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1 Charles H Bell, Jr.

(SBN 060553)
Brian T. Hildreth (SBN 213141)
2 BELL, McANDREWS, & HILTACHK, LLP
455 Capitol Mall, Suite 600
3 Sacramento, California 95814
Telephone: (916) 442-7757
4 Facsimile: (916) 442-7759

5 Attorneys for Defendant,


DAMON DUNN
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF ORANGE
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CENTRAL JUSTICE CENTER
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11 DR. ORLY TAITZ, ESQ, Case No. 30-2010-00381664
12 Contestant, OPPOSITION TO CONTESTANT’S
MOTION TO COMPEL DEPOSITION
13 v. SUBPOENA; REQUEST FOR
SANCTIONS.
14 DAMON DUNN and DOES 1 through 18,
15 Defendants. DATE: March 14, 2011
16 TIME: 2:00 p.m.
DEPT.: C33
17 JUDGE: Hon Geoffrey T. Glass

18 Contest Filed: June 17, 2010


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Opposition to Contestant’s Motion to Compel and Request for Sanctions


1 NOTICE TO THE COURT AND CONTESTANT ORLY TAITZ: Defendant Damon
2 Dunn hereby Opposes Contestant Orly Taitz’s purported Motion to Compel Deposition Subpoena
3 (“Motion”) based on the grounds that Contestant failed to timely file her Motion at least 16 court
4 days prior to the scheduled hearing set by Contestant. Defendant also opposes Contestant’s
5 Motion on the grounds that she failed to provide notice of her Motion to Defendant. (Defendant
6 only recently learned of Contestant’s Motion by viewing the Court’s website and prepared this
7 Opposition as soon as possible thereafter.)
8 Defendant further requests this Court award attorney’s fees and/or sanctions to Defendant
9 in an amount of $2,080.00, for time spent opposing Contestant’s Motion, and the anticipated oral
10 argument related thereto.
11 In support of this Opposition, Defendant submits the following Memorandum of Points
12 and Authorities and the separate Declaration of Brian T. Hildreth.
13 MEMORANDUM OF POINTS AND AUTHORITIES
14 I. INTRODUCTION
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In reviewing the Court’s docket relative to this case on Thursday, March 10, 2011,
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Counsel for Defendant observed that Contestant has purportedly filed a Motion to Compel and set
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a hearing date for her Motion on Monday, March 14, 2011 at 2:00 p.m. in this Court.
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Contestant’s Motion to Compel should be summarily denied because Contestant failed to
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timely file her Motion at least 16 court days prior to the hearing, and also failed to provide notice
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to Defendant of the Motion, as required by the California Code of Civil Procedure.
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Because Contestant pursued her Motion in blatant violation of the California Code of
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Civil Procedure, Defendant should be awarded monetary sanctions in the amount of $2,080.00 or
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other such amount as the Court may deem proper.
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25 II. STATEMENT OF FACTS

26 On Thursday, March 10, 2011 Counsel for Defendant Damon Dunn (“Defendant” or
27 “Dunn”) reviewed the on-line docket for the present case. (See Declaration of Brian T. Hildreth
28 (“Hildreth Decl.”), ¶ 2.) In viewing the docket, Counsel for Defendant became aware that
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Opposition to Contestant’s Motion to Compel and Request for Sanctions
1 Contestant Orly Taitz (“Contestant”) had purportedly filed a Motion to Compel and set a hearing
2 date for said Motion on Monday, March 14, 2011 at 2:00 p.m. in this Court. (Hildreth Decl., ¶ 2,
3 and Exhibit A thereto.)
4 The Orange County Superior Court file-stamp displayed on Contestant’s “Notice of
5 Motion to Compel” shows that the Motion apparently was filed on February 18, 2011. (Hildreth
6 Decl., ¶¶ 2, 3, and Exhibit A thereto.) The notice was not signed by Contestant, or anyone else.
7 (Id.)
8 March 14 is only 15 court days after the purported filing of Contestant’s Motion.
9 Monday, February 21 was a court holiday in observance of President’s Day. (Hildreth Decl., ¶ 4,
10 and Exhibit B thereto.) Thus, Tuesday, February 22, 2011 would have been the first court day
11 following the filing of the Motion, and March 15 would have been the earliest this Court could
12 hear the matter (without an affirmative order by the Court otherwise).
13 Contestant’s Proof of Service accompanying her Motion to Compel states that Contestant
14 served the present Motion to Compel on Counsel for Defendant on August 30, 2010. However,
15 no notice of the present Motion was ever received by Counsel for Defendant Dunn from
16 Contestant. (Hildreth Decl., ¶ 5.) Counsel for Defendant also received no service copy of the
17 present Motion. (Hildreth Decl., ¶ 6.)
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III. LEGAL ARGUMENT
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20 A. Contestant’s Motion to Compel is Improperly Before the Court As It Was Not Filed
At Least 16 Court Days Prior to the Scheduled Hearing of March 14.
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California Code of Civil Procedure Section 1005 provides that in connection with a
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motion before the court, “all moving and supporting papers shall be filed…at least 16 court days
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before the hearing.” (Cal. Code Civ. Proc., §1005(b) (emphasis added).) California Code of
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Civil Procedure Section 12 provides that the “time in which any act provided by law is to be done
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is computed by excluding the first day, and including the last.” (Cal. Code Civ. Proc., §12.)
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Contestant purportedly filed her Motion on Friday, February 18, 2011, which is only 15
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court days before the noticed hearing of March 14, 2011, due to the intervening court holiday in
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Opposition to Contestant’s Motion to Compel and Request for Sanctions
1 observance of President’s Day occurring on February 21, 2011. Code of Civil Procedure, Section
2 135, provides: “Every full day designated as a holiday by Section 6700 of the Government Code
3 ... is a judicial holiday….” Section 6700 of the Government Code states that “[t]he holidays in
4 this state are: *** (e) The third Monday in February….” As a result, February 21, 2011 (the third
5 Monday in February) was a state holiday and judicial holiday, and may not be included as a court
6 day in calculating the proper timing for Contestant’s to have her Motion to Compel heard.
7 Sixteen court days prior to March 14 was Thursday, February 17, 2011.
8 Because Contestant failed to file her Motion at least 16 court days before the hearing, her
9 moving papers are defective and the instant Motion must be denied as a matter of law.
10 B. Contestant’s Motion to Compel Must be Denied Because Contestant Never Provided
11 Notice to Defendant.

12 In addition to the untimely filing of her Motion to Compel, Contestant never provided

13 notice of her Motion to the Defendant. Failure to serve notice of a motion in accordance with

14 California Code of Civil Procedure Section 1005 strips a court of its power to grant the relief

15 requested in the motion and is grounds to deny a motion. (See, e.g., Delgado v. Superior Court

16 (1977) 74 Cal.App.3d 560, 562-63 [court’s order for change of venue invalidated because

17 inadequate notice was given pursuant to CCP §1005]; Svistunoff v. Svistunoff (1952) 108

18 Cal.App.2d 638 [order setting aside default held void due to insufficient notice]; People v.

19 American Contractors Indemnity (1999) 74 Cal. App. 4th 1037,1049 [trial court did not abuse its

20 discretion in denying motion where moving party failed to provide sufficient notice as mandated

21 under California Code of Civil Procedure Section 1005].) Moreover, even if Contestant had

22 provided notice of her Motion on the day she filed her papers (February 18), the notice would

23 have been defective and a nullity as it was not timely completed 16 court days prior to the date set

24 for the hearing (see discussion supra).

25 Finally, even though Counsel for Defendant reviewed the Court’s docket Thursday, March

26 10, 2011 and understood at that time that Contestant had set the hearing for her Motion to Compel

27 for March 14, 2011, this does not constitute proper notice of the present Motion. (See County of

28 Santa Clara v. Perry (1998) 18 Cal. 4th 435, 442 [“The fact that an opposing party has actual

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Opposition to Contestant’s Motion to Compel and Request for Sanctions
1 knowledge of a pending court proceeding will not excuse the moving party from the requirement
2 of giving the written notice required by statute.”], citing In re Marriage of Lugo (1985) 170
3 Cal.App.3d 427, 434.)
4 Because of Contestant’s failure to provide notice of her Motion, Defendant would not
5 have been able to timely file his Opposition. Said Opposition would have been due nine court
6 days prior to the hearing. (Cal. Code Civ. Proc., §1005(b).) Nine court days prior to March 14
7 was March 1. Counsel for Defendant filed the present Opposition as soon as possible and hereby
8 requests the Court consider the substance of the argument herein.
9 C. Contestant Has Acted Without Substantial Justification In Filing This Motion And
10 Defendant Should Be Awarded Sanctions For The Costs Incurred In Opposing and
Objecting to Contestant’s Motion.
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Section 2023.030 of the Code of Civil Procedure, in relevant part, provides:
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...[T]he court, after notice to any affected party, person, or
13 attorney, and after opportunity for hearing, may impose the
14 following sanctions against anyone engaging in conduct that is a
misuse of the discovery process:
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The court may impose a monetary sanction ordering that one
16 engaging in the misuse of the discovery process, or any attorney
advising that conduct, or both pay the reasonable expenses,
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including attorney's fees, incurred by anyone as a result of that
18 conduct.

19 (Cal Code Civ. Proc., § 2023.030(a).)


20 Section 2023.010 of the Code of Civil Procedure defines “misuse of the discovery

21 process” as follows:

22 Misuses of the discovery process include, but are not limited to,
[m]aking or opposing, unsuccessfully and without substantial
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justification, a motion to compel...”
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(Cal Code Civ. Proc., § 2023.010(h).)
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Here, Contestant knowingly filed her Motion to Compel 15 court days prior to the date of
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the hearing and failed to serve Defendant with notice of the Motion and the hearing. Despite
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these clear procedural defects, Contestant has chosen to proceed with full knowledge that her
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Opposition to Contestant’s Motion to Compel and Request for Sanctions
1 Motion was defective.
2 Accordingly, Defendant requests an award of reasonable attorneys’ fees incurred in
3 connection with filing the instant Opposition in the amount of $2,080.00. (Hildreth Decl., ¶ 8.)
4 1. Contestant is a Member of the State Bar of California and is Held to Have a
5 Basic Knowledge of Rules Governing Civil Procedure and Legal Process.

6 Contestant is a licensed member of the California State Bar (Bar No. 223433) and is

7 representing herself in the present action. (Defendant notes that Contestant has failed to display

8 her State Bar number on her pleadings as required by CRC, Rule 2.111.) As observed by the

9 Honorable Justice of the Supreme Court John Paul Stevens, in the Court’s unanimous decision in

10 Kay v. Ehrler (1991) 499 U.S. 432, 499, attorneys should be discouraged from electing to appear

11 in propria persona “because such self-representation may often conflict with the general public

12 and legislative policy favoring the effective and successful prosecution of meritorious claims.”

13 (Trope v. Katz (1995) 11 Cal. 4th 274, 292, citing Kay v. Ehrler, supra, 499 U.S. 432.)

14 According to Justice Stevens, an attorney appearing in propria persona:

15 …is deprived of the judgment of an independent third party in


framing the theory of the case, evaluating alternative methods of
16 presenting the evidence, … formulating legal arguments, and in
17 making sure that reason, rather than emotion, dictates the proper
tactical response to unforeseen developments….
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(Kay, supra, 499 U.S. 432, 437.)
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Moreover, “[t]he adage that ‘a lawyer who represents himself has a fool for a client’ is the
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product of years of experience by seasoned litigators.” (Id. at pp. 437-438, fn. omitted.) This
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adage bears great truth because motives unquestionably affect behavior. And attorneys
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representing themselves are apt to suffer from subjective motivations, which have the effect of
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clouding legal judgment. In the present matter, it would be difficult for Contestant to demonstrate
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that her initiation and maintenance of the underlying action was based upon an objective legal
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analysis of relevant facts and law.
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Opposition to Contestant’s Motion to Compel and Request for Sanctions
1 In addition, California attorneys are held to maintain the learning and skill reasonably
2 necessary to handle a particular matter. (Cal. Rul. Prof. Cond., § 3-110(B); see also In re O.S.
3 (2002) 102 CA4th 1402, 1408; and see ABA Model Rule 1.1, Comment (2)— every lawyer is
4 expected to have the fundamental legal skill to be able to determine the kinds of legal problems a
5 situation presents and the capacity to analyze factual and legal elements of problems.)
6 In the pursuit of her Election Contest, Contestant frequently is quick to point out what she
7 believes are her rights as a litigant, but she has not shown any indication that she understands
8 what her responsibilities are as an officer of this Court. Consider that in the eight months since
9 the commencement of this action, Contestant:
10 1. Prematurely filed the underlying Election Contest by more than a month (June 17,
11 2010), in violation of Elections Code § 16421;
12 2. Improperly served her own Summons as “a party to the action,” in violation of
13 California Code of Civil Procedure § 414.10;
14 3. Improperly sought ex parte relief (July 1, 2010) without providing timely notice, in
15 violation of the California Rules of Court, rule 3.1203 (a);
16 4. Failed to timely request disqualification of the Honorable Geoffrey Glass, in violation
17 of the California Code of Civil Procedure § 170.6(a)(2);
18 5. Improperly filed a Motion to Compel (September 3, 2010) in disregard of the notice
19 and timing requirements of such motions, in violation of the California Code of Civil
20 Procedure § 1005(b);
21 6. Submitted invalid certificates of service on literally every pleading in the present
22 action, in violation of California Code of Civil Procedure §§ 1013 and 1013a;
23 7. Improperly exceeded by six pages the maximum page limitations for opposition
24 memoranda (March 1, 2011), in violation of California Rules of Court, rule 3.1113(d);
25 8. Improperly filed a second Motion to Compel (February 18, 2011), also in disregard of
26 the notice and timing requirements of such motions, in violation of the California
27 Code of Civil Procedure § 1005(b); and
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Opposition to Contestant’s Motion to Compel and Request for Sanctions
1 9. Failed to subscribe her Motions to Compel (September 3, 2010 and February 18,
2 2011), in violation of the California Civil Procedure Code § 446 and the California
3 Rules of Court, rule 1.8.
4 Counsel understands there always will be mistakes in briefings and at oral argument. The
5 applicable standard is not (nor should it be) perfection. However, the objective for all attorneys
6 should be to reduce errors as much possible, through legal research, and through experience.
7 Here, all appearances suggest Contestant is not interested in learning procedure for litigating
8 cases and motions, conducting effective discovery, and proper courtroom decorum, despite being
9 informed of such procedure. This is the second motion to compel made by Contestant in
10 violation of the filing and service requirements of the Code of Civil Procedure, even though
11 Counsel for Defendant previously alerted Contestant to the specific section in the Code of Civil
12 Procedure governing proper filing and service of motions.1 (Hildreth Decl., ¶ 7.)
13 2. An Award of Sanctions by this Court Is Appropriate in the Present Matter.
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Contestant’s untimely filing of her Motion to Compel, and her failure to serve Defendant
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with notice, is subject to sanctions by this Court. Contestant has acted without substantial
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jurisdiction and no other circumstances exist to make sanctions improper. To the contrary,
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awarding sanctions against Contestant may encourage her to seek a greater understanding of the
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Code of Civil Procedure and other authorities before continuing with her case. (McGinty v.
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Superior Court (1994) 26 Cal.App.4th 204, 210, 31 Cal.Rptr.2d 292, citations omitted [The
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purpose of discovery sanctions is to “prevent abuse of the discovery process and correct the
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problem presented”].)
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In September 2010, Contestant also filed a purported motion to compel, which was opposed by
28 Defendant. Defendant’s Opposition cited the appropriate rule of Civil Procedure relative to the
timing of filing and service of motions. (Hildreth Decl., ¶ 7.)
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Opposition to Contestant’s Motion to Compel and Request for Sanctions
1 IV. CONCLUSION
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For all of the foregoing reasons and based on the authority cited herein, Defendant
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respectfully requests that this Court deny the instant Motion in its entirety and award sanctions
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against Contestant in the amount of $2,080.00, or other such amount as the Court may deem
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proper, to reimburse Defendant for his attorneys’ fees. (Hildreth Decl., ¶ 8.)
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7 Dated: March ____, 2011 BELL, McANDREWS, & HILTACHK, LLP


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10 By: ___________________________________
CHARLES H. BELL, JR.
11 BRIAN T. HILDRETH

12 Attorneys for Defendant,


DAMON DUNN
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Opposition to Contestant’s Motion to Compel and Request for Sanctions