transcript stubvship 1-22-13 dem 1st

7/29/2019 Transcript StubvShip 1-22-13 Dem 1st

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SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SAN BERNARDINO

- -000-STUBBLEFIELD PROPERTIES, dba )MOUNTAIN SHADOWS MOBILE HOME )COMMUNITY, )

1Plaintiff, ))vs ) Case No. UDDS1204130IBONNIE SHIPLEY, ))Defendant. 1

REPORTER'S TRANSCRIPT- OF ORAL PROCEEDINGSBEFORE HON. DONALD R. ALVAREZ, JUDGE

DEPARTMENT S 3SAN BERNARDINO, CALIFORNIATuesday, January 22, 2013

APPEARANCES:For the Plaintiff: HART, KING & COLDRENBY: ROBERT G. WILLIAMSON, JR

Attorney at Law200 Sandpointe, 4th FloorSanta Ana, California 92702

For the Defendant: NANCY D. MCCARRONAttorney at Law950 Roble LaneSanta Barbara, California 93103

Reported by: VICTORIA E. VILLEGAS, CSR NO. 9843Official Reporter


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- -SAN BERNARDINO, CALIFORNIA; TUESDAY, JANUARY 22, 2013A.M. SESSION

DEPARTMENT 5-32 HON. DONALD R. ALVAREZ, JUDGEAPPEARANCES:

ROBERT WILLIAMSON, Attorney at Law,for the Plaintiff; NANCY DUFFY MCCARRON,Attorney at Law, for the Defendant.

(Victoria E. Villegas, Official Reporter, CSR No. 9 8 4 3 . )-000-

THE COURT: I've got an add-on here, Stubblefieldversus Shipley.

MR. WILLIAMSON: Good morning. Robert Williamsonappearing for the plaintiff.

MS. MCCARRON: Good morning, your Honor. NancyDuffy McCarron appearing for Bonnie Shipley, the defendant.

THE COURT: All right. This is - - we set this foran OSC regarding the setting of a plaintiff's motion forsummary judgment before plaintiff's amended and supplementalmotion to compel answers and production of documents atdeposition. And the reason I set this was because it seemedto me that if there was an outstanding discovery motionpending, which there is, I'm not exactly - - r don't recallwhich date that was pending.

THE CLERK: February 27th, your Honor.THE COURT: February 27th - - why we would be moving

forward with a summary judgment when you still have discoveryoutstanding.

MR. WILLIAMSON: Yeah. And absolutely


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understandable, your Honor. But if that was - - if this was adefense motion for summary judgment, I could understand.However, our prima facie case in this particular statutoryunlawful occupant type of procedure and summary proceeding,our prima facie case the facts are largely undisputed. Thediscovery that's outstanding principally pertains toinformation that the defendant has that they haven't disclosedwith regard to certain affirmative defenses as well asinformation concerning the credibility, the bias of theparticular witnesses they have identified, and specificallythe defendant in this case and one other witness whom she hasa relationship which she's failed to disclose who otherwitnesses and investigation has revealed was a constant,constant visitor at the mobile home and possibly occupying themobile home overnight. All that doesn't have to do withplaintiff's prima facie case. And a motion for summaryjudgment would truncate this case altogether because there isreally no defense under the code under this particular type ofaction. There is no defense to the action. And eventhough - -

THE COURT: Okay.MR. WILLIAMSON: However, we can't forgo the

possibility that maybe the Court may see it differently, anddecide, well, certain defenses may go forward. We have tohave discovery on that. But that doesn't deter us frombringing the motion for summary judgment because - -

THE COURT: Okay. I don't mean to cut you off.MR. WILLIAMSON: Yeah.-


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THE COURT: But my question then becomes, are - - ifyou are the moving party, are you - - are you placing yourselfat risk in a summary judgment/adjudication in this sense thatthe defense here comes forward with or raises an issueconcerning an affirmative defense that maybe the plaintiffhasn't had the chance to fully explore through discovery, andthen am I going to get another - - am I going to get a requestto continue the hearing in order to allow additional discoveryon perhaps whether it be valid or not? I can't say. Butlet's say the defense asserts a prima facie affirmativedefense that would create a triable issue as to grantingsummary judgment. That's what I'm thinking about, that maybeyou may want to be concerned with that probably from thedefense perspective, you know, that they have perhapsinformation that might be subject to your motion to compelthat they might advance if they're forced to in opposition tosummary judgment or summary adjudication. I don't know theanswer to that. That's all I'm saying at this point.

