Wescom Central Credit Union vs. James G. French

Reply to Opposition

Cal. Super. - 4th Dist.March 3, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ELECTRONICALLY FILED Michael W. Collins, State Bar# 197829 Superior Court of California, Law Offices of Collins & Lamore County of Orange Attorneys at Law 02/22/2018 at 04:23:00 PM 611 W. Civic Center Dr. #208 Clerk of the Superior Court Santa Ana, CA, 92701 By Danielle Jurado, Deputy Clerk Attorney for Defendant SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER WESCOM CENTRAL CREDIT UNION, Case No.: 30-2017-00906707-CL- Plaintiff, CL-CJC DEFENDANTS’S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR ) ) ) ) vs. ) ) ) ) SANCTIONS PURSUANT TO CODE OF ) ) ) ) ) ) ) JAMES G. FRENCH, CIVIL PROCEDURE §128.7 Defendant DATE: 03/01/2018 TIME: 01:30pm Div.: C-66 Hon: Judge Timothy J. Stafford TO THE HONORABLE JUDGE OF SAID COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Defendant hereby provides REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE §128.7 as follows: First, the requirements for service under CCP §128.7 were strictly adhered to by Defendant. Specifically, department C-66 requires a reservation code prior to filing a motion. Complying with department C-66 rules, Defendant reserved a motion date for 2/1/2018, or as soon thereafter as the matter may be considered, with reservation number 72710979. Per CCP §128.7, such motion cannot be filed until 21 days after service of the motion. However, the court (i.e. department C-66) only reserves the DEFENDANT’S REPLY TO DEFENDANT’S OPPOSITION - 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 scheduled hearing for a few days after reservation and then vacates such hearing. When the 21-day “safe harbor period” expired, my office staff contacted the court to verify the hearing date was still available and we were advised that the soonest thereafter the matter could be considered at that point was on 03/01/2018 and re-scheduled the motion date with reservation number 72737248. These facts are inapposite to the facts in the cases cited by Plaintiff (i.e. Galleria Plus Inc. V Hanmi Bank (2009) 179 CA 4" 535; Hart v Avetoom (2002) 95 CA 4" 410) because the matter was not dismissed prior to the 21-day timeframe and the notice of motion did indicate a specific date, department and time for the hearing to be heard (albeit rescheduled to a future date due to court policy and procedure) . Second, the declarations by the below signed counsel submitted with the pre-filing “notice motion” and the motion eventually filed, did not print properly and the date of signature was omitted in error. A true and correct copy of corrected declarations are attached hereto as Exhibits “A” and B” and to the extent necessary, Defendant requests that such corrected declarations be accepted “nunc pro tunc” and/or the below signed attorney can testify in court on the hearing date as to the facts outlined in said declarations. ael W. Collins, Esq. ttorney for Defendant I declare under penalty of perjury that the foregoing reply is true and correct. Executed this 2/22/18//at nta Ana, California. Dated: 2/22/2018 Mich NA Collins Attgrnéy for Defendant DEFENDANT'S REPLY TO DEFENDANT'S OPPOSITION - 2 Exhibit "A" 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DECLARATION OF MICHAEL W. COLLINS I, Michael W. Collins hereby declares as follows: 1. I am an attorney at law duly admitted to practice before all the courts of the State of California and the attorney of record herein for Defendant James G. French. 2. If called to testify I could and would competently testify as to the matters contained within this declaration. 3. Plaintiff WESCOM CENTRAL CREDIT UNION through their attorneys filed an action for breach of agreement, Open Book Account, and Account Stated against Defendant on 03/03/2017. The complaint alleges, in pertinent part, that “On February 1, 1992, Defendant applied to plaintif for a credit card ... [and] on or about the same date Plaintiff approved the application and mailed defendant .... the terms and conditions for the credit card for which upon use of the credit card, Defendant agreed to be bound .... A true and correct copy of the Agreement is atached..”. A true and correct copy of the agreement attached to Plaintiff’s compiant is attached hereto as Exhibit “A”. 4. Said agreement referenced in Plaintiff’s complaint cannot be an agreement produced in 1992 because Wescom Central Credit Union did not come into existence until 2006 (See DRJN Ex. “A”) and per research conducted by the below signed counsel, the toll free “888 number” referenced in the last page of the REQUEST FOR SANCTIONS PER CCP 128.7 - 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agreement attached to Plaintiff's complaint did not exis t until 1996 either. 5. A copy of a Wescom Central Credit Union credit card agreement issued on 01/01/2015 provided by Plaintiff’s own website is the exact same as the alleged 1992 agreement at tached to Plaintiff’s complaint. A true and correct copy of that agreement is attached hereto as Exhibit “B”. 6. On its face, such agrement (Ex. “B” attached heret o), cannot be the correct agreement because Plaintiff’s complaint, in pertiennt part, alleges Defendant “on or about Octob er 13, 2013 .... defaulted in the terms, conditions, and covena nts of the Agreement”. Such agreement did not exist in 2013. 