Linked are my motion to vacate judgment and ex parte application.
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Mary Cummins of Animal Advocates is a wildlife rehabilitator licensed by the California Department of Fish and Game and the USDA. Mary Cummins is also a licensed real estate appraiser in Los Angeles, California.
MARY CUMMINS
Defendant
645 W. 9th St. #110-140
Los Angeles, CA 90015
In Pro Per
Telephone: (310) 877-4770
Email: mmmaryinla@aol.com
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
BAT WORLD SANCTUARY, AMANDA LOLLAR Plaintiffs v. MARY CUMMINS Defendant | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Case No. BS140207 DEFENDANT’S EMERGENCY EX PARTE MOTION TO VACATE SISTER STATE JUDGMENT, VOID/REVERSE BANK LEVY; DECLARATION BY DEFENDANT PRO SE IN SUPPORT THEREOF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; AND DECLARATION OF EX PARTE NOTICE [PROPOSED] ORDER LODGED HEREWITH Date: December 13, 2013 Time: 8:30 Dept.: 24 Judge: Robert Hess |
TO THE ABOVE-ENTITLED COURT AND ALL INTERESTED PARTIES HEREIN: Appearing ex parte, Defendant Pro Se Mary Cummins (hereinafter “Defendant”) hereby moves to set aside the ruling made by the Court on December 12, 2013 authorizing Plaintiffs to take a $4,390 bank levy from Defendant’s OneWest bank account. This ex parte motion is based upon the grounds that Defendant filed a Motion to Vacate Sister State Judgment and Opposition to Plaintiff’s Objection to Exemptions December 11, 2013 which the Judge did not receive or review for some reason. Defendant offered to give the Judge her stamped certified copies of the motions at the hearing but Judge Hess refused. This motion is made ex parte because the Judge approved releasing Defendant’s money to Plaintiffs. If the Court’s ruling is allowed to stand, Defendant will suffer irreparable har.
This motion is made pursuant to Code of Civil Procedure (hereinafter “CCP”) §§ 473(d), and is based upon the accompanying Declaration by Defendant Pro Se, the accompanying Memorandum of Points and Authorities, the accompanying Declaration of Ex Parte Notice, all pleadings and papers on file in the above-captioned action, and other evidence that may be presented by Defendant at the hearing on this motion.
Dated: December 12, 2013
__________________________________
Mary Cummins
Defendant Pro Se
DECLARATION BY DEFENDANT PRO SE
I, Mary Cummins, declare as follows:
1.I am a resident of the State of California and over the age of 18 years. I have personal knowledge of the facts set forth in this declaration, and, if called to testify as a witness, I could competently testify to said facts.
- I am Defendant pro se in the above-captioned matter (Case Number: BS140207).
- December 6, 2013 I emailed Plaintiffs’ attorney David Watts that I would be filing a reply to his Notice of Opposition to Claim of Exemptions which he filed September 26, 2013 and mailed to me in November. I would also file a motion to vacate.
- December 9, 2013 I sent a request to meet and confer with Plaintiffs’ Texas attorney Randy Turner stating that I will be filing a Motion for Stay of Final Judgment Pending Appeal. He did not reply.
- December 10, 2013 I filed my Motion for Stay of Final Judgment Pending Appeal in the 352nd District court which is the court where the sister state judgment originated. This is the first and only time I have filed a motion to stay the judgment in the 352nd court pending appeal.
- I appealed the 352nd District court ruling to the Second Court of Appeals in Texas. Briefs were submitted September 10, 2013 along with amicus briefs on my behalf from Public Citizen and attorney David Casselman.
- December 11, 2013 I emailed a Motion to Vacate the Sister State Judgment based on the motion now pending in 352nd District Court to Plaintiffs’ California attorney David Watts. I attached the Motion for Stay of Final Judgment Pending Appeal along with all exhibits. I also emailed a Motion Objecting to Plaintiff’s Opposition to Exemptions to David Watts.
- December 11, 2013 David Watts in email stated he received the motions.
- David Watts has stated that service by email is acceptable.
- December 11, 2013 the Motion to Vacate and Motion Objecting to Plaintiff’s Opposition to Exemptions was filed with the court with court date December 12, 2013. I received an official stamped copy of these motions. I asked the clerk if I should walk them up to Dept 24 and she stated there was no need. Judge Hess would receive them in time.
