Motion for Writ of Execution, Possession or Sale in Michael Stewart vs. Fresno Truck Center| Trellis.Law

On January 01, 1900 a Request,Application was filed involving a dispute between Stewart, Michael, and Fresno Truck Center, Penske Truck Leasing Co., L.P., Travelers Casualty And Surety Company Of America, for 06 Unlimited - Breach of Contract/Warranty in the District Court of Fresno County.

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Gary H. Prudian, Esq., SBN 246346
Kimberly L. Phan, Esq., SBN 326322
E-FILED
MANNING, LEAVER, BRUDER & BERBERICH, LLP
12/10/2020 3:06 PM
801 S. Figueroa St., Ste 1150 Superior Court of California
Los Angeles, California 90017 County of Fresno
Telephone: (323) 937-4730
Fax: (323) 937-6727 By: M. Meza, Deputy

Attorneys for Cross-Complainant Fresno Truck Center
dba Lee Financial Services

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

FOR THE COUNTY OF FRESNO
10

11 MICHAEL STEWART, CASE NO. 18CECG03956

12 Plaintiff, REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF CROSS-COMPLAINANT’S
13 Vv. REPLY TO CROSS-DEFENDANT’S
OPPOSITION TO APPLICATION FOR
14 FRESNO TRUCK CENTER, a corporation and WRIT OF POSSESSION AND
dba BAKERSFIELD TRUCK CENTER and TEMPORARY RESTRAINING ORDER
15 dba LEE FINANCIAL SERVICES; PENSKE
TRUCK LEASING Co., L.P., a limited Assigned to the Honorable Judge Kristi Culver
16 partnership; TRAVELERS CASUALTY AND Kapetan
SURETY COMPANY OF AMERICA, a
Ag corporation; and DOES | through 20, inclusive, [Filed concurrently with Cross-Complainant’s
Reply to Cross-Defendant’s Opposition to
18 Defendants. Application for Writ of Possession and
Temporary Restraining Order]
19
FRESNO TRUCK CENTER dba LEE Hearing:
FINANCIAL SERVICES, Date: December 17, 2020
20
Time: 3:30 PM
21 Cross-Complainant, Dept: 403

22 vs. Action Filed: October 25, 2018
Trial Date: May 24, 2021
23 MICHAEL STEWART; and ROES 1 through
20, inclusive,
24
Cross-Defendants.
25

28
=i
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CROSS-COMPLAINANT’S REPLY TO CROSS-DEFENDANT’S OPPOSITION TO
APPLICATION FOR WRIT OF POSSESSION AND TERMPORARY RESTRAINING ORDER
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Pursuant to §452 (h) of the California Evidence Code and Rule 8.252 of the California Rules of

Court, Cross-Complainant Fresno Truck Center dba Lee Financial Services (“LFS”) submit this

Request for Judicial Notice in Support of its Reply to Cross-Defendant Michael Stewart’s (“Stewart”)

Opposition to Writ of Possession and Temporary Restraining Order. LFS request an order taking

judicial notice of the following document:

1. Stewart’s Responses to Requests for Admissions, Set One, Nos. 6-9. A court may take

8 judicial notice of a plaintiff's discovery responses. See Bockrath v. Aldrich Chem. Co., Inc.

9 (1999) 21 Cal. 4th 71, 83]. Subdivision (h) of Evidence Code § 452 permits the Court to

10 take judicial notice of the records of facts and propositions that are not reasonably subject

11 to dispute and are capable of immediate and accurate determination by resort to sources of

12 reasonably indisputable accuracy. Attached hereto is a correct and accurate copy attached

13 as Exhibit A.

15 DATE: December 10, 2020 MANNING, LEAVER, BRUDER & BERBERICH,
LLP
16

17
BY,
18 Kimberly L. Phan, Esq., Attorneys for Cross-
Complainant Fresno Truck Center dba Lee
19
Financial Services
20

28
-2-
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CROSS-COMPLAINANT’S REPLY TO CROSS-DEFENDANT’S OPPOSITION TO.
APPLICATION FOR WRIT OF POSSESSION AND TERMPORARY RESTRAINING ORDER
EXHIBIT A
Alicia L. Hinton, SBN 292849
LAW OFFICE OF A.L. HINTON
1616 W. Shaw Ave., Ste. B7
Fresno, CA 93711
Telephone (559) 691-6900
Facsimile (559) 421-0373
alicia@alhintonlaw.com

