transcript-stubvship 1-31-13 sjm oral arg 1

7/29/2019 Transcript-StubvShip 1-31-13 SJM Oral Arg 1

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I SUPERIOR COURT OF THE STATE OF CALIFORNIAI FOR THE COUNTY OF SAN BERNARDINO

STUBBLEFIELD PROPERTIES, dba 1MOUNTAIN SHADOWS MOBILE 1HOME COMMUNITY, )

1Plaintiff, )1

vs . ) Case No. UDDS12041301BONNIE SHIPLEY, )1Defendant. 1

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

DEPARTMENT S-32SAN BERNARDINO, CALIFORNIAThursday, January 31, 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 DUFFY MCCARRONAttorney at Law950 Roble LaneSanta Barbara, California 93103

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


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SAN BERNARDINO, CALIFORNIA; THURSDAY, JANUARY 31, 2013A.M. SESSION

DEPARTMENT S-32 HON DONALD R ALVAREZ JUDGEAPPEARANCES:

HART, KING & COLDREN, BY ROBERT G.WILLIAMSON, JR., Attorney at Law,for the Plaintiff; NANCY DUFFYMCCARRON, Attorney at Law, for theDefendant.

(Victoria E. Villegas, Official Reporter, CSR No. 9843.)-000-

THE COURT: Stubblefield versus Shipley. Anybody onthat?

THE CLERK: Yes, your Honor.THE COURT: Okay. Can I have everybody's appearance,

please?MR. WILLIAMSON: Yes. Good morning, your Honor. Robert

Williamson appearing for the plaintiff and moving party, and theplaintiff and defending party on defendant's motion.

MS. MCCARRON: Good morning, your Honor. Nancy DuffyMcCarron for Bonnie Shipley, the defendant in the underlyingcase. And there are the two twin motions today.

THE COURT: Right.MS. MCCARRON: The plaintiff's motion for summary

judgment which we have opposed, and then the - - our defendant'smotion for summary judgment which they have opposed. And I'dlike to ask the Court to just give me just a couple of minutesto voice my objections so that it's not waived on appeal.


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Concerning the reply - - the purported reply that wasfiled yesterday that was 90 pages long, and I got it - - it camein my e-mail at three o'clock, but we were out so I didn't seeit till after four o'clock after the Court was closed. I'd likean opportunity to take a couple of minutes - -

THE COURT: Can I just interrupt you for just a minute?I was reviewing this case the last few days, and I've got allthese - - all these files here. We've got - - this is an unlawfuldetainer case and I'm currently in volume eight, I believe, ofthe - - or seven of the unlawful detainer case.

For the record, the Court has before it two motions forsummary judgment that have been filed in this case. The Court- - and the briefing is, as everybody can see, has been fairlyextensive. I late yesterday about quarter to four thereabouts,the Court was handed another stack of material in connectionwith these summary judgment motions which I haven't read. To behonest with you - -

MR. WILLIAMSON: I believe that was our reply brief tothe plaintiff's opposition to our motion - - or defendant'sopposition.

THE COURT: Okay. We've got - -MS. MCCARRON: Did you read - -MR. WILLIAMSON: The brief was - -THE COURT: I've got - -MR. WILLIAMSON: - - ten pages.THE COURT: I've got plaintiff's reply here. I've got a

proposed order. I've got defendant's objections and othermaterial here. Whatever - -


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MS. MCCARRON: It is - - my - - my objections were onlyfive pages, your Honor.

MR. WILLIAMSON: I believe - -THE COURT: Well, okay. I'm not - - I've got a bunch of

objections here. In any case, be very frank, I haven't had achance to read it.

MS. MCCARRON: See, this has been the problem for sevenmonths, your Honor.

