Preview
ELECTRONICALLY FILED
Superior Court of California,
County of Placer
Arthur G. Woodward (SBN: 142914) 10/16/2020
Jake C. Weaver (SBN: 300962) By: Laurel Sanders, Deputy Clerk
REYNOLDS TILBURY WOODWARD LLP
11601 Blocker Drive, Suite 105
Auburn, CA 95603
Telephone: (530) 885-8500
Facsimile: (530) 885-8113
Email: jweaver@rtwlawllp.com
Attorneys for Plaintiffs
JAMES KIRBY and SARAH KIRBY GONZALEZ,
CO- SUCCESSOR TRUSTEES OF THE WILLIAM
WARNER KIRBY 2014 REVOCABLE TRUST
SUPERIOR COURT OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER COUNTY
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WILLIAM W. KIRBY, an individual; Case No.: SCV0043355
13 WILLIAM KIRBY, TRUSTEE OF THE
WILLIAM WARNER KIRBY 2014 REQUEST FOR JUDICIAL NOTICE IN
14 REVOCABLE TRUST, SUPPORT OF OPPOSITION TO
MOTION TO SET ASIDE DEFAULT
15 AND DEFAULT JUDGMENT
16 Plaintiffs,
DATE: October 30, 2020
17 TIME: 8:30 a.m.
V,
DEPT: LM
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PETE TOPLEAN, an individual;
19 TOP INVESTMENT PROPERTY, LLC, a
California limited liability company; and
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DOES 1-20, inclusive,
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Defendants.
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Pursuant to Evidence Code sections 452 and 453, Plaintiffs James Kirby and Sarah Kirby
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Gonzalez, Co-Successor Trustees of the William Warner Kirby 2014 Revocable Trust (collectively
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“Plaintiff’) respectfully request that this Court take judicial notice of the following in support of
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Plaintiff's Opposition to Motion to Set Aside Default and Default Judgment.
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1 The Complaint filed in the Superior Court of California, County of Placer, on July
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29, 2019. A true and correct copy as it exists in the Court’s records is attached hereto as Exhibit 1
{00014196.1}
REQUEST FOR JUDICIAL NOT ie IN SUPPORT OF OPPOSITION TO
MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
2 The Amended Proof of Service of Summons for service on Defendant Pete Toplean.
A true and correct copy as it exists in the Court’s records is attached hereto as Exhibit 2.
3 The Request for Entry of Default as to Defendant Pete Toplean entered on
September 19, 2019. A true and correct copy as it exists in the Court’s records is attached hereto as
Exhibit 3.
4 The First Amended Complaint filed in the Superior Court of California, County of
Placer, on February 10, 2020. A true and correct copy as it exists in the Court’s records is attached
hereto as Exhibit 4.
5 The Proof of Service of Summons for service of the First Amended Complaint on
10 Defendant Pete Toplean. A true and correct copy as it exists in the Court’s records is attached
11 hereto as Exhibit 5.
12 6 The Request for Entry of Default as to Defendant Pete Toplean in regard to the First
13 Amended Complaint entered on May 18, 2020. A true and correct copy as it exists in the Court’s
14 records is attached hereto as Exhibit 6.
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15 7 The Court’s Order entered June 5, 2020, substituting James Kirby and Sarah Kirby
16 Gonzalez, Co-Successor Trustees of the William Warner Kirby 2014 Revocable Trust, as the
17 Plaintiff for William Kirby, individually and as Trustee of the William Warner Kirby 2014
18 Revocable Trust, now deceased, under the operative First Amended Complaint. A true and correct
19 copy as it exists in the Court’s records is attached hereto as Exhibit 7.
20 8 Plaintiffs default prove-up package, including the Brief Summary of Case in
21 Support of Request for Court Judgment and all supporting declarations.
22 9 The Notice of Entry of Judgment filed with the Court on September 10, 2020, along
23 with the Judgment by Default entered by the Court on September 1, 2020, in the amount of
24 $182,916.00, plus statutory post judgment interest thereafter. A true and correct copy as it exists in
25 the Court’s records is attached hereto as Exhibit 8.
