How Do I File My Own Divorce In Los Angeles, California?
January 15, 2012 by Dean McAdams · Leave a Comment
The Law, Paralegals, and Divorce
Let’s just get right to the fastest and easiest ways to get divorced in Los Angeles. In fact, let’s just get your divorce started right now.
In the State of California there are four main types of dissolution of marriage:
-Summary Dissolution: For people married less than five years with no children and no real property.
-Default Divorce: When the other side does not respond to your petition. I do a lot of these.
-Uncontested Divorce: For two reasonable people working things out. My favorite
-The Litigated Divorce: Expensive and time consuming, usually done with lawyers on both sides, however paralegals are doing more and more of these.
First, let’s get your divorce started. Just fill out these three really easy California Judicial Council Forms and pay $395 to the court clerk to begin:
1 .FL-100 Petition for Dissolution of Marriage
2. FL-110 Summons and
3. FAM-020 Los Angeles County Family Law Cover Sheet.
4. You will also need the all important $395.00 Los Angeles Superior Court Filing Fee. Or you can use the FW-001 fee waiver forms.
Make two copies of everything and take it to the clerk. The clerk will stamp your documents with your case number.
Now you have someone else personally serve it. Remember, you can never serve or give papers to the other side because you are a party. You must have a third party, friend, or legal vendor serve and mail your soon-to-be ex spouse with all papers and documents in your divorce.
If you are going the all sensible uncontested route and your ex is going to sign off on everything then she does not need to be personally served. Simply have your server fill out the FL-113 Notice of Acknowledgement and Receipt and have your ex mail it back to you. Then have your server fill out the FL-115 Proof of Service. File both of these and your six month waiting period begins.
Sample Motion Form – Ex Parte Application for Order to Extend Time
January 13, 2012 by Dean McAdams · Leave a Comment
Sample ex parte application to extend time (general form) — Application
[Attorney name, address]
State Bar Number [ ________ ]
Telephone [ ________ ]
Attorneys for Plaintiff/Defendant, [ ________ ]
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF [ ________ ]
[plaintiff's name])CASE NO.: [ ________ ])Plaintiff,)EX PARTE APPLICATION FOR )ORDER EXTENDING TIME TO)
___;)MEMORANDUM OF POINTS)AND AUTHORITIES)vs.)[Code Civ. Proc. §1054; Cal. Rules of Court, rule 2.20 and Cal. Rules of Court, rules 3.1200 to 3.1207])[defendant's name],))Defendant.)[Declaration of [ ________ ] filed separately])Hearing Date:)Time:)Department:))Complaint Filed: [ ________ ])Trial Date: [ ________ ])Judge: [Hon. ________ ]
TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that at _______________ on ________ , 20__ , in Department_____ of the above-entitled court, located at ___________________________________, Plaintiff/Defendant will and hereby does apply ex parte for an order of this court, extending time to/for [INSERT act for which extension of time sought], and pursuant thereto, alleges as follows:
1. As set forth in the Declaration of ________ , filed herewith, [INSERT background facts and facts showing good cause exists for the requested extension of time].
2. For the foregoing reasons, plaintiff/defendant respectfully prays for an order extending time [INSERT act for which extension sought].
3. This Application is based upon Code of Civil Procedure, Section 1054 and California Rules of Court, Rule 2.20, which authorize the Court to extend time within which an act is required by law to be done, and upon California Rules of Court, Rules 3.1200 to 3.1207 which set forth the requirements of an Ex parte application.
Dated:
Respectfully submitted,
[FIRM NAME]
By:___________________________________________________________________________
[ ________ ]
Attorneys for [plaintiff/defendant],
[name of plaintiff/defendant]
Sample ex parte application to extend time (general form) — Memorandum
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER EXTENDING TIME
[See also form "Notice of Motion and Motion" for extension of time and accompanying forms; and see also forms pertaining to particular types of extensions authorized by other statutes, e.g., discovery responses; and see also forms pertaining to relief under Code Civ. Proc. §473, i.e., enlargement of time for answer or demurrer (Code Civ. Proc. §473(a)(1)).]
I.
INTRODUCTION
[INSERT facts showing procedural history of case; what time deadlines are applicable; the act or acts for which extension of time is sought; and why the relief is being requested ex parte.]
II.
THE COURT IS AUTHORIZED TO EXTEND TIME TO [e.g., Plead, Oppose a Motion, etc.]
“When an act to be done, as provided in this code, relates to the pleadings in the action, or the preparation of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal and of intention to move far a new trial, the time allowed therefor, unless otherwise expressly provided, may be extended, upon good cause shown, by the judge of the court in which the action is pending, or by the judge who presided at the trial of the action; but the extension so allowed shall not exceed 30 days, without the consent of the adverse party.”
Code Civ. Proc. §1054(a).
“In all cases in which the court or judge is authorized by this section to grant an extension of time, the extension of time shall be granted when all attorneys of record of parties who have appeared in the action agree in writing to the extension of time, and any extension of time previously granted by stipulation of all attorneys of record of parties who have appeared in the action shall not be included in the computation of the 30-day limitation upon extensions of time allowed by the court or judge.”
Code Civ. Proc. §1054(b).
“An application for an order extending time must disclose in writing the nature of the case and what extensions, if any, have previously been granted by order of court or stipulation of counsel.”
Cal. Rules of Court, rule 2.20(b).
[INSERT facts showing nature of case, what "good cause" exists for the requested extension of time, what previous extensions were granted by order of court or stipulation, and whether opposing counsel consents to the currently-sought extension of time.]
III
EX PARTE RELIEF IS WARRANTED UNDER THE CIRCUMSTANCES
As stated in the Declaration of ________________________________________, filed herewith,
[INSERT facts showing "irreparable harm, immediate danger, or other statutory basis for granting ex parte relief rather than setting the matter for hearing on noticed motion." (see Cal. Rules of Court, rule 3.1202(c).)
IV
COUNSEL HAS FULLY COMPLIED WITH CALIFORNIA RULES OF COURT, RULE 379
Among other provisions, California Rules of Court, Rule 3.1203(a) provides as follows:
"A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances."
Cal. Rules of Court, rule 3.1203(a).
"An ex parte application must be accompanied by a declaration regarding notice stating:
(1) The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 3.1203, the applicant informed the opposing party where and when the application would be made;
(2) That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or
(3) That, for reasons specified, the applicant should not be required to inform the opposing party."
