Gary Mckenzie vs. Oswald Cabrera

Reply to Opposition

Cal. Super. - 4th Dist.July 28, 2015

~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ronald D. Tym, Esq. (State Bar No. 195339) 30526 Rainbow View Dr. Agoura Hills, CA 91301 Tel: (818) 836-1428 ELECTRONICALLY FILED Superior Court of California, County of Orange 11/01/2016 at 10:58:00 A Clerk of the Superior Court By Wara Gina Bar, Deputy Clerk Attorney for Plaintiffs/Cross Defendants Gary McKenzie and Dominic Antonini and Cross-Defendants Panoramic Vistas, LLC and Quality Communications, Inc. CHRISTOPHER E. DEAL, ESQ. (Bar No. 186754) cdeal @sr-firm.com CAROLINE C. PATTERSON, ESQ. (Bar No.: 258397) cpatterson @sr-firm.com SONGSTAD RANDALL COFFEE & HUMPHREY LLP 3200 Park Center Drive, Suite 950 Costa Mesa, California 92626 Telephone: ~~ (949) 757-1600 Facsimile: (949) 757-1613 Attorneys for Plaintiff and Cross-Defendant, DOMINIC J. ANTONINI (Case No.: 30-2015-00801307-CU-OR-CIC) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE GARY MCKENZIE, Lead oo. Case No.: 30-2015-00781898-CU-OR-CJC Plaintiff, VS. OSWALD CABRERA; GERMAN GUZMAN; CARL V. BERGEMAN; DENISE KELLY; MICHAEL CHIUPPIL; DOES 1-10 Defendants. AND RELATED CROSS-ACTIONS (Caption Continued on Next Page) - N e N e N e N e N e e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e Consolidated Case No.: 30-2015-00801307-CU-OR-CJC Assigned for All Purposes to: Hon. James L. Crandall, Dept. C-33 PLAINTIFFS’ REPLY IN SUPPORT OF ISSUANCE OF INJUNCTION November 4, 2016 9:00 a.m. C-33 Hearing Date: Time: Dept: Trial Date: December 5, 2016 REPLY ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DOMINIC J. ANTONINI Plaintiff VS. CARL V. BERGEMAN; ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE; DOES 1-20 Defendants AND RELATED CROSS ACTIONS Ne N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e Plaintiffs/Cross-Defendants hereby file the following Reply in support of issuance of injunctive relief by this court in the form of a restraining order against witness intimidation during the pendency of this litigation: Hi Hin Hi Hin Hi Hin Hi Hin Hi Hin Hin Hin Hin REPLY ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION If the facts are on your side, pound the facts. If the law is on your side, pound the law. If neither are on your side, pound the table. Defendant BERGEMAN’s Opposition to the issuance of injunctive relief by this court amounts to a lot of table pounding. It is ludicrous on its face to argue (as Defendant does) that a court does not have the inherent authority to issue an order to prevent a party from coercing or intimidating a witness in a matter pending before that court. It is ludicrous on its face to argue (as Defendant does) that such coercion and intimidation, if done through verbal threats to the witness and his family, is protected free speech outside prophylactic control by a court. This court has the inherent authority to prevent intimidation of witnesses, and in this instance such authority must be decisively exercised by this Court to protect the safety of a young 10 year old girl, as well as the safety of her father, the witness. II. ARGUMENT A. THERE HAS BEEN NO VIOLATION OF DEFENDANT’S DUE PROCESS In an apparent hope that this court will have amnesia, Defendant BERGEMAN argues in his Opposition that he has supposedly been denied due process because the temporary restraining order in this case applied to “all those acting in concert with him” and did not contain an express exception for defense counsel. Defense counsel argues that this precluded such counsel from being able to mount a defense to the issuance a more permanent restraining order because he supposedly could not contact the declarants that signed declarations in support of the issuance of the temporary restraining order. However, as this Court will recall, this concern was specifically raised by Mr. Sean Bozarth, counsel for Defendant, at the ex parte hearing on the temporary restraining order, and this Court specifically informed Mr. Bozarth and other counsel in attendance that the order was REPLY ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not to be interpreted as prohibiting contacts with the declarants by counsel for Defendant. Therefore, there has been no violation of Defendant’s due process rights. B. A ROSE BY ANY OTHER NAME In his Opposition, Defendant BERGEMAN argues that what is sought is not a “preliminary injunction” as such term is used in the Code of Civil Procedure since this Court is not being asked to preserve the status quo pending a trial on the merits and is not making any determination as to whether plaintiff is likely to prevail on the merits or whether the interim harm to the plaintiff if the injunction is denied outweighs the interim harm to the defendant if the injunction is issued. However, whether the