Response Reply

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

BY FAX l\) U) OOmflGUI-b WRIGHT, FINLAY & ZAK, LLP J15 RobinP. Wn'ght, Esq, SBN 150984 Bradford E. Klein, Esq, SBN 259252 ?fiiS NOV I 8 P 2 4665 MacArthur Court, Suite 200 _ Newport Beach CA 92660 . 55v; é/ -Tel.- (949) 477-5050, Fax. (949) 608- 9142 rwright@wrightlegal. net; bklein@wrightlegal. net; r]ee@\wightlegal. net“ “ J 0,, Attomeys for Defendant, PLM LENDER SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA PATRICK J. DOUGHERTY, ) Case No.2 115CV284222 ' ) Plaintiff, ) REPLY TO NON-OPPOSITION TO 1 ) DEFENDANT’S MOTION TO STRIKE vs. ) PLAINTIFFS’ COMPLAINT ) JAMES WALKER; PLM LENDER ) Date: November 10, 201 5 SERVICES, INC; and DOES 1-100, ) Time: 9:00 a.m. Inclusive, ' ) Place: Dept. D-08 ) Defendants. ‘ ) [Filed concurrently with Reply in support 0f ’) Motion r0 Strike] ) TO ALL PARTIES AND THEIR ATTORNEY OF RECORD, [F 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 Motion to Strike Plaintiff‘s Complaint filed on October 5, 201 5. I. PLAINTIFF HAS FAILED TO OPPOSE DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT. Pursuant to Code ofCivi/ Procedure § 1005, all oppositiofi papers shall be filed with the court and served on each party at least nine (9) court days prior to the- time appointed for the hearing. Further: 1 REPLY TO NON-OPPOSITION TO DEFENDANTS MOTION TO STRIKE PLAINTIFFS’ COMPLAINT 5.. xoooumuubmw NHHH-np-H-‘H-‘.- oxoooqoxm.umm~o . .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 ofSections 1010, 10] 1, 1012, and 101 3; and reasonably calculated to ensure delivery to the other party 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 Motion to Strike to Plaintiffs: Complaint (“Demurret”) was filed on October 5, 201 5 and set to be heard in the above Court 0n November 10, 2015. Thereafter: the parties stipulated to continue the Motion to Strike hearing to December 1, 201 5. As such, pursuant to Code ofCiviI Procedure § 1005, Plaintiffwas to file his Opposition by November l6, 2015. Moreover, Plaintiff was to serve his Opposition 0n counsel for Defendant in a means consistent with the provisions of Sections 1010, 1011, 1012, and 1013, and reasohably calculated to ensure delivery not later than the close ofthe next business day after November 16, 2015. However, as ofNovember 18, 2015, Defendant has not received an Opposition. In addiu'on, the Court’s docket does not reflect that any Opposition has been filed. 4 Moreover, pursuant to the Court’s Order on the parties stipulation continue the Motion to Strike hearing t6 December 1, 2015, this Court ordered any Opposition to be filed by Nevember 4, 2015. A copy of said stipulation and order is'attached hereto as Exhibit “A.” As such, even afibrding 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 Motion to Strike to Plaintifis’ Complaint set to be heard 0n December 1, 201 5. A plaintiff‘s failure to oppose a motion which challenges the sufficiency ofhis claims may be construed as havingabandoned said claims. Herzog v. County ofPZumas, (2005) 133 Cal.App.4‘h 1, at 20. As a result, Plaintiffs failure to oppose the demurrer should be construed as an admission by Plaintiff that there are there are no facts that could be alleged to cure the defects in the pleadings and that that the motion is meritorious. Because Plaintifffailed to timely and properly file an Opposition, Defendant abjecs t0 any laIe-filed Opposition and respectfully request Illa! t/ze Co urt not consider any oral argument 0n Plaintiffs part in ruling 0n the Motion to Strike. 