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Elm Gout d Clflamll
Sara M. Knowles (SBN 216139)
F
County of Bum
LELAND, MORRISSEY & KNOWLES LL? I I
1660 Humboldt Road, Suite 6 L 4/5/2021 L
Chico, CA 95928
E E
Telephone:
Facsimile:
(53 0) 342-4500
(530) 345-6836
Attorney for John Denton, as Conservator for Edward F.
D
By fl FEE. fin:
D
DEN-Ii!
Niderost and as Successor Trustee of e Edward F. Niderost
Revocable Living Trust Dated November 8, 1998
SUPERIOR COURT 0F CALIFORNIA,
COUNTY OF BUTTE
WAYNE A. COOK; TRUSTEE OF THE ) CASE NO. 2OCV00905
WAYNE A. COOK 1998 FAMILY TRUST )
DATED 12/29/98 ) OPPOSITION T0 DEMURRER TO
) SECOND AMENDED ANSWER
Plaintiff, )
) Date: April 5, 2020
v. Time: 8:30 am.
g
EDWARD F. NIDEROST, INDIVIDUALLY )
AND AS TRUSTEE OF THE EDWARD F. )
NIDEROST REVOCABLE LIVING TRUST )
DATED NOVEMBER 8, 1998, DOES 1 )
THROUGH 10, )
Defendants. g
)
AND RELATED CROSS-ACTION )
)
John Denton, Convservator of the Estate of Edward F. Niderost and Successor Trustee of
the Edward F. Niderost Trust hereby lodges his opposition to Plaintiff s Demurrer to the Second
Amended Answer (“SAA”)and request for leave to conform to proof at trial.
I. Leave to Amend to Conform to Proof At Trial Must Be Granted.
_ _ ___ _ '-—_--_
5H
To the extent that the Court is inclined to sustain any of portion of Plaintiff‘s Demurrer,
CCP section 576 specifies that any judge, at any time before or after commencement of trial, in
the furtherance of justice, and upon such terms as may be proper, may allow the amendment of
any pleading or trial conference order. The strong policy favoring liberal allowance of
1
OPPOSITION T0 DEMURRER TO SECOND AMENDED ANSWER
amendments to pleadings applies even when the request is made during trial. Consolidated
World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal App. 4th373, 383. A motion for
leave to amend the complaint to conform to proof may be made at any time during trial, so
long
as a judgment has not yet been entered. South Bay Building Enterprises, Inc. v. Riviera Lend-
Lease, Inc. (1999) 72 Ca1.App.4‘h 111. 1124—1125.
l]. Plaintiff’s Demurrer as To the First Affirmative Defense Must Be Overruled.
The SAA specifies that Mr. Cook structure the financing for the Miller Mansion by
obtaining a loan fiom Matthew Fine.
Plaintiffs reliance on Medina v. Safe-Guard Products, Internat, Inc. (2008) 164 Cal.
10
App. 4’” 106, 109-110 is not appropriate in this matterj Medina specifically deals with
11 licensing
statutes involving insurance, not real estate. While Plaintiff would urge the court to adopt the
12
holding of that case in this matter, the fact is that this is an issue of law for the trier of fact to
13
consider. This case law has not be imported into the real estate context and Plaintiff is
14 using its
demurrer as a basis to argue for new law. It is not appropriate for a demurrer.
15
If Court is inclined to grant the demurrer, leave to amend to conform to proof at trial is
16
requested.
17
18
19
Respectfiilly submitted,
20 LELAND, MORRISSEY & KNOWLES LLP
21
22 Dated: April 4, 2021 by £119 l lb fir .9 (b
23 \éara M. Knowles
Attorneys for John Denton, Conservator of the
24 Estate of Edward F. Niderost, Individually and as
Successor Trustee of the Edward F. Niderost
25 Revocable Living Trust Dated November 8, 1998
26
27
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2
OPPOSITION TO DEMURRER TO SECOND AMENDED ANSWER
PROOF 0F SERVICE
I, Sara Knowles , declare:
I am a citizen of the United States and a resident of Butte County, State of California. I
am over the age of 18 years and not a paity to the within action. My business address is 1660
Humboldt Road, Suite 6, Chico, CA 95928.
I am familiar with the practices of Leland, Morrissey & Knowles, LLP whereby each
document is placed in an envelope, the envelope is sealed, the appropriate postage is placed
thereon and the sealed envelope is placed in the office mail receptacle. Each
day’s mail is
collected and deposited in a U.S. mailbox at or before the close of each day’s business.
On the date shown below, I caused to be served: OPPOSITION TO DEMURRERTO
SECOND AMENDED ANSWER by:
MIL: Placed in the United States mail at Chico, California
10
Raymond L. Sandelman, Esq. Larry Lushanko, Esq.
196 Cohasset Road, Suite 225 1241 E. Mission Road
11
Chico, CA 95926-2284 Fallbrook, CA 92028
12 Ra 0nd sandelmanlaw.com officegQlushankolawcom
Raoul J. LeClerc
13 P.O. Box Drawer 111
Oroville, CA 95965
14 rleclerc@leclerclawoffice.com
15
ELECTRONIC SER VICE:
IIN
16 I caused a copy of the document(s) to be sent from e-
mail address sknowles@¢icolawver.com to the persons at the e—mail addresses
17 listed in the Service List. I did- not receive, within a reasonable time afier the
transmission, any electronic message or other indication that the transmission was
18 unsuccessful.