MR. WILLIAMSON: Of course. And 1 appreciate YourHonor's - - it's obvious the Court's given this great thought.I can't speculate on the evidence they might present.However, if they would attempt to present evidence that we'vealready requested in discovery that hasn't been produced, thenthere would be an evidentiary objection to that - -

THE COURT: Well, there might be.MR. WILLIAMSON: - - to that evidence.THE COURT: But I would say that except that what if

you have a pending discovery motion that involves that


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evidence? That's my point. If the Court hasn't ruled on thatdiscovery motion, I don't know that I could say that theevidence - - I mean, if I denied it or if I granted thediscovery motion - - let's put it this way. If I granted thediscovery motion for the plaintiff and then the defendantrefused to produce the requested evidence, then I could seeexcluding it.

MR. WILLIAMSON: Mm-hmm.THE COURT: If there's been no court order or

adjudication of discovery issue, and the defense advancesevidence regarding an affirmative defense that they may have,I don't know that I could outright exclude it unless therewould be some other foundational basis or other basis. Sothat's all I'm thinking is do we really - - you know, is thatwhere you really want to go with that?

MR. WILLIAMSON: Yeah. Well, the evidence that maybe brought forward, say, wasn't produced in prior discovery ofcourse would be subject to the objection that it hadn't beenproduced in discovery and thereEore now can't be presented.

THE COURT: A lot of what we're doing is we're kindof speculating a little bit.

MR. WILLIAMSON: Exactly.THE COURT: I don't know. I'm just thinking. Maybe

the defendant doesn't care if you go forward with summaryjudgment at this point. I don't know.

MR. WILLIAMSON: May I - -THE COURT: Go ahead.MR. WILLIAMSON: - - address that?


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5

THE COURT: Go ahead.MR. WILLIAMSON: Well - - and while the protestations

about being served with volumes of paperwork and that, counselhands me this motion this morning for summary judgment thatshe set for apparently January 28th. We had initiallyreserved January 28th but when the Court issued its OSC, Iasked that our reserve date for summary judgment be continuedto January 31st. But this motion, to hide the voluminous ofit, I get two pages copied on one page, things in bookletform, that are inconsistent with the California Rules ofCourt. I'm - - I don't know - - even know if the clerks weregoing to accept something like that. But - -

THE COURT: Okay.MR. WILLIAMSON: - - you know, the defendants move

for summary judgmentTHE COURT Okay.MR. WILLIAMSON: With - - and if the Court's inclined

to hear both motions on the same day, that's - - I have noobjection to that and on the 31st when we've set the motionbecause we're prepared to file and serve the motion today, ifthe Court's inclined to hear it. But after receiving the OSCI had some questions about that.

THE COURT: Defense?MS. MCCARRON: Oh, your Honor, thank you. I wanted

to speak to a couple of issues, about four issues here.Number one, as to the putting two, you know, two - -

two pages to a sheet, they're in the regular forms to theCourt. And the only reason I did it, as I explained to


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counsel, he already got it. It's the same. We did themotion, as you know, last time we were in here. We had ourmotion for judgment on the pleadings which was on 438. Andthere was a technicality in there on that and you had deniedit on the technicality. And so he already had all the papers.So what - - what we did is it's kind of the same stuff. Andall I did was change the caption to "summary judgment. 'Instead of judgment on the pleadings under 4 3 8 , it's summaryjudgment under 437. And counsel's already got all that stuffin his office. He's got it by e-mail. But so I explained tohim that I just - - for technicality I put it on half sheets soas not to have to use, you know, a hundred sheets of paper andI'm only using 50. I told him I'd be happy to e-mail rightnow as soon as we go home, or I can go home and print it andbring it, you know. I don't want to have to spend - - thereason he's saying this is he wants me to have to spend ahundred dollars to have some delivery person to bring it toOrange County from Santa Barbara and it's not necessary.That's as to that issue.

AS to the second issue, we did make a motion forsummary judgment. And I want to point out, your Honor, andnow we have it on the record, counsel has admitted the factsare not in dispute here. Big, big admission. Because what itmeans, your Honor, is if the facts are not in dispute, we - -this can be resolved on summary judgment. We don't need towaste the Court's time bringing in a jury here. Because ajury is not allowed to interpret a statute. Only, as youknow, only a judge can interpret a statute. A jury is not


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allowed to do that.This whole case is based on the 7 9 8 . 7 5 . That was

the five-day notice that they gave to Bonnie on the day theygave her notice, and when the five days was up they filed foreviction. This case all depends on your interpretation of7 9 8 . 7 5 . And as we've said a hundred times for the past sevenmonths, every time we file the pleadings it doesn't apply toBonnie Shipley because she is not a purchaser. They keeptrying to create a thousand other side issues that havenothing to do with the issue. If that statute did not applyto Bonnie, they had no right to give her notice. And if theyhad no right to give her notice under that statute, the wholecase is bogus. They have no right to file a complaint on aninvalid notice that doesn't apply.