7. It is clear that Plaintiff and its attorneys have filed a document with the court in contradiction to CA Penal Code §132, CA Penal Code §134, and CA CCP §128.7. Furthermore, it i s clear that this was done intentionally as Plaintiff has used the same phony/altered document in other similar cases to illegally obtain judgment against other unsuspecting defendants (see DRJN Ex. “B¥). 8. The undersigned is an attorney located in Orange County, CA and has been practicing law for 19 years. My hourly billable rate is $450.00 per hour. 9. As a result of Plaintiff’s actions, Plaintiff James G. French has incurred and/or will incur reasonable expenses as REQUEST FOR SANCTIONS PER CCP 128.7 - $ 10 11 12 13 14 15 16 17 18 19 20 21 22 Z3 24 25 follows: Reascnable attorney’s fees of eight (8) hours for the preparation of this Motion, and Notice thereon, Declaration in support thereof, Memorandum of Points and Authorities and Support, in addition to one (1) hour of travel time and one (1) hour arguing the Motion, for a grand totally of 10 hours at $ 450 per hour or $4500.00. 10. Defendant will have further incurred court costs of $60.00 for the filing of the motion caused by the frivolous conduct of Plaintiff and its attorneys. 11. Defendant requests sanctions, in the sum of $4500.0 0 and that the court dismiss this action with prejudice. 12. The below signed attorney served Plaintiff WESCOM CENTRAL CREDIT UNION and its attorneys with a copy of this motion at least 21 days prior to filing this motion with the court as required per CCP §128.7. Having failed to timely cure said defects, this motion is being filed. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 6, 2017, at Aliso V, California. BE Michael W. Collins REQUEST FOR SANCTIONS PER CCP 128.7 - 6 Exhibit "B" 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DECLARATION OF MICHAEL W. COLLINS I, Michael W. Collins hereby declares as follows: 1. I am an attorney at law duly admitted to practice before all the courts of the State of California and the attorn ey of record herein for Defendant James G. French. 2. If called to testify I could and would competently testify as to the matters contained within this declaration. 3. Plaintiff WESCOM CENTRAL CREDIT UNION through their attorneys filed an action for breach of agreement, Open B ook Account, and Account Stated against Defendant on 03/03/2017. The complaint alleges, in pertinent part, that “On February 1, 1 992, Defendant applied to plaintif for a credit card ... [and] on or about the same date Plaintiff approved the application and mailed defendant .... the terms and conditions for the credit card for which upon use of the credit card, Defendant agreed to be bound .... A true and correct copy of the Agreement is atached..”. A true and correct copy of the agreement attached to Plaintiff’s compiant is tT hereto as Exhibit “A”. 4. Said agreement referenced in Plaintiff's complaint cannot be an agreement produced in 1992 because Wescom Central Credit Union did not come into existence until 2006 (See DRJN Ex. “A”) and per research conducted by the below signed counsel, the toll free “888 number” referenced in the last page of the REQUEST FOR SANCTIONS PER CCP 128.7 - % 10 1:) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agreement attached to Plaintiff’s complaint did not exist until 1996 either. 5. A copy of a Wescom Central Credit Union credit card agreement issued on 01/01/2015 provided by Plaintiff’s own website is the exact same as the alleged 1992 agreement attached to Plaintiff’s complaint. A true and correct copy of that agreement is attached hereto as Exhibit “B”. 6. On its face, such agrement (Ex. “B” attached hereto), cannot be the correct agreement because Plaintiff’s complaint, in pertiennt part, alleges Defendant “on or about October 13, 2013 .... defaulted in the terms, conditions, and covenants of the Agreement”. Such agreement did not exist in 2013. 7. It is clear that Plaintiff and its attorneys have filed a document with the court in contradiction to CA Penal Code §132, CA Penal Code §134, and CA CCP §128.7. Furthermore, it is clear that this was done intentionally as Plaintiff has used the same phony/altered document in other similar cases to illegally obtain judgment against other unsuspecting defendants (see DRJN Ex. “B”). 8. The undersigned is an attorney located in Orange County, CA and has been practicing law for 19 years. My hourly billable rate is $450.00 per hour. 9. As a result of Plaintiff’s actions, Plaintiff James G. French has incurred and/or will incur reasonable expenses as REQUEST FOR SANCTIONS PER CCP 128.7 - @ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 follows: Reasonable attorney’s fees of eight (8) hours for the preparation of this Motion, and Notice thereon, Declaration in support thereof, Memorandum of Points and Authorities and Support, in addition to one (1) hour of travel time and one (1) hour arguing the Motion, for a grand totally of 10 hours at $450 per hour or $4500.00. 10. Defendant will have further incurred court costs of $60.00 for the filing of the motion caused by the frivolous conduct of Plaintiff and its attorneys. 11. Defendant requests sanctions, in the sum of $4500.00 and that the court dismiss this action with prejudice. 12. The below signed attorney served Plaintiff Ho CENTRAL CREDIT UNION and its attorneys with a copy of this motion at least 21 days prior to filing this motion with the court as required per CCP §128.7. Having failed to timely cure said defects, this motion is being filed. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 19, 2018, at Aliso Vi 4 California. Pectazaygh Michael W. Collins REQUEST FOR SANCTIONS PER CCP 128.7 - {9