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GRIFFITH & THORNBURGH, LLP
ATTORNEYS AND COUNSELORS.
8 EAST FIGUEROA STREET, SUITE 300
SANTA BARBARA, CA 93101-2762 ELECTRONICALLY FILED
TELEPHONE: 805-965-5131 Superior Court of California
TELECOPIER: 805-965-6751
County of Santa Barbara
Darrel E. Parker, Executive Officer
John R. Rydell II, Bar No. 62606 9/28/2020 3:04 PM
rydell@g-tlaw.com
Austin S. Payne, Bar No. 319740
By: Sarah Sisto, Deputy
payne@g-tlaw.com
Attorneys for Plaintiffs
Tine F. Sloan and
Michael Corrigan
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SANTA BARBARA
uu ANACAPA DIVISION
12 CASE NO.: 20CVo1530
3 TINE F. SLOAN AND MICHAEL OPPOSITION TO DEFENDANT'S
CORRIGAN, MOTION TO VACATE AND SET ASIDE
4 DEFAULT AND MOTION TO QUASH
Plaintiffs, SERVICE OF SUMMONS;
5 DECLARATION OF AUSTIN S. PAYNE;
Vv. AND DECLARATION OF HOLDEN
16 CORRIGAN
MICHELLE ANN BELTRAN SELL; and
17 DOES 1 through 50, inclusive, Date: October 9, 2020
Time: 10a.m.
18 Defendant. Dept: 4
19 [Assigned for all purposes to Hon. Donna
D. Geck
20
21 I. INTRODUCTION
22 This case is the textbook exception to the rule that the law favors granting a
23 request to set aside a default. Defendant Michelle Beltran Sell wants this court to reward
24 her efforts to evade service and skirt responsibility for harassing her neighbors. She
25 thought that by hiding in her house and refusing to acknowledge her identity that she
26 couldn’t be held accountable. The law does not support her actions, and the evidence is
27 condemning. Filed with this opposition is transcribed video evidence capturing personal
28 service of the complaint and summons for this matter, as well as Ms. Sell’s clear attempt
GRIFFITH & THORNBURGH, LLP 1
ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND
BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS,
SANTA BARBARA, CA 99101-2762
to evade that service, and video proof that the declaration she now presents to this court
is false. Couple that evidence with the admission through Ms. Sell’s declaration that she
attempted to “refuse” service, and the facts become quite clear.
Ms. Sell’s motion fails to justify her request to set aside the entry ofa default, so
the court should deny her request.
Il. FACTS
This is an invasion of privacy case. Plaintiffs Tine Sloan and Michael Corrigan are
a married couple who live in Santa Barbara on Arriba Way. They have a history of
unfortunate disputes with their neighbor, Gregg Patronyk, which includes two other
10 cases currently pending in this court.' Defendant Michelle Beltran Sell lives with Mr.
uu Patronyk. (Complaint, paras. 2-12).
12 In 2018 Plaintiffs began noticing that Ms. Sell would film them with her iPad or cell]
3 phone from Mr. Patronyk’s neighboring balcony while they were trying to have private
4 conversations in their backyard. They politely asked her to stop doing this on multiple
5 occasions, but Ms. Sell refused and continued regularly filming them in their backyard
16 well into 2020. Fed up with Ms. Sell’s intrusions, in March 2020 Plaintiffs called the
17 police to intervene after noticing Ms. Sell again filming them, but Ms. Sell refused to
18 answer the door when the police knocked. This case was filed on March 24, 2020, after
19 Plaintiffs spent months pleading with Ms. Sell to stop. (Complaint paras. 13-24).
20 After filing the complaint, Mr. Corrigan’s son Holden, served her with the
21 complaint and summons on April 3, 2020. Ms. Sell attempted to refuse to accept the
22 complaint and summons. During her profanity-laced threats to Holden, she
23 acknowledged that she was being sued and screamed at Mr. Patronyk to call the police
24 After this interaction and while Ms. Sell was standing in her yard, Holden left the
25 complaint and summons in her driveway. Ms. Sell tore the documents and threw them
26 on the ground. (Declaration of Holden Corrigan, para. 3-4).
27
28
Case Nos. 19CV04421 and 18CV05826.
2
GRIFFITH & THORNBURGH, LLP
ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND
BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS,
SANTA BARBARA, CA 99101-2762
1 Following up on this service, on April 7, 2020, counsel for Mr. Corrigan sent Ms.
Sell a preservation obligation letter for her recordings of the Plaintiffs, accompanied with
a copy of the complaint. Past experience with Mr. Patronyk indicated that he regularly
refused certified mail, so this correspondence was sent through regular mail to ensure it
would not be refused. The mail was returned to Plaintiff's counsel with the address
marked out with black marker. (Declaration of Austin Payne, para. 2-3).