THE COURT: Okay.MS. MCCARRON: Now - -MR. WILLIAMSON: Well - -MS. MCCARRON: Hold on, please. I didn't interrupt

you, Counsel, and I'd like to finish.THE COURT: I don't mean to interrupt you. All I

wanted to do was find out - - I didn't know you had filed yourown summary judgment

MS. MCCARRON: Haven't filed it yet, your Honor. Iwanted to file it this morning but the clerk said I have tofile it downstairs. And that's fine. But I needed to servehim personally for the five-day notice thing.

Now, all of this - - and - - and the last time we werein here for summary judgment, they actually filed something


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with you the day before 50 pages long. I didn't even know youhad it when I was here arguing. I would have argued againstit if I even knew you had it. But when we drove back to SantaBarbara it was on my doorstep. Okay. And it was a 50-pagedeal. plaintiff's supplemental request for judicial noticewhereby they attached the whole legislative history of 798.75because they know this whole case resolves on theinterpretation of that.

Well, guess what, your Honor? They made a bigmistake by doing that because I didn't have it and they did.They made a big mistake because in the 50 pages that theyprobably didn't bother to read, I found the name of MauryPriest (phonetic) who represented the opposition to thatstatute 25 years ago in '87. I didn't even know if he wasstill alive. But I called him in Sacramento. And guess what?I got him. It was 87 years ago (sic) but he remembers itvividly. And he was at every single hearing. He was the - -representing the homeowners around the whole state. Herepresented their interest.

THE COURT: Okay. Okay. But - -MS. MCCARRON: Hold on, your Honor. I've got his

declaration under penalty of perjury here telling you he isthe only one who has personal knowledge of what went on25 years ago. He's still alive and he's giving it to you.And what he tells you - - and this is coming in on summaryjudgment. And what he tells you in his declaration, he tellsyou thls is not - - was never intended to be used for aroommate. It was designed - - and it was brought in together


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with Financial Code. It was designed to apply to escrowagents to make sure that they did not let a sale or transfergo through without an agreement with the park. And he says - -he even tells you how they submitted it, saying that if'.somebody did this under (c) they could evict them underforceable detainer. They fought against that. And he showsyou in here. And it's in their own exhibits. They didn'tread it very well. It shows where it has to be re-submitted asecond time with the words nforceable detainer" crossed out,and then the legislature would approve it. They would notapprove it and sign it with the forceable detainer cause ofaction in it.

THE COURT Okay. Okay.MS. MCCARRON: So that is the smoking gun in this

case.THE COURT: Okay. Okay.MS. MCCARRON: Now, there's another - - third thing I

have to bring up, another issue, your Honor. There's four ifyou'll just bear with me. There's a third issue. He'stalking about all this discovery about some relationship withBonnie with Steve. It has nothing to do with this case, yourHonor. This case has one issue. Does Bonnie Shipley have theright to be a co-resident with Nancy Duffy under 798.34 whichgives me the statutory right to have a co-resident withoutpark approval. And does 798.75 - - those two statutes you haveto - - you have to interpret them judicially. Jury can't dothat. So why waste the money on a jury? So my point is sincehe's admitted the facts are not in dispute, what do we need


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the jury for? We need you to decide this on summary judgmenton our motion. And for him saying we have no defense, that'swrong, your Honor, because - -

THE COURT: Okay.MS. MCCARRON: I've been in that place since 2005.

I'm the occupant.THE COURT: Okay. Okay. Okay.MS. MCCARRON: They have no standing to sue.THE COURT: Okay. All right.MS. MCCARRON: They're not the occupant.THE COURT: All I'm dealing with today - -MS. MCCARRON: SO - -THE COURT: I set - - I set an OSC to see - - it seems

to me that no one is really objecting to going forward withsumrary judgments. The plaintiff wants to go forward on the31st. Defendant has apparently filed their own.

MS. MCCARRON: Right.THE COURT: I will tell - - I will. tell defense,

however, that your format will be - - could be a problem ifit's not pursuant to Rules of Court, i.e., little bookletsYour format, it will have to be formatted appropriately as theRules of Court require for summary judgments.

MS. MCCARRON: Well, it is. I've already done it.THE COURT: Okay.MS. MCCARRON: Turning it in.THE COURT: Okay. I'll just make that observation

because you don't want to come up on the end. So what I'lldo, then, is I guess you already have the 3lst.


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MR. WILLIAMSON: Yes, your Honor.THE COURT: Just set them both for the 31st.THE CLERK: Set them both.THE COURT: Yeah.MS. MCCARRON: Okay. And there can't be anywhere

the night before - - the day before the hearing, your Honor, hefiles 150 pages with you - -

THE COURT: If it's not - -MS. MCCARRON: - - and delivers them to Santa Barbara

by mail and I don't even know you've looked at the stuff, andthen I lose because you have all the facts and beenmisrepresented. And I don't even know that you've looked atthose documents.

