Preview
ELECTRONICALLY FILED
KATHLEEN C. LYON, CSB # 236224 Superior Court of California,
klyon@asilaw.org County of Placer
KATRINA L. JOHNSON, CSB #213479 10/27/2020
kjohnson@asilaw.org By: Olivia Lucatuorto, Deputy Clerk
ARONOWITZ SKIDMORE LYON
A Professional Law Corporation
200 Auburn Folsom Road, Suite 305
Auburn, California 95603
Telephone: (530) 823-9736
Fax: (530) 823-5241
Attorneys for Terry Murphy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
10 RUSSELL ROARK, Case No.: S-CV-0044249
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11 DEFENDANT TERRY MURPHY’S EX
- SKIDMORE - LYON
PLAINTIFF, PARTE APPLICATION TO HEAR
Tel (530)823-9736, Fax (530) 823-5241
12 DEFENDANT’S DEMURRER TO THE
Corporation
vs. FIRST AMENDED COMPLAINT AT ITS
13 EARLIEST AVAILABLE DATE
TERRY MURPHY; and DOES | through 10,
14 inclusive,
Law
Date: October 28, 2020
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Professional
DEFENDANTS. Time: 8:00am
ARONOWITZ
16 Dept.:42
17 Complaint: February 13, 2020
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FAC: June 29, 2020
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22 Defendant, TERRY MURPHY (‘Defendant” or “Murphy”) herby submits the following
23 ex parte application to hear Defendant’s demurrer (“Demurrer”) to the first amended complaint at
24 the court’s earliest available date.
25 INTRODUCTION
26 It is undisputed and in the complaint that plaintiff RUSSELL ROARK (“Roark’’) and
27 defendant Murphy were boyfriend and girlfriend for twelve years from 2005 until approximately
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Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC
August 2017. During that time, in April 2014, Murphy purchased a rental property (the
“Property”) to which she took title in her name alone.
In February 2020, Roark made an all new claim that he and Murphy had an oral
agreement that Murphy would put his name on title to the Property as a 50% owner. Roark’s
complaint says he did not put himself on title at the time of the purchase because he was evading
tax creditors (being the IRS and the State of California tax liens). Roark’s complaint never states
when Murphy was supposed to put him on title or how that transfer would be affected for gift tax
and assessment purposes. Roark’s complaint further requests a partition, which caused Roark to
put a lis pendens on the Property.
10 After the parties met and conferred on numerous reasons for demurrer to the complaint,
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
1] Roark filed a first amended complaint (“FAC”) and, in Murphy’s opinion, did not cure any of the’
- SKIDMORE - LYON
Tel (530)823-9736, Fax (530) 823-5241
Corporation
12 basis for demurrer. Murphy demurred to the FAC, which was set for hearing on October 23,
13 2020 in Department 3 of the Historic Courthouse in Auburn, CA. The Demurrer is based on
14 statute of frauds, statute of limitations, unclean hands, laches, and procedural issues, like not
Law
15
Professional
filing a verified complaint to quiet title. The Demurrer was fully and timely briefed. However,
ARONOWITZ
16 pursuant to the tentative ruling, the hearing was continued to November 13, 2020, presumably
17 based on Department 3’s workload.
A
18 When the tenants on the Property gave notice they would be vacating the Property in
19 June 2020, the Property was listed for sale in July 2020. Currently there is no tenant and no rent
20 to cover the mortgage on the Property, which mortgage is solely in Murphy’s name. Murphy has
21 been paying the mortgage.
22 On or about August 25, 2020 an offer was made on the Property. However, the buyer
23 dropped out when learning of the lis pendens despite an offer for a lease option until the matter
24 was resolved. Further offers were few, due to the lis pendens. Currently there are two very good
25 offers on the Property. One offer is all cash, 30 day close. It is believed there is urgency to the
26 all-cash buyer to moving in before the snow comes. Roark was asked to remove the lis pendens
27 on the condition that all proceeds from the sale would be held in escrow pending the outcome of
28 the Court’s determination of Roark’s interest in the Property. Considering Roark has a partition
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Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC
action pending, this seemed reasonable. Roark refused to removed the lis pendens so the sale
could go through.
Murphy believed the Demurrer would be heard on October 23, 2020 and told the two
potential buyers that it might, or might not, result in a dispositive ruling that could cause the lis
pendens to be withdrawn. One of the potential buyers was willing to wait. Now, with a three-
week delay in the hearing, Murphy will lose this potential sale.
