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y Cillespie,
eY Cillespie
NiDtilfs
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Melody and Courtney Gillespie
c/o P.O. Box 8323
Porterville. California
Telephone; (559) 788-0630
Email: gillespiecourtneyr@gmail.com
TULARE, COLINTY SUPEzuOR COURT
VISALIA DIVISION
Melody and Courtney Gillespie
)
Case No. tffil I c -
e3gc/(4
i
)
Plaintiffs,
VS.
Nicklas Hoffman. et al..
Defendants.
NOTICE OF AND MOTION TO STRIKE
RELATED CASE NUMBER PCL 138180
RELATED TO EXHIBITS FOR AND DEC-
LARATIONS AND MEMORANDUM OF DE-
N4URRER TO DEFENDANT'S ANSWER
Case No. 10-231561
Case No. 1:12-cv-00176-IJO-MJS
RELATED JUDICIAL NOTICE
TO ALL PARTIES AND TO THEIR ATORNEYS OF RECORD HEREN:
PLEASE TAKE, NOTICE that on June 26, 2012, at or after 8:3 0 am in dept 7 at 221 Mouev
California, Plaintiffs and Cross-defendants Courtney and Melody Gillespie will move the court for an order
vacating and setting aside the entry of defaulVdefault judgment
entered in this action on May 23,2011, and
leave to file the attached proposed verified answer.
This rnotion is rnade on the grounds that Plaintiffs/cross-defendants failure to respond to the com-
plaint 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.
based on this notice, all paoers and records filed in this action, and the above related actions. the declarations
I
MOTION TO VACATE/SET ASIDE DEFAULT
-V
tce'
FILED
'u",ie
f;ffis,,utiBf*
t'Ay
2
5 2012
BIARAYNE
CLEEK,
CLERK
NOTICE OF MOTION AND MOTION TO
VACATE/SET ASIDE ENTRY OF DE-
FAULTIDEFAULT JUDGMENT Pursuant to
CCP
SS473
et seq
MEMORANDUM OF POINTS AND AU-
THORITIES, SUPPORTING DECLARA-
TIONS
DATE: June26,2012
TIME: 8:30 am
DEPT: 7
Visalia
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y Gillespie,
ey Gillespie
riD tiffs
v
of Melody and Couftney Gillespie, memorandum of points and authorities, proposed verified answer, the
copies of which are attached and on such evidence as may be presented it the hearing.
Dated : May 22,2012
Dated : May 22,2012
I ainti ff/c ro s s - d dfe n d ant
cross-defendant
MOTION TO VACATE/SET ASIDE DEFAULT
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llelurly rtrl
(.ourtrrey
(
Jill*pic
l'.(). llot llJlJ
I'r,r{crvillc, (
rlilirrnir
Melodl" and Courtney Gillespie
cio P.O. Box 8l2i
Portcrville. Cali tbrn ia
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Iv1elody and Courtney Gillespie
VS.
Nicklas Fioffhran. et al.,
SUPERIOR COURT
DIVISION
Case No. 10-238961
NOTICE OF |v{OTION TO VACATEi
SET ASIDE ENTRY OF
DEFAULT/DEFAULT JUDGNl ENT
Pursuant to CCP
$$473
et seq
MEMORANDUIV{ OF POINTS OF
AUTHORITIES, SUPPORTING
DECLARATIONS
TULARE
Plaintif ts.
COLINTY
VISALIA
Defendants.
RELA-IED CASE NUMBER PCL I38IBO
TO ALL PARTIES AND TO ]'HEIR ATTORNEYS OF RL,CORD HEREIN:
PLEASE TAKE NOTICE that on
Mooncl'Blvd. Visalia Calitbrnia, Plaintit'ti and Colurter claiur def'ertdartts Courlnev and fvlelodl Gillespie
rvill rnove the coLrrl fbr arr order vacating and setting aside the entrv of def-aLrlt/defhult
jLrdement entered in
this action on May 2
j.
201 l. and leave to flle the attached proposecl rerifled ans\\'er.
J'his rnotion is uraclc on the grounds that Plaintitts/cross-c'lef-errdants tailure to respond to thc'
cornplaint riith the tiurc;rllolvccl is dLrc to rnistake-. inadr.'crtcnce. srrrprise. excusablc neslect. anti extrinsic
fi'atrd or ntistake. as is nror!- lirlly statcd irr clcclaration fllcd irt support of the tnotiolr. J'his nrotiort rrill bc
based on this noticc. all papcrs arrrl lccords fllcd in this action thc cleclaratiorrs of'NIcloclr and Couftrrel
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.
l)utccl:
L)atccl:
. 201 l, at or afrer
fe6hrn)
in Dept 7 at 2l I
Courlnel',p iIlc'ipic
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Melody and Courtney
Gillespie
P.O. Box 8323
Porteryille, California
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO VACAATE/SET ASIDE DEFAULT
INTRODUCTION
1. On Or about Marach23,2010, Nicklas Hoffman, Nickol Gerritsma, and WYSOCKI TRUST filed
an LINLAWFUL DETAINER ACTION against Melody and Courtney Gillespie. In the
IINLAWFUL DETAINER. Hoffman contended that:
1.1 The Gillespies had an oral contract to rent bare land and would not leave,holding the
property under threat and duress.
