Preview
Superior Court of California
Raymond L. Sandelman SBN 078020 County of Butte
Attorney at Law
196 Cohasset Road, Suite 225 3/12/2021
Chico, CA 95926-2284
(530) 343-5090 / (530) 343-5091 (FAX) Ki Flengr, rk
Email:Raymond@sandelmanlaw.com
By Deputy
Electronically FALED
Attorney for Wayne A. Cook, individually
and as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF BUTTE
11
12 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905
WAYNE A. COOK 1998 FAMILY
13 TRUST DATED 12/29/98,
MEMORANDUM POINTS ANDOF
14 Plaintiff, AUTHORITIES IN OPPOSITION TO EX
PARTE APPLICATION TO SHORTEN TIME
15
16 Attached Document: Further Declaration of
Raymond L. Sandelman
17 EDWARD F. NIDEROST, et. al.,
Hearing Date: 3/12/2021
18 Defendants.
Hearing Time: 1:30 p.m.
19 / Department: 1
judge: Tamara Mosbarger
20 AND RELATED CROSS Date of Complaint: 4/22/2020
COMPLAINANTS Trial Date: 3/29/2021
21
22
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24 1. An Amendment Of The Cross Complaint As To Wayne Cook,
Individually And As Trustee, Cannot Be Done In An Ex Parte Basis
25
26 2. [9:347] When Proper: Only limited forms of relief are available ex parte. For
the most part, these are authorized by statutes. (Very few statutes actually use the term
27 “ex parte” relief; most authorize relief “upon application” or “for good cause shown.”)
28
1
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION TO
SHORTEN TIME
b. [6:618] Ex parte amendments to add or delete parties: The court may grant
permission on ex parte application to amend a pleading “by adding or striking out the
name of any party, or by correcting a mistake in the name of a party, or a mistake in any
other respect ...” [CCP § 473(a)(1); see 6:627]
(Of course, if no answer or demurrer has yet been filed, plaintiff can amend the
complaint once, without leave of court, in any way he or she chooses, under CCP § 472;
see J 6:603.)
(1) [6:619] Nature of mistakes correctable: Only mistakes as to form or party
identity are correctable through this ex parte procedure. (Changes in any of the essential
facts, or nature of the claim, usually require a noticed motion and hearing; see { 6:636
ff.) The following are examples of the kinds of “mistakes” that can be corrected ex parte:
° Correct misspellings of parties' names;
° Attach exhibits inadvertently left off at time of filing;
° Insert necessary phrases or words omitted in typing;
Correct form of verification;
° Add or delete parties. . . . (underlining added)
10 d . [6:636] Amendments on noticed motion: The court may grant leave to
amend the pleadings at any stage of the action. A party may discover the need to amend
ll after all pleadings are completed (the case is “at issue”) and new information requires a
ao
ae 12 change in the nature of the claims or defenses previously pleaded. Such changes usually
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ge annot be made on ex parte procedure ({ 6:619). Rather, a formal motion to amend must
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13 be served and filed. [Dye v. Caterpillar, Inc. (2011) 195 CA4th 1366, 1380, 125 CR3d
2 ssoR
890, 900 (citing text)] (underlining added)
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2ou0n 14 5) [6:666] Procedure—noticed motion for leave to amend: Normally, a
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regular noticed motion must be filed (see ¥ 6:669 ff). An amendment making
BESS substantive changes before trial typically will not be allowed ex parte (whereas an ex
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Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
18 Group 2020)
19 2. The Moving Papers Do Not Show Exigent Circumstances To Shorten Time. The Issue
20 Of Amending The Pleadings Is Already Before The Court And Is Fully Briefed. Mr.
Denton Is Improperly Attempting To File Additional Papers With A Second Motion That
21 Addresses The Amendment Issue That Has Been Fully Briefed In The Demurrer Proceedings
22 (a) The Need To Show Exigent Circumstances To Obtain An Order Shortening Time
23 Butte County Superior Court Local Rule 2.10 discuses applications for order shortening time
24 and ex parte orders and provides in part that “The requesting party must show that exigent
25 circumstances will result unless the matter is heard ex parte.” “Exigent circumstances” means an
26 emergency situation requiring swift action (People v. Ramey (1976) 16 Cal.3d 263, 276.) No such
27 showing is made in the application before the Court. Black's Law Dictionary (11th ed. 2019) defines
28 “exigent circumstances” as “A situation that demands unusual or immediate action and that may
2
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION TO
SHORTEN TIME
allow people to circumvent usual procedures, as when a neighbor breaks through a window of a
burning house to save someone inside. .” Section 2(b) explains that the issue of amending the
pleadings is already before the court and is fully briefed. There is no emergency of any kind. Section
2(c) explains that the real purpose behind the ex parte request is that Mr. Denton is improperly
attempting to file additional papers with a second motion that addresses the amendment issue that has
been fully briefed in the demurrer proceedings.
(b) The Issue Of Amending The Pleadings Is Already Before The Court And Is Fully
Briefed
Wayne Cook, individually and as Trustee filed a demurrer to the Amended Cross-Complaint
10 by John Denton, Conservator and Successor Trustee (hereafter referred to collectively as “Mr.
11 Denton”). That motion is set for hearing on March 17, 2021. That motion is fully briefed. The
ao
ae 12 Opposition Brief argued that Cross-Complainants be allowed to further amend their Cross Complaint.
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os 13 The Reply Brief explained why the demurrer should be sustained without leave to amend. Those
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Raymond L. Sandelman
18
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10.
DECLARATION OF RAYMOND L. SANDELMAN IN OPPOSITION TO EX PARTE APPLICATION TO
SHORTEN TIME
EXHIBIT 1
Raymond L. Sandelman
From: Raymond L. Sandelman
Sent: Thursday, February 18, 2021 6:46 PM
To: Sara Knowles
Subject: FW: Re: Cook v. Niderost
Attachments: Brief 218.pdf
Sara:
| did not ever receive a response to my meet and confer communications regarding the pleading deficiencies to the
Amended Cross Complaint. | have drafted a brief in support of a demurrer with some new citations and | wanted to
share them with you in case you want to explain to me why you think the claims are properly pleaded. | plan on filing
the demurrer tomorrow so contact me by 2:00 p.m.
RAYMOND L. SANDELMAN,
Attorney at Law
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
(530) 343-5090
(530) 343-5091 (Fax)
Raymond sandelmanlaw.com
NOTE: This email is confidential and is intended for the recipient(s) listed. If you are not a listed recipient or someone authorized to
receive email on behalf of a listed recipient, please reply to the sender that the email was misdirected and delete the email. Thank you.
From: Wendy Hoy
Sent: Thursday, February 11, 2021 10:06 AM
To: 'Sara Knowles'
Subject: FW: Re: Cook v. Niderost
Sara:
The discussion in Section 4(b) of my email from yesterday discussed the failure to plead procedural
unconscionability, but was stated in an unclear manner. Here is a revised Section 4(b):
Failure to State Facts of Procedural Unconscionability
No ultimate facts of procedural unconscionability are identified. A contractual provision must be both
procedurally and substantively unconscionable, or it will be enforced (Armendariz v. Foundation Health Psychcare Services,
Inc. (2000) 24 Cal.4th 83, 114). Procedural unconscionability concerns oppression and surprise (Morris v. Redwood Empire
Bancorp (2005) 128 Cal. App. 4th 1305, 1319). Oppression refers to the absence of both the power to negotiate and the
absence of market alternatives (Morris, supra 128 Cal. App. 4th at 1320). Graham v. Bank of America, N.A. (2014) 226
Cal.App.4th 594, 617 holds that there is a failure to allege unequal bargaining power when there is an absence of facts
alleging that the borrower was unable to receive more favorable terms from another lender, or from the lender by paying
a different interest rate, or by accepting a different type of loan, or one with a different term. “Surprise” focuses on
whether the challenged term is hidden in a prolix printed form or is otherwise beyond the reasonable expectation of the
weaker party (Morris, 128 Cal. App. 4th. at 1321). Cross-Complainants must allege facts showing that (a) Mr. Niderost was
surprised by a challenged term hidden in a prolix printed form or terms that were otherwise beyond the reasonable
expectation of the weaker party, and (b) that there was (i) an absence of a power to negotiate and (ii) an absence of
market alternatives. No such allegations of procedural unconscionability appear in the Cross Complaint.
