You are on page 1of 18

1 David J. Altman (California Bar No.

193807)
602 Kingman Avenue
2 Santa Monica, California 90402
Telephone No. (310) 663-3172
3 Counsel for Plaintiff
Jack Yakov Altman
4

7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA


FOR AND IN THE COUNTY OF LOS ANGELES
8

10 JACK YAKOV ALTMAN, an individual, ) Case No.: BC341627 [Assigned to the


Honorable Judge Conrad Aragon in
11 ) Department 49]
Plaintiff,
12 )
vs. ) PLAINTIFF JACK YAKOV ALTMAN’S
13 OPPOSITION TO DEFENDANTS’
) MOTIONS AND JOINDERS FOR AN
14 STANLEY AZRILYAN, an individual; et al., ORDER DISMISSING THE CASE
) PURSUANT TO CALIFORNIA CIVIL
15
Defendants. ) PROCEDURE CODE SECTIONS 583.310
AND 583.360; DECLARATION OF DAVID
16 ) J. ALTMAN IN SUPPORT THEREOF
--------------------------------------------------------
17 )

AND RELATED ACTIONS )


18
) Date: December 20, 2010
19 Time: 8:30 a.m.
) Place: Dept. 49
20
)
21

22

23

24

25
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 1

28
1 Plaintiff Jack Yakov Altman (“Altman”) respectfully requests that the Court deny

2 Defendants‟ various motions and joinders for an order dismissing the case pursuant to California

3 Civil Procedure Code Section 583.310 (“Section 583.310”) and Section 583.360 (collectively,
4 the “Motion”) for the following reasons:
5
I. ALTMAN HAS NOT FAILED TO BRING THIS CASE TO TRIAL WITHIN FIVE
6 YEARS OF THE ACTION’S COMMENCEMENT BECAUSE THE STATUTE
WAS TOLLED.
7
Defendants Alex Brik (“Brik”) and Marina Brik (“Mrs. Brik”) (collectively, the “Briks”)
8
and Metrostate Financial and Real Estate Corporation (“MFREC”) (collectively, the “Moving
9
Defendants”) Motion asserts that Sections 583.310 and 583.360 mandate that a trial court
10
dismiss any action that has not been brought to trial within five years (except when the case has
11
been ordered to mediation or arbitration within the last six months of the deadline).1 (M.
12
Dismiss, pp. 1-3.) Moving Defendants claim that the instant matter was commenced on October
13
18, 2005 (implying that the trial cutoff was October 18, 2010) and that the five-year period has
14
now lapsed.
15
However, Moving Defendants fail to cite essential contrary statutes and case law. In
16
particular, Section 583.340 states:
17

18 In computing the time within which an action must be brought to trial pursuant to
this article, there shall be excluded the time during which any of the following
19 conditions existed:

20 (a) The jurisdiction of the court to try the action was suspended.

21 (b) Prosecution or trial of the action was stayed or enjoined.

22 (c) Bringing the action to trial, for any other reason, was impossible,
impracticable, or futile.
23
1
24 Defendants Yevgeniya Lisitsa (“Lisitsa”), Ed Katz (“Katz”) and Ed Akselrod (“Akselrod”) (collectively, the
“Joining Defendants”) purportedly filed a Joinder in the Motion. Defendant Mirov has been dismissed. Defendants
25 Stanley Azrilyan (“Azrilyan”), his mother (“Mrs. Azrilyan”) and Igor Seleznyev (“Seleznyev”) have been defaulted.

PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS


26
FOR AN ORDER DISMISSING THE CASE
27 2

28
1 (Cal. Civ. Proc. Code, § 583.340 [emphasis added].) “The statute must be liberally construed,

2 consistent with the policy favoring trial on the merits.” (Brown & Bryant, Inc. v. Hartford

3 Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 251.) “The policy favoring trial or other
disposition of an action on the merits [is] generally to be preferred over the policy that requires
4
dismissal[.]” (Cal. Civ. Proc. Code, § 583.340.)
5
Moreover, “as Witkin points out (6 Witkin, op. cit. supra, § 142, p. 447) the 1984
6
revision of the dismissal statutes . . . states the excuse without any [] qualification[.] . . . The Law
7
Revision Commission explained that „[t]his is consistent with the treatment given other statutory
8 excuses; it increases certainty and minimizes the need for a judicial hearing to ascertain whether
9 or not the statutory period has run." (17 Cal. Law Revision Com. Rep. (Jan. 1984) p. 919.) It also

10 is consistent with the general policy favoring trial over dismissal. (§ 583.130.)” (Holland v.

