DeclarationCal. Super. - 6th Dist.August 1, 2019\ooo-qox'MAmNH NNNNNNNNNHHHHH - Vooqoxm-Awwwcxoooxxoxm35535 1QCV352481 Santa Clara - Civil JOSEPH M. SWEENEY, ESQ. (78363) Electronically Filed M. JONATHAN ROBE, JR. (SBN 290457) by Superior Court of CA, SWEENEY, MASON, WILSON & BOSOMWORTH County of Santa Clara, A Professional Law Corporation on 11 l1 4/201 . 983 University Avenue, Suite 104C Reviewed B 9. gzfi PuMen Los Gates, CA 95032-7637 _ » C #1 9W3;- - 9 Y Telephone: (408) 356-3000 ase 52431 Facsimile: (408) 354-8839 Envelope: 3652091 Attorneys for Defendant JOHN GARDNER, individually and as Successor Trustee of the Gardner Living Trust UDT dated April 26, 1991, erroneously sued as the DONNA GARDNER LIVING TRUST SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ANTHONY DEPHILLIPS and RENINA NO.: 19CV352481 REBECCA GIME DEPHILLIPS, as individuals and Trustees of the DEPHILLIPS DECLARATION OF M. JONATHAN FAMILY REVOCABLE LIVING TRUST ROBB, JR. IN SUPPORT OF DATED NOVEMBER 20, 201 8, DEFENDANT JOHN GARDNER’S _ DEMURRER AND MOTION TO STRIKE Plaintiffs, PORTIONS 0F THE VERIFIED COMPLAINT V. Hearing Date: March l7, 2020 JOHN GARDNER, individually and as Hearing Time: 9:00 a.m. Successor Trustee 0f the DONNA Department: 8 GARDNER LIVING TRUST; THE FORECLOSURE COMPANY, INC., a California corporation and DOES 1 through 100, inclusive Defendants. I, M. Jonathan Robb, Jr., declare that: 1. 1am an attorney at law, duly licensed to practice before all courts of the State of California, and am a member of the law firm of Sweeney, Mason, Wilson & Bosomworth, attorneys of record herein for Defendant JOHN GARDNER, individually and as Successor Trustee 0f the DONNA GARDNER LIVING TRUST, in the above captioned matter. I make this declaration in support of John Gardner’s Demurrer and Motion to Strike Portions of the Verified Complaint. I /// DECLARATION OF M. JONATHAN ROBB, JR. 1 \o-ooqoxmgmm_' NNNNNNNNNH'H ‘ ooqmmbwwwcxooozaGECEZE 2. Attached hereto as Exhibit A is a true and correct copy of a letter sent by my office to office for counsel of Plaintiffs dated September 24, 2019, attempting to meet and confer. 3. Attached hereto as Exhibit B are true and correct copies of emails between my office and office for counsel of Plaintiffs that were exchanged between September 24, 2019 and the date of execution of this declaration pertaining to our meet and confer attempts. As reflected in those emails, ultimately, on October 21, 2019, Plaintiffs extended the time for Gardner to respond t0 the Complaint until November 15, 2019. They further agreed to hold a meet and confer call on November 8, 20 1 9. However, thirty minutes before the call, Plaintiffs unilaterally cancelled the call. Later in the day on November 8, 2019, Plaintiffs refused to further meet and confer, or provide any authority to support their pcisitions. Defendant Gardner then provided a deadline for Plaintiffs to call counsel to meet and confer, or Defendant Gardner would proceed with his motions. Plaintiffs did not call counsel by that deadline, or at any time through the execution 0f this declaration. I I declare under penalty ofperjury under the laws of the State 0f California that the foregoing is true and correct. Executed this lqfl’day ofNovember, 2019, at Los Gatos, California. O/MW. ‘M. finét'han Robb, Jr. DECLARATION OF M. JONATHAN ROBB, JR. ' 2 EXHIBIT A I SWEENEY 983 University Avenue, Suite 104CMASON ‘ WILSON Los Gates, CA 95032-7637 BOSOMWORTH Telephone: (408)356-3000 A W“ CORPORATEO“ I - ‘ ~ Facsimile: (408)354-8839 M. Jonathan Robb, Jr. , A irgbwsmwbmm September 24, 2019 * Via Email Only Adam L. Pedersen, Esq. BREWER OFFORD & PEDERSEN, LLP 2501 Park Blvd., 2nd Floor Palo‘Alto, CA 94306 adam@brewerfirm.com Re: DePhillips v. Gardner Dear Mr. Pedersen, - We write to meet and confer on behalfofDefendant John Gardner in advance ofa demurrer and motion to strike pursuant to Code of Civil Procedure sections 430.41 and 435.5. The Complaint in the above matter. is deficient for a number of grounds, including the following: 1. The Sixth of Cause of Action for Wrongful Foreclosure is premature, as Defendant has not noticed the sale or sold the property. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 929.) Therefore, Plaintiffs do not have standing to assert the claim. I (e.g., Valley Forge College v. Americans United (1982) 454 U~.S. 464, 472 [Standing “requires the party who invokes the court’s authority to show that he personally has suffered some actual or threatened injuryas a result of the putatively illegal conduct of the defendant.”].) Rather, pre- sale, Plaintiffs’ remedy is to quiet title, if the elements have been met. (See generally, Debrunner v. Deutsche Bank National Trust C0. (2012) 204 Cal. App. 4th 433.) 2. We are not aware of any authority giving rise to a cause of action for “cancellation of the loan documents” as alleged in Plaintiffs’ Third Cause of Action. Rather, I again, the appropriate cause of action to strike the notice of default would be to quiet title, if the "elements have been met. 3. Plaintiffs’ First Cause of Action for declaratory relief is not a cause of action, but a form of relief. (Batt v. City and County ofSan Francisco (2007) 155 Cal.App.4th 65, 82 [disapproved on other grounds in McWilliams v. City ofLong Beach (2013) 56 Cal. 4th 613, 626].) 4. Plaintiffs’ Fourth Cause of Action for Injunctive Relief is not a cause of action, but a form of relief. Courts are clear that, “[i]_njunctive relief is a remedy, not a cause ofaction.” I (Allen v. City ofSacramento (2015) 234 Cal.App.4th 41, 65.) ' Adam Pederson September 24, 2019 Page l 2 As a result of these deficiencies, Plaintiffs are not entitled t0 punitive damages under the remaining cause of action for quiet title. The punitive damages prayer for reliefagainst Gardner should be stricken. In addition, the documents provided to you in connection with the hearing on the preliminary injunction make it quite clear that the conduct of Gardner cannot possibly arise . to the level required by punitive damages. Though we realize this particular additional issue cannot be raised by demurrer, we request that the punitive damages claim be stricken to avoid unnecessary further law and motion on the patently frivolous claim. We will meet and confer with you by phone as required by code. Please provide several dates and times of your availability after you have had a chance to review the above authority. In the meantime, we will prepare and file a declaration for an automatic extension. Best regards, SWEENEY, MASON, WILSON & BOSOMWORTH VWW¢ M. JONATHAN ROBB, JR. MJR: c: Ashlee D. Gonzales, Esq. Sent: Monday, October 21, 2019 10:13 AM To: Jonathan Robb Cc: Adam Pedersen; Joe Sweeney; Anna Delgado Subject: I RE: Dephillips: Discovery Responses Johnathan, Works for me. I’ll set it on the calendar now. Lorena Roe! Real Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park Bivd, 2nd Fioor l Palo Alto, CA 94306 t: (650) 327-2900 (ext. 23) J f: (650) 32?~5959 e: iorena o brewerfirmcom 1 w: http://www.brewerfirm.com/ Real Estate Law NewsletterSubscribe for Free Details About Our Transition from Law Offices of Peter N. Brewer From: Jonathan Robb Sent: Monday, October 21, 2019 10:07 AM To: Lorena Roel Cc: Adam Pedersen ; Joe Sweeney ; Anna Delgado Subject: RE: Dephillips: Discovery Responses Lorena, Yes, that’s fine. What date/time do you want to re-set the call to? How about 11/8 at 10am? Thanks, Jon M. Jonathan Robb, Jr. Sweeney, Mason, Wilson & Bosomworth 983 University Ave., Ste. 104C Los Gatos, CA 95032 Telephone: (408) 3563000 Fax: (408) 354-8839 From: Lorena Roe! Sent: Monday, October 21, 2019 10:03 AM To: Jonathan Robb Cc: Adam Pedersen ; Joe Sweeney ; Anna Delgado Subject: RE: Dephillips: Discovery Responses Jonathan, Sorry for the mistake. Yes, the hearing on the Prelim that took place on September 27, 