Wrongful Death Suit filed Nov. 13, 2013 in California

[*Lash*]

RSBM-

Thanks for posting this, Lash. I noticed this is not available on the court website, so I'm wondering if you got it from one of the Zahaus or their lawyers? If not, where did you find it? The link would be very much appreciated.

You're welcome LL2. The document is available on a court website and I would be happy to provide a link.

https://www.pacer.gov

 

[K_Z]

Judge Whelan's Order Denying Motion to
Dismiss 10-15-2014

Thanks for posting this, Lash. I noticed this is not available on the court website, so I'm wondering if you got it from one of the Zahaus or their lawyers? If not, where did you find it? The link would be very much appreciated.

I parapharse it's meaning as, "By law, the Judge has to accept the Plantiff's allegations as true, even if they are not based on fact and are ridiculous."

Lash, thank you very much for posting this document.

BBM. I'm very glad the highly experienced Judge Whelan is on this case, and I don't think he's sitting at his judicial desk wringing his judicially tied hands over anything here. Nor do I think there is any evidence that he thinks anything in this case is "ridiculous" by his ruling! Yikes! I'm not sure if "ridiculous" was meant to be funny, or insulting? Has Judge Whelan made some public statements about this case that would lead anyone to conclude that he thinks this is "ridiculous?"

There will be a couple more motions to dismiss, or motions for summary judgment, etc before this case is concluded. It's very standard in these types of cases. And the judge will make a ruling each time.

The case survives and moves forward. And everyone has their role to play.

I keep remembering that the very experienced Judge Whelan has been on senior status for more than 4 years now, so he certainly didn't "have to" take this case. He was also a very lauded deputy district attorney for more than 20 years before being appointed as a Federal Judge. This isn't his first wrongful death case by a long shot, and IMO, he knows the law inside and out, both criminal and civil.

And it's worth remembering that this is also not his first experience with a case that involves a scorned and bitter ex-wife. He presided over BOTH of the Betty Broderick trials, and neither side had any complaints about his rulings in that high profile case.

http://en.wikipedia.org/wiki/Senior_status

 

[kittychi]

Rebecca's hanging may look like " retaliation and revenge" to those with vivid imaginations and a stubborn refusal to admit there is forensic evidence that proves Rebecca died at her own hand.

Jurys don't like to say people are guilty of murder when it is clear due to the physical evidence they are not. Even to make [modsnip] more wealthy. There is too much evidence that shows Rebecca Zahau killed herself - both circumstantial and physical.

Mary Zahau has been out for Dina ever since July 11, 2011. Who do you think spilled the information about Jonah and Dina's private lives during their divorce? Mary did, IMO. While they were making arrangements to bury their child. Mary only cares for Mary and money, IMO. She does not give one flip about Dina Shacknai or Max Shacknai, nor did her sister, IMO. We will just have to disagree here.

We will see if it moves past depositions. The Zahaus will need to invent some real evidence. Maybe a video tape of all the things they said went on at the mansion that night? There would be no other way to prove it! LOL!

BBM/red text: Please provide proof that Mary is the one who revealed the info on Jonah and Dina.

I can make a statement about Dina: "Who do you think spilled the information about Rebecca's shoplifting and her mug shot?"

Putting 2+2 together, IMO it was Dina.

BTW: The Zahaus had a child to bury, too.

 

[bourne]

Wrong.

Motion for Summary Judgment - At the conclusion of discovery, the court will typically review the facts of the case and determine if there is sufficient merit to proceed to trial or to encourage the parties to settle.

If the finding of facts determines the case to be frivolous or non-substantiated, the case is dismissed.

Pretrial Order - If a substantial basis for the case is determined, the court will meet with and notify the parties of the trial schedule.

http://serc.carleton.edu/woburn/issues/trial_process

This bears repeating. So bumping this to the [modsnip] poster who said Judge Whelan was coerced to push the "ridiculous" case forward.