On June 3, 2020, having received no responsive pleading from Ms. Sell, ? Plaintiff
filed for entry of default, which the clerk entered, and Plaintiffs served it on Ms. Sell via
U.S. mail. (Payne Declaration, para. 4). Ms. Sell has now filed a motion to set aside the
10 default and quash service of the summons. She did not confer with Plaintiff's counsel
uu prior to filing her combined motion. Her motion should be denied for the following
12 reasons: (1) service was proper under California law, and (2) she has not demonstrated
3 legal grounds to set aside the default.
4 Ill. APPLICABLE LAW
5 A Proper Service of Complaint and Summons
16 “A summons may be served by personal delivery ofa copy of the summons and of
17 the complaint to the person to be served.” C.C.P. § 415.10. When a defendant refuses to
18 accept service, personal service can still be effective if the defendant is aware they are
19 being served and the papers are left in their proximity. Trujillo v. Trujillo (1945) 71
20 Cal.App.2d 257, 260; In re Ball (1934) 2 Cal.App.2d 578; Cal. Prac. Guide Civ. Pro. Before
21 Trial (The Rutter Group 2020) Ch. 4-D, D. Service of Summons.
22 B Requirements to Set Aside Entry of Default
23 The court has broad discretion to vacate the clerk’s entry ofa default, but that
24 discretion can only be exercised if the moving party establishes proper grounds for relief,
25
26
? This court’s emergency order regarding COVID-19 instituted a court holiday for
27
purposes of filing deadlines from March 17, 2020, until May 23, 2020. Therefore,
28 Defendant’s responsive pleading that would have been due on May 3, 2020, was due upon
resumption of court activities on May 23, 2020.
3
GRIFFITH & THORNBURGH, LLP
ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND
BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS,
SANTA BARBARA, CA 99101-2762
by the proper procedure, and within the proper time limits. Cruz v. Fagor America, Inc.
(2007) 146 Cal.App.4th 488, 495. Procedurally, the motion to set aside the default must
be accompanied by a copy of the proposed responsive pleading and should be filed within
six months. C.C.P. § 473(b). The proper grounds for discretionary relief under C.C.P. §
473(b) are “mistake, inadvertence, surprise or excusable neglect.”3 A party moving for
relief under § 473(b) without an attorney affidavit of fault must show specific facts
demonstrating one of these grounds. Hopkins & Carley v. Gens (2011) 200 Cal.App.4th
1401. 1410.
Ill. ARGUMENT
10 A Service of the Summons and Complaint Were Proper.
uu The gravamen of Ms. Sell’s argument is that the default should be set aside
12 because the service of process was not effective. In her motion and supporting
3 declaration, Ms. Sell states that she “refused the attempted service,” that she “did not
4 acknowledge [her] identity,” that she “refused to pick the papers off the ground and did
5 not read them,” and claims that she did not “know that the papers were the Summons
16 and Complaint.” (Declaration of Sell In Support of Motion to Set Aside, para. 3). These
17 statements are striking for three reasons: (1) personal service can still be effective if the
18 defendant “refuses” service; (2) Ms. Sell admits that she attempted to evade service, a
19 clear sign of bad faith; and (3) Ms. Sell’s statement that she did not know it was a
20 summons is contradicted by her own words during the interaction.
21 When a defendant knows that service of process is being attempted, yet attempts
22 to avoid or refuse service, service is effective ifa copy of the complaint and summons are
23 left near the defendant. Trujillo, 71 Cal.App.2d at 260. In Trujillo the process server
24
25
26 3 Under C.C.P. § 473(b), a defendant is only entitled to mandatory relief upon the affidavit
of an attorney of record stating the default was due to the attorney’s mistake,
inadvertence, surprise, or neglect. Esther B v. City of Los Angeles (2008) 158 Cal.App.4th
27
1093, 1099. Ms. Sell is pro per, so relief from default is discretionary in this case, not
28 mandatory. And a non-attorney’s declaration of fault does not trigger the right to
mandatory relief. Stafford v. Mach (1998) 64 Cal.App.4th 1174, 187-89.
