APPELLATE DIVISION OF THE
SUPERIOR COURT
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
-------------------------------------------------
Albert L.
Peia, Plaintiff/Appellant )
CASE NO. BVO26059
vs. )
Rene Lopez De
Arenosa, )
) Van Nuys Trial Court
Defendant/Respondent ) No. 03E05206
-------------------------------------------------
OR FOR
INSTRUCTIONS TO THE COURT BELOW CONSISTENT
THEREWITH.
I, Albert L.
Peia, declare under penalty of perjury as follows:
1. I am the plaintiff/appellant pro se herein and the within
Declaration and
2. While my priority remains as
it should as to the very substantial RICO action venued in the Second Circuit,
District of Connecticut, involving far more egregious wrongful and unlawful
conduct than that involved herein, plaintiff/appellant does not intend to “roll
over” in what remains of this very simple matter (although plaintiff/appellant
has substantially compromised the amount demanded to the sum-certain reduced
amount requested herein to facilitate resolution hereof).
3. On 9-29-05, having received
the subject Order of this Court, plaintiff/appellant appeared at this Court,
reviewed both the Appellate Division and Appellate Clerk’s files confirming the
absence of a (facsimile) signed order of the presiding judge, called the clerk,
Diane at Division 108 on both 9-29-05 and 9-30-05, which apparently confirmed
the absence of such a signed order. As such in
accordance with the mandate of the Appellate Division’s cited case, Adohr
Milk Farms v. Love 255 Cal.App.2d 366, 372 (1967), the
(defective/void/nonappealable) minute order of the court below dismissing the
case should be REVERSED.
4. This
declaration, exhibits (immediately appended hereto with index and numbered
1-50), and Memorandum of Points and Authorities address (and was subsumed in)
the response to the Order to Show Cause returnable in the court below on
6-7-05, and in Support of a Motion for Reconsideration of the Summary
Judgment Motion in Light of the Dismissal of the Case
on the Return Date for Said
Summary
Judgment Motion, the Reversal of Same on Appeal on Procedural/Substantive Due
Process Grounds, a Clarification of the Record Apparently Misconstrued By the
Court Below, and in support of a REVERSAL of the Order appealed from in
accordance with the mandate of the Appellate Division’s cited case, Adohr
Milk Farms v. Love, 255 Cal.App.2d 366, 372 (1967).
5.
Plaintiff appeared for trial in the matter before Judge Keosian at which time
plaintiff and defendant Ojeda ultimately arrived at a settlement as to Mr.
Ojeda only, for an amount of one half ($7,500) the sum certain amount
(previously determined by Judge Petersen at a prove-up hearing). The cause of
action in that case (as to Mr. Ojeda) was tortious interference with contract
(other defendant dismissed at time of prior prove-up/ with prejudice), the
demurrer to which had been overruled with plaintiff filed opposition. I
subsequently offered, without
expiration
date, to defendant DeArenosa (this case) resolution of the within case for the
same $7,500 amount (in good faith and in light of my representation to the Appellate
Division, this Court, that a pro tanto reduction would obtain from any
recovery in said matter, although a different cause of action). Said offer has
not been withdrawn and is hereby stipulated to herein (regardless of whether
the separate sum certain is entered by summary judgment/trial/sanction and
regardless of punitive damages).
6. The Verified Complaint is an action sounding in fraud and deceit
The complaint in the instant matter is a
verified Complaint sounding in fraud and deceit, the averments of which are set
forth under penalty of perjury. The subject defendant DeArenosa’s answer and
defenses were stricken. The clearly documented crime of perjury for which
plaintiff sought a criminal referral for criminal prosecution of said perjury,
gave rise to the instant causes of action which arose in the case presently
before Honorable Gregory Keosian, Judge, Superior Court of California, case
#02E07192.
7.
Plaintiff
moved in the court of Judge Keosian for an order to transfer and/or consolidate
the instant case with that case number
02E07 192. Said jointly captioned (and filed in both subject courts pursuant to
court rules) motion was denied by Judge Keosian on 9-30-04 who ruled that there
were no facts or causes of action common to both cases, Judicial Notice of said
ruling being respectfully requested herein [Exhibits at page 39, Minute
Order of Ruling of Honorable Gregory Keosian Dated 9-30-03].