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{00014196.1}
REQUEST FOR JUDICIAL a IN SUPPORT OF OPPOSITION TO
MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
1 Dated: October lé , 2020 REYNOLDS TILBURY WOODWARD LLP
By: Dedbe C Leen
/ Arthur G. Woodward
Jake C. Weaver
Attorneys for Plaintiffs
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{00014196.1} _
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO
MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT
EXHIBIT 1
Arthur G. Woodward (SBN: 142914)
Jake C. Weaver (SBN: 300962) iF
SUPERI@R CouRT ED
REYNOLDS TILBURY WOODWARD LLP COUNTY OF OFBI aayCALIFORN 1A,
11601 Blocker Drive, Suite 105
Aubum, CA 95603 JUL 29 2019
Telephone: (530) 885-8500 JAKE CHATTER
EXECUTIVE OFFICER &
Facsimile: (530) 885-8113 CLERK
Email: jweaver@rtwlawllp.com By: N. Fuchs, Deputy
Attorneys for Plaintiffs
WILLIAM W. KIRBY and WILLAIM KIRBY,
TRUSTEE OF THE WILLIAM WARNER KIRBY
2014 REVOCABLE TRUST
10 SUPERIOR COURT OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER COUNTY
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13 WILLIAM W. KIRBY, an individual;
WILLIAM KIRBY, TRUSTEE OF THE
Case No.:
8 0 oo kD
pe
14 WILLIAM WARNER KIRBY 2014 COMPLAINT
15 REVOCABLE TRUST,
Amount in controversy exceeds $25,000
16 Jury Trial Requested
Plaintiffs,
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Vv.
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19 PETE TOPLEAN, an individual;
TOP INVESTMENT PROPERTY, LLC, a
20 California limited liability company; and
21 DOES 1-20, inclusive,
22 Defendants.
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24 Plaintiffs William W. Kirby, an individual, and William Kirby, Trustee of the William
25 Warner Kirby 2014 Revocable Trust (collectively “Plaintiffs”) complain and allege against
26 Defendants Top Investment Property, LLC (“Top Investment Property”) and Pete Toplean
27 (“Toplean” and collectively “Defendants”), as follows:
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COMPLAINT
THE PARTIES
1 Plaintiff William W. Kirby is, and at all relevant times herein was, an individual
residing in Placer County, California.
2 Plaintiff the William Warner Kirby 2014 Revocable Trust is a trust organized under
California law.
3 Plaintiffs are informed and believe and thereon allege that Top Investment Property
is, and at all relevant times herein was, a California limited liability company with its principal
place of business in Roseville, CA. Plaintiffs are further informed and believe that Top Investment
Property is owned and controlled by Defendant Toplean.
10 4 Plaintiffs are informed and believe and thereon allege that Defendant Pete Toplean
11 is, and at all relevant times herein was, an individual residing in Placer County, California.
12 5 Plaintiffs are ignorant of the true names of defendants DOES 1 through 20 (“DOE
13 Defendants”), inclusive, and has therefore sued them by the foregoing names which are fictitious.
14 Plaintiffs are informed and believe and thereon allege that each of the DOE Defendants are legally
iS responsible in some manner for the occurrences herein alleged and legally and proximately caused
16 damages to Plaintiffs as hereafter alleged. Plaintiffs will amend the Complaint when the DOE
17 Defendants’ true names and capacities are ascertained. Each reference in this Complaint to
18 “Defendants” or “any of them” refers also to all defendants sued under such fictitious names.
19 6 Plaintiffs are informed and believe and thereon allege that at all times relevant herein
20 each of the Defendants, including the DOE Defendants, was and is the agent, employee and partner
21 of each of the remaining Defendants, and was, in performing the acts alleged herein, acting within
22 the scope of such agency, employment, or partnership authority.
23 BACKGROUND
24 a In December 2015, Plaintiff William Kirby purchased the real property located at
25 5125 Eagles Nest, Auburn, CA 95603 (the “Property”), for a purchase price of $905,000. The
26 Property is within the County of Placer, State of California.
27 8 Plaintiff William Kirby subsequently transferred title to the Property to William
28 Kirby, Trustee of the William Warner Kirby 2014 Revocable Trust.
2
COMPLAINT
9 Defendants Pete Toplean and Top Investment Property constructed the Property.
Although Top Investment Property is the entity that transferred title to Plaintiff Kirby, Plaintiffs are
informed that Pete Toplean and Top Investment Property, jointly, were the “Builders” of the
Property. Indeed, the permit and City related documents relating to the construction of the Property
is in Pete Toplean’s name as an individual.
