COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE FIFTH APPELLATE DISTRICT

5th D.C.A. Case #: F073250

Courtney Gillespie; Trial Court Case # 10-
238961
Melody Gillespie;
Plaintiffs/Appellants,
Notice Of And Verified
Petition
-vs- For Rehearing Of
Appellants
Courtney &
Melody Gillespie
Nicklas Hoffman, [Calif. Appellate Rule
8.268]
Et Al
Defendants/Respondents
________________________________________

The H.M. Wysocki Irrevocable Trust,

By And Through Its Co-Trustees, Nickol
D. Gerritsma And Nicklas Hoffman,
Cross Complainants, Respondents,

-vs-

Courtney Gillespie, Melody Gillespie,

Cross Defendants /Appellants
__________________________________

1. Comes, now the above named Appellants, in the above entitled Appeal, with their

Notice Of and Verified Petition for Rehearing, as follows:

2. To: The Clerk Of the Above Entitled Appellate Court in 5th DCA, # F073250, and

1
 Respondents Nicklas Hoffman, the H.M. Wysocki Irrevocable
Trust by and

Through its Co-Trustees, Nickol D. Gerritsma and Nicklas

Hoffman, Please take

Notice that the above named Appellants Courtney & Melody

Gillespie will

Petition the Presiding Justice, & above named Appellate Court

for rehearing

pursuant to California Appellate Rules Rule 8.268, A true and correct

copy of

which is attached hereto this Notice mailed by Certified US Mail Return Receipt

requested, and Appellants do hereby so petition said Presiding Justice and Appellate

Court, 5th D.C.A., based upon the following grounds:

Material Facts Omitted In The Opinion & Omission Of A Determination Of Per Sey

Reversible Error On The Record which have now denied Appellants State & Federal

Due Process Of Law & Equal Protection of / under the Law as follows;

(1) The Opinion issued by the said Court in this Appeal on January 9, 2018, omitted

mention of facts cited in the opening Brief, material to Determination of Appellants

Appeal & omitted Material Contentions of Law Requiring per sey reversal which

is Prejudicial Reversible Error Reviewable by the California Supreme Court on

Writ Of Review, Or Writ Of Mandamus;

1. The Opinion did not mention that Courtney Gillespie immediately Returned the

Check of Nicklas Hoffman & never cashed it, as it was not sufficient compensation

to return him back to the position he was in before entering into the contract, at that

2
point Hoffman was required under Due Process of Law to promptly file an action to

enforce the Rescission if he intended to rescind the contract, which he failed to do for

the following 5 years which was a waiver of his Right to Enforce the alleged Rescission

provided under the California Civil Code. The Courts Opinion failed to mention that

Appellants Objected to the Balancing of the Equities Judgment / Order awarding them

$18, 500, & did Not mention that Appellants did not comply with the Courts Order

to evacuate the premises on a date certain & further proceedings were filed by

Counsel of Nicklas Hoffman for Contempt of the Courts Order & the Gillespies were

threatened with arrest by a Tulare County Sheriff if they did not remove the property

& vacate the premises which they eventually did under duress & threat of arrest;

2. The Court did not bother to rule on the contention that the Trial Court Judge Paul

Vortman did not comply with the requirements of California Law set out in published

Court precedent, for imposing an implied provision into a written contract;

This is, once again prejudicial reversible error, Reviewable by the California Supreme

Court on Writ Of Review, Or Writ Of Mandamus; This Court is Required under State

& Federal Due Process of Law standards to Correct this plain Prejudicial Error in

the Record & Reverse the Judgment Dismissing the Verified Complaint of Plaintiffs,

& Appellants Request this Court to do just that.

3. The Courts Opinion omitted the facts in the record that the Trial Court, Judge

Hicks issued a Ruling in his final Judgment that Plaintiffs Gillespies Complaint for

Injunction & Damages was Dismissed with Prejudice as moot, which the Court

3
denied any Ruling on, claiming Appellants failure to produce Trial Transcripts

as the reason; The Trial Transcripts were $1300 dollars which Appellants could not

afford, along with the Appeal fee, their mortgage & other living costs; Appellants

were not eligible for a waiver because they both worked; The Record is clear that if

the Trial Court, Hicks expressly dismissed Appellants Law Suit with Prejudice as

moot, as Hick’s Judgment clearly states, it did not hold a Trial on those claims &

damages, if it had held a trial the Court would have entered an order & a Judgment

after the trial which would be in the Record on Appeal, in the Clerks Transcript on

Appeal, & such a Judgment does not exist in the Record; This Court is Required under

State & Federal Due Process of Law standards to Correct this plain Prejudicial Error

in the Record & Reverse the Judgment Dismissing the Verified Complaint of

Plaintiffs, Appellants Request this Court to do just that.

4. Although this Court did Rule on the voidness issue set out under “I” in Appellants

Opening Brief, this Court specifically did not Rule on the Voidness of the implied

provision as being in Violation of Express Statutory Law under the Williamson Act of

1965 & the Local Tulare County Contract expressly forbidding any subdivision of

the Property if it was less than 20 acres. The Property in question is only 10 acres.

California Civil Code Provisions at Civil Code Sections 1667-1668, state an unlawful

provision of a Contract is Void; Since the “implied” “provision” is Void Ab Initio,

as a matter of California Law under Gov. Code Sect. 51200 Et Seq., local Tulare

County Regulations & Civil Code Section 1667-1668, there was nothing to Rescind

as a matter of California Law, & the Trial Court Ruling of Vortman finding such an

4
“implied provision” is Void Ab Initio & never existed as a matter of California Law,

& is completely unenforceable. Now the Ruling of the 5th DCA of 1/9/18 ignoring

these issues Raised in Appellants Opening Brief Under “I; E” The facts in the

Record on Appeal which establish it, is also Void Ab Intio, must now be Vacated,

& corrected with a Judgment Reversing the Trial Courts Void Judgment. Failure

to comply with the statutory Law is beyond the Courts Jurisdiction, which this

Court has no Discretion to do, making it a Gross Miscarriage of Justice of the

worst kind;

5. Appellants contend it was Prejudicial Error when this Court did not Rule on the

issue raised in their Opening Brief on Appeal. Under Calif. Civ. 1599, the Claim of

Appellants that the Contract survived the Void provision under 1599, because the

purpose of the Contract was to transfer half of the property to Courtney Gillespie

& the law does not require any subdivision of any property to effect a sale of half

a parcel of land. The Williamson Act local Rules allowed another home to be built

on the other part of the land without any subdivision, so the purpose of the contract

was intact. Courtney paid off the whole price of the property by the time the law

suit was filed, which rendered the issue of consideration moot at that time since

Hoffman failed to promptly file any Action over the alleged failure of consideration

in 2005, for the following five (5) years which was latches. The applicable statute of

limitations all expired the year before the Action was filed in 2010. This omission &

failure has caused Appellants Denial of their State & Federal Rights to Due Process

5
 Of Law, & Equal protection of / under the Laws, which this Court is Required to

correct. This is Reviewable in the Supreme Court by Writ off Review or Mandamus;

6. Appellants contend that this Court committed Prejudicial Reversible Error when

it Denied the Motion For Judicial Notice as “unnecessary”, which was a request to

take Mandatory Judicial Notice of the Law of California; the Williamson Act at Gov.

Code Section 51200, Civil Code Sections 1667-1668, 1599, & the Tulare County local

Contract & Mandatory regulations forbidding any subdivision of land less

than twenty (20) acres, which makes the implied provision to subdivide the ten

(10) acres Void under the law. The Trial Court was Requested to take Mandatory

Judicial Notice of the same which is Mandatory under the Law under Calif. Evidence

Code 451, 452,453, this Court is required to do so under Calif. Evidence Code Section

459; This was the main issue in the Appeal & it defeats the basis of the Trial Court,

Vortmans Decision & the final Judgment of Trial Court Judge Hicks. Said Denial is

the Denial of Appellants State & Federal Due Process & Equal Protection Rights,

which is a Gross Miscarriage of Justice requiring the Court to correct this injustice

by reversal of the Judgment of the Trial Court. This is Reviewable in the Supreme

Court by Writ off Review or Mandamus;

3. This Petition is based on the Record on Appeal in this Case 5th DCA # F073250,

Appellants Opening Brief on Appeal, served and filed with this Court, Appellants prior

Motion For Judicial Notice, previously served and filed with this Court; the failure

of Respondents to file any Respondents Brief or Opposition in this Appeal; this Courts

Opinion of 1/9/18; This Notice, and any matters this Court may take Judicial Notice of

6
 including the matters in Appellants prior Motion for Judicial Notice.

4. Wherefore Appellants herein pray this Court Grants this Verified Petition, &

rehears the matters set forth herein, & issues a Modified Judgment Reversing the

Judgment in the Trial Court, Granting the Relief Requested in the Opening Brief,

On this day, the 24th day of January, Two-thousand-eighteen, Anno Domini

_________________ ___________________
Courtney Gillespie Melody Gillespie
Appellant. Appellant.

Verification

We the undersigned hereby Declare under penalty of perjury under

the laws of the

State Republic of California that we Executed the foregoing Notice

of And Petition for

Rehearing & that the contents of the Same are true and correct.
Executed by our hands

on this 24th day of January 2018 in Tulare County, Republic Of

California.

_________________ ___________________
Courtney Gillespie Melody Gillespie
Appellant. Appellant.

7
 COURT OF APPEAL OF THE STATE OF CALIFORNIA
IN AND FOR THE FIFTH APPELLATE DISTRICT

5th D.C.A. Case #: F073250

Courtney Gillespie; Trial Court Case # 10-
238961
Melody Gillespie;
Plaintiffs/Appellants, Brief Of Appellants
Courtney & Melody
Gillespie
-vs- In Support Of Verified
Petition For
Rehearing
Nicklas Hoffman,
Et Al
Defendants/Respondents [Calif. Appellate
Rule 8.268]
_________________________________________

The H.M. Wysocki Irrevocable Trust

By And Through Its Co-Trustees, Nickol
D. Gerritsma And Nicklas Hoffman,
Cross Complainants/ Respondents,
-vs-
Courtney Gillespie, Melody Gillespie,
Cross Defendants/Appellants

8
___________________________________

Statement Of Facts & Statement Of The case

Incorporation By Reference

Appellants hereby incorporate by reference as if fully set forth

herein this Verified
Petition, the prior statement of facts & Statement Of the Case in
their Opening Brief
filed herein this Appeal, which is herein hereby made a part of this
Verified Petition
for Rehearing.
_______________________________________________________________________

Appellants filed a Verified Petition for Temporary & Permanent

Injunction against

Defendants Nicholas Hoffman, in his personal capacity & in his

capacity as Co Trustee

for the H. M. Wysocki Irrevocable Trust, & his daughter Nicole

Geritsma, in her

personal capacity & in her capacity as a Trustee Title holder of the

Real Property

located at 1381 N. Lime Street, Porterville, California, for the H.M.

Wysocki

Irrevocable Trust, in Tulare County Superior Court, Civil Action Case

VCU-238961

on the day of 8/26/10, C.T. page 22, Vol. 1; After A Notice of &
Motion Of Defendants

Cross Complainants To Bifurcate Was Filed on 1/17/12, Vol. 2 C.T.

page 423;

Opposition To Motion to Bifurcate was filed By Plaintiffs on 4/10/12

C.T. Page 438

9
Vol. 2; The Court Granted the Motion to Bifurcate the Trial & To set
an evidentiary

hearing, & set the Trial on the Cross Complaint To Quiet Title first,
on the date of

12/17/12, & set a pretrial for 12/11/12, in its minute order of

6/5/12, Vol. 2, C.T. page 500;

A Trial on Defendants /Cross Complainants Cross Complaint to

Quiet Title was held

from 7/15/13-7/18/13; all other matters including the Injunction &

damages sought by

Appellants in their Verified Petition for Injunction & damages were

deferred until after

the trial on the Quiet Title. See minute Orders of Judge Paul
Vortman in the record on

Appeal cited above. After the Quiet Title Trial-Evidentiary hearing

the Court Judge Paul

Vortman issued his Decision on submitted matter in which he

found that Nicklas

Hoffman had rescinded the sales contract in late 2005, having

written a check to

Courtney Gillespie for the amount Gillespie had paid on the

property up to that time.

Vortman failed to mention in his ruling that Gillespie had returned

the check uncashed,

& had proceeded to pay off the total amount of the property by the
time any Court

Action for Injunction was filed in 2010 by the Gillespies, rendering

any issue on

10
consideration moot at the time of the filing of the Cross Complaint
by Nicklas Hoffman

in late 2010 had been filed. Dept. 7, Judge Paul Vortman filed his
'Decision On Submitted

Matter' on 10/15/13, Vol. 5, C.T. page 1136-1142; Further

Proceedings were set on

Calendar, & the Case was transferred to Dept. 10, Judge Lloyd
Hicks, (later it became

Department 2) after Judge Vortman was Disqualified. Plaintiffs filed

Objections to the

11/21/13 “Rulings, Orders”; of Judge Lloyd Hicks; & a Request For

Judicial Notice;

Request For Clarification & Correction of Rulings, Orders, &

Statements of 11/21/13

filed on 12/5/13, Vol 5, C.T. page 1143-1276; The Court Issued an

Order denying Plaintiffs Requests & Motions on 3/6/14, at C.T. page

1277; prior to the subsequent proceedings on settling the Equities

between the parties, Plaintiffs/ Cross Complainants Filed a Pretrial

Motion to continue the Trial date on the Equities, & a Motion For

Relief From Judgment

or Order Finding Rescission Of Contract' on 3/17/14; Vol. 5, C.T.

page 1278-1286; Plaintiffs, Appellants, filed a Notice Of Intent Of

Plaintiffs To File a Motion to Vacate & Set Aside the Interlocutory

Judgment Of 8/5/14 & For Entry Of Another & A Different Judgment

11
Pursuant to California C.C.P. Section 663 & 663a” 8/27/14, Vol. 5,

C.T. page

1287-1297; & filed the Notice Of & Motion Of Plaintiffs/ Cross

Complainants For Order vacating & Setting Aside The Interlocutory

Judgment Of 8/5/14 & For Another & A Different Judgment Pursuant

To Calif. C.C.P. Sect. 663, & 663a & supporting Documents, on

9/26/14,Vol. 5, C.T. page 1298-1308; C.T. page 1330-1475; The

Court entered an Order Denying the Motion on 10/30/14, at Vol. 6,

C.T. page1476; The Final Judgment to Quiet Title of Dept. 2 Judge

Lloyd Hicks was filed on 12/7/15, Vol. 6, C.T. page 1480; Plaintiffs

filed their Notice of Appeal from the 12/7/15 Final Judgment of

Dept.

Judge Lloyd Hicks, & the Notice of Designation of Clerks Record, on

2/5/16, Vol. 6,

C.T. page 1488, an Addendum To The Notice Of Appeal & Notice of

Designation Of Clerks Record On Appeal was filed on 2/17/16, Vol.

6, C.T. page 1494. Appellants herein have filed this Appeal from the

'Final Judgment'12/7/15 of Judge Lloyd Hicks in Civil Case #: 10-

238961 Pretrial Proceedings Appellants filed a Verified Petition for

a Temporary & Permanent Injunction against defendants Nicholas

12
Hoffman, Et Al, Tulare County Superior Court, Civil Action, Case#

VCU-238961, on the day of 8/26/10

Defects In Defendants Cross Complaint & Answer

In the 'Cross Complaint' filed by the Defendants in the Trial Court,

said Defendants, who are Respondents to this Appeal, asserted

only 3 Causes of Action, which were for: (1)' Ejectment', at C.T. Vol

1, page 86-90; (2) 'Declaratory Relief' C.T. Vol. 1, page 90-91; (3)

'Quiet Title' C.T., Vol. 1, page 91-92; The Defendants failed to

mention any Causes of Action for either Breach Of Contract, or to

Enforce any Rescission of the Contract,

in their Cross Complaint. There were no facts or allegations

purporting that there had ever been any Notice of a Rescission of

the Contract for sale of 5 acres of the Real Property at 1831 N.