1.2 The UNLAWFUL DETAINER should declare the Gillesoie renters.
1.3 The land sales agreement was of no effect after the parties accepted compensation to
consummate the contract
1,.4 Hoffman/Gerritsma needed injunctive and declaratory relief. The
judge
did not agree with
Hoffman/Geritsma. Hoffman, Gerritsma, and WYSOCKI continued to accept
compensation for the property, yet demanded eviction. Hoffman, Gerritsma, and
WYSOCKI TRUST did nt prevail. They did not appeal or collaterally attack the ruling
from the court in Case number PCL 138180.
2. On or about November lg,201.0,Hoffman, Gerritsma, and WYSOCKI TRUST filed a cross
complaint against the Gillespies in which Hoffman is contending that:
2.I The Gillespies have an oral contract to rent bare land and won't leave, holding the property
'
.,rrder threat and duress.
2.2 The Court should void the contract and make it of no legal effect, making the Gillespies
renters after accepting compensation to consummate the contract.
2.3 A Writ of execution should issue for the Sheriff to evict the Gillespies.
2.4 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
the name of the title of the lawsuit. Instead of IINLAWFUL DETAINER AND
EVICTION, it is
QUIET'TITLE
AND EJECTMENT.
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Melody and Courtney
Gillespie
P.O. Box 8323
Porterville, 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,
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.
Between the dates of March 23
,
2010 to August 26, 2010
,
the Gillespies have suffered
much harassment and malicious mischief caused by Nicklas Hoffman, causing the
injunction to be filed much later than the Gillespies intended. The harassment and
malicious mischief suffered by the Gillespies became so severe tha the Gillepsies sought
relief by way of a Temporary Restraining order (TRO). The TRO issued on May 21,2010.
On May 28,2010 Nicklas Hoffman shot or caused to be shot, the Gillespies' little Terier
dog in retaliation for obtaining the TRO. His harassment and malicious mischief became
worse after the TRO issued, and the Gillespies had to once again seek relief from the court
by way of an ORDER TO SHOW CAUSE FOR CONTEMPT OF COURT. The trial for
this was to take place on or about November 12,2010, in Cse Number 10-231521.
On or about October 29,2010, Hoffman conceded guilt and agreed to a settlement.
On or about April 12,2011, the Gillespies again had to seek relief from the court because
of the severity and life threatening nature of the malicious mischief and harassment. On or
about March 1I,2011, Hoffman was shooting at Roxann Davidson and Melody Gillespie
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
TIME IT WILL BE YOUR EYE.''
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
plaintiffs, when Robert Fletcher, the attorney of record was ethically required to notify the
Plaintiffs of the default causins fuither harassment.
Many of the acts committed by Hoffman are recorded in the document MANDATORY
JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE AND DEMURRER TO
CROSS-COMPLAINT and MEMORANDIIM AND DECLARATIONS IN SUPPORT OF
3.1
J.L
J.J
1A
J.+
3.5
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Melody and Courtney
Gillespie
P.O. Box 8323
Porterville, California
1.
DEMURRER TO ANSWER in the above named case, as well as Case number 10-23752I
and the declaration contained herein.
STATEMENT OF FACTS
On or about April 15, 2011, Hearing for a MOTION FOR RECONSIDERATION and a MOTION TO
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
the demurrer was heard on the merits.
'
"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
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
notifv the ttrevailing rtartv ss to whether or not the
proposed
order is so aoproved". The ooposing
partv or
parties
must state anv reason for disaporoval." The Plaintiffs never received a ruling for the
motions from the prevailing side, nor did the Plaintiffs receive a minute order from the court.
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
attorney who works at the courthouse. Plaintiffs were told there would be no access to the record for
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.
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
crucial to filing an answer due to a fatally flawed counterclaim. The issues of the counterclaim had
already been litigated and adjudicated, coming under the doctrine of res judicata and estoppels. To this
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 the followins cases the same
proceedinss
shall be had. and
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
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Melody and Courtney
Gillespie
P.O. Box 8323
PorterYille, California
defendat fails to answer the unstricken
porfion
of the complaint withi the time allowed bv the court,
no demurrer having been sustained or being then
pending.
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."
We never waived that notice.
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 a
judicial
determination to be made. Notice was not
waived at any time, by us, and we were very adamant in court that the decision would be appealed. We
requested an order. No decision was ever siven and no order received.