10. Plaintiffs are informed and believe that Defendants constructed the improvements on
the Property as new residential construction. Plaintiffs are further informed and believe that neither
Defendant (nor any other person) occupied the Property before selling to Plaintiff Kirby. This fact
is confirmed by the Real Estate Transfer Disclosure Statement and other disclosure forms.
10 ll. After the close of escrow, Plaintiffs discovered that the back concrete patio appeared
11 to be experiencing significant vertical and lateral displacement. Plaintiffs also discovered
12 significant cracking on the large columns supporting the roof of the home.
13 12. Field observations reveal that the rear patio has sunk in excess of 6 inches in the
14 corner.
15 13. On May 21, 2019, Plaintiff, by and through counsel, served Notice to Builder on
16 Defendants pursuant to California Civil Code section 910 via Certified Mail. Defendants failed to
17 acknowledge receipt of the notice within 14 days after receipt.
18 14. Plaintiffs are now informed and believe that Defendants were aware of the issues
19 relating to the vertical and lateral displacement and cracking in the rear patio (as well as other
20 conditions alleged herein) before Plaintiff Kirby purchased the Property, but made material
21 misrepresentations and omissions regarding the true extent of the defects.
22 15. Defendants stated in the Seller Property Questionnaire that “minor settling cracks
23 will be sealed.” Accordingly, Defendants were aware of the settling problems. Other disclosure
24 forms refer to “minor” cracks in concrete on the rear patio. Although Defendants disclosed the
25 presence of “minor settling cracks,” this disclosure was misleading. Indeed, the settling is by no
26 means “minor.” Moreover, as the builder of the Property, Defendant knew or should have known
27 that a serious problem existed. Plaintiffs, on the other hand, did not have knowledge or access to
28 the material facts sufficient to evaluate or investigate the conditions on the Property. In fact,
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COMPLAINT
Defendants informed Plaintiff Kirby that all new construction experiences “some settling,” but that
Plaintiff Kirby should not be concerned with the settling at the Property.
16. Indeed, when Plaintiff Kirby purchased the Property, he was led to believe that the
home was properly constructed by licensed contractors and he would be entitled to all protections
available for new residential construction. Plaintiff Kirby reasonably relied on these representations
in deciding to purchase the Property.
lie Plaintiffs are now informed and believe that Defendants constructed the Property as
an “owner-builder” without any contractor’s license. Plaintiffs are also informed and believe that
Defendants hired non-licensed subcontractors to perform work on the Property.
10 18. Plaintiffs are informed and believe that Defendants made material misrepresentations
i and omissions in connection with the construction of the Property because, among other reasons,
12 Defendants do not qualify for any exemption to the licensing laws.
13 FIRST CAUSE OF ACTION
14 (Violation of Civil Code Section 896 against Top Investment Property and Pete Toplean)
15 19. Plaintiffs reallege and incorporate by reference each and every allegation of
16 Paragraphs 1 through 18, inclusive, as if fully set forth herein.
17 20. California Civil Code section 896(b)(1) and (b)(2) provide that with respect to
18 structural issues:
19 qd) Foundations, load bearing components, and slabs, shall not contain
20 significant cracks or significant vertical displacement.
21 Q) Foundations, load bearing components, and slabs shall not cause the
22 structure, in whole or in part, to be structurally unsafe.
23 21. Plaintiffs are informed and believe that the Property’s foundation, load bearing
24 components, and slab contain significant cracks and/or significant vertical displacement. Plaintiffs
25 are further informed and believe that the foundation, load bearing components, and slabs caused the
26 Property, in part, to be structurally unsafe. More specifically, the Property includes a large concrete
27 patio that overlooks the American River canyon rim. The concrete patio appears to sit on fill that is
28 retained by an interlocking block structural retaining wall. The retaining wall and the concrete patio
4
COMPLAINT
have experienced significant vertical displacement. Additionally, the patio is experiencing lateral
displacement from the foundation of the home itself. Additionally, the columns supporting the roof
of the home contain significant cracks.
22. California Civil Code section 896(c)(1) and (c)(2) provide that with respect to soil
issues:
@) Soils and engineered retaining walls shall not cause, in whole or in part,
damage to the structure built upon the soil or engineered retaining wall.
Q) Soils and engineered retaining walls shall not cause, in whole or in part, the
structure to be structurally unsafe.
10 23. Plaintiffs are informed and believe that one of the causes of the damages alleged
11 herein are the soils and/or retaining wall at the Property. Plaintiffs are further informed and believe
12 that the soils and engineered retaining walls caused the Property, in part, to be structurally unsafe.