Lime Street, near Porterville, California, to Plaintiff Courtney

Gillespie, served by any of the Defendants on Plaintiffs Appellants

Gillespies. There was no assertion in Defendants Cross Complaint

that there had ever been 'Breach' of the Contract for

purchase of half of the ten acres, or five acres, by anyone,

including the Gillespies. There was no Request in the Cross

Complaint to the Trial Court for any Relief based on any alleged

'Breach of ' or 'Rescission', under the appropriate statutory

13
provisions providing for such Relief . In fact what Respondents

actually claimed in their Cross Complaint, which is found at C.T.,

Vol. 1, Page 85, Et Sequiter, at C.T., Vol. 1, page 89, under

paragraph

'7' was that: no land sales agreement was ever accepted by them,

line 1-2, & they further stated the only thing that transpired

between the parties in all the time the Gillespies lived

on the land at 1831 N. Lime Street was 'negotiations' for sale of

half the land, See C.T.

page 89, paragraph 8., Line 8. At no time in their Cross Complaint

nor at any time in the Trial Court proceedings did the Defendants,

Cross Complainants ever identify or set forth, or as much as Claim

any Statutory provisions in the Law of the State of California which

authorized them to obtain any Relief whatever for an alleged

'Rescission' or for a

'Breach' of the Contract for Sale of the Real Property at 1831 N.

Lime Street. The Cause cited by Judge Vortmann in the 10/15/13

“Decision On Submitted Matter” for “Breach of the agreement” is

a Cause of Action for “Breach of Contract”, & for prior “Rescission”

of Contract, which were never plead by Hoffman, Et Al, in the Cross

Complaint; the

14
Statute of Limitations Expired for such Causes of Action the year

prior to the Filing of Plaintiffs Complaint, & Defendants

subsequent Cross Complaint. Plaintiffs would have Claimed the

Defense of the 4 year Statute of Limitations, under C.C.P. 337 (1) &

(3) if those

Causes were plead; Appellants complained to the Trial Court in

Objections & Motions to Vacate, that the Denial of that Defense

Denied Plaintiffs State & Federal Due Process of Law Rights.

Plaintiffs also claimed the Bar of C.C.P. 426.30, in their Objections

to the Trial Court, for Cross Complainants failure to Plead all known

Causes by Cross Complaint,

including Rescission, & Breach of Contract, cited by Judge Vortman

as the basis of his 10/15/13 'Decision On Submitted Matter' & the

subsequent “Interlocutory Judgment” of 8/5/14. Both of which are

not consistent with the facts; There is no basis for Relief by Breach

of Contract or Rescission due to the Bar in CCP 426.30, among

other causes & reasons set out in this Brief. The Applicable Statute

of Limitations for an Action based on

contract, obligation, of liability founded on instrument in

writing,“Breach” of “Written contract”, or based on “Rescission” is

4 years, in C.C.P. 337 (1) & (3); 4 years Expired in late 2009, a year

15
prior to the filing of the Verified Complaint by the Gillespies,

according to the Trial Courts Finding at P-6, L-7-10, of 10/15/13

“Decision” where it Ruled Hoffman accomplished Rescission in

“Late 05”, which barred any Action & Relief for Breach of

Contract or Rescission. Plaintiffs were given no Notice of a Claim of

Rescission or Breach

of Contract, prior to filing the Cross Complaint, or in the Cross

Complaint, denying

Plaintiff's State & Federal Due Process of law & opportunity to

plead the Statute of Limitations Defense, which is a Gross

Miscarriage of Justice for there is no Adequate Remedy in the

Ordinary Course of Law; Due to said lack of Notice & Denial of

State &

Federal Due Process, the Court is now required, by law, and in the

interests of Justice, & Equity to set aside any such Relief, due to

the fact those claims would have been barred by Law if placed in

the Cross Complaint due to the fact Plaintiffs would have

Demurred to

such Claims based on the 4 year Statute of Limitations.; The Ruling

by Judge Vortman

16
on 10/15/13 was in direct conflict with the 'Answer' to Plaintiffs

Complaint for Injunction,

of Defendant/Cross Complainant Nicklas Hoffman, at Vol. 1, C.T.

page 104, page 4

filed individually & as 'Co-Trustee' of 'Wysocki Irrevocable Trust',

which was filed on 11/19/10, & is found at Vol. 1, C.T. page 101 Et

Sequiter. In their prayer in the Cross

Complaint at C.T., Vol. 1, page 92-94, in which the Defendants,

Cross Complainants requested (1) Return of Possession of the

Property (2) A Writ of Execution Directing the County Sheriff to

remove Plaintiffs & all other persons from from the Real Property

in Question (3) An award of damages of $40 dollars a day for

wrongful possession of the real

property in question' (4) For cost of Suit; (5) such other further

relief the court deems just & proper according to proof; (6) The

Court decree the subject land sale void & of no legal effect; (7) for

costs of suit & prejudgment interest according to proof; (8) For

such other & further relief as the court deems just & proper

according to proof; (9) The Court

decree that all money paid by cross defendant since entering onto

the property shall be retained by cross complainant as payment of

17
fair rental value of the property according to proof; (10) damages

of $40 dollars a day from December 2009 according to proof for

wrongful detention of the premises until the time premises are

restored to cross complainant;(11) For a Judgment that Cross

Complainant is the sole owner of the

property & that cross defendants have no interest in the property;

(12) For costs of suit & prejudgment interest according to proof;

(13) For other further relief the Court deems just & Proper

according to proof. Appellants contended in their Opening Brief

under I,

E, that the finding & 'Decision' of Dept. 7 Judge Paul Vortman of

10/15/13, that there was

an implied condition in the written sales contract requiring

Plaintiff Courtney Gillespie to obtain a subdivision of the Real

property in question was Void, due to the fact any such condition

of contract would have been & was contrary to law & therefor Void

as a matter of Law, under the 'Law Of Contracts' California Civil

Code Section 1667-1668, 1599, Et Sequiter, because the 'Real

Property' in question was under the “Williamson Act” in

Calif. Gov. Code Section 51200 , and a local Tulare County Contract

& Regulations

18
which expressly precluded any land less than 20 acres from being

subdivided, & the land parcel in question was only ten (10) acres,

rendering any such purported implied condition of the Contract

Void as a Matter of California Law (any contract provision that is

contrary to law is void in Civil Code 1667-1668) The other lawful

portions of the contract are still good & enforceable under Civil

Code Section 1599, as no subdivision of the property is required by

law to sell half of the ten (10) acres, nor is it necessary to fulfill

the purpose

of the contract itself. The Decision On Submitted Matter Of Dept. 2

Judge Vortman Of 10/15/13 is incorporated by reference into the

Interlocutory Judgment of Judge Hicks of 8/5/14, which in turn, is

attached to and incorporated into the Final Judgment of Judge

Lloyd Hicks of 12/7/15. It is a matter of Court Record that all

proceedings in Dept. 2 before Judge Hicks were based on said

Decision of 10/15/13, & all proceedings for 'balancing Equities'

between the parties were due to said “Decision” of Vortmann & his

finding of a 'Rescission' of the sales Contract based on an alleged

'Breach' of an 'Implied Condition' by Plaintiff/ Appellant Courtney

Gillespie' of 'the agreement' for sale & purchase of half the 'Real

Property' at 1381 N. Lime Street, Porterville, to Courtney Gillespie.

