Download pdf - Bonnie - joint status report 7 13-10

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January 2009 F 7016-1.1

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Attorney or Party Name, Address, Telephone & FAX Numbers and California State Bar Number FOR COURT USE ONLY Penelope Parmes (SBN 104774) Kathryn T. Anderson (SBN 240660)

RUTAN & TUCKER, LLP

611 Anton Boulevard, Suite 1400

Costa Mesa, CA 92626

Telephone: (714) 641-5100

Facsimile: (714) 546-9035

[email protected] Attorney for Virgie Arthur

UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA

In re: BONNIE GAYLE STERN

Debtor(s).

Virgie Arthur CHAPTER: 7

CASE NO.: 2:09-BK-11995-BR Plaintiff(s).

vs.

ADVERSARY NO.:

2:09-AP-01433-BR

Bonnie Gayle Stern DATE: July 27, 2010

TIME: 10:00 a.m.

PLACE: 1668 Defendant(s).

JOINT STATUS REPORT LOCAL BANKRUPTCY RULE 7016-1(a)(2)

TO THE HONORABLE UNITED STATES BANKRUPTCY JUDGE:

The parties submit the following JOINT STATUS REPORT in accordance with Local Bankruptcy Rule 7016-1(a)(2):

A. PLEADINGS/SERVICE:

1. Have all parties been served? Yes No

2. Have all parties filed and served answers to the complaint/ Yes No counter-complaints/etc.?

3. Have all motions addressed to the pleadings been resolved? Yes No

4. Have counsel met and conferred in compliance with Local Bankruptcy Yes No Rule 7026-1?

5. If your answer to any of the four preceding questions is anything other than an unqualified “YES,” then please explain below (or on attached page):

(Continued on next page)

Case 2:09-ap-01433-BR Doc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main Document Page 1 of 9

Joint Status Report - Page 2 F 7016-1.1


January 2009 F 7016-1.1



In re

STERN CHAPTER: 7

CASE NO.: 2:09-BK-11995-BR

ADVERSARY NO.: 2:09-AP-01433-BR Debtor(s).

B. READINESS FOR TRIAL:

1. When will you be ready for trial in this case? Plaintiff Defendant

In approximately 10 to 12 months.* This case should be tried prior to the 10-12 mos stated by plaintiff. A default was entered. Defendant cannot participate in the state proceeding.

2. If your answer to the above is more than four (4) months after the summons issued in this case, give reasons for further delay.

Plaintiff Defendant Per the Court's July 30, 2009 order, this action has been stayed pending entry of judgment as to both liability and damages in District Court of Harris County, Texas, 80th Judicial District Cause No. 2008-24181, Virgie Arthur v. Howard K. Stern et al., currently set for trial on September 27, 2010. The state court case continues to be delayed due to the mandamus proceedings pending in the court of appeals. The appeals Court recently ruled in favor of the appellants, however, plaintiff may file a motion for re-hearing. Trial will not proceed so long as those proceedings are pending. Additionally, special appearances are pending in the state court case for defendants Larry Birkhead and Howard Stern, who are nonresidents contesting Texas jurisdiction. Those special appearances must be heard before the state court case can proceed to trial. Plaintiff believes the losing party on the special appearance motions will file an interlocutory appeal, staying the state court proceedings, in which case trial will not go forward on September 27, 2010. In addition, Howard Stern has stated that he will seek a continuance if he is asked to appear at trial.

The case will not be tried in the state court by September 2010; the trial judge was removed; the appt of a computer examiner is subject to three appeals and if overturned may result in judgments being set aside; trial is likely to be years away

3. When do you expect to complete your discovery efforts? Plaintiff Defendant

In approximately 8 to 10 months.* If permitted to do so, it could be completed in 3 months time.

4. What additional discovery do you require to prepare for trial? Plaintiff Defendant

Written discovery, depositions, expert discovery.* Neither party has exchanged documents. Plaintiff will make all Rule 7026-1 disclosures when the stay on these proceedings is lifted.

If plaintiff is required to make the 7026 disclosures a small number of interrogatories, document requests and the deposition of the plaintiff will be required.




January 2009 F 7016-1.1



C. TRIAL TIME:

1. What is your estimate of the time required to present your side of the case at trial (including rebuttal stage if applicable)?

Plaintiff Defendant Approximately 10 to 14 days.*

2 days

2. How many witnesses do you intend to call at trial (including opposing parties)? Plaintiff Defendant

Approximately 12.*

3 to 4

3. How many exhibits do you anticipate using at trial? Plaintiff Defendant

Approximately 100.* *These estimates assume a continued trial date, and trial in this action as to both liability and damages.

Less than 20 documents





January 2009 F 7016-1.1



In re

STERN CHAPTER: 7

CASE NO.: 2:09-BK-11995-BR


D. PRE-TRIAL CONFERENCE:

A pre-trial conference is usually conducted between a week to a month before trial, at which time a pre-trial order will be signed by the court. [See Local Bankruptcy Rule 7016-1.] If you believe that a pre-trial conference is not necessary or appropriate in this case, please so note below, stating your reasons:

Plaintiff Defendant

Pre-trial conference X (is)/ (is not) requested.

Reasons:

Pre-trial conference X (is)/ (is not) requested.