1
exwisrr__“L
The Eighth Cause of Action is conclusory and does not state ultimate facts to constitute a cause of action.
RAYMOND L. SANDELMAN
Attorney at Law
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
(530) 343-5090
(530) 343-5091 (Fax)
Raymond@sandelmanlaw.com
NOTE: This email is confidential and is intended for the recipient(s) listed. If you are not a listed recipient or someone authorized to
receive email on behalf of a listed recipient, please reply to the sender that the email was misdirected and delete the email. Thank you.
From: Wendy Hoy
Sent: Wednesday, February 10, 2021 3:40 PM
To: Sara Knowles
Subject: Re: Cook v. Niderost
Sara:
1. Introduction
I was greatly surprised that after the motion for judgment on the pleadings that was granted, you did not
correct pleading deficiencies articulated in the motion. My clients intend to file a demurrer and/or a motion to
strike based on the pleading deficiencies. I will telephone you tomorrow afternoon of July 22, 2020 to discuss the
pleading deficiencies. If that is inconvenient please advise me when we can discuss this matter on the telephone
prior to Friday.
2. A Cross Complainant Needs To Plead Ultimate Facts
I previously advised you that there is an absence of ultimate facts alleged for most of the elements of each
claim that has been asserted. Often you have pleaded conclusions of law and many times you have pleaded legally
irrelevant facts.
4) [6:123] Form of allegations—“ultimate facts” required: First, the “facts” to be
pleaded are those upon which liability depends—i.e., “the facts constituting the cause of action.”
These are commonly referred to as “ultimate facts.” [See Doe v. City of Los Angeles, supra,
42 C4th at 550, 67 CR3d at 344]...
(a) [6:124] Distinguishing “ultimate facts” from “evidence” or “conclusions”: Lawyers
and judges have struggled with these distinctions. “Ultimate facts” are those that raise the issues
on which the right to recover depends—i.e., the essential elements of the cause of action. All the
facts that are material to the cause of action—i.e., the facts that make a difference to the outcome
of the case—must be alleged (see § 6:400, 10:230, 10:271). By contrast, allegations of
unnecessary detail and generalized argument may be objectionable as “evidentiary” pleading and
“Jegal conclusion,” respectively.
1) [6:125] Example: A complaint in a personal injury case alleges that: (1) defendant drove
his car immediately after having consumed a fifth of vodka; (2) defendant drove while under the
influence of alcohol; and (3) defendant drove in violation of California drunk driving law.
Allegation “(1)” is technically objectionable as “evidentiary” matter; “(3)” is a “legal
conclusion”; while “(2)” is the ultimate fact. . .
(2) [7:43] Admits facts alleged in complaint: For the purpose of testing the sufficiency
of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all
ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). [Aubry v. Tri-
2
City Hosp. Dist. (1992) 2 C4th 962, 966-967, 9 CR2d 92, 95; Serrano v. Priest (1971) 5 C3d 584,
591, 96 CR 601, 605; Adelman y. Associated Int'l Ins. Co. (2001) 90 CA4th 352, 359, 108 CR2d
788, 792]
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020)
3. The First Cause Of Action Of The First Amended Cross Complaint Fails To State Ultimate Facts
To Constitute A Cause Of Action For Financial Elder Abuse
(a) Failure to state a fraud claim
Welfare & Institutions Code section 15610.30 subdivision (a)(1) and (2) make acts of fraud on an elder a
form of “financial abuse.” At Paragraph 44 of the Cross Complaint there are allegations of misappropriation of
real and personal property with the intent to defraud. There are no ultimate facts of fraud pleaded with specificity.
Fraud must be pleaded with specificity rather than with “general and conclusory
allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184, 132 Cal.Rptr.2d 490, 65
P.3d 1255.) The specificity requirement means a plaintiff must allege facts showing how, when.
where, to whom, and by what means the representations were made. -” (underlining added)
West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793
7) [6:137] Special pleading requirements: Notwithstanding this general policy of
liberality, there are certain cases in which a stricter pleading standard is required:
(a) [6:138] Fraud: The traditional rule is that fraud actions are subject to a stricter pleading
standard, because they involve a serious attack on defendant's character. Fairness requires that
allegations of fraud be pleaded “with particularity” so that the court can weed out nonmeritorious
actions before defendant is required to answer. This is said to be the “last remaining habitat” of
common law pleading standards. [Committee on Children's Television, Inc. vy. General Foods
Corp. (1983) 35 C3d 197, 216, 197 CR 783, 795; Small v. Fritz Cos., Inc. (2003) 30 C4th 167,
183, 132 CR2d 490, 502; see Glaski v. Bank of America, N.A. (2013) 218 CA4th 1079, 1090, 160
CR3d 449, 458—elements of fraud “may not be pleaded in a general or conclusory fashion”]
The requirement that fraud must be pleaded with particularity serves two purposes: (i) to
give notice to defendant with such particularity that defendant can meet the charges; and (ii) to
permit the dismissal of meritless fraud claims on the basis of the pleadings. [West v. JP Morgan
Chase Bank, N.A. (2013) 214 CA4th 780, 793, 154 CR3d 285, 295]
The elements that must be pleaded are:
“(a) misrepresentation (false representation, concealment or nondisclosure);
“(b) knowledge of falsity (or ‘scienter’);
“(c) intent to defraud, i-e., to induce reliance;
“(d) justifiable reliance; and
“(e) resulting damage.” [Philipson & Simon v. Gulsvig (2007) 154 CA4th 347, 363, 64
CR3d 504, 516; see Glaski v. Bank of America, N.A., supra, 218 CA4th at 1091, 160 CR3d at
458—plaintiff must identify “particular acts” plaintiff took or failed to take in reliance on alleged
fraud; Rossberg v. Bank of America, N.A. (2013) 219 CA4th 1481, 1499, 162 CR3d 525, 540]
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020)
(b) Failure to state an undue influence claim
Welfare & Institutions Code section 15610.30 subdivision (a)(3) make acts of undue influence toward an
elder a form of “financial abuse.” At Paragraph 44 of the Cross Complaint there are conclusory allegations of
misappropriation of real and personal property through undue influence, but no ultimate facts are alleged. Welfare
& Institutions Code section 15610.70 defines “undue influence” as “excessive persuasion that causes another
person to act or refrain from acting by overcoming that person's free will and results in inequity.” There are no
ultimate facts alleged that show that Wayne Cook, Trustee exercised any “excessive persuasion that causes
another person to act or refrain from acting by overcoming that person's free will and results in inequity.”
3
Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 132-133 outlines the seven types of
elements that are relevant to an undue influence claim: (1) discussion of the transaction at an unusual or
inappropriate time, (2) consummation of the transaction in an unusual place, (3) insistent demand that the business
be finished at once, (4) extreme emphasis on untoward consequences of delay, (5) the use of multiple persuaders
by the dominant side against a single servient party, (6) absence of third-party advisers to the servient party, (7)
statements that there is no time to consult financial advisers or attorneys. If a number of these elements are
simultaneously present, the persuasion may be characterized as excessive. No ultimate facts as to any of the seven
elements identified in Odorizzi have been alleged in the Cross Complaint.
(c) Lack of standing
I understand how John Denton, conservator might want to assert an elder abuse claim. I do not understand
how John Denton, Successor Trustee of The Edward F. Niderost Revocable Living Trust Dated November 8,
1998, can assert an elder abuse claim because the trustee is not an elder. He lacks standing.
4. The Eighth Cause Of Action Of The Of The First Amended Cross Complaint Cross Complaint
Fails To State Ultimate Facts To Constitute A Cause Of Action For Cancellation Due To
Unconscionability
(a) Lack of Privity Against Wayne Cook
Cancellation is a remedy authorized by Civil Code section 3412 with respect to written instruments.
Wayne Cook in his capacity as an individual is not a creditor and has not initiated foreclosure
proceedings. Therefore no claim concerning cancellation of any contract lies against Wayne Cook in his capacity
as an individual.
(b) Failure to State Facts For Cancellation
The Exhibit B Residential Purchase Agreement is an offer presented by Edward Niderost, with the
assistance of a licensed broker. There are no allegations of any counter offer. Now Cross- Complainants claim
that the offer they made is unconscionable. No ultimate facts of unconscionability are identified.
A contractual provision must be both procedurally and substantively unconscionable, or it will be enforced
(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114). Procedural
unconscionability concerns oppression and surprise (Morris v. Redwood Empire Bancorp (2005) 128 Cal. App.
4th 1305, 1319). Oppression refers to the absence of both the power to negotiate and the absence of market
alternatives (Morris, supra 128 Cal. App. 4th at 1320). Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th
594, 617 holds that there is a failure to allege unequal bargaining power when there is an absence of facts alleging
that the borrower was unable to receive more favorable terms from another lender, or from the lender by paying
a different interest rate, or by accepting a different type of loan, or one with a different term. “Surprise” focuses
on whether the challenged term is hidden in a prolix printed form or is otherwise beyond the reasonable
expectation of the weaker party (Morris, 128 Cal. App. 4th. at 1321). Concluding that a contract is one of
adhesion, begins rather than ends the analysis for purposes of unconscionability (Morris, 128 Cal. App. 4th at
1319-20 confirming adhesiveness is not per se oppressive; Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal.
App. 4th 708, 714). Cross-Complainants must allege facts showing that Mr. Niderost was surprised and/or lacked
a reasonable alternative source of supply (Morris, 128 Cal.App.4th at 1320). No such allegations of procedural
unconscionability appear in the Cross Complaint.
The Eighth Cause of Action is conclusory and does not state ultimate facts to constitute a cause of action.
(c) Lack of standing
John Denton, conservator is not alleged to be at debtor, so no cause of action can be stated by him alleging
that the loan agreements and the deeds of trust are unconscionable.
5. The Ninth Cause Of Action Of The Of The First Amended Cross Complaint Cross Complaint
Fails To State Ultimate Facts To Constitute A Cause Of Action For Violation Of Business And
Professions Code section 17200
What specific statute (not the general statutory acts) are your clients claiming that were violated? It is
necessary to plead the specific section of the statutory scheme that Cross Complainants allege was violated to
4
state a cause of action under Business and Professions Code section 17200. Stern, Business & Professions Code
§ 17200 Practice (The Rutter Group 2020) notes this rule and further explains the pleading requirements to state
a claim for an unlawful practice claim.
a. [7:130] Must allege law that is “borrowed”: If the business practice alleged to violate
§ 17200 is of the “unlawful” variety, the complaint must allege facts showing that the practice
violates the law. “[W]ithout supporting facts demonstrating the illegality of a rule or regulation,
an allegation that it is in violation of a specific statute is purely conclusionary and insufficient to
withstand demurrer.” [People v. McKale (1979) 25 C3d 626, 635, 159 CR 811, 816; see, e.g.,
Microsoft Corp. v. A-Tech Corp. (CD CA 1994) 855 F.Supp. 308, 313—because abuse ofprocess
has been held to be a § 17200 violation, an allegation that the defendant engages in systematic
abuse of process properly alleges a § 17200 “unlawful” business practices claim] See also § 7:131.
b. [7:131] Must be specific: Several cases have held that UCL claims alleging “unlawful”
business practices require some specificity. In Khoury v. Maly's of Calif, Inc. (1993) 14 CA4th
612, 616, 17 CR2d 708, 710, for example, the court of appeal affirmed the trial court's sustaining
of a demurrer to a § 17200 claim without leave to amend. After three attempts to replead, plaintiff
still had not identified which section of the law had been violated, .. .
Appellant's fourth cause of action alleges: “California Business and Professions Code
Sections 17000, et seq., and 17200, et seq.,
A plaintiff alleging unfair business practices under these statutes must state with
reasonable particularity the facts supporting the statutory elements of the violation. (5 Witkin,
Cal.Procedure, supra, Pleading, § 728, p. 176; Perdue v. Crocker National Bank ( 1985) 38 Cal.3d
913, 929, 216 Cal.Rptr. 345, 702 P.2d 503; see Committee on Children's Television, Inc. v. General
Foods Corp., supra, 35 Cal.3d 197, 213-214, 197 Cal.Rptr. 783, 673 P.2d 660; GH.LL v. MTS,
Inc. (1983) 147 Cal.App.3d 256, 270-275, 195 Cal.Rptr. 211; Lutz v. De Laurentiis (1989) 211
Cal.App.3d 1317, 1323-1324, 260 Cal.Rptr. 106.)
Demurrer was properly sustained as to this cause of action because the second amended
complaint identifies no particular section of the statutory scheme which was violated and fails to
describe with any reasonable particularity the facts supporting violation.
Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619
As in Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 619, 17 Cal.Rptr.2d 708,
the demurrer was properly sustained because the complaint “identifies no particular section of the
statutory scheme [of antitrust laws] which was violated and fails to describe with any reasonable
particularity the facts supporting violation.”
Gregory v. Albertson's, Inc. (2002) 104 Cal.App.4th 845, 857
6. The Tenth Cause of Action Of The First Amended Cross Complaint Does Not State A Claim
Against Wayne Cook
Wayne Cook in his capacity as an individual is not a creditor, so no cause of action can be stated against
him to cancel the notes, deeds of trust, and notices of default.
7. Uncertainty/Unintelligibility
There are no exhibits attached to the pleading even though Exhibits B through J are referenced. The
absence of these documents makes that pleading deficient
8. Please Organize Citations Supporting Your Position
When we speak on the telephone, I will expect you to provide me citations that show that a demurrer to
the above referenced causes of actions would not be successful. Code of Civil Procedure section 430.41 (a)(1)
provides that “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its
5
position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer
could be amended to cure any legal insufficiency.” Similarly, Code of Civil Procedure 435.5 section (a)(1)
provides that “ As part of the meet and confer process, the moving party shall identify all of the specific allegations
that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party
who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the
alternative, how the pleading could be amended to cure any legal insufficiency.
RAYMOND L. SANDELMAN
Attorney at Law
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
(530) 343-5090
(530) 343-5091 (Fax)
Raymond@sandelmanlaw.com
NOTE: This email is confidential and is intended for the recipient(s) listed. If you are not a listed recipient or someone authorized to
receive email on behalf of a listed recipient, please reply to the sender that the email was misdirected and delete the email. Thank you.
