Preview
1 Boris Treyzon, Esq. (SBN 188893) E-FILED
btreyzon@actslaw.com 8/19/2020 1:10 PM
2 Douglas A. Rochen, Esq. (SBN 217231) Superior Court of California
drochen@actslaw.com County of Fresno
3 Cynthia Goodman, Esq. (SBN 105693) By: Louana Peterson, Deputy
cgoodman@actslaw.com
4 ABIR COHEN TREYZON SALO, LLP
16001 Ventura Blvd, Suite 200
5 Encino, California 91436
Telephone: (424) 288-4367 | Fax: (424) 288-4368
6
7 Attorneys for Plaintiff
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF FRESNO
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12 J.L., an individual, Case No.: 14 CECG00396
13 Plaintiffs, Assigned to: Hon. Rosemary McGuire
vs.
14
DAVID BLANCAS, an individual; REPLY MEMORANDUM OF POINTS AND
15 MONSON-SULTANA JOINT UNION AUTHORITIES IN SUPPORT OF MOTION
ELEMENTARY SCHOOL DISTRICT, a TO SET ASIDE DISMISSAL WITH
16 California governmental entity; TULARE PREJUDICE
COUNTY BOARD OF EDUCATION, a [Reply Declaration of Douglas Rochen Filed
17 California government entity; and DOES 1 Concurrently as a Separate Document.
through 50, inclusive,
18 Hearing Date: August 27, 2020
Defendants. Time: 3:30 p.m.
19 Department: 502
20 Action Filed: February 11, 2014
Trial Date: TBD
21
22
23 Plaintiff J.L., an individual, (“Plaintiff”) hereby submits the following reply
24 memorandum of points and authorities in support of Plaintiff’ motion to set aside dismissal with
25
prejudice and in response to the opposition submitted by Defendant Monson-Sultana Joint
26
Union Elementary School District (“Monson-Sultana”):
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE
DISMISSAL WITH PREJUDICE
1
2 MEMORANDUM OF POINTS AND AUTHORITIES
3
I.
4
5 WHILE AN ATTORNEY CAN GENERALLY BIND HIS CLIENTS, WHERE, AS
6 HERE, PLAINTIFF DID NOT AGREE TO A DISMISSAL WITH PREJUDICE, THE
7 AGREEMENT TO SETTLE BETWEEN COUNSEL SHOULD BE SET ASIDE
8
The opposition argues that Ms. Sassano and Mr. Hakimfar agreed to a dismissal with
9
10 prejudice of Plaintiff’s complaint. There is no evidence submitted by the opposition which
11 controverts Plaintiff’s declaration that he did not give his consent to any such settlement. In
12 particular, Monson-Sultana did not submit any evidence that it requested, or received, an
13
executed release by Plaintiff acknowledging the permanent loss of his claims against it for the
14
abuse suffered by him and caused by its employee David Blancas. As it stands, Monson-
15
Sultana proceeded with the arrangements with Plaintiff’s attorneys without any
16
confirmation that Plaintiff was on board with the permanent loss of his rights. An attorney
17
18 is not authorized, merely by virtue of his retention in litigation, to impair the client's substantial
19 rights or the cause of action itself. Blanton v. Womancare, Inc. (1985) 38 Cal. 3d 396
20
II.
