Digitally signed

by Joseph Zernik
DN: cn=Joseph
Zernik, o, ou,
email=jz12345@e
arthlink.net, c=US
Date: 2010.05.12
14:55:11 +03'00'

111 BRYAN CAVE LLP

John W. Amberg (CA State Bar No. 108166)
211 Jenna MoldawsKy (CA State Bar No. 246109)
120 Broadway, Suite 300
311 Santa Monica, California 90401-2386
Telephone: (310) 576-2100
411 FaCSImile: (310) 576-2200
5
Attorneys for Defendants
611 COUNTRYWIDE HOME LOANS, INC.,
ANGELO MOZILO and SANDOR
711 SAMUELS
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION
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[No hearing requested]
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Hon. Carla Woehrle
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Defendants Countrywide Home Loans, Inc., Angelo Mozilo and Sandor
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Samuels (collectively, "Defendants") respectfully submit the following Reply to
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Plaintiff Joseph Zernik's ("Plaintiff') Opposition to Defendants' Motion to Dismiss
2411
the Original Complaint ("Opposition") I.
25
Plaintiff s Opposition provides that it is in opposition to the "Motions to Dismiss
26 First Amended Complaint." However, Defendants' pending Motion is to dismiss
the Original Complamt because Defendants were only served with the Original
27 Complaint, not the First Amended Complaint. However, as Plaintiff has failed to
file any separate document specifically addressing Defendants' Motion to Dismiss,
28 Defendants' Reply is filed in response to Plaintiffs sole opposition document.
SMOJDOCS\689675.I
REPLY IN SUPPORT OF MOTION TO DISMISS

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 111 I. INTRODUCTION
211 Plaintiffs Opposition is not only largely intelligible and lacking any
311 decipherable legal argument, it entirely fails to address or oppose any of the
411 substantive arguments made in Defendants' Motion to Dismiss. First, Plaintiff
511 provides no explanation for his failure to serve Defendants with a copy of the First
611 Amended Complaint, and Plaintiffs service of only the Original Complaint on
711 Defendants was ineffective.
811 Plaintiff also fails to provide any basis for this Court to disregard the federal
911 abstention doctrine and to interfere with pending state court proceedings. The state
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1411 violations under Title 42 U.S.C. § 1983. The statute requires a plaintiff to allege
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1711 Defendants simply do not belong in this action, as they were never parties to
1811 the underlying state action, and were merely involved in the state case by way of
1911 Plaintiffs insistence and harassment. Plaintiffnow attempts to yet again engage
2011 Defendants in a lawsuit where they have no place, and has offered no argument as to
2111 why they should remain involved. Plaintiff fails to state any claim upon which
2211 relief may be granted against Defendants and the Original Complaint should be
2311 dismissed.
2411 II. ARGUMENT
2511 A. Defendants Countrywide, Mozilo and Samuels Were Not Properly
2611 Served
2711 Pursuant to the Court's minute order dated June 6, 2008, the First Amended
2811 Complaint "replaced" the Original Complaint filed in this action. Plaintiff served
SMOI DOCS\689675.1 2
REPLY IN SUPPORT OF MOTION TO DISMISS
-

1 Defendants with a summons and a copy of only the Original Complaint on June 10-
2 four days after the Court's mitmte order rendered the Original Complaint moot.
3 Plaintiff s Opposition references the June 6 minute order and the information
4 contained therein (Opposition, p. 21, In. 12), so there is no question that Plaintiff is
5 aware of the minute order and its rulings. Despite Defendants' repeated
6 communications alerting Plaintiff to his deficient service, Plaintiff failed to comply
7 with the terms of the minute order and Defendants were never served with the First
8 Amended Complaint. Plaintiff does not contend that his service of Defendants was
9 proper, nor can he. The Original Complaint should be dismissed.
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17 1039 (9th Cir. 2005).
18 These requirements are met in this case, and Plaintiffs Opposition does not
19 argue otherwise. Samaan v. Zernik was pending in the Los Angeles Superior Court
20 when Plaintiff filed this action, and remains pending. Additionally, the state court
21 proceedings at issue here - namely, the rulings by the various judges in the state
22 court action which Plaintiff alleges to be "fraudulent," implicate the state court's
23 interests in its ability to make and enforce its orders and judgments.
24 Further, it is undisputed that the state court action provides Plaintiff with an
25 oppOliunity to raise any federal claims he believes he may have regarding the state
26 court's orders and judgments. Plaintiffs Opposition fails to contend that he has
27 been precluded from raising his claims in the state action - in fact, he admits that he
28 has repeatedly taken advantage of the state court's appeals system and has
SMOI DOCS\689675I 3
REPLY IN SUPPORT OF MOTION TO DISMISS
 1 challenged several state court rulings through that process. 2 Plaintiff has simply
2 failed to make any argument why this Court should abandon a well-established legal
3 doctrine. As such, the Original Complaint should be dismissed.
4 C. Plaintiff Does Not Allege That Defendants Countrywide, Mozilo
5 and Samuels Are State Actors
6 Plaintiffs claim for civil rights violations is predicated on Defendants'
7 alleged breach of Title 42 U.S.C. § 1983, which requires that any defendant sued
8 under the statute be a state actor or acting under state authority. See 42 U.S.C. §
9 1983. Plaintiff s Complaint does not allege that these Defendants were acting under
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17 allegations are mandatory. Plaintiff fails to set forth any facts in his Original
18 Complaint or in his Opposition to suggest that these Defendants can be held liable
19 under Title 42 U.S.C. § 1983. Therefore, Plaintiff has failed to state a claim against
20 Defendants upon which relief can be granted.
21 D. Plaintiff's Proffered "Evidence" Is Wholly Irrelevant to
22 Defendants' Motion
23 Plaintiff not only fails substantively to oppose Defendants' motion, but he
24 attempts to support his Opposition with what appear to be tables and charts he
25 created which focus on the court's rulings in the underlying state court action. None
26
2
Indeed, attached as Exhibit 4 to Plaintiff's Opposition is a Register of Actions
27 Plaintiff filed with the California Court of Appeal regarding the court records in
28 Samaan v. Zemik.