6. Pursuant to "CR Rule 3.1379(d) F
prevailing partv
fails to
prepare
and submit a
proposed
order ss required bv
(aI
and
(bl
above, and
other
psrtv
mav do so.l'
6.1 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
prevailing party is supposed to serve, and has failed to do so. The time for filing an answer or
appeal does n'ot start until the rulings are received by all parties.
7. On or about May 20,2011, the defendants/counter-claimants filed a REQUEST FOR ENTRY OF
DEFAULT. The clerk stated to us on Mav 27 .2011 that the default had been lodsted in bv the
clerk on May 23, 2011.
8. On or about May 24,2011, we received the copy of REQUST FOR ENTRY OF DEFAULT.
Ethically the defendants/counterclaimants were supposed to notify us of their intent to lodge in a
request for entry of default. The defendants failed to do so. Defendants/counterclaimants'
attorney, Robert Fletcher, failed to call us with a warning of his intent to file a default. The failure
to notify violated the due process requirement.
"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
"dog-
eat-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
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Melody and Courtney
Gillespie
P.O. Box 8323
Portenille, California
9,
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"
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 of
judicial
estoppels. The defendants took the same complaint from PCL 1 3 8 1 80, changed the name
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.
The defendants know they wouldnot prevail in the above named case, because the answer to our
complaint, presented by defendants, are completely false statements, contradicting earlier
testimony in previous hearings, with altered documents attached. The defendants cross complaint
is a rehashing of a previous lawsuit filed against Plaintiffs in which they did not prevail, and are
stopped from suing it out again. We have a meritorious cause of action.
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 a 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
Hoffman's name is not on the grand deed,Courtney Gillespie's name is not on the grant deed, but
both are trustees of WYSOCKI TRUST, the name that is on the grant deed, and the property rights
are protected within the trust. Nickol Gerritsma is merely a nominee for the trust, and does not
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 and Courtney
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
Gillespie out and keep all the proceeds for himself.
ISSUES OF LAW AND FACT
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Melody and Courtney
Gillespie
P.O. Box 8323
Porterville, California
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 ruling and our
time to answer is measured from sewice of such notice
(CCP
61019.5)
We never received notice and therefore have not defaulted on the answer. The
defendants/counterclaimants are the ones that have defaulted on the following rules of court, the
statutes,a nd have violated constitutionally guaranteed rights to due process.
13. The defendants/counterclaimants have violated ethical obligations. The
defendants/counterclaimants know how and where to contact us, and had an ethical obligation to
warn before requesting entry of default. The California Supreme Court warned that this kind of
violation would not be condoned bv the courts:
"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)
133 CA2d 486, s00, 284 P2d 194, 201.
"Even
legitimqte tactics must sometimes yield to the only goal that
justijies the very existence of
our
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
"dog-
eat-dog business" governed by the
"Iaw
ofthejungle" should be cartailed, notrewarded,
14. In the absence of a prior warning of default, courts are inclined to grant CCP 473 motions to set
aside defaults.
(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."
15. RELIEF FROM DEFAULT
-
The trial court has broad discretion to vacate the
judgment
and/or the
clerk's entry of default that preceeded it. We have established grounds for relief and have followed
the proper procedure.
16. RELIEF FOR "MISTAKE, INADVERTENCE, SURPRISE, OR EXCUS$LE NEGLECT"
(CCPS473\:
The court is empowered to relieve a
partv
"upon
such terms as mav be iust ...from
a iudsment, dismissal, order or other
proceeding
taken against him/her throueh his/her mistake,
inudvertence, surprise, or excuseble neglect." CCP $473,
para
3.
The reference to 'Judgment . . . order or other proceedings" allows relief both from default
judgments
and from the entry of default that preceded it. I also includes any step taken in a case
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Melody and Courttrey
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Porteryille. California
t7.
whether by the court or by one of the parties:
$Anything
done
from
the commencement to the
termination is a proceedins." ZeUerino v. Br
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
$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
received by us. We could not act without a court order, with the
judicial determination on the 2
motions and the demurrer before the court. The record was secreted away from public scrutiny by
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
no activity could be taken on the case while the records were secreted. We believed this would be
a denial of due process because if one party file in papers without the others knowledge, a surprise
would take place. We could not take the motions up to appeal without the ruling mandated to be
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
defendant's counterclaim. This left us with the
justifiability of the failure to determine the correct
law. Anderson v. Sherman. supra: McCormick v. Board of Supervisors
(1988)
198 CA3d 353.
360,243, CR617, 621.
