Wrongful Death Suit filed Nov. 13, 2013 in California, #4

[K_Z]

A couple interesting things that stand out to me from both of the memorandums. The first is that the issue of Nina being present at the mansion is addressed in both of the Zahau memorandums. That was an issue brought up in Dina's demurrer, IIRC, that pretty much everyone went, "What? Nina ADMITTED being there!"

With regard to Nina's presence at the mansion on the night of the murder, the basis for the belief is very simple. Nina herself admitted she was there in her statements to the police. The admission is alleged in the SAC at (paragraph)20.Thus, there is a reasonable basis for an informed belief as to both Nina's (her own admission) and Dina's (eyewitness statement) presence at the Spreckels mansion at approximately 10:20 p.m.

https://roa.sdcourt.ca.gov/roa/face...Demurrer_to_2nd_Amended_Com_1454701204627.pdf

I also found the introduction compelling in the Zahau memorandum-- they cut right to the heart of the demurrer issue, IMO:

I. INTRODUCTION

In what is more akin to closing argument than a demurrer, Defendant Dina Shacknai tediously segregates each individual fact identified in the Second Amended Complaint ("SAC"), and then argues that the fact is false, but if it is true, standing alone it does not support Plaintiffs' claims. However, in determining whether a complaint states a claim the Court must assume the fact is true and look to the allegations as whole. Thus, for example, while the allegation that Defendant Dina Shacknai being seen at the decedent's residence hours before the murder may not, standing alone, create a strong inference that she was involved in the murder, it does create a reasonable inference when combined with the allegations that: she believed the decedent had caused what proved to be fatal injuries to her only child; she was jealous of the Decedent's relationship with her ex-husband; she had a history of being unable to control her anger and had previously ridiculed and demeaned the Decedent in public; a woman's screams were heard coming from the residence at approximately the time she was identified as being there; the injuries to decedent's head were consistent with the attacker being female; and she previously lived at the residence so she knew where to find the various implements used during the murder.

Thus, the SAC, read "as a whole," with all reasonable inferences made in favor of the Plaintiffs, supports the alleged claims and puts Defendant Dina Shacknai on notice of the claims against her. Since Defendant Dina Shacknai's demurrer fails to apply the appropriate legal standards to the alleged facts and reasonable inferences, Plaintiffs need not rebut Defendant's argument on the merits as to each fact and possible alternative inferences. Those arguments are properly reserved for presentation to the trier of fact.

(Same source as above. And BBM.)

It seems to me that the Zahau position (as it has always been) is that they want this to go to court to be tried-- not tried in motions.

Both of these memorandums seem well written and persuasive, but IANAL, so maybe AZlawyer will weigh in as to her opinion of these memorandums. (They actually seem to be written and researched even better than previous documents, IMO-- far fewer proofreading errors, too.)

I hope Judge Bacal denies the demurrers, and moves the case along on the 19th. Seems like there is still a fair amount of discovery to take place-- the case management document says the plaintiffs anticipate another 9 months of depositions.

 

[bourne]

Do we have the actual demurrers filed by Dina and Adam? I'd like to read their specifics.

 

[K_Z]

Dina's demurrer. #184 from ROA; 6-16-15 (below link).

And the link to the Zahau memorandum in opposition for comparison:

https://roa.sdcourt.ca.gov/roa/face...Demurrer_to_2nd_Amended_Com_1454701204627.pdf

ETA: The demurrer isn't opening in this screen when I click on it-- perhaps the file is too big (17 pages). The direct link has expired-- will explore another way to upload and re-post the file tomorrow. (Perhaps someone else with the saved file can figure out how to post here?)

 

[*Lash*]

Nina Romano's Demurrer ROA#195 6-25-15

 

[*Lash*]

Adam Shacknai's Demurrer ROA#174 6-1-15

 

[*Lash*]

Dina Shacknai's Demurrer ROA#184 6-16-15

 

[*Lash*]

Hey KZ :wave:

I am unable to get either of the Zahau memorandums in opposition to upload. ROA docs 271 & 272. The size limit is 32 MB. Both of these documents are under the limits. I don't know why there is a problem.

 

[K_Z]

I tried to open some of the above links on various devices, but none open for me. I pm'd the mods to see if there is a specific way they would like us to upload and post the documents that are >30 days old. Hopefully we will get some IT advice! It would be nice to have these available to anyone who wants to view them.