 

[K_Z]

The court has scheduled an Early Neutral Evaluation Conference (that's a settlement conference):

Early Neutral Evaluation set for 12/9/2014 02:30 PM before Magistrate Judge Nita L. Stormes. Signed by Magistrate Judge Nita L. Stormes on 10/30/2014.(jpp)

Pretty standard. The court would like to see cases settled out of court whenever possible. And personal appearance of all parties is required.

Here's a link describing California settlement conferences (although this is a Federal case, the procedures are similar):

http://www.statebarcourt.ca.gov/ProceduresProgramsandRules/EarlyNeutralEvaluationConferences.aspx

Preparation for the conference:

◾In addition to the required draft notice of disciplinary charges, the court requests the parties submit a brief statement of the case, including their settlement positions.

◾Documents should be submitted as early as possible, but no later than three (3) court days in advance of the ENEC. The ENEC may be rescheduled if the ENEC Judge is not provided sufficient time to review the material.

◾In order to increase productivity, the court encourages the parties to exchange documents prior to the ENEC.

Conduct of the Conference:

◾The parties should be prepared to discuss the facts, the proposed charges and the potential for the imposition of discipline.

◾The ENEC Judge will address settlement of the case, and therefore, the parties should be prepared to discuss settlement positions and should have settlement authority.

◾In camera inspection of documents is permissible. While this may be necessary in some cases, the final evaluation may be based on information only available to one side which may lessen the opportunity for settlement.

Also worth noting that the defendants have also requested a jury trial, in each of their responses to the Second Amended Complaint, before the Motion to Dismiss was denied. So, both the plaintiffs AND the defendants want this to go to a trial. Standard language, but everyone is on the same page about how the case should proceed, right? So, it will be interesting to see if anything comes out of the settlement conference.

I kind of doubt that the defendants will settle, but who knows? If the defendants want the case to have a low profile, and stay out of the media, they'll offer the full amount to settle, with a confidentiality stipulation, IMO. Then it all goes away for everyone, right? IMO, if they aren't worried about increased scrutiny and lots of renewed publicity, and criticism, they won't settle, and it will proceed along toward trial.

*KZ note: I'm working on getting the settlement conference document posted if anyone wants it. Stand by! But here are a couple quotes in the interim (bolded in the original document)-- and this is standard language, from what I know of the process:

2. Personal Appearance of Parties Is Required: All parties, adjusters for
insured defendants, and other representatives of a party having full and complete
authority to enter into a binding settlement, and the principal attorneys responsible for the
litigation, must be present in person and legally and factually prepared to discuss
settlement of the case. Full authority to settle means that the individuals at the ENE be
authorized to fully explore settlement options and to agree at that time to any settlement
terms acceptable to the parties.

Counsel appearing without their clients (whether or not
counsel has been given settlement authority) will be cause for immediate imposition
of sanctions and will also result in the immediate termination of the conference.

Requests to Continue an ENE Conference: Local Rule 16.1(c) requires
that an ENE take place within 45 days of the filing of the first answer. Requests to
continue ENEs are rarely granted. However, the Court will consider formal, written ex
parte requests to continue an ENE conference when extraordinary circumstances exist
that make a continuance appropriate. In and of itself, having to travel a long distance to
appear in person is not “extraordinary.” Absent extraordinary circumstances, requests for
continuances will not be considered unless submitted in writing no less than seven (7)
days prior to the scheduled conference.

https://www.pacer.gov/
Can be accessed under case # 3:13-cv-01624-W-NLS

 

[K_Z]

:laughing: Lol, I just noticed the time of the settlement conference is 2:30 pm.

So, does anyone think they will be "done" settling by close of business, around 4- 5 pm, Dec 9, 2014?! That's pretty amusing, IMO!

I think everyone is going to be meeting up in San Diego for a few days! Maybe a lot longer.