EXTRINSIC FRAUD OR MISTAKE: This motion is made because of the flagrant violation of the
court rules, and statutes by the defendants. The Defendants submitted an answer to our complaint
stating that we have no rights, title, orinterest in the property,a nd then attaching falsified copies of
the original contract Hoffman and Gillespie signed. In defendants' counterclaim the defendants
purport that Plaintiffs:
t 8.1
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have made payments,
have developed the land and made improvements,
18.3 have an oral agreement to be renters after developing the land, making payments on the
contract
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Melody and Courtney
Gillespie
P.O. Box 8323
Portenille, Califortria
18.4 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
some kind of perceived 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
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
ACTION is because on or about March 23
,
2010
,
the defendants have attempted to extract from
this court a different ruling as if it was new issues and new malter, when it clearly is not. After the
motion to strike was present to the court, against defendants' counterclaim, the defendants' know
that their cross complaint is fxally flawed, and could never be won on the merits. Therefore, by
either extrinsic fraud or mistake, the defendants did not follow the rules causing us to inadvertently
default.
uA
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.
"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."
65-66.
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
,
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Melody and Courtney
Gillespie
P.O. Box 8323
Porterville, California
20.
2r.
Sustaining an entry of default and default action violates doctrine of Judicial Eonomy. The entry of
a default would not sustain a quiet 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
all the individuals involved.
The counter complaintants are not entitled to another
judgment
on the same issues in a previous
lawsuit involving the same parties.
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.)
The doctrine
"has
a double
qspect."
"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
$asecond
suit... basedon adiffirentcause
ofuction...
'as an estoppel or conclusive adjudication ss to such issues in the second action as
were actually litigated and determined in the
jirst action.'
[Citation.J"
[bid)
"The
prerequisite elements
for
applying the doctrine to either an entire cause of action or one or
more issues are the sume: (1) A claim or issue raised in the present action is identical to a claim
or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a
jinal judgment on
the merits; and (3) the party against whom the doctrine is being asserted was a par$ or in privity
with a party to the prior proceeding.
fCitations.J"
(B
(1999t
76 Cal.App 4o 550. 556.1
We claim that the defendants counterclaim contains both prerequisite elements for applying the
doctrine of estoppels/res judicata.
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-
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
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Melody and Courtney
Gillespie
P.O. Box 8323
Porteryille, California
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
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.)
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
in their cross complaint. See Mandatory Judicial Notice of Case Number PCL 1 3 8 1 80, I-n Supposrt
of Plaintiffs' Motion to Strike and Demurrer to Defendants' Cross-Complaint.
"The equitable Doctrine of Judicial Estoppel can be involved to prevent aparty from taking
a position 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,
financial, and emotional resources, including a loss of many days of work. This has caused
multiple court filings, much litisation and 3 lawsuits in 1
year.
The nearly daily harassment has
prevented timeliness in the above named case. The filing of the default was another means of
harassment to prevent us from having the opportunity to do depositions and discovery as is
necessary, in the above named court, prior to trial.
The fact that the rules as laid out bv legislature have not been followed by the
defendants now have caused more resources. time. energv. finances to be expended to have
the entrv of default set aside and anv default iudsment vacated. We inadvertently made a
mistake in fact and law, believing the statutes could be relied upon and the defendants would
follow the rules, too. Also, the defendants were not entitled to a default
judgment
on their cross-
complaint because of the facts that a
Quiet
title action was filed, the issues were already litigated
and adjudicated in another court, invoking the doctrine ofres
judicata
and estoppel.
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Melody and Courtney
Gillespie
P.O. Box 8323
Porterville, California
The facts plead to in the cross-complaint are inconsistent to the facts testified to by the
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
court that heard the matter and adjudicated the issues on the merits. A default
judgment
does not quiet title.
The defendants are trying to get another unlawful detainer enforced in the above named court with a default
judgment,
not quiet the title.
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
Motion to Strike and the Demurrer, leaving the Demurrer still pending. The time to answer does not start
until the Demurrer is ruled upon and all parties are served the ruling. The request for the entry of default
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 a
jury, and we are entitled
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
"attorney affidavit of fault" is filed, minimal evidence of excuse is enough to support the order on appeal.
"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. If the court fails to grant this motion we, the plaintiffs, will be irreparably
harmed, it will not be good for
judicial
economy, and would deteriorate the integrity of the previous couft's
ruling and integrity of the
judicial process. The defendant should be sanctioned for suing us again on the
same issues.
PRAYER
WHEREFORE, we, Melody and Courtney Gillespie pray for the following
judgment and relief:
1. The court allows leave to Plaintiffs to frle the proposed answer attached herein;
2. The court grants the MOTION TO SET ASIDE the Entry of Default and Vacate the orders,
rulings, and judgments for default:
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Xlclody and C0urtne]
Gillespie
P.O. ljox 8323
Porten ille, Californir
This Court takes Judicial Notice as Requested herein, and as reqllired by law,
The Courl reopens the proceedings for Entry or presentation of furlher documentary
evidence presented in Exhibits Accompanying, accompanying this motion, and/or
Completes the review of the case as required in Administrative Rules of Couft, and Case
managelxent rules and Procedures, and;
The court sanctions the defendants for prematllre entry of the default and failure to follow
court rules,
The coutl grants attorney/counsel fees of two thousand dollars and costs of filing thrs
motion of two hundred dollars
8. This Court Grants whatever Relief it deems Right and Proper under allthe facts, EqLrities,
and Law of the Case.