Counsel for Roark, Erin Riswold, was informed on Friday, October 23, 2020, that
Murphy would move ex parte to attempt to have the Demurrer heard earlier. Ms. Riswold replied
that she would not be opposing the motion. Counsel was informed on October 27, 2020 at
10 9:30a.m. that ex parte was set for hearing for October 28, 2020.
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11
: SKIDMORE - LYON
GOOD CAUSE EXISTS TO TAKE THE HEARING OFF CALENDAR
Tel (530)823-9736, Fax (530) 823-5241
Corporation
12 California Rules of Court, Rule 3.1202(c) requires that, “An applicant must make an
13 affirmative factual showing in a declaration containing competent testimony based on personal
14 knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief
Law
15 ex parte.” (/d.)
Professional
ARONOWITZ
16 Murphy is requesting the Court to set the hearing on Demurrer for the earliest time
17 available to the Court. The motion is fully briefed and opposing counsel does not object. Murphy
A
18 currently has a very good all-cash offer on the Property. She has already lost one potential buyer
19 due to the lis pendens on the Property and she will lose this offer as the buyer wants to move into
20 the Property in thirty days. Furthermore, the Property is in Colfax and the imminent changes in
21 weather will delay selling the Property. Meanwhile, Murphy is paying all costs associated with
22 the Property including mortgage, utilities, property tax and maintenance. During the snows, the
23 Property requires constant and immediate attention. Without a resident, it will be extremely
24 difficult, if not impossible to deal with weather matters, which could lead to swift deterioration
25 of the Property.
26 If the Court rules definitively in Murphy’s favor on Demurrer, the lis pendens will be
27 removed. If the Court does not rule in Murphy’s favor on Demurrer, Murphy will at least have
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Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC
notice and time to properly secure the Property for the winter. Currently, Murphy is left with the
potential for substantial damage to the Property by not knowing how to prepare for the winter.
Roark will suffer no prejudice whatsoever by the Demurrer being heard prior to November 13,
2020 as evidenced by Counsel Riswold’s communication of no objection, but also because
Murphy has agreed to escrow the proceeds pending final determination of this action.
The only consideration is the bandwidth of the Court, which the parties are keenly aware
of and sympathetic to. Therefore, this request is based on the balance of prejudice to Murphy and
the ability of any department of the Court to hear this motion. Murphy respectfully requests that
the Court hear this motion at its earliest availability.
10
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11
: SKIDMORE +: LYON
Dated: October 27, 2020 Respectfully submitted,
Tel (530)823-9736, Fax (530) 823-5241
Corporation
12 ARONOWITZ SKIDMORE LYON
A Professional Law Corporation
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py: Kye )
taw
KATHLEEN C. [YON—
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Professional
Attorney for Terry Murphy
ARONOWITZ
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Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC
Declaration of Terry Murphy
I Terry Murphy, declare as follows:
1. I am a defendant and moving party in the above referenced matter. I have personal
knowledge of the facts stated herein. If called as a witness, I would be competent to testify about
those facts. I am making this declaration in support of my ex parte application to hear the
Demurrer at its earliest available date.
2. When the tenants on the Property gave notice they would be vacating the Property on, or
about June 2020, the Property was listed for sale in July 2020. Currently there is no tenant and no
rent to cover the mortgage on the Property, which mortgage is solely in my name and I have
10 been paying the mortgage.
200 Auburn Folsom Road, Suite 305, Auburn, CA 95603
11 3. On or about August 25, 2020, an offer was made on the Property. However, the buyer
ARONOWITITZ + SKIDMORE - LYON
Tel (530)823-9736, Fax (530) 823-5241
dropped out when learning of the lis pendens, despite a lease option being offered. Further offers
Carporation
12
13 were few, due to the lis pendens. Currently there are two very good offers on the Property. One
14 offer is all cash, 30 day close. I believe there is urgency to the all-cash buyer to moving in before
Law
15 the snow comes. Roark was asked to remove the lis pendens on the condition that I agreed all
Professional
16 proceeds from the sale would be held in escrow pending the outcome of the Court’s
17 determination of Roark’s interest in the Property. Roark refused to remove the lis pendens.
A
18 4. I thought the Demurrer would be heard on October 23, 2020 and told the two potential
19 buyers that it might, or might not, result in a ruling that could cause the lis pendens to be
20 withdrawn. One of the potential buyers was willing to wait. Now, with a three-week delay in the
21 hearing, I will lose this potential sale.
