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DE CLUE LAW GROUP, PC
2372 SE Bristol Street, 24 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
eo em ND OF WN RB
YN NR NY NY NNN DN BP BP BP PB Be Be Be BP
SN AGAR OH F SEO eReN DHF OH SF TS
OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST
ELECTRONICALLY
Joseph L. De Clue, Esq., SBN 163954 eee ee
DE CLUE LAW GROUP, PC County of San Francisco
2372 SE Bristol Street, 2"! Floor 03/21/2016
Newport Beach, CA 92660 Clerk of the Court
Tel: (949) 596-7145 See reso
Deputy Clerk
Attorneys for Plaintiff, MARTIN ENG
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO —- RANCHO CUCAMONGA
MARTIN ENG
Plaintiff, CASE NO.: CGC-15-546377
; OPPOSITION TO REQUEST FOR
vs. JUDICIAL NOTICE IN SUPPORT OF
JP MORGAN CHASE BANK, N.A; DEFENDANTS’ DEMURRER TO FIRST
QUALITY LOAN SERVICES; LENDER
PROCESSING SERVICES, INC., DOES 1 - eee
1000 inclusive :
Date: April 4, 2016
Defendants. Time: 11:00 a.m.
Dept.: 302
ii}
Plaintiff, MARTIN ENG, by and through his counsel, hereby opposes Defendants’ Request
for Judicial Notice in support of Defendants’ Demurrer to First Amended Complaint on the
grounds all of the following documents presented contain material facts in dispute. These|
documents are inappropriate subjects for notice under Evidence Code §§ 452 and 453.
As noted by Defendants, Evid. Code § 452(h) judicial notice may only be taken “[fJacts an
propositions that are not reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of indisputable accuracy”. As such, Plaintiff requests that the,
Court only take judicial notice of the fact that the documents were recorded and no other
statements in the documents. Specifically,
--
AMENDED COMPLAINTDE CLUE LAW GROUP, PC
2372 SE Bristol Street, 24 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
Exhibit A— Deed of Trust dated June 28, 2005
Under §452(h) the Deed of Trust does not contain facts and propositions that are not
reasonably subject to dispute by accurate determination through resort to sources of reasonably
indisputable accuracy. As a matter of fact, the facts alleged are the subject of dispute in the
Verified First Amended Complaint as set forth therein. The request should be denied.
Exhibit B — Purchase and Assumption Agreement Between Federal Deposit Insurance
Corporation and JPMorgan Chase Bank dated September 25, 2008
Under §452(h) the Purchase and Assumption Agreement is a private contract that does not
contain facts and propositions that are not reasonably subject to dispute by accurate
determination through resort to sources of reasonably indisputable accuracy. As a matter of
fact, the facts alleged are the subject of dispute in the Verified First Amended Complaint as set
forth therein, and the First District Court of Appeal has expressly held that this specific
document is not judicially noticeable. Jolley v. Chase Home Finance, LLC (2013) 213
Cal.App.4th 872, 887. The request should be denied.
Exhibit C — Substitution of Trustee recorded March 30, 2009.
Under §452(h) the Substitution of Trustee does not contain facts and propositions that are
not reasonably subject to dispute by accurate determination through resort to sources of
reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of
dispute in the Verified First Amended Complaint as set forth therein. See also Herrera v.
Deutsche Bank Nat. Trust Co. (2011) 196 Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as
modified (May 31, 2011). The request should be denied.
Exhibit D — Notices of Default recorded on February 13, 2009.
Under §452(h) the Notice of Default does not contain facts and propositions that are not
reasonably subject to dispute by accurate determination through resort to sources of reasonably
indisputable accuracy. As a matter of fact, the facts alleged are the subject of dispute in the
Verified First Amended Complaint as set forth therein such as the fact JPMorgan Chase Bank
was not owed the sums alleged. See also Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196
-2-
OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST
AMENDED COMPLAINTDE CLUE LAW GROUP, PC
2372 SE Bristol Street, 24 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
eo em ND OF WN RB
YN NR NY NY NNN DN BP BP BP PB Be Be Be BP
SN AGAR OH F SEO eReN DHF OH SF TS
Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as modified (May 31, 2011). The request should be
denied.
