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LOUIS NOGALI P.O. Box 1951 Rosemead, California 91770 626-235-2226 Plaintiff IN PRO-PER

SC-105, item 8"

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, EAST DISTRICT
LOUIS NOGALI, An Individual, CASE NO. ELM 10S01470 PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN ANSWER AND OPPOSITION TO DEFENDANTS REQUEST FOR COURT ORDER (Form SC-105) (Assigned to the Hon. Carlos E. Vasquez, Div: 001 Rm 102) Defendants. ____________________________ TO ALL CONCERNED IN THE ABOVE MATTER: COMES NOW Plaintiff LOUIS NOGALI (hereinafter plaintiff NOGALI) in Pro - Per and hereby submits the following MEMORANDUM OF POINTS AND AUTHORITIES in his answer in opposition to Defendant ISAAC J. CHEN, D.D.Ss, dba Rosemead Family Dental Center ( hereinafter Dr. CHEN) Request for Court Order, post judgment. 1. INTRODUCTION Defendant Dr. CHEN requests an Order POST JUDGEMENT, to in essence OVERTURN the various rulings and orders this Honorable Court has made in this instant case, because he wants to Appear and be Heard. As his purported reasons for this request, Defendant Dr. CHEN now claims he was wrongly named in this instant action as a Defendant, and that Plaintiff NOGALI kept a pair of dentures while placing a stop payment on a check given to Defendant CHEN.

9 Plaintiff, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 vs. CHEN, ISAAC J. DDS dba. Rosemead Family Dental Center

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2. FACTUAL BACKGROUND A. Appear And Be Heard.

The record in this case is very clear with regards to Defendant Dr. CHENs rights to Appear and be Heard, as a named party to this action. The FIRST opportunity to Appear and be Heard was made to Defendant Dr. CHEN when this instant matter was filed. As the Courts record reflects, a hearing was scheduled for November 8, 2010 at 1:30 p.m. in Division 001 room 102 at the Los Angeles Superior Court in the city of El Monte. On October 14, 2010, at 11:13, a.m, Deputy FABIAN CARRANCO ( ID # E456127) with the County Of Los Angeles Sheriffs Department, successfully served Defendant Dr. CHEN at his Monterey Park Dental office Located at 2071 Atlantic Blvd, # F, Monterrey Park, Ca 91754. Attached herewith as Plaintiffs exhibit A is Deputy CARRANCOs Proof Of Service as filed with this Court. The law requires that a defendant be served no less than 15 days before the actual trial date. In this case, from the time Defendant was served, until the date of the actual hearing, Defendant Dr. CHEN had 26 (twenty six) days, to make all the proper arrangements necessary so as to Appear and be Heard as he now advances he was not allowed. The record reflects that Defendant Dr. CHEN despite being given the opportunity to Appear and be Heard, instead he voluntarily chose on his own, NOT TO APPEAR , but to delegate said rights to his Representative, as evidenced by Defendant Dr. CHENs own Request to Postpone Trial ( Form SC-150) filed with this Court. His SECOND opportunity to Appear and be Heard was made at his own calendared Motion to Vacate (Cancel) Judgement, which came for a hearing before this Court on December 20, 2010. Attached herewith as Plaintiffs exhibit B is a copy of said filed motion. AGAIN, instead of exercising his rights to Appear and be Heard as he now claims he was not allowed, Defendant Dr. CHEN once again chose on his own, NOT

