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Jonathan Matthews, Esq.
1 Attorney At Law
2 Licensed to Practice - California (232157)
13885 Doolittle Drive, #105
3 San Leandro, CA 94577
Phone: (415) 283-6320
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5 SUPERIOR COURT OF THE STATE OF CALIFORNIA
6 FOR THE COUNTY OF SAN MATEO
7 UNLIMITED CIVIL
8 ISAAC GUTIERREZ,
) Case No: 19-CIV-05694
9 Plaintiff
) NOTICE OF MOTION AND MOTION TO
10 v. RECONSIDER ORDER AFTER TRIAL
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11 PURIFICACION INFANTE, Date:
) Time:
12 Defendant Dept:
)
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TO THE COURT, INTERESTED PARTIES, AND ATTORNEYS OF RECORD:
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Please take notice that on ___________ at _________., or as soon as possible, Purificacion Infante,
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through her attorney, Jonathan Matthews, will move the Court pursuant to California Code of Civil
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Procedure §1008 to request reconsideration of The Court's order after bench trial in favor of the
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Plaintiff.
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This motion is based on this notice, the pleadings, records, and files in this action, the
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attached memorandum of points and authorities, the attached affidavit, and oral argument to be
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presented at the hearing.
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Dated: August 4, 2022 _/s/ Jonathan Matthews____________
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25 Jonathan Matthews
26 Attorney for Purificacion Infante
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NOTICE OF MOTION AND MOTION TO RECONSIDER ORDER AFTER TRIAL
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. Introduction
3 This case arises from allegations made by the Plaintiff that the Defendant has not paid back
4 a $15,000 loan and an $80,000 promissory note secured by a deed of trust on real property located
5 in Fairfield, California. The Defendant does not deny that the she has not paid back the $15,000
6 loan but maintained that she did not owe the $80,000 on the promissory note because it was
7 contingent upon her obtaining financing for the Fairfield property. The Plaintiff offered the
8 promissory note and Deed of Trust as proof of the Defendant's obligation while the Defendant put
9 into evidence an agreement that contained language about the promissory note becoming due only
10 on the aforementioned contingency.
11 The Court decided the trial in favor of the Plaintiff. The evidence offered by the Defendant
12 was not admitted by the Court under the parol evidence rule for the purpose of cancelling the
13 Defendant's obligation under the promissory note. The trial was held on June 13, 2022.
14 II. The Court has the Power and Authority to Reconsider the Order
15 Code of Civil Procedure § 1008 is the mechanism in place for a party to request
16 reconsideration of an order. Section 1008(a) reads:
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When an application for an order is made to a judge, or to a court, and refused in
18 whole or in part, or granted, or granted conditionally, or on terms, any party
19 affected by the order may, within 10 days after service upon the party of written
notice of entry of the order and based upon new or different facts,
20 circumstances, or law, make application to the same judge or court that made the
order, to reconsider the matter and modify, amend, or revoke the prior order, The
21 party making the application shall state by affidavit what application was made
before, when and to what judge, what order or decisions were made, and what new
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or different facts, circumstances, or law are claimed to be shown. [Bold italics
23 added]
24 The affidavit of Michael Crowell reveals new facts that should compel the Court by law to
25 revoke its prior order and hold a new trial. The Court's order centered around the validity of the Deed of
26 Trust and Promissory Note. Both documents were found to be valid even in the face of a challenge to
27 their authority from the repayment agreement offered by the Defendant. The parol evidence rule
28 precluded its use for the purpose determining the meaning of thw Deed of Trust and Note.
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NOTICE OF MOTION AND MOTION TO RECONSIDER ORDER AFTER TRIAL
1 However, the Deed of Trust and the Note were signed under duress through the pressure applied
2 by the actions of the Plaintiff attested to in the affidavit. Simply put, the affidavit states that the Plaintiff
3 pressucred the Defendant to sign the documents he relied on to win the trial. If a contract is signed
4 under duress, then the parties lacked the proper intent to agree and the contract can be stricken. The
5 Defendant though her testimony, especially including the evidence of the conditional agreement about
6 the Deed of Trust, would have been enough to satisfy the parol evidence rule. Therefore there was no
7 reason to bring in Michael Crowell as a witness. Nonetheless, his affidavit provides the new facts
8 necessary to meet the requirements of C.C.P. § 1008.