Cal. Rules of Court, rule 3.1204(b).
As stated in the Declaration of ________ , filed herewith, counsel has duly complied with the notice requirements of California Rules of Court, Rule 3.1204.
V
CONCLUSION
In view of the foregoing facts and authorities, and the matters set forth in the Declaration of ____________________________________________________________ filed herewith,
___________________________________________ hereby submits that good cause exists for an ex parte order granting the requested extension of time, and respectfully requests that the Court grant
_____________________________________________________________ an extension of time
[to and including ______________________________ , 20__ ] to [INSERT act for which extension of time is sought].
Dated:
Respectfully submitted,
[FIRM NAME]
By:___________________________________________________________________________
[ ________ ]
Attorneys for [plaintiff/defendant],
[name of plaintiff/defendant]
Sample ex parte application to extend time (general form) — Declaration
[Attorney name, address]
State Bar Number [ ________ ]
Telephone [ ________ ]
Attorneys for Plaintiff/Defendant, [ ________ ]
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF [ ________ ]
[plaintiff's name])CASE NO.: [ ________ ])Plaintiff,)DECLARATION OF
___)IN SUPPORT OF EX PARTE)APPLICATION FOR ORDER)EXTENDING TIME TO
___)vs.))[defendant's name],))Defendant.))Hearing Date:)Time:)Department:))Complaint Filed: [ ________ ])Trial Date: [ ________ ])Judge: [Hon. ________ ]
I, _____________________________________________________________________, declare as follows:
1. I am an attorney duly licensed to practice law before all courts of the State of California. My law firm, _______________________________________________, is counsel for
______________________________,
____________________________ in this action. This declaration is submitted in support of
___________________________________________________ ‘s Ex Parte Application For Order Extending Time for
to
[INSERT act for which extension is sought]. The following facts are within my personal knowledge and, if called as a witness herein, I can and will competently testify thereto.
2. [INSERT facts showing procedural history of case, what time deadlines are applicable, and the act or acts for which extension of time is sought.]
3. [INSERT facts showing "irreparable harm, immediate danger, or other statutory basis for granting ex parte relief rather ex parte." (see Cal. Rules of Court, rule 3.1202(c).)]
4. [INSERT facts showing what "good cause" exists for the requested extension of time; any previous extensions that were granted by order of court or stipulation; and whether opposing counsel consents to the currently-sought extension of time.]
5. [INSERT the name, address and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, and telephone number of such party if known to the applicant; and also INSERT facts showing that each such attorney or applicant was notified and in what manner, no later than 10:00 a.m. the court day before the ex parte appearance, of the date, time and place of the appearance and relief sought. Also, INSERT facts showing what response, if any, was given by such attorney or party, and whether opposition is expected. (see Cal. Rules of Court, rule 3.1204(b).)]
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this ________ day of ________ , 20__ , at _______________________, California.
_______________
[Name of Declarant]
Sample ex parte application to extend time (general form) — [Proposed] order
[Attorney name, address]
State Bar Number [ ________ ]
Telephone [ ________ ]
Attorneys for Plaintiff/Defendant, [ ________ ]
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF [ ________ ]
[plaintiff's name])CASE NO.: [ ________ ])Plaintiff,)[PROPOSED] ORDER)vs.)[Extending Time ______________________________________________________________])[defendant's name],))Defendant.)))))
Good cause having been shown, and good cause appearing therefor:
IT IS HEREBY ORDERED:
1. That plaintiff/defendant,________ , shall have until ________ , 20__ , to [INSERT act for which extension of time is granted].
Dated: ________
___________________________
Judge of the Superior Court
Prison Inmate Starts Fake University Behind Bars
January 12, 2012 by Dean McAdams · Leave a Comment
Con man ‘set up fake university and sent out diplomas … while in PRISON’
- ‘Encouraged fellow inmate to enroll in “Carlingford University” ‘
- ‘Claimed school was accredited, incorporated in Delaware and Alabama and degrees were granted through their London campus’
- Prosecutor: ‘I’m not so certain the public is safe even with him in prison’
Last updated at 8:15 PM on 12th January 2012
Prosecutors say Kenneth Shong founded a fake university while in prison. If convicted, Shong ¿ whose criminal past dates back two decades and includes fleeing the U.S. ¿ could face up to six years in prison and a $10,000 fine
A con man is accused of starting a fake university and churning out fake diplomas – while in prison.
Kenneth Shong, 45, who is currently serving time in a Wisconsin prison appeared in court on Tuesday to face a fraud charge, years after the complex scheme was uncovered.
He is alleged to have worked with associates outside the prison walls to operate a suspected diploma mill that was recruiting students for at least two years before investigators caught on.
Shong, described by a judge in 2005 as having a history of ‘outwitting, outplaying and outlasting authorities,’ was set to be released from prison last Saturday on a forgery conviction.
He was instead taken into custody and charged Thursday with fraudulent writings in Winnebago County. A hearing to determine whether he will stand trial is scheduled for Jan. 19.
His public defender, Katena Roberts-Turner, did not immediately return a call for comment Tuesday. If convicted, Shong – whose criminal past dates back two decades and includes fleeing the US – could face up to six years in prison and a $10,000 fine.
According to the criminal complaint, Shong was at the Oshkosh Correctional Institution in 2006 when he encouraged another inmate, Kenneth Fleming, who wanted to become a paralegal, to enroll in ‘Carlingford University.’
Shong allegedly said the school was accredited, incorporated in Delaware and Alabama and degrees were granted through their London campus.
Fleming later arranged for his mother to send a $1,740 tuition payment to a post office box in Mobile, Alabama.
Back in the clink: Shong was already in prison for fraud and tax evasion charges. He faces up to six more years behind bars
The complaint said the inmate became suspicious of ‘poor business practices and unresponsiveness’ in relation to the school returning his grades and giving further lessons.
The inmate later learned the university was not incorporated in Delaware and Alabama and complained to the state in 2008.
Two other inmates from the Oshkosh prison also complained about the ‘university’ and Shong, who has several aliases, including Kenneth Onapolis, investigators said.
The complaint also noted that Carlingford University’s website had statements that were misleading and erroneous.
Shong also had convicted sex offender David Kaster, whom he met in prison, help him start a post office box in Green Bay after Kaster was released that Shong used to claim he had a Green Bay “Regional Training Center,” according to the complaint.
