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Warren C. Havens v. Net Radio Group Communications

December 29, 2010

WARREN C. HAVENS PLAINTIFF AND APPELLANT,
v.
NET RADIO GROUP COMMUNICATIONS, ET AL., DEFENDANTS AND RESPONDENTS.



San Francisco City &County Super. Ct. No. 419807

The opinion of the court was delivered by: Banke, J.

Havens v. Net Radio Group Communications CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Warren C. Havens, representing himself in propria persona, appeals from an order quashing service of the summons and complaint as to defendants Joseph Worley, Montgomery Rhodes and Charles Hewitt. Havens contends a bankruptcy stay was in effect at the time the superior court ruled on the motions to quash and therefore the court had no power to hear or grant the motions. We affirm.

BACKGROUND

We recite only the facts germane to the bankruptcy stay issue raised on appeal.

On April 25, 2003, Havens filed a complaint for declaratory and other relief against Net Radio Group Communications (NRG) and four individuals, Steve Chevalier, Charles Hewitt, Montgomery Rhodes, and Joseph Whorley. Havens alleged he was one of the founders of NRG, a company which sought to obtain and develop radio communications systems for wireless communication. Havens claimed he lent money to NRG which was not repaid, and that NRG also did not repay a loan from another company, Suncom, in which he had an ownership interest. Havens alleged theft and conversion of property, theft and conversion of the loan proceeds, forgery and perjury, and demanded arbitration.

The four individual defendants moved to quash service of the summons and complaint due to lack of personal jurisdiction. NRG filed an answer denying all allegations and asserting 28 affirmative defenses.

Court minutes for August 4, 2003, August 25, 2003, and September 8, 2003, indicate no opposition was filed to the motions by Hewitt, Rhodes, and Whorley and the motions were granted September 8, 2003.*fn1 The parties apparently had intended that the motions to quash be taken off calendar while they discussed settlement, and pursuant to stipulation, the court vacated its ruling granting the motions and reset them for hearing on November 3, 2003. The hearing was subsequently continued to January 5, 2004.

On December 31, 2003, Havens, by "federal bankruptcy counsel," filed a "Suggestion of Bankruptcy." The notice stated an involuntary bankruptcy petition had been filed against NRG, "the Debtor," in the Delaware Bankruptcy Court and "[p]ursuant to Section 362 of the Bankruptcy Code, the filing of an involuntary bankruptcy petition pursuant to section 303 of the Bankruptcy Code automatically stays all proceedings."

On January 5, 2004, the court heard and granted Hewitt's, Rhodes's, and Whorley's still unopposed motions to quash.

On January 6, 2004, Havens, by his federal bankruptcy counsel, filed an "Amended Suggestion of Bankruptcy," which was substantively identical to the first "Suggestion."

On January 26, 2004, the trial court issued an order canceling the next scheduled case conference and ordering Havens to appear and show cause why the case should not be dismissed. Havens filed a response stating the only remaining defendant was NRG, which was in involuntary bankruptcy and as to which an automatic stay ...


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