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Jacob Winding Dba Top To Bottom Cleaning Service v. Ndex West

May 18, 2011

JACOB WINDING DBA TOP TO BOTTOM CLEANING SERVICE,
PLAINTIFF,
v.
NDEX WEST, LLC AS TRUSTEE; WELLS FARGO BANK, N.A., AND DOES 1 THROUGH 100, INCLUSIVE,
DEFENDANTS



ORDER ON PLAINTIFF'S EMERGENCY MOTION FOR MISCELLANEOUS RELIEF AND RELATED ORDERS

Doc. #'s 44, 45 and 51

On May 9, 2011, Plaintiff filed a document titled "Plaintiff's Emergency Notice of Motion and Motion for (a) To Relieve His Counsel, (b) for Plaintiff's Pro Per Motions to be Heard, (c) For an Extension of Time to Respond to Defendants' Motion to Dismiss, (d) For Leave For Plaintiff to Proceed in pro per, (e) To Make the Court's Award of Attorney's Fees for Alleged Frivolous Litigation Payable by Plaintiff's Counsel Pursuant to Fed. R. Civ. Pro. 11(c)(I), and (f) To Reverse the Award of Attorney's Fees Pursuant to Fed. R. Civ. Pro. 11(c)(2)" (hereinafter, the "Emergency Motion"). Doc. # 51. The court presumes that the "pro per motions" Plaintiff refers are the motion for 30-day extension of time to oppose filed on April 15, 2011, and Plaintiff's motion to stay the Magistrate Judge's order to remove notice of lis pendens filed on the same date. For the reasons that follow, the court will deny Plaintiff's Emergency Motions.

I. Plaintiff's "Pro Per Motions"

In his Emergency Motions, Plaintiff alleges that he has been represented by the law firm of Goins & Associates PLC from the inception of this case*fn1 to about March 18, 2011, at which time "irreconcilable differences" arose between Plaintiff and his attorney representatives. Between April 15 and April 18, 2011, Plaintiff filed two "pro per motions" and filed a pro per opposition to Defendants' motion to dismiss the FAC. The "pro per motions" were a motion to stay the Magistrate Judge's order granting Defendant's motion to expunge the notice of lis pendens, Doc. # 45 (the "Motion to Stay"), and a motion for 30-day extension of time to file an opposition to find new counsel to oppose Defendants motion to dismiss the FAC. Doc. # 44 (the "Motion to Extend"). Plaintiff's document titled "Opposition to Defendants' Motion to Dismiss" was filed on April 18, 2011. Doc. # 46 (the "Opposition").

In their reply to Plaintiff's Opposition, Defendants allege that "Top to Bottom Cleaning Services" is, in fact, a partnership of nine individuals. Defendants contend that although Plaintiff brings this action as "Jacob Winding dba Top to Bottom Cleaning Services," the organization is not a sole proprietorship as the title implies and Jacob Winding is not entitled to represent the nine-member partnership in pro per. Defendants allege that this issue has arisen previously in a separate action that was brought by Plaintiff against Wells Fargo Bank. See Winding v. Cal-Western Reconveyance Corp., 2011 U.S.Dist. LEXIS 8962 (E.D. Cal. 2011). In that action, Defendants allege Mr. Winding was admonished that Top to Bottom Cleaning could only appear in court through an attorney.

Plaintiff argues in his Emergency Motion that Top to Bottom Cleaning is "an unincorporated sole proprietorship." As such, Plaintiff argues that in representing Top to Bottom Cleaning, he is essentially representing himself. The court is of the opinion that the interests of all parties will be served if the court gives consideration to Plaintiff's "pro per motions" on their merits rather than being diverted into the issue of whether or not Plaintiff is, in fact, the sole proprietor of Top to Bottom Cleaning. The court feels neither party is prejudiced if the court simply accepts Plaintiff's representation for purposes of this opinion and continues with analysis on the merits.

A. Motion to Stay Magistrate Judge's Order Granting Defendants' Motion to Expunge

Plaintiff has twice argued that the court should enter a temporary stay on the Magistrate Judge's order granting Defendants' motion to expunge during the pendency of Plaintiff's appeal of the order granting the motion to expunge and/or orders granting Defendants' motion to dismiss. Variations on the same argument are made in both Plaintiff's Motion to Stay and in Plaintiff's Opposition. Plaintiff recognizes that a court may stay enforcement of an interlocutory order pending appeal where the moving party can "(1) make a strong showing that it is likely to succeed on the merits; (2) demonstrate that it would suffer irreparable injury if the stay were not granted; (3) show that granting the stay would not substantially harm the other parties; and (4) show that granting the stay would serve the public interest." Doc. # 46 at 3:10-14 (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

In the Magistrate Judge's order granting Defendants' motion to expunge, the court noted that, in order to prevail in opposition to a motion to expunge, the opposing party must "'make a showing that he is likely to prevail on the merits, in much the same fashion as one seeking an attachment must show the probable merit of the underlying lawsuit.'" Doc. # 38 at 6:7-9 (quoting Amalgamated Bank v. Superior Court, 149 Cal.App.4th 1003, 1011 (3rd Dist. 2007) (italics in original)). The Magistrate Judge concluded that Plaintiff had failed to show any likelihood that he could prevail on the merits as set forth in the original complaint and as set forth in the opposition to the motion to expunge.

Defendants' motion to Dismiss Plaintiff's FAC is currently pending before the court and this court's decision thereon will be filed concurrently or nearly concurrently with this order. This court has reviewed Plaintiff's FAC in the process of determining Defendants' motion to dismiss and has concluded that in the FAC, as in the original complaint, Plaintiff has failed to articulate any plausible legal theory upon which relief could be granted. For reasons that will be set forth in some detail in the court's order on Defendants' motion to dismiss, the court has determined that the legal theory underpinning Plaintiff's FAC is without merit and that further amendment of the complaint would be futile. In sum, this court can find no legal basis upon which Plaintiff could plausibly ground a meritorious claim to the Property. Just as Plaintiff could not prevail on his opposition to the motion to expunge because he could not demonstrate a likelihood of success, so too Plaintiff cannot prevail on his Motion to Stay.

Plaintiff's contention that Defendants will suffer no prejudice if a stay were to be granted is without merit as well. Accepting as true Plaintiff's allegation that Defendants have a buyer for the Property at hand, it is clear that a delay of several months would jeopardize the prospects of that sale and would likely prevent Defendants from timely recouping some portion of the lien amount. In view of the improbability of any success by Plaintiff on the merits of his case, it is clear that the prejudice to Defendants from the delay in the expungement of the notice of lis pendens would clearly outweigh any benefit to Plaintiff.

Plaintiff's Motion to Stay will be denied.

B. Motion for Extension of Time

Plaintiff's second "pro per motion" seeks a 30-day extension of time for Plaintiff to find a replacement attorney and for the attorney to file an additional opposition to Defendants' motion to dismiss the FAC. Somewhat puzzlingly, Plaintiff filed his Opposition two days later. It is apparent that what Plaintiff is seeking is an extension of time during which Plaintiff may find alternative counsel and for new counsel to file an additional ...


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