Rick Simons' Opposition to WTS Motion in Conti case is brilliant--Check it out @ Alameda Sup Ct Website

by DNCall 98 Replies latest jw friends

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  Justitia Themis

  Interesting...I thought this would have been over with by now. I hope the judge is just being extra cautious...

  Nevertheless, I performed a quick review of the cases/secondary sources associated with § 995.710 when I first posted that I that I did not think the WTBTS would be able to substitute real property. Copying what I found back then…

  Secondary Source

  Except to the extent that the statute providing for a bond precludes a deposit in lieu of bond or limits the form of deposit, a provision of the Code of Civil Procedure permits a party who is required to post a bond to make a deposit in lieu thereof. For example, the statute provides that any of the following may be deposited: cash, bearer bonds or notes of the United States or California, certificates of deposit, assigned savings accounts, and investment certificates or share accounts issued by savings and loan associations or credit unions. 1 The statute permits only a deposit of liquid assets, not a “deposit” of real property in the form of an executed deed. 2

  4 Cal. Jur. 3d Appellate Review § 420

  Case Law

  Footnote two cites Markley, which uses basic statutory interpretation to say that the list is not open to judicial expansion:

  “Section 995.710 permits a party who is required to post a bond to make a deposit in lieu of bond, and specifies the assets which are acceptable as such a deposit. Thus, under subdivision (a), “any of the following” may be deposited: cash, bearer bonds or notes of the United States or California, certificates of deposit, assigned savings accounts, and investment certificates or share accounts issued by savings and loan associations or credit unions. Subdivision (c) merely provides that the deposit “shall be accompanied by an agreement executed by the principal authorizing the officer [i.e. the appropriate custodial officer; see section 995.160] to collect, sell, or otherwise apply the deposit to enforce the liability of the principal on the deposit.” That subdivision does not purport to expand the list of acceptable deposits in subdivision (a); it only provides that the deposits must be accompanied by the authority to dispose of them on behalf of the beneficiary. Nothing in the language of subdivision (a) suggests that its list is subject to judicial expansion, and we deem the maxim inclusio unius est exclusio alterius to be applicable. Thus, the court's order was not justified under the cited statutory provision.”

  Markley v. Superior Court, 5 Cal. App. 4th 738, 745, 7 Cal. Rptr. 2d 328, 332 (1992)

  FYI. This is a Fourth District, Division 2 case. I didn’t look up Conti’s appellate jurisdiction. This case has a caution flag in Westlaw, but a quick check of the citing cases didn't seem to indicate that anything overruled the issue of acceptable assets. This case is also cited in the CA. Judicial Benchbook.
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  Scott77

  Hi Justitia Themis,

  I do not see anything new from your lastest post. What you indicate has already been metioned by 144001 where he sums up in part,'...the law is clear cut. The rules of statutory construction do not support the construction argued by the WTBTS. The forms of security allowed by the statute are all, extremely liquid assets. No real or personal property is mentioned..."

  Scott77
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  Justitia Themis

  You are correct Scott. As I mentioned in my post, I am just copying some stuff I had looked up earlier.

  No new legal arguments, just some possibly supporting case law and secondary sources that forum members might be interested in reviewing.

  .
• 

  144001

  <<<< Nevertheless, I performed a quick review of the cases/secondary sources associated with § 995.710 when I first posted that I that I did not think the WTBTS would be able to substitute real property. -- Justitia Themis>>>>

  I can't find the post you've referenced, where you purport to have expressed the opinion that you "did not think the WTBTS would be able to substitute real property." In fact, I note that I've never read a post from you where you've actually expressed an opinion on the secondary authority you've quoted. But now that others here have uniformly expressed the opinion that Conti's opposition is the correct interpretation of the law, it's safe for you to jump on the bandwagon and agree with everyone else.
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  Justitia Themis

  144,001 posted: I can't find the post you've referenced, where you purport to have expressed the opinion that you "did not thin, the WTBTS would be able to substitute real property...In fact, I note that I've never read a post from you where you've actually expressed an opinion on the secondary authority you've quoted

  You are correct, 144001; I have not previously posted the specific information contained in my most recent post on this thread.

  As I clearly noted in my post, I was “copying what I found back then,” not copying what I posted back then. The only thing I stated I had posted earlier was my concern as to whether the WTBTS could substitute real property.

