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December 17, 2010
LOUISE PEIRONA ET AL., PLAINTIFFS AND APPELLANTS,v.TMT ASSOCIATES, LLC ET AL., DEFENDANTS AND RESPONDENTS.
(Alameda County Super. Ct. No. HG09429443)
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case arises from related litigation over ownership and income distribution rights of TMT Associates, LLC (TMT), a single asset real estate holding limited liability company. Kiet Nguyen (Nguyen) was one of two members of TMT, and the other was Thomas Peirona. Thomas Peirona died suddenly in 2005, and his estate and his surviving spouse, Louise Peirona (Peirona; collectively Plaintiffs), sued Nguyen claiming entitlement to distributions from TMT's income (the San Mateo County Litigation). (Peirona v. Nguyen et al. (Super. Ct. San Mateo County, 2005, No. CIV445795).)
In the San Mateo County Litigation, the trial court issued a preliminary injunction limiting Nguyen's use of TMT funds and the claims were referred to arbitration under the terms of TMT's Operating Agreement, with a stipulation that the injunction would remain in effect until the arbitration was concluded. While arbitration was pending, the commercial property owned by TMT went into foreclosure and Nguyen, acting on behalf of TMT, signed an agreement to reinstate financing (Loan Reinstatement Agreement) with TMT's lender that Plaintiffs alleged violated the terms of the injunction and stipulation.
In this action, Plaintiffs sued TMT and its attorney, David L. Andersen (collectively Defendants), alleging they wrongly induced Nguyen to sign the Loan Reinstatement Agreement in violation of the injunction in the San Mateo County Litigation. The trial court struck the complaint as a strategic lawsuit against public participation (SLAPP),*fn1 finding it arose from Defendants' protected litigation activities and that Plaintiffs had not established a probability of prevailing on the merits. We affirm. We also impose sanctions against Plaintiffs and their counsel for pursuing a frivolous appeal.
On January 7, 2009, Peirona, as an individual and the surviving spouse of Thomas Peirona, and Joseph Della Santina, as administrator of Thomas Peirona's estate, filed the complaint in this matter against Defendants. The complaint made the following allegations.
TMT was formed in 1996 by Nguyen and Thomas Peirona. Its sole asset is commercial property located at 150 Industrial Road, San Carlos, California (the Property). Under the TMT Operating Agreement and subject to certain limitations, Nguyen and Thomas Peirona were respectively entitled to 51 percent and 49 percent distributions of TMT's net income. However, Nguyen took far greater distributions than his proportionate share. After Thomas Peirona's death in February 2005, Peirona succeeded to his economic interest in TMT and attempted to obtain monthly distributions from the company, a return of excessive money taken from TMT by Nguyen, and an accounting of TMT. When her efforts were unsuccessful, Peirona sued Nguyen in San Mateo County Superior Court in March 2005.*fn2
The parties entered into a written stipulation later incorporated into a stipulated amended preliminary injunction that was filed January 6, 2006 (January 6, 2006 Preliminary Injunction). The January 6, 2006 Preliminary Injunction permitted Nguyen to make four specified expenditures of TMT funds, required him to obtain Peirona's consent before making any other expenditures, and provided that TMT's net income be distributed 51 percent to Nguyen and 49 percent to Peirona. "In consideration for the requirements set forth [in the January 6, 2006 Preliminary Injunction], [P]laintiffs agreed to arbitrate the claims" raised in the San Mateo County Litigation. Plaintiffs alleged that the stipulated January 6, 2006 Preliminary Injunction was a "contract" between them and Nguyen.*fn3
TMT had been in default on a loan with Wachovia Bank (Lender) secured by the Property since about October 2004. In April 2007, the parties in the San Mateo County Litigation stipulated to the appointment of a receiver for TMT, which constituted an additional default event under the loan documents. Nevertheless, Lender "forebore these defaults and continued to receive mortgage payments from [TMT], albeit with superinflated interest rates and additional fees . . . ." TMT failed to pay off the loan balance by its December 11, 2007 due date, and in April 2008, Lender filed a foreclosure action in San Mateo County (the Foreclosure Action; CSFB 1997-C2 1515 Industrial Way LP v. TMT Associates, LLC et al. (Super. Ct. San Mateo County, 2008, No. CIV 472342)). In the Foreclosure Action, Lender requested appointment of a new receiver, but "the hearing thereon was continued numerous times in return for [TMT's] agreement to pay all of the monthly rent proceeds from the [mortgaged property] to [Lender]. [Peirona's] consent for such an agreement was never sought nor did she agree to such an arrangement." On August 1, 2008, TMT signed the Loan Reinstatement Agreement with the Lender, requiring TMT to pay all of its monthly rental income from the Property to Lender. Peirona's consent for that agreement was never sought nor obtained. Peirona had received an average of $20,000 per month under the terms of the January 6, 2006 Preliminary Injunction, but she stopped receiving distributions after February 2008.
In their complaint, Plaintiffs alleged causes of action against TMT for inducing breach of contract and intentional interference with contractual relations, on the theory that Nguyen's execution of the Loan Reinstatement Agreement was a violation of "the stipulated preliminary injunction/contract," apparently referring to both the January 6, 2006 Preliminary Injunction and the June 6, 2006 Stipulation. They also sued Andersen for breach of fiduciary duty. Plaintiffs alleged that Andersen owed a fiduciary duty to Nguyen as TMT's sole remaining member and to Peirona as an "economic interest holder" in TMT. Plaintiffs alleged that Andersen breached his fiduciary duty to TMT by inducing Nguyen to breach his contract with them; causing TMT to interfere with performance of that contract; agreeing to the distribution of all of TMT's monthly income to Lender without Peirona's consent; and executing the Loan Reinstatement Agreement without Peirona's consent.
Defendants filed a special motion to strike the complaint as a SLAPP pursuant to Code of Civil Procedure section 425.16.*fn4 They argued that Plaintiffs' claims arose from Defendants' "settling a lawsuit brought against TMT by a third party[,] . . . [i.e.,] the exercise of constitutionally protected rights of speech and petition in connection with a judicial action." Defendants argued that "Plaintiffs complain of the litigation tactics involved in that lawsuit and the advice given to TMT and its manager, [Nguyen], by TMT's attorney regarding the decision to effect a settlement of that suit. This is speech and petition [activity] which arises from a judicial proceeding and is protected." They also argued Plaintiffs could not establish a probability of prevailing on the merits because Defendants' conduct was protected by the litigation privilege (Civ. Code, § 47) and in any event did not give rise to any valid legal claim. Andersen separately argued that Plaintiffs had offered no legal theory or evidence to establish that he owed them a fiduciary duty.
The trial court granted the motion to strike, stating "Defendants have met their initial burden of demonstrating that Plaintiffs' Complaint contains causes of action arising from an act in furtherance of Defendants' right of petition or free speech. [Citation.] Moreover, Plaintiffs have failed to establish a probability that they will prevail on their claims. [Citation.]." The court dismissed the action and awarded Defendants' attorney fees pursuant to section 425.16, subdivision (c).
A. Anti-SLAPP Motion to Strike
Plaintiffs argue that the trial court erred by striking their complaint pursuant to the anti-SLAPP statute.
Section 425.16, the anti-SLAPP statute, provides in relevant part: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
"[T]he Legislature enacted section 425.16 in an effort to curtail lawsuits brought primarily 'to chill the valid exercise of . . . freedom of speech and petition for redress of grievances' and 'to encourage continued participation in matters of public significance.' (§ 425.16, subd. (a).) . . . The goal is to eliminate meritless or retaliatory litigation at an early stage of the proceedings. [Citations.] The statute directs the trial court to grant the special motion to strike 'unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.' (§ 425.16, subd. (b)(1).)" (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1395-1396, fn. omitted (Gallimore).)