19
According to said Decision, the alleged “Rescission” of written

Contract was based on failure of Courtney Gillespie to obtain a

Subdivision of the Property from Tulare County, at P-5, L-14-16 of

said Decision'; This finding ignored clear uncontradicted Testimony

of Courtney Gillespie at Trial that he was told by Tulare County,

when he went

to their Office, that the Property Could not be subdivided as a

Matter of California Law & County of Tulare Zoning Regs., under

the said 'Williamson Act', in the Gov. Code Sect. 51200, Et Seq.,

which this Court is Requested to take Mandatory Judicial Notice of

in

a Separate Request served & filed with this Opening Brief. The

land was under the said California Land Conservation Act of 1965,

aka “ Williamson Act” in Calif. Gov. Code Sect. 51200, Et Seq. ,

which Appellates Requested the Trial Court to take Mandatory

Judicial Notice of, along with the applicable Tulare County Zoning

Regulations, which Law & Zoning required land be 20 Acres before

it is subdivided. The said land is only 10 Acres,

& could not be subdivided, per California Law. Said Law Rendered

the “Implied Condition” of the Contract to subdivide it, an unlawful

contract provision, Void Ab Initio pursuant to California Civ. Code

20
Sect. 1667-68 & 1599; There can be no unlawful provisions or

conditions of a contract or what is not possible under the standing

law at the time of

forming of the written contract. It was a legal impossibility for

Courtney Gillespie to

obtain a subdivision of the 10 acre property at the time of the

contract, due to the Law

that forbids subdivision, & he has no power or responsibility under

the agreement to

change the Law of the State or policy of Tulare County. As set forth

in the Notice of

Petition for Rehearing several facts in the Record were Omitted by

this Court in its

Opinion of 1/9/18, & this Courts opinion of 1/9/18 goes against

express statutory Law of

the State Of California under the Williamson Act of 1965, Gov.

Code Sect. 51200, & the local County of Tulare Contract &

accompanying express regulations. Such a violation of the Law

makes the Opinion Void as a matter of Law, and unenforceable. It

is reversible in the Supreme Court on a Writ of Mandate or a Writ

of Review.

21
 Post Trial Proceedings

Dept. 2 Judge Hicks denied the post trial motions for relief filed by

Appellants to Vacate

the 10/15/13 'Decision On Submitted Matter' of Judge Paul

Vortmann, & he denied the

CCP 663 Motion to Vacate the Interlocutory Judgment & enter

another Judgment which was also denied by Hicks.

The Final Judgment Entered By Dept. 2 Judge

Lloyd Hicks

The final Judgment entered by Dept. 2 Judge Hicks of 12/7/15, Vol.

6, C.T. page 1480-1487, was made 'pursuant to the terms and

conditions of that Interlocutory Judgment filed by the Court on

August 5, 2014” a copy of which is attached to the Final Judgment

in Vol. 6, at C.T. page 1485-1487, & “is fully incorporated” therein

as “though fully set forth at length”. The Interlocutory Judgment

of 8/5/14, states at Vol. 6, C.T. page 1486,

lines 1-3, that the prior Written 'Decision on Submitted Matter' by

Dept. 7 Judge Vortmann of 10/15/13 is 'incorporated' therein by

reference. Said 10/15/13 'Decision' of Judge Vortmann is found at

Vol. 5, C.T. page 1136-1142. Based on all the foregoing it is clear in

the record before this Court that all proceedings in Dept. 2 before

22
Judge Hicks were based on said Decision of 10/15/13, & all

proceedings for 'balancing Equities' between the parties were due

to said “Decision” of Vortmann & his finding of a 'Breach' of an

'Implied Condition' by Plaintiff/ Appellant Courtney Gillespie' of 'the

agreement' for sale & purchase of half of the 'Real Property' at

1381 N. Lime St., Porterville, to Courtney Gillespie. According to

said Decision, the alleged “Rescission” of the Contract was based

on failure of Courtney Gillespie to obtain a Subdivision of the

Property from Tulare County, at P-5, L-14-16 of said 'Decision'; This

finding ignored clear uncontradicted Testimony of Courtney

Gillespie at trial that he was told by Tulare County, when he went

to their Office, that the Property Could not be subdivided as a

Matter of California Law &

County of Tulare Zoning Regs., under the said Williamson Act, in

Gov. Code Sect. 51200, Et Seq.,which this Court is Requested to

take Mandatory Judicial Notice of in a Separate Request served &

filed with the Opening Brief. Because the land was under the

California Land Conservation Act of 1965, aka “ Williamson Act” in

Calif. Gov. Code Sect. 51200, Et Seq., which Appellates Requested

the Trial Court to take Mandatory Judicial Notice of, along with the

applicable Tulare County Zoning Regulations, which Law & Zoning

23
required land be 20 Acres before it is subdivided. The said land is

only 10 Acres, & could not be subdivided, per California Law. Said

Law Rendered the “Implied Condition” of the Contract to subdivide

it, an unlawful contract provision, & Void Ab Initio pursuant to

California Civ. Code Sect. 1667-68 & 1599;There can be no

provisions or conditions of a contract that require a party to it to

perform unlawful conditions, or what is not possible under law at

the time of forming the written contract. It was a legal

impossibility for Courtney Gillespie to obtain a subdivision of the

10 acre property at the time of the contract, due to the Law that

forbids subdivision, & he has no power or responsibility under the

agreement to change the Law of the State, or policy of Tulare

County. There are no provisions in the agreement requiring him to

re-negotiate the terms or conditions of the contract, thus the trial

Court was required to Grant Plaintiffs/ Appellants Motions, to Set

Aside & Vacate the Interlocutory Judgment of 8/5/14, based on the

Voidness of the “Decision” of 10/15/13, & the “Implied Provision”

stated by Judge Vortmann, & enter another Judgment in favor of

Plaintiffs, affirming the sale of half the 10 acres to Courtney

Gillespie, & set further proceedings on Plaintiffs action for

permanent Injunction against Defendants, including for damages.

24
 The 1/9/18 Opinion Of The 5th DCA

After the opening Brief was filed by Appellants and Respondents

failed to file any Brief or Object to the Opening Brief whatsoever,

this Court stated in its Opinion that there was no error in denying

any of these Motions, however this Court Omitted any mention of

the Claim of Appellants that the trial Court Judge Vortman did not

comply with the requirements of law for imposing any implied

provision into a contract, (see opinion of 1/9/18 attached as

Exhibit # 1 hereto this Petition / Brief). This Omission, along with

the Denial of the Motion for Judicial Notice of the Law relevant to

Appellants main point on Appeal, the Voidness of

the implied provision, which implied provision is the whole basis of

this Courts Affirmation of the Trial Courts Judgment, & Omission of

any mention or Determination on the merits of Appellants point in

I; E, that the Violation of the Williamson Act by said implied

provision rendered the implied provision Void Ab Intio, under Civil

Code Sect. 1667-1668, & thus there was nothing to rescind, & the

rest of the contract survived under Section 1599 is

is Prejudicial to Appellants State & federal Due Process Rights, &

has denied Appellants their State & Federal Rights to a Fair

25
impartial hearing of their Appeal, which must now be corrected by

this Court.

Issues Of Law

Authority For Rehearing

This Court Has Authority To Grant A Rehearing

Under Calif. Appellate Rules Of Court

Rule 8.268

This Court, The 5th DCA has authority to Grant a Rehearing in this

Appeal pursuant to

California Appellate Rules OF Court, Rule 8.268, which provides the

following:

“Rule 8.268. Rehearing”

“(a) Power to order rehearing

(1) On petition of a party or on its own motion, a reviewing court may order rehearing
of any decision that is not final in that court on filing.

(2) An order for rehearing must be filed before the decision is final. If the clerk’s
office is closed on the date of finality, the court may file the order on the next day the
clerk’s office is open.

26
(b) Petition and answer

(1) A party may serve and file a petition for rehearing within 15 days after:
(A) The filing of the decision;
(B) A publication order restarting the finality period under rule 8.264(b)(3), if the
party has not already filed a petition for rehearing;
(C) A modification order changing the appellate judgment under rule 8.264(c)(2); or
(D) The filing of a consent under rule 8.264(d).
(2) A party must not file an answer to a petition for rehearing unless the court requests
an answer. The clerk must promptly send to the parties copies of any order requesting
an answer and immediately notify the parties by telephone or another expeditious
method. Any answer must be served and filed within 8 days after the order is filed
unless the court orders otherwise. A petition for rehearing normally will not be
granted unless the court has requested an answer.
(3) The petition and answer must comply with the relevant provisions of rule 8.204.
(4) Before the decision is final and for good cause, the presiding justice may relieve a
party from a failure to file a timely petition or answer.”