VERIF'ICATION
I, Melody Gillespie declare under the penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated: May 21,2012
[, Couftney Gillespie declare r-rnder the penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated: May 21,2012
3.
4.
J.
6.
1.
rcr
iln,!? ,{.'**.**^
Courtney Gillespie
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]lrl()rl)' tilil ( {}urlncy
(;illcsl)ic
l'.(). ll,rr llJlJ
l'rrrttrlille. (
rlifornir
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DECLARATION of Melody Gillespie
IN SUPPORT OF MOTION TO SET ASIDE/VACATE
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:
I 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. On N{arch 23.2010. ue \\'ent to trial on an unlau'tirl detainer action initiated b1,
Flofflnan. Gerritsma. and \\-YSOCKI TRUST. Hotfrnan/Gtr-rritsma did not prerail. and
the rr-rlin-u nas in favor of the def'endants. who are the Gillespies. Floftman/Genitsma
clid not appeal.
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. Thc-
Gillespies 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
IIol'lhtan's acts of nralicic'r-rs mischief arc- conrmittccl to clestroring mv husband. Courtncr
Gillcspie and nr1'selt-phy'sicalll'. llnanciall.,'. to nrakc us honrclcss. and prevcnt
us fiom
bcinc ablc to obtain rclie f in thc colu'I.
Ilttl'lllan's attL-tupt is to nrakc Lls appcar as rcntcrs attcr *c harc bccn paring 61curs on
thc original land contri.rct iigrcerncnt.
'['hc
dcl'cncliiut's cross con]plaiut lbr
Quiet
-['itle
and
c.jcctnrcnt. is the scconcl tir-nc in a y'car tliat Hoffhun has attempted to sue my husband and
I as rcntcrs, unsucccss['ullr.
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]
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l-
ti
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28
\lrlrrrlr arrrl
(
ourtnc'
(iillrspic
l'.(). llrrr NJIJ
l'orter\ ille, { llifrrroir
)
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26
8.
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.
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)'.
'fhc
Gillepsies exercised dr-re dilligience b1 going to the court to check the courl rr-cord tbr
theminuteorderoranvkindof
orderfiomthelaw'andmotionshearin-eof
April l-:.2011.
'l'he
judge
appeared to be in a hurrr'. did not hear the Motion to Strike on the Nlerits or thc-
Dctnurrer to the dct'endant cross
-
complaint. and did not issue a clear order oralll as to
r,rhat
his rr,rling u.'as. [t appears that the rr-rling on the Demurrer is still pending. The coLrrt
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
ol'tlce is in the
-['r-rlare
Cor-rnty'Cor-rrthouse in Visalia. The Giltespies lvere tolcl b1 thc cuurr
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.
'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.
ll.-l'hc
(iillcsptics
havc rcliccl on this Suprcntc Ccxrrt I{uling:
12.
"'ltcs
jtrclicata'clcscribcs
the preclusir,'e eff'ect ol-a tlnal.iudgmcnt on thc rncrits.
I{cs.iudicata. or clairn prcclLrsion. prcvcnts rcliligation of the sarnc cilusc of actiorr
in a seconcl sLrit bctrvccn the samc piirties or partics in privity rvith thcrn. Collateral
cstoppel, or issllc prsclLlsion,'prcclLlcles
relitigation of issucs argLled ancl clcciclcd in
l0
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\ltlorl)' artrl
(
-r,ur!nrt
(iillespic
l'.O. lt,,r SJlJ
l',rr ttrvillc,
(
rliforrrir
prior proceedings.'
[Citation.]
Undcr the doctrine of res
judicata
. . . a
juclgrnent
fbr the def-endant serves as a bar to further litigation of the same cause of action."
(lvfvcogen
Corp. v. lvfonsanto co.
Q\aD
28 Cal.4th 88g. 896-997.)
13. The Gillespies required a
jLrdicial
detennination as to rvhat issues in the counrer
clairn \\'ere answerable issues that have not been previously'
ad-iudicated.
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.
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. 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
lbllou'the lari ot'scttins asiclc thc cntrl'ol-clcfiiult ancl r.acatc thc cicllLrlt.jLrdecrncnt.
Vlrl{lFICAl'lON
ldcclarc under thc pcnaltr.'ol'pcriLrrr undcr thc larvs ol-thc Statc of'Calitbmiii that thc ibrcgoing is
truc anci correct.
