4

.;ilU j U .Jfll1 - tJI"'M 2: ~ fj

t

~ ., - _ •. _. .

1 Tin, lothy L. McCandless, E., sq, (SEN 147715)

THE LAW OFFICES OF TIMOTHY MCCANDLESS 2 1881 Business Center Drive,; Suite 9A

San Bernardino,.? CA 92140(3

3 Phone: (9v9) 890-9'192

Fax: (909) 382-9956

Counsel for Defendant, Anthony J Martin

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6

7

8

9 SUPEIUOR COURT OF CALIFORNIA

10 IN AND FOR THE COUNTY OF STANISLAUS

11 STANISLAUS JUDICIAL DISTRICT/ MODESTO COURTHOUSE

12 LIMITED JURlSDICTION/ UNLAWFUL DETAINER

13

14 U. S. BANK NATIONAL 15 ASSOCIATION etc.,

leaSe No.: )39-2009-00210656-CL-UD- TRA )

)DEFENDANT'S IN LIMINE MOTION ) TO TRANSFER CASE TO

) UNLIMITED JURlSDICTION )

)

)

)

) ) ) ) ) ) )

)

)

16

Plaintiff,

17

18 v.

19 ANTHONY J.l\1ARTIN,

TRIAL's:

DATE: 01/12/10 TIME: 8:30 AM DEPT: 22

20

Defendants.

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25 TO THE COURT, TO PLAINTIFF U, S. BANK NATIONAL ASSOCIATION, AND

26 ITS ATTORNEY OF RECORD:

PLEASE TAKE NOTICE that Defendant ANtHONY J. MARTIN hereby

27

28 moves for an order to transfer this case to the Unlimited Jurisdiction. The I

DEFENDANT'S IN LIWNE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

motion will be heard at 8:30 AM on Tuesday, January 12, 2010, before the 1

2 commencement of trial in the above-captioned case in Department 22 at the

3 Stanislaus Courthouse, located at 800 "11TH" Street, in the City of Modesto,

4 California.

5 The motion to transfer is brought pursuant to Code of Civil Procedure

6 section 396a(b). The grounds for the motion are 1) that the case is incorrectly 7 classified, 2) transfer qua reclassification need not delay trial, and 3) that

8

Defendant ANTHONY J. MARTIN never knowingly consented to this case's trial

9

in the wrong court.

The motion will be based upon these moving papers, upon the

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11

Declaration of ANTHONY J. MARTIN which is filed herewith, and upon such 12

13 other and further evidence as the cO:~is?m:!o/E~/'7

14 DATED: January 6, 2010 ~ ~ Timothy L. McCandless Esq. for THE LAW OFFICES OF TIMOTHY MCCAND'LESS Counsel for Defendant, ANTHONY]. MARTIN

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DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

1

MEMORANDUM OF POINTS AND AUTHORITIES I.

FACTUAL BACKGROUND

The plaintiff, U. S. BANK NATIONAL ASSOCIATION, filed its unlawful

2

3

4

5

6 detainer Complaint on or about November 3, 2009. The instant case was filed 7 as a "limited jurisdiction" case by Plaintiff U. S. BANK NATIONAL

8 ASSOCIATION. The Complaint nowhere alleged the value of the subject 9

home, as a basis for proper assignment of the case under Code of Civil

Procedure section 85. As established by the apparently true copy of the

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11

12

Trustee's Deed that is attached as "Exhibit 111 to the Complaint, the "Trustee's

Deed Upon Sale" states that the "amount paid by the grantee at the trustee 13

14 sale was" $168,750 - that is, at a property value in an amount in excess of the

15 $25,000 jurisdictional threshold for valuation of property whose title is

16 necessarily subject to dispute in a proceeding.

17 As established by the attached Declaration of ANTHONY J. MARTIN, he

18 had believed that the Clerk of the Court would not permit the filing of a

19 pleading in the wrong jurisdiction, where the error in filing is clear from the 20 filed materials themselves. The amount paid for the property is contained in 21

Exhibit "A" to the Complaint itself, so the Clerk should have seen it. The

22

circumstances in this case were that, despite the requirement of Code of Civil

Procedure subsection 396a(a), neither the Complaint nor any attached

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24

25

affidavit made the requisite recital of facts that are necessary for the

jurisdictional assignment of this case, viz; not only concerning the "damages" 26

27 prayed for, but also concerning the "value of the subject matter". Thus the

28 clerk was not put on notice by the complaint (ignoring the attached Exhibit

3

DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

21

The language of the quoted statute is mandatory, and generally admits

1 "A") or "attached affidavit" of those facts in Plaintiffs possession, which, had 2 they been disclosed, would have originally forced the correct filing of this suit 3 within the Unlimited Jurisdiction.

