For all the non-lawyers following along with me in the peanut gallery I have only one question:
What exactly do you want/expect to get out of this if you win?
Oh, and never forget that judgment wasn’t until March. If I had no impediment to acting before judgment, if I somehow misunderstood her and still had that right without anything preventing me, when I filed motions asking her to re-think her interpretation of 17351 and let me file my motion, even if the motions were procedurally defective, isn’t she obliged to say: “What makes you think you can’t act under 17351? Go ahead and do it, I don’t need to give you permission!”
I did have an impediment. She said during the verdict that she wasn’t going to do it that way. So legally I still had the right to do it, judgment wasn’t entered, but how do you do something the judge has told you you can’t do? I’ll tell you: you do it anyway and then she tells you, after creating the delay as just described, that you’re too late.
In descending order of importance:
-
All the money that the receiver got. I shouldn’t have paid it to the company, the most I should have done under the statute was pay my ex, leaving the “receivership estate” without anything to pay him from. The fact that the money was available was legally erroneous, so he should return it. And then I will return it to the people who loaned it to me.
-
The right to stay in my house if I can convince the bank.
-
Freedom from the money judgments against me, so i don’t have to worry about being hounded for money I don’t have.
-
Vindication.
And I forgot to put a smiley in there with my question.:smack: My question reads way snarky on reread without it. I just can’t follow all the legal stuff. I wish you the best too.
Shit, you know how I feel about “you go, girl” comments…:D;)
Thank you very much. I actually do buy it. Whatever the quality of my product, I am proud of my own toughness and courage and I think I’m entitled, so other people’s appreciation is unsurprising. 
And anyone who at this point actually wishes me ill is an asshole, truly. What kind of jerk would you have to be to see what I’ve been through and hope that after all that I get my ass kicked some more? I don’t care how irritating you find me, anyone who feels like that is black hearted and I wish THEM the best because they’ll need it.
Which is sorta why I don’t have any resentment or rage towards my ex and mostly never did because I never took it personally. Besides, I love him. Still. Not actively, but I’ll always love him. And I know him very well, and I know how horrible this has been for him, how painful, how incredibly shameful, and I’m sad for him.
His lawyer is definitely the most disgusting person I’ve ever personally encountered in my life, but I don’t hate him. He’s just horribly misguided and to his credit, he’s a helluva advocate. He’d be amazing if he had any ethics.
The judge? I don’t know… it was ego. Most of the really stupid things people do go back to ego. I’ve never understood why people have such a hard time being wrong. I mean, I definitely like being right, that’s why I work at it. But I’m not ego-driven in the same way most people seem to be. I’m completely ok with looking stupid, foolish, with copping to my errors. I find it liberating. Other people seem to find it so terrifying they will sacrifice a lot to avoid it. I think she’s one of those.
The receiver? Well, as previously stated, most of my most negative feelings are directed there. But I still don’t hate him. I dont’ hate anyone. Hate hurts the hater way more than the hated, so no thanks anyway.
No worries, friend, I didn’t take it that way at all.
Hey, I just found the authority that Kimmy will accept on the issue of corps=LLC and no time limits before dissolve completed!
Here it is, in black and white, read it and weep:
Jesus, Stoid, I said you had a colorable claim, fer chrissakes. I think that’s more approval you’ve gotten here than anything else.
My reservation is that your cites are mostly to dicta, and I don’t know the cases the other side might uncover. Maybe if you spent more time buttressing that claim with evidence of legislative intent and/or policy arguments and less time talking about Stoid, it’d be better.
I also don’t know if the remedy you seek (disgorgement from the receiver) is available here.
And lastly, you do dilute the force of your argument when you include so much purple prose. I think that hurts credibility—and that’s key in the appellate court, they want to know that you’re not leading them astray.
That’s because you haven’t been listening. First, there is no other side. No response on the appeal. Second, there are no cases. I’ve been obsessively checking for two years for every possible case, searching Lexis with sickening regularity to find anything. And I’m crazy good on it, I can find the most obscure stuff. There’s nothing.
Third, the reason it’s dicta is because no one has questioned it!! NO ONE. It’s not an issue, it’s never been an issue, and the only times it came up at all, it was as a side issue and thus the dicta.
You persist in treating me like I’m a barely functional boob that might possibly stumble into something, but I could not possibly be capable of actually researching this and comprehending it, so there could still be all kinds of cases out there that will rise up to bite me.