 

[LuckyLucy2]

BBM/red text: Please provide proof that Mary is the one who revealed the info on Jonah and Dina.

I can make a statement about Dina: "Who do you think spilled the information about Rebecca's shoplifting and her mug shot?"

Putting 2+2 together, IMO it was Dina.

BTW: The Zahaus had a child to bury, too.

Please note the IMO after my statement. Many here have accused Dina of giving the press Rebecca's shopping information, but she was donating her son's organs at the time, so that's rather doubtful. Rebecca was someone's child, true, but she was a 32 old woman, married and divorced. Max was a child and was someone's child....he never will get to grow up and experience life like Rebecca did.

 

[Mr Spock]

Please note the IMO after my statement. Many here have accused Dina of giving the press Rebecca's shopping information, but she was donating her son's organs at the time, so that's rather doubtful. Rebecca was someone's child, true, but she was a 32 old woman, married and divorced. Max was a child and was someone's child....he never will get to grow up and experience life like Rebecca did.

All the more reason to get to the bottom of both these mysterious deaths. God speed to both sides getting the answers denied to them by LE.

The McStays finally had an arrest, so there is hope.

 

[AZlawyer]

I'm not going to quote anyone's posts, because frankly I don't want to get involved in the nastiness I'm seeing here, but let me just clarify:

On a Motion to Dismiss, a judge must accept the facts alleged by the plaintiff as true, and is not permitted to consider whether or not any evidence exists to support those facts.

On a Motion for Summary Judgment, the judge looks at the evidence presented to him, and if there is any question as to which side should win at trial, the case moves forward.

The judge recently denied a Motion to Dismiss on the ground that the allegations, if true, would support the plaintiff's claim. No one has filed a Motion for Summary Judgment yet.

A settlement conference at this early stage is no big deal and will only take a couple of hours.

Defendants have to request a jury trial if they don't want to give up that right. It doesn't mean they want the case to go to trial. It means that, if it does go to trial, they want a jury.

Before anyone quotes this post, I would respectfully ask that you refrain from doing so if you plan to use it to say something snarky to another WS member.

 

[Mr Spock]

Rebecca hurt Max and then wanted to frame Dina for her murder? Because Rebecca blamed Dina for the fact that Jonah wouldn't marry her? Jonah's close family friend told the press he was planning to marry Rebecca. http://radaronline.com/exclusives/2...nned-propose-girlfriend-dead-bizarre-hanging/.

 

[Mr Spock]

Please note the IMO after my statement. Many here have accused Dina of giving the press Rebecca's shopping information, but she was donating her son's organs at the time, so that's rather doubtful. Rebecca was someone's child, true, but she was a 32 old woman, married and divorced. Max was a child and was someone's child....he never will get to grow up and experience life like Rebecca did.

I agree with you here. By all accounts Max sounded wonderful and the world has lost an amazing soul.

Rebecca was also loved and is missed dearly.

Both families are grieving. Both families have time and time again been denied a second look at each case by LE. In fact both Dina and the Zahaus were rudely (MO) dismissed by LE when each voiced their concerns. I can only imagine the frustration and anger both must have with LE.

My question is: Why did they not rise above all the initial bitter nastiness, take the high toad, and put pressure on LE together? Why not raise public doubts TOGETHER about why in the world Jonah was so satisfied with the outcome of the initial investigation? Why did Dina not sue Jonah? He was the custodial parent at the time and violated an agreement that Rebecca should not be watching Max alone with only another member of her family present?

God speed to both sides getting these cases open again. I see only the civil case now as the last long shot.

 

[LuckyLucy2]

Rebecca hurt Max and then wanted to frame Dina for her murder? Because Rebecca blamed Dina for the fact that Jonah wouldn't marry her? Jonah's close family friend told the press he was planning to marry Rebecca. http://radaronline.com/exclusives/2...nned-propose-girlfriend-dead-bizarre-hanging/.

Jonah had not asked her to marry him yet. Read Rebecca's diary entries in Ann Rule's book. She was very despondent that Jonah did not love her as much as she loved him. After Max's accident, IMO, she knew there was no way Jonah would ever marry her.

 

[LuckyLucy2]

This bears repeating. So bumping this to the [modsnip] poster who said Judge Whelan was coerced to push the "ridiculous" case forward.

Again, my quote is not about the Motion for Summary Judgement as Ausgirl quotes from above. My post was about the Order to Deny Motions to Dismiss. And I never, ever, ever, ever said that Judge Whelan was coerced, so please don't say I accused a Federal Judge of coercion when that is not true. I indicated that by law, he must move the case forward because the Zahaus met the requirements of the SAC, not because their accusations are valid.

From the document:

II. LEGAL STANDARD
The Court must dismiss a cause of action that fails to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6)
tests the complaint’s sufficiency. North Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578,
581 (9th Cir. 1983). All material allegations in the complaint, “even if doubtful in fact,”
are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
court must assume the truth of all factual allegations and must “construe them in the
light most favorable to [the non-moving party].” Gompper v. VISX, Inc., 298 F.3d 893,
895–96 (9th Cir. 2002); Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580
(9th Cir. 1996).

 

[justice be served]

Jonah had not asked her to marry him yet. Read Rebecca's diary entries in Ann Rule's book. She was very despondent that Jonah did not love her as much as she loved him. After Max's accident, IMO, she knew there was no way Jonah would ever marry her.

Only Jonah knows his intentions to marry Rebecca or not. I would surmise that after leaving a nightmare marriage, he may have been just enjoying the peacefulness of Rebecca which seemed to be the polar opposite of Nina.

 

[LuckyLucy2]

Only Jonah knows his intentions to marry Rebecca or not. I would surmise that after leaving a nightmare marriage, he may have been just enjoying the peacefulness of Rebecca which seemed to be the polar opposite of Nina.

Jonah was not married to Nina. He was married to Dina, Max's mother. Nina is Dina's sister.

In any case, after Max's accident, Rebecca took her own life about 40 hours later, so she died not engaged to Jonah.

 

[Ausgirl]

AZ, forgive me - I'm having a hard time parsing this, if you could help I would appreciate it: looking at this case, and where it's at right now, could a frivolous case actually get this far into the legal process of a civil suit of this kind? The idea that it might do genuinely is not computing.

 

[AZlawyer]

AZ, forgive me - I'm having a hard time parsing this, if you could help I would appreciate it: looking at this case, and where it's at right now, could a frivolous case actually get this far into the legal process of a civil suit of this kind? The idea that it might do genuinely is not computing.

That depends on why the case is frivolous. If the case is frivolous because the allegations legally don't form a claim, it would be dismissed on a Motion to Dismiss, probably at an early stage. If the case is frivolous because there is no evidence to support the allegations, it wouldn't be dismissed until after a Motion for Summary Judgment, which ordinarily would not be filed until well into the discovery process.

 

[Frigga]

I just want the truth- I don't want to be right.

 

[Ausgirl]

That depends on why the case is frivolous. If the case is frivolous because the allegations legally don't form a claim, it would be dismissed on a Motion to Dismiss, probably at an early stage. If the case is frivolous because there is no evidence to support the allegations, it wouldn't be dismissed until after a Motion for Summary Judgment, which ordinarily would not be filed until well into the discovery process.

Well, That makes sense of it all. Thank you so much. I obviously stand corrected! Which is okay by me. I had thought things were further along than they are.

 

[kittychi]

Jonah had not asked her to marry him yet. Read Rebecca's diary entries in Ann Rule's book. She was very despondent that Jonah did not love her as much as she loved him. After Max's accident, IMO, she knew there was no way Jonah would ever marry her.

BBM...Then, IMO, it would seem to follow that Rebecca would not have intentionally caused Max's accident. Yet Dina has never backed off of the accusation.