"The statutory language establishes a two-part test. First, it must be determined whether the plaintiff's cause of action arose from acts by the defendant in furtherance of the defendant's right of petition or free speech in connection with a public issue. [Citation.] 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e).' [Citation.] Assuming this threshold condition is satisfied, it must then be determined that the plaintiff has established a reasonable probability of success on his or her claims at trial. . . . [¶] . . . Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both legal questions which we review independently on appeal. [Citations.]" (Gallimore, supra, 102 Cal.App.4th at p. 1396.) The statute provides that section 425.16 "shall be construed broadly." (§ 425.16, subd. (a).)
Under the statute, the party moving to strike a cause of action has the initial burden to show that the cause of action arises from an act in furtherance of the moving party's right of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) Once that burden is met, the burden shifts to the opposing party to demonstrate the probability that it will prevail on the claim. (§ 425.16, subd. (b)(1); Equilon, at p. 67.) An appellate court independently reviews whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) We consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based," accepting as true the allegations and evidence of the nonmoving parties except insofar as the moving party's evidence defeats them as a matter of law. (§ 425.16, subd. (b)(2); Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1267, fn. 2 (Hylton).)
1. Whether Claims Arise from Protected Activity
Defendants contend that Plaintiffs' claims are based on their conduct in settling the Foreclosure Action,*fn5 and therefore fall under section 425.16, subdivision (e)(2), which includes statements made in connection with civil court litigation. (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 4-5.) "Litigation is activity protected by the speech and petition clauses." (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 449, citing Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 (Jarrow Formulas).)
Cases construing section 425.16, subdivision (e)(2) hold that "a statement is 'in connection with' litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation." (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266, fn. omitted; see also Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908 [courts have adopted "a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16"].) Protected activity may include investigating a claim or sending a prefiling demand letter when litigation is seriously anticipated,*fn6 filing a lawsuit or counterclaim,*fn7 making arguments to the court during a lawsuit,*fn8 commenting about litigation in public or private,*fn9 and negotiating a settlement.*fn10
That the factual basis for a legal claim involves litigation, however, does not automatically bring the claim within the protections of section 425.16. The claim must arise from the protected activity to merit anti-SLAPP protection. "[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been 'triggered' by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. [Citations.]" (Navellier, supra, 29 Cal.4th at p. 89.) Thus, "we disregard the labeling of the claim [citation] and instead 'examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies' . . . . [Citation.] We assess the principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim.' [Citation.]" (Hylton, supra, 177 Cal.App.4th at p. 1272.)
Plaintiffs concede that Defendants' communications and conduct in response to the Foreclosure Action constitute protected activity under the anti-SLAPP statute. Nevertheless, they insist that the gravamen of their complaint arose out of the legal obligations created in the San Mateo County Litigation, and therefore are not subject to SLAPP protections. They are wrong.
Two recent cases have held that lawsuits arising from a defendant's acts in settling litigation were SLAPP suits. In GeneThera, a plaintiff sued multiple defendants who were represented by joint counsel. (GeneThera, supra, 171 Cal.App.4th at p. 905.) Plaintiff's counsel offered to settle the action as to one defendant alone, and the remaining defendants countersued, alleging the separate settlement offer constituted intentional interference with contractual relations among the defendants and an unethical attempt to create a conflict of interest among the defendants. (Id. at p. 906.) The court held the "communication of an offer to settle the ongoing lawsuit" was protected activity and the claim was subject to a motion to strike. (Id. at p. 908.) The gravamen of the suit was that plaintiff's choice of how to prosecute the action (a direct exercise of the right to petition) harmed the other defendants' positions in the lawsuit. That the alleged harm was itself related to the litigation helped to demonstrate that the litigation context was not merely incidental to the claims.
In Seltzer, a case recently decided by this court, a homeowner's association sued a homeowner for trespass and failure to pay assessment fees. (Seltzer, supra, 182 Cal.App.4th at p. 958.) The homeowner's insurer provided a defense subject to a reservation of rights on the ground that the assessment claims were not covered by the homeowner's insurance policy. (Id. at p. 959.) The insurer then negotiated a separate settlement of the trespass claims. (Ibid.) The homeowner sued the insurer, alleging it had colluded with the homeowner's association to settle the trespass claims so the insurer could deny the homeowner a defense on the assessment claims. (Ibid.) This court held that the homeowner's claim was based on the "communication of an offer to settle and the content of the offer" and thus fell within the protection of the anti-SLAPP statute. (Id. at p. 963.) As in GeneThera, the gravamen of the complaint was that the insurer's choice of how to prosecute the action (a direct exercise of its right to petition) harmed the plaintiff's own position in the litigation.
The cases relied upon by Plaintiffs are distinguishable. In Martinez v. Metabolife Internat., Inc., a product liability defendant sought anti-SLAPP protection on the ground that its labeling and advertising of the product (which were referenced in the complaint) were communications made in connection with an issue of public interest and constituted commercial speech protected by the First Amendment. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 184-185, 187.) The Court of Appeal held the action was not covered by the anti-SLAPP statute because the defendant's "commercial speech, although mentioned in the complaint, is largely unrelated to and entirely distinct from the wrongful, injury-causing conduct . . . on which the Plaintiff's claims are premised," which was that the defendant's product caused the plaintiff to suffer a stroke. (Id. at pp. 184, 188.) "[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation] and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on non-protected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute." (Ibid.) Similarly, in Episcopal Church Cases, the Supreme Court denied anti-SLAPP protection where, "[a]lthough protected activity arguably lurks in the background of this case, the actual dispute concerns property ownership rather than any such protected activity." (Episcopal Church Cases (2009) 45 Cal.4th 467, 473.)*fn11
There is no question here but that Plaintiffs seek to impose liability on Defendants for their conduct in settling the Foreclosure Action. They allege that TMT, acting "[b]y and through its attorney," obtained the dismissal of the Foreclosure Action by inducing and causing Nguyen to sign the Loan Reinstatement Agreement. The gravamen of Plaintiffs' claims is that TMT and its attorney (Andersen) took actions to resolve TMT's own legal proceedings and as a result impaired Plaintiffs' alleged contractual right arising from stipulations with other parties in related litigation. Plaintiffs' claims are clearly within the scope of section 425.16, subdivision (e)(2).
2. Whether Plaintiffs Have Established a Probability of Prevailing
In order to establish a probability of prevailing for purposes of section 425.16, subdivision (b)(1), " 'the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' [Citations.]" (Navellier, supra, 29 Cal.4th at pp. 88-89.) "A plaintiff opposing an anti-SLAPP motion bears the burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor. [Citations.] Anti-SLAPP motions must be supported (and opposed) by declarations stating facts upon which the liability or defense is based. (§ 425.16, subd. (b).)" (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 211-212 (HMS Capital).) " '[S]section 425.16 is analogous to other statutes requiring the plaintiff to make a threshold showing, which are aimed at eliminating meritless litigation at an early stage.' [Citations]." (Id. at p. 211.) "In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.]" (Id. at p. 212.) We conclude, as did the trial court, that Plaintiffs have failed to establish a probability of prevailing on the merits of their claims.
Defendants contend, among other things, that their alleged conduct cannot provide the basis for liability because it is protected by the litigation privilege of Civil Code section 47, subdivision (b) as a matter of law.*fn12 The principal purpose of the Civil Code section 47 litigation privilege " 'is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]' [Citation.] The privilege promotes effective judicial proceedings by encouraging ' "open channels of communication and the presentation of evidence" ' without the external threat of liability. [Citation.] The litigation privilege 'further promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests.' [Citation.] 'Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result. [Citations.]' [Citation.]" (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 23.) " 'Although originally enacted with reference to defamation actions alone [citation], the privilege has been extended to any communication, whether or not it is a publication, and to all torts other than malicious prosecution. [Citations.] Thus, the privilege has been applied to suits for fraud [citations], negligence and negligent misrepresentation [citation], and interference with contract [citation].' [Citation.]" (Ibid., italics added.)
"[T]he litigation 'privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]' [Citation.]" (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1058.)