4 Because the issue never previously came up in the proceedings thus far,

5 Defendants ANTHONY J. MARTIN has never himself or through any temporary 6 counsel consented, according to the conditions required by Code of Civil

7 Procedure subsection 396a(b), for this case to be tried in the Limited

8

Jurisdiction court.

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13

II.

THE COURT HAS THE POWER AND DUTY TO TRANSFER A CASE TO THE COURT OF CORRECT JURISDICTION,

EVEN AFTER ENTRY OF A JUDGMENT.

"If it appears from the complaint or affidavit, or otherwise, that the

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16 superior court or court location where the action or proceeding is commenced 17 is not the proper court for the trial, the court where the action or proceeding 18 is commenced, or a judge thereof shall, whenever that fact appears, transfer it 19 to the proper court or court location, on its own motion, or on motion of the

20 defendant." Code of Civil Procedure subsection 396a(b). [Emphases added.]

22

of no implied limitations rules; that is consistent with the principle that

23

jurisdictional challenges are never waived through inaction, and the equitable maxim that "[t]ime does not confirm a void act." Civil Code section 3539. And 25

consistent with the harsh law of void judgments, there is no condition that the 26

27 transfer be conditioned "on terms that may be just" or any other equitable

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4

DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

1

consideration. See, in this regard, Dimock v. Emerald Properties LLC (2000),81 Cal.App.4th 868.

On the other hand, the same statute does permit a conditional waiver: "unless the defendant consents in writing, or in open court (consent in open

2

3

4

5 court being entered in the minutes of the court), to the keeping of the action

6 or proceeding in the court or court location where commenced ... [I]f an action 7 or proceeding ... is for an unlawful detainer, that consent may only be given by

8

a defendant who is represented by counsel at the time the consent is given." 9

Code of Civil Procedure, subsection 396a(b). (This statute is extremely

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11

unusual, in the sense that it creates a procedural rule whose application depends upon whether or not a party is a defendant represented by legal counsel. This may have policy implications that moving defendant has not yet fathomed.) As noted above, there is no consent, either in writing or in the

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15 minutes of the court, to the trial of this proceeding in the Limited Jurisdiction; 16 there is no "implied consent" to limited jurisdiction that is possible

17 under section 396a!

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The statute is somewhat parallel to that which exists for reclassification of actions and proceedings, at Code of Civil Procedure sections 403.010 et seq. In that chapter, too, there is an apparent limited waiver possible, but it does

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not require the express written or on-the-record consent by a legally-

represented defendant. The principal difference is one of application: the

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later statute at sections 403.010 has general application to cases that could fall into either classification, whereas the instant statute at section 396a is

25

restricted to only four kinds of actions and proceedings (and these are 26

proceedings {1} under Civil Code sections 1812.10, {2} under Civil Code

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section 2984.4, {3} under Code of Civil Procedure subsection 395(b), and 5

DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

1 {4}"an action for an unlawful detainer"). Further, the latter statute is more

2 concerned with jurisdictional changes that are occasioned by amendments of 3 pleadings.

4 In summary, neither the passage of time nor the completion of various

5 proceedings changes the fact of lack of jurisdiction, if this case has in fact been 6 in the wrong jurisdiction, and neither circumstance changes the duty for a

7 trial court to transfer this case to that court which does have the correct 8

jurisdiction, if this case has in fact been in the wrong jurisdiction. [For an

9

example where a "motion to transfer" has been used in a CCP §1161a case

because of the value of the property, see the case Asuncion v. Sup. Ct. (1980), 108 Cal.App.3d 141, at page 142.]

10

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As will now be shown, the proper court for this case is, in fact, the court 13

14 of the Unlimited Jurisdiction:

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III.

UNLAWFUL DETAINER SUITS FOR POSSESSION AFTER FORECLOSURE MUST BE FILED IN "UNLIMITED JURISDICTION", IF THE SUBJECT PROPERTY IS WORTH MORE THAN $25,000.

Although it is rather routine for lenders who have obtained "REOs"

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through foreclosure to file their eviction suits (pursuant to Code of Civil

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Procedure section 1161a) seeking "possession only" and "zero damages"

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in the "limited jurisdiction" court, this practice in fact is erroneous, 24

whenever the subject real property is worth $25,000 or more. Such

25

plaintiffs apparently have succeeded in filing their cases in the Limited 26

27 Jurisdiction, because they have been completely omitting any reference to the

28 value of the {subject matter' of the litigation, which is usually not relevant in an

6

DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

unlawful detainer action, but which is always relevant in the peculiar unlawful 1

2 detainer case which is, as here, brought pursuant to Code of Civil Procedure

3 subsection 1161a. (See discussion below concerning the Asuncion case.)

4 The aforementioned routine practice results from myopic reliance upon

5 Code of Civil Procedure subpart 86(a) (4), which classifies as a "limited civil

6 case" any "[p]roceedings in forcible entry or forcible or unlawful detainer

7 where the whole amount of damages claimed is twenty-five thousand dollars 8

($25,000) or less." This section is solely applicable where title is not an issue in

9

the unlawful detainer proceeding.

A proceeding that is brought pursuant to Code of Civil Procedure

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11

section 1161a, however, is anomalous among other unlawful detainer 12

proceedings, because, as a result of the very statutory language of 13

14 section 1161a, it necessarily tries the plaintiffs title to the property.

15 Mortgage Guarantee Co. v. Smith (1935),9 Cal.App.2d 618, and Freeze v. Salot 16 (1954), 122 Cal.App.2d 561. The burden of pleading and proof are upon the 17 Plaintiff to establish that the title has been duly perfected. "Title, to the

18 extent that it has been duly perfected, thus becomes an issue, and the

19 defendant may assert defenses relative thereto." 28 Cal.Jur.3d (Rev. 1978),

20 page 362, "Ejectment and Related Remedies" at §130, citing, inter alia, Cruce v. 21

Stein (1956), 146 Cal.App.2d 688, and Byrne v. Baker (1963),221 Cal.App.2d

22

1. [Emphasis added.]

23

When title and the right to recovery of possession to any manner of 24

property is involved, the initial or threshold jurisdictional statute is, in fact,

25

Code of Civil Procedure section 85, and subsection 85(a). If the "value of the 26

27 property ... that is in controversy in the action, exclusive of attorney's fees,

28 interest, and costs" exceeds $25,000 then that fact means that the "special

7

DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

8

There is also some decisional law that reinforces and illustrates

1 proceeding shall not be treated as a limited civil case." Code of Civil Procedur 2 subsection 85(a), followed by quotation from the initial paragraph of section 3 85.

4 In this case, as noted above, the publicly-recorded Trustee's Deed upon

5 which Plaintiff relies makes it clear that the "sale price" was $ 168,750. By the 6 Plaintiffs own pleaded facts, it is estopped from asserting that this special

7 proceeding belongs in the limited jurisdiction.

10

9

defendant's argument. Firstly, in Asuncion v. Sup. Ct. of the County of San Diego

(1980), 108 Cal.App.3d 141, the real property in the unlawful detainer suit

11

was conceded to be worth more than the jurisdiction of the municipal court. 12

The Court held that "title to the property is inevitably in issue in this

13 14 unlawful detainer issue, and the action is not within the jurisdiction of the

15 municipal court." [d. [Emphasis added.]

16 The case in Asuncion involved a strange situation where the legal title

17 had been in the plaintiff for some time, and the defendant had kept an option 18 that had been terminated by the plaintiff; this resulted in a title dispute

19 without a sale. But a case that squarely involved a trustee's sale after

20 foreclosure was Mehr v. Sup. Ct. of the City and County of San Francisco (1983), 21 139 Cal.App.3d 1044. There, the Court noted that "the unlawful detainer

22

action, originally filed in the municipal court, had been transferred to the

23

superior court." [d. 24

Defendant has now demonstrated that, whether one derives the

25

jurisdiction directly from the applicable statutes, or one instead relies upon 26

27 the decisional law, either way, an unlawful detainer proceeding under section

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8

DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

1

1161a must be classified according to the value of subject real property, as

2 well as the amount of damages sought in the proceeding.

3 II

4 CONCLUSION

5 This case never ought to have been permitted to proceed as a "limited

6 civil case", and the time to correct the problem is now.

7 Respectfully submitted, 8 Dated: January 6, 2010

9

LAW OFF

;;z:_

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Timothy L. McCandless, Esq.,

Attorney for Defendant, ANTHONY j. MARTIN

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DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

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"1161a" cases, ended up paying a smaller "filing fee" for this proceeding,

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DECLARATION OF ANTHONY J. MARTIN I, ANTHONY J. MARTIN, declare as follows:

1. I am the Defendant in the above Unlawful Detainer proceeding. I offer

3

4 this Declaration in support of my Motion to Transfer Case to Unlimited

5 Jurisdiction. If called to testify, I could and would testify competently to the

6

matters set forth herein.

2. Recently I became informed about the jurisdictional law affecting

proceedings under CCP section 1161a. Before my lawyer, Mr. McCandless,

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prepared this motion, I confirmed one more time that the face of the

Complaint with which I was served contained no reference whatsoever (other than the attached exhibit) to the valuation of the real property in this case. I am informed and believe that the bank in this case, like banks in many other

14 15 because it misstated the proper "jurisdiction" for the court. I am informed an

16 believe that the prevailing practice of the court clerks as to unlawful detainer

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suits against foreclosed homeowners has caused the result of reducing revenues to the courts of the State of California, and at a time when the State of California is having big fiscal problems.

20 4. I believe that I have a procedural right to protect, to have any appeal in

21 this case to be heard by the Court of Appeal, rather than the appellate

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department of the Superior Court. I have never knowingly consented to have the case tried in the limited jurisdiction, and I am informed by my attorney, and believe thereupon, that neither he nor any representative of his office has

heard this jurisdictional issue addressed so far in this case, and that no one 26

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has expressly consented to have the case tried in the limited jurisdiction.

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DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

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1

I declare under penalty of perjury under the laws of the State of California that

2 the foregoing is true and correct. 3 DATED: January 6,2010

fj(\\W,,,'O J. 1'111Y.fv,

ANTHONY J. MARTIN

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DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

1

I am a citizen of the United States and I am employed in the County of San Bernardino, State of California; I am over the age of 18 years and not a party to this action; my business address is: THE LAW OFFICES OF

2

PROOF OF SERVICE STANISLAUS COUNTY SUPERIOR COURT

3 I, Fransisco Vizcarra, declare:

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5

6

7

TIMOTHY MCCANDLESS, 1881 Business Center Drive, Suite 9A, San Bernardino, CA 92408.

9

8

10 On January 6,2010, I served the foregoing document(s) described:

11 DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED 12 JURISDICTION

13 upon the parties to this case, addressed as follows:

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16

15 Counsel for Plaintiff, U. S. Bank National Association:

John E. Bouzane, Esq.

17 LAW OFFICES OF JOHN E. BOUZANE 18 634 Oak Court

19 San Bernardino, CA 92410

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21

In the following manner of service: [ ] BY PERSONAL SERVICE.

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I personally delivered the documents to the persons at the address( s) listed 23

above. (1) For a party represented by an attorney, delivery was made to the

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attorney or at the attorney's office by leaving the documents, in an envelope or package clearly labeled to identify the attorney being served, with a

receptionist or an individual in charge of the office, between the hours of nine 27

in the morning and five in the evening. (2) For a party, delivery was made to

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DEFENDANT'S IN LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

15

13

DEFENDANT'S IN.LIMINE MOTION TO TRANSFER CASE TO UNLIMITED JURISDICTION

1 the party or by leaving the documents at the party's residence with some 2 person not younger than 18 years of age between the hours of eight in the 3 morning and six in the evening.

4 [XX 1 BY UNITED STATES MAIL.

s I enclosed the documents in a sealed envelope or package addressed to the 6 person( s) above.

7 [] deposited the sealed envelope with the United States Postal Service, with

8 the postage fully prepaid.

9 [ ] placed the envelope for collection and mailing, following our ordinary

10 business practices. I am readily familiar with this business's practice for

11 collecting and processing correspondence for mailing. On the same day that 12 correspondence is placed for collection and mailing, it is deposited in the

13 ordinary course of business with the United States Postal Service, in a sealed 14 envelope with postage fully prepaid.

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Executed on January 4, 2010 at San Bernardino, CA. _

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(2Jl'ri!m~.

