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1 TAMARA S. GALANTER (SEN 142532)
SARA A. CLARK (SEN 273600)
2 AARON M. STANTON (SEN 312530) 12/22/2021
SHUTE, MIHALY & WEINBERGER LLP
3 396 Hayes Street
San Francisco, California 94102
4 Telephone: (415) 552-7272
Facsimile: (415) 552-5816
5 Galanter@smwlaw.com
Clark@smwlaw.com
6 Stanton@smwlaw.com
7 Attorneys for Plaintiff PENINSULA OPEN
SPACE TRUST
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349
12 Plaintiff, JOINT AMENDED CASE
MANAGEMENT AND TRIAL
13 V. SETTING CONFERENCE
STATEMENT OF PLAINTIFF
14 REDWOOD TRUST DEED PENINSULA OPEN SPACE TRUST
SERVICES, INC., a California AND DEFENDANT ERNEST
15 Corporation; ERNEST J. MCNABB, MCNABB
individually and as Trustee of the Ernest
16 J. McNabb Revocable Living Trust Dept 21
Dated 11/19/1990; LOUIS J ARATA, Judge: Hon. Robert D. Foiles
17 individually; LAURA ARATA,
individually, and as sole successor Action Filed: June 3, 2020
18 trustee of the John and Grace Arata 2004
Trust Executed August 11, 2004;
19 MARIE JOANNE ARATA,
individually, and as the Representative
20 of the Estate of Gary J. Arata, Deceased;
and DOES 1-20.
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Defendants.
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Joint Amended Case Management and Trial Setting Conference Statement of POST and Defendant Ernest McNabb
Case No. 20-CIV-02349
1 Plaintiff Peninsula Open Space Trust ("POST") and Defendant Ernest J . McNabb
2 submit this Joint Amended Case Management and Trial Conference Setting Statement
3 pursuant to the Court's November 11, 2021 Notice of Case Management and Trial Setting
4 Conference, which requested a written statement in prose. This statement supersedes the
5 statement filed on December 21,. 2021, which inadvertently used the judicial council form.
6 SUMMARY OF THE CASE
7 The Arata Ranch ("property") is jointly owned by the John and Grace Arata 2004
8 Trust ("Arata 2004 Trust") and by the (non-party) Clarence and Lillian Arata 2002 Trust.
9 The then-trustees of the Arata 2004 Trust, Gary Arata, now deceased, and Defendant Louis
10 Arata, obtained loans secured by deeds of trust for the Arata 2004 Trust's interest in the
11 property. Defendants Louis Arata and Laura Arata, the latter as sole successor trustee to
12 the 2004 Arata Trust, ultimately defaulted on the loans. Defendant Ernest McNabb, as
13 beneficiary on the deeds of trust, and Redwood Trust Deed Services, Inc., as trustee,
14 recorded Notices of Default and a Notice of Trustee's Sale indicating that Mr. McNabb
15 intended to hold a foreclosure sale of the portion of the property owned by the Arata 2004
16 Trust.
17 Plaintiff Peninsula Open Space Trust ("POST") holds a Conservation Easement over
18 the property that it contends, among other things, prohibits the sale of the property except
19 as a whole. POST filed this action on June 3, 2020, to prevent the foreclosure sale of a
20 portion of the Arata Ranch, which POST contends would violate the Conservation
21 Easement, and to seek other injunctive and declaratory relief. On November 5, 2020, the
22 Court granted POST's motion for preliminary injunction to prevent the foreclosure sale
23 pending judgment in this action.
24 All Defendants in this action have been served; Defendant Louis Arata has not
25 appeared and has had a default entered against him.
26 In April 2021, Laura Arata was replaced as successor trustee of the Arata 2004 Trust
27 by David Duncan. On May 5, 2021, the Court ordered the parties to ADR. Prior to the
28 scheduled mediation, Mr. Duncan terminated counsel for the Arata 2004 Trust and has
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Joint Amended Case Management and Trial Setting Conference Statem,ent of POST and Defendant Ernest McNabb
Case No. 20-CIV-02349
1 been representing the Arata 2004 Trust himself in this litigation ever since. Due to Mr.
