Response Reply

Cal. Super. - 6th Dist.August 11, 2015

‘l OOOONGLI‘AUJNu-l NNNNNNMMM-a-n-a-au-HHp-ay-ah- OONQLAQWN-‘OOOOVQUIAUJNH WRIGHT, FINLAY & ZAK, LLP Robin P. Wright, Esq., SBN 150984 Bradford E. Klein, Esq, SBN 259252 4665 MacArthur Court, Suite 200 Newport Beach, CA 92660 Tel: (949) 477-5050; Fax: (949) 608-9142 ___ mfight@wrighflegal.nel; bklein@wrightlegal.net; rlee@wfighfle§§lah‘ Attorneys for Defendant, PLM LENDER SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA PATRICK J. DOUGHERTY, ) Case No.: 115CV284222 ) Plaintiff, ) REPLY TO NON-OPPOSITION TO ' ) DEFENDANT’S DEMURRER TO vs. ) PLAINTIFFS’ COMPLAINT ) JAMES WALKER; PLM LENDER ) Date: November 10, 201 5 SERVICES, INC; and DOES 1-100, ) Time: 9:00 am. Inclusive, ) Place: Dept. D-08 ) Defendants. ) [Filed concurrently with Reply in support 0f ) Motion to Strike] ) . TO ALL PARTIES AND THEIR ATTORNEY OF RECORD, IF ANY: PLEASE TAKE NOTICE that Defendant, PLM LENDER SERVICES, INC. (“PLM’ or “Defendam”) hereby responds to the lack of any opposition from Plaintiff PATRICK J. DOUGHERTY (“Plaintiff”) Complaint (“Complaint”) to Defendant’s Demurrer to Plaintiff‘s Complaint filed on October 5, 20] 5. I. PLAINTIFF HA5 FAILED TO OPPOSE DEFENDANT’S DEMURRER TO PLAINTIFFS’ COMPLAINT. Pursuant to Code ofCiviI Procedure § 1005, all opposition papers shall be filed with the court and served 0n each party at least nine (9) court days prior to the time appointed for the hearing. Further: 1 REPLY TO NON-OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ COMPLAINT [,2 \OOOQONMA 10 n 12 13 14 15 16 17 18 19 20 21 22 '23 24 26 27 28 . .all papers opposing a motion and all reply papers shall be served by persona) delivery, facsimile transmission, express mail, or other means consistent with the provisions of Sections 1010, 101 1, 1012, and 1013, and reasonably calculatedto ensure delivery to the other pany or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed.” In this case, the Demurrer Io Plaintifi‘s’ Complaint (“Demurrer”) was filed on October 5, 2015 and set to be heard in the above Court on November 10, 201 5. Thereafter, the parties stipulated to continue the Demurrer hearing to December 1: 2015. As such, pursuant to Code ofCiviI Procedure § 1005, Plaintiffwas to file his Opposition by November 16, 2015. Moreover, Plaintiff was to serve his Opposition on counsel for Defendant in a means consistent with the provisions ofSections 1010, 101 1, 1012, and 101 3, and reasonably calculated to ensure delivery not later than the close of the next business day after November 16, 201 5. However, as of November 18, 2015, Defendant has not received an Opposition. [n addition, the Court’s docket does not reflect that any Opposition has been filed. Moreover, pursuant to me Court’s Order on the parties stipulation continue the Demurrer hearing to December 1, 2015, this Court ordered any Opposition to be filed by November 4, 201 5. A copy of said stipulation and order is attached hereto as Exhibit “A.” As such, even affording Plaintiff additional time under the code, under either scenario, his Opposition is undisputedly past-due and untimely. As such, Plaintiff has failed to timely oppose Defendant’s Demurrer to Plaintiffs’ Complaint set to be heard on December 1, 201 5. A plaintiff’s failure to oppose a motion which challenges the sufficiency ofhis claims may be construed as having abandoned said claims. Herzog v. County ofPIumas, (2005) 133 Caj.App.4‘h 1, at 20. As a result, Plaintifl‘s failure to oppose the demurrer should be construed as an admission by Plaintiffthat there are there are no facts that could be alleged to cure the defects in the pleadings and that that the demurrer is meritorious. Because Plaintifffailed to timely and properly file an Opposition, Defendant abject: to any late-flled Opposition and respectfully request that the Court not consider any oral argument on Plaintiffs part in ruling 0n the demurrer. 