Attomey for Plaintiff and Cross-Defendant, MICHAEL STEWART

SUPERIOR COURT OF CALIFORNIA

COUNTY OF FRESNO
10

11 MICHAEL STEWART, Case No.: 18CECG03956

12 PLAINTIFF’S RESPONSE TO
Plaintiff, DEFENDANT FRESNO TRUCK
13 CENTER’S REQUEST FOR
VS. ADMISSIONS, SET ONE (1)
14
FRESNO TRUCK CENTER, a corporation
15 and dba BAKERSFIELD TRUCK CENTER
and dba LEE FINANCIAL SERVICES
16 Assigned to Hon. Jeffrey Y. Hamilton
CORP.; PENSKE TRUCK LEASING CO.,
L.P., a limited partnership; TRAVELERS Dept. 501
17
CASUALTY AND SURETY COMPANY OF
18 AMERICA, a corporation; and DOES 1
through 20, inclusive,
19

20 Defendants.
Complaint Filed: October 25, 2018
21 Trial Date: July 13, 2020
AND RELATED CROSS ACTIONS.
22

24
REQUESTING PARTY: DEFENDANT, FRESNO TRUCK CENTER
25
RESPONDING PARTY: PLAINTIFF, MICHAEL STEWART
26
SET NUMBER: ONE (1)
27

28
-l-
PLAINTIFF’S RESPONSE TO DEFENDANT FRESNO TRUCK CENTER’S
REQUEST FOR ADMISSIONS, SET ONE (1)
RESPONSES TO REQUESTS FOR ADMISSION

REQUEST FOR ADMISSION NO. 1:

ADMIT that FRESNO TRUCK CENTER did not alter the odometer of the SUBJECT

TRUCK ( "SUBJECT TRUCK" means and refers to Plaintiff's used 2011 Freightliner Cascadia

motor vehicle bearing the Vehicle Identification Number 1FUJGEDV7BSAY8213 that is the

subject of this litigation).

RESPONSE TO REQUEST NO. 2:

Objection. This request invades the attomey work product in violation of CCP §§ 2018.020
and 2018.030, and calls for legal research and analysis. Alpine v. Superior Court (1968) 259
10 Cal.App.2d 45; Burke v. Superior Court (1969) 71 Cal.2d 276. The question calls for a professional

11 opinion from a lay witness; consequently the question is oppressive, harassing, and without a

12 foundational showing of competency. Further, the question is vague, ambiguous, and unintelligible
13 as to the terms “alter” and “odometer” so as to make a response impossible without speculation as

14 to the meaning of the question. In addition, plaintiff is not in the position to know with any

15 certainty what defendant FRESNO TRUCK CENTER did or did not do, therefore the request is

16 improper. Subject to and without waiving said objections, plaintiff responds as follows: plaintiff
17 has made a reasonable inquiry concerning the matter of this request and the information known or

18 readily obtainable is insufficient to enable plaintiff to admit or deny the matter.
19 REQUEST FOR ADMISSION NO. 2: ,

20 ADMIT that FRESNO TRUCK CENTER did not cause to be altered the odometer of the

21 SUBJECT TRUCK.

22 RESPONSE TO REQUEST NO. 2:

23 Objection. This request invades the attorney work product in violation of Code of Civil

24 Procedure sections 2018.020 and 2018.030, and calls for legal research and analysis. Alpine v.

25 Superior Court (1968) 259 Cal.App.2d 45; Burke v. Superior Court (1969) 71 Cal.2d 276. The

26 question calls for a professional opinion from a lay witness; consequently the question is

27 oppressive, harassing, and without a foundational showing of competency. Further, the question

28 is vague, ambiguous, and unintelligible as to the terms “altered” and “odometer” so as to make a
=2-
PLAINTIFF’S RESPONSE TO DEFENDANT FRESNO TRUCK CENTER’S
REQUEST FOR ADMISSIONS, SET ONE (1)
response impossible without speculation as to the meaning of the question. In addition, plaintiff

is not in the position to know with any certainty what defendant FRESNO TRUCK CENTER did

or did not cause to be done. Subject to and without waiving said objections, plaintiff responds as

follows: plaintiff has made a reasonable inquiry concerning the matter of this request and the

information known or readily obtainable is insufficient to enable plaintiff to admit or deny the

matter.

REQUEST FOR ADMISSION NO. 3:

ADMIT that the SUBJECT TRUCK has a gross vehicle weight rating of over 16,000

pounds.