Shong transferred to the Racine Correctional Institution in the fall 2007, and officials there began getting suspicious of his activities and started to investigate.
Charges took so long because the case was complex and was recently reassigned to a new prosecutor, said Justice Department spokeswoman Dana Brueck.
Shong’s criminal past includes convictions for bank fraud, theft and other financial crimes. After years on the run, he was captured in 2002 by US marshals in Vanuatu, a small island near Australia, and returned to the US to face federal fraud and tax evasion charges.
When that prison term ended, Wisconsin authorities brought him back to finish serving a 12-year sentence on a 1989 sentence on forgery charges. He had escaped while on parole in 1993.
At a court hearing in 1989, Dane County prosecutor Ann Sayles said Shong used fake checks, obtained bank credit to buy an expensive car, and defrauded companies to buy plane tickets under a fake name.
She called him ‘a professional con man’ and said his shady business activities were continuing in jail.
‘I’m not so certain the public is safe even with him in prison,’ she said.
Credit Card Debt in a Divorce
January 11, 2012 by Dean McAdams · Leave a Comment
Who Pays the Credit Card? Dividing Debt in Divorce
People ask me this all the time, so here is a blog from a law office, if you can afford an attorney and your divorce is really contentious, try these lawyers, and please give me a call with your rating and comments on their service: http://www.cadivorce.com/california-divorce-guide/financial-considerations-in-divorce/who-pays-the-credit-card-dividing-debt-in-divorce/
All community debt and liabilities are a necessary part of your divorce settlement. Debts include credit cards, car loans, mortgages, lines of credit, and other consumer loans. Personal guarantees made for business debts and lines of credit also need to be addressed.
All joint or individual debt acquired after marriage affects the value of your marital estate.
All joint or individual debt acquired after marriage affects the value of your marital estate. Debt reduces the gross value of the estate, impacts how the court divides property and influences how the debt will be paid after the divorce.
Managing Joint Debt
In California, a community property state, creditors can hold both spouses liable for debt incurred individually during a marriage. Assigning community debt at the time of divorce remedies this potential problem.
No creditor is concerned with a divorce judgment, and only wants to be repaid by the people who are responsible for the loan. This means that any debt incurred by both spouses during a marriage, separation, or after the divorce is their responsibility.
Joint credit cards are common among married couples, and it’s just as common for a spouse to use that card during the separation or divorce proceedings. Only that spouse should be responsible for the debt incurred, but credit card companies see both people as culprits.
While not likely, it is possible to have a creditor release the debt from the non-responsible spouse. In this situation, the court is more likely to assign the debt to the other spouse as part of the divorce ruling.
Debt Assignment
Before debt is assigned, consider what, if anything, is security for the obligation to pay that debt.
Tip: Save all receipts to prove the creditor is no longer owed money.
- If a car is security, the spouse who receives the car also receives the car’s loan payments.
- The more financially stable spouse should receive debt unsecured by property (i.e. signature load or credit card debt).
- If neither spouse has enough income to pay off a debt, the couple should agree to do so by selling assets.
- When you’re worried your spouse will not pay off a debt that could leave you unnecessarily responsible, make sure it is paid off before the divorce is finalized.
Divorce and Bankruptcy
If an ex-spouse files for bankruptcy after a divorce and he/she is responsible for paying a joint debt, the bankruptcy and divorce court have equal authority. This means the bankruptcy court has the power to release a spouse from owing that debt.
The court then releases the spouse from paying the loan, but the lender still has the ex-spouses information and will turn to him/her for debt collection. There are three options for this situation:
1. File bankruptcy
2. Pay the debt
3. Ignore the debt and have it listed on your credit history
Structuring your divorce settlement accordingly will prevent this situation from happening. Talk to your divorce attorney about drafting an agreement or court order declaring a bankruptcy court will not discharge a debtor from liens or payment duties.
Negative Value Assets
Vehicles and real estate sometimes lose value quicker than their loan can be repaid. This is often referred to as a “negative value asset.”
In divorce, it may be decided that a spouse receiving an asset also receives its debt, or the asset could be sold to reduce the debt. Options in this situation include splitting or assigning the debt to either spouse. The asset’s use could be seen as relieving the associated debt, and it really depends on your needs and the settlement’s terms.
Re-Establishing Credit After Divorce
Before the divorce process begins, request a copy of your credit report from one of the major credit reporting agencies (Experian, Trans Union, or Equifax). You then have to send them your written request, a copy of your photo ID, and a proof of residence. The agency requires a lot of information from you in order to correctly prepare the report.
When you have the credit report, you can then see what debt is outstanding. Contact each creditor for information, if necessary, and discuss which debt should be part of the divorce settlement with your attorney.
If you have a lot of credit card debt, you’re advised to prepare a worksheet for each card. Use the worksheet to determine how the cards should be handled, including the balance transfer, account closure, or debt assignment. This will ensure that you will maintain good credit standing or have the ability to work toward rebuilding your credit rating.
If credit is an issue, there are steps to take that help rebuild credit. These include:
- Opening a checking or savings account in your name. All that is needed is some proof of income, which could be from child or spousal support, employment, or assets.
- Apply for a credit card through a bank or local department store.
- Use the card every month (wisely) and pay the balances on time consistently.
If you have trouble getting approved for a credit card, don’t give up. Try depositing collateral money into your bank account for a bank-issued credit card. The bank may require you deposit money into a non-withdrawal Certificate of Deposit (CD) that accumulates interest.
Paying Off Debt
If you have trouble paying off debt, try contacting each creditor to ask for an affordable repayment schedule. In many situations, it’s also recommended you transfer high-interest credit card balances to an account with a lower monthly interest rate without annual fees.
The Consumer Credit Counseling Service (CCCS) offers free or low-cost guidance to those with credit and/or financial problems. The CCCS is a non-profit organization that aims to help analyze and manage your financial situation. Call (877)-615-6620 to find a CCCS office near you.
Pay Close Attention
Always get the facts and documents to support your allegations. Before you meet with your attorney and financial planner, organize these papers and provide copies to help them plan your case. You should also write your thoughts and come prepared with questions.
Your demands for payment and reimbursement should not be hostile. Instead, work with an attorney amicably to meet your objectives and goals.
Divorce attorney for your QDRO’s FL-373 . . . or will a paralegal do?