SMO] DOCS\689675.] 4
REPLY IN SUPPORT OF MOTION TO DISMISS
 111 of this evidence bears any relation to the arguments in Defendants' motion, nor does
211 it in any way suggest that Plaintiff can state a claim for relief against Defendants.
311 The evidence should be disregarded and the Original Complaint dismissed.
411 III. CONCLUSION
511 Based on the foregoing, defendants Countrywide, Mozilo and Samuels
611 respectfully request that Plaintiffs Original Complaint against Defendants be
711 dismissed.

8 .. DATED: July 31, 2008 BRYAN CAVE LLP

9 John W. Amberg
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SMOI DOC5\689675.1 5
REPLY IN SUPPORT OF MOTION TO DISMISS
 1 PROOF OF SERVICE
2 I am employed in the County of Los Angeles, State of California. I am over
the age of 18 and not a_party to the within action. My business address is 120
3 Broaoway, Suite 300, Santa Monica, California 90401-2305.
4 On July 31, 2008, I served the foregging document, described as
DEFENDANTS COUNTRYWIDE HOME LOANS, INC., ANGELO MOZILO
5 AND SANDOR SAMUELS' REPLY TO PLAINTIFF'S OPPOSITION TO
DEFENDANTS' MOTION TO DISMISS COMPLAINT on the interested party(s)
6 in this action, as follows:
7
Joseph Zernik ProSe
8 2415 Saint George Street
Los Angeles, California 90027
9 Telephone: (310) 435-9107

10 Kathryn E. DiCarlo Attorneys for Defendants

Sarah L. Overton Jacqueline Connor, Allan Goodman, John
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11 Cummings McClorey Davis Acho & Associates Segal, Linda Hart-Cole, Patricia Collins, Terry
co Friedman, Gerald Rosenberg, Debbie Witts,
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':' Vivian Jaime, Gregory 0 'Brien. ADR Services,
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Riverside California 92501 Inc.
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18 Attorneys for Defendant
Michael L. Wachtell
19 Buchalter Nemer PC Mara Escrow Company
1000 Wilshire Boulevard, Suite 1500
20 Los Angeles, California 90017-2457
Telephone: (213) 891-5761
21 Email: mwachtell01buchalter.com

22
o (BY MAIL) I placed a true copy of the foregoing document in a sealed
23 envelope addressed to each mterested party as set forth above. I placed each such
enveloRe, with postage thereon fully prepaid, for collection and mailing at Bryan
24 Cave LLP, Santa Monica, CalifornIa. I am readily familiar with Bryan Cave LLP's
practice for collection and processing of correspondence for mailing with the
25 United States Postal Service. Under that practice the correspondence would be
d~posi~ed in the United States Postal Service on that same day in the ordinary course
26 ofbusmess.
o (BY FACSIMILE). On September 20, 2007, at the time indicated on
27 the transmiSSIOn record f I transmitted the foregoing document(s) by facsimile to the
28 facsimile number(s) inaicated on this Proof of Service from the facsimile machine

SMOI DOC5\689675.1 6
REPLY IN SUPPORT OF MOTION TO DISMISS
 1 having the number of (31 0) 576-2200. The transmission of the document(s) to these
facsimile number(s) was reported as complete and without error Pursuant to
2 California Rule of Court 2008, I caused the machine to print a transmission record
of the transmission to the recipients named in this Proof of Service, a true and
3 correct copy of which has been retained by Bryan Cave LLP in the ordinary course
of business and is available for inspection if necessary.
4
o (VIA ELECTRONIC SERVICE - CRC 2060(c)) The document was
5 served via electronic transfer upon the parties listed using theIr e-mail addresses as
shown above. Each transmission was reported as complete and without error.
6
~ (BY OVERNIGHT DELIVERY) I deposited in a box or other facility
7 maintained by the overnight delivery service, an express carrier service, or delivered
to a courier or driver autnorized by said express carrier service to receive
8 documents, a true copy of the foregoing document, in an enveloQe designated by
said express service carrier, with delivery fees paid or provided for.
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~ (FEDERAL ONLY) I declare that I am employed in the office of a
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Executed on July 31, 2008, at Santa Monica, California.
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SMOIDOCS\689675.1 7
REPLY IN SUPPORT OF MOTION TO DISMISS