THE COURT: If it's not permitted by code, then Iwon't look at it.

MS. MCCARRON: The problem is it is because this isdone under - - and he said it in his own papers - - it's doneunder 1170.7. And it's a special rule. Summary judgment canbe brought on five days notice and the party has up until thetime of the hearing to oppose it. And they can even oppose itat the hearing if you look at that statute. And what they dois they - - they pile these - - and I have asked them what - -when I do it to them, your Honor, and it's a day or two beforethe hearing, I send it by e-mail so he gets it immediately.He doesn't do that with me. He puts it in the - -

THE COURT: Why don't we - -MS. MCCARRON: - - so I get it a day later and I

don't get to see it.


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MR. WILLIAMSON: I'm going to - -THE COURT: Why don't we stipulate that service can

be made by e-mail then?MS. MCCARRON: And not only that. If he's going to

give it to you at 8:30 in the morning, he needs to e-mail itto me at 8:30 and not 5 o'clock.

THE COURT: Okay.MR. WILLIAMSON: Your Honor, I'm going to object to

this entire line of argument. It's inappropriate. It's - -THE COURT: Okay. I'm just going to set it on

January 31st. Both parties to file per code.MS. MCCARRON: Can we just file by e-mail, your

Honor? He said he'd agree to it. We have been doing it forsix months. They give me stuff by e-mail all the time. Wehave been doing it for six months. He's just trying to drivethe costs up for me. It's more harassment.

THE COURT: Okay.MS. MCCARRON: And, you know, really I'm tired of

this, your Honor.THE COURT: Okay.THE BAILIFF: Hold on.THE COURT: Whatever the code provides for service,

1111 just let you proceed by code. Okay. I'll just set itfor the 31st at 8:30.

MR. WILLIAMSON: Very well, your Honor. Thank you.THE COTURT: Thank you.MS. MCCARRON: And, your Honor, one more thing.

Please may I be heard because I have - - I have one more issue


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I want to be heard and get it on the record.The reason that they are asking for summary

judgment, they think that they can pull it off and they canwin when they can't because Maury Priest's (phonetic)declaration is the smoking gun in this case. They - - thereason that they want to bring it right now and they don'twant to wait till after the 27th is they gave me 60-day noticeof eviction on December 21st as a Christmas present.

MR. WILLIAMSON: Okay. I'm going to object, yourHonor.

MS. MCCARRON: Hold on.MR. WILLIAMSON: This is entirely - -THE COURT: What does this have to do with the

summary judgments? That's all we're here for.MS. MCCARRON: Because you asked him what - - why

he's bringing it now instead of waiting till after the 27th.THE COURT: He said he doesn't think he needs it.MS. MCCARRON: No, no. It's because my two months

is up February 21st and he wants to have a win before heserves me with eviction. That's what he's - -

THE COURT: Okay.MR. WILLIAMSON: Your Honor - -THE COURT: All right.MR. WILLIAMSON: I need to make a record on this.

I'm objecting to it. The Court has repeatedly, repeatedlycontinued to argue while this court has said that argument isover, that the matters that she's arguing aren't even beforethe Court.


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THE COURT: I agree.MR. WILLIAMSON: This was an OSC to set a motion for

summary judgmentMS. MCCARRON: But, your Honor, I need to make my

record on the transcripts just like he said he had to do. Ihave a right to do that too.

THE COURT: Okay. We're in recess.MS. MCCARRON: Okay.THE COURT: Thank you.(Proceedings in the above-entitled matterwere concluded.

- - 0 0 0 - -


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SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SAN BERNARDINO

STUBBLEFIELD PROPERTIES, dbaMOUNTAIN SHADOWS MOBILE HOMEC O M ~ I T Y ,

Plaintiff, ))

vs ) Case No. UDDS1204130)

BONNIE SHIPLEY, ) REPORTER'S) CERTIFICATEDefendant. )

STATE OF CALIFORNIA )) ss.COUNTY OF SAN BERNARDTNO )

I, VICTORIA E. VILLEGAS, CSR, Official Reporter ofthe Superior Court of California, County of San Bernardino, dohereby certify that foregoing pages, 1 through 14, to the best

of my knowledge and belief, comprise a full, true and. -correct computer-aided transcript of the proceedings taken inthe matter of the above-entitled cause held on Tuesday,January 22nd, 2013.

Dated at San Bernardino, California, this 25th dayof January, 2013.

CSR

transcript stubvship 1-22-13 dem 1st

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