No Value: ELLA DOE vs. JAMES EDWARD NELL, JR, et al

On October 12, 2021 a No Value was filed involving a dispute between Doe, Ella, and Does 1-20, Little, Susan Nell Nee, Nell, Dorothea B, Nell, James Edward, Jr, Nell, James, Sr, for (23) Unlimited Other PI/PD/WD in the District Court of San Mateo County.

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1 Todd A. Angstadt (SBN 166404)
Micah A. H. Yospe (SBN 281350)
2 PHILLIPS, SPALLAS & ANGSTADT LLP
560 Mission Street, Suite 1010
3 San Francisco, CA 94105
Telephone (415) 278-9400
Facsimile (415) 278-9411
4
Attorney for Defendant
5 JAMES NELL, SR.
6

7 SUPERIOR COURT OF THE STATE OF CALIFORNIA

8 CITY AND COUNTY OF SAN MATEO, UNLIMITED JURISDICTION

10 ELLA DOE, a minor, ) Case No.: 21-CIV-05499
)
11 Plaintiff, )
) DEFENDANT JAMES NELL, SR.’S REQUEST
12 ) FOR JUDICIAL NOTICE IN SUPPORT OF
v. ) MOTION FOR SUMMARY JUDGMENT
)
13
JAMES EDWARD NELL, JR.; JAMES NELL, SR.; ) Complaint Filed: October 12, 2021
14 SUSAN NELL NEE LITTLE; DOROTHEA B. NELL and ) Trial Date: August 5, 2 024
DOES 1 to 21, inclusive, )
) Hearing Date: June 13, 2024
15 ) Dept: 3
Defendants. ) Courtroom: 2B
16 ) Time: 2:00 p.m.
)
17 )

18 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
19 PLEASE TAKE NOTICE that, pursuant to California Evidence Code sections 452 and 543, Defendant

20 JAMES NELL, SR. respectfully requests that, in considering Defendant’s Motion for Summary Judgment, this

21 Court take judicial notice of the following:

22 1. The operative Complaint in this action, filed on October 12, 2021, a true and correct copy

23 attached hereto as Exhibit 1.

24 2. Defendant JAMES NELL, Sr.’s Answer to the Complaint in this action, filed on December 3,

25 2021, a true and correct copy is attached hereto as Exhibit 2.

26 Pursuant to California Evidence Code, “[j]udicial notice may be taken of . . . [o]fficial acts of the

27 legislative, executive, and judicial departments of the United States and of any state of the United States;

28 [r]ecords of (1) any court of this state . . . .” (Evid. Code § 452.)

1
DEFENDANT JAMES NELL, SR.’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 The request for judicial notice is made as to Exhibits 1 and 2 on the grounds that this Court may take

2 judicial notice of the Court's records regarding this lawsuit. Evidence Code §452(d). As both documents are

3 documents that have been filed in this action, Defendant respectfully requests these requests for judicial notice

4 be granted.

6 Dated: March 22, 2024 PHILLIPS, SPALLAS & ANGSTADT LLP

7
By: _________________________________
8 Todd A. Angstadt
Micah A. H. Yospe
9
Attorneys for Defendant
10 JAMES NELL, SR.

2
DEFENDANT JAMES NELL, SR.’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
EXHIBIT 1
ROBERT DAVID BAKER, INC.
Robert David Baker Esq. (87314
2 80 Somb. White Road
_Sao Jose, CA 95127
3 (408) 251-3400 Tele~hone
1
(408) .251-3401 Facsunile
4 rbaker@rdblaw.net

5 Attorney for Plaintiff
ELLA DOE
6
7 ; .--

SUPERIOR COURT OF THE STATE OF CALIFORNIA,

FOR THE COUNTY OF SAN MATEO

11
_ELLA DOE, a minor, CASE NO.:21-C IV-05499
12
Plaintiff, COMPLAINT FOR DAMAGES
13
14 vs• UNLIMITED
.JAMES EDWARD NELL, JR; JAMES
15 NELL, SR.; SUSAN NELL nee UTILE;
DOROTHEA B. NELL; DOES 1-20,
16
Defendan!s.
17
18
Plaintiff, ELLA DOE, a minor alleges:
19
20 JURISDICTION AND VENUE
21 - 1. This Court has general unlimited jurisdiction over this case, and the injury to Plaintiff
22 ELLA DOE occurred in Saa Mateo, County, California;
23 2. Defendant JAMES EDWARD NELL, JR is an adult male, who at an times set for.th in
24 this complaint resided in the County' of San Mateo;
25 3. Defendant JAMES NELL, SR was, at all times•aUeged herein, an adult male and the
26 father of JAMES EDWARD NELL, JR and at all times set forth in this complaint residing in the

27 County of San Mateo;
28 Ill

Ella Doe. v. James Edward Nell Jr, et al
1
I

4. Defendant SUSAN NELL, nee LITTLE hereinafter (Susan Nee) is an adult female,
2 who at all times set forth in this complaint resided in a county unknown. and who is the mother
3 of JAMES EDWARD NELL JR;
4 5. Defendarit DOROTIIEA B. NELL is an adult female. who at all times set forth in this
5. complc:1int resided in the County of San Mateo, and who is the grandmother of JAJ\1ES
6 EDWARD NELL JR;
7 6. Plaintiff is ignorant of the true names and capacities of those defendants sued herein as
8 Does 1-20, and therefore sues these defendants by such fictitious names. Plaintiff will amend this
9 complaint to allege the ttue names and capacities of 1he Doc defen.dantB when ascertained;
10 7. The unlawful conduct alleged herein substanually occurred in the County of San
11 M~teo, State of California;
12 • &. At all times alleged herein each of the Defendants mentioned herein were the agents of

13 each oth.ei· Defendant and, in doing the things herein alleged, were acting within the oonrse and
l4 scope of such agency. and each defendant approved and ratified the conduct of each other
15 Defendant;.
16 9. The unlawful conduct alleged herein occurred :in the County of Sau Mateo, State cf
17 California. Injury to Plainiiff occwred in the County of San Mateo, State of California;
18 10. At all times herein merttioned, Plaintiff ELLA DOE was a minot female and the
l9 injury alleged in this compl2.int occurred to her wben she was thirteen years old;
20 11. At all times herein mentioned Plaintiff JA1'.1ES NEJ,,L JR was nineteen years old.;
21 12. Plaintiff v-rill file a petition for the appoinlrnent of a Guardian Ad Litem on her behalf
22 'to prosecute this matter;
23
FIRST CAUSE OF ACTION
24 (Sexual Battery on a Minor)
(Cal Civil Cflde 1 1708.5)
25 . (Against JAMES EDWARD NELL, .m, only)

26 13. Plaintiff incorporates those pa..ragraphs 1 ~ 12 as .if set forth hereinafter iQ the entirety;
27 14. Every person is bound ,,vi~J1out contract to abstain from injuring the person of another;
28 Ill

Ella Doe. v. James Edward Nell Jr, et el.
2
l 15. On or ~out July 1, 2020, and July 14, 2021 , in the County of San Mateo, State of
I
2 California, JAMES EDWARD NELL JR intentionally, will.fully, unlawfully, and lewdly
3 committed offensive l~wd and lascivious acts upon intimate parts of the body of ELLA DOE, a I
1