(c) No extension of time

The time for granting or denying a petition for rehearing in the Court of Appeal may
not be extended. If the court does not rule on the petition before the decision is final,
the petition is deemed denied.

(d) Effect of granting rehearing

An order granting a rehearing vacates the decision and any opinion filed in the case
and sets the cause at large in the Court of Appeal.

II

Petitioners Contend Rehearing Is Necessary

To Preserve Due Process Of Law Equal Protection

And A Fair Impartial Hearing On Appeal

Due to the Courts Exceeding their Jurisdiction

rendering the Judgment of the Trial Court

27
 & Opinion Of the 5th DCA Void

______________________________________

A Court exceeds its Jurisdiction by Violating Express provisions of

written Law, rendering the Action Void Ab Initio, of no force or

effect whatsoever.

“A judgment void on its face because rendered when the court

lacked personal or subject matter jurisdiction or exceeded its

jurisdiction in granting relief which the court had no power to

grant, is subject to collateral attack at any time. See County of

Ventura v. Tillett (1982) 133 C.A. 3d 105, 110 disapproved of on

other grounds by County of Los Angeles v. Soto (1984) 35 Cal. 3d

483; see also Security Pac. Nat. Bank v. Lyon (1980) 105 C.A. 3d

Supp. 8, 13; An attack on a void judgment may also be direct, since

a court has inherent power, apart from statute, to correct its

records by vacating a judgment which is void on its face, for such a

judgment is a nullity and may be ignored.” Olivera v. Grace (1942)

19 Cal. 2d 570, 574;

The Court in the Case of Burtnett VS King, 33 Cal. 2d 805 (1949) at

page 807 ruled:

28
“It has been held repeatedly, and recently, that where a statute

requires a court to exercise its jurisdiction in a particular

manner, follow a particular procedure, or subject to certain

limitations, an act beyond those limits is in excess of its

jurisdiction. See Tabor v. Superior Court, 28 Cal.2d 505 ; Lord v.

Superior Court,

27 Cal.2d 855 ; Redlands etc. Sch. Dist. v. Superior Court, 20 Cal.2d

348 ; Abelleria v. District Court of Appeal, 17 Cal.2d 280 ;

Fortenbury v. Superior Court, 16 Cal.2d 405

[106 P.2d 411]; Evans v. Superior Court, 14 Cal.2d 563 [96 P.2d

107]; Rodman v. Superior Court, 13 Cal.2d 262 ; Spreckels S. Co. v.

Industrial Acc. Com., 186 Cal. 256 .”

As stated by our Supreme Court in the Case of:

Abelleira v. Dist. Court of Appeal, 17 Cal. 2d 280; S.F. No. 16357. In

Bank. February 7, 1941, at page: 288:

“But in its ordinary usage the phrase "lack of jurisdiction" is not

limited to

these fundamental situations. For the purpose of determining the

right to

29
review by certiorari, restraint by prohibition, or dismissal of an

action, a

much broader meaning is recognized. Here it may be applied to a

case

where, though the court has jurisdiction over the subject matter

and the

parties in the fundamental sense, it has no "jurisdiction"(or power)

to act

except in a particular manner, or to give certain kinds of relief, or

to act

without the occurrence of certain procedural prerequisites.”

“[2] A judgment is void on its face if the court which rendered the

judgment lacked personal or subject matter jurisdiction or

exceeded its

jurisdiction in granting relief which the court had no power to

grant.

Becker v. S.P.V. Construction Co. (1980) 27 Cal. 3d 489 , 493; Jones

v.World Life Research Institute (1976) 60 C. A.3d 836 , 840-848 If

the

30
judgment is void, it is subject to collateral attack. (Craft v. Craft

(1957)

49 Cal.2d 189 , 192”

A judgment void on its face may be set aside at any time.

(Hayashi v. Lorenz (1954) 42 Cal.2d 848 , 851; Estate of Estrem.

(1940), 16 Cal.

2d 563, 572; Plaza Hollister Ltd. Partnership v. County of San

Benito (1999)

72 C.A. 4th 1, 19.”“Both in their amended complaint and in their

motion to

vacate the orders in the guardianship proceeding, plaintiffs took

the

position that each of the orders therein was void on its face. In

such a case

they could be attacked and their invalidity shown at any time.” (In

re

Dahnke, 64 C.A. 555, 560 ; see also Olivera v. Grace, 19 Cal. 2d 570

,573-

574 ; Estate of Estrem , 16 Cal. 2d 563, 571; Luckenbach v.

Krempel, 188

31
Cal.175,177; People v. Davis, 143 Cal.673, 675-676; Winrod v.

Wolters, 141

Cal. 399, 402-403; Kreiss v. Hotaling, 96 Cal. 617, 622-623; People

v. City

of Barnes,105 Cal. App. 618, 622-623 ”

“The party procuring a judgment against another

without due process of law, or by fraud, takes it at his peril,.."

citing at page 731 the California Supreme Court Ruling

in the Case of Lapham v. Campbell, 61 Cal. 296 at page 300.

Thereafter at page 732 the same Appellate Court stated:

“'Likewise in Forbes v. Hyde, 31 Cal. 342, 347 (oftentimes quoted

by the

Supreme Court) it is said: "A judgment absolutely void upon its

face may

be attacked anywhere, directly or collaterally, whenever it

presents itself,

either by parties or strangers. It is simply a nullity, and can be

neither the

32
basis nor evidence of any right whatever.”“Whether the want of

jurisdiction

appears on the face of the judgment or is shown by evidence

aliunde, in

either case the judgment is for all purposes a nullity—past, present

and future.

Cf. Hill v. City Cab etc. Co.,79 Cal. 188

"Nothing can be acquired or lost by it; it neither bestows nor

extinguishes any right...It neither binds nor bars anyone. All acts

performed under it and all claims flowing out of it are void ...No

action upon the part of the plaintiff, no inaction upon the part of

the defendant, no resulting equity in the hands of third persons,

no power residing in any

legislative or other department of the government, can invest it

with any of the

elements of power or of vitality."

1 Freeman on Judgments, 5th ed., § 322, pp. 643-644.

“It is not amiss here to add that while the phrase "void judgment"

is convenient, it is a contradiction in terms. If a Judgment is Void,

33
it is not a Judgment.”

There is no basis in fact for Rescission or Breach of Contract;

Said “Implied” Provision is Void, under Calif. Civ. Code Sect. 1667-

68, 1599, & Gov. Code Sect. 51200, Et Sequiter, the Williamson Act.

Though the “Implied Condition” cited by Judge Vortmann was Void

Ab Initio, because it was an unlawful provision of a contract,

the rest of the contract survives & is valid & enforceable under

California C.C.P. Section 1599, The Severability Doctrine. The

failure of the implied condition does not affect the purpose of the

contract, nor prevent its provisions from being executed by the

parties. As stated in the trial court in Plaintiffs Written Objections

at Vol. 5 C.T. 1143, page 1147, lines 6-16, The remaining Lawful

Provisions are Valid, in Effect, & Enforceable under Calif. C.C. Sect.

1599, which Mandates:

“Where a contract has several distinct objects, one of which, at

least, is lawful, and one at

least is unlawful, in whole or in part, the contract is void as to the

latter and valid as to the rest.”

The Calif. Supreme Court Ruled in Marathon Enter., Inc. -v- Blasi

(2008)42 Cal. 4 th 974, at P- 991:

34
“The Doctrine of severability, codified in Civil Code Section 1599,

Preserves and enforces any lawful portion of a parties contract

that feasibly may be severed.” Marathon Enter., Inc. -v- Blasi

(2008) 42 Cal. 4 th 974, at page 991.

III

The Opinion Of 1/9/18 Goes Against Express Law

Of The State Of California In Gov. Code 51200;

Civil Code Sect. 1667-1668; 1599;

Which Is In Excess Of The

Courts Jurisdiction

The Excess Of Jurisdiction Renders

the Opinion Void Ab Intio & Is A

Prejudicial Denial Of Appellants

State & Federal Rights

To Due Process Of Law

35
 & Equal Protection

Which Denied Appellants

A Fair Impartial Hearing

Of Their Appeal

A Gross Miscarriage Of Justice

The Miscarriage Of Justice Now Requires

the Court To Grant Rehearing

Vacate The 1/9/18 Opinion

Reverse The trial Courts Judgment

& Grant the Relief Requested In

Appellants Opening Brief

_________________________________________

Request For Judicial Notice; Incorporation By Reference

Plaintiffs / Cross Defendants hereby Incorporate by Reference as if

fully

36
set forth herein the contents of the Request for Mandatory Judicial

Notice served & filed with their Opening Brief on Appeal, which is

hereby made a part of this opening brief.

___________________________________________________________

This Court 5th DCA erred when it denied Appellants Motion For

Judicial Notice

of the Williamson Act, Calif. Gov. Code Sect. 51200, Et Sequiter,

which was material & central to Appellants Appeal. It is clear by

the following Quote from the Williamson Act,

at Government Code Section 51230.2, which is the only exception

to the 20 acre minimum requirement for subdivision, that the 10

acre parcel of land in this Case was not qualified

to be subdivided under the exception in Gov. Code Sect. 51230.2:

“Calif. Gov. Code Section: 51230.2.”

“(a) Except as provided in Section 51238,

and notwithstanding Section 51222 or 66474.4,
a landowner may subdivide land that is currently
designated as an agricultural preserve
if all of the following apply:

(1) The parcel to be sold or leased is no more than five acres.

(2) The parcel shall be sold or leased to a nonprofit
organization, a city, a county, a housing authority, or a state
agency. A lessee that is a nonprofit organization shall not sublease
that parcel without the written consent of the landowner.
(3) The parcel to be sold or leased shall be subject to a deed
restriction that limits the use of the parcel to agricultural laborer
housing facilities for not less than 30 years. That deed restriction
shall also require that parcel to be merged with the parcel from

37
which it was subdivided when the parcel ceases to be used for
agricultural laborer housing.”

According to this provision a parcel to be sold or leased that is 5

acres,

“shall be sold or leased to a nonprofit organization,

a city, a county, a housing authority, or a state agency”

The record is clear here that Courtney Gillespie the purchaser of five (5)

of the ten

(10) acres in question does not fit those requirements, & no subdivision

could be made.

The Remaining Lawful Provisions Are Valid, in Effect, & Enforceable

Under California Law Under The Severability Doctrine Set Out In

Calif. Civil Code Sect. 1599 & The Court Ruling In Marathon

Entertain., Inc. VS Blasi (2008) 42 Cal. 4th 974 at page 991

If Petitioners would have known that this Court was going to give them short shrift on

their Contentions under I E violation of the Williamson Act without so much as any

specific Determination on the Violations of Law they have alleged, they would not have

waived oral argument, but would have appeared before the Court, though respondents

failed to even object or file any respondents Brief. This is in itself a denial of Due Process

of Law, and Equal Protection under the Laws. Appellants had a reasonable expectation

38
under the Due Process standards that the Court would have Ruled on the issues raised

under I E of their opening Brief, which defeats the “implied provision” finding of

Judge Vortman which is now the whole basis for this Courts Denial of any Relief.

“A judicial decision made without giving a party an opportunity to present argument

or evidence in support of his contention " is lacking in all the attributes of a judicial

determination." Spector v. Superior Court (1961), 55 Cal. 2d 839 at page 843.

“[2] Second. In proceeding No. 91313, was petitioner deprived of

his day in court? Yes. On December 21, 1960, when petitioner's

motion for an order modifying the preliminary injunction came on

for hearing, Judge Cotton refused to permit counsel for petitioner

to present any evidence or argument in support of his client's

position. “[3] It is a cardinal principle of our jurisprudence that a

party should not be bound or concluded by a judgment unless he

has had his day in court. This means that a party must be duly

cited to appear and afforded an opportunity to be heard and to

offer evidence at such hearing in support of his contentions. [4]

His right to a hearing does not depend upon the will, caprice or

discretion of the trial judge who is to make a decision upon the

issues. An order or judgment without such an opportunity is

lacking in all the attributes of a judicial determination. (McClatchy

[55 Cal.2d 844] v. Superior Court, 119 Cal. 413, 418, 421 [51 P. 696,

39 L.R.A. 691]; Collins v. Superior Court, 145 Cal.App.2d 588 , 594

39
[4] [302 P.2d 805]; Estate of Buchman, 123 Cal. App.2d 546 , 554

[5] 560 [267 P.2d 73,47 A.L.R. 2d 291] [hearing denied by the

Supreme Court].

Due to being caught by surprise by this Courts lack of any Ruling

on the key issue in

their Brief, they have been denied Due Process of Law. This Court

should now grant a

rehearing and allow Appellants to appear and address the Court to

preserve Due Process

of law, and Equal protection. Denial of such an opportunity would

be further denial of Due

process of law, due to the excess of jurisdiction in going against

the express statutory

provisions in Gov. Code Section 51200, Civil Code Sections 1599,

1667-1668.

“[5] Refusal to permit counsel for petitioner to present evidence

and make a reasonable argument in support of his client's position

was not a mere error in procedure.

40
It amounted to a deprival of a substantial statutory right and is not

covered by article VI, section 4 1/2, of the Constitution. (People v.

Sarazzawski , 27 Cal.2d 7 17 [13] et seq. [161 P.2d 934].)”

For all these reasons this Court is required to Grant this Petition

for rehearing.

IV

The Courts Denial Of Relief From Denial Of A trial

On Appellants Damages in their Complaint for

Injunction For Torts Committed By Nicklas Hoffman

On The Premise The Court Can Not Determine

If there Was A Trial On Such Damages

Defies The Record on Appeal In Which Judge Hicks

Judgment States The Complaint Of The Gillespies

Was Dismissed As Moot After The Hearing

On Balancing The Equities

This Court Is Required to Vacate Its Opinion

41
 And Grant Appropriate Relief From The

Clear Denial Of Due Process Of Law

_______________________________________

It is the well settled law of the State of California in Calif. CCP

Section 473, & in CCP Section 452 that a Plaintiffs Complaint must

be liberally construed with a view towards justice between the

Parties, and the Courts have broad discretion to grant leave to

amend the pleadings, which is liberally construed in favor of relief

in the Case of all Remedial Statutes in the State of California.

“California is committed to the rule of liberal construction of

pleadings, with a view to substantial justice between the parties”

Calif. C.C.P. Sect. 452;

It is also the well settled Policy of the State of California that

controversies be settled on

their Merits if at all possible, which is also referred to in California

Code of Civil

Procedure section 583.130, which states in appropriate part:

42
“the policy favoring trial or other disposition of an action on the

merits are generally to be preferred”...” “ordinarily it is abuse of

discretion to sustain a demurrer without leave to

amend if there is any reasonable possibility the defect can be

cured.” Goodman VS Kennedy (1976) 18 CAL. 3d 335, 339; Gould

VS Maryland Sound Industries, Inc. (1995) 31 C. A. 4th 1137, at

page 1152.

The fact that the Dismissal with Prejudice in this Case, comes not

from a Ruling on the Demurrer of Hoffman & his Counsel, does not

make it any less a Violation of Due Process of Law, & Equal

Protection under the laws, a Denial of Plaintiffs “Day in Court” & a

Gross Miscarriage of Justice in the Denial of that which is by well

and long established Policy of the Law of the State of California

Routinely Granted in every Case where the alleged deficiencies &

shortcomings can be cured or corrected by Amendment, as in this

Case the Defendants /Cross Complainants filed a Demurrer and

Motion to Strike Plaintiffs verified Complaint for Injunction & for

Damages against them, which was overruled by the Trial Court , at

Vol. 1, C.T. Page 83, Minute Order of November 16, 2010, wherein

the Trial Court, Judge Vortmann stated:

43
“Plaintiffs Complaint is sufficient to state a claim for injunctive

relief”, further stating that Defendants raised many issues in their

'demurrer' not properly raised by demurrer, and also stated that

Plaintiffs “requested monetary relief” in their Complaint. In their

Verified Complaint against Hoffman Plaintiffs alleged at C.T. 22- 26,

see Lines 23-28 at page 2 of

the Complaint, that Hoffman had 'removed many of Plaintiffs tools

and materials”..”..”

further alleging that:

'Plaintiffs sent a request to the board of trustees of Wysocki Trust

to assist them,' because Hoffman 'was removing Plaintiffs personal

property off Plaintiffs land, and had 'refused Plaintiffs access to

the four acres (end page 23) of land purchased by land contract'

Plaintiffs further alleged that: their said 'request went ignored,

and on January 4, 2010 Defendant filed an Unlawful Detainer to

Vex and Harass and that Hoffman was intent on keeping all the

improvements and buildings put up on the property by Plaintiffs,

while forcing Plaintiffs off the property.' Later, at C.T. page 24,

page 3 of the Complaint, Plaintiffs alleged that: 'by reason and

cause of the said wrongful and unlawful acts they will

44
sustain and had already sustained great and irreparable injury

because of

the taking of personal items and forcing Plaintiffs off their land by

countermanding public agencies through direct fraud.'

Finally at C.T. page 25 under VI, page 4 of the Verified Complaint,

Lines 18-22 Plaintiffs alleged:

'Plaintiffs have sustained damages as of May 1, 2010 in the sum of

over seven thousand

and six hundred and fifty nine dollars and if the acts are not

enjoined will sustain further damages in an amount to be

determined. Plaintiffs will therefore seek leave of the Court to

amend the complaint to state the amounts thereof when the same

have been ascertained.'

At C.T. 26, page 5 of the Complaint in the Prayer, Plaintiffs

requested for damages of $ 7,659 dollars and for further sums

according to damages to be sustained and hereafter alleged, for

costs of suit, and fees for legal assistance' for such and further

relief as the court deems just and proper.

45
“The party procuring a judgment against another without due

process of law, or by fraud, takes it at his peril,.."citing at page

731 the California Supreme Court Ruling in the Case of Lapham v.

Campbell, 61 Cal. 296 at page “A judicial decision made without

giving a party an opportunity to present argument or evidence in

support of his contention " is lacking in

all the attributes of a judicial determination." Spector v. Superior

Court (1961), 55 Cal. 2d 839 at page 843. After the Court Trial on

the Quiet Title Cross Action of Defendants /Cross Complainants

was held On 7/15/13 through 7/18/13, Plaintiffs filed a Motion to

amend the Answer to Defendants Cross Complaint, to conform to

evidence at the trial, C.T. page 1118-1134, Vol. 5; The Court took

the Motion under submission in its minute Order of 9/17/13; C.T.

page 1135; Dept. 7, Judge Paul Vortman filed his 'Decision On

Submitted Matter' C.T. page 1136-1142, Vol. 5; Needless to say the

Court, after taking the matter under submission never directly

ruled on that Motion, and the last opportunity for Plaintiffs to re

coup some of their Damages from Defendants was therefor lost

with the failure of the Trial Court to Grant that Motion, which

renders the subsequent Disposal of their Complaint for Injunction

and for Damages a compounding of Plaintiffs injuries, and

46
Prejudicial Reversible Error, for which Justice now requires that this

Appellate Court reverse the Final Judgment, with Directions to the

trial Court to vacate and set aside the

Interlocutory Judgment, and the' Decision' of 10/15/13 of Judge

Paul Vortmann

& reinstate Plaintiffs Law Suit and their Right to possession of half

of the said Real Property, order further Trial Court proceedings on

Plaintiffs Injunction and Damages,

including all Plaintiffs Damages that were never litigated or

considered by the trial

Court prior to its final Judgment & Disposal of Plaintiffs Original

Law Suit. It is the

well settled Policy of the State of California that Pleading be

liberally construed with

a view to substantial justice between the parties, & that the Courts

be liberal in allowing Amendments to pleadings, & the general rule

that a verified pleading not be Dismissed

with Prejudice without at least one opportunity to Amend it, if the

deficiencies or shortcoming can be corrected or cured. In this Case,

that Rule was ignored by the Trial Court, though they overruled the

Defendants Demurrer to Plaintiffs Complaint, finding Plaintiffs had

47
stated a Cause of Action for a Permanent Injunction against

Defendants, thereafter disposing of Plaintiffs Complaint with no

litigation on the merits of their

Claims for Personal Injuries from the Torts of Nicklas Hoffman. As

stated prior, Plaintiffs contend this Denial was a Miscarriage of

Justice requiring reversal with an Opportunity for Plaintiffs,

Appellants herein to litigate all their Damage Claims on the Merits

as required by Due Process of Law.

CONCLUSION

The foregoing in the Record was clearly miscarriage of Justice in

Excess of the Jurisdiction of the trial Court , & the 5th DCA.

Especially in light of the fact that Vortmans findings of a Rescission

were Void Ab Initio, without any basis in fact or Law, because it

was based upon his finding of an 'implied condition' of the contract

which the record shows was also Void Ab Initio, under Civil Code

Section 1667-1668, & 1599, and Government Code Section 51200

The Williamson Act. The Local Contract & Regulations of Tulare

County which are all in the record which this court was requested

to take Judicial Notice Of. In light of these

48
most egregious facts & circumstances in the Record this Appellate

Court is required

to Grant Rehearing & Reverse the Final Judgment of the Trial Court

with directions to reinstate Plaintiffs Right to possession of half

the property, and reinstate their Law Suit

for injunction and damages, allowing Plaintiffs to amend their

complaint with updated damages. Appellants / Petitioners

respectfully request this Court for said Relief,

on this day, the 24th day of January, 2018, in the County of Tulare,

Republic state of California,

__________________ __________________

Courtney Gillespie Melody Gillespie

Appellant Appellant

Certificate Of Word Count

Appellants hereby certify that we have performed a word

count using the Microsoft word count program on the
computer this opening brief was typed on and it is exactly
9.734 words.

49
 Exhibit Page
Index Of Exhibits

# 1: January 9 2018 Opinion of the 5th DCA

In Appeal Case # F073250

#1

Filed 1/9/18 Gillespie v. Hoffman CA5

50
 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication
or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered
published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

COURTNEY GILLESPIE et al.,

F073250
Plaintiffs, Cross-defendants and Appellants,
(Super. Ct. No. VCU238961)
v.

NICKLAS HOFFMAN et al., OPINION

Defendants, Cross-complainants and
Respondents.

APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks,
Judge.
Courtney Gillespie, in pro. per., for Plaintiff, Cross-defendant and Appellant Courtney
Gillespie.
Melody Gillespie, in pro. per., for Plaintiff, Cross-defendant and Appellant Melody
Gillespie.
No appearance for Defendants, Cross-complainants and Respondents.
-ooOoo-

Appellants, Courtney Gillespie and Melody Gillespie, challenge the judgment quieting title to a
10-acre parcel of real property.
Appellants entered into an agreement to purchase a portion of this property from
respondents. After appellants did not receive permission from the county to subdivide the parcel,
respondent, Nicklas Hoffman, returned the promissory note executed by Courtney Gillespie
marked “void” and returned the payments Gillespie made under the agreement. Following a
bifurcated trial, the court ruled that Hoffman had successfully rescinded the agreement in phase
one. In phase two, the court balanced the equities, awarded appellants over $18,000 in

51
compensation, ordered appellants to remove all their personal property from the premises, and
entered the quiet title judgment.
Appellants argue that the trial court granted relief that was not available under the facts and law.
Appellants further contend that the statute of limitations barred relief based on rescission. They
also assert the trial court committed various procedural errors.
The trial court did not err as appellants allege. Accordingly, the judgment will be affirmed.
BACKGROUND

The H.M. Wysocki Irrevocable Trust (Trust) owns the approximately 10-acre parcel in
dispute. Nickol Gerritsma and Nicklas Hoffman are the trustors and trustees of the Trust.
Hoffman resided on the north eight and one-quarter acres and appellants were in possession of
the remaining one and three-quarter acres.
Appellants moved onto the property in 2004 pursuant to an oral agreement with Hoffman.
In early 2005, Hoffman and Courtney Gillespie entered into an agreement for appellants to
purchase the portion of the parcel they were in possession of for $60,000. Appellants were
required to make minimum monthly payments of $600. Courtney Gillespie gave Hoffman a
promissory note dated February 1, 2005. Courtney Gillespie was to apply for a subdivision of the
property at his expense instead of a cash down payment. Until subdivided, the parcel was to
remain in the Trust.
Courtney Gillespie did not get county approval to subdivide the property. Further,
Gillespie wanted to change the division line the parties agreed to. In response, Hoffman wrote
“VOID” over the face of the promissory note and returned it to Courtney Gillespie in late 2005.
Hoffman also gave Courtney Gillespie a check for the payments Gillespie had made and told him
they did not have an agreement. However, Hoffman also told appellants that they could stay on
the property while they looked for a new place.
In 2009, Hoffman told appellants that he wanted to sell the property and that they needed
to look for another place.
In August 2010, appellants filed a complaint against Hoffman and the Trust. Appellants
alleged that Hoffman was threatening to remove all of appellants’ belongings unless appellants
signed a lease for the property they were possessing. Appellants further alleged that Hoffman
had already removed many of their tools and materials. According to appellants, they did not

52
rent the property from Hoffman but, rather, they co-owned the property with the Trust and
intended to follow through with the original purchase agreement. Based on these allegations,
appellants sought an injunction.
The Trust, through its trustees Hoffman and Gerritsma, filed a cross-complaint against
appellants for ejectment, declaratory relief, and quiet title. The Trust sought to recover
possession of the property. The Trust further requested a judicial determination of its rights and
duties under the proposed land sale agreement and a declaration that the agreement is void and
of no legal effect. Finally, the Trust asked for a judgment that it is the sole owner of the property
and that appellants have no interest in the property.
The Trust moved to bifurcate the quiet title action from the other issues in the case.
According to the Trust, ownership of the property in appellants’ possession was a foundational
issue for other issues in the case. The trial court granted the motion over appellants’ objection
and set the quiet title cause of action for trial.
The court tried the quiet title cause of action over several days and took the matter under
submission. Thereafter, the court ruled the purchase agreement clearly set forth the intent of the
parties to transfer real property held in the Trust to Courtney Gillespie. However, the agreement
contained an implied condition that required Courtney Gillespie to “take reasonable action in a
timely fashion to accomplish the transfer of one half the subject properties by obtaining approval
of the County of Tulare.”
The court found that Courtney Gillespie did not obtain a split of the 10-acre parcel and
therefore breached the agreement. The court further noted that Gillespie determined that a
division of the property not provided for in the agreement was more appropriate and that
Hoffman, on behalf of the Trust, disagreed. The court concluded, “[t]he failure of Courtney
Gillespie to proceed to obtain County of Tulare approval of a lot split, with the assistance of the
Trust, and his decision to change the boundaries of the lot split make the Trust the injured party.
Nicholas Hoffman returned to Courtney Gillespie the payments made and successfully rescinded
the agreement.” Accordingly, the court held that neither of the appellants had any interest in
title to the subject property.
Thereafter, the court tried the remaining issues. The court balanced the equities between
the parties due to the rescission of the purchase agreement and entered an interlocutory
judgment on August 5, 2014. The court credited sums to appellants for their direct payments,

53
their payment of Hoffman’s electricity, and the increase in the value of the land. The court then
offset this amount by the value of appellants use and occupancy of the one and three-quarter
acres from September 1, 2004 until September 30, 2014 at $250 per month. This left a net credit
in favor of appellants of $18,533. The court ordered appellants to remove all of their personal
property from the premises and ordered the Trust to pay what it owed to appellants.
The parties complied with the interlocutory order and the court entered the final order.
The court confirmed and quieted the Trust’s title to the 10-acre parcel as against any claims by
appellants and ruled that neither appellant had any interest in title to this real property.

DISCUSSION

1. The trial court correctly found that Hoffman rescinded the purchase agreement.
Appellants argue that the trial court exceeded its jurisdiction in finding Hoffman
successfully rescinded the agreement because Civil Code section 1689 does not authorize
rescission for failure to obtain a subdivision of the property.
Civil Code section 1689, subdivision (b)(2), provides that a party to a contract may rescind
the contract “[i]f the consideration for the obligation of the rescinding party fails, in whole or in
part, through the fault of the party as to whom he rescinds.”
Although the trial court did not specify this subdivision, it is clear from the statement of
decision that the trial court relied on this ground to find rescission. The trial court determined
that an implied condition of the agreement was that Courtney Gillespie would seek authorization
from the county to split the 10-acre parcel. The court further found that Courtney Gillespie
failed to obtain the required authorization and unilaterally decided to change the boundaries of
the lot split. Thus, the court concluded Courtney Gillespie was the party at fault. The record
supports the trial court’s conclusion and appellants do not argue otherwise.
The implied condition that Courtney Gillespie obtain authorization for the lot split was
part of the consideration for the agreement. In fact, this obligation replaced the down payment
on the property. When Courtney Gillespie did not obtain the required authorization, he caused a
failure of consideration. Therefore, the Trust was entitled to rescind the agreement unilaterally.
(Civ. Code, § 1689, subd. (b)(2); Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga
(2009) 175 Cal.App.4th 1306, 1337.)

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2. The statute of limitations did not bar the trial court’s rescission finding.
Appellants note the trial court found that Hoffman rescinded the agreement in late 2005.
Based on this fact, they argue that the four-year statute of limitations under Code of Civil
Procedure section 337 for actions based on breach of contract and rescission barred the trial
court from finding that appellants had no interest in the property.
However, the Trust did not file its cross-complaint to either rescind the agreement or
recover damages for appellants’ breach. Rather, the Trust sought to eject appellants from the
property and quiet its title after appellants claimed that they co-owned the parcel. Whether
Hoffman’s unilateral effort to rescind the agreement in 2005 was successful was merely a
foundational issue for the quiet title cause of action. There was no need for the Trust to sue to
rescind the agreement because the rescission had already taken place. Therefore, the rescission
statute of limitations is irrelevant.

3. The alleged procedural errors are meritless.

a. Appellants’ motion to vacate the August 5, 2014, interlocutory judgment.

Appellants moved to vacate the August 5, 2014, interlocutory judgment under Code of Civil
Procedure section 663 on the ground that the trial court’s earlier decision on the quiet title cause
of action was void. The trial court denied this motion. Appellants argue the trial court erred.
As discussed above, the trial court correctly found that Hoffman rescinded the agreement.
Thus, no error occurred.
b. Appellants’ motion to amend their answer to the cross-complaint.
Following the trial on the quiet title cause of action, appellants filed a motion to amend
their answer to the cross-complaint to conform to proof. Appellants sought to add quantum
meruit and specific performance as affirmative defenses to the quiet title action. Appellants
argue the trial court should have granted this motion.
However, when appellants filed their motion, the trial court had ruled on the quiet title
cause of action in favor of the Trust. Thus, the litigation on that cause of action at the trial court

55
level was complete. Therefore, an amendment to the answer to that cause of action would have
been meaningless. Thus, no error occurred.
c. The bifurcation of the action.
Appellants assert that the bifurcation of the action prevented them from litigating their
claims for damages based on allegations of Hoffman’s misconduct. According to appellants, at
the trial on the issues remaining after the quiet title trial, the court ignored their damages claims.
While the judgment does not specifically address appellants’ damages claims, appellants
did not provide a reporter’s transcript of the trial. Thus, we do not know whether the court
addressed and ruled on those claims during the trial.
We presume the trial court’s judgment is correct. (Wilson v. Sunshine Meat & Liquor Co.
(1983) 34 Cal.3d 554, 563.) The burden is on the appellants to show reversible error by an
adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) Appellants have not met this
burden.1

DISPOSITION

The judgment is affirmed. No costs on appeal are awarded.

_________________________
LEVY, Acting P.J.
WE CONCUR:

_________________________
FRANSON, J.

_________________________
MEEHAN, J.56

1 Appellantshave moved this court to take judicial notice of statutes and portions of the record.
This motion is denied on the ground that it is unnecessary.

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