13 More specifically, and as alluded to above, the concrete patio is experiencing significant vertical
14 and lateral displacement. Plaintiffs are also informed and believe that the lateral displacement is
15 causing damage to the home where the patio ties into the foundation.
16 24. Additionally, Plaintiffs are informed and believe that water may be entering the
17 cracks in the patio/deck and may be causing further damage to the structure, footings, and
18 compaction.
19 25. Upon discovering Defendants’ violations of the standards for residential construction
20 as alleged herein, Plaintiff served a Notice to Builder on Defendants pursuant to California Civil
21 Code section 910. Defendants failed to acknowledge receipt of the notice within 14 days after
22 receipt. Accordingly, Plaintiffs proceeded with the filing of this action.
23 SECOND CAUSE OF ACTION
24 (Intentional Misrepresentation against Top Investment Property; Pete Toplean; Does 1-20)
25 26. Plaintiffs reallege and incorporate by reference each and every allegation of
26 Paragraphs 1 through 25, inclusive, as if fully set forth herein.
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27. In the Real Estate Transfer Disclosure Statement signed by Defendants on November
25, 2015, Defendant Top Investment Property and Toplean represented that Defendants were not
aware of any significant defects/malfunction in, among other items, the roof, foundation, slabs,
walls, and other structural components. While Defendant Top Investment Property was the “Seller”
of the Property, Toplean signed the forms on behalf of Top Investment Property.
28. In the Seller Property Questionnaire signed by Defendants on November 25, 2015,
Defendants Top Investment Property and Pete Toplean represented that Defendants were not aware
of any defects (including past defects that have been repaired) in, among other items, roof,
foundation, soil, grading, drainage, and retaining walls.
10 29. Defendants also represented in the Seller Property Questionnaire that they were not
ll aware of any “material facts or defects affecting the Property not otherwise disclosed.” In this same
12 section, however, Defendants proceed to state “minor settling cracks will be sealed.” Other
1S disclosure forms refer to “minor” cracks in the concrete on the rear patio.
14 30. Defendant Top Investment Property, by and through Defendant Toplean, signed the
> disclosure forms.
16 31. Additionally, Plaintiff Kirby was led to believe that the Property was constructed by
17 licensed contractors.
18 32. Plaintiffs are now informed and believe that Defendants’ representations that they
19 were not aware of any defects as alleged herein, as well as Defendants’ representations that they
20 were not aware of any material facts or defects affecting the Property not otherwise disclosed, were
21 false. Plaintiffs are also informed and believe that the representations that the Property was
22 constructed by licensed contractors were false.
23 33. Plaintiffs are further informed and believe that Defendants knew the representations
24 were false or misleading when made or that Defendants made the representations recklessly and
25 without regard for the truth.
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COMPLAINT
34. Defendants intended for Plaintiff Kirby to rely on the representations because
Defendants were attempting to induce Plaintiff Kirby into purchasing the Property at a value that
did not take into account the defects. Indeed, the information subject to Defendants’
misrepresentations significantly affects the value or desirability of the Property.
35. Plaintiff Kirby reasonably relied on Defendants’ representations as demonstrated by
Plaintiff purchasing the Property. Plaintiff's reliance on Defendants’ representations was a
substantial factor in causing Plaintiffs’ harm.
36. As a direct and proximate cause of Defendants’ representations, Plaintiffs were
harmed in an amount to be proven at trial.
10 37. Defendants each intentionally, willfully, fraudulently, and maliciously engaged in
11 the acts and omissions alleged herein to defraud and oppress Plaintiff Kirby and Plaintiff is
12 therefore entitled to exemplary or punitive damages against Defendants.
13 WHEREFORE, Plaintiffs seek relief as set forth in the Prayer for Relief.
14 THIRD CAUSE OF ACTION
15 (Negligent Misrepresentation against Top Investment Property; Pete Toplean; Does 1-20)
16 38. Plaintiffs reallege and incorporate by reference each and every allegation of
17 Paragraphs 1 through 37, inclusive, as if fully set forth herein.
18 39. In the Real Estate Transfer Disclosure Statement signed by Defendants on November
19 25, 2015, Defendant Top Investment Property and Toplean represented that Defendants were not
20 aware of any significant defects/malfunction in, among other items, the roof, foundation, slabs,
21 walls, and other structural components. While Defendant Top Investment Property was the “Seller”
22 of the Property, Toplean signed the forms on behalf of Top Investment Property.
