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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO

STUBBLEFIELD PROPERTIES, dba MOUNTAIN SHADOWS MOBILE HOME COMMUNITY, Plaintiff,

vs .

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Case No. UDDS1204130

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BONNIE SHIPLEY, Defendant.
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REPORTER'S TRANSCRIPT OF ORAL PROCEEDINGS BEFORE HON. DONALD R. ALVAREZ, JUDGE DEPARTMENT S-32 SAN BERNARDINO, CALIFORNIA Thursday, January 31, 2013

APPEARANCES: For the Plaintiff:

HART, KING & COLDREN BY: ROBERT G. WILLIAMSON, JR. Attorney at Law 200 Sandpointe, 4th Floor Santa Ana, California 92702

For the Defendant:

NANCY DUFFY MCCARRON Attorney at Law 950 Roble Lane Santa Barbara, California

93103

Reported by:

VICTORIA E. VILLEGAS, CSR NO. 9843 Official Reporter

SAN BERNARDINO, CALIFORNIA; THURSDAY, JANUARY 31, 2013 A.M. SESSION DEPARTMENT S-32 APPEARANCES: HART, KING
&

HON . DONALD R . ALVAREZ , JUDGE

COLDREN, BY ROBERT G.

WILLIAMSON, JR., Attorney at Law, for the Plaintiff; NANCY DUFFY MCCARRON, Attorney at Law, for the Defendant. (Victoria E. Villegas, Official Reporter, CSR No. 9843.) -000THE COURT: that? THE CLERK: THE COURT: please? MR. WILLIAMSON: Yes. Good morning, your Honor. Robert Yes, your Honor. Okay. Can I have everybody's appearance, Stubblefield versus Shipley. Anybody on

Williamson appearing for the plaintiff and moving party, and the plaintiff and defending party on defendant's motion. MS. MCCARRON: Good morning, your Honor. Nancy Duffy

McCarron for Bonnie Shipley, the defendant in the underlying case. And there are the two twin motions today. THE COURT: Right. The plaintiff's motion for summary

MS. MCCARRON:

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

Concerning the reply - - the purported reply that was filed yesterday that was 90 pages long, and I got it - - it came in my e-mail at three o'clock, but we were out so I didn't see it till after four o'clock after the Court was closed. an opportunity to take a couple of minutes - THE COURT: Can I just interrupt you for just a minute? I'd like

I was reviewing this case the last few days, and I've got all these - - all these files here. We've got
--

this is an unlawful

detainer case and I'm currently in volume eight, I believe, of the - - or seven of the unlawful detainer case. For the record, the Court has before it two motions for summary judgment that have been filed in this case. The Court

- - and the briefing is, as everybody can see, has been fairly

extensive.

I late yesterday about quarter to four thereabouts,

the Court was handed another stack of material in connection with these summary judgment motions which I haven't read. honest with you - MR. WILLIAMSON: I believe that was our reply brief to To be

the plaintiff's opposition to our motion - - or defendant's opposition. THE COURT: Okay. We've got - Did you read - The brief was - -

MS. MCCARRON:

MR. WILLIAMSON: THE COURT:

I've got - - - ten pages.

MR. WILLIAMSON: THE COURT: proposed order. material here.

I've got plaintiff's reply here.

I've got a

I've got defendant's objections and other Whatever - -

MS. MCCARRON:

It is - - my - - my objections were only

five pages, your Honor. MR. WILLIAMSON: THE COURT: objections here. I believe - I'm not - - I've got a bunch of

Well, okay.

In any case, be very frank, I haven't had a

chance to read it. MS. MCCARRON: months, your Honor. THE COURT: SO I - This is part of the harassment and part Because See, this has been the problem for seven

MS. MCCARRON:

of the sabotage so that it just goes on and on again. let me tell you, please, if you continue the - MR. WILLIAMSON: Objection, your Honor. MS. MCCARRON: THE BAILIFF: MS. MCCARRON: Excuse me. One at a time, Counsel. 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 amended

stack of a redo of that. And in the motion for - - for you to compel the answers to the questions. Like, for instance, mine in two days of deposition it shows it was only three questions I even objected to in the whole two days. And it says they demand to have the answers. Then they want the follow-up to all of

those answers which means another set of depositions. And it's going to go on and on. THE COURT: summary judgment . We're only talking about right now the

MS. MCCARRON:

I know. But if you continue it for a

week, your Honor, the day before that you're going to get another stack this high of supplemental papers and this - MR. WILLIAMSON: Your - MS. MCCARRON: hill. THE COURT: that. The summary judgment statutes don't permit This one I I It's an unending train running down the

I don't normally do unlawful detainer cases.

inherited from downstairs so this is an unlimited court. don't normally do those.

