Case Name:    Longview International, Inc. v. Mario Fausto, et al.

Case No.:        1-13-CV-251541

Defendant Mario Fausto (“Fausto”), allegedly representing himself although he has counsel of record in this action, filed a motion for leave to file a cross-complaint against the Plaintiff in this action as well as its CEO, Patrick Barkhordarian, and opposing counsel of record in this action.  Plaintiff Longview International, Inc. (“LVI”) has opposed the motion.

On July 1, 2014, the Court granted LVI the opportunity to file a supplemental opposition, and allowed the proposed cross-complainant the opportunity to file a limited reply.  Fausto has filed a set of “objections” based on the alleged untimely filing and service of the supplemental opposition, and has asked the Court to “rule on all objections” (that include objections to evidence) before ruling on the motion for leave to file the cross-complaint.

Fausto’s claim that the supplemental opposition was untimely highlights the issues posed by his attempt to file a cross-complaint in pro per, in a case where he is represented by counsel.  The Court finds no basis in the record of this case to agree that Fausto’s counsel of record represents Fausto on any type of limited scope basis.  The supplemental opposition was timely filed as ordered by the Court, and properly served on counsel of record in this action.[1]  It is a potential ethical issue for counsel to communicate directly with a party who is represented by counsel.  The Court will not instruct LVI’s counsel to separately serve pleadings on Fausto individually, when he is represented by counsel in this case.

Furthermore, as to Fausto’s objections to evidence, there is no legal basis for the Court to rule on evidentiary objections filed in connection with a motion other than a motion for summary judgment or an anti-SLAPP motion.  The Court therefore declines to rule on Fausto’s evidentiary objections.

Fausto’s Request for Judicial Notice is DENIED.  A Court takes judicial notice only of the existence and contents of court records, and not of the truth of the matters asserted therein.  (See Unruh-Haxton v. Regents of Univ. of Calif. (2008) 162 Cal.App.4th 343, 364-365.)  The exhibits do not appear to be court records, and the material is not relevant to any issue posed by the motion.

The motion for leave to file a proposed permissive cross-complaint is DENIED.    The Court finds that the causes of action in the proposed cross-complaint do not arise out of the same transactions or occurrences as the instant action and the cross-complaint is permissive, not mandatory; in many respects the causes of action alleged fail to state a claim and are incomprehensible; allege protected activities that would be subject to a special motion to strike; and the request for leave to amend is not made in good faith, as it appears to be in pursuit of an ultimate strategy to disqualify counsel of record in this case and to deprive LVI of its chosen counsel.

Prevailing party shall prepare the order.