KATHLEEN BALES-LANGE, #094765 I Tulare County Counsel 2 TERESA M. SAUCEDO, #093 121

Chief Deputy County Counsel 3 2900 W. Burrel Avenue

Visalia, CA 93291 4 Phone: (559) 636-4950

Fax: (559) 737-4319 5 Email: tsaucedo@co.tulare.ca.us

6 Attorneys for Tulare County Employees Retirement Assn.

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8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SIERRA

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10 RONALD E. PIERCE,

II Petitioner,

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vs. 13

TULARE COUNTY EMPLOYEES 14 RETIREMENT ASSOCIATION; 15 RETIREMENT ADMINISTRATOR

16 Respondents.

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Case No. 7275

(Exempt from fees pursuant to Government Code § 6103)

RESPONDENT TULARE COUNTY E~LOYEESRETrnEMffiNT ASSOCIATION & RETrnEMENT ADMlNISTRATOR'S OPPOSITION TO NOTICE OF MOTION FOR RECONSIDERA TIOl'{; MffiMORANDUM OF POINTS AND AUTHORITIES

Hearing Date: March 20, 2012 Hearing Time: I :30 p.m. Department Two

19 Ie--- --- --- - --- - --- Judge : Honorable Charles H. Ervin 20

21 Respondents Tulare County Employees Retirement Association and Retirement

22 Administrator (hereinafter collectively "TCERA") oppose the Motion to Reconsider filed by

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Petitioner Ronald E. Pierce ("Pierce") on the grounds set forth herein. 24

25 III

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28 County Counsel

Tulare County Visalia, Califomia

1

OPPOSITION TO MOTION FOR RECONSIDERATION

I.

2 INTRODUCTION

3 This Court's December 20, 2011 ruling was correct; Sierra County has no

4 jurisdiction over the subject matter between these parties and the Motion for Reconsideration

5 is without merit.

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7 On November 3, 201 1 Pierce filed a Writ of Mandamus to Enforce Request for

8 Records Under Public Records Act. The records Petitioner seeks are records from the

9 Tulare County Employees Retirement Association and pertain to employees, retirees, and

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II former employees of the County of Tulare, the Tulare County Superior Courts. On

12 December 5, 201 1 TCERA filed its Demurrer on the grounds that this Court has no

13 jurisdiction over records in Tulare County. In his Opposition to the Demurrer, Pierce

14 claimed the basis for his filing his motion in Sierra County was, among other things, the

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Tulare County Superior Court is an illegitimate court, and that Sierra County was a Court of 16

17 Competent Jurisdiction for purposes of his Public Records Act ("PRA"). On December 19,

18 2011 TCERAfiled its Reply, asserting Pierce failed to overcome TCERA'S argument that

19 this Court has no jurisdiction over this matter, and that Tulare County is the proper Court for

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Pierce's PRA dispute, 21

22 A hearing was held on December 20, 2011befcre Lie Honorable Charles H. Ervin.

23 Both Pierce and TCERA appeared telephonically. After considering the written documents

24 and the oral argument, without considering the underlying facts or merits of Pierce's

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26 Petition, the Court sustained TCERA' S demurrer without leave to amend on the grounds it

27 lacked jurisdiction. The Court filed and served its Order that same day.

28 County Counsel

Tulare County Visalia, California

2

OPPOSITION TO MOTION FOR RECONSIDERATION

On December 30, 2011 Pierce filed a Request for Statement of Decision (CCP

2 §632) and a Constitutional Challenge to Order of December 20, 2011. These documents

3 were, in essence, a Motion for Reconsideration. On January 3, 2012 this Court considered

4 Pierce's ex parte documents and denied Pierce's request. On January 11,2012 Pierce fIled

5

6 the instant Motion to Reconsider, arguing law applicable to his PRA request, and repeating

7 his line of reasoning that Tulare County Courts are somehow illegitimate.

8 n. 9 - MEMORANDUM OF POINTS AND AUTHORITIES

10 A. Pierce's Current Motion is His Third Bite at the Apple

II As set forth above, this Court heard and considered Pierce' s Petition for Writ of

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13 Mandamus on December 20, 2011. Bite One. When a losing party believes the ruling is

14 incorrect that party may make a motion before the same judge to reconsider and enter a

15 different order. On December 30, 2011 Pierce filed his Request for Statement of Decision and

16 Constitutional Challenge to Order of December 20, 2011. While not labeling the documents a

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18 Motion for Reconsideration, it was exactly the relief sought in Pierce's two documents. In this

19 instance it is important to note that the name of the motion is not controlling. The requirements

20 apply to any motion that asks the judge to decide the same matter previously ruled on~ "[See

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Curtin vs. Koskey, (1991) 231 Cal.App.3d 873, 878; R & B Auto Ctr., Inc. VS. Farmers Group, 22

23 Inc. , (2006) 140 Cal.App.4ti) 327, 373.] Once again this Court denied Pierce' s request to

24 reconsider on January 3, 2012. Bite Two. Pierce now presents with a document specifically

25 entitled Motion for Reconsideration. Bite Three.

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28 County Counsel

Tulare County Visalia, California

III

3

OPPOSITION TO MOTION FOR RECONSIDERA nON

B. Res Judicata

2 This latest attempt by Pierce for the exact same relief is barred from any subsequent

3 action involving the same parties, claim, demand and request for relief under the doctrine of

4

5 res judicata. For a plea of res judicata to be avai lable, the issue decided in the prior

6 adjudication must be identical with that presented in the second action. [See In re Norwalk

7 Call, (1964) 62 Ca1.2d 185.] The relief Pierce sought when filing his Request for Statement of

8 Decision and Constitutional Challenge to Order of December 20, 20 II was exactly the same as

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in his Petition for Writ of Mandamus, and it is the same in this third request. This request is 10

II barred as a matter of law.