7 REPLY TO NON-OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT koooxzoxmawm.‘ N N N N N M N N N ._. ._. ._‘ .- ._. ._‘ H ._. ._.. ._. DO Q O\ UI &\ DJ N h-d O \O m \l ON LII b DJ N '-‘ O 1'1. CONCLUSION ' In light of Plaintiff’s failure to oppose Defendant’s Motion to Strike, Defendant respectfully requests that such failure be deemed consent by Plaintiff to the granting of Defendant’s Motion to Strike. Consequently, Defendant respectfully recluests that its Motion to Strike to Plaintiff‘s Complaint be granted in its entirety with Qrejudice. Respectfully submitted, // Dated: November 18, 2015 By: “ __ Rm“ Wright, Esq. Bradford E. ‘ a Attorneys for Defendant, . PLM LENDER SERVICES, INC. 3 REPLY TO NON-OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT JOHN A. SHEPARDSON, Esq, SBN 12908] 59 N. Santa Cruz Ava, Ste. Q Los Gatos, CA 95030 Tex: (408) 3953701 Fax; (408) 395-0112 Attorneys for Plaintifi, PATRICK J. DOUGHERTY WRIGHT, FINLAY & ZAK, LLP Robin P. Wright: Esq, SBN 150984 Bradford E. Klein ESq., SBN 259252 Richard l Lee, Esq, SBN 268713 4665 MacArthur Court, Suite 200 Newport Beach, CA 92660 Tel: (949) 477-5050; Fax: (949) 608-9142 rwri ght@wrighflegal‘nel; bklein@wrigbt1egal .net; rlee@wrightlegal.net Anomeys for Defendant, PLM LENDER SERVICES, INC. SUTERIOR COURT OF THE STATE OF CALIFORNIA FOR TEE COUNTY OF SANTA CLARA PATRICK J. DOUGHIERTY: , ) Case No.: ) Plaintiff, 2 ) STIPULATION TO CONTINUE ) DEFENDANT PLM LENDER SERVICES, ) INC’S DEMURRER AND MOTION TO ) STRIKE PORTIONS OF PLAINTIFFS VS . JAMES WALKER; PLM LENDER ) COMPLAE'T; [PROPO SED] ORDER SERVICES, INC; and DOES 1-100, ) Inclusive, ) Currem Date z November 10, 2015 y ) Time : 9:00 am. Defendants. ) Place : Dept. D-OS ) ) New Date ; December 1, 2015 ) Time : 9: 00 am. ) Place ' _'. Dept D-08 ) (Or as ordered by the Court) ) ) ‘TO THE HONORABLE COURT AND ALL PARTIES 0F WTEREST: 1 115CV284222 . 9: :,. DJ CT! p w I d R23”\(léflnfim r'a Enum . , amasa 1 7318f Executive Dfrrec. trancssm “’3 gr R1120]: Ouaflw'gr C 010136 CK TL CEOJO " e . .. . ‘3}?OJIG{"599’ ¢‘15‘CU-23427" L4 STIPULATION TO CONTINUE DEFENDANT PLM LENDER SERVICES, INC’S DEMURRER AND MOTION TO STRKE PORTIONS OF PLAINTIFF’S COMPLAINT \OOOQO'iU‘AL-Jtdb- NNNNN N mqomAtKNBBSESEJIEfi‘SS .__ ... -....‘. H -.._r_ --_.. Defendant PLM LENDER SERVICES, INC. (“PLM‘Ior “Dcfcndant”), by and through its counsel of recerd, Wright, Finlay & Zak, LLP, and Plaintiff PATRICK J. DOUGHERTY (“Plaintiff").by and through his counsel of record, John A. Shepardson, Esq, hcrcby stipfilatc as follows: > WHEREAS, on or about October 5, 2015, Defendant filed a Dcmurrcr and Motion to Strike Portions of Plaintiff‘s Complaint set to be heard on November 10, 2-015 at 9:00 am. in Dcpafimcnt “D-08" of the abovc-enfizled court WHEREAS, Plaintiffpmpoxmdcd writtcu discovery rcquests on Defendant Plainfiff and Defendant have agreed to an extension to November 5, 201 5 for Defendant to respond. WHEREAS, both Plaintifi and Defendant agree to have the Demmer and Moiion to Strike Portions of Plainfifi‘s Complaint continued to December J, 2 015 or a datc thereafim' that is convenient for the Conn; WI-EREAS, there will be no prejudice to any party by continuing the Dcmumr and Motion to Suike P01130115 of Plaintiff’s Complaint to Dcccmbcr l, 2015, or to a dam convun‘ent to the Court; IT IS HEREBY SI'IPULATED AND AGREED by and bcfwccn the parties to this action, through {hair counsel of record: l. - Thug Defendant’s responses to Plaintifi’s written discovery slmll be due by November 5, 2015. 