Motion Reconsideration W Exhibits 11062023

1 OLIVER B.
MITCHELL III
300 LONG BEACH BLVD., UNIT 1705
2
LONG BEACH, CALIFORNIA 90801
3 (818) 814-7304
4
IN PRO PER
REDPATCHMARINE@HOTMAIL.COM
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OLIVER B. MITCHELL III, NOTICE OF MOTION FOR
8 Plaintiff, RECONSIDERATION; MOTION TO ALTER,
9 AMEND, SET ASIDE; MOTION TO AMEND
vs. THE COURTS TENTATIVE RULING and
10
MOTION FOR EXTENSION OF TIME &
11 WILLIAM WARREN GROUP WWG et al., MODIFIED SCHEDULING ORDER
Defendant.
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CASE NUMBER 23STCV10822
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HEARING DATE: 12/12/2023
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TIME: 8:30 AM
15 DEPT: 14
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ID: 822364597076
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18 FILED ON NOVEMBER 6, 2023
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NOTICE OF MOTION FOR RECONSIDERATION; MOTION TO ALTER, AMEND, SET ASIDE;
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MOTION TO AMEND THE COURTS TENTATIVE RULING AND MOTION FOR EXTENSION OF TIME
& MODIFIED SCHEDULING ORDER
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PLEASE TAKE NOTICE that on December 12, 2023, at 8:30 am or as soon thereafter as
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the matter may be heard, in Department 14 of the Los Angeles County Superior Court,
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located at 111 N. Hill Street, Los Angeles, California 90012, Plaintiff, Oliver B. Mitchell III will
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and hereby do move this Court in accordance with Code of Civil Procedure Section 1008(a),
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Rule 59(e) and Rule 60(b) against the Defendants and all Persons acting on its behalf, for
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reconsideration, alteration or amendment, and relief from the Court’s Tentative Ruling
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NOTICE OF MOTION FOR RECONSIDERATION; MOTION TO ALTER, AMEND, SET ASIDE; MOTION TO
AMEND THE COURTS TENTATIVE RULING and MOTION FOR EXTENSION OF TIME & MODIFIED
SCHEDULING ORDER CASE NUMBER 23STCV10822
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entered on October 16, 2023, for further relief, for leave to amend and supplement their
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complaint, and for an extension of time modifying the scheduling order to accommodate any
3 relief granted by the Court as a result of these Motions.
4 The Motion is made pursuant to California Code of Civil Procedure section 473(a)(1)
5 and is based on this Notice of Motion, the Memorandum of Points and Authorities, all of the
6 files and records of this action, and on any additional material that may be elicited at the
7 hearing of the Motion.
8 Please take further notice that
9 [p]ursuant to Local Rule 3.1308 the court will make a tentative ruling on the merits of
10 this matter by 3:00 p.m., the court day before the hearing. The complete text of the tentative
11 rulings for the department may be downloaded off the court’s website. If the party does not
12 have online access, they may call the dedicated phone number for the department as
13 referenced in the local telephone directory on the court day before the hearing and receive
14 the tentative ruling. If you do not call the court and the opposing party by 4:00 p.m. the court
15 day before the hearing, no hearing will be held. 2023 California Rules of Court, Rule 3.1308.
16 Tentative rulings.
17 Executed on November 6, 2023, at Los Angeles, California.
18
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/s/ Oliver B. Mitchell III
OLIVER B. MITCHELL III
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(818) 814-7304
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IN PRO PER
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STATEMENT OF THE ISSUE
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Res judicata bars a second suit where (1) it involves the same parties as the first suit;
3 (2) the first suit resulted in a final judgment on the merits; (3) the second suit raises claims
4 based on the same transaction or occurrence as the first suit; and (4) the claims in the second
5 suit were raised or could have been raised in the first suit. Thus, can the defendants meet
6 their burden to establish all four elements of res judicata to bar a second suit?
7 The Plaintiff were dismissed in his first suit, Oliver B. Mitchell III v William Warren
8 Group (WWG) et al., on May 9, 2023, without prejudice and his second suit were refiled on
9 May 11, 2023, as Oliver B. Mitchell III v William Warren Group Inc., in the Los Angeles
10 Superior Court, County of Los Angeles, which relies on additional facts and occurrences not
11 entirely in existence during the first suit to include the worsening of conditions.
12 Under the doctrine of res judicata also known as claim preclusion, and/or collateral
13 estoppel, also known as issue preclusion, based on a judgment in a prior action, a judgment
14 for the defendant serves as a bar to further litigation of the same cause of action. Under this
15 doctrine, all claims based on the same cause of action must be decided in a single suit; if not
16 brought initially, they may not be raised at a later date. (Mycogen Corp. v. Monsanto Co.
17 (2002) 28 Cal.4th 888, 896-897.)
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Claim preclusion arises if a second suit involves (1) the same cause of action (2)
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between the same parties and (3) after a final judgment on the merits in the first suit. If claim
preclusion is established, it operates to bar relitigation of the claim altogether. Claim
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preclusion may also bar claims that could have been raised in the first proceeding. (Thompson
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v. Ioane, supra, 11 Cal.App.5th at 1190-1191 [quoting DKN Holdings, LLC v. Faerber (2015) 61
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Cal.4th 813, 824 and Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150,
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1164].)
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California's res judicata doctrine is based upon the primary right theory. (Mycogen
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Corp., supra, 28 Cal.4th at 904.) The most salient characteristic of a primary right is that it is
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indivisible. (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) [T]he primary right is simply the
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plaintiff's right to be free from the particular injury suffered.
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Issue preclusion prohibits the relitigation of issues argued and decided in a previous
3 case. Under issue preclusion, the prior judgment conclusively resolves an issue actually
4 litigated and determined in the first action. As a result, while collateral estoppel or issue
5 preclusion does not bar entire causes of action, the doctrine may prevent relitigation of
6 previously decided issues. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.)
7 STATEMENT OF FACTS
8 On April 22, 2022, Plaintiff filed suit Case Number 22STCV13511 in the Superior Court
9 of California County of Los Angeles against Defendants for negligence, conversion, breach of
10 contract, civil conspiracy, and violations of the Consumer Protection Act, alleging the
11 invalidity of the statutorily required lien and auction notices, and the invalidity of a limitation
12 on liability ($5,000), indemnity, and risk shifting provisions in StorQuest standard form, non-
13 negotiable rental agreement.
14 On May 9, 2023, in Oliver B. Mitchell v William Warren Group (WWG), Et Al., Case
15 Number 22STCV13511, the Court entered onto court record its tentative ruling made Order
16 saying “The Ex Parte Application to Dismiss Action is called for hearing. The Court having fully
17 considered the arguments of all parties, both written and oral, now rules as follows: The Ex
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Parte Application DEFENDANT WILLIAM WARREN GROUP INC.S NOTICE OF AND EX PARTE
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APPLICATION TO DISMISS ACTION [C.C.P. 581(f); CRC Rules 3.1320(h)]; DECLARATION OF
SUKAYNA JAIDI filed by William Warren Group (WWG) on 04/03/2023 is Granted. Case is
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Dismissed pursuant to Code of Civil Procedure 581(f)(4) . The Court orders the Amended
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Complaint (1st) filed by Oliver B. Mitchell, III on 05/19/2022 dismissed without prejudice.”
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On May 12, 2023, Plaintiff filed his second suit in the Superior Court of California
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County of Los Angeles against Defendants William Warren Group WWG et al., and all Persons
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acting on its behalf, each of them, to redress action taken by Defendants WILLIAM WARREN
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GROUP INC., dba STORQUEST, a national self-storage management company; (hereafter
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“Defendant” or “StorQuest”) to obtain relief for damages for sexual harassment, sex based
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discrimination, gender violence, negligence, conversion, breach of contract, civil conspiracy,
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intentional infliction of emotional distress, violations of the California Business and
3 Professions Code Section 21700 et seq., declaratory and injunctive relief, violations of the
4 Consumer Protection Act, and national and locally declared emergency orders, alleging the
5 invalidity of the statutorily-required lien and auction notices, and the invalidity of a limitation
6 on liability ($5,000), indemnity, and risk shifting provisions in StorQuest standard form, non-
7 negotiable rental agreement.
8 On June 27, 2023, Defendants filed and served “DEFENDANT’S NOTICE OF DEMURRER
9 AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
10 IN SUPPORT; DECLARATION OF SUKAYNA JAIDI” saying “WILLIAM WARREN GROUP, INC.,
11 (hereinafter referred to as “Defendant”), will, and hereby does, demur to Plaintiff’s, OLIVER
12 B. MITCHELL III’s, Complaint filed on May 12, 2023 pursuant to Code of Civil Procedure §§
13 430.10(e) and 430.10(f) and on the grounds that the First, Second, Third, Fourth, Fifth, Sixth,
14 Seventh, and Eighth, and Ninth Causes of Action contained in Plaintiff’s Complaint fail to state
15 facts sufficient to state a claim and are uncertain.”
16 On June 27, 2023, Defendants filed and served “DEFENDANT’S NOTICE OF DEMURRER
17 AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
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IN SUPPORT; DECLARATION OF SUKAYNA JAIDI” saying “Plaintiff’s Complaint is Barred by the
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Statute of Limitations Plaintiff’s Complaint is also barred by the applicable statute of
limitations. Plaintiff claims personal injury are subject to a two-year statute of limitation, and
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as clearly laid out in the Complaint, the factual allegations stem from allegations on or about
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August 2020. Based thereon, pursuant to California Code of Civil Procedure Section 335.1,
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Plaintiff’s Complaint is barred by the applicable statute of limitations.”
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On June 27, 2023, Defendants filed and served “Meet and Confer re: Demurrer and
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Motion to Strike” saying “As you know, Bremer, Whyte, Brown & O’Meara, LLP has been
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retained to represent the interest of William Warren Group, in the above-referenced matter.
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Please allow this correspondence to serve as our attempt to meet and confer prior to the
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filing of our Demurrer and/or Motion to Strike as to Plaintiff’s First Amended Complaint
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(“Complaint”), pursuant to Code of Civil Procedure §430.41(a) and §435.5(a). As indicated
3 herein, we intend to file a Motion to Strike various portions of the operative Complaint on
4 behalf of William Warren Group, as well as a Demurrer as to the causes of action specified
5 below. Our firm has already called you, per Code requirements, to discuss pleading issues, as
6 well as potential early resolution. We wish to avoid any unnecessary motion practice and
7 hope to resolve this matter without court intervention.”
8 On July 21, 2023, the Plaintiff filed and served the defendants his proposed Stipulated
9 Protection Order saying “Attached hereto is a Stipulation and Protective Order for your
10 review and consideration. IT IS HEREBY STIPULATED by and between the Parties to Oliver B.
11 Mitchell, III vs William Warren Group et. al., by and through their respective counsel of
12 record, that in order to facilitate the exchange of information and documents which may be
13 subject to confidentiality limitations on disclosure due to federal laws, state laws, and privacy
14 rights, the Parties stipulate as follows: Under California Code of Civil Procedure §2025.420,
15 the court, for good cause shown, may make any order that justice requires to protect any
16 party, deponent, or other natural person or organization from unwarranted annoyance,
17 embarrassment, or oppression, or undue burden and expense. The parties reserve the right
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to apply to the Court for any order modifying this Order or seeking further protections
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against discovery or other use of protected information. Any protected third party requiring
further confidentiality protection than is provided by this Order may petition the Court for a
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separate order governing disclosure of its confidential material. Plaintiff, Oliver B. Mitchell III,
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hereby moves the Court for entry of a Stipulated Protection Order and Preliminary Injunction
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enjoining Defendant William Warren Group WWG et al., and all persons acting on its behalf,
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now known, past, present and future from further harassment, from destroying, disposing of,
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or converting any assets of the Plaintiff pending entry by the Court of a final judgment in this
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action… There is a substantial likelihood that Plaintiff will establish at trial that the
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Defendants have violated the California Business and Professions Code section 21700 et seq.,
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and the Plaintiff alleges that defendants are personally liable for, or exercised command and
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responsibility over or conspired with or aided and abetted subordinates, or person or groups
3 acting in coordination or under their control, to commit acts of conversion, negligence and
4 breach of faith… The Plaintiff is more than a current tenant of the defendants. The Plaintiff is
5 a former career federal employee turned VA whistleblower who had filed complaints alleging
6 fraud, waste, abuse, and discrimination within a federal agency whose documents are
7 currently the subject of ongoing litigation. In addition to said documents the Plaintiff
8 maintains personal effects, medical records pertaining to non-consensual research, and
9 documentation, financial records, and documents related to private businesses established
10 and owned by the Plaintiff that are held for safe keeping at the defendant’s self-service
11 storage facility. The destruction, disposal, or ceasing of operations for the Plaintiff to include
12 the restriction of access against the Plaintiff would cause irreparable injury to the Plaintiff and
13 any harm to Defendant from enjoining the destruction, disposal of, or cessation of operations
14 of the Plaintiffs assets would be outweighed by the actual and potential conversion effects
15 resulting thereof…”
16 On August 12, 2023, the Plaintiff and Defendants entered into a Settlement and
17 Release Agreement, a four page document provided by the Defendants to the Plaintiff
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indicating the following: (EXHIBIT A)
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a. Page 1, 2nd Paragraph, Lines 1-4, state “Subsequently, Occupant ceased making rental
payments due to Property Manager pursuant to the Rental Agreement, and Property
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Manager lawfully acted to enforce its statutory lien pursuant to the California Self
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Service Storage Facility Act…
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b. Page 1, 3rd Paragraph, Lines 1-3, state “Notwithstanding Property Manager’s lawful
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exercise of its lien rights pursuant to the CA Self Service Storage Act, during the spring
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of 2022, Occupant filed suit against Property Manager in the Superior Court of
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California, County of Los Angeles (Case Number 22STCV13511)…
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c. Page 1, 4th Paragraph, Lines 1-3, state “On or about May 9, 2023, a judge for the
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Superior Court of California, County of Los Angeles dismissed Occupants first lawsuit
