About a week after the banks sent their motions for summary judgment/adjudication, the attorneys for the local trash out company sent their motions and within a week after that came the one from the property management company. Actually there were two MSJs from “PMS”. They sent separate motions against each Plaintiff. This is what’s referred to as “MSJ gang-banging” in the legal trade.
When the defendants file their papers, you get a chance to oppose them. This consists of no less than 8 or 9 separate documents encompassing at least a hundred pages, depending upon the complexity of your case, exhibits and all. From legal commentary I’ve read about the procedure, the judge doesn’t even bother to read everything you’re forced to prepare. And from experience, I’m positive that is indeed true. The courts say about summary judgments that you don’t have to prove your whole case. Bullshit. Yes you do. You’ll never make it to trial if you don’t.
In their motion papers, the trash-out slugs argued that they have high standards of operating procedure so they couldn’t possibly have done the things I accused them of doing: trespassing, refusing to leave when ordered to do so, menacing, making threats, trying to break into my home and invading my privacy, refusing to identify themselves to me or the sheriff. They claimed that the property management company “PMS” ordered them to do everything (except for the menacing and attempted break-in actions; that they did all on their own). But, just in case they do break in, “PMS” tells its contractors how to proceed – “re-secure” the property and run away. The “PMS” work order states in no uncertain terms that contractors must take unauthorized photos of homes known to be occupied. Presumably that is what prompted the trash out slugs to plow through me in their rush to get to my back door and take more photos. Obviously missing a photo opportunity is not their standard operating procedure. Maybe in future when they see a woman screaming from her front porch at them to STOP, HALT, CEASE & DESIST, they’ll take her seriously.
The trash out guys claim they just came to the property, said “hi” and left. Evidence I had showed that the V.P. for the property management company said they told her they couldn’t get near the house because they saw some woman screaming at them. Another version has the president of the trash out company telling “PMS” that his guys saw an open window and tried to lift it further but were caught in the act by a screaming woman.
Sounds like one of those “He said, She said cases, right? Well, during the hearing on January 24th for the trash out company’s MSJ, I suggested to the judge that we let a jury of reasonable people sort out who was telling the truth and who wasn’t. But that was not something she was willing to entertain. We little people apparently just don’t deserve a trial.
The outcome was that the judge let stand only one issue, trespass, and only within the narrowed margin of them not leaving from the time I told them to get the fuck out of there, which was done as soon as I appeared on my porch and BEFORE they threatened and menaced me, plowed through me, took photos, moved to the back of the house, took more photos, tried to break in, moved to the side of the house, took even more photos …
When an appeals court overturns a trial court, it will say that “the trial court erred in granting the motion.” I don’t have to be so polite. The judge didn’t just err, she turned logic into the same manure pile I cited in earlier posts.
The Big IF
IF the cause of action for trespass was allowed to stand, even within that narrow margin, then everything the trash out slugs did from that point forward was a legitimate and actionable claim, deserving of a jury trial. That means the invasion of privacy, the negligence and the emotional distress were all valid based on the allowed claim for trespass. But, not with this judge. I imagine she doesn’t do well with those connect-the-dots games either. What if she had been the little alien guy in “E.T.: The Extra Terrestrial”? Why she would never have discovered those Reese’s Pieces or Elliot and she would have died a horrible death, abandoned on a strange planet.
“PMS”: Talk About Pain, Gas, Bloating and Aggravation!
The very next day, on January 25, 2013, we had the MSJ hearings for the two motions by the property management company, one against each Plaintiff. Going in, we knew this was going to be one big fucking farce. We slowly made our way through the halls of (in)justice to “Stalag 17″, I mean Department 17 …
The attorney for “PMS” stood up and told the judge that he needed to file two separate motions against us because the circumstances were “so different” (no, they weren’t, it was just to make more work for us) and the judge nodded in sympathy saying “I agree” with this pathetic sad-sack look on her face as if to say “oh, you poor guy, it must have been just awful for you.” I nearly puked.
In his motion papers, the “PMS” attorney called me ignorant not once but three times. Did that judge really need any more convincing? Obviously she already thought I was simply too ignorant to have drafted anything in my own name to effectively prosecute my case because she didn’t read a thing I wrote, otherwise she would have “liberally construed” everything I said and I’d be home free … or at least on my way to trial. But no. This judge decided that the property management company also had no responsibility for anything even though they clearly tell their contractors to invade people’s privacy, trespass and instruct them on how to proceed when breaking into a home that’s later discovered to be occupied. No responsibility; no negligent hire; and lying and concealment are all A-OKAY because they owe no duty to you, no duty NOT to be negligent. I take it all back, the trash out company guys aren’t slugs at all; we’re the slugs. Innocent people minding our own businesses can be menaced and threatened because the courts have ruled that someone can shit all over us everyday of the week. When Rodney Dangerfield said he gets no respect, he was speaking for all of us without even knowing it.
Liability in General & Legal Citations
Here are a few things I quoted in my opposition papers to the various defendants’ MSJs.
Barron’s Law Dictionary defines ejectment as “a legal action brought by one claiming a right to possess real property against another who possesses the premises adversely or who is a holdover tenant who remains beyond that termination of a lease but who is not merely a trespasser.” UTTERLY USELESS. The judge ruled that the second a property is foreclosed everyone still occupying it is automatically a trespasser. Fuck Barron’s Law Dictionary, I say.
California Civil Code 1714(a) establishes the fundamental principle of negligence liability, providing: “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary skill in the management of his property or person, …” FORGET IT – doesn’t mean a thing.
Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 812, 251 Cal.Rptr. 202, 760 P.2d 399 [“there are many instances in which a defendant who is vicariously liable for another’s acts may also bear some direct responsibility for an accident, either on the basis of its own action—for example, the negligent hiring of an agent—or of its own inaction—for example, the failure to provide adequate supervision of the agent’s work”. DON’T BOTHER with this one either. The judge sure didn’t.
“An invasion of privacy occurs where one intentionally intrudes, physically or otherwise, upon the solitude, seclusion, private affairs or concerns of another in a manner that would be highly offensive to a reasonable person.” (Schulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231), also (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 421.) NOPE! The judge ruled that menacing, threats, attempted break-in and unauthorized photo-taking don’t count.
“The person entitled to stop a wrongful and unauthorized entry is not necessarily the fee simple owner or the owner’s agent, but the person in possession of the property – who could be the fee owner, a tenant or even a person in wrongful possession. [Allen v. McMillion (1978) 82 CA3d 211] The occupant of the property, who might be other than the fee owner, can recover money damages for his injuries resulting from a trespass. Conversely, damage to the fee owner’s property caused by a person who is in rightful possession, such as a tenant, is not a trespass, it is waste.” [Smith v. Cap Concrete (1982) 133 CA3d 769] HELL NO!
I even tried these to show that laws DO EXIST in California to protect people despite foreclosure. Gross v. Superior Court, 171 Cal. App. 3d 265, 217 Cal. Rptr. 284 (Ct. App. 1985) Court of Appeal held that: that statute which allows eviction by unlawful detainer proceeding where property has been sold through foreclosure did not preempt rent stabilization ordinance which limited the grounds for eviction; that purchaser of property at foreclosure proceeding, as successor to the landlord, was subject to rent stabilization ordinance; that purchaser failed to demonstrate that it had grounds under rent stabilization ordinance to evict the existing tenants. A tenant under a subordinated lease who remains in possession after the foreclosure sale does so as a holdover tenant, that is, a tenant at sufferance. Aviel v. Ng, 161 Cal. App. 4th 809, 74 Cal. Rptr. 3d 200 (2008). NO FUCKING DICE!
Tell me again how the courts are required to “liberally construe” my evidence and I’ll tell you where to shove it.
The trash out guys hide behind the property management company (“PMS”) and “PMS” hides behind its contractors. Why it’s a virtual daisy chain. And who’s leading this conga line fuck fest? The big bully banks. OOMPAH!
Author Ginger Marin is an actor, freelance writer and storyteller. You can also find her on Google+
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