Curiosity Never Kills the Cat: Legal Questions for VERIFIED LAWYERS- ~No Discussion~

[bourne]

BBM

Wow, so if Adam wanted to settle with the plaintiff, he could and walk and be done with it?
Thank you so very much for clarifying this!!!

Thanks AZlawyer!

Just to reiterate, Adam can settle the case out of court with the Zahaus and get immunity from prosecution for testifying against the other two big twins Dina and Nina, correct?

 

[MyBelle]

A "survivor" claim is made by the estate of the deceased victim (via the personal representative of the estate, who is often but not always a family member).



In either of the cases, the defendants are not going to be allowed to sever from one another--i.e., they will not be allowed to have the case against them proceed in a separate action from the case against the other defendants. This might be allowed in a criminal case and technically is possible in a civil case but will not happen here. But of course in either of the cases each defendant can settle with the plaintiff individually and get dismissed from the case if they can agree on terms with the plaintiff. That's not severing the case--that's just getting dismissed as a defendant.

I think the comment on the collaborative relationship was that separate motions filed by separate lawyers for separate defendants are suggestive of a lack of collaboration. If the defendants were all "on the same page," you would expect their lawyers to file motions jointly.

Can they collaborate yet still file separate motions? Why should the Plaintiff know their strategy? Thanks for any reply!

 

[LuckyLucy2]

AZ Lawyer, wouldn't having separate lawyers for all three defendants filing motions be a better stratagy than sharing a lawyer and motions for all three?

After all, they are all in different states, and since they will all ask for the Zahaus to pay the legal costs and damages when the case is dismissed due to no evidence (like Nina has already done), it will be the Zahaus that end up with all three bills. So to me, having three lawyers filing separate motions seems like a better stratagy for the Defense.

 

[*Lash*]

Hi AZLawyer

There was a recent filing in Maricopa County. A signed affidavit, which appears to be for the Zahau WDS. Are the Zahau's filing a new complaint in AZ or is this just for an affidavit? IANAL and I don't want to speculate. Could you help explain why this affidavit would be filed in AZ and if the Zahau's are filing a new civil suit in AZ? TIA

Background info, Lisa Luber is the wife of Jonah's best friend Howard Luber. Howard flew in Monday evening to support Jonah after Maxie's accident.

CV2015-003396 (file date 03/06/2015). On 03/10/2015, a signed affidavit from Lisa Luber was filed.

https://www.superiorcourt.maricopa.g...=CV2015-003396

 

[bourne]

IANAL, but I think the reason a supposed "new" complaint has been filed in AZ is simply procedural to accommodate Mrs. Luber, so she could file her affidavit in AZ for convenience as she is a current AZ resident. I believe courts make allowances for such things in order to make things easy for witnesses that are not direct litigant parties in lawsuits.

 

[LuckyLucy2]

Perhaps the Federal Case has been dismissed, and they were allowed to file in Arizona court? Does anyone have a Pacer account to check?

 

[AZlawyer]

BBM

Wow, so if Adam wanted to settle with the plaintiff, he could and walk and be done with it?
Thank you so very much for clarifying this!!!

Well, only if he could get the Zahaus to agree on terms. One side can't force a settlement on the other side.

Thanks AZlawyer!

Just to reiterate, Adam can settle the case out of court with the Zahaus and get immunity from prosecution for testifying against the other two big twins Dina and Nina, correct?

He can settle with the Zahaus if he can agree with them on the terms of settlement. The Zahaus can't offer immunity from prosecution, though--that would have to be approved by a prosecuting agency. Most likely the prosecutors in the appropriate jurisdiction would not be interested in discussing an immunity deal on what they consider to be a closed case.

Can they collaborate yet still file separate motions? Why should the Plaintiff know their strategy? Thanks for any reply!

Sure.

AZ Lawyer, wouldn't having separate lawyers for all three defendants filing motions be a better stratagy than sharing a lawyer and motions for all three?

After all, they are all in different states, and since they will all ask for the Zahaus to pay the legal costs and damages when the case is dismissed due to no evidence (like Nina has already done), it will be the Zahaus that end up with all three bills. So to me, having three lawyers filing separate motions seems like a better stratagy for the Defense.