2 REPLY TO NON-OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ COMPLAINT Ix) b) \OOO\IO\UID II. CONCLUSION In light of Plaintiff’s failure to oppose Defendant’s Demurrer, Defendant respectfully requests that such failure be deemed consent by Plaintiff to the sustaining of Defendant’s Demurrer. Consequently, Defendant respectfully requests that its Demurrer to Plaintiff s Complaint be sustained in its entirety without leave to amend as Plaintifi’s Complaint lacks merit and a Judgment of Dismissal be entered in favor of Defendant and against Plaintiff. For the foregoirtg reasons, Defendant respectfully requests that the Court sustain its Demurrer to Plaintiffs Complaint in its entirety. Respectfully submitted, WRIGHT, FINLAY & ZAK, LLP Dated: November 18, 201 5 3 REPLY TO NON-OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ COMPLAINT A m Ix) U- CWOOQQ 11 12 13 14 15 16 17 18* 19 20 21 22 23 24 25 26 27 28 JOHN A. SHEPARDSON, Esq, SBN 129081 59 N. Santa Cruz Ave., Ste. Q Los Garos, CA 95030 Tel: (408) 395-3701 Fax: (408) 395-01 12 Attorneys for Plainfifl, PATRICK J. DOUGHERTY WRIGHT, FINLAY & ZAK, LLP Robin P. Wrigm, Esq., SBN 150984 Bradford E. Klein, Esq, SBN 259252 Richard J. Lee, Esq., SBN 268713 4665 MacArthur Court, Suite 200 NewPox-t Beach, CA 92660 Tel: (949) 477-5050; Fax: (949) 608-9142 rwri ght@wrightlega1 .net; bk1ein@wrigbtl egal ,net; r1ee@vm‘ ghflegal net Attorneys for Defendant, PLM LENDER SERVICES, INC. SUPERIOR COURT OF THE STATE OF CAIHORNIA FOR THE COUNTY OF SANTA CLARA PATRICK J. DOUGHHTY, , ) Case No.: 115CV284222 ) Plaintifi‘, . ) STRULATION T0 CONTINUE ) DEFENDANT PLM LENDER SERVICES, ) WC’S DEMURRER AND MOTION TO ) STRIKE PORTIONS OF PLAINTIFF’S vs. ’ JAMES WALKER; PLM LENDER ) COMPLAm‘T; [PROPOSED] ORDER SERVICES, INC; and DOES l~100, ) Inclusive, ) Current Date: November 10, 2015 ) Time : 9:.00 am. Defendants. ) Place : Dept. D-08 ) , ) New Daie : December 1, 2015 ) Time : 9:00 am. ) Place ' : Dept. D-OS ) (Or as ordered by the Court.) ) ) .TO Tim HONORABLE COURT AND ALL PARTIES OF INTEREST: 1 STIPULATION TO CONTNUE DEFENDANT PLM LENDER SERVICES, INC‘S DEMURRER AND MOTION TO STRJKE PORTIONS OF PLAINTH’F’S COMPLAINT §NDOR‘SED S ' 10/38/15 135%,? [[3:12ch j Yama§akf afieé‘rgrxfcutive Dfricer 53201.500'5593'éflng00L#010136 LII fin TL $40. )0 Case: 145442531520 :ra Baum \OOOQQUIAt-erw MNMNN mun -. muouABN~o$;:mG:5§:8 -.. _. _-.... .. -..-,_. _._.. Defendant PLM LmDE-R SERVICES, INC. ("PLM" or ”Dcfcndmt"), by sad through its counsel of record, Wright,_Fin1ay 8L Zak, LLP, and Plaintiff PATRICK J. DOUGHERTY (“P]aintifi").by and through his counsel ofrecord, John A. Shepardson, Esq, hcn‘oy sfipuletc as follows: WPEREAS, on or about October 5, 2015, Defend ant filed a Demun'cr and Motion to Suikc Portions of Plaintiffs Complaint set to be beard on November 10, 20] 5 at 9:00 am. in Departmant “D-O8" of the aboVe-entitlcd court WHEREAS, Plaintiffpmpoundcd written discovery ycquests on Defendant Plainfifi and Defendant have agreed to an extension to November 5, 2015 for Defendant to rmpond. WHEREAS, both Plaintifi and Defcndant agreeio have the Demun-er and Motion to Strikc PortiOns of Plaintifi‘s Complai’m gonfinucd to December l, 20] 5 or a date 1hcreaficr that is convenient for the Court; WHEREAS, there will be no prejudice to any palty by continuing the Dcmumr and Motion to Strike Portions ofPlaintifi’s Complaint m December l, 2015, or to a data convenient to the Court; IT IS HEREBY S'flPULATED AND AGREED by and between tho paniw to this action, through their counsel of rccdrd: l. Thai Defendant’s responses to Plaintifi‘s written discovery shall be due by November 5, 2015. 