My second lawyer and one of my friends have come to ME for answers on some issues that came out of my case, because they knew I knew the research. And my knowledge of the cases was so incredibly detailed and obscure that I was able to remember and pull one tiny sentence from one case that used a phrase that allowed my ex lawyer to make his case to the judge in a corportions dissolution case. And I actually felt kinda bad about it, because I thought it was wrong, but he asked and I knew, so I told him. ( It was regarding the bond. I read one case, the details are hazier now, but somehow the way it was phrased led to the conclusion that the bond was to cover the price of the shares, which it actually isn’t, but this one sentence gave my lawyer something to TRY, and the judge went for it. My lawyer was repping the guy trying to not be bought out, obviously)
So it would be swell if you could stop taking the default position that just because I don’t have a full-on legal education I cannot possibly, even in two plus years of focused study, have learned how to make sure I’ve covered the bases; stop assuming that I make it a habit to avoid, rather than seek out, all the information I can. It does not serve me to simply avoid what I don’t want to see, that’s a recipe for failure. I must see what’s possible or I cannot fight it.
You don’t know anything if I tell it to you (or rather show it to you, repeatedly) so I guess you’ll continue to wonder. Although I don’t know what’s so special about “here” - the research I’ve done (puny and worthless as I’m sure you believe it to be) is that there’s no case type - it’s receivership law. The law you’ll find isn’t broken down into sub-types, except for bankruptcy, which this is not.
Well, fortunately the record backs me up 100% so I’m not at all concerned about my purple prose. (which is really, at best, a gentle lavender, don’t you think? And that’s fantastic coming from a pro per…I’ve read briefs from lawyers that shocked me to shoes they were so emotional and accusatory. I am not at all worried. )
Concerned Lurker 
You have another appeal that you filed in February that you have yet to argue, and I am personally not getting involved further. I’m not your lawyer, nothing I’ve said should be construed as legal advice and I’m not licenced in your area. I really do think though that you should get advice, and maybe should talk to someone about your continuing issues with your ex. Perhaps talking it out would help you get closure that pursuing cases through courts will not.
Kindly meant advice, please take it as such.
Again, I lack experience in civil law, but let me give you what I think is a good analogy from criminal law.
A motion in limine is one made before trial, typically dealing with matters like suppression of particular pieces of evidence for various reasons. Most often it’s the defense, asking that various pieces of prosecution evidence be ruled inadmissible. But the prosecution has the right to do it too. For example, the prosecution might ask that the defense be forbidden from mentioning the victim’s criminal history, with the idea being that the jury would be more sympathetic to the accused upon learning that the victim was also a bad guy. The defense might argue that that the circumstances of the crime cannot be fairly understood unless the jury hears what a bad guy the victim was.
Now, let’s say the judge agrees with the prosecution.
And let’s say the defense lawyer, obeying that order, never once mentions the victim’s criminal history during trial.
And let’s say the defendant is convicted.
Now, on appeal, his lawyer raise several claims of error, among them the complaint that the trial court did not let him present the criminal history of the victim.
BZZZT! No can do. He is procedurally barred from that argument, because he didn’t raise the issue during trial. Yes, yes – the judge ruled against him before trial. But in order to preserve the issue for appeal, he has to renew the motion during trial, because he has to give the judge a chance to consider his claim in light of what’s actually come about during the trial. Perhaps the context wasn’t clear ahead of time, and it was only during trial that the judge could have seen how relevant the criminal history was. In any event, if the motion is not made, explicitly and on the record, during the trial, then it’s waived on appeal and can’t be argued.
Because of that kind of thinking, I’m very hesitant to adopt your view that simply advising the judge you wanted to do something, and then relying on her verbal lack of assent, will be sufficient to preserve your claim on appeal that you complied with the law concerning making a motion.
First, while I appreciate the effort, I know all the things you’ve said. Intimately.
Secondly, they don’t apply to my question and what I asked of you, so you’re still dodging. (Along with everyone else. Peanut gallery sees it, you know.)
Judgment in writing is: **Under 17351, **Stoid can buy her own shares in the company (equivalent easier to understand for the gallery) and her ex can also, along with everyone else, buy the only thing the company has of value, when it is dissolved.
That’s the thing you are dodging. Parse the judgment itself, and affirm it.
Seriously.
If what everyone is focusing on is real (it isn’t, I’ve proved it ten times, but let’s pretend) how does that judgment make any kind of sense at the same time, in the best possible light, which is that she made an error on the pronoun. So fix the error. I can buy HIS shares.
