Motion To Vacate
Motion To Vacate
Motion To Vacate
1,
\a
rt
Email: [email protected]
FILED
'u",ie f;ffis,,utiBf*
t'Ay 2 5 2012
BIARAYNE
CLEEK, CLERK
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VISALIA DIVISION
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Case
No.
tffil
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Plaintiffs,
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VS.
DATE: June26,2012
TIME: 8:30 am
DEPT: 7
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8:3 0 am
Visalia
22 California, Plaintiffs and Cross-defendants Courtney and Melody Gillespie will move the court for an order
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vacating and setting aside the entry of defaulVdefault judgment entered in this action on May 23,2011, and
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This rnotion is rnade on the grounds that Plaintiffs/cross-defendants failure to respond to the complaint with the tirne allowed is due to mistake, inadveftence, surprise, excusable neglect and extrinsic fraud
or mistake, as is more fully stated in the declaration filed in support of this motion.
be
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based on this notice, all paoers and records filed in this action, and the above related actions. the declarations
y Cillespie,
eY
Cillespie
NiDtilfs
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MOTION TO VACATE/SET ASIDE DEFAULT
tce'
as may be presented
it
the hearing.
Dated
: May 22,2012
I
nd
ant
Dated
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May 22,2012
cross-defendant
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y Gillespie,
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VISALIA DIVISION
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Iv1elody and Courtney Gillespie
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VS.
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No. 10-238961
Plaintif ts.
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Case
Defendants.
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. 201
l, at or afrer fe6hrn)
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201
in Dept 7 at 2l
J'his rnotion is uraclc on the grounds that Plaintitts/cross-c'lef-errdants tailure to respond to thc'
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cornplaint riith the tiurc;rllolvccl is dLrc to rnistake-. inadr.'crtcnce. srrrprise. excusablc neslect. anti extrinsic
lirlly statcd irr clcclaration fllcd irt support of the tnotiolr. J'his nrotiort rrill
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.1 -)
based on this noticc. all papcrs arrrl lccords fllcd in this action thc cleclaratiorrs of'NIcloclr and Couftrrel
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Cillespie, rnenroranrlunl of points ancl ar.rthorities. proposccl rcrif red alts\\'er. tlte copies which are attachcd.
and on such eviclcncc as rnav be prcsctttecl at tlre hearing.
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l)utccl:
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llelurly rtrl (.ourtrrey
( Jill*pic
l'.(). llot llJlJ
I'r,r{crvillc, ( rlilirrnir
bc
L)atccl:
Courlnel',p iIlc'ipic
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INTRODUCTION
1.
On Or about Marach23,2010, Nicklas Hoffman, Nickol Gerritsma, and WYSOCKI TRUST filed
an
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The Gillespies had an oral contract to rent bare land and would not leave,holding the
property under threat and duress.
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The land sales agreement was of no effect after the parties accepted compensation to
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Hoffman/Gerritsma needed injunctive and declaratory relief. The judge did not agree with
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compensation for the property, yet demanded eviction. Hoffman, Gerritsma, and
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WYSOCKI TRUST did nt prevail. They did not appeal or collaterally attack the ruling
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The Gillespies have an oral contract to rent bare land and won't leave, holding the property
.,rrder threat and duress.
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The Court should void the contract and make it of no legal effect, making the Gillespies
renters after accepting compensation to consummate the contract.
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A Writ of execution should issue for the Sheriff to evict the Gillespies.
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Hoffman, Gerritsma need injunctive and declaratory relief" Hoffman, Gerritsma, and
WYSOCKI continue to accept compensation for the property. Hoffman and Gerritsma are
"forum shopping:, to find a different outcome for the same issues. The defendants changed
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Melody and Courtney
Gillespie
P.O. Box 8323
Porteryille, California
3.
On or about August26,2010, the Gillespies filed a complaint for injunction against the abusive,
oppressive, and fraudulent behavior of HOFFMAN, GERRITSMA, AND WYSOCKI TRUST.
After Plaintiffs built the buildings and infrastructure on the property, fenced it in, and developed it,
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the defendants are ready to sell it and have the Plaintiffs evicted without compensation for the work
and materials supplied. This includes the house and garage Nicklas Hoffman now occupies. The
Gillespies have been buying and paying for the property since June 2004, when both parties had an
oral agreement for the purchase of the property. As of February | , 2005 , the payments were made
towards a written land sale contract.
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much harassment and malicious mischief caused by Nicklas Hoffman, causing the
injunction to be filed much later than the Gillespies intended. The harassment and
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malicious mischief suffered by the Gillespies became so severe tha the Gillepsies sought
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relief by way of
On May 28,2010 Nicklas Hoffman shot or caused to be shot, the Gillespies' little
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dog in retaliation for obtaining the TRO. His harassment and malicious mischief became
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worse after the TRO issued, and the Gillespies had to once again seek relief from the court
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by way of an ORDER TO SHOW CAUSE FOR CONTEMPT OF COURT. The trial for
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this was to take place on or about November 12,2010, in Cse Number 10-231521.
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On or about April 12,2011, the Gillespies again had to seek relief from the court because
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of the severity and life threatening nature of the malicious mischief and harassment. On or
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about March 1I,2011, Hoffman was shooting at Roxann Davidson and Melody Gillespie
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with a high powered pellet rifle. On or about March 12,2011, Hoffman shot Ms. l)avidson
in the face just missing her eye. Hoffman, having no remorse, yelled out to her, "NEXT
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The defendants have done many acts to prevent or delay the Plaintiffs from being ale to
receive relief from the court, including filing a default action by surprise against the
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plaintiffs, when Robert Fletcher, the attorney of record was ethically required to notify the
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Many of the acts committed by Hoffman are recorded in the document MANDATORY
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Porterville, California
DEMURRER TO ANSWER in the above named case, as well as Case number 10-23752I
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STATEMENT OF FACTS
1.
On or about
April
STRIKE AND DEMURRER were scheduled to be heard. The MOTION FOR RECONSIDERATION
was not heard on the merits, and was denied, however, there was no judicial determination on the
MOTION TO STRIKE AND DEMIIRRER to the Defendants' cross-complaint and neither motion nor
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2.
"Calif'ornia Rules of'Court. rule 3.1212(at Prevailing partv to prepare-(Jnless the narties waive the
notice or the court orders otherwise, the trartv prevailing on anv motion must, within 5 davs of the
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ruling, serve bv anv means authorized bv law and ressonablv calculated to ensure d.elivew to the
other ttartv or parties no lster than the close ofthe next business dav a proposed order for aoproval
as conforming to the coart's order. Within five davs after service, the other partv or parties must
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notifv the ttrevailing rtartv ss to whether or not the proposed order is so aoproved". The ooposing
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partv or parties must state anv reason for disaporoval." The Plaintiffs never received a ruling for the
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motions from the prevailing side, nor did the Plaintiffs receive a minute order from the court.
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3.
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On or about May 7,2011, Plaintiffs went to the courthouse to examine the frle and found that the file
was no longer accessible to the Plaintifffs, and had been taken by someone named Robert Blue, an
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attorney who works at the courthouse. Plaintiffs were told there would be no access to the record for
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30 days. The Plaintiffs were not told what his capacity is or why Mr. Blue was entrusted with the
record outside of the watch of the one who keeps the records, and why we were denied access.