Exhibits E, F, G, and H — Notices of Trustees Sale recorded May 18, 2009, September
2, 2009, February 1, 2010 and September 15, 2010 respectively.
Under §452(h) each of the Notice of Trustee Sale do not contain facts and propositions that
are not reasonably subject to dispute by accurate determination through resort to sources of
reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of
dispute in the Verified First Amended Complaint as set forth therein such as the fact JPMorgan
Chase Bank was not owed the sums alleged and that Quality Loan Service Corporation was not
the proper trustee. See also Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal. App. 4th
1366, 127 Cal. Rptr. 3d 362, as modified (May 31, 2011). The request should be denied.
Exhibits |— Trustee’s Deed Upon Sale recorded June 6, 2011.
Under §452(h) the Trustee’s Deed Upon Sale does not contain facts and propositions that
are not reasonably subject to dispute by accurate determination through resort to sources of
reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of
dispute in the Verified First Amended Complaint as set forth therein such as the fact JPMorgan
Chase Bank was not owed the sums alleged, was not the beneficiary and that Quality Loan
Service Corporation was not the proper trustee. See also Herrera v. Deutsche Bank Nat. Trust
Co. (2011) 196 Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as modified (May 31, 2011). The
request should be denied.
Mf
-3-
OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST
AMENDED COMPLAINTDE CLUE LAW GROUP, PC
2372 SE Bristol Street, 24 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
eo em ND OF WN RB
YN NR NY NY NNN DN BP BP BP PB Be Be Be BP
SN AGAR OH F SEO eReN DHF OH SF TS
MEMORANDUM OF POINTS AND AUTHORITIES
This court is not permitted to do more than take notice that a particular document may have
been recorded. So even if the Court were to decide to take judicial notice of the following
documents, because some are purported to have been recorded, the courts only take judicial
notice of the recording of the document; they do not take notice of the truth of matters stated in
the documents. The California Supreme Court stated that “While courts may notice official acts
and public records, ‘we do not take judicial notice of the truth of all matters stated therein.’”
Mangini v. R. J. Reynolds Tobacco Co., (1994) 7 Cal. 4th 1057, 1063, 875 P.2d 73, 77 (1994)
(citing Love v. Wolf (1964) 226 Cal.App.2d 378, 403, 38 Cal-Rptr. 183; accord, People v. Long
(1970) 7 Cal.App.3d 586, 591, 86 Cal.Rptr. 590.) (overruled by In re Tobacco Cases II, 41 Cal.
4th 1257, 163 P.3d 106 (2007) regarding CA UCL for false advertising was preempted by
Federal Cigarette Labeling and Advertising Act (FCLAA)). [emphasis added]See People v.
Long (1970) 7 Cal.App.3d 586. As detailed below, it is clear that the First, Third and Fourth
District Court of Appeals rulings agree and clearly state that the Court may not judicially notice
disputed facts or consider their legal effect.
The act of recording a document does not somehow confer some magic power to make the
facts alleged therein true. On the contrary, the Third District Court of Appeals dealt with this
issue in the context of a request for judicial notice of recorded documents holding that court
cannot take judicial notice of disputed facts in recorded documents. Herrera v. Deutsche Bank
Nat. Trust Co, (2011) 196 Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as modified (May 31,
2011). The Herrera court considered the scope of judicial review of a recorded document in
Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 62
Cal.Rptr.3d 59 (Poseidon ). “[T]he fact a court may take judicial notice of a recorded deed, or
similar document, does not mean it may take judicial notice of factual matters stated therein.
[Citation.] For example, the First Substitution recites that Shanley ‘is the present holder of
beneficial interest under said Deed of Trust.’ By taking judicial notice of the First Substitution,
the court does not take judicial notice of this fact, because it is hearsay and it cannot be
“4.
OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST
AMENDED COMPLAINTDE CLUE LAW GROUP, PC
2372 SE Bristol Street, 24 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
eo em ND OF WN RB
YN NR NY NY NNN DN BP BP BP PB Be Be Be BP
SN AGAR OH F SEO eReN DHF OH SF TS
considered not reasonably subject to dispute.” (/d. at p. 1117, 62 Cal.Rptr.3d 59.). (dd, at 1375;
see also Evid. Code §450).
In Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 746 [154 Cal.Rptr.3d
394] the First District Court of Appeals acknowledged that Scott did not dispute the contents of
the judicially noticed documents. [In the published portion of our opinion, we conclude that the
trial court properly took judicial notice of the fact and legal effect of the government's contract
with JPMorgan, since Scott did not allege or argue in the trial court that_the contract was
inauthentic or otherwise reasonably subject to _dispute.)(emphasis added). Citing an earlier
decision in Fontenot v. Wells Fargo (2011) 198 Cal-App.4" 256, the court continued “Strictly
speaking, a court takes judicial notice of facts, not documents. (Evid.Code, § 452, subds.(g),
(h).) When a court is asked to take judicial notice of a document, the propriety of the court's
action depends upon the nature of the facts of which the court takes notice from the document....
Taken together, the decisions discussed above establish that a court may take judicial notice of
the fact of a document's recordation, the date the document was recorded and executed, the
parties to the transaction reflected in a recorded document, and the document's legally operative
language, assuming there is no genuine dispute regarding the document's authenticity. From
this, the court may deduce and rely upon the legal effect of the recorded document, when that
effect is clear from its face.” (Scott at 755 citing Fontenot at 265)(emphasis added). As such, it
is clear that the First District Court of Appeal does not extend the legal effect of disputed facts
or documents, and therefore does not contradict the Third District Court of Appeal in Herrera
which was actually more on point with the instant case. The Fourth District Court of Appeal's
rulings also harmonize with the First and Third District in that the Fourth District Court of
Appeals has also consistently denied extending the legal effect of disputed facts or documents.
See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d at p. 374, 228 Cal.Rptr. 878 (Taking
judicial notice of a document is not the same as accepting the truth of its contents or accepting a
particular interpretation of its meaning.)
The truth of any factual matters that might be deduced from official records is not the propey
subject of judicial notice. West's Ann.Cal.Evid.Code § 451. Lockley v. Law Office of Cantrell)
5-
OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST
AMENDED COMPLAINTDE CLUE LAW GROUP, PC
2372 SE Bristol Street, 24 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
eo em ND OF WN RB
YN NR NY NY NNN DN BP BP BP PB Be Be Be BP
SN AGAR OH F SEO eReN DHF OH SF TS
OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875 [110 Cal.Rptr.2d 877]; See als:
Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7, 39 Cal.Rptr.2d 658 (However, while
courts are free to take judicial notice of the existence of each document in a court file, including
the truth of results reached, they may not take judicial notice of the truth of hearsay statements ir
decisions and court files); See Magnolia Square Homeowners Ass'n v. Safeco Ins. (1990) 221)
Cal.App.3d 1049, 1056-1057, 271 Cal.Rptr. 1.) (Courts may not take judicial notice off
allegations in affidavits, declarations and probation reports in court records because such matters|
are reasonably subject to dispute and therefore require formal proof. )
As in these cases, it is clear that California law is consistent that when there are disputed
facts contained in documents, the court may not take judicial notice of those facts or extend
their legal effect. The Verified First Amended Complaint goes into great detail as to the
disputed facts in each of the Defendants’ proffered documents citing that those documents
contain materially false allegations and are executed by parties without authority to do so. This
is then a material issue as to the facts contained therein rendering the documents not proper for
judicial notice pursuant to Evidence Code §452.
For the foregoing reasons, the Court should deny Defendants’ request for judicial notice as
to all facts alleged therein, but may elect to take judicial notice that those disputed documents
were recorded.