EXHIBIT 2
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EXHIBIT 3
INDEX OF EXAMINATIONS
SUPERIOR COURT OF THE STATE OF CALIFORNIA Examinations Page
IN AND FOR THE COUNTY OF BUTTE
MS, KNOWLES.
WAYNE A. COOK; TRUSTEE OF
THE WAYNE A. Coo} MR. LUSHANKO. 74
FAMILY TRUST DATED
12/29/98) MS. KNOWLES.
case No 2ocvoos0s 81
Plaintife,
vs.
EDWARD F. NIDEROST, ---000---
INDIVIDUALLY AND AS
‘TRUSTEE OF THE EDWARD F.
NIDEROST REVOCABLE LIVING
TRUST DATED NOVEMBER 8, 10 INDEX OF EXHIBITS
1998, DOES 1 THROUGH 10,
Defendants "1
12 Number Description Page
REMOTE DEPOSITION OF WAYNE COOK
13
‘Thursday, January 21, 2021
Page 1 = 117 10:06 a.m = 2:49 p.m 14 (None marked.)
15 ---000---
16
17
REPORTED BY 18
Kaitlyn B. Houston 19
‘SR No 14170
Located in Yuba City, California 20
24
22
23
24
25
APPERANCES
REMOTE DEPOSITION VIA ZOOM
THURSDAY, JANUARY 21, 2021, 10:06 A.M
For John Denton, as Conservator for Edward F. Niderost
and as Successor Trustee of the Edward F. Niderost WAYNE COOK,
Revocable Living Trust Date November 8, 1998 having been first duly sworn, was examined
LELAND, MORRISSEY & KNOWLES LLP and testified as follows
BY: SARA M. KNOWLES, ESQ.
1660 Humboldt Road, Suite XAMI. TION BY M KNOWLE.
Chico, California 95928
Q Good morning, Mr Cook. My name is
For Defendants Sara Knowles. How are you today?
GRIFFITH HORN & SHEEHAN, LLP A. I'm doing so-so. How about you?
BY JAMESON SHEEHAN, ES
10 1530 Humboldt Road, Suite 3 10 Q. I'm doing fine Thank you
Chico, California 9592
"1 "1 Mr. Cook, do you recall if you and I have ever
12 For Plaintiff: 12 met before?
13 OFFICE OF RAYMOND SANDELMAN, ESQ. 13 A. You know, I was just thinking about that here
BY: RAMOND SANDELMAN, 14 I think we may have ran into each other over at the
14 196 Cohasset Road, Suite 225
Chico, California 9592 15 Miller Mansion Is that correct?
15
16 Q No No But you and I have met. I have been
16 For Defendants
17 a guest in your home
7 LAW OFFICE OF LARRY G. LUSHANKO
BY LARRY G. LUSHANKO, ESQ 18 A Pardon?
18 1241 E Mission Road
Fallbrook, California 92028 19 Q You and I have met. IT have been a guest in
19
20 your home about eight or nine years ago Do you recall
20 Also Present 2 that at all?
2 John Denton 22 A No, I don't.
22 --000-- Q. Okay It was a brief visit. In any event, you
23 24 understand that I represent John Denton; is that
24 25 correct?
25
4
1 of 30 sheets Page 1 to 4 of 117 EXHIBIT___> 02/16/2021 02:00:57 PM
INDEX OF EXAMINATIONS
SUPERIOR COURT OF THE STATE OF CALIFORNIA Examinations Page
IN AND FOR THE COUNTY OF BUTTE
MS. KNOWLES.
WAYNE A. COOK; TRUSTEE OF
THE WAYNE A. COOK 1998 MR. LUSHANKO. 74
FAMILY TRUST DATED
12/29/98, MS. KNOWLES.
Case No.: 20cvo0905 81
Plaintite,
vs.
EDWARD F. NIDEROST, =--000---
INDIVIDUALLY AND AS
TRUSTEE OF THE EDAARD F.
NIDEROST REVOCABLE LIVING
TRUST DATED NOVEMBER 8, 10 INDEX OF EXHIBITS
1998, DOES 1 THROUGH 10,
Defendants. 1
12 Number Description Page
REMOTE DEPOSITION OF WAYNE COOK
13
Thursday, January 21, 2021
Page 1 - 117 10:06 a.m. - 2:49 p.m.
14 (None marked.)
15 000---
16
7
REPORTED BY: 8
Kaitlyn B. Houston 19
‘SR No. 14170
Located in Yuba City, California 20
2
22
24
25
APPERANCES:
REMOTE DEPOSITION VIA ZOOM
THURSDAY, JANUARY 21, 2021, 10:06 A.M.
For John Denton, as Conservator for Edward F. Niderost
and as Successor Trustee of the Edward F. Niderost WAYNE COOK,
Revocable Living Trust Date November 8, 1998: having been first duly sworn, was examined
LELAND, MORRISSEY & KNOWLES LLP and testified as follows:
BY: SARA M. KNOWLES, ESQ.
1660 Humboldt Road, Suite 6 XAMI. TION BY . KNOWLE
Chico, California 95928
Q@. Good morning, Mr. Cook. My name is
For Defendants: Sara Knowles, How are you today?
GRIFFITH HORN & SHEEHAN, LLP A I'm doing so-so. How about you?
BY: JAMESON SHEEHAN, ESQ.
10 1530 Humboldt Road, Suite 10 Q. I'm doing fine. Thank you.
Chico, California 95928
1 "1 Mr. Cook, do you recall if you and I have ever
12 For Plaintiff: 12 met before?
13 OFFICE OF RAYMOND SANDELMAN, ESQ. 13 A You know, I was just thinking about that here.
BY: RAMOND SANDELMAN, ESQ, 14 I think we may have ran into each other over at the
14 196 Cohasset Road, Suite 225
Chico, California 95926 15 Miller Mansion. Is that correct?
15
16 Q No. No. But you and I have met, I have been
16 For Defendants:
7 a guest in your home,
7 LAW OFFICE OF LARRY G. LUSHANKO
BY: LARRY G. LUSHANKO, ESQ. 18 A. Pardon?
18 1241 E Mission Roa
Fallbrook, California 92028 19 Q You and I have met. I have been a guest in
19
20 your home about eight or nine years ago. Do you recall
20 Also Present: 2 that at all?
24 John Denton 22 A. No, I don't.
22 --000-- 23 Q, Okay. It was a brief visit. In any event, you
23 24 understand that I represent John Denton; is that
24 25 correct?
25
4
1 of 30 sheets Page 1to 4 of 117 02/16/2021 02:00:57 PM
no further discussion about the price at 1,500,000. And free and clear. And he owned some other real estate,
he didn't -- never made an attempt after that to ever and I can't remember what it was. And he had a note
try to offer me less. Portfolio where he had taken back notes on -- I don't
But at that meeting down there, we were know where he got them. Whether they were carrybacks or
doodling with the numbers and how much money he'd need he bought them on the market or provided somebody
to come up with and how he would -- how he would finance financing, and he had somewhere around 400,000 in notes.
it and how much cash he had on hand. And we -- we were I think it was a little over 400-. 400- -- 4- to
det ely agreed that the price was 1,500,000 and we 450,000 or so. So --
were going to work out how he was going to pay for it, Q Did you -- go ahead.
10 and we roughed out roughly how he would pay for it. 10 A Pardon?
1 Q. Let me just be -- be clear. When you say "we," 11 Q. Do you recall any other assets he told you he
12 you are referring to yourself, Mr. Culley, and 12 had?