2 Duncan's inability ·t o participate in the mediation, and pursuant to POST's request, the
3 Court excused the parties from the ADR requirement in an order filed November 10, 2021.
4 Although Mr. Duncan filed a notice purporting to substitute himself as a defendant
5 in this action on April 12, 2021, POST intends to seek the parties' agreement to file a
6 stipulated motion to substitute Mr. Duncan, in his capacity as successor trustee, as a
7 defendant in this action in place of Laura Arata, in her capacity as successor trustee.
8 The property is also subject to a partition action pending before this Court as Gary J
9 Arata et al. v. Lillian L. Arata, Case No. CN531627. Plaintiff understands that the referee
10 appointed to sell the property, the Hon. Joseph Baifore (retired), has entered into a
11 purchase and sale agreement for the property as a whole. Mr. Duncan filed a motion (in the
12 partition action) to set aside the sale that is currently scheduled to be heard January 18,
13 2021.
14 If the sale of the property as a whole is completed and the loans paid off, the present
15 action-with the exception for POST's claim for attorneys' fees-could become moot.
16 CAUSES OF ACTION AND DEFENSES
17 The complaint in this action alleges causes of action for (1) violation of POST's
18 Conservation Easement pursuant to Civil Code section 815. 7, and (2) declaratory relief.
19 Relief sought by Plaintiff includes declaratory relief; preliminary and permanent injunctive
20 relief; damages; costs of suit; and attorneys' fees pursuant to the Conservation Easement,
21 Civil Code section 815.7(d), and Code of Civil Procedure sections 1021.5 and
22 1033.S(a)(l0).
23 The answer of Mr. McNabb generally and specifically denies the allegations of the
24 Complaint. The answer alleges five affirmative defenses, including failure to allege
25 sufficient facts to state a cause of action, unreasonable restraint on alienation, unclean
26 hands, estoppel, and waiver.
27 ALTERNATIVE DISPUTE RESOLUTION
28 Plaintiff does not intend to pursue ADR at this time.
3
Joint Amended Case Management and Trial Setting Conference Statement of POST and Defendant Ernest McNabb
Case No. 20-CIV-02349
I ANTICIPATED MOTION PRACTICE
2 If the case is not otherwise resolved, Plaintiff anticipates filing a motion for summary
3 judgment to resolve all issues raised in the complaint. If the sale of the property is
4 consummated, Plaintiff anticipates filing a motion for attorneys' fees based on the
5 conservation easement, Civil Code section 815.7(d), and Code of Civil Procedure section
6 1021.5.
7 STATUS OF DISCOVERY
8 POST anticipates completing written discovery, including Requests for Admission,
9 Interrogatories, and Requests for Production, on Defendants by July 10, 2022, if the sale of
10 the property is not consummated.
11 TRIAL INFORMATION
12 No trial date has been set. The parties have requested a non-jury trial and estimate
13 that, if trial is necessary, trial will take one day. Counsel for POST is unavailable for trial
14 from March 28 through April 30 due to pre-booked travel.
15 POST will be represented at trial by the counsel listed in the caption above. Mr.
16 McNabb will be represented at trial by the following counsel:
17 Andrew Wiegel
Ryan Patrick
18 Wiegel Law Group, plc
414 Gough Street
19 San Francisco, CA 94102
(415) 552-8230
20 andrew@wiegellawgroup.com
ryan@w1egellawgroup.com
21
RELATED C;\SES
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Peninsula Open Space Trust v. R edwood Trust Deed Services
23 San Mateo County Superior Court
Case Number 20-CIV-02304
24 Status: Dismissed without prejudice, 11/23/ 2020
25 Gary J. Arata et al. v. Lillian L. Arata
San Mateo County Superior Court
26 Case Number CIV531627
27
28
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Joint Amended Case Management and Trial Setting Conference Statement of POST and Defendant Ernest McNabb
Case No. 20-CIV-02349
1 Status: Pending
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4 DATED: December 22, 2021 SHUTE, MIHALY & WEINBERGER LLP
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By:
7 TAMARAS.GALANTER
8 SARA A. CLARK
AARON M. STANTON
9
10 Attorneys for Plaintiff PENINSULA OPEN
SPACE TRUST
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12 DATED: December ~ 021 WIEGEL LAW GROUP, PLC
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17 Attorneys EST J.