23 40. In the Seller Property Questionnaire signed by Defendants on November 25, 2015,
24 Defendants Top Investment Property and Pete Toplean represented that Defendants were not aware
25 of any defects (including past defects that have been repaired) in, among other items, roof,
26 foundation, soil, grading, drainage, and retaining walls.
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COMPLAINT
41. Defendants also represented in the Seller Property Questionnaire that they were not
aware of any “material facts or defects affecting the Property not otherwise disclosed.” In this same
section, however, Defendants proceed to state “minor settling cracks will be sealed.”
42. Plaintiffs are now informed and believe that Defendants’ representations that they
were not aware of any defects as alleged herein, as well as Defendants’ representations that they
were not aware of any material facts or defects affecting the Property not otherwise disclosed, were
not true. Plaintiffs are also informed and believe that the representations that the Property was
constructed by licensed contractors were not true.
43. Although Defendants may have honestly believed that the representations were true,
10 Defendants had no reasonable grounds for believing the representations were true when made.
11 Indeed, Defendants were the owner and builder of the Property. Defendants knew how the soils
12 were prepared and compacted. Defendants knew how the retaining wall and other structural
13 components were constructed. Defendants knew that the engineered wall and columns supporting
14 the roof were load bearing. Defendants knew the Property immediately experienced vertical
15 displacement as alleged herein. Defendants therefore did not have reasonable grounds to represent
16 to Plaintiff Kirby that they were not aware of any defects as alleged herein.
\7 44. Defendants intended that Plaintiff Kirby rely on the representations alleged herein
18 because Defendants were attempting to induce Plaintiff into purchasing the Property at a value that
19 did not take into account the defects. Indeed, the information subject to Defendants’
20 misrepresentations significantly affects the value or desirability of the Property.
21 45. Plaintiff Kirby reasonably relied on Defendants’ representations as demonstrated by
22 Plaintiff purchasing the Property. Plaintiff's reliance on Defendants’ representations was a
23 substantial factor in causing Plaintiffs’ harm.
24 46. As a direct and proximate cause of Defendants’ representations, Plaintiffs were
25 harmed in an amount to be proven at trial.
26 WHEREFORE, Plaintiffs seek relief as set forth in the Prayer for Relief.
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COMPLAINT
FOURTH CAUSE OF ACTION
(Concealment against Top Investment Property; Does 1-20)
47. Plaintiffs reallege and incorporate by reference each and every allegation of
Paragraphs 1 through 46, inclusive, as if fully set forth herein.
48. As alleged herein, Defendant Top Investment Property and Plaintiff Kirby were in a
contractual relationship involving the sale of real property. As the Seller of the Property, Defendant
Top Investment Property had a duty io disclose all material facts relating to or affecting the
Property.
49. Plaintiffs are informed and believe that Defendant Top Invesiment Property failed to
10 disclose certain facts, or disclosed some facts to Plaintiff Kirby, but intentionally failed to disclose
11 other facts making the disclosure deceptive as alleged herein.
12 50. Plaintiff Kirby did not know the concealed facts and could not have discovered the
13 concealed facts at the time of purchasing the Property because Plaintiff was not privy to the precise
14 details of how Defendant constructed the structure on the Property. Defendant, on the other hand, is
15 a builder and developer of high-end homes and knew what was required to ensure the defects
16 alleged herein would not occur.
17 51. Plaintiffs are informed and believe that Defendant intended to deceive Plaintiff by
18 concealing the facts as alleged herein. The information concealed significantly affects the value or
19 desirability of the Property.
20 52. Had the omitted information been disclosed, Plaintiff reasonably would have
21 behaved differently. Indeed, Plaintiff likely would not have purchased the Property at all.
22 53. Defendant’s concealment was a substantial factor in causing Plaintiffs’ harm.
23 54. As a direct and proximate result of Defendant’s concealment, Plaintiffs were harmed
24 in an amount to be proven at trial.
25 55. Defendants each intentionally, willfully, fraudulently, and maliciously engaged in
26 the acts and omissions alleged herein to defraud and oppress Plaintiff Kirby and Plaintiff is
27 therefore entitled to exemplary or punitive damages against Defendants.