10 RESPONSE TO REQUEST NO. 3:
11 Objection. This request invades the attorney work product in violation of Code of Civil

12 Procedure sections 2018.020 and 2018.030, and calls for legal research and analysis. Alpine v.

13 Superior Court (1968) 259 Cal.App.2d 45; Burke v. Superior Court (1969) 71 Cal.2d 276. The

14 question calls for a professional opinion from a lay witness as to the industry weight ratings of

15 vehicles; consequently, the question is oppressive, harassing, and without a foundational showing

16 of competency. Further, the question is vague, ambiguous, and unintelligible as to the term

17 “rating” so as to make a response impossible without speculation as to the meaning of the question.
18 Subject to and without waiving said objections, plaintiff responds as follows: plaintiff has made a

19 reasonable inquiry concerning the matter of this request and the information known or readily

20 obtainable is insufficient to enable plaintiff to admit or deny the matter.
21 REQUEST FOR ADMISSION NO. 4:

22 ADMIT that the SUBJECT TRUCK was sold to YOU ( "YOU" and "YOUR " mean and

refer to Plaintiff Michael Stewart, and, where appropriate, any agent acting at his direction or on

24 his behalf) "As Is."

25 RESPONSE TO REQUEST NO. 4:

26 Objection. The request calls for a legal conclusion and does not request an admission of

27 fact. The term “as-is” is a legal term of art and legal conclusion. A determination of whether the

28 vehicle was sold “as-is” requires an analysis of multiple independent facts. Therefore, this is an
-3-
PLAINTIFF’S RESPONSE TO DEFENDANT FRESNO TRUCK CENTER’S
REQUEST FOR ADMISSIONS, SET ONE (1)
improper request. Further, the request calls for a legal opinion from a lay witness; consequently

the question is oppressive, harassing, and without a foundational showing of competency. This

request also invades the attorney work product in violation of CCP §§ 2018.020 and 2018.030,

and calls for legal research and analysis. Alpine v. Superior Court (1968) 259 Cal.App.2d 45;

Burke v. Superior Court (1969) 71 Cal.2d 276. Subject to and without waiving said objections,

plaintiff responds as follows: plaintiff has made a reasonable inquiry concerning the matter of this

request and the information known or readily obtainable is insufficient to enable plaintiff to admit

or deny the matter.

REQUEST FOR ADMISSION NO. 5:

10 ADMIT that FRESNO TRUCK CENTER did not provide any express warranty on the
11 SUBJECT TRUCK in conjunction with YOUR purchase.
12 RESPONSE TO REQUEST NO. 5:
13 Objection. The request calls for a legal conclusion and does not request an admission of

14 fact. In the context of this case, the term “express warranty” is a legal term of art and whether or

15 not an express warranty exists is a legal conclusion requiring an analysis of multiple independent

16 facts. Therefore, this is an improper request. Further, the request calls for a legal opinion from a
7 lay witness; consequently the question is oppressive, harassing, and without a foundational

18 showing of competency. This request also invades the attorney work product in violation of CCP

19 §§ 2018.020 and 2018.030, and calls for legal research and analysis. Alpine v. Superior Court

20 (1968) 259 Cal.App.2d 45; Burke v. Superior Court (1969) 71 Cal.2d 276. Subject to and without

21 waiving said objections, plaintiff responds as follows: plaintiff has made a reasonable inquiry

22 concerning the matter of this request and the information known or readily obtainable is

23 insufficient to enable plaintiff to admit or deny the matter.

24 REQUEST FOR ADMISSION NO. 6:

25 ADMIT that YOU have not made any payments under the RISC ("RISC" means and refers

26 to the Retail Installment Sale Contract - Security Agreement for YOUR purchase of the SUBJECT

27 TRUCK) since May 2019.

28 Mt
4-
PLAINTIFF’S RESPONSE TO DEFENDANT FRESNO TRUCK CENTER’S
REQUEST FOR ADMISSIONS, SET ONE (1)
RESPONSE TO REQUEST NO. 6:

Objection. This request invades the attorney work product in violation of CCP §§

2018.020 and 2018.030, and calls for legal research and analysis. Alpine v. Superior Court

(1968) 259 Cal.App.2d 45; Burke v. Superior Court (1969) 71 Cal.2d 276. Further, the question

is vague, ambiguous, and unintelligible as to the term “under the RISC” so as to make a response

impossible without speculation as to the meaning of the question. Subject to and without

waiving said objections, plaintiff responds as follows: Admit.
REQUEST FOR ADMISSION NO. 7:

ADMIT that Fresno Truck Center dba Lee Financial Services Corp. has demanded that

10 YOU surrender possession of the SUBJECT TRUCK.
11 RESPONSE TO REQUEST NO. 7:

12 Objection. This request invades the attorney work product in violation of CCP §§
13 2018.020 and 2018.030. Alpine v. Superior Court (1968) 259 Cal.App.2d 45; Burke v. Superior

14 Court (1969) 71 Cal.2d 276. The question calls for a professional opinion from a lay witness;

15 consequently the question is oppressive, harassing, and without a foundational showing of

16 competency. Further, the question is vague, ambiguous, and unintelligible as to the terms

17 “demanded” and “surrender” so as to make a response impossible without speculation as to the

18 meaning of the question. Subject to and without waiving said objections, plaintiff responds as

19 follows: Admit.

