PERRY v.

JPMorgan Chase et al

Case # MSC10-02914

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Leighton Lee Perry 6724 Waverly Road Martinez, Ca 94553 Phone (925) 949-8377 Email: LL_Perry@att.net

Plaintiff Pro Se

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF CONTRA COSTA

LEIGHTON LEE PERRY, Plaintiff, vs.

JP MORGAN CHASE BANK N.A.; CHASE HOME FINANCE LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION; QUALITY LOAN SERVICE CORP.; and all persons unknown, claiming any legal or equitable right, title estate, lien or interest in the property described in this Complaint adverse to Plaintiffs title thereto and as DOES 1100, Inclusive,

Case No. MSC10-02914 PLAINTIFFS NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF ORDER RE: PLAINTIFFS AMENDED MOTIONS TO 1) COMPEL FURTHER PRODUCTION OF DOCUMENTS, AND FURTHER RESPONSES TO FORM AND SPECIAL INTERROGATORIES FROM JP MORGAN CHASE BANK NA AND FEDERAL NATIONAL MORTGAGE ASSOCIATION (SET 2); AND FROM QUALITY LOAN SERVICE CORP (SET 1) 2) ORDER ADMISSIONS DEEMED ADMITTED FROM FEDERAL NATIONAL MORTGAGE ASSOCIATION (SET 2); REQUEST FOR SANCTIONS MEMORANDUM OF POINTS AND AUTHORITIES Judge: Hon. Laurel S. Brady Dept: 31 Date: 9:00 a.m.

Defendant.

TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: Please take notice that on _____________, 2013, at 9:00 AM or as soon thereafter as the mater may be heard, Plaintiff Leighton Lee Perry will move the above entitled Court for relief from and reconsideration of the Judgment of the hearing on Plaintiffs 4 discovery motions heard on April 18, 2013, brought against Defendants JP Morgan Chase Bank N.A. (JPMorgan) including by merger
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Chase Home Finance, LLC (Chase); Federal National Mortgage Association (FNMA); and Quality Loan Service Corporation (QLS). This motion is based upon application of C.C.P. 1008 and 473 to the Courts Order filed April 26, 2013, to correct violations of jurisprudence, and is supported by the accompanying Memorandum of Points and Authorities, pleadings of Plaintiffs 4 discovery motions heard April 18, 2013, the other pleadings and matters on file or to be filed with the court in this action, matters of which the Court can take judicial notice, and such other evidence and oral argument as is presented to the Court at the hearing thereon . MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The decision rendered at the hearing of April 18, 2013, was not determined on any legal basis found within the four corners of Plaintiffs 4 discovery motions1 which were originally served January 25, 2013, to Defendants FNMA and JPMorgan, and February 6, 2013 to Defendant QLS. At the hearings of February 28, 2013 the court ordered parties to participate in the new discovery facilitation program, even though the mandate to do so was weeks away and continued the motions to March 14, 2013. During oral arguments at the hearing the Court Plaintiffs question of why an unopposed motion needed to go through facilitation was rebuffed by the Court. The Court did, however, respond to Plaintiffs request, and by its order included the remaining Defendant, QLS, continued the hearings to April 18, 2013, adjusted the hearing date for summary judgement by 3 weeks for a 6 week process, but refused to continue the trial date requested by Plaintiff. On April 18, 2013, the amended discovery motions of Plaintiff were heard, where the Court expressed a verbatim ruling crafted by Defendants counsels that the Facilitator signed as a result of the facilitation meeting that all parties attended. The tentative ruling presented the afternoon before the hearing stated that parties must appear and must meet and confer in person prior to court hearing. No transcript of the hearing is available. The Court filed a decision on April 26, 2013, and the postmark on the envelope sent to Plaintiff was stamped April 30, 2013.

Plaintiffs (Amended) MTC Further RPD and Responses to FI and SI from FNMA (Set 2); (Amended) MTC Further RPD and Responses to FI and SI from JPMorgan (Set 2); (Amended) MTC Further RPD and Responses to FI and SI from QLS (Set 1); (unopposed) / (Amended) MDA Admissions from FNMA (Set 2)

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II.

ARGUMENT A. THE COURTS ACTIONS IN THE MATTER CAUSED UNDUE SURPRISE TO PLAINTIFF California Code of Civil Procedure 473(a) allows a court to relieve a party or his or her legal

representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. The Courts failure to provide a tentative ruling addressing the discovery issues beyond meet and confer before the hearing2 was a proximate cause of surprise to Plaintiff. The courts action placed an undue burden on Plaintiff to determine how to prepare a defense, resulting in prejudicing his case. Plaintiff came to the hearing expecting to argue discovery law, but was denied a hearing on the issues on the motions. Adopting the findings of the discovery facilitator violates the hearsay rule [Evid. Code 1200]. Aberrant behavior on the part of the Court by enforcing an agreement to which Plaintiff was not a party violates due process principles esteemed by the State Supreme Court and encourages further discovery gamesmanship the high court abhors for the waste of court resources it causes. There is no public access to the history or reviews of facilitators, which puts a non-legal professional such as Plaintiff at further disadvantage. Choosing a facilitator that is unbiased toward pro se parties has about the odds of a back alley crap shoot. B. THE COURTS ACTIONS IN THE MATTER DID NOT ALLOW PRESENTATION OF APPLICABLE LAW California Code of Civil Procedure 1008(a) governs a partys means to seek reconsideration of a court order, under the prerequisite of presenting new or different facts, circumstances, or law. The purpose of C.C.P 1008 is to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it. Gilberd v. ACT Transit (1995) 32 Cal.App.4th 1494, 1500. Furthermore, the specificity of a rule of civil procedure is one factor to be considered in determining the flexibility accorded to pro se litigants. See Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982)3. As a pro se party Plaintiff cannot be expected to come to a hearing of undisclosed issues and be able to plead case law. In this motion Plaintiff requests that the Court reconsider its Order of the hearing of April 18, 2013, in light of the following legal considerations.
2 3

The ruling simply read Parties must appear. Parties are ordered to meet and confer in person prior to Court hearing. See Bates v. Jean, 745 F.2d 1150 (7th Cir. 1984)

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C. CURRENT COURT POLICIES AND THIS COURTS ACTIONS DENY DUE PROCESS OF LAW The Discovery Facilitation Program appears to be modeled after CCP 639 by applying an automatic finding of A reference agreement between parties, even if it doesnt exist, as in this case. [CCP 638] None of the findings relevant in CCP 639 that are preconditioned with CCP 638 were stated by the Court (c) When a referee is appointed pursuant to paragraph (5) of subdivision (a), the order shall indicate whether the referee is being appointed for all discovery purposes in the action. (d) All appointments of referees pursuant to this section shall be by written order and shall include the following: (1) When the referee is appointed pursuant to paragraph (1), (2), (3), or (4) of subdivision (a), a statement of the reason the referee is being appointed. (2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case. (3) The subject matter or matters included in the reference. (4) Plaintiff had no warning of the judicial powers that would be granted to a person identified as a facilitator that are found in a special master as applied by this court. In actuality the discovery facilitator did not provide tools for parties to arrive at a solution, but pushed for a settlement or agreement and provided the terms for the proposed agreement at the facilitation meeting. This is not the first time Contra Costa County Superior Court has run afoul of the California Supreme Court with its local rules. The scope of a courts inherent rulemaking authority has been discussed in various decisions (see, e.g., Rutherford4, supra, 16 Cal.4th at pp. 967-968), and the outer limits of such authority are clear.[fn] A trial court is without authority to adopt local rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. "We are most disturbed by the possible effect the rule and order have in diminishing litigants' respect for and trust in the legal system," George wrote. "The Contra Costa survey confirmed the litigants believed the rule and order deprived them of the essential opportunity to 'tell their story' and 'have their day in court,' and felt the rule and order caused the lawyers who drafted their declarations to be the persons testifying, not themselves." A common theme in the appellate decisions invalidating local rules, and one that also appears in the present case, is that a local court has advanced the goals of efficiency and conservation of judicial resources by adopting procedures that deviated from those established by statute, thereby impairing the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.

Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967

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Cases filed in Californias trial courts should be resolved as expeditiously as possible, consistent with the obligation of the courts to give full and careful consideration to the issues presented, and consistent with the right of parties to adequately prepare and present their cases to the courts. [Citation.] Thus, in establishing delay reduction programs, the Legislature recognized competing public policy considerations and attempt[ed] to balance the need for expeditious processing of civil matters with the rights of individual litigants. [Citation.] (Garcia5, supra, 16 Cal.4th at pp. 479-480.) Elkins v. Superior Court [(Cal. 2007), 163 P.3d 160] The abdication of the court to defer to hearsay findings of the discovery facilitator may seem to be loosely based on Calif. Code Civil Procedure 2009. This was discussed in Elkins [The fact that section 2009 permits [the admission of affidavits] upon a motion does not mean that the issues in a contested case may be determined and a judgment rendered on the basis of written statements of parties not before the court]. [The reviewing court acknowledged that affidavits ordinarily are excluded as hearsay, but concluded Code of Civil Procedure section 2009 provides a hearsay exception that grants a trial court discretion to decide motions on the basis of affidavits even when facts are controverted but only so long as the controverted facts do not require fact finding resulting in a judgment. [Reifler, supra, at pp. 484-485.]6 Such was not the case here, where Plaintiff objected to the Facilitators finding of mistake, inadvertence, or excusable neglect as a reason for late filing discovery responses, and pointed out the false date of service of requests (which were not raised as an issue at the meeting, and appears to be a result of one officer of the court relying on another officer of the court instead of the pleadings of a pro se). Such finding is beyond the scope and without legal basis7 and was denied explanation by the court on the details of the finding at the hearing and in the ruling. See Evidence Code 1121 which provides "Neither a mediator nor anyone else may submit to a court or other adjudicative body, and a court or other adjudicative body may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by the mediator concerning a mediation conducted by the mediator, other than a report that is mandated by court rule or other law and that states only whether an agreement was reached, unless all parties to the mediation expressly agree otherwise in writing, or orally in accordance with Section 1118." (emphasis added) Evidence Code 1118 provides

See Garcia v. McCutchen (1997) 16 Cal.4th 469 (Garcia) See Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 484-485 (Reifler) 7 4.3 of DISCOVERY MOTIONS AND THE DISCOVERY FACILITATOR PROGRAM only allows for a finding of non-compliance
5 6

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An oral agreement "in accordance with Section 1118" means an oral agreement that satisfies all of the following conditions: (a) The oral agreement is recorded by a court reporter or reliable means of audio recording. (b) The terms of the oral agreement are recited on the record in the presence of the parties and the mediator, and the parties express on the record that they agree to the terms recited. (c) The parties to the oral agreement expressly state on the record that the agreement is enforceable or binding, or words to that effect. (d) The recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded. In this case no agreement was reached as evidenced by the lack of Plaintiffs signature. Although the (untried) confidentiality aspects of a facilitation meeting are different than mediation, the law used to produce findings and recommendations should be available to the Court to evidence applicable law was considered in the process in the event of an appeal. D. WAS IT MISTAKE FOR THE COURT TO RELINQUISH ITS JURISDICTION TO A DISCOVERY FACILITATOR? Plaintiff cited instances where the discovery facilitator misstated details available on the court docket, presented items that Plaintiff had deleted from his discovery motions, and failed to address legal issues regarding objections presented by Defendants at the discovery hearing, all of which impact the credibility of the facilitators findings and recommendations. Here, we have a Defendants counsel stating they cannot / will not identify documents common to any business. Plaintiff could accept this were Defendant an individual. But the requests for documents that reflect accounting entries on the corporate books of the purchase or sale of Plaintiffs Subject Loan goes to the issue of standing, available to Plaintiff in his Deed of Trust. The objection of relevance and lack of specific identification of documents provided for discovery by Defendants does not pass the prudent man test or current case law. That the Facilitator, who made themself known to Plaintiff as an officer of the court, would recommend Plaintiff drop the unopposed motion to compel admissions, and dismiss the motions to compel further discovery that would confirm the sloppy paperwork of these government regulated entities devolves the credibility of the court from specious to suspicious (and makes the reason for misstating the date of discovery service to show lack of prejudice to Plaintiff criminally obvious). The program for discovery facilitation was not mandatory at the time the Court ordered parties to participate. In just the previous week another judge in the same courthouse ruled for the party who
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presented an unopposed discovery motion. The Court offered no reason why it should expend more resources by sending an unopposed motion to facilitation. If the decision of the Court stands, Plaintiff is denied substantial leverage for settlement, which is always a preferable alternative to trial. Spiking a partys case while ruling there is no prejudice to that party takes a special code of ethics and could explain why the ruling was mailed to the parties and thereby kept from public scrutiny. On the upside, the facilitator has a new client contact with a track record of supporting their efforts, and a nice tax write off for the time contributed to the discovery facilitation program. E. THE FACILITATOR FAILED TO CONFORM TO RULES OF THE PROGRAM The Discovery Facilitation Rule (from the court website) 4.4 states While the Facilitator may encourage compromises in discussion at the hearing in order to narrow or settle disputes, Discovery Facilitators should not simply try to produce a compromise at any cost. In making his or her recommendations, the Discovery Facilitator will give an opinion on the merits of the dispute in a manner that he or she believes is consistent with applicable law. (emphasis added) This was not the case at the facilitation meeting, which Plaintiff described as an exercise in duress at the court hearing of April188. The discovery facilitator, , did not provide a tentative summary of findings and ruling before the meeting, putting Plaintiff with his short term memory adversities at a disadvantage. Plaintiff was prepared to offer legal argument, but no legal citations are presented in the facilitators recommendation countering Plaintiffs pleadings, even when directly requested she do so. Facilitator attempted to persuade Plaintiff to drop the pending motion by asking him to imagine how the Court might rule, then threw in an implied threat that sanctions will be awarded, and refused to consider Plaintiffs objection of considering the (amended) responses that Plaintiff pointed out corresponded with a meet and confer letter that had identified additional items not present in the motion. The fact that the facilitator ruled on items not in the motion suggests she did not bother to read Plaintiffs pleadings. Ms. Ferber mentioned the upcoming summary judgment motions and her suggestion that a lack of facts can be used at trial seems meant to mislead Plaintiff from an ability to counter a MSJ with actual facts. Being both an elder and a non-legal professional, Plaintiff acutely felt the effects of the sandbagging tactics employed by [FACILITATOR] of not providing a pre-conference agenda with her tentative recommendation to allow preparation beforehand, and her persuasion tactics in lieu of fact and law to reach her recommendation. The dearth of legal citations should reflect the value of her recommendations when compared to the citations provided by Plaintiff in his motion. F. THE RULES FOR DISCOVERY FACILITATION VARY BY COUNTY In Marin County there is an option that is not stated in the Contra Costa County implementation: 2. By Court Order At any time after the filing of a discovery motion, the Court may, in its discretion, refer the dispute
8

See 25 - 26 DECLARATION OF LEIGHTON L. PERRY IN SUPPORT OF PLAINTIFFS AMENDED MOTION TO COMPEL RESPONSES TO DISCOVERY BY DEFENDANT JP MORGAN CHASE BANK NA

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to the Program by issuance and service on the parties or their counsel a Notice and Order Re: Inclusion in Discovery Facilitator Program. In the event any party desires not to submit the motion to the Program, such party may file with the ADR Coordinator a Notice of Intent to Opt Out of Discovery Facilitator Program, and the order issued pursuant to this subparagraph, if any, shall be vacated. It is intended that participation in the Program shall not delay the scheduling or hearing of any discovery motion unless otherwise agreed by the parties. [Rule 1.9 adopted effective 7/1/12] The program presented to Plaintiff contained no such rule. As such, Plaintiff had no opportunity to voluntarily waive confidentiality and for that reason retains those rights despite the conflicting language of the program. No Report of Non-Resolution was served on Plaintiff and filed with the Court. This leads Plaintiff to the conclusion that the Discovery Facilitation Program was not sanctioned by the California Legislature and therefore has questionable legal basis as a compulsory program affecting discovery motion outcomes in some counties, but not in others. III. CONCLUSION Plaintiff came to the hearing expecting to argue discovery law, just as he prepared to do at the facilitation hearing, but instead was denied a hearing on the legal issues by questionable behavior on the part of the Court in enforcing an agreement to which Plaintiff was not a party. As a fitting gesture, FNMA has not complied with the agreement because they wrote it with no due date. Plaintiff is aware of the necessary effort of the court to wade through each of the junk objections stated by Defendants, Plaintiffs corresponding legal citations for each objection placed, and the resulting mound of paper and time taken as a result. But it is unethical and demonstrated bias by the court to encourage continued gamesmanship by blanket acceptance of the junk objections plead by Defendants while failing to even read Plaintiffs pared down pleadings. Plaintiff presented in the pleadings that FNMA has a form for bailee letters, and the fact that FNMA fails to identify such a document in their production of documents and interrogatories should be cause for the court to overrule Defendants relevance objections., even though their correspondence and document tracking system has shown document not available in paper format, that would indicate the necessity for such a document. Perjury is a felony. The support shown by this court to cover up such actions on the part of officers of the court appears to be a step beyond an abuse of discretion. Respectfully submitted, Dated: May 21, 2013 ___________________ LEIGHTON LEE PERRY Plaintiff pro se

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CASE NUMBER: MSC10-02914

PROOF OF SERVICE BY OVERNIGHT DELIVERY

I am a citizen of the United States and reside in Contra Costa County, California. I am over the age of eighteen years and not a party to the within-entitles action. My home address is 6624 Waverly Road, Martinez, California 94553.

On May 21, 2013, I placed a true and correct copy of the following documents: PLAINTIFFS NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF ORDER RE: PLAINTIFFS AMENDED MOTIONS TO 1) COMPEL FURTHER PRODUCTION OF DOCUMENTS, AND FURTHER RESPONSES TO FORM AND SPECIAL INTERROGATORIES FROM JP MORGAN CHASE BANK NA AND FEDERAL NATIONAL MORTGAGE ASSOCIATION (SET 2); AND FROM QUALITY LOAN SERVICE CORP (SET 1) 2) ORDER ADMISSIONS DEEMED ADMITTED FROM FEDERAL NATIONAL MORTGAGE ASSOCIATION (SET 2); REQUEST FOR SANCTIONS in an envelope or package provided by an overnight delivery carrier addressed to the person(s) at the addresses below. I placed the envelope(s) or package(s) for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier: David Chavez, Esq. AlvaradoSmith APC 235 Pine Street Ste 1200 San Francisco, CA 94104 Charles Bell, Esq McCarthy & Holthus LLP 1770 Fourth Ave San Diego, CA 92101

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on May 21, 2013 __________________________________ Fred Brand

PROOF OF SERVICE NOTICE AND MOTION FOR RECONSIDERATION PLAINTIFFS DISCOVER MOTIONS