8. Plaintiff had previously requested Judicial
Notice of case # 02E07192 before Judge Keosian in the dual-captioned motion for
transfer and/or consolidation concurrently filed in this case #03E05206 before
the instant court [Exhibits at page 49, Dual-captioned motion for transfer and/or
consolidation-Cover Page].
9.
Plaintiff
had filed a motion for Summary Judgment which was carried to December 11, 2003,
at which time this court denied same dismissing without prejudice the present
case, stating, despite Judge Keosian’s prior and contrary ruling, that this
case was substantively the same as and being resolved in case #02E071 92. [Exhibits at page 50, Minute Order].
10.
In fact,
there were and are no causes of action for perjury, but rather the perjurious
declaration of defendant DeArenosa being the documented fact of the materially
false representation giving rise to the causes of action for fraud and deceit.
11.
Indeed,
plaintiff was ordered to show cause why the complaint should not be dismissed
for failure to state a cause of action (for perjury). Plaintiff fully briefed
pursuant to said OSC and appeared before Judge Kaplan elucidating to the court
in accordance with Witkin, the only causes of action for fraud and deceit as
clearly set forth in the complaint, which causes of action were properly
sustained and for which Judicial Notice is also respectfully requested herein [Exhibits
at page 21-27, Memo Only- Response/Memorandum of Law OSC 5-15-04].
12.
Plaintiff
brought the instant action by way of verified Complaint sounding in fraud and
deceit in the Superior Court of the State of California, County of Los Angeles,
(with a Demand for Damages in the amount of $35,000, inclusive of
punitive damages), filed on September 26, 2002 [Exhibits at page 2-9,
Plaintiff’s Verified Complaint with Exhibits Incorporated by Reference
Thereto]. The Civil Case Cover Sheet indicates two causes of action; viz., fraud
and deceit [Exhibits at page 1, Civil Case Cover Sheet].
13.
Defendant DeArenosa’s Answer had been
properly stricken for having failed to respond to an Order to Show Cause. [
Minute Order of J. Kaplan
Striking Answer/Defenses].
14.
Plaintiff’s
Notice and Response to Order to Show Cause/Stipulation on a
subsequent OSC returnable 5-29-05 preceded
transfer to the instant court of
limited
jurisdiction [Exhibits at pages 28-30, Response OSC/Stipulation].
15. Plaintiff upon review of the
Authorities prior to drafting and filing the instant Verified Complaint posited
jurisdiction as appropriate in light of the sum certain amount of money damage ($15,000,
after prove-up hearing), other compensatory damages, and punitive damages
(given the intentional/illegal nature of the cause, an amount within the
“substantive guideline” for punitive damages-less than “one times” compensatory
damages) for a total of $35,000. Plaintiff at all times and remains
primarily concerned with the sum certain amount of $15,000 as set forth in the
Verified Complaint as previously determined at the prove-up hearing before
Judge Petersen on 5-8-01 (in what is now case #02E07192) and stipulated to the
transfer of the case to one of limited jurisdiction upon order to show cause
concerning same after Judge Kaplan sustained the causes of action for fraud and
deceit on briefing by plaintiff pursuant to a prior order to show cause by J.
Kaplan [Exhibits at pages 21-27,
Response OSC 5-15-04].
perjury/fraud
committed by defendant, DeArenosa, and plaintiff had sought the
criminal
referral of same. While the gravamen of the causes of action set forth in
the instant verified complaint is the crime of peijury committed by
defendant DeArenosa, the same is subsumed in the civil causes of action
sounding in fraud and deceit as set forth in plaintiffs verified complaint and
well recognized in the State of California as set forth in plaintiffs memorandum
of points and authorities pursuant to prior order to show cause by Judge Kaplan
sustained said causes of action before transferring to the court (of limited
jurisdiction)below upon stipulation by plaintifl7appellant [Exhibits at
pages 21-27,Response OSC
5-15-04]. A money
judgment in the amount of $15,000 was entered in plaintiff’s favor on 5-8-01 after a prove-up hearing on said date [Exhibits
at page 2-9, Plaintiff’s Verified Complaint without incorporated
Exhibits].
20.
Indeed, plaintiff was ordered to show cause why the complaint should not
be dismissed for failure to state a cause of action (for perjury). Plaintiff
fully briefed pursuant to said OSC and appeared before Judge Kaplan elucidating
to the court in accordance with Witkin, the only causes of action for fraud and
deceit as clearly set forth in the complaint, which causes of action were
properly sustained and for which Judicial Notice is also respectfully requested
herein.
LEGAL ARGUMENT – THE LAW
Point I.
Judicial Notice Of Prior Decision/Ruling of Honorable Gregory Keosian Dated
9-30-03, as well as that of Judge Kaplan on 5-15-03 wherein plaintiff’s causes
of action for fraud and deceit were sustained, Along With the Doctrine of Res
Judicata (collateral estoppel,
by record or otherwise), Preclude Dismissing the present case, since this case
is not substantively the same as and resolved in case #02E07192, and that it
was not a cause of action for perjury but for fraud and deceit.
In
accordance with Witkin, the only causes of action for fraud and deceit as
clearly set forth in the complaint ,which causes of action were properly
sustained and for which Judicial Notice is appropriate as a matter of law.
Additionally, plaintiff had moved in the court of Judge Keosian for an order to
transfer and/or consolidate the instant case before this court, with that case
number O2EO7l92 before Judge Keosian. Said jointly captioned (and filed in both
subject courts pursuant to court rules) motion was denied by Judge Keosian on
9-30-04 who ruled that there were no facts or causes of action common to both
cases, Judicial Notice of said ruling is also appropriate herein [ Notice of
Related Cases/Motion to Transfer/Consolidate Ruling].
CCP §437e(b) codifies matters judicially noticed.
Ev.C. §452(d) provides that a court may take judicial
notice of of the records In the pending action , or In any other action pending in the same court or any other court of
record In the u.s..
[Though factually distinguishable from the
instant case, see generally, ie., Bistawros v. Greenberg, 189 CA3rd 189,
192, 234 CR 377,3 78 (1987)].
Point II.
The Answer and Defenses Of Defendant DeArenosa Were Stricken And Summary
Judgment As Filed and Requested By Plaintiff Should Be Entered As A Matter Of
Law.
The following Memorandum was filed pursuant
to the OSC by Judge Kaplan who thereupon sustained the causes of action for
fraud and deceit as set forth in plaintiff’s verified complaint and which is
apposite in pertinent part herein (plaintiffs summary judgment motion was
denied owing to technical deficiency in failing to use the two column format in
the statement of uncontroverted facts which defect was cured and refiled after
transfer to court of limited jurisdiction, the instant court):
____________________________________
MEMORANDUM OF LAW IN RESPONSE Hearing Date: 5-15-03
TO ORDER TO SHOW CAUSE; Time: 9:00 A.M.
POINTS AND AUTHORITIES. Courtroom: “NWB”
FACTS
The instant case arises, from the subject
clear, incontrovertible crime(s) of perjury/fraud by defendant,DeArenosa, and
also, afortiori, mandate
the criminal referral of same forthwith. Plaintiffs Separate Supplemental
Statement of Uncontroverted Facts is appended hereto and jncorporated herein by
reference thereto. While the gravamen of the causes of action set forth in the
instant complaint is the crime of peijury committed by defendant DeArenosa, the
same is subsumed in the civil causes of action of fraud and deceit set forth in
plaintiff’s verified complaint and well recognized in the state of California
as set forth infra.
THE LAW
Introduction
A
motion for summary judgment provides a procedure for terminating without trial
actions in which “there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter
of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct.2548, 2554(1986). Moreover, a motion
for summary judgment “pierces” the pleadings and puts the opponent to the test
of affirmatively coming forward with sufficient evidence for its claims or
defenses to create a genuine issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317,
325, 106 S.Ct. 2548,2554(1986). The nonmovant must produce “significantly
probative” evidence to defeat the summary judgment motion. It is not enough for
the nonmovant to rely on mere allegations or denials of the movant’S pleading,
United States v. Shumway, 199 F3rd 1093, 1104(9th Cir. 1999), or to present unsworn documents or papers
containing nothing more that the nonmovant’s speculations. Slowiak v.
Land O’Lakes,Inc. 987 F.2nd 1293,1295-1297(7th
Cir.1993)(ie., unexplained contradictory affidavits, etc.).
In the case sub
judice, defendant DeArenosa’s Answer has properly been stricken (having
been accorded an opportunity to respond and failing to do so) leaving barren
and without defense, the blatent fraud and deceit perpetrated herein. Indeed,
it is respectfully submitted that as such, in light of the Summary Judgment
Motion by Plaintiff concurrently pending herein, the issue discussed
hereinafter is rendered moot, and Judgment should enter in plaintiff’s favor as
a matter of law.
Policy Considerations
Sanctions (ie., judgment) are appropriate as to defendant DeArenosa
owing to his prior inconsistent, perjurious declaration. See generally, Acrotube.
Inc. v. J.K. Fin’l Group. Inc., 653 F.Supp.
470(ND GA 1987); Van T.Junkins & Assoc. v. United States
Indus., Inc., 736 F2d 656(11th Cir.1984). Moreover, policy
considerations (against perjury in the legal process) mandate the entry of summary
judgment herein, particularly where busy courts and movants are (through said
bad faith denials predicated on perjury) drawn into the lengthy process of
litigation thereby. Actual deception is not necessary to prove willful
deception of a court and it is sufficient that the offending attorney knowingly
presents a false statement which tends to mislead the court, see, i.e., Davis v. State Bar, 33 Cal.
3d 231 (1983). Indeed, as in the instant case, the representation to a court of
facts known to be false is presumed intentional and is a violation of the
attorney’s duties as an officer of the court, Jackson v. State Bar, 23
Cal.3d 509 (1979); warranting discipline, see Bus. & Prof. Code, § 6068,
subd.(d); Di Sabatino v. State Bar, 27
Cal.3d 159 (1980); and constituting moral turpitude, Bach v. State Bar, 43 CaI.3d 848 (1987); even warranting disbarment
for forgery and perjury, even in the absence of injury, Hizar v. State Bar, 20 C2d 223 (1942), although plaintiff has indeed
been injured by defendant DeArenosa’s fraud/deceit/perjury. Moreover, to
“reward” a purported officer of the court for his fraud and deceit (and
perjury) herein, would undermine the very foundation of legal proceedings as
the instant case encouraging “non-lawyer” participants, parties, witnesses, to
similarly lie, perjure themselves, and deceive and defraud with similar
expected impunity. As such, consistent with and as appropriately requested in
the Summary Judgment Motion of Plaintiff for the sum certain amount of $15,000
concurrent herewith, Judgment should enter in plaintiff’s favor as a matter of
law (minus pro tanto $7,500 reduction as stipulated by plaintiff
herein).
Plaintiff’s VerifiedComplaint
Has Averred Causes of Action Sounding in Fraud and
Deceit and Judgment for the
Sum Certain Amount Requested by Plaintiff Should be
Entered as a Matter of Law.
It is axiomatic and a well
settled rule of law that,
‘To recover on a claim for
misrepresentation it is not always necessary to prove that the
misrepresentation was made directly to the person who claims to have been
injured as lon~ as injured party is able to prove that damages resulted from
the deceit.’ 37 Am Jur2 §293.
Witkin, California Pleading §668 at 123
states,
‘The elements of the tort
cause of action for damages for deceit have been listed in various ways, the
differences being accounted for usually by the manner in which certain closely
connected items are combined in a single phrase. Apart from these differences,
the authorities are in agreement as to the following essential allegations:
(1)representatlon; (2)falsity;
(3)knowledge of falsity; (4)intent to deceive; (5)reliance and resulting
damage...’[Citations OmittedJ.
In the present case, the
foregoing requisite elements for the causes of action for
(fraud and) deceit are clearly
set forth in
(1) Plaintiff’s Verified Complaint, COUNTS
ONE (fraud) and THREE (deceit),
respectively;
(2) Plaintiff’s Motion for Summary Judgment
including Plaintiffs Declaration in Support thereof and Exhibits thereto as
well as the Separate Statement of Uncontroverted Facts; and,
(3) Plaintiffs Response to the Order to Show
Cause including the within Memorandum of Points and Authorities, Plaintiff’s
Declaration in Support thereof, and Plaintiffs Supplemental Separate Statement
of Uncontroverted facts, all of which are incorporated herein by reference
thereto.
As such, it is respectfully submitted that
judgment in the sum certain amount of $15,000 should enter in plaintiffs favor
as a matter of law (minus pro tanto $7,500 reduction as stipulated by
plaintiff herein).
Sanctions
(ie., judgment) are appropriate as to
defendant DeArenosa owing to his prior inconsistent, perjurious declaration.
See generally, Acrotube. Inc. v. J.K. Fin’l Group.
Inc., 653 F.Supp. 470(ND GA 1987); Van T. Junkins &
Assoc. v. United States Indus., Inc. 736 F2d
656(11th Cir.1984).
Moreover, policy considerations (against perjury in the legal process) mandate
the entry of summary judgment herein, particularly where busy courts and
movants are (through said bad faith denials predicated on perjury) drawn into
the lengthy process of litigation thereby. Actual deception is not necessary to
prove willful deception of a court and it is sufficient that the offending
attorney knowingly presents a false statement which tends to mislead the court,
see, i.e., Davis v. State Bar, 33 Cal. 3d 231 (1q83). Indeed, as in the
instant case, the representation to a court of facts known to be false is
presumed intentional and is a violation of the attorney’s duties as an officer
of the court, Jackson v. State Bar, 23 Cal.3d 509(1979); warranting
discipline, see Bus. & Prof. Code, § 6068, subd.(d); Di Sabatino v. State Bar, 27 Cal.3d 159
(1980); and constituting moral turpitude. Bach v. State Bar, 43 Cal.3d
848 (1987); even warranting disbarment for forgery and perjury, even in the
absence of injury, Hizar v. State Bar, 20 C2d 223 (1942), although
plaintiff has indeed been injured by defendant DeArenosa’s
fraud/deceit/Perjury. Moreover, as set forth hereinabove, defendant DeArenosa
committed fraud and deceit by filing with the Superior Court of California,
County of Los Angeles, a pei)urious declaration that was intentionally and
materially false in light of the diligence requirement of CCP Section 473 under
-California law, and made with the intention of inducing reliance, was relied
upon by the presiding judge Petersen of defendant Superior Court of the State
of California on 8-01-01 in setting aside the judgment entered in plaintiff’s
favor after the prove-up hearing on 5-8-01 and after dismissal by plaintiff of
the remaining co-defendant (prejudice to plaintiff and foreseeably and
purposefully damaging plaintiff), and known by defendant DeArenosa to be false.
As such, plaintiff has been damaged as a direct consequence of said fraud and
deceit and, in light of Judge Keosian’s 9-30-04 ruling that there were no facts
or causes of action common to both cases, Judicial Notice of said ruling being
respectfully requested herein. j. marcus’ minute order belies the previously
articulated and formerly written misguided and erroneous substance of his
tentative and bench ruling inasmuch as there were no causes of action for
perjury, but rather the perjurious declaration of defendant DeArenosa being the
documented fact of the materially false representation giving rise to the
causes of action for fraud and deceit. Indeed, plaintiff was ordered to show
cause why the complaint should not be dismissed for failure to state a cause of
action (for perjury). Plaintiff fully briefed pursuant to said OSC and appeared
before Judge Kaplan illustrating to the court in accordance with Witkin, the
only causes of action for fraud and deceit as clearly set forth in the
complaint, which causes of action were properly sustained and for which
Judicial Notice is also respectfully requested herein.
CONCLUSION
For all of the foregoing reasons and in the
paramount judicial interests of truth and justice, it is respectfully submitted
that judgment in the sum certain amount of $15,000 should enter in plaintiffs
favor as a matter of law (minus pro tanto $7,500 reduction as stipulated
by plaintiff herein).
Respectfully
Submitted,
Dated: , 2005
____________________________________
REQUEST
FOR JUDICIAL NOTICE
Judicial Notice of Judge Keosian’s 9-30-04
ruling (case number 02E07 192) that there were no facts or causes of action
common to both cases is respectfully requested herein, along with all rulings,
orders to show cause and plaintiff’s responses thereto, including that of
5-15-03 before Judge Kaplan (this case before plaintiff’s stipulation to
transfer to case of limited jurisdiction now before J. Greg Marcus) wherein
plaintiff’s causes of action for fraud and deceit were sustained.
Dated: , 2005
____________________________________
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated: Signed:
_________________________________________
Albert L. Peia, Plaintiff/Appellant Pro
Se
CERTIFICATION OF SERVICE
I, Albert L. Peia, hereby certify that a copy of declaration, exhibits, and Memorandum of Points and Authorities, have been served by regular first class U.S. mail, postage prepaid, on this _____ day of , 2005, upon the following:
Rene Lopez De Arenosa
7542 Lankershim Blvd., Suite 2
North Hollywood, CA 91605-2804
STATE OF CALIFORNIA
COMMISSION ON JUDICIAL
PERFORMANCE
455 Golden Gate Avenue, Suite
14400
San Francisco, California 94102
Dated: -05 Signed: _____________________________
Albert L.
Peia, Pro Se