4DCA Division 3 Oral Argument - 2026/07/22 - Jul 22, 2026

argument

4DCA Division 3 Oral Argument - 2026/07/22

California Fourth District Court of Appeal, Division Three 2h 8m 8 chapters transcribed 1 month ago official recording ↗

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Transcript generated automatically by AI and may contain errors.

What is the central dispute in the Burke vs. Herrick’s Bike Shop case?

Unknown 2:09

Yeah.

Unknown 8:58

All right. Court of appeal, court appellate district commission three is now in session.

Justice Delaney 9:06

Good morning. Welcome to the Cruiser Noso Courthouse. I'm Justice Delaney. To my right is Justice Gooding and my left Judge Schwarm. We have three matters on calendar for this morning. This panel will hear the first case. And we will have a brief recess for a quick panel change. The first case we're going to hear this morning is Burke versus Herrick's bike shop.

Justice Delaney 9:36

Our records indicate that Eric's bike shop, defendant and respondent, has waived oral argument. Mr. Burke, you've reserved fifteen minutes. Uh you may proceed when you're ready.

Gregory Burke 9:44

Thank you very much, Your Honor. I I don't have very much to offer outside of what is in the brief. Please start with your appearance so that we can get that format. I apologize, Your Honors. Um Gregory Burke, um pro peer appellant. And played it. Good morning, may proceed. Thank you. Thank you. Um, I wanna thank the court very much for limiting the um argument to whether the trial court abuses discretion when it determined settling a case, then dismissing it constitutes an adverse determination without considering my evidence that may have rebutted the prima facie finding that the dismissals were determined adversely to me. Um

Unknown 10:20

well I think for the record we're not limiting you to that issue. We've asked you to focus on that, but to the extent you want to argue other things, I think you're free to do so.

Gregory Burke 10:29

Thank you very much, General. I I do think that that is actually the point and is provided in my papers. I do believe that the court erred in failing to determine um whether or not the evidence pr presented um indicated that it was outside of an adverse determination. I think the court treated the Karan Coranth Carnazas rule um as a bright land rule. rather than focusing on Tok Road that held that a voluntary missile dismissal is prima facie proof of an adverse determinant and expressly noted that the plaintiff must may rebut the showing by contrary proof. And that is what I did at the trial court. Um the trial court in its order basically determined that there were five dismissals and without anything else made the uh ruling that I was a vexatious litigant.

Gregory Burke 11:17

That is all I have.

Justice Delaney 11:17

All right, very good. Thank you. Okay. Thank you so much. The case is submitted. It will take a brief recess for the panel change. Here we go.

Unknown 11:36

Yeah.

Unknown 12:30

All the eyes. Risk again, so

Justice Delaney 12:39

Uh good morning again. Uh now to my left is Justice Servino. Uh we will now call Ellen Morwich versus uh North Star Mortgage or Bank of America. This is the case uh G zero six five two two zero.

Justice Delaney 13:14

So you may begin? Uh Is it Mr. Imperial? Yes, your honor. Do we have appearances on Zoom this morning?

Unknown 13:27

Okay.

Justice Delaney 13:27

Okay. Um Mr. Farrell, can you hear us? I'm sorry, Ms. Farrell, can you hear us?

Unknown 13:32

Yes, I can.

Justice Delaney 13:33

Okay. Is

Unknown 13:34

this audio only?

Justice Delaney 13:36

Are you on it? Okay. And uh Jennifer Wade, can you hear us?

Jennifer Wade 13:43

Yes I can.

Justice Delaney 13:44

Okay, very well. Um Let's see, Mr. Imperial, you have reserved uh fifteen minutes. Is there any of that amount of time that you would like to reserve for a response?

James Imperial 13:58

Three minutes, Your Honor.

Justice Delaney 13:59

Three minutes. I will let you know when you are there. You may begin when you're ready, starting with your appearance.

James Imperial 14:05

Good morning, attorney James Imperial, appearing on behalf of Helen Horwich. May it please the court. The court has asked us to focus on a single question. And that is whether the trial court abused its discretion in granting the dismissal requests. When it had before it three specific facts. about what happened. between the attempt to file the First Amendment complaint and the dismissal hearings. Now the first fact That I need to bring to the court's attention is that seven weeks passed before a notice that the first amended complaint had been rejected by the clerk was sent. Now to conceptualize this, I'm I'm not sure um At what point um any of you discontinue the practice of law. But the way it works now is uh

James Imperial 15:00

Back when I was just beginning to study law, you used to walk into a courthouse and you would file a document directly with the court clerk and you would know whether or not they accepted that filing right then and there or whether or not there was an issue with it and it would be rejected.