THE COURT: SO I - -MS. MCCARRON: This is part of the harassment and part

of the sabotage so that it just goes on and on again. Becauselet me tell you, please, if you continue the - -

MR. WILLIAMSON: Objection, your Honor.MS. MCCARRON: Excuse me.THE BAILIFF: One at a time, Counsel.MS. MCCARRON: One at a time.If you continue this motion, okay, basically you're

enabling them for more torture. They just served another stack,a pending motion that you set for 27. Here's now an amendedstack of a redo of that. And in the motion for - - for you tocompel the answers to the questions. Like, for instance, minein two days of deposition it shows it was only three questions Ieven objected to in the whole two days. And it says they demandto have the answers. Then they want the follow-up to all ofthose answers which means another set of depositions. And it'sgoing to go on and on.

THE COURT: We're only talking about right now thesummary judgment


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MS. MCCARRON: I know. But if you continue it for aweek, your Honor, the day before that you're going to getanother stack this high of supplemental papers and this - -

MR. WILLIAMSON: Your - -MS. MCCARRON: It's an unending train running down the

hill.THE COURT: The summary judgment statutes don't permit

that. I don't normally do unlawful detainer cases. This one Iinherited from downstairs so this is an unlimited court. Idon't normally do those. I usually function under the normalsummary judgment statutes which have ample time for everybody tofile briefs. But these unlawful detainer statutes allow peopleto come in literally the day of the hearing - -

MS. MCCARRON: Mm-hmm.THE COURT: - - and argue which is - - that's fine. But

typically the unlawful detainer cases do not have the perhaps Ishould use the word complexity that this one is turning intohaving with all the briefs. We're in volume seven of the - - ofthe pleadings in this case. I think that, and I'm being veryhonest, I just haven't had a chance to read or absorb the recentstack of material that's just been filed. I guess the codeallows it.

MS. MCCARRON: That's part of the plan.THE COURT: But - -MS. MCCARRON: And - -THE COURT: Okay.MS. MCCARRON: - - you know, if you buy into it - -THE COURT: It's not a question - -


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MS. MCCARRON: - - you're becoming an enabler.THE COURT: It's not a question of buying into it.MS. MCCARRON: You're an enabler - -THE COURT: Apparently - -MS. MCCARRON: - - of the harassment.THE COURT: Apparently the code allows certain things to

happen. And I'm not really happy with that but the code allowsthat. So what that means is for me to give the appropriateattention to this case on both sides and to be able to properlyconsider it, I haven't had time to do this.

Now, you can do this one of two ways. I can just - - Ican take the submittals, I can listen to defense objections youhave, and I'll just take it under submission. Or, I can set afollow-up hearing on this and have you come back after I've hada chance to go through this, this new stack of material.

MS. MCCARRON: Okay. May I make the objections, yourHonor, because as you know what the rule is, the objections arewaived on appeal if they're not made at the lower court. Andthese objections are crucial because they affect your decisionthat you're proposing to make in this motion. And what they are- - and it's only going to take - -

THE COURT: Do you want to have a continued hearing?MS. MCCARRON: No.THE COURT: Or do you want - -MS. MCCARRON: No. Well, that's not the point. What I

want to do first before anything else is get the objectionsbecause they're so relevant. Because I got this reply servedlast night that was ten pages long. And what this reply does is


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reverse the position that they have taken all along for sevenmonths because what they basically argue in the reply inopposition to mine because I said they filed this case under - -under forcible detainer, and as the court knows, if you file acomplaint under the forcible detainer whether it's at summary ortrial, you have to prove the elements. If you sue a person fornegligence you've got four elements that you have to prove atsummary judgment or trial. You can't come in and argue theelements of product liability and expect to win. You have toargue the and prove the elements of the Complaint you servedwith the summons on the defendant.

THE COURT: We understand that.MS. MCCARRON: They served - - okay. They served a

complaint for forcible detainer. And what I would like to do,your Honor, is first read just one sentence of the Supreme Courtauthority on this. And that is - - and I want to get it on therecord because I know there's going to be an appeal in thiscase - - MW Erectors v. Neiderhauser Ornamental and Metal Works36 Cal.4th 412 at page-05, most recent Supreme Court issue.The Supreme Court decision citing this because County - - theleading case has always been Jackson v. County of Los Angeleswhich I've quoted for years from ' 9 7 . But I couldn't rememberthe cite so I did a word search and when I did it came upnestled inside this new - - or fairly new Supreme Court. Andit's one sentence I just - - just one sentence I want to read toyou, your Honor.