12 C. Pierce's Current Motion is Untimely

13 Assuming arguendo, that the Motions filed on December 30, 2011 are not considered

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by this Court to be a Motion to Reconsider the December 20, 2011 ruling, the instant motion is 15

16 untimely and must be denied. The Legisl~ture was clear as to the guidelines for requesting

17 that a Court, in effect, change its mind when it enacted Code of Civil Procedure §1008:

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(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party-of written-notice- of entry of the order ... (Emphasis added).

22 The instant request for relief was filed January 11 , 2012, twenty-two days after the original

23 order and is untimely.

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25 Moreover, in requesting that a Court reconsider its prior ruling, this same portion of

26 California law provides an aggrieved party may do so based upon new or different facts,

27 circumstances, or law. The requesting party is required to state by affidavit what application

28 County Counsel

Tulare County Visalia, Califomia

was made before, when and to what judge, what order or decisions were made, and what new 4

OPPOSITION TO MOTION FOR RECONSIDERATION

or different facts, circumstances, or law are claimed to be shown. Pierce has failed to

2 comply with these requirements. The legislative intent in Code of Civil Procedure § I 008 was

3 to restrict motions for reconsideration 10 circumstances where a party offers the court some

4

fact or circumstance not previously considered and some valid reason for not offering it 5

6 earlier. [See Gilberdvs. AC Transit, (1995) 32 CaI.App.4 th, 1494, 1500; Minkvs. Sup. Ct.,

7 (Arnel Develop. Co., Inc.) (1992) 2 CaJ.App.4 th 133S, 1342; Baldwin vs. Home Say. Of

8 America, (1997) 59 Cal.App.4th 1192, 119S.] The burden under §1008 "is comparable to that 9

of a party seeking a new trial on the ground of newly discovered evidence: the information 10

II must be such that the moving party could not, with reasonable diligence, have discovered or

12 produced it at the trial." New York Times Co. vs. Sup. Ct. (Wall St. Network, Ltd.) (2005) 135

13 Cal.App.4th 206, 212-213 . Pierce' s argument is the same: Tulare County is not a legitimate

14

Court and his PRA request should be granted by Sierra County. These positions are not 15

16 "new," nor are they "different.': [CCP § 100S(f).] Pierce ' s request must be denied. Further,

17 Pierce's blatant failure to comply with CCP §100S may be punished as a contempt of court.

18 [See CCP §JOOS(d).]

19

III. 20

CONCLUSION 21

Pierce has thrice presented the same request to this Court for relief it has no 22

23 jurisdiction to order. On December 20,2011 this Court was COlTect: it had no jurisdiction in

24 this matter and TCERA' S demUlTer was property sustained without leave to amend.

25 Despite his tenacity, flair for and attempts to make use of Latin, and regurgitated

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inapplicable legal authority on irrelevant issues, Pierce failed to provide this Court with legal 27

28 authority to support his current request to have the December 20, 20 II ruling reconsidered County Counsel

Tulare County Visalia, California

5

OPPOSITION TO MOTION FOR RECONSlDERA TION

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I pursuant to CCP §lOOS. This current request of Pierce for reconsideration is barred by the

2 doctrine of res judicata, or alternatively, it is untimely.

3 As stated above, Pierce could be found in contempt for his insistence at burdening this

4

5 Court and TCERA by churning out frivolous requests for relief and motions in inappropriate

6 jurisdictions. For the reasons set forth herein, TCERA respectfully requests that this Court

7 deny Pierce's Motion for Reconsideration.

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9 Dated : F~br.uaI)' ~S,}O ~2.

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14 NANI2I1512012/20 111750/443484

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28 County Counsel

Tulare County Visalia, California

Respectfully Submitte.d, kATHLEEN BALES~LANGE ?Iare County ?rsel

~lhUdJr; liLiUU;' lERESA M. SAUCEDO

6

Chief Deputy County Counsel Attorneys for Respondent TCERA

OPPOSITION TO MOTION FOR RECONSIDERATION

PROOF OF SERVICE STATE OF CALIFORNIA )

2 ) ss. COUNTY OF TULARE )

3

4 I am employed in the County of Tulare, State of California. I am over the age of eighteen (18) years and not a party to this action; and, my business address is 2900 West Burrel Avenue, Visalia, CA

5 93291.

6 On this date, I served the following documents: RESPONDENT TULARE COUNTY EMPLOYEES RETIREMENT ASSOCIATION & RETIREMENT

7 ADMINISTRATOR'S OPPOSITION TO NOTICE OF MOTION FOR 8 RECONSIDERATION; MEMORANDUM OF POINTS AND AUTHORITIES on the

parties to this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

g RONALD E. PIERCE

10 P.O. Box 890 Dinuba, CA 93618

(BY MAIL) I am "readily familiar" with The County of Tulare's practice of collection and processing correspondence by mailing. Under that practice, mail is deposited with the U.S. Postal Service on the same day with postage fully prepaid at Visalia, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

(BY FACSIMILE) With the addressee(s)' consent and agreement, I caused such document to be aelivered by facsimile transrnission to the addressee(s). •

(BY PERSONAL DELIVERY) I caused such envelope to be delivered by hand to the addressee(s).

(BY FEDERAL EXPRESS OR UPS NEXT DAY SERVICE) I caused such envelope to be delivered to Federal Express or UPS with a fully prepaid airbilVinvoice for next business day delivery to the adaresseersy.- ---

Executed on February~, 2012, at Visalia, CA.

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OPPOSITION TO MOTION FOR RECONSIDERA nON