13 Mr. Niderost only? 13 A Well, he told me he always keep -- kept plenty
14 A. Yeah. And my son-in-law was there in -- in 14 of cash in reserve, but the amount of money that he felt
15 close proximity with us, and he was listening to all of 15 comfortable putting up as a down payment was
16 this. 16 something -- somewhere around 350,000. And -- hang on.
17 Q. Okay. So di
Preview
Superior Court of California Raymond L. Sandelman SBN 078020 County of Butte Attorney at Law 196 Cohasset Road, Suite 225 3/12/2021 Chico, CA 95926-2284 (530) 343-5090 / (530) 343-5091 (FAX) Ki Flengr, rk Email:Raymond@sandelmanlaw.com By Deputy Electronically FALED Attorney for Wayne A. Cook, individually and as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF BUTTE 11 12 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905 WAYNE A. COOK 1998 FAMILY 13 TRUST DATED 12/29/98, MEMORANDUM POINTS ANDOF 14 Plaintiff, AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME 15 16 Attached Document: Further Declaration of Raymond L. Sandelman 17 EDWARD F. NIDEROST, et. al., Hearing Date: 3/12/2021 18 Defendants. Hearing Time: 1:30 p.m. 19 / Department: 1 judge: Tamara Mosbarger 20 AND RELATED CROSS Date of Complaint: 4/22/2020 COMPLAINANTS Trial Date: 3/29/2021 21 22 23 24 1. An Amendment Of The Cross Complaint As To Wayne Cook, Individually And As Trustee, Cannot Be Done In An Ex Parte Basis 25 26 2. [9:347] When Proper: Only limited forms of relief are available ex parte. For the most part, these are authorized by statutes. (Very few statutes actually use the term 27 “ex parte” relief; most authorize relief “upon application” or “for good cause shown.”) 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME b. [6:618] Ex parte amendments to add or delete parties: The court may grant permission on ex parte application to amend a pleading “by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect ...” [CCP § 473(a)(1); see 6:627] (Of course, if no answer or demurrer has yet been filed, plaintiff can amend the complaint once, without leave of court, in any way he or she chooses, under CCP § 472; see J 6:603.) (1) [6:619] Nature of mistakes correctable: Only mistakes as to form or party identity are correctable through this ex parte procedure. (Changes in any of the essential facts, or nature of the claim, usually require a noticed motion and hearing; see { 6:636 ff.) The following are examples of the kinds of “mistakes” that can be corrected ex parte: ° Correct misspellings of parties' names; ° Attach exhibits inadvertently left off at time of filing; ° Insert necessary phrases or words omitted in typing; Correct form of verification; ° Add or delete parties. . . . (underlining added) 10 d . [6:636] Amendments on noticed motion: The court may grant leave to amend the pleadings at any stage of the action. A party may discover the need to amend ll after all pleadings are completed (the case is “at issue”) and new information requires a ao ae 12 change in the nature of the claims or defenses previously pleaded. Such changes usually <é ge annot be made on ex parte procedure ({ 6:619). Rather, a formal motion to amend must Zz 13 be served and filed. [Dye v. Caterpillar, Inc. (2011) 195 CA4th 1366, 1380, 125 CR3d 2 ssoR 890, 900 (citing text)] (underlining added) BSE BAO ae 2ou0n 14 5) [6:666] Procedure—noticed motion for leave to amend: Normally, a asas i5a8 Ze aezE~ 15 regular noticed motion must be filed (see ¥ 6:669 ff). An amendment making BESS substantive changes before trial typically will not be allowed ex parte (whereas an ex SE2 265Zan 16 parte order is available to correct mere mistakes in form or party identity; | 6:619). $¢ ga 5S [CCP § 473(a)(1)] .. aa 83 17 ge Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter 18 Group 2020) 19 2. The Moving Papers Do Not Show Exigent Circumstances To Shorten Time. The Issue 20 Of Amending The Pleadings Is Already Before The Court And Is Fully Briefed. Mr. Denton Is Improperly Attempting To File Additional Papers With A Second Motion That 21 Addresses The Amendment Issue That Has Been Fully Briefed In The Demurrer Proceedings 22 (a) The Need To Show Exigent Circumstances To Obtain An Order Shortening Time 23 Butte County Superior Court Local Rule 2.10 discuses applications for order shortening time 24 and ex parte orders and provides in part that “The requesting party must show that exigent 25 circumstances will result unless the matter is heard ex parte.” “Exigent circumstances” means an 26 emergency situation requiring swift action (People v. Ramey (1976) 16 Cal.3d 263, 276.) No such 27 showing is made in the application before the Court. Black's Law Dictionary (11th ed. 2019) defines 28 “exigent circumstances” as “A situation that demands unusual or immediate action and that may 2 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME allow people to circumvent usual procedures, as when a neighbor breaks through a window of a burning house to save someone inside. .” Section 2(b) explains that the issue of amending the pleadings is already before the court and is fully briefed. There is no emergency of any kind. Section 2(c) explains that the real purpose behind the ex parte request is that Mr. Denton is improperly attempting to file additional papers with a second motion that addresses the amendment issue that has been fully briefed in the demurrer proceedings. (b) The Issue Of Amending The Pleadings Is Already Before The Court And Is Fully Briefed Wayne Cook, individually and as Trustee filed a demurrer to the Amended Cross-Complaint 10 by John Denton, Conservator and Successor Trustee (hereafter referred to collectively as “Mr. 11 Denton”). That motion is set for hearing on March 17, 2021. That motion is fully briefed. The ao ae 12 Opposition Brief argued that Cross-Complainants be allowed to further amend their Cross Complaint. <é oe i = os 13 The Reply Brief explained why the demurrer should be sustained without leave to amend. Those 83 oR a S8as Ze AZE~ 15 ZSBS SE? 2209 Za 16 aa 5S BR Dated: Ned \yroy Gist Ba 17 Raymond L. Sandelman 18 19 20 21 22 23 24 25 26 27 28 10. DECLARATION OF RAYMOND L. SANDELMAN IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME EXHIBIT 1 Raymond L. Sandelman From: Raymond L. Sandelman Sent: Thursday, February 18, 2021 6:46 PM To: Sara Knowles Subject: FW: Re: Cook v. Niderost Attachments: Brief 218.pdf Sara: | did not ever receive a response to my meet and confer communications regarding the pleading deficiencies to the Amended Cross Complaint. | have drafted a brief in support of a demurrer with some new citations and | wanted to share them with you in case you want to explain to me why you think the claims are properly pleaded. | plan on filing the demurrer tomorrow so contact me by 2:00 p.m. RAYMOND L. SANDELMAN, Attorney at Law 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 (530) 343-5090 (530) 343-5091 (Fax) Raymond sandelmanlaw.com NOTE: This email is confidential and is intended for the recipient(s) listed. If you are not a listed recipient or someone authorized to receive email on behalf of a listed recipient, please reply to the sender that the email was misdirected and delete the email. Thank you. From: Wendy Hoy Sent: Thursday, February 11, 2021 10:06 AM To: 'Sara Knowles' Subject: FW: Re: Cook v. Niderost Sara: The discussion in Section 4(b) of my email from yesterday discussed the failure to plead procedural unconscionability, but was stated in an unclear manner. Here is a revised Section 4(b): Failure to State Facts of Procedural Unconscionability No ultimate facts of procedural unconscionability are identified. A contractual provision must be both procedurally and substantively unconscionable, or it will be enforced (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114). Procedural unconscionability concerns oppression and surprise (Morris v. Redwood Empire Bancorp (2005) 128 Cal. App. 4th 1305, 1319). Oppression refers to the absence of both the power to negotiate and the absence of market alternatives (Morris, supra 128 Cal. App. 4th at 1320). Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 617 holds that there is a failure to allege unequal bargaining power when there is an absence of facts alleging that the borrower was unable to receive more favorable terms from another lender, or from the lender by paying a different interest rate, or by accepting a different type of loan, or one with a different term. “Surprise” focuses on whether the challenged term is hidden in a prolix printed form or is otherwise beyond the reasonable expectation of the weaker party (Morris, 128 Cal. App. 4th. at 1321). Cross-Complainants must allege facts showing that (a) Mr. Niderost was surprised by a challenged term hidden in a prolix printed form or terms that were otherwise beyond the reasonable expectation of the weaker party, and (b) that there was (i) an absence of a power to negotiate and (ii) an absence of market alternatives. No such allegations of procedural unconscionability appear in the Cross Complaint. 1 exwisrr__“L The Eighth Cause of Action is conclusory and does not state ultimate facts to constitute a cause of action. RAYMOND L. SANDELMAN Attorney at Law 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 (530) 343-5090 (530) 343-5091 (Fax) Raymond@sandelmanlaw.com NOTE: This email is confidential and is intended for the recipient(s) listed. If you are not a listed recipient or someone authorized to receive email on behalf of a listed recipient, please reply to the sender that the email was misdirected and delete the email. Thank you. From: Wendy Hoy Sent: Wednesday, February 10, 2021 3:40 PM To: Sara Knowles Subject: Re: Cook v. Niderost Sara: 1. Introduction I was greatly surprised that after the motion for judgment on the pleadings that was granted, you did not correct pleading deficiencies articulated in the motion. My clients intend to file a demurrer and/or a motion to strike based on the pleading deficiencies. I will telephone you tomorrow afternoon of July 22, 2020 to discuss the pleading deficiencies. If that is inconvenient please advise me when we can discuss this matter on the telephone prior to Friday. 2. A Cross Complainant Needs To Plead Ultimate Facts I previously advised you that there is an absence of ultimate facts alleged for most of the elements of each claim that has been asserted. Often you have pleaded conclusions of law and many times you have pleaded legally irrelevant facts. 4) [6:123] Form of allegations—“ultimate facts” required: First, the “facts” to be pleaded are those upon which liability depends—i.e., “the facts constituting the cause of action.” These are commonly referred to as “ultimate facts.” [See Doe v. City of Los Angeles, supra, 42 C4th at 550, 67 CR3d at 344]... (a) [6:124] Distinguishing “ultimate facts” from “evidence” or “conclusions”: Lawyers and judges have struggled with these distinctions. “Ultimate facts” are those that raise the issues on which the right to recover depends—i.e., the essential elements of the cause of action. All the facts that are material to the cause of action—i.e., the facts that make a difference to the outcome of the case—must be alleged (see § 6:400, 10:230, 10:271). By contrast, allegations of unnecessary detail and generalized argument may be objectionable as “evidentiary” pleading and “Jegal conclusion,” respectively. 1) [6:125] Example: A complaint in a personal injury case alleges that: (1) defendant drove his car immediately after having consumed a fifth of vodka; (2) defendant drove while under the influence of alcohol; and (3) defendant drove in violation of California drunk driving law. Allegation “(1)” is technically objectionable as “evidentiary” matter; “(3)” is a “legal conclusion”; while “(2)” is the ultimate fact. . . (2) [7:43] Admits facts alleged in complaint: For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). [Aubry v. Tri- 2 City Hosp. Dist. (1992) 2 C4th 962, 966-967, 9 CR2d 92, 95; Serrano v. Priest (1971) 5 C3d 584, 591, 96 CR 601, 605; Adelman y. Associated Int'l Ins. Co. (2001) 90 CA4th 352, 359, 108 CR2d 788, 792] Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) 3. The First Cause Of Action Of The First Amended Cross Complaint Fails To State Ultimate Facts To Constitute A Cause Of Action For Financial Elder Abuse (a) Failure to state a fraud claim Welfare & Institutions Code section 15610.30 subdivision (a)(1) and (2) make acts of fraud on an elder a form of “financial abuse.” At Paragraph 44 of the Cross Complaint there are allegations of misappropriation of real and personal property with the intent to defraud. There are no ultimate facts of fraud pleaded with specificity. Fraud must be pleaded with specificity rather than with “general and conclusory allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184, 132 Cal.Rptr.2d 490, 65 P.3d 1255.) The specificity requirement means a plaintiff must allege facts showing how, when. where, to whom, and by what means the representations were made. -” (underlining added) West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 7) [6:137] Special pleading requirements: Notwithstanding this general policy of liberality, there are certain cases in which a stricter pleading standard is required: (a) [6:138] Fraud: The traditional rule is that fraud actions are subject to a stricter pleading standard, because they involve a serious attack on defendant's character. Fairness requires that allegations of fraud be pleaded “with particularity” so that the court can weed out nonmeritorious actions before defendant is required to answer. This is said to be the “last remaining habitat” of common law pleading standards. [Committee on Children's Television, Inc. vy. General Foods Corp. (1983) 35 C3d 197, 216, 197 CR 783, 795; Small v. Fritz Cos., Inc. (2003) 30 C4th 167, 183, 132 CR2d 490, 502; see Glaski v. Bank of America, N.A. (2013) 218 CA4th 1079, 1090, 160 CR3d 449, 458—elements of fraud “may not be pleaded in a general or conclusory fashion”] The requirement that fraud must be pleaded with particularity serves two purposes: (i) to give notice to defendant with such particularity that defendant can meet the charges; and (ii) to permit the dismissal of meritless fraud claims on the basis of the pleadings. [West v. JP Morgan Chase Bank, N.A. (2013) 214 CA4th 780, 793, 154 CR3d 285, 295] The elements that must be pleaded are: “(a) misrepresentation (false representation, concealment or nondisclosure); “(b) knowledge of falsity (or ‘scienter’); “(c) intent to defraud, i-e., to induce reliance; “(d) justifiable reliance; and “(e) resulting damage.” [Philipson & Simon v. Gulsvig (2007) 154 CA4th 347, 363, 64 CR3d 504, 516; see Glaski v. Bank of America, N.A., supra, 218 CA4th at 1091, 160 CR3d at 458—plaintiff must identify “particular acts” plaintiff took or failed to take in reliance on alleged fraud; Rossberg v. Bank of America, N.A. (2013) 219 CA4th 1481, 1499, 162 CR3d 525, 540] Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) (b) Failure to state an undue influence claim Welfare & Institutions Code section 15610.30 subdivision (a)(3) make acts of undue influence toward an elder a form of “financial abuse.” At Paragraph 44 of the Cross Complaint there are conclusory allegations of misappropriation of real and personal property through undue influence, but no ultimate facts are alleged. Welfare & Institutions Code section 15610.70 defines “undue influence” as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity.” There are no ultimate