2018-00227175-CU-DF

Roberto Victor Illa, M.D. vs. Kimberly Kirchmeyer

Nature of Proceeding: Motion for Order Vacating the Order

Filed By: Illa, M.D., Roberto V.

Plaintiff in pro per Robert Victor Illa, M.D.’s (“Plaintiff”) motion to vacate the Order issued on April 24, 2018, is DENIED.

Plaintiff’s request that the Court take “judicial notice” that Plaintiff was not given proper notice of the April 16, 2018, anti-SLAPP motion filed by Defendant is not a proper request for judicial notice and is DENIED.

On February 15, 2018, Plaintiff filed his lawsuit against Kimberly Kirchmeyer, Executive Director of the Medical Board of California, alleging numerous state law codes and laws, including Business and Professions Code section 2056 (protection for retaliation 5 against physicians) and 2234.1 (prohibition against physician discipline for alternative treatment), 6 Civil Code sections 45 (libel) and 3345 (unfair and deceptive practices against senior citizen or 7 disabled person), and Code of Civil Procedure section 128.7 (frivolous actions). Plaintiff’s lawsuit arises out of the Accusation, administrative hearing, and subsequent Order by the Medical Board of California suspending his medical license.

On April 16, 2018, the Court granted defendant Kirchmeyer’s unopposed special motion to strike the complaint (the anti-SLAPP motion).

On April 18, 2018, Plaintiff filed a request for entry of default. The Court rejected the filing.

On April 24, 2018, the Court signed and filed the Order granting Kirchmeyer’s anti-SLAPP motion.

On April 24, 2018, Plaintiff filed a “motion against anti-SLAPP.” On April 30, 2018, Plaintiff filed an addendum to the “motion against anti-SLAPP.”

On May 1, 2018, Plaintiff was served with Notice of Entry of Order of April 24, 2018, Order granting the anti-SLAPP motion.

On August 16, 2018, at a case management conference, the Court advised Plaintiff that the case was dismissed in its entirety.

On August 22, 2018, Plaintiff attempted to file a motion for reconsideration and motion vacating the order. Because Plaintiff did not pay the filing fee, the motions were not filed. On September 27, 108, Plaintiff filed a motion to vacate the order and on September 19, 2018, Plaintiff filed a motion for reconsideration.

Plaintiff seeks to vacate the April 24, 2018, Order on the grounds the Court lacked personal jurisdiction over him because he was not served with anti-SLAPP motion. (CCP § 473(d).)

First, Plaintiff availed himself of the jurisdiction of this Court when he filed his lawsuit on February 15, 2018. Further, the proof of service indicates Plaintiff was served at the address identified in his pleadings. (Woodbridge Decl. ¶ 2, Exh. 1.) Plaintiff’s statement that he “was never advised of the date of the hearing held on 4/16/2018” is insufficient to establish he was never served with the anti-SLAPP motion. (Illa Decl., Exh. A.) “The service is complete at the time of the deposit in the mail. The mere fact that the other party may not have received the paper through the mail does not establish that the affidavit of mailing is false.” (Miller v. Cortese (1955) 136 Cal.App.2d 47 (citations omitted).) Plaintiff provides no other evidence beyond his general statement that he was never served with the motion.

Based on the foregoing, the motion to vacate the April 24, 2018, order is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 14 2018-00227175-CU-DF

Roberto Victor Illa, M.D. vs. Kimberly Kirchmeyer

Nature of Proceeding: Motion for Reconsideration

Filed By: Illa, M.D., Roberto V.

Plaintiff in pro per Robert Victor Illa, M.D.’s (“Plaintiff”) motion for reconsideration is DENIED.

Plaintiff’s request that the Court take “judicial notice” that Plaintiff was not given proper notice of the April 16, 2018, anti-SLAPP motion filed by Defendant is not a proper request for judicial notice and is DENIED.

On February 15, 2018, Plaintiff filed his lawsuit against Kimberly Kirchmeyer, Executive Director of the Medical Board of California, alleging numerous state law codes and laws, including Business and Professions Code section 2056 (protection for retaliation 5 against physicians) and 2234.1 (prohibition against physician discipline for alternative treatment), 6 Civil Code sections 45 (libel) and 3345 (unfair and deceptive practices against senior citizen or 7 disabled person), and Code of Civil Procedure section 128.7 (frivolous actions). Plaintiff’s lawsuit arises out of the Accusation,

administrative hearing, and subsequent Order by the Medical Board of California suspending his medical license.

On April 16, 2018, the Court granted defendant Kirchmeyer’s unopposed special motion to strike the complaint (the anti-SLAPP motion).

On April 18, 2018, Plaintiff filed a request for entry of default. The Court rejected the filing.

On April 24, 2018, the Court signed and filed the Order granting Kirchmeyer’s anti-SLAPP motion.

On April 24, 2018, Plaintiff filed a “motion against anti-SLAPP.” On April 30, 2018, Plaintiff filed an addendum to the “motion against anti-SLAPP.”

On May 1, 2018, Plaintiff was served with Notice of Entry of Order of April 24, 2018, Order granting the anti-SLAPP motion.

On August 16, 2018, at a case management conference, the Court advised Plaintiff that the case was dismissed in its entirety.

On August 22, 2018, Plaintiff attempted to file a motion for reconsideration and motion vacating the order. Because Plaintiff did not pay the filing fee, the motions were not filed. On September 27, 108, Plaintiff filed a motion to vacate the order and on September 19, 2018, Plaintiff filed a motion for reconsideration.

Plaintiff seeks reconsideration of the “order made on 8/22/2018.” However, no “order” was made on August 22, 2018. Rather, the Court simply rejected Plaintiff’s filing. The only Order that has been made in this case occurred on April 24, 2018, when the Court signed and filed the Order granting Kirchmeyer’s anti-SLAPP motion.

There are strict requirements for a motion for reconsideration, including that the motion for reconsideration must be filed within 10 days of the order denying the motion. (CCP

§ 1008(a).) Accordingly, to the extent Plaintiff is seeking reconsideration of the April 24, 2018, Order, this motion is untimely. As there is no other Order that has been issued in this case, the motion for reconsideration is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.