11 Dave Altman's RV Center (1980) 222 Cal. App. 3d 477, 484; Ocean Services Corp. v. Ventura
Port District (1993) 15 Cal.App.4th 1762, 1774.) Consequently, tolling is mandatory if any of
12
the statutory prerequisites of Section 583.340 are met.
13
A. The Period During the Pendency of an Appeal is Excluded From the
14 Calculation of the Five-Year Deadline.

15 Courts have repeatedly held that a trial court‟s jurisdiction to try an action is suspended

16 during the pendency of an appeal: “Plaintiff[] contend[s] that . . . the time during which the
17 court's jurisdiction to try the case was suspended, i.e., from the filing of [] the notice of appeal . .
18 . to the filing of the remittitur . . . must be excluded from the five-year period[.]” (Bergin v.
19 Portman (1983) 141 Cal.App.3d 23, 25-26.) “[W]e conclude that plaintiff[„s] contention is
20 correct.” (Bergin, 141 Cal.App.3d at 26.) “[I]n computing the date by which plaintiff[„s] action
21 had to be brought to trial in order to avoid dismissal, the time during which the court's
22 jurisdiction to try the action was suspended because of [an] appeal from the summary judgment
23
must be excluded from the overall five-year period commencing with the filing of the
24
complaint.” (Bergin, 141 Cal.App.3d at 26 recently approvingly cited in Davies v. Schectman
25
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 3

28
1 (March 9, 2010 1st App. District) A125276; Christin v. Sup. Ct. (1937) 9 Cal.2d 526, 530, 532-

2 533; see Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 358-359.)

3 Similarly, the Court of Appeal in Fannin Corp. v. Superior Court, in discussing the five-
4 year deadline, stated that “[f]rom this period . . . must be excluded the time elapsing from real
5 party's notice of appeal . . . to the issuance of the remittitur.” (Fannin Corp. v. Superior Court
6 (1974) 36 Cal. App. 3d 745, 750 citing Guy F. Atkinson Co. (1971) 17 Cal.App.3d at 1068, Fay
7 v. Mundy, 246 Cal.App.2d 231, 234 and Wilson v. Barry, 119 Cal.App.2d 621, 624, recently
8 approvingly cited in Davies v. Schectman (March 9, 2010 1st App. District) A125276.) And
9 other courts similarly hold that an “exclusion contained in section 583.340 also applied: The trial
10
court's jurisdiction over the case was suspended during the course of the first appeal.” (Dale v.
11
ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 499, 503 n. 3 citing Bergin, 141 Cal.App.3d at
12
25-26 and Guy F. Atkinson Co. 17 Cal.App.3d at 1068.)
13
Courts have held that the entire period between the filing of a notice of appeal and the
14
filing of remittitur with the trial court is excluded from the calculation of the five-year statute
15
mandated in Section 583.310. (Bergin, 141Cal.App.3d at 25-26 [“from the filing of [] the notice
16
of appeal . . . to the filing of the remittitur . . . must be excluded from the five-year period[.]”];
17
Fannin Corp., 36 Cal. App. 3d at 750 [“From this period . . . must be excluded the time elapsing
18
from real party's notice of appeal . . . to the issuance of the remittitur”] citing Guy F. Atkinson
19
Co., 17 Cal.App.3d at 1068, Fay, 246 Cal.App.2d at 234 and Wilson, 119 Cal.App.2d 621, 624;
20
Cal. Civ. Proc. Code, § 916 subd. A [“the perfecting of an appeal stays proceedings in the trial
21
court upon the judgment or order appealed from or upon the matters embraced therein or affected
22
thereby, including enforcement of the judgment or order”].)
23

24

25
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 4

28
1 Indeed, California case law is explicit that jurisdiction is not revested in the trial court

2 until the remittitur is filed by the clerk of the trial court. "When the remittitur is filed with the

3 clerk with whom the judgment roll is filed the jurisdiction of the superior court re- attaches."
4 (Nuckolls v. The Bank of California, National Assoc. (1937) 10 Cal.2d 266, 271-272;
5 Gallenkamp v. The Superior Court of Kern County, 221 Cal.App.3d 1, 16 (1990) (“The statute
6 directs us to mark time from the filing of the remittitur in the trial court, not from when the
7 remittitur should have been filed.”].)
8 California Evidence Code Section 452 concerning judicial notice states that courts can
9 take judicial notice of “(c) Official acts of the . . . judicial departments of the United States and
10
of any state of the United States[,] (d) Records of (1) any court of this state or (2) any court of
11
record of the United States or of any state of the United States [and] (h) Facts and propositions
12
that are not reasonably subject to dispute and are capable of immediate and accurate
13
determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code, §
14
452.)
15
The records of this Court and the Second Appellate District of the California Court of
16
Appeal (Court of Appeal Case No. B209858) show that Altman filed Notices of Appeal
17
concerning three motions for summary judgment which were granted in favor of the Briks and
18
Katz and which dismissed these defendants from the action on July 31, 2008.2 (Declaration of
19
David J. Altman [“Altman Decl.”], ¶ 2.) These records also confirm that Altman filed a Notice
20
of Appeal (Court of Appeal Case No. B215009) from an order granting summary judgment in
21
favor of MFREC on March 23, 2009.3 (Altman Decl., ¶ 2.) The remittitur from these
22

23
2
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1374400&doc_no=B209858;
24 http://www.lasuperiorcourt.org/civilcasesummary/index.asp

25 3
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1903479&doc_no=B215009
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 5

28
1 (eventually consolidated) appeals was issued on November 16, 2010. (Id.) In other words, the

2 Briks‟ and Katz‟s five-year deadlines were tolled for two years, three months and sixteen days.

3 (Altman Decl., ¶ 2.) MFREC‟s five-year deadline was tolled for 1 year, seven months and
4 twenty-three days. (Id.) Altman filed a Notice of Appeal in connection with an order of
5 dismissal and judgment granted by the Court in favor Lisitsa‟s Special Motion to Strike (“Anti-
6 SLAPP Motion”) on November 13, 2006 and the remittitur issued on November 12, 2008.4
7 (Altman Decl., ¶ 3.) Consequently, Lisitsa‟s five-year statute was tolled for two years.
8
B. The Period During the Pendency of a Stay is Excluded From the Calculation
9 of the Five-Year Deadline.

10 Any period during which a stay was issued by operation of law or by court order is

11 excluded from the calculation of the five-year statutory deadline. (Cal. Civ. Proc. Code, §

12 583.340 [“In computing the time within which an action must be brought to trial pursuant to this

13 article, there shall be excluded the time during which any of the following conditions existed: . . .

14 (b) Prosecution or trial of the action was stayed or enjoined”].) The interval of a court-ordered
15 stay or indefinite “continuance” of proceedings pending the outcome of an appeal is excluded
16 from calculating the five-year period pursuant to Section 583.310. (Holland v. Dave Altman's
17 RV Center (1980) 222 Cal. App. 3d 477, 479-484.)
18 For instance, in Holland, the trial court ordered an indefinite “continuance” of the trial
19 date pending the outcome of an appeal involving one (of several) defendants. (Holland, 222 Cal.
20 App. 3d at 479-480.) After five years elapsed, the remaining defendants filed a successful
21
motion to dismiss pursuant to Sections 583.310 and 583.360. (Id.) The Court of Appeal
22
reversed, holding that a “stay” (as used in Section 583.340(b)) “appears to have a commonly
23
understood meaning as an indefinite postponement of an act or the operation of some
24
4
25 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1133715&doc_no=B195061

PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS


26
FOR AN ORDER DISMISSING THE CASE
27 6

28
1 consequence, pending the occurrence of a designated event,” even if the term used by the trial

2 court is a “continuance.” (Holland, 222 Cal. App. 3d at 482-483.)