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4.
Without having access to or provided notice of the rulings to the motions, we did not know whether to
appeal or to file a motion for rehearing, and had not record to do either. Neither the motion to strike
nor the issues of demurrer were heard on the merits. No ruling was issued. This created an
impossibility to file a response or to preserve our objections for the record. The Motion to Strike was
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crucial to filing an answer due to a fatally flawed counterclaim. The issues of the counterclaim had
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already been litigated and adjudicated, coming under the doctrine of res judicata and estoppels. To this
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Melody and Courtney
Gillespie
P.O. Box 8323
Porterville, California
day, we have never recei.ved a ruling on the motions, or the demurrer, and the defendants counter
claimantsfai1edtofo1lowCaliforniaRulesofCourt,CR3.I|3I2a',S.+rW
Procedure (CCP)
586(d6) ..."(il. In
iudsment shall be rendered in the sdme manner, as if the defendant had failed to answer: (3t, If a
motion to strike, of the character snecifted in Section 585, is granted in whole or in pqrt, and the
defendat fails to answer the unstricken porfion of the complaint withi the time allowed bv the court,
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No judicial determination was given by the judge, there was no ruling given by the prevailing
party, so that we could move forward, and CCP 1019.5 which states:
"(a) When a motion is granted or denied, unless the court otherwise orders. notice of the court's decision
or order shall be given by the prevailing nqrtv to all other parties or their attorneys. in the manner
provid.ed. in this chapter, unless notice is waived bv all parties in open court and is entered in the minutes."
5.
We were never informed if the Demurrer was ever sustained, because there was no judicial
determination ever made and the Demurrer was never heard on the merits. There is evidence in the
record that it was never even read by the judge for
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waived at any time, by us, and we were very adamant in court that the decision would be appealed. We
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We would be entitled to the order, because we submitted an order to the court and the
defendants/counterclaimants failed to do so. We cannot move forward without the order, which the
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prevailing party is supposed to serve, and has failed to do so. The time for filing an answer or
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appeal does n'ot start until the rulings are received by all parties.
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On or about May 24,2011, we received the copy of REQUST FOR ENTRY OF DEFAULT.
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attorney, Robert Fletcher, failed to call us with a warning of his intent to file a default. The failure
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Melody and Courtney
Gillespie
P.O. Box 8323
PorterYille, California
"Even legitimate tactics must sometimes yield to the only goal that jusffies the very existence of our
judicial system; i.e., the resolution of oar citizens disputes and the administrution of justice: (Urown v.
Preslev of So. California (19891 21J CA3d 612, 620, 261 CR 779, 764, fn. 3-the notion that ours is a "dogeat-dog business" governed by the "law ofthe jungle" should be curtailed, not rewurded", and the due
process requirement: "The purpose is to give defunt 'one last chance' to respond, knowing exactly what
judgment may be entered if he or she fails to respond. Absent such statement, defendant lacks notice of
the actual liability threatened; so that any default judgment is void. Stevenson v. Tarner (1979) 94 CA3d
3 I 5, I 56 CR 499, 502"
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The defendants/counterclaimants' cross complaint is fatally flawed because the defendants filed the
same lawsuit filed in January 7,2010, in another superior court, and gave conflicting testimony to
what has been submitted to this court in the above named case. The defendants know it was fatally
flawed and subject to the doctrine of res judacata,the doctrine of estoppels and the doctrine
judicial estoppels. The defendants took the same complaint from PCL
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381
of
from UNLAWFUL DETAINER to QI"IIET TITLE ACTION, alleged the dame facts, which were
found to be fatally flawed by Superior Court Judge Glade Roper. The defendants took the same
complaint and then went forum shopping. It is provided by statute that in quiet title actions:
" . , ,The court shanll not enter iadsment bv default but shall in all cases require evidence of plaintiff s title
onil hear such evidence qs mqv be offered respecting claims of anv of the defendants..." CCP 764.010.
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10.
The defendants know they wouldnot prevail in the above named case, because the answer to our
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testimony in previous hearings, with altered documents attached. The defendants cross complaint
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is a rehashing of a previous lawsuit filed against Plaintiffs in which they did not prevail, and are
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With the entry of default defendants have now turned the quiet title action into an TINLAWFUL
DETAINER and EVICTION, the same as PCL 138180. This fact will cause
myriad of more
lawsuits as the default neither quiets the title, nor voids the duties of the contract on which the
defendants/counterclaimants have received and continue receiving compensation. Nicklas
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Hoffman's name is not on the grand deed,Courtney Gillespie's name is not on the grant deed, but
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both are trustees of WYSOCKI TRUST, the name that is on the grant deed, and the property rights
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control the property within the trust, and the trust control is shared equally between Hoffrnan and
Gillespie. This fact was established in the contract signed by Nicklas Hoffman
Gillespie. The original contract doe not have a hand written "AGREEMENT TO TERMS" on it.
This was an addition added by defendant Hoffman in an attempt to support his allegations in the
answer and cross complaint. Hoffman is attempting to take complete control over the trust, push
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Melody and Courtney
Gillespie
P.O. Box 8323
Portenille, California
and Courtney
12.
If our MOTION TO STRIKE is denied ,we must answer the complaint within whatever time is
ordered bv the court, unless a demurter was filed concurrentlv therewith and is still pending.
ccPSS86(d&.
But we never received an order from the court or a rulins on the demurrer.
(Jnless notice is waived, the prevsiling party is required to give written notice of the courtts
We never received notice and therefore have not defaulted on the answer. The
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defendants/counterclaimants are the ones that have defaulted on the following rules of court, the
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defendants/counterclaimants know how and where to contact us, and had an ethical obligation to
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warn before requesting entry of default. The California Supreme Court warned that this kind
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"The quiet speed of plaintffi' attorney in seeking a default jadgment without the knowledge of
defendant's counsel is not to be commended," Smith v. Los Anseles Bookbinders' Union No. 63 (1955)
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"Even legitimqte tactics must sometimes yield to the only goal that justijies the very existence of
judicial systeml i.e., the resolution of our citizens disputes and the administration of iustice" @rown v.
Preslev ofSo. California (1989 213 CA3d 612, 620,261 CR 779, 764, fn 3- the notion thut ours is u "dogeat-dog business" governed by the "Iaw ofthejungle" should be cartailed, notrewarded,
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In the absence of a prior warning of default, courts are inclined to grant CCP 473 motions to set
aside defaults.
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(See Smith v. Los Angeles Bookbinders' Union No. 63 (1955) 133 CA2d 486, 500, 284 P2d 194, 201, and.
Pearson v. Continental Airlines (1970) 1l CA3d 613, 619, 99 CR 853, 857. "The purpose is to give the
defendant " one last chance " to respond, knowing exactly what judgment may be entered if he/she fuils to
respond. Absent such statement, the defendant lacks notice of the actual liability threatened, so that any
defuult judgment is void."
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The trial court has broad discretion to vacate the judgment and/or the
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Melody and Courtney
Gillespie
P.O. Box 8323
Porterville, California
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MISTAKE - Relief may be granted on q. showing of mistake by a party. Such mistake may be
one offact or law, but in either case, it must be material. Mistake offact: Relief ander CCP
$473 is proper where defendant as to some fact material to the defendant's duty to srespond by
reason of which defendantfailed to make a timely response. Mistake of luw must be excusable,
relating to a point of law that is "complex and debateable."
(1993t 12 CA4th 1118.1136,12 CR2d 408,420.
We believed that the time for answer did not satart until the order of the court was received. We
relied on the Rules of Court CR rule 3.1212(a), CR Rule 3.1319(d), (CCP) $586(a)(3), CCP
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$1019.5, and CCP $764.010, and for the other side to follow the rules. The court was not clear on
what was ruled on, because the judge was in a hurry for an appointment. No order was ever
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received by us. We could not act without a court order, with the judicial determination on the 2
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motions and the demurrer before the court. The record was secreted away from public scrutiny by
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an attorney named Robert Blue, and we were denied access to the record, so that there was no
ability for us to obtain a ruling. After talking to the court clerk who keeps the records, we believed
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no activity could be taken on the case while the records were secreted. We believed this would be
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a denial
of due process because if one party file in papers without the others knowledge, a surprise
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would take place. We could not take the motions up to appeal without the ruling mandated to be
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given to us. WE were surprised by the default having received no court rulings on the MOTION
TO STRIKE AND DEMURRER. This would influence how we needed to respond to the
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defendant's counterclaim. This left us with the justifiability of the failure to determine the correct
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law. Anderson v. Sherman. supra: McCormick v. Board of Supervisors (1988) 198 CA3d 353.
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EXTRINSIC FRAUD OR MISTAKE: This motion is made because of the flagrant violation of the
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court rules, and statutes by the defendants. The Defendants submitted an answer to our complaint
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stating that we have no rights, title, orinterest in the property,a nd then attaching falsified copies
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the original contract Hoffman and Gillespie signed. In defendants' counterclaim the defendants
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have an oral agreement to be renters after developing the land, making payments on the
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contract
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Melody and Courttrey
Gillespie
P.O. Box 8323
Porteryille. California
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have then decided against buying the land. According to the defendants, we were
supposed to initiated and pay for the subdivision of the property, but were never purchasers of the
property. Plaintiffs refused to sign a rental agreement, which, according to the defendant denied
right. The defendants are still taking money on the original contract,
and
claim that Plaintiffs have no rights, title, or interest to the property. However, defendants have
filed a quiet title action and ejectment against alleged renters, instead of an UNLAWFUL
DETAINER and EVICTION. The defendants proof of title is that there is a grant deed with
WYSOCKI TRUST name on it, Nickol Gerritsma's signature as a trustee, but Nicklas Hoffman's
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name is not on the grant deed. Both Nicklas Hoffman and Courtney Gillespie are trustees for
WYSOCKI TRUST, but neither name is on th grant deed. The reason defendants have filed a quiet
title and ejectment action against us as alleged renters instead of an UNLAWFUL DETAINER
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this court a different ruling as if it was new issues and new malter, when it clearly is not. After the
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motion to strike was present to the court, against defendants' counterclaim, the defendants' know
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fxally flawed,
either extrinsic fraud or mistake, the defendants did not follow the rules causing us to inadvertently
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default.
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trisl court has inherent equity power under which, apart from statutory authority, it may
grant relief from a defuult judgment obtained through extrinsic fraud ormistake. While the
grounds for an equitable action to set aside a defoult judgment are commonly stated as being
those of extrinsic fraud or mistuke, the terms are given a very broad meaning which tends to
encompass all circumstances that deprive an udversary offair notice . . . whether or not those
circumstances would qualify us fraudulent or mistuken in the strict sense . . Bennett v, Hibernia
Bank, (1956) 47 CaI. 2d 540, 558. See also Carroll v. Abbott laboratories (1982) 32 Cal. 3d 892,
901-902, and lVitzv. Yankoskv (1966t 63 Cal.,2d 849, 855.
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"Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or
deception practiced on him by his opponent, as by keeping him awuy from court, a false promise
of a compromise, or where the defendant never had knowledge of the suit, being kept in
ignorance by the acts of the plaintffi or where an sttorney fraudulently or without authorily
ussumes to represent a par| and connives at his defeat; or where the attorney regularly
employed corruptly sells out his client's interest to the other side, -these, and similar cases which
show that there has never been a real contest in the trial or heuring ofthe case, are reasonsfor
which a new sitit may be sustained to set aside and annul the former judgment or decree, and
open the asefor a nere and afair hearing."
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Melody and Courtney
Gillespie
P.O. Box 8323
Portenille, Califortria
65-66.
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The defendants filed a quiet title action and are not entitled to a default according to statute.
" . ..The court shall not enter judgment by default but shall in all cases require evidence of
plaintffi title and hear such evidence as may be offered respecting claims of any of the
defendants-.1' CCP 5764.0U ,
20.
Sustaining an entry of default and default action violates doctrine of Judicial Eonomy. The entry
a default would not sustain a quiet
of
title action, to quiet the title, and determine the rights of the
parties. Instead this would cause a myriad of further lawsuits to continue to establish the rights of
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The counter complaintants are not entitled to another judgment on the same issues in a previous
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As generally understood, '[tJhe doctrine of res judicata gives certain conclusive effict to a
former judgment in subsequent litigation involving the same controversy." (Z!fr!b!I&g!
Procedure (4h ed. 1997\ Judement fi280, p. 820.)
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"The prerequisite elements for applying the doctrine to either an entire cause of action or one or
more issues are the sume: (1) A claim or issue raised in the present action is identical to a claim
or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a jinal judgment on
the merits; and (3) the party against whom the doctrine is being asserted was a par$ or in privity
with a party to the prior proceeding. fCitations.J" (B
(1999t 76 Cal.App 4o 550. 556.1
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We claim that the defendants counterclaim contains both prerequisite elements for applying the
doctrine of estoppels/res judicata.
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"In its
primary aspectr" commonly known as claim preclusion, it "operates as a bsr to the maintenance
of a second suit between the dame parties on the same cause of action.[Citation.]" (Clark v.
Lesher (19561 46 Cal.2d 874, 880.1 uln its secondary aspect," commonly known as collateral
estoppels, "[tJheprior judgment...'operates"' in $asecond suit... basedon adiffirentcause
ofuction... 'as an estoppel or conclusive adjudication ss to such issues in the second action as
were actually litigated and determined in the jirst action.' [Citation.J" [bid)
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qspect."
22.
Defendant's cluim raises u threshold issue thut we have not yet decided: whether either uspect of
the re judicata doctrine "even applies to further proceedings in the same litigation, [CitationJ"
(People v. Memro (19951 11 Cal. 4th 786, 821.) As the court observed in Mitchell, "[t]he
traditional application of such doctrines [is] to successive prosecutions'fcitationJ or rulings from
a former action fcitationJ." (Mitchell, supra. 8
"For example, as we have expluined, appellate court judgments establish the law that'must be
applied in the subsequent stages of the csuse"'- i.e., the law of the case - " 'And thqt are res
adjudicate in other cases as to every matte adjudicated."' (Dept. of lltater & Power v, Invo
Chem. Co. (19(0) 16 Cal.2d 744, 750, italics added.)