January 11, 2012 by Dean McAdams · Leave a Comment
A qualified domestic relations order (QDRO) is really a job for a paralegal, legal secretary, or legal word processor. There is no persuasive, analytical, point making or legal writing required for a QDRO. A QDRO, qualified domestic relations order, is just an order. An order just states what has already been agreed upon or decided. The QDRO is just the traffic cop, telling the court that the plan administrator is going to divvy up the retirement plan and how they are going to do this.
So why pay a lawyer to do your QDRO when you can have a paralegal do it? You do not need to be an attorney to do a QDRO. You need to think about unbundling your entire divorce to save money.For example, do you really want to pay a lawyer to fill out this FL-374, or pay a paralegal to do it?
FL-374
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(TYPE OR PRINT NAME) |
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(SIGNATURE) |
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page 1 of 1 |
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Form Adopted by for Manditory Use Judicial Council of California [Rev. January 1, 2003]
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NOTICE OF APPEARANCE AND RESPONSE |
Family Code, §§ 80, 2010, 2021, |
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What is the easiest way to do a QDRO?
January 10, 2012 by Dean McAdams · Leave a Comment
Just call the plan administrator and ask them for their model QDRO. At the very end of this blog is a model QDRO. It could also be called a QDRO template, sample, or form.
If you are in the initial stages of getting a divorce you should immediately contact your soon-to-be ex-spouse’s retirement plan administrators and ask them for their QDRO “model order” or boilerplate template. Your administrator or their attorney will file a Notice of Appearance of Employee Benefit Plan, FL-374. This let’s the court know that your ex-spouses retirement plan is aware of the litigation and is ready to participate in your divorce.
What is a Qualified Domestic Relation Order (QDRO)?
It sounds much more complex than it really is. A “qualified domestic relation order” (QDRO) is simply a court order that says for example: “Jane Johnson, as the ex-wife of Joe Johnson is to receive a portion of his retirement benefits.” Of course I have simplified it here for learning purposes. A QDRO includes the specific information and meets certain other requirements to ensure that the ex-spouse receives what they are entitled to.
What information must a domestic relations order contain to qualify as a QDRO?
QDROs must contain the following information:
- The name and last known mailing address of the participant and each alternate payee
- The name of each plan to which the order applies
- The dollar amount or percentage (or the method of determining the amount or percentage) of the benefit to be paid to the alternate payee
- The number of payments or time period to which the order applies
Are there other requirements that a domestic relations order must meet to be a QDRO?
There are certain provisions that a QDRO must not contain:
- The order must not require a plan to provide an alternate payee or participant with any type or form of benefit, or any option, not otherwise provided under the plan
- The order must not require a plan to provide for increased benefits (determined on the basis of actuarial value)
- The order must not require a plan to pay benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO
- The order must not require a plan to pay benefits to an alternate payee in the form of a qualified joint and survivor annuity for the lives of the alternate payee and his or her subsequent spouse
May a QDRO be part of the divorce decree or property settlement?
There is nothing in ERISA or the Code that requires that a QDRO (that is, the provisions that create or recognize an alternate payee’s interest in a participant’s retirement benefits) be issued as a separate judgment, decree, or order. Accordingly, a QDRO may be included as part of a divorce decree or court-approved property settlement, or issued as a separate order, without affecting its qualified status. The order must satisfy the requirements described above to be a QDRO.
Can a QDRO cover more than one plan?
A QDRO can assign rights to retirement benefits under more than one retirement plan of the same or different employers as long as each plan and the assignment of benefit rights under each plan are clearly specified.
Must all QDROs have the same provisions?
Although every QDRO must contain certain provisions, such as the names and addresses of the participant and alternate payee(s) and the name of the plan(s), the specific content of the rest of the QDRO will depend on the type of retirement plan, the nature of the participant’s retirement benefits, the purposes behind issuing the order, and the intent of the drafting parties.
Who determines whether an order is a QDRO?
Under Federal law, the administrator of the retirement plan that provides the benefits affected by an order is the individual (or entity) initially responsible for determining whether a domestic relations order is a QDRO. Plan administrators have specific responsibilities and duties with respect to determining whether a domestic relations order is a QDRO. Plan administrators, as plan fiduciaries, are required to discharge their duties prudently and solely in the interest of plan participants and beneficiaries. Among other things, plans must establish reasonable procedures to determine the qualified status of domestic relations orders and to administer distributions pursuant to qualified orders. Administrators are required to follow the plan’s procedures for making QDRO determinations. Administrators also are required to furnish notice to participants and alternate payees of the receipt of a domestic relations order and to furnish a copy of the plan’s procedures for determining the qualified status of such orders.
Who is the administrator of the plan?
The administrator of an employee benefit plan is the individual or entity specifically designated in the plan documents as the administrator. If the plan documents do not designate an administrator, the administrator is the employer maintaining the plan, or, in the case of a plan maintained by more than one employer, the association, committee, joint board of trustees, or similar group representing the parties maintaining the plan. The name, address, and phone number of the plan administrator is required to be included in the plan’s summary plan description. The summary plan description is a document that the administrator is required to furnish to each participant and to each beneficiary receiving benefits. It summarizes the rights and benefits of participants and beneficiaries and the obligations of the plan.
Here is a model order I recently did:
Art Smith, Self-Represented
432 Main Street
Los Angeles, CA 90012
(310) 944-2055
Petitioner, In Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, NORTH VALLEY DISTRICT
| In re the Marriage ofAndrew M. Smith, Petitioner,Mary Jane Smith,
Respondent,
|
) ) ) ) ) ) ) )) |
Case No.: PD 555 121DOMESTIC RELATIONS ORDER DIVIDING PENSION BENEFITS |
| ) |
PARTIES TO THE ORDER
1. The Operating Engineers Pension Trust (“Trust”) is administered by the Board of Trustees of the Trust (“Trustees”) whose address is 100 East Courson Street, Pasadena, California 91103. The Trust is an “employee pension benefit plan” as term is defined in 29 U.S.C. § 1002(2)(A).
2. Petitioner Andrew M. Smith (“Participant”) is a participant in the Trust and was born on January 8, 1947, and his address is: 432 Main Street, Los Angeles, CA 90012.
3. Respondent Mary Jane Smith (“Alternate Payee Spouse”) has a community property interest in the pension benefits of the Participant in the Trust arising from the marriage of the Alternate Payee Spouse to the Participant and was born on May 3, 1953 and her address is: 7777 Grove St., Sunland, CA 91042.
