() COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT - DIVISION ¢ BRENTWOOD WORKOUT, LLC. et al, APPELLATE CASE NO: A141938 CONTRA COSTA CASE NO: Plaintiff, MSC10-03266 v. APPELLANT'S CLOSING BRIEF APPEAL FROM JUDGMENT OF MARTIN J. MALKIN FAMILY 2001 DISMISSED ON JANUARY 29, TRUST, 2014; FINAL ON APRIL 2,014 AMENDED ON MAY 6, 2014. Defendants. / AND RELATED CROSS-ACTIONS = — MEAGHAN KEEGAN, FILED Appellant, | OCT 27 cua Diana Herbert, Clee vs. by. Deputy Cierk| ALL CALIFORNIA MORTGAGE, INC., (“ACM”), etal. Respondents. Contra Costa Superior Court No. MSC1003266 Honorable Judith S. Craddick, Judge APPEAL FROM THE TRIAL COURT'S ORDERS OF JANUARY 29, 2014 AND APRIL 22,2014 APPELLANT’S OPENING BRIEF, MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION; RECORD ON APPEAL Petition Shand [pro per Rodney A. Marra ‘ini SBN 42996) a “1TABLE OF CONTENTS (REPLY BRIEF) HEADING PAGE I, ISSUES. ~ 2 I. DEFENDANT’S FACTS ARE ERRONEOUS .. IIL. APPELLANT SPECIFIED THE ORDERS SUBJECT TO APPEAL ..... Iv, THE STANDARD OF REVIEW OF THIS APPEAL IS “ABUSE OF DISCRETION?” ..... V. STANDARD OF REVIEW OF FINDINGS OF FACT IS “SUBSTANTIAL EVIDENCE? .... VI. THE TRIAL COURT ERRED IN IMPOSING THE HARSH SANCTION OF DISMISSAL... wee 10 ‘VIL. THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO SET ASIDE ITS ORDER OF DISMISSAL PER CCP SECTION 473 . 13 VII. GRANTING RELIEF WILL NOT PREJUDICE ANY PARTY; NOT GRANTING RELIEF WILL PREJUDICE CROSS-COMPLAINANT .. 17 IX. GRANTING RELIEF FURTHERS TRIAL ON THE MERITS — 17 X. CONCLUSION ....een ea a1 0 au 12 13 14 15 16 7 18 19 20 a1 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CITATION PAGE CALIFORNIA STATUTES CALIFORNIA CODE OF CIVIL PROCEDURE: CCP, Section 437. 3,5, 13, 14,15, 16, CCP, Section 904. 1 CALIFORNIA GOVERNMENT CODE: Cal,Gov. Section 68608 ... CALIFORNIA RULES OF COURT: Rule 2(a)(2) 5 Rule 8.104 .. 5,6 CALIFORNIA SUPREME COURT Benjamin v, Dalmo Mfg Co. (1948) 31 Cal.24 423.... 15 Blank v. Kirwan (1985) 39 Cal.3d1 ... 8 Bowers v. Bernards (1984) Cal.App.3d 870 9 Daar v. Yellow Cab Co. (1967) 67 Cal.24. 69: 5 Elston v, City of Turlock (1985) 38 Cal.3d 227 oecsuenernnnnnnonne . 15,17, 18 Estate of Hanley (1943) 23 Cal.24 120... 6 Lynch v. Spilman (1967) 67 Cal.2¢ 251 ... 1s Kientz v. Harris (1953) 23 Cal.24 787... 3 ‘Mitchell v. Auto Ete. Underwriters (1941) 19 Cal.2d 1 12 ‘Shamblin v. Brattain (1988) 44 Cal.3d 474... 7 ‘Waite v. Southem Pacific Co. (1923) 192 Cal. 467... 18 Zamora v. Clavborn Contracting Group, Inc. (2002) 28 Cal.3th 249... 1510 1. 12 13 14 15 16 v7 18 19 20 21 22 23 24 25 26 27 28 CALIFORNIA APPELLATE COURTS Anserv Ins. v. Keslo (2000) 83 Cal.App.4th 197 Amke v. Lazzari Fuel Co. (1962) 202 Cal.App.2d 278 .. foods leowners. (2004) 121 Cal-App.4th 1578 9 Banrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63 u Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830 16 Carl v. Superior Court of Orange County 157 Cal.App.4th 73 .. 4, Christie v. City of El Centro (2006) 135 Cal.App.4th 767 ... 12 City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726 2 Contreras v, Blue Cross of California (1988) 199 Cal.App.3d 945 .. 16 Davis v. Civil Service Com. (1997) 55 Cal.App.th .... 9 Day v. Papadakis (1991) 231 Cal.App.3d 503 .. 1 Engligh v. IKON Business Solutions.Inc. 94 Cal.App.4th 130 .... 4 Fukuda v. City of Los Angeles (1999) 20 Cal.App.4th 824 9 HLD.Amaiz, Lid. v. County of Joaquin (2002) 96 Cal. App.4th 1357 .. 14 ‘Heam v. Howard (2009) 177 Cal.App.4th 1193 ... 12 Hens v. Tatum (1997) 52 Cal.Appth 259 ... 13 Huh v. Wang 158 Cal. App.4th 1419... 15 LACT. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4th 1485 13 Kuhn v, Department of General services (1994) 22 Cal-App.4th 162° 9 ‘Lovato v, Santa Fe Internat. Corp. (1984) 151 Cal.App.3d 549 .. 12 Malibu Mountain Recreation, Inc. v. County of Los Angeles (1998) 67 CaLApp.ath 359... 9 McCormick v. Board of Supervisors 198 Cal.App.3d at p. 360 .. 16 Parage v. Couedel (1997) 60 Cal.App.4th 1037 .. 2 Piedra v. Dugan 123 Cal.App.4th 1489... 9 oneew ne 10 qa 12 13 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pukrdum v. Holmes (2010) 187 CalApp.4th 916 v Reid v, Balte (1993) 14 Cal-App.4th 1186 ‘SEPP v. Burlington Nothem & Sante Fe Ry Co. 22 Cal.App.4th 462 ... Stafford v. Mach (1998) 64 Cal. App 4th 1174 .. State Farm Fire & Csualty Co, v. Pietak (2001) 90 Cal.App.4th 600 ‘Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal-App. 4th 299. ‘Ten Evek v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540 SECONDARY AUTHORITIES Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group) 2012 Section 5:41! ‘Weil & Brown, Cal. Practice Guide: (The Rutter Group) 2012 Section 5:41 Procedure Before Trial J wiii-CLOSING BRIEF MEMORANDUM OF POINTS & AUTHORITIES L ISSUES 1.) The trial Court erred in dismissing Appellant’s Cross-Complaint on January 26, 2014; and, 2) The Trial Court erred in denying Appellant’s motion to set aside her dismissal under CCP Section 473. IL DEFENDANT’S FACTS ARE ERRONEOUS Defendants alleges as fact without proof that Plaintiff personally emailed Defendants’ counsel on December 27, 2014, prepared and filed a notice of unavailability on June 2, 2014, prepared and executed a motion for protective order and declaration in support thereof, prepared and filed a case management conference statement, and wrote a letter to a discovery facilitator. Each of these purported fact is offered to support Defendants’ contention that Plaintiff was not incapacitated. Each of the above allegations are mere speculation and Plaintiff objets to Defendants’ allegations of non-incapacity on that basis. Plaintiff had prepared documents prior to her stroke, utilized a scribe for communicating immediately after her stroke, and communicated her stroke to the Court and to opposing counsel via a notice of unavailability drafted for her by a third party. Other than signing documents, Plaintiff did not and could not perform the actions as alleged by Defendants. Appellant’s Cross-Complaint was dismissed on January 29, 2014 after Cross-Complainant failed to attend a hearing after suffering a debilitating stroke leaving her unable to prepare and attend. Please see Register of Actions page 70 and Clerk’s Transcript page 085 Appellant moved the Court to set aside the dismissal on April 22, 2014 2under CCP Section 473 which was denied. Please see Register of Actions, page 75; Clerk’s Transcript pages 102-169. On May 6, 2014, the Court added an attorneys fee award against Appellant based on the Court’s finding, post dismissal, that Plaintiffs were the prevailing parties as to the Cross-Complaint. Thus, the trial court’s judgment either became final on April 22" or on May 6". Please see Register of Actions, page 77; Clerk’s Transcript pages 102-169. On December 25, 2014, Appellant, had a debilitating stroke which left her unable to walk, talk, drive and unable to perform most normal tasks rendering her temporarily and totally disabled and unable to participate in litigating this matter. Once hospitalized, on December 27, Appellant used diligence in hiring a scribe at great expense to assist her in communicating the fact that she had suffered the stroke to the Court and to opposing counsel. Please see Notice of Unavailability filed on February 2, 2014 and Clerk’s Transcript page 083. While in the hospital, KEEGAN was unable to address any issues in the present matter, She remained hospitalized until January 25, 2014 when she was release to 24/7 home care still unable to walk, drive and talk so that she is understood. She was unable to participate in this action from December 25, 2013 to February 7, 2014 when she could then ambulate with assistance and speak with an impediment which continues to improve. Although her physicians estimated that she would be returned home on January 22, 2014, she remained hospitalized until January 25" when she was released to 24 hour per day, 7 days per week in-home care still unable to participate in the matter. Thereafter, on January 29, after notifying the Court and opposing counsel of her stroke and resulting state of health, the court, (Judge Craddick), dismissed her Cross-Complaint based on her failure to file an issue conference statement and