Relying principatty on tl.S. v. Bailin (/h Cir. t99n 977 F.2d 270 (Bailid, defendant asserts that
"ffiederal courts and courtsfrom other states have routinely applied collateral estoppels, or
direct estoppels, to bar further proceedings in the same action" People v. Santamar
CaI- 4h 903- 9t 5- footnote 5-
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The purposes of the double jeopardy and res judicata doctrines substantially overlap. lYe have
explained that the purposes of the res judicata doctrine include "prevent[ingJ inconsistent
judgments which undermine the integrity of the judicial system" and "preventing a person from
being harussed by vexatious litigation fcitation.J" @eonte v. favUr (tg
Porterville, California
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Similarly, the high court has explained that the purposes of the double jjeopardy clause include
preserving "the integriA of the finul judgment"
and protecting individuals "from the hurassment and vexation of unbounded litigation."
(Ariz.ona v. Manvpennv 0981t 451 U.S. 232, 246.1
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The high court hus also observed that "[aJ primary purpose served" by the double jeopardy
clause-preserving the finality ofjudgments-"is akin to thut served by the doctrines of res judicata
and collateral estoppels." (Cist v. Bretz (1978) 437 U.S. 28, 33.)
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23.
Courts to determine the rights of parties are an integral part of our system of government. It is
just as important that there should be a place to end as thut there should be a place to begin
litigation. After a parfii has his day in court, with opportunity to present his evidence and his
view of the law, a collateral attack upon the decision s to jurisdiction there rendered merely
retries the issue previously determined. There is no reason to expect that the second decision
will be more satisfactory than the first. Stoll v. Gottlieb, 305 U.S. 165, 171-2 -Supreme Court
1938.
24, ThePlaintiffs invoke the doctrine of Judicial Estoppel against the cross complaint. While the same
issues of Case No. PCL 138180 are the same, the defendants have contradicted previous testimony
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in their cross complaint. See Mandatory Judicial Notice of Case Number PCL
381
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"The equitable Doctrine of Judicial Estoppel can be involved to prevent aparty from taking
position
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contrary to one the party advanced in prior litagation. The purpose of the doctrine has
been stated in multiple, but substantially similar, forms : to "protect the integrity of the judicial
process," Jackson v. Countv of Los Angeles; to "protect against a litigant playrng fast and loose
with the courts", and to implement "general considerations of the orderly administration ofjustice
andregardforthedignityofjudicialproceedings',,.
CONCLUSION
The defendants have purposely harassed us with the apparent intent to drain physical,
I9
financial, and emotional resources, including a loss of many days of work. This has caused
20
multiple court filings, much litisation and 3 lawsuits in 1 year. The nearly daily harassment has
2l
prevented timeliness in the above named case. The filing of the default was another means
of
22
23
The fact that the rules as laid out bv legislature have not been followed by the
24
defendants now have caused more resources. time. energv. finances to be expended to have
25
the entrv of default set aside and anv default iudsment vacated. We inadvertently made a
26
mistake in fact and law, believing the statutes could be relied upon and the defendants would
27
follow the rules, too. Also, the defendants were not entitled to
complaint because of the facts that a Quiet title action was filed, the issues were already litigated
28
and adjudicated in another court, invoking the doctrine ofres judicata and estoppel.
Porteryille, California
11
The facts plead to in the cross-complaint are inconsistent to the facts testified to by the
2
a
defendants in another case, Case no. PCL 138180. For the court to issue a iudgment on the defendants'
cross complaint would be a failure to protect the integritv of the iudicial process. What court
judgment would have the ability to stand? The default judgment in the later court, or the judgment of the
4 court that heard the matter and adjudicated the issues on the merits. A default judgment does not quiet title.
5
6
7
8
The defendants are trying to get another unlawful detainer enforced in the above named court with a default
We did act in due diligence to obtain the ruling of the court by checking the court record,
only to find that the case file had been secreted by the clerk to an attornev unknown to us, Mr.
Robert Blue. The clerk stated that the Plaintiffs would not have access to the court file for at least 30 days.
The judge did not hear the Motion to Strike and the Demurrer on the merits, and he did not rule on the
10
Motion to Strike and the Demurrer, leaving the Demurrer still pending. The time to answer does not start
11
until the Demurrer is ruled upon and all parties are served the ruling. The request for the entry of default
t2
13
I4
was premature and done through extrinsic fraud or by mistake of the defendants.
We have requested to have the merits of the above named case tried by
to a jury hearing. The Appellate courts are inclined to affirm orders granting relief from default because
the law favors trial on the merits, whenever possible, thus even where relief is not mandatofy, i.., where no
15
"attorney affidavit of fault" is filed, minimal evidence of excuse is enough to support the order on appeal.
T6
I7
18
t9
"Vl/hen a psrty in defoult moves promptly to seek relief, very slight evidence is required to jusffi
a trial court's order setting aside a default", (Shamblin v. Brffi
cR 902, 905: Muisic v. Seears (1995) 37 CA 4h, 1149, 1154, 44 CR 2d 100, 102-103 (citins text)
For these reasons, the entry ofdefault and defaultjudgment should be set aside and vacated, and
the court should do just that.
20
2I
harmed, it
If the court fails to grant this motion we, the plaintiffs, will
be irreparably
ruling and integrity of the judicial process. The defendant should be sanctioned for suing us again on the
22 same issues.
23
24
PRAYER
WHEREFORE, we, Melody and Courtney Gillespie pray for the following judgment and relief:
25
26
1.
The court allows leave to Plaintiffs to frle the proposed answer attached herein;
27
2.
The court grants the MOTION TO SET ASIDE the Entry of Default and Vacate the orders,
28
Porterville, California
t2
I
2
3.
4.
The Courl reopens the proceedings for Entry or presentation of furlher documentary
reqllired by law,
4
J.
Completes the review of the case as required in Administrative Rules of Couft, and Case
managelxent rules and Procedures, and;
6
6.
The court sanctions the defendants for prematllre entry of the default and failure to follow
court rules,
8
1.
10
11
The coutl grants attorney/counsel fees of two thousand dollars and costs of filing thrs
8.
This Court Grants whatever Relief it deems Right and Proper under allthe facts, EqLrities,
and Law of the Case.
t2
1a
l-)
VERIF'ICATION
I4
I, Melody Gillespie declare under the penalty of perjury under the laws of the State of California that the
15
16
tt
18
T9
1n
2I
22
r-rnder the
penalty of perjury under the laws of the State of California that the
rcr
Courtney Gillespie
z)
^a
24
25
26
27
28
Xlclody and C0urtne]
Gillespie
P.O. ljox 8323
Porten ille, Californir
iln,!?
13
,{.'**.**^
I. lvlclody Gillespie dcclarant hcrcin do hcreby declare and state Llnder penalty of perjLrrl
pursuant to the lar,vs of I'hc State of Calitbrnia that the follori'ing is true and correct. to
thc bcst ol'rttv o\\'n researclt intbrttration ancl knorvledge and uudcrstanding, as to thosc
basecl upolt bcliel'. I bclieve them true:
atn a Plaintiff in this case. over the age of majority'. and have direct personal
knon'ledge of the tblloivin-s nratters of tact and lari,'. I arm competent to testif_v if
called upon. and r,r'ill testit.r r"rpon the fbllori'ing ltlatters if called upon.
2.
l0
1f
IJ
l4
l5
t6
L7
t8
ue \\'ent to
ll
l')
rL
On N{arch 23.2010.
3.