21
22 CONTRARY TO THE ARGUMENTS SET FORTH IN THE OPPOSITION, THERE
23 HAS BEEN A LONGSTANDING, PUBLIC TREND TO EXTEND THE STATUTE OF
24
LIMITATIONS FOR CHILD MOLESTATION CLAIMS
25
26 The opposition appears to mock the idea that Plaintiff could have anticipated the change
27 in the law extending the time to bring child molestation claims. In California, child molestations
28 claims are currently exempt from the governmental 2 claims statute requirement under
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE
DISMISSAL WITH PREJUDICE
Government Code Section 905 (m). Further, as discussed in the moving papers, Code of Civil
1
2 Procedure Section 340.1 has been amended to extend the statute of limitations for child
3 molestation claims. These changes are reflective of a longstanding movement to extend the
4 statute of limitations claims on child molestation claims. The court is requested to take judicial
5
notice of this movement and efforts in statehouses throughout the country concerning these
6
efforts. As reported in https://childusa.org/2019sol/ the following legislatures are, or have been
7
working on not only extending the statute of limitations, but reviving statute of limitations for
8
otherwise barred claims:
9
10
11 Arizona (2019-20) 19-month window opened on May 27, 2019 for expired claims
against perpetrators, private organizations and government and will close on
12 December 31, 2020 – open. Also revives SOL up to age 30. (HB 2466 Effective
13 May 27, 2019).
14 California (2003) 1-year window revived SOL against private organizations only –
closed. (Cal. Civ. Proc. Code § 340.1). (2019) 3-year revival window opened
15
on January 1, 2020 for expired claims against perpetrators, private
16 organizations and government – open. Also revives SOL up to age 40. (AB
218 Effective October 13, 2019).
17
18 Connecticut (2002) Revives SOL up to age 48 against perpetrators, private organizations
and government. (Conn. Gen. Stat. § 52-577d).
19
20 Delaware (2007-09) 2-year window revived SOL against perpetrators, private
organizations and government – closed. (Del. Code tit. 10, § 8145). (2010-12)
21 Added 2-year window for healthcare providers because original window did
not apply to claims against them – closed. (Del. Code tit. 18, § 6856).
22
23 Georgia (2015-17) 2-year window revived SOL against perpetrators only – closed.
(Ga. Code § 9-3-33.1).
24
25 Hawaii (2012-14) 2-year window revived SOL against perpetrators and private
organizations. (2014-16) Extended original window for another 2 years and
26 expanded to include claims against the government. (2018-20) Extended
27 window was open until April 24, 2020 – closed. (Haw. Rev. Stat. § 657-1.8).
28 3
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE
DISMISSAL WITH PREJUDICE
1 Massachusetts (2014) Revives SOL up to age 53 against perpetrators only. (Mass. Gen. Laws
ch. 260, § 4C).
2
3
Michigan (2018) 90-day window revived SOL for victims of Larry Nassar only – closed.
4 (Mich. Comp. Laws § 600.5851b).
5
Minnesota (2013-16) 3-year window revived SOL against perpetrators and private
6 organizations – closed. (Minn. Stat. § 541.073, 2013 Minn. Sess. Law Serv.
Ch. 89 (H.F. 681)).
7
8 Montana (2019-20) 1-year window opened on May 7, 2019 for expired claims against
perpetrators and entities – closed. (Mont. Code § 27-2-216 Effective May 7,
9
2019).
10
New Jersey (2019-21) 2-year window opened on December 1, 2019 for expired claims
11
against perpetrators, private organizations and government – open. Window
12 applies to child sex abuse victims and those sexually assaulted as adults. Also
revives SOL up to age 55. (S477 Effective May 13, 2019).
13
14 North Carolina (2020-21) 2-year window opened on January 1, 2020 for expired civil claims
– open. (S. 199 Effective December 1, 2019).
15
Oregon (2010) Revives SOL up to age 40 against perpetrators and private
16
organizations. (O.R.S. § 12.117).
17
Rhode Island (2019) Revives SOL up to age 53 against perpetrator only. (RI ST § 9-1-51
18
Effective July 1, 2019).
19
Utah (2016) 3-year window revived SOL against perpetrators only – closed. Also
20
revives SOL up to age 53 against perpetrator only. (Utah Code § 78B-2-308).
21
Vermont (2019) Permanently revives all expired claims against perpetrators, private
22
organizations and government – open. (H.330 Effective May 28, 2019).