MCNABB
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1452185.1
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Joint Amended Case Management and Trial Setting Conference Statement of POST and Defendant Ernest McNabb
Case No. 20-ClV-02349
1 PROOF OF SERVICE
2 PENINSULA OPEN SPACE TRUST v. ERNEST J. MCNABB et al.
San Mateo County Superior Court
3 Case No. 20-CIV-02349
4 At the time of service, I was over 18 years of age and not a party to this action. I
am employed in the County of San Francisco, State of California. My business address is
5 396 Hayes Street, San Francisco, California 94102.
6 On December 22, 2021, I served true copies of the following document(s) described
as:
7
JOINT AMENDED CASE MANAGEMENT AND TRIAL SETTING CONFERENCE
8 STATEMENT OF PLAINTIFF PENINSULA OPEN SPACE TRUST AND
DEFENDANT ERNEST MCNABB
9
on the parties in this action as follows:
10
SEE ATTACHED SERVICE LIST
11
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to
12 the persons at the addresses listed in the Service List and placed the envelope for
collection and mailing, following our ordinary business practices. I am readily familiar
13 with Shute, Mihaly & Weinberger LLP's practice for collecting and processing
correspondence for mailing. On the same day that the correspondence is placed for
14 collection and mailing, it is deposited in the ordinary course of business with the United
States Postal Service, in a sealed envelope with postage fully prepaid.
15
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
16 document(s) to be sent from e-mail address Larkin@smwlaw.com to the persons at the e-
mail addresses listed in the Service List. I did not receive, within a reasonable time after
17 the transmission, any electronic message or other indication that the transmission was
unsuccessful.
18
I declare under penalty of perjury under the laws of the State of California that the
19 foregoing is true and correct.
20 Executed on December 22, 2021, at San Francisco, California.
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22
Patricia Larkin
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Joint Amended Case Management And Trial Setting Conference Statement Of Post And Defendant Ernest McNabb
Case No. 20-CIV-02349
1 SERVICE LIST
2 PENINSULA OPEN SPACE TRUST v. ERNEST J. MCNABB et al.
San Mateo County Superior Court
3 Case No. 20-CIV-02349
4 Benjamin R. Levinson Andrew Wiegel
Law Office of Benjamin R. Levinson Ryan Patrick
5 46 N. 2nd Street Andrew Wiegel Law Group
Campbell, CA 95008 414 Gough Street
6 (408) 366-2999 San Francisco, CA 94102
ben@benlevinsonlaw.com (415) 552-8230
7 andrew@wiegellawgroup.com
Attorneys for Redwood Trust Deed ryan@wiegellawgroup.com
8 Services, Inc.
Attorneys for Ernest J. McNabb
9
David R. Duncan Louis J. Arata
10 4920 E. La Palma Avenue 53 E. Cremetti Lane
Anaheim, CA 92807 Yerington, NV 89447
11 (714) 970-9800 (209) 617-0446
david@bigtoprentals.com louiejarata@gmail.com
12
Successor Trustee of the John and Pro Per
13 Grace Arata 2004 Trust, in Pro Per
14 Eric Hanson Laura Arata
Bishop Law Office Dept. of History
15 213 West California Street 101 Social Sciences and Humanities
P.O. Box 337 Oklahoma State University
16 Garfield, WA 99130 Stillwater, OK 74078
(509) 635-1551 larata@okstate.edu
17 ehanson@palouse.net
Attorneys for Marie Arata, Pro Per
18 Individually and as Representative of
the Estate of Gary Arata, Deceased
19
Christopher N. Andal
20 Andal Law Group
1748 W. Katella Avenue, Suite 200
21 Orange, CA 92867
(714) 770-8250
22 chris@andallaw.net
23 Attorneys for Successor Trustee, David
R. Duncan, John & Grace 2004 Arata
24 Trust, Specially Appearing in San
Mateo County Superior Court Case No.
25 CIV531627
26 1452293.1
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Joint Amended Case Management And Trial Setting Conference Statement Of Post And Defendant Ernest McNabb
Case No. 20-CIV-02349
Preview
1 TAMARA S. GALANTER (SEN 142532) SARA A. CLARK (SEN 273600) 2 AARON M. STANTON (SEN 312530) 12/22/2021 SHUTE, MIHALY & WEINBERGER LLP 3 396 Hayes Street San Francisco, California 94102 4 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 5 Galanter@smwlaw.com Clark@smwlaw.com 6 Stanton@smwlaw.com 7 Attorneys for Plaintiff PENINSULA OPEN SPACE TRUST 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349 12 Plaintiff, JOINT AMENDED CASE MANAGEMENT AND TRIAL 13 V. SETTING CONFERENCE STATEMENT OF PLAINTIFF 14 REDWOOD TRUST DEED PENINSULA OPEN SPACE TRUST SERVICES, INC., a California AND DEFENDANT ERNEST 15 Corporation; ERNEST J. MCNABB, MCNABB individually and as Trustee of the Ernest 16 J. McNabb Revocable Living Trust Dept 21 Dated 11/19/1990; LOUIS J ARATA, Judge: Hon. Robert D. Foiles 17 individually; LAURA ARATA, individually, and as sole successor Action Filed: June 3, 2020 18 trustee of the John and Grace Arata 2004 Trust Executed August 11, 2004; 19 MARIE JOANNE ARATA, individually, and as the Representative 20 of the Estate of Gary J. Arata, Deceased; and DOES 1-20. 21 Defendants. 22 23 24 25 26 27 28 Joint Amended Case Management and Trial Setting Conference Statement of POST and Defendant Ernest McNabb Case No. 20-CIV-02349 1 Plaintiff Peninsula Open Space Trust ("POST") and Defendant Ernest J . McNabb 2 submit this Joint Amended Case Management and Trial Conference Setting Statement 3 pursuant to the Court's November 11, 2021 Notice of Case Management and Trial Setting 4 Conference, which requested a written statement in prose. This statement supersedes the 5 statement filed on December 21,. 2021, which inadvertently used the judicial council form. 6 SUMMARY OF THE CASE 7 The Arata Ranch ("property") is jointly owned by the John and Grace Arata 2004 8 Trust ("Arata 2004 Trust") and by the (non-party) Clarence and Lillian Arata 2002 Trust. 9 The then-trustees of the Arata 2004 Trust, Gary Arata, now deceased, and Defendant Louis 10 Arata, obtained loans secured by deeds of trust for the Arata 2004 Trust's interest in the 11 property. Defendants Louis Arata and Laura Arata, the latter as sole successor trustee to 12 the 2004 Arata Trust, ultimately defaulted on the loans. Defendant Ernest McNabb, as 13 beneficiary on the deeds of trust, and Redwood Trust Deed Services, Inc., as trustee, 14 recorded Notices of Default and a Notice of Trustee's Sale indicating that Mr. McNabb 15 intended to hold a foreclosure sale of the portion of the property owned by the Arata 2004 16 Trust. 17 Plaintiff Peninsula Open Space Trust ("POST") holds a Conservation Easement over 18 the property that it contends, among other things, prohibits the sale of the property except 19 as a whole. POST filed this action on June 3, 2020, to prevent the foreclosure sale of a 20 portion of the Arata Ranch, which POST contends would violate the Conservation 21 Easement, and to seek other injunctive and declaratory relief. On November 5, 2020, the 22 Court granted POST's motion for preliminary injunction to prevent the foreclosure sale 23 pending judgment in this action. 24 All Defendants in this action have been served; Defendant Louis Arata has not 25 appeared and has had a default entered against him. 26 In April 2021, Laura Arata was replaced as successor trustee of the Arata 2004 Trust 27 by David Duncan. On May 5, 2021, the Court ordered the parties to ADR. Prior to the 28 scheduled mediation, Mr. Duncan terminated counsel for the Arata 2004 Trust and has 2 Joint Amended Case Management and Trial Setting Conference Statem,ent of POST and Defendant Ernest McNabb Case No. 20-CIV-02349 1 been representing the Arata 2004 Trust himself in this litigation ever since. Due to Mr. 2 Duncan's inability ·t o participate in the mediation, and pursuant to POST's request, the 3 Court excused the parties from the ADR requirement in an order filed November 10, 2021. 