# Petition for Writ of Certiorari — Cazares v. Elsesser

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 978

## Text

. -
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

ii

29

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX

Q@

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

APPENDIX

APPENDIX

APPENDIX

APPENDIX

APPENDIX

“APPENDIX

ar

©

U

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

iv

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)

16

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

vi

(85)

16

11

11

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.

2

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
4

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
6

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-

8

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

9

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-
10

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.

11

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

12

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-
13

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

14

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

1c

4

©

ional Conduct the standard

xpert testimony. If an expert test

Les contrary to the Rules of Profes

W
|

QO
W
D
))
ct
wy
oT
_
)
5

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

16

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
17

en

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
18

|

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.

19

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
20

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)
Ve

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."
21

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
22

ie

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.

2a

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.

24

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

2

Ut

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

27

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

28

of the employer or where the employee

filed the charge with the wrong agency. "9%

Lh

»-«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

29

ry

= y
©
t

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

Cy

, Acting P.

GATES
We connur:

1J-
FUKUTO

,J *
LORD

* Assigned by the Chairperson of the

Judicial Council.

30

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.

32

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

22
aS at

oO

trial, award judgment as determined by the
motion herein provided for.

(c) If the motion is granted, unless
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

34

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.

25

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

36

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...

37

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”

38

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

10

11

12

13

14

15

16

r

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.
35

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
40

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

41

— —————

28

THIS CASE,
AREN"T YOU? I AM NOT GOING TO TAKE
JUDICIAL NOTICE OF IT.

36
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

42

16

17

18

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.
43

teat eee

DO
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

44

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

45

__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

46

___ 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.
(c) Rules of Professional conduct for
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-

47

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.

48

(c) Official acts of the legislative, ex-
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

49

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,

50

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

51

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-

52

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.

53

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.

54

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.

55

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

56

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

57

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

58

-

BREACH OF WRITTEN CONTRACT, FRAUD &

MISREPRESENTATION & MALPRACTICE.

Ze

(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

59

_. 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

60

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

61

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)

62

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
63

OO

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.

64

a

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.

65

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0484%3A1. Public record. Not legal advice.