5. I am a sole proprietor of my business and cannot afford to continue making all of the
23 house payments with no rental income.
24 I declare under a penalty of perjury under the laws of the United States of America that
25 the foregoing is true and correct. Executed October 27, 2020 in Auburn, California.
26
27 VW
Terry Murphy sO
28 Defendant and Moving Party
5
Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC
Declaration of Kathleen C. Lyon
I, Kathleen C. Lyon, declare as follows:
1. I am an attomey at law, duly admitted to practice before all the courts of the State of
California, and partner in my firm, Aronowitz Skidmore Lyon, attorney for Defendant, Terry
Murphy.
2. I have personal knowledge of the facts stated herein. If called as a witness, I would be
competent to testify about those facts. | am making this declaration in support of Moving Parties’
ex parte application to hear Moving Party’s Demurrer at its earliest available date.
3. On Friday, October 23, 2020, I notified attorney for Roark, Erin Riswold, of the offer of
10 purchase on the Property and asked if Roark, considering his complaint to partition, would
Road, Suite 305, Auburn, CA 95603
1] withdraw the lis pendens if Murphy agreed to hold the proceeds in escrow pending final
ARONOWITZ.- SKIDMORE - LYON
Tel (530)823-9736, Fax (530) 823-5241
Corpesration
12 disposition of this action. Ms. Riswold responded that Roark would not remove the lis pendens.
13 4. On Friday, October 23, 2020, I notified attorney Erin Riswold of the intent to move ex
14 parte to determine if the Court could hear the motion on the Demurrer at a time earlier than
Law
15 November 13, 2020. Ms. Riswold responded to me via email that she would not be opposing the
Professional
16 motion.
200 Auburn Folsom
17 5. On Tuesday, October 27, 2020 at 9:30a.m., I notified counsel that ex parte was set for
A
18 hearing for October 28, 2020.
19 I declare under a penalty of perjury under the laws of the United States of America that
20 the foregoing is true and correct. Executed October 27, 2020 in Auburn, California.
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23 Sk, thes Z
24 KATHLEEN C. (Von
25 Attomey for Terry Murphy
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Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC
Preview
ELECTRONICALLY FILED KATHLEEN C. LYON, CSB # 236224 Superior Court of California, klyon@asilaw.org County of Placer KATRINA L. JOHNSON, CSB #213479 10/27/2020 kjohnson@asilaw.org By: Olivia Lucatuorto, Deputy Clerk ARONOWITZ SKIDMORE LYON A Professional Law Corporation 200 Auburn Folsom Road, Suite 305 Auburn, California 95603 Telephone: (530) 823-9736 Fax: (530) 823-5241 Attorneys for Terry Murphy SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER 10 RUSSELL ROARK, Case No.: S-CV-0044249 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 DEFENDANT TERRY MURPHY’S EX - SKIDMORE - LYON PLAINTIFF, PARTE APPLICATION TO HEAR Tel (530)823-9736, Fax (530) 823-5241 12 DEFENDANT’S DEMURRER TO THE Corporation vs. FIRST AMENDED COMPLAINT AT ITS 13 EARLIEST AVAILABLE DATE TERRY MURPHY; and DOES | through 10, 14 inclusive, Law Date: October 28, 2020 15 Professional DEFENDANTS. Time: 8:00am ARONOWITZ 16 Dept.:42 17 Complaint: February 13, 2020 A FAC: June 29, 2020 18 19 20 21 22 Defendant, TERRY MURPHY (‘Defendant” or “Murphy”) herby submits the following 23 ex parte application to hear Defendant’s demurrer (“Demurrer”) to the first amended complaint at 24 the court’s earliest available date. 25 INTRODUCTION 26 It is undisputed and in the complaint that plaintiff RUSSELL ROARK (“Roark’’) and 27 defendant Murphy were boyfriend and girlfriend for twelve years from 2005 until approximately 28 I Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC August 2017. During that time, in April 2014, Murphy purchased a rental property (the “Property”) to which she took title in her name alone. In February 2020, Roark made an all new claim that he and Murphy had an oral agreement that Murphy would put his name on title to the Property as a 50% owner. Roark’s complaint says he did not put himself on title at the time of the purchase because he was evading tax creditors (being the IRS and the State of California tax liens). Roark’s complaint never states when Murphy was supposed to put him on title or how that transfer would be affected for gift tax and assessment purposes. Roark’s complaint further requests a partition, which caused Roark to put a lis pendens on the Property. 10 After the parties met and conferred on numerous reasons for demurrer to the complaint, 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 1] Roark filed a first amended complaint (“FAC”) and, in Murphy’s opinion, did not cure any of the’ - SKIDMORE - LYON Tel (530)823-9736, Fax (530) 823-5241 Corporation 12 basis for demurrer. Murphy demurred to the FAC, which was set for hearing on October 23, 13 2020 in Department 3 of the Historic Courthouse in Auburn, CA. The Demurrer is based on 14 statute of frauds, statute of limitations, unclean hands, laches, and procedural issues, like not Law 15 Professional filing a verified complaint to quiet title. The Demurrer was fully and timely briefed. However, ARONOWITZ 16 pursuant to the tentative ruling, the hearing was continued to November 13, 2020, presumably 17 based on Department 3’s workload. A 18 When the tenants on the Property gave notice they would be vacating the Property in 19 June 2020, the Property was listed for sale in July 2020. Currently there is no tenant and no rent 20 to cover the mortgage on the Property, which mortgage is solely in Murphy’s name. Murphy has 21 been paying the mortgage. 22 On or about August 25, 2020 an offer was made on the Property. However, the buyer 23 dropped out when learning of the lis pendens despite an offer for a lease option until the matter 24 was resolved. Further offers were few, due to the lis pendens. Currently there are two very good 25 offers on the Property. One offer is all cash, 30 day close. It is believed there is urgency to the 26 all-cash buyer to moving in before the snow comes. Roark was asked to remove the lis pendens 27 on the condition that all proceeds from the sale would be held in escrow pending the outcome of 28 the Court’s determination of Roark’s interest in the Property. Considering Roark has a partition 2 Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC action pending, this seemed reasonable. Roark refused to removed the lis pendens so the sale could go through. Murphy believed the Demurrer would be heard on October 23, 2020 and told the two potential buyers that it might, or might not, result in a dispositive ruling that could cause the lis pendens to be withdrawn. One of the potential buyers was willing to wait. Now, with a three- week delay in the hearing, Murphy will lose this potential sale. Counsel for Roark, Erin Riswold, was informed on Friday, October 23, 2020, that Murphy would move ex parte to attempt to have the Demurrer heard earlier. Ms. Riswold replied that she would not be opposing the motion. Counsel was informed on October 27, 2020 at 10 9:30a.m. that ex parte was set for hearing for October 28, 2020. 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 : SKIDMORE - LYON GOOD CAUSE EXISTS TO TAKE THE HEARING OFF CALENDAR Tel (530)823-9736, Fax (530) 823-5241 Corporation 12 California Rules of Court, Rule 3.1202(c) requires that, “An applicant must make an 13 affirmative factual showing in a declaration containing competent testimony based on personal 14 knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief Law 15 ex parte.” (/d.) Professional ARONOWITZ 16 Murphy is requesting the Court to set the hearing on Demurrer for the earliest time 17 available to the Court. The motion is fully briefed and opposing counsel does not object. Murphy A 18 currently has a very good all-cash offer on the Property. She has already lost one potential buyer 19 due to the lis pendens on the Property and she will lose this offer as the buyer wants to move into 20 the Property in thirty days. Furthermore, the Property is in Colfax and the imminent changes in 21 weather will delay selling the Property. Meanwhile, Murphy is paying all costs associated with 22 the Property including mortgage, utilities, property tax and maintenance. During the snows, the 23 Property requires constant and immediate attention. Without a resident, it will be extremely 24 difficult, if not impossible to deal with weather matters, which could lead to swift deterioration 25 of the Property. 26 If the Court rules definitively in Murphy’s favor on Demurrer, the lis pendens will be 27 removed. If the Court does not rule in Murphy’s favor on Demurrer, Murphy will at least have 28 3 Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC notice and time to properly secure the Property for the winter. Currently, Murphy is left with the potential for substantial damage to the Property by not knowing how to prepare for the winter. Roark will suffer no prejudice whatsoever by the Demurrer being heard prior to November 13, 2020 as evidenced by Counsel Riswold’s communication of no objection, but also because Murphy has agreed to escrow the proceeds pending final determination of this action. The only consideration is the bandwidth of the Court, which the parties are keenly aware of and sympathetic to. Therefore, this request is based on the balance of prejudice to Murphy and the ability of any department of the Court to hear this motion. Murphy respectfully requests that the Court hear this motion at its earliest availability. 10 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 : SKIDMORE +: LYON Dated: October 27, 2020 Respectfully submitted, Tel (530)823-9736, Fax (530) 823-5241 Corporation 12 ARONOWITZ SKIDMORE LYON A Professional Law Corporation 13 14 py: Kye ) taw KATHLEEN C. [YON— 15 Professional Attorney for Terry Murphy ARONOWITZ 16 17 A 18 19 20 21 22 23 24 25 26 27 28 4 Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC Declaration of Terry Murphy I Terry Murphy, declare as follows: 1. I am a defendant and moving party in the above referenced matter. I have personal knowledge of the facts stated herein. If called as a witness, I would be competent to testify about those facts. I am making this declaration in support of my ex parte application to hear the Demurrer at its earliest available date. 2. When the tenants on the Property gave notice they would be vacating the Property on, or about June 2020, the Property was listed for sale in July 2020. Currently there is no tenant and no rent to cover the mortgage on the Property, which mortgage is solely in my name and I have 10 been paying the mortgage. 200 Auburn Folsom Road, Suite 305, Auburn, CA 95603 11 3. On or about August 25, 2020, an offer was made on the Property. However, the buyer ARONOWITITZ + SKIDMORE - LYON Tel (530)823-9736, Fax (530) 823-5241 dropped out when learning of the lis pendens, despite a lease option being offered. Further offers Carporation 12 13 were few, due to the lis pendens. Currently there are two very good offers on the Property. One 14 offer is all cash, 30 day close. I believe there is urgency to the all-cash buyer to moving in before Law 15 the snow comes. Roark was asked to remove the lis pendens on the condition that I agreed all Professional 16 proceeds from the sale would be held in escrow pending the outcome of the Court’s 17 determination of Roark’s interest in the Property. Roark refused to remove the lis pendens. A 18 4. I thought the Demurrer would be heard on October 23, 2020 and told the two potential 19 buyers that it might, or might not, result in a ruling that could cause the lis pendens to be 20 withdrawn. One of the potential buyers was willing to wait. Now, with a three-week delay in the 21 hearing, I will lose this potential sale. 5. I am a sole proprietor of my business and cannot afford to continue making all of the 23 house payments with no rental income. 24 I declare under a penalty of perjury under the laws of the United States of America that 25 the foregoing is true and correct. Executed October 27, 2020 in Auburn, California. 26 27 VW Terry Murphy sO 28 Defendant and Moving Party 5 Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC Declaration of Kathleen C. Lyon I, Kathleen C. Lyon, declare as follows: 1. I am an attomey at law, duly admitted to practice before all the courts of the State of California, and partner in my firm, Aronowitz Skidmore Lyon, attorney for Defendant, Terry Murphy. 2. I have personal knowledge of the facts stated herein. If called as a witness, I would be competent to testify about those facts. | am making this declaration in support of Moving Parties’ ex parte application to hear Moving Party’s Demurrer at its earliest available date. 3. On Friday, October 23, 2020, I notified attorney for Roark, Erin Riswold, of the offer of 10 purchase on the Property and asked if Roark, considering his complaint to partition, would Road, Suite 305, Auburn, CA 95603 1] withdraw the lis pendens if Murphy agreed to hold the proceeds in escrow pending final ARONOWITZ.- SKIDMORE - LYON Tel (530)823-9736, Fax (530) 823-5241 Corpesration 12 disposition of this action. Ms. Riswold responded that Roark would not remove the lis pendens. 13 4. On Friday, October 23, 2020, I notified attorney Erin Riswold of the intent to move ex 14 parte to determine if the Court could hear the motion on the Demurrer at a time earlier than Law 15 November 13, 2020. Ms. Riswold responded to me via email that she would not be opposing the Professional 16 motion. 200 Auburn Folsom 17 5. On Tuesday, October 27, 2020 at 9:30a.m., I notified counsel that ex parte was set for A 18 hearing for October 28, 2020. 19 I declare under a penalty of perjury under the laws of the United States of America that 20 the foregoing is true and correct. Executed October 27, 2020 in Auburn, California. 21 22 23 Sk, thes Z 24 KATHLEEN C. (Von 25 Attomey for Terry Murphy 26 27 28 6 Defendant’s Ex parte application to expedite Defendant’s Demurrer Hearing on the FAC