 

[bessie]

K_Z, none of those pdf links work for me. The attachments seem fine. I was able to download and open on my phone and my laptop. If they don't open automatically in a document reader on your device, you might have to search where your browser saves downloads, and open from there.

Lash, I'll send you a pm about the docs you can't upload. We should have a document thread, too. I'll get one started after we work out the upload issues.

 

[bourne]

Hi all, I was able to open the PDFs.

 

[Imp]

Me too ~ thanks!

 

[Elisaa444]

Hi all, I was able to open the PDFs.

Me too ~ thanks!

Me three! :tyou:

 

[K_Z]

New document #273, on San Diego ROA, in preparation for hearing 2-19-16. Dina Shacknai's Reply to Opposition (11 pages):

273 02/09/2016 Reply to Opposition - Other filed by Shacknai, Dina. Shacknai, Dina (Defendant) Reply to Opposition to Demurrer by Defendant, Dina Shacknai to Plaintiffs' Second Amended Complaint

https://roa.sdcourt.ca.gov/roa/face..._Demurrer_by_Defendant_Dina_1455119545370.pdf

https://roa.sdcourt.ca.gov/roa/faces/CaseSearch.xhtml
Case Number: 37-2013-00075418-CU-PO-CTL

 

[Carioca]

Thanks so much, KZ, for making these documents available! After a very quick glance, looks like defense is still hanging its hat on technicalities.

 

[K_Z]

What I see as very interesting in Dina’s Reply to Opposition is the emphasis and discussion in the section on Dina being “at” the mansion.

Apparently, the defense doesn’t want to say anymore that DS was “not at the mansion”. Because they COULD say that, and offer that they will provide evidence of same during discovery. Except that then the judge would potentially be inclined to see that as the defense encouraging the case to continue thru the discovery phase! Quite a catch-22 defendant DS has there.

Either she capitulates to the pleadings that the eyewitness reports that she WAS seen “outside” the mansion, and then argues that just because she was outside, she wasn’t INSIDE.

OR, she has to tacitly agree to continue discovery (and the case) until she can bring her alleged “proof” that she was NOT at the mansion.

Given the choice between the two options—“prove I wasn’t inside”, versus “I can prove I wasn’t there”, Dina has apparently chosen this time to capitulate that she (and Nina) were identified outside at 10:20 - 10:30pm the night Rebecca died.

I further note with interest that there is great mincing of words in this new document about “the night before” (meaning 10:30 pm), versus finding RZ dead “the next morning”—as though they were two separate days, and not a few short hours surrounding time of death. SMH. Verbal gymnastics.

Makes me wonder why?? Innocence is easy to prove, and doesn't require any technicalities or verbal gymnastics, right?

And it occurs to me that there have been great efforts of late (last 2 weeks) from supporters of the “suicide” theory, to do a few things:

1. Re-focus attention on Adam Shacknai as the one “proven” to be “inside” the mansion. (ie, throw fellow defendant Adam under the bus and then drive back and forth over him a few times)

2. Mock the notion of “murder conspiracy” specifically using legal terms.

3. Repeatedly emphasize the idea that DS was not “in” the mansion, and NR was “not IN the house or courtyard”. (And gosh, that sounds a whole lot like the wording and discussion in the Reply to Opposition, IMO.)

4. And that the plaintiffs need “more than a belief” for the allegations in the plaintiff’s pleadings. And that phrase “more than a belief” is verbatim in posts here, as well as in the latest Reply to Opposition which focuses extensively on that in the multi-page argument of the Gomes-Dowling standard.

Hmmmmmm.....

Almost makes me wonder who might have seen, or participated in the discussions about the latest Reply to Opposition before it was posted on the ROA today, if you KWIM! JMO.

Kinda like a "strategy", and "talking points".....or something....lol

 

[Waitaminute]

I'm rather amazed at the sarcasm in the document (italics and bold mine) "Not a single word there constitutes any "infonnation" that supports the allegation that it was anyone in particular that allegedly struck the blows - not defendant Dina Shacknai, not defendant Nina Romano, not anyone in particular in the world

 

[Waitaminute]

and seriously, the notion that the only reason zahaus think nina or dina might be responsible is because they were witnessed at the scene, is false. Certainly that witnessing adds to the other reasons of suspicion, such as a brain dead child, and ongoing contentious relationship. yeah. those might be important points also.