facts alleged that show that Wayne Cook, Trustee exercised any “excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity.” 3 Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 132-133 outlines the seven types of elements that are relevant to an undue influence claim: (1) discussion of the transaction at an unusual or inappropriate time, (2) consummation of the transaction in an unusual place, (3) insistent demand that the business be finished at once, (4) extreme emphasis on untoward consequences of delay, (5) the use of multiple persuaders by the dominant side against a single servient party, (6) absence of third-party advisers to the servient party, (7) statements that there is no time to consult financial advisers or attorneys. If a number of these elements are simultaneously present, the persuasion may be characterized as excessive. No ultimate facts as to any of the seven elements identified in Odorizzi have been alleged in the Cross Complaint. (c) Lack of standing I understand how John Denton, conservator might want to assert an elder abuse claim. I do not understand how John Denton, Successor Trustee of The Edward F. Niderost Revocable Living Trust Dated November 8, 1998, can assert an elder abuse claim because the trustee is not an elder. He lacks standing. 4. The Eighth Cause Of Action Of The Of The First Amended Cross Complaint Cross Complaint Fails To State Ultimate Facts To Constitute A Cause Of Action For Cancellation Due To Unconscionability (a) Lack of Privity Against Wayne Cook Cancellation is a remedy authorized by Civil Code section 3412 with respect to written instruments. Wayne Cook in his capacity as an individual is not a creditor and has not initiated foreclosure proceedings. Therefore no claim concerning cancellation of any contract lies against Wayne Cook in his capacity as an individual. (b) Failure to State Facts For Cancellation The Exhibit B Residential Purchase Agreement is an offer presented by Edward Niderost, with the assistance of a licensed broker. There are no allegations of any counter offer. Now Cross- Complainants claim that the offer they made is unconscionable. No ultimate facts of unconscionability are identified. A contractual provision must be both procedurally and substantively unconscionable, or it will be enforced (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114). Procedural unconscionability concerns oppression and surprise (Morris v. Redwood Empire Bancorp (2005) 128 Cal. App. 4th 1305, 1319). Oppression refers to the absence of both the power to negotiate and the absence of market alternatives (Morris, supra 128 Cal. App. 4th at 1320). Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 617 holds that there is a failure to allege unequal bargaining power when there is an absence of facts alleging that the borrower was unable to receive more favorable terms from another lender, or from the lender by paying a different interest rate, or by accepting a different type of loan, or one with a different term. “Surprise” focuses on whether the challenged term is hidden in a prolix printed form or is otherwise beyond the reasonable expectation of the weaker party (Morris, 128 Cal. App. 4th. at 1321). Concluding that a contract is one of adhesion, begins rather than ends the analysis for purposes of unconscionability (Morris, 128 Cal. App. 4th at 1319-20 confirming adhesiveness is not per se oppressive; Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal. App. 4th 708, 714). Cross-Complainants must allege facts showing that Mr. Niderost was surprised and/or lacked a reasonable alternative source of supply (Morris, 128 Cal.App.4th at 1320). No such allegations of procedural unconscionability appear in the Cross Complaint. The Eighth Cause of Action is conclusory and does not state ultimate facts to constitute a cause of action. (c) Lack of standing John Denton, conservator is not alleged to be at debtor, so no cause of action can be stated by him alleging that the loan agreements and the deeds of trust are unconscionable. 5. The Ninth Cause Of Action Of The Of The First Amended Cross Complaint Cross Complaint Fails To State Ultimate Facts To Constitute A Cause Of Action For Violation Of Business And Professions Code section 17200 What specific statute (not the general statutory acts) are your clients claiming that were violated? It is necessary to plead the specific section of the statutory scheme that Cross Complainants allege was violated to 4 state a cause of action under Business and Professions Code section 17200. Stern, Business & Professions Code § 17200 Practice (The Rutter Group 2020) notes this rule and further explains the pleading requirements to state a claim for an unlawful practice claim. a. [7:130] Must allege law that is “borrowed”: If the business practice alleged to violate § 17200 is of the “unlawful” variety, the complaint must allege facts showing that the practice violates the law. “[W]ithout supporting facts demonstrating the illegality of a rule or regulation, an allegation that it is in violation of a specific statute is purely conclusionary and insufficient to withstand demurrer.” [People v. McKale (1979) 25 C3d 626, 635, 159 CR 811, 816; see, e.g., Microsoft Corp. v. A-Tech Corp. (CD CA 1994) 855 F.Supp. 308, 313—because abuse ofprocess has been held to be a § 17200 violation, an allegation that the defendant engages in systematic abuse of process properly alleges a § 17200 “unlawful” business practices claim] See also § 7:131. b. [7:131] Must be specific: Several cases have held that UCL claims alleging “unlawful” business practices require some specificity. In Khoury v. Maly's of Calif, Inc. (1993) 14 CA4th 612, 616, 17 CR2d 708, 710, for example, the court of appeal affirmed the trial court's sustaining of a demurrer to a § 17200 claim without leave to amend. After three attempts to replead, plaintiff still had not identified which section of the law had been violated, .. . Appellant's fourth cause of action alleges: “California Business and Professions Code Sections 17000, et seq., and 17200, et seq., A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (5 Witkin, Cal.Procedure, supra, Pleading, § 728, p. 176; Perdue v. Crocker National Bank ( 1985) 38 Cal.3d 913, 929, 216 Cal.Rptr. 345, 702 P.2d 503; see Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d 197, 213-214, 197 Cal.Rptr. 783, 673 P.2d 660; GH.LL v. MTS, Inc. (1983) 147 Cal.App.3d 256, 270-275, 195 Cal.Rptr. 211; Lutz v. De Laurentiis (1989) 211 Cal.App.3d 1317, 1323-1324, 260 Cal.Rptr. 106.) Demurrer was properly sustained as to this cause of action because the second amended complaint identifies no particular section of the statutory scheme which was violated and fails to describe with any reasonable particularity the facts supporting violation. Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619 As in Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 619, 17 Cal.Rptr.2d 708, the demurrer was properly sustained because the complaint “identifies no particular section of the statutory scheme [of antitrust laws] which was violated and fails to describe with any reasonable particularity the facts supporting violation.” Gregory v. Albertson's, Inc. (2002) 104 Cal.App.4th 845, 857 6. The Tenth Cause of Action Of The First Amended Cross Complaint Does Not State A Claim Against Wayne Cook Wayne Cook in his capacity as an individual is not a creditor, so no cause of action can be stated against him to cancel the notes, deeds of trust, and notices of default. 