Each of these four elements is satisfied here. All of Plaintiffs' causes of action rest on assertions that TMT and Andersen, participants in the Foreclosure Action, importuned Nguyen to execute and deliver the Loan Reinstatement Agreement for the purpose of settlement of that litigation. Whatever liability, if any, Nguyen may have incurred by doing so, the litigation privilege bars Plaintiffs' claims as to Defendants in this action as a matter of law.
In light of our determination that the litigation privilege precludes the claims Plaintiffs seek to pursue here, it would normally not be necessary to address the other bases Defendants advance in arguing that Plaintiffs could not prevail on the merits. We do so briefly since they are relevant to Defendants' contention that this is a frivolous appeal.
Plaintiffs' third cause of action is a claim of breach of fiduciary duty by Andersen. They cite Corporations Code section 17304 to argue they have economic interests in TMT, but they cite no authority that such an interest creates a fiduciary duty between them and TMT's counsel. " '[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law. [Citations.]' [Citations.]" (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 632.) Plaintiffs never explain why Andersen owed them a fiduciary duty, nor have they produced evidence or authority to support the existence of such a duty or a breach thereof. They therefore failed to establish even a prima facie claim against Andersen on this basis in the trial court, and offer no authority or reasoned argument for their position here.
Their claims against TMT allege interference with a contract between Plaintiffs and Nguyen, namely the January 6, 2006 Preliminary Injunction and the June 6, 2006 Stipulation in the San Mateo Litigation. Even if these claims were not barred by the litigation privilege, to prevail on these causes of action, Plaintiffs would necessarily have to establish the existence of Nguyen's contractual obligations to them under the stipulation--a theory expressly rejected by the trial court in the San Mateo County Litigation, and which we reject in our concurrent decision in Peirona et al. v. Nguyen et al., supra, A126551.*fn13
Plaintiffs' contract theory depends on their having provided valuable consideration for Nguyen's promises in the stipulations. Plaintiffs argue that they provided consideration for the June 6, 2006 Stipulation by voluntarily agreeing to submit their claims to arbitration. However, other than bare and unsupported pleading allegations, Plaintiffs never explain why their agreement to arbitrate their claims was voluntary, since there is clear language in the Operating Agreement and in Peirona's consent to the terms of the TMT Operating Agreement that requires all disputes related to the agreement be submitted to binding arbitration. Plaintiffs similarly failed to produce any evidence that they provided valuable consideration for Nguyen's promises in the June 6, 2006 Stipulation, thus rendering it a binding contractual obligation. They thus failed to make the necessary threshold showing to establish even a prima facie meritorious case.
Because Plaintiffs have not established a probability of prevailing on any of their claims, all of which arise from Defendants' protected activity, we affirm the trial court's order striking their complaint as a SLAPP.
B. Motions for Sanctions
TMT and Andersen have requested sanctions against Plaintiffs for prosecuting an appeal that is frivolous and filed for improper purposes. We further consider whether to impose sanctions payable to the clerk of this court for filing a frivolous appeal, and for Plaintiffs' violations of appellate court rules. We notified Plaintiffs that we were considering imposing sanctions and Plaintiffs filed a brief arguing that sanctions are not warranted. (See Cal. Rules of Court, rule 8.276(c), (d).)
Section 907 provides, "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." Rule 8.276 of the California Rules of Court similarly provides that the court may impose sanctions on a party or an attorney for "[t]aking a frivolous appeal or appealing solely to cause delay," as well as for "[c]omitting any other unreasonable violation of these rules." (Cal. Rules of Court, rule 8.276(a)(1), (4).) The California Supreme Court has held that an appeal is frivolous "only when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
1. Whether Sanctions are Warranted
We conclude sanctions are warranted for pursuing a frivolous appeal. Plaintiffs sued TMT and Andersen for conduct facially protected under the SLAPP statute--settlement of litigation. They provided no persuasive argument or authority in support of their position in either the trial court or before this court. Even if we were to accept, however, that Plaintiffs' arguments on the first prong of the SLAPP analysis were not completely meritless, their arguments under the second prong of the anti-SLAPP analysis--i.e., their argument regarding the merit of their claims--are clearly frivolous.
We have found, for the reasons discussed above, that Plaintiffs' claims are barred as a matter of law by the litigation privilege. In addition, Plaintiffs have never articulated, or even attempted to articulate, a reason why they were not compelled to submit their claim to arbitration under the Operating Agreement. As their contract theory of the June 6, 2006 Stipulation depended on their voluntary submission to arbitration in exchange for a promise that the January 6, 2006 Preliminary Injunction stay in effect, and their claims against TMT in this action involve interference with this alleged contract, Plaintiffs in effect prosecuted this action based on a legal theory they never fully articulated and that was patently without foundation. Indeed, the theory is directly contradicted by evidence within the appellate record. Any reasonable attorney would conclude that Plaintiffs' relentless pursuit of this unsupported theory was frivolous.
As to Andersen, Plaintiffs have never articulated any supportable theory of why he had a fiduciary duty to them, either as an issue of fact or as a matter of law, or how he breached that duty. They barely even address this argument in their opening brief, and they do not address it all in their reply brief, even though Andersen discussed the issue in his separately-filed respondent's brief.
Finally, the apparent lack of effort Plaintiffs put into their opposition to the motion in the trial court and this appeal suggests a lack of faith in the merits of their arguments and an improper purpose in bring the appeal. Starting in the trial court, Plaintiffs untimely filed and served their opposition to the motion to strike and on the merits completely misconstrued the argument the Defendants made in their moving papers.*fn14 On appeal, they misrepresent the procedural history, incorrectly stating that Andersen did not file a respondent's brief, and misrepresent the trial court record, incorrectly stating that the San Mateo County Superior Court denied Plaintiffs' motion to set aside the Loan Reinstatement Agreement "because the parties to the [Loan] Reinstatement Agreement were not before the court as parties in the action." (Bolding omitted.) In fact, the trial court denied that motion (insofar as it claimed the Loan Reinstatement Agreement violated the June 6, 2006 Stipulation) because Plaintiffs had "produce[d] no competent showing as to . . . [a] need" for distributions under the June 6, 2006 Stipulation and January 6, 2006 Preliminary Injunction, and the "reinstatement agreement save[s] the parties about $400,000." Further, Plaintiffs did not support their core arguments with legal argument applying legal principles to the particular facts of the case on appeal. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)
Defendants have also produced evidence that more directly demonstrates that Plaintiffs acted with an improper purpose in opposing their motion to strike and prosecuting this appeal. Andersen avers that in the San Mateo County Litigation, Plaintiffs' counsel (the same counsel representing Plaintiffs in this action) expressly threatened to report Nguyen to the Internal Revenue Service for criminal prosecution of tax evasion unless Nguyen agreed to forfeit a favorable arbitration ruling. Moreover, Plaintiffs' counsel told Andersen he intended to keep filing motions in the San Mateo court until Nguyen "gave up and agreed to a settlement on [Plaintiffs' counsel's] terms," even if TMT lost the Property as a result. Plaintiffs do not dispute these averments or provide declarations of their own in opposition to the sanctions motions.
Defendants also cite evidence that Plaintiffs filed and maintained this action for the improper purpose of attempting to create a conflict of interest between TMT and Andersen, thus disrupting TMT's defense in the arbitration proceeding. After three unsuccessful attempts to delay a January 7, 2009 arbitration hearing in the San Mateo County Litigation, Plaintiffs' counsel served TMT and Andersen with the complaint in this action at the outset of the January 7 hearing and argued to the arbitrator that the lawsuit created a conflict of interest between TMT and Andersen, and that Peirona's consent was required for any waiver of the conflict. The arbitrator allowed the hearing to proceed. These events tend to support Defendants' contention that at the time Plaintiffs filed this action they were seeking to delay resolution of the arbitration proceeding, and the filing of this action was part of that campaign.
Plaintiffs argue that Defendants' accusations of harassment, even if true, relate only to the San Mateo County Litigation and do not establish that Plaintiffs' prosecution of this action or appeal is for a harassing purpose. However, the substantive frivolousness of the appeal (e.g., Plaintiffs' complete failure to explain why their agreement to arbitrate their claims was voluntary and thus constituted consideration for the June 6, 2006 Stipulation, or to explain why Andersen owed them a fiduciary duty or breached such duty) and the careless quality of the Plaintiffs' appellate briefs by themselves support an inference that Plaintiffs brought the claim for an improper purpose. (See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32 (Pierotti) [given "appellate counsels' utter failure to discuss the most pertinent legal authority . . . and their preparation of a grossly inadequate record, we conclude they . . . subjectively prosecuted the appeal for an improper purpose"].) The evidence that these matters were part of a pattern of harassing conduct in the closely related San Mateo County Litigation bolsters that inference. Plaintiffs argue that their appeal logically could not have been brought for purposes of delay because "it is an appeal from the dismissal of an action brought against respondent TMT." (Bolding omitted.) However, the appeal delays finality of the litigation, and there is a strong inference that Plaintiffs have used delaying tactics in an effort to maintain negotiating leverage with Nguyen and Defendants.
2. Amount of Sanctions
In determining the amount of a monetary sanction, we may consider "the amount of respondent's attorney fees on appeal; the amount of the judgment against appellant; the degree of objective frivolousness and delay; and the need for discouragement of like conduct in the future. [Citation.]" (Pierotti, supra, 81 Cal.App.4th at pp. 33-34.) Greater sanctions are warranted where sanctions are imposed on more than one ground, for example for the filing of a frivolous appeal as well as for repeated violations of appellate court rules. (Id. at p. 33.)
TMT and Andersen seek sanctions in amounts equal to the attorney fees they incurred on appeal (including fees incurred in prosecuting the motions for sanctions), to be imposed in addition to the attorney fee awards they are entitled to receive as prevailing parties on the anti-SLAPP motion. They argue that there will be no deterrent effect on Plaintiffs or their counsel if Plaintiffs must pay only the amounts that they would otherwise be responsible for on an unsuccessful appeal under section 425.16, subdivision (c), and that counsel would thereby escape any personal liability, despite his greater responsibility.
We agree that for any sanctions to be meaningful, there must be a cost to both Plaintiffs and their counsel. Plaintiffs' counsel, A.K. Abraham, had a professional duty to raise only non-frivolous arguments on appeal and to comply with the rules of the appellate court and breached that duty. (See Pierotti, supra, 81 Cal.App.4th at pp. 36-37; Keitel v. Heubel (2002) 103 Cal.App.4th 324, 342-343; Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1433-1434; In re Marriage of Economou (1990) 223 Cal.App.3d 97, 106; Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102-1103.) Plaintiffs themselves are not blameless, for they initiated the appeal and benefited from the delay in finality of the arbitration award. (See Pierotti, at p. 37.) Therefore, we will impose sanctions against both Plaintiffs and their counsel, Mr. Abraham, who shall be jointly and severally liable for paying the sanctions.
We are not convinced, however, that doubling Defendants' actual fees and costs is necessarily the appropriate measure of sanctions. We therefore impose a monetary sanction of $15,000 in favor of each Defendant, jointly and severally against both Plaintiffs and their counsel, A.K. Abraham.
We also impose sanctions payable directly to the clerk of this court. "Because a frivolous appeal, or one taken for improper reasons, harms the court, not just the respondent, a growing number of courts are ordering appellants to pay sanctions directly to the court clerk to compensate the state for the cost of processing such appeals. [Citations.]" (Pierotti, supra, 81 Cal.App.4th at p. 35.) A 2008 case cites a cost analysis by the clerk's office for the Second Appellate District that estimated the cost of processing an appeal that results in an opinion by the court to be approximately $8,500. (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 520; see also Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1163-1164 [relying on that cost analysis to set amount of sanctions payable to the court].)*fn15 We conclude that a sanction of $8,000 is appropriate to reimburse the state for the costs of this appeal.
The aforementioned sanctions are reasonable in light of the multiple grounds for the sanctions award in this appeal and the "particular need to discourage like conduct in the future because this appeal was taken from a judgment confirming an arbitration award. . . . By filing a frivolous appeal from a judgment confirming an arbitration award a party defeats the very purpose of the arbitration process. [Citation.]" (Pierotti, supra, 81 Cal.App.4th at pp. 34-35.)
The judgment is affirmed. On remand, the trial court shall determine the amount of attorney fees due to TMT and Andersen under section 425.16, subdivision (c). Plaintiffs shall pay the additional sums of $15,000 to TMT and $15,000 to Andersen as sanctions. Plaintiffs shall also pay $8,000 to the clerk of this court as sanctions for bringing this frivolous appeal and for unreasonably violating the California Rules of Court. Plaintiffs' counsel, A.K. Abraham, shall be jointly and severally liable with Plaintiffs to pay the aforementioned sanctions to TMT, Andersen and the clerk of this court.
Sanctions payable to the court shall be paid no later than 15 days after the date the remittitur is filed. The clerk of this court is directed to deposit the sanctions received in the court's general fund. Abraham and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur. (Bus. & Prof. Code, §§ 6086.7, subd. (a)(3), 6068, subd. (o)(3); Pierotti, supra, 81 Cal.App.4th at pp. 37-38.) TMT and Andersen are awarded their costs on appeal.
We concur: Jones, P. J. Simons, J. A126790
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Distances are calculated in a straight line and may not reflect actual travel distance.
It is important to note that this mortgage calculator is for guidance purposes only. Mortgage lenders have their own affordability criteria therefore it is important you speak to one of our Mortgage Advisers for further information and a more accurate indication of what products may be available to you and what your monthly mortgage payments are likely to be.
This property is part of our Chain Free Property promotion.
For sale with no onward chain is this five bedroom terrace house. The ground floor comprises of a lounge, dining room and kitchen with utility area. To the first floor are three bedrooms, family bathroom and a cloakroom. To the second floor are two further double bedrooms with a four piece en-suite. To the rear is a courtyard area which doubles up as a parking area if needed.
Contact branch for relevant Energy Performance Certificate
Entrance via obscure double glazed door from the front. Wall mounted cupboard with electric breaker box. Obscure glazed door to the ground floor hallway.
Wall mounted radiator. Stairs rising to the first floor. Wall mounted temperature control for the central heating. Doors to all ground floor rooms.
(Maximum measurements) two double glazed windows to the front aspect. Feature art deco style fireplace. Television aerial point. Picture rail. Ornate coving. Wall mounted radiator.
Double glazed window to the rear aspect. Wall mounted radiator. Picture rail. Art deco style tiled fireplace. Recess storage cupboards. Service hatch to the kitchen area.
(Measurements include the utility section) range of matching base and eye level units with roll top work surfaces over. Inset one and half bowl stainless steel sink and drainer. Inset four burner gas hob with canopy over. Inset electric oven and grill set to eye level height. Double glazed window to the rear aspect. Pantry cupboard. Utility section featuring a wall mounted boiler. Space and plumbing for a washing machine and dishwasher. Roll top work surface. Obscure double glazed door leading to the rear of the property.
Split level landing with stairs rising to the second floor. Loft access. All doors to
Double glazed window to the rear aspect. Wall mounted radiator. Vanity sink with cupboard under.
Double glazed window to the front aspect. Wall mounted radiator. Closed fireplace.
Two double glazed windows to the front aspect. Wall mounted radiator.
Fitted with a low level flush WC. Obscure double glazed window to the side aspect.
Four piece suite comprising of a low level flush WC, wash hand basin, corner bath and inset shower cubicle. Tiled walls. Obscure double glazed window to the rear side aspect.
Dog leg staircase from the first floor landing. Loft access. Door to
(Maximum measurements) double glazed window to the front aspect. Wall mounted radiator. Wall mounted combination boiler which supplies the domestic hot water and central heating for the second floor only. Inset sink and drainer. Eaves storage cupboards. Skylight to the front aspect. Television aerial point. Door to
(Maximum measurements) double glazed window to the rear aspect. Wall mounted radiator. Eaves storage. Door to the en-suite.
Four piece suite comprising of a scalloped bath, inset shower cubicle with tiled surround, wash hand basin and low level flush WC. Wall mounted radiator. Tiled walls. Skylight.
To the rear of the property is a block paved courtyard area which features a metal roller door. It is possible to fit a vehicle in this area or use it as a courtyard garden. A storage shed (previously would have been used as a coal store) is situated in the courtyard.
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subset: commoncrawl


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What do we do what we find ourselves in a winning position in a match? Most make two errors. They focus on the outcome of winning the match and they defend their lead. Both of these two things have catastrophic results!
There are many many examples even at an elite level Web players have started thinking about the end of the match. Things like shaking hands, shaking the umpire's hand, photos with the trophy, people to think in their speech etc.
Thinking about the outcome and defending your lead a common symptoms when winning a match. There are processes and strategies you can execute to ensure you see the match to its completion as the winner.
Read the full article at http://playtennistowin.com/blog


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WOODBURY - A Woodmere man was arrested on drug charges after a traffic stop upstate.
State police say 21-year-old Mohammad Sadique was pulled over Friday morning for driving 60 miles per hour in a 30 mile per hour zone.
That's when they say troopers spotted marijuana and LSD in Sadique's car.


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BitTorrent announces peer-to-peer video streaming app
You'll soon be able to stream live video with your smartphone using a type of BitTorrent. Last year, BitTorrent Live was launched as a way to broadcast and stream live video for free. It's only been on the desktop for now, but BitTorrent says that a mobile app is in the works for later this year — though it doesn't say what platforms it might debut on or whether the app will allow for just broadcasting, just viewing, or both.
BitTorrent today announced plans to introduce the first Alpha product based on its Live P2P streaming technology: a new mobile streaming application coming later this year. Unfortunately, the company wouldn't offer any more details beyond "The first app built using BitTorrent Live distributed technology will bring P2P broadcast to mobile devices." Back in March 2013, BitTorrent released the Live P2P streaming protocol as a beta experiment with the motto: "Live streaming by the people, for the people." It's built to remove streaming barriers like bandwidth, cost, and infrastructure, and actually becomes more resilient as more people tune in. With smartphone shipments on the rise, a mobile solution makes sense as a first test for the protocol.


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Music Gear News
N.E.R.D's female concentration
N.E.R.D drew inspiration for their new album from the female form.
The 'Lapdance' hitmakers - who formed after initially producing tracks for other artists - revealed they felt women were the "sweetest spot" for them to concentrate on when penning material for new record 'Nothing'.
Frontman Pharrell Williams told MTV News: "Women are essential to life on this planet. They just hold a very sacred place, they always have for me. My taste and appetite for women has been clearly evident in my music and my videos. We just felt like that was the sweetest spot for us to concentrate on."
However, the rapper-and-singer insisted that while the record may be primarily about women, it doesn't mean men won't enjoy it.
He said: "Just because the concept of the album is us having a conversation with women at a roundtable, it doesn't mean that that's what the audience is about.
"This album is meant and intended to inspire humans. Man, woman, whatever you are. If you can find something positive in here that motivates you, then this album is for you."Posted on 21 Jul 2010 16:30 to category : Band / Celebrity News
Related Music News
Laying the foundations for generations of artists to follow, the legendary musician Leonard Cohen has passed away from unspecified causes.
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Speaking to friend and radio host Eddie Trunk Frehley stated that he would rejoin the band if the offer came his way
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A limited time edition of the Akai MPK Mini MK 2, the white equivalent operates as an eye catching alternative that looks as good as it sounds.


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Pimsleur Russian Level 2 MP3
Learn to Speak and Understand Russian with Pimsleur Language Programs
- Format: MP3 ( Also available in: CD )
- Lessons: 30
- Availability: In Stock: Available for immediate download
List Price: $119.95
Free Audio Lesson
Learn a new language while commuting, while cleaning the house, or working out. Like millions before you, discover the power of the scientifically sequenced and portable Pimsleur Method.
Includes 30 lessons and reading instruction as MP3 download (16 hrs), plus a Reading Booklet and User's Guide
The Easiest and Fastest Way to Learn Russian
Whether you want to travel, communicate with friends or colleagues, reconnect with family, or just understand more of what's going on in the world around you, learning Russian will expand your horizons and immeasurably enrich your life.
The best part is that it doesn't have to be difficult or take years to master. Thirty minutes a day is all it takes, and we get you speaking right from the first day. Pimsleur courses use a scientifically-proven method that puts you in control of your learning. If you've tried other language learning methods but found they simply didn't stick, then you owe it to yourself to give Pimsleur a try.
Why Pimsleur?
- Quick + Easy – Only 30 minutes a day.
- Portable + Flexible – Core lessons can be done anytime, anywhere, and easily fit into your busy life.
- Proven Method – Works when other methods fail.
- Self-Paced – Go fast or go slow – it's up to you.
- Based in Science – Developed using proven research on memory and learning.
- Cost-effective – Less expensive than classes or immersion, and features all native speakers.
- Genius – Triggers your brain's natural aptitude to learn.
- Works for everyone – Recommended for ages 13 and above.
What's Included?
- 30, 30-minute audio lessons
- 60 minutes of reading instruction to provide you practice reading Russian
- In total, 16 hours of audio, all featuring native speakers
- a Reading Booklet and User's Guide
What You'll Learn
Builds upon skills taught in Pimsleur's Russian Level 1.
In the first 10 lessons you'll begin using the past tense. Structures become more complex and informal speech is introduced. Soon you'll take part in conversations about ordering meals, shopping, and local tourist attractions. As you progress, your fluency will increase as your vocabulary expands.
The next 10 lessons will allow you to further combine and build upon known elements, and produce longer and more complex sentences. You'll be discussing business and social activities, expressing your interests, and talking about the weather.
In the final 10 lessons you'll double your vocabulary and have several hundred structures to draw upon. You'll learn to express yourself with relative structures – faster, slower, etc. You'll be able to ask for assistance in many situations and to ask for directions to various locations. You'll explore sports and leisure activities, manage changing money and banking, and discuss travel plans. By the end of the program, you'll be speaking at a mid-intermediate level with near-native pronunciation, and you'll be comfortable meeting most social demands and limited job requirements.
Reading Lessons, which build upon the reading skills acquired in Level 1, are included at the end of Lesson 30. These lessons, which total about one hour, are designed to give you practice reading Russian.
The Pimsleur Method
We make no secret of what makes this powerful method work so well. Paul Pimsleur spent his career researching and perfecting the precise elements anyone can use to learn a language quickly and easily. Here are a few of his "secrets":
The Principle of Anticipation
In the nanosecond between a cue and your response, your brain has to work to come up with the right word. Having to do this boosts retention, and cements the word in your mind.
Core Vocabulary
Words, phrases, and sentences are selected for their usefulness in everyday conversation. We don't overwhelm you with too much, but steadily increase your ability with every lesson.
Graduated Interval Recall
Reminders of new words and structures come up at the exact interval for maximum retention and storage into your long-term memory.
Organic Learning
You work on multiple aspects of the language simultaneously. We integrate grammar, vocabulary, rhythm, melody, and intonation into every lesson, which allows you to experience the language as a living, expressive form of human culture.
Learning in Context
Research has shown that learning new words in context dramatically accelerates your ability to remember. Every scene in every Pimsleur lesson is set inside a conversation between two people. There are no drills, and no memorization necessary for success.
Active Participation
The Pimsleur Method + active learner participation = success. This method works with every language and every learner who follows it. You gain the power to recall and use what you know, and to add new words easily, exactly as you do in English.