I:xcctrtcclat Portcrviltc. Calilirrnia on this
d**
day ot
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t'Cillespie,
ey Gillespie
ri ntiffs
2T
22
L)
1A
LA
Melody and Courtney Gillespie
c/o P.O. Box 8323
Porlerville, California
Telephone: (559) 788-0630
Email: gillespiecourlneyr@gmail.com
TULARE COLINTY SUPEzuOR COURT
VISALIA DIVISION
Melody and Couftney Gillespie
)
Case No. 10-238961
)
Plaintiffs,
)
VS.
)
)
ANSWER TO CROSS
-
COMPLATNT
Nicklas Hoffman, et a1.,
)
REQUEST FOR MANDATORY JUDICIAL No-
)
TtcE N SUPPORT OF MOTTONS
Defendants.
)
Pursuant to EC
$S
451 - 459
NOTICE OF AND MOTION TO STRIKE
)
RELATED CASE NUMBER PCL 138180 )
RELATED TO EXHIBITS FOR AND
DECLARATIONS AND MEMORANDUM
OF DEMURRER TO DE,FENDANT'S AN-
SWER
Case No. f0-231561
Case No. 1 : 12-cv-00176-IJO-MJS
RELATED JUDICIAL NOTICE
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.
INTRODUCTION
This is a complaint for quiet title, injLlnctive and declaratory relief, and civil penalties. At first glanc
this case appears to be 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
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
PLAINTIFFS AND CROSS- DEFENDANT'S ANSWER
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ev Cillespic
r i n tiffs
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 killing of animals, cats and d
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
property, oppression, malice, and mayhem.
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:
1) We deny all allegations in paragraph 1;
2
)
We deny all allegations in paragraph 2;.
3) We deny all allegations in paragraph 3;
4) We deny all allegations in paragraph 4;
5) We deny all allegations in paragraph 5;
6) We deny all allegations in paragraph 6;
7) We deny all allegations in paragrapli 7;
B) We deny all allegations in paragraph B;
9) We deny all allegations in paragraph 9;
In the second cause of action stated in the cross-complaint:
10) We deny all allegations in paragraph l0;
I 1) We deny all allegatior.rs in paragraph 1 l;
12) We der-ry all allegations in paragraph 12;
PLAINTIFFS AND CROSS- DEFENDANT'S ANSWER
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v Gillcspie,
ev Cillespie
aintills
13) We deny all allegations in paragraph 13;
ln the third cause of action stated in the cross-complaint:
14) We deny all allegations in paragraph 14;
15) We deny all allegations in paragraph l5;
16) We deny all allegations in paragraph 16;
17) We deny all allegations in paragraplr l7;
18) We deny all allegations in paragraph 18;
STATEMENT OF F'ACTS
I. 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:
1.1 The Gillespies had an oral contract to rent bare land and would not leave, holding the prope
under threat and duress.
1.2 The UNLAWFUL DETAINER should decrare the Gillespre rerters,
1.3 The land sales agreement was of no effect after tl-re parties accepted compensation to
consummate the contract
t.4 Hoffman/Gerritstra needed injunctive and declaratory relief. The judge
clid not agree with
Hoffiran/Gerritsltta.
Hoffinan, Gerritsma, ancl WYSOCKI continuecl to accept corrpensatior
for the property, yet demanded eviction. Hoffi-nan, Gerritsma, and WySOCKI TRUST did r
prevail. They did not appeal or collaterally attack the ruling from the courl ir-r Case
pumber
PCL 138180.
2. On or about November 19, 2010, Hoffr-nan. Gerritsma, ancl WYSOCKI TRUST filed a cross compla
against the Gillespies in lvhich Hoffi-nan is contencling that:
2.1 The Gillespies have an oral contract to rent bare land and won't leave, holding the property
under threat and duress.
PLAINTIFFS AND CROSS. DEFENDANT'S ANSWER
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A writ of execution should issue for the Sheriff to evict the Gillespies.
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
QUIET
TITLE AND EJECTMENT.
J. The defendants' cross cotnplaint is fatally flawed because defendants filed the same lawsurt or Jarru
7
,
2010 in another superior court. The defenclants know it was fatally flaweci and subject to the doct
of res judicata
and the doctrine of estoppels. The clefendants took the salne complaint fron
pCL
13 8180, changed the name from unlawfr"rl detainer to quiet title action, alleged the same facts which
were adjudicated in the Superior Cour1. The defendants took the same cornplaint and are attempting
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
deferldants have received paytnent, they are attempting to have us evicted off of the propertv.
refirsin
recollvey the title or grant deed us our sirare of the properly. Instead, the clefendants are trying to qui
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. 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
hearings, 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.