19 PERSONAL SERVICE: Delivery by hand to the addressee.
20 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on April 5, 2021, at Chico, California.
B
flm—
M. Knowles
M hat-1’9
()‘Iara
24
26
27
Proof of Service
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Elm Gout d Clflamll Sara M. Knowles (SBN 216139) F County of Bum LELAND, MORRISSEY & KNOWLES LL? I I 1660 Humboldt Road, Suite 6 L 4/5/2021 L Chico, CA 95928 E E Telephone: Facsimile: (53 0) 342-4500 (530) 345-6836 Attorney for John Denton, as Conservator for Edward F. D By fl FEE. fin: D DEN-Ii! Niderost and as Successor Trustee of e Edward F. Niderost Revocable Living Trust Dated November 8, 1998 SUPERIOR COURT 0F CALIFORNIA, COUNTY OF BUTTE WAYNE A. COOK; TRUSTEE OF THE ) CASE NO. 2OCV00905 WAYNE A. COOK 1998 FAMILY TRUST ) DATED 12/29/98 ) OPPOSITION T0 DEMURRER TO ) SECOND AMENDED ANSWER Plaintiff, ) ) Date: April 5, 2020 v. Time: 8:30 am. g EDWARD F. NIDEROST, INDIVIDUALLY ) AND AS TRUSTEE OF THE EDWARD F. ) NIDEROST REVOCABLE LIVING TRUST ) DATED NOVEMBER 8, 1998, DOES 1 ) THROUGH 10, ) Defendants. g ) AND RELATED CROSS-ACTION ) ) John Denton, Convservator of the Estate of Edward F. Niderost and Successor Trustee of the Edward F. Niderost Trust hereby lodges his opposition to Plaintiff s Demurrer to the Second Amended Answer (“SAA”)and request for leave to conform to proof at trial. I. Leave to Amend to Conform to Proof At Trial Must Be Granted. _ _ ___ _ '-—_--_ 5H To the extent that the Court is inclined to sustain any of portion of Plaintiff‘s Demurrer, CCP section 576 specifies that any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or trial conference order. The strong policy favoring liberal allowance of 1 OPPOSITION T0 DEMURRER TO SECOND AMENDED ANSWER amendments to pleadings applies even when the request is made during trial. Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal App. 4th373, 383. A motion for leave to amend the complaint to conform to proof may be made at any time during trial, so long as a judgment has not yet been entered. South Bay Building Enterprises, Inc. v. Riviera Lend- Lease, Inc. (1999) 72 Ca1.App.4‘h 111. 1124—1125. l]. Plaintiff’s Demurrer as To the First Affirmative Defense Must Be Overruled. The SAA specifies that Mr. Cook structure the financing for the Miller Mansion by obtaining a loan fiom Matthew Fine. Plaintiffs reliance on Medina v. Safe-Guard Products, Internat, Inc. (2008) 164 Cal. 10 App. 4’” 106, 109-110 is not appropriate in this matterj Medina specifically deals with 11 licensing statutes involving insurance, not real estate. While Plaintiff would urge the court to adopt the 12 holding of that case in this matter, the fact is that this is an issue of law for the trier of fact to 13 consider. This case law has not be imported into the real estate context and Plaintiff is 14 using its demurrer as a basis to argue for new law. It is not appropriate for a demurrer. 15 If Court is inclined to grant the demurrer, leave to amend to conform to proof at trial is 16 requested. 17 18 19 Respectfiilly submitted, 20 LELAND, MORRISSEY & KNOWLES LLP 21 22 Dated: April 4, 2021 by £119 l lb fir .9 (b 23 \éara M. Knowles Attorneys for John Denton, Conservator of the 24 Estate of Edward F. Niderost, Individually and as Successor Trustee of the Edward F. Niderost 25 Revocable Living Trust Dated November 8, 1998 26 27 28 2 OPPOSITION TO DEMURRER TO SECOND AMENDED ANSWER PROOF 0F SERVICE I, Sara Knowles , declare: I am a citizen of the United States and a resident of Butte County, State of California. I am over the age of 18 years and not a paity to the within action. My business address is 1660 Humboldt Road, Suite 6, Chico, CA 95928. I am familiar with the practices of Leland, Morrissey & Knowles, LLP whereby each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail is collected and deposited in a U.S. mailbox at or before the close of each day’s business. On the date shown below, I caused to be served: OPPOSITION TO DEMURRERTO SECOND AMENDED ANSWER by: MIL: Placed in the United States mail at Chico, California 10 Raymond L. Sandelman, Esq. Larry Lushanko, Esq. 196 Cohasset Road, Suite 225 1241 E. Mission Road 11 Chico, CA 95926-2284 Fallbrook, CA 92028 12 Ra 0nd sandelmanlaw.com officegQlushankolawcom Raoul J. LeClerc 13 P.O. Box Drawer 111 Oroville, CA 95965 14 rleclerc@leclerclawoffice.com 15 ELECTRONIC SER VICE: IIN 16 I caused a copy of the document(s) to be sent from e- mail address sknowles@¢icolawver.com to the persons at the e—mail addresses 17 listed in the Service List. I did- not receive, within a reasonable time afier the transmission, any electronic message or other indication that the transmission was 18 unsuccessful. 19 PERSONAL SERVICE: Delivery by hand to the addressee. 20 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 5, 2021, at Chico, California. B flm— M. Knowles M hat-1’9 ()‘Iara 24 26 27 Proof of Service