4 Although Mr. Duncan filed a notice purporting to substitute himself as a defendant 5 in this action on April 12, 2021, POST intends to seek the parties' agreement to file a 6 stipulated motion to substitute Mr. Duncan, in his capacity as successor trustee, as a 7 defendant in this action in place of Laura Arata, in her capacity as successor trustee. 8 The property is also subject to a partition action pending before this Court as Gary J 9 Arata et al. v. Lillian L. Arata, Case No. CN531627. Plaintiff understands that the referee 10 appointed to sell the property, the Hon. Joseph Baifore (retired), has entered into a 11 purchase and sale agreement for the property as a whole. Mr. Duncan filed a motion (in the 12 partition action) to set aside the sale that is currently scheduled to be heard January 18, 13 2021. 14 If the sale of the property as a whole is completed and the loans paid off, the present 15 action-with the exception for POST's claim for attorneys' fees-could become moot. 16 CAUSES OF ACTION AND DEFENSES 17 The complaint in this action alleges causes of action for (1) violation of POST's 18 Conservation Easement pursuant to Civil Code section 815. 7, and (2) declaratory relief. 19 Relief sought by Plaintiff includes declaratory relief; preliminary and permanent injunctive 20 relief; damages; costs of suit; and attorneys' fees pursuant to the Conservation Easement, 21 Civil Code section 815.7(d), and Code of Civil Procedure sections 1021.5 and 22 1033.S(a)(l0). 23 The answer of Mr. McNabb generally and specifically denies the allegations of the 24 Complaint. The answer alleges five affirmative defenses, including failure to allege 25 sufficient facts to state a cause of action, unreasonable restraint on alienation, unclean 26 hands, estoppel, and waiver. 27 ALTERNATIVE DISPUTE RESOLUTION 28 Plaintiff does not intend to pursue ADR at this time. 3 Joint Amended Case Management and Trial Setting Conference Statement of POST and Defendant Ernest McNabb Case No. 20-CIV-02349 I ANTICIPATED MOTION PRACTICE 2 If the case is not otherwise resolved, Plaintiff anticipates filing a motion for summary 3 judgment to resolve all issues raised in the complaint. If the sale of the property is 4 consummated, Plaintiff anticipates filing a motion for attorneys' fees based on the 5 conservation easement, Civil Code section 815.7(d), and Code of Civil Procedure section 6 1021.5. 7 STATUS OF DISCOVERY 8 POST anticipates completing written discovery, including Requests for Admission, 9 Interrogatories, and Requests for Production, on Defendants by July 10, 2022, if the sale of 10 the property is not consummated. 11 TRIAL INFORMATION 12 No trial date has been set. The parties have requested a non-jury trial and estimate 13 that, if trial is necessary, trial will take one day. Counsel for POST is unavailable for trial 14 from March 28 through April 30 due to pre-booked travel. 15 POST will be represented at trial by the counsel listed in the caption above. Mr. 16 McNabb will be represented at trial by the following counsel: 17 Andrew Wiegel Ryan Patrick 18 Wiegel Law Group, plc 414 Gough Street 19 San Francisco, CA 94102 (415) 552-8230 20 andrew@wiegellawgroup.com ryan@w1egellawgroup.com 21 RELATED C;\SES 22 Peninsula Open Space Trust v. R edwood Trust Deed Services 23 San Mateo County Superior Court Case Number 20-CIV-02304 24 Status: Dismissed without prejudice, 11/23/ 2020 25 Gary J. Arata et al. v. Lillian L. Arata San Mateo County Superior