Hottlnan has perfbnred manv acts of nralicior-rs mischief and harassment torvard the
Gillespies, to prevent the Gillespies fiom obtaining relief in cour1. to disturb the sleep of
the Gillespies, r.r.ho are obligated to shon'up tbr rvork consistentl!' for pal. in order to have
the necessities of iil'e. Floftman's behavior has been so bad and at timcs lit-e threateninc
that the Gillespies have had to file fbr a restraining order and have had to appear in court i
different times tbr ne"r'actions Lipon the sarne cASe because of his r-nalicioi-rs behavior. ThcGillespies should hal'e gone to court more oftcn. but because of the above named caSe. thc.
Gillespies'nrere trf in-u desperatelv to get in the motions and rc-pl1's to nraintain our position
in the abor''e nanrcd case. I believe that Floftnian has macle 2 unsuccessfirl arremprs on nrv
tifb
t9
20
/l
22
li
:+
25
26
27
28
attL-tupt is to nrakc
Lls
6. 'l-hc llrst court nrlcd that ttrcrc \\'i.rs il contrilct to tru.v propcrty'that *'as not a rcntril
agrccment anti that nry husbanci ancl I arc not rcntcrs.
lior this court to cntsr il dctirLrlt on thc samc issucs r,vould cilusc great and irrcparablc harrn
ttt thc Gi[lcspics, rvho rvoLtlc] losc a onc hundrcd thor-rsand dollar investmcnt, requirc grcat
la
I]
expcnse to move thc large buildings already on the propcrty (thcrc arc seven of thenr) as
well as all the improvetnents that the Gillespies have donc- to the property, causing the
Llnjust enrichment ot'l [offman/Gerritsma. ]'his wollld cause at least another 2 or more
lar,l.suits involving thc samc parties to bc issued. This \\,ould violatc the doctrine of iudicial
economy.
8.
l0
ll
T2
l-
I-l
ti
t6
t7
rccorcl \\'as qone. and had been secreted b1'the clerk and given to an .r\ttorfle\' ilonlc-t'l
Robcrt Bltre. I ant con-iplctelv unaware of vrho or u'hat N{r. BlLre cloes. trLrt dicl llnd that his
-['r-rlare
ol'tlce is in the
Cor-rnty'Cor-rrthouse in Visalia. The Giltespies lvere tolcl b1 thc cuurr
l8
l9
clcrk tltat the rccorcl woulcl not be back fbr at least 30 da1's and therefbre rhe Gillespics
r,ror-rld not irave access to thc record tbr i0 clairs.
20
21
))
')l
J)
1t
-+
In thc cttrrent collntef clainr cicl-:udar-rts are recluesting thc same rclief as in the Case
NutlbcrPCL l38l80.anddocscomesLrnderthedoctrineofjudicial estoppel andrc's
-itrelicata. If trvo difterent courts have tr.vo different rulings. the questit-rn becomes, uhich
cottrt rttling prevails'l -flte cor:rt ruling that deten-nincd the issues heard on the merlrs. or
tht-- court that denied due process and entered a default judgntent on the issr-res. The
Gillespies r.l'ere relr,'ing on thc court rules that state the prevailins part)'is reqr-rired to gii,'e
notice b1'serving the order of the court. I. lvlelodv. speciticalll'asked lbr a copl'of the
rninttte order, and still hal'e not recei'r,ed a cop)'. The prevaiiing party did not present to
the Gillespies the order. \\'e ha'n'e a right to ha'n,e an order. tir-nelr'. to determine w'hat
tirrther action to take . i\according to thc court rules, w'hen the prevailing party' tails to
provide notice of tir.'ordc'r and give the other side a chance to approve or dispute it. the
other side- can have their order signed. The Gillespies sr-rbmitted sucir orders. and 1et har.not received an orcler tiorn the court by the prevailing paft)'.
l0 'l'his lcti thc Ciillcspies riaiting lbr thc ordcr ol'thc coLrrt. -l'hc Nlotion ttr Strikc harl rncrir.
as to thc cotttttcr claint bcing used to suc thc Ci[[cspics again, places thc Gillcspir.s in r
cltltrblc.jcopardv. il'the clcl-cnclauts clicl not prcvuil on thc nrerits.
',r'ould thcy bc ablc to sr.rc
l tlrirrl tirnc lilr thc slrrrrc issucs.
25
26
12.
27
28
arrrl ( ourtnc'
(iillrspic
\lrlrrrlr
Ccxrrt I{uling:
lll
TT
t0
ll
t2
l3
I]
l8
1c)
t0
2l
))
J)
i5. Althou-eh the Giliespies intidvertantlr rnade a mistake of lau.and tlct that alloued
the other side to catch us by' surprisc- and have a request fbr entrv of default lodgecl
into the case r.vithollt ever givin-e us notice of their intent. The Gillt--spies did nor
intend to neglect necessarv action.
16.
r6
The def'endants acts of having caused a det-aLrlt entered oir a qriiet title iiction uhen
it is provided by'statue that in qLriet title actions. "the court shail not enter jLrdgntent
b1'def-ault but shall in all cases require evidence of Plaintift-s tirle and hear such
evidence as rlav be ot-fered respecting claims of an1'of the defendants" CCP
$76'1.010, and sr"rbrnittins relitasation on issues that have alreadr.been litigatecl are
crtrinsic lraLrd. 'fhe def'endants ans\\'er and counter claim has rnanv f-alse
statetnents and or,rtriqht lies. and fzrlsifled docurnents trtttiched. created bi FIol-tinan.
'fhis is extrinsic fiar-rd and tiaud r-rpon the court. 'fhe
Gillespies are entitlecl tt-r
sanctions against thc det-endants, not bein,e shut out of our oun action.
17.'l'hc Gillespies har,'c a strong rnc'ritorious cilsc fbr injunction. will sui't'er irreparabl.darnage i1'thc entr)'of clefault ancl dclerLrlt.iucl-erncnt arc not sct asicic. ancl will cilssc
a tttr,'riad ol'iirrthcr liti-eatictn. The Gillcspics can u,in on tirc merits. anci rcspcctfirll_r
reclucst lbr tltc.ctturt to clo n'hat is right in tlic intcrcst ol',iusticc ancl lair plar. uncl
?r
LA
lbllou'the lari ot'scttins asiclc thc cntrl'ol-clcfiiult ancl r.acatc thc cicllLrlt.jLrdecrncnt.
Vlrl{lFICAl'lON
2-5
ldcclarc under thc pcnaltr.'ol'pcriLrrr undcr thc larvs ol-thc Statc of'Calitbmiii that thc ibrcgoing is
truc anci correct.
26
d**
27
28
-r,ur!nrt
artrl (
(iillespic
\ltlorl)'
l',rr
14.'l'hc Gillespies also reliecl on CCP $rs,586(aX3). 1019.5. tbr the tirne ro ans*'er. 'lhc
Motion to Strike being heard on the r.nerits rvas crucial to for oLrr ans\\.er to the
det-endant's cross cornplaint. If the Gillepies herd ansu,'ered the cross counter ciainr.
rvithout the tnotion to strike being hcard on ihe merits. it w,oulcl cause the Gillespies
to u'aive the irnportant issues of the def-ects of the def-endants' counter cornolaint.
The Defendants are relitigating the sarne issues alreadl'ad.iudicated.