DE CLUE LAW GROUP, PC
Date: March 18, 2016 By: s/ Joseph L. De Clue
Joseph L. De Clue, Esq.
Attorney for Plaintiff, Martin Eng
~6-
AMENDED COMPLAINTDE CLUE LAW GROUP, PC
2372 SE Bristol Street, 24 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
eo em ND OF WN RB
YN NR NY NY NNN DN BP BP BP PB Be Be Be BP
SN AGAR OH F SEO eReN DHF OH SF TS
-7-
OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST
AMENDED COMPLAINTDE CLUE LAW GROUP, PC
2372 SE Bristol Street, 24 Floor
Newport Beach, CA 92660
Tel: (949) 596-7145
eo em ND OF WN RB
YN NR NY NY NNN DN BP BP BP PB Be Be Be BP
SN AGAR OH F SEO eReN DHF OH SF TS
PROOF OF SERVICE
STATE OF CALIFORNIA )
) SS:
COUNTY OF ORANGE )
Iam employed in the County of Orange, State of California. I am over the age of 18 and not
a party to the within action; my business address is 2372 SE Bristol Street, 24 Floor, Newport Beach,
California 92660. On March 18, 2016, I served the within OPPOSITION TO REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER OF FIRST
AMENDED COMPLAINT on the interested parties in said action by placing ___ the original _X
a true copy thereof, enclosed in a sealed envelope and addressed as follows:
McCarthy & Holthus, LLP Goli Mahdavi, Esq.
1770 Fourth Avenue BRYAN CAVE LLP
San Diego, CA 92101 560 Mission Street, 25 Floor
Tel: (619)685-4000 San Francisco, CA 94105
Attorneys for Defendant, QUALITY LOAN Tel: (415)675-3400
‘SERVICE CORPORATION Fax: (415)675-3434
Attorneys for Defendant, JP MORGAN CHASE
BANK, N.A.
__ BY UNITED STATES MAIL, I am ‘readily familiar’ with the practice of collection and
processing correspondence for mailing. Under that practice, it would be deposited in a box or other
facility regularly maintained by the United States Postal Service with First-Class postage thereon
fully prepaid that same day at Newport Beach, California, in the ordinary course of business. I am
aware that on motion of party served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in affidavit.
_X__BY OVERNIGHT DELIVERY ~I deposited such envelope for collection and delivery by
Golden State Overnight with delivery fees paid or provided for in accordance with ordinary
business practices. | am “readily familiar” with the Firm’s practice of collection and processing
packages for overnight delivery by Golden State Overnight. They are deposited with a facility
regularly maintained by Golden State Overnight for receipt on the same day in the ordinary course
of business.
BY FACSIMILE TRANSMISSION, I caused the above-referenced document(s) to be
transmitted to the above-listed addressee(s).