2019. Lorena Roe! Real Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park Bivd, 2nd F&oor l Pate Atto, CA 94306 t: (650) 3272900 (ext 23) I f: (650) 327-5959 e: lorena a brewerfirmcom 1w: httpz/lwww‘brewerfirmcom/ :22; m m Real Estate Law -- From the Ground Up® Details About Our Transition from Law Offices of Peter N. Brewer From: Jonathan Robb Sent: Monday, October 21, 2019 10:01 AM To: Lorena Roel Cc: Adam Pedersen ; Joe Sweeney ; Anna Delgado Subject: RE: Dephillips: Discovery Responses Lorena, I’m not sure what ex parte you are referring to. Did you mean the hearing on the Pl? Thank you. Jon From: Lorena Roel Sent: Monday, October 21, 2019 9:58 AM To: Jonathan Robb Cc: Adam Pedersen ; Joe Sweeney ; Anna Delgado Subject: RE: Dephillips: Discovery Responses Jonatha n, i hoped that we would have received a response from the Court regarding the Ex Parte prior to our meet and confer. Since we have not, twill grant you an extension regarding your potential filing of a demurrer and motion to strike to November 15, 2019. ' Thus, we can postpone this meet and confer discussion to the first week of November and you can spend more time with your newborn. Lorena Roel Real Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park vad, 2nd Fioor j Pale Atto, CA 94306 t: (.650) 32712900 (ext. 23) i f: (650) 327-5959 e: Eorena _o brewerfirmcom lw: httpzl/www‘brewerfirmcom/ I ’ i ax m Real ae Law -- From the Ground Up® ”3 Real Estate Law NewsletterSubscribe for Free a Details About Our Transition from Law Offices of Peter N. Brewer From: Jonathan Robb Sent: Thursday, October 17, 2019 8:58 AM To: Lorena Roel Cc: Adam Pedersen ; joe Sweeney ; Anna Delgado Subject: RE: Dephiflips: Discovery Responses Lorena, 11am Monday will work for me. Thanks, Jon From: Lorena Roel Sent: Wednesday, October 16, 2019 5:59 PM To: Jonathan Robb Cc: Adam Pedersen ; Joe Sweeney ; Anna Delgado Subject: RE: Dephillips: Discovery Responses Johnathan, Are you available on Monday. I am available anytime after 11 a.m. Let me know what time works best for you. Ashlee just gave birth to her first child so i need to manage some additional discovery that is due this upcoming Friday for her cases. Thank you for being flexible. Lorena Roe! Real Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park Bévd, 2nd Floor f Pale AEtO, CA 94306 t: (550) 327-2900 (ext 23) i f: (650) 327-5959 e: lorena o brewerfirm.com Ew: http://www.brewerfirm.com/ Real Etstae Law -- From the Ground Up® Rea! Estate Law NewsletterSubscribe for Free Details About Our Transition from Law Offices of Peter N. Brewer From: Jonathan Robb Sent: Monday, October 14, 2019 10:28 AM To: Lorena Roel Cc: Adam Pedersen ; Ashlee D. Gonzales ; Joe Sweeney ; Anna Delgado Subject: RE: Dephillips: Discovery Responses Lorena, Thanks for the well-wishes. Let’s re-set the call. Do you have any time in the morning of any day this week? If you will refence any authority during the call, it would be helpful if you would send it to me before the call. Best, Jon M. Jonathan Robb, Jr. Sweeney, Mason, Wilson & Bosomworth 983 University Ave., Ste. 104C Los Gatos, CA 95032 Telephone: (408) 356-3000 Fax: (408) 354-8839 From: Lorena Roel Sent: Monday, October 7, 2019 10:42 AM To: Christine Hilton Cc: Adam Pedersen ; Ashlee D. Gonzales ; Joe Sweeney ; Jonathan Robb Subject: RE: Dephillips: Discovery Responses Congratulations Johnathan! Lorena Roe! Real Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park Bivd, 2nd F530: l Pats) Alto, CA 94366 t: (650) 327-2900 (ext. 23) t f: (650) 3271-5959 e: lorena > bwerfirm.com Ew: http://www.brewerfirm.com/ Rea! E tLaw --- From the Ground Up® ~ Real Estate Law NewsletterSubscribe for Free Details About Our Transition from Law Offices of Peter N. Brewer From: Christine Hilton Sent: Monday, October 7, 2019 9:58 AM To: Lorena Roel Cc: Adam Pedersen ; Ashlee D. Gonzales ; Joe Sweeney ; Jonathan Robb Subject: RE: Dephillips: Discovery Responses Ms. Roel, I am writing to inform you that the telecon set for today at 3 p.m. is canceled. Jonathan Robb is off to be with his new daughter. He will contact you to reschedule when he returns to the office. Best regards, Christine Hil’ron Legal Assistant to RogerM. Mason, Esq. Kurt E. Wilson, Esq. Rachael E. Brown, Esq. M, Jonathon Robb, Esq. E swams? M5503 : mason r '- a soqugm ’Kv'i'su 983 Univ'ers'ityA've, Suité: 104C Los Gotos, CA 95032 Tel: 408-356-3000 Fox: 408-354-8839 www.smwb.com CONFIDENTIALITY: This email and any attachments thereto, is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, and any attachments thereto, is strictly prohibited. If you have received this e-mail in error, please immediately notify me by telephone at (408) 356-3000 and permanently delete the original and any copy of any e-maii and printout thereof. NOT INTENDED AS A SUBSTITUTE FOR A WRIT¥NG Notwithstanding the Uniform Electronic Transaction Act or the applicabiiity of any other law of similar substance or effect, absent an express statement to the contrary hereinabove, this e-mait message, its contents, and any attachments hereto are not intended to represent 3n offer or acceptance to enter into a contract and are not otherwise intended to bind this sender, Sweeney, Mason, Wiison & Bosomworth, any of its clients, or any other person or entity. From: Jonathan Robb Sent: Friday, October 04, 2019 8:53 AM To: Lorena Roel Cc: Adam Pedersen ; Ashlee D. Gonzales ; Joe Sweeney ; Christine Hilton Subject: RE: Dephillips: Discovery Responses Yes, that’s fine. Please forward me your authority with sufficient time for me to review prior to the call. From: Lorena Roel Sent: Thursday, October 3, 2019 5:01 PM To: Jonathan Robb Cc: Adam Pedersen ; Ashlee D. Gonzales ; Joe Sweeney ; Christine Hilton Subject: RE: Dephillips: Discovery Responses Jonathan, I am still reviewing the cases you have cited. Let’s reschedule for Monday at 3? Lorena Roel Rea! Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park Blvd, 2nd Floor l Pam Alto, CA 94306 t: (650) 327-2900 (ext. 23) E f: (650) 327-5959 e: Iorena 9 breweircom i w: httpzllwwwbrewerfirmcoml v § m in Real Estate Law ~- From the Ground Up® 4 Real Estate Law NewsletterSubscribe for Free Details About Our Transition from Law Offices of Peter N. Brewer From: Jonathan Robb Sent: Tuesday, October 1, 2019 9:52 AM To: Lorena Roel Cc: Adam Pedersen ; Ashlee D. Gonzales ; Joe Sweeney ; Christine Hilton Subject: RE: Dephillips: Discovery Responses Lorena, How about Friday at 2pm? lffiyou will refer to authority during the call, please provide it to me sufficiently in advance of the call so that | can meaningfully assess it. There is a possibility l need to cancel in light of my wife’s pregnancy, in which case Chris will contact you. Best, Jon From: Lorena Roel Sent: Tuesday, October 1, 2019 9:46 AM To: Jonathan Robb Cc: Adam Pedersen ; Ashlee D. Gonzales ; Joe Sweeney ; Christine Hilton Subject: RE: Dephillips: Discovery Responses Johnathan, Thank you for the additional week. I am available Friday afternoon or the following Monday afternoon. Let met know which day works best for you and we can select a specific time. Lorena Roe! Real Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park Bivd, 2nd Float l Pate AEto, CA 94306 t: (650) 32732900 (ext. 23) t f: (650) 327-5959 e: lorena e brewerfirm.com [WI http://www.brewerfirm.com/ 3' ”*1 m Real sat Law ---- From the Ground Up® Real Estate Law NewsletterSubscribe for Free Details About Our Transition from Law Offices of Peter N. Brewer From: Jonathan Robb Sent: Monday, September 30, 2019 5:35 PM To: Lorena Roel Cc: Adam Pedersen ; Ashlee D. Gonzales ; Joe Sweeney ; Christine Hilton Subject: RE: Dephillips: Discovery Responses Lorena, We’ll provide until 10/18, if you do not serve until then. We look forward to full and complete responses with the extra time. Please also obtain and provide dates of availability for Plaintiffs’ depositions. Any updates on dates and times for a call to meet and confer regarding the demurrer? Thank you. Jon M. Jonathan Robb, Jr. Sweeney, Mason, Wilson & Bosomworth 983 University Ave., Ste. 104C Los Gatos, CA 95032 Telephone: (408) 356-3000 Fax: (408) 354-8839 From: Lorena Roe! Sent: Monday, September 30, 2019 5:27 PM To: Jonathan Robb Cc: Adam Pedersen ; Ashlee D. Gonzales Subject: Dephillips: Discovery Responses Johnathan, Per your conversation with Adam at the hearing last Friday, you stated that we could have an extension to provide discovery responses. Such extension is greatly appreciated. This email is to set the exact date to produce the discovery responses. We request the extension to October 11, 2019. Lorena Roel Real Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park Blvd, 23d Fioor I [3an AEto, CA 94306 t: (650) 3272900 (ext. 23) 5 f: (650) 32?-5959 e: lorena bewerfirm.com 1w: http://www.brewerfirm.com/ a ax m Real Estate Law --- From the Ground Up® an; Real Estate Law NewsletterSubscribe for Free 3a Details About Our Transition from Law Offices of Peter N. Brewer EXHIBIT B2 I Jonathan Robb v From: Jonathan Robb Sent: Monday, November 11, 2019 12:52 PM To: 'Adam Pedersen‘; Lorena Roel Cc: Joe Sweeney; Anna Delgado Subject: « RE: DePhiIIips: Bond, Ex Parte, Meet and Confer Adam, We have already stated what we intend to do. We have noticed our ex parte, and have advised that we will proceed with the demurrer unless you provide us with contra authority. If you’d like to avoid those motions, please provide the information requested. For the bond, we need a deadline. Plaintiffs missed the one set by law. Plaintiffs have not proposed one. Uniess Plaintiffs are willing to stipulate to a reasonable date by which the bond is obtained, or the injunction is voided, we have no choice but to proceed with the ex parte. If Plaintiffs would like to make a proposal to mediate, they may of course do so. We have not received an on-the-record response to our 9/5/19 correspondence regarding settlement. Defendant declines to negotiate against himself. We disagree with your remaining comments and positions. Thank you. Best, Jon M. Jonathan Robb, Jr. Sweeney, Mason, Wilson & Bosomworth 983 University Ave., Ste. 104C Los Gatos, CA 95032 Telephone: (408) 356-3000 Fax: (408) 354-8839 From: Adam Pedersen Sent: Monday, November 11, 2019 9:49 AM To: Jonathan Robb ; Lorena Roel Cc: Joe Sweeney ; Anna Delgado Subject: Re: DePhillips: Bond, Ex Parte, Meet and Confer Jonathan, We made no such request for further briefing at the hearing nor did the Court offer up the same. As stated by Lorena, we continue to make efforts to obtain the bond but our clients' may simply be financially unable to do so. Therefore, if you choose to appear ex parte to seek relief from the injunction, we will at the same time _ appear ex parte for relief from the bond requirement. While I cannot predict what the Court will do, i believe the ruling on the injunction strongiy suggests the Court is more likely to yield on the bond requirement than to aHow your client to proceed with the foreclosure. In any event, we will continue to update you on efforts to obtain the bond and hope that court intervention will not be needed. As to your demurrer, I believe Lorena's point is that given the demurrer will not dispose of the case and given that the arguments you raise won't be waived if you simply answer, it seems like a poor investment of the parties resources. As | have said from the beginning, this case seems best directed toward mediation, given the state of the evidence in support of the underlying debt - a point amply made by the Court when the judge found each and every document submitted by defendants to be inadmissible. In any event, your strategy is your own. lf we cannot come to agreement on an amendment to the complaint, l su5pect you will proceed with the demurrer. However, should your client be amenable, we are open to participating in an early mediation which may obviate the need for the same. Let us know what you intend to do. Thanks, Adam Pedersen Senior Partner, Brewer Offord & Pedersen LLP 2501 Park Bivd, 2nd Fioor 1 Pale Aito, CA Q4306 t; (656)) 32?~2900 (ext. 20) i f: (850) 327-5959 e: adam@brewerfirm.com g w: http://www.brewerfirm.com/ mamgm Real Estate Law ---- From the Ground Up® a Real Estate Law NewsletterSubscribe for Free 2% Details About Our Transition from Law Offices of Peter N. Brewer From: Jonathan Robb Sent: Friday, November 8, 2019 5:29 PM To: Lorena Roe! Cc: Joe Sweeney ; Anna Delgado ; Adam Pedersen Subject: RE: DePhiHips: Bond, Ex Parte, Meet and Confer Lorena, As you point out, Judge Williams considered and rejected Plaintiffs’ request for further briefing on the bond waiver. If you intend to fife a motion regarding that issue, you are free to meet and confer. Until then, Plaintiffs remain in violation of the court’s order. We will proceed with the ex parte on Wednesday absent an indication from you that Plaintiffs are making a meaningful effort to comply with the court’s order. I have not said that Plaintiffs cannot comply; only that their chosen course seems to be particularly dilatory and useless. I suspect the run-around has intentionally picked products Plaintiffs know they cannot obtain, in a deliberate attempt to avoid paying the bond. You also misstate the contents of our letter, as you have apparently not even read it. We attach it for your convenience. It does not rely on any of the arguments made in support of the PI, nor does it attempt to ”throw out” the case. It does not propose to challenge either the negligence or quiet title causes of action. Absent further communication from you, we understand that you have refused to meet and confer as required by code without even reading our letter. As a result, we will proceed with the demurrer. While we are here, do you have any indication for me that Plaintiffs will revise their discovery responses? As the responses stand, they are grossly evasive and an abuse of discovery. They even intentionaily hide the financial information on which you purportedly rely to request waiver of the bond. Thank you for your attention. Jon M. Jonathan Robb, Jr. Sweeney, Mason, Wilson 8: Bosomworth 983 University Ave., Ste. 104C Los Gatos, CA 95032 Telephone: (408) 356-3000 Fax: (408) 354-8839 From: Lorena Roel Sent: Friday, November 8, 2019 5:05 PM To: Jonathan Robb Cc: Joe Sweeney ; Anna Delgado ; Adam Pedersen Subject: RE: DePhiIlips: Bond, Ex Parte, Meet and Confer Jonathan, Ex Parte Thank you for moving the ex parte to Wednesday, if you intend to move forward with the matter. if you do, then we will seek relief from the Court to remove the bond from the Order. We have made significant efforts to try to obtain the bond and will continue to make those efforts until the Court grants a relief from doing so. It is my opinion that the Court will either revise the amount ofthe bond or remove the bond requirement all together due to our client's economic status. At Court, Adam stated our clients were insolvent, and we know that everyone says that, but based our efforts on your own statements regarding our clients one asset, the property, it seems to be true. If our client’s do not have the capability to get a bond, as their one asset has so many other liens against it, then we have no further recourse then to seek relief from the Court. Based on the opinion stated within the Order, I doubt the Court will reverse their decision solely because our clients are not able to obtain a bond. Please let me know on Tuesday if you intend to appear on Wednesday. Meet and Confer In tight of the opinion presented in the Order, it seems unlikely that a demur will be granted as the arguments presented in such demur are similar to those presented on the prelim injunction. It seems that it will be a waste of your