4 <;hild \lllder the age of fo,urteen yem, with the intent of arousing, appealing to, his lust, passions, l
5 • and sexual desires, resulting in bis plea of guilty/no contest to lewd and lascivious conduct with ~
6 minor, a felony. In addition, JAMES EDWARD NELL JR committed unlawful oral copulation 1
7 upon an intimate part of ELLA DOE'S body;
8 16. In doing the things herein alleged the conduct of JAMES EDWARD l\1ELL JR was
9 nonconsensual;
10 17. The conduct of Defendant JAMES EDWARD NELL JR wa~ sufficiently severe to
11 cause, and did cause ELLA DOE traumatic mental injury, and consequential damages;
12 18. At the time of doing the things so alleged, JAMES EDWARD NELL JR was in a
13 position of authority and trust over ELLA DOE, as a result of bis age (adult), and relatio11ship to
14 ELLA DOE as her purported cousin, and exercised an Wldueinfluence over ELLA DOE;
15 19. As a proximate result of the conduct of JAMES EDWARD NELL JR, ELLA DOE
i
16 bas suffered severe emotional distress requiring hospitalization and psychological treatment, and \
17 continues, and \Vill continue to suffer severe emotional distress and the need for future
18 psychological treatment;
19 20. The conduct of JAMES EDWARD NELL JR was willful. oppressive. fraudulent,
20 · malicious, and done without regard for the rights and safety of EU.,A DOE and others.
21 Therefore, ELLA DOE requests an award of exemplary damages in addition to actual damages
22 for the sake of example and by way of punishing JAMES EDWARD NELL JR;
23 THEREFORE, PLAINTIFF PRAYS FOR DAMAGES AS SET FORTH HEREINAFTER.
24 SECOND CAUSE OF ACTION
(Negligence)
25 (Against James Nell, Sr.; Susan Nell Little; Dorothea B. Nell)
26 21. Plaintiff incorporates those paragraphs 1-20 as if set forth hereinafter in the entirety;
27 Ill
28 Ill

Ella Doe. v. James Edward Nell Jr, et al.
3
22. SUSAN NELL and DELORES DOB, the mother of.TAMES EDWARD NELL JR,
2 were friends gro-wing up and that friendship continued through their adult lives and their
3 respective marriages;
4 23. DOROTHEA B. 'N'ELL is the mother of JAMBS NELL SR, and lives at 2 Valley Oak
5 Street, Portola VaUey, Catifomia. At all times relevant herein, JAMES NELL SR resided in a
6 house situated on the same lot as his mother's house, 2 Valley Oak Street, Portola Valley,
7 California;
8 24. When ELLA DOE wa.s young, she was told by SUSAN NELL ihat she and JAMES
9 EDWARD NELL JR were cousins. Based on these representations from SUSAN Nell, ELLA
IO DOE believed that JAMES EDWARD NELL JR was her cousin and she put her trust in him;
11 25. The families visited each other occasionally and enjoyed activities together until on
12 or about 2015, when the families moved apart and the children stopped seeing each other;
13 26. On or about Memorial Day, 2020, SUSAN NELL invited DELORES DOE and her
14 family to visit her farm in the Mokelumne Hill, California (''the farm"). DELORES DOE
15 brought ELLA DOE and her sister for the visit. JAMES EDWARD 1\TELL JR was at SUSAN
16 NELL'S house at the fann. ELLA DOE was age thirteen at the time .and JAMES EDWARD
17 NELL JR was age nineteen;
18 27. JAMES EDWARD NELL JR introduced ELLA DOE to driving the all •terrain
19 vehicles at the farm. JAMES EDWARD NELL JR and ELLA DOE spent the three days at the
20 farm driving the ATVs together. SUSAN NELL noticed that JAMES and ELLA DOE were
21 • spending most of their time together and she told JAMES EDWARD NELL JR," I know you
22 • think she's pretty. but she's only thirteen; don't even think about it.";
23 . 28. A week later, JAMES EDWARD NELL JR invited DELORES DOE and her
24 daughters to return the farn1. Unknown to DELORES DOE, JAMES EDWARD NELL JR had
25 been te>,.'ting ELLA DOE multiple times each day since they returned from the first visit to the
26 fann. ELLA DOE is informed and believes that during this period of time JAMES EDWARD
27 NELL JR sent her a pornographic video;
28 Ill

Ella Doe. v. James Edward Nell Jr, et al
4
29. A week or so later, JAMBS EDWARD NELL JR invited ELLA DOE and her sister
2 to go swimmin.$ at JAMES EDWARD NELL JR.'s father's house in Ponola Valley, California.
3 ELLA DOE and her sister went swimming at DOROTHEA B. NELL' swim.ming poo~ v.'hich 1S
4 at her house next to JA!viES NELL SR's house .
S 30. JAMES NELL SR bought .ELLA DOE, her sister, and JAMES EDWARD NELL JR
6 Chick-Fil-A when. they arrived at his house in Portola Valley, CA At some point that day,
7 JAMES EDWARD NELL JR told ELLA DOE that his grandmother, DOROTIIEA B. NELL
8 had seen him and ELLA DOE together at the pool and she belieYed that JAMES EDWARD
9 NELL JR and ELLA DOE were togethec as a couple.
IO 31. On July l 1 2020. in a phone conversation witb ELLA DOE, JAMES BDWARD
Jl NELL JR told her tbatbe would come c!lld pi'-?k her up. JAMES B1>WARD NELL JR picked up
12 ELLA DOE up and took.her to his futber' s house so they could go swimming. Once at his
13 tather's house., he .first took ELtA DOE to his room before they ,,vent swimming. In JAMES
14 EDWARD NELL JR's room there were many packages of condoms on a desk next to his bed.
15 JAMES EDWARD NELL JR told ELLA DOE thnt his parents had given him the condoms
16 beL-ause they felt sorry for him;
17 32. During swimming that day, JAMES EDWARD NELL JR took ELLA DOE to a room
18 next to the side ofhis grandmothet' s house aud sexually assaulted. her. .TA1"'1:ES: EDWARD
l9 NELL JR used a condom during the se,cual assault;
20 33. JAMES NELL SR had a special relatioosbi_p with JAMES EDWARD NELL JR, as
21 his son, and as a result of that special relationship JAMES NELL SR owed a duty to control his
22 son against any inappropriate se,..7.Ial conducl with RI .LA DOE because it was foreseeable that
23 JAMES EDWARD NELL JR desired sexual relations with ELLA DOB based on the following
24 • facts: that he was aware that JAMES EDWARD NELL JR had showed sexual attention to ELLA
25 DOE; he was eware that his son hlld a proclivity for sexually harassing female students at. his
26 high school and that his soo had b~eo suspended for making gun-related threats; Plaintiff is

27 informed and believes that JAMES NELL SR knew fnat JAMES EDWARD NELL JR brought
28 girls to his room at hls house and he had in fa.ct supplied his son with condoms for use on those

Ella Doe.,•. James Edward Nell Jr, et el.
5
I . and other occasions; he was aware that ELLA DOE was underage; Plaintiff is infohned and
2 , believes that that JAMES NELL SR knew of his son's se,..-ual design on ELLA DOE as
3 expressed by his wife SUSAN NELL;
4 34. SUSAN NELL had a special relationship with JAMES EDWARD NELL JR, as her
5 so~ and she owed a duty t.o ,control her son from any inappropriate sexual conduct with ELLA
6 •DOE because it was foreseeable that JAMES EDWARD NELL JR desired sexual relations with
7 ELLA DOE based upon the following facts: SUSAN NELL was aware that JAMES EDWARD
8 NELL JR had showed sexual designs toward ELLA DOE; she was aware that her son had a
9 • proclivity for sexually ha...-ra.ssing female students at his high schoo] and that he had been
IO suspended for making gun•related threats; Plaintiff is infonned and believes that SUSAN NELL
11 . knew that JAMES EDWARD NELL JR brought girls to his room at his father's house and that
12 she and JAMES N"ELL SR had in fact supplied. their son with condoms for use on those and
13 • other occasions; she was aware that ELLA DOE was underage; and she knew that JAMES
14 EDWARD NELL JR had invited ELLA DOE to his grandmother's house for swimming and she
15 failed to warn JAMES NELL SR or DOROTHEA B. NELL to warn and supervise JAMES
16 EDWARD NELL JR during those visits that he was to have no 1nappropriate conductsexual or
17 otherwise with ELLA DOE;
18 35. DOROTHEA B. NELL owed a duty to ELLA DOE to supervise JA.l\1ES EDWARD
19 NELL JR during his visits to het swimming pool with ELLA DOE because she was aware of
20 JAMES EDWARD NELL JR.' s histoJY of sexually harassing girls; that ELLA DOE was
21 underage~ and that the two were intimately together on her property; she was aware that JAMES
22 . EDWARD NELL JR bad sexual designs toward ELLA DOE;
23 36: Based on the above JAMBS NELL SR, SUSAN NELL, and DOROTHEA B. NELL
24 were negligent in their failure to talce actions to protect ELLA DOE from unlawful sexual
25 conduct by JAMES EDWARD NELL, JR;
26 37. The failure of JA.MES NELL SR. SlJSAN NELL, and DOROTIIEA B. N"ELL to tak~
27 appropriate action to prevent the foreseeable sexual conduct of JAMES EDWARD NELL, JR
28 with ELLA DOE was the proximate cause of injury to ELLA DOE;

Ella Doe. v. James Edwani Nell Jr, et al.
6
TIIBREPORR PLAINTIFF J>RAYS FOR DAMAGES AS SBT FORTH
2 HEREINAFTER
3 PLAINTIFF PRAYS FOR DAMAGES AS FOLLOWS:
4 1. For general and compensatory damages according to proof;

s 2. For special dam.ages according to proof;

6 3. For damages far emotional distress, past and future;

7 4. For damages paid or owed to medical providers, past and future;

8 5. For exemplary damages aglrinst JAMES EDWARD NELL JR in an amount sufficient
9 for the sake of example for punishment of JAMES EDWARD NELL JR for his conduct toward

10 ELLADOB;
11 5, For costs of suit;
12 5. For prejudgment interest;
13 6. For such other and further relief as this court deems appropriate,
14 PLAINTIFF DEMANDS A JUn.Y TRIAL ON ALL CAUSES.
15 Dated: October 11, 2021
16
17

~L-~
18

19
20 • ROBERTDAVIDBAKER., INC.
Robert David Baker, Esq.
21 Attorney for Plaintiff
'22
23
24
25
26
27
28

EOa Doe. v. James Edward Nell Jr, et al
7
EXHIBIT 2
Electrou.ically
FIL1:D
ti,. ~p,;,.lllt COYri ol Ca lforr,.a Co.i,11y ol ~11 Mai~
ON 12/3/2021
by_ _JsUanesha Gaine~
De-puty Cieri<
Charles J. Smith, Bar No. 72700
2 LAW OFFICES OF CHARLES J. SMITH III
777 Marshall Street
3 Redwood City, CA 94063
Telephone: (650) 568-2820
4
Fax No.: (650) 367-1700
5 Email: smith@hslawoffice.com

6 Attorney for DEFENDANTS
JAMES EOWARD NELL, JR.
7 JAMES EDWARD NELL, SR.
SUSAN NELL NEE LITTLE
8
9 SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SAN MATEO
11
12
ELLA DOE, a minor, Case No. 21-CIV-05499
13
Plaintiff, ANSWER TO COMPLAINT ON
14 BEHALF OF DEFENDANT JAMES
EDWARD NELL, SR.
V,
15
16 JAMES EDWAED NELL, JR.~
JAMES EDW AED NELL, SR.;
17 SUSAN NELL NEE LITTLE;
DOROTHEA B. NELL: Complaint filed: October 12, 2021
18 DOES 1-21. Dept.: 22
Judge: Hon. Danny Y. Chou
19 Trial Date: Not assigned
Defendants.
20
21
22
James Edward Nell Sr. answers the unverified original complaint of Ella Doe on file
23
herein as follows:
24
l. By virtue of Code of Civil Procedure section 43 1.30, these answering defendant denies
25
each and every allegation contained in the original complaint insofar as said allegations refer to these
26

27 answering defendant and further denies tJ1at plaintiff has been damaged in the sum or sums alleged, or

28 in any other sum or sums, or at all.

Case No.: 21-CIV-05499
ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT JAMES EDWARD NELL. SR.
1 FIRST SEPARATE AND AFFIRMATIVE DEFENSE
2 TO THE ENTIRE COMPLAINT
3 If plaintiff suffered or sustained any loss, damage or injury as alleged in the complaint, such
4 loss, damage or injury was proximately caused and contributed to by plaintiff failing to conduct
5 themselves in a maimer expected of a reasonably prudent person in the conduct of their affairs
6 and person. Plaintiffs recovery herein is barred, dimihished or reduced to the extent that

7 plaintiffs loss , damage or inju1y is attributed to plaintiff's negligence.