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without prejudice and awarded sanctions for the Property Manager and certain of its
3 affiliates against Occupant in the amount of $3,200 (the Sanctions amount).
4 d. Page 1, 5th Paragraph, Lines 1-6, state “On or about May 19, 2023, Occupant filed
5 another lawsuit against Property Manager and certain of its affiliates in the Superior
6 Court of California, County of Los Angeles…”
7 e. Page 1, 6th Paragraph, Line 1, states “The second lawsuit is currently pending before
8 the Court of California, County of Los Angeles.”
9 f. Page 2, 4th Paragraph, Lines 1-5, state “In settlement of the claims, allegations and
10 lawsuits described above, including the claims and the second lawsuit and in
11 consideration for the Occupants agreements set forth in paragraph 3 below, Property
12 Manager waives and relinquishes all right to all amounts owed by Occupant to
13 property manager as of the date of this Agreement including the Sanctions amount
14 and the rent and fee amount (the Forgiveness).
15 g. Page 2, 6th Paragraph, Lines 1-8, state “Occupant releases and forever discharges the
16 owner of the property… from all claims, suits, actions, charges, demands, judgments
17 and cost present and future, known or unknown, both legal and equitable in any
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manner…
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h. Page 3, 1st Paragraph, Lines 1-3, state “The release given by occupant shall remain in
effect as a full and complete release notwithstanding the subsequent discovery by
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occupant of any additional claims or facts.”
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i. Page 3, 2nd Paragraph, Lines 1-5, state “Occupant hereby covenants and agrees not to
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further pursue the Second Lawsuit or otherwise sue or bring any legal action against
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the owner of the Property, Property Manager or their officers, members, partners,
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employees, affiliates or agents, either directly or indirectly, regarding or related in any
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manner to the event described in recitals hereto…”
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On August 13, 2023, the Plaintiff, pursuant to California Evidence Code Section 453
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and Federal Rule of Evidence 201, made requests to this Court to take judicial notice
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of documents as exhibits to his motion. The motion was relevant, non-argumentative,
3 nor mischaracterizes the docket or foundation of this case. The attached records
4 consisted of relevant and factual claims whose authenticity may not be questioned
5 and may be judicially noticed.
6 On August 29, 2023, the Plaintiff emailed Tyler Pierce saying “As you may be aware, on
7 August 13, 2023, I filed a Request for Judicial Notice in opposition to the defendant’s
8 Settlement and Release Agreement made as of August 12, 2023, then on August 15, 2023, I
9 emailed Tyler saying “Mr. Pierce – as you may be aware, I have contested various portions of
10 the settlement and release agreement, and in doing so as first agreed upon between myself
11 and Mr. Murga I agreed to move out while exercising my right to continue litigation. I have
12 most recently begun the process of locating suitable options and have come across a suitable
13 location for myself. However, I am at the discretion of the new facility and their first available
14 until does not become available until the 29th/30th of this month,” when on August 16,
15 2023, Tyler responded “Oliver – We’d be ok for you to move out on August 30th. I cc’d Edwin
16 and Pablo so they know.” As we all know I have contested various actions throughout this
17 ordeal and honestly do not understand why the courts find it so difficult to resolve a simple
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contract dispute despite its many moving parts. When I filed my RJN my hopes were that the
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court would review the notice and make some sort of determination during our previously
scheduled hearing on the 23rd as I had hoped instead of me filing a “OPPOSITION TO MOTION
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TO THE SETTLEMENT AGREEMENT; MEMORANDUM OF POINTS AND AUTHORITIES; AND A
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DECLARATION WITH EXHIBITS” the judge would have merely made a statement on record
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ruling on the matter. In the interim, as stated to Tyler on August 15, 2023, I had begun the
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process of packing and looking for a more suitable location and had located such a location
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when on August 18, 2023, I fielded my question to a law firm in Santa Monica and just as I
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thought a motion in opposition to the settlement and release should have been filed in
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conjunction with the RJN. While breakdowns in settlements do occur, I however find this
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particular situation needs to be addressed by the courts as there are too many underlying
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issues that need to be addressed. When on August 12, 2023, I signed your Settlement and
3 Release Agreement I did so under duress as indicated in my RJN, but all settlement
4 agreements in civic matters should be enforced pursuant to Code of Civil Procedure § 664.6.
5 When I signed the agreement I verbally agreed to your employee that I did not agree with all
6 the terms, I asked her who would sign on behalf of Storquest and had asked for a complete
7 copy of the agreement after I signed it in which she refused and when I went to grab the
8 agreement after just signing it to take a picture of the agreement she stated she felt
9 threatened by my attempt to take a picture and then her coworker told her to call the police
10 on me. A motion opposing a settlement agreement “contends that the agreement should be
11 denied on the grounds that (1) the settlement agreement is not valid as the parties did not
12 agree to all the material terms; (2) the settlement agreement was not signed by all the
13 parties nor was it made orally before the court, thus the settlement agreement does not
14 comply with Code of Civil Procedure section 664, and 3) a dismissal with prejudice of the
15 lawsuit by the moving party would deprive the Court of subject matter jurisdiction.” When
16 we appeared in Court on August 23, 2023, and the Court on its own motion issued a tentative
17 ruling saying “no ruling will be made on any substantive motions until Judge Murillo makes
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her decision about the assignment of the case” she indicated no ruling would be made on my
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opposition to the settlement and release agreement. While I did make a standing reservation
for a new storage unit at two different locations neither unit oddly enough is still available
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and considering a ruling from the bench on the matter is appropriate my belongings are still
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in the unit and I add the day I signed that agreement your employee despite the 14 days
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written on the agreement insisted I be done moving same day by 5 pm as she stated “I’m
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here all day and if you need any help moving out by end of day the carts are unlocked.” This is
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the very behavior I keep expressing should be addressed as were beyond money in all of this
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and despite Sukayna's pleadings I still don't have access to the building except to walk
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through the manager's office where Edwin works which only complicates the matter as I try
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and avoid any further conflict. I should have normal access like all the other tenants which
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don't access the property through the manager’s office.” (EXHIBIT B)
3 On August 29, 2023, Tyler Pierce, Corporate Counsel, Director of Legal Affairs for the
4 defendants emailed the Plaintiff saying “Thanks Oliver. Attached for your records is the fully
5 executed settlement agreement signed by our COO. Please vacate the unit by EOD tomorrow
6 as agreed. I cc’d Edwin and Pablo so they are in the loop.” (EXHIBIT C)
7 On August 29, 2023, the Plaintiff emailed Tyler Pierce saying “Communication received
8 and as previously noted I provided my last best answer in legal format and as difficult as this
9 may be it is the responsibility of the court and not a bully that decides all legal matters as that
10 is the purpose of the courts. Taken under advisement and our next hearing on the matter is
11 before the court scheduled for September 14, 2023, legal and binding and what is the date of
12 this signature as it were not signed in front of me that Saturday morning? (EXHIBIT D)
13 On August 30, 2023, the Plaintiff emailed Tyler Pierce saying “Please be advised the
14 matter of Oliver B. Mitchell III v William Warren Group et. al., Case Number 23STCV10822 is
15 being removed to the district court effective immediately. In doing so please be advised when
16 on August 23, 2023, the Superior Court of California made a tentatively ruling indicating no
17 motions or merits would be ruled upon until September 14, 2023, it set aside for a later
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argument the contested settlement and release agreement. If you attempt to further restrict
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my access, direct me to access my unit via the manager's office, attempt to lock, drill, change
or over lock my unit you would have done so in violation of the law. Federal jurisdiction in
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this matter now applies.” (EXHIBIT E)
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On September 1, 2023, the Plaintiff emailed Tyler Pierce saying “Dear Mr. Pierce, this
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evening at or around 5:25 pm I entered the facility via the manager’s office as my access code
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into the facility is still disabled and has been disabled since the 12th of August when I signed
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your settlement and release agreement. While there I was informed you advised Edwin who
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advised property staff to overlock my unit and to contact you if I had any questions. For the
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life of me I do not understand the difficulty anyone has with following the law. On August 29,
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2023 at 12:01 pm I emailed you and advised you not to lock my unit or restrict my access
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saying “on August 23, 2023, the Court on its own motion issued a tentative ruling saying “no
3 ruling will be made on any substantive motions until Judge Murillo makes her decision about
4 the assignment of the case” indicating no ruling would be made on my opposition to the
5 settlement and release agreement.” I then continued “This is the very behavior I keep
6 expressing should be addressed as were beyond money in all of this and despite Sukayna's
7 pleadings I still don't have access to the building except to walk through the manager's office
8 where Edwin works which only complicates the matter as I try and avoid any further conflict. I
9 should have normal access like all the other tenants which don't access the property through
10 the manager’s office.” Oddly enough the unit is locked this evening but was unlocked
11 yesterday evening when I accessed the property yesterday. Please be advised you are now
12 and have been violating both federal and state law. In my pleadings from the onset, I
13 indicated I am more than a tenant of StorQuest I am also a federal sector employee turned
14 whistleblower and in my pleadings, I have itemized the various documents held in my
15 possession within the defendant's storage facility. Items held within the defendant’s facility
16 within my storage unit contain the “complaints and evidence I have submitted over the years
17 that substantiate my claims of racism, discrimination and whistleblowing” to name a few, and
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those reports under law I 'am entitled to have. Per the Code of Federal Regulations 29 C.F.R.
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1614, any copy of an Investigative File or Report of Investigation including a summary of the
investigation that is provided to the complainant (myself) “becomes the sole property” of the
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complainant or aggrieved person and at [no] time is the complainant (myself) legally bound
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to return, nor are the respondents legally entitled to return or receipt of the Investigative File
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or Report of Investigation or any documents or portions thereof. I keep advising you to follow
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the law for a reason. When you sent me a lien and lockout notice it became your legal
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responsibility to serve me with small claims papers in order to perfect a lien and lockout and
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instead you served me with a settlement and release agreement. While in the middle of
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litigation you have repeatedly disabled my facility access code forcing me to make contact
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with management and staff while attempting to lock me out which is in violation of the law as
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we attempt to deliberate this case. You and your Company have retained outside counsel
3 who should be advising you on these matters - instead you are using your internal legal
4 capacity to act outside the scope of retained counsel placing counsel in an uncomfortable
5 position as they continue to convey to the court I have continued and unrestricted access
6 while you circumvent retained counsel in an effort to defeat the courts. I cannot express this
7 enough – unlock my unit and un-restrict my access and allow the court to do its job because
8 as it stands you are forcing my hands to remove this matter to federal court and in reality it
9 were you and counsel who should have removed the matter to federal court when you
10 learned I am a federal whistleblower raising questions of jurisdiction as the matter is now
11 supposed to be heard in federal court. The best advice I can give you is to unlock the unit, not
12 restrict my access and allow counsel you retained to do their job because in all related
13 matters it has already been written ON COURT DOCKET that these matters are criminal and
14 forcing me to remove this matter to federal jurisdiction may only further involve the William
15 Warren Group in all matters criminally related. Irregardless of what I may have exposed or
16 exposed on the matter it was bad enough to begin with and all subsequent matters only
17 further complicate these matters. Will you unlock my unit because you're forcing me to seek
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an injunction against [you] as it has not been counsel who advised I were locked out it has
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been you and moving forward I should be dealing with Kyle and Sukayna (counsel you
retained) – and not you. Please contact the property staff and instruct them to remove the
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overlock preferably before Monday morning September 4, 2023.” (EXHIBIT F)
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On September 2, 2023, the Plaintiff phoned the facility at (323) 873-2754 and were
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advised during a call that lasted for 1 minute and 40 seconds at 10:30 that no order were
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given to unlock my unit.
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On September 2, 2023, the Plaintiff phoned the facility at (323) 873-2754 and were
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advised during a call that lasted for 4 minutes and 43 seconds at 5:16 pm that on site staff
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were advised by Edwin Murga that the Plaintiff unit would be unlocked under the one
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condition that the Plaintiff arrive at the defendants facility with a moving truck and move out
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immediately. In the event the Plaintiff were not prepared to move out immediately the unit
3 would remain locked thus barring the Plaintiff continued access per the defendants pleadings
4 and motions.
5 On September 3, 2023, the Plaintiff emailed defense counsel saying “On August 12,
6 2023, the Settlement and Release Agreement provided to me reads 1st Page, 1st paragraph,
7 Line 3 says “and William Warren Properties, Inc., a California corporation (Property Manager).
8 The “William Warren Properties (WWP) is a real estate investment firm specializing in the
9 acquisition of high quality self-storage properties with the potential for economic growth and
10 capital appreciation” and is not the (Property Manager) as described within your settlement
11 and release agreement as the William Warren Group (WWG) is a national self-storage
12 management company that manages self-storage assets for its own accounts, as well as for
13 other third party investors,” meaning the William Warren Group is the true Owner and
14 operator of the StorQuest self-storage brand and not the William Warren Properties as
15 written. When on May 12, 2023, I refiled my case I did so under Oliver B. Mitchell III v William
16 Warren Group, Inc., and the Court captioned the case as Oliver B. Mitchell III v William
17 Warren Group et. al. “Et al.” is an abbreviation for the Latin phrase “et alia” which translates
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to “and others” in the English language. This phrase indicates that the author is paraphrasing
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a reference list that contains at least two additional names that have not been listed. Thus,
your settlement and release agreement is null and void on its face as you misrepresented
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your relationship between myself and the Property Manager which is not the William Warren
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Properties but the William Warren Group as filed. As you are aware on September 2, 2023, I
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filed “PLAINTIFFS NOTICE OF EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER
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AND PRELIMINARY INJUNCTION. [CONCURRENTLY FILED WITH (1) MEMORANDUM OF
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POINTS AND AUTHORITIES], and MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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OF AN EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY
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INJUNCTION BARRING DEFENDANTS FROM ACTING IN VIOLATION OF THE CALIFORNIA
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BUSINESS AND PROFESSIONS CODE SECTION 21700 ET SEQ.,” and the Settlement and Release
2
Agreement you had me sign is not in accordance with your Settlement and Release
3 Agreement, as Page 3, Item 10 states “this Agreement shall be construed and enforced in
4 accordance with the laws of the State of California.” Can a settlement agreement be
5 overturned? If the settlement is defective, then one of the parties may overturn a settlement
6 agreement. If a settlement agreement is entered into under fraud or duress, then it will be
7 ineffective. Mutual mistakes or misrepresentations by either party can also be grounds for
8 overturning a settlement agreement. On what grounds invalidate a property settlement
9 agreement? A settlement and release agreement may be invalidated for “fraud,
10 nondisclosure as fraud, duress, illegality, mistake, and undue influence” and when on August
11 13, 2023, I filed a proper RJN, I indicated “if a party threatens or carries out an act that they
12 are not legally entitled to do to push the other party into accepting the settlement, then the
13 settlement was made under duress” and your settlement and release agreement constitutes
14 fraud and would be rendered null and void as if it never existed. In essence what you did
15 were you locked my unit then used coercion to force me to sign and accept your settlement
16 agreement in exchange for returning my property to me all while this matter is currently in
17 court as you clearly wrote you wanted to "avoid" any court litigation on the matter. Then
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when I signed your settlement and release agreement on August 12, 2023, so I would gain
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access to my property by right as a matter of law, I then legally challenged your settlement
and release agreement where you have again locked my unit and am holding my property
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hostage unless and until I submit to your demands. When on September 2, 2023, I phoned
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the facility to inquire about the lock on my unit and your staff indicated to me that Edwin
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informed them I arrive with a moving truck and move out - and not until then the unit would
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not be unlocked you have engaged in an illegal conversion in the eyes of the law. At this time,
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based off your behavior I have taken the liberty of notifying the FBI, the State Attorney
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General Office, several members of the press, and several Members of both the House and
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Senate regarding this ongoing matter against all Persons acting on behalf of the William
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Warren Group as property held within my possession (legally) pertains to matters of national
2
security in which you are [n]ot privileged to obtain, hold, copy, pdf, disseminate, or distribute.
3 I advised you not to lock the unit as you wrote within your Agreement and as counsel you
4 have retained has expressly written to the court, the very behavior I complain of, you Mr.
5 Pierce and Mr. Murga commit behind the scenes as you admit you were following the law
6 and I have pointed out numerous times you are not following the law. Lasty, Mr. Murga has
7 used his last chance to tell me “I owe him and I should get the fuck out.” I view his statement
8 and subsequent actions of withholding my property to be both racially and economically
9 motivated. For the record I am not a hostage nor am I some kind of bitch. Oliver.” (EXHIBIT G)
10 On September 4, 2023, the Plaintiff emailed defense counsel saying “PLEASE TAKE
11 NOTICE that on September 14, 2023, at 8:30 am or as soon thereafter as the matter may be
12 heard, in Department 14 of the Los Angeles County Superior Court, located at 111 N. Hill
13 Street, Los Angeles, California 90012, Plaintiff, Oliver B. Mitchell III will and hereby do move
14 this Court for an order granting Plaintiff leave to file their First Amended Complaint against
15 Defendants William Warren Group WWG et al., and all Persons acting on its behalf, each of
16 them for Attempted Extortion, Breach of Covenant of Good Faith and Fair Dealing, Negligent
17 Misrepresentation, Material Alteration of Written Instrument, California Control of Profits of
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Organized Crime Act,” comprised of California Penal Code sections 186-186.8., RICO Act (18
19
U.S.C. § 1962(c), (d)), Sexual Harassment, Sex Based Discrimination, Gender Violence,
Negligence, Conversion, Breach of Contract, Civil Conspiracy, Intentional Infliction of
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Emotional Distress, violations of the California Business and Professions Code Section 21700
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et seq., Declaratory and Injunctive Relief, violations of the Consumer Protection Act, and
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national and locally declared emergency orders Declaratory. The Motion is made pursuant to
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California Code of Civil Procedure section 473(a)(1) and is based on this Notice of Motion, the
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Memorandum of Points and Authorities, the proposed First Amended Complaint, all of the
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files and records of this action, and on any additional material that may be elicited at the
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hearing of the Motion. The Plaintiff has taken action after identifying that the facts pleaded in
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the Complaint supported additional legal theories that were not pleaded in the Complaint.
2
The Plaintiff informed Defendants’ counsel of Plaintiffs’ intent to seek leave to amend
3 identifying the need to amend the Complaint before their next calendared hearing date,
4 therefore, Defendants cannot legitimately claim there was an unreasonable delay in bringing
5 this Motion. Further, if the Motion is granted, Defendants will be in effectively the same
6 position as if the proposed First Amended Complaint had been filed on the date the
7 Complaint was filed. In light of the fact that there is no trial date set in this matter—and
8 Defendants have yet to request that the Court set one—no prejudice can arise from the
9 Motion being granted. This is simply not the “eve of trial” type scenario where the potential
10 prejudice flowing from a contemplated amendment justifies ignoring “the strong policy
11 favoring the liberal allowance of amendments.” Mesler, 39 Cal. 3d at 296.” (EXHIBIT H)
12 On September 11, 2023, the Plaintiff emailed defense counsel saying “Tyler, Per Rule
13 34 - Producing Documents, Electronically Stored Information, and Tangible Things, or
14 Entering onto Land, for Inspection and Other Purposes – I am requesting permission to
15 inspect, videotape, and photograph the contents in my storage unit which may contain “any
16 designated documents or electronically stored information—including writings, drawings,
17 graphs, charts, photographs, sound recordings, images, and other data or data
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compilations—stored in any medium from which information can be obtained either directly
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or indirectly, to include any designated tangible items held within the William Warren Group
dba Storquest possession, custody, or control. I am requesting permission to inspect my
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storage unit prior to our next scheduled hearing on September 14, 2023, any day between
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9/12 – 9/13/23 between the hours of 12 to 5 pm as I estimate the inspection to last no more
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than ten minutes of your time. In the event you should object per Rule 34 while this is not a
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motioned request must state why any responsive materials are being withheld on the basis of
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that objection and the objection to part of a request must specify the part and permit
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inspection of the rest. Please advise. Oliver.” (EXHIBIT I)
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On September 12, 2023, the Defense emailed the Plaintiff saying “Oliver: Thanks for
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the email. Rule 34 does not apply here, nor is it relevant. You can remove your belongings
2
once you move out, pursuant to the valid Settlement Agreement you signed. Until then, your
3 things will remain locked, as allowed by the proper lien process. Regards, Sukayna Jaidi.”
4 (EXHIBIT J)
5 On September 12, 2023, the Plaintiff emailed the defense saying “That’s odd as I
6 thought Mr. Pierce would be the first one to respond and object. Nonetheless, I am a bit
7 confused as to why you would say Rule 34 does not apply. I thought most cases if not all
8 cases are decided based off the rules, laws, and regulations that govern court proceedings as
9 most decisions from the bench are decided based off those very rules, laws, and regulations.
10 If Rule 34 is a commonplace practice, then how do you describe it as “not applicable and non-
11 relevant?” Your response of “You can remove your belongings once you move out, pursuant
12 to the valid Settlement Agreement you signed. Until then, your things will remain locked, as
13 allowed by the proper lien process,” so I will assume this is your response to my request and
14 your objection to my request. You stated “valid Settlement Agreement.” What’s valid about
15 it? I find nothing valid in accordance with the law. You stated “allowed by the proper lien
16 process.” What has been valid in your lien process? If memory serves me correctly, I filed
17 against you for violations of the “process” and the law says you were to file against me in
18
court first to perfect the lien and lockout process. According to the American Bar Association
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“Rule 34 of the Federal Rules of Civil Procedure provides for discovery and inspection of
documents and things in the course of developing a case for trial. Subsection (b)(1)(A) states
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that the request must “describe with reasonable particularity each item or category of items
21
to be inspected.” See Fed. R. Civ. P. 34(b)(1)(A).” As previously filed, weren’t the previous
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case scheduled for a trial before bad motion practice intervened? While the objection is
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noted Rule 34 clarifies all objections saying “Although a party is permitted to object to a Rule
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34 request, subsection (b)(2) sets forth specific guidelines that the responding party must
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follow when asserting objections. Effective December 1, 2015, subsection (b)(2)(C) was
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amended to require that “an objection to a . . . request must state whether anything is being
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withheld on the basis of the objection.” Fed. R. Civ. P. 34(b)(2)(C). Failure to follow subsection
2
(b)(2)(C) by stating whether responsive documents were withheld based on the objection
3 could subject a responding party to having the objection overruled, or even lead to sanctions.
4 See, e.g., Chow v. SentosaCare, LLC, 19-cv-3541, 2020 WL 559704, at *3 (E.D.N.Y. Jan. 23,
5 2020). In other words, what I thought would be a simple task has turned into the filing of a
6 motion seeking an overruling to your objection making your own statement of hoping to
7 avoid “unnecessary” motion practice avoidable now unavoidable. Admit it – all of you like this
8 case don’t you – I help keep you employed? But aren’t their other litigants you could be
9 focusing on like perhaps a murderer – those cases take years? Maybe I should ask for a
10 motion of summary judgment as I have read prior cases of your client and while I see all kinds
11 of things this case can be easily resolved but what I see in this case vs prior cases is a bit of
12 personal politics going on here. Your client paid $16 million to dispose of a case and my case
13 is worse than that and I didn’t ask for that - yet. Oliver.” (EXHIBIT K)
14 On October 14, 2023, the Plaintiff emailed the defense saying “Dear Sukayna, Having
15 received and reviewed your Notice of Lodgment and the Defendant’s Opposition to Plaintiff’s
16 Notice of Motion and Motion For Leave to File Amended Complaint; Memorandum of Points
17 and Authorities; Declaration of Sukayna Jaidi, I will introduce the attached documents during
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our next proceedings as well as file the necessary motions to include this information as part
19
of the official court record you wish to avoid motion practice on as stated in your moving
papers. As previously communicated to the court, as you may be aware, this case goes well
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beyond that of any ordinary self-service case and contains elements outside the scope of an
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ordinary self-service case. As demonstrated in my papers to the Court, “The Plaintiff is more
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than a current tenant of the defendants. The Plaintiff is a former career federal employee
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turned VA whistleblower who had filed complaints alleging fraud, waste, abuse, and
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discrimination within a federal agency whose documents are currently the subject of ongoing
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litigation. In addition to said documents the Plaintiff maintains personal effects, medical
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records pertaining to non-consensual research, and documentation, financial records, and
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documents related to private businesses established and owned by the Plaintiff that are held
2
for safe keeping at the defendant’s self-service storage facility. The destruction, disposal, or
3 ceasing of operations for the Plaintiff to include the restriction of access against the Plaintiff
4 would cause irreparable injury to the Plaintiff and any harm to Defendant from enjoining the
5 destruction, disposal of, or cessation of operations of the Plaintiffs assets would be
6 outweighed by the actual and potential conversion effects resulting thereof…” Having read
7 your most recent filings I offer the following; it is my most professional opinion that your
8 office and the defendants are nothing more than crooks. Your attempt to avoid motion
9 practice is nothing more than an attempt to deny wrongdoing and your current pattern of
10 practice is nothing more than you attempt to cast doubt and paint the Plaintiff in a light most
11 unfavorable thereby attempting to avoid prosecution against the defendants. It is noted that
12 once I changed the language of my papers to include all the employees, officers, share and
13 stakeholders of the defendants you have changed the language of your moving papers to
14 effect and minimize the damage caused by the defendants against me. In response to your
15 opposition filed with the court on October 3, 2023, and your lodged exhibit, on October 16,
16 2023, during our regularly scheduled hearing I will introduce the attached information as well
17 as file the necessary motions to include this information as part of the official record. Briefly,
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before I describe the attached exhibits you should familiarize yourself with our previous
19
conversations.
1. In an effort not to waste anymore judicial time and resources to both parties would
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you please indicate you if plan on filing a response to the notice of related cases, a
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new motion to strike in response to the notice of related cases, or a new demur to the
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notice of related cases as I am prepared to seek and file a first amended complaint in
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this second suit.
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2. Based upon the language of your settlement and release agreement my request for
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judicial notice were filed as by law. For your reference I have attached the official
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court filing as the documents were accepted by the court this morning. In the
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meantime, any further aggravated harassment whenever I am at the defendant's
2
property is deemed continued retaliation. By law whenever an agreement is contested
3 it is the duty of the court to decide the validity of the agreement in question.
4 3. Hello Tyler, I just arrived at the facility and were advised by Edwin that you informed
5 him to over lock my unit and begin the lien process. As I am currently on line with the
6 Los Angeles Police Department, briefly I informed him I felt this behavior is now
7 criminal and have contacted the LAPD for a civil standby as he told me I wouldn't get
8 my property back. I forwarded you my email response sent to the firm you retained to
9 represent you. Oliver.
10 4. Lastly as written and I can continue in writing while the LAPD were present before the
11 delivery and signing of the agreement property staff verbally agreed that litigation
12 could continue if I chose as I agreed to vacate and I agreed to vacate within 15 days
13 continuing litigation. A verbal agreement can be considered a contractual obligation
14 and a LAPD officer can be called to testify.
15 While reviewing your attached exhibit (the notice of lodgment) I had previously
16 indicated to you that the provided video was “edited” and having reviewed the attached
17 video it seems not in line with the writings contained within your most recent opposition. If
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memory serves me correctly “extortion” is against the law and a criminal act and when the
19
defendant’s employee demands money in exchange for the "release" of an item, a person, or
anything of value, in this situation it can be construed as extortion. In your attached lodgment
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did you not hear the defendant's employee say to me I would not get my property back after
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I asked and stated to him what he had previously stated to me? Extortion is against the law
22
and defamation of character in this proceeding is a criminal act. When on September 5, 2023,
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in my Motion to File an Amended Complaint, I indicated violations of the “California Control
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of Profits of Organized Crime Act,” comprised of California Penal Code sections 186- 186.8.,
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RICO Act (18 U.S.C. § 1962(c), (d)), I did so in response to defendants acts of extortion and
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while you now object to my motion, per the law I am not required to file or fully disclose the
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allegations made within a newly proposed complaint unless accepted by the court, thus your
2
argument that you would be unprepared in my opinion is moot. You people [a]re criminals
3 and that is apparent by definition of the law. You should pay close attention to the attached
4 documents as I raise various elements regarding your tactics in adjudicating this case. For
5 example, pay attention to the statement “They are just trying to hassle you into dropping
6 your claims” and this case would be considered a "claim," also please familiarize yourself with
7 all attached documents. Should you have any objections to my notice of adding these exhibits
8 – noted – but I’ll add them anyway to the court record you wish to avoid any motion practice
9 in hopes of making this go away. Please be advised as a result of the nature of this current
10 dispute all actions and proceedings could be prosecuted under United States Code Title 18
11 calling for criminal prosecutions against all those found guilty. Oliver.” (EXHIBIT L, L1, L2)
12 On October 16, 2023, the Plaintiff emailed the defense saying “Dear Sukayna, Briefly,
13 based on this morning’s hearing and the courts subsequent tentative ruling your continued
14 response to my summons and complaint and subsequent filings have been a demur filed by
15 the defendants in which “you (Storquest) now demur to each of the causes of action on the
16 grounds that each fails to state facts sufficient to constitute a cause of action and that each is
17 uncertain.” In the courts tentative ruling in which I first chose to make oral arguments then
18
decided against the court states: Defendant Warren now demurs to the entire complaint, on
19
the grounds that it fails to state facts sufficient to support any cause of action. A pleading is
“only” uncertain if it is ambiguous or unintelligible and the pleading requirements must
20
contain 1). a short and plain statement of the grounds for the court's jurisdiction, 2). a short
21
and plain statement of the claim showing that the pleader is entitled to relief, 3). a demand
22
for the relief sought, and 4). each allegation must be simple, concise, and direct. No technical
23
form is required. Defendant Warren argues that Plaintiff’s complaint is barred by res judicata,
24
as it substantially duplicates the operative complaint in Case No. 22 STCV 13511, which was
25
dismissed on May 9, 2023. This is partially correct and partially not. On May 9, 2023,
26
Defendant Warren brought an ex parte application to dismiss the case, pursuant to California
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Rules of Court Rule 3.1320(h). That application was granted and the case was dismissed
2
pursuant to Code of Civil Procedure § 581(f)(4). Such dismissals must be with prejudice and
3 carry res judicata effect. See Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330. There are
4 four elements of res judicata? The doctrine of res judicata bars subsequent litigation where
5 four elements are met: (1) the prior decision was rendered by a court of competent
6 jurisdiction; (2) there was a final judgment on the merits; (3) the parties were identical in
7 both suits; and (4) the prior and present causes of action are the same. In Cano v. Glover
8 (2006) 143 Cal. App. 4th 326, the court held that a defendant who was sued on a contract
9 containing an attorney fee clause could recover attorney fees after he was dismissed from
10 the action, notwithstanding the existence of the contract was questionable. Interpreting Cal.
11 Civ. Proc. Code § 581(f) and dismissing defendant with prejudice from fourth amended
12 complaint where court sustained three demurrers with leave to amend and plaintiff "was
13 unable to amend the allegations of his complaint to satisfy the court that a cause of action was
14 stated," despite "several opportunities to do so.” Nowhere in the dismissal on May 9, 2023,
15 does the court state the action was dismissed as the Plaintiff (myself) were unable to amend
16 the allegations of my complaint to satisfy the defendants or the court that a cause of action
17 was stated.” Instead, the court dismissed the complaint without prejudice, allowing me the
18
opportunity to refile the matter. In Cano v. Glover, the court noted “Section 581, subdivision
19
(f) provides: "The court may dismiss the complaint as to that defendant when after a
demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend
20
within the time allowed by the court and either party moves for dismissal." The phrase "may
21
dismiss" means discretionary dismissal. (Weil Brown, Cal. Practice Guide (Rutter 2005) Civil
22
Procedure Before Trial). The right to dismiss without prejudice is expressly permitted by other
23
subdivisions of section 581 but section 581, subdivision (f)(2) does not so provide. Rule 325(f)
24
provides for dismissal, by ex parte application or noticed motion, of " the entire action and
25
for entry of judgment after the expiration of the time to amend following the sustaining a
26
demurrer. Judgment may only be entered if the case has been adjudicated to finality. After
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the dismissal of the first complaint, you nor the defendants never sought a judgment entered
2
on the record. Section 581, subdivision (f)(2) ". . . gives the defendant the right to obtain a
3 court order dismissing the action with prejudice once the court sustains a demurrer with
4 leave to amend and the plaintiff has not amended within the time given." You failed to do so.
5 “They are barred by the doctrine of res judicata, and may not form the basis of any future
6 lawsuit” per the court is erroneous itself. The four elements forming the basis of res judicata
7 haven’t been met here. When on May 9, 2023, the court on its own motion dismissed the
8 prior complaint without prejudice despite the defendant's ex parte application the court
9 exercised its own discretion thereby giving the plaintiff an opportunity to refile the matter as
10 a second lawsuit. In your ex parte application to the court, you stated “pursuant to California
11 Rules of Court 3.1320(h), Defendant makes this ex parte application regarding issues related
12 to the proper dismissal of the Complaint with prejudice because “trial is fast approaching.”
13 The 2023 California Rules of Court, Rule 3.1320. Demurrers, (h) Ex parte application to
14 dismiss following failure to amend, states “A motion to dismiss the entire action and for entry
15 of judgment after expiration of the time to amend following the sustaining of a demurrer may
16 be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).”
17 Your opening argument strongly suggest your intent and your intent were to have the case
18
dismissed because as you stated “trial is fastly approaching” and “you wish to avoid motion
19
practice.” I can argue your intent from the start has been to avoid the law by evading the law
(prosecution). At every stage of an action the Court may "disregard any error, improper
20
ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said
21
court, which does not affect the substantial rights of the parties."]; Code Civ. Proc. § 473(a)(1)
22
["The court may, in furtherance of justice, and on any terms as may be proper, allow a party
23
to amend any pleading . . . .") Shortly, this morning’s tentative rulings are littered with
24
inconsistent application of the law. Res judicata is misapplied, the rules of evidence regarding
25
the denial of my RJN are misapplied, and the very fact that you never filed a motion for entry
26
after dismissal after the court sustained your demurrer based on your statement to dismiss
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because the trial was approaching are all distinguishable facts that may heard on trial. The
2
court says “But any acts which occurred after the filing of the previous case could not have
3 been brought in that case. Therefore, they may form the basis for a new case,” then says
4 “Plaintiff now seeks leave to amend his complaint to assert claims seeking the rescission of
5 the settlement agreement. However, the same rule which preserves some of Plaintiff’s claims
6 from res judicata also prevents him from adding claims for rescission of a contract signed
7 after the filing of this case.” Double jeopardy applies. The signing of the settlement
8 agreement occurred after the filing of this case and after April 22, 2022, the date Plaintiff
9 filed the previous case as noted by the court. The signing of the settlement agreement after
10 April 22, 2022, points to the facts sustained within your demurrer and if the complaint itself
11 would be barred by res judicata then the settlement agreement itself is NULL AND VOID. You
12 can’t enforce a settlement agreement on claims the court says are barred – can you? In the
13 meantime, all the appropriate motions and filings will be submitted to the court to include all
14 relative arguments. If the settlement agreement is null and void then you need to unlock my
15 unit IMMEDIATELY, UNRESTRICT MY ACCESS, RESTORE MY GATE CODE ACCESS and please be
16 advised I can produce witnesses who can attest to the defendants entering my unit without
17 my permission and without informing me prior too; and if absolutely I can contact the LAPD
18
for a civil standby as they wait for the defendants to unlock my unit as the court today stated
19
the settlement agreement itself is barred by res judicata. I expect a communication no later
than 4 pm today advising me the unit and my access has been restored so to avoid your liable
20
statement that I lied to the cops. I can always call them so they can be there instead. Please
21
respond via email when my gate access and unit is UNLOCKED TODAY via email and not
22
phonecall. Oliver. *FYI, since your strongarm tactic of that settlement agreement is void then
23
disparagement no longer applies as I can now send this communication as a whistleblower to
24
the press. What a headline - storage company holds whistleblower's evidence hostage while
25
veterans die. Also, I'm familiar with vexatious litigant tactics as well. I do business honestly
26
and you won't survive this being dishonest - kind of like when Tyler told me - take the $2,000
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or lose in court. Did you bribe the judge? All I have to do is plant the seed in the press.”
2
(EXHIBIT M)
3 On October 16, 2023, the Defense emailed the Plaintiff saying “Oliver – Section 21703
4 of the California Self-Service Storage Facility Act permits us to terminate your right to use
5 your space upon appropriate notice, which we provided. If you would like to schedule a time
6 to remove your possessions, we will allow you to access your space for the limited purpose of
7 removing your items from our property. Tyler.” (EXHIBIT N)
8 On October 16, 2023, the Plaintiff emailed the defense saying “Your communication
9 caught me on the fly. Received and offer rejected. My full response you can expect shortly.
10 Oliver “ (EXHIBIT O)
11 On October 18, 2023, the Plaintiff emailed the defense saying “As we are aware the
12 basis of the tentative ruling on October 16, 2023, was res judicata. As previously noted, I
13 believe in accordance with the law res judicata does not apply in this case and the
14 misapplication of the law has occurred. Res judicata bars a second suit where (1) it involves
15 the same parties as the first suit; (2) the first suit resulted in a final judgment on the merits; (3)
16 the second suit raises claims based on the same transaction or occurrence as the first suit;
17 and (4) the claims in the second suit were raised or could have been raised in the first suit.
18
The filing of the second suit resulted in a notice of related cases by law yet the court again
19
misapplied the law and ruled the cases are not the same yet in tentative ruling admitted the
cases were identical – therefore element one (1) has been met. The second element (2) in the
20
first case resulted in an order to dismiss without prejudice by law at the discretion of the
21
court. The second court rules that the first case should have been dismissed with prejudice
22
upon a ruling on the demur which is both false and misleading. Therefore, the applying of res
23
judicata fails on element two. Elements three (3) and four (4) both stand and fail as the
24
tentative ruling ruled that due to res judicata the suit was barred by time frame restrictions
25
and that only claims after a certain period would be admissible as a new complaint. This
26
argument too fails. Any acts or occurrences made into claims that occurred after the filing of
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the complaint would form the basis of a new complaint as noted or an amended complaint as
2
motioned. In either case with res judicata misapplied the filing of a new complaint as ordered
3 would simply relate any new claims to all old claims as material evidence despite res judicata.
4 In essence, Res Judicata fails on the merits because a dismissal for lack of standing is not a
5 final decision on the merits for purposes of res judicata and as the Supreme Court explained
6 more than 50 years ago in Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955), res
7 judicata does not bar a suit, even if it involves the same course of wrongful conduct as alleged
8 earlier, so long as the suit alleges new facts or a worsening of the earlier conditions, thus my
9 motion to file an amended complaint to show “new facts and an worsening of the earlier
10 conditions" should have been granted. In addition to any motion for reconsideration and
11 subsequent filings I am requesting oral arguments that will assist the Court as it reviews the
12 various factual allegations at issue to assess, de novo, whether the court properly barred my
13 case under res judicata. Lastly, when reviewing the court's tentative ruling as explained to
14 Tyler previously, the court in effect ruled the settlement agreement to be null and void itself
15 when the court ruled the complaint to be barred by res judicata. In doing so, it was the
16 defendant's responsibility to rescind the agreement as stated, however, the defendant's
17 response were that “we are” following the law when in fact had you done so from the start it
18
would have been the defendants that filed against me in court as prescribed by law. In
19
essence, per the court’s ruling the settlement agreement itself could form the basis of a new
complaint as the court ruled as the signing of the agreement itself occurred after the filing of
20
the complaint forming a new complaint for breach of contract. In other words, were right
21
back where we started three years ago. Unless you have something to offer in accordance
22
with the law for known violations of the law, we can continue the matter. In doing so I will
23
request the court via admissions, to examine the prior history of cases litigated against the
24
defendants to show a pattern of misconduct in determining a fair and equitable amount in
25
damages. Oliver.” (EXHIBIT P)
26
LAW AND ARGUMENT
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A primary ground for the defendants demurrer is noticed within their “Meet and
2
Confer re: Demurrer and Motion to Strike” saying “we wish to avoid any unnecessary motion
3 practice and hope to resolve this matter without court intervention.”
4 In ruling on a demurrer, the Court must accept as true all well-pleaded factual
5 allegations of the complaint, but not "contentions, deductions or conclusions of fact or law."
6 (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) The Court must deem the facts alleged to be
7 true, "however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co.
8 (1981) 123 Cal. App. 3d 593, 604; Universal By-Products, Inc. v. City of Modesto (1974) 43
9 Cal.App.3d 145, 151.) The Court must give the complaint "a reasonable interpretation,
10 reading it as a whole and its parts in their context." (Blank v. Kirwan, supra, 39 Cal. 3d at 318.)
11 Further, "in the construction of a pleading for the purpose of determining its effect, its
12 allegations must be liberally construed, with a view to substantial justice between the
13 parties." (Code Civ. Proc. § 452.)
14 In ruling on the demurrer, the Court is limited to consideration of the complaint and
15 matters of which the Court can take judicial notice (Blank v. Kirwan, supra, 39 Cal.3d at 318;
16 Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 and if the complaint fails to
17 state a cause of action but there is a reasonable possibility the complaint can be amended to
18
cure the deficiencies, then leave to amend must be granted. (Quelimane v. Stewart Title
19
Guaranty Co. (1998) 19 Cal.4th 26, 39.) A demurrer must dispose of an entire cause of action
in order to be sustained. (See Fremont Indem. Co. v. Fremont General Corp. (2007) 148
20
Cal.App.4th 97, 119; Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150,
21
1167.)
22
When reviewing a motion to dismiss, the Court treats all factual allegations in the
23
complaint as true and construes the complaint in the light most favorable to the plaintiffs.
24
Gunasekerav. Irwin, 551 F.3d461, 466(6th Cir. 2009)
25
THE DEFENDANTS FAILED TO MEET ITS BURDEN TO ESTABLISH THAT RES JUDICATA
26
BARS THE SUIT
27
28 28
1
Res judicata is a phrase covering two forms of preclusion. Gutierrez v.Lynch,826 F.2d
2
1534, 1537n.1(6th Cir. 1987). Typically, and as used in this case, it means claim preclusion: A
3 final judgment on the merits precludes parties from relitigating a claim that was or could
4 have been raised in that action. Id. The phrase is also used to describe issue preclusion (also
5 known as collateral estoppel), which bars relitigation of a particular issue that has already
6 been decided in an action between the parties and the Defendants contend that the Plaintiffs
7 current suit is barred, through res judicata, by the state-court judgment that dismissed the
8 Plaintiffs complaint on May 9, 2023, and this is not so true.
9 In the courts tentative ruling on October 16, 2023, the court stated:
10 a. Defendant Warren now demurs to the entire complaint, on the grounds that it fails
11 to state facts sufficient to support any cause of action.
12 A pleading is “only” uncertain if it is ambiguous or unintelligible and the pleading
13 requirements must contain (1) a short and plain statement of the grounds for the court's
14 jurisdiction, (2) a short and plain statement of the claim showing that the pleader is entitled
15 to relief, (3) a demand for the relief sought, and (4) each allegation must be simple, concise,
16 and direct. No technical form is required.
17 b. Defendant Warren argues that Plaintiff’s complaint is barred by res judicata, as it
18
substantially duplicates the operative complaint in Case No. 22STCV13511, which
19
was dismissed on May 9, 2023. This is partially correct and partially not according
to the court.
20
On May 9, 2023, Defendant Warren brought an ex parte application to dismiss the
21
case, pursuant to California Rules of Court Rule 3.1320(h). That application was granted and
22
the case was dismissed pursuant to Code of Civil Procedure § 581(f)(4). Such dismissals must
23
be with prejudice and carry res judicata effect. See Cano v. Glover (2006) 143 Cal.App.4th
24
326, 329-330.
25
In Cano v. Glover (2006) 143 Cal. App. 4th 326, the court held that a defendant who
26
was sued on a contract containing an attorney fee clause could recover attorney fees after he
27
28 29
1
was dismissed from the action, notwithstanding the existence of the contract was
2
questionable.
3 There are four elements of res judicata? The doctrine of res judicata bars subsequent
4 litigation where four elements are met: (1) the prior decision was rendered by a court of
5 competent jurisdiction; (2) there was a final judgment on the merits; (3) the parties were
6 identical in both suits; and (4) the prior and present causes of action are the same.
7 Interpreting Cano v. Glover, Cal. Civ. Proc. Code § 581(f) within Cano v. Glover the
8 courts determined “that dismissing the defendant with prejudice from a fourth amended
9 complaint where the court sustained three demurrers with leave to amend against the
10 plaintiff” were because "he was unable to amend the allegations of his complaint to satisfy the
11 court that a cause of action was stated," despite "several opportunities to do so.”
12 Nowhere in the dismissal on May 9, 2023, in the Plaintiffs first dismissed suit, does the
13 court state the action were dismissed as the Plaintiff were unable to amend the allegations of
14 his complaint to satisfy the defendants or the court, or that a cause of action were not
15 stated.” Instead, the court dismissed the complaint without prejudice, allowing the Plaintiff
16 an opportunity to refile the matter.
17 In Cano v. Glover, the court noted “Section 581, subdivision (f) provides: "The
18
court may dismiss the complaint as to the defendant when after a demurrer to the complaint
19
is sustained with leave to amend, and the plaintiff fails to amend within the time allowed by
the court and either party moves for dismissal."
20
The phrase "may dismiss" means discretionary dismissal. (Weil Brown, Cal. Practice
21
Guide (Rutter 2005) Civil Procedure Before Trial). The right to dismiss without prejudice is
22
expressly permitted by other subdivisions.
23
Rule 325(f) provides for dismissal, by ex parte application or noticed motion, of " the
24
entire action and for entry of judgment after the expiration of the time to amend following
25
the sustaining a demurrer. Judgment may only be entered if the case has been adjudicated to
26
finality. The Plaintiff asserts and the docket reflects the Defendants “after the dismissal of the
27
28 30
1
first complaint, never sought a judgment entered on the record bringing the Plaintiffs suit to
2
its finality.”
3 Section 581, subdivision (f)(2) ". . . gives the defendant the right to obtain a court
4 order dismissing the action with prejudice once the court sustains a demurrer with leave to
5 amend and the plaintiff has not amended within the time given” and the defendants failed to
6 do so even when the court dismissed the action without prejudice to the Plaintiff.
7 The Plaintiffs suit is barred by the doctrine of res judicata, and may not form the basis
8 of any future lawsuit” per the court is erroneous itself. The four elements forming the basis of
9 res judicata haven’t been met here.
10 When on May 9, 2023, the court on its own motion dismissed the prior complaint
11 without prejudice despite the defendant's ex parte application to the court, the court
12 exercised its own discretion thereby giving the plaintiff an opportunity to refile the matter as
13 a second lawsuit.
14 The defendants admit in their ex parte application to the court, they stated “pursuant
15 to California Rules of Court 3.1320(h), Defendant makes this ex parte application regarding
16 issues related to the proper dismissal of the Complaint with prejudice because “trial is fast
17 approaching” and balanced against this strong policy to achieve judicial economy is, of
18
course, a party’s right to be heard on the merits of their claims. Due process safeguards a
19
litigant’s right to a full and fair opportunity to procedurally, substantively, and evidentially
pursue a claim.
20
The California Supreme Court developed the claim and the issue preclusion
21
components of res judicata over the course of several years. See, e.g., Slater, 543 P.2d at 594-
22
97 (distinguishing primary rights from theories of recovery for claim preclusion purposes);
23
Lucido, 795 P.2d at 1225-32 (identifying threshold requirements and defining public policy
24
considerations for issue preclusion); Bernhard v. Bank of Am. Nat’l Trust & Sav. Ass’n, 122
25
P.2d 892, 894-95 (Cal. 1947) (rejecting the mutuality doctrine as a requirement of collateral
26
estoppel); Sims, 651 P.2d at 326-30 (extending res judicata principles to administrative
27
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1
proceedings).
2
Although the basic res judicata doctrine has never been codified, a few statutes do
3 help define the rules. See, e.g., CAL. CIV. PROC. CODE § 1047 (Deering 1996) (authorizing
4 successive actions on same contract); Id. § 1049 (providing that an action is deemed pending
5 until final determination on appeal); Id. § 1062 (providing that a declaratory relief judgment
6 shall not preclude a party from obtaining additional relief on the same facts); Id. §§ 1908-12
7 (Deering 1972) (defining various effects of a final judgment); and Id. §§ 426.10 & 426.30
8 (Deering 1995) (defining compulsory cross-complaints).
9 The 2023 California Rules of Court, Rule 3.1320. Demurrers, (h) Ex parte application to
10 dismiss following failure to amend, states “A motion to dismiss the entire action and for entry
11 of judgment after expiration of the time to amend following the sustaining of a demurrer may
12 be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2)”
13 and the defendants opening argument strongly suggest their intent were to have the case
14 dismissed from the start and because as they stated “trial is fastly approaching” and “they
15 wish to avoid motion practice” – an intent from the start to avoid the law by evading the law
16 (prosecution).
17 At every stage of an action the Court may "disregard any error, improper ruling,
18
instruction, or defect, in the pleadings or proceedings which, in the opinion of said court,
19
which does not affect the substantial rights of the parties."]; Code Civ. Proc. § 473(a)(1) ["The
court may, in furtherance of justice, and on any terms as may be proper, allow a party to
20
amend any pleading . . . .")
21
The courts tentative ruling is littered with inconsistent application of the law. Res
22
judicata is misapplied, the rules of evidence regarding the denial of the Plaintiffs RJN are
23
misapplied, and the very fact that the defendants never filed a motion for entry after
24
dismissal of the first suit, the defendants now seek Court intervention via the court sustaining
25
their demurrer based on the defendants statement to dismiss because the trial was fast
26
approaching are all distinguishable facts that may heard on trial.
27
28 32
1
If the court says “but any acts which occurred after the filing of the previous case
2
could not have been brought in that case. Therefore, they may form the basis for a new
3 case,” but then says “Plaintiff now seeks leave to amend his complaint to assert claims
4 seeking the rescission of the settlement agreement. However, the same rule which preserves
5 some of Plaintiff’s claims from res judicata also prevents him from adding claims for
6 rescission of a contract signed after the filing of this case” bars the court from applying res
7 judicata in its entirety.
8 Double jeopardy would apply here. The signing of the settlement agreement occurred
9 after the filing of the second suit, and after April 22, 2022, the date the Plaintiff filed the first
10 suit as noted by the court. The signing of the settlement agreement after April 22, 2022,
11 points to facts sustained within the defendant’s demurrer, a worsening of the conditions, and
12 if the complaint itself would be barred by res judicata then the settlement agreement itself
13 would be considered NULL AND VOID. You can’t enforce a settlement agreement on claims
14 the court says are barred – can you? The defendants bear the burden to establish all four
15 requirements.
16 As the Supreme Court explained more than 50 years ago in Lawlor v. National Screen
17 Service Corp., 349 U.S. 322 (1955), res judicata does not bar a suit, even if it involves the
18
same course of wrongful conduct as alleged earlier, so long as the suit alleges new facts or a
19
worsening of the earlier conditions and that is precisely the case here.
When Ohio courts dismiss a party for lack of standing, that dismissal is not a final
20
decision on the merits for purposes of res judicata. Asher v. City of Cincinnati, No.C-990345,
21
1999 Ohio App. LEXIS 6223, at *2 (Ohio Ct. App. Dec. 23, 1999). The lack of an appeal does
22
not suddenly make the dismissal ―on the merits and therefore subject the new suit to the
23
barrier of res judicata. By contrast, res judicata may bar a second suit if the suit raises the
24
same claims that were dismissed on the merits in a first suit and not appealed. That remains
25
true if the reason for dismissing the first suit on the merits happened to be res judicata itself
26
(based on a dismissal on the merits in even an earlier suit). That is what occurred in Mason v.
27
28 33
1
GFS Leasing and Mgmt., No. 79536, 2002 Ohio App. LEXIS 455 (Ohio Ct. App. Feb. 7, 2002),
2
which the district court mistakenly applied to bar the new suit.
3 The Defendants contend that Plaintiffs’ current suit is barred, through res judicata, by
4 the state-court judgment that dismissed their 2022 Complaint and the defendants bear the
5 burden to establish all four requirements.
6 Injunctive Relief is necessary and appropriate. Code of Civil Procedure §525 states: An
7 injunction is a writ or order requiring a person to refrain from a particular act. It may be
8 granted by the court in which the action is brought, or by a judge thereof; and when granted
9 by a judge, it may be enforced as an order of the court. Code of Civil Procedure §526 states,
10 in relevant part: (a) An injunction may be granted in the following cases: (1) When it appears
11 by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any
12 part thereof, consists in restraining the commission or continuance of the act complained of,
13 either for a limited period or perpetually…. (4) Where pecuniary compensation would not
14 afford adequate relief.
15 As a preliminary matter, Rule 3.300 Related Cases of the California Courts states
16 “whenever a party in a civil action knows or learns that the action or proceeding is related to
17 another action or proceeding pending, dismissed, or disposed of by judgment in any state or
18
federal court in California, the party must serve and file a Notice of Related Case” and when
19
on May 9, 2023, the previous matter were dismissed without prejudice the Plaintiff refiled
the current matter Case No. 23STCV10822 “involving the same parties, based on the same or
20
similar claims” as advised by the court as evinced by defendants Notice of Demurrer and
21
Demurrer to Plaintiff’s Complaint.
22
Under California law in order for a contract to be enforceable the parties must
23
“consent” to the terms and the consent must be free, mutual, and communicated to each
24
other. A signed settlement agreement is a powerful document requiring the demonstration
25
of an extreme condition to render it null and void. CA Civ Code § 1565 (2017).
26
Fraud vitiates all transactions into which it enters. (Atchison etc. Ry. Co. v. West, 176
27
28 34
1
Cal. 148, 152 [167 P. 868]; Millar v. Millar, 175 Cal. 797, 801-804 [167 P. 394, Ann.Cas. 1918E
2
184, L.R.A. 1918B 415].) Free consent is an indispensable element of every transaction. There
3 is no real or free consent when it is obtained through fraud; consent, clouded by fraud, is not
4 legal consent. Civ. Code, 1567; Butler v. Collins, 12 Cal. 457, 463.
5 When on August 12, 2023, the Plaintiff entered into a settlement agreement with the
6 defendants he did so under the impression that the terms of the agreement were mutable
7 between the parties as set by the Plaintiff in his email communication to the defendants and
8 agreed upon by Edwin Murga, property District Manager. However, upon the Plaintiffs arrival
9 to the defendants premises the Plaintiff were presented with a four page document asking
10 him to waive his rights now and future in exchange for his belongings and personal affects
11 creating an unjust hardship in conscious disregard of the Plaintiffs rights and the Defendants
12 Settlement and Release Agreement proves fraud, duress, coercion, and unconscionability and
13 the parties must present their cases to a judge to determine whether there is enough
14 evidence to warrant nullifying the agreement as the Plaintiff contends he were forced to sign
15 the agreement which undermines the “integrity of contracts” by allowing a person to avoid
16 the consequences of an agreement or litigation by claiming fear of embarrassment.
17 Malice means conduct which is intended by the defendant to cause injury to the
18
plaintiff or despicable conduct which is carried on by the defendant with a willful and
19
conscious disregard of the rights or safety of others." (Civ. Code, § 3294(c). Oppression'
means despicable conduct that subjects a person to cruel and unjust hardship in conscious
20
disregard of that person's rights." (Civ. Code § 3294(c)(2).) Here, the Plaintiff contends he
21
continues to endure malice, oppression, harassment, and irreparable injury to the Plaintiff
22
and any harm to Defendant from enjoining the destruction, disposal of, or cessation of
23
operations of the Plaintiffs assets would be outweighed by the actual and potential
24
conversion effects resulting thereof.
25
Strong arm tactics in a commercial setting can manifest itself in several different ways.
26
In arguing strong arm tactics most courts consider whether there has been an actual or
27
28 35
1
threatened breach of contract, whether there was any realistic practical alternative for the
2
victim, and the conduct of both parties at the time. That is, whether the victim was
3 independently advised or protested at the time or whether the party applying the pressure
4 was acting in good or bad faith.
5 The “act complained of” by plaintiff, is the flagrant and continued violation of the
6 California Business and Professions Code Section 21700 et seq., by a worsening of the
7 conditions by these defendants who refuse to follow the law as this section is all-inclusive,
8 unless a person meets a specifically defined exemption.
9 Cal Civ Code 527 and Rule 65 of FRCP permits the Plaintiff to bring this action to
10 “enjoin the acts or practices or to enforce compliance with this law or any rule or order
11 hereunder . . . .” Remedies may include an injunctive and equitable relief and “ancillary relief
12 may be granted as appropriate” and a preliminary injunction should be issued where the
13 Court finds that the defendants should be “restrained from exercising the right claimed by
14 them” and that there is a reasonable probability that the plaintiff will prevail on the merits.
15 (People v. Pacific Land Research Co. (1977) 20 Cal. 3d 10, 21, citing Continental Baking Co. v.
16 Katz (1968) 68 Cal.2d 512, 526-529 [67 Cal.Rptr. 761, 439 P.2d 889].)
17 In this case, the “right claimed” by defendants is the continued operation in violation
18
of the California Business and Professions Code Section 21700 et seq. Since defendants have,
19
however, failed and refused to follow the law they should be restrained from operating in
violation on the California Business and Professions Code Section 21700 et seq.
20
Damages for a tenant's claim of conversion include full valuation of the 'converted'
21
property as well as compensation for the tenant's efforts to recover his goods. There are no
22
effective liability defenses to a conversion action if the facility does not follow the law.
23
When on February 9, 2023, via electronic service the Plaintiff emailed defense counsel
24
saying “Dear Sukayna, the attached stipulated protective order is in response to your
25
discovery request and “extraordinary circumstances” citing “imminent danger” and the risk of
26
future injury sufficient enough to “invoke” the imminent danger exception… In the event
27
28 36
1
should you decline or disagree with this stipulated protective order please respond
2
accordingly. In the meantime, the stipulated protective order shall be submitted to the court
3 on February 10, 2023,” yet some 90 days later after having served the Defendants they have
4 yet to acknowledge, refute, dispute, request amendment or sign the Stipulated Protection
5 Order as submitted to their office and filed with the court and per Plaintiffs proposed
6 Stipulated Protective Order, Page 13, Item 38 states “You don’t have a lawyer, if you had a
7 lawyer who was staying on that ass and letting them know what they are doing was wrong
8 they wouldn’t be coming at you the way they coming at you. They are doing you the way they
9 doing you because they have already smeared you, ain’t no lawyer gonna touch you, don’t no
10 reporter wanna talk to you, they made you seem like you’re a bad person the whole nine
11 yards. They just getting away with murder, he said. Uh huh.” Then on August 7, 2023,
12 Sukayna Jaidi, defendant’s counsel of record emailed the Plaintiff saying “Good afternoon
13 Oliver, Thanks for the email. It is not our practice to agree to stipulated protective orders,
14 especially based on our belief that we aren’t even asking for these records. As you know, we
15 have filed a demurrer, as the court has already dismissed the prior case, and the statute of
16 limitations has run.” Is an actor relieved of liability to another for conversion by the actor's
17 belief, because of a mistake of law or fact not induced by the other, that the actor: (a) has
18
possession of the chattel or is entitled to its immediate possession, or (b) has the consent of
19
the other or of one with one to consent for him, or (c) is otherwise privileged to act? See
Kruger v. Horton, 106 Wn.2d 738, 743, 725 P.2d 417 (1986).
20
An Extrajudicial Punishment is defined as punishment for an alleged crime or offense
21
carried out without legal process or supervision from a court or tribunal through a legal
22
proceeding. Another form of punishment is to punish a victim but under the circumstances
23
that make it appear as self defense or suicide. In such cases, that can potentially cross the line
24
into Extrajudicial Murder. In H.R. 6357, Congress stated “Due process of law is a fundamental
25
right of the United States Constitution, the United States has a commitment to uphold and
26
defend the rights included in the Bill of Rights, and no United States citizen, regardless of
27
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1
location, should be “deprived of life, liberty, property, without due process of law as stated in
2
article XIV of the Constitution... The participation in, or planning of activities, by the United
3 States Government that result in the extrajudicial killing of a United States citizen undermines
4 the rule of law and the moral standing of the United States in the world... The notion that the
5 constitutional rights of one citizen can be revoked to protect the constitutional rights of other
6 citizens should be rejected... It is in the best interest of the United States to respect the rule
7 of law and set the example for upholding the principles of international and domestic law…
8 The Plaintiff seeks to prove that causes of action for damages against the Defendants a
9 national self-storage management company; (hereafter “Defendant” or “StorQuest”) to
10 obtain relief for damages for sexual harassment, sex based discrimination, gender violence,
11 negligence, conversion, breach of contract, civil conspiracy, intentional infliction of emotional
12 distress, declaratory and injunctive relief, violations of the Consumer Protection Act, and
13 National and locally declared emergency orders, alleging the invalidity of the statutorily-
14 required lien and auction notices, and the invalidity of a limitation on liability ($5,000),
15 indemnity, and risk shifting provisions in StorQuest standard form, non-negotiable rental
16 agreement, Settlement and Release Agreement; and a Stipulated Protection Order and an
17 Emergency Motion For A Temporary Restraining Order And Preliminary Injunction Barring
18
Defendants From Acting In Violation Of The California Business And Professions Code Section
19
21700 Et Seq., is necessary to preserve the status quo, to prevent the irreparable injury to
the Plaintiff that would result from the destruction, disposal, or cessation of operations of the
20
Plaintiffs assets, and to allow the Court to render effective relief if the Plaintiff would prevail
21
at trial.
22
The court may issue a temporary restraining order (“TRO”) to preserve the status quo
23
or prevent irreparable harm pending the hearing of an application for preliminary injunction
24
on notice. (Gray v. Bybee (1943) 60 Cal.App.2d 564, 571.)
25
A TRO may issue when “[i]t appears from facts shown by affidavit or by the verified
26
complaint that great or irreparable injury will result to the applicant before the matter can be
27
28 38
1
heard on notice.” (Code of Civ. Proc., § 527(c)(1).)
2
[T]rial courts should evaluate two interrelated factors when deciding whether or not
3 to issue [a restraining order]. The first is the likelihood that the plaintiff will prevail on the
4 merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the
5 [restraining order] were denied as compared to the harm that the defendant is likely to suffer
6 if the [order] were issued.” (Church of Christ in Hollywood v. Super. Ct. (2002) 99 Cal.App.4th
7 1244, 1251.) “The trial court's determination must be guided by a mix of the potential-merit
8 and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown
9 on the other to support a restraining order.... Of course, the scope of available preliminary
10 relief is necessarily limited by the scope of the relief likely to be obtained at trial on the
11 merits.... A trial court may not grant a restraining order, regardless of the balance of interim
12 harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits
13 of the claim.” (Id. at 1251–1252.)
14 The court may issue a TRO ex parte where plaintiff has established the probable
15 validity of his claim to possession of the property, provided the appropriate undertaking and
16 “has established the probability that there is an immediate danger that the property claimed
17 may become unavailable to levy by reason of being transferred, concealed, or removed or
18
may become substantially impaired in value.” (Code of Civ. Proc., § 513.010.)
19
A TRO, like a preliminary injunction, is by design to preserve the status quo pending
the evidentiary hearing to determine whether to issue a permanent injunction.” (Scripps
20
Health v. Marin (1999) 72 Cal.App.4th 324, 334.) Thus, the time frame for determination of
21
TRO issues is to protect the status quo until a hearing on a preliminary injunction; “the
22
burden [is] on plaintiffs, as the parties seeking injunctive relief, to show all elements
23
necessary to support issuance of a preliminary injunction.” (O’Connell v. Super. Ct. (2006) 141
24
Cal.App.4th 1452, 1481.)
25
The tort of conversion is an “act of dominion wrongfully exerted over another's
26
personal property in denial of or inconsistent with his rights therein.” See (Oakes v. Suelynn
27
28 39
1
Corp. (1972) 24 Cal.App.3d 271, 278.) To establish conversion, the Plaintiff “must show an
2
intention or purpose to convert the goods and to exercise ownership over them, or to
3 prevent the owner from taking possession of his property.” Thus, a necessary element of the
4 tort is an intent to exercise ownership over property which belongs to another. For this
5 reason, conversion is considered an intentional tort. See (Collin v. American Empire Ins. Co.
6 (1994) 21 Cal.App.4th 787, 812.) Because section 1668 prohibits contracts purporting to
7 waive liability for intentional acts, the Defendants have erred in their intent with prejudice in
8 which this Court should grant the Plaintiffs Motion in support of Mitchell’s claims for
9 conversion. See Farnham v. Superior Court, supra, 60 Cal.App.4th at p. 78, fn. 6.
10 As a matter of law, no Self Service Storage Facility including the Defendants have right
11 to take possession of or attempt to sell property without again providing for or effecting the
12 rules and procedures of the California Self Storage Facility Act which is required by law. See
13 Gonzalez v. Personal Storage, INC., (1997)
14 CONCLUSION
15 1. This case involves the same parties as in the 2022 suit.
16 Plaintiffs concede that the Defendants have established this first requirement.
17 2. The first dismissal was on the merits only as to the demur and the dismissal of the
18
operative complaint without prejudice.
19
The Defendants fail on establishing this second requirement.
When Ohio courts dismiss a party for lack of standing, that dismissal is not a final
20
decision on the merits for purposes of res judicata. Asher v. City of Cincinnati, No. C-990345,
21
1999 Ohio App. LEXIS 6223, at *2 (Ohio Ct. App. Dec. 23, 1999). The lack of an appeal does
22
not suddenly make the dismissal “on the merits” and therefore subject the new suit to the
23
barrier of res judicata.
24
3. The current complaint raises new facts that demonstrate a worsening of the same
25
“transaction or occurrence.”
26
The Defendants fail on establishing this third requirement.
27
28 40
1
In Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955), the Supreme Court
2
unanimously reversed the application of res judicata where the lower court applied the same
3 reasoning as the district court applied here. There, the plaintiffs brought an antitrust suit that
4 was ultimately dismissed with prejudice. Id. at 324. Seven years later, the plaintiffs brought a
5 second antitrust suit against many of the same defendants, alleging the same course of
6 wrongful conduct, which had worsened in the interim. Id. at 328. The lower courts applied
7 res judicata to bar the second suit. Id. The Supreme Court reversed, explaining that even
8 though “both suits involved essentially the same course of wrongful conduct,” res judicata
9 did not apply. Id. at 327 (internal quotation marks omitted). The Court noted that “such a
10 course of conduct—for example, an abatable nuisance—may frequently give rise to more
11 than a single cause of action.” Id. at 327–28. The Court held that claims in the second suit
12 based on events that had not yet occurred at the time of the first suit were not barred:
13 “While the [earlier] judgment precludes recovery on claims arising prior to its entry, it cannot
14 be given the effect of extinguishing claims which did not even then exist and which could not
15 possibly have been sued upon in the previous case.” Id. The Court further held that the
16 plaintiffs’ claims in the second suit survived res judicata to the extent that those claims
17 alleged worsening of the earlier wrongful conduct.
18
4. The new complaint raises claims that could not have been raised in the prior
19
litigation and a worsening of the conditions.
The Defendants fail on establishing this fourth requirement.
20
The Plaintiff filed suit seeking compensation in 2022 for damages caused by the
21
Defendants beginning in 2020, but the suit were dismissed without prejudice. Since that time,
22
the Plaintiff refiled the previous suit dismissed without prejudice to include the continuation,
23
the presence of new claims, and the worsening of conditions. Based on these facts no legal
24
principle can prevent the Plaintiff from the opportunity to substantiate their well-pleaded
25
allegations in this Court. This Court should reverse.
26
RULE 59(e) MOTION FOR RECONSIDERATION
27
28 41
1
Reconsideration is necessary to correct clearly erroneous misapprehensions of law and
2
fact concerning Plaintiffs’ allegations, claims, meritorious defenses, and requested relief.
3 Reconsideration is necessary to accommodate an intervening change in controlling
4 law, insofar as it applies to the legal standards applied by the Court as justification for
5 dismissal of Plaintiffs’ claims based on res judicata.
6 Reconsideration is necessary to prevent manifest injustice.
7 The Court failed to take into account relevant factors intended to guide its discretion.
8 Plaintiffs have demonstrated and can further demonstrate that genuine issues of
9 material fact are in dispute.
10 Plaintiffs claims for declaratory relief are not moot, are not barred by res judicata, and
11 are raised not only for prospective relief to an active and ongoing constitutional controversy,
12 but also as meritorious arguments against the Defendants’ affirmative res judicata defense
13 based on a presumption of the state court consent judgment’s which has been clearly and
14 unambiguously disputed and challenged by Plaintiffs in this action. With these material facts
15 in dispute, and because a ruling by the Court on Plaintiffs’ claims for declaratory relief would
16 be determinative as to the judgment’s validity, it is improper for the Court to presume and
17 apply any alleged preclusive effects without first rendering judgments on the merits those
18
claims.
19
Plaintiffs also move for relief under Fed. R. Civ. Pro. Rule 60(b)(1) on the grounds that
they were unjustly surprised by the unilateral adoption and application of res judicata
20
principles set forth in the Court’s Order where none of the authorities and cases cited in
21
support of the Court’s findings and conclusions were presented in either of the Defendants’
22
motions or supporting memorandums, and as such Plaintiffs were deprived a fair opportunity
23
to respond prior to having their claims dismissed as the Plaintiffs prior complaint were
24
dismissed without prejudice now in violation of their right to due process.
25
The burden of proving res judicata as a valid affirmative defense falls on the
26
Defendants, not the Plaintiffs. Where a proper res judicata analysis determining the
27
28 42
1
preclusive effect of a state court judgment applies alleged facts, viewed in the non-movant’s
2
most favorable light, to the law of the state in which the judgment was entered, and where
3 Defendants’ motions and memorandums fail to cite any relevant or applicable case law or
4 authorities in support thereof, Plaintiffs undoubtedly suffer undue harm and manifest
5 injustice by the Court’s unilateral use and application of cases, authorities, and arguments not
6 previously presented which result in a wholesale dismissal of Plaintiffs’ claims with prejudice.
7 RULE 60 MOTION TO ALTER, AMEND, SET ASIDE, and DECLARE VOID AB INITIO
8 The underlying judgment upon which the Defendants rely in asserting their affirmative
9 defenses is void. Rule 60(b)(4).
10 The underlying judgment upon which the Defendants rely in asserting their affirmative
11 defenses was procured by fraud, misrepresentation, and misconduct. Rule 60(b)(3). RULE
12 15(a)
13 MOTION TO AMEND
14 Leave to amend a complaint should be freely granted as justice so requires.
15 Plaintiffs seek leave to amend and supplement their complaint with additional facts
16 supporting their claims and which give rise to new causes of action
17 RULE 6(b) MOTION FOR EXTENSION OF TIME & MODIFIED SCHEDULING ORDER
18
Plaintiffs request for an extension of time modifying the scheduling order is based on
19
good faith, excusable neglect, and uncontrollable circumstances.
Based on these facts no legal principle can prevent the Plaintiff from the opportunity
20
to substantiate their well-pleaded allegations in this Court.
21
This Court should reverse.
22
23
Executed on November 6, 2023, at Los Angeles, California.
24
25
/s/ Oliver B. Mitchell III
26
OLIVER B. MITCHELL III
27
28 43
1
2
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(818) 814-7304
4
IN PRO PER
5
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28 44
OLIVER B. MITCHELL III,
Plaintiff,
vs.
WILLIAM WARREN GROUP

WWG et al.,
Defendant.
EXHIBITS A – P
SCHEDULING ORDER
Date Transmitted: 10 /7/2073 10:01:16 AIvl
2:13-cw-06030 Doc: 10
oliver B Mitchell
P O Box 21559
Long Beach, CA 908C1
Number of Pages: 2
It is hereby certified that, t,his docunent was served by first

class maiT postage prepaid or by fax or e-mai7 delivery t,o
counsel (or parties) at their respective address or fax
nunber or e-mai7 address of record.
I\tILvl-b.i-Ver s ron : -L . U
From : cacd_ecfmail G cacd. us court s . gov

To: ecfnefGcacd. uscour ts . gcv
Mes sage-Id:
Subject:Activity in Case 2:L3-cv-05030-ODW-CW Oliver B Mitch
eII v. United States Department of Veterans Affairs et aI Or
der on Request for Appointment of Counsel
Conrert-Type : cext /hrrnl
This is an automatic e-mail messagte generated by the CM/ECF
crrcJ.am
Please DO NOT RESPOND -Lo this e-nail .oecause the mail box is
unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the
United Stat.es policy pern',.its attorneys of record and partie
s in a case (ir:cluding pro se litigants) to receive one free
elecrronic crpy of a-I dccumencs fi-ed eleccronica-1y, rf r
eceipt is recuired by law or directed by the filer. PACER. ac
cess fees app}T tc aI- orher users. Tc avoio l-are: charoes,
downLoad a ccpy cf each document during 1-his jirst viewing.
..r(JWC vcr 7 rr the ref erenced ciocunent is a transcript,
:E
the f r
ee copy a:G 3I page limi u d: r,or app-y .
UIIITED STATES DfSTP.ICT COURT fo:: Lhe CENTR.AL DISTRICT

CE CAL I_. OP.liIA
Not.ice of Electronic Filing
The followinq transaction was entered on LA/I/2A:3 at 9:51

A1'{ PDT and filed
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LJ!J
-^ ^^ tl-*^ -
Oiiver B Mit.chell v. United States Department of Veterans Af

IdI-LS
a1- : l
Case Number :2: l3-cv-06 03 C-ODW-CW
I rrtt -
Docurnent. Number:
<a href:https: / /ecf. cacd.uscourLs. govldocI/a3111152L163? case

id:56 96 03 &de_seq_num:33 &magi c_num:lt4AGIC&pdf_toggle_pos s ible:
1
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DockeL Text:
ORDER GRANTING REQUEST FOF. APPOiNTMENT OF COUNSEL t5lioy Jucrg

e Otis D. irtright,
r r ' r'rran
!vvfi the Court is concerned abcut the unneceqq^ri./ o:.
rvt !f-U !vuI U JJ UVllU=-lrgJ AU!Jt LlIC UllllCUEJDq- j EA
pendi:ure oftaxpayers
dollars/ especially in a time ci f,nancial crisis. lnus, the
Court wiII closely
monit.or the prcpriety of this case and will either dismiss t
he case or remove
the appointei attorney if the Cou:L finds that the alleqatio
n of poverty
is untrue, the accion is frivoious or malicious, or ihe plea
dings ultimately
farl to state a claim on which relref n.ay be Eranted. (lc)
2:'-3-cv-05C3C-ODid-CW Nocice ha*. been eleccrorically maiIeC r
2:i3-cv-06030-ODW-CW Notice has been delivered by Firs*- Cias

s U. S. MaiI
or .oy orher means BY IHEj ! lLllR Lc :
Olrver B MitchelI
P O Box 21559
Longi Beach CA 90801
1
-1
l
8 T]NITED STATE,S DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 OLIVE,R B. MITCHELL IiI, Case No. 2: 1 3-cv-6030-ODW(CWx)

12 Piaintiff, ORDER GRANTING REOUEST
FOR APPOINTMENT OF*COUNSEL
13 tsl
LTNITED STATE,S DEPARTME,NT OF
t4 VETERA.NS AFFAIRS et a1..
15 Defendants.
I6
I7 Plaintiff Oliver B. Mitchell III has requested appointment of counsel in this
18 matter. (ECF No. 5.) The Court construes this request as one under 28 LI.S.C.
19 $ 1915(e1(1). But appointment of counsel under 28 U.S.C. $ 1915(e)(1) is limited to
2A cases presenting exceptional circumstances. Wilborn y. Escalderon. J89 F.2d 1328,
2I 1331 (9th Cir. 1986). To decide u,hether these exceptional circumstances exist. a
22 court must er.aluate both "the likelihood of success on the merits [and] the ability of
the petitioner to articulate his claims pro se in light of the complexity of the legal
24 issues involved." Id.
2-s Mitchell's Complaint sets forth various causes of action and seeks redress for a
26 myriad of u,rongs, inciuding discrimination and retaliation by Defendants against him

27 as an emplovee. patient, and whistleblower. Mitchell also seems to pursue claims on
28 behalf other veterans that have been harmed by the Defendants.
1 Based on these allegations, the Court finds that Mitchell has sorre likeiihood of
2 success on the merits. But this likelihood is hampered by his inabilit-v- to clearly
J articulate his claims: as exemplified by his Complaint. Although the legal issues in
4 this case are not particulariy complex- the Court finds that he would be better served
5 rn'ith the assistance of counsel. See Rand y. Rot+,land, ll3 F'.3d 1 520, 1525 (9th Cir.
6 L997.) Even so, the Court is concerned about the unnecessary expenditure of
7 taxpaS;ers' dollars, especially in a time of financial crisis. Thus, the Court will closely
8 monitor the proprietl, of this case and u,ill either dismiss the case or remoye the
9 appointed attorney if the Court finds that the ailegation of poverty is untr-ue, the action
10 is frivolous or malicious. or the pleadings ultimately fail to state a claim on which
11 relief may be granted. 28 Lr.S.C. g 1915(eX2).
t2 Accordinglv, Mitcheil's Request for Appointment of Counsel is GRANTED.
i3 IT IS SO ORDERED.
t4
15 October 7,2013
16
OTIS D. \4{RIEHT.II
17
UNITED STATES DISTRICT JTTDGE
18
t9
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28

Motion Reconsideration W Exhibits 11062023

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Motion Reconsideration W Exhibits 11062023

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1 OLIVER B.

18 FILED ON NOVEMBER 6, 2023

17 Executed on November 6, 2023, at Los Angeles, California.

17 (2002) 28 Cal.4th 888, 896-897.)

17 AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

16 party, deponent, or other natural person or organization from unwarranted annoyance,

17 Misrepresentation, Material Alteration of Written Instrument, California Control of Profits of

16 designated documents or electronically stored information—including writings, drawings,

16 defendant's responsibility to rescind the agreement as stated, however, the defendant's

16 and direct. No technical form is required.

17 b. Defendant Warren argues that Plaintiff’s complaint is barred by res judicata, as it

16 an opportunity to refile the matter.

17 another action or proceeding pending, dismissed, or disposed of by judgment in any state or

16 the consequences of an agreement or litigation by claiming fear of embarrassment.

17 may become unavailable to levy by reason of being transferred, concealed, or removed or

17 alleged worsening of the earlier wrongful conduct.

WILLIAM WARREN GROUP

It is hereby certified that, t,his docunent was served by first

From : cacd_ecfmail G cacd. us court s . gov

UIIITED STATES DfSTP.ICT COURT fo:: Lhe CENTR.AL DISTRICT

The followinq transaction was entered on LA/I/2A:3 at 9:51

Oiiver B Mit.chell v. United States Department of Veterans Af

Case Number :2: l3-cv-06 03 C-ODW-CW

<a href:https: / /ecf. cacd.uscourLs. govldocI/a3111152L163? case

ORDER GRANTING REQUEST FOF. APPOiNTMENT OF COUNSEL t5lioy Jucrg

2:'-3-cv-05C3C-ODid-CW Nocice ha*. been eleccrorically maiIeC r

2:i3-cv-06030-ODW-CW Notice has been delivered by Firs*- Cias

11 OLIVE,R B. MITCHELL IiI, Case No. 2: 1 3-cv-6030-ODW(CWx)

26 myriad of u,rongs, inciuding discrimination and retaliation by Defendants against him

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