_X. State I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Dated: March 18, 2016 's/ Melissa N. Alvarez
MELISSA N. ALVAREZ
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OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST
AMENDED COMPLAINT
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DE CLUE LAW GROUP, PC 2372 SE Bristol Street, 24 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 eo em ND OF WN RB YN NR NY NY NNN DN BP BP BP PB Be Be Be BP SN AGAR OH F SEO eReN DHF OH SF TS OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST ELECTRONICALLY Joseph L. De Clue, Esq., SBN 163954 eee ee DE CLUE LAW GROUP, PC County of San Francisco 2372 SE Bristol Street, 2"! Floor 03/21/2016 Newport Beach, CA 92660 Clerk of the Court Tel: (949) 596-7145 See reso Deputy Clerk Attorneys for Plaintiff, MARTIN ENG SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO —- RANCHO CUCAMONGA MARTIN ENG Plaintiff, CASE NO.: CGC-15-546377 ; OPPOSITION TO REQUEST FOR vs. JUDICIAL NOTICE IN SUPPORT OF JP MORGAN CHASE BANK, N.A; DEFENDANTS’ DEMURRER TO FIRST QUALITY LOAN SERVICES; LENDER PROCESSING SERVICES, INC., DOES 1 - eee 1000 inclusive : Date: April 4, 2016 Defendants. Time: 11:00 a.m. Dept.: 302 ii} Plaintiff, MARTIN ENG, by and through his counsel, hereby opposes Defendants’ Request for Judicial Notice in support of Defendants’ Demurrer to First Amended Complaint on the grounds all of the following documents presented contain material facts in dispute. These| documents are inappropriate subjects for notice under Evidence Code §§ 452 and 453. As noted by Defendants, Evid. Code § 452(h) judicial notice may only be taken “[fJacts an propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of indisputable accuracy”. As such, Plaintiff requests that the, Court only take judicial notice of the fact that the documents were recorded and no other statements in the documents. Specifically, -- AMENDED COMPLAINTDE CLUE LAW GROUP, PC 2372 SE Bristol Street, 24 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 Exhibit A— Deed of Trust dated June 28, 2005 Under §452(h) the Deed of Trust does not contain facts and propositions that are not reasonably subject to dispute by accurate determination through resort to sources of reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of dispute in the Verified First Amended Complaint as set forth therein. The request should be denied. Exhibit B — Purchase and Assumption Agreement Between Federal Deposit Insurance Corporation and JPMorgan Chase Bank dated September 25, 2008 Under §452(h) the Purchase and Assumption Agreement is a private contract that does not contain facts and propositions that are not reasonably subject to dispute by accurate determination through resort to sources of reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of dispute in the Verified First Amended Complaint as set forth therein, and the First District Court of Appeal has expressly held that this specific document is not judicially noticeable. Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 887. The request should be denied. Exhibit C — Substitution of Trustee recorded March 30, 2009. Under §452(h) the Substitution of Trustee does not contain facts and propositions that are not reasonably subject to dispute by accurate determination through resort to sources of reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of dispute in the Verified First Amended Complaint as set forth therein. See also Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as modified (May 31, 2011). The request should be denied. Exhibit D — Notices of Default recorded on February 13, 2009. Under §452(h) the Notice of Default does not contain facts and propositions that are not reasonably subject to dispute by accurate determination through resort to sources of reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of dispute in the Verified First Amended Complaint as set forth therein such as the fact JPMorgan Chase Bank was not owed the sums alleged. See also Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 -2- OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINTDE CLUE LAW GROUP, PC 2372 SE Bristol Street, 24 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 eo em ND OF WN RB YN NR NY NY NNN DN BP BP BP PB Be Be Be BP SN AGAR OH F SEO eReN DHF OH SF TS Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as modified (May 31, 2011). The request should be denied. Exhibits E, F, G, and H — Notices of Trustees Sale recorded May 18, 2009, September 2, 2009, February 1, 2010 and September 15, 2010 respectively. Under §452(h) each of the Notice of Trustee Sale do not contain facts and propositions that are not reasonably subject to dispute by accurate determination through resort to sources of reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of dispute in the Verified First Amended Complaint as set forth therein such as the fact