Reasons:

Plaintiff Defendant

Pre-trial conference should be set after: Pre-trial conference should be set after:

(date) January 1, 2011 (date) January 1, 2011

E. SETTLEMENT:

1. What is the status of settlement efforts? The parties have been unable to reach a resolution of the dispute.

2. Has this dispute been formally mediated? Yes No If so, when?

3. Do you want this matter sent to mediation at this time?

Plaintiff Defendant

Yes No Yes No





January 2009 F 7016-1.1



In re

STERN CHAPTER: 7

CASE NO.: 2:09-BK-11995-BR


F. ADDITIONAL COMMENTS/RECOMMENDATIONS RE TRIAL: (Use additional page if necessary.) Plaintiff's Comments: These proceedings have been stayed pending the entry of judgment as to both liability and damages against Debtor in District Court of Harris County, Texas, 280th Judicial District Cause No. 2008-24181, Virgie Arthur v. Howard K. Stern et al. As set forth in the parties' September 22, 2009 joint status report, on or about July 17, 2009, the Texas state court issued orders finding that defendant willfully abused the discovery process and destroyed evidence, sufficient to show a lack of merit of her special appearance motion, and support the striking of her pleadings and the entry of a default judgment against her as to liability only. True copies of the Court's orders were submitted with the parties' September 22, 2009 joint status report. On or about September 30, 2009, January 6, 2010, and April 7, 2010, this Court entered orders continuing each status conference approximately 90 days. Pursuant to the Court's July 30, 2009 order, a true copy of which is submitted herewith as Exhibit A, plaintiff has submitted herewith a proposed order continuing the status conference an additional 90 days. District Court of Harris County, Texas, Cause No. 2008-24181, Virgie Arthur v. Howard K. Stern et al., has been transferred from the 280

th Judicial District to the 80

th Judicial District of Harris County. The 280th District Court

was re-designated as the domestic violence court for Harris County. All of the cases that were pending in that court were transferred to other civil district courts. Trial against all defendants, including Bonnie Stern as to damages only, currently is set for September 27, 2010. However, the state court case continues to be delayed due to the mandamus proceedings pending in the court of appeals. The appeals Court recently ruled in favor of the appellants, however, plaintiff may file a motion for re-hearing. Plaintiff disputes that the appeals court made a judicial finding that the computer examiner's findings were "null and void." Two special appearances pending in the state court must be heard before the state court case can proceed to trial. As mentioned above, the losing party on a special appearance has a right to an interlocutory appeal, which automatically stays the trial. Plaintiff believes the losing party will appeal, in which case trial will not go forward on September 27, 2010, as currently scheduled. In addition, Howard Stern has filed a notice stating that he will seek a continuance of the trial date if he is asked to appear. Defendant's Comments: The computer examiner who issued the report claiming discovery abuse in fact abused his power and the court of appeal has now ruled that the order appointing the examiner was in excess of the court's authority and all of the findings of the examiner have now been deemed null and void. As a result, the case will not be tried in September 2010 and is not likely to be tried for years given the other defendants in the case, including TMZ. The issues as to Ms. Stern are extremely limited and Ms. Stern does not believe that the default judgment, which was improperly entered against her as a sanction, will constitute collateral estoppel in the Bankruptcy Court. As a result, regardless of whether a trial on damages ultimately results in an award of damages, the issues regarding dischargeability will all have to be tried before the Bankruptcy Court. Ms. Stern is not permitted to participate in any trial or introduce evidence in the State Court. Additional comments may be made by Debtor's Counsel.

Respectfully submitted,

Dated: July 13, 2010

Rutan & Tucker, LLP

Firm Name

By: /s/ Kathryn T. Anderson

Name: Kathryn T. Anderson

Attorney for: Virgie Arthur




January 2009 F 7016-1.1



Dated: 7/13/2010

Law Office of Susan I. Montgomery

Firm Name

By: /s/ Susan I. Montgomery

Name: Susan I. Montgomery

Attorney for: Bonnie Gayle Stern




January 2009 F 7016-1.1



In re

STERN CHAPTER: 7

CASE NO.: 2:09-BK-11995-BR


NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I. Proposed orders do not generate an NEF because only orders that have been entered are placed on a CM/ECF docket.

PROOF OF SERVICE OF DOCUMENT

I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 611 Anton Boulevard, Fourteenth Floor, Costa Mesa, CA 92626

A true and correct copy of the foregoing document described as

JOINT STATUS REPORT LOCAL BANKRUPTCY RULE 7016-1(a)(2)

will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d), and (b) in the manner indicated below:

I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”) - Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) (“LBR”), the foregoing document will be served by the court via NEF and hyperlink to

the document. On July 13, 2010 I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the email addressed indicated below: Kathryn T. Anderson: [email protected] Elissa D. Miller: [email protected], [email protected] Susan I. Montgomery: [email protected] Penelope Parmes: [email protected] United States Trustee: [email protected]

Service information continued on attached page

II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL (indicate method for each person or entity served):

On July 13, 2010 I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follow. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. The Honorable Barry Russell (By Mail) Theodore K. Roberts (By Mail) Susan Montgomery (By Mail) U:.S. Bankruptcy Court - Los Angeles Division 5603 Huntinton Drive North Law Office of Susan Montgomery Roybal Federal Building, Ctrm 1668 Los Angeles CA 90032 1925 Century Park East 255 E. Temple Street Suite 2000 Los Angeles, CA 90012 Los Angeles CA 90067


III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR EMAIL (indicate method for each person or entity

served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method) by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.




January 2009 F 7016-1.1




I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

July 13, 2010 Angie Spielman /s/ Angie Spielman

Date Type Name Signature




January 2009 F 7016-1.1



In re

STERN CHAPTER: 7

CASE NO.: 2:09-BK-11995-BR


ADDITIONAL SERVICE INFORMATION (if needed):