20 REQUEST FOR ADMISSION NO. 8:

21 ADMIT that YOU have refused to surrender possession of the SUBJECT TRUCK.

22 RESPONSE TO REQUEST NO. 8:
23 Objection. This request invades the attorney work product in violation of CCP §§

24 2018.020 and 2018.030, and calls for legal research and analysis. Alpine v. Superior Court

25 (1968) 259 Cal.App.2d 45; Burke v. Superior Court (1969) 71 Cal.2d 276. Further, the question

26 is vague, ambiguous, and unintelligible as to the term “surrender” so as to make a response

27 impossible without speculation as to the meaning of the question. Subject to and without

28 waiving said objections, plaintiff responds as follows: Admit.
-5-
PLAINTIFF’S RESPONSE TO DEFENDANT FRESNO TRUCK CENTER’S
REQUEST FOR ADMISSIONS, SET ONE (1)
REQUEST FOR ADMISSION NO. 9:
ADMIT that YOU continue to operate the SUBJECT TRUCK.

RESPONSE TO REQUEST NO. 9:

Objection. This request invades the attomey work product in violation of CCP §§

2018.020 and 2018.030, and calls for legal research and analysis. Alpine v. Superior Court

(1968) 259 Cal.App.2d 45; Burke v. Superior Court (1969) 71 Cal.2d 276. Further, the question

is vague, ambiguous, and unintelligible as to the term “operate” so as to make a response

impossible without speculation as to the meaning of the question. Subject to and without
waiving said objections, plaintiff responds as follows: Admit.

1d.

12 Dated: _9-/%+ 20 LAW OFFICE OF A.L. HINTON

14
—(haters
15: Alicia L. Hinton
Attorney for Plaintiff and Cross-Defendant,
16 MICHAEL STEWART
17

26
27

28
26=
PLAINTIFF’S RESPONSE TO DEFENDANT FRESNO TRUCK CENTER’S
REQUEST FOR ADMISSIONS, SET ONE (1)
VERIFICATION

I, MICHAEL STEWART, am the Plaintiff in the above action. I have read the foregoing

Responses to DEFENDANT FRESNO TRUCK CENTER’S REQUEST FOR ADMISSIONS

PLAINTIFF MICHAEL STEWART, SET ONE. The matters stated herein are true of my own

knowledge and on this basis I declare under penalty of perjury under the laws of the State of

Califomia that the foregoing is true and correct to the best of my knowledge.

Executed the \S\__ day of May, 2020, at Bakersfield, California

( fe cos
Michael Stewart
PROOF OF SERVICE

STATE OF CALIFORNIA)
) ss
COUNTY OF FRESNO )
I, the undersigned, am employed in the City and County of Fresno by the Law Office of
ALL. Hinton, 1616 West Shaw Avenue, Suite B7, Fresno, California 93711, email
alicia@alhintonlaw.com. I am over the age of 18 years and not a party to the within action.

On this date, I served the foregoing document(s) described as —

PLAINTIFF’S RESPONSE TO DEFENDANT FRESNO TRUCK CENTER’S
REQUEST FOR ADMISSIONS, SET ONE (1)

—on the interested party(ies) in said action, addressed as follows:

10
Gary H. Prudian, Esq.
ny Kimberly L. Phan, Esq.
MANNING, LEAVER, BRUDER &
12
BERBERICH, LLP
13 801 S. Figueroa St., Ste. 1150
Los Angeles, CA 90017
14 Tel: (323) 937-4730
Fax: (323) 937-6727
15 Email: gprudian@manningleaver.com
Email: kphan@manningleaver.com
16
Attorneys for Defendants, Fresno Truck
17 Center and Travelers Casualty & Surety
Company of America
18
19
O U.S. MAIL: by placing a true copy thereof enclosed in a sealed envelope with postage
thereon fully prepaid, in the United States Post Office mailbox at Fresno, California,
20
addressed as shown above.
21

22 (XX) ELECTRONIC MAIL: The documents were transmitted via email to each of the
parties at the email address(es) listed above and the transmission(s) were reported
23 complete and without error from: tina@alhintonlaw.com.
24
I declare under penalty of perjury under the laws of the State of California that the
25 foregoing is true and correct. Executed on May 2020, at Fresno, California.

26
z VY
27 ‘A PAGOUL. TOs
28
PROOF OF SERVICE PAGE 10F1
Proof of Service.
I, the undersigned, declare and say as follows:
Iam 18 years of age
oe or older, employed at the business noted above my signature which is in
the county where any mailing herein stated occurred, and not a party to the within action.
On December 10, 2020 , I caused to be served the document(s) listed below my signature
under the heading "Document(s) Served" by placing a copy of the document(s) (or the original, if so
note low) in individual envelopes for each of the parties listed below my signature under the
heading "Parties Served" (except for fax-only service), addressed to them at their last known addresses
in this action exactly as shown (excepting parenthetical references to their capacity), there being U.S.
Mail delivery service to those addresses used for service by mail, and by sealing said envelopes, and
on the same day, as marked with "X," by --
[ X ] placing each envelope for collection and [ X ] e-mailing, as mutually agreed upon by!
processin; or mailing following m
ordinary Bus iness practice with whicl Tam
firm's
readily familiar and under which on the same day
each and every par'
of each document an
arties at their
dt to this action, each page
this proof of service to the}
last known email address as listed
correspondence is so placed for mailing it is elow from my business address which reported|
9 deposited in the ordinary course of business with no errors, an which produced a transmission]
the U.S. Postal Service at my business address, confirmation report.
Ist-class postage fully prepaid.
10 [ ] depositing each envelope at a drop box or
11 bath depositing each envelope into the U.S, mail
a
Ist-class ostage fully prepaid at a mail box
or collection acility in the city and state of my
other Facility in the city and state of my business|
address within the time and pursuant to}
procedures readily familiar to me necessary for|
12 business address. "Parties Served" lists all parties
and counsel served in the within matter, and their
respective capacities. [required for federal cases,
\
of the next usiness day or f
delivery [ by Federal Ex ress on the morning
by courier on the
same day. [use only if overnight or courier service
13 including bankruptey, among others] authorized or as a supplement.|
14 4 uring
] personal delivery by [_] travelling to the address shown on the envelope and delivering
normal business hours or [_] handing the documents to the person served.
it there

15 I declare under penalty of perjury under the laws of the State of California and the United
States that the foregoing is true and correct and that this declaration was executed December 10, 2020
at my business address, 801 S. Fi igueroa St., Ste 1150, Los Angeles, California 90017, in the County
16 of Los Angeles.
17
elyn iy:
18 Document(s) Served/(ekact title
RE! UEST FOR JUDICIAL NOTICE IN SUP. RT OF CROSS-COMPLAINANT’S
19 REPL TO CROSS-DEFENDANT’S OPPOSITION TO APPLICATION FOR WRIT OF
POSSESSION AND TEMPORARY RESTRAINING ORDER
20
21 Parties Served (exact envelope address)
Alicia L. Hinton
22 Law Office of A.L. Hinton
1616 W. Shaw Ave., Ste. B7
23 Fresno, CA 937
licia@alhintonlaw.com
24
[Attorney for Plaintiff/Cross-Defendant]
25
26

FTC adv. Stewart Request for Judicial Notice for Reply (0032ROOR
OB SDRWICE

Case Info

Judge

Tharpe, D Track Judge’s New Case

Case No.

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Document Filed Date

December 10, 2020

Case Filing Date

January 01, 1900

County

Parties

Fresno Truck Center Defendant
Fresno Truck Center Plaintiff In 2nd Cross Complaint
Fresno Truck Center, a corporation Defendant In 1st Cross Complaint
Hinton, Alicia L Attorney
Hinton, Alicia L Attorney for the Plaintiff
Kwak, Alice Attorneys for Defendants
Kwak, Alice Attorney for the Defendant
Penske Truck Leasing Co., L.P. Defendant
Penske Truck Leasing Co., L.P. Plaintiff In 1st Cross Complaint
Prudian, Gary H. Attorneys for Defendants
Sears, Douglas A. Attorney
Sears, Douglas A. Attorney for the Defendant
Stewart, Michael Defendant In 2nd Cross Complaint
Stewart, Michael Plaintiff
Travelers Casualty and Surety Company of America Defendant
Travelers Casualty and Surety Company of America Defendant In 1st Cross Complaint
Kimberly Phan Attorneys for Defendants
Brooks Cutter Attorneys for Plaintiffs
Jennifer Domer Attorneys for Plaintiffs
Daniel Berberich Attorneys for Defendants
Nicholas Shepard Attorneys for Defendants

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Request,Application: Michael Stewart vs. Fresno Truck Center

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