3 A stay of a “trial of the action” occurs when the trial court “put[s] the trial over
4 indefinitely, until the happening of a designated event: determination of [an] appeal. The legal
5 effect of this order was to stay, rather than to continue the trial. Any doubt on the issue is set to
6 rest by [an] order which unambiguously took the trial off calendar pending being reset after the
7 Court of Appeal decision[.]” (Holland, 222 Cal. App. 3d at 482.) Nor is either a court or
8 plaintiff required to seek severance in order to toll the statute. The Court of Appeal held that
9 “[s]everance ran the risk of duplicative proceedings, with all of the waste of time and resources
10
(of the parties and the court) that would have entailed.” (Holland, 222 Cal. App. 3d at 483.)
11
This is especially true where the action against defendants is premised on the same theory and
12
the “subsequent [separate] trial would have involved the same issues of [of law and fact],
13
causation, and damages. (Id.)5
14
Once “the court had stated its view, in unambiguous terms, that the case was not to
15
proceed to trial until the pending appeal had been decided. [A plaintiff] cannot be expected to
16
fly in the face of such orders, nor should she be penalized for not having done so.” (Holland,
17
222 Cal. App. 3d at 484.)
18
Separately, Section 583.340(b) mandates that any pause when the “prosecution [] of the
19
action was stayed or enjoined” tolls the five-year limit set by Section 583.310. (Cal. Civ. Proc.
20
Code, § 583.340 [emphasis added].) The Court of Appeal in Bruns v. E-Commerce Exchange,
21
Inc. (2009) 172 Cal.App.4th 488, held that “the „prosecution‟ of an action is a broad concept
22

23 5
In this action, all defendants were charged with being involved with the same fraudulent acts (i.e. obtaining funds
from Altman by falsely claiming that he was investing in promissory notes secured by real estate) , the difference
24 between defendants was that the Azrilyans, Akselrod and Lisitsa were alleged to have interacted directly with
Altman while the remaining defendants were asserted to have contributed to the fraud indirectly as co-conspirators.
25 (Altman Decl., ¶ 3.) The Court implicitly and explicitly asserted this when it stayed the trial.
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 7

28
1 encompassing all of the various steps in an action, including, but not limited to, pleading,

2 discovery, and law and motion. Each of the various steps in an action constitutes „prosecution‟

3 of that action.” (Bruns v. E-Commerce Exchange, Inc. (2009) 172 Cal.App.4th 488, 498 quoting
4 the Supreme Court in Melancon v. Sup. Ct. (1954) 42 Cal.2d 698, 707-708 and Ray Wong v.
5 Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18.) A “stay of certain types of proceedings within an
6 action—a partial stay of an action—is a stay of prosecution under subdivision (b) of section
7 583.340, is consistent with the general policy favoring trial over dismissal for failure to prosecute
8 an action.” (Bruns, 172 Cal.App.4th at 499.) A partial stay, such as a stay of discovery, will toll
9 the five-year deadline of Section 583.310. (Bruns, 172 Cal.App.4th at 498.)
10
In this case, the trial court stayed the entirety of the action pending the outcome of the
11
appeals of the Briks, Katz and, later, MFREC (Altman had informed the Court and the Court had
12
expected that Altman would appeal the January 22, 2009 summary judgment in favor of MFREC
13
because the ruling was made upon the same grounds as the earlier summary judgments in favor
14
of the Briks and Katz -- which had been appealed) some time before February or March 2009.
15
(Altman Decl., ¶ 5.) This fact is confirmed by the fact that the Court had vacated/continued the
16
Final Status Conference and trial date indefinitely pending the outcome of the appeal and was
17
only holding intermittently scheduled status conferences concerning the appeal no later than
18
March 6, 2009. (http://www.lasuperiorcourt.org/civilcasesummary/index.asp; Altman Decl., ¶
19
5.) However, even prior to that, the court had stayed all discovery and motion practice (except
20
for post-trial motions for attorneys‟ fees and costs after the Court granted summary judgment to
21
the Briks and Katz) in anticipation of the appeals of the Briks and Katz summary judgments.
22
(Id.; Altman Decl., ¶ 5.)6
23

24
6
MFREC violated this stay and filed a motion for summary judgment. Altman protested by filing an ex parte
25
motion to void the motion, but the Court chose to allow MFREC to proceed on the basis that there was no trial date
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 8

28
1 Consequently, at least one year, eight months and ten days must be excluded from any

2 calculation of the five-year statute due to the exclusion in Sections 583.340(b). More likely,

3 given the Court‟s ruling after the Court ruled in favor of the Briks‟ and Katz‟s motions for
4 summary judgment, the Court should exclude approximately two years, four months and eight
5 days from any calculation of the five-year statute due to the exclusion in Sections 583.340(b).
6 C. The Period When It Would Be During Impossible, Impractical or Futile to
Bring the Action to Trial is Excluded From the Calculation of the Five-Year
7
Deadline.
8 In pertinent part, Section 583.340 states that in “computing the time within which an

9 action must be brought to trial pursuant to this article, there shall be excluded the time during

10 which . . . bringing the action to trial, for any other reason, was impossible, impracticable, or

11 futile.” (Cal. Civ. Proc. Code, § 583.340 subd. c [emphasis added].)


12 Holland v. Dave Altman’s RV Center (1990) 222 Cal.App.3d 477 is on all fours. In
13 Holland, a plaintiff brought an action against several defendants, one of whom brought a
14 successful motion to quash, which was appealed and affirmed. (Holland v. Dave Altman’s RV
15 Center (1990) 222 Cal.App.3d 477, 477-481.) During that appeal, the trial court had imposed an
16 indefinite “continuance” of the trial and certain other pending matters. (Holland, 222
17 Cal.App.3d at 477-481.) The remaining defendants brought a motion to dismiss based on the
18
five-year statute in Sections 583.310 and 583.360. (Id.) The trial court granted the motion and
19
the ruling was appealed. (Id.) The Court of Appeal notes that in order to not run afoul of the
20
five-year deadline, plaintiff would have to “dismiss[] [a defendant] as a party . . . abandon[] the
21
pending appeal or . . . sever[] the action against him from the action against [the other
22

23

24
set and the parties and court would be less prejudiced by an early ruling on any potential motion for summary
25 judgment than a later one. (Altman Decl., ¶ 5.)

PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS


26
FOR AN ORDER DISMISSING THE CASE
27 9

28
1 defendants].” (Holland, 222 Cal.App.3d at 483.) The Court of Appeal held that the plaintiff

2 “was [not] required to take such an action [i.e. dismissing a defendant or the appeal].” (Id.)

3 As to the argument that a plaintiff was required to try to sever the remaining defendants
4 from the stay and proceed to trial separately with those defendants, the Court of Appeal held that
5 “[s]everance ran the risk of duplicative proceedings, with all of the waste of time and resources
6 (of the parties and the court) that would have entailed. The action against [the defendants] was
7 based on [the same theory of liability]. If [plaintiff] had prevailed against [the remaining
8 defendants] and won a reversal of the [] appeal, the subsequent trial would have involved the
9 same issues . . ., causation, and damages as the trial against the remaining defendants.”
10
(Holland, 222 Cal.App.3d at 483.) “Thus, the failure to sever does not demonstrate any lack of
11
diligence on [plaintiff's] part, or otherwise rebut the impracticality of proceeding to trial during
12
the pendency of [an] appeal.” (Id. citing Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545,
13
553.) In this action, all defendants were charged with being involved with the same fraudulent
14
acts (obtaining hundreds of thousands of dollars from Altman by falsely claiming that he was
15
investing in promissory notes secured by real estate), the difference between defendants was that
16
the Azrilyans, Akselrod and Lisitsa were alleged to have interacted directly with Altman while
17
the remaining defendants were asserted to have contributed to the fraud indirectly as co-
18
conspirators. (Altman Decl., ¶ 3.) The Court implicitly and explicitly asserted this when it
19
stayed the trial. (Altman Decl., ¶ 3.)
20
The Court of Appeal in Holland also held that “[t]here is a further reason why it was
21
impracticable and futile to bring this case to trial within the original five-year period: the court
22
had ordered otherwise. . . the court had stated its view, in unambiguous terms, that the case was
23
not to proceed to trial until the pending appeal had been decided. [Plaintiff] cannot be expected
24

25
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 10

28
1 to fly in the face of such orders, nor should she be penalized for not having done so. (Holland,

2 222 Cal.App.3d at 483-484.)

3 In addition, counsel for Altman was acutely ill. (Altman Decl., ¶ 5.) From June through
4 August 2010, Altman‟s counsel was admitted to UCLA Medical Center‟s emergency room (and
5 eventually the Critical Care Unit) three times due to dangerously high blood pressure and cardiac
6 irregularity that was initially diagnosed as myocardial infarction and later as irregular heart
7 motion and fluid in the pericardial sac. (Id.) Altman‟s counsel spent several weeks admitted to
8 the hospital each time. (Id.) Eventually, Altman‟s counsel was prescribed a treatment involving
9 four different blood pressure and heart medications that were required to be ingested each day.
10
(Id.) Such acute illness in a counsel is considered to make commencing trial impracticable.
11
When “plaintiffs attorney suffer[s] a serious and acute illness [this] warranted the application of
12
the impracticability exception to excuse his failure to bring the case to trial within the five-year
13
period. [Citation omitted] Obviously, the illness or death of a plaintiff‟s attorney may result in a
14
period of time when prosecution of the case is impracticable and beyond the plaintiffs control.”
15
(Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 135 Cal.Rptr.2d 869, 878; Him v.
16
Sup. Ct. (1986) 184 Cal.App.3d 35 (1986).)
17
II. ALTMAN HAS NOT FAILED TO BRING THIS CASE TO TRIAL WITHIN FIVE
18
YEARS OF THE ACTION’S COMMENCEMENT BECAUSE THE
19 DEFENDANTS HAVE HAD A “TRIAL” WITHIN THE MEANING OF THE
STATUTE.
20
Courts have repeatedly held that dispositive motions which result in final judgments are a
21
“trial” within the meaning of 583.310 et seq. (S. Pacific Co. v. Seaboard Mills (1962) 207
22
Cal.App.2d 97, 104-105 [summary judgment was a “trial” for the purpose of Section 583]; Smith
23
v. City of Los Angeles (1948) 84 Cal.App.2d 297, 301-302 [demurrer was a “trial” for the
24
purpose of Section 583]; Berri v. Sup. Ct. (1955) 43 Cal.2d 856, 859-861 [same].)
25
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 11

28
1 Consequently, the Briks, Katz, MFREC and Lisitsa may not seek dismissal based on the

2 five-year statute in Section 583.310 and 583.360 because they have already had a “trial” pursuant

3 to Section 583.
4 III. THE MOTION IS VOID BECAUSE IT WAS FILED IN THE TRIAL COURT
DURING THE APPEAL WHEN THE TRIAL COURT WAS DEVOID OF
5
JURISDICTION.
6 As noted above, California case law is explicit that jurisdiction is not revested in the trial
7
court until the remittitur is filed by the clerk of the trial court. "When the remittitur is filed with
8
the clerk with whom the judgment roll is filed the jurisdiction of the superior court re- attaches."
9
(Nuckolls v. The Bank of California, National Assoc. (1937) 10 Cal.2d 266, 271-272;
10
Gallenkamp v. The Superior Court of Kern County, 221 Cal.App.3d 1, 16 (1990) (“The statute
11
directs us to mark time from the filing of the remittitur in the trial court, not from when the
12
remittitur should have been filed.”].)
13
Herein the Court of Appeal issued the remittitur on November 16, 2010 and that
14
remittitur was not filed by the Superior Court clerk until November 22, 2010.
15 (http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1374400&doc_n
16 o=B209858; http://www.lasuperiorcourt.org/civilcasesummary/index.asp). The Motion was

17 purportedly served on October 20, 2010 and filed on October 25, 2010. (Id.) This was

18 supposedly when the Motion‟s hearing date was set by the clerk (who had no jurisdiction at that
time) The Joinder was supposedly served and filed on November 8, 2010. (Id.) In short, all
19
these proceedings were done in excess of the Court‟s jurisdiction. And the Motion, Joinder, their
20
filing and service were void.
21
Even if this had not been the case, the Motion and Joinder were not properly served
22
because they were not served in a manner to give notice. The Motion and Joinder were served at
23 815 10th Street, Unit D, Santa Monica, California 90402. (M. Dismiss and Joinder.) However,
24 Altman‟s counsel‟s illness was so acute that in July or August 2010, Altman‟s counsel requested

25 that his wife notify the Bar that he should be placed on inactive status because he was
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 12

28
1 hospitalized (in fact was in the critical care unit), immobile and had no idea when he would be

2 discharged. (Altman Decl., ¶ 6.) The inactive status was reflected on the calbar website.

3 (Altman Decl., ¶ 6.) Altman‟s counsel‟s illness was such that even after he was released he
remained on inactive status because he was not allowed to engage in any work. (Altman Decl., ¶
4
6.) Moreover, even if all this had not been the case, Altman‟s counsel had moved to 10215-B
5
Santa Monica Blvd., Los Angeles, California 90067 in November 2009. (Altman Decl., ¶ 6.)
6
Counsel for Moving Defendants knew this because he had contacted Altman‟s counsel at the
7
new office and had even picked up and delivered appealed-related materials to the new office.
8 (Altman Decl., ¶ 6.) Consequently, Moving Defendants‟ counsel either accidentally or
9 purposefully served the Motion at a place that was not calculated to (and did not) give

10 constitutionally required notice and opportunity to respond. (Altman Decl., ¶ 6.) The Joinder

11 was similarly defective. (Altman Decl., ¶ 6.)

12 IV. CONCLUSION.
13 For all of the foregoing reasons, Plaintiff Jack Yakov Altman respectfully requests that

14 the Court deny Defendants‟ Motion and Joinder.

15 Dated: December 13, 2010


16
Respectfully, Submitted,
17

18 By__ David J. Altman________________


David J. Altman
19 Counsel for Plaintiff Jack Yakov Altman

20

21

22

23

24

25
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 13

28
1 DECLARATION OF DAVID J. ALTMAN

2 I, David J. Altman, declare as follows:

3 1. I am an attorney and am licensed and permitted to practice before the Ninth


4 Circuit Court of Appeals of the United States of America, the United States District Courts for
5 the Central, Northern and Eastern Districts of California, the California Supreme Court, Court of
6 Appeals and this Court. I am counsel for Plaintiff Jack Yakov Altman (“Altman”) in this action.
7 I have personal knowledge of the facts stated herein, unless stated on information and belief, and
8 if called upon to testify to those facts I could and would competently do so.
9 2. As the records of this Court and the Second Appellate District of the California
10
Court of Appeal (Court of Appeal Case No. B209858) show, I (on behalf of Altman) filed
11
Notices of Appeal concerning three motions for summary judgment which were granted in favor
12
of Defendants Alex Brik (“Brik”), Marina Brik (“Mrs. Brik”) (the “Briks”) and Alex Katz
13
(“Katz”) (collectively, the “Moving Defendants”) and which dismissed these defendants from the
14
action on July 31, 2008.7 As these records confirm, I also (on Altman‟s behalf) filed a Notice of
15
Appeal (Court of Appeal Case No. B215009) from an order granting summary judgment in favor
16
of Defendant Metrostate Financial and Real Estate Corporation (“MFREC”) on March 23, 2009.8
17
The remittitur from these (eventually consolidated) appeals was issued on November 16, 2010.
18
In other words, the Briks‟ and Katz‟s five-year deadlines were tolled for two years, three months
19
and sixteen days. MFREC‟s five-year deadline was tolled for 1 year, seven months and twenty-
20
three days. I (on Altman‟s behalf) filed a Notice of Appeal in connection with an order of
21
dismissal and judgment granted by the Court in favor of Defendant Yevgeniya Lisitsa‟s
22

23 7
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1374400&doc_no=B209858;
24 http://www.lasuperiorcourt.org/civilcasesummary/index.asp

8
25 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1903479&doc_no=B215009

PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS


26
FOR AN ORDER DISMISSING THE CASE
27 14

28
1 (“Lisitsa”) Special Motion to Strike (“Anti-SLAPP Motion”) on November 13, 2006 and the

2 remittitur issued on November 12, 2008.9 Consequently, Lisitsa‟s five-year statute was tolled for

3 two years.
4 3. As the operative complaint and Altman‟s motions and oppositions demonstrate, in
5 this action, all defendants were charged with being involved with the same fraudulent acts (i.e.
6 obtaining funds from Altman by falsely claiming that he was investing in promissory notes
7 secured by real estate), the difference between the defendants was that the Azrilyans, Akselrod
8 and Lisitsa were alleged to have interacted directly with Altman while the remaining defendants
9 were asserted to have contributed to the fraud indirectly as co-conspirators. The Court implicitly
10
and explicitly asserted this when it stayed the trial.
11
4. In this case, the trial court stayed the entirety of the action pending the outcome of
12
the appeals of the Briks, Katz and, later, MFREC (Altman had informed the Court and the Court
13
had expected that Altman would appeal the January 22, 2009 summary judgment in favor of
14
MFREC because the ruling was made upon the same grounds as the earlier summary judgments
15
in favor of the Briks and Katz -- which had been appealed) some time before February or March
16
2009. This fact is confirmed by the fact that the Court had vacated/continued the Final Status
17
Conference and trial date indefinitely pending the outcome of the appeal and was only holding
18
intermittently scheduled status conferences concerning the appeal no later than March 6, 2009.
19
(See http://www.lasuperiorcourt.org/civilcasesummary/index.asp) However, even prior to that,
20
the court had stayed all discovery and motion practice (except for post-trial motions for
21

22

23

24
9
25 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=1133715&doc_no=B195061

PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS


26
FOR AN ORDER DISMISSING THE CASE
27 15

28
1 attorneys‟ fees and costs after the Court granted summary judgment to the Briks and Katz) in

2 anticipation of the appeals of the Briks and Katz summary judgments.10

3 Consequently, at least one year, eight months and ten days must be excluded from any
4 calculation of the five-year statute due to the exclusion in Sections 583.340(b). More likely,
5 given the Court‟s ruling after the Court ruled in favor of the Briks‟ and Katz‟s motions for
6 summary judgment, the Court should exclude approximately two years, four months and eight
7 days from any calculation of the five-year statute due to the exclusion in Sections 583.340(b).
8 5. I was acutely ill. From June through August 2010, I was admitted to UCLA
9 Medical Center‟s emergency room (and eventually the Critical Care Unit) three times due to
10
dangerously high blood pressure and cardiac irregularity that was initially diagnosed as
11
myocardial infarction and later as irregular heart motion and fluid in the pericardial sac. I spent
12
several weeks admitted to the hospital each time. Eventually, I was prescribed a treatment
13
involving four different blood pressure and heart medications that were required to be ingested
14
daily.
15
6. The Motion and Joinder were not properly served because they were not served in
16
a manner to give notice. The Motion and Joinder were served at 815 10th Street, Unit D, Santa
17
Monica, California 90402. However, my illness was so acute that in July or August 2010, I
18
requested that my wife notify the Bar that I should be placed on inactive status because I was
19
hospitalized (in fact was in the critical care unit), immobile and had no idea when I would be
20
able to leave. My inactive status was reflected on the calbar website. My illness was such that
21
even after I was released I remained on inactive status because I was not allowed to engage in
22

23 10
MFREC violated this stay and filed a motion for summary judgment. Altman protested by filing an ex parte
24 motion to void the motion, but the Court chose to allow MFREC to proceed on the basis that there was no trial date
set and the parties and court would be less prejudiced by an early ruling on any potential motion for summary
25 judgment than a later one.

PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS


26
FOR AN ORDER DISMISSING THE CASE
27 16

28
1 any work. Moreover, even if all this had not been the case, I had moved to 10215-B Santa

2 Monica Blvd., Los Angeles, California 90067 in November 2009. Counsel for Moving

3 Defendants knew this because he had contacted me at the new office and had even picked up and
4 sent appealed-related materials to the new office. Consequently, Moving Defendants‟ counsel
5 either accidentally or purposefully served the Motion at a place that was not calculated to (and
6 did not) give constitutionally required notice and opportunity to respond. The Joinder was
7 similarly defective.
8 7. I declare under penalty of perjury under the laws of the State of California that the
9 above is true and correct to the best of my recollection and understanding. Executed this day,
10
December 13, 2010 in the City of Santa Monica, in Los Angeles County, State of California.
11

12
David J. Altman _
13 David J. Altman

14

15

16

17

18

19

20

21

22

23

24

25
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 17

28
1

2
David S. Fisher
3 FISHER LAW CORPORATION
5850 Canoga Avenue, Suite 400
4
Woodland Hills, California 91367
5 COUNSEL FOR DEFENDANTS
Alex Brik, Marina Brik and
6 Metrostate Financial and Real Estate Corporation

7
Y. Gina Lisitsa
8 Payman Taheri
Payam Mahram
9 LISITSA LAW CORPORATION
5455 Wilshire Blvd., Suite 901
10
Los Angeles, California 90036
11 COUNSEL FOR DEFENDANTS
Y. Gina Lisitsa, Ed Akselrod and Alex Katz
12 And the Reliant Group

13

14

15

16

17

18

19

20

21

22

23

24

25
PLAINTIFF JACK YAKOV ALTMAN’S OPPOSITION TO DEFENDANTS’ MOTIONS AND JOINDERS
26
FOR AN ORDER DISMISSING THE CASE
27 18

28