23
Washington D.C. (2019-21) 2-year window opened on May 3, 2019 for expired claims against
24
perpetrators and entities – open. Window applies to all child sex abuse
25 victims up to age 40 or those who discovered their abuse less than 5 years
ago, and in some circumstances, those sexually assaulted as adults. (L22-
26 0311 Effective May 3, 2019).
27
28 4
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE
DISMISSAL WITH PREJUDICE
1 Total Seventeen States (17) and Washington D.C. Revived Expired Civil SOLs
2
3 In addition to these states, childusa.org references numerous other states where there are
4 ongoing efforts to change the statute of limitations governing child molestation. Accordingly,
5 the idea that the California legislature would change the time frames for bringing a child
6
molestation claim in the future was not a matter of “amazing foresight” as claimed in the
7
opposition. The prospect that the legislature would extend these time frames was plainly a
8
possibility. In the end, it is uncontested that Plaintiff did not agree to a dismissal that would
9
10 have foreclosed a future action currently permitted based upon these legislative changes.
11
III.
12
13 THE OPPOSITION’S “CREDIBILITY” CHALLENGES TO MR. ROCHEN’S
14 DECLARATION ARE WITHOUT MERIT
15
In addition to mocking plaintiff’s “amazing foresight,” the opposition challenges the
16
statements set forth in the declaration submitted by attorney Douglas Rochen in support of the
17
moving papers. In a concurrently submitted reply declaration, Mr. Rochen responds to the
18
19 challenges to the credibility of his prior declaration. Briefly, his reply makes the following
20 points:
21
• Mr. Rochen was an associate at the Kabeteck firm. While he did sign some documents,
22
and attended Plaintiff’s deposition, this case was primarily handled by other associates in
23
24 the Kabateck firm.
25 • He was not involved in the filing of the dismissal of Monson-Sultana which is the
26 subject of Plaintiff’s current motion.
27
28 5
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE
DISMISSAL WITH PREJUDICE
• The dismissal of TCBOE had nothing with the Plaintiff’s agreement to dismiss Monson-
1
2 Sultana with prejudice; TCBOE was not the employer of the Mr. Blancas, the perpetrator
3 responsible for the molestation of Plaintiff. Monson-Sultana was Mr. Blancas’
4 employer.
5
• The references to the Kabateck firm were necessary to address anticipated arguments
6
proffered in the opposition in which Monson-Sultana questioned why declarations from
7
the Kabateck firm were not submitted in support of the moving papers.
8
9 • The statement, made on information and belief, that the summary judgment was based
10 on lack of notice and statute of limitations was substantively, if not technically, accurate.
11 Monson-Sultana’s knowledge that David Blancas’ was a child molester is another way
12
of saying that it was on notice that its employee, David Blancas, was a child molester.
13
Mr. Rochen agreed that the second basis for the summary judgment was failure to file a
14
timely governmental claim rather than the failure to file a timely complaint.
15
16 It is evident the opposition’s credibility challenge has more to do with the language used
17 rather than substance. Moreover, none of the aforementioned challenges put into dispute the
18
central issue, i.e. that Plaintiff did not agree to a dismissal with prejudice.
19
20 IV.
21
MONSON-SULTANA HAS FAILED TO POINT TO SUBSTANTIVE PREJUDICE IF
22
PLAINTIFF IS GIVEN RELIEF
23
24 Monson-Sultana fails to identify any substantive claims to it should relief be granted.
25 This is because both in this case, and in the companion case against it arising out of Blancas’
26 molestation of another child, the issues raised in this action were the subject of prior discovery.
27
At best, Monson-Sultana argues that but for the dismissal, it would have prevailed on the
28 6
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE
DISMISSAL WITH PREJUDICE
summary judgment. However, as all parties should acknowledge, nothing in the law is sure,
1
2 including how a court would have ruled on its summary judgment. Consequently, the prejudice
3 that Monson-Sultana claims is more ephemeral than real. And again, had Monson-Sultana
4 wished to ensure that Plaintiff was in agreement to a dismissal with prejudice, it could have
5
requested an executed settlement agreement.