DEFINITION OF COMMUNITY INTEREST OF ALTERNATE PAYEE SPOUSE
4. The community property interest of the Alternate Payee Spouse (“Community Interest”) shall mean the right of the Alternate Payee Spouse to receive credits in and benefits from the Trust, as more specifically set forth herein, based upon one-half of any Prior Service Credits and Pension Credits accumulated by the Participant during the period of the marriage date: October 27, 1962 through the separation date of May 27, 2006.
ASSIGNMENT OF BENEFITS TO ALTERNATE PAYEE SPOUSE
5. The Trust shall divide the Participants Prior Service Credits and Pension Credits and allocate part of such credits to the Alternate Payee Spouse and assign to the Alternate Payee Spouse the right to receive pension benefits based upon the Community Interest. This assignment shall include all of the Community Interest withheld by the Trust from the Participant’s pension, during the period on which the claim of the Alternate Payee Spouse was reviewed by the trust. The participant shall have no right to receive that portion of the pension benefits assigned by this order to the Alternate Payee Spouse except in the event that the Alternate Payee Spouse and each Alternate Payee named in this order have died or upon further order of this court.
6. The Alternate Payee Spouse shall have no right to receive pension benefits from the Trust except as specifically required by this order. All payment of pension benefits to the Alternate Payee Spouse shall cease upon the death of the participant except for the death benefits or benefits payable to a surviving spouse required under Paragraph 11 of this order.
COMMENCEMENT OF BENEFITS
7. Payment of pension benefits to the Alternate Payee Spouse shall begin on the first month after approval by the Order, after this order has been entered by the court, and after the Alternate Payee Spouse has made a written application for the benefits from the trust pursuant to this order, when the earliest of the following events occurs: (a) the Participant has retired and begun receiving pension benefits form the Trust; (b) the Participant is eligible for a Pro-Rata Pension from the Trust (whether or not the Participant has retired and made application for,, or begun receiving, pension benefits from the Trust); (c) the Participant dies before retiring or after retiring, but before pension payments to the Participant commence, if the Participant’s Service Credits are vested in accord with Article III, Section 3, of the Operating Engineers Pension Plan (“Plan”).
FORM OF BENEFIT PAYMENTS
8. If the Participant has begun receiving pension benefits when this order is approved by the Trustees, the Alternate Payee Spouse shall receive pension benefits in the form that such benefits are being paid to the Participant.
9. If the Participant has not yet begun receiving pension benefits when this order is approved by the Trustees, then the form of benefits payable to the Alternate Payee Spouse shall be selected as follows:
a. If the Alternate Payee Spouse has been married for not less than one year to the Participant, when her application for benefits is made, benefits shall be paid to the Alternate Payee Spouse in the form of the Husband-and-Wife-Pension unless that form is rejected in the manner prescribed by Article VII, Section 2, of the Plan. The Alternate Payee Spouse. shall be deemed the spouse of the Participant to the extent of the Community Interest for purposes of the rejection specified in Article VII, Section 2, of the Plan.
b. If the Alternate Payee Spouse has not been married to the Participant for at least one year, when her application for benefits is made, then pension benefits shall be paid to the Alternate Payee Spouse in the form of a single life annuity using the Participant’s life as the measuring life.
c. If the Alternate Payee Spouse begins receiving pension benefits pursuant to this order before the Participant attains age 62, the Alternate Payee Spouse’s monthly amount shall not exceed the amount actuarially equivalent at the Participant’s current age to the amount the Participant would have received at age 62. For this purpose, the actuarial equivalent reduction shall be one half of one percent (.5%) for each month by which the Participant’s age precedes age 62. This reduction shall be applied prior to any reduction for the Husband-and-Wife Pension form.
PAYMENTS AFTER PARTICPANT’S DEATH
10. The Alternate Payee Spouse shall be deemed to be the surviving spouse of the Participant, to the extent of the Community Interest, and any benefit payable to a surviving spouse under Article VII or Article IX of the Plan following the Participant’s death, shall be paid, to the extent of the Community Interest, to the Alternate Payee Spouse in accord with such provisions of the Plan and this order.
PAYMENTS AFTER DEATH OF ALTERNATE PAYEE SPOUSE
11. In the event the Alternate Payee Spouse dies before the Participant, any further pension benefits which would have been payable to the Alternate Payee Spouse from the Participant’s pension, had the Alternate Payee Spouse lived until the Participant’s death, shall be paid to the person or persons set forth below in the proportion stated:
NAME:
CURRENT ADDRESS:
DATE OF BIRTH:
Relationship to Participant:
Percentage of Benefits:
NAME:
CURRENT ADDRESS:
DATE OF BIRTH:
Relationship to Participant:
Percentage of Benefits:
Each of the persons named above is an Alternate Payee under this Order and qualifies as such pursuant to Section 1056 (d) (3) (K) of Title 29 of the United States Code as the spouse, former spouse,, child or other dependent of the Participant.
12. If an Alternate Payee predeceases the Alternate Payee Spouse, his or her share shall be divided equally among the surviving Alternate Payees. If the Alternate Payee Spouse and each Alternate Payee named in this order predecease the Participant, pension benefits which would otherwise be payable to the Alternate Payee Spouse or any Alternate Payee shall be paid to the Participant.
13. If the Alternate Payee Spouse is receiving, or entitled to receive, death benefits pursuant to this order and Article VII of the Plan, the balance of any such benefits, to the extent of the Community Interest, which remain payable after the death of the Alternate Payee spouse shall be paid to the Alternate Payee or Alternate Payees named in paragraph 12 above for the remainder of such payments. If an Alternate Payee dies before receiving his or her entire share of the remaining payments, then his or her share shall be divided equally among the surviving Alternate Payees. If no Alternate Payee has been named in this order, or if no Alternate Payee survives until the balance of such benefits had been fully paid, then any remaining death benefits payable pursuant to this order and Article VII of the Plan, following the death of the Alternate Payee
GENERAL PROVISIONS
14. This order is intended to be a qualified domestic relations order and shall affect only the Community Interest of the Alternate Payee Spouse. All of the remaining interest in the Participant’s pension benefits or death benefits shall be paid in accord with the rules of the Plan without regard to this order.
16 Except as expressly provided in this order, the interest in pension benefits or death benefits of the Participant, the Alternate Payee Spouse, and each Alternate Payee named in this order shall not be assigned or alienated, and all rights with respect to pension benefits or death benefits shall exist and shall terminate in accordance with the rules of the Plan.