Purposely spending more on attorneys in hopes of getting a fee award at the end would be an incredibly foolish strategy in this kind of case, in which a fee award is unlikely even if the defendants win.

Hi AZLawyer

There was a recent filing in Maricopa County. A signed affidavit, which appears to be for the Zahau WDS. Are the Zahau's filing a new complaint in AZ or is this just for an affidavit? IANAL and I don't want to speculate. Could you help explain why this affidavit would be filed in AZ and if the Zahau's are filing a new civil suit in AZ? TIA

Background info, Lisa Luber is the wife of Jonah's best friend Howard Luber. Howard flew in Monday evening to support Jonah after Maxie's accident.

CV2015-003396 (file date 03/06/2015). On 03/10/2015, a signed affidavit from Lisa Luber was filed.

https://www.superiorcourt.maricopa.g...=CV2015-003396

IANAL, but I think the reason a supposed "new" complaint has been filed in AZ is simply procedural to accommodate Mrs. Luber, so she could file her affidavit in AZ for convenience as she is a current AZ resident. I believe courts make allowances for such things in order to make things easy for witnesses that are not direct litigant parties in lawsuits.

This is a new Complaint. I have no idea what it's about, but I notice no lawyers are listed for any of the parties, despite the fact that all parties do have lawyers, which suggests it may be a Complaint with no legal basis. There is no provision for an out-of-state affidavit to be filed out of state. It can be signed out of state and mailed to counsel for filing in state.

Perhaps the Federal Case has been dismissed, and they were allowed to file in Arizona court? Does anyone have a Pacer account to check?

It hasn't been dismissed, and nothing has been filed since January 15.

 

[*Lash*]

AZLawyer, your knowledge and responses are greatly appreciated A thanks to your post was simply not enough. Thank you for your time!!!

ETA - AZLawyer, being from AZ, can you offer any suggestions on how to obtain a copy of this new complaint? If it is even possible? TIA

 

[bourne]

This is a new Complaint. I have no idea what it's about, but I notice no lawyers are listed for any of the parties, despite the fact that all parties do have lawyers, which suggests it may be a Complaint with no legal basis. There is no provision for an out-of-state affidavit to be filed out of state. It can be signed out of state and mailed to counsel for filing in state.

Thanks AZLawyer, you are the best! Can you clarify about the NEW complaint made in AZ? Are the Zahaus still plaintiffs and the three defendants still the same: Dina, Nina and Adam? Or was it filed by someone else? I'm also curious how it can be that NO lawyers are named to represent the parties in the suit? Isn't that unheard of except in Small Claims Court?

 

[AZlawyer]

AZLawyer, your knowledge and responses are greatly appreciated A thanks to your post was simply not enough. Thank you for your time!!!

ETA - AZLawyer, being from AZ, can you offer any suggestions on how to obtain a copy of this new complaint? If it is even possible? TIA

Thanks AZLawyer, you are the best! Can you clarify about the NEW complaint made in AZ? Are the Zahaus still plaintiffs and the three defendants still the same: Dina, Nina and Adam? Or was it filed by someone else? I'm also curious how it can be that NO lawyers are named to represent the parties in the suit? Isn't that unheard of except in Small Claims Court?

The parties are the same as the original federal court Complaint, I believe. Plaintiffs Mary Zahau-Loehner, Estate of Rebecca Zahau, Estate of Robert Zahau, and Pari Z. Zahau. Defendants Adam Shacknai, Dina Shacknai, and "Nino" Romano, "Male" lol.

This afternoon, a lawyer has been added for Plaintiffs--Patricia Refo--who is a big-time lawyer with a big-time firm (Snell & Wilmer). Defendants wouldn't have a lawyer showing on the docket yet, of course, because they haven't appeared. It is not unusual for litigants to file things pro per in Superior Court, though--I just didn't expect it from this particular group of people.

Here are the instructions on getting copies of court records: http://www.clerkofcourt.maricopa.gov/copies.asp

 

[screecher]

Hi AZLawyer !!!