7. Uncertainty/Unintelligibility There are no exhibits attached to the pleading even though Exhibits B through J are referenced. The absence of these documents makes that pleading deficient 8. Please Organize Citations Supporting Your Position When we speak on the telephone, I will expect you to provide me citations that show that a demurrer to the above referenced causes of actions would not be successful. Code of Civil Procedure section 430.41 (a)(1) provides that “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its 5 position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.” Similarly, Code of Civil Procedure 435.5 section (a)(1) provides that “ As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency. RAYMOND L. SANDELMAN Attorney at Law 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 (530) 343-5090 (530) 343-5091 (Fax) Raymond@sandelmanlaw.com NOTE: This email is confidential and is intended for the recipient(s) listed. If you are not a listed recipient or someone authorized to receive email on behalf of a listed recipient, please reply to the sender that the email was misdirected and delete the email. Thank you. EXHIBIT 2 3/11/2021 Public License Lookup - DRE About DRE I Contact Us I Newsroom I Forms I Publications DRE HOME nay VE Public License Information 540 Please enter the Licensee's Name (Last Name, First Name), Company Name or License Identification Number. Name Search Help If you would like to search for a real estate broker or corporation by the main office or branch address, click here. If you would like to search fora Prepaid Rental Listing Service (PRLS), click here. 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Accessibility | Conditions of Use | Contact Us | Privacy Policy | Site Map Copyright© 2012 State of California exwipr_<2 https://www2.dre.ca.gov/PublicASP/pplinfo.asp qW EXHIBIT 3 INDEX OF EXAMINATIONS SUPERIOR COURT OF THE STATE OF CALIFORNIA Examinations Page IN AND FOR THE COUNTY OF BUTTE MS, KNOWLES. WAYNE A. COOK; TRUSTEE OF THE WAYNE A. Coo} MR. LUSHANKO. 74 FAMILY TRUST DATED 12/29/98) MS. KNOWLES. case No 2ocvoos0s 81 Plaintife, vs. EDWARD F. NIDEROST, ---000--- INDIVIDUALLY AND AS ‘TRUSTEE OF THE EDWARD F. NIDEROST REVOCABLE LIVING TRUST DATED NOVEMBER 8, 10 INDEX OF EXHIBITS 1998, DOES 1 THROUGH 10, Defendants "1 12 Number Description Page REMOTE DEPOSITION OF WAYNE COOK 13 ‘Thursday, January 21, 2021 Page 1 = 117 10:06 a.m = 2:49 p.m 14 (None marked.) 15 ---000--- 16 17 REPORTED BY 18 Kaitlyn B. Houston 19 ‘SR No 14170 Located in Yuba City, California 20 24 22 23 24 25 APPERANCES REMOTE DEPOSITION VIA ZOOM THURSDAY, JANUARY 21, 2021, 10:06 A.M For John Denton, as Conservator for Edward F. Niderost and as Successor Trustee of the Edward F. Niderost WAYNE COOK, Revocable Living Trust Date November 8, 1998 having been first duly sworn, was examined LELAND, MORRISSEY & KNOWLES LLP and testified as follows BY: SARA M. KNOWLES, ESQ. 1660 Humboldt Road, Suite XAMI. TION BY M KNOWLE. Chico, California 95928 Q Good morning, Mr Cook. My name is For Defendants Sara Knowles. How are you today? GRIFFITH HORN & SHEEHAN, LLP A. I'm doing so-so. How about you? BY JAMESON SHEEHAN, ES 10 1530 Humboldt Road, Suite 3 10 Q. I'm doing fine Thank you Chico, California 9592 "1 "1 Mr. Cook, do you recall if you and I have ever 12 For Plaintiff: 12 met before? 13 OFFICE OF RAYMOND SANDELMAN, ESQ. 13 A. You know, I was just thinking about that here BY: RAMOND SANDELMAN, 14 I think we may have ran into each other over at the 14 196 Cohasset Road, Suite 225 Chico, California 9592 15 Miller Mansion Is that correct? 15 16 Q No No But you and I have met. I have been 16 For Defendants 17 a guest in your home 7 LAW OFFICE OF LARRY G. LUSHANKO BY LARRY G. LUSHANKO, ESQ 18 A Pardon? 18 1241 E Mission Road Fallbrook, California 92028 19 Q You and I have met. IT have been a guest in 19 20 your home about eight or nine years ago Do you recall 20 Also Present 2 that at all? 2 John Denton 22 A No, I don't. 22 --000-- Q. Okay It was a brief visit. In any event, you 23 24 understand that I represent John Denton; is that 24 25 correct? 25 4 1 of 30 sheets Page 1 to 4 of 117 EXHIBIT___> 02/16/2021 02:00:57 PM INDEX OF EXAMINATIONS SUPERIOR COURT OF THE STATE OF CALIFORNIA Examinations Page IN AND FOR THE COUNTY OF BUTTE MS. KNOWLES. WAYNE A. COOK; TRUSTEE OF THE WAYNE A. COOK 1998 MR. LUSHANKO. 74 FAMILY TRUST DATED 12/29/98, MS. KNOWLES. Case No.: 20cvo0905 81 Plaintite, vs. EDWARD F. NIDEROST, =--000--- INDIVIDUALLY AND AS TRUSTEE OF THE EDAARD F. NIDEROST REVOCABLE LIVING TRUST DATED NOVEMBER 8, 10 INDEX OF EXHIBITS 1998, DOES 1 THROUGH 10, Defendants. 1 12 Number Description Page REMOTE DEPOSITION OF WAYNE COOK 13 Thursday, January 21, 2021 Page 1 - 117 10:06 a.m. - 2:49 p.m. 14 (None marked.) 15 000--- 16 7 REPORTED BY: 8 Kaitlyn B. Houston 19 ‘SR No. 14170 Located in Yuba City, California 20 2 22 24 25 APPERANCES: REMOTE DEPOSITION VIA ZOOM THURSDAY, JANUARY 21, 2021, 10:06 A.M. For John Denton, as Conservator for Edward F. Niderost and as Successor Trustee of the Edward F. Niderost WAYNE COOK, Revocable Living Trust Date November 8, 1998: having been first duly sworn, was examined LELAND, MORRISSEY & KNOWLES LLP and testified as follows: BY: SARA M. KNOWLES, ESQ. 1660 Humboldt Road, Suite 6 XAMI. TION BY . KNOWLE Chico, California 95928 Q@. Good morning, Mr. Cook. My name is For Defendants: Sara Knowles, How are you today? GRIFFITH HORN & SHEEHAN, LLP A I'm doing so-so. How about you? BY: JAMESON SHEEHAN, ESQ. 10 1530 Humboldt Road, Suite 10 Q. I'm doing fine. Thank you. Chico, California 95928 1 "1 Mr. Cook, do you recall if you and I have ever 12 For Plaintiff: 12 met before? 13 OFFICE OF RAYMOND SANDELMAN, ESQ. 13 A You know, I was just thinking about that here. BY: RAMOND SANDELMAN, ESQ, 14 I think we may have ran into each other over at the 14 196 Cohasset Road, Suite 225 Chico, California 95926 15 Miller Mansion. Is that correct? 15 16 Q No. No. But you and I have met, I have been 16 For Defendants: 7 a guest in your home, 7 LAW OFFICE OF LARRY G. LUSHANKO BY: LARRY G. LUSHANKO, ESQ. 18 A. Pardon? 18 1241 E Mission Roa Fallbrook, California 92028 19 Q You and I have met. I have been a guest in 19 20 your home about eight or nine years ago. Do you recall 20 Also Present: 2 that at all? 24 John Denton 22 A. No, I don't. 22 --000-- 23 Q, Okay. It was a brief visit. In any event, you 23 24 understand that I represent John Denton; is that 24 25 correct? 25 4 1 of 30 sheets Page 1to 4 of 117 02/16/2021 02:00:57 PM no further discussion about the price at 1,500,000. And free and clear. And he owned some other real estate, he didn't -- never made an attempt after that to ever and I can't remember what it was. And he had a note try to offer me less. Portfolio where he had taken back notes on -- I don't But at that meeting down there, we were know where he got them. Whether they were carrybacks or doodling with the numbers and how much money he'd need he bought them on the market or provided somebody to come up with and how he would -- how he would finance financing, and he had somewhere around 400,000 in notes. it and how much cash he had on hand. And we -- we were I think it was a little over 400-. 400- -- 4- to det ely agreed that the price was 1,500,000 and we 450,000 or so. So -- were going to work out how he was going to pay for it, Q Did you -- go ahead. 10 and we roughed out roughly how he would pay for it. 10 A Pardon? 1 Q. Let me just be -- be clear. When you say "we," 11 Q. Do you recall any other assets he told you he 12 you are referring to yourself, Mr. Culley, and 12 had? 13 Mr. Niderost only? 13 A Well, he told me he always keep -- kept plenty 14 A. Yeah. And my son-in-law was there in -- in 14 of cash in reserve, but the amount of money that he felt 15 close proximity with us, and he was listening to all of 15 comfortable putting up as a down payment was 16 this. 16 something -- somewhere around 350,000. And -- hang on. 17 Q. Okay. So di