17 Nothing herein shall be construed to require the Trust to provide the following:
a. any type or form of benefit, or any option, not otherwise provided under the plan;
b. increased benefits (determined on the basis of actuarial value), over that which would otherwise be payable under the Plan in the absence of this order; or
c. benefits to an Alternate Payee Spouse or an Alternate Payee which are required to be paid to another alternate payee under another order previously determined under this Plan to be a qualified domestic relations order as that term is defined in Section 1056 (d) (3) (B) of Title 29 of the United States Code.
18 In the event that the Trust is terminated in whole or in part pursuant to its Plan or pursuant to proceedings instituted by the Pension Benefit Guaranty Corporation or other federal agency, the interests of the Participant, the Alternate Payee Spouse and each Alternate Payee shall be disposed of in such manner as required by the Plan and by federal law.
19 Notwithstanding any other provision of this order, in the event that the Participant, the Alternate Payee Spouse, any Alternate Payee or another person claiming to derive rights to benefits from any such person, shall make a claim which the Trustees determine to be inconsistent with the terms of this order or the terms of the Plan, the Trustees may forthwith cease payments to all or any persons otherwise entitled thereto under this order pending resolution of said claim and may take such further action is permitted under the rules of the Plan and applicable federal law, including Section 1056 (d) of Title 29 of the United States Code.
20 This court reserves jurisdiction to make all other necessary and proper orders required to carry out the terms of this order.
Approved as to form and content:
Date: _____________________ __________________________________
Participant
Andrew Smith, pro per
Date: _____________________ __________________________________
Alternate Payee Spouse
Mary Jane Smith, pro per
Date: _____________________ ___________________________________
JUDGE OF THE SUPERIOR COURT
Anti-SLAPP Motion to Strike Deposition & Trial Testimony Based Lawsuit
January 10, 2012 by Dean McAdams · Leave a Comment
Here is a successful anti-SLAPP motion that got plaintiff’s lawsuit dismissed:
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on June 7, 2010, at 8:45 a.m. or as soon thereafter as the matter may be heard in Department 14 of the above-entitled court, located at 111 N. Hill Street, Los Angeles, CA 90012, defendant, TARA VALENCIA, will and hereby does move the court for an order striking the Complaint of JUDY JAMES , filed against her on October 2009, pursuant to Code Civ. Proc. §425.16, and for an order awarding defendant her attorney’s fees pursuant to Code Civ. Proc. §425.16(c).
This Special Motion to Strike is based upon the grounds that defendant’s oral and written testimony is protected by Code Civ. Proc. §425.16 within the meaning of the statute.
This motion is further based upon this notice, upon the attached Memorandum of Points and Authorities, and the facts stated in the Declarations of TARA VALENCIA, filed herewith; upon the records and files in this action; upon defendant’s Request for Judicial Notice and the matters appended thereto and upon such further evidence and argument as may be presented prior to or at the time of hearing on the motion/application.
Dated: May 6, 2012 Respectfully submitted,
_______________
TARA M. VALENCIA,
Defendant In Pro Per
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
SPECIAL MOTION TO STRIKE (ANTI-SLAPP MOTION)
(Code Civ. Proc. §425.16)
I.
STATEMENT OF FACTS AND SUMMARY OF ARGUMENT
Plaintiff JUDY JAMES (JAMES) complaint alleges emotional distress caused by defendant TARA VALENCIA (VALENCIA) for giving false information and testimony, and interfering with the relationship between plaintiff and her minor daughter. (Complaint p. 2, ¶ A & E). Nowhere in the complaint does plaintiff mention that this information and testimony was given by defendant during plaintiff’s judicial proceeding concerning the paternity of plaintiff’s minor child. Therefore defendants oral and written statements given in a judicial proceeding are protected by the Anti-SLAPP statute, CCP §425(e)(1). Some of defendant’s testimony was also given in regard to the court in reviewing the granting of a temporary restraining order, which further protects defendant’s actions under CCP §425(e)(2).
The gravamen of the complaint concerns defendant’s testimony given under oath in Los Angeles County Central Division Case No. BF 026 186, captioned as Peter Hilf v. Laurie Humberd. In that case plaintiff JAMES was the Respondent and used her maiden name of Laurie Humberd. JAMES is plaintiff’s married name with her husband who died prior to her relationship with Hillf and she uses various names at various times as it suits her motives. For purposes of clarity in this motion, plaintiff JAMES will be referred to as JAMES only.
Defendant VALENCIA reluctantly testified in the underlying judicial proceeding out of her concern for the well being of five year old Mia Gabriela, the child of JAMES and Peter Hilf. JAMES and Hilf were never married, and much of this overwhelmingly voluminous underlying litigation and its sordid drama concerns this unmarried nature of their relationship. In the Court’s Statement of Decision and Order dated July 16, 2007, Judge Marjorie S. Steinberg concluded that JAMES will fabricate to interfere and invent reasons to achieve her objectives. The couple were awarded joint custody of the minor child and defendant is named in the order for providing her testimony. The paternity matter was a drawn out, exasperating matter, in which the court consistently took note of plaintiff’s inappropriate conduct and wrongdoing. The court even caught plaintiff in an outright lie in which JAMES tried to say that she did not remember leaving the minor child locked in her automobile, with all the windows rolled up, on a hot day. Unfortunately for JAMES there were witnesses to this shocking event.
Even though the decision in the underlying paternity proceeding was a very fair and equitable joint custody order with somewhat open parameters, plaintiff JAMES, in a continual and ongoing life-long pattern of petty minded anger, spite and vengeance, has filed the instant impermissible lawsuit against VALENCIA, her former best friend.