These are the questions:
-
If the law says pre-trial, why is she talking about it in the judgment itself?
-
Since she talked about it in the judgment itself, why isn’t she letting me do it?
(Then we can stop pretending the law puts a limit anyway and ask those questions. At that point you are really in deep doo.)
The fact that we are over 200 posts in (half or more are mine, I know) and five days of this and no one has even acknowledged that the words of the judgment say what they do, much LESS try to explain it in the context of everything else, well, Bricker, that is why I don’t have much respect for you (the collective legal voices) telling me anything at all.
Because if not a single one of you can even bear to say to me: wow, that judgment makes no sense whatsoever, Stoid, or if it does I sure as hell can’t see it, then what credibility can you possibly expect to have? How can I respect the opinions of people who are so obviously avoiding having to tell me I’m right, or even that if I’m not right, I’m definitely reasonable in thinking I am?
BE HONEST!!!
Otherwise, you (the collective legal naysayers who seem to expect me to take your words as gospel) have to know what you appear to be, don’t you? C’mon, you’re smart folks. You look ego driven and petty, and seriously insecure.
That’s not a personal slam against any particular individual person, and I’m not saying that anyone IS those things. I’m saying that responding to me the way you have thus far while simultaneously pretending the judgment itself as described above doesn’t exist, makes you LOOK like that.
If you (the collective legal naysayers, CLN) understood it and thought it was really affirmable, you’d come right out and tell me, just like you’ve been doing all along in reference to her hearing ruling. Jesus, that’s why she MADE the ruling on the hearing: because her judgment made no sense and she needed some excuse to get out of it because she didn’t want to give me the right to buy him out, and you guys have fallen in line behind her, all of you fleeing from her actual words.
IF I WAS LATE WHY DID SHE WRITE THE JUDGMENT THE WAY SHE DID?
So, I say again what I said last night that your post was responding to: if you expect your opinions to have weight, and if you expect to be credible when you claim you aren’t here to make me wrong no matter what, then stop dodging and show me that I am wrong or be willing to say that I’m right.
Otherwise, the hot air in here could lift a thousand balloons halfway around the earth.
And I say that with no rancor, no intent to insult. But come ON already.
He’s been doing his research. Must have really freaked you out when you sat down to shred me on the whole Reese Darden thing you were so condescending about (remember, Peanuts, that’s what he went off to do?) …and you realized that you’d been chewing on your feet. So you went looking for some other way to come at me as a distraction? Really, Elysian… if you just admitted you you screwed up, the earth wouldn’t open up and swallow you, I swear it wouldn’t. And I wouldn’t rub your nose in it. I’m doing it now because you won’t admit it.
And for the record, this is about as weak a dodge as it gets. “I’ll be back to show you how pathetically misinformed Stoid is in her reading of Reese v. Darden…”
Two days later: “You have another appeal in February and I’m not getting involved any further, get a lawyer”
HUH?
Does this stuff work in court? Cuz if it does…that’s scary.
Um… no it isn’t. It’s more of your scramble.
As for my ex, and my “issues”… well, here’s another little bit of my brief, my prayer, asking for restitution from the receiver:
I have very little but love and sympathy for my ex, hardly an issue.
Forgive me, as perhaps this has already been addressed, but do you currently work, Stoid? That’s not snark, I just legitimately can’t fathom how anyone can have time to wade through all of this stuff and still have time to have any type of meaningful career. Or has the website being shut down taken away your sole source of income?
I suppose the reason that issue strikes me is that a family member and I are both tax representatives- them much more experienced than I, but that’s neither here nor there. The point is, we both agree that if we ever found ourselves in a messy tax situation like our clients, even knowing all that we know, we’d hire an attorney. We simply don’t have the time to step away from our business to get involved in a messy case like that. I also regularly hear lawyers say similar things about if they found themselves in trouble. I know for me, I’d lose more income than the cost of an attorney if I tried to handle it all myself.
Stoid, I’m not a lawyer, I’ve never been to California and have no means of judging the cogency of your legal arguments.
The only thing I wanted to say is some times your arguments are seeking justice and some times they are seeking a legal remedy.
When I read your posts the asides recounting the injustices dilute the impact of your legal arguments.
I think the farther you keep them separated the more powerful each are.
In any event I do admire your determination and hope the Court of Appeals offers you some remedy.
Thanks.
FYI: the stripped down structure of an appellate brief is this:
- Name the ruling/judgment you are appealing.