(Reading:) "Judicial estoppel precludes aparty from gaining an advantage by taking one


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position, and then seeking a second advantageby taking an incompatible position. Thedoctrine most appropriately applies when:one, the same party has taken two positions;the positions were taken in a judicial orquasi-judicial administrative proceeding;three, the party was successful in assertingthe first position, the tribunal adopted thefirst position; and the two positions aretotally inconsistent; and the first positionwas not taken as a result of ignorance, fraud,or mistake."

The quoted case - - the court goes on - - goes on to quote all thecases including the leading one, Jackson v. County of LA. Andthen it says, the final sentence here, "The doctrine's dualgoals are to maintain the integrity of the judicial system andto protect parties from opponents' unfair strategy."

THE COURT: I'm aware of the concept - -MS. MCCARRON: You know the concept.THE COURT: - - of judicial estoppel.MS. MCCARRON: Right. Just two more - - two or three

more minutes, your Honor, because I brought the appropriatepages.

The summons says we were sued under unlawful detainer.It says unlawful detainer on the top of the summons. The titleof the complaint says Complaint for Forcible Detainer. Next, wegot a notice from the Court itself. This is your notice fromthe clerk telling us that we're being sued for unlawful - -


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Bonnie sued for unlawful detainer. Then we filed a demurrer tothat. And now I'm going to tell you, this is from theplaintiff's opposition to the demurrer, and in here they argueto Judge Schneider that this is a forcible detainer and theyhave it in big bold letters underlined all over. This is aforcible detainer complaint.

And by the way, they won that because the judgeoverruled our demurrer and ordered us to answer. So they gainedan advantage in this proceeding by arguing it was a forcibledetainer complaint. They won. They got their advantage.

THE COURT: My only question was do you want to have - -do you want me to take this under submission, or do you want meto have a follow-up hearing so I can review the material?

MS. MCCARRON: Well, it depends on if you're going tomake this follow-up hearing all the way out to, you know,February 27th and then they're going to file, you know, 10,000more sheets of paper and now I got to do 50 hours' work - - worthof more work - -

THE COURT: The filing - -MS. MCCARRON: - - opposing this motion.THE COURT: The filing - - as far as the Court is

concerned, the filings which have been done as of yesterday areall the filings that the Court will accept or otherwise considerin connection with the two summary judgment motions.

MS. MCCARRON: Okay.THE COURT: So don't worry about that.MS. MCCARRON: Can we put it over like a week? Because

I'm concerned because I believe that we're entitled to win on - -


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MS. MCCARRON: Well, no, because you just said you can'tfile any other papers. So I want you to consider them duringthis period before you schedule the next hearing because in thedamages I asked them to be striked (sic). I made a motion tostrike. They argued against forcible detainer. And guess what?The judge refused to strike the damages. Same things withattorney's fees.

Now, the last thing - - the last point I want to make iswe then filed a motion to transfer because what they argued tothe judge was it belonged in this little court, this little, youknow, under 25,000 jurisdiction, not in the big court becauseall they were suing on was forcible detainer. So they - - they- - so then I said, okay, then I'm going to file a motion totransfer because they're claiming that it's under 25,000jurisdiction. I filed with the court a certified copy from thecounty tax assessor's office assessing the mobile home worth28,000, and they admitted that they were asking in their prayerfor writ of possession to take over that. So obviously it'smore than 25,000. So I made a jurisdiction and the argumentsthat I made is just the same one that you're talking about. Youcan't - - when you're talking about who has the right topossession of a property, this is something that should be - - bedone in the - - in the higher jurisdiction. It's not appropriatefor motions that get filed on five days because even the judgedoesn't have a chance to read stacks of paper 2,000 sheets highto try to - - to make a ruling on a motion. And guess what?That motion was denied. So they got the advantage of a demurrerthat was overruled, a motion to transfer that was overruled, a


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motion to strike damages that was overruled - - that was denied,and a motion to strike attorney's fees that was denied.