There is no better instance in which to apply the Anti-SLAPP statue than to strike a complaint that would seek to chill testimony given to protect the well being of a five year old girl. The court in the paternity case stated that: “JAMES has and will, if given the occasion, fabricate to interfere with Mr. Hill’s relationship with his daughter.” (Please see LASC Case No. BF 026 186, Statement of Decision and Order, p. 19, lines 20 and 21, attached hereto as EXHIBIT “A”). In that light, plaintiff has projected her own bad acting onto defendant, and in fact the Court remarked about this aspect of plaintiff’s personality: “JAMES’s contact with Mr. Zamora with respect to the abduction, which occurred at the time when Mr. Hilf was pressing her to put him on the birth certificate, was most likely a case of projection as Dr. Valter testified. That is, JAMES had no good basis for believing that Mr. Hilf was going to take this child out of the country, but perhaps she herself had such thoughts.” Statement of Decision and Order, supra, p. 13, lines 9 through 12. Child custody evaluator Dr. Valter “recommended that JAMES poses a significant abduction risk to Mia and that JAMES has sociopathic tendencies.” Statement of Decision and Order, supra, p. 8, lines 10 and 11. The court also stated that: “JAMES efforts to show that MAZZETTI is motivated to lie by reason of her romantic interest in Mr. Hilf as evidenced by a picture of them at a table at a fundraising event were not persuasive”. Statement of Decision and Order, supra, p. 17, lines 4 through 6.
1. Plaintiff’s Complaint Concerns A Matter Of Public Interest.
This action against defendant, seeks to stifle her duty to give true and correct testimony in a judicial proceeding. As shown in the both the April 5, 2006, Declaration and May 7, 2010, Declarations of VALENCIA, and corroborated by her actual testimony in the paternity matter as summarized in the Statement of Decision and Order, supra, VALENCIA’s testimony was reluctantly given out of her concern for the well being of a minor child.
2. Defendant’s Actions Of Which Plaintiff Complains Concern ThePublic Controversy At Issue.
It is precisely within the context of this on-going public concern that defendant testified in the paternity action in which plaintiff was the respondent. For example Plaintiff complains in her complaint on page 2, ¶ F, line 17 that “Defendant interfered in the relationship between plaintiff and her minor daughter.” However defendant was actually testifying both at trial and in her declaration that: “Mia’s well-being is my only concern. I have put myself on the line with my best friend Mia and have been subject to all sorts of abuses from Respondent’s counsel.” (Please see Declaration of TARA VALENCIA, page 5, par. 12, lines 3-5, attached to this motion as EXHIBIT “B”).
It is clear from defendant’s acts that she was directly commenting on a public issue, the paternity proceeding. Therefore plaintiff’s action against defendant based upon defendant’s oral and written testimony in a judicial proceeding is the epitome of a prohibited SLAPP suit–a disapproved kind of lawsuit designed to quash the right of a participant in issues of public interest to voice his/her opinion–for which the Legislature provided special protection to the defendant through its enactment of the anti-SLAPP statute.
Plaintiff’s action against defendant arises from defendant’s exercise of her “constitutional right of free speech in connection with . . .an issue of public interest.” The instant Special Motion to Strike is brought to invoke the protections afforded by Code Civ. Proc. §425.16.
II.
THE COURT IS AUTHORIZED TO STRIKE A LAWSUIT BROUGHT AGAINST A DEFENDANT AS A RESULT OF AN ACT IN FURTHERANCE OF THAT DEFENDANT’S RIGHT OF PETITION OR FREE SPEECH
A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
Code Civ. Proc. §425.16(b)(1).
As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Code Civ. Proc. §425.16(e).
In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
Code Civ. Proc. §425.16(b)(2).
As demonstrated in plaintiff’s complaint on file herein, the Statement of Decision and Order and attached Declarations of TARA VALENCIA, the complaint is clearly an attempt to thwart defendant’s constitutional right of petition and free speech in connection with a matter of public interest; and defendant’s testimony in the paternity proceeding is properly entitled to the protection of the Anti-SLAPP statute, as more fully set forth below. As demonstrated in the Declarations of TARA VALENCIA, this case is not subject to any of the exceptions to the Anti-SLAPP protection afforded by Code Civ. Proc. §425.17.
III.
THE COMPLAINT IS AN ATTEMPT TO STIFLE FREE SPEECH GIVEN IN A
JUDICIAL PROCEEDING AND, ACCORDINGLY, SHOULD BE SUMMARILY
DISMISSED UNDER THE ANTI-SLAPP STATUTE
1. The Two-Step Approach To Ruling On An Anti-SLAPP Motion.
The anti-SLAPP statute requires the Court to take a two-step approach. First, the Court must determine whether plaintiff’s complaint implicates defendant’s free speech and petition rights within the meaning of, and as defined by, the express terms of any of the provisions within Code Civ. Proc. §425.16(e). It is defendant’s burden of proof to show that plaintiff’s “cause of action arises from the exercise of [his] free speech or petition activity,” as defined by the anti-SLAPP provisions. (Church of Scientology v. Wollersheim, 42 Cal. App. 4th 628, 646-647, 49 Cal. Rptr. 2d 620 (2d Dist. 1996) (disapproved of by, Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53, 124 Cal. Rptr. 2d 507, 52 P.3d 685 (2002)).) Second, if the Court finds that plaintiff’s Complaint implicates defendant’s rights under the anti-SLAPP statute, plaintiff is required to show that there is a probability that she will prevail on her claim. (Shekhter v. Financial Indemnity Co., 89 Cal. App. 4th 141, 151, 106 Cal. Rptr. 2d 843 (2d Dist. 2001)). Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604.
2. Plaintiff’s Complaint Arises Out Of Defendant’s Protected Activity.
A recent appellate decision in a case on point with the instant matter, the Court protected actions in judicial proceedings stemming from attempts to collect a child-support judgment wherein claims against opposing attorneys arose from protected activity under CCP § 425.16(e)(1)(2); the claims related to the attorneys’ actions in revising a grandparent’s estate plan, attempting to implement the revised plan through probate proceedings, and defending child-support litigation. A probability of success on the merits was not shown, even if a claim was stated under the child support evasion statutes, because the attorneys had dispositive defenses, including the litigation privilege. (emphasis added) Cabral v. Martins (2009, 1st Dist) 2009 Cal App LEXIS 1483. Additionally, a trial court properly granted an anti-SLAPP motion to strike a complaint for breach of contract and conversion where a safety manager cooperated in criminal investigations of, and testified against, his former employer; disclosure of information related to legal proceedings is protected activity under CCP § 425.16, subd. (e)(1). Greka Integrated, Inc. v. Lowrey (2005, Cal App 2d Dist) 133 Cal App 4th 1572, 35 Cal Rptr 3d 684, 2005 Cal App LEXIS 1790. (emphasis added)
Code Civ. Proc. §425.16(e) protects any “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (Code Civ. Proc. §425.16(e)(1), including defendant MAZZETTI’s testimony in the paternity proceeding: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law. Conceivably, MAZZETTI’S testimony in the courts reviewing of the Temporary Restraining Order could also be also be doubly protected under subdivision Code Civ. Proc. §425.16(e)(2) “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” because there was a much delayed hearing on the granting of a Temporary Restraining Order in the paternity proceeding and the Court eventually granted a restraining order against JAMES. “Petitioner’s request for a restraining order was continued from time-to-time until the trial. The court ordered that JAMES shall not come within 100 yards from Mr. Hilf except for custodial exchanges and attendance at public events and co-parenting sessions.” The court considered MAZETTI’S dramatic testimony in deciding the TRO. (Please see Statement and Order of Decision, supra, p. 21, lines 5 through 7.)