JPMorgan Chase Bank was not owed the sums alleged and that Quality Loan Service Corporation was not the proper trustee. See also Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as modified (May 31, 2011). The request should be denied. Exhibits |— Trustee’s Deed Upon Sale recorded June 6, 2011. Under §452(h) the Trustee’s Deed Upon Sale does not contain facts and propositions that are not reasonably subject to dispute by accurate determination through resort to sources of reasonably indisputable accuracy. As a matter of fact, the facts alleged are the subject of dispute in the Verified First Amended Complaint as set forth therein such as the fact JPMorgan Chase Bank was not owed the sums alleged, was not the beneficiary and that Quality Loan Service Corporation was not the proper trustee. See also Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as modified (May 31, 2011). The request should be denied. Mf -3- OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINTDE CLUE LAW GROUP, PC 2372 SE Bristol Street, 24 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 eo em ND OF WN RB YN NR NY NY NNN DN BP BP BP PB Be Be Be BP SN AGAR OH F SEO eReN DHF OH SF TS MEMORANDUM OF POINTS AND AUTHORITIES This court is not permitted to do more than take notice that a particular document may have been recorded. So even if the Court were to decide to take judicial notice of the following documents, because some are purported to have been recorded, the courts only take judicial notice of the recording of the document; they do not take notice of the truth of matters stated in the documents. The California Supreme Court stated that “While courts may notice official acts and public records, ‘we do not take judicial notice of the truth of all matters stated therein.’” Mangini v. R. J. Reynolds Tobacco Co., (1994) 7 Cal. 4th 1057, 1063, 875 P.2d 73, 77 (1994) (citing Love v. Wolf (1964) 226 Cal.App.2d 378, 403, 38 Cal-Rptr. 183; accord, People v. Long (1970) 7 Cal.App.3d 586, 591, 86 Cal.Rptr. 590.) (overruled by In re Tobacco Cases II, 41 Cal. 4th 1257, 163 P.3d 106 (2007) regarding CA UCL for false advertising was preempted by Federal Cigarette Labeling and Advertising Act (FCLAA)). [emphasis added]See People v. Long (1970) 7 Cal.App.3d 586. As detailed below, it is clear that the First, Third and Fourth District Court of Appeals rulings agree and clearly state that the Court may not judicially notice disputed facts or consider their legal effect. The act of recording a document does not somehow confer some magic power to make the facts alleged therein true. On the contrary, the Third District Court of Appeals dealt with this issue in the context of a request for judicial notice of recorded documents holding that court cannot take judicial notice of disputed facts in recorded documents. Herrera v. Deutsche Bank Nat. Trust Co, (2011) 196 Cal. App. 4th 1366, 127 Cal. Rptr. 3d 362, as modified (May 31, 2011). The Herrera court considered the scope of judicial review of a recorded document in Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 62 Cal.Rptr.3d 59 (Poseidon ). “[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley ‘is the present holder of beneficial interest under said Deed of Trust.’ By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot be “4. OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINTDE CLUE LAW GROUP, PC 2372 SE Bristol Street, 24 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 eo em ND OF WN RB YN NR NY NY NNN DN BP BP BP PB Be Be Be BP SN AGAR OH F SEO eReN DHF OH SF TS considered not reasonably subject to dispute.” (/d. at p. 1117, 62 Cal.Rptr.3d 59.). (dd, at 1375; see also Evid. Code §450). In Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 746 [154 Cal.Rptr.3d 394] the First District Court of Appeals acknowledged that Scott did not dispute the contents of the judicially noticed documents. [In the published portion of our opinion, we conclude that the trial court properly took judicial notice of the fact and legal effect of the government's contract with JPMorgan, since Scott did not allege or argue in the trial court that_the contract was inauthentic or otherwise reasonably subject to _dispute.)(emphasis added). Citing an earlier decision in Fontenot v. Wells Fargo (2011) 198 Cal-App.4" 256, the court continued “Strictly speaking, a court takes judicial notice of facts, not documents. (Evid.Code, § 452, subds.