6
V.
7
8 THIS COURT SHOULD DENY MONSON-SULTANA’S REQUEST TO VIOLATE
9
PLAINTIFF’S ATTORNEY-CLIENT PRIVLEGE
10
11 Monson-Sultana seeks to invade the attorney-client privilege by subpoenaing
12 communications between Plaintiff and his prior attorneys regarding the dismissal of Monson-
13 Sultana and TCBOE, to take the depositions of three of Plaintiff’s prior attorney and “any other
14
attorney that had conversations with Plaintiff regarding dismissing TCBOE or Monson-Sultana
15
with prejudice and written discovery “regarding these actions.” (Opposition 8:24-9:4)
16
17 In support of these requests, Monson-Sultana cites Lohman v. Superior Court (1978) 81
18 Cal. App. 3d 90. In Lohman, the court held that a client's disclosure of communications with a
19 former attorney on a subject relevant to her current claims did not waive her privilege to
20
prevent disclosure of her conversations on that same subject with other attorneys. Here,
21
Plaintiff’s communications between Plaintiff and her prior attorneys is privileged. “The
22
privilege of confidential communication between client and attorney should be regarded as
23
24 sacred. It is not to be whittled away by means of specious argument that it has been waived.
25 Least of all should the courts seize upon slight and equivocal circumstances as a technical
26 reason for destroying the privilege.” Lohman at p. 94. This court should not authorize a fishing
27
exhibition into privileged communications.
28 7
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE
DISMISSAL WITH PREJUDICE
VI.
1
2 CONCLUSION
3
Based upon the foregoing, this court is respectfully requested to set aside the dismissal
4
5 with prejudice file in this case.
6
Dated: August 19, 2020 ABIR COHEN TREYZON SALO, LLP
7
r
}
8
By: ______________________
9 Boris Treyzon, Esq.
Cynthia Goodman, Esq.
10 Attorneys for Plaintiff
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE
DISMISSAL WITH PREJUDICE
Preview
1 Boris Treyzon, Esq. (SBN 188893) E-FILED btreyzon@actslaw.com 8/19/2020 1:10 PM 2 Douglas A. Rochen, Esq. (SBN 217231) Superior Court of California drochen@actslaw.com County of Fresno 3 Cynthia Goodman, Esq. (SBN 105693) By: Louana Peterson, Deputy cgoodman@actslaw.com 4 ABIR COHEN TREYZON SALO, LLP 16001 Ventura Blvd, Suite 200 5 Encino, California 91436 Telephone: (424) 288-4367 | Fax: (424) 288-4368 6 7 Attorneys for Plaintiff 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF FRESNO 11 12 J.L., an individual, Case No.: 14 CECG00396 13 Plaintiffs, Assigned to: Hon. Rosemary McGuire vs. 14 DAVID BLANCAS, an individual; REPLY MEMORANDUM OF POINTS AND 15 MONSON-SULTANA JOINT UNION AUTHORITIES IN SUPPORT OF MOTION ELEMENTARY SCHOOL DISTRICT, a TO SET ASIDE DISMISSAL WITH 16 California governmental entity; TULARE PREJUDICE COUNTY BOARD OF EDUCATION, a [Reply Declaration of Douglas Rochen Filed 17 California government entity; and DOES 1 Concurrently as a Separate Document. through 50, inclusive, 18 Hearing Date: August 27, 2020 Defendants. Time: 3:30 p.m. 19 Department: 502 20 Action Filed: February 11, 2014 Trial Date: TBD 21 22 23 Plaintiff J.L., an individual, (“Plaintiff”) hereby submits the following reply 24 memorandum of points and authorities in support of Plaintiff’ motion to set aside dismissal with 25 prejudice and in response to the opposition submitted by Defendant Monson-Sultana Joint 26 Union Elementary School District (“Monson-Sultana”): 27 28 1 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL WITH PREJUDICE 1 2 MEMORANDUM OF POINTS AND AUTHORITIES 3 I. 4 5 WHILE AN ATTORNEY CAN GENERALLY BIND HIS CLIENTS, WHERE, AS 6 HERE, PLAINTIFF DID NOT AGREE TO A DISMISSAL WITH PREJUDICE, THE 7 AGREEMENT TO SETTLE BETWEEN COUNSEL SHOULD BE SET ASIDE 8 The opposition argues that Ms. Sassano and Mr. Hakimfar agreed to a dismissal with 9 10 