LI
IT
l5
Q\aD
l5
day ot
A.D. 20ll
Email: [email protected]
1
8
VISALIA DIVISION
10
il
Gillespie
Plaintiffs,
t2
VS.
l3
Nicklas Hoffman, et
)
)
)
)
)
)
a1.,
Defendants.
t4
18
SWER
Case No. f0-231561
Case No. 1 : 12-cv-00176-IJO-MJS
19
TtcE
SUPPORT OF MOTTONS
20
2T
22
COMES NOW, Melody and Courtney Gillespie, a man ancl a woman in controversy with Nicklas
Hoffinan, Nickol Gerritsma, and WYSOCKI TRUST, with an answer to defenclant's cross comolaint.
L)
INTRODUCTION
1A
LA
This is a complaint for quiet title, injLlnctive and declaratory relief, and civil penalties. At first glanc
25
26
r-r-rerely a
case about a land title dispute, which is what the defendants and cross
complaintants would like the coutt to believe. Instead, when one digs deeper into the issues. one
will find
27 treachery, betrayal, intrigue, domestic terrorism,.attempted murder and assault, oppression, malice, and
mayhem. No, this case is not just about who is entitled to what, it includes the lengths a man will eo to. in
28
t'Cillespie,
ey Gillespie
ri ntiffs
order to steal another's life savings, inheritance, and labor, so he can be unjustly enriched, a6d the man
he at
time called his friend, would be forced to walk away with nothing. This is a story about the man, Courtney
Gillespie, who is fighting back against the unjust greecl of another, Nicklas Hoffman. The factual allegatior-rs
against Nicklas
HoffiIan in the
above named case aud in related cases that the court is reqr-rired to take jLrclici
notice of, under California Evidence Code Section 450-459, including related case numbers, 10-237521, pC
138180, and (federal case), establishes that Hoffmar-r has engaged i1behavior a1d conduct in breacl-r of the c
hands doctrine, both fraudr-rlent and criminal actions inclLrcled the colclblooded
attempted lnurder and assault of human beings, committing fi'aud upon the courls, federal and state income t
evasiott, operating an unlicensed for profit business ancl radio station, theft of personal propefty, vanclalism o
10
t1
Melody and Couftney Gillespie, are the Plaintiffs and cross-defer-rd4nts herein and moves on the cros
complaint for Quiet Title as follows:
In the First Cause of Action stated in the cross-comolaint:
l2
l-)
T4
15
1;
to
t1
4)
18
t9
6)
7)
20
t1
22
L)
^a
24
9)
B;
25
26
2l
28
Gillcspie,
ev Cillespic
r
tiffs
13;
14;
4
5
16;
18;
10
11
I2
STATEMENT OF F'ACTS
I.
l3
On Or about March 23,2010,Nicklas Hoffrnan, Nickol Gerritsma, and WYSOCKI TRUST filed an
UNLAWFUL DETAINER ACTION against Melody and Coufiney Gillespie. In the UNLAWFUL
DETAINER, Hoffinan contended that:
T4
1.1
15
t6
The Gillespies had an oral contract to rent bare land and would not leave, holding the prope
under threat and duress.
1t/
18
I9
1.2
1.3
The land sales agreement was of no effect after tl-re parties accepted compensation to
consummate the contract
20
t.4
2l
22
..,)
/.)
prevail. They did not appeal or collaterally attack the ruling from the courl
PCL 138180.
24
25
Hoffman/Gerritstra needed injunctive and declaratory relief. The judge clid not agree with
2.
27
2.1
The Gillespies have an oral contract to rent bare land and won't leave, holding the property
under threat and duress.
v Gillcspie,
ev Cillespie
aintills
Case pumber
On or about November 19, 2010, Hoffr-nan. Gerritsma, ancl WYSOCKI TRUST filed a cross compla
lo
28
ir-r
2.2
The CoLrrt shoLrld void the contract and make it of no legal effect, making the Gillespies
renl
after accepting compensation to consurnrlate the contract.
,/-.)
A writ of execution should issue for the Sheriff to evict the Gillespies.
aA
Hoffinan, Gerritsrna need injunctive and declaratory relief. Hoffman, Gerritsrna, and
WYSOCKI cotltinlte to accept compensation fol the properly. Hoffman ancl Gerritsma are
"foLltnf shopping:, to find a different outcome fbr the sarne issnes. The defenclants changed
t
ttame of the title of the lawsuit. Instead of UNLAWFUL DETAINER AND EVICTION.
it i
The defendants' cross cotnplaint is fatally flawed because defendants filed the same lawsurt
7
10
or
Jarru
, 2010 in another superior court. The defenclants know it was fatally flaweci and subject to the doct
judicata and the doctrine of estoppels. The clefendants took the salne complaint fron pCL
of
res
11
13
8180, changed the name from unlawfr"rl detainer to quiet title action, alleged the same facts which
t2
were adjudicated in the Superior Cour1. The defendants took the same cornplaint and are attempting
13
litigate the same issues again in order to get a clifferent outcoure. The juclge over the case pCL l38l
foLrnd that we afe ttot reuters and indeed have a contract to purchase the proper.ty. Nolv that the
I4
deferldants have received paytnent, they are attempting to have us evicted off of the propertv. refirsin
l5
recollvey the title or grant deed us our sirare of the properly. Instead, the clefendants are trying to qui
I6
the title against us after receiving a tremenilous amount of rernuneration as accordirrs to the land
sal
contract Courtney and Hoffrnan signed and agreed to.
1,1
l8
1.
The defendants ktlow they would not prevail in the above named case, because the alswer
to
plailti
complaint, presented by the defendants are false statements, contradicting earlier testimony
in previo
T9
hearings,
20
witli altered documents attached as exhibits. The defendants cross compaint is a rehasl-ring
a previot"ts lawsuit
filed against the plaintiffs in which they dicl not prevail, and are estoppecl from sui
it out again. We l'rave a meritorious callse of action.
2r
22
aa
LJ
Nicklas Hofftnan's name is not on the grant deecl. CoLrrtney Gillepsie's name is not on the gralt dee
because both purporl to be trustees of WYSOCKI TRUST, the name tl-rat is on the grant deed, ancl
24
property rights are protected r,vitliin the trust. Nickol Gerritsma is merely a nominee for the tnlst.
25
does not control the properly within the trust, and the trr-lst contlol is shared eqLrally bettveen Hoffura
5.
26
and Gillespie. The fact was established in the contract signecl by Nicklas Hoffinan and Courtnev
27
Gillespie. The original contract does not have a hand written "AGREEMENT TO TERMS,'on it.
would tl-rere be any questiott the property'sale was only a proposal of a future agreement?
We alreacl
28
hadpLrtinthirlythousanddollars-worthofmaterials,rnachinery,andlaborintothepropedy.'l'here
y Gillespie,
ey (;illespie
rintills
was no doubt in our minds when the agreemeut was made between Couftney and
Nicklas. that it r.vas
hard and fast agreement for the sale of the propefty. This was an acldition addecl bv Def'endant
Hoffi
at a much later date, in an affempt to sllppofi his allegations in the atlswer and cross complaint.