order being sought is termed a “preliminary injunction” or some other name is a distinction without a difference. The key point is that this Court has the inherent authority to issue an order prohibiting a party and those acting in concert with such party from intimidating a witness by making threats against the witness, his family and close business associates. C. INHERENT AUTHORITY OF COURT TO PREVENT INTIMIDATION OF WITNESSES In his Opposition, Defendant BERGEMAN quotes extensively from the case of San Francisco Unified School District ex rel. Contreras v. First Student, Inc. (2013) 213 Cal. App. 1212 (“Contreras”) as supporting his position that the order being presently sought is not a “preliminary injunction” and that this Court supposedly does not have the inherent authority to issue such an order because of free speech concerns. In reality, Contreras fully supports this Court’s issuance of the requested order. With regard to the order not being a “preliminary injunction” as embraced by the Code of Civil Procedure, the Court of Appeals in Contreras shrugged that off and indicated that even though the trial court and others had described the order as a “preliminary injunction”, the Court of Appeals would treat the order as an order issued pursuant to the trial court’s inherent powers. The Court of Appeals stated: REPLY ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “We therefore construe the order as an exercise of the court's inherent power to control the proceedings before it. (See Code Civ. Proc., § 128; Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [67 Cal. Rptr. 2d 16, 941 P.2d 1203] [“well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them™]; Continental Ins. Co. v. Superior Court (1995) 32 Cal. App.4th 94, 107-108 [37 Cal. Rptr. 2d 843] (Continental Insurance) [discussing court's inherent power to impose evidentiary sanction based on finding of rule 2- 100 violation].) Accordingly, our focus is not whether the order was appropriate as an interim remedy (based on a likelihood of proving a rule 2-100 violation or other ground for the injunction and a balancing of interim harms), but whether the order was a proper exercise of the court's inherent authority based on the evidence before it.” Id. At 1226-1227 With regard to concerns about an order pursuant to such inherent authority improperly impinging on First Amendment freedom of speech rights, the Court of Appeals made clear that such free speech concerns are not present in cases involving witness intimidation. The Court of Appeals pointed out that in the case before it: “[t]here was no evidence presented suggesting that the individual plaintiffs attempted to coerce or intimidate potential witnesses, or that they attempted to improperly influence any FSI employee to testify in a particular manner. Absent such evidence, we doubt that an employee’s disquiet or discomfort, particularly in the context of a False Claims Act lawsuit, could justify such an order.” (emphasis added) Id. at 1238 Therefore, Contreras supports the common sense proposition that a Court has the inherent authority to issue such orders as are reasonably necessary to prevent further intimidation of witnesses regarding matters then pending before such Court. D. SUPPORTING DECLARATIONS In his Opposition and in the evidentiary objections that Defendant BERGEMAN filed with regard to each and every declaration, Defendant BERGEMAN fights yesterday’s war. 5 REPLY ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The declarations were used to support the issuance of the temporary restraining order. A full live-testimony evidentiary hearing has been ordered by this Court with respect to the issuance of the more permanent order. Therefore, if BERGEMAN believes that the authenticity of the declarations are suspect, he can ask the declarants themselves at the hearing whether they signed their declarations. If BERGEMAN believes that certain statements by the declarant witnesses are inadmissible because of hearsay or lack of foundation, he can object to the admissibility of such statements at the time they are again made by the declarants at the hearing. In addition, hearsay evidence may be considered by a court when deciding whether to issue a temporary or more permanent restraining order. See, Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal. App.4™ 550, 556-557; Duronslet v. Kamps (2012) 717, 728-729 E. TERMINATING OR EVIDENTIARY SANCTIONS In addition to issuing a temporary restraining order and an injunction to stop witness intimidation and harassment, this Court also has the power to impose terminating or evidentiary sanctions because of BERGEMAN’s misconduct. As stated in Stephen Slesinger v. Walt Disney Co. (2007) 155 Cal. App.4™ 736, 758: “From their creation by article VI, section 1 of the California Constitution, California courts received broad inherent power ‘not confined by or dependent on statute.’ (Walker v. Superior Court (1991) 53 Cal.3d 257, 267 [279 Cal. Rptr. 576, 807 P.2d 418]; see also Civ. Code § 22.2; Ferguson v. Keays (1971) 4 Cal.3d 649, 654-655 [94 Cal. Rptr. 398, 484 P.2d 70] (Ferguson) [California courts possess inherent powers enjoyed by English common law courts, except for those precluded by Civ. Code, § 22.2].) This inherent power includes ‘fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [67 Cal. Rptr. 2d 16, 941 P.2d 1203].) Although it has been held that California courts have inherent authority to impose evidentiary sanctions as a remedy for litigation misconduct (see Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d 272, 286-291 [245 Cal. Rptr. 873] (Peat)), no California decision has held that a court may, when faced with pervasive litigation abuse, use its inherent 6 REPLY ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 judicial power to dismiss the action. We have no doubt, however, that California courts possess such power.” (emphasis added) A trial court is not required to first issue lesser sanctions before issuing terminating sanctions or first issue an order for the misconduct to stop and wait for a violation of the court order before issuing terminating sanctions. Osborne v. Todd Farm Service (2016) 247 Cal. App.4™ 43, 53-54. A terminating sanction may benefit any party who “shows it suffered a detriment as the result of the sanctioned party's” misconduct. See, e.g., Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal. App.4th 285, 301 In the present case, the interference by BERGEMAN with the judicial process by his many attempts to intimidate a key witness through threatening violence against the witness and his family warrant a dismissal of BERGEMAN’s Cross-Complaints in this matter. Such actions by BERGEMAN threaten the very core of the judicial process and the right of Plaintiffs/Cross Defendants to a fair trial. BERGEMAN must be taught that his behavior will not be tolerated. Alternatively, this Court should impose evidentiary sanctions, including not permitting BERGEMAN (or now, his counsel) to cross-examine Mr. Lucero or otherwise dispute Mr. Lucero’s testimony. III. CONCLUSION This Court should issue a restraining order to be in effect for the duration of this litigation prohibiting BERGEMAN and those acting in concert with him from contacting Mr. Lucero or Mr. Lucero’s family and ordering such persons to stay away from Mr. Lucero and Mr. Lucero’s family. Additionally, this Court should issue terminating sanctions and dismiss BERGEMAN’s Cross-Complaints in this action, or at the very least issue evidentiary sanctions, including not permitting BERGEMAN (or now, his counsel) to cross-examine Mr. Lucero or otherwise dispute Mr. Lucero’s testimony. REPLY H W M NO 0 9 A N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: November 1, 2016 By: REPLY - rg Ly RONALD DEXYM, ESQ. Attorney for Plaintiffs and Cross-Defendants [88 ] Oo 0 N N a wn B W 10 11 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 30526 Rainbow View Dr., Agoura Hills, CA 91301. On November 1, 2016, I served PLAINTIFFS’ REPLY IN SUPPORT OF ISSUANCE OF INJUNCTION X EMAIL - by transmitting via email the document(s) listed above to the email addresses set forth on the attached Service List (excluding Oswald Cabrera) X MAIL - by mailing by EXPRESS MAIL to the address in the attached Service List (Oswald Cabrera only) Od PERSONAL SERVICE - by causing the document(s) listed above to be personally delivered to the addressees on the attached Service List. O OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid, and depositing in a collection box for next day delivery to the person(s) at the address(es) set forth below via FEDERAL EXPRESS. See Attached Service List I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the 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. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 1, 2016, at Agoura Hills, California. PE RONALD TYM REPLY ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Cristian Peirano, Esq. Sean Raymond Bozarth, Esq. Peirano & Associates, Inc. 1666 N. Main St., Suite 350 Santa Ana, CA 92701 Tel: (714) 881-5985 Email: sbozarth@peiranolaw.com clp@peiranolaw.com Counsel for Defendant Carl Vincent Bergeman Christopher E. Deal, Esq. Caroline C. Patterson, Esq. SONGSTAD RANDALL COFFEE & HUMPHREY LLP 3200 Park Center Drive, Suite 950 Costa Mesa, CA 92626 Telephone: (949) 757-1600 cdeal @sr-firm.com cpatterson @srfirm.com Co-Counsel for Dominic Antonini Oswald Cabrera (by Express Mail Only) 13800 Park Center Lane, Apt. 533 Tustin, CA 92782 971-313-4780 Defendant in Pro Per German Guzman 1135 N. Ventura St. Anaheim, CA 92801 guzman-german @hotmail.com Defendant In Pro Per REPLY