Bonnie - joint status report 7 13-10

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  • 1. Case 2:09-ap-01433-BRDoc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main Document Page 1FOR9of COURT USE ONLYAttorney or Party Name, Address, Telephone & FAX Numbers and California State Bar NumberPenelope Parmes (SBN 104774) Kathryn T. Anderson (SBN 240660)RUTAN & TUCKER, LLP611 Anton Boulevard, Suite 1400Costa Mesa, CA 92626Telephone: (714) 641-5100Facsimile: (714) 546-9035pparmes@rutan.comAttorney for Virgie ArthurUNITED STATES BANKRUPTCY COURTCENTRAL DISTRICT OF CALIFORNIAIn re:BONNIE GAYLE STERNDebtor(s). Virgie Arthur CHAPTER: 7Plaintiff(s). CASE NO.: 2:09-BK-11995-BRADVERSARY NO.:2:09-AP-01433-BR vs. DATE:July 27, 2010Bonnie Gayle SternTIME:10:00 a.m.Defendant(s). PLACE: 1668 JOINT STATUS REPORTLOCAL 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 No2. Have all parties filed and served answers to the complaint/Yes Nocounter-complaints/etc.?3. Have all motions addressed to the pleadings been resolved? Yes No4. Have counsel met and conferred in compliance with Local Bankruptcy Yes NoRule 7026-1?5. If your answer to any of the four preceding questions is anything other than an unqualified YES, then pleaseexplain below (or on attached page): (Continued on next page) This form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California.January 2009 F 7016-1.1 American LegalNet, Inc. www.FormsWorkflow.com

2. Case 2:09-ap-01433-BR Doc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main DocumentPage 2 of 9 Joint Status Report - Page 2F 7016-1.1In re CHAPTER: 7STERNCASE NO.: 2:09-BK-11995-BR Debtor(s).ADVERSARY NO.: 2:09-AP-01433-BR B. READINESS FOR TRIAL: 1.When will you be ready for trial in this case?Plaintiff DefendantIn approximately 10 to 12 months.*This case should be tried prior to the 10-12 mosstated by plaintiff. A default was entered. Defendantcannot 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 reasonsfor further delay.PlaintiffDefendantPer the Court's July 30, 2009 order, this action has The case will not be tried in the state court bybeen stayed pending entry of judgment as to both September 2010; the trial judge was removed; theliability and damages in District Court of Harris appt of a computer examiner is subject to threeCounty, Texas, 80th Judicial District Cause No. appeals and if overturned may result in judgments2008-24181, Virgie Arthur v. Howard K. Stern et al., being set aside; trial is likely to be years awaycurrently set for trial on September 27, 2010. Thestate court case continues to be delayed due to themandamus proceedings pending in the court ofappeals. The appeals Court recently ruled in favorof the appellants, however, plaintiff may file a motionfor re-hearing. Trial will not proceed so long asthose proceedings are pending. Additionally, specialappearances are pending in the state court case fordefendants Larry Birkhead and Howard Stern, whoare nonresidents contesting Texas jurisdiction.Those special appearances must be heard beforethe state court case can proceed to trial. Plaintiffbelieves the losing party on the special appearancemotions will file an interlocutory appeal, staying thestate court proceedings, in which case trial will notgo forward on September 27, 2010. In addition,Howard Stern has stated that he will seek acontinuance if he is asked to appear at trial. 3.When do you expect to complete your discovery efforts?Plaintiff DefendantIn 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 DefendantWritten discovery, depositions, expert discovery.* 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.Neither party has exchanged documents.Plaintiff will make all Rule 7026-1 disclosures whenthe stay on these proceedings is lifted.This form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California.January 2009 F 7016-1.1 American LegalNet, Inc. www.FormsWorkflow.com 3. Case 2:09-ap-01433-BR Doc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main DocumentPage 3 of 9 Joint Status Report - Page 3F 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 ifapplicable)? PlaintiffDefendantApproximately 10 to 14 days.*2 days2. How many witnesses do you intend to call at trial (including opposing parties)? Plaintiff DefendantApproximately 12.*3 to 4 3. How many exhibits do you anticipate using at trial?PlaintiffDefendantApproximately 100.* Less than 20 documents *These estimates assume a continued trial date, andtrial in this action as to both liability and damages.(Continued on next page)This form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California.January 2009 F 7016-1.1 American LegalNet, Inc. www.FormsWorkflow.com 4. Case 2:09-ap-01433-BR Doc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main DocumentPage 4 of 9 Joint Status Report - Page 4F 7016-1.1In reCHAPTER: 7STERN CASE NO.: 2:09-BK-11995-BR Debtor(s). ADVERSARY NO.: 2:09-AP-01433-BRD. 