- State why it’s appealable (procedural)
- What were the background facts underlying the case
- What happened in the case itself
- Identify what the error or errors are
- Name the standard of review of those errors (see below)
- Make your argument about why it was an error
- Tell the court what you want it to do to fix it.
The part you were reading was part of #8, and at the time I wrote it, I didn’t have quite as much information about erroneous appointments of receivers as I do now, so I was arguing for my interpretation of why it would be more error to not do what I was asking and simply default to a “he’s the plaintiff, stick him with it” position. I’ve added to my argument in oral recently, and the argument I made was much bigger than what you read to begin with.
And what I wrote I meant, and if you read the intro you see I started from that position: while we were adversaries, we BOTH got screwed.
And thanks for the good wishes. This thread has bolstered my confidence enormously. I am more certain than ever that her judgment is impossible to affirm. And anything that makes it a little less terrifying to open that envelope is a happy thing.
STANDARD OF REVIEW
This basically means the kind of error. Errors come in three flavors:
- Abuse of discretion.
- Insufficient evidence to support he judgment
- “De Novo” _ I don’t know any other way it’s referenced, but what it means is that the court misinterpreted a law.
The strongest appeal possible is one that revolves around the interpretation of a statute, as this does, because it’s the only time the reviewing court ignores what the trial court did and decides completely independently: what does this law mean? Given the facts, how should it be applied? Then, if the acts of the trial court dont’ fall under that interpretation - error.
Second is abuse of discretion, which is really sort of a catch-all for a wide mix of screwups.
Insufficiency of the evidence is weak weak weak. Because the fundamental position is: we (appeals court) weren’t there. There was evidence for A, and evidence for B. Since we weren’t there to hear and see and experience the evidence, we really can’t pass judgment on the judge who did, we simply assume that they got it right. Even if we might have seen it differently, if there is “substantial” evidence to support the court’s judgment, teh existence of conflicting evidence doesn’t matter.
Which is pretty brutal, but understandable.
For the Peanuts, appeal is not a “do-over” for a different set of eyes. The function of an appeals court is to review actual errors, and not just any errors, but errors which, had they not occurred would have likely meant a different outcome. So you walk into the appeal with the deck stacked pretty high against you out the gate. They assume the judgment was right and they assume the facts are what the judge says they were.
Well, I do work and the website is my primary work, but there’s been issues there and I really need some help on that technically.
But I do what I can to survive in the meantime, and the decision was made to push for the appeal to get the money back and that if it cut into everything else, I’d just have to deal. At the time that decision was made, the timeline on the appeal was that it would be over by about February or March of 2009. Didn’t turn out that way.
And I have a raging case of ADD and impulse control issues and i shouldn’t be doing this so…BYE!
24 hours later and still not a single legal naysayer can tell me how the judgment is affirmable as written?
Then it definitely leads to the entirely reasonable question: on what basis did y’all come in here and drop your posts telling me how hopeless it was? If none of you can even openly admit that the judgment says what it says, much less explain it, why should I feel like it’s a quixotic quest to have it reversed, especially on the basis of your posts?
I don’t think, at this point, anyone can fault me for saying that you all did so for a variety of reasons, but absolutely none of them had to do with your belief that the judgment was sound. Absent such a belief, any other reason for doing it is kinda unattractive.
And wholly apart from that, I think it behooves all of you, given your work, to step back and consider the enormous assumptions you made. If you do that in your law work, I think you are doing your clients a frightening disservice.
And that goes double for Elysian, who not only made huge leaps, he did so time and again, with all the information in front of him, in depth and detail. And he was thoroughly and completely wrong. If he did that in court the other side would wipe the floor with him.
While understanding that I have enormous challenges in advocating for myself in this thing, I did view my complete ignorance as an advantage in this respect: I assumed absolutely nothing. I had no basis upon which to do so, I was completely ignorant. So it drove me to check…check again, double check, come back and check some more, check check check and check. It’s why I never just ran with some quote from a case out of a treatise or annotated statutes, instead I always read the whole case, to make sure the quote applied. And my ignorance, as well as the fact that I’m not a lawyer, allowed me to focus completely on only the issues, statutory, procedural, legal and equitable, that had bearing on my case, either direct or peripheral. I didn’t have any other cases to think about or split my time with. That was also an advantage.
Which is all to say, you might want watch how much you assume simply because of your education and experience. It might be hurting you sometimes more than you know.