I usually function under the normal

summary judgment statutes which have ample time for everybody to file briefs. But these unlawful detainer statutes allow people

to 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 I should use the word complexity that this one is turning into having with all the briefs. the pleadings in this case. We're in volume seven of the
--

of

I think that, and I'm being very

honest, I just haven't had a chance to read or absorb the recent stack of material that's just been filed. I guess the code allows it.
MS. MCCARRON:

That's part of the plan.

THE COURT:

But - -

MS. MCCARRON: And - THE COURT: Okay.

MS. MCCARRON: THE COURT:

- - you know, if you buy into it

--

It's not a question - -

MS. MCCARRON: THE COURT:

- - you're becoming an enabler.

It's not a question of buying into it. You're an enabler - -

MS. MCCARRON: THE COURT:

Apparently - -

MS. MCCARRON:

- - of the harassment.

THE COURT: Apparently the code allows certain things to happen. that. And I'm not really happy with that but the code allows

So what that means is for me to give the appropriate

attention to this case on both sides and to be able to properly consider it, I haven't had time to do this. Now, you can do this one of two ways. I can just - - I

can take the submittals, I can listen to defense objections you have, and I'll just take it under submission. Or, I can set a follow-up hearing on this and have you come back after I've had a chance to go through this, this new stack of material. MS. MCCARRON: Okay. May I make the objections, your

Honor, because as you know what the rule is, the objections are waived on appeal if they're not made at the lower court. And these objections are crucial because they affect your decision that you're proposing to make in this motion. And what they are

- - and it's only going to take

THE COURT: MS. MCCARRON: THE COURT: No.

--

Do you want to have a continued hearing?

Or do you want - No. Well, that's not the point. What I

MS. MCCARRON:

want to do first before anything else is get the objections because they're so relevant. Because I got this reply served

last night that was ten pages long. And what this reply does is

reverse the position that they have taken all along for seven months because what they basically argue in the reply in opposition to mine because I said they filed this case under - under forcible detainer, and as the court knows, if you file a complaint under the forcible detainer whether it's at summary or trial, you have to prove the elements.
If you sue a person for

negligence you've got four elements that you have to prove at summary judgment or trial. You can't come in and argue the You have to

elements of product liability and expect to win.

argue the and prove the elements of the Complaint you served with the summons on the defendant. THE COURT: We understand that. They served - - okay. They served a

MS. MCCARRON:

complaint for forcible detainer. And what I would like to do, your Honor, is first read just one sentence of the Supreme Court authority on this. And that is - - and I want to get it on the record because I know there's going to be an appeal in this case - - MW Erectors v. Neiderhauser Ornamental and Metal Works
36 Cal.4th 412 at page 205, most recent Supreme Court issue.

The Supreme Court decision citing this because County - - the leading case has always been Jackson v. County of Los Angeles which I've quoted for years from ' 9 7 . But I couldn't remember

the cite so I did a word search and when I did it came up nestled inside this new - - or fairly new Supreme Court. And it's one sentence I just - - just one sentence I want to read to you, your Honor. (Reading:) "Judicial estoppel precludes a party from gaining an advantage by taking one

position, and then seeking a second advantage by taking an incompatible position. The

doctrine most appropriately applies when: one, the same party has taken two positions; the positions were taken in a judicial or quasi-judicial administrative proceeding; three, the party was successful in asserting the first position, the tribunal adopted the first position; and the two positions are totally inconsistent; and the first position was not taken as a result of ignorance, fraud, or mistake." The quoted case - - the court goes on - - goes on to quote all the cases including the leading one, Jackson v. County of LA. And then it says, the final sentence here, "The doctrine's dual goals are to maintain the integrity of the judicial system and to 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 appropriate pages. The summons says we were sued under unlawful detainer. It says unlawful detainer on the top of the summons. The title of the complaint says Complaint for Forcible Detainer. Next, we got a notice from the Court itself. This is your notice from

the clerk telling us that we're being sued for unlawful - -

Bonnie sued for unlawful detainer. Then we filed a demurrer to that. And now I'm going to tell you, this is from the plaintiff's opposition to the demurrer, and in here they argue to Judge Schneider that this is a forcible detainer and they have it in big bold letters underlined all over. This is a forcible detainer complaint. And by the way, they won that because the judge overruled our demurrer and ordered us to answer. So they gained

an advantage in this proceeding by arguing it was a forcible detainer 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 me to have a follow-up hearing so I can review the material? MS. MCCARRON: Well, it depends on if you're going to make this follow-up hearing all the way out to, you know, February 27th and then they're going to file, you know, 10,000 more sheets of paper and now I got to do 50 hours' work - - worth of 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 are all the filings that the Court will accept or otherwise consider in connection with the two summary judgment motions. MS. MCCARRON: THE COURT: Okay.