28 WHEREFORE, Plaintiffs seek relief as set forth in the Prayer for Relief.
9
COMPLAINT
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment as follows:
1 For an award of damages in an amount to be proven at trial, including general
damages, special damages, compensatory damages, consequential damages, exemplary and/or
punitive damages;
2. For an award of attorney’s fees and costs of suit herein, as provided by contract or
law;
3 Prejudgment interest as provided by contract or law;
4 For such other and further relief as the Court considers just and proper.
10
11 Dated: July 29, 2019 REYNOLDS TILBURY WOODWARD LLP
12
13 By: (hs he a LAl CAV
14 Arthur G. Woodward
Jake C. Weaver
15 Attorneys for Plaintiffs
WILLIAM W. KIRBY and WILLAIM KIRBY,
16 TRUSTEE OF THE WILLIAM WARNER
17 KIRBY 2014 REVOCABLE TRUST
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COMPLAINT
EXHIBIT 2
POS-010
‘ATTORNEY OR PARTY WITHOUT ATTORNEY (Nama, State Barnumber, and address) ‘FOR COURT USE ONLY
Arthur G. Woodward (SBN: 142914) | Jake C. Weaver (SBN: 300962)
[~ Reynolds Tilbury Woodward, LLP
11601 Blocker Drive Ste 105
Auburn, CA 9561 SUPERIOR COURT OF CALIFORNIA
TELEPHONE NO.:(530) 885-8500 FAX NO. (Optona): (530) 885-8113 COUNTY OF PLACE!
E-MAIL ADORESS (Optona):
ATTORNEY FOR (Name): Plaintiffs SEP 19 2019
‘SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER JAKE CHATTERS
STREETADORESS: 10820 Justice Center Drive
MAILING ADDRESS: EXECUTIVE OFFICER & CLERK
By:N. Fuchs, Deputy
city aNDzip cope: Roseville, CA 95876
BRANCH NANE:
PLAINTIFFIPETITIONER: WILLIAM W. KIRBY, et al CASENUNBER:
DEFENDANT/RESPONDENT: PETE TOPLEAN, et. al SCV0043355
Rel. No. or Fle No:
AMENDED PROOF OF SERVICE OF SUMMONS
194705
(Separate proof of service is required for each party served.)
At the time of service | was at least 18 years of age and not a party to this action.
I served copies of:
summons
complaint
Alternative Dispute Resolution (ADR) package
Civil Case Cover Sheet (served in complex cases only)
cross-complaint
other (specify documents): A Case Management Conference Has Been Scheduled
Party served (specify name of party as shown on documents served):
Pete Toplean, an individual
b, Oo Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person
under item 5b on whom substituted service was made) (specify name and relationship to the party namad in item 3a):
Address where the party was served: 3188 Spahn Ranch Road
Roseville, CA 95661
| served the party (check proper box)
a. L] by personal service, | personally delivered the documents listed in item 2 to the party or person authorized to
receive service of process for the party (1) on (date): (2) at (time)
vo Ed by substituted service, On (date): 8/05/2019 at (time): 2:18pm Heft the documents listed in itam 2 with or
in the prasence of (name and title or relationship to person indicated in item 3): Dave Toplean, Agent's Son
(1) [7] (business) a person at least 18 years of age apparently in charge at the office or usual place of business
of the person to be served. | informed him or her of the general nature of the papers,
2) 2 (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual
place of abode of the party. | informed him or her of the general nature of the papers.
@® CI (physical addreas unknown) a person at least 18 years of age apparently in charge at the usual mailing
address of the person to be served, other than a United States Postal Service post office box. | informed
him or her of the general nature of the papers.
@ Bg | therealter mailed (by first-class, postage prepaid) copies of the documents fo the person to be served
at the place where the copies were left (Code Civ. Proc., § 415.20). | mailed the documents on
(date): 8/08/2019 from (city): Sacramento, CA a declaration of mailing is attached.
(5) [J Jattach a declaration of diligance stating actions taken first to attempt personal service.
Page1 of
Form Adopted for Mandatory Use AMENDED _ PROOF OF SERVICE OF SUMMONS Gade of Givit Procedure, § 417.10
Judicial Counel of Calfomia
POS-010 (Rev. Januaryf, 2007]
/o
E
PLAINTIFF/PETITIONER:WILLIAM W. KIRBY, et al. CASE NUMBER:
EFENDANT/RESPONDENT:
PETE TOPLEAN, et. al. ISCV0043355
5. ¢, [] by mail and acknowledgment of receipt of service. | mailed the documents listed in item 2 to the party, to the
address shown in item 4, by first-class mail, postage prepaid,
(1) on (date): (2) from (city):
(3) [] with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed
tome. (Attach completed Notice and Acknowledgement of Receipt) (Cede Civ. Proc., § 415.30.)
