RICKETTS, an individual and managing ) Time: 8:00 a.m. employee of MOBILE COPY SERVICE, ) Dept.: 3 17 INC.; FREDRICK RICKETTS, an ) individual and managing employee of ) Complaint Filed: May 7, 2020 18 MOBILE COPY SERVICE, INC.; ) Trial Date: Not yet set HANOVER INSURANCE GROUP, an ) 19 unknown business entity; THE HANOVER ) AMERICAN INSURANCE COMPANY, ) 20 a foreign stock company; JOHN CONNER ) ROCHE, an individual and managing ) 21 employee of HANOVER INSURANCE ) GROUP; GWEN JONES, an individual ) 22 and Agent of THE HANOVER ) AMERICAN INSURANCE COMPANY; ) 23 ALLMERICA FINACIAL ALLIANCE, an ) unknown business entity; ARTHUR ) 24 ANDERSON, an individual and Agent of ) THE HANOVER AMERICAN ) 25 INSURANCE COMPANY; SCOT A. ) ERICKSON, an individual and Agent of ) 26 THE HANOVER AMERICAN ) INSURANCE COMPANY; SUTTER ) 27 HEALTH AND AETNA ) ADMINISTRATIVE SERVICES LLC dba ) 28 SUTTER DIAGNOSTIC IMAGING and, ) ) 1 DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER DOES 1 to 50, inclusive, ) 1 ) Defendant(s). ) 2 ) 3 I, David R. Casady, hereby declare the following: 4 1. I am an attorney duly licensed by the State of California and employed with 5 Berman Berman, Berman, Schneider and Lowary, LLP, attorneys of record for defendants 6 MATTHEW JOHN BANTANG, MOBILE COPY SERVICE, INC., DONOVAN RICKETTS and 7 FREDERICK RICKETTS (collectively “Defendants”) in the above-referenced matter. I have 8 personal knowledge of the facts set forth herein and if called as a witness I could and would testify 9 competently to the truth of the facts set forth in this declaration. 10 2. On October 13, 2020, my office served Plaintiff with Defendants’ original Notice That 11 Plaintiff is a Vexatious Litigant Subject to Prefilling Order. A true and correct copy of the original 12 Notice has been served concurrently with this declaration as Request for Judicial Notice (“RJN”) 13 Number 1. 14 3. In response, Plaintiff “obtained” representation by Lyle Solomon, Esq. and served 15 Defendants with a substitution of attorney on October 15, 2020. A true and correct copy of the 16 substitution of attorney which was served on October 15, 2020 is attached to RJN No. 2 as Exhibit 17 C. 18 4. However, Plaintiff’s filing of the substitution of attorney does not cure his failure to obtain 19 the required pre-filing order. Rather, Defendants contend that it is a deliberate attempt to 20 circumvent the requirements and, frankly, is a “sham”. As a “sham”, this Court has the inherent 21 authority to disregard it and, require the prefiling order for the reasons below: 22 5. On August 1, 2017, in the matter of Hubbard v. Evett, Sacramento County Court Case 34- 23 2017-00211640 (“Evett Litigation”), Plaintiff was deemed a vexatious litigant. (RJN No. 2: 24 Exhibit A.) The Court entered a prefiling order prohibiting Plaintiff from filing a new lawsuit 25 without permission of the Presiding Judge of this Court. (RJN No. 2: Exhibit B.) 26 6. By Plaintiff’s own admissions, Mr. Solomon has been “general counsel” and his “legal 27 advisor in some capacity for approximately ten years.” (RJN No. 2: Exhibit D: Declaration of 28 Donald Hubbard, p. 3 ¶11; see also RJN No. 2: Exhibit E: Declaration of Lyle D. Solomon, Esq., 2 DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER 1 p. 1 ¶¶2-3.) In fact, after Plaintiff was deemed a vexatious litigant in the Evett Litigation, Mr. 2 Solomon was substituted in as counsel. (RJN No. 2; Exhibit F.) 3 7. The present action is the second which Plaintiff has filed against Defendants. The first 4 action – Hubbard v. Bantang, et al. – Placer County Super Court Case No. S-CV-0044862 was 5 set aside for failure to pay the filing fees. (RJN No. 2: Exhibit G.) At the time of service the first 6 action, the undersigned office addressed the need for a Prefiling Order. In response to Defendants’ 7 original objection in the original case related to the failure to obtain a Prefiling Order, Plaintiff 8 stated: “And, as I stated prior I will simply file a Substitution of Attorney form and scooch 9 my ass over one chair. I will still be the caption [sic] of the ship.”. (RJN No. 2: Exhibit H, p. 2 10 [emphasis added].) 11 8. Prior to this official substitution, Plaintiff has been long cc’ing and involving Mr. Solomon, 12 Esq. albeit acting as the “caption of the ship.” (See RJN No. 2: Exhibits I, J [“Further, if my filing 13 is rejected or contested, we will simply refile the matter with counsel.”], K, L and, M.) Despite 14 Mr. Solomon being cc’ed in the correspondence, Plaintiff continued to act in a vexing and 15 unprofessional manner. (RJN No. 2: Exhibit M as an example.) 16 9. In Plaintiff’s recent correspondence, which accompanied his sending of the substitution of 17 attorney, he expressly waived the right to counsel and invited direct discussions. (RJN No. 2: 18 Exhibit N: “But, if either of you have something that you would like to discuss with me directly – I 19 hereby waive the right of counsel.”; See also RJN No. 2: Exhibit O [“any and all negotiations shall 20 be conducted through me.”].) Moreover, Plaintiff directed his own office to serve the substitution 21 of attorney – completely cutting out Mr. Solomon. (RJN No. 2: Exhibits N and P.) 22 10. On October 13, 2020, Plaintiff acting in propria persona served Defendant Mobile Copy 23 Service, Inc. with Request for Admissions, Form Interrogatories and, Special Interrogatories. He 24 also purported to serve Defendant Matthew Bantang with Request for Production of Documents. 25 11. Later, after substituting in for Plaintiff, Mr. Solomon purported to serve Defendant Mobile 26 Copy Service, Inc. with Request for Admissions, Form Interrogatories and, Special Interrogatories. 27 He also purported to serve Defendant Matthew Bantang [or Mobile Copy Service as the documents 28 are unclear] with Request for Production of Documents. 3 DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER 1 12. The discovery which was served by Plaintiff while acting in propria persona is the exact 2 same discovery that was served by Mr. Solomon after his substitution for counsel. A review of the 3 discovery shows that the only change is the name on the top left hand corner of the caption page 4 and, the signature at the end. Otherwise, they are literally word-for-word mirror images of each 5 other. As way of example, attached hereto as Exhibit 1(a) is a true and copy of the Request for 6 Admissions served on Defendant Mobile Copy Service while acting in propria persona. 7 Additionally, attached hereto as Exhibit 1(b) is a true and correct copy of the Request for 8 Admission served on Defendant Mobile Copy Service by Mr. Solomon. 9 13. By way of further example, attached hereto as Exhibit 2(a) are the Special Interrogatories 10 propounded on Defendant Mobile Copy Service by Plaintiff acting in propria persona. To 11 compare, Exhibit 2(b) are the Special Interrogatories propounded by Mr. Solomon on Defendant 12 Mobile Copy Service by Mr. Solomon after his substitution. The Special Interrogatories are the 13 exact same and, which considering the subject matter of some of them are absolutely egregious 14 and objectionable – to wit – asking about the financial condition of Mobile Copy Service without 15 first seeking leave of court under Code of Civil Procedure §3294. Even the typos are the same 16 [caption indicates the Special Interrogatories are being served on Mr. Bantang but, the body of the 17 documents indicate Mobile Copy Service, Inc.]. It would appear that Mr. Solomon merely re- 18 signed those propounded by Plaintiff without undertaking any duty as a neutral assessor of claims 19 and allowed such objectionable discovery to be re-served despite well settled, regarded and known 20 law that financial condition discovery is not allowed absent court-order. 21 14. Attached hereto for comparison are true and correct copies of the Form Interrogatories 22 served by Plaintiff, acting in propria persona (Exhibit 4(a)) and, those re-served by Mr. Solomon 23 after substitution. (Exhibit 4(b).) Absent the names and signatures, there is no difference. 24 15. Attached hereto for comparison are true and correct copies of the Request for Production of 25 Documents served by Plaintiff, acting in propria persona (Exhibit 4(a)) and, those re-served by Mr. 26 Solomon after substitution. (Exhibit 4(b).) Absent the names and signatures, again, there is no 27 difference. 28 16. Finally, despite attaching his name to the identical re-served discovery, Mr. Solomon was 4 DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER 1 actually cut off from the service process. The discovery was served by Ann of West 1 Equity – 2 Plaintiff’s company. And, while service may be properly effectuated by Ann, Mr. Solomon was 3 not even included on the e-mail; Plaintiff was. A true and correct copy of the email 4 correspondence is attached hereto as Exhibit 5. 5 17. As of the drafting of this declaration, counsel understands that neither Plaintiff nor Mr. 6 Solomon have even attempted to obtain the pre-filing order and/or responded to Defendants’ 7 Second Notice in any manner. While Plaintiff opposed the original ex parte, it was not on the basis 8 of competent evidence related to the “sham” allegations. Preliminarily, the express language of 9 Code of Civil Procedure §391.7(c) does not allow for such a substitution. Code of Civ. Proc. 10 §397.1(c) [“…The litigation shall be automatically dismissed unless the plaintiff within 10 days of 11 the filing of that notice obtains an order from the presiding justice or judge permitting the filing of 12 the litigation as set forth in subdivision (b).”]