THE COURT: Okay. Okay.MS. MCCARRON: So we got judicial estoppel.THE COURT: Okay.MS. MCCARRON: But now they're telling you they're not

suing under forcible detainer; they're suing under 798.75(c)This is exactly what the Supreme Court says is an unfairadvantage to us.

THE COURT: Okay.MS. MCCARRON: They can't go 360 degrees and argue the

opposite.THE COURT: Okay.MS. MCCARRON: They're stuck with a forcible - -THE COURT: Give me another date.MS. MCCARRON: - - detainer complaint and we expect this

ruling to be made based on that complaint and their duty onsummary judgment to prove there's no issues of disputable facton those four elements under forcible detainer. That's mypoint. That's - - and that is crucial to get this on. There'sgoing to be an appeal in this case, your Honor. You know that.I mean I'm sure that you've seen there is seven volumes.

THE COURT: I'm going to set this for further hearingand argument on February 14th. There will be no further filingsfrom either side in connection with these summary judgmentmotions.

MS. MCCARRON: Thank you.MR. WILLIAMSON: Is that at 8 : 3 0 , your Honor?


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THE COURT: Yes. Whatever is here is here and I willdeal with what I have here and we'll go from there. So 1'11 seeeverybody on the 14th at 8:30.

MS. MCCARRON: Okay. Now, one more question, yourHonor. May we - - may we continue - - we've got this hearing forthe 27th, February 27th.

THE COURT: That's the discovery motion.MS. MCCARRON: Well, because the point is if we - - if

we're - - if either party is out on summary judgment that becomesmoot, and I don't want to have to spend 50 to a hundred hourstrying to get an opposition in to that. If we're going topostpone this, can we postpone my time to respond to this pastthat day?

THE COURT: Well, but that's not still after - - youstill have time if you needed to. I tell you what. If there'sa problem, if you think you're disadvantaged, let me know andwe'll - - if we have to adjust the other hearing, 1'11 adjust it.Okay.

MS. MCCARRON: Right. And I'm letting you know becauseif I file it, they're going to say it's late and thereforethey're entitled to win.

THE COURT: Okay. Okay.Counsel?MR. WILLIAMSON: Thank you, your Honor.Just for the record, contrary to what counsel is

arguing, plaintiff has always maintained this to be a unlawfuloccupant summary proceeding pursuant to Civil Code Section798.75(c) and (d) That's what the body of the complaint says.


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THE COURT: Understand.MR. WILLIAMSON: There's a substance to this action.

Judge Schneider pointed that out to counsel at the firstdemurred hearing. For the record.

THE COURT: All right.MR. WILLIAMSON: Thank you.THE COURT: February 14th. Thank you.MR. WILLIAMSON: Thank you, your Honor.THE CLERK: Do you want to order a copy of the

reporter' transcript?THE COURT: Yeah. Why don't you go ahead.THE CLERK: Okay.(Proceedings in the above-entitled matterwere concluded.)


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

STUBBLEFIELD PROPERTIES, dba )MOUNTAIN SHADOWS MOBILE 1HOME COMMUNITY, ))Plaintiff, 1)vs ) Case No. UDDS1204130)BONNIE SHIPLEY, ) REPORTER'S) CERTIFICATE

Defendant. 1

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

I, VICTORIA E. VILLEGAS, CSR, Official Reporter ofthe Superior Court of California, County of San Bernardino, dohereby certify that foregoing pages, 1 through 13, to the bestof my knowledge and belief, comprise a full, true andcorrect computer-aided transcript of the proceedings taken inthe matter of the above-entitled cause held on Thursday,January 31, 2013.

Dated at San Bernardino, California, this 31st dayof January, 2013.

CSR

transcript-stubvship 1-31-13 sjm oral arg 1

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