The Russian Language
Russian, one of the six official languages of the United Nations, is the official language in Russia, Belarus, Kazakhstan and Krygystan, with an estimated 150 million native speakers around the world. Pimsleur's Russian uses speakers from Moscow and St. Petersburg, which accounts for slight pronunciation differences between speakers, but accurately depicts contemporary spoken Russian.
Tech Talk
- Lessons can be downloaded using the Pimsleur Course Manager App for iPad, iPhone and Android devices, and Mac or Windows computers, or
- Lessons can be downloaded as a zip file for use in iTunes or Windows Media Player.
- All purchased courses are backed up in your Pimsleur.com cloud-based digital library account.
- Lessons can be played on your iPod or any MP3 player.
- The Pimsleur Course Manager App can be installed on several devices for personal use only.
- Lessons are non-DRM (Digital Rights Management) MP3 files and can be copied onto a CD or DVD for playing in a CD/DVD player.
Need Help?
Call us with questions
(800) 831-5497
REVIEWS SUMMARYby PowerReviews
- Easy to use (13)
- It works (13)
- Fun (11)
- Perfects accent (11)
- Portable (10)
- Pricey / poor value (5)
Best Uses
- Self-improvement (11)
- Travel (11)
- Business/work (7)
- Fun (6)
- Family background/heritage (4)
- Reviewer Profile:
- Traveler (7), Business person (5), Student (3)
Reviewed by 13 customers
Displaying reviews 1-5
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- Easy to use
- It Works
- Perfects Accent
- Expensive
- No writing component
Best Uses
- Family background/Heritage
- Self-improvement
- Travel
Comments about Pimsleur Russian Level 2 MP3:
I needed to see it in writing in Cyrillic script. I was forced to do that myself even though that was against the rules. Those who base their understanding only on what they think they hear are being misled. I have almost completed Russian 2 but don't yet understand how all of what I have learned is going to be brought together. I have forgotten a good deal of what I learned in Russian 1 because it is not being adequately incorporated into Russian 2.
Service and delivery comments:
Online delivery was prompt. I appreciated having your 24 hour help desk because I am somewhat of a night owl.
- Easy to use
- Fun
- It Works
- Perfects Accent
- Portable
- Expensive
Best Uses
- Business/Work
- Just for fun
- Self-improvement
- Travel
Comments about Pimsleur Russian Level 2 MP3:
This is the second language I am learning with the Pimsleur program. I have a degree in German and French and was looking for something meaningful to do with the time I spend driving to and from work, (and also to control my road rage). I first learned Spanish and am now learning Russian.
I work as Literacy Coordinator and try to match volunteer tutors with adults who are learning English. Many times people come in to find a tutor and cannot speak any English at all. Thanks to the speediness in learning Spanish, and now Russian, I am able to communicate with these people. It is very easy to listen to a CD over and over until I have it perfectly and then goon to the next CD while driving to and from work or anytime that I am in the car. I could say things to native speakers even after the first CD.
The only drawback that I have had to come to terms with is the price. It is very expensive to buy the whole course. One can find the first half the the first level at a local library, but from there on, one must purchase it to continue. I buy as I need the courses, which I can directly download to my computer. Then I put it on a thumb drive in order to listen in my car.
There is also a booklet to be downloaded where you can practice the Cyrillic alphabet and learn to read and write, but the main thrust is to be able to speak. Listening doesn't automatically teach you how to read or spell words.
I told two of my Russian students that I wanted to purchase the next level of Russian, but was hesitating because of the cost, so they said they could possibly get something for me for free. Two days later they brought me a zipped thumb drive with a complete Russian course. So after I finished the Level 1 Pimsleur course, I popped in their thumb drive. All it contained were vocabulary words spoken by native speakers, one right after the other. There was no context, nothing to help you remember the word. So I bit the bullet and bought Level 2. I am able to speak more and more every day.
I love it! After I finish level 3, I'm considering Mandarin!
- Easy to use
- Fun
- It Works
- Perfects Accent
- Portable
- Expensive
Best Uses
- Business/Work
- Just for fun
- Self-improvement
- Travel
Comments about Pimsleur Russian Level 2 MP3:
I used the program daily and it was very helpful, some aspect of it were not applicable to me but still helpful.
- Easy to use
- Fun
- It Works
- Perfects Accent
- Portable
- Expensive
Best Uses
- Self-improvement
- Travel
Comments about Russian II, Comprehensive:
I utilized the program as instructed, completing one session per day daily. I have completed the first 30 day course of Russian I and have started my second 30 day course of Russian II. I have already reached a level where I can start to build simple sentences that can effectively start to communicate with a Russian speaker. I believe anyone that will put forth the effort to learn a language using this method will learn the the language but more importantly, have the skill level to be able to effective converse with a native speaker.
- Easy to use
- Fun
- It Works
- Portable
Best Uses
Comments about Russian II, Comprehensive:
Displaying reviews 1-5
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Why set your drink down when you can have it hover in midair?... READ ON
Don't try this experiment at home.... READ ON
At one time, making such a suggestion would have gotten a researcher laughed out of the academy. But some modern scientists say it's a real possibility.... READ ON
A study of warthogs and wild boars found that the animals usually aligned their bodies along a north-south axis.... READ ON
A new study suggests that fleeing deer leap along a north-south axis to keep everyone moving safely in the same direction.... READ ON
Marbles fall because of gravity, until they don't.... READ ON
The project combines simple science with homemade goo, resulting some serious hands-on fun.... READ ON
Scientists have discovered a protein complex in several species that aligns itself with magnetic fields.... READ ON
A fun way to combine electromagnets with a fingerprint scanner.... READ ON
Here's the best summer dance video...shot in 1930. Add your own music and enjoy.... READ ON
When asked if Abe had any hobbies, Mary Todd Lincoln said, "Cats."


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Hey, I just met you, and this is Lazy... get these fast finance fixes and mail me, maybe?
Rodan and Fields Statement
|Comment First
The blog post about Rodan + Fields is being removed from the internet pursuant to a negotiated agreement. Other terms of the agreement are confidential, and the owner therefore cannot comment or respond to questions about the agreement or the removal of the website.
This post deals with: ... and focuses on:
Don't forget to these five minute financial fixes to save thousands!


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Hello all, we bought a Honda City 2008 vario in black colour back in 2011.
The thing is that we didn't thoroughly checked the car for repaint etc as it was bought from someone we knew. Anyway, back in 2011 it was in almost new condition with around 12k Km on ODO. Now the main thing is that it was already painted from different sides from a cheap road side painter. The colour has different shades from different sides.
The front has faded, back has changed colour to grey, sides are getting dull and the paint has started to chip from different sides.
We showed it to a denter/painter and he said that the car has been already painted by an inexperience painter. The car now needs full paint job again. Car has also started to get rust from sides. The painter quoted us 35k and he would fully paint the car, remove rust, will do welding etc. Today showed it to another painter in Gizri, Karachi and he quoted us 60k, he said trunk and bumpers will be replaced and will give us 5 year warranty. Please now help me what should I do. From where should I get it painted? Please tell me a shop who is an expert and will do his job properly and it should not be possible to point out that whether it's painted or not.
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The comments section has many good faculty POVs.:
So we did a little brainstorming. Here are some of things that were suggested in the very short time available (10 minutes or so):
Onlinefoundational knowledge (facts, principles, concepts, ideas, vocabulary, etc.)certain kinds of skills such as knowledge management, knowledge navigation, independent learning, creative writingsome elements of clinical practice (e.g. correct procedures, video demonstrations of equipment being used, patient symptoms)
Face-to-facepublic speaking and facilitation skillsconsensus-buildingdecision-makingproblem solvingbuilding a closer relationship with/'humanising' the instructorbody language cues from the instructor about what is really important to him/her in the coursepractical lab skills/operating equipment
Via Terry Calhoun


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La Casa Amiga Bed and Breakfast
No prices found through our partners. Please contact the business directly or check some of our recommended alternatives.