Hoffman is atternpting to take complete control over the trust, to push us out, and keep all the
for himself with a very small cost to hirnself. Hoffrnan wants us to bear more thap our share of the
6'
i0
l1
EXTzuNSIC FRAUD OR MISTKE; The clefendants submitted an answer to onr complaint stating th
we have no rights, title, or interest in the property, and then attaching falsified copies of the origilal
contract Hoffman and Gillespie signed. In the defendants' cross complaint. They purportecl that:
6.1
6.2
o.-1
We have an oral agreetneut to be renters after developing the lancl and making payments as
property owners,
T2
6.4
t3
1A
IT
l5
And then we decided against buying the land after having invested over thirty five tirousand
1.
According to the defendauts, we were supposed to initiate and pay for the subdivision of the prope
16
but were never purchasers of the properly. Afler over 5 years of developing the properly as our own,
1'7
Hoffmatl atter-npted to force us it'tto a cor.nmercial business rental agreer.neltt, on or about Apr.il 1 O. ZOlf O
This was approximately one month after Hoffman lost his unlawful detainer agairrst us. Superior Cofrrt
t8
Judge Glade Roper adjudicated the matter, and macle a jLldicial determination that we were not renl
t9
20
So
B.
21
Well, lve refused to sigtt a rental agreerneut, which, according to the clefenclants, now have denied
hind of right. The defer-rdants are stilltahing rllouey on the original contract, ald clain that
we have
rights, title, or interest to the properly.
22
L)
^a
9.
The defendants have filed a quiet title action and ejectment against alleged renters, instead of an
24
unlawful detainer action and eviction. The defendants/cross-complaintants were reqLrired to raise
25
cattse of actiort thatthey were a\,vare of in tire previoLrs lawsLritwhich are arising out of the salne
,o
tratlsactiort rvith the sanre set of facts. The deltndants have already hacl a "bite of the anple" ancl
they want a second chance. The defendants were required to raise all of the issues, quiet title ancl th
27
rest of it in the previotts action (PCL 13S180), anclfailed to do so. The previous rLrling has the effect
28
res
judicata.
Gillcspie,
eY
Gillespie
aintiffs
ir.rst
of an unlawful detainer action is because on or about March 23,2010, the defendants did not prevail
an adjudication against Plaintiffs as alleged renters. The courl found instead that there had been a
contract for the purchase of property, and that we were not renters. Now, the defendants have attem
to extract from this collrt a different rulir-rg as if it were new issues and new rnatter, when it clearly
not. After
tl-re
is
complaint, the
t0
l1
t2
As generally undertood, "[tJhe doctrine oJ res.judicrttrt gives certuin conclusive effect to u.former
jurlgment in sultsequent litigatiort irtvolvirtg tlte sume controvers!." (7 Witkins, Ctrl. Procedure
ed. 1997\ Judgntent,5280, rr. 820.1
Tlre doctrine "lras u double ospect." (
) "In its pri
{tspeclr" commonly known us cluim preclusion, it "operntes us a bur to tlte maintenance of u sec
suit between tlre srtme prrrties on tlte sante couse of uction. [CitntionJ" (Clnrk v. Leslrer (1956) 46
Cul. 2d 874, 880) "iu its secondury ospect," commonly krtorvn ts culluternl estoppels, "[tJlre prior
13
judgment...'operutes"'in"asecontlsttit..,bosetlonndffirentcauseoJaction..'ttsur7
l4
or conclusive ndjurlictrtiotr os to suclt issues in tlre second uctiott as were uctuolly litigated and
rletermined in tlteJirst oction.' [citation.J" Qbid.)
15
t6
t1
"The prerequisite elements for applying the doctrine to eitlter an entire cmtse of uction or one
issues ure tlte sflnte: (1) A claim or issue ruisecl in tlte present oction is identical to u cluim or iss
Iiliguted in n prior proceeding; (2) the prior proceeding resultecl irt uJinal judgment on lhe merits;
trttl (3) tlte party ugainst'whom the doctrine is being usserted was fl pilrt)) or in privity with a party
the prior proceeding. [Citatiorts.J" (Brinton v. Brtnkers Pensiort Services, Itrc. (1999) 76 Cul. App.
1B
5s0. ss6.)
I9
We claim that the defendants' cross complaint contains both prerequisite elements for applying the
doctrine of estoppelsires
r"rd
cata.
20
2I
22
23
24
25
26
2l
12. TIte DeJbndunt's cluinr ruises u threslrold issue thil we ltave nol .yet decided: whether either
the res judicutu doctrine "even ultltlies to furtlter proceedings in the some litigatiort. [Citutiorts.J"
(peottte v.nfemro ft
) As tlte court observed in Mitcltell, "ftJe trurlitionul
rtpplication of suclt doctrines [isJ to 'successive pros,ecutiorts' [citutionJ ar rulings from a former
action [citation]." (Uitctretl, surrra, S
.) For example, as we have
explained, appellate eourt judgments establish the law that'o'must be applied in the subsequen
stages ofthe cause"'- i.e., the law ofthe case-"'and they are res adjudicate in other cases as to
every matter adjudicated."'
. of Water & Power v. Invo Chem. Co. (19,10) 16 Cal. 2d 7
750. italics added.)
Relying principully on U.S. v. Builin (7' Cir. 1992) 977 F.2d 270 (Bailin), detbndunt asserts tlrat
"ffiederul courts urtcl courts from otlter states routinely applied collilerul estoppels, or direct
estoppels, to bur.fi.trtlter proceedings in tlte snnte actiott"
915, footnote 5.
28
Y
Cillespie,
e) Gillespie
r in ti
ffs
6
PLAINTIFFS AND CROSS- DEFENDANT'S ANSWER
of
Tlte purposes of tlte double jeopurdy und res judicuto doctrines substantiully overlap. l[/e have
expluined thut tlre purposes of the res judicatu cloctrine include "preventfingJ inconsistent judgme
whiclr rmtlerntine tlte integrity of the judicinl system" utd "preventing upersonfrom being huruss
by vexations litigation. [Citation.J" @eople v. Tavlor (1974) t2 Cat. 3cl 686,695.)
Similarly, the high court hus expluined that the purposes of the double jeoparcly cluuse include
preserving "tlte integrity of afinul judgment" (United States v. Scott (1978) 437 U.S. 82,92) anct
protecting indivicluuls "from tlte lrarussment and vexoliort of unbounded litigation." (Arizonu v.
Munvpennv (l 98 I t 45 1 I/.5. 232, 246.)
The higlt court hus ulso observed that "[aJ primary purpose serverl" by tlrc doubte jeopurrly cluuse
preserving the Jinalily of judgments - "is akin to thut serverl by the doctrines of res judicutu uncl
collateral estoppels." (Crist v. Bretz 09.78) 437 U.S. 28, 33.)
13. Courts to rletermine tlte
10
1i
T2
1f
IJ
determine. Tltere is no reason to expect that tlre second decision will be ntore srttisfuctory thun th
Jirst. Stoll v. Gottlieb, 305 U.S. 165, 171-2 - Suprenre Court 1938.