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Fransisco Vizcarra

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I

NOTICE TO COURT OF CHANGE OF ADDRESS

1 Timothy L. McCandless, E~q. (SBN 147715)

THE LAW OFFICES OF TIMOTHY MCCANDLESS 2 1881 Business Center Drive", Suite 9A

San Bernardino, CA 92140lS

3 Phone: (9u9) 890-9192

Fax: (909)382-9956

5

Counsel for Defendant, Anthony J Martin

6

7

8

9 SUPERIOR COURT OF CALIFORNIA

10 IN AND FOR THE COUNTY OF STANISLAUS

11 STANISLAUS JUDICIAL DISTRICT/ MODESTO COURTHOUSE

12 LIMITED JURISDICTION/ UNLAWFUL DETAINER

13

14 U. S. BANK NATIONAL 15 ASSOCIATION etc.,

)Case No.:

) 39-2009-0021 0656-CL- UD- TRA )

)NOTICE TO COURT OF CHANGE OF ) ADDRESS

)

)

)

)

)

)

)

)

)

)

)

)

)

)

16

Plaintiff,

17

18 v.

19 ANTHONY J. MARTIN,

20

Defendants.

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25 TO THE COURT, TO PLAINTIFF U. S. BANK NATIONAL ASSOCIATION, AND 26 ITS ATTORNEY OF RECORD:

27

Please take notice that the legal counsel of defendant ANTHONY J. MARTIN has

moved its office, for purposes of all service of process, to the following new address: 28

1

2

NOTICE TO COURT OF CHANGE OF ADDRESS

2

THE LAW OFFICES OF TIMOTHY MCCANDLESS 1881 Business Center Drive"., Suite 9A

San Bernardino, CA 92140lS

Phone: (9v9) 890-9192

Fax: (909) 382-9956

3

Please send all future notices and other process to this address. 4

Dated: January 6,2010 LAW OFFICES OF TIMOTHY MCCANDLESS

: ~~L

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Timothy L. McCandless, Esq.,

Attorney for Defendant, ANTHONY]. MARTIN

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NOTICE '(0 COURT OF CHANGE OF ADDRESS

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PROOF OF SERVICE STANISLAUS COUNTY SUPERIOR COURT

3 I, Fransisco Vizcarra, declare:

4

I am a citizen of the United States and I am employed in the County of

5

San Bernardino, State of California; I am over the age of 18 years and not a 6

party to this action; my business address is: THE LAW OFFICES OF

7

TIMOTHY MCCANDLESS, 1881 Business Center Drive, Suite 9A, San 8

Bernardino, CA 92408. 9

10 On January 6,2010 I served the foregoing document(s) described: NOTICE

11 TO COURT OF CHANGE OF ADDRESS

12 upon the parties to this case, addressed as follows:

13

14 Counsel for Plaintiff, U. S. Bank National Association: 15

16 John E. Bouzane, Esq.

LAW OFFICES OF JOHN E. BOUZANE 634 Oak Court

17

18 San Bernardino, CA 92410

19

In the following manner of service: 20

[ ] BY PERSONAL SERVICE.

21

I personally delivered the documents to the persons at the addresses) listed 22

above. (1) For a party represented by an attorney, delivery was made to the 23

attorney or at the attorney's office by leaving the documents, in an envelope 24

or package clearly labeled to identify the attorney being served, with a 25

receptionist or an individual in charge of the office, between the hours of nine 26

in the morning and five in the evening. (2) For a party, delivery was made to 27

the party or by leaving the documents at the party's residence with some 28

14

4

NOTICE TO COURT OF CHANGE OF ADDRESS

1 person not younger than 18 years of age between the hours of eight in the 2 morning and six in the evening.

3 [XX] BY UNITED STATES MAIL.

4 I enclosed the documents in a sealed envelope or package addressed to the 5 person(s) above.

6 [] deposited the sealed envelope with the United States Postal Service, with

7 the postage fully prepaid.

8 [ ] placed the envelope for collection and mailing, following our ordinary

9 business practices. I am readily familiar with this business's practice for

10 collecting and processing correspondence for mailing. On the same day that 11 correspondence is placed for collection and mailing, it is deposited in the

12 ordinary course of business with the United States Postal Service, in a sealed 13 envelope with postage fully prepaid.

15

Executed on January 4, 2010 at San Bernardino, CA.

