Curiosity Never Kills the Cat: Legal Questions for VERIFIED LAWYERS- ~No Discussion~

[bourne]

Yes, that's correct.



Based on this order, it seems to me that the state judge is going out of her way to be absolutely fair to both parties. I can't disagree with anything she said. But even if she seemed to be leaning one way or another, that's not the kind of thing that would prove prejudice sufficient to justify removal.

As to any claims overlapping between the two cases, a final judgment "on the merits" by either court (i.e., not just for missing a deadline or something) would resolve those claims in both courts. As to claims that don't overlap, a dismissal by one court would have no effect on the other court.

Thanks AZlawyer! So glad we have your legal perspective on this.

To summarize, if the assault/battery/stalking charges are dismissed in the state court, then it's all over for the Zahaus and they cannot re-pursue it in another state case/court?

Re: claims that don't overlap...from what you read of the Zahaus' WDS in the federal and state courts, are there any claims that do not overlap?

 

[LuckyLucy2]

Hello AZLawyer,

On the other thread, in post #518, you wrote:

The Zs are not permitted to use a Complaint and the discovery process to get the information they need to state a claim. They need to have enough information to state a claim before they file the Complaint. So the judge is trying to confirm that the Zs are not "fishing" for a claim but actually have a claim. The big problem for the Zs is that they probably don't know enough IMO to state a claim against each defendant without making some guesses, which could get their lawyers in trouble ethically.

What happens if the Judge does determine the Zahaus don't have enough information and evidence and they are fishing? Will the case be dismissed?

Could the Judge find that the Attorney for the Zahaus was "fishing" since he just went to the media to ask if "anyone heard anything that night (4 1/2 years ago) to call him?"

Can the Judge fine the Zahaus for filing a false claim? Or would it just be thrown out of court?

Could that happen now or does the Judge have to wait for the Summery Judgement date in October?

If it is tossed out for no grounds, can the Judge order that the Zahaus pay the legal costs for the Shacknais and Nina Romano, since they had to fight a baseless lawsuit?

Can the Zahaus be sued for filing a false case? Or somehow procescuted?

Will Dina Shacknai be allowed to show the Judge the proof she has that she was at Rady Children's Hospital during the hours of Rebecca Zahau's death by suicide before the Summery Judgement?

Thank you for all your expertise!

 

[AZlawyer]

Thanks AZlawyer! So glad we have your legal perspective on this.

To summarize, if the assault/battery/stalking charges are dismissed in the state court, then it's all over for the Zahaus and they cannot re-pursue it in another state case/court?

Re: claims that don't overlap...from what you read of the Zahaus' WDS in the federal and state courts, are there any claims that do not overlap?

I think I answered your first question in the other thread a couple of days ago.

I don't have handy links to the latest versions of the complaints, but anyone can see if they overlap--just read them and see which claims are the same and which are not. Since the same lawyers are writing everything, the overlapping claims should have identical names, e.g., "wrongful death."

Hello AZLawyer,

On the other thread, in post #518, you wrote:

The Zs are not permitted to use a Complaint and the discovery process to get the information they need to state a claim. They need to have enough information to state a claim before they file the Complaint. So the judge is trying to confirm that the Zs are not "fishing" for a claim but actually have a claim. The big problem for the Zs is that they probably don't know enough IMO to state a claim against each defendant without making some guesses, which could get their lawyers in trouble ethically.

What happens if the Judge does determine the Zahaus don't have enough information and evidence and they are fishing? Will the case be dismissed?

Could the Judge find that the Attorney for the Zahaus was "fishing" since he just went to the media to ask if "anyone heard anything that night (4 1/2 years ago) to call him?"

Can the Judge fine the Zahaus for filing a false claim? Or would it just be thrown out of court?

Could that happen now or does the Judge have to wait for the Summery Judgement date in October?

If it is tossed out for no grounds, can the Judge order that the Zahaus pay the legal costs for the Shacknais and Nina Romano, since they had to fight a baseless lawsuit?

Can the Zahaus be sued for filing a false case? Or somehow procescuted?

Will Dina Shacknai be allowed to show the Judge the proof she has that she was at Rady Children's Hospital during the hours of Rebecca Zahau's death by suicide before the Summery Judgement?

Thank you for all your expertise!

The judge is not looking at the evidence whatsoever at this stage. She is looking only at the allegations. She will not declare the claim false or baseless without having seen a scrap of evidence.

If the Zs are unable to allege what they need to allege to survive dismissal, that will mean that they don't know enough about what happened to make a claim for it in court. If California follows the "discovery rule" in wrongful death cases, which they probably do (but I haven't done the research), that will mean that the Zs brought the claim too early because they have not yet fully "discovered" the facts that would set forth a claim. I believe California has rules for pre-litigation discovery, so perhaps if the case is dismissed for this reason, the Zs could use those rules to get the answers they need to determine if they do, indeed, have a claim, and then they could refile it. (This would only work if the case is dismissed "without prejudice.") It is possible that the Zs would have to pay attorneys' fees to the Defendants for the waste of time and resources to get to that point.

The attorneys' statement is totally fine and not "fishing." You only need to know or have an informed belief of the basic elements of a claim before you sue--you don't need to have all the supporting evidence before you sue.

At the summary judgment stage, the judge will look at evidence, BUT cannot rule for one side or the other unless there is no evidence to contradict what that side is saying. If Dina S. has ironclad proof that she was at the hospital, the summary judgment stage would be a good time to share that with the judge.

The Defendants probably would not be able to sue for wrongful institution of civil proceedings (sometimes called "malicious prosecution" even in civil cases) unless they can somehow show that the lawsuit was brought maliciously, rather than because the Zs really thought the Defendants killed Rebecca. Again, I haven't researched California law on this point.

 

[bourne]

I think I answered your first question in the other thread a couple of days ago.

I don't have handy links to the latest versions of the complaints, but anyone can see if they overlap--just read them and see which claims are the same and which are not. Since the same lawyers are writing everything, the overlapping claims should have identical names, e.g., "wrongful death."



The judge is not looking at the evidence whatsoever at this stage. She is looking only at the allegations. She will not declare the claim false or baseless without having seen a scrap of evidence.

If the Zs are unable to allege what they need to allege to survive dismissal, that will mean that they don't know enough about what happened to make a claim for it in court. If California follows the "discovery rule" in wrongful death cases, which they probably do (but I haven't done the research), that will mean that the Zs brought the claim too early because they have not yet fully "discovered" the facts that would set forth a claim. I believe California has rules for pre-litigation discovery, so perhaps if the case is dismissed for this reason, the Zs could use those rules to get the answers they need to determine if they do, indeed, have a claim, and then they could refile it. (This would only work if the case is dismissed "without prejudice.") It is possible that the Zs would have to pay attorneys' fees to the Defendants for the waste of time and resources to get to that point.

The attorneys' statement is totally fine and not "fishing." You only need to know or have an informed belief of the basic elements of a claim before you sue--you don't need to have all the supporting evidence before you sue.

At the summary judgment stage, the judge will look at evidence, BUT cannot rule for one side or the other unless there is no evidence to contradict what that side is saying. If Dina S. has ironclad proof that she was at the hospital, the summary judgment stage would be a good time to share that with the judge.

The Defendants probably would not be able to sue for wrongful institution of civil proceedings (sometimes called "malicious prosecution" even in civil cases) unless they can somehow show that the lawsuit was brought maliciously, rather than because the Zs really thought the Defendants killed Rebecca. Again, I haven't researched California law on this point.