4
GRIFFITH & THORNBURGH, LLP
ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND
BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS,
SANTA BARBARA, CA 99101-2762
approached the defendant to serve a divorce petition. The process server explained the
nature of the documents he was delivering, and the defendant attempted to evade by
getting in his car and closing the door. The process server left the summons and
complaint under the defendant’s windshield wiper. After a default was entered against
him, the defendant testified that he didn’t understand what was happening because he
could not hear the process server through the car’s window and claimed he was unaware
a lawsuit was filed against him. He then dislodged the paperwork from his windshield
wiper. The court of appeal upheld the trial court’s ruling that personal service was
complete under these circumstances and also upheld denial of the defendant’s motion to
10 vacate the ensuing default. Id. at 259-260.
uu The parallels to the present case are readily apparent. Ms. Sell wants this court to
12 vacate a default and reward her attempts to avoid service, but the video shows that
3 Holden Corrigan’s service attempt was legally sufficient. Holden told Ms. Sell that he was
4 serving her with a summons. (Dec. of Holden Corrigan, para. 3). She acknowledged this
5 in the video of the exchange - “He’s got a summons’ - so she was aware of the nature of
16 the documents being served (See Certified Transcript 3:15-17, which is concurrently
17 lodged with the Court). In spite of first acknowledging her identity, she then claimed to
18 not know who the defendant on the summons was. But she now submits a declaration to
19 the court that admits that she was the one present for that interaction. (Sell Declaration,
20 para. 3). Holden then left a copy of the summons and complaint on the driveway of her
21 residence as she watched, continuing to scream profanity and threatening to call the
22 police. She even picked up the documents to tear them apart. (Holden Corrigan Dec.,
23 para. 4). Under these facts, personal service was achieved and effective under C.C.P. §
24 415.10 because Ms. Sell knew what was being served, actively evaded service, and the
25 papers were left near her. See In re Ball (1934) 2 Cal.App.2d 578 (“We take it that, when
26 men are within easy speaking distance of each other and facts occur that would convince
27 a reasonable man that personal service ofa legal document is being attempted, service
28 cannot be avoided by denying service and moving away without consenting to take the
5
GRIFFITH & THORNBURGH, LLP
ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND
EAST FIGUEROA STREET STE 300 MOTION TO QUASH SERVICE OF SUMMONS,
SANTA BARBARA, CA 99101-2762
document in hand.”). Ms. Sell’s bad faith is further evidenced by the returned
preservation obligation letter and copy of the complaint, sent to her as a courtesy.
B Defendant Has Not Demonstrated Grounds to Set Aside Default.
In order to trigger the court’s discretion to set aside the default, Ms. Sell needed to
submit a declaration that shows mistake, inadvertence, surprise, or excusable neglect.
Ms. Sell cannot claim any of these in the face of the video of her being served.
In her declaration, Ms. Sell states that she “refused the attempted service,” that she
“did not acknowledge [her] identity to the process server,” and that she believed “that by
this action, ‘service’ was not complete.” (Sell Declaration, paras. 3-4). She thought the law|
10 had those additional requirements to complete service, so she is therefore justifying
uu grounds for relief based on mistake. See Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter|
12 Group 2020) Ch. 5-G, Relief from Default 4 5:316-5:317. Specifically, because she based
3 her mistake on her belief that the law required her to acknowledge her identity, this is a
4 mistake of law defense. In California, a mistake about what constitutes legal service is not]
5 sufficient grounds to set aside a default. Anderson v. Sherman (1981) 125 Cal.App.3d 238.
16 In fact, when a defendant decides to pursue a motion to set aside a default without an
17 attorney affidavit, as Ms. Sell has here, the mistake of law grounds are highly disfavored.
18 Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2020) Ch. 5-G, Relief from
19 Default § 5:316 (“Thus, without an ‘attorney affidavit of fault,’ it is difficult to obtain relief
>
20 from the court for ‘mistake of law. ). This is because a party should not be punished for
21 their attorney’s confusion and misapplication of complex legal concepts. But service of
22 process is not considered complex (Anderson, 125 Cal.App.3d at 237), and Ms. Sell is not
23 basing her evasion on an attorney’s mistake. In this case, mistake is not proper grounds
24 to set aside the default.
25 Nor is Ms. Sell’s invocation of “excusable neglect” and subsequent “reasonable
26 diligence” proper grounds under these facts. (Sell Declaration, para. 9). The burden is on
27 Ms. Sell to show her neglect was excusable, which means that the default could not have
28 been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141
GRIFFITH & THORNBURGH, LLP 6
ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND
BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS,
SANTA BARBARA, CA 99101-2762
reasonably prudent person under the same circumstances.”). Believing you have not been|
properly served is not excusable neglect, especially when the defendant does not
investigate the propriety of service after the fact, Stafford v, Mach (1998) 64 Cal.App.4th
174, 185-87 (“defendant, ‘sat on his hands at the same time he thumbed his nose at the
judicial process.”"). Again, returning the preservation obligation letter and copy of the
complaint further indict Ms, Sell’s failure to exercise ordinary care. Ms. Sell’s excuse of
not being able to afford an attorney (Sell Declaration, para. 9) is also not excusable
neglect. Davis v. Thayer (1980) 113 Cal.App.3d 892, 905-06, and neither is a mistake in
judgment by proceeding without an attorney, Burnete v. La Casa Dana Apts. (2007) 148
