I. INTRODUCTION
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 perjury giving rise
to the instant causes of action arose in the case presently before Honorable Gregory Keosian,
Judge, Superior Court of California, case #02E07192 and plaintiff moved in the court of
Judge Keosian for an order to transfer and/or consolidate the instant case before j. marcus
with that case number 02E07192. 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 [CT Minute Order of
Decision/Ruling of Honorable
Gregory
Keosian Dated 9-30-03 ]. 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 j. marcus below [CT Dual-
captioned motion for transfer and/or consolidation ].
Plaintiff had also filed a motion for Summary Judgment which was carried to December
11, 2003, at which time j. marcus committed clear error in 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 #02E07192. 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 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 [CT Response/Memorandum of Law OSC 5-15-04 ].
Standard of
Review
The court below exhibited manifest disregard of the law and committed clear error thereby.
The ruling of dismissal by j. marcus constituted clear
error and should be REVERSED.
A Criminal
Referral Of Defendant DeArenosa’ s Documented
Crime of Perjury
Should Have Issued From The Court Below and
Now The Present Court Forthwith.
A.
Procedural History
Plaintiff
has 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 [CT Plaintiff’s Verified
Complaint with Exhibits Incorporated by
Reference Thereto].
The Civil Case Cover Sheet indicates two causes of action;
viz., fraud and deceit [CT Civil
Case Cover Sheet].
Defendant DeArenosa’s Answer has been
properly stricken for having failed to
respond to an Order to Show Cause.
[CT Minute Order of J. Kaplan
Striking
Answer/Defenses]. Plaintiff’s Notice and Response to Order to
Show Cause/Stipulation
preceded transfer to the court
below of limited jurisdiction[CT Response
OSC/Stipulation].
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 [CT Response OSC 5-15-04].
De Arenosa’s partner in crime, Ojeda, (both
purportedly “lawyers”/prevaricators
who
should be disbarred) appeared to be attempting to avoid being served with
process.
(Exhibits included the process
manager at Personal Attorney Service having indicated that
upon calling Ojeda’s new office,
they were refused the address of same by employee(s)
thereof; as well as the due
diligence averment from the Office of the Sheriff concerning
their unsuccessful attempts to
effect service of process on defendant Ojeda) [CT Service].
Local rules (viz., LA SUP.CT. Rule
7.10(f)(1) provide for the assignment of related
cases to the same judge, viz.,
Judge Keosian, where as here there is likely to be
substantial duplication of labor
if heard by different judges and plaintiff moved to
transfer/consolidate[CT Motion]. Indeed,
defendant Ojeda had been served in that case and
while appearing to be attempting
in bad faith to avoid service herein, the same might be
facilitated and accomplished by
acknowledgement or stipulation therein.
In light of the summary judgment motion (which was re-filed
with technical deficiency
concerning the format of statement
of uncontroverted facts cured), the
problem concerning Ojeda’s apparent
bad faith evasion of service would have been
rendered moot by entry of
judgment, and the pendancy of the action in Judge Keosian’s
court against ojeda only.
Plaintiff had also filed a motion for Summary Judgment which was carried to
December 11, 2003, at which time j. marcus committed clear error in 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
#02E07192. 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 [CT Response/Memorandum/Points/Auth. OSC 5-15-04 ].
The ruling of dismissal by j. marcus constituted clear
error and should be REVERSED.
The instant case arises from the subject clear, incontrovertible crime(s) of perjury/fraud
committed by defendant, DeArenosa, and also, a fortiori, mandate the criminal referral of
same forthwith. While the gravamen of the causes of action set forth in the instant verified
complaint is the crime of perjury committed by defendant DeArenosa, the same is subsumed
in the civil causes of action sounding in fraud and deceit as set forth in plaintiff’s verified
complaint and well recognized in the State of California as set forth in plaintiff’s
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 plaintiff/appellant [CT 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 proveup hearing on said date [CT Plaintiff’s Verified Complaint with Exhibits]. A
declaration under penalty of perjury was submitted by defendant DeArenosa to the state court
entering said judgment after prove-up hearing in an attempt to set said money judgment
aside[CT Plaintiff’s Verified Complaint with Exhibits] Defendant DeArenosa was aware
that said declaration was false as indicated in his letter dated 2-21-01 acknowledging receipt
of Request to Enter Default/Default Judgment (with
declaration)[CT Plaintiff’s
Verified
Complaint with Exhibits]. Said declaration of defendant DeArenosa dated 6-8-01
perjuriously and falsely denied having received same [CT Plaintiff’s
Verified Complaint
with Exhibits]. Said declaration 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 prove-up hearing on 5-8-01,, and known by defendant DeArenosa to be
false. Plaintiff was further prejudiced inasmuch as plaintiff dismissed in accordance with
court rules as to co-conspirator defendant Robles for an amount approximating plaintiff’s
costs incurred in bringing a then pending discovery motion. In the aforesaid matter
underlying defendant DeArenosa’s crime of perjury, he had previously been sanctioned by
the Court for failing to appear and respond to a prior Order to Show Cause. In the instant
case, defendant DeArenosa offered no response to the Order to Show Cause in his “answer”
(sic) and upon being queried by the Court as to whether he understood what having his
answer striken meant, he, defendant DeArenosa responded affirmatively, “yes”, without
either objection or further discussion (despite being accorded the opportunity for same at that
time – probably, and I am inferring beyond the scope of the declaration/certification and not
a part thereof, thankful for the Court’s mercy in not having him arrested for his crime of
perjury). I filed opposition to and opposed at the hearing, DeArenosa’s motion for reconsi-
deration of the Court’s Ruling striking his answer and defenses which Judge Kaplan denied.