2. That Defendant's Demurrcr and Motion to Strikc Portions of Plaintifi‘s Complaint currently scheduled for November 10, 2015, at 9:00 a_m. in Department “D-OS" ofthc abovercaptioned court, be continued to December 1, 2015, at 9:00 am. in Department “D-08" of the above-captioned court, or to a date convenient to the court Respoctfilly submittcd, Dated: October/i, 2015 By: . hcpardson, Esq. eys for Plaintiff, PATRICK I. DOUGHER’I‘Y 2 STIPULATION'TO CONTINUE DEFENDANT PLM LENDER SERVICES, INC'S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT \W’RIGHT, FENLAY & ZAK, LLP Dated: October 29, 2015 By: mZ Robin P. Wright, Esq., Bradford E. Klein, Esq, Richard J. Lee, Esq, Artomcys for Defendant, PLM'LENDER SERVICES, INC a J STIPULATION TO CONTINUE DEFENDANT PLM LENDER SERVICES, WC’S DEMURRE-R AND MOTION TO STRIKE PORTIONS OJ? PLAINTIFF’S COMPLAINT 1 O_EQEB 2 Based on the Stipulation ofthc Fania; it is hereby ORDERED as follows: 3 1. That Defendant’s Dcmune: and Motion to Suike Portions of Plaintifis 4 Complaint currently scheduled for November 10, 201 5, at 9:00 am. in Departmcm “DOS” ofthc S above-capn’oned court, , be continued to Dccsmber 1, 201 5, at 9:00 am. in Dcpanmem "D-OS” 6 of the above~captioned Court, or to , at __ amem. in Department 7 "D-OS” of the above-captioned court. X) I f8 2A Any Oppositigm shall b: fiJed no later than é I / , 2015 and be 9 served by overnight mail. I I 2 f10 3. Any reply papers shall be filed no later Lhan I .2015 and be 1 1 served by overnight mail. l2 13 14 Dated: 'ZL U )5 15 _ Su cn'or Court Judge [6 udge Maureen A. Folan l7 18 19 20 21 22 23 24 25 26 j). __ __. ~_.__=& _. _ -. - _ _ _ . _. 28 1 [PROPOSED] ORDER PROOF OF SERVI CE I, Steven E. Bennett, declare as follows: I am employed in Lhe County omenge, State of California. [ am over the age of eighieem (l 8) and not a parfiv Io the within action My business address is 4665 MacAnhux Cour: Suite 200, Newport Beach California 92660. I am readily familia: with the practices ofWrighL Finlay & Zak, LLP: for collection and processing of correspondence formailing with the United States P0513] Service. Such conespondence is deposixcd with the United States Postal Sw'ice the same day in the ordinary course of business. I am aware that on motion ofparry served, service is presumed invalid ifposta] cancellaxjon date or postage meter date is more than onc‘ day after date of deposit for mailing in afiidavit. On October 2], 2015, I served the within STIYULATION TO CONTINUE- DEFENDANT PLM LENDER SERVICES, WC’S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT; [PROPOSED] ORDER on all interested panics in this action as follows: [] by placing [ ] the original [X] airue copy thereof enclosed in sealed enve10pe(s) addreSSed as foliows: John A. Shepardson 59 N.‘ Santa Cruz Ave. Ste. Q Los Gaios, CA 95030, (408) 395-3701 Attorney fur Patrick J. Daugherty [X] (BY MAIL SERVICE) I placed such en\'elopc(s) for collection to be mailed on this date following ordinary business practices. i i (BY CERTIFIED MAIL SERVICE) I placed such envelopqs) for collection to be mailed on this date foilowing ordinary business practices, via Certified Mai), Return Receipt ReqUested i 1 (BY PERSONAL SERVICE) I caused personal deIiVery by ATTORNEY SERVICE of said document(s) to the ofii ces ofthc addressee(s) as set forth on the attached service list. [ i (BY FACSIMILE) The facsimne machine 1 used, with telephone no. (949) 477-9200, complied with California Rules ofCourt, Rule 2003, and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), I caused the machine to print a