client’s cost to move forward with such arguments when the Court has already stated that none of the evidence your client has presented is admissible. Also the fact that the percentage of a case to be thrown out of Court due to a demur is miniscule, especially compared to the outcome of this matter which is: our clients have their home of 30+ years stripped from them or they don’t. If you intend to proceed with the Demur, then we will discuss next week. However, if your ciient has a change of heart in light of the opinion within the Order and presented at the hearing, then we can cancel. Lorena Roe! Real Estate Attorney, Brewer Offord 8; Pedersen LLP 2501 Park Bivd, 2nd Fioor l P310 Alto, CA 94306 t: (650) 327-2900 (ext. 23) 5 f: (650) 3276959 E“ Details About Our Transition from Law Offices of Peter N. Brewer From: Jonathan Robb Sent: Friday, November 8, 2019 9:39 AM To: Lorena Roel Cc: Joe Sweeney ; Anna Delgado ; Adam Pedersen Subject: RE: DePhillips: Bond, Ex Parte, Meet and Confer Lorena, Thank you for your email. We respond as follows. A. Ex Parte We appreciate your efforts. However, it looks like there does not seem to be any possibility that Plaintiffs win obtain a bond. Presentiy, they are attempting to obtain a home equity line. Have you informed the bank that there are multiple liens and deed of trust recorded against the property, that there is a notice of default recorded on the property, and that there is no equity left? I am surprised a bank is even considering a home equity line where there is no equity. We will continue the ex parte until Wednesday, with ail other details remaining the same per our prior notice. To avoid the ex parte, please provide an indication that your efforts have a reasonabie chance of resulting in a bond, by no later than 5pm on Monday, 11/11. If you demonstrate a reasonably likelihood that Plaintiffs will fund the bond promptly, we will consider further reasonable extensions. 4 B. Demurrer Meet and Confer There is a CMC on 11/12. I’d like to tell the court what we are doing by then. We can re-set the call for Monday, at a time of your choosing. However, in light of the numerous delays by Plaintiffs, Defendants will have no choice but to proceed with the demurrer if we have not received any authority, or other meet and confer, from Plaintiffs by 5pm on 11/11. Thank you for your attention. Best, Jon M. Jonathan Robb, Jr. Sweeney, Mason, Wilson & Bosomworth 983 University Ave., Ste. 104C Los Gatos, CA 95032 Telephone: (408) 356-3000 Fax: (408) 354-8839 From: Lorena Roel Sent: Friday, November 8, 2019 9:21 AM To: Jonathan Robb Cc: Joe Sweeney ; Anna Delgado , Adam Pedersen Subject: DePhilIips: Bond, Ex Parte, Meet and Confer Jonathan, Obtaining the Bond On October 30, 2019, we were informed that the Court granted the Preliminary Injunction and sustained all objections to the evidence provided by your client. In such Order the Court stated that our clients must obtain a bond m the amount of $60,000 and file such bond with the Court. On October 31, 2019, I contacted our ciients insurance company to speak with their agent about obtaining a bond. On November 1, 2019, the insurance agent provided me a copy of the bond application form and a letter of credit. To obtain such a bond, our clients needed to obtain a letter of credit from their financial institution. On November 4, 2019, I informed the insurance agent that we would like to obtain the bond by the end of the week. The insurance agent stated that it would be impossible to do so and provided the contact information for another bonding company who may be able to work faster than the insurance company. This was to ailow our clients the option to go with another company if they were better suited for our needs. l subsequently contacted the “other” company, but they did not return my call. ' On November 5, 2019, as I had not spoken with the ”other" bonding company, I completed the bond application form that was provided by the insurance company. I even called the insurance agent and reviewed the application form, line 5 by line, to ensure that it would not be rejected for some unknown reason. i then met my clients at a bank in order to obtain the tine of credit. The bank I met my clients at was their second attempt. They first contacted a bank in Santa Clara. That bank stated they could not prepare a line of credit on behalf of my clients and told them to go to the Palo Alto branch. This is where I met my clients. The Palo Alto branch also stated they could not provide a line of credit and sent my clients to the Los Altos bra nch. While my clients were driving to the Los Altos branch, I at the Palo Alto branch, was on the phone with the Los Altos branch manager and was able to provide her the documents she needed in order to prepare the line of credit. I then went back to my office and called the branch manager again to make sure things were going smoothly; they were not. The branch manager stated that this type of bond is not a fiduciary type of bond in which our clients only needs to pay a percentage of the amount. Our clients would need to have $60,000 in cash and placed in a CD/Savings for the bank to issue a bond on behalf of our client. The reason is because this bond must be fully collateralized as this is a normal Plaintiff vs Defendant matter and our client has a 50/50 chance of winning/losing. Its not like a probate situation. My cIients then left the branch and I subsequently called the ”other” bonding company. They too stated that the bond must be fully collateralized with $60,000. The ”other” bonding company stated that our client could potentially do a line of credit secured by the property, and that is may be easier to do it through the bank. On November 6, 2019, I called the branch manager again; however, she was not in the branch. On November 7, 2019, I called the branch manager again. She stated that they can do a line of credit secured by the property, but that it could take up to 30 days. The reason is because our clients would have to complete a home equity form. Then the bank would need to process that form and ”take out” whatever the amount is desired. Then such monies would be placed in a CD/savings account and then the bank would record a document with the County. As of this date our clients have not obtained a bond. Ex Parte As you can see from the above, we have made significant efforts to obtain the bond. The reason we cannot obtain it so easily is because the bond must be fully collateralized and our clients do not have $60,000 in their bank account. They are on a fixed income as you are aware. With the above information, if you intend to proceed with the Ex Parte hearing, I asked that you move it to Wednesday for two reasons 1) banks are closed on Monday and 2) I have a previous engagement Tuesday morning. Please let me know what you intend as soon as possible. Additionally, please be aware that I will bring forth this emai! to the ex parte hearing as proof that we have made efforts to obtain such a bond and have informed you of those efforts. Meet and Confer l was out of the office yesterday and am home today as I have a head cold. As such, my notes for our meeting are on my desk, which is why l have not provided you authority on the matter. i think we should postpone this meeting until next Wednesday as it will give me the opportunity to provide you such authority. If you would like to proceed today, I can, l just do not think it will be as fruitful as I will be speaking from memory and unable to cite anything. It is your decision, please let me know. Lorena Roe! Rea! Estate Attorney, Brewer Offord & Pedersen LLP 2501 Park Bivd, 2nd Ffoor E Paio Nto, CA 94386 t: {650} 32172900 (ext. 23) i f: (650) 327-5959 Rea! Es' 1 Real Estate Law NewsietterSubscribe for Free Details About Our Transition from Law Offices of Peter N. Brewer