10 Cal.App.4th 1262, 1264.
u The caselaw is clear — a motion to set aside a default under C.C.P. § 473 is not
2 simply an extra strike for bad actors. It’s a protection reserved for reasonably diligent
B defendants who can establish the default was entered through no fault of their own. ‘The
14 evidence shows that is not the case here.
5 Iv. CONCLUSION
16 Ms. Sell has not met her burden to show proper grounds to set aside the default,
17 nor can she based on the video evidence plaintiffs provide in support of this opposition,
18 The court should deny Defendant’s motion to set aside the default and quash service of
19 the summons, and Plaintiffs should be allowed to move forward in seeking a default
20 judgment.
21
22 Dated: September 28. 2020 GRIFFITH & THORNBURGH, LLP
23
24
all
Austin S. Payne
————
I
25
Attorneys for Plaintiff's
26 Tine F. Sloan and
27
28
-
‘GRIFFITH THORNBURGH. LLP
ATTORNEYS AND COUNSELORS OPPOSITION TO PLAINTIEF'§ MOTION TO VACATE AND SET ASIDE DEFAULT AND
BEAST FIGUEROA STREET—STE 300 MOTION TO QUASH SERVICE FO SUMMONS,
SANTA BARBARA CA 93101-2762
DECLARATION OF AUSTIN S. PAYNE
I, Austin S. Payne, cleclare as follows:
1 [am an attorney, licensed to practice before the courts of the State of
California, and am an associate of the law firm of Griffith & Thornburgh, LLP, counsel of
record for Plaintiffs Tine F. Sloan and Michael Corrigan. | have persona! knowledge of
6 the following facts and could and would competently testify thereto if called upon to do
so.
2 On April 7, 2020, | sent via U.S. mail to Defendant Michelle Beltran Sell a
9 preservation obligation letter for her recordings of the Plaintiffs, accompanied with a
10 copy of the complaint for this matter. I sent this mail to 2924 Arriba Way, Santa Barbara,
California 93105. My firm has been involved in past litigation with Mr. Patronyk, and he
12 regularly refused certified mail, so this correspondence was sent through regular mail to
13, ensure it would not be refused.
14 3 The preservation obligation letter and complaint copy were returned to my
15 firm with Ms. Sell’s address marked out with black marker and “RTS” written across it. A
16 true and correct copy of the preservation obligation letter and the envelope it was
a7 returned in is attached as Exhibit 1.
18 4 On June 3, 2020, having received no responsive pleading from Ms. Sell,|
19 filed for entry of default, which the clerk entered, and my office served it on Ms. Sell via
20 U.S. mail.
21 I declare under penalty of perjury, under the laws of the State of California, that
22 the foregoing is true and correct. Executed on September 28, 2020, at Santa Barbara,
Ab
2 3 California.
24
25
Austin S. Payne, Declarant
26
27
28
GRIFFITH& THORNBURGH LLP 8
ATTORNEYS AND COUNSELORS. OPPOSITION ‘TO DE! DANT’S MOTION TO VACATE AND SET ASIDE DEFAULT
BEAST FIGUEROA STREET - STE 300 AND MOTION TO QUASI | SERVICE OF SUMMONS
'SANTABARBARA, CA 93101-2762
EXHIBIT 1
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| SISEL 1974
( QONALD BODEN & EAS) FIGUEROA STREET - SUITE 300 WM. G GRIFFITH (4887 - 1950)
AOHN RYDELL D SANTA BARBARA GA 93101-2762 {ASFLLE THORNAURGH (1898 - 1973)
CRAIG PRICE YALE 8. GRIFFITH (1903 - 1994)
BRUCE 0, GLESBY TELEPHONE 805-865-5131 ROBERT L THORNBURGH (1924 - 2016}
JOSEPHM, SHOLDER FAX 805-986-6751
SOHN G.ECK www. ¢i-llaw.com SENDER'S E-MAIL:
MARISA K BEUOY payne@g-llaw.com
PAUL A. CAPRITTO
FELICITAA TORRES
AUSTIN S. PAYNE
MEAGANL. HARMON
April 7, 2020
Our Fite No.:
4246-0008
Sent Via US Mail
Michelle Ann Beltran Sell
2924 Arriba Way
Santa Barbara, CA 93105
Re: Tine F. Sloan and Michael Corrigan v. Michelle Ann Beltran Sell
Case No.; 20CV01530
Evidence Preservation Obligation
Dear Ms. Sell:
I represent Tine F. Sloan and Michael Corrigan in the lawsuit recently filed against you lor
invasion of privacy. This letter is to inform you of certain legal obligations you have 1o preserve
evidence — including video. audio, or photographic evidence — of the allegations in the
complaint,
Once a lawsuit has been filed. and in some cases even when litigation is merely anticipated. a
party has a duty to preserve evidence that is relevant to the allegations of the lawsuit. The
destruction or “spoliation” of evidence is condemned by courts because it “can destroy faimess
and justice” by increasing the risk of an erroneous result, and potentially increase the expense of
the litigation by forcing them to reconstruct or develop other evidence. Williams v. Russ (2008)
167 Cal.App.4th 1215, 1223. In California, destruction of evidence material to a lawsuit is
considered a misuse of the discovery process and eligible for a broad range of sanctions. These
sanctions can include monetary penalties, adverse inference instructions (Cal. Evid. Code § 413).