Oral arguments on the 'protective order' Jonah Shacknai wants againt Dina Shacknai, is set to happen today, I believe. What is the process the judge takes to come to a decision, will he set a decision directly after oral arguments, will he set a date when he will announce his decision?

Thanks again !!!

 

[AZlawyer]

Hi AZLawyer !!!

Oral arguments on the 'protective order' Jonah Shacknai wants against Dina Shacknai, is set to happen today, I believe. What is the process the judge takes to come to a decision, will he set a decision directly after oral arguments, will he set a date when he will announce his decision?

Thanks again !!!

I'm not sure which case this is in, but in general there's no way to predict if a judge will rule immediate after oral argument in open court or in writing at some later time (or how far away that later time might be), except through personal experience with that judge.

 

[LuckyLucy2]

AZLawyer, thank you so much for all your law wisdom!

In the Zahau's case against the City of San Diego, they filed the lawsuit and months later it was Dismissed with Prejudice. Some posters believe the Zahaus asked for it to be dismissed with prejudice, but wouldn't the Zahaus have just dropped the case instead?

Wouldn't it be the Judge who made that decision? Not the plantiffs?

Thanks in advance!

 

[AZlawyer]

I would really need to see the filings and orders. Dismissal with prejudice could result from:

1. The judge granting a motion to dismiss/summary judgment motion filed by the defendants because the plaintiffs' case is no good;

2. The plaintiffs requesting dismissal because it has become obvious that the case can't be won;

3. The plaintiffs requesting dismissal because they got what they wanted and don't need the judge to resolve whatever technically remains of the litigation;

4. The parties stipulating to a dismissal with prejudice as part of a settlement. (This is a very common settlement arrangement--that the plaintiffs get XYZ from defendants in exchange for plaintiffs requesting a dismissal with prejudice.)

You might think #3 would result in dismissal without prejudice, but often it is cheaper and faster to dismiss with prejudice--no need for a motion/hearing and no way for defendants to make a fuss.

 

[AZlawyer]

AZLawyer, thank you so much for all your law wisdom!

In the Zahau's case against the City of San Diego, they filed the lawsuit and months later it was Dismissed with Prejudice. Some posters believe the Zahaus asked for it to be dismissed with prejudice, but wouldn't the Zahaus have just dropped the case instead?

Wouldn't it be the Judge who made that decision? Not the plantiffs?

Thanks in advance!

I would really need to see the filings and orders. Dismissal with prejudice could result from:

1. The judge granting a motion to dismiss/summary judgment motion filed by the defendants because the plaintiffs' case is no good;

2. The plaintiffs requesting dismissal because it has become obvious that the case can't be won;

3. The plaintiffs requesting dismissal because they got what they wanted and don't need the judge to resolve whatever technically remains of the litigation;

4. The parties stipulating to a dismissal with prejudice as part of a settlement. (This is a very common settlement arrangement--that the plaintiffs get XYZ from defendants in exchange for plaintiffs requesting a dismissal with prejudice.)

You might think #3 would result in dismissal without prejudice, but often it is cheaper and faster to dismiss with prejudice--no need for a motion/hearing and no way for defendants to make a fuss.

LL2, I went to look at the docket for Case No. 37-2013-00047752-CU-MC-CTL in San Diego County. It appears to me that literally nothing happened on the Court docket after the Complaint was served in May 2013--no disputes over discovery, no motions by the defense, nothing. The Court set a scheduling conference in November 2013, but no one showed up View attachment 37-2013-00047752-CU-MC-CTL_ROA-19_11-01-13_Minute_Order_1427219804575.pdf so the judge, on her own, set the case for a potential dismissal conference. I saw in another thread here that the minutes for the dismissal conference were already posted--it looks like the plaintiffs' attorney immediately agreed that the case should be dismissed, presumably because it was inactive and the plaintiffs did not need to keep it open. Considering that the defendants never asked for the case to be dismissed, the likely explanation is that the matter was worked out behind the scenes back in the summer of 2013 but no one thought to tell the court. So the judge was just clearing the matter off her calendar.

 

[*Lash*]

Hi AZlawyer,

The Zahau attorneys recently responded to Nina Romano's demurrer. The Zahau's argue...

THE CLAIMS FOR WRONGFUL DEATH, ASSAULT AND BATTERY AND NEGLIGENCE ARE NOT TIME BARRED.

The Zahau's argue equitable tolling stops the SOL from expiring when a plaintiff has remedies in addition to state court. If I understand correctly, because IANAL, the Zahau's filed in state court the day after the federal complaint was dismissed w/o prejudice for lack of jurisdiction diversity and the SOL may have been salvaged under "Equitable Tolling". Can you give your opinion or thoughts on this arguement? TIA

Memorandum of Points and Authorties in Opposition of Nina Romano-

https://roa.sdcourt.ca.gov/roa/face...d_Authorities_in_Opposition_1429805280936.pdf

Memorandum of Points and Authorities in Opposition of Adam Shacknai-

https://roa.sdcourt.ca.gov/roa/face...d_Authorities_in_Opposition_1429805276624.pdf

 

[AZlawyer]

Hi AZlawyer,

The Zahau attorneys recently responded to Nina Romano's demurrer. The Zahau's argue...

THE CLAIMS FOR WRONGFUL DEATH, ASSAULT AND BATTERY AND NEGLIGENCE ARE NOT TIME BARRED.

The Zahau's argue equitable tolling stops the SOL from expiring when a plaintiff has remedies in addition to state court. If I understand correctly, because IANAL, the Zahau's filed in state court the day after the federal complaint was dismissed w/o prejudice for lack of jurisdiction diversity and the SOL may have been salvaged under "Equitable Tolling". Can you give your opinion or thoughts on this arguement? TIA

Memorandum of Points and Authorties in Opposition of Nina Romano-

https://roa.sdcourt.ca.gov/roa/face...d_Authorities_in_Opposition_1429805280936.pdf

Memorandum of Points and Authorities in Opposition of Adam Shacknai-

https://roa.sdcourt.ca.gov/roa/face...d_Authorities_in_Opposition_1429805276624.pdf

I think it's a close call, but as I mentioned when the Zs first filed the state court case, I think this equitable tolling argument is likely to save the claim. The big question for me is whether it was "reasonable" for them to file the survivor claim (Rebecca's claim) in federal court in the first place. Personally, I think it was not reasonable, but judges generally like to save claims if they can (and save the lawyers who filed the claim in the wrong court from a malpractice action).

 

[*Lash*]

Hi AZlawyer!

Attached is a link to the minutes from the 5/1 hearing. It appears to me the judge has given thr Zahau's 20 days to amend the complaint. Can you take a look and give us your legal interpretation? TIA

https://roa.sdcourt.ca.gov/roa/face...A-163_05-01-15_Minute_Order_1430827515163.pdf

37-2013-CU-PO-CTL

 

[bourne]

Hi AZlawyer,

Is it possible to get the state judge recused because of her possible prejudices against one party or another? Also if the state case is dismissed, can the Federal case with the fair and honorable Judge Wheeler go forward? Right now, the Federal stay is "stayed", I think pending this state WDS.

 

[AZlawyer]

Hi AZlawyer!

Attached is a link to the minutes from the 5/1 hearing. It appears to me the judge has given thr Zahau's 20 days to amend the complaint. Can you take a look and give us your legal interpretation? TIA

https://roa.sdcourt.ca.gov/roa/face...A-163_05-01-15_Minute_Order_1430827515163.pdf

37-2013-CU-PO-CTL

Yes, that's correct.

Hi AZlawyer,

Is it possible to get the state judge recused because of her possible prejudices against one party or another? Also if the state case is dismissed, can the Federal case with the fair and honorable Judge Wheeler go forward? Right now, the Federal stay is "stayed", I think pending this state WDS.

Based on this order, it seems to me that the state judge is going out of her way to be absolutely fair to both parties. I can't disagree with anything she said. But even if she seemed to be leaning one way or another, that's not the kind of thing that would prove prejudice sufficient to justify removal.

As to any claims overlapping between the two cases, a final judgment "on the merits" by either court (i.e., not just for missing a deadline or something) would resolve those claims in both courts. As to claims that don't overlap, a dismissal by one court would have no effect on the other court.