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  • Kirby, William W et al vs. Toplean, Pete et alCivil-Roseville document preview
  • Kirby, William W et al vs. Toplean, Pete et alCivil-Roseville document preview
  • Kirby, William W et al vs. Toplean, Pete et alCivil-Roseville document preview
  • Kirby, William W et al vs. Toplean, Pete et alCivil-Roseville document preview
  • Kirby, William W et al vs. Toplean, Pete et alCivil-Roseville document preview
  • Kirby, William W et al vs. Toplean, Pete et alCivil-Roseville document preview
  • Kirby, William W et al vs. Toplean, Pete et alCivil-Roseville document preview
  • Kirby, William W et al vs. Toplean, Pete et alCivil-Roseville document preview
						
                                

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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 10 IN AND FOR THE COUNTY OF PLACER COUNTY 11 12 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 18 PETE TOPLEAN, an individual; 19 TOP INVESTMENT PROPERTY, LLC, a California limited liability company; and 20 DOES 1-20, inclusive, 21 Defendants. 22 23 Pursuant to Evidence Code sections 452 and 453, Plaintiffs James Kirby and Sarah Kirby 24 Gonzalez, Co-Successor Trustees of the William Warner Kirby 2014 Revocable Trust (collectively 25 “Plaintiff’) respectfully request that this Court take judicial notice of the following in support of 26 Plaintiff's Opposition to Motion to Set Aside Default and Default Judgment. 27 1 The Complaint filed in the Superior Court of California, County of Placer, on July 28 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. e 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. 26 Ml 27 Ml 28 Mf {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 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {00014196.1} _ 3 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 11 IN AND FOR THE COUNTY OF PLACER COUNTY 12 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, 17 Vv. 18 19 PETE TOPLEAN, an individual; TOP INVESTMENT PROPERTY, LLC, a 20 California limited liability company; and 21 DOES 1-20, inclusive, 22 Defendants. 23 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: 28 Ml 1 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, 3 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. 27 iit 28 Conan 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. 26 Ml Di ML 28 Ml 6 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. 27 Ml 28 Mt a 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. 27 Mt 28 MI —— 8 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 18 19 20 21 22 23 24 25 26 27 28 10 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