Travelers also looked at:
TripAdvisor Reviews La Casa Amiga Bed and Breakfast Mexico City
Travel Blogs from Mexico City
... we ran some errands in Chinatown and treated ourselves to some more rice dumplings. It is fascinating to see so many people who look Chinese and speak Mexican Spanish. Back on the metro, we studied the picture chart to check how many stops we had to make. The metro stops in Mexico City all have a unique, simple image: a bell, an eagle's head and a cannon to name but a few. Polanco's image is a church. This excellent system is a more complete ...
Travel blog. Entry 31. Mexico part 2
... staircase. It was a peaceful site as not too many tourists make the arduous journey here. After returning by boat to the dock we went to visit Bonampak. There is one major reason people come so far to visit this sight and that's the amazing preserved murals. These colourful paintings give an insight into what the Mayan ruins would have looked like in their hey day. These murals are one of the only remaining examples of their kind in such good condition. They depict scenes of ...
Day Efay
... to get back towards our destination but it still took hours with a tired and getting crankier by the second baby on board. Arriving home gone midnight we wolfed down more tacos and passed out for the night.
Xochimilco, a borough of D.F, is famous for its waterways and brightly coloured boats known as trajineras which carry families, musicians, food sellers and parties up and down the canal system. It was my main reason for returning to Mexico City as I never made it here ...
Vamos Mexico! A week in Mexico City
... on the platform so I try and dance with Hinesh and he is a little embarrassed by me ha ha ha. The trains are still packed at 10pm at night. We get to Zocalo station and I grab a cheeseburger and Hinesh grabs a tamale for a snack on the way home.
Day 4: the alarm goes off at 6am and I roll over to turn it off. We were looking for our NYC apartment late last night and my energy is zapped. Hinesh asks if I want to do the ruins another day and I mumble yes and go back to ...
Diamond head And beer pong
... things u do to save a few dollars. The stops were uneventful Seattle was buzzing with the hype of the Super Bowl play offs. Had some Japanese food and tried to relax the weather looking freezing outside however the city looked really beautiful on landing lots of snow cap mountains I then find out that three people I know live in Vancouver I should of stayed there and visted them oh well next time. The flight to la met a family who ...


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Is this restaurant good for dining on a budget?
Does this restaurant accept reservations?
Is this restaurant appropriate for Kids?
Is this restaurant good for dinner?
Is this restaurant family-friendly?
Are the prices at this restaurant low or inexpensive?
Is this restaurant wheelchair accessible?
Is this restaurant good for brunch?
Does this restaurant offer free wifi?
Does this restaurant offer delivery?
Thanks for helping!
If you enjoy a great meal please go to Pho 81, the Pho is outstanding. I go there with friends, and always have a great meal.
Love this place! Best Pho, awesome if you have a cold or don't feel well. My favorite is the #11 beef and their crispy shrimp rolls, which are in a rice wrapper (so if you're gluten free, like me, this is one of the few places you can have a spring roll you can eat). The staff is very friendly...
My daughter and her friend took my husband and I to our first "pho" experience. It was a cold night and the idea of hot soup sounded great. It did not disappoint. The service was quick and the bowls were large. So large in fact and packed with noodles that we have a second meal now waiting for us in...
We come here every time we are in town visiting relatives. Their Com and Bun dishes are always incredibly delicious. I'm a fan of the lemon grass chicken and the wife enjoys the pork. Their spring rolls are also perfect each time. My brother-in-law and his family order the Pho usually and my son got Pho when we were just...
Sorry no photo. Found this after a quick search after mountain biking. Two of us each got larhe bowls of pho. Think numbers 7 & 11. Huge bowls. This pho is pretty good. Ive had better broth but the noodles were very good. Great service. Nice interior. Classic rock on the radio also helped.
Went on a Saturday evening and it seemed LOTS of other people had the same idea. The carryout line was ringing off the hook too. Maybe cuz it was a chilly weekend and Pho was just what we all neeed. I had the rare beef pho. Beef is served raw but cooks in the broth. The flavor was wonderful. The...
Pho is a simple food yet flavorful when crafted correctly. The broth is rich and not super salty here. The meat was good but not much of it. (4 pcs)
The host did a great job of explaining the menu to a party member that had not had pho before.
I am going through a current obsession with Pho. I don't have a single Pho place anywhere near me so whenever I am in "civilization" I make sure to get my fix. This time I went to Pho 81. Upon entering I wasnt ure if I was supposed to go to the conter to order or be seated. There are...
There are many places offering Pho in the area, but this one is definitely THE BEST!
Real authentic Vietnamese Pho cooked for hours, meat and tendons soft and flavorful, noodle crisp and filling. Get some summer rolls with delightful peanut sauce before the soup and your lunch or dinner treat is complete. The staff is always very kind, friendly and...
Although I have had better, this was definitely a winner and I would return. Summer rolls were excellent with plump shrimp and a delicious peanut sauce. Pho and other main dishes were equally as good.
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VIDEO: Metro Driver Viciously Beats Up Rider For Spitting In His Face
December 15, 2013 8:01am PST
A King County metro bus driver in Renton, Washington reportedly attacked a passenger who had aggitated him according to a new video that has surfaced. The driver struck the passenger with his fists as well as the 8-pound wheel block. The altercation began once the bus had reached the Renton Transit Center which is the last stop on the route.
The passenger who is visibly sleepy and presumably cold, wanted to continue to doze off in his seat. The altercation finally begins as the passenger starts to argue with the driver and refuses to get off of the bus. The driver then started kicking his bag towards the door.
The tensions got even worse when the passenger spit in the driver's face. It was at this point that the driver vicously began beating on the passenger, reportedly hitting him about 7 times. The most surprising part about this story is in the fact that the bus driver had worked for Metro transit 12 years and had maintained an entirely clean record. He has now been fired. The driver and passenger are now facing fourth degree assault charges. Both men have pleaded not guilty.
The passenger's father expressed his frustration after watching the video saying, "That's pretty severe, and I don't think nobody deserves to get struck like that." He went on to say, "I really feel sorry for that bus driver, I really feel sorry for him. I know everybody needs a job." The father also apologized on behalf of his son spitting on the driver.
King County Metro General Manager Kevin Desmond said that Echols' actions were "inexcusable, appalling and unacceptable."
"Spitting is a felony assault, so what the passenger did was wrong." He went on to say, "But that in no way excuses the driver. This driver's reprehensible actions were an aberration from the fine work Metro employees do every day. Our drivers often face difficult-and sometimes threatening-situations, and respond appropriately."
You may be asking yourself why the passenger was so sleepy and hostile to begin with? Court documents later revealed that the passenger was hung over from the night before.
(H/T: KOMO News, King5.com)
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Having a variety of recreational activities to choose from is not something that's on every traveler's mind. So, even though Dutchman's Bay Cottages might not have the most impressive selection of outdoor activities, it may nevertheless provide precisely the type of setting you're trying to find.
There is one pool at Dutchman's Bay Cottages. Hanging out at the pool probably isn't the most anticipated activity on your list, but it can be a refreshing way to spend your downtime at the hotel. Also, these accommodations are in a breezy location on the water, so you'll find multiple ways to relax outdoors during your stay.
Although Dutchman's Bay Cottages does not have a golf course, it may be possible to arrange for a tee time nearby. The two closest courses are within visiting distance of Dutchman's Bay Cottages. Their names are Jolly Harbour Golf Course and Cedar Valley Golf Club. The nearest of these options is Cedar Valley Golf Club. Players will find 18 challenging holes at this nearby course. It's a total of 5884 yards long, and is a par 70. If you'd like to see if it is possible to schedule a tee time, you can call the course at (268) 462-0161.
Though Dutchman's Bay Cottages welcomes those traveling with children, know that this accommodation option doesn't provide many family-friendly amenities. To view nearby choices great for children and adults alike, take a look at these properties recommended for families.
If your ideal vacation spot has an active nightlife scene and plenty of live shows, then Dutchman's Bay Cottages is probably not for you. The cottages don't host many after-hours events.