  JT posted the following on 10/28/12, shortly after the WTBTS motion was available and before the response was posted:

  http://www.jehovahs-witness.net/jw/friends/240387/2/Conti-WTS-Motion-re-Appeal-Bond-WTS-Motion-10-26-Contis-Opposition-11-02-WTS-Reply-11-06

  The question I have is whether the property can be used since real property is not one of the “acceptable securities” listed in CCP s 995.710(a), OR if it is allowed, whether it is restricted to California real property. Unfortunately, I am buried in school, and I will not be able to research this for weeks.

  However, please note*, I have not read the latest pleadings, and so I don’t even know if these California Codes are the one upon which the WTS is relying. I am NOT familiar with California law (that’s why I am researching it), and there may be another Code/s that applies. Therefore, if these particular codes are not mentioned in their briefs, this information doesn’t apply.

  (underlining added)

  As my post indicates, I did minimal research—my Westlaw research trail documents it was about eight minutes—and I noted I would have to perform more research at a later date. This was some of the information from my later research.

  Turning to the “bandwagon” issue, I generally post only on weekends, so I am often ‘late to the game.’ In addition to being a full-time law student, I work two days weekly on the civil litigation team of a medium-sized county, AND I am performing a one day a week externship with the chief counsel of a local hospital system. Those duties, combined with two full days of classes, explain my weekend-only posting. I visit Facebook, this site, etc., when I need a mental break from my 8-10 hours daily of weekend studying. Nevertheless, I see no harm in posting the supportive materials I have found, especially since board members generally would not have access to them.

  Yet again, you have posted an overly-emotional, unfounded, personal attack. Perhaps you should follow the advice you have posted to others:

  Scott77,

  Read "Posting Guideline" 10, below. Your hatred for others is not the subject of this thread.
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  144001

  JT,

  LIAR LIAR PANTS ON FIRE!!!!!!

  Here's the false statement you made above:

  "Nevertheless, I performed a quick review of the cases/secondary sources associated with § 995.710 when I first posted that I that I did not think the WTBTS would be able to substitute real property." (emphasis added).

  As of the point in time when you made the statement above, you had never previously posted that you "did not think the WTBTS would be able to substitute real property." Instead, you cut and pasted a bunch of secondary authority that is written for use by legal professionals and not geared towards lay people, and, contrary to your false statement above, you DID NOT EXPRESS ANY OPINION WHATSOEVER as to what the information you posted actually meant.

  <<<< In addition to being a full-time law student, I work two days weekly on the civil litigation team of a medium-sized county, AND I am performing a one day a week externship with the chief counsel of a local hospital system. >>>>

  Cry me a riverr!!!!! A busy life does not justify being a liar, and you lied when you stated that you had expressed an opinion that you actually had never expressed.

  <<<< Yet again, you have posted an overly-emotional, unfounded, personal attack.>>>>>

  Exposing your lies is not a personal attack, and if you think anything I've said above is "unfounded," you are certainly free to make your case, JT. As for your claims to be the victim of a personal attack, JT, the old 'pot kettle" saying applies. Or to use words that you might learn the meaning of some day in law school, you come to the thread with "unclean hands." Don't expect to receive the pity you so shamelessly seek.
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  Justitia Themis

  You have issues.

  Here's the false statement you made above:

  "Nevertheless, I performed a quick review of the cases/secondary sources associated with § 995.710 when I first posted that I that I did not think the WTBTS would be able to substitute real property." (emphasis added).

  As of the point in time when you made the statement above, you had never previously posted that you "did not think the WTBTS would be able to substitute real property."

  The "point in time" that I made the statement you reference was 11/10/12. The "point in time" that I said I questioned the WTS's ability to substitute real property was 10/28/12. 10/28/12 comes before 11/10/12. What was that 'false statement' again?

  Your making a fool of yourself, but by all means continue.
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  Band on the Run

  Justitia,

  I am going to relate a story of my transiton from law studen to lawyer. Law school basically teaches you how to find the law and spot issues. I was fortunate enough to have the option of working for a large Wall St. firm with excellent word of mouth or the Civil Rights Divisioin. I chose Wall St. as a temporary measure. The large class and social life reminded me of school. I did not feel I knew enough from law school to decide what the law was. My memos were always "On the one hand,...." but "ON the other hand." In a recent CLE, this method was described as telling clients what you did in the library. I pulled this volume and read this, then a Lexis search showed that...

  I was given an assignment to research a new area of the law. The partner told me that he was not paying me big bucks to find the law. He wanted to know what my gut told me. Did the law make any sense to me? Any law grad could determine the law. If it did not, he would challenge it. I was frantic to determine my gut response and raced to find any formulation whether true or not. Since I had no experience in the area, I finally told him that I could give him my gut reaction to many other areas of law. This was too new to me. I had no background.

  Clients want to know what their risk is. Corporate clients often seem sharper about legal matters than their lawyers. It takes great effort at first to leave the safety of law school behind and actually state a conclusion. Now I ruthlessly purge "what I did in the library" from my work. I state opinions.

  I refuse to do reseach here b/c I believe it would take too much time and might make me passionate to slip and give legal advice.

  When lawyers sit around and discuss the legal skills of other lawyers, everyone believes that any lawyer can find the law. Legal skills are important but the primary attribute treasured is creativity with the law.

  Dumping legal citations or research is probably not going to help any lay people. They don't have the background to understand it. The material is written by lawyers for lawyers. I mentioned that you never state what your view is. You never express any emotion. We would love to hear your opinions.

  I don't think what you are doing is so bad. It is just normal for law students. Once you practice full time, I expect you will adjust your skills the way all law students before you have changed. Clients don't want only a list of research results. They want to know risk and it must be stated clearly. No waffle words.

  144,001 reads as though he has substantial experience. You may have been helpful but many could conclude that the references were to correct him or show how you know even more. There are several lawyers who lurk on this site. No lawyer has corrected me. It is strange how a law student find it in her place to approve or disapprove of an actual lawyer's work.

  Why can't we all cooperate on tihs forum? People bring different strengths and outlooks. This thread provides a minor example.
• 

  144001

  JT,

  Can you be any more dishonest?

  <<<< The "point in time" that I said I questioned the WTS's ability to substitute real property was 10/28/12. 10/28/12 comes before 11/10/12.>>>>

  You didn't say you "questioned the WTS's ability to substitute real property," rather, the lie is as follows:

  "Nevertheless, I performed a quick review of the cases/secondary sources associated with § 995.710 when I first posted that I that I did not think the WTBTS would be able to substitute real property ." (emphasis added).

  That is an affirmative statement of fact; you are claiming here, on 11/10, that you had previously "posted that [you] did not think the WTBTS would be able to substitute real property." As of that date, YOU HAD NEVER EXPRESSED THE OPINION THAT YOU DID NOT THINK THE WTBTS WOULD BE ABLE TO SUBSTITUTE REAL PROPERTY. The above statement is therefore a lie, no matter how you try to disguise this plain and simple fact.

  Now, you're trying to save face by lying about what your false statement was. You're now trying to lie your way out of this as follows:

  <<<< The "point in time" that I said I questioned the WTS's ability to substitute real property was 10/28/12. >>>>

  Lawyers are expected to be specific, and to get their facts straight. You are foolishly attempting to rewrite history, but I'm going to hold you to your own words. On 11/10, when you posted the false statement above, you did not post that you had previously "questioned the WTS's ability to substitute real property." Rather, on 11/10, you made the affirmative representation that you had in fact "first posted that [you] did not think the WTBTS would be able to substitute real property." You're trying to salvage your lie by misrepresenting the content of your post of 11/10, from the real statement you actually made, that you had previously expressed an opinion that the WTBTS would not be able to substitute the real estate, to a false characterization of your 11/10 post as only "questioning" the WTBTS' ability to make the substitution.

  You can lie all day, but on this forum, liars are routinely exposed.

  <<<<Your making a fool of yourself, but by all means continue.>>>>

  I believe that's spelled "you're," and I think you ought to wake up and smell the coffee, kid: I might be a "fool," but it's you who has been discredited for lying in this thread.
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  Scott77

  	Yet again, you [144001] have posted an overly-emotional, unfounded, personal attack. Perhaps you should follow the advice you have posted to others: Scott77, Read "Posting Guideline" 10, below. Your hatred for others is not the subject of this thread.
  	Justitia Themis

  Hi JT,

  Was you trying to hit 'two birds with one stone'?

  Scott77