transmission recerd of the transmission, a copy ofwhich is attached to the original Proof of Service. [J (BY GOLDEN STATE OVERNIGHT- NEXT DAY DELIVERY) Ipiéced flue and correct copies thereofchJOSed in a package designated by Golden State Overnight with the delivery fees provided for. [ ] (CM/ECF Electronic Filing) I caused the above dooument(s) to be transmitted to the office(s) of the addressee(s) listed by electronic mail at the e-mail address(es) set foxth abo‘ve pursuant to Fed R.Civ.P.5(b)(2)(E). “A Notice of Eleononic Filing (NEF) is generated automatically by the ECF system upon completion ofan electronic filing. The NEF, when emailed to the e-maiI addreés ofxecord in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(b)(2)(E)t A copy of theNEF shall be attached to any-document Served in the traditional manner upon any parry appearing pro se.” 1 PROOF OF SERVICE \OMNQ I] (State) 1 declare under penalty ofperjwy under the law oftbe Stat: ofCaIifox-m'a that ihe foregoing is true and correct. (Federal) I declare undnr penalty of perjury under the. 1mm ofthe Unired States ofAmerica ihal thc foregoing is true and correct. Executed on October" 21, 2015, atNCWpon Beach, Caliromja. L Stevcn E. Bennett 2 . PROOF OF SERVICE IQ l4) \Dmfla PROOF OF SERVICE I, Steven E. Bennett, declare as follows: I am employed in the County ofOrange, State of California. I am over the age of eighteen (1 8) and not a party to the within action. My business address is 4665 MacArthur Court: Suite 200, Newport Beach; California 92660. I 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 0f business. I am aware that on motion of party served, service is presumed invalid if postal 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 T0 DEFENDANT’ S MOTION TO STRIKE PLAINTIFFS’ COMPLAINT 0n all interested parties in this action as follows. [] by placing [ ] the original [X] a true copy thereofenclosed 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. Daugherty [ ] (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. [] (BY CERTIFIED MAIL SERVICE) I placed such envelope(s) for collection m be mailed on this date following ordinary business practices, via Certified Mail, Return 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. [ ] (BY FACSIMILE) The facsimile machine 1 used, with telephone no. (949) 477-9200, complied with California Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant Io California Rules ofCourt, Rule 2006(d), I caused the machine to print a transmission record of the transmission, a copy of which is attached to the original Proof of Service. [X] (BY GOLDEN STATE OVERNIGHT- NEXT DAY DELIVERY) I placed true and correct copies thereof enclosed in a package designated by Golden State Overnight with the delivery fees provided for. [ ] (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed by elecuonic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(b)(2)(E). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion ofan electronic filing. The NEF, when e-mailed to the e-mail address of record in the- case, shall constitute the ptoofofservice as required by Fed.R.Civ.P.5(b)(2)(E). A copy ofthe NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” i PROOF OF SERVICE \OOO\IO\ [O 11 12 13 14 15 16 ' 17 18 19 2O 21 22 23 24 25 26 27 28 1X] (State) 1 declare under penalty ofpexjury under the law ofthe. State of California Ihal the foregoing is true and correct. (Federal) I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct Executed on November 18, 201 5, at Newport Beach, California. - 3/%/