m&p motion to strike

MEMORANDUM OF POINT AND AUTHORIES FOR MOTION TO STRIKE MOTION TO COMPEL AND

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

PAULA LUA,

Plaintiff,

vs.

CAREER COLLEGES OF AMERICA, and

DOES 1 through 20 inclusive,

Defendant

::::::::::::

Case No.: SC 109295

MEMORANDUM OF POINTS AND AUTHORITIES FOR

MOTION TO STRIKE MOTION TO COMPEL; AND DEMURRER;

AND FOR MONETARY SANCTIONS IN THE AMOUNT OF $2,500.00

DATE: JUNE 30, 2011TIME: 8:30 A.M.DEPT. KJUDGE: HON. GERALD ROSENBERG


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MEMORANDUM OF POINTS AND AUTHORITIES

I

DEFENDANTS’ MOTION TO COMPEL IS UNTIMELY

1. On or about November 18, 2010 Plaintiff did receive defendants’ discovery request.

31 Special Interrogatories; 34 Form Interrogatories and Request for Production of Documents.

Plaintiff was also served with defense counsel sworn declaration alleging the amount of

interrogatories exceeded the amount allowed pursuant 2030.030 of the Code of Civil Procedure.

Plaintiff took issue of the amount of interrogatories served as well as to the false statements

made in the sworn declaration (EX 1). Paragraph 4 stated defendants had previously propounded

a total of 69 interrogatories of which 31 interrogatories were not official form interrogatories.

Paragraph 6 of this declaration states the following: “I am familiar with the issues and the

previous discovery conducted by all of the parties in this action.” All of which were false

statements sworn to under penalty of perjury.

2. On December 19, 2010 Plaintiff did attempt to meet and confer about the 65 interrogatories

propounded and to address the false statements made by Attorney Scott Baker in his sworn

declaration (EX 2). At this time Plaintiff did state that she had not concluded her investigation as

to defendants’ request for production of documents. Plaintiff did state that she would petition the

court for a protective order as to defendants’ blatant abuse of discovery. Defendants opted to

withdraw several form interrogatories. At this time based on the intentional false statement made

in the sworn declaration plaintiff knew defense counsel was not creditable and the proceedings

would be adversary.

3. On January 4, 2011 Plaintiff did serve her responses to the defendants. Plaintiff did serve

responses to defendants’ Special Interrogatories and Form Interrogatories (EX 3). Pursuant to


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Cal. CCP Code § 2030.280 (b) Plaintiff did retain both the original of the interrogatories, with

original proof of service affixed.

4. Defendants’ had 45 days from January 4, 2011 to file a Motion to Compel Further Responses.

California Civil Procedure § 2031.310 provides, a motion to compel must be served within 45

days of the service of the response unless a later date has been agreed to in writing. Failure to

serve within that time frame constitutes a waiver of any right to compel further response. The 45-

day limitation is jurisdictional in the sense that it renders the court without authority to rule on

motions to compel other than to deny them. [ Sexton v. Superior Court, 58 CA 4th 1403, 1410, 68

CR2d 708 (1997).] The language in the statute is quite clear that notice (and not mere filing)

must be given by the due date. The motion must be served within the due date period or the court

will lack jurisdiction to compel and the propounding party will have waived its right to move to

compel. Sperber v Robinson, 26 CA4th 736,746, 31 CR2d 659, 664(1994).

5. Defendants’ sworn declaration (EX1) was replete with false statements and misapplications

of California Civil Procedure § 2030.030. This action was filed on August 20, 2010 defendants’

did not commence discovery until November 2010. There was no previous propounded

interrogatories by the parties. Defense counsel’s sworn declaration was submitted for an

improper purpose. Plaintiff asks the Court to weigh the defendants’ sworn declaration against her

statement and evidence that she did timely respond to all defendants’ interrogatories.

6. Defendants’ Motion to Compel is untimely and they have waived their rights to compel

further responses and are not entitled to monetary sanctions.

II

PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S

DEMURRER SHOULD BE GRANTED


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7. The trial court has inherent power apart from statute to strike a pleading filed in disregard of

established procedural requirements or that is otherwise violative of orderly judicial

administration. Defendants’ Demurrer to Plaintiff’s First Amended Complaint did not consider

the Courts February 3, 2011 Tentative Ruling. Defendants’ Demurrer was sustained with 10 days

to amend.

8. The Tentative Ruling gave Plaintiff 10 days to clarify her negligence claim; breach of

contract claim; fraud claim; and to give more facts as to the discovery of the deficient paralegal

diploma issued by the defendants.

9. On January 4, 2011 Plaintiff did serve Special Interrogatories and Form Interrogatories on

the defendants seeking information about the compliance of the defendants’ paralegal course to

Section 6450 (80 of the California Business and Professions Codes. Plaintiff further sought

information as to the lifetime job placement offered at the time of her recruitment as a student.

Plaintiff also sought information as to the closure of the defendants’ paralegal course.

10. In violation of California Civil Procedure § 2023.10 (a) (c) (e) Defendants gave boilerplate

objections without substantial justification. Defendants responded on or about February 4, 2011

and filed their Demurrer to the First Amended complaint on February 28, 2011. This is highly

prejudicial to the Plaintiff.

11. The information sought by the plaintiff before the filing of the Demurrer was relevant to the

case and was likely to lead to admissible evidence.

12. Defendants’ acts in circumventing plaintiffs discovery requests were willful, wanton,

malicious and oppressive and were under taken with intent to defraud, and justify the dismissal

of plaintiff’ complaint .

13. Pursuant to Code of Civil Procedure Section 2023.030 the court may impose an issue

sanction ordering that designated facts shall be taken as established in the action in accordance

with the claim of the party adversely affected by the misuse of the discovery process. The court


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may also impose an issue sanction by an order prohibiting any party engaging in the misuse of

the discovery process from supporting or opposing designated claims or defenses. (1) An order

striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the

discovery process.

14. Defendants Demurrer should be stricken for the above articulated reasons. It is egregious

for the defendants to object to plaintiff’s discovery without substantial justification and then

Demurrer Plaintiff’s First Amended Complaint.

15. Defendants Demurrer willfully misconstrues the Plaintiff’s First Amended Complaint as

well as makes willful misrepresentations as to the statute of limitation defense. All of which fall

under the purview of California Civil Procedure §§ 435 (b) (1) 436 provides Any party, within

the time allowed to respond to a pleading may serve and file a notice of motion to strike the

whole or any part thereof. Section 436 The court may upon a motion made pursuant to Section

435 or at any time in its discretion, and upon terms it deems proper; (a) Strike out any irrelevant,

false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading

not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

III

PLAINTIFF IS ENTITLED TO SANCTIONS

16. Plaintiff has been denied her rightful entitlement to discovery by the defendants who

continue to feign the Complaint is unintelligible and confusing. This action was filed on August

20, 2010. Defendants filed their first demurrer on or about September 23, 2010. Plaintiff received

defendants’ first and only discovery request on November 18, 2010.

17. Defendants submitted a sworn declaration under penalty of perjury with willful

misrepresentation. Defendants did not previously serve the Plaintiff with 66 interrogatories as so

stated in the declaration. Defendants further stated that they were familiar with the issues and the


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previous discovery conducted by all of the parties in this action. Defendants’ sworn declaration

was a blatant lie to delude and take advantage of the Plaintiff in pro per. This is most definitely

an abuse of discovery pursuant to 2023.030 (a) (b).

18. Plaintiff did not want to engage in adversarial litigation and had hoped to avoid the matter

of defense counsel perjured sworn declaration.

19. Defense Counsel November 18, 2010 sworn Declaration speaks volume as to their

veneration for California law and procedures. Defendants submitted the Motion to Compel in

bad faith.

20. Defendants served their discovery request on or about November 18, 2010. Responses were

due on or about December 18, 2010. Plaintiff did serve response on January 4, 2011. Defendants

did not file their motion to compel until March 24, 2011. Three days after Plaintiff filed her

timely Motion to Compel Further Responses and for Monetary Sanctions.

21. Plaintiff is entitled to the requested monetary sanctions in the amount of $2,500.

IV

CONCLUSION

For the reasons set forth above Plaintiff Paula Lua humbly asks the Court for an Order to

Strike defendants’ Demurrer and Motion to Compel and to pay the Plaintiff the sum of $2,500.00

pursuant to CCP 2023.030.


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DECLARATION OF PAULA LUA

I, PAULA LUA DECLARE

1. I am the plaintiff in this civil action. I have personal knowledge of the facts set forth herein

and if called as a witness I could and would competently testify hereto.

2. On or about March 1, 2004 I became a paralegal student at Career Colleges of America, at

their Los Angeles Campus.

3. I attended the course for the required 8 months I was issued a diploma (not a degree) at the

end of the course.

4. At all times I stated I wanted to be an independent paralegal. Defendants never stated I could

not work as an independent paralegal nor did they state I had to be under the supervision of a

license attorney.

5. In 2004 defendants stated I would receive lifetime job placement. At that time the defendants

did post job openings for their paralegal students. However in 2008 the defendants stopped

posting job opening for their paralegal students and they no longer offered the paralegal course.

6. In or about November 2008 I read an article about Section 6450 of the California Business

and Professions Codes.

7. At that time I was working in federal sector mainly with federal employees.

8. After I discovered Section 6450 of the B&P I contacted the defendants they turned the

matter over to their legal counsel.

9. I then contacted the Department of Consumer Affairs.

10. On August 20, 2010 I filed this civil action due to the defendants’ ambiguousness.

11. On November 18, 2010 defendants served 65 interrogatories on me as well as a perjured

sworn declarations generated by defense counsel swearing to previous discovery in the case.

12 I did attempt to meet and confer with defendants about the 66 interrogatories and the sworn

declaration.


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13. Defendants agreed to withdraw some of the interrogatories and I forego the protective order

and did respond to the defendants Special Interrogatories and Form Interrogatories. At this time I

did notice the defendants that I had not concluded my investigation and was precluded from

complying with defendants’ request for production of documents at that time. On January 4,

2011 I did serve my responses on the defendants.

14. On January 4, 2011 I also served discovery request on the defendants. I served 20 Special

Interrogatories and 20 Form Interrogatories.

15. On February 3, 2011 defendants’ demurrer was sustained with 10 days to amend.

16 On February 4, 2011 I received the defendants’ boilerplate responses to my interrogatories.

17. On February 14, 2011 I filed and served my First Amended Complaint .

18. Defendants filed their second demurrer on February 28, 2011.

19. On February 28, 2011 I did contact the defendants as to their improper responses to my

discovery request. At that time defendants alleged that they had not received my responses.

Which was a falsehood.

20. On March 21, 2011 I filed and served my Motion to Compel Further Responses and for

Monetary Sanctions.

21. On March 24, 2011 defendants follow through with their malfeasance by submitting their

motion to compel and for monetary sanctions.

22. I have spent numerous hours defending against the defendants’ frivolous motions. The

defendants’ blatant misrepresentations to the court and their relentless stall tactics have also

caused me great distress. Before I discovered my paralegal diploma was deficient I was making

$125.00. Thus far I have spent 16 hours researching and drafting this motion as well as the

Motion to Compel Further responses to be heard on July 26, 2011 in Dept. K at 8:30 a.m.

23. Based on the foregoing I respectfully ask for monetary sanctions against defendants’

attorney of record in the amount of $2,500.00.


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I Paula Lua declare under penalty of perjury the foregoing is true and correct.

Executed this 29th day of March 2011 at Los Angeles California.

________________________

PAULA LUA, PRO PER


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Dated this 29th day of March, 2011