prejudice of Plaintiff’s complaint. There is no evidence submitted by the opposition which 11 controverts Plaintiff’s declaration that he did not give his consent to any such settlement. In 12 particular, Monson-Sultana did not submit any evidence that it requested, or received, an 13 executed release by Plaintiff acknowledging the permanent loss of his claims against it for the 14 abuse suffered by him and caused by its employee David Blancas. As it stands, Monson- 15 Sultana proceeded with the arrangements with Plaintiff’s attorneys without any 16 confirmation that Plaintiff was on board with the permanent loss of his rights. An attorney 17 18 is not authorized, merely by virtue of his retention in litigation, to impair the client's substantial 19 rights or the cause of action itself. Blanton v. Womancare, Inc. (1985) 38 Cal. 3d 396 20 II. 21 22 CONTRARY TO THE ARGUMENTS SET FORTH IN THE OPPOSITION, THERE 23 HAS BEEN A LONGSTANDING, PUBLIC TREND TO EXTEND THE STATUTE OF 24 LIMITATIONS FOR CHILD MOLESTATION CLAIMS 25 26 The opposition appears to mock the idea that Plaintiff could have anticipated the change 27 in the law extending the time to bring child molestation claims. In California, child molestations 28 claims are currently exempt from the governmental 2 claims statute requirement under REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL WITH PREJUDICE Government Code Section 905 (m). Further, as discussed in the moving papers, Code of Civil 1 2 Procedure Section 340.1 has been amended to extend the statute of limitations for child 3 molestation claims. These changes are reflective of a longstanding movement to extend the 4 statute of limitations claims on child molestation claims. The court is requested to take judicial 5 notice of this movement and efforts in statehouses throughout the country concerning these 6 efforts. As reported in https://childusa.org/2019sol/ the following legislatures are, or have been 7 working on not only extending the statute of limitations, but reviving statute of limitations for 8 otherwise barred claims: 9 10 11 Arizona (2019-20) 19-month window opened on May 27, 2019 for expired claims against perpetrators, private organizations and government and will close on 12 December 31, 2020 – open. Also revives SOL up to age 30. (HB 2466 Effective 13 May 27, 2019). 14 California (2003) 1-year window revived SOL against private organizations only – closed. (Cal. Civ. Proc. Code § 340.1). (2019) 3-year revival window opened 15 on January 1, 2020 for expired claims against perpetrators, private 16 organizations and government – open. Also revives SOL up to age 40. (AB 218 Effective October 13, 2019). 17 18 Connecticut (2002) Revives SOL up to age 48 against perpetrators, private organizations and government. (Conn. Gen. Stat. § 52-577d). 19 20 Delaware (2007-09) 2-year window revived SOL against perpetrators, private organizations and government – closed. (Del. Code tit. 10, § 8145). (2010-12) 21 Added 2-year window for healthcare providers because original window did not apply to claims against them – closed. (Del. Code tit. 18, § 6856). 22 23 Georgia (2015-17) 2-year window revived SOL against perpetrators only – closed. (Ga. Code § 9-3-33.1). 24 25 Hawaii (2012-14) 2-year window revived SOL against perpetrators and private organizations. (2014-16) Extended original window for another 2 years and 26 expanded to include claims against the government. (2018-20) Extended 27 window was open until April 24, 2020 – closed. (Haw. Rev. Stat. § 657-1.8). 28 3 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL WITH PREJUDICE 1 Massachusetts (2014) Revives SOL up to age 53 against perpetrators only. (Mass. Gen. Laws ch. 260, § 4C). 2 3 Michigan (2018) 90-day window revived SOL for victims of Larry Nassar only – closed. 4 (Mich. Comp. Laws § 600.5851b). 