The Statement and Order of Decision reads like a steamy novel and gives a holistic account of plaintiff JAMES character traits of deception, ingenuiness and abuse of the legal process.
As shown in plaintiff’s complaint, and as the set forth herein and in the attached Declarations of TARA VALENCIA, the complaint clearly arises out of defendant’s protected activity in furtherance of her constitutional right to petition and free speech in connection with a public issue, in that defendant was testifying in a judicial proceeding out of her concern for JAMES minor child.
IV.
THERE IS NO PROBABILITY THAT PLAINTIFF CAN PREVAIL
ON HER CLAIMS AGAINST DEFENDANT
With regard to the second step in the analysis of an anti-SLAPP motion, the Court determines whether the plaintiff has made a prima facie showing that there is a probability it will prevail on its claims (Shekhter v. Financial Indemnity Co., 89 Cal. App. 4th 141, 151, 106 Cal. Rptr. 2d 843 (2d Dist. 2001).)
In order to satisfy this second prong, plaintiff must demonstrate that the complaint is both, (1) legally sufficient, and (2) supported by a sufficient prima facie showing of facts to demonstrate the probability that he will be the prevailing party in the litigation. (Shekhter v. Financial Indemnity Co., 89 Cal. App. 4th 141, 150-151, 106 Cal. Rptr. 2d 843 (2d Dist. 2001).) In demonstrating the second prong, plaintiff must establish that there are no constitutional or statutory defenses that apply to protect defendant’s conduct. (eCash Technologies, Inc. v. Guagliardo, 210 F. Supp. 2d 1138, 1144 (C.D. Cal. 2001).) In fact, where such defenses are demonstrated to exist in favor of the defendant, the plaintiff must bring forth evidence to actually negate those defenses. (eCash Technologies, Inc. v. Guagliardo, 210 F. Supp. 2d 1138, 1144 (C.D. Cal. 2001).)
Plaintiff’s complaint in not legally sufficient because it fails to state facts sufficient to constitute a cause of action and is uncertain pursuant to CCP §430.10. The complaint does not state any prima facie showing of facts as to who, what, when, where, why, how and to whom the alleged false information and false testimony was given to, or how JAMES was damaged by the allegations.
VI.
MOVING PARTY HAS COMPLIED WITH NOTICE AND TIMING
REQUIREMENTS FOR THIS ANTI-SLAPP MOTION
1. Transmittal of Papers To Judicial Council.
Any party who files a special motion to strike pursuant to this section, and any party who files an opposition to a special motion to strike, shall promptly upon so filing, transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed-filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees. Code Civ. Proc. §425.16(j)(1).
As shown in the attached Declaration of TARA VALENCIA, defendant will be transmitting a copy of the endorsed-filed caption page of the motion, by e-mail/facsimile, to the Judicial Council in accordance with Code Civ. Proc. §425.16(j)(1).
2. Timing of Motion And Hearing.
The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.
Code Civ. Proc. §425.16(e). Please see Declaration of MAZETTI.
VII.
ATTORNEY FEES AND COSTS SHOULD PROPERLY BE AWARDED
TO DEFENDANT UNDER THE ANTI-SLAPP STATUTE
The prevailing party on a Motion to Strike under the Anti-SLAPP statute is entitled to recover attorney fees and costs associated with making the anti-SLAPP motion and assertion of alternative defenses in response to a meritless litigation. (Code Civ. Proc. §425.16(c).) This is a mandatory award of costs and fees. (Pfeiffer Venice Properties v. Bernard, 101 Cal. App. 4th 211, 123 Cal. Rptr. 2d 647 (2d Dist. 2002).) Thus, defendant requests an award of such fees and costs pursuant to Declarations and evidence to be submitted following hearing on this Motion.
VIII.
CONCLUSION
Based upon the foregoing facts and authorities, Moving Party respectfully requests that the court strike plaintiff’s Complaint against defendant, TARA VALENCIA, pursuant to Code Civ. Proc. §425.16, and issue an award of attorney fees and costs in his/her favor, in an amount to be demonstrated in subsequent declarations.
Dated: May 6, 2012 Respectfully submitted,
____________________
TARA M. VALENCIA, Defendant pro per
Los Angeles Paralegal Association Board of Director Elections 2011
November 7, 2011 by Dean McAdams · Leave a Comment
The hotly contested Los Angeles Paralegal Association Board of Directors Elections for 2011 are finally underway. There was a misprint on the ballot that left Dean McAdams name off of ballot number one. The actual physical elections may or may not be taking place. Dean McAdams went to the trouble of nominating himself and his name didn’t even make the first ballot and so we are not even sure if his ballot will reach the ballot box, but he tried. Dean McAdams wants to educate to consuming public on the benefits of using a paralegal, with or without assuming a leadership role in the Los Angeles Paralegal Association.
Dean is also a member of the San Francisco Paralegal Association. The SFPA has also invited Dean to nominate himself to the board of directors. Dean is definitely thinking about it. The really important thing is to be blogging again after a long absence. Creating real content and helping people. Being a paralegal is my gift and I want to open it up big time.
I like being a paralegal warrior. I need to find something more to say. This website was recently hacked! At least I have a site valuable enough to be hacked. This post is really an attempt to get this site to re-index on Google. Here we go . . .
Summary Dissolution of Marriage is the Fast Break of Divorces
October 31, 2011 by Dean McAdams · Leave a Comment
Have you been married less than five years, no kids, no home? Congratulations, you can use the joint petition for summary dissolution of marriage. Plus you only have to pay one filing fee.
Title VII Civil Rights Complaint for Disparate Treatment
March 9, 2011 by Dean McAdams · Leave a Comment