2. That Defendant‘s Demun-cr and Mofion to Strike Portions of Plaintifi‘s Complaint cuncnfly scheduled for November 10, 2015, at 9:00 um. in Depanmcnt "D-08" oftbc abovewaptioned court. be continued to December 1; 2015, at 9:00 am‘ 'Ln Depanmmt “D-08" of the abovo-captioncd court, or to a date convenient to flu: court. Respectfully submitted, Dated: October/i, 2015 By: . hepardson, Esq. cys for Plaintifi, PATRICK J. DOUGHERTY 2 STIPULATION TO CONTDIUB DEFENDANT PLM LENDER SERVICES, INC’S DEMURRER AND MO'ITON TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT U) OWmQONMA WRIGHT, FDILAY & Z-AK, LLP Dated: October3_0, 201 5 By: Z Robin P. Wright, Esq, BradfOrd E. Klein, Esq, Richard J. Lee, Esq, Attorneys for Defendant, PLM LENDER SERVICES, WC. 3 STIPULATION TO CONTW‘UE DEFENDANT PLM LENDER SERVICES, WC’S DELTURRER AND MOTION TO STRIKEPORTIONS OF PLAINTIFFS COWLAINT ORDER Based on the Stipulation of the Pam'cs, ix is hereby ORDERED as follows:2 3 1. That Defendant’s Demuncr and Motion to Sm‘kc Portions of Plaindfi‘s 4 Complaint currently scheduled for November 10, 2015, at 9:00 a.m. in Depamnem “D-08" othe 5 abovo-capfioncd coun, , be continued to December 1, 201 S, a1 9:00 am. in Depanmcm ”DOS” 6 of the abovc-captioned Court, or to , at_ amem. in Departmmt 7 “D~08” ofthe abovc-captioncd court. 8 2. Any Opposition shall be filed no later than A ,2015 and be 9 served by overnight mail. I I 2 E _ 10 3, Any reply papcrs shall be filed no laier than J . 2015 and be H served by ovcmight mail. 12 13 14 Dated: O‘ZL ”)5 15 ' 16 udge Maureen A. Folan .17 ’ 18 19 20 2] 22 23 24 E 26 17:7. _ ~ __ _ ,n _ _ _ _ -H ; 28 l [PROPOSED] ORDER 10 11 12 13 14 15 16 l7 l8 19 20 21 22 23 ‘24 25 26 27 28 PROOF OF SERVICE 1, Steven E. Bennett, declare as follows: I am employed in the County of Orange, State of Caiifomia. 1 am over the age of dghteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, Califomja 92660. I am rcadily familiar with the pzacu'ccs of Wri gm: Finlay & Zak, LLP= for collection and processing of correspondence for mailing with the United States Postal Servioa Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion ofpany served, service is presumedinvalid ifpostal cancellafion date or postage meter date is more than one day after date of deposit for mailing in afl‘l davit. On OctoberZI , 2015, I served the within STHU'LATION TO CONTINUE DEFENDANT PLM. LENDER SERVICES, [NC’S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT; [PROPOSED] ORDER on a1] interested parties in this action as follows: . [] by placing [] the on'gina] [X] a true copy thereofenclosed in sealed envelopc(s) addressed as follows: - John A. Shepardson 59 N.‘Santa Cruz Ave. Ste. Q Los Gatos, CA 95030, (408) 395-3701 Attorney for Patrick J. Daugherty [X] (BY MAIL SERVICE) I placed such envelopc(s) for collection to be mailed on this date following ordinary business practices. 1 1 (BY CERTIFED MAIL SERVICE) I placed such cnvelope(s) for collection to be mailed on this date following ordinary business practices, via Certified Mail, Return Receipt Requested {J (BY PERSONAL SERVICE) 1 caused personal delivery by ATIORNEY SERVICE ofsaid document(s) to the ofices of the addressee(s) as set forth on the attached service list. [] (BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 477-9200, complied with Califomia Rules ofCourt, Rule 2003, and no error was reported by the machine Pursuant to I California Rules of Court, Rule 2006(d), I caused the machine to print a transmission record of the transmission, a copy