Reply

Cal. Super. - 4th Dist.September 28, 2018

30-2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ( Electronically Filed by Superior Court of California, County of Orange, 06/29/2020 06:25:00 PM. 18-01021633-CU-OR-CJ C - ROA #293 - DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Cle HENRY D. PALOCI II (California State Bar No. 268970) hpaloci@hotmail.com Henry D. Paloci III PA 5210 Lewis Road #5 Agoura Hills, CA 91301 T: 805.498.5500 F: 866.565.6345 Attorneys for NULEVEL PARTNERS INC., as Trustee SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE, CENTRAL DISTRICT NAM NEIL HOANG AKA NAM HOANG, Plaintiffs, Vs. NATHAN I. MCINTYRE DBA MCINTYRE LAW GROUP, COUNTRY COMMUNITY ASSOCIATION, and NULEVEL PARTNERS INC., A California corporation, as trustee of South LONGSPUR TRUST DATED 6/6/2018, Defendants. NULEVEL PARTNERS INC., A California corporation, as Trustee of SOUTH LONGSPUR TRUST DATED 6/6/2018, Cross-Plaintiff, -VS- NAM NEIL HOANG AKA NAM HOANG, Cross-Defendant, -and- BEST HOME CONSTRUCTION AND REPAIR And DOES 1-20, Third Party Defendants. ) Consolidated Actions: : Case No. 30-2018-01021633 ; Case No. 30-2017-00963129 ) Appeal Case No.: G058780 ) ) REPLY RE: ) MOTION OF COUNTRY COMMUNITY ) ASSOCIATION AND VILLAGEWAY ) MANAGEMENT INC. TO CORRECT ) CLERICAL ERROR IN THE ORDER OF ) DISMISSAL AND TO AMEND THAT ) ORDER NUNC PRO TUNC ) DECLARATION OF HENRY D. PALOCI ) II ) ) ) Hearing Set: ) Date: July 16, 2020 ) Time: 1:30PM ) Department: C22 700 W. Civic Center Drive Santa Ana, California N r N r N a SN N N = k. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMES NOW Cross-Plaintiff NULEVEL PARTNERS INC., A California corporation, as Trustee of SOUTH LONGSPUR TRUST DATED 6/6/2018 (“NULEVEL”), through counsel, and joins, by reply, on a limited basis, the Motion filed by COUNTRY COMMUNITY ASSOCIATION AND VILLAGEWAY MANAGEMENT INC. TO CORRECT CLERICAL ERROR IN THE ORDER OF DISMISSAL AND TO AMEND THAT ORDER NUNC PRO TUNC (the “Motion”). NULEVEL has the following material information to add and requests similar, but not identical, relief. I. 2. 8, In the Motion, certain Defendants (the Movants with respect to the Motion) seek to correct the order that arose from the hearing held in this case on November 21, 2019. The corrections will address a technical flaw in the order that will assist the Movants in the ongoing appeal. NULEVEL joins in the Motion and also requests relief from the Order that issued from the hearing held November 21, 2019. The relief NULEVEL seeks is independent from the relief Movant seeks but substantial and important. The Motion, which only addressed Plaintiff, was only to serve to dismiss Plaintiff. Unfortunately, the Court entered an order dismissing all causes of action, which appears to have included the cross-complaint filed by NULEVEL to quiet title and for fraud against the Plaintiff. These are essential and separate causes of action that are important to NULEVEL, who wants to pursue them. Notably, the tentative ruling does not discuss NULEVEL and its cross-complaint at all. If it had, NULEVEL would have appeared to oppose. The Motion does not address NULEVEL at all either. The Motion only sought dismissal of the Plaintiff’s complaint. It was unfair and unjust, and not the Court’s ruling, to dismiss the entirety of the case, including NULEVEL’s cross-complaint, with prejudice. It was 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . NULEVEL has independently filed a motion to vacate dismissal because the case in its . NULEVEL was not on notice of the possibility of dismissal. Another defendant filed the . NULEVEL did not even receive notice of the dismissal. In fact, NULEVEL was WHEREFORE, Defendant NULEVEL seeks entry of an order vacating dismissal as to the cross complaint, or, alternatively, by amending the existing order nunc pro tunc, and for such other and further relief that the Court may deed just and proper. DATED: June 29, 2020 HENRY D. PALOCI 11 PA wholly reasonable, upon review of the Motion and tentative ruling, for NULEVEL not to appear to contest the Motion — the Motion was not to affect NULEVEL. Unfortunately, it did. The order, as it affects NULEVEL, should be vacated or amended nunc pro tunc. entirety was dismissed in error by the Order that issued after the hearing held November 21,2019. If that motion is granted, then this argument is moot. If that motion is not granted, then NULEVEL joins in the Motion and requests appropriate relief. motion to dismiss as to Plaintiff and not at all as to NULEVEL. completely unaware that its case had been dismissed and had endeavored to depose Plaintiff in December 2019 in order to lock down the facts of the case for summary judgment. Plaintiff failed to appear, and NULEVEL moved for sanctions. The filing of the motion for sanctions was rejected by the Clerk on the grounds that this entire case has been dismissed with prejudice. By: Henry D. Paloci 111 Attorneys for Defendant 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF HENRY D. PALOCI III Henry D. Paloci III hereby declares as follows: 1. I have personal knowledge of the facts set forth below and, if called to testify, would and could competently testify thereto. 