(g), (h).) When a court is asked to take judicial notice of a document, the propriety of the court's action depends upon the nature of the facts of which the court takes notice from the document.... Taken together, the decisions discussed above establish that a court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott at 755 citing Fontenot at 265)(emphasis added). As such, it is clear that the First District Court of Appeal does not extend the legal effect of disputed facts or documents, and therefore does not contradict the Third District Court of Appeal in Herrera which was actually more on point with the instant case. The Fourth District Court of Appeal's rulings also harmonize with the First and Third District in that the Fourth District Court of Appeals has also consistently denied extending the legal effect of disputed facts or documents. See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d at p. 374, 228 Cal.Rptr. 878 (Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.) The truth of any factual matters that might be deduced from official records is not the propey subject of judicial notice. West's Ann.Cal.Evid.Code § 451. Lockley v. Law Office of Cantrell) 5- OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINTDE CLUE LAW GROUP, PC 2372 SE Bristol Street, 24 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 eo em ND OF WN RB YN NR NY NY NNN DN BP BP BP PB Be Be Be BP SN AGAR OH F SEO eReN DHF OH SF TS OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875 [110 Cal.Rptr.2d 877]; See als: Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7, 39 Cal.Rptr.2d 658 (However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements ir decisions and court files); See Magnolia Square Homeowners Ass'n v. Safeco Ins. (1990) 221) Cal.App.3d 1049, 1056-1057, 271 Cal.Rptr. 1.) (Courts may not take judicial notice off allegations in affidavits, declarations and probation reports in court records because such matters| are reasonably subject to dispute and therefore require formal proof. ) As in these cases, it is clear that California law is consistent that when there are disputed facts contained in documents, the court may not take judicial notice of those facts or extend their legal effect. The Verified First Amended Complaint goes into great detail as to the disputed facts in each of the Defendants’ proffered documents citing that those documents contain materially false allegations and are executed by parties without authority to do so. This is then a material issue as to the facts contained therein rendering the documents not proper for judicial notice pursuant to Evidence Code §452. For the foregoing reasons, the Court should deny Defendants’ request for judicial notice as to all facts alleged therein, but may elect to take judicial notice that those disputed documents were recorded. DE CLUE LAW GROUP, PC Date: March 18, 2016 By: s/ Joseph L. De Clue Joseph L. De Clue, Esq. Attorney for Plaintiff, Martin Eng ~6- AMENDED COMPLAINTDE CLUE LAW GROUP, PC 2372 SE Bristol Street, 24 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 eo em ND OF WN RB YN NR NY NY NNN DN BP BP BP PB Be Be Be BP SN AGAR OH F SEO eReN DHF OH SF TS -7- OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINTDE CLUE LAW GROUP, PC 2372 SE Bristol Street, 24 Floor Newport Beach, CA 92660 Tel: (949) 596-7145 eo em ND OF WN RB YN NR NY NY NNN DN BP BP BP PB Be Be Be BP SN AGAR OH F SEO eReN DHF OH SF TS PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS: COUNTY OF ORANGE ) Iam employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 2372 SE Bristol Street, 24 Floor, Newport Beach, California 92660. On March 18, 2016, I served the within OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER OF FIRST AMENDED COMPLAINT on the interested parties in said action by placing ___ the original _X a true copy thereof, enclosed in a sealed envelope and addressed as follows: McCarthy & Holthus, LLP Goli Mahdavi, Esq. 1770 Fourth Avenue BRYAN CAVE LLP San Diego, CA 92101 560 Mission Street, 25 Floor Tel: (619)685-4000 San Francisco, CA 94105 Attorneys for Defendant, QUALITY LOAN Tel: (415)675-3400 ‘SERVICE CORPORATION Fax: (415)675-3434 Attorneys for Defendant, JP MORGAN CHASE BANK, N.A. __ BY UNITED STATES MAIL, I am ‘readily familiar’ with the practice of collection and processing correspondence for mailing. Under that practice, it would be deposited in a box or other facility regularly maintained by the United States Postal Service with First-Class postage thereon fully prepaid that same day at Newport Beach, California, in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. _X__BY OVERNIGHT DELIVERY ~I deposited such envelope for collection and delivery by Golden State Overnight with delivery fees paid or provided for in accordance with ordinary business practices. | am “readily familiar” with the Firm’s practice of collection and processing packages for overnight delivery by Golden State Overnight. They are deposited with a facility regularly maintained by Golden State Overnight for receipt on the same day in the ordinary course of business. BY FACSIMILE TRANSMISSION, I caused the above-referenced document(s) to be transmitted to the above-listed addressee(s). _X. State I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Dated: March 18, 2016 's/ Melissa N. Alvarez MELISSA N. ALVAREZ -8- OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT