Civil 4

CIVIL CASE # 94-05108 Continued

CV 94-56   To Index

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

September 6, 1995      HONORABLE CHRISTOPHER M. SKELLY

CV 94-05108               For HONORABLE REBECCA A. ALBRECHT

MARGARET LOEB, et al                  Edmund D. Kahn. (Tucson)

 Vs.

LEONARD ZANTEN, et al               _____________________________

Leonard Van Zanten. Riverside, CA

No response to plaintiffs' Motion for Summary Judgment having been received by the court.

IT IS ORDERED granting plaintiffs' Motion for Summary Judgment.

IT IS FURTHER ORDERED that any objection to the proposed form of judgment lodged with the court with the Motion for Summary Judgment, or to plaintiffs' Statement of Costs, be filed with the court within ten days. 

(Received Sept 16-95)

 

CV 94-57

Leonard Van Zanten, Riverside Ca.

DEFENDANT.   TO:   HONORABLE CHRISTOPHER M. SKELLY

                                       For HONORABLE REBECCA A. ALBRECHT.

MARGARET LOEB, et al                                 NO: CV 94-05108

Vs

LEONARD VAN ZANTEN ___________________________________

YOUR HONOR.

In reference to your letter received Sept 16-95 (copy attached) I the named defendant never at any time did receive an original or copy of plaintiffs MOTION FOR SUMMARY JUDGMENT, nor at any time did plaintiff make me aware of it either by phone or by fax.

The last correspondence that on Aug 26-95 I received (when I returned from Europe) at my request - was the resetting of our trial date from Aug 30-95 to Jan 11-96 in which it was stated that PLAINTIFF HAD NO OBJECTION.

I hereby furthermore formally charge and state that this is a underhanded deal from the plaintiff to INTENTIONALLY not mail to me - or to in some way not notify me of his MOTION FOR SUMMARY JUDGMENT.  (Defendant has received plaintiff mail for two years now - and defendant fax and phone are open 24 hr. a day, hence; defendants correct address and phone etc. are on dozens of papers on file with plaintiff.)

Our case up until now had been before Judge William J. Schafer on the basis of DEFAULT.  Plaintiff on the last trial date DEFAULTED and additionally committed FRAUD before Judge Schafer.  Knowing therefore that plaintiff stands no chance of gaining victory for himself on our new trial date - I indeed call it underhanded and unprofessional to file this motion for summary judgment while leaving me unaware thereof, all perhaps in the vain hope that by ignorance I will come to default.

Thank God therefore that at least we have a COURT to pronounce right from wrong.

If as yet plaintiff will forward me a copy of said motion I the defendant will respond - and Defendant hereby petition the Court to vacate the trial date of Sept 22-95 on the basis of the facts herein above stated.

Dated Sept 18 95.  Leonard Van Zanten.  Defendant.

Copy of foregoing mailed this day Sept 18-95 to

CV 94-58

The Honorable Christopher M. Skelly for Honorable Rebecca A. Albrecht

Judge of the Superior Court, Maricopa County Superior court

Re: State Farm & Loeb v. Van Zanten

Case #: CV 94-05108.  September 25 1995 ___________________________

Your Honor:

We are in receipt of Defendant's letter to you dated September 18, 1995, wherein he claims never to have received a copy of our Motion for Summary Judgment or its attachments. 

Our file indicates these pleadings were mailed to Mr. Van Zanten at his mailing address of record on June 21 and June 22, 1995. 

In addition, our letter dated August 21, 1995 to Judge Albrecht requesting a ruling on the Motion was sent to Mr. Van Zanten's same address. 

We do not know what the Defendant is referring to when he asks the Court to vacate a Trial date of September 22, 1995.

We will send Mr. Van Zanten copies of the Motion for Summary Judgment and all of its attachments once again.  However, it is our contention that these documents were mailed to him June 21 and 22, 1995 and never returned to us by the Post Office. 

We do not believe that Mr. Van Zanten has stated a meritorious defense to our Motion and, therefore, feel that should issue a final Order granting our Motion'

Arthur W. Vance

cc: Leonard Van Zanten

CV 94-59

SUPERIOR COURT OF ARIZONA

Maricopa County

(Received Oct 2, 95 FILED Oct 3, 95

September 29, 1995 HONORABLE REBECCA A. ALBRECHT

CV 94-05108

MARGARET LOEB, et al Edmund D. Kahn, Tucson

V                                                                 

LEONARD VAN ZANTEN, et al.  __________________________

Leonard Van Zanten, Riverside,

The Court has reviewed the defendant's letter of September 18, 1995 and plaintiff's letter of September 25, 1995.  Rule 60 of Arizona Rules of Civil Procedure provide adequate remedy for defendant.

IT IS ORDERED vacating the trial date of January 11, 1996.

IT IS FURTHER ORDERED approving and settling the Judgment in favor of plaintiffs and against defendants in the sum of $8,108.61, all in accordance with the formal written order signed by the Court on September 27, 1995 and filed herein.

CV 94-60

LAW OFFICE OF EDMUND D. KAHN.  TUCSON, ARIZONA

Arthur W. Vance, Attorneys for Plaintiffs 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

MARGARET LOEB, SAMUEL LOEB &                 NO.  CV 94-05108

STATE FARM,

Plaintiffs,                                                               J U D G M E N T

Vs.

LEONARD VAN ZANTEN & JANE DOE                (Assigned to the Honorable

VAN ZANTEN, h/w,                                                     William J. Schafer, III)  

Defendants. ____________________________________________________

THIS MATTER having come before the Court by Motion for Summary Judgment, submitted by the Plaintiffs and Defendant not responding thereto and good cause appearing therefore, the Court grants Summary Judgment to Plaintiffs.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Plaintiffs are granted Judgment against the Defendant LEONARD VAN ZANTEN, for the sum of $8,108.61 plus interest at 10% per annum from December 21, 1993, plus costs in the sum of $178.75, plus accruing costs.

DATED: September 27 1995_________Signed__(Rebecca A. Albrecht)_____

                                                    The Hon. William J. Schafer III

                                                    JUDGE OF THE SUPERIOR COURT

CV 94-61

Law offices of RIDENOUR, SWENSON CLEERE, & EVANS PC.

A PROFESSIONAL CORPORATION.  October 3, 1995

Leonard Van Zanten

Re: Loeb and State Farm v. Van Zanten

CV 94-05108, Maricopa County Sup Ct

Before The Honorable R. Albrecht ________________________________

Dear Mr. Van Zanten:

Based upon what you have told me about the procedural posture of this case, I believe that you need to file a Motion To Set Aside Judgment pursuant to A.R.C.P. 60(c).  Enclosed is a copy of Rule 60.

You have told me that summary judgment was entered against you on September 29, 1995.  You have said that the reason this occurred is because you never received a copy of the Summary Judgment Motion and therefore never responded to it.

You should file a Motion To Set Aside Judgment asserting "mistake, inadvertence, surprise or excusable neglect" pursuant to A.R.C.P. 60(c)(1) and "for other reasons justifying relief from the operation of the judgment" pursuant to A.R.C.P. 60(c)(6).  If you have evidence that the motion was intentionally not mailed to you, A.R.C.P. 60(c)(3) regarding misrepresentation or misconduct of an adverse party may also apply.

You should cite Rule 60 and its applicable subsections in your Motion To Set Aside.  You should prepare an Affidavit to accompany the motion, which sets forth all important facts, i.e.:

Non-receipt of the motion;

Unawareness of the fact it had been filed;

Had it been known to have been filed that you would have timely responded by filing opposition papers and an affidavit pointing out how the accident occurred, how it was the other party's fault by virtue of the fact the other party had on a right turn blinker but then proceeded straight through the intersection striking your left-turning vehicle, and that you would not have turned left when you did had she not been signaling that she would be making a right turn, etc. 

If and when the judgment is set aside, you will need to file formal opposition with an Affidavit to the Motion for Summary Judgment.  Then the Court can rule on it after having heard from everyone. 

As I mentioned, neither my firm nor myself wish to represent you in this litigation.  It is a small matter.  You are pro-per and until this one problem occurred have apparently been doing "fine" on your own.  Therefore, my only involvement will be to send you this letter intended to help you in your attempts to set aside the judgment.  There will be no charge for this as I am willing to do it as a favor just because you seem like a nice guy and you need a little help to "make things right" with your case once again. 

Take care and good luck. 

Truly yours, Michael J. Frazelle For the Firm

CV 94-62

LEONARD VAN ZANTEN.  Riverside Ca.

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA.

MARGARET LOEB, et all,                      NO. CV 94-05108

Plaintiffs.                                                    MOTION TO

Vs.                                                              SET ASIDE JUDGMENT

LEONARD VAN ZANTEN                    (Assigned to the Honorable

Defendant                                                   William J. Schafer, III) ____________________

TO:  The Honorable Christopher M. Skelly for Honorable Rebecca A. Albrecht.

Come now defendant Leonard Van Zanten pursuant to A.R.C.P.  RULE 60 subsection (c) respectfully move this court to SET ASIDE THE JUDGMENT entered against the defendant on September 27-95, filed 9-29-95 executed by Honorable Rebecca A. Albrecht.

The defendant asserting that by "mistake, inadvertence, surprise, or excusable neglect" pursuant to A.R.C.P. 60 c)   (1) and "for other reasons justifying relief from the operation of the judgment" pursuant to A.R.C.P. 60 c) (6) that said judgment was entered mistakenly, in error.

Furthermore; defendants has good grounds and belief that failure of the plaintiffs to mail to - or serve the defendant with motion for summary judgment was done intentionally or in neglect by "misrepresentation, or other misconduct of an adverse party" pursuant to A.R.C.P. 60 c) (3)

AFFIDAVIT TO SUPPORT MOTION

1.       On Nov. 16-93 plaintiff Margaret Loeb operated her vehicle in a NEGLIGENT MANNER - displayed a right turn signal and having made an entry to proceed upon the intend noted by her signal - at the last instant diverted whereby causing damage to defendants vehicle.

2.       Had plaintiff not shown a right turn signal I the defendant would not have proceeded to move the small distance that I had regardless of her low speed and full right position upon the road.

3.       Defendant hereby swears by AN OATH before God in His name, and before all man that he did not at any time before the 29th day of September 1995 was in receipt of the said motion.  (In hind-sight two days after execution of the judgment.

4.       Nor at any time - by the same oath - that defendant had been made aware that said motion had been filed, with the exception of the letter of the court (Exhibit A) received by the defendant on Saturday Sept. 16-95 stating that "no response to plaintiffs motion for summary judgment was received by the court".

5.       The same then came as a total surprise to me since only several weeks prior to receipt of said letter [(having returned from a stay in The Netherlands (as I notified both the court and the plaintiff of - 8 or 9 days prior to the date noted in the motion for summary judgment)] I was informed by the court that I had received a continuance for the trial date from Aug 30-95 to Jan 11-96, wherein it was stipulated that "Plaintiff had no objection to the continuance and new trial date".

6.       The interpretation of the underlined suggests that plaintiff - rather than waiting for the trial date, with full knowledge of the fact that defendant would not for some time be within the continental USA - instead forthwith started motion for summary judgment . . ..  The plausible attribute "for plaintiff would have been to notify defendant, but no such courtesy was extended.

