The clerkish error that cost me $40 bucks.
By Eileen Carry
Pacific Palisades, CA
April 9, 2009
In January 2009 I received an envelope at my mailing place at the Post Office. Inside was a legal document written and filed in court by Attorney Sara Young (state bar license 136681). Sara Young is the attorney hired or sub contracted by Infinity Insurance, the auto insurance provider of Tricia Ann Ortega, the stupid idiot driver who crashed into me at high freeway speed on Thanksgiving Day 2006.
The document filed by attorney Sara Young was titled "APPLICATION FOR ORDER DETERMINING GOOD FAITH OF SETTLEMENT OF DEFENDANT TRICIA ANN ORTEGA AS TO PLAINTIFF AND FOR ORDER DISMISSING THE CROSS COMPLAINT FOR EQUITABLE INDEMNITY AGAINST ORTEBA (sic); MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF SARA YOUNG (CCP§877.6(a)(2))". click here to download
No kidding. What a mouth full. So, I turned the first page and began to read. After I finished reading her papers and her supporting evidence, I set out to write a reply or an Opposition.
After spending many hours reading, researching, writing, editing, spell checking, proof reading and editing and writing again, all the requisite skills Sara Young is lacking, I had my opposition brief. It was titled "PLAINTIFFs OPPOSITION TO DEFENDANT ORTEGAs APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT: EXHIBITS."
I made a special trip that day to the Beverly Hills Courthouse to check with the court clerk in Department WE-X as to the proper court designation on the paper and to determine the date that the defendants Application was scheduled for hearing, as no date was indicated on the papers that I received.
The clerk is a late 30ish thin woman with long black hair. She has nary an ounce of fat on her body. By all observations, she does not wear heavy or visible makeup, and keeps herself mostly hidden at her desk at the right hand side of the Judge. When I approached her desk counter, I asked about the date of the Application. "Check the internet" was her pointed reply. Okay. So they have this stuff on the web. Then I brought my brief forward and asked her "How do I designate the court here, as "for the county of los angeles" or "for the county of los angeles-west district and do I need to put the court department here in this part?" She answered clearly that the second part was fine and no department designation required. Then she glanced at my caption. "You can't file an opposition. You have to file a Motion to Contest. This is an 877 matter. It has to be a Motion to Contest, not an opposition. You can pay the filing fee upstairs on 3." she directed. "I read 877 and an opposition is what is needed here, not a motion to contest." I stated factually. "You need to read it again. You can't file an opposition, it has to be a Motion to Contest." she said again, this time with agitated insistence. I chose not to push the point and left the court room, I mean, after all, this is the judge's clerk.
Typically, in the court process, when one party files a 'motion' or 'application', the other party writes an 'opposition' or 'response' to the motion or application. This opposition responds to the points of law and evidence in the moving papers. In this case, attorney Sara Young submitted an "application." Quite frankly, I do not know the real difference between an 'application' and a 'motion.' I think they both do the same thing.
I went home and copied my paper and re titled it to "NOTICE OF AND MOTION TO CONTEST DEFENDANT ORTEGAs APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT:EXHIBITS." click here to download. I made needed word changes within the document, specifically 'opposes' to 'contests' throughout. Then, I re-searched my research. I went to the law library and re-read CCP §877. This is part of the California Civil Code of Procedure section 877.6. This section talks about settlements between litigants where there is more than one defendant, and one defendant has a settlement and the other does not, which is the case here. The defendants are Brinks, inc and Tricia Ann Ortega.
The code says "...a nonsettling party may file a notice of motion to contest the good faith of the settlement." CCP §877.6 (a)(2). Since Attorney Sara Young, representing Tricia Ann Ortega, is the one filing the application asking the court to recognize a settlement between her and the plaintiff (that would be me), and there is no settlement with defendant Brinks, Inc, then Brinks is "a nonsettling party".
This means that BRINKS should be the one to write and file a Motion to Contest, not me. After I did my re-research, I went to court and filed the newly worded Motion to Contest. I figured the judges clerk must know better than I. After all, she works in this field and knows things. Me? My mind is concussed from these accidents, I jus' don' no' nothin.' When I arrived at court to file this motion, the clerk was pleased that her insistent direction had been followed. I told her that I re-read the code, but that it still didn't make sense to me that a response to a motion would be a motion and not an opposition. It does not cost any money to file the opposition papers. It does cost to file a motion or application. She sent me upstairs to pay the $40.00 filing fee for the Motion to Contest that she insisted was required here. I paid the fee and talked to the clerk upstairs at the filing window. She was baffled, too. She had never heard of a motion not being opposed but rather contested in this scenario. "If that motion goes without an opposition, the judge will grant it surely."
I left the court house and went back to the law library. I read several other references. I used the internet to see what other lawyer type of respondents had done. They did indeed file 'oppositions'-not 'motions to contest'. So, I decided that Judge Lisa Hart Cole's right hand clerk was wrong. I went home, got my original paper, the Opposition, and went to court and filed it upstairs at the clerks window, not with the judges clerk, who may not have accepted the paper in the second place, especially since she so adamantly refused it in the first.
I now have on file with the court two basically identical papers: one is titled "Motion to Contest" the other "Opposition" - and they both say the same thing- Attorney Sara Young did not prove or support her motion and is, at best, an incompetent lawyer. Whether the judge will look at either paper, or even understand that the redundancy is because of her clerk is not important. What is important is the lesson of learning to trust one's own understanding and judgment.
My lesson here is this: Trust your own judgment. Trusting a court clerk can be costly and a waste of time.
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