Thanks AZlawyer. Do you think it's a good time NOW for Dina to show any "ironclad alibi" she has that she was sitting vigil by her son's deathbed in the hospital? Why would any litigant want to waste precious time, money and resources if they have IRONCLAD PROOF that they had nothing to do with a victim's wrongful death for which they are being SUED for in court? I don't understand that logic behind allowing a WDS to go forward when a defendant claims they were nowhere near the murder of an innocent victim??? Why doesn't Dina file a motion to dismiss due to her so-called IRONCLAD alibi??? What's preventing her from doing so legally? I'm certain the Judge and all involved will gladly welcome any alibi she remotely has.

 

[AZlawyer]

Thanks AZlawyer. Do you think it's a good time NOW for Dina to show any "ironclad alibi" she has that she was sitting vigil by her son's deathbed in the hospital? Why would any litigant want to waste precious time, money and resources if they have IRONCLAD PROOF that they had nothing to do with a victim's wrongful death for which they are being SUED for in court? I don't understand that logic behind allowing a WDS to go forward when a defendant claims they were nowhere near the murder of an innocent victim??? Why doesn't Dina file a motion to dismiss due to her so-called IRONCLAD alibi??? What's preventing her from doing so legally? I'm certain the Judge and all involved will gladly welcome any alibi she remotely has.

You can't file a motion to dismiss on the basis that you have evidence to disprove the allegations. You have to file a motion for summary judgment. Normally motions for summary judgment are not filed until motions to dismiss are decided. And there's no point in filing a motion for summary judgment until the other side has had a chance to do its discovery, because the judge will just suspend the briefing to give them more time. So if Dina thinks she has an ironclad alibi but the Zs say they think discovery will dissolve her alibi, there would be no point in Dina filing a motion for summary judgment until the Zs have had time to check into that issue.

But didn't Dina already file a motion for summary judgment? I thought that's what the hearing in October was for, based on LL2's question above. If she filed a motion for summary judgment and DIDN'T include any ironclad alibi information in her brief and exhibits, that would be a strong indication that she doesn't have an ironclad alibi. If she hasn't filed a motion for summary judgment yet, there are lots of possible reasons for that and we can't jump to any conclusions. Just to pick one example, Dina's lawyers might want to make several arguments in the motion and have not concluded discovery on the other issues yet.

 

[bourne]

You can't file a motion to dismiss on the basis that you have evidence to disprove the allegations. You have to file a motion for summary judgment. Normally motions for summary judgment are not filed until motions to dismiss are decided. And there's no point in filing a motion for summary judgment until the other side has had a chance to do its discovery, because the judge will just suspend the briefing to give them more time. So if Dina thinks she has an ironclad alibi but the Zs say they think discovery will dissolve her alibi, there would be no point in Dina filing a motion for summary judgment until the Zs have had time to check into that issue.

But didn't Dina already file a motion for summary judgment? I thought that's what the hearing in October was for, based on LL2's question above. If she filed a motion for summary judgment and DIDN'T include any ironclad alibi information in her brief and exhibits, that would be a strong indication that she doesn't have an ironclad alibi. If she hasn't filed a motion for summary judgment yet, there are lots of possible reasons for that and we can't jump to any conclusions. Just to pick one example, Dina's lawyers might want to make several arguments in the motion and have not concluded discovery on the other issues yet.

Thanks AZLawyer! I had been wondering why the other defendants namely Adam and Nina made several motions for dismissals and Dina didn't. So your legal explanation makes a lot of sense since I was unaware of any legal impediments of how this dismissal process works.

 

[LuckyLucy2]

Respecfully snipped.

But didn't Dina already file a motion for summary judgment? I thought that's what the hearing in October was for, based on LL2's question above.

Yes, AZLawyer, that is correct - a Summary Judgment / Summary Adjudication is scheduled for 10/09.

 

[*Lash*]

You can't file a motion to dismiss on the basis that you have evidence to disprove the allegations. You have to file a motion for summary judgment. Normally motions for summary judgment are not filed until motions to dismiss are decided. And there's no point in filing a motion for summary judgment until the other side has had a chance to do its discovery, because the judge will just suspend the briefing to give them more time. So if Dina thinks she has an ironclad alibi but the Zs say they think discovery will dissolve her alibi, there would be no point in Dina filing a motion for summary judgment until the Zs have had time to check into that issue.

But didn't Dina already file a motion for summary judgment? I thought that's what the hearing in October was for, based on LL2's question above. If she filed a motion for summary judgment and DIDN'T include any ironclad alibi information in her brief and exhibits, that would be a strong indication that she doesn't have an ironclad alibi. If she hasn't filed a motion for summary judgment yet, there are lots of possible reasons for that and we can't jump to any conclusions. Just to pick one example, Dina's lawyers might want to make several arguments in the motion and have not concluded discovery on the other issues yet.

VERY helpful information. It really added some perspective to the activity in the suit!

:yourock:

 

[K_Z]

A long while back, I asked AZlawyer a question about joinder and sever of the defendants in this case:

http://www.websleuths.com/forums/sho...8#post11155968

Her answer, and subsequent comments is that in a civil case, "severing" the three defendants wouldn't happen-- happens in criminal cases when each defendant has different interests in terms of punishment and sentencing, or something similar. (Hope I rephrased that accurately.)

However, she added that the plaintiffs could choose to come to an agreement with one or more of the plaintiffs and drop them from the complaint.

Several of the comments upthread (in theWDS thread) indicate that the judge could dismiss the complaint, or render summary judgment, against only one of the plaintiffs, and the case proceed against the remainder.

I'm not sure that that is accurate? If one or more of the defendants were dismissed from the complaint, I think the complaint would have to be re-written, right?

Hopefully, AZlawyer will stop by and add to the discussion on this. Maybe I'll copy this over to the legal questions thread.

Thanks, AZlawyer, for any input on this!

*I guess to clarify the 2 questions, if the case is dismissed by the judge, is it dismissed against all plaintiffs?

*If summary judgment is granted for Dina's motion, is the case judged for all defendants, or just Dina-- who filed the motion for summary judgment? (I could see such a thing happening in, for example a WDS case involving manufacturers and large corporations, but can't see how this would work in a "small scale" WDS suit.)

 

[AZlawyer]

A long while back, I asked AZlawyer a question about joinder and sever of the defendants in this case:

http://www.websleuths.com/forums/sho...8#post11155968

Her answer, and subsequent comments is that in a civil case, "severing" the three defendants wouldn't happen-- happens in criminal cases when each defendant has different interests in terms of punishment and sentencing, or something similar. (Hope I rephrased that accurately.)

However, she added that the plaintiffs could choose to come to an agreement with one or more of the plaintiffs and drop them from the complaint.

Several of the comments upthread (in theWDS thread) indicate that the judge could dismiss the complaint, or render summary judgment, against only one of the plaintiffs, and the case proceed against the remainder.

I'm not sure that that is accurate? If one or more of the defendants were dismissed from the complaint, I think the complaint would have to be re-written, right?

Hopefully, AZlawyer will stop by and add to the discussion on this. Maybe I'll copy this over to the legal questions thread.

Thanks, AZlawyer, for any input on this!

*I guess to clarify the 2 questions, if the case is dismissed by the judge, is it dismissed against all plaintiffs?

*If summary judgment is granted for Dina's motion, is the case judged for all defendants, or just Dina-- who filed the motion for summary judgment? (I could see such a thing happening in, for example a WDS case involving manufacturers and large corporations, but can't see how this would work in a "small scale" WDS suit.)

The judge could absolutely dismiss just one or two defendants from the case, or grant summary judgment in favor of just one or two defendants.

If Dina is the only one who filed an MSJ, then she is the only one who would be dismissed from the case if her MSJ is granted. Of course, if her arguments apply equally to the other defendants (I haven't reviewed her MSJ to see what the arguments are), then the other defendants would no doubt point that out to the judge so they could be dismissed as well.

 

[AZlawyer]

Incidentally, everyone keeps referring to a motion for summary judgment filed by Dina, but I don't see it on the docket. Does anyone have a copy of it?

 

[*Lash*]

Incidentally, everyone keeps referring to a motion for summary judgment filed by Dina, but I don't see it on the docket. Does anyone have a copy of it?

Hi AZlawyer,

I personally have not seen nor do I have a copy of a motion for summary judgment filed by Dina or any of the defendants. IANAL, so maybe I'm not looking in the right place? I have noticed in the defendants 'case management documents' a summary judgment motion has been checked off as a possibility, however I know this is not the same as actually filing the motion.

The only other mention of summary judgment is listed below. It appears under the filing entries and future events. IANAL, I am thinking it is just a calendar entry by Judge Bacal. Does this seem correct?

02/03/2015 - Summary Judgment / Summary Adjudication (Civil) scheduled for 10/09/2015 at 01:30:00 PM at Central in C-69 Katherine Bacal.

https://roa.sdcourt.ca.gov/roa/

 

[AZlawyer]

Hi AZlawyer,

I personally have not seen nor do I have a copy of a motion for summary judgment filed by Dina or any of the defendants. IANAL, so maybe I'm not looking in the right place? I have noticed in the defendants 'case management documents' a summary judgment motion has been checked off as a possibility, however I know this is not the same as actually filing the motion.

The only other mention of summary judgment is listed below. It appears under the filing entries and future events. IANAL, I am thinking it is just a calendar entry by Judge Bacal. Does this seem correct?

02/03/2015 - Summary Judgment / Summary Adjudication (Civil) scheduled for 10/09/2015 at 01:30:00 PM at Central in C-69 Katherine Bacal.

https://roa.sdcourt.ca.gov/roa/

Yes, that's just a calendar entry, but the question remains why it was scheduled if no motion for summary judgment was filed. And I sure can't find one.

 

[*Lash*]

Yes, that's just a calendar entry, but the question remains why it was scheduled if no motion for summary judgment was filed. And I sure can't find one.

Any chance Dina filed a motion for summary judgment and it is under seal? Even so, one would think the court entries would show a request to seal and an order to seal, but IANAL. If Dina filed a summary judgment and included Max's medical records, maybe HIPAA privacy laws are enough to order the motion sealed. IDK, just speculating????

 

[AZlawyer]

Any chance Dina filed a motion for summary judgment and it is under seal? Even so, one would think the court entries would show a request to seal and an order to seal, but IANAL. If Dina filed a summary judgment and included Max's medical records, maybe HIPAA privacy laws are enough to order the motion sealed. IDK, just speculating????

No. Sealed documents still show up on the docket. And as you said, there would also be a motion to seal, perhaps a response and reply, and an order sealing the document.

 

[*Lash*]

AZlawyer :wave:

Can you give a reason or explanation why Dina and her attorneys are seeking immigration details on most of the Zahau family members? TIA

 

[AZlawyer]

AZlawyer :wave:

Can you give a reason or explanation why Dina and her attorneys are seeking immigration details on most of the Zahau family members? TIA

Maybe they're planning to argue that Rebecca committed suicide because she was despondent over some family immigration problem? That's about all I can think of off the top of my head.

 

[K_Z]

http://www.websleuths.com/forums/sh...-2013-in-California-3&p=11786261#post11786261

Could you please take a look at the letter to Dina's attorney from USCIS? It's a little small in jpg format, I know, but still readable.

If I understand the USCIS attorney correctly (and no guarantees there, lol!), it sounds like the only way USCIS would release the information is if there was a request from a federal judge for the information, and that the info requested would have to be within some very narrow guidelines in the law. And possibly that the subject would also have to agree or give consent. Did I understand that correctly?

If that's the case, then is it even possible for a federal judge to make that request on behalf of a judge hearing a case filed in state court? Or would this then cause the case to "revert" back to the federal case?

It's all quite confusing. I have to think that this is really reaching to try to say that something in the immigration records of 5 different people is somehow relevant to proving the defendants aren't responsible for Rebecca's wrongful death.

Second question, does this have anything at all to do with Dina's claim that she needs a federal subpoena to have access to the Rady surveillance videos currently held by the Coronado police in their evidence storage facility?

Thanks in advance for any insights, AZlawyer.

 

[AZlawyer]

http://www.websleuths.com/forums/sh...-2013-in-California-3&p=11786261#post11786261

Could you please take a look at the letter to Dina's attorney from USCIS? It's a little small in jpg format, I know, but still readable.

If I understand the USCIS attorney correctly (and no guarantees there, lol!), it sounds like the only way USCIS would release the information is if there was a request from a federal judge for the information, and that the info requested would have to be within some very narrow guidelines in the law. And possibly that the subject would also have to agree or give consent. Did I understand that correctly?

If that's the case, then is it even possible for a federal judge to make that request on behalf of a judge hearing a case filed in state court? Or would this then cause the case to "revert" back to the federal case?

It's all quite confusing. I have to think that this is really reaching to try to say that something in the immigration records of 5 different people is somehow relevant to proving the defendants aren't responsible for Rebecca's wrongful death.

Second question, does this have anything at all to do with Dina's claim that she needs a federal subpoena to have access to the Rady surveillance videos currently held by the Coronado police in their evidence storage facility?

Thanks in advance for any insights, AZlawyer.

The US Attorney is telling Dina's attorney that, for a state court case, he needs to make a FOIA request (that's the reference to "6 CFR Part 5") instead of sending a state court subpoena. The US Attorney then pointed out that Dina's attorney would have to be able to explain the relevance of the records, and that various immigration/asylum records are protected from disclosure under various statutes.

I think Dina's attorney did say that the surveillance videos were held by a federal agency, in which case the same issues would apply, yes. Of course, if the videos are also in the possession of the state police, that would be an easier subpoena target.

Ultimately, the same problems would apply even if Dina's attorney sent a federal subpoena--he would still have to be able to explain the relevance of the request, and the same statutes would still apply to protect certain information from disclosure. So whether it's done through a state subpoena, federal subpoena, or FOIA, the same issues would have to be addressed.

 

[K_Z]

REQUEST FOR PRODUCTION NO. 49
All phone records, including calls sent and received, voicemails, and text messages from
any phones utilized by Adam Shacknai, including but not limited to all phones owned by him
between July 11, 2011 and July 13, 1011.

REQUEST FOR PRODUCTION NO. 50
All phone records, including calls sent and received voicemails, and text messages from
any phones utilized by Jonah Shacknai, including but not limited to all phones owned by him, between July 11, 2011 and July 13, 1011.

BBM.

This is from the Responses to the Request For Production of Documents Set Two:

https://roa.sdcourt.ca.gov/roa/faces...2176274187.pdf

So, this request for phone records is FROM Dina and her attorney, TO the Plaintiffs.

Why exactly is it the responsibility of the Plaintiffs to provide phone records of one of the defendants, TO another of the defendants??

That just sounds beyond absurd to me. As absurd as it would be for DINA to ask the Plaintiffs to provide her with her OWN phone records, lol! Why exactly is it that Dina and her attorney feel it is appropriate in any way for them to try to compel a co-defendant's phone records?

And as far as Jonah's phone records, isn't that more appropriately handled by serving him and his phone carrier with a subpoena?

How is it that Dina and her attorneys suspect that the Plaintiffs even HAVE these records??

This whole line of thought just seems beyond absurd to me. If Dina wants Adam's phone records, she and her attorney should just call up Adam and his attorney and ASK for them. And if they say "no", then subpoena them. I don't understand at all why the plaintiffs are even being asked to do this.