Response To Plaintiffs Objection To Request For Judicial Notice

Response

Cal. Super. - 4th Dist.August 22, 2018

OO «0 9 OO Ln A W N N N N RN N N N N N m m a e a e m e m p a ww AN nn BR W N = O 0 I N N R W NN = o ELECTRONICALLY FILED Superior Court of Califarnia, SRIGHT FINLAY ‘SEN 15020 County of Orange wen H. Ribar, Esq. (SBN 1 02/07/2019 at 10:21:00 AM Kaelee M. Gifford, Esq. (SBN 303533) Clerk of the Superior Court 4665 MacArthur Court, Suite 200 By Monique Ramirez, Deputy Clerk Newport Beach, CA 92660 Tel: (949) 477-5050 Fax: (949) 608-9142 Attorneys for Defendant BSI Financial Services, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE ARTHUR M. MCGUIRE and SHELLY Case No.: 30-2018-01014045-CU-OR-CJC MCCUE The Honorable Richard Y. Lee Plaintiffs, RESPONSE TO PLAINTIFF’S OBJECTION vs. TO REQUEST FOR JUDICIAL NOTICE BSI FINANCIAL SERVICES, a business entity Hearing: of unknown form , FAY SERVICING, LLC, a sare . . Date: February 14, 2019 business entity of unknown form; Time: 1:30PM WILMINGTON SAVINGS FUND SOCIETY, | . Dept.: C-32 FSB, d/b/a CHRISTIANA TRUST, NOT . INDIVIDUALLY BUT AS TRUSTEE FOR Reservation No. 72943826 HILLDALE TRUST, a business entity of . i known form: ZIEVE BROADNAX & Complaint filed: August 22,2018 STEELE, LLP, a business entity of unknown from; and DOES 1-100, inclusive Defendants. TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, IF ANY: Defendant BSI Financial Services, Inc. (“BSI”) hereby responds to the Objections of Plaintiffs Arthur and Shelly McGuire (“Plaintiffs”) to Defendant’s Request for Judicial Notice (“RIN”), filed in support of Defendant’s Demurrer to Plaintiffs’ Complaint as follows: REPLY IN SUPPORT OF BSI FINANCIAL SERVICES’ DEMURRER TO PLAINTIFFS COMPLAINT Oo 00 3 O N wv B A W N = N N N N N N N N N N = o m em e m e m e m e m p m p m p a © 3 O N ni B R A W N = OO VU N N N D R A W N mR, A. Plaintiffs’ Objections Should be Overruled; Defendant’s RJN is Proper. Defendant’s RIN seeks judicial notice of five executed, notarized, recorded documents with regard to the specific subject property at issue in this matter. (RIN, Exhs. 1-5). Each of the recorded real property documents attached to Defendant’s Request for Judicial Notice are properly before the Court under Cal. Evidence Code §452. Courts have expressly held that courts may take judicial notice of recorded real property records. Fontenot v. Wells Fargo Bank, N.A., (2011) 198 Cal. App.4th 256, 264, citing Alfaro v. Community Housing Improvement System & Planning Assn., Inc., (2009) 171 Cal. App.4th 1356, 1367, fn. 8; Evans v. California Trailer Court, Inc., (1994) 28 Cal.App.4th 540, 549; Cal-American j- Property Fund II v. County of Los Angeles, (1989) 208 Cal.App.3d 109, 112, fn. 2. “[A] court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” Fontenot, supra, at 265. “The official act of recordation and the common use of a notary public in the execution of such documents assures their reliability, and the maintenance of the documents in the recorder's office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.” Fonetnot, supra, at 264-265. “[A] court may take judicial notice of numerous facts that can be deduced from recorded documents, including, among other things, their existence, recordation, and date of recordation, without overstepping the court's discretion under Evidence Code section 452.” Jenkins v. JP Morgan Chase Bank, N.A., (2013) 216 Cal.App.4th 497, 537; See also Bonner v. Redwood Mortg. Corp., (N.D. Cal., Mar. 29, 2010) 2010 WL 1267069 (The loan number on a deed of trust is properly subject to judicial notice under Federal Rule of Evidence 201). Accordingly, because each of the five real property records subject to Defendant’s RIN were all signed, notarized, and recorded, the documents are judicially noticeable, as well as their contents and legal effect. REPLY IN SUPPORT OF BSI FINANCIAL SERVICES’ DEMURRER TO PLAINTIFF'S COMPLAINT OO 0 3 O N hn B R A W N N N N N N N N N N = rm mm em em p m p m p e a e m 0 I O N LL A W N = DO VW N S N RA E W N R , Oo III. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court overrule Plaintiffs’ objections, and grant Defendant’s Request for Judicial Notice. Respectfully Submitted, WRIGHT, FINLAY & ZAK, LLP hard 2 / / 7 7 Dated: February 7, 2019 By: / (Kaélee MM. Gifford, Esq. Attorney for Defendant BSI Financial Services REPLY IN SUPPORT OF BSI FINANCIAL SERVICES’ DEMURRER TO PLAINTIFF'S COMPLAINT PROOF OF SERVICE I, Marilee Johnson, declare as follows: I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. On February 7, 2019, I served the within REPLY IN SUPPORT OF BSI FINANCIAL SERVICES’ DEMURRER TO PLAINTIFF’S COMPLAINT on all interested parties in this action as follows: [] by placing [ ] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Joseph R. Manning, Jr., Esq. THE LAW OFFICES OF JOSEPH R. MANNING, JR. A PROFESSIONAL CORPORATION 4667 MacArthur Blvd., Suite 150 Newport Beach, CA 92660 (949) 200-8755; FAX (866) 843-8308 Attorneys for Plaintiffs ARTHUR M. MCGUIRE and SHELLY MCGUIRE [] (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. [] (BY PERSONAL SERVICE) I caused personal delivery by ATTORNEY SERVICE of said document(s) to the offices of the addressee(s) as set forth on the attached service list. [X] (BY FEDERAL EXPRESS OVERNIGHT- NEXT DAY DELIVERY) I placed true and correct copies thereof enclosed in a package designated by Federal Express Overnight with the delivery fees provided for. [X] ~~ (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(b)(2)(E). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed R.Civ.P.5(b)(2)(E). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” [X] (State) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on February 7, 2019, at Newport Beach, California. Marilee V. Johnson 1 PROOF OF SERVICE