5. 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
property rights are protected r,vitliin the trust. Nickol Gerritsma is merely a nominee for the tnlst. a
does not control the properly within the trust, and the trr-lst contlol is shared eqLrally bettveen Hoffura
and Gillespie. The fact was established in the contract signecl by Nicklas Hoffinan and Courtnev
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
hadpLrtinthirlythousanddollars-worthofmaterials,rnachinery,andlaborintothepropedy.'l'here
The CoLrrt shoLrld void the contract and make it of no legal effect, making the Gillespies renl
after accepting compensation to consurnrlate the contract.
PLAINTIFFS AND CROSS- DEFI]NDANT'S ANSWER
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aintiffs
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' 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:
We have made payments,
We have developed the land and rnade ir.nprovemenrs,
We have an oral agreetneut to be renters after developing the lancl and making payments as
property owners,
And then we decided against buying the land after having invested over thirty five tirousand
dollars into the development of the land, and the infra-structure.
1. According to the defendauts, we were supposed to initiate and pay for the subdivision of the prope
but were never purchasers of the properly. Afler over 5 years of developing the properly as our own,
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
Judge Glade Roper adjudicated the matter, and macle a
jLldicial
determination that we were not renl
So Hoffinan devised a scheme to try to rnake us renters r.vhether we agreed or
pot.
B. Well, lve refused to sigtt a rental agreerneut, which, according to the clefenclants,
hind of right. The defer-rdants are stilltahing rllouey on the original contract, ald
rights, title, or interest to the properly.
now have denied
clain that we have
The defendants have filed a quiet title action and ejectment against alleged renters, instead of an
unlawful detainer action and eviction. The defendants/cross-complaintants were reqLrired to raise e
cattse of actiort thatthey were a\,vare of in tire previoLrs lawsLritwhich are arising out of the salne
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
rest of it in the previotts action (PCL 13S180), anclfailed to do so. The previous rLrling has the effect
res judicata.
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10.
12.
ed. 1997\ Judgntent,5280, rr. 820.1
every matter adjudicated."'
750. italics added.)
estoppels, to bur.fi.trtlter proceedings in tlte snnte actiott"
915, footnote 5.
PLAINTIFFS AND CROSS- DEFENDANT'S ANSWER
The reason defendants have filed a
quiet
title and eiectnent action asainst us as allesed renters 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 is
not. After tl-re motion to strike was presented to the cour"t, agair-rst defendants' cross complaint, the
defendar-rts know that their cross complaint is fatally flawed. and should never be won on the merits.
1 1. THE CROSS- COMPLAINTANTS ARE NOT ENTITLED TO ANOTHER JUDGMENT ON THE
SAME ISSUES IN A PRVIOUS LAWSUIT INVOLVING THE SAME PARTIES.
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
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
judgment...'operutes"'in"asecontlsttit..,bosetlonndffirentcauseoJaction..'ttsur7
or conclusive ndjurlictrtiotr os to suclt issues in tlre second uctiott as were uctuolly litigated and
rletermined in tlteJirst oction.'
[citation.J" Qbid.)
"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.
5s0. ss6.)
We claim that the defendants' cross complaint contains both prerequisite elements for applying the
doctrine of estoppelsires j r"rd i cata.
TIte DeJbndunt's cluinr ruises u threslrold issue thil we ltave nol
.yet
decided: whether either of
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
. of Water & Power v. Invo Chem. Co.
(19,10)
16 Cal. 2d 7
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
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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 rigltts of purties ure fln integrul part of our system of governntent. It is
us intportunt that tltere slrould be a pluce to end us that there shoukl be u plnce to begin litigntion.
After a purty ahs his tlay in court, witlt opportmdty to present his evidence utd his view o.f the luw,
colluterul uttuck upon tlte decision us to.jurisdictiott there rendered merel.y retries the issue
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
CASC NI-ImbeT 1381BO IN SUPPORT OF PLAINTIFFS, MOTION TO STRIKE AND DEMURRER
DEFENDANTS' CRO S S-COMPLAINT.
"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
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.
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
and 3 lawsuits in I year. The nearly daily harassment has prevented timeliness in tl-re above entitled
case. The filing of the default was anotlrer means of harassment to prevent us from havir-rg the
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
caused llore resources, tirle, energy, finances to be expended to have the entry of default set aside a
any default judgment
vacated. We ir-radverler-rtly made rnistake in fact and law, believing the statute
could be relied upon and the defendants.would be lequired to follow the rules also,
PLAINTIFFS AND CROSS. DEFENDANT'S ANSWER
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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
facts testified to by the defendants in another case, Case Number PCL 138180. For the court to i
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
clerk stated that we would not have access to the court file for at least 30 davs. The iudse did not
our MOTION TO STRIKE and the DEMURRER on the merits. and he did not rule 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 e
of defaLrlt lvas
pler.natLrre
and done through extrinsic fraud or rristake of the defer-rdants.