8
9 SECOND SEPARATE AND AFFIRMATIVE DEFENSE
10 TO THE ENTIRE COMPLAINT
11 Plaintiff has failed to allege facts sufficient to constitute a cause of action against answering

12 defendant.
13 THIRD SEPARATE AND AFFIRMATIVE DEFENSE
14 TO THE ENTIRE COMPLAINT
15 If plaintiff suffered or sustained any damages as alleged in the complaint, those damages were
J6 proximately caused and contributed to by persons other than answering defendant, including but
J7 not limited to Doe defendants). The liability of all defendants,
18 named or unnamed, should be appo11ioned according to their relative degrees of fault, and the

19 liability, if any, of answering defendant shouJd be reduced accordingly.

21 FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
22 TO THE ENTIRE COMPLAINT
23 Plaintiffs recovery is reduced or diminished by plaintiff's failure to mitigate their damages.

24
25 FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
26 TO THE ENTIRE COMPLAINT
27 Defendant contends that he did not have prior actual knowledge of any assaultive propensities
28 of James Edward Nell, Jr. as alleged in the complaint.

2
Case No.: 21-CIV-05499
ANSWFR Tn rnMPTA TNT ()N RF.HALF ()F nFFFNnANT TA MRS FmWARn NF'."1 .l. SR
1 SlXTH SEPARATE AND AFFIRMATIVE DEFENSE
2 TO THE ENTIRE COMPLAINT
3 Any damages sustained by plaintiff were wholly caused by and were the fault of persons, or
4 other entities than this responding defendant.

5
6 SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE

7 TO THE ENTIRE COMPLAINT
8 The incident alleged in the complaint, if .it occurred, was proximately caused by the acts and
9 omissions of third persons or other parties not under the control of this responding defendant.

10
11 EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE
12 TO THE ENTIRE COMPLAINT
13 The incident complained of is attributable to an unforeseeable, superseding or intervening cause.

14
15 NINTH SEPARATE AND AFFIRMATIVE DEFENSE
16 TO THE ENTIRE COMPLAINT
17 Plaintiff's claims, if any, are barred by the doctrine of waiver.

18
19 TENTH SEPARATE AND AFFIRMATIVE DEFENSE
20 TO THE ENTIRE COMPLAINT
21 The complaint and the causes of action thereof are barred by the statute of limitations including
22 but not limited to California Code of Civil Procedure §335.1 and/or the applicable statute of
23 limitations, including, but not limited to, California Code of Civil Procedure §§337, 337 .1 ,

24 337.15, 338, 339, 340.3 and 343.
25 II!

26 ///
27 Ill
28 Ill

3
Case No.: 21-CIV-05499
ANSWFR TO roMPTAfNT ON RFHAI.F nFilFFFNnANT IAM"RS FnWARn NFL!. SR
WHEREFORE. this answering defendant prays:
, J. That the plaintiff take nothing by their coi11plaint:

3 2. For costs of the suit incmTed herein; and
4 3. For such other and further relief as the Court m proper.
5

6 December 3. 2021

7
Attorney for Defendant James Edward Nell, Sr.
8

9
10
DEMAND FOR JURY TRIAL
11 Defendant hereby demands a trial by jury in the above-referenced matter.
12

13
14
December 3. 2021
15

16 Defendant James Edward Nell, Sr,

17
18

22
23
24

27
28

4
Case No.: 21-CIV-05499
ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT JAMES EDWARD NELL. SR.
Do v. Jame. Edwar f ;;/, Jr. ,, l.
an dat o ' nmty, ·u1 erior 'ourt •a e n.: _ }-CI 0 . .

PROOF OF ERVICE

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7 SWE .• TO COMPLA BEHALF OD DEFE E ATJAME ED RD
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1 - ~ -

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Greenberg, Susan Track Judge’s New Case

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Document Filed Date

March 23, 2024

Case Filing Date

October 12, 2021

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No Value: ELLA DOE vs. JAMES EDWARD NELL, JR, et al

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