7.       Immediately upon receipt of the letter of the court (exhibit A) defendant called the court (morning of 9-18-95) for an explanation and to certify that I was totally unaware of said motion.  Wishing to speak with the judge, but being unable defendant was informed by the clerk to "set forth said certification in a letter and fax it where-after she would hand it to the judge.  Having therefore faxed the letter the very same day (9-18-95) and send the original on its way by certified mail, also notifying plaintiffs.  I called the court in the following days as to the status, and if there was any immediate trial date on file to which I received a negative answer.  And to just hold for a few more days until she (clerk) obtained a reply from the judge.

8.       As defendant now realizes he was ill informed by the clerk, that instead of a letter he should perhaps have send a formal motion, or prepared a defense in opposition to a motion for summary judgment.  I the defendant however was not in receipt of any motion for summary judgment, for which reason I was unable to comply with the third paragraph of the letter of the court as stated in exhibit A. Nor would there have been any time to do so had he then received the motion - seeing how the 10 days so stipulated came down to only three actual days in which to prepare any defense.

9.       I the defendant certify under the same oath that had I known that a motion had been filed I would have responded in a timely manner (as I have in the past).  And why should I not have, since I was looking forward to my day in court to present my case and to show the "adverse effects done by the attorneys of the plaintiff upon the defendant and upon the court".  (A.R.C.P. 60 c) (3)

10.   Affidavit for good cause and belief that plaintiff intentionally failed to serve or notify defendant of motion for summary judgment - derives out of the fact that this is not the first time that plaintiff merely claims that he mailed something.  Wherefore then the defendant is not so able to produce absolute evidence on the latter instant, defendant is able and has the evidence that plaintiff pursuant to A.R.C.P 60 c) (3) did in fact commit fraud before the court.

11.   The same occurred in the first week of March 1995 when defendant on 3-7-95 was in effect cheated out of his day in court.  Evidence will show that plaintiff defaulted through by willful misrepresentation and in some "inconceivable" manner  (nothing having been placed before the court to justify or support plaintiffs verbal statements) managed to have the trial canceled on the afternoon before the effective date - leaving the defendant to come all the way to Phoenix AZ. alone before the Honorable judge Schafer III.

12.   Whereupon the defendant petitioned the court for declaration of default.  Instead, the honorable judge Schafer gave us a new trial date for Aug. 30-95.

DEFENDANT THEREFORE prays the court to set aside the judgment as requested by this motion, and allow the defendant time and opportunity as granted by law to file a formal opposition with affidavits to support said response and formal opposition.  And, to question attorneys for plaintiffs under oath to establish the whole truth regarding plaintiffs misrepresentation to testify to the defendant's belief and assertion of plaintiffs fraud before the court.

OATH

I Leonard Van Zanten, resident of Riverside Calif. and being the defendant in this civil matter do hereby swear by an oath before God and all men that the foregoing herein (4 pages) is the truth and the whole truth so help me God. 

Signed this day October 4-1995.  Leonard Van Zanten, Defendant

Copy of the foregoing mailed certified return receipt one-day delivery to

Arthur w. Vance.  & Judge of the superior court.  NOTARIZED Oct 4 95)

CV 94-63

Law offices of Edmund d. Kahn of counsel: Arthur w Vance

Attorney for Plaintiffs

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

MARGARET LOEB, et al.,                          NO. CV 94-05108

Plaintiffs,                                                    OPPOSITION TO MOTION

Vs                                                               TO SET ASIDE JUDGMENT

LEONARD VAN ZANTEN, et al., 

Defendants. )  _______________________________________

Come now the Plaintiffs and respectfully submit their opposition to Defendants' Motion to Set Aside Judgment entered in this case on 9-27-95.

 Procedure.

Defendant seems to base his motion of ARCP Rule 60(c)(1) having to do with mistake, inadvertence, surprise or excusable neglect, although he cited Rule 60(c)(6) having to do with the catchall phrase, any other reason justifying relief from the operation of the Judgment.

 Meritorious Defense

What the Defendant does not do in his Motion is to contradict any of the facts set out in Plaintiff's Motion for Summary Judgment.

As a matter of fact, Defendant alleges in his Motion to Set Aside the Judgment that the Plaintiff Margaret Loeb "displayed a right turn signal.

Defendant does not contradict any of the facts relied upon by Plaintiffs and seemingly agrees that since no material conflict as to the facts exists, the case is ripe for a summary judgment.

Nor does Defendant cite any law, which would cause the court to reach a different conclusion on this set of facts.

Wherefore, Plaintiffs pray that the court deny the Motion to Set Aside this Judgment.

DATED on October 10, 1995 By Edmund D. Kahn

CV 94-64

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

September 6, 1995              HONORABLE CHRISTOPHER M. SKELLY

CV 94-05108                      For HONORABLE REBECCA A. ALBRECHT

MARGARET LOEB, et al                  Edmund D. Kahn. (Tucson)

 Vs.

LEONARD ZANTEN, et al               _____________________________

Leonard Van Zanten. Riverside, CA

No response to plaintiffs' Motion for Summary Judgment having been received by the court.

IT IS ORDERED granting plaintiffs' Motion for Summary Judgment.

IT IS FURTHER ORDERED that any objection to the proposed form of judgment lodged with the court with the Motion for Summary Judgment, or to plaintiffs' Statement of Costs, be filed with the court within ten days. 

(Received Sept 16-95)

CV 94-64

LEONARD VAN ZANTEN.  Riverside Ca.

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

 MAGARET LOEB, et al.,                         NO. CV 94-05108

 Plaintiffs,                                                   REBUTTAL TO  PLAINTIFFS OPPOSITION                                

 Vs                                                               TO MOTION TO SET ASIDE JUDGMENT

LEONARD VAN ZANTEN  

Defendant.                                              __________________________________

COME now the defendant and respectfully submit his rebuttal to plaintiff's opposition to defendant's motion to set aside judgment entered in this case on 9 - 27 - 95. 

Procedure

Defendant, contrary to plaintiffs claim in opposition is IN FACT basing his motion to set aside judgment on A.R.C.P. rule 60 c) (1) and (6)

 Meritorious defense

It is absurd for the plaintiff to allege that defendant is basing his motion to set aside judgment solely on a basis that Margaret Loeb displayed a right turn signal, the afore said motion clearly indicates plaintiffs misconduct, fraud, and general contempt of the court and of its procedures, and of the laws by which the accused party has the right to a defense and a trial before the court.

Plaintiff, in this case having once defaulted before defaulted before the court - through cunning and deceit managed to manufacture a judgment against the defendant, seems to be of the opinion that not only, contrary to the law - a man is guilty unless he can prove himself innocent, but guilty without any chance or opportunity to a defense. 

By the order of the Honorable Judge Schaffer, III defendant was given a time and date in which to place forth his defense, which plaintiff through cunning, misconduct, and general contempt of the court and the rules thereof caused to be null and void.

Plaintiff did not with intend at any time notify or serve defendant with a motion of summary judgment, not until a judgment had been entered.

Plaintiffs states that defendant cited no laws by which a different conclusion might be reached, if then the plaintiff or the court wishes that defendant cites the rules of the US Constitution Amendments (1) and (14) and the various laws rules of the Arizona law for procedure for the courts, and such as dealing with fraud and misconduct before the court, will do so - if only given the opportunity, a reasonable time span in which to prepare and place into evidence all such facts and matters.

Defendant has ample material evidence to show that judgment against the defendant was entered through A.R.C.P. rule 60 c) (1) (6) by "mistake, inadvertence, surprise or excusable neglect, wherefore the defendant only begs the court a reasonable time and opportunity in which to present said evidence.

Defendant therefore begs the court to set aside the judgment, and respectfully requests from the Honorable judge Schafer, III to give this defendant as he once promised, ordered, and gave to the defendant - his day in court. 

Dated October 17 - 95 Leonard Van Zanten.  Defendant

Copy of the foregoing mailed on October 17-95

CV 94-65

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

November 17, 1995                               HON. REBECCA A. ALBRECHT

NO:   CV 94-05108                                  (Filed Nov 22-95)

MARGARET LOEB                               Edmund D. Kahn (Tucson)

v.                                                              Leonard Van Zanten

LEONARD VAN ZANTEN    Riverside, CA._____________________________

The Court has reviewed the Defendant's Motion to set aside Judgment, the response, and the reply.

Defendant, by his pleading, indicates he did not receive a copy of the Motion for Summary Judgment.  He further asserts a meritorious defense of contributory negligence.

IT IS ORDERED vacating the judgment entered on September 29, 1995.

IT IS ORDERED plaintiff shall forward to defendant a copy of the Motion for Summary Judgment, return receipt requested.

Mr. Van Zanten shall respond to the motion or before December 15, 1995.

Any reply from plaintiff will be filed on or before December 27, 1995 after which the Court will rule without oral argument.

The Court reminds both parties that the original pleading is to be filed with the Clerk of the Court and a copy is to be provided to adverse parties and this division.

This matter is not reset for trial pending the Court's ruling on the Motion for Summary Judgment.

The Court further notes that personal attacks directed toward counsel or parties in pleadings will not be tolerated by this Court.

Insert:  (And what makes you think that I will now tolerate you?)

CV 95-69

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

MARGARET LOEB, SAMUEL LOEB         NO. CV 94-05108

STATE FARM,

Plaintiffs,                                                         J U D G M E N T

vs.

LEONARD VAN ZANTEN & JANE DOE     (Assigned to The Honorable

VAN ZANTEN, h/w,                                          William J. Schafer, III)  

Defendants. _________________________________________________________

THIS MATTER having come before the Court by Motion for Summary Judgment, submitted by the Plaintiffs and Defendant not responding thereto and good cause appearing therefore, the Court grants Summary Judgment to Plaintiffs.

 NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Plaintiffs are granted Judgment against the Defendant LEONARD VAN ZANTEN, for the sum of $8,108.61 plus interest at 10% per annum from December 21, 1993, plus costs in the sum of.  1 3178.75, plus accruing costs

DATED:                                _____________________________

THE HON.  WILLIAM J. SCHAFER, III.   JUDGE OF THE SUPERIOR COURT  

CV 94-70

LAW OFFICES OF EDMUND D. KAHN.  Attorneys for Plaintiffs

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

MARGARET LOEB, et al.,                      NO. CV 94-05108

Plaintiffs,                                               NOTICE OF SERVICE OF MOTION

Vs                                                           FOR SUMMARY JUDGMENT ON

LEONARD VAN ZANTEN                 DEFENDANT

Defendants.                                            By registered mail with return receipt requested

Assigned to the Honorable Rebecca A. Albrecht __________________________________

COME NOW Plaintiffs, State Farm Mutual Automobile Insurance Company, as subrogee of Margaret and Samuel Loeb, and state as follows:

On September 25, 1995 in response to Defendant's letter to the Court dated September 18, l99S alleging that he had never received our Motion for Summary Judgment, we mailed a copy of the Motion for Summary Judgment dated June 21, 1995 to the Defendant at his address of record. 

Attached to this notice as Exhibit A are copies of the following: A Certified Mail Receipt dated 9-25-95; A Domestic Return Receipt signed by Defendant on 9 - 29 - 95.

WHEREFORE, Plaintiff contends that it had already mailed the Motion for Summary Judgment to the Defendant as ordered in the Court's Order dated November 17, 1995 and that Defendant must now respond to said Motion on or before December 15, 1995 as the Court has ordered. 

DATED this 28th day of Nov 1995

By Arthur W. Vance.  Attorneys for Plaintiffs

Copy of the foregoing served/mailed on November 29, 1995, to: 

Leonard Van Zanten

The Honorable Albrecht