2. I am an attorney licensed to practice law in the states of California and Florida. 3, Plaintiff filed this lawsuit in an attempt to overturn a foreclosure sale of his residence. NULEVEL was the arm’s length winning bidder at the foreclosure sale. After the court sustained demurrer, Plaintiff twice tried without success to amend his complaint. The Court dismissed this action with prejudice after time ran on Plaintiff’s last opportunity to amend. 4. The sale foreclosed on a homeowner’s association lien. Plaintiff had 90 days after the sale to redeem the property. He did not, and a Trustee’s Deed Upon Sale issued to NULEVEL. 5. Plaintiff did not redeem, but he did encumber the property after the foreclosure sale and before the trustee’s deed issued with a fraudulent $400,000.00 deed of trust in favor of “Best Home Construction and Repair,” whose address as shown on the deed of trust is next door to the property that is at issue in the complaint. 6. Title insurance will not insure a property acquired by foreclosure sale on a homeowner’s association lien until all statutes of limitation have passed to move to vacate. Accordingly, and because of the fraudulent deed of trust discussed above, NULEVEL filed a cross-complaint in this case to quiet title. This is necessary litigation that is separate and distinct from that of the Plaintiff. Ls It now appears that the Court held a hearing on or about November 21, 2019 in which the entire action, including the cross-complaint of NULEVEL, was dismissed with prejudice. 8. The Motion, which only addressed Plaintiff, was only to serve to dismiss Plaintiff. Unfortunately, the Court entered an order dismissing all causes of action, which appears to have included the cross-complaint filed by NULEVEL to quiet title and for fraud against the Plaintiff. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 These are essential and separate causes of action that are important to NULEVEL, who wants to pursue them. 9. The tentative ruling does not discuss NULEVEL and its cross-complaint at all. If it had, I would have appeared to oppose for NULEVEL. 10. ~~ The Motion does not address NULEVEL at all either. The Motion only sought dismissal of the Plaintiff’s complaint. It was unfair and unjust, and not the Court’s ruling, to dismiss the entirety of the case, including NULEVEL’s cross-complaint, with prejudice. It was wholly reasonable, upon review of the Motion and tentative ruling, for NULEVEL not to appear to contest the Motion — the Motion was not to affect NULEVEL. Unfortunately, it did. The order, as it affects NULEVEL, should be vacated or amended nunc pro tunc. 11. NULEVEL was not on notice of the possibility of dismissal. Another defendant filed the motion to dismiss as to Plaintiff and not at all as to NULEVEL. 12. NULEVEL did not even receive notice of the dismissal. In fact, I was completely unaware that its case had been dismissed and endeavored to depose Plaintiff in December 2019 in order to lock down the facts of the case for summary judgment. Plaintiff failed to appear, and NULEVEL moved for sanctions. The filing of the motion for sanctions was rejected by the Clerk on the grounds that this entire case has been dismissed with prejudice. I declare under penalty of perjury that the foregoing is true and correct. Executed this day, June 29, 2020, at Agoura Hills, California. 247 ~~ Henry D. Paloci III 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Hoang v. McIntyre et al. Orange County Court Case No.: 30-2018-01021633 I am over the age of 18 years, residing or employed in Los Angeles County, California, readily familiar with the business practice for collection and processing of correspondence, and not a party to this action. My business address is 5210 Lewis Road #5, Agoura Hills, CA 91301. My electronic service address is hpaloci@hotmail.com On the date stated below, I served the foregoing document described as JOINDER, to the following parties: NAM NEIL HOANG, POB 2213, Orange, CA 92859, neilhoang@yahoo.com Dalbey, Mary mdalbey@plsdlaw.com Dawkins, Krista kdawkins@plsdlaw.com Fernandez, Cynthia cfernandez@plsdlaw.com Lawver, Tiffany tiffany@mlg.la Lenhardt, David dlenhardt@plsdlaw.com Mcintyre, Nathan nathan@mlg.la [ X ](By U.S. Mail) I deposited such envelope in the mail at Newbury Park, California with postage thereon fully prepaid. I am aware that on motion of the party served, service is presumed in valid in postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ X ] By electronic service address, by consent of the recipient, at the email address identified above. [ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger service to the address above; [ 1 (By Facsimile) I served a true and correct copy by facsimile during regular business hours to the number(s) listed above. Said transmission was reported complete and without error. [ ] By hand delivery upon the recipient. I declare under the penalty of perjury under the laws of the S alifornia that the foregoing is true and correct. ~~ Date: 6/29/2020 ¢ Nt Declarant Henry D. Paloci III