18. The defendants are also not entitled to relief by way of the cross cornplaint because the con-rplaint
filed on November 19. and not served uritil December 23. 2010. and was outside of the court rules an
the rules of civil procedure. The defer-rdant have flagrantly violated the court rules on a consistent
aud deserve to be sanctioned by the disrrissal of the cross-complair.rt.
19. We have requested to have the merits of the above entitled case, tried by a
jury, and we are entitled t
jr-rry
hearing, especially in the case of an ejectment. The Appellate colrfts are inclined to affirm o
grar-rting relief from default because the lalv favors trial on the merits, wheuever possible, thus even
lvhere relief is not r.nandatory., i.e. lvhere no "attomey affidavit of faLrlt " is filed, minimal evidence
excllse is enough to sr-rpport the order on appeal.
AFFIRMATIVE DEFENSES
20. We alleged that the defendants/cross-complaintants have failed to state a calrse of action in their
comolaint based on the follow:
None of tl-re named cross-complaintants have any standing or right to file or prosecute a qui
title action becanse they have pfevioLrsly transferred all their rights, and interests in the subj
property, I B31 Norlh Lirne street, Porlerville, to a third party who is not named in the action,
r'vhich renders their alleged cross corrplaint and all causes of action void ab initio and of no
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effect r"u-rder law. This renders any jLldgments which arise ollt of such the alleged quiet title
action wollld also be void ab initio as a n-latter of law and unenforceable.
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
recorded in Case nlurrber 10-237521and in allof the reqllests for
iudicialnotice
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 1
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 off our water, violated a court ordered settlement agree
to keep our water turned on (10-237521), destroyed our garden, provided many false reports
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
pellet gun, stalked my fi"iends, threatened to kill and cause bodily harm to my girlfriend, as
as threats and attempts to kill us, has had rne follorved arouud town, used his children to co
criminal acts against us, and the list
just keeps going.
20.3 The quiet title action is sLrbject to dismissal dr-re to the DOCTRINE OF ESTOPPEL,
COLLATERAL ESTOPPEL. JUDICIAL ESTOPPE,L AND RE,S JUDICATA. See the Mot
for Mandatory
judicial
notice of Case No. 13 B 180 in Supporl of Plaintiffs' Motion to strike a
demurrer to defendant's cross-complaint, filed Feb. 15, 201 1, incorporated herein by referen
as if fully set for1h.
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 a
sanction. Tl-reirprerequisiterequiredther-ntofileanoticeofpendencyofactionwithall oftheknow
parties with an interest in the properly. The cross complaint is subject for disrnissal for failing to
complytoalloftherequirementsofaquiettitle. Itissubjecttoamotiontostrikeordisrnissalfor
sanction, third party intervener, or a motion for
joinder
by the couft, or one of the parties for exclttsi
of'an essential par1y.
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 That the cross-cor.nplaint be dismissed for the above stated reasons:
21.
PLAINT]T-FS AND CROSS- DE.FENDANT'S ANSWEII.
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y Gillcspie,
cy Gillespie
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22.6 Grant our injr-rnction;
22.1 Any other relief that the courl deems right and proper r-rnder all the lacts and law in this case,
VEzuFICATION
I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is true
correct, to the best of my knowledge and understanding.
Date: June 1,207I
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
22.3 Attomey/cor-tnsel fees of ten thousand dollars plus costs of the case;
22.4 Grant a leave to amend our complaint;
22.5 That the couft have the clerk release to us the sheriff reporls giver-r to
the beginning of this case, so we will know what our witness Iist will
discovery to the other side. Withholding the sheriff repofts has blind
hands in being able to have discovery;
correct, to the best of my knowledge and understandiut.
,_*
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Date: June 1, 2011
the courf, by the sheri
be and interrogatories
folded us and tied orrr'
intiff herein
l0
Melody Gillespie, Plaintiff herein
ji
oru't
PLAINTIFFS AND CROSS- DEFENDANT'S ANSWER
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I the undersigned hereby declare under penalty of perjury under the laws of
the state of California that I served the here attached document described as:
MOTION TO VACATE/SET ASIDE DEFAULT JUDGMENT WITH ATTACHED
PROPOSED ANSWER
On the day of 512512012 on the parties named below at the addresses to
follolv:
DEFENDANTS NICKLAS HOFFMAN ET AL,
C/O: ATTORNEY OF RECORD ROBERT J. FLETCHER
P.O. BOX 824, Tulare, Ca. 93274.
Said Service was by first Class U.S. Mail with the document enclosed in a
sealed Envelope with the postage therefor fully paid by me. I am not a party
to the within Cause of Action. I am over the age of Eighteen Years . My
business address is:
[934
W. Henderson, Porterville Californiar93257] P.M.B.
#z 132. Executed by my hand on this day, the 25 day of May, 2012, in the
Republic of California, Tulare County,
r,-
Alari"Dirvid.