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  • Hubbard, Donald vs. Bantang, Matthew JohnCivil-Roseville document preview
  • Hubbard, Donald vs. Bantang, Matthew JohnCivil-Roseville document preview
  • Hubbard, Donald vs. Bantang, Matthew JohnCivil-Roseville document preview
  • Hubbard, Donald vs. Bantang, Matthew JohnCivil-Roseville document preview
  • Hubbard, Donald vs. Bantang, Matthew JohnCivil-Roseville document preview
  • Hubbard, Donald vs. Bantang, Matthew JohnCivil-Roseville document preview
  • Hubbard, Donald vs. Bantang, Matthew JohnCivil-Roseville document preview
  • Hubbard, Donald vs. Bantang, Matthew JohnCivil-Roseville document preview
						
                                

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ELECTRONICALLY FILED superior Court of California, County of Placer 11/25/2020 LYLE D. SOLOMON, SBN 2? 26025 By: Laurel Sanders, Deputy Clerk P.O. Box 1411 Rocklin, CA 95677 Telephone (916) 532-2726 Attorney for Plaintiff DONAIL|D HUBBARD IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER DONALD HUBBARD ) NO. S-CV-0045393 Plaintiff, ) PLAINTIFF’S OPPOSITION TO ) DEFENDANTS’ MOTION FOR AN ORDER Vs. ) FOR DISMISSAL FOR FAILING TO TIMELY ) OBTAIN A PRE-FILING ORDER WITHIN 10 ) DAYS OF THE SECOND NOTICE MATTHEW JOHN BATANG paka, ) MAT BATANG, et al. ) Hearing] Date: December 11, 2020 ) TIME: 8:00 a.m. Defendants... ) DEPT, 3 ) INTRODUCTION COMES NOW Plaintiff DONALD HUBBARD, by and through his attorney of record, Lyle D. Solomon and opposes defendants to dismiss the complaint. Plaintiff Donald Hubba rd admits that he has been designated as a vexatious litigant. Plaintiff Donald Hubbard has « lisputed his designation as a vexatious litigant to no avail. Defendants cite to Cali fornia Code of Civil Procedure section 391.7(c) in support of this motion and ask the Court to ac cept their interpretation of that statute. However, a review of the plain language of that statute d efies defendants’ interpretation. While this statute addresses the court clerk’s duty not to filean| action for a vexatious litigant in propia persona itis silent on the issue of a subsequent attorney substitution being either allowed to cure or not. Hubbard vy.Batang, et al.Opp to Motion toDismiss CCP§ 391.7(c) The clerk may not fileany litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding justice or presiding judge permitting the filing. If the clerk mistakenly files the litigation without the order, any party may file with the clerk and serve, or t e presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff isa vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the no ice shall automatically stay the litigation. The litigation shall be automatically d ismissed unless the plaintiff within 10 days of the filing of that 10 notice obtains 4n order from the presiding justice or presiding judge permitting the ll filing of the litigation as set forth in subdivision (b). If the presiding justice or 12 presiding judge issues an order permitting the filing, the stay of the litigation shall 13 remain in effec , and the defendants need not plead, until 10 days after the 14 defendants are served with a copy of the order. correct 15 Nowhere in the text of this cod e section isthe issue of a substitution of an attorney addressed, nor 16 is the word attorney even men ioned. This may be the reason that despite the cite to the code 17 section defense counsel chose not to include the text of the statute in the supporting points and 18 authorities. 19 Defense counsel instea d points to statements by Plaintiff which can be characterized as 20 “puffery”, an attempt to inflate his importance and participation in this litigation. Further 21 evidence is the use of off the c ff statements as supposed facts and evidence. These items on their 22 own certainly do not reach the level of credible evidence. 23 As anticipated defendai nts argue that Plaintiff's substitution of attorney in this action is 24 insufficient and this Court sho Id dismiss the complaint in this action. While Plaintiff did 25 initially filethe complaint in this action in propia persona, against the advice of counsel, he signed 26 and caused to be filed a substit tion of attorney. Plaintiff has found no statutory authority which 27 either requires that an individu: al designated as a vexatious litigant obtain a prefiling order prior to 28 having an action filed by an attorney or that a substitution of attorney, bringing in a licensed 2 Hubbard v. Batang, et al.Opp to Motion toDismiss attorney to represent him as a proper remedy. Notably, defendants have not presented any statute to support that contention either. LEGAL ARGUMENT A. Vexatious Litig ant Pre-Filing Order Defendants has correct y stated that Plaintiff has been desginated a vexatious litigant and as such issubject to a pre-filin g order. Defendants have gone on to use almost a full page to discuss the rationale for such aldesignation. In doing so defendants have chosen to ignore one important fact, the current law. uit is neither frivolous nor a misuse of the court system.. Instead defendants have focused on the procedural, most likely hoping that the Court will ignore the facts 10 contained inthe complaint. THe current action was filed as the result of a car accident. It was not ir filed to harass the defendants, itwas not filed to use the court system for some improper purpose. 12 This is an action for personal injuries suffered by the Plaintiff in a motor vehicle accident caused 13 by one of the defendants. Thes¢ are facts not found in defendants’ motion. 14 Regardless of Plaintiff? designation as a vexatious litigant any action he brings isnot 15 automatically labeled by the Co urt as frivolous or harassing or a misuse of the court system. Did 16 Plaintiff fail to get a pre-filing rder as required by the statute? The answer is yes. When the 17 issue was raised Plaintiff had t 0 (2) options, according to defendants’ motion the first option 18 was to dismiss the complaint. Such an action would have resulted in the complaint being re-filed 19 by an attorney representing Plaiintiffand defendants’ would not have the option of filing this 20 motion. The second option, the one Plaintiff chose was to hire an attorney and filea substitution 21 of attorney. Despite defendants’ arguments to the contrary there is no authority to support the 22 argument that a substitution of ttorney under these circumstances is not authorized. 23 B. The Failure to Obtain a Pre-Filing Order is Cured by Attorney Substitution 24 Defendants are correct about one thing in regards to CCP §§ 391 - 398, nowhere in these 25 statutes is the substitution of an attorney listed as a cure for the failure of a vexatious litigant to 26 obtain a pre-filing order. Defendants are also wrong in their argument. Those same statutes do not 27 state that the substitution of an a ttorney is not a cure for the failure of a vexatious litigant to obtain 28 a pre-filing order. Hubbard v. Batang, et al.Opp to N otion toDismiss It isof note that while|asking the Court to interpret the statute in a manner which is neither suggested by nor supported by the plain language of the statute, (See CCP § 391.7(c)), N defendants’ have failed to cité WwW a single court decision which supports that argument. There is no cite to a single case which F&F supports the argument that Plaintiff's failure to obtain a pre-filing order cannot be cured by attorney substitution. nn The only caselaw cited by defendants’ only repeats the rationale behind the statute, curbing gamesmanship in litigation which interestingly is exactly ND what defendants appear to be indertaking with this motion. Again, the only argument made by defendants isnot that Plaintiffs lawsuit is frivolous or brought for an improper purpose, it is Om solely based on a procedural violation. If defendants’ oO motion isgranted the result will be that Plaintiff will hire an attorney to re- 11 file this lawsuit and the parties will start over after tying up the Court’s time and resources on this 12 motion which asks the Court to rule on form over substance. 13 Cc. The Attorney Substitution Cannot be Disregarded 14 Defendants again start by asking this Court to find that the statute expressly does not 15 provide for cure by substitution of attorney. In reality the statute does not state that fact. In fact 16 nothing in the statute even implies such an interpretation. I Defendants do cite caselaw, In re Shieh (1993) 17 Cal.App.4th 1154, in support of the idea that Plaintiffs substitution of attorney is a sham. The Shieh case isfactually distinguishable. 19 from the instant action. In Shieh the Court specifically found that the multiple actions brought 20 repeatedly by Shieh, were frivolous or brought for improper reasons. Such is not the case here. 21 Defendants have not argued in|their motion that Plaintiff's lawsuit is either frivolous or brought 22 for an improper purpose, instedd they focus entirely on the failure to obtain a pre-filing order and 23 that Plaintiff and attorney Solomon have a prior relationship. Neither of these facts are stated 24 either in the statute or the caselaw as elements for the Court to consider in finding that Plaintiff's 25 substitution of attorney isa sham. 26 In this case, unlike in Shieh, supra, Plaintiff's complaint is for personal injuries suffered in 27 a motor vehicle accident. Plaintiff's complaint was not brought to harass but to seek a 28 determination of liability and damages suffered in a motor vehicle accident. 4 Hubbard v. Batang, et al.Opp to en to Dismiss CONCLUSION Plaintiff requests that this Court deny defendants’ motion to dismiss in its entirety. In the alternative, ifthis Court grants defendants’ motoin and dismisses this action Plaintiff requests that said dismissal be without prejudice as the motion does not attack the substance of the complaint bu only goes to a procedural defect which can be cured. Respectfully submitted. Date: November 25, 2020 By. of /, Le a Lyle DA6&ldmon, Attorney for Plaintiff Hubbard v. Batang, et al.Opp to Motion to Dismiss PROOF OF SERVICE {CCP §§ 1013; 2015.5} I,the undersigned, dec are that: I am employed in the C ounty of Placer, over the age of 18 years, and not a party to the within above entitled action. My address is P.O. Box 1411 Rocklin, CA 95677. On the aN date written below, I served the dog ument(s) shown below: NM PLAINTIFF’S OPPOSITION TO DEFENDANTS’ Dn MOTION FOR AN ORDER FOR DISMISSAL FOR FAILIN G TO TIMELY OBTAIN A PRE-FILING ORDER WITHIN 10 DAYS OF THE ry SECOND NOTICE [X] Via electronic mail. P ursuant to Emergency Rules Related to COVID-19, Emergency Rule 12 I personally sent to the addressee’s email address a true copy of the above- 10 described document. I requested a delivery receipt and a read receipt. 1] [X] Via United States Post al Service. By depositing this piece of mail, properly addressed with first-class postage atta hed, with the United States Postal Service on the same date as is 12 indicated below), a true copy thereof enclosed in asealed envelope with postage thereon fully prepaid to the address s hown below 13 14 David R. Casa dy, Esq. 15 BERMAN, BE RMAN, BERMAN, SCHNEIDER & LOWARY, LLP 2390 Professio) inalDrive 16 Roaeville, CA 95661 deasady@b3law.com 17 Jamie Rade\ack, Esq. 18 Hayes, Scott, B onino, Ellingson, Gusiani, Simonson & Clause,LLP 999 Skyway R pad, Suite 310 19 San Carlos, CA 94070 jradack@hayesscott.com 20 21 I declare under penalty f perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed at Rocklin, California on the date given 22 below. 23 24 DATED: Ulrs fro ZLA boas 25 26 2: 28