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10 CONCLUSION
11 Based on the aforementioned material, Petitioner Purificacion Infante humbly requests the
12 Court reconsider its order in favor of the Plaintiff and order a new trial.
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14 DATED: 8/4/2022 /s/ Jonathan Matthews_____________
15 Jonathan Matthews
16 Attorney for Purificacion Infante
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NOTICE OF MOTION AND MOTION TO RECONSIDER ORDER AFTER TRIAL
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Jonathan Matthews, Esq. 1 Attorney At Law 2 Licensed to Practice - California (232157) 13885 Doolittle Drive, #105 3 San Leandro, CA 94577 Phone: (415) 283-6320 4 5 SUPERIOR COURT OF THE STATE OF CALIFORNIA 6 FOR THE COUNTY OF SAN MATEO 7 UNLIMITED CIVIL 8 ISAAC GUTIERREZ, ) Case No: 19-CIV-05694 9 Plaintiff ) NOTICE OF MOTION AND MOTION TO 10 v. RECONSIDER ORDER AFTER TRIAL ) 11 PURIFICACION INFANTE, Date: ) Time: 12 Defendant Dept: ) 13 14 15 TO THE COURT, INTERESTED PARTIES, AND ATTORNEYS OF RECORD: 16 Please take notice that on ___________ at _________., or as soon as possible, Purificacion Infante, 17 through her attorney, Jonathan Matthews, will move the Court pursuant to California Code of Civil 18 Procedure §1008 to request reconsideration of The Court's order after bench trial in favor of the 19 Plaintiff. 20 This motion is based on this notice, the pleadings, records, and files in this action, the 21 attached memorandum of points and authorities, the attached affidavit, and oral argument to be 22 presented at the hearing. 23 Dated: August 4, 2022 _/s/ Jonathan Matthews____________ 24 25 Jonathan Matthews 26 Attorney for Purificacion Infante 27 28 -1- NOTICE OF MOTION AND MOTION TO RECONSIDER ORDER AFTER TRIAL 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. Introduction 3 This case arises from allegations made by the Plaintiff that the Defendant has not paid back 4 a $15,000 loan and an $80,000 promissory note secured by a deed of trust on real property located 5 in Fairfield, California. The Defendant does not deny that the she has not paid back the $15,000 6 loan but maintained that she did not owe the $80,000 on the promissory note because it was 7 contingent upon her obtaining financing for the Fairfield property. The Plaintiff offered the 8 promissory note and Deed of Trust as proof of the Defendant's obligation while the Defendant put 9 into evidence an agreement that contained language about the promissory note becoming due only 10 on the aforementioned contingency. 11 The Court decided the trial in favor of the Plaintiff. The evidence offered by the Defendant 12 was not admitted by the Court under the parol evidence rule for the purpose of cancelling the 13 Defendant's obligation under the promissory note. The trial was held on June 13, 2022. 14 II. The Court has the Power and Authority to Reconsider the Order 15 Code of Civil Procedure § 1008 is the mechanism in place for a party to request 16 reconsideration of an order. Section 1008(a) reads: 17 When an application for an order is made to a judge, or to a court, and refused in 18 whole or in part, or granted, or granted conditionally, or on terms, any party 19 affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, 20 circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order, The 21 party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new 22 or different facts, circumstances, or law are claimed to be shown. [Bold italics 23 added] 24 The affidavit of Michael Crowell reveals new facts that should compel the Court by law to 25 revoke its prior order and hold a new trial. The Court's order centered around the validity of the Deed of 26 Trust and Promissory Note. Both documents were found to be valid even in the face of a challenge to 27 their authority from the repayment agreement offered by the Defendant. The parol evidence rule 28 precluded its use for the purpose determining the meaning of thw Deed of Trust and Note. -2- NOTICE OF MOTION AND MOTION TO RECONSIDER ORDER AFTER TRIAL 1 However, the Deed of Trust and the Note were signed under duress through the pressure applied 2 by the actions of the Plaintiff attested to in the affidavit. Simply put, the affidavit states that the Plaintiff 3 pressucred the Defendant to sign the documents he relied on to win the trial. If a contract is signed 4 under duress, then the parties lacked the proper intent to agree and the contract can be stricken. The 5 Defendant though her testimony, especially including the evidence of the conditional agreement about 6 the Deed of Trust, would have been enough to satisfy the parol evidence rule. Therefore there was no 7 reason to bring in Michael Crowell as a witness. Nonetheless, his affidavit provides the new facts 8 necessary to meet the requirements of C.C.P. § 1008. 9 10 CONCLUSION 11 Based on the aforementioned material, Petitioner Purificacion Infante humbly requests the 12 Court reconsider its order in favor of the Plaintiff and order a new trial. 13 14 DATED: 8/4/2022 /s/ Jonathan Matthews_____________ 15 Jonathan Matthews 16 Attorney for Purificacion Infante 17 18 19 20 21 22 23 24 25 26 27 28 -3- NOTICE OF MOTION AND MOTION TO RECONSIDER ORDER AFTER TRIAL