|San Diego Education Report
|San Diego Education Report
Sept. 4, 2012 appeal regarding April 6, 2009 injunction--D062738
Court decision denying Stutz' motion to allow Maura Larkins only ONE
opening brief for TWO appeals, but giving Stutz another extension of 30
days in addition to previous extension of 46 days to respond to Larkins'
Appellant opposes the Motion for Consolidation of Memoranda for her two current appeals
with case numbers D062738 (the instant appeal regarding the April 6, 2009 injunction) and
D063821 (the appeal of the Jan. 29, 2013 Default Judgment and other issues).
Respondent’s Motion for Consolidation of Memoranda for two separate appeals is an
attempt to subvert the judicial process and to deny Appellant equal protection of the law.
The law gives Appellant the right to file one Opening Brief for each of her appeals, and to
have each Opening Brief considered by the Court. Respondent has provided no legal basis
for the Court to throw out Appellant’s Opening Brief filed on Feb. 5, 2013. Respondent does
not cite a single instance in which the right to have an Opening Brief considered by the
Court has been denied.
Respondent Stutz Artiano Shinoff & Holtz (“STUTZ”)’s Motion to Consolidate Appeals and
Supporting Memoranda (“Motion”) asks the Court to throw out the Appellant’s Opening Brief
(“AOB”) filed on Feb. 5, 2013 and give permission to Respondent not to file any response at
all to it. The only reason given by Respondent to justify this brazen request is that Appellant
filed a separate appeal on March 28, 2013 and that the two appeals arise from the same
Superior Court lawsuit.
Respondent has failed to file a Response to Appellant’s Feb. 5, 2013 AOB despite a 46-day
extension granted by the Court. In that request for a 46-day extension of time, STUTZ
claimed under penalty of perjury: "James F. Holtz, Partner at Stutz Artiano Shinoff & Holtz,
APC, and counsel for respondent (in propria persona), is currently engaged in a three (3)
week bifurcated trial on an unrelated matter [ECOLITE CONCRETE USA INC VS. GS LEVINE
INSURANCE], beginning today February 27, 2013, before the Honorable Judge Steven R.
Denton in Department C-73 of the San Diego Superior Court's Central Division."
In fact, there was no trial or even any hearing on Feb. 27, 2013. There was a trial
scheduled for Feb. 28, 2013, but it seems that only an ex parte application was heard on
that date. A two-day trial took place on March 4-5, 2013. Clearly, STUTZ has had more time
to prepare a response than it admits.
In the instant Motion, Respondent’s attorney Paul Carelli IV claims under penalty of perjury
that he needs “additional time” to prepare a Response (page 7, paragraph 3 of the instant
Motion). This claim, if true, suggests that Respondent is having difficulty responding to a
rather simple appeal, and heaven only knows how Respondent would manage to find time to
respond to both the Feb. 5, 2013 brief AND the March 28, 2013 appeal in a single
document. Respondent appears to be overwhelmed by an AOB by a third-grade school
teacher that addressed only an injunction. If that Brief was too much for Respondent to
handle during a 46-day extension, then surely it would not be wise to burden Respondent
with additional issues before it files a single response in this case.
Appellant suspects that Respondent STUTZ is loath to file any responsive brief at all
because it can find no statute or case law to support the constitutionality of the April 9, 2009
injunction. In oral arguments for a previous appeal, D057190, regarding this same Superior
Court Case, Respondent was asked by the presiding justice on July 11, 2010 if it had any
case law to support its position that the injunction at issue was constitutional. STUTZ
attorney Jack Sleeth replied that he had searched for such case law, but was unable to find
any. “I tried. Believe me--I tried,” he told the Court. The injunction was overturned by the
Court on August 5, 2011. Appellant believes that Ray Artiano, James Holtz and Paul Carelli
are equally unlikely as Jack Sleeth to find any case law to support the injunction currently at
In fact, Respondent is not only refusing to submit to the legal requirements of the appeal
process, but brazenly asking the Court to throw out Appellant’s Opening Brief, and to restrict
Appellant to a single AOB and a single Reply regarding two separate appeals. Respondent’
s motive is to avoid the embarrassment of another loss in the Court of Appeal.
Appellant requests that Respondent be ordered, as provided by California Rules of Court
Rule 8.882(c), to file a Response to Appellant’s Feb. 5, 2013 AOB. If STUTZ fails to comply,
Appellant ask that the Court decide the appeal based on the record, the appellant's opening
brief, and any oral argument by the appellant, as provided by California Rules of Court Rule
8.882 (c) Failure to file a brief, which states:
(1) If a party in a civil appeal fails to timely file an appellant's opening brief or a respondent's
brief, the appellate division clerk must promptly notify the party by mail that the brief must be
filed within 15 days after the notice is mailed and that if the party fails to comply, the court
may impose one of the following sanctions:
(A) If the brief is an appellant's opening brief, the court may dismiss the appeal; or
(B) If the brief is a respondent's brief, the court may decide the appeal on the record, the
appellant's opening brief, and any oral argument by the appellant.
Appellant requests that Respondent’s Motion to Consolidate Memoranda for appeals
D062738 (the instant appeal regarding the April 6, 2009 injunction) and D063821 (the
appeal of the Default Judgment and other issues) be denied.
However, Respondent’s request for Consolidation of Appeals is reasonable, and Appellant
does not oppose the consolidation of the two appeals as long as she is allowed to file an
Opening Brief and Reply for each appeal as she is entitled by law.
Dated: April 30, 2013 -------------------------------------------------
Maura Larkins, Appellant in pro per
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
STUTZ ARTIANO SHINOFF & Court of Appeal No. D062738
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2007-00076218-CU-DF-CTL)
Defendant and Appellant.
Appeal from an Order Denying Modification or Dissolution of Injunction
Of The Superior Court, County of San Diego
Hon. Judith Hayes, Judge
APPELLANT’S OPPOSITION TO MOTION TO CONSOLIDATE APPEALS AND SUPPORTING MEMORANDA11
MAURA LARKINS' OPPOSITION TO STUTZ MOTION TO CONSOLIDATE
Stutz v. Larkins appeal #4
|STUTZ MOTION TO CONSOLIDATE, requesting that
Court of Appeal ignore Larkins' Opening Brief, and
allow Stutz to ignore it