ofwhich is attached to the original PmofofService. [J (BY GOLDEN STATE OVERNIGHT. NEXT DAY DELIVERY) [placed mic and correct copies thereof enclosed in a package designated by Golden State Overnight with the deliveryfees provided for. I I (CM/ECF Elecu-onic Filing) 1 caused the above document(s) to be transmitted to the office(s) of the add:essee(s) listed by electronic mail at the e-mail address(es) set forth abo've' pursuant to Fed.R.Civ.P.5(b)(2)(E). “A Notice of Electonic Filing (NEF) is generated automatically bythe ECF system-upon completion ofan electronic filing. The NEF, when emailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(b)(2)(E). A copy oftheNEF shall be attached to anydooument served in the traditional manner upon any party appealing pro se.” 1 PROOF OF SERVICE ox v. .cC m M. \l 10 n 12 13 14 15 16 17 is 19 21 22 23 24 26 27 28 [J (Slate) Ideclare under penalty ofpe1jury under tbs Jaw ofthe Stan: of Califomia that the foregoing is tru e and correcL (Federal) I declare under penalty ofperjury under me. laws of the United States ofAmericatbaI the foregoing is true and correct. Execuled on October 2], 2015, at Newport Beach, California. L Steven E. Bennett 2 PROOF OF SERVICE \OOO\10\ PROOF OF SERVICE I, Steven E. Bennett, declare as follows: I am employed in the County of Orange, State of California. I am over the age ofeighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. 1 am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. 1am aware that on motion ofparty served, service is presumed invalid ifposta] cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. On November 18 2015 I served the within REPLY TO NON-OPPOSITION TO DEFENDMNT’S DEM URRER TO PLAINTIFFS’ COMPLAINT on all interested parties in this action as follows. [ ] by placing [ ] the original [X] a true copy thereofencloscd in sealed envelope(s) addressed as follows: John A. Shepardson 59 N. Santa Cruz Ave. Ste. Q Los Gatos, CA 95030, (408) 395- 3701 Attorney for Patrick J. Dougherty [ ] (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. [1 (BY CERTIFIED MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices, via Certified Mail, Retum Receipt Requested. ’[ ] (BY PERSONAL SERVICE) I caused personal delivery by ATTORNEY SERVICE of said document(s) to the offices of the addressee(s) as set forth on the attached service list. [1 (BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 477-9200, complied with Califomia Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant to Califomia Rules ofCourt, Rule 2006(d), I caused the machine to print a transmission record of the transmission, a copy ofwhich is attached to the original Proofof Service. [X] (BY GOLDEN STATE OVERNIGHT- NEXT DAY DELIVERY) I placed true and correct copies thereofenclosed in a package designated by Golden State Overnight with the delivery fees provided for. [ ] (CM/ECF Electronic Filing) I caused the above document(s) Io be transmitted to the office(s) of the addressee(s) listed by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(b)(2)(E). “A Notice ofElcctronic Filing (NEF) is generated automatically by the ECF system upon completion ofan electronic filing. The NEF, when e-mailed to the e-mail address ofrecord in the case, shall constitute the proofof service as required by Fed.R.Civ.P.5(b)(2)(E). A copy of'the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” l PROOF OF SERVICE \OOO\IC\ [X] (Stats) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. - (Federal) I declare under penalty ofperj ury under the laws of the United States ofAmerica that the foregoing is true and correct. Executed on November 18: 2015, at Newport Beach, California. Steven E. Bennett 2 - PROOF OF SERVICE