~~..-8

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Fransisco Vizcarra

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1

AGREEMENT TO, AND REQUEST FOR, SERVICE BY FAX OF EX PARTE NOTICES

1 Timothy L. McCandless, E~q. (SBN 147715)

THE LAW OFFICES OF TIMOTHY MCCANDLESS 2 1881 Business Center Drive,\ Suite 9A

San Bemardin0r? CA 9214015

3 Phone: (9u9) 890-9192

Fax: (909) 382-9956

5

Counsel for Defendant, Anthony J Martin

6

7

8

9 SUPERIOR COURT OF CALIFORNIA

10 IN AND FOR THE COUNTY OF STANISLAUS

11 STANISLAUS JUDICIAL DISTRICT/ MODESTO COURTHOUSE

12 LIMITED JURISDICTION/ UNLAWFUL DETAINER

13

14 U. S. BANK NATIONAL 15 ASSOCIATION etc.,

)Case No.:

) 39-2009-00210656-CL-VD- TRA )

)DEFENDANT'S AGREEMENT TO AND

) REOUEST FOR;, SERVICE BY FAX OF EX ) PARTE NOTIC.r.S

)

)

)

)

)

)

)

)

)

)

)

)

)

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Plaintiff,

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18 v.

19 ANTHONY J. MARTIN,

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Defendants.

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25 TO THE COURT, TO PLAINTIFF U. S. BANK NATIONAL ASSOCIATION, AND 26 ITS ATTORNEY OF RECORD:

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1

2

AGREEMENT TO, AND REQUEST FOR, SERVICE BY FAX OF EX PARTE NOTICES

2

Defendant ANTHONY J. MARTIN hereby agrees to, and further requests to be, served by telefacsimile with any notices of ex parte applications or hearings thereon, at the following telefascsimile telephone number of his legal counsel: (909) 382-9956.

Dated: January 6, 2010 _ ~F £E OFT;!;10THJrCCANDLESS

;;;::~ / ~

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Timothy L. Mcilandless. Esq.,

Attorney for Defendant} ANTHONY]. MARTIN

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1

I am a citizen of the United States and I am employed in the County of

2

PROOF OF SERVICE STANISLAUS COUNTY SUPERIOR COURT

3 I, Fransisco Vizcarra, declare:

4

5

San Bernardino, State of California; I am over the age of 18 years and not a 6

party to this action; my business address is: THE LAW OFFICES OF 7

TIMOTHY MCCANDLESS, 1881 Business Center Drive, Suite 9A, San

8

Bernardino, CA 92408.

9

10 On January 6,2010 I served the foregoing document(s) described:

11 DEFENDANT'S AGREEMENT TO, AND REQUEST FOR, SERVICE BY FAX OF EX 12 PARTE NOTICES

13 upon the parties to this case, addressed as follows:

14

15

Counsel for Plaintiff, U. S. Bank National Association:

16

17 John E. Bouzane, Esq.

LAW OFFICES OF JOHN E. BOUZANE 18 634 Oak Court

19 San Bernardino, CA 92410

20

In the following manner of service: 21

[ ] BY PERSONAL SERVICE.

22

I personally delivered the documents to the persons at the addresses) listed 23

above. (1) For a party represented by an attorney, delivery was made to the 24

attorney or at the attorney's office by leaving the documents, in an envelope 25

or package clearly labeled to identify the attorney being served, with a 26

receptionist or an individual in charge of the office, between the hours of nine 27

in the morning and five in the evening. (2) For a party, delivery was made to 28

3

AGREEMENT TO, AND REQUEST FOR, SERVICE BY FAX OF EX PARTE NOTICES

15

4

AGREEMENT TO, AND REQUEST FOR, SERVICE BY FAX OF EX PARTE NOTICES

1 the party or by leaving the documents at the party's residence with some 2 person not younger than 18 years of age between the hours of eight in the 3 morning and six in the evening.

4 [XX] BY UNITED STATES MAIL.

5 I enclosed the documents in a sealed envelope or package addressed to the 6 person(s) above.

7 [] deposited the sealed envelope with the United States Postal Service, with

8 the postage fully prepaid.

9 [ ] placed the envelope for collection and mailing, following our ordinary

10 business practices. I am readily familiar with this business's practice for

11 collecting and processing correspondence for mailing. On the same day that 12 correspondence is placed for collection and mailing, it is deposited in the

13 ordinary course of business with the United States Postal Service, in a sealed 14 envelope with postage fully prepaid.

16

Executed on January 4, 2010 at San Bernardino, CA.

f~~

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Fransisco Vizcarra

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