. 13 18. Defendants contend that a prefilling order is still required as long as Plaintiff is the 14 “caption of the ship”. See In re Kinney (2011) 201 Cal.App.4th 951, 958 [“Although the language 15 of the vexatious litigant statute refers to individuals acting in propria persona, it has also been 16 applied when hired counsel ‘acts as a mere puppet or conduit’ for abusive litigation’.”]; In re Shieh 17 (1993) 17 Cal.App.4th 1154, 1167 [“Rather, these attorneys who ostensibly ‘represent’ Shieh serve 18 as mere puppets. Based on these facts, we conclude a prefiling order limited to Shieh’s in propria 19 persona activities would be wholly ineffective as a means of curbing his out-of-control 20 behavior.”]; Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial, p. 1-236 ¶1:917.1 21 [“Representation by sham counsel disregarded.]. 22 19. All documents attached to RJN Nos. 1 and 2 [and referenced above] are true and correct 23 copies thereof. The documents were not re-attached to this declaration as to not be repetitive and 24 cumbersome on the Court. 25 /// 26 /// 27 /// 28 /// 5 DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER 1 I declare under penalty of perjury under the law of the State of California that the foregoing 2 is true and correct, and that this declaration is executed on November 13, 2020 at Roseville, 3 California. 4 5 _________________________________ David R. Casady, Esq., Declarant 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER PROOF OF SERVICE 1 STATE OF CALIFORNIA ) 2 ) ss. COUNTY OF PLACER ) 3 I am employed in the County of Placer, State of California. I am over the age of 18 and not 4 a party to the within action. My business address is 2390 Professional Drive, Roseville, CA 95661. 5 On November 13, 2020, I served the foregoing document described as "DECLARATION 6 OF DAVID R. CASADY, ESQ. IN SUPPORT OF DEFENDANTS’ MOTION FOR AN ORDER FOR DISMISSAL FOR FAILING TO TIMELY OBTAIN A PRE-FILING 7 ORDER WITHIN 10 DAYS OF THE SECOND NOTICE" on the interested parties in this action by placing a [X] true copy thereof [] the original document enclosed in a sealed envelope 8 addressed as follows: 9 [SEE ATTACHED SERVICE LIST] 10 X (BY MAIL) In accordance with the regular mail collection and processing practices of this business office, with which I am familiar, by means of which mail is deposited with the 11 United States Postal Service at Roseville, California that same day in the ordinary course of business, I deposited such sealed envelope for collection and mailing on this same date following 12 ordinary business practices. 13 (BY ELECTRONIC MAIL) Based on the parties’ agreement to accept service by electronic transmission, I sent the above document(s) to the person(s) at the electronic address(es) 14 noted in the attached service list from my electronic service address which is “damain@b3law.com” 15 (BY OVERNIGHT MAIL) 16 ___ I caused such envelope to be delivered by hand to the office of the addressee, either by overnight delivery via Federal Express or Overnite Express. 17 (BY PERSONAL SERVICE) 18 By personally delivering copies to the person served. I delivered such envelope by hand to the office of the addressee pursuant to 19 C.C.P. Section 1011. I caused such envelope to be delivered by hand to the office of the 20 addressee, by local courier service. I caused such envelope to be delivered to the office of the addressee, by 21 telecopier or facsimile machine. Proof of such delivery is attached hereto. 22 STATE 23 X I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 24 Executed November 13, 2020, at Roseville, California. 25 26 Debbie Main___________ Name Signature 27 28 7 DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER Service List 1 __________________________________________________ Hubbard v. Bantang, et al. 2 Placer County Superior Court Case No: SCV0044862 ___________________________________________________ 3 Lyle D. Solomon, Esq. 4 P.O. Box 1411 Rocklin, CA 95677 5 Tel: (916) 836-8306 E-mail: lyleds56@yahoo.com 6 Attorney for PLAINTIFF DONALD HUBBARD 7 Stephen M. Hayes, Esq. Tyler R. Austin, Esq. 8 Jamie A. Radack, Esq. HAYS SCOTT BONINO ELLINGSON 9 GUSLANI SIMONSON & CLAUSE, LLP 999 Skyway Road, Suite 310 10 San Carlos, CA 94070 Tel: (650) 637-9100 11 Fax: (650) 637-8071 E-mail: jradack@hayesscott.com 12 TAustin@hayesscott.com acalderon@hayesscott.com 13 Attorneys for DEFENDANTS ALLMERICA FINANCIAL BENEFIT INSURANCE; JOHN CONNER ROCHE, GWEN JONES, ARTHUR 14 ANDERSON AND SCOT ERIKSON 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DECLARATION IN SUPPORT OF MOTION FOR AN ORDER TO DISMISSAL FOR FAILING TO OBTAIN A PRE-FILING ORDER