In fact, there isn't a nightclub, or even a bar at these cottages, so it's a good match for guests who prefer peace and quiet to an active social scene.
If lady luck is calling your name, visit the nearest casino, Grand Bay Casino.
In addition to the options available on the property, visitors itching to do some exploring won't find a shortage of exciting outdoor attractions in Antigua. Whether you are looking to relax on the beach or play a few rounds of golf, you can find lots of other chances for recreation nearby. Click on these articles for information about riding a bike or scooter, scuba diving, sightseeing, fishing, shopping, snorkeling, and other activities you might enjoy.
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May 29, 2007
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. SVP-328-03.
Submitted March 28, 2007
Before Judges Stern and A. A. Rodríguez.
M.X.M. appeals from a judgment entered on January 6, 2004 committing him "to the State of New Jersey Special Treatment Unit (STU), the secure facility designated for the custody, care and treatment of sexually violent predators," and ordering a further review hearing on December 14, 2004.*fn1
On this appeal, he argues:
POINT I M.X.M.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) (Not raised below).
POINT II THE COURT ERRED IN RELYING ON HEARSAY CON-TAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT M.X.M. (Partially raised below).
A. Standard of Review
B. The State failed to prove M.X.M. suffered from a mental abnormality that caused him to be predisposed to commit acts of sexual violence
C. The State failed to prove the lack of control requirement of W.Z. POINT IV THE TRIAL COURT FAILED TO CONSIDER CON-DITIONAL DISCHARGE.
We reject these contentions and affirm the judgment.
Dr. Michael McAllister, a psychiatrist, prepared a written report and testified for the State.*fn2 Dr. McAllister diagnosed defendant as suffering from a mental abnormality or personality disorder, see N.J.S.A. 30:4-27.26, specifically paraphilia NOS, personality disorder NOS, and impulse control disorder, with a history of substance abuse. Among other things, Dr. McAllister thought it significant that M.X.M. committed a sexual offense against his two-and-one-half year old daughter while awaiting sentencing for a similar offense involving his eleven-year-old sister-in-law, and committed another crime while on parole for the first two. The doctor also noted that the age of M.X.M.'s victims indicated that he "had a very wide . . . sexual victim pool," and that his admission to having been a voyeur starting at age thirteen to fourteen reflected "a deviant sexual interest which tends to recur in a stronger form at times of stress as well." Also significant was the denial of "any history of cross-dressing" while admitting "he had used women's panties and bras as masturbatory aids." As a result, Dr. McAllister found that appellant was "deliberately deceptive," "failed to retain the benefit of sexual offender treatment, which he had obtained at the Adult Diagnostic and Treatment Center [(ADTC)] previously" and was "smooth and slick." Dr. McAllister also noted appellant's substance abuse problem, and concluded that appellant "remains at quite significant risk of further sexual offenses."
Dr. Robert Carlson, a psychologist, testified for appellant.*fn3 He also diagnosed a "personality disorder (antisocial and narcissistic features)" and poly-substance dependence, but reported that M.X.M. "may dynamically pose a moderate risk for reoffense while static factors suggest a substantial risk for reoffense." While testifying, Dr. Carlson indicated he considered, but rejected, voyeurism, fetishism, pedophilia and other diagnoses. He concluded that he did not "believe" that M.X.M. was then "pre-dispose[d] . . . to engage in acts of sexual violence." In reaching his conclusion, Dr. Carlson also considered appellant's record, and nature of his offenses, his age, progress in ADTC and religion as having become "a legitimate important part of his life." He felt that M.X.M.'s "significant history of cognitive distortion as documented in the ADTC records appears to have improved significantly."
There was no dispute that appellant committed the requisite offenses. Judge Philip Freeman gave extensive reasons for adopting the opinion of Dr. McAllister and committing appellant to the STU.
The ex post facto issue was not raised in the Law Division. However, as the commitment proceedings have been deemed civil, with a burden of clear and convincing evidence, and the commitment is not "punitive" in nature, we reject the contention. See Kansas v. Hendricks, 521 U.S. 346, 357, 361, 369, 117 S.Ct. 2072, 2079-80, 2085, 138 L.Ed. 2d 501, 512, 514-15, 519-20 (1997); In re Commitment of W.Z., 173 N.J. 109, 125, 130 (2002); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div.), certif. denied, 179 N.J. 312 (2004); In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002). See also State v. Bellamy, 178 N.J. 127, 139-40 (2006); Doe v. Poritz, 142 N.J. 1, 40-77 (1995) (rejecting claim under Megan's Law).
The experts, including Dr. McAllister, could rely on prior records and forensic and expert reports in helping to form their opinion, and the judge could consider them in evaluating credibility. In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 224 (App. Div. 2007); In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 576 (App. Div. 2004). As we recently said in In re Civil Commitment of T.J.N.:
[W]hile each case is fact sensitive, we have sustained the admissibility of hearsay as part of an expert witness' testimony at SVPA commitment hearings. See In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 55-56, (App. Div. 2004) (quoting [J.H.M., supra, 367 N.J. Super. at 612-13)] 367 N.J. Super. 599, 612-13 (with respect to reference to presentence reports); In re Civil Commitment of J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004) (permitting hearsay contained in presentence reports, ADTC evaluations, and an expert's opinion in affirming a commitment under the SVPA), certif. denied, 183 N.J. 586 (2005); In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004) (permitting reference to Special Treatment Unit reports); J.H.M., supra, 367 N.J. Super. at 612-13 ("A psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition." Id. at 612.
See also In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491-92 (App. Div.), certif. denied, 185 N.J. 393 (App. Div. 2004); [E.S.T., supra, N.J. Super. at 575-76] (App. Div. 2004); In re Commitment of R.S., 339 N.J. Super. 507, 537-38, 773 A.2d 72 (App. Div. 2001) (permitting use of "actuarial instruments"), aff'd, 173 N.J. 134 (2002). [In re Civil Commitment of T.J.N., supra, 390 N.J. Super. at 224-25.]
Based on the evidence admitted and the testimony, Judge Freedman concluded:
I'm satisfied that the State has, in fact, proven what it needs to prove by clear and convincing evidence, in that [M.X.M.] does, in fact, suffer from a mental abnormality in the form of paraphilia NOS and poly-substance abuse and dependence, as well as a personality disorder on Axis 2. That in combination and together and [] individually, the paraphilia pre-disposes him to engage in acts of sexual violence facilitated by his personality disorder and his -- his substance problems, and that he would have, in fact, have serious difficulty controlling his behavior if he [was] released today and would, in fact, be a substantial risk, highly likely to do other crim -- sexually violent acts unless he's confined for additional treatment.
In sum, the judge found that the evidence "was clear and convincing and uncontradicted" that M.X.M. "suffers from abnormal mental conditions and personality disorders," and that he was "highly likely . . . [to] commit further sexually violent acts if not confined for further care." See W.Z., supra, 173 N.J. at 132-33.
Our scope of review is "extremely narrow," and we must give the judge's determination the "'utmost deference' [permitting modification] only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001). See also e.g., T.J.N., supra, 390 N.J. Super. at 225. The record before us requires that we affirm the order continuing the commitment.
Finally, there was no basis for a conditional discharge at the time of commitment. Id. at 226; In re Commitment of J.J.F., 365 N.J. Super. 486, 498 (App. Div.), certif. denied, 179 N.J. 373 (2004). We trust that a conditional discharge plan, if appropriately based on subsequent developments, was considered and presented on a subsequent review.
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Pumpkin Fudge
Gloria Gasperson
Im a pumpkin lover especially when the Holiday's roll around. This would be something to make for a dessert as well as the famous pumpkin pie.My Mom use to make 2&3 pumpkin pies for Thanksgiving & Christmas because we alway's had a large family get together and that was her job was to make the pies... God Bless You Mom.
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- 2 c
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About this Recipe
Course/Dish: Candies
Other Tags: Quick & Easy, For Kids