Anthony Nguyen vs. Thien Kinh Tran

Opposition

Cal. Super. - 4th Dist.June 20, 2014

\ OO 0 NN a wn A W 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrew D. Weiss SBN 121149 LAW OFFICES OF ANDREW D. WEISS 26459 Rancho Parkway South Lake Forest, California 92630 ELECTRONICALLY FILED Telephone: (949) 360-9478 Superior Court of California, Facsimile: (949) 360-0302 County of Orange Email: oclawadw(@aol.com 0501/2017 at 03:43:00 Fi Attorney for Defendants : Thien Kinh Tran, Thu Hien Thi Nguyen He Eicher Teo and Sunny Duong SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ANTHONY NGUYEN; Case No: 30-2014-00729544 Date: May 2, 2017 Plaintiff, Time: 9:00 a.m. Dept. C26 Vv. DEFENDANTS’ OPPOSITION TO PLAINTIFF'S THIRD EX PARTE THIEN KINH TRAN, an Individual; APPLICATION TO VACATE COST THU HIEN THI NGUYEN, an Individual, AWARD SUNNY DUONG, an Individual; MIRANDA MCCROSKEY, an Individual; Assigned for All Purposes: VANESSA MORENO, an Individual; Judge Gregory H. Lewis And DOES 1 through 50 inclusive; Dept. C26 Date Filed: June 20, 2014 Defendants. Trial Date: None Set Defendants Thien Kinh Tran, Thu Hien Thi Nguyen and Sunny Duong submit the following memorandum of points and authorities in opposition to the third ex parte application by Anthony Nguyen to vacate the Court’s cost order entered November 1, 2016. Plaintiff's repeated ex parte applications accomplish nothing except provide additional evidence supporting Defendants’ motion to revoke Plaintiffs fee waiver and motion to declare Plaintiff a vexatious litigant, both set for hearing on June 12, 2017. 1 Defendants” Opposition to Plaintiff's Third Ex Parte Application to Vacate Cost Award 1. Plaintiff’s Third Ex Parte Application Should be Denied as Legally Improper, and Legally and Factually Unsupported. Plaintiff’s third ex parte application seeking to vacate the Court’s November 1, 2016, order awarding Defendants costs should be denied as legally improper and legally and factual unsupported. Plaintiff’s ex parte application is largely incomprehensible and filled with irrelevant personal attacks. Defendants attempt to separate the wheat form the chaff and address Plaintiff’s arguments below. A. Plaintiff has failed to comply with Section 1008 of the Code of Civil Procedure. Plaintiff filed ex parte applications on February 12,2017, and March 14,2017, seeking to vacate the Court’s November 1, 2016, order awarding Defendants costs. (Exhibits 1 and 2.) Both ex parte applications were denied. Section 1008(b) of the Code of Civil Procedure requires any renewed motion for relief to be supported by an affidavit showing “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (C.C.P. §1008(b).) Section 1008 is jurisdictional and a violation of the section may be punished by contempt and with sanctions. (C.C.P. §1008(d) and (e).) Plaintiff'has failed to comply with Section 1008 and has failed to establish any new or different facts, circumstances or law supporting a renewed motion. B. Plaintiff has failed to establish exigent circumstances supporting his ex parte relief. An ex parte application must establish “irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” (C.R.C. Rule 3.1202(c).) Plaintiff does not even attempt to establish any exigent circumstance justifying ex parte relief. In addition to his previous ex parte applications filed on February 12,2017, and March 14, 2017, (Exhibits 1 and 2), Plaintiff filed a regularly noticed motion seeking to vacate the cost order, set for hearing on June 19, 2017. (Exhibit 3.) C. Plaintiff has appealed the Court’s cost award, depriving the trial court of jurisdiction to alter the November 1, 2016, order. (Exhibit 4 and C.C.P. §916(a).) D. Plaintiff has failed to establish any basis for staying the above-captioned action. The Court cannot stay enforcement of a judgment more then 10 days after the time for appeal. (C.C.P. §918.) The only basis Plaintiff cites for staying enforcement of the cost award is recent actions he filed in Federal District Court and an action he filed in Los Angeles Superior Court. (Ex Parte Application p. 3 In. 17.) Other actions do not provide a basis for staying collection in the above-captioned action. On April 21, 2 Defendants’ Opposition to Plaintiff's Third Ex Parte Application to Vacate Cost Award OS OW 0 N N B R A W N N N N = = ee e m e m -_- 2017, Plaintiff filed two new actions in Federal District Court. (Exhibits 5 and 6.) Both have been dismissed. (Exhibits 7 and 8.) A Federal District Court judgment is final unless and until it is reversed on appeal. (Nathanson v. Hecker (2002) 99 Cal. App. 4th 1158, 1163; and Tripati v. Henman (9th Cir. 1988) 857 F.2d 1366, 1367.) E. Plaintiff has failed to establish Defendants’ Memorandum of Costs was not served. Defendants’ Memorandum of Costs was properly served on July 12, 2016, to Plaintiff's attorney, Michael Lindley. (ROA 322.) The Memorandum of Costs includes a proof of service as the last page. (/d.) A proof of service creates a rebuttable presumption that service was proper. (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.) Plaintiff was represented by Lindley until he filed a substitution of attorney on April 18, 2017, placing himself'in pro per again. (ROA 499.) Accordingly, Plaintiff's argument that he was never served with Defendants’ Memorandum of Costs is meaningless. 2. Conclusion. For all the forgoing reasons, Plaintiff's third ex parte application seeking to vacate the November 1, 2016, cost award should be denied. LAW OFFICES OF ANDREW D. WEISS Dated: May 1, 2017 By: