Petition for Writ of Certiorari — Cazares v. Elsesser

Supreme Court brief1993

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. -

o 7 -

ae Bupreme Court, U.S,

93-501

| MAY 25 1993

jae | OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

MARCUS CAZARES,

PETITIONER

vs.

ELSESSER & RADER, ET AL

RESPONDENTS,

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SECOND

APPELLATE DISTRICT

PETITION FOR WRIT OF CERTIORARI

MARCUS CAZARES

2115% LAVERNA AVE.

EAGLE ROCK, CA.

90041

213-257-4815

IN PRO PER

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

QUESTIONS PRESENTED

DOES THE FAILURE TO GIVE NOTICE OF A

PRE-TRIAL MOTION UNDER CALIFORNIA

CIVIL CODE OF PROCEDURE 8&8 598 AND

1005 AND CALIFORNIA CONSTITUTION

ARTICLE 1 & 7, VIOLATE THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION ?

DID THE COURTS INVIDIOUS ACTS IN

APPLYING THE PROVISIONS OF CALIFORNIA

CIVIL CODE OF PROCEDURE § 58lc, 598,

1005, EVIDENCE CODE § 451, 452, 453

AND CIVIL CODE § 1574, CONSTITUTE

INTENTIONAL OR PURPOSEFUL DISCRIMIN-

ATION OF THE OPERATION OF LAW, WITHIN

THE MEANING OF CALIFORNIA CONSTITUT-

ION ARTICLE 4 8 16 AS PROHIBITED BY

THE EQUAL PROTECTION CLAUSE OF THE

UNITED STATES FOURTEENTH AMENDMENT ?

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI TO

THE CALIFORNIA SECOND APPELLATE

DISTRICT wccccccccves

QUESTIONS PRESENTED ......-..-

INDEX TO APPENDICES .-eeeeeee

TABLE OF AUTHORITIES ...

OPINION BELOW . ..cccccscccees

JURISDICTION .ccccccccscveces

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .........

STATEMENT OF THE CASE ..ceee-s

REASONS FOR GRANTING THE WRIT

CONCLUSION .ccccccccccccccecs

INDEX TO APPENDICES

APPENDIX A OPINION OF THE CALIFORNIA

SECOND APPELLATE

DISTRICT wecccees

APPENDIX B SUMMARY DENIAL OF

SUPREME COURT PETITION

FOR REVIEW .cccccccccece

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX

ARTICLE H

APPENDIX I

APPENDIX J

APPENDIX K

APPENDIX L

APPENDIX M

FOURTEENTH AMENDMENT 29

CALIFORNIA CIVIL CODE

OF PROCEDURE § 58lc.... 33-34

CALIFORNIA CIVIL CODE

OF PROCEDURE § 598 34-37

CALIFORNIA CIVIL CODE

OF PROCEDURE §-1005 ... 37

CALIFORNIA CONSTITUTION

ARTICLE 1 §$ 7 coccccccs 37

CALIFORNIA CONSTITUTION

ARTICLE 4 § 16..---c-- - 38

EXCERPT OF 2-6-92, COURT

REPORTERS TRANSCRIPT... 38-40

EXCERPT OF 2-6-91, COURT

REPORTERS TRANSCRIPT PG

35-36. Terre eee ee - 40-44

MINUTE ORDER OF 12-15-88

44-47

EVIDENCE CODE § 451,

ee ee 48-50

RULE OF PROFESSIONAL

Seer 2-112 cccscccss 50-51

iii

APPENDIX

“APPENDIX

RULE OF PROFESSIONAL

TEEPE eee eee eee 54

RESPONDENTS LETTER RE:

REPRESENTATION OF WILL-

INGNESS TO PERFORM

DUTIES IN FEDERAL

STATUS CONFERENCE

REPORT .wcccccccccccccce 55

FEDERAL COURT DISCOVERY

CUT-OFF DATE .ccccccccs 56-57

AND FEE POSTING ....-.-. 58-63

ARTICLE 1 § 16 -vevcce -- 64-65

CALIFORNIA CONSTITUTION

ARTICLE 6 § 4% ..ccceee 65

TABLE OF AUTHORITIES CITED

CASES PAGE

Allegheny Pittsburgh Coal

Webster County (88)

397 U.S. 254, 90 $.Ct. 1011 l

—

Arlinaton Heiaqhts v.

Metropolitan Housing Corp (77)

Carson v. Facilities

Development Co. (84)

36 C. 3d 830 15

Coulter v. Louisville’

Nashville R. Co. (1905)

196 U.S. 599 11

Day v. Rosenthal (85)

170 C.A~- 34 1125 16

Goldberg v. Kelly (70)

397 U.3. 254, 90 $.Ct. 1011 8

Guido v. Koopman (91)

1 C.A. 4th 837 16

In Re Culver (21)

187 C. 437

Kirsch v. Duryea (79)

O'Keefe v. SouthEnd Rowing Club (84)

64 C. 2d 729

Phillips Petroleum Co. v. Shutte

472 U.S. 797, 105 S.Ct. 2965

Seeger v. Odell (41)

18 C. 2d 409

Snowden v. Hughes (43)

Jah UeSe |

Yick Wo v. Hopkins (1886)

118 U.S. 356

STATUTES

Civil Code of Procedure §

340.6

581c

598

1005

2034

(85)

STATUTES PAGE

Civil Code

1574 2,16

Evidence Code

451 2,5,13,14,19

452 2,5,19

153 2,6,13,14,19

Business & Profession §

6103 6,14

Rules of Professional Conduct

2-111 (3-700) 6,14

6-101 6,14

California Constitution

Article 1 § 7 203

Article 1 § 16 aq

Article 4 § 16 2,3,10,18

FEDERAL

28 USCA 1257 (a) 3 i

Constitution

Fourteenth Amendment 2,3,7,8,10,12,

17,18,20

vii

NO.

IN THE SUPREME COURT

OF THE

UNITED STATES OF AMERICA

OCTOBER TERM, 1°93

MARCUS CAZARES,

Petitioner |

vs. ;

ELSESSER & RADER, ET AL

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SECOND

APPELLATE DISTRICT

Petitioner, Marcus Cazares, respect-

fully prays that a Writ of Certiorari issue

to review the judgment and opinion of the

California Second District Court of Appeal,

denying the right to Notice in violation of

a O

the United States Fourteenth Amendment Due

Process Clause. Also, the invidious dismissal

of his aciton on a non-sSuit motion, under

Civil Code of Procedure § 58lc and 1005

and California Constitution Article 1 § 7

without Equal Protection of the Laws under

Evidence code § 451, 452,453 and Civil Code

§ 1574 and the Decisional Law applicable,

in violation of California Constitution

Article 4 § 16 and the Fourteenth

Amendment.

OPINION BELOW

The opinion of the California Court

of Appeal is an unpublished opinion and

appears in Appendix "A" to this petition.

The summary denial of the Petition for Writ

of Review to California Supreme Court

appears in Appendix "B" to this petition.

JURISDICTION

The Court of Appeal decision in this matter

was filed on November 25, 1992. A timely

Petition for Review was filed on 12-31-92.

The California Supreme Court summarily

denied the petition on 2-24-93. This

Court's Jurisdiction is invoked under

Title 28 § 1257 (a). The petitioner argued

the issue of Notice to the trial court,

the Court of Appeal and Supreme Court.

Petitioner, also, argued the Equal Protection

clause in his appellate briefs.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment XIV to the United States

Constitution is set forth in appendix "C".

California Civil Code of Procedure § 58lc, 598

and 1005 are set forth in appendix, "D", "E",

"F", respectively. Additionally, California

Constitution Article 1 § 7 and Article 4 %

16, are set forth as appendix "G" and "H".

There are also other various statutes which

are listed in the appendices index.

STATEMENT OF THE CASE

On Febuary 6, 1991, this matter came on

for trial, after a few continuances, and the

pre-trial conference. At the pre-trial con-

ference the court decided to bifucarate two

issues before proceeding to the plaintiff's

demanded jury trial. Additionally, t‘e court

was to decide three motions in limine. The

respondents gave petitioner notice of the

motions in limine before the trial on 2-6-

91. Petitioner, never received notice of the

non-suit motions. It was only a few minutes

before the trial proceedings were to com-

mence that the respondents served the pet-

itioner with the moving papers. The petit-

ioner complained to the court of lack of

notice, appendix, "I". The court refused to

allow any additional time for responding.

The petitioner then proceeded in the matter

without adequate time to prepare an Oppo-

sition and notice of the motions contents.

After the court addressed the motion in

limine to exclude the petitioners expert

witnesses, for failure to comply with Civil

Code of Procedure 2034, the motion was

granted.

The court then moved to the motions

for non-suit based on the Statute of Limit-

ations, Civil Code of Procedure 340.6,

which was denied by the court. The second

non-suit motion was based on the Failure to

Show Professional Standard of Care. The

respondents argued that since the petit-

ioner was foreclosed from presenting expert

testimony he could not make a prima facie

case and the Statutes and Rules of Profess-

ional Conduct certainly could not be used

to establish any standard of care or breach

thereof. The petitioner argued that the

Statutes and Rules of Professional Conduct

could be Judicially Noticed and used to

establish a prima facie case of negligence

under the provisions of Civil Code of Pro-

cedure § 58lc and Evidence code § 451,452,

+ te a

453. The petitioner also, requested Judicial

Notice be taken of the Statutes, Rules, and

the Decisional law that were submitted, app-

endix "J". The petitioners request was denied

by the court. In particular the petitioner

wanted the court to take Judicial Notice

of California Business & Profession code §

6103 and Rule of Professional Conduct 2-111

(a)(2) [now rule 3-700], and rule 6-101.

The court granted the motion stating that

petitioner needed expert testimony to show

legal negligence.

Petitioner, timely filed for a new

trial based on the trial irregularities of

lack of notice, surprise, that petitioner

made a prima facie case of breach of

Standard of care and that an aciton of

fraud does not require any expert testimony

and that a prior court ruling established

that the question of malpractice was a

question of fact, appendix "K", to be de-

termined by the trier of fact and the trier

should have been a jury. The motion for new

trial was denied and a timely appeal was

taken to the Second Appellate District

Court of Appeal and was denied, appendix

"A". The appellate actions advanced the

arguments of Notice, failure to take Judicial

Notice, sufficient evidence to make a prima

facie case, and the issue of fraud not re-

quiring any expert testimony and the app-

lication of the State and Federal Constit-

utional Clauses of Due Process (NOTICE) and

Equal Protection of the laws. All State

Appellate relief being denied, this Court

is requested to decide whether or not the

actions complained of violated the Fourteenth

Amendment Clauses of Due Process and Equal

Protection of the laws.

REASONS FOR GRANTING THE WRIT

STATE AND FEDERAL CONSTITUTION REQUIRE

THAT ADEQUATE NOTICE BE GIVEN. FAILURE

TO PROVIDE NOTICE IS DENIAL OF DUE PROCESS

AND EQUAL PROTECTION OF THE LAW.

At the commencement of the proceedings

on 2-6-91, the petitioner argued that he had

just been served with the non-suit motions

to be heard, appendix "I". The trial court

refused the petitioner additional time to

prepare adequate response. Compliance with

the U.S. fourteenth Amendment would be

"timely and adequate notice detailing the

reasons for a proposed termination, and an

effective opportunity to defend by confront-

ing any adverse witnesses and by presenting

his own argument and evidence orally."

Goldberg v. Kelly (70) 397 U.S. 254, 90 S.Ct

1011, 23 UeBO 26 Z2E7 «

Since the trial court was to determine

the issue of liability before allowing the

matter to be presented to a jury, or an open-

ing statement, a fair administration of the

law would have been to allow the petitioner

a response. Failure to do-so deprived petit-

ioner the exercising of his right to jury

trial, California Constitution Article 1 8

16. As this Court has stated effective Notice

would require that;

"The notice must be the best practi-

cable, reasonably calculated, under all

the circumstances, to appraise inter-

ested parties of the pendency of the

action and afford them an opportunity

to present objections. "Mullane,239

U.S. at 314-315; cf Eisen v. Carlisle

s§ Jacquelin, 417 U.S. 156, 174-175

(1974). "The notice should describe

the aciton and the plaintiffs rights

in it." Phillips Petroleum Co. v.

Shutts (85) 472 U.S. 797, 812.

The bifucaration of issues is authorized

under California Civil Code of Procedure 48

598, appendix "E". The procedure of notice

on a motion is stated in Civil Code of Pro-

cedure § 1005, appendix "F". The requirement

is fifteen days notice (if service is per-

sonal) or 20 days (if by mail). The failure

in this instance was equivalent to depriving

the petitioner of his Constitutional right

to Due Process.

The Equal Protection Clause of the

Fourteenth amendment was also, violated be-

cause the action was against Catitersie

Constitution Article 4 § 16, this partic-

ular section provides:

" All laws of General nature have uni-

form operation."

The Equal Protection Clause will not be

invoked unless, " the unlawful administrat-

ion by state officers of a state statute

fair on its face, resulting in its unequal

application to those who are entitled to be

treated alike, is not a denying of equal

protection unless there is shown to be pre-

sent in it an element of intentional or pur-

poseful discrimination." Snowden v. Hughes

(43) 321 U.S. 1,8: Coulter v. Louisville &

Nashville R. Co. (1905) 196 U.S. 599, 607,

609-610; Allegheny Pittsburgh Coal v. Web-

ster County (88) 468 U.S. 336, 343. In this

case before the Court, the petitioner was

intentionally and purposefully discriminated

against because his adversary is in the em-

ployment of State Senator David Roberti.

This Court has stated that extraneous fact-

ors may be considered to determine this

issue.

" It may only be shown by extrinsic

evidence showing a discriminatory de-

sign to favor one individual or class

over another not to be inferred from |

the action itself." Yick Wo v. Hopkins

(1866) -118 U.S. 356, 373-374.

If the respondent had been someone other

than one of political clout, the meaning of

the statute, requiring notice, would have

been followed.

The Equal Protection Clause of the

Fourteenth Amendment is not satisfied,

where as, in this case the advantage is

given favorably to one party over another,

against the policy of the Constitutional

and Decisional Law of the land.

The petitioner is not asking for an

advantage in this matter because his adver-

Sary may have a powerful association. Rather

petitioner only asks to be treated the same

under the Laws of the State of California

and the United States.

THE PETITIONER WAS NOT TREATED EQUALLY

IN THE APPLICATION AND OPERATION OF

THE LAWS OF CALIFORNIA, AS WAS HIS

ADVERSRY, IN VIOLATION OF THE EQUAL

PROTECTION CLAUSE OF THE UNITED

STATES FOURTEENTH AMENDMENT.

On 2-6-91, this case was assigned to a

trial court for commencement. The court add-

ressed a motion in limine to Exclude any

expert witnesses the petitioner, may wish

to introduce. The motion was decided again-

Sst the petitioner and the court moved to the

bifucarated issues based on the Statute of

Limitations and th@ motion for non-suit for

Failure To Show a Breach of Professional

Standard of Care. The court denied the motion

based on the Statute of Limitations. The sec-

ond motion for non-suit was commenced. Both

motions were heard over the petitioners

objections of lack of notice.

The court allowed the respondents re-

quest for Judicial Notice. These requests

were of issues adjudicated in the underly-

ing case and in the Malpractice.

The petitioner also, requested, Judicial

Notice of several pleadings, statutes, a

court ruling in the Malpractice csse, and

Decisional Law, appendix "J". The court re-

fused the petitioners requests. In California

the Statutory provisions of Evidence Code 4%

451, is mandatory and § 453, make a perm-

issive Notice mandatory upon notice of the

items requested, appendix, "L", In Re Culver

(1921) 187 C. 437, 440, at hd nts 3;

The petitioner was intentionally and

purposefully discriminated in the applica-

tion and operation of the statutory provis-

ions of evidence code § 451 and § 453, app-

endix "L", in violation of the United States

Fourteenth Amendment Equal Protection Clause.

Had the court taken Judicial Notice as it

was mandated, the petitioner would have made

a prima facie case upon the record, thus en-

titling him to a jury trial on the facts.

The particular items requested by pet-

itioner were Rule of Professional Conduct

2-111 (a)(2), 6-101 and Business and Prof-

ession Code § 6103, and an earlier finding

of the court that the issue of Malpractice

was a question of fact for the trier of

fact, appended here respectively as "M",

"NN", "O", "K". This proof would have~ been

sufficient to make a prima facie case to

Survive a motion for non-suit, O'Keefe v.

South End Rowing Club,(66) 64 C.2d 729, 733,

746.

A nonsuit may be granted after the

plaintiff's presentation of evidence

only when no evidence of sufficient

substantiality exist to support the

verdict for plaintiff." Carson v.

Facilities Development Co. (84)

36 C.3d 830, 838.

In this type of motion all evidence

which is favorable to the plaitniff must be

accepted as true and conflicting evidence

must be disregarded.

In California the standard for deter-

mining duty and breach for an attorney has

been guided by the rules of professional

conduct.

"The standards governing an attorney's

ethical duties are conclusively estab-

lished by the Rules of Professional

Conduct. They cannot be changed by

ional Conduct the standard

xpert testimony. If an expert test

Les contrary to the Rules of Profes

))

)

ed by the rules govern and the expert

testimony is disregarded." Kirsch ,

Duryea_(79) 21 C.3d 393, 411; Day v.

Rosenthal 85) 170 Cal.App. 1125,

The respondents had agreed to perform

to ame

witnes

sentat

-+he rea

the re

were e

c Yu

> | W

outlined in the underlying case,

conference report. These duties were

nd the complaint, subpena specified

ses and on reliance upon these repre-

ions the petitioner contracted with

spondents. Petitioner also, relied

spondents representations that they

xperts. The provisions of Civil Code

74, appendix "P", state, "Actual frauda

ays a question of fact." Seeger

dell (41) 18 C.2d 409, 414-415,

‘uido v. Koopman (91) 1 Cal.App. 4th 837,

\t a minimum this cause of action

should be allowed before the jury.

The respondents were bound by a court

ordered discovery cut-off date, while they

were counsel of record. During this same

time the cut-off date expired. Thereafter,

they moved to withdraw, without informing

the petitioner that no further discovery

would be allowed. Thereafter, the petitioner

was foreclosed from obtaining evidence to

Support his claim of a timely EEOC filing.

Tré denial of petitioners requests for

Judicial Notice, dismissing his case for lack

of sufficient evidence, denial of jury trial

on the fraud issue and the negligence issue

were against the Statutory, Constitutional

and Decisional Law of the State of California

and the United States Fourteenth Equal Pro-

tection Clause. These invidious acts com-

bined and separately were intentional and

purposefull discrimination.

" Determining whether invidious dis-

crimination purpose was a motivating

factor demands a sensitive inquiry into

such circumstances and direct evidence

of intent as may be available."

Arlinaton Heights v. Metropolitan

Housing Corp. (77) 429 U.S. 252, 265,

at 266.

There was no valid reason to depart

from the statutory provisions and the decis-

ional law, under the provisions of Califor-

nia Constitution Article 4 § 16 and the

United States Fourteenth Amendment.

CONCLUSION

The petitioner has shown that the pro-

ceedings below were preliminary to him ex-

ercising his right to jury trial. These

type of hearings require some notice of the

action proposed and a detail of the intended

results requested. The appellate court com-

pletely side stepped this issue in the un-

published opinion. Taking a party by sur-

prise to gain an unfair advantage cannot

be construed to be fair play under the

ourteenth Amendment

—

Due Process Clause.

The petitioner has also shown that

under the provisions of Evidence Code § 451

+ 7

453 Judicial Notice of Statutes, Rules

of Professional Conduct, Constitutional and

Decisional Law are compulsory. The petit-

ioner has further demonstrated that under

Civil Code of procedure 58lc, he only needs

to make a prima facie case to be entitled

to his jury trial on the negligence issue.

Regarding *he issue of fraud petitioner has

shown that this type of fraudulent action

is no more acrane to an attorney than it is

to any one else. For this reason no expert

testimony is required. On the issue of neg-

legence, no expert is necessary to determine

whether or not the attorney missed the dis-

covery deadline.

The courts refusal to take mandatory

Judicial Notice and refusing to comply with

the standards to determine if a prima facie

case had been made and if expert testimony

was required for the negligence and fraud

issue were an abuse of the Judicial Process

and established a pattern of discrimination.

This discrimination was the result of a

certain clout the respondents had and was

wrongfully used to determine the outcome of

the matter.

These actions are invidious violations

of the Fourteenth Amendments Equal Protect-

ion Clause.

Dated: May 21, 1993

Respectfully Submitted,

MARCUS CAZARES

PETITIONER IN PRO PER

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

MARCUS CAZARES, No. B0O57709

Plaintiff and ApelTant, (Super.Ct.No.

WEC103902)

CHARLES F. ELSESSER JR.,etal

Defendant and Respondent

me eee”

Marcus Cazares appeals from the judgment

entered in favor of respondents Charles F.

Elsesser & Rader (referred to collectively

as the "Law Firm"), in Cazares's action for

legal malpractice He contends:

"(I.] [Cazares] demanded and posted jury

fees and was entitled to a jury trial. [II.]

In a jury trial a motion for nonsuit cannot

be heard until the jury is empaneled and

either an opening statement or presentation

of evidence is made. [III.] The evidence pre-

sented at the proceedings of 02-06-91 were

sufficient to defeat the motion for nonsuit."

The Law Firm filed a defensive cross-

appeal. It contends Cazares's action against

it is barred by the statute of limitations.

In July 1974, Cazares was employed by

Rockwell International Company ("Rockwell")

as a cost analysis accountant. He was trans-

ferred to cost scheduling in May 1975, which

displeased him.-In June 1975, Cazares learned

from a co-employee that a white female em-

ployee had been hired to fill the vacancy

caused by his transfer. He submitted an in-

ternal employment discrimination complaint

to Rockwell, in which he complained about

his transfer and work assignment. He alleged

that he mailed a copy of this complaint to

the Equal Employment Opportunity Commission

("EEOC") in June 1975, as well.

Cazares was laid off during a general work

force reduction in February 1976. In July

1976, the EEOC received Cazares's internal

employment discrimination complaint. Cazares

filed a Title VII action in federal court

against Rockwell in December 1983, alleging

job discrimination occurring in 1975. He

filed the action in pro per.

In April 1984, the Law Firm became

counsel of record for Cazares in the federal

action. The Law Firm defended Cazares in de-

position, opposed a summary judgment motion,

initiated discovery against Rockwell, and

responded to discovery demands. The Law Firm

requested permission in September 1984 to

either settle the case or withdraw as counsel

of record, after discovering evidence which

convinced it that Rockwell had not discrimin-

ated against Cazares. He refused the Law

Firm's requests, and, in October 1984, the

District Court permitted the Law Firm to

withdraw as attorney of record.

On March 15, 1985, Rockwell prevailed

after an evidentiary hearing on the bifur-

cated issue of whether Cazares had timely

filed his EEOC charge. Cazares was barred

from continuing the Title VII action.

Cazares appealed the determination in pro per

and, ultimately, his petition for certiorari

was denied by the United States Supreme Court.

Cazares filed the present action for att-

orney malpractice in 1986. The Law Firm

twice moved for summary judgment, and, al-

though the motions were denied, numerous

factual issues were found for the defense.

When the trial date was set, in 1990,

the Law Firm demanded mutual disclosure of

expert witnesses (Code Civ. Proc. § 2034).

Cazares responded that he did not intend to

call any expert witnesses at trial.

The case was called for trial in Febr-

uary 1991. The Law Firm successfuliy moved

in limine to preclude expert testimony by

Cazares at trial. The Law Firm's first

motion for nonsuit, on statute of limitations

grounds, was denied. The second, that plain-

tiff was unable to prove a prima facie case

without expert testimony, was granted. These

appeals followed.

Cazares's first contention lacks merit.

Nonsuit is by statute available in a jury

trial. (Code Civ.Proc., 8 58lc.) It concedes

the truth of the facts to be presented, but

denies that they, as a matter of law, sustain

the plaintiff's case. (John Norton Farms,

Inc. v. Todagco (1981) 124 Cal.App.3d 149,

160-161.) Contrary to Cazares's position,

the trial court did not usurp the role of

fact-finder, but rather determined a legal

issue: whether Cazares could prove negligence

absent expert evidence.

Cazares's second contention also lacks

merit. Section 58lc of the Code of Civil Pro-

cedure states in relevant part: "After the

plaintiff has completed his or her opening

statement, or the presentation of his or her

evidence in atrial by jury, the defendant,

without waiving his right to offer evidence

in the event the motion is not granted, may

move for a judgment of nonsuit." The Law

Firm's motion for nonsuit was granted prior

to opening statements, based upon its in lim-

ine motion to exclude expert evidence on the

ground that Cazares had failed to comply

with section 2034 of the Code of Civil Pro-

cedure.

At the outset, the trial court asked the

parties how they wished to proceed on the

motion. Both sides immediately urged the

merits of the motion, and Cazares was given

full opportunity to describe the ultimate

facts he was prepared to prove. He did not

request an opportunity to make an opening

statement. Upon appeal, moreover, Cazares has

failed to show how the lack of opening state-

ment, which would have entailed considerable

public expense in empaneling a jury, prejud-

iced him. He instead asserts at page 14 of

his opening brief that he should have been

allowed to present evidence. As discussed be-

low, the motion was properly granted, and

Cazares was therefore not entitled to present

evidence to the jury.

Cazares's last contention is unavail-

ing. Expert evidence is necessary to prove

the standard of care applicable to an att-

orney except where the failure of the

attorney's performance is clearly con-

trary to established standards (see Wilk-

inson v. Rives (1981) 116 Cal.App.3d 641

647-648), for example, where there are

"numerous, blatant and egregious violations"

of ethical duties. ( Day v. Rosenthal (1985)

170 Cal.App.3d 1125, 1146-1147.) Cazares

failed to show that the present case fits

within the exception.

Cazares urged the court that the Law

Firm's negligence lay in not, prior to a

discovery cut off date, "subpoena(ing) Mr.

Olmos from the EEOC and also the director of

Affirmative action of Rockwell International

at the time of my employment who could have

addressed the issues of the timeliness and

could have also addressed the issues of the

fraudulent activities at Rockwell at the time

of which he has personal knowledge and that

--all those circumstances could have and I

believe would have entered into the court's

decision in claim for continuing discrimin-

ation and..retaliation and also on a fraud

basis." The Law Firm pointed out that they

had engaged in discovery during the five-

month period they represented Cazares.

The issues of whether the additional

witnesses could have provided evidence of

substance to Cazares's cause and whether the

Law Firm breached its duty by failing to de-

pose them are not within the common knowledge

of lay person's. Cazares submitted a declar-

ation by Olmos which did not address Cazares's

case in particular, but rather stated EEOC

policy recognizing the appropriate cases

where EEOC charges were filed late; "For ex-

ample, the EEOC would apply equitable toll-

ing in a situation involving ignorance of

Statutory rights caused by improper conduct

of the employer or where the employee

filed the charge with the wrong agency. "9%

»-«eAn example of equitable estoppel woul

involve a situation where the employee is

precluded from ex@rcising his/her stat-

utory rights resulting from representat-

ions made by the employer."

Cazares stated in his trial brief that

Rockwell's affirmative action officer Ramon

Sena "could have testified as to the dis-

crimination of Rockwell and that Rockwell

impeded his work as Affirmative Action Ad-

ministrator. Also, that Rockwell['|s

fraudulent, mischarging was taking place

during the time of the plaintiff!']s em-

ployment."

The advisability of deposing either

Olmos or Sena is not immediately apparent,

and would depend no doubt upon litigation

strategy. At the time of the Law Firm's

representation, Cazares took the position

that he had personally mailed his charge to

= y

OC within the 300 day time limit, in

2. The district court, subsequent to

the Law Firm's withdrawal, found Cazares's

testimony on this point to be not credible,

and dismissed the action. Whether testimony

regarding equitable estoppel and tolling

should have appeared relevant prior to the

district court ruling is questionable. Under

the circumstances, Cazares was required to

establish the professional standard of care

through expert testimony.

The judgment is affirmed.

NOT FOR PUBLICATION

, Acting P.

GATES

We connur:

1J-

FUKUTO

,J *

LORD

* Assigned by the Chairperson of the

Judicial Council.

SUPREME COURT

FILED

FEB 24 1993

Robert Wandruff Clerk

Deputy

Second Appellate District,

Division Two, No. B057709

S030509

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

IN BANK

MARCUS CAZARES, Appellant,

V >

CHARLES F. ELSESSER, Jr., Respondent

Appellant's petition for review DENIED.

LUCAS

Chief Justice

AMENDMENT XIV-CITIZENSHIP;PRIVILEGES AND

IMMUNITIES;DUE PROCESS; EQUAL PROTECTION;

APPORTIONMENT OF REPRESENTATION; DIS-

QUALIFICATION OF OFFICERS; PUBLIC DEBT;

ENFORCEMENT

Section 1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No state shall make or enforce

any law which shall abridge the privileges

or immunities of citizens of the United

States; nor shall any State deprive any

peron of life, liberty, or property, without

due process of law; nor deny to any person

within its jurisdiction the equal protection

of the laws.

CALIFORNIA CODE OF CIVIL PROCEDURE

§ 58lc. After Plaintiff Completes Opening

Statement or Presents Evidence Defendant

May Move for Nonsuit-—Determination.

(a) After the plaintiff has completed

his or her opening statement, or the pre-

sentation of his or her evidence in a trial

by jury, the defendant, without waiving

his right to offer evidence in the event

the motion is not granted, may move for a

judgment of nonsuit.

(b) If it appears that the evidence

presented or to be presented, supports the

granting of the motion as to some put not all

of the issues involved in the action, the

court shall grant the motion as to those

issues and the action shall proceed as to the

issues remaining. Despite the granting of the

motion, no final judgment shall be entered

prior to the termination of the action, but

the final judgment in the action shall, in

addition to any matters determined in the

aS at

trial, award judgment as determined by the

motion herein provided for.

the court in its order for judgment other-

wise specifies, the judgment of nonsuit

operates as an adjudication upon the merits.

(d) In actions which arise out of an

injury to the person or property, when a

motion for judgment of nonsuit was granted

on the basis that the defendant was with-

out fault, no other defendant during trial

over plaintiff's objection, may attempt to

attribute fault to or comment on the ab-

sence or involvement of the defendant who

was granted the motion.

CALIFORNIA CODE OF CIVIL PROCEDURE

§ 598.Precedence in Order of Trial of

Issues

The court may, when the convenience

of witnesses, the ends of justice, or the

economy and efficiency of handling the lit-

igation would be promoted thereby, on motion

of a party, after notice and hearing, make

an order, no later than the close of pre-

trial conference in cases in which such

pretrial conference is to be held, or, in

other cases in which such pretrial con-

ference is to be held, or, in other cases,

no later than 30 days before the trial

date, that the trial of any issue or any

part thereof shall precede the trial of

any other issue or any part thereof shall

precede the trial of any other issue or

any part thereof in the case, except for

special defenses which may be tried first

pursuant to sections 597 and 597.5. The

Court, on its own motion, may make such an

Order at any time. Where trial of the

issue of liability as to all causes of

action precedes the trial of other issues

Or parts thereof, and the decision of the

court, or the verdict of the jury upon such

issue so tried is in favor of any party on

whom liability is sought to be imposed.

judgment in favor of such party shall

thereupon be entered and no trial of other

issues in the action as against such part

shall be had unless such judgment shall be

reversed on appeal or otherwise set aside

or vacated.

If the decision of the court, or the

verdict of the jury upon the issue of lia-

bility so tried shall be against any party

on whom liability is sought to be imposed,

or if the decision of the court or the

verdict of the jury upon any other issue or

part thereof so tried does not result in a

judgment being entered pursuant to this

chapter, then the trial of the other issues

Or parts thereof shall thereafter be had at

such time, and if a jury trial, before the

same or another jury, as ordered by the court

either upon its own motion or upon the motion

of any party, and judgment shall be entered in

the same manner and with the same effect as

iinet aii

if all the issues in the case had been

tried at one time.

CALIFORNIA CODE OF CIVIL PROCEDURE

§ 1005-Written Notice for motion;service and

filing of moving and supporting papers.

(bh) Unless otherwise ordered or specif-

ically provided by law, all moving and

Supporting papers shall be served and filed

at least 15 calendar days before the time

appointed for the hearing. However, if the

notice is served by mail the required 15-

day period of notice before the time app-

ionted for the hearing shall be increased

by five days if the place of mailing and the

place of address are within the State of

California,...

CALIFORNIA CONSTITUTION ARTICLE 1 § 7

Due Process and equal protection;

sec. 7 (a) A person may not be de-

prived of life,liberty,or property without

due process of law or denied equal protect-

ion of the laws...

CALIFORNIA CONSTITUTION ARTICLE 4 § 16

Uniform operation of laws;local or

special laws

Sec.16 (a) All laws of a general nature

have uniform operation. (b) A local or

special statute is invalid in any case if

a general statute can be made applicable.

COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

MARCUS CAZARES

SUPERIOR COURT

PLAINTIFF AND

NO. WEC 103902

APPELLANT,

VS.

ELSESSER & RADER,ET AL,

DEFENDANTS AND

CROSS-APPELLANTS

ee eee”

APPEAL FROM THE SUPERIOR

COURT OF_LOS ANGELES COUNTY

HONORABLE HIROSHI FUJISAKI

JUDGE PRESIDING

—

REPORTERS' TRANSCRIPT OF APPEAL

APPEARANCES:

FOR PLAINTIFF- MARCUS CAZARES

APPELLANT: IN PROPRIA PERSONA

2115% LAVERNA AVE

EAGLE ROCK, CA. 90041

213-257-4815

FOR DEFENDANTS A. K. STILLMAN

CROSS-APPELLANTS BAKER, SILBERBERG &

ELSESSER & RADER 2850 OCEAN PARK BLVD

CHARLES F. ELSESSER, SUITE 300

JR., ESQ. AND ALLAN SANTA MONICA, CA.

RADER, ESO. 90405

213-399-0900

VOLUME 1 OF 1 J.DOLORES MRAZ, CSR NO. 1930

PAGES 1 - 38, INCL. OFFICIAL REPORTER

MR. CAZARES: ALSO THE DEFENDANTS

HAVE MADE A MOTION,

SEPARATE MOTION, FOR NONSUIT REGARDING

THAT, SO I HAVEN'T

HAD AN OPPORTUNITY TO ADDRESS IT. I

RECEIVED IT TODAY. SO

I AM NOT FAMILIAR WITH THAT NEW CASE

THAT SHE REFERRED TO,

TROCHE.

AND I WOULD ALSO LIKE TO ASK THE COURT

FOR SOME

TIME TO RESPOND TO IT.

THE COURT: NO. WE ARE HERE FOR TRIAL.

MR. CAZARES: YOUR HONOR, COULD I ASK

YOU TO TAKE

JUDICIAL NOTICE OF THE EXHIBITS THAT I

SUBMITTED TO THE

CLERK IN CONSIDERATON?

THE COURT: YOU WANT ME TO TAKE JUDICIAL

NOTICE OF

THIS? I AM NOT GOING TO TAKE--

161)

16 MR. CAZARES: FOR THE DEFENDANTS. ONE

OTHER ONE IS

:? MY EXHIBIT DOUBLE R, WHICH IS MY

NATALI CASE.

18 HAVE TO BACKTRACK A LITTLE BIT

AT EXHIBIT---

19 THE COURT: I AM NOT GOING TO TAKE

JUDICIAL NOTICE OF

20 IT. YOU MAY CITE IT.

21 MR. CAZARES: AND THEN EXHIBIT 0, WHICH

IS THE WELCH

22 VERSUS ERSKINE CASE,

23 THE COURT: EXHIBIT Q IS NOT THE

WELCH VERSUS--

24 MR. CAZARES: I AM SORRY. DOUBLE 0.

DOUBLE Q. IF

25 YOU PULL THE TAB THAT IS MARKED DOUBLE 0O,

IT WILL APPEAR AS

26 DOUBLE Q.

27 THE COURT: WELL, YOU ARE JUST CITING

— —————

THIS CASE,

AREN"T YOU? I AM NOT GOING TO TAKE

JUDICIAL NOTICE OF IT.

YOU MAY CITE IT.

MR. CAZARES: WELL, UNDER MAGNOLIA

VERSUS SAFECO I"D

LIKE TO ASK THAT IF YOU DO TAKE JUDICIAL

NOTICE OF IT.

THE COURT: FOR WHAT? YOU DON'T TAKE

JUDICIAL NOTICE

OF CASES CITED FOR AUTHORITY.

MR. CAZARES: WELL, IT IS A JUDGMENT.

THE COURT: I AM NOT GOING TO TAKE

JUDICIAL NOTICE OF

THAT. YOU CAN CITE IT AS AUTHORITY,

BUT I AM NOT GOING TO

TAKE JUDICIAL NOTICE OF IT.

MR. CAZARES: ALL RIGHT. TWO THAT ARE

NOT CASES--

AND THAT IS PART OF THE FEDERAL DIST-

RICT CASE WHICH WAS THE

EXHIBIT=-EXHIBIT TRIPLE B IS ANOTHER

ONE IN THE —

UNDERLYING CASE WHERE THE DEFENDANTS

OPPOSED ANY DISCOVERY

BECAUSE THAT SHOULD HAVE ALREADY BEEN

DONE BY THE

DEFENDANTS PRIOR --

MS. STILLMAN: TRIPLE B? CAN I SEE A

COPY OF THAT?

THE COURT: OPPOSITION TO PLAINTIFF'S

REQUEST TO TAKE

DEPOSITION AFTER DISCOVERY CUTOFF.

THIS IS IN THE

UNDERLYING CASE.

CAZARES: THAT'S CORRECT.

MS. STILLMAN: THERE ARE NO COURT ORDERS

ATTACHED.

THAT IS MERELY A PLEADING.

MR. CAZARES: WELL, JUST TO --

THE COURT: I WILL DECLINE TO TAKE

JUDICIAL NOTICE OF

THAT.

teat eee

oO”)

MR. CAZARES: THE OTHER ONE IS OF THE

SAME

27 CHARACTER. SO--

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES DEPT

2-15-88 ~

Honorable Judge Deputy Clerk

IRVING A SHIMER B SMITHSON

HONORABLE JUDGE PRO TEM

NONE Deputy sherrif NONE Reporter

(Parties and counsel checked if

WEC 103902 Counsei for

CAZARES, MARCUS Plaintiff

Sherman Weber

ELSESSER & RADER- Counsel for

ETC- ET AL Defendant

K T Dunbar

Kathleen M. Roche

NATURE OF PROCEEDINGS

DEFTS (ELSESSER & DENY SUMMARY JUDGMENT

RADAR) MOTION FOR_ WHETHER THERE WAS

SUMMARY JUDGMENT MALPRACTICE IS A

OR, QUESTION OF FACT

FOR SUMMARY ADJ OF NOT OVERCOME IN THIS

ISSUES: MOTION. THE STATUTE

C/F NOV 23, 1988 OF LIMITATIONS CER-

I-c TAINTLY DID NOT BAR

THE CLAIM PER

ROBINSON V. MCGINN

(1987) 195 CA3d 66.

GRANT SUMMARY ADJUDICATION AS TO ISSUES

a,c,d,e.

DENY SUMMARY ADJUDICATION AS TO ISSUES

b, f, ge he, i.

ATTORNEY ORDER.

__It is stipulated that commissioner___

may hear this matter as Judge Pro Tem.

__TRANSFERRED TO/FROM DEPARTMENT__

__Court Disqualifies itself

__.. «4170.6 CCP affidavit filed

__OFF CALENDAR __ON COURT OWN MOTION

__NO APPEARANCES __ AT REQUEST OF MOVING

PARTY

__BY STIPULATION

__CONTINUED TO____IN DEPT_AT__AM/PM

__On court's own motion _ Stip to be filed

__On oral/written stipulation

__9SC Discharged

__REQUEST OF _ Moving Party

__ Respondent

___Per Exparte order of

__TRO to remain in full force and effect

__TRO dissolved

__MOTION __ granted as prayed_denied

__argued and taken under submission

___DEMURRER__sustained__overruled

___with/without leave to amend

___day to amend/answer

___ JUDGMENT * ORDER TO BE PREPARED BY:

_X Moving Party _ Responding Party’

__.-Lerk

_X NOTICE _X_ Waived

___ By moving party __by responding party

___ PETITIONER(S)—IS/ARE SWORN AND TESTIFIES

/TESTIFY

___ PETITION IS GRANTED (AS AMENDED)

__. DECREE IS SIGNED AND FILED

MINUTES ENTERED

WE G 12-15-88

dept COUNTY CLERK

CALIFORNIA EVIDENCE CODE

§ 451. Mandatory Judicial Notice.

Jucicial Notice shall be taken of the foll-

owing. (a) The decisional, constitutional,

and public statutory law of this State and

the United States and the provisions of any

charter described in Section 3, 4, 5, of

Article XI of the California Constitution.

members of the bar adopted pursuant to Sec-

tion 6076 of the Business and Professions

Code and the rules of practice and pro-

cedure for the courts of this state ad-

opted by the Judicial Council.

(e) The true signification of all English

words and phrases and of all legal ex-

pressions.

(f) Facts and propositions of generalized

knowledge that are so universally known

that they cannot reasonably be the sub-

ject of dispute.

§ 452. Permissive Judicial Notice.

Judicial notice may be taken of the

following matters to the extent that they

are not embraced within Section 451: |

(a) The decisional,constitutional, and

Statutory law of any state of the United

States and the resolutions and private

acts of the Congress of the United States

and of the Legislature of this state.

(b) Regulations and legislative enact-

ments issued by or under the authority of

the United States or any public entity in

the United States.

ecutive and judicial departments of the

United States and of any state of the

United States.

(d) Records of (1) any court of this

state or (2) any court of record of the

United States or of any state of the

United States.

(e) Rules of court of (1) any court of

this state or (2) any court of record of

the United States or of any state of the

United States.

(f) The law of an organization of nations

and of foreign nations and public entities

in foreign nations.

(g) Facts and propositions that are of

such common knowledge within the territorial

jurisdiction of the court that they cannot

reasonably be the subject of dispute.

(h) Facts and propositions that are not

reasonably subject to dispute and are capable

of immediate and accurate determination by

resort to sources of reasonably undisput-

able accuracy.

§ 453. Permissive Notice Conditionally

Mandatory Upon Request.

The trial court shall take judicial notice

of any matter specified in Sections 452 if a

party requests it and:

(a) Gives each adverse party sufficient

notice of the request, through the pleadings

Or otherwise, to enable such adverse party

tO prepare to meet the request; and

(b) Furnishes the court with sufficient

information to enable it to take judicial

notice of the matter.

CALIFORNIA RULE OF PROFESSIONAL CONDUCT

RPC 2-111 (A) In General.

(2) In any event, a member of the State Bar

shall not withdraw from employment until he

has taken reasonable steps to avoid forsee-

able prejudice to the rights of his Client,

including giving due notice to his client,

allowing time for employment of other

counsel, delivering to the client all

papers and proverty to which the client

is entitled, and complying with applicable

laws and rules.

RPC 6-101 Failing to Act Competently

(A) (1) Attorney competence means the

application of sufficient learning, skill,

and diligence necessary to discharge the

member's duties arising from the employ-

ment or representation.

(2) A member of the State Bar shall

not intentionally or with reckless disre-

gard or repeatedly fail to perform legal

services competently.

(B) Unless the member associates or,

where appropriate, professionally consults

another lawyer who the member reasonably be-

tieves is competent, a member of the State

Bar shall not

(1) Accept employment or continue re-

presentation in a legal matter when the

member knows that the member does not have,

Or will not acquire before performance is

required, sufficient time, resources and

ability to, perform the matter with com-

petence, or

(2) Repeatedly accept employment or

continue representation in legal matters

when the member reasonably should know

that the member does not have, or will

acquire before performance is required,

sufficient time, resources and ability

is, perform the matter with competence.

(Cc) As used in this rule, the term

"ability" means a quality or state of

having sufficient learning and skill and

being mentally, emotionally and physically

able to perform legal services.

A member of the State Bar shall not

willfully and habitually

(1) Perform legal services for a

client or clients if he knows or reason-

ably should kKnow that he does not possess

the learning and skill ordinarily possessed

by lawyers in good standing who perform, but

do not specialize in, similar services prac-

ticing in the same ab Similar locality and

under similar circumstances unless he

associates or, where appropriate, pro-

fessionally consults another lawyer who he

reasonably believes does posses the re-

quisite learning and skill;

(2) Fail to use reasonable diligence

and his best judgment in the exercise of

his skill and in the application of his

learning in an effort to accomplish, with

reasonable speed, the purpose for which he

is employed.

The good faith of an attorney is a matter to

be considered in determining whether acts

done through ignorance or mistake warrant

imposition of discipline under Rule 6-101.

CALIFORNIA BUSINESS AND PROFESSION CODE

§ 6103 Disobedience of court order;

violation of oath or attorney's duties

A willful disobedience or violation of

an order of the court requiring him to do or

forebear an act connected with or in the

course of his profession, which he

ought in qood faith to do or forbear, and

any violatin of the oath taken by him, or

of his duties as such attorney, constitute

causes for disbarment or suspension.

CALIFORNIA CIVIL CODE

§ 1574 Question of Fact

Actual fraud is always a question

of fact.

Law Offices

ELSESSER AND RADER

First Interstate Bank Building

707 Wilshire Boulevard Suite 400

LOS ANGELES, CALIFORNIA 90017

(213) 627-9990

February 16, 1984

Mr. Mark Cazares

2117 Laverna Ave.

Los Angeles, CA. 90041

Re: Cazares v. Rockwell

Dear Mr. Cazares:

Several weeks ago I spoke with you

concerning the possibility of our firm

performing some legal work for you with

respect to the above mentioned case. Since

that time I have not heard from you. I just

wanted to let you know that we continue to

be willing to perform that work should you

desire to engage us.

I look forward to hearing from you.

Sincerely,

CFE/c CHARLES F. ELSESSER JR.

JOSEPH J. MCCANN, JR.

DAVID J. SHAPIRO

ROCKWELL INTERNATIONAL CORPORATION

2230 East Imperial Highway

El Segundo, California, 290245

231- 647-5103

STEPHEN E. TALLENT

KENNETH D. HOFFMAN

KAREN L. KAHN

GIBSON, DUNN & CRUTHCHER

333 SOUTH GRAND AVENUE

LOS ANGELES, CALIFORNIA 90071

(213) 229-7000

ATTORNEYS FOR DEFENDANT

ROCKWELL INTERNATIONAL CORPORATION

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MARCUS CAZARES, ) Civil No.

Plaintiff, CV 82-6751 MRP(Kx)

) ORDER

ROCKWELL

INTERNATIONAL -

CORPORATION,

Defendant,

All discovery must be completed

by June 29, 1984. The pre-trial conference

is hereby scheduled for August 27,1984,

01:30 p.m.

So ordered.

Dated: April 12, 1984

Judge Marianna R. Pfaelzer

United States District Court

Central District of California

ieee aiaiaaiaa

Attorney or Party with For Court Use

out attorney (Name Use

Address and Tele-

phone No.)

Sherman S. Weber

(213) 670-5931

7407 Agnew Ave

Los Angeles, California

90045

Attorney for (Name)

Plaintiff

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES

Plaintiff(s)/Petitioner(s)

MARCUS CAZARES

Defendant(s)/Respondent(s)

ELSESSER & RADER et al

AT-ISSUE MEMORANDUM (Rule 209)

__COUNTER __AMENDED CASE NUMBER

WEC 103902

BREACH OF WRITTEN CONTRACT, FRAUD &

MISREPRESENTATION & MALPRACTICE.

(Nature of case State fully)

No case will be set for trial as a

short cause matter unless ALL PARTIES

join in estimate of trial time of 5

hours (1 day) or less. (silence will

be deemed as joining).

Time estimate for trial:.... hrs

--10. days. (Caveat: No jury trial

may be estimated for less than

2 days.)

Does any party allege that any

plaintif in this action has or claims

to have any of the following injuries

Or damages alleged to be caused or

affected by the tortious conduct

alleged herein ? __Yes x_No

If Yes, check as applicable:

__ Amputation __ Skull Fracture

_. Traumatic Epilepsy __ Major Burns

_. Paralysis __ Multiple Fractures

_. Spimal Cord Injuries __ Loss of

entire sight in one or both eyes

__ wrongful death __ Cancer

_. Major Brain Injuries

_._ Waives damages over $ 25,000.00 and

elect(s) arbitration per CCP 1141.11.

4a. __ Plaintiff(s)/ Parties __stipulate

to arbitration per CCP 1141.11.

(attach stipulation).

decline(s) to oppose an order to

arbitration per CCP 1141.1l.

b. _x exemption from mandatory arbit-

ration per Rule 1600.5 California Rules

of Court is claimed for the following

reasons (specify):

Damages sought exceed $25,000.00

1600.5 (a) 1600.5 (h)

5a. Briefly state the nature of the case,

including the nature and extent of any

injuries not covered in item 3 above

and justification for any estimate over

15 days: Action for several causes of

action, for breach of written con-

tract, fraud & misrepresentation

and malpractice against a law firm

seeking damages

b. Damages sought: General $ 1,000,000.00

Special

c. Other relief sought:

Punitive damages of $ 3,000,000.00

6. Case entitled to preference:

yes x No code section

7. Pretrial requested:

__Yes ___ No No pretrial where the

estimate is 5 hours (1 day) or less.

8. All attorneys of record or parties

appearing in person are listed below:

(Indicate whether attorney for

plaintiff or defendant)

SHERMAN S. WEBER 44680

Trial Attorney State Bar Number

lla

7407 Agnew Ave, L.A. 90045

(213) 670-5931 _X Request Jury

Plaintiff

TIMOTHY DOAHUE

BAKER, SILBERBERG

& KEENER

Trial Attorney State Bar

Number

2850 Ocean Park Blvd.

Santa Monica

90405 (213) 399-0900

Address Telephone

AT-ISSUE MEMORANDUM

(PLEASE FILL IN ADDITIONAL INFORMATION

ON REVERSE SIDE)

MISCELLANEOUS RECEIPT

COUNTY CLERK/EXECUTIVE OFFICER

Los Angeles County

CALIFORNIA

M 946897

CASE NO. WEC 103902 DATE

SUPERIOR COURT DEPT

(CUSTOMER'S RECEIPT)

RECEIVED FROM INDICATE WHICH-

EVER APPLIES

MARCUS CAZARES ATTY FOR

PLAINTIFF PLTF

2115% Laverna Ave DEFT

EAGLE ROCK, 90041

$ 137.00

One Hundred Thirty seven dollars

for SRY FEE DEPOSIT

CASH __ CHECK _x_ MAIL #

MARCUS CAZARES PLAINTIFF

ELSESSER & RADER ET AL DEFENDANTS

DEPUTY

CALIFORNIA CONSTITUTION ARTICLE 1

§ 16 Jury Trial; three-fourths verdict;

waiver of jury trial; number of jurors

Sec. 16 Trial by jury is an inviolate

right and shall be secured to all, but in

a Civil cause three-fourths of the jury

may render a verdict. A jury may be

waived in a crimminal cause by the con-

sent of both parties expressed in open

court by the defendant and the defendant's

counsel. In a civil cause a jury may be

waived by the consent of the parties ex-

pressed as prescribed by statute.

In civil causes the jury shall consist

of 12 persons or a lesser number agreed on

by the parties in open court. In civil

causes in municipal or justice court the

Legislature may provide that the jury shall

consist of eight persons or a lesser number

agreed on by the parties in open court.

In criminal actions in which a felony is

charged, the jury shall consist of 12 per-

sons. In criminal actions in which a mis-

demeanor is charged, the jury shall con-

sist of 12 persons or a lesser number

agreed on by the parties in open court.

CALIFORNIA CONSTITUTION ARTICLE 6

§ 45. Reversal for error resulting in

miscarriage of justice.

Sec. 45. No judgment shall be set aside,

Or new trial granted, in any case, on the

ground of misdirection of the jury, or of

the improper admission or rejection of

evidence, or for any error as to any

matter of pleading, or for any error as to

any matter of procedure, unless, after an

examination of the entire cause, including

the evidence, the court shall be of the

opinion that the error complained of has

resulted in a miscarriage of justice.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.