(4) [J] to an address outside Calfornia with return receipt requested. (Code Civ. Proc., § 415.40.)
d. [7] by other means (specify means of service and authorizing code section):
7) Additionat page describing service is attached.
6. The “Notice to the Person Serve" (on the summons) was completed as follows:
as an individual defendant.
to as the person sued under the fictitious name of (specify):
« [7] as occupant.
aC] On behalf of (specify):
under the following Code of Civil Procedure section:
[1 418.10 (comoration) (7) 418.95 (business organization, form unknown)
[2] 416.20 (defunct corporation) 5) 418.60 (minor)
{[] 416.30 Goint stock company/association) [7] 418,70 (ward or conservatee)
[J 416.40 (association or partnership) [J 416.90 (authorized person)
7) 416.50 (public entity) 415.46 (occupant)
CD other:
Person who served papers
Name: Shawn Sardia, OnDemand Legal, Inc.
Address: 901 H Street, Suite 107, Sacramento, CA 95814
Telephone number: 916-329-8630
The fee for service was: $44.00
tam:
(1) [_] nota registered Califomia process server.
(2) [] exempt from registration under Business and Professions Code section 22350(b).
3) Ed @ registered California process server.
@ owner employee [__] independent contractor.
(il) Registration No.: 2008-05
(iii) County: Sacramento
8. [5€] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
or
9. [] 1am a California sheriff or marshal and | certify that the foregoing is true and correct.
Date: August 12, 2019
Shawn Sardia
(NAME OF PERSON WHO SERVED PAPERSISHERIFF OR MARSHAL) Pan. (SIGNATURE) Selori
POS-010 (Rev. January 1, 2007] Pago? of 2
PROOF OF SERVICE OF SUMMONS
LAINTIFF/PETITIONER: WILLIAM W. te 7 CASE NUMBER:
Y, et al. {
DEFENDANT/RESPONDENT:PETE TOPLEAN, et. al. SCV0043355
DECLARATION OF DILIGENCE
1 | am over the age of 18 years of age and not as party to this action.
2. This declaration states the efforts made to first effect personal service on the party to be served below.
a, Party to be served: Pete Toplean, an individual
b. Address’s Attempted:
| Residence: 3188 Spahn Ranch Road Roseville, CA 95661
I. Business:
oO Residence Business address was unknown at the time of service.
Attempts made to first effect personal service are enumerated below:
4 8-02-19 10:19am; No answer at the door.
2. 8-04-19 6:55pm; Per Agent's wife, Jane Doe W F 47-50 5'4" 140 lbs blond brn eyes, He is not home.
3. 8-05-19 2:18pm; Subject not available, | explained the general nature of the documents being served, and sub
served them.
Person serving:
(c) Registered California process server
(d) Employee or independent contractor
(h) Name, address, telephone number, and, if applicable, county of registration and number:
Server Name: Shawn Sardia, OnDemand Legal, |nc.
Address; 901 H Street. Suite 107. Sacramento, CA 95814
Phone Number: 916-329-8630
County: Sacramento Registration No.: 2008-05
I declare under penalty of perjury under the laws of the State of California that the foregoing is, 1@ and correct.