Court 26 Case Number CIV531627 27 28 4 Joint Amended Case Management and Trial Setting Conference Statement of POST and Defendant Ernest McNabb Case No. 20-CIV-02349 1 Status: Pending 2 3 4 DATED: December 22, 2021 SHUTE, MIHALY & WEINBERGER LLP 5 6 By: 7 TAMARAS.GALANTER 8 SARA A. CLARK AARON M. STANTON 9 10 Attorneys for Plaintiff PENINSULA OPEN SPACE TRUST 11 12 DATED: December ~ 021 WIEGEL LAW GROUP, PLC 13 14 15 16 17 Attorneys EST J. MCNABB 18 19 1452185.1 20 21 22 23 24 25 26 27 28 5 Joint Amended Case Management and Trial Setting Conference Statement of POST and Defendant Ernest McNabb Case No. 20-ClV-02349 1 PROOF OF SERVICE 2 PENINSULA OPEN SPACE TRUST v. ERNEST J. MCNABB et al. San Mateo County Superior Court 3 Case No. 20-CIV-02349 4 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of San Francisco, State of California. My business address is 5 396 Hayes Street, San Francisco, California 94102. 6 On December 22, 2021, I served true copies of the following document(s) described as: 7 JOINT AMENDED CASE MANAGEMENT AND TRIAL SETTING CONFERENCE 8 STATEMENT OF PLAINTIFF PENINSULA OPEN SPACE TRUST AND DEFENDANT ERNEST MCNABB 9 on the parties in this action as follows: 10 SEE ATTACHED SERVICE LIST 11 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to 12 the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar 13 with Shute, Mihaly & Weinberger LLP's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for 14 collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 15 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 16 document(s) to be sent from e-mail address Larkin@smwlaw.com to the persons at the e- mail addresses listed in the Service List. I did not receive, within a reasonable time after 17 the transmission, any electronic message or other indication that the transmission was unsuccessful. 18 I declare under penalty of perjury under the laws of the State of California that the 19 foregoing is true and correct. 20 Executed on December 22, 2021, at San Francisco, California. 21 22 Patricia Larkin 23 24 25 26 27 28 Joint Amended Case Management And Trial Setting Conference Statement Of Post And Defendant Ernest McNabb Case No. 20-CIV-02349 1 SERVICE LIST 2 PENINSULA OPEN SPACE TRUST v. ERNEST J. MCNABB et al. San Mateo County Superior Court 3 Case No. 20-CIV-02349 4 Benjamin R. Levinson Andrew Wiegel Law Office of Benjamin R. Levinson Ryan Patrick 5 46 N. 2nd Street Andrew Wiegel Law Group Campbell, CA 95008 414 Gough Street 6 (408) 366-2999 San Francisco, CA 94102 ben@benlevinsonlaw.com (415) 552-8230 7 andrew@wiegellawgroup.com Attorneys for Redwood Trust Deed ryan@wiegellawgroup.com 8 Services, Inc. Attorneys for Ernest J. McNabb 9 David R. Duncan Louis J. Arata 10 4920 E. La Palma Avenue 53 E. Cremetti Lane Anaheim, CA 92807 Yerington, NV 89447 11 (714) 970-9800 (209) 617-0446 david@bigtoprentals.com louiejarata@gmail.com 12 Successor Trustee of the John and Pro Per 13 Grace Arata 2004 Trust, in Pro Per 14 Eric Hanson Laura Arata Bishop Law Office Dept. of History 15 213 West California Street 101 Social Sciences and Humanities P.O. Box 337 Oklahoma State University 16 Garfield, WA 99130 Stillwater, OK 74078 (509) 635-1551 larata@okstate.edu 17 ehanson@palouse.net Attorneys for Marie Arata, Pro Per 18 Individually and as Representative of the Estate of Gary Arata, Deceased 19 Christopher N. Andal 20 Andal Law Group 1748 W. Katella Avenue, Suite 200 21 Orange, CA 92867 (714) 770-8250 22 chris@andallaw.net 23 Attorneys for Successor Trustee, David R. Duncan, John & Grace 2004 Arata 24 Trust, Specially Appearing in San Mateo County Superior Court Case No. 25 CIV531627 26 1452293.1 27 28 Joint Amended Case Management And Trial Setting Conference Statement Of Post And Defendant Ernest McNabb Case No. 20-CIV-02349