and even terminating sanctions, which effectively end the case in favor of the adverse party. Ja.
Now that a lawsuit has been filed against you, you have the obligation to preserve relevant
evidence. Th : an invasion of privacy and nuisance lawsuit thal alleges thal you made certain
April 7. 2020
Page 2
audio, video. or photographic recordings of Ms. Sloan and Mr. Corrigan: therefore. you have an
obligation to preserve any such recordings and photographs in your custody or control, The
audio/video/photographic evidence is nat exhaustive, of course, and you also have an obligation
to preserve any other evidence material to the allegations, including emails, text messages,
written notes, and any other documentation you have relevant to the lawsuit.
Adequate preservation of electronically stored information is not limited to refraining from
deleting the data. You must also intervene to prevent any kind of automatic deletion or
overriding of this data due to routine operations. Because hard copies do not preserve any
potential metadata, preserving hard copies only is not sufficient. If information exists in both
hard copy and electronic form, you must preserve them both.
Once this case proceeds Lo the discovery phase, I will contact you about what specifically should
be shared and the best format for providing this information. If you have retained counsel,
please forward this letter to your attorney.
tI | —
Sincerely,
Austin 8, Payne
ELECTRONICALLY FILED
Superior Court of California
GRIFFITH & THORNBURGH, LLP County of Santa Barbara
ATTORNEYS AND COUNSELORS
BEAST FIGUEROA STREET. SLNTE S00 Darrel E. Parker, Executive Officer
SANTA BARBARA. CA 92101-2762
TELEPHONE 805-965-5131 3/24/2020 10:52 AM
TELECOPIER: 406-065-8751
By: Narzralli Baksh, Deputy
John R., Rydell I, Bar No. 62606
rydeli@g-tlaw.com
Austin S. Payne, Bar No. 319740
payne@g-tlaw.com
Attorneys for Plaintiffs
Tine F, Sloan and
Michael Corrigan
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
1a FOR THE COUNTY OF SANTA BARBARA
A ANACAPA DIVISION
20CV01530
12 TINE F, SLOAN AND MICHAEL CASE NO.;
CORRIGAN,
3 COMPLAINT FOR PRIVATE
Plaintiffs, NUISANCE; INVASION OF PRIVACY
4 IN VIOLATION OF CAL. CIV. CODE§
Vv. 1708.8
5
MICHELLE ANN BELTRAN SELL; and
16 DOES 1 through 50, inclusive,
17 Defendant.
18
19
GENERAL ALLEGATIONS
20
J Plaintiff Tine F. Sloan (“Sloan”) is an individual and, at all times relevant ta
21
this complaint, was a resident of the State of California, County of Santa Barbara. Sloan is
22
the title holder to the real property located at 2928 Arriba Way, Santa Barbara, California
23
93105, where she lives full time with her husband, Plaintiff Michael Corrigan.
24
2 Plaintiff Michael Corrigan (“Corrigan”) is an individual and, at all times
25
relevant to this complaint, was a resident of the State of California, County of Santa
26
Barbara. Corrigan is the husband of Sloan and resides with her at 2928 Arriba Way, Santa
27
Barbara, California 93105.
28
GRIFFITH & THORNBURGH. LLP
ATTORNEYS AND COUNSELORS
BEAST FIGUEROA STREET - STE 300 [COMPLAINT]
‘SANTA BARBARA, CA 83101-7762
is the girlfriend and/or housemate of Greggory Myron Patronyk (“Patronyk”), