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Gary Kurtz, Esq. SBN 128295 Law Office of Gary Kurtz A Professional Law Corporation 20335 Ventura Boulevard, Suite 200 Woodland Hills, California 91364 Telephone: 818-884-8400 Telefax: 818-884-8404 E-Mail: gary@garykurtzlaw.com Attorney in pro per. SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES GARY KURTZ, Plaintiff, ) Case No. LC 094563

) Assigned for all purposes to: NW "D" ) ) ) ) ) ) OPPOSITION TO MOTION TO VACATE DEFAULT ENTERED AGAINST DEFENDANT BERNIS: DECLARATION OF GARY KURTZ Date: Time: Dept.: October 19,2012 8:30 a.m. NW "D"

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I. Introduction

On calendar for October 19, 2012 is a procedurally and substantively bizarre motion to vacate a default judgment (note, a default has been entered but not a judgment) entered against Defendant Bernis. The motion is not signed by Mr. Bernis and procedurally and substantively meritless and should be denied for one or more of the following reasons: 1. Either the motion is filed by Mr. Bernis, without being designated as a special

appearance and, therefore, it constitutes a general appearance and is self defeating; or 2. The motion is filed by Mr. Weberman on Mr. Bernis's behalf and cannot be

considered because Mr. Weberman is not a lawyer and cannot represent Mr. Bernis; and 3. Jurisdiction is proper in California for this claim. OPPOSITION TO MOTION TO VACATE DEFAULT 1

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Law Office of Gary Kurtz, A P.L.C. 20335 Ventura Boulevard, Suite 200 Woodland Hills, California 91 364

II.

This Matter Is Stayed Regarding Mr. Weberman Mr. Weberman has filed a vague notice of appeal presumably on jurisdictional

grounds, and the matter is advancing in the Court of Appeal. Pursuant to Code of Civil Procedure § 916(a), this action is stayed regarding matters involving Mr. Weberman, including the instant motions and trial.

III.

The Motion To Quash Judge Lavin's T.R.O. Is An invalid Reconsideration Motion Judge Lavin issued a T.R.O. to prevent the transfer of the registrations of the U.R.L.s

at issue. A hearing on a preliminary injunction was scheduled and continued indefinitely. Mr. Weberman challenges the T.R.O. with arguments seemingly taking the position that it should never have been issued.

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All reconsideration motions are governed by Code of Civil Procedure § 1008. See Code of Civil Procedure § 1008(h). To seek reconsideration, the motion must be filed within

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10 days. Code of Civil Procedure § 1008(a). Moreover, the motion must be "based upon new or different facts, circumstances, or law. Code of Civil Procedure § 1008(a). Finally, it must be made "to the same judge or court that made the order." Code of Civil Procedure § 1008(a). The instant motion fails to satisfy any of these standards.

IV.

The Motion To Dismiss Is a Disguised, Defective Summary Judgment Motion Mr. Weberman advances a motion to dismiss based on his declaration. The moving

papers fail to identify any procedural method to advance such a motion. The summary judgment procedure is the only way to bring a pre-trial dispositive motion thats seek to assert facts. See Code of Civil Procedure § 437c. The instant motion fails to satisfy the procedural requirements of a summary judgment motion, both in form and timing.

OPPOSITION TO MOTION TO VACATE DEFAULT 2

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V.

Conclusion For the reasons stated above, the instant motion should be denied.

Dated: October 3 , 20 1 2 Gary Kurtz, Esq. Attorney in pro per

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Gary Kurtz, Esq. SBN 128295

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Law Office of Gary Kurtz A Professional Law Corporation 20335 Ventura Boulevard, Suite 200 Woodland Hills, California 91364 Telephone: 818-884-8400 Telefax: 818-884-8404 . E-Mail: gary@garykurtzlaw.com Attorney in pro per. SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES GARY KURTZ, Plaintiff, vs. ENOM,INC.,etal., Defendants. ) ) ) ) ) ) ) ) ) ) Case No. LC 094563

Assigned for all purposes to: NW "D" OPPOSITION TO MOTION TO QUASH T.R.O. AND TO DISMISS Date: Time: Dept.: October 19,2012 8:30 a.m. NW"D"

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I.

Introduction Notwithstanding the fact that he has filed an appeal, Mr. Weberman has filed two

procedurally invalid motions. Both of the motions should be denied because of the appellate
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stay. His motion to quash the T.R.O. is an improper reconsideration motion and must be
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denied for that reason. His motion to dismiss is an improper summary judgment motion and must be denied for that reason.

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OPPOSITION TO MOTION TO VACATE DEFAULT 1

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II.

If The Instant Motion Is Deemed Filed By Bernis It Is Self Defeating

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A.

Bernis Has Waived Jurisdictional Challenges By Failing To Timely Object

The instant motion seeks relief from this Court in the form of an order vacation the existing default based on a challenge of this Court's personal jurisdiction. Jurisdictional challenges are governed by Code of Civil Procedure § 418.10(a), which reads in relevant part, as follows: A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. By definition, we know that the challenge was not made within the time to plead because a default has been entered. Moreover, Bernis presents no "good cause" to extend the time to object to jurisdiction. Accordingly, the disposition of the instant motion is governed by Code

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of Civil Procedure § 418.10(e)(3), which reads: "Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction . ..."

B.

The Instant Motion Waives Jurisdictional Challenges

The instant motion is not designated a special appearance and, therefore qualifies as a general appearance. In Dial 800 v. Fesbinder, 118 CalApp.4* 32, 52 (2004), the court explained that a "party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to defects in service, process, or personal jurisdiction. Code of Civil Procedure § 410.50(a) states that " A general appearance by a party is equivalent to personal service of summons on such party." Moreover, Code of Civil Procedure § 410.30 states that: "The OPPOSITION TO MOTION TO VACATE DEFAULT 2

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provisions of Section 418.10 do not apply to a motion to stay or dismiss the action by a defendant who has made a general appearance." A general appearance brings the parties before the Court and waives challenges to the propriety of the Court's jurisdiction. Factor Health Management v. Superior Court, 132

Cal.App.4th 246 (2005). That court explained: A defendant submits to the court's jurisdiction by making a general appearance in an action, [citation omitted.] A general appearance is one in which the defendant participates in the action in a manner which recognizes the court's jurisdiction, [citation omitted.] If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one. [citation omitted.] Id. at 250. Thus, any jurisdictional challenge has been waived. Mr. Bernis could have avoided this waiver by making a timely special appearance to challenge jurisdiction. See Riskin v. Towers, 24 Cal.2d 27 (1944). While the instant motion addresses jurisdictional issues, it is a motion to set aside a default not a timely motion to quash. Moreover, it is not designated as a special appearance.

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16 17 18 19 III. Mr. Weberman Cannot Appear For Mr. Bernis The Court will notice that Mr. Bernis has not signed the instant motion but, rather, it is signed by Mr. Weberman. Code of Civil Procedure § 127(a) requires a signature: Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise provided by law, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. Mr. Weberman, who is not a California lawyer, cannot represent Mr. Bernis. Accordingly, the instant motion should be denied pursuant to Code of Civil Procedure § 127(a).

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OPPOSITION TO MOTION TO VACATE DEFAULT 3

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IV.

Jurisdiction Is Proper

A.

Underlying Facts

Plaintiff is a California resident, having lived here since January 1987. He has been a lawyer in California since 1987, with his own law practice since 1991, with the exclusive practice focus in California Courts, and a very small percentage of work Federal Courts in California. The majority of Plaintiff's clients are California residents. Other clients come to Plaintiff for work in California. The basis of this lawsuit is a creditor's action based on a California judgment. Plaintiff has suffered business losses in California as a result of the web page at issue. In Kurtz v. Weberman, LASC Case No. LC084486, the Court issued a judgment that included approximately $1,000,000 in lost work from one particular client. That would have involved litigation in California. Since then, Plaintiff has lost at least two matters, one criminal and one civil, where he was referred business for litigation in California where he did not get the matters because of the web page at issue. Plaintiff's intake of new matters had reduced, suggesting that other potential clients have been dissuaded because of the web page at issue. The instant action seeks to sell the offending URLs, which Plaintiff intends to buy with a creditor's bid and take down the defamatory information. Plaintiff has also suffered personally from the web pages. His children have seen it (13,15 and 17). Plaintiff's 15 year old has special needs, and the web page has damaged Plaintiff's relationship with him. In addition, Plaintiff have been on the "dating scene" and has had several ladies agree to dates but back out at the last minute, citing the internet information.

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B.

Legal Position

The Internet postings at issue defame Plaintiff's professional abilities, ethics and standing, in California, where Defendant knew Plaintiff lived and practiced law. Moreover, the graveman of the instant action is the enforcement of a California judgment, which gives OPPOSITION TO MOTION TO VACATE DEFAULT 4

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Califoria an interest in this action. Those facts, which are undenied and undeniable, are sufficient to satisfy the forum effects test of Calder v. Jones, 465 U.S. 782 (1984), and its progeny. The fact that this is an action to enforce a California judgment, not an independant tort action, distinguishes this from the direct action againt Mr. Bernis. California asserts jurisdiction when intentional torts effect California or its residents, unless the nature and effect of the person's relationship with the forum makes the exercise of jurisdiction unreasonable. Jamshid-Negad v. Kessler, 15 Cal.App.4th 1704, 19 Cal.Rptr.2d 621 (1993); Calder v. Jones, 138 Cal.App.3d 128, 134, 187 Cal.Rptr. 825 (1982), qff'd, 465 U.S. 783, 788-790, 104 S.Ct. 1482 (1984). An act with the intention of causing an affect in California may, in and of itself, be sufficient to impose jurisdiction. See Kaiser Aetna v. Deal, 86 Cal.App.3d 896,902, 105 Cal.Rptr. 615 (1978). In Goehring v. Superior Court, 62 Cal.App.4th 894,73 Cal.Rptr.2d 105 (1998), the "effects" test was described as follows: Jurisdiction may be invoked only where the actor committed an out-ofstate act intending to cause effects in California or reasonably expecting that effects in California would result, [citations omitted] California "effects" create a form of purposeful availment in California. See, e.g., Walker & Zanger (West Coast) Ltd. v. Stone Design SA., 4 F.Supp.2d 931, 939 (C.D. Cal. 1997), aff'd, 142 F.3d 447 (9th Cir. 1998). In Southeastern Express Systems v. Georgia

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Guaranty Insurance Company of Georgia, 34 Cal.App.4th 1, 7, 40 Cal.Rptr.2d 216 (1995), the court explained: "Purposeful availment" means "an action of the defendant purposefully directed toward the forum State." [citation omitted.] But "purposeful availment" may be established even if the nonresident defendant maintains no offices, property, or employees in the forum. ... A nonresident defendant who has purposefully directed its activities toward the forum state may not defeat personal jurisdiction absent compelling evidence that jurisdiction would be unreasonable. Jurisdiction is based on information defendant sent into California. In Mansour v. Superior Court, 38 Cal.App.4th 1750, 1759 (1995) (cited by defendant with approval), the court explained:

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To prevail , Eidem must establish the causes of action arose out of an act committed or transaction consummated in California, or that petitioners performed some other act by which they purposefully availed themselves of the privilege of conducting activities within this state, thus invoking the benefits and protections of the state's laws. In finding a lack of jurisdiction over certain defendants, the Mansour court explained: "Nothing in either the complaint or real parties' declarations suggests the existence of a conspiracy to publish allegedly defamatory statements about Eidem in California." Id. at 1760. In the instant case, the defamatory statements were sent to California. By implication, Mansour supports a finding of jurisdiction in this case.

Conclusion For the reasons stated above, the instant motion should be denied.
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Dated: October 3, 2012

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Gary Kurtz, Esq. Attorney in pro per

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OPPOSITION TO MOTION TO VACATE DEFAULT

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DECLARATION OF GARY KURTZ

I, Gary Kurtz, declare:

1.

I am an attorney duly licensed to practice law in California and the plaintiff in

this action. The facts set forth in this declaration are based on my personal knowledge, and if called and sworn as a witness, I would testify to the following. 2. I am a California resident, having lived here since January 1987. I have been a

lawyer in California since 1987. I have had my own practice since 1991, with the exclusive practice focus in California Courts, and a very small percentage of work Federal Courts in California. The majority of my clients are California residents. Other clients come to me for work in California. 3. The basis of this lawsuit is defamatory internet publications that were directed

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to California. Their effects are felt primarily, or exclusively, in California. The content of the web page in question demonstrates that its publisher knows that I am in California and would primarily, or exclusively, suffer effects in California. 4. I have suffered business losses as a result of the web page at issue. In Kurtz v.

Weberman, LASC Case No. Lc084486, the Court issued a judgment that included approximately $1,000,000 in lost work from one particular client. That would have involved litigation in California. Since then, I know of two matters, one criminal and one civil, where I was referred business for litigation in California where I did not get the matters because of the web page at issue. My intake of new matters had reduced, which leads me to believe that other potential clients have been dissuaded because of the web page at issue. 5. I have also suffered personally from the web pages. My children (13, 15 and

17) have seen it. My 15 year old has special needs, and the web page has damaged my relationship with him. In addition, I have been on the "dating scene". I have had several

OPPOSITION TO MOTION TO QUASH -7-

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ladies agree to dates but back out at the last minute, siting the internet information about me. These are effects that are entirely in California. 6. California would be convenient for witnesses. The defamatory

communications were sent to California. I have my law practice in California, where clients and potential clients would be affected by defendant's writings. All of my witnesses and potential witnesses that I can think of to date have ties to California or are located in California. I declare under penalty of perjury under the laws of California that the foregoing is true and correct. Executed on October 3,2012, at Woodland Hills, California.

Gary Kurtz

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OPPOSITION TO MOTION TO QUASH

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