Date: August 12, 2019
(SIGNATURE)
Refi 194705
Form Approved for Optional use DECLARATION OF DILIGENCE Code of Civil Procedure, §417.10
Judicial Council of California ‘www.courtinfo.ca. gov
MC-031 [Rev. January 1, 2006]
EXHIBIT 3
CIV-100
ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO.: FOR COURT USE ONLY
nue: Jake C. Weaver 300962
rirunawe: Reynolds Tilbury Woodward LLP
streetaporess: 11601 Blocker Drive, Suite 105
ey: Auburn state: CA zipcove: 95603
TELEPHONE No. (530) 885-8500 raxno: (530) 885-8113 SUPERIOR COURT ED. ous
Emaaooress: Jweaver@rtwlawllp.com JUNTY OF PLACER
ATTORNEY FOR (name): Plaintiffs
SUPERIOR COURT OF CALIFORNIA, COUNTY OF Placer
SEP 19 2019
street aopress: 10820 Justice Center Drive JAKE CHATTERS
MAILING ADDRESS: EXECUTIVE OFFICER & CLERK
crrvanozip cove: RoSeville, CA 95678 By: N. Fuchs, Deputy
BRANCH NAME:
Plaintiff/Petitioner: William W. Kirby, an individual
Defendant/Respondent: Pete Toplean, an_ individual
REQUEST FOR = [XJ Entry of Default (J Clerk's Judgment CASE NUMBER:
(Application) CJ Court Judgment CV0043355
Not for use in actions under the Fair Debt Buying Practices Act (Civ. Code, § 1788.50 et seq.) (see C/V-105)
BY FAX
1. TO THE CLERK: On the complaint or cross-complaint filed
a. on (date): 6-29-19
b. by (name): William W. Kirby
c. KQ Enter default of defendant (names): Pete Toplean
d. (CJ) | request a court judgment under Code of Civil Procedure sections 585(b), 585(c), 989, etc., against defendant
(names):
(Testimony required. Apply to the clerk for a hearing date, unless the court will enter a judgment on an affidavit under
Code Civ. Proc., § 585(d).)
e. [2] Enter clerk's judgment
(1) (CJ for restitution of the premises only and issue a writ of execution on the judgment. Code of Civil Procedure section
1174(c) does not apply. (Code Civ. Proc., § 1169.)
CA} Include in the judgment all tenants, subtenants, named claimants, and other occupants of the premises. The
Prejudgment Claim of Right to Possession was served in compliance with Code of Civil Procedure section
415.46.
(2) [LJ under Code of Civil Procedure section 585(a). (Complete the declaration under Code Civ. Proc., § 585.5 on the
reverse (item 5).)
(3) (2) for default previously entered on (date):
Judgment to be entered. Amount Credits acknowledged Balance
Demand of complaint.....
Statement of damages *
(1) Special .....
(2) General
Interest
Costs (see reverse)
Attorney fees
TOTALS
Daily damages were demanded in complaint at the rate of: $ per day beginning (date):
(* Personal injury or wrongful death actions; Code Civ. Proc., § 425.11.)
3. [2] (Check if filed in an unlawful detainer case.) Legal document assistant or unlawful detainer assistant information is on the
reverse (complete item 4).
Date: September 19, 2019
Jake C. Weaver
(TYPE OR PRINT.NAME)
> C Lika —
(SIGNATURE OF PLAINTIFF OR ATTORNEY FOR PLAINTIFF)
FOR COURT (1) a Default entered as requested on (date): SEP 19 2019
USE ONLY (2) Default NOT entered as requested (state reason):
lerk, by N. FUCHS — _, Deputy Page 1 of2
Form Adopted for Mandatory Use Code of Civil Procedure, §§ 585-587, 1169
Judicial Council of California cB Essential REQUEST FOR ENTRY OF DEFAULT ‘courts.ca.gov
CIV-100 [Rev January 1, 2018] eebcom f2|Forms: (Application to Enter Default) Kirby, William
(~
=
CiV-100
PlaintiffPetitioner: William W. Kirby, an individual CASE NUMBER:
DefendantRespondent.| Pete Toplean, an individual $CV0043355
4. Legal document assistant or unlawful detainer assistant (Bus. & Prof. Code, § 6400 et seq.). A legal document assistant or
unlawful detainer assistant (2) did [QQ didnot for compensation give advice or assistance with this form. If declarant has
received any help or advice for pay from a legal document assistant or unlawful detainer assistant, state:
a. Assistant's name: c. Telephone no.:
b. Street address, city, and zip code: d. County of registration:
e. Registration no.:
f. Expires on (date):
Q Declaration under Code of Civ. Pras., § 585.5 (for entry of default under Code Civ. Proc., § 585(a)). This action
a.{} is QQ) isnot ona contract or instalment sale for goods or services subject to Civ. Code, § 1801 et seq. (Unruh Act).
b. CQ is EQ] isnot onaconditional sales contract subject to Civ. Code, § 2981 et seq. (Rees-Levering Motor Vehicle Sales
and Finance Act).
c. (J is (QQ isnot onan obligation for goods, services, loans, or extensions of credit subject to Code Civ. Proc., § 395(b).
Declaration of mailing (Code Civ. Proc., § 587). A copy of this Request for Entry of Default was
a. Ql not mailed to the following defendants, whose addresses are unknown to plaintiff or plaintiff's attorney (names):
b. (] mailed first-class, postage prepaid, in a seale