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TO APPEAR , but to delegate said rights to his Representative, a woman named Ms. LORENZA CLARO, who appeared on behalf Defendant Dr. CHEN. His THIRD opportunity to Appear and be Heard would have come had Defendant Dr. CHEN, followed the proper steps to secure an appeal of the Courts Denial of his Motion To Vacate a Judgement. As the Courts own record reflects, said appeal was rejected by this Court on its own order because it was UNTIMELY FILED, pursuant to California Code of Civil Procedure 116.730(e). It only stands to reason that if a litigant is concerned with his rights to Appear and be Heard as he now desires, a timely appeal should have been filed by him. Clearly that is not Defendant Dr. CHENs motivation for his current sudden interest with his willingness to Appear and be Heard. After said rejection by the Court on his attempted appeal on the DENIAL of his motion to vacate, it paved the way for Plaintiff NOGALIs enforcement procedures to collect on his bona-fide judgement to begin. How many more bites at the apple will Defendant Dr. CHEN request? It is therefore axiomatic that Defendant Dr. CHEN has been provided with ample and plenty of opportunities to Appear and be Heard in this matter and to voice out his objections or position in this case. By his OWN actions and at various instances as described herein, Defendant Dr. CHEN chose to relinquish said opportunities to Appear and be Heard to his representative. And now that he is faced with having to pay on Plaintiffs NOGALIs Judgement, he now appears to be looking for any favorable decision that will overturn this courts decision. This latest request for a Court Order by Defendant Dr. CHEN is cleverly disguised as an appeals request, something this Court has already DENIED ( Defendants Motion to Vacate Judgement) and REJECTED ( Defendants attempted appeal on the Motion to vacate said denial). Clearly Plaintiff NOGALI should not be made to further suffer unfairly by Defendant Dr. CHENs latest dilatory tactic.

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B. Wrongly Named in this Instant Action. As this Honorable Court can see, Defendant Dr. CHEN seems to be in essence saying with this request I am not liable for Plaintiffs claim, because he did not properly named me as a Defendant or in other words, He named Peter, instead of Paul. Again if that was the case, WHY NOT appear at the various hearings held in this matter and strongly voice out the Wrong Guy is being sued ? The Records obtained by Plaintiff NOGALI from the Recorders Office For The County Of Los Angeles before the filing of this instant matter, clearly indicate that Defendant Dr. CHEN, in his Fictitious Name Statement filed on April 27, 2006 bearing filing number 06 0930137, states that he is Doing Business As or dba ROSEMEAD FAMILY DENTAL CENTER. In his complaint in chief, Plaintiff NOGALI alleged various causes of actions perpetrated against him, by employees/ and or agents of Defendant Dr. CHEN, dba or Doing Business As ROSEMEAD FAMILY DENTAL CENTER. Under a

Respondent Superior Theory, clearly the owner or the person or the entity Doing Business As is held to be liable for the torts or wrongdoings of his employees or agents if doing work for the benefit and/or at the direction of their employer. Attached herewith as Plaintiffs exhibit C is a copy of Defendant Dr. CHENs DBA filing with the County Recorders Office. In any event, despite Defendant Dr. CHEN attempts at ameliorating his involvement and culpability by claiming that the wrong guy was named, the law makes provisions for such circumstances. California Code of Civil Procedure 116.560(a)(b) states in part: (a) Whenever a claim that is filed against a person operating or DOING BUSINESS under a fictitious business name relates to the Defendants business, the court shall inquire at the time of the hearing into the defendants correct legal name and the name or names under which the defendant does business.....If the correct legal

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name of the Defendant is other than the one...stated on the claim, the court shall amend the claim to state the correct name of the defendant... (b) The plaintiff may request the court AT ANY TIME, whether before or AFTER judgement, to amend the plaintiff;s claim or judgement to include the correct legal name or names actually used by the Defendant.... Emphasis Added. The court record in this case, reflects that the court did not inquire at the time of the hearing into the defendants correct legal name and the name or names under which the defendant does business, because the proper defendant was NAMED and SERVED. C. Plaintiff NOGALI kept a pair of dentures while placing a stop payment on a check given to Defendant CHEN. The gist of Plaintiff NOGALIs claim in this instant action, was that Defendant

11 Dr. CHEN provided Plaintiff NOGALI with a pair of dangerously defective and obsolete 12 upper and lower metal dentures. When placed and used by Plaintiff NOGALI, said 13 defective and dangerous dentures caused severe pain and damage beyond those 14 accepted by todays standard dental practices. As payment, Defendant Dr. CHEN 15 demanded Plaintiff NOGALI issue 20 POST-DATED checks in the amount of $75 each, 16 made payable to Defendant Dr. CHEN. Attached herewith as Plaintiffs exhibit D is a copy 17 of the receipt given to Plaintiff NOGALI by Defendant Dr. CHEN depicting the various post 18 dated checks. 19 Business and Professions Code 17538.6(a) states in part: 20 (a) It is unlawful for any person conducting a business in this state to 21 require or request a consumer to issue a postdated check unless (1) the 22 person accepting the check advises the consumer IN WRITING that the 23 check may be cashed immediately, notwithstanding the postdating...and (2) 24 (a) receipt of the advice is acknowledged by the consumer IN WRITING, 25 (3) The advice is clearly printed on an invoice for goods... that is provided 26 to the consumer at the same time that the check is solicited. 27 28 5

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As the Court can readily see, none of the above was ever applied by Defendant Dr. CHEN, clearly in violation of the above code. Despite many repeated unanswered requests for the replacement of said defective and dangerous dentures, Plaintiff NOGALI still paid $1075 out of the $1600 charged by Defendant Dr. CHEN. When Defendant Dr. CHEN completely refused to replace the defective dentures, OR RETURN the paid moneys and a good faith dispute ensued as a result, Plaintiff NOGALI was forced to withheld further payment until such time as his denture problem was resolved by Defendant CHEN. Thus the need for the instant claim. It appears that Defendant Dr. CHEN wants to have it both ways. On the one hand he complains about Plaintiff NOGALI keeping the defective dentures, but yet when requested, he refused to return the moneys paid by Plaintiff NOGALI for those same defective dentures. Plaintiff NOGALI has informed Defendant Dr. CHEN, that once the payment of the judgement occurs, the defective dentures will be returned to him forthwith. California Civil Code 1719(a)(3)(b), states as follows: (a)(3) ...a person shall not be liable for the service charge, costs to mail the written demand, or treble damages if he or she STOPS payment in order to RESOLVE A GOOD FAITH DISPUTE, with the payee. (b)... in the case of a STOP PAYMENT, the existence of a good faith dispute shall be determined by the trier of fact. A good faith dispute is one in which the court finds that the drawer had a REASONABLE belief of his legal entitlement to withhold payment. Grounds for the entitlement include.....GOODS OR SERVICES ARE FAULTY, not as PROMISED... Emphasis Added. Plaintiff NOGALI withheld payment and placed a stop payment on ONE of his checks, while trying to resolve a good faith dispute with Defendant Dr. CHEN involving the defective dentures. At the actual trial of this instant matter on November 08, 2010, ALL of

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the issues now raised by Defendant Dr. CHEN, were discussed at length and resolved by The Honorable Commissioner Lia Martin, including the existence of a good faith dispute with Defendant Dr. CHEN. 3. ARGUMENT A. DENIAL OF DEFENDANTS REQUEST FOR AN ORDER IS PROPER, BECAUSE IT WOULD OTHERWISE VIOLATE CURRENT APPEAL STATUTES.

In his request, Defendant Dr. CHEN in essence seeks an Order For Reconsideration to Rehear the Entire Case. No current law is supportive of this argument, or contention at the enforcement stage of the case. When this Court entered its judgement against Defendant Dr. CHEN on November 08, 2010, the law states that the ONLY available statutory remedy for the losing party is to seek a Motion To Vacate A Judgement pursuant to California Code Of Civil

Procedure 116.730 (a)(c). If denied, as in Defendant Dr. CHENs case, again, the ONLY statutory remedy in that instance, is an appeal of the DENIAL of The Motion To Vacate A Judgement, pursuant to California Code Of Civil Procedure 116.730(e). There are no statutory provisions under California Law allowing a losing party in a small claims case, to seek an order for reconsideration to Rehear An Entire Case, after ALL appeal rights have been exhausted and the enforcement stage has begun and in progress. When The Judicial Council Of California Administrative Office Of The Courts on January 1, 2007, adopted current California Rule Of Court 3.2107(a)(b), at the recommendation of the Civil and Small Claims Advisory Committee, it did not envision for said Rule Of Court, to allow a losing party in a small case claim, to seek to in essence overturn FOUR adverse rulings, such as Defendant Dr. CHEN is attempting with his request. Attached herewith as plaintiffs exhibit E are pages 1-2 of the Judicial Council Of California Administrative Office Of The Courts report on California Rule Of Court

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3.2107. California Rule Of Court 3.2107(b) (Form SC-105) states in part: (b) If a party files a written request for a court order AFTER notice of entry of judgement... . Emphasis added. The obvious purpose behind said Rule of Court, was to allow some litigants to seek a court order, close in time immediately soon AFTER a notice of entry of a judgement was made, to address perhaps simple issues such as clarification on a particular ruling of the court connected with the judgement, or an order to indicate how payment should be made etc. Irrespective of said purpose, Defendant Dr. CHEN instead seeks a totally different order NOT envisioned by the spirit and purpose of the Judicial Council, when it adopted Rule 3.2107. As the courts record reflects, the following rulings have been made in this case by this honorable court. 1. 2. 3. 4. 5. On Defendant Dr. CHENs request to Postpone Trial: On the initial Plaintiffs Claim, This courts ruling was: On Defendant Dr. CHENs motion to vacate Judgement: On Defendant Dr. CHENs Appeal of the DENIAL: On Plaintiffs Application to produce statement of assets and to appear for examination for enforcement purposes: GRANTED DENIED GRANTED DENIED REJECTED

With the above rulings in mind, Defendant Dr. CHEN should not be allowed to dissolve well over 3 months worth of rulings rendered by this court in this instant case, by extending the meaning and purpose of California Rule of Court 3.2107 4. CONCLUSSION

In summary, Plaintiff NOGALI respectfully requests that this Honorable court DENY Defendant Dr. CHEN request for a court order as demanded and allow the enforcement process for collection on the judgement to continue, because:

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1) Defendant Dr. CHEN was given every opportunity to Appear and be Heard on several occasions as advanced herein, but instead voluntarily chose not to do so. 2) There are NO statutory remedies or case law available which will allow a losing party in a small claims case or any other case, to seek a reconsideration order for a Rehearing of the Entire Case when the case is at the enforcement stage. If permitted, said Order will be highly prejudicial and unfair against this opposing Plaintiff who is entitled to the protection orders of this court. 3) What Defendant Dr. CHEN fails to realize or rather ignore is the fact that this case is in the enforcement stage already. This Court has already issued a subpoena and Order for Defendant Dr. CHEN to appear and produce his financial records as a result of his failure to pay on the judgement and to provide Plaintiff NOGALI with the mandatory information needed to collect on said judgement (Form SC-133). A hearing for a debtors examination has been calendared by this court for March 11, 2011 at 8:30 am. In Department 001. 4) It is clearly visible, that Defendant Dr. CHEN wants to prolonge the payment of Plaintiffs judgement as entered by this court, so he (Defendant) keeps on seeking ANY order that will OVERTURN all of the previously mentioned adverse rulings of this court against him. 5) It is furthermore axiomatic, that Defendant Dr. CHEN is not happy with the rulings of this court, and that could explain his reluctancy to pay the judgement and continued dilatory efforts. 6) If permitted, every other Defendant who is unhappy with this courts rulings and orders, could just as easily request an order, like Defendant Dr. CHEN is now seeking, and make a mockery of this court and its Judicial powers. 7) Defendant Dr. CHEN is the proper named Defendant in this case and was properly served as such and found liable by this court for the damages alleged by Plaintiff in his case. 8) For all other reasons as the court may deem necessary.

DATED: February 14, 2011

Respectfully submitted, ___________________ LOUIS NOGALI 9

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Plaintiff in Pro-Per