5 Minnesota (2013-16) 3-year window revived SOL against perpetrators and private 6 organizations – closed. (Minn. Stat. § 541.073, 2013 Minn. Sess. Law Serv. Ch. 89 (H.F. 681)). 7 8 Montana (2019-20) 1-year window opened on May 7, 2019 for expired claims against perpetrators and entities – closed. (Mont. Code § 27-2-216 Effective May 7, 9 2019). 10 New Jersey (2019-21) 2-year window opened on December 1, 2019 for expired claims 11 against perpetrators, private organizations and government – open. Window 12 applies to child sex abuse victims and those sexually assaulted as adults. Also revives SOL up to age 55. (S477 Effective May 13, 2019). 13 14 North Carolina (2020-21) 2-year window opened on January 1, 2020 for expired civil claims – open. (S. 199 Effective December 1, 2019). 15 Oregon (2010) Revives SOL up to age 40 against perpetrators and private 16 organizations. (O.R.S. § 12.117). 17 Rhode Island (2019) Revives SOL up to age 53 against perpetrator only. (RI ST § 9-1-51 18 Effective July 1, 2019). 19 Utah (2016) 3-year window revived SOL against perpetrators only – closed. Also 20 revives SOL up to age 53 against perpetrator only. (Utah Code § 78B-2-308). 21 Vermont (2019) Permanently revives all expired claims against perpetrators, private 22 organizations and government – open. (H.330 Effective May 28, 2019). 23 Washington D.C. (2019-21) 2-year window opened on May 3, 2019 for expired claims against 24 perpetrators and entities – open. Window applies to all child sex abuse 25 victims up to age 40 or those who discovered their abuse less than 5 years ago, and in some circumstances, those sexually assaulted as adults. (L22- 26 0311 Effective May 3, 2019). 27 28 4 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL WITH PREJUDICE 1 Total Seventeen States (17) and Washington D.C. Revived Expired Civil SOLs 2 3 In addition to these states, childusa.org references numerous other states where there are 4 ongoing efforts to change the statute of limitations governing child molestation. Accordingly, 5 the idea that the California legislature would change the time frames for bringing a child 6 molestation claim in the future was not a matter of “amazing foresight” as claimed in the 7 opposition. The prospect that the legislature would extend these time frames was plainly a 8 possibility. In the end, it is uncontested that Plaintiff did not agree to a dismissal that would 9 10 have foreclosed a future action currently permitted based upon these legislative changes. 11 III. 12 13 THE OPPOSITION’S “CREDIBILITY” CHALLENGES TO MR. ROCHEN’S 14 DECLARATION ARE WITHOUT MERIT 15 In addition to mocking plaintiff’s “amazing foresight,” the opposition challenges the 16 statements set forth in the declaration submitted by attorney Douglas Rochen in support of the 17 moving papers. In a concurrently submitted reply declaration, Mr. Rochen responds to the 18 19 challenges to the credibility of his prior declaration. Briefly, his reply makes the following 20 points: 21 • Mr. Rochen was an associate at the Kabeteck firm. While he did sign some documents, 22 and attended Plaintiff’s deposition, this case was primarily handled by other associates in 23 24 the Kabateck firm. 25 • He was not involved in the filing of the dismissal of Monson-Sultana which is the 26 subject of Plaintiff’s current motion. 27 28 5 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL WITH PREJUDICE • The dismissal of TCBOE had nothing with the Plaintiff’s agreement to dismiss Monson- 1 2 Sultana with prejudice; TCBOE was not the employer of the Mr. Blancas, the perpetrator 3 responsible for the molestation of Plaintiff. Monson-Sultana was Mr. Blancas’ 4 employer. 5 • The references to the Kabateck firm were necessary to address anticipated arguments 6 proffered in the opposition in which Monson-Sultana questioned why declarations from 7 the Kabateck firm were not submitted in support of the moving papers. 8 9 • The statement, made on information and belief, that the summary judgment was based 10 on lack of notice and statute of limitations was substantively, if not technically, accurate. 11 Monson-Sultana’s knowledge that David Blancas’ was a child molester is another way 12 of saying that it was on notice that its employee, David Blancas, was a child molester. 13 Mr. Rochen agreed that the second basis for the summary judgment was failure to file a 14 timely governmental claim rather than the failure to file a timely complaint. 15 16 It is evident the opposition’s credibility challenge has more to do with the language used 17 rather than substance. Moreover, none of the aforementioned challenges put into dispute the 18 central issue, i.e. that Plaintiff did not agree to a dismissal with prejudice. 19 20 IV. 21 MONSON-SULTANA HAS FAILED TO POINT TO SUBSTANTIVE PREJUDICE IF 22 PLAINTIFF IS GIVEN RELIEF 23 24 Monson-Sultana fails to identify any substantive claims to it should relief be granted. 25 This is because both in this case, and in the companion case against it arising out of Blancas’ 26 molestation of another child, the issues raised in this action were the subject of prior discovery. 27 At best, Monson-Sultana argues that but for the dismissal, it would have prevailed on the 28 6 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL WITH PREJUDICE summary judgment. However, as all parties should acknowledge, nothing in the law is sure, 1 2 including how a court would have ruled on its summary judgment. Consequently, the prejudice 3 that Monson-Sultana claims is more ephemeral than real. And again, had Monson-Sultana 4 wished to ensure that Plaintiff was in agreement to a dismissal with prejudice, it could have 5 requested an executed settlement agreement. 6 V. 7 8 THIS COURT SHOULD DENY MONSON-SULTANA’S REQUEST TO VIOLATE 9 PLAINTIFF’S ATTORNEY-CLIENT PRIVLEGE 10 11 Monson-Sultana seeks to invade the attorney-client privilege by subpoenaing 12 communications between Plaintiff and his prior attorneys regarding the dismissal of Monson- 13 Sultana and TCBOE, to take the depositions of three of Plaintiff’s prior attorney and “any other 14 attorney that had conversations with Plaintiff regarding dismissing TCBOE or Monson-Sultana 15 with prejudice and written discovery “regarding these actions.” (Opposition 8:24-9:4) 16 17 In support of these requests, Monson-Sultana cites Lohman v. Superior Court (1978) 81 18 Cal. App. 3d 90. In Lohman, the court held that a client's disclosure of communications with a 19 former attorney on a subject relevant to her current claims did not waive her privilege to 20 prevent disclosure of her conversations on that same subject with other attorneys. Here, 21 Plaintiff’s communications between Plaintiff and her prior attorneys is privileged. “The 22 privilege of confidential communication between client and attorney should be regarded as 23 24 sacred. It is not to be whittled away by means of specious argument that it has been waived. 25 Least of all should the courts seize upon slight and equivocal circumstances as a technical 26 reason for destroying the privilege.” Lohman at p. 94. This court should not authorize a fishing 27 exhibition into privileged communications. 28 7 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL WITH PREJUDICE VI. 1 2 CONCLUSION 3 Based upon the foregoing, this court is respectfully requested to set aside the dismissal 4 5 with prejudice file in this case. 6 Dated: August 19, 2020 ABIR COHEN TREYZON SALO, LLP 7 r } 8 By: ______________________ 9 Boris Treyzon, Esq. Cynthia Goodman, Esq. 10 Attorneys for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SET ASIDE DISMISSAL WITH PREJUDICE