and disbarred.
Plaintiff had also filed a motion for Summary Judgment which was carried to
December 11, 2003, at which time j. marcus committed clear error in 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
#02E07192. 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 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.
The ruling of dismissal by j. marcus constituted clear
error and should be REVERSED.
III.
ARGUMENT
Point I. Judicial Notice Of
Prior Decision/Ruling of Honorable
Gregory Keosian
Dated 9-30-03, as well as that of Judge Kaplan
on
sustained, Along With the Doctrine of Res
Judicata (collateral estoppel,
by record or otherwise), Preclude J. Marcus’ Clear Error In
Dismissing
the present case, based erroneously on the
specious proposition, contrary
to law,
that this case was substantively the same as and being resolved in
case
#02E07192, and that it was 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 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 j. marcus , with that case number 02E07192 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 [CT Notice of Related
Cases/Motion to
Transfer/Consolidate/Ruling].
CCP §437c(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
377,378(1987)].
As such, it is clear that the ruling of dismissal by j.
marcus being contrary to the
aforesaid record, rulings, orders constituted clear error
and should be REVERSED.
Point II. The Answer and
Defenses Of Defendant DeArenosa Were
Stricken And Summary Judgment As Filed
and Requested By
Plaintiff Should Have Been 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 (plaintiff’s 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, j. marcus’ 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, a fortiori, mandate the criminal
referral of same forthwith.
Plaintiff’s Separate Supplemental Statement of
Uncontroverted Facts is appended
hereto and incorporated herein by reference thereto.
While the gravamen of the causes
of action set forth in the instant complaint is the crime
of perjury 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 allega-
tions 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.
Sanctions (including criminal prosecution, in addition to 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 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 in-
deed 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.
Plaintiff’s Verified Complaint 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 long as injured party is able to prove that
damages resulted from the deceit.’ 37 Am Jur 2nd § 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)representation; (2)falsity;
(3)knowledge of falsity; (4)intent to deceive; (5)reliance and resulting
damage…’[Citations Omitted].
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
Plaintiff’s Declaration in
Support thereof and Exhibits
thereto as well as the Separate Statement of Uncontroverted
Facts; and,
(3) Plaintiff’s Response to the Order to Show Cause including
the within Memorandum
of Points and Authorities,
Plaintiff’s Declaration in Support thereof, and Plaintiff’s
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 plaintiff’s favor as a matter of law.
_______________________________________________________________
Point
III. A Criminal Referral Of Defendant
DeArenosa’ s Documented
Crime of Perjury Should Have Issued From
The Court Below and
Now The Present Court Forthwith.
Sanctions (including criminal prosecution, in addition to 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 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, 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,
It is clear from the foregoing that plaintiff brought this action for
damages in the amount
of $35,000,(inclusive of the
sum-certain amount of $15,000). Moreover, as set forth
hereinabove, defendant DeArenosa
committed fraud and deceit by filing with the Superior
Court of California, County of Los
Angeles, a perjurious 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. Plaintiff had also filed a motion for Summary Judgment
which was carried to December 11, 2003, at which time j. marcus committed clear error
in dismissing without prejudice the present case .
Such ruling constituted clear error and should be REVERSED.
A Criminal
Referral Of Defendant DeArenosa’ s Documented
Crime of Perjury
Should Have Issued From The Court Below and
Now The Present Court Forthwith.
Respectfully Submitted,
________________________________
Albert L. Peia, Pro Se
Dated: December 7, 2004
V. REQUEST
FOR JUDICIAL NOTICE
Judicial Notice of Judge Keosian’s 9-30-04 ruling 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 wherein plaintiff’s causes
of action for fraud and deceit were sustained.
________________________________
Albert L. Peia, Pro
Se
Dated: December 7, 2004