14. We invoke the Doctrine of JLrdicial Estoppel against the cross complaint. While the defendants are
insrsting tlrat the above narred coLrrl relitigate the sarne issues of PCL 138180, the defendants have
contradicted previor-rs testimony in their cross complaint. See MANDATORY JUDICIAL NOTICE
T4
15
CASC
NI-ImbeT 1381BO
r6
"The equitnhle cloctrine o.f .judicial estoppels ctn be invoked to prevent a purty from tuking
positiort contrnry to tlrc party udvnnced in prior litigotion. The purpose of the doctrine
been stuterl in multiple, but substantially sintilur,formu: to "protect the integrity of the
judicial process, "Iuckson v. County of Los Angeles; to "protect ugainst a titignnt pluying 0st
untl loose witlt tlte courts"; and to implement "generul considerations of the orclerly
ulministrution of .justice und regurd.for the dignity of .judiciul proceedings, "Prilliman v.
Uniled Airlines, Inc.
T7
18
19
t0
2l
15. The defertdants have purposely l-rarassed us lvith the apparent intentto clrain physical, financial and
emotional resollrces, loss of days at worli, etc.. This has caused rnultiple cor,rrt filings, uruch litigatio
22
and 3 lawsuits
at
LJ
case. The filing of the default was anotlrer means of harassment to prevent us from havir-rg the
24
opportr,rnity to do depositions and discovery as is necessary, in the above entitled case, prior to tlial.
The fact tl-rat the rltles as laid out by the legislatLrre have uot been followed by the defendants norv ha
25
caused
llore
resources,
any default judgment vacated. We ir-radverler-rtly made rnistake in fact and law, believing the statute
27
could be relied upon and the defendants.would be lequired to follow the rules also,
Gillcspie,
e) Cillcst)ie
rintilfs
zo
28
)
set aside
16. The defendants are not entitled to a default iudsment on their cross colnplaint because of the facts t
Quiet title action was filed, the issues were already litigated and adjLrdicated in anotller coltft, invoki
the doctrine of res judicata, and estoppels. The facts plead to in a cross cornplaint are inconsisteut to .he
facts testified to by the defendants in another case, Case Number PCL 138180. For the court to
jr-rdgment on the defendants' cross complaint r,vould be a failure to protect the integrity of the judicia
process. What coLut judgment would have the ability to stand? The default jr,rdgment in the later cor
or the judgment of the court that heard the matter on the merits. A default judgment does not qr,riet tL
title. The defendants are trying to get an unlawful detainer enforced in the above named courl with a
default judgment, not quiet the title.
t1. We did act in due diligence to obtain the rLrling of the court by checking the courl record, only to fi
that the case file had been secreted bv tlre clerl< to an attornev nnknowlr to us. Mr. Robert BlLre. The
10
clerk stated that we would not have access to the court file for at least 30 davs. The iudse did not
ll
our MOTION TO STRIKE and the DEMURRER on the merits. and he did not rule
12
or.r
the MOTION
TO STRIKE and the DEMURRER. leavins the DEMURRER still oendine. The time to answer
not staft Lrntil the DEMURRER is rLrled upon and all parties are served the rr-rling. The request for
t3
of defaLrlt lvas pler.natLrre and done through extrinsic fraud or rristake of the defer-rdants.
t+
18. The defendants are also not
15
filed on November 19. and not served uritil December 23. 2010. and was outside of the court rules
16
the rules of civil procedure. The defer-rdant have flagrantly violated the court rules on a consistent
T]
an
18
19. We have requested to have the merits of the above entitled case, tried by a jury, and we are entitled t
19
jr-rry hearing, especially in the case of an ejectment. The Appellate colrfts are inclined to affirm o
20
grar-rting relief from default because the lalv favors trial on the merits, wheuever possible, thus even
2l
22
AFFIRMATIVE DEFENSES
aa
L)
24
25
26
27
28
20. We alleged that the defendants/cross-complaintants have failed to state a calrse of action in their
comolaint based on the follow:
20.1
None of
title action becanse they have pfevioLrsly transferred all their rights, and interests in the subj
property, I B31 Norlh Lirne street, Porlerville, to
r'vhich renders their alleged cross corrplaint and all causes of action void ab initio and of no
I
Gillespie,
e]'Cillcspic
r in
tiffs
effect
r"u-rder
law. This renders any jLldgments which arise ollt of such the alleged quiet title
2
20.2
The quiet title subject to be disrnissed due to the violation of tl-re Clean Har-rds Doctrine, for
numerolls frauds, and criminal acts within the same transaction, malice, oppression, property
thelt and destruction, assault and battery, stalking, and mayhem. Many of these acts have
5
and Courl
Gillespie's affidavit in support of demurrer to defendant's answer, filed into the above na
case, which is incorporated herein by reference as
if fully
set
forllr. Hoffrnan
has or caused
have, our personal property removed from the propefty, stolen our fences, stolen our pole,
poisoned our aniurals, shot our dogs, vandalized our meter panel for electricity, caused our'
electricity to be disconnected,
shLrt
11t
10
to keep our water turned on (10-237521), destroyed our garden, provided many false reports o
ll
govemment officials and police repofts, tampered with our propalle tank creating a potential
bomb, tortured and tormented our friends, shot my girlfriend in the face r,vith a high pow
t2
pellet gun, stalked my fi"iends, threatened to kill and cause bodily harm to my girlfriend,
13
us, has had rne follorved arouud town, used his children to co
criminal acts against us, and the list just keeps going.
14
15
kill
as
20.3
dr-re
r6
t1
13 B 180
RE,S
JUDICATA.
See the
Mot lt
demurrer to defendant's cross-complaint, filed Feb. 15, 201 1, incorporated herein by referen
18
as
if fully
set for1h.
19
20
2l
21. The cross-complaintar-rts have failed to lneet the statutory requirements of a qLriet title action reqr-ririn
dismissal of their cornplaint in a motion for judgment on the pleadings, summary judgrnent or as
22
parties with an interest in the properly. The cross complaint is subject for disrnissal for failing to
LJ
complytoalloftherequirementsofaquiettitle. Itissubjecttoamotiontostrikeordisrnissalfor
1/1
LA
sanction, third party intervener, or a motion for joinder by the couft, or one of the parties for exclttsi
26
21
28
r"
22. WHEREFORE, we, the Plaintiffs/cross-defendants herein, pray for the following relief:
22.1
That the court take jLrdicial notice requested herein and as required by law;
22.2
Gillespie,
ey Gillespie
r
intill.s
22.3
22.4
22.5
That the couft have the clerk release to us the sheriff reporls giver-r to the courf, by the sheri
be and interrogatories
discovery to the other side. Withholding the sheriff repofts has blind folded us and tied
l
8
22.6
22.1
Any other relief that the courl deems right and proper
r-rnder
orrr'
o
t
10
t1
I2
1a
IJ
VEzuFICATION
I declare under penalty of perjury under the laws of the State of Califomia that the foregoing
correct, to the best of my knowledge and understanding.
t4
15
16
t1
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
correct, to the best of my knowledge and understandiut.
,_* "ji _ _
,-
oru't
1B
19
20
2I
22
aa
/.)
24
25
26
21
2B
y Gillcspie,
cy Gillespie
rintilli
is true
l0
PLAINTIFFS AND CROSS- DEFENDANT'S ANSWER
,,
(, {r/
intiff herein
I
2
the undersigned hereby declare under penalty of perjury under the laws of
served
described as:
4
5
follolv:
10
by first Class
U.S.
11
t2
sealed Envelope
13
t4
15
t6
t7
#z 132.
18
19
20
2T
))
23
24
)<
26
27
28
r,-
Alari"Dirvid.
in the