Motions Smotions: Oppose or Contest

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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Incompetence Rules the Day

I was in civil court this morning in Beverly Hills, CA in Department We-X. The presiding judge is a woman named Lisa Hart Cole. She is about 5'9", 190 pounds with less than shoulder length brown hair, that is kept in a full hair dryer blown style. She wears some makeup, but most notable is her scant application of lipstick. She wears glasses and a black robe. She is pleasant in appearance and demeanor in the court. This morning she did not take the bench until about 9:45am or so. This is unusual as she is usually on the bench at 9:00 am, or shortly thereafter. The attorney's around me were grumbling at her tardiness, forgetting or just not considering that she might be in her chambers doing some last minute reading or fact checking that could affect their case.

My previous dips into her courtroom gave me an opportunity to listen to her clerks and to her treatment of counsel and rulings in the matters before her. I learned that her clerks attempt to keep the order and to keep her on schedule and clear on the record. She seemed fair in terms of executing and serving the law in the matters presented. I have heard her make good suggestions to counsel to assist them when they get stuck. She basically struck me as an instrument of fair play. A good referee, if you will.

So, this is what I expected from her today. A fair ruling based on the valid evidence presented and governing law in the matter at bar. But that is not what I got. What I got instead was an unfavorable ruling based on a last minute piece of fraudulent evidence presented by the moving party. The judge did not care that the document was fraudulent, she did not care that the defendants presented really bad evidence in the first place in their motion or that I had successfully held up my burden, as required under the law, to prove no good faith settlement. It was disappointing to say the least. But then again, I am not a 'duly licensed' attorney as defendant attorney Sara Young claims to be.

In 2006 I was rear ended in a high speed freeway crash by a stupid idiot driver named Tricia Ann Ortega. Little Tricia is in her 30's, lives at home with her parents still, and drives a little Kia car. Little Tricia was speeding, not paying attention, possibly drinking, and clearly driving faster than her guardian angel could fly. This happened on Thanksgiving Day. Because she was speeding and not paying attention to the road, she crashed into the rear of the car that I was in, totaling the car and injuring me. She lied to the highway patrol saying she was going the speed limit of 65 mph. Highly doubtful, given the freeway conditions that day and the cruising speed of our own car. The traffic was light, lanes were wide open. Traffic was moving along at about 75 to 80 miles in all lanes. The car I was in had slowed and moved to the right lanes to make our exit, which was just a short distance away. As we approached the exit, there was a massive sea of red tail lights up ahead, so the car speed was reduced and we were preparing to stop. And out of nowhere comes little Tricia in her speeding little car. She smacks into the back end of the car causing a hit the likes of which I have never experienced before. I was hurt by this. My neck and back were injured worse and my head was hit. I went by ambulance to a nearby trauma center. And have been recovering ever since.

I had a lawyer, Barry Drucker located in Beverly Hills, CA. He is the lawyer I had working on a previous 2006 injury accident with BRINKS inc. Barry hired a guy named Jason Pollack, located in Westwood CA. Jason was the attorney working on this particular injury accident claim. Jason entered into a settlement with Tricia's insurance carrier, Infinity Insurance. He did this in June without my knowledge permission or consent. He settled the case for $15,000. My trauma center bill alone was, according to Infinity Insurance, $37,000. The attorney for Infinity, Sara Young, filed a motion or application to have the settlement recognised by the court. She included in her application some documents as evidence to support her claim. The documents that she submitted did not prove a settlement or settlement agreement that she was asking the court to determine. So, I wrote an opposition brief pointing all of this out to the court.

You can read attorney Sara Young's brief by clicking here.
You can read my brief by clicking here.

Basically, her evidence comprised of documents that did not support a settlement. One document, a declaration by Tricia Ann Ortega, appears to have been created and signed by Jason Pollack. Sara Young said that I had submitted medical bills "...in excess of $23,000" and yet she did not include the supporting bills. Instead, she submitted my HIPAA federally protected medical treatment records from the trauma center. I wondered how my blood type proved medical costs? Sara Young was telling the court that there was a settlement, and that it was in "July 2008" but she did not say when exactly nor did she provide the settlement agreement or a copy of the check or anything that remotely supported her position. I wrote a brief saying all of this to the court.

So today, Sara Young, an attorney with FRANCINE B. KELLEY & ASSOCIATES, comes into court waiving a document that she claims is the settlement agreement. I looked at the document, and it was a document that my attorney, Jason Pollack, had given to me in August 2008 to sign. It was a release for little Tricia from an accident that happend in January 2006 by Brinks, Inc. I pointed out the error and was told by my attorney Barry Drucker to sign it anyway. So I did. Then, Jason Pollack changed and modified the document after I had signed it. And, as my research has confirmed, along with legal opinions from several lawyers, including a few Scholarly lawyers from UCLA and Loyala, the document is void in the eyes of the law because it is now a fraudulently based document. The lesson here is this: don't sign anything first. And, after you sign it, mark it "Original" and make a copy for your lawyer. They do not need originals to work from.

Even though I was legally correct and Sara Young was a legal trainwreck in her brief, Judge Lisa Hart Cole ruled in favor of attorney Sara Young.

I contacted Infinity Insurance today. I asked them to look at attorney Sara Young's incompetently prepared and presented brief. I asked them to look at my reply. I asked them if that is how they wanted to be represented, by total incompetence.

Granted, that incompetence worked in court. So my lessons are these: the truth does not matter. The only lawyer in the room, even a bad one, will win. A good lie is better than a bad truth.

And the truth here is that incompetence most certainly ruled this day.