- December 12, 2013 was the hearing for Plaintiffs’ Opposition to Exemptions and Motion to Vacate.
- I heard Plaintiffs’ attorney David Watts tell Judge Hess that my motion to vacate had already been heard and I lost. This motion for vacate was never heard or lost. Watts committed fraud upon the court by lying.
- I heard Plaintiffs’ attorney David Watts tell Judge Hess that he did not receive notice of my motions. Watts admitted in writing he received them. Watts committed fraud upon the court by lying.
- Judge Robert Leslie Hess only heard and read the Plaintiffs’ Opposition to Exemptions. Judge Hess did not read my reply and exemptions. Judge Hess stated he did not receive my Motion Objecting to Plaintiffs’ Opposition to Exemptions or my Motion to Vacate.
- I offered to give Judge Hess my official stamped copies of the motions but he refused.
- I stated in court that 645 W. 9th #110-140, Los Angeles CA 90015 is my mailbox at a UPS store in the Ralph’s market. 110 is the address for the UPS store. 140 is my box number. It is not an office. I do not work there.
- I stated in court that I am a pro se and do not know the proper way to file the appropriate motions and response.
- Judge Hess told me I must file an ex parte motion which I have just done.
- As I left the court room I left certified stamped copies of my filed motions at the clerk’s desk.
- When I got home I called the court clerk to find out proper procedure to file an ex parte motion and set a hearing.
- I was told to just bring the motion to the court 8:30 am and it would be heard that day.
- I told the court I would be there the next morning at 8:30 am.
- December 12, 2013 I emailed David Watts my Application for Ex Parte Motion which he admitted receiving.
- December 12, 2013 David Watts sent me a notice of court call. I told him I do not agree because I will be submitting my documents in court because I hadn’t finished writing them yet. He won’t be able to see them on the phone.
- This emergency ex parte application was made because Judge Hess ruled that Plaintiffs could take my bank account. If this happens, I will suffer great harm.
- I do not have a copy of the December 12, 2013 ruling.
- Attached as Exhibit 1 is a true and correct copy of the case summary in LASC.
- Attached as Exhibit 2 is a true and correct copy of the application for ex parte motion noticed to David Watts.
I declare under penalty of perjury that the foregoing is true and correct. Signed at Los Angeles, California on December 12, 2013.
Dated: December 12, 2013
________________________________
Mary Cummins
Exhibit 1
MEMORANDUM OF POINTS AND AUTHORITIES
1. Introduction
The ruling made in the above-captioned matter by this Court on December 12, 2013, (hereinafter the “Ruling”), granting the taking of Defendant’s only bank account and all money by Plaintiffs, was made without viewing the written Opposition of Defendant, Motion to Vacate and Exhibits. As supported by the Declaration of Defendant Pro Se, Defendant is a pro se who did not, does not know the proper procedure to object to the opposition and file a motion to vacate. If Defendant had known to file an ex parte application, Defendant would have done so, and vigorously opposed the Opposition to Exemptions. As it stands as soon as Judge Hess notified Defendant she must file an ex parte motion, Defendant did so immediately. Defendant’s right to due process compels this Court to set aside and to revoke the ruling.
Hereinafter, “CCP” refers to the Code of Civil Procedure, and “CRC” refers to the California Rules of Court.
- Defendant had the right to file a motion to vacate judgment and objection to Plaintiffs’ Opposition to Exemptions
The U.S. Supreme Court has made it clear that parties have the right to due process. Judge Hess knew that Defendant was a pro se and not an attorney. While a Judge cannot give legal advice the Judge must advice pro se of their rights. The Judge also has leeway in dealing with pro se parties as they relate to proper legal procedures. Defendant requested leave to file the proper documents properly but was denied.
3. The Court Should Set the Ruling Aside as Void Pursuant to CCP §473(d).
The Court May Set Aside a Void Order at Any Time.
The Court may, at any time, set aside a ruling that it determines to be void.
The court may, .... on motion of either party after notice to the other party, set aside any void judgment or order.” CCP §473(d), emphasis added.
4. The Facts of the Case Support Ex Parte Issuance of the Requested Order.
The Court may issue an order ex parte based on affirmative evidence that the party applying for the relief will suffer irreparable harm if the matter is delayed until it can be heard on notice.
“An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” CRC rule 379(b).
Judge Hess approved the taking of Defendant’s bank account December 12, 2013. This order must be reversed immediately or Defendant will suffer irreparable harm. There is not enough time to file a proper motion with notice before the money will be taken. Therefore, the requirement of CRC rule 379(b) is satisfied, and ex parte issuance of the requested order is appropriate.
5. In the Alternative the Court Should Issue an Order Staying the bank levy, Shortening Time, or Postponing the hearing Date, for the Motion to Be Heard at a Noticed Hearing.
In the event that Defendant’s attorney, or the Court, needs additional time for consideration of this motion, as an alternative to ex parte issuance of the requested order, the above-described irreparable harm can also be avoided by a noticed hearing at least seven days prior to a hearing. Such can be accomplished by either (a) the Court issuing an order shortening time for a noticed hearing to be held no later than seven days, or (b) the Court issuing an order postponing the bank levy until after a properly noticed hearing.
As to a noticed hearing, for which the notice must normally be served at least 16 days before the hearing, the Court has the authority to shorten such time:
“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. ... The court, or a judge thereof, may prescribe a shorter time.” CCP §1005(b).
“(a) [In general] Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed in accordance with Code of Civil Procedure section 1005.” CRC, rule 317(a).
6. Conclusion
For the foregoing reasons, Defendant’s motion to set aside December 12, 2013, Ruling [CCP §473(d); CCP §1005(b) should be GRANTED.
Dated: December 12, 2013
_______________________________
Mary Cummins
Defendant Pro Se
DECLARATION OF EX PARTE NOTICE
I, the undersigned, declare:
I am a citizen of the United States of America and am over the age of eighteen (18) years. My business mailing address is 645 W 9th St #110-140, Los Angeles, CA 90015.
At 2:00 p.m. I emailed my application for ex parte motion to the office of attorney David Watts at davidw@dwatts.net. I informed him that I will be appearing ex parte in the above-captioned matter on December 13, 2013, at 8:30 a.m. in Department 24 of the above-entitled court. He stated he would appear by court call.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on December 12, 2013, at Los Angeles, California, 90077.
__________________________
Mary Cummins
MARY CUMMINS
Defendant
645 W. 9th St. #110-140
Los Angeles, CA 90015
In Pro Per
Telephone: (310) 877-4770
Email: mmmaryinla@aol.com
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
BAT WORLD SANCTUARY, AMANDA LOLLAR Plaintiffs v. MARY CUMMINS Defendant | ) ) ) ) ) ) ) ) ) ) ) | Case No. BS140207 [PROPOSED] ORDER Date: December 13, 2013 Time: 8:30 Dept.: 24 Judge: Robert Hess |
GOOD CAUSE HAVING BEEN SHOWN, IT IS ORDERED THAT: The ruling made on December 12, 2013, in the above-entitled matter, which allowed Plaintiffs to take the bank levy of $4,390 from Defendant’s OneWest bank account, is set aside as VOID. If the money has already been removed from the account, Plaintiffs must give Defendant $4,390 within five days.
IT IS SO ORDERED.
Dated: _________________
________________________________
Judge Robert L. Hess
MARY CUMMINS
Defendant
645 W. 9th St. #110-140
Los Angeles, CA 90015
In Pro Per
Telephone: (310) 877-4770
Email: mmmaryinla@aol.com
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
BAT WORLD SANCTUARY, AMANDA LOLLAR Plaintiff v. MARY CUMMINS Defendant | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Case No. BS140207 MOTION FOR ORDER TO SHOW CAUSE RE: VACATION OF SISTER-STATE JUDGMENTS /ORDERS Date: December 12, 2013 Time: 8:30 Dept.: 24 Judge: Robert Hess |
RELIEF REQUESTED
Defendant Mary Cummins, (hereinafter “Defendant”) respectfully moves the Court for an order requiring Plaintiffs Amanda Lollar and Bat World Sanctuary to appear and show cause why the Motion to Vacate sister-state Judgement/Orders of the Court should not be granted. Defendant Cummins asks the Court to vacate the following Orders: Order in favor of Amanda Lollar for approximately $6,000,000. Order in favor of Bat World Sanctuary for approximately $186,700.
INTRODUCTION
Defendant reported Plaintiffs to authorities for animal cruelty, animal neglect, violations of the Animal Welfare Act, Texas Parks & Wildlife Department, Texas Health Department, Texas Veterinary Board and Building and Safety. Violations were found. The USDA veterinarian stated Plaintiff Lollar who has not gone past the eighth grade and tries to perform surgery on conscious bats without pain relief caused bats “pain,” “suffering,” and “death.” The USDA stated she violated the Animal Welfare Act. Plaintiffs lost their USDA permit.
Defendant was maliciously and frivolously sued for defamation and breach of contract in retaliation for reporting Plaintiffs to authority. Plaintiffs did not show the elements of defamation, breach of contract, admitted they had no damages and no proof of any causation in trial. Defendant argued this but the retired visiting Judge nevertheless ruled in their favor in Texas.
FACTUAL BACKGROUND
November 9, 2012 the Orders to be vacated were entered.
January 4, 2013 Declaration of Non-service was filed by Plaintiffs.
March 27, 2013 Plaintiffs filed proof of service of notice re sister state judgment docs.
April 25, 2013 Plaintiffs filed an abstract of judgment inre Amanda Lollar for $6,121,039.42 and Bat World Sanctuary for $190,877.08.
May 18, 2013 Defendant received a copy of the Abstract of Judgements in the mail.
STATEMENT OF THE CASE AND GROUNDS TO VACATE THE ORDER
The Orders should be vacated for the following reasons.
1. California Code of Civil Procedure Section 597: Action is pending in this case. Defendant Cummins filed motion to stay court order pending appeal December 9, 2013. The motion has not been heard. The motion states that Plaintiffs did not show the elements of defamation or breach of contract. Plaintiffs admitted they had no financial damages and no proof of any causation.
Defendant filed an appeal in the Second Court of Appeals in Fort Worth, Texas September 2012
. Defendant is indigent and was allowed to proceed with the appeal without paying $4,000 for minutes. Plaintiffs did not show any of the elements of defamation, breach of contract, damages, malice or causation as per Appeal Briefs (Appellant’s Appeal Brief
, Appellees’ Reply Brief
, Defendant’s Reply Brief
) and Amicus Briefs filed by attorney Paul Alan Levy of Public Citizen
which has over 300,000 supporters worldwide and David Casselman attorney for The Cambodia Wildlife Sanctuary and Elephants in Crisis.org on behalf of Defendant Mary Cummins.
The appeal was submitted to the Second Court of Appeals September 10, 2013. Opinion should be released shortly.
The Texas Citizens Participation Act was signed into law and effective immediately on June 17, 2011. Because Defendant was sued September 2010 Defendant was not able to have this case dismissed under the new Act. For this reason and others stated in motion for stay of court order pending appeal (Exhibit 1), Defendant should win this motion.
PRAYER
Defendant respectfully requests that this Court vacates the following Orders: Order in favor of Amanda Lollar for approximately $6,121,039.42. Order in favor of Bat World Sanctuary for approximately $190,677.08;
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Such other relief as the Court may deem just and proper.
Respectfully submitted,
______________________________
Mary Cummins, Defendant
Dated: December 9, 2013
645 W. 9th St. #110-140
Los Angeles, CA 90015
In Pro Per
PROOF OF SERVICE BY MAIL
(FRCivP 5 (b)) or
(CCP 1013a, 2015.5) or
(FRAP 25 (d))
I am Plaintiff in pro per whose address is 645 W. 9th St. #110-140, Los Angeles, California 90015-1640. I am over the age of eighteen years.
I further declare that on the date hereof I served a copy of:
MOTION TO VACATE SISTER-STATE JUDGMENTS/ORDERS
on the following interested parties by placing a true copy thereof enclosed in a sealed envelope addressed as follows for collection and mailing at 645 W. 9th St. #110-140, Los Angeles, CA 90015-1640, faxed and emailed.
David C. Watts P.O. Box 827 Davis, CA 95617 |
I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct.
Executed this day, December 9, 2013, at Los Angeles, California.
Respectfully submitted,
______________________________
Mary Cummins, Plaintiff
Dated: December 9, 2013
645 W. 9th St. #110-140
Los Angeles, CA 90015
Mary Cummins of Animal Advocates is a wildlife rehabilitator licensed by the California Department of Fish and Game and the USDA. Mary Cummins is also a licensed real estate appraiser in Los Angeles, California.
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