So don't worry about that. Can we put it over like a week? Because

MS. MCCARRON:

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

10 MS. MCCARRON: file any other papers. Well, no, because you just said you can't So I want you to consider them during

this period before you schedule the next hearing because in the damages I asked them to be striked (sic). I made a motion to strike. They argued against forcible detainer. And guess what? The judge refused to strike the damages. attorney's fees. Now, the last thing - - the last point I want to make is we then filed a motion to transfer because what they argued to the judge was it belonged in this little court, this little, you know, under 25,000 jurisdiction, not in the big court because all they were suing on was forcible detainer. So they - - they Same things with

- - so then I said, okay, then I'm going to file a motion to

transfer because they're claiming that it's under 25,000 jurisdiction. I filed with the court a certified copy from the county tax assessor's office assessing the mobile home worth 28,000, and they admitted that they were asking in their prayer for writ of possession to take over that. So obviously it's

more than 25,000. So I made a jurisdiction and the arguments that I made is just the same one that you're talking about. You can't - - when you're talking about who has the right to possession of a property, this is something that should be
--

be

done in the - - in the higher jurisdiction. It's not appropriate for motions that get filed on five days because even the judge doesn't have a chance to read stacks of paper 2,000 sheets high to try to
--

to make a ruling on a motion.

And guess what?

That motion was denied.

So they got the advantage of a demurrer

that 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: THE COURT:

So we got judicial estoppel.

Okay. But now they're telling you they're not

MS. MCCARRON:

suing under forcible detainer; they're suing under 798.75 (c). This is exactly what the Supreme Court says is an unfair advantage to us. THE COURT: Okay. They can't go 360 degrees and argue the

MS. MCCARRON: opposite. THE COURT:

Okay. They're stuck with a forcible

--

MS. MCCARRON: THE COURT:

Give me another date.

- - detainer complaint and we expect this

MS. MCCARRON:

ruling to be made based on that complaint and their duty on summary judgment to prove there's no issues of disputable fact on those four elements under forcible detainer. That's my point. That's - - and that is crucial to get this on. There's

going 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 hearing

and argument on February 14th. There will be no further filings from either side in connection with these summary judgment motions. MS. MCCARRON: Thank you. Is that at 8 : 3 0 , your Honor?

MR. WILLIAMSON:

12 THE COURT: Yes. Whatever is here is here and I will So 1'11 see

deal with what I have here and we'll go from there. everybody on the 14th at 8:30. MS. MCCARRON: Honor.

Okay. Now, one more question, your

May we - - may we continue - - we've got this hearing for

the 27th, February 27th. THE COURT: That's the discovery motion. Well, because the point is if we - - if

MS. MCCARRON: we're

--

if either party is out on summary judgment that becomes

moot, and I don't want to have to spend 50 to a hundred hours trying to get an opposition in to that. If we're going to

postpone this, can we postpone my time to respond to this past that day? THE COURT: Well, but that's not still after - - you I tell you what. If there's

still have time if you needed to.

a problem, if you think you're disadvantaged, let me know and we'll - - if we have to adjust the other hearing, 1'11 adjust it. Okay. MS. MCCARRON: Right. And I'm letting you know because

if I file it, they're going to say it's late and therefore they're entitled to win. THE COURT: Counsel? MR. WILLIAMSON: Thank you, your Honor. Okay. Okay.

Just for the record, contrary to what counsel is arguing, plaintiff has always maintained this to be a unlawful occupant summary proceeding pursuant to Civil Code Section
798.75(c) and (d).

That's what the body of the complaint says.

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

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

THE COURT: All right. MR. WILLIAMSON: THE COURT: Thank you.

February 14th. Thank you. Thank you, your Honor.

MR. WILLIAMSON:
THE CLERK:

Do you want to order a copy of the

reporter's transcript? THE COURT: THE CLERK: Yeah. Why don't you go ahead. Okay.

(Proceedings in the above-entitled matter were concluded.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO

STUBBLEFIELD PROPERTIES, dba MOUNTAIN SHADOWS MOBILE HOME COMMUNITY, Plaintiff,

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vs .
BONNIE SHIPLEY, Defendant.

Case No. UDDS1204130 REPORTER'S CERTIFICATE

STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO

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ss.

I, VICTORIA E. VILLEGAS, CSR, Official Reporter of the Superior Court of California, County of San Bernardino, do hereby certify that foregoing pages, 1 through 13, to the best of my knowledge and belief, comprise a full, true and correct computer-aided transcript of the proceedings taken in the matter of the above-entitled cause held on Thursday, January 31, 2013. Dated at San Bernardino, California, this 31st day of January, 2013.

CSR