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 willbe signed by the court. [See Local Bankruptcy Rule 7016-1.] If you believe that a pre-trial conference is not necessaryor appropriate in this case, please so note below, stating your reasons:PlaintiffDefendant Pre-trial conference X (is)/(is not) requested.Pre-trial conference X (is)/(is not) requested.Reasons: Reasons: PlaintiffDefendant 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 NoIf so, when? 3.Do you want this matter sent to mediation at this time? Plaintiff Defendant YesNoYesNo(Continued on next page)This form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California.January 2009 F 7016-1.1 American LegalNet, Inc. www.FormsWorkflow.com 5. Case 2:09-ap-01433-BR Doc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main DocumentPage 5 of 9 Joint Status Report - Page 5F 7016-1.1In re CHAPTER: 7STERNCASE NO.: 2:09-BK-11995-BR Debtor(s).ADVERSARY NO.: 2:09-AP-01433-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 againstDebtor 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 courtissued orders finding that defendant willfully abused the discovery process and destroyed evidence, sufficient toshow a lack of merit of her special appearance motion, and support the striking of her pleadings and the entry of adefault 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, thisCourt 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 hassubmitted 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 ththtransferred from the 280 Judicial District to the 80 Judicial District of Harris County. The 280th District Courtwas re-designated as the domestic violence court for Harris County. All of the cases that were pending in thatcourt were transferred to other civil district courts. Trial against all defendants, including Bonnie Stern as todamages only, currently is set for September 27, 2010. However, the state court case continues to be delayeddue to the mandamus proceedings pending in the court of appeals. The appeals Court recently ruled in favor ofthe appellants, however, plaintiff may file a motion for re-hearing. Plaintiff disputes that the appeals court made ajudicial finding that the computer examiner's findings were "null and void." Two special appearances pending inthe state court must be heard before the state court case can proceed to trial. As mentioned above, the losingparty on a special appearance has a right to an interlocutory appeal, which automatically stays the trial. Plaintiffbelieves the losing party will appeal, in which case trial will not go forward on September 27, 2010, as currentlyscheduled. In addition, Howard Stern has filed a notice stating that he will seek a continuance of the trial date ifhe 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 ofappeal has now ruled that the order appointing the examiner was in excess of the court's authority and all of thefindings of the examiner have now been deemed null and void. As a result, the case will not be tried inSeptember 2010 and is not likely to be tried for years given the other defendants in the case, including TMZ. Theissues as to Ms. Stern are extremely limited and Ms. Stern does not believe that the default judgment, which wasimproperly entered against her as a sanction, will constitute collateral estoppel in the Bankruptcy Court. As aresult, regardless of whether a trial on damages ultimately results in an award of damages, the issues regardingdischargeability will all have to be tried before the Bankruptcy Court. Ms. Stern is not permitted to participate inany trial or introduce evidence in the State Court. Additional comments may be made by Debtor's Counsel. Respectfully submitted,Dated: July 13, 2010 Name: Kathryn T. Anderson Rutan & Tucker, LLP Firm Name Attorney for: Virgie ArthurBy: /s/ Kathryn T. Anderson This form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California.January 2009 F 7016-1.1 American LegalNet, Inc. www.FormsWorkflow.com 6. Case 2:09-ap-01433-BR Doc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main DocumentPage 6 of 9 Joint Status Report - Page 6F 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 SternThis form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California.January 2009 F 7016-1.1 American LegalNet, Inc. www.FormsWorkflow.com 7. Case 2:09-ap-01433-BR Doc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main DocumentPage 7 of 9 Joint Status Report - Page 7F 7016-1.1In re CHAPTER: 7STERNCASE NO.: 2:09-BK-11995-BR Debtor(s).ADVERSARY NO.: 2:09-AP-01433-BRNOTE: 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 JOINT STATUS REPORT LOCAL BANKRUPTCY RULE A true and correct copy of the foregoing document described as 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, 2010I 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:kanderson@rutan.com Elissa D. Miller: CA71@ecfcbis.com, MillerTrustee@Sulmeyerlaw.com Susan I. Montgomery:susan@simontgomerylaw.com Penelope Parmes:pparmes@rutan.com United States Trustee:ustpregion16.la.ecf@usdoj.govService information continued on attached pageII. 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 Division5603 Huntinton Drive North Law Office of Susan Montgomery Roybal Federal Building, Ctrm 1668Los Angeles CA 90032 1925 Century Park East 255 E. Temple StreetSuite 2000 Los Angeles, CA 90012 Los Angeles CA 90067 Service information continued on attached pageIII. 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.This form is optional. It has been approved for use by the United States Bankruptcy Court for the Central District of California.January 2009 F 7016-1.1 American LegalNet, Inc. www.FormsWorkflow.com 8. Case 2:09-ap-01433-BR Doc 28 Filed 07/13/10 Entered 07/13/10 17:13:53 Desc Main DocumentPage 8 of 9 Joint Status Report - Page 8F 7016-1.1 Service information continued on attached pageI declare under penalty of perjury under the laws of the United States of America that the foregoing is t...