 

[*Lash*]

Page 11 and 12, starting at line 14

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT DINA SHACKNAI'S DEMURRER TO THE SECOND AMENDED COMPLAINT

D. NEGLIGENCE IS ADEQUATELY PLEAD

The complaint also specifically alleges that after Rebecca Zahau was confronted by both Nina Romano and Dina Shacknai at 1040 Ocean Boulevard on the evening of July 12, 2011, she attempted to flee the residence barefoot, as evidenced by mud found on Zahaus feet, but was stopped and knocked unconscious after being struck four times on the back of the head with blunt object, based on the discovery of four subgaleal hemorrhages on the back side of her head. (SAC 20-22) The complaint alleges further that once confronted with the fact that Zahau would eventually regain consciousness and disclose information about the incident, Defendants entered in a conspiracy and common scheme to murder Rebecca Zahau and hide their involvement. (SAC 23). Plaintiffs further allege that Defendants conspired to plan and entered into a common scheme of conduct with the intent to murder Rebecca Zahau, and that defendants gagged, bound, strangled, placed a rope noose around her neck, tied the other end of the same rope to a bed, carried and pushed Rebecca Zahau over the balcony railing, in furtherance of the common scheme. (SAC 16). Plaintiffs specifically allege in their fourth cause of action that to the extent that any individual defendant did not participate in the malicious acts leading to Rebecca Zahau's death, their knowledge of and/or particpation in the conspiracy created a duty to take reasonable efforts to prevent other defendants from executing the plan. (SAC 65). The facts alleged explain how Rebecca Zahau was knocked unconscious by a blunt object, rendering her helpless as the murderous conspiracy was formed and later escalated, creating a foreseeable future harm to Rebecca Zahau. Furthermore, the various acts listed throughout the complaint ranging from striking Rebecca Zahau unconscious to placing a rope noose around her neck placed Rebecca Zahau in unreasonable risk of further harm, imposing a duty on defendants, including Defendant Shacknai, to use reasonable care to prevent the risk from taking effect.

ROA doc# 272
https://roa.sdcourt.ca.gov/roa/

 

[*Lash*]

and seriously, the notion that the only reason zahaus think nina or dina might be responsible is because they were witnessed at the scene, is false. Certainly that witnessing adds to the other reasons of suspicion, such as a brain dead child, and ongoing contentious relationship. yeah. those might be important points also.

BBM - Which is discussed in the Zahau's memorandum of points but interestingly not addressed in Dina Shacknai's reply.

Page 10-

The SAC is clear in stating that as a consequence entering a common scheme and plan to murder Rebecca Zahau, each defendant caused physical harm to Rebecca Zahau, and that each had their own motive for committing such acts, based on anger and revenge arising from the fatal injuries suffered by six year old Maxwell Shacknai, who was a nephew to Nina Romano and Adam Shacknai and Dina Shacknai's son and ensuring that she never disclosed potentially embarrassing information. (SAC 23, 39).


PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT DINA SHACKNAI'S DEMURRER TO THE SECOND AMENDED COMPLAINT

ROA doc# 272
https://roa.sdcourt.ca.gov/roa/

 

[Betty P]

IANAL, but this latest filing looks like a frantic, last ditch attempt to get the suit thrown out.

Their whole argument that the Zahau's accusations are based on belief, not fact is clearly refuted in the Zahau's complaint.

It's a fact, not a belief, that RZ had multiple contusions on her head that could have rendered her unconscious

It's a fact that Nina R was present at the mansion in the hours prior to RZ's death

It's a fact that witnesses, ready to swear under oath, saw a woman who looked like Dina R at the mansion in the hours prior to RZ's death

It's a fact that neighbors heard a woman screaming and calling for help around the time RZ is estimated to have died

It's a fact that evidence with mixed DNA, including black gloves, was found at the murder scene

I could go on and on....

At what point does this judge determine that Dina R is trying to delay the process of deposing and discovery?

MOO, but it seems reasonable to assume Dina has not yet submitted to a deposition, given the fact that she hasn't presented a rock solid alibi for her whereabouts during the murder.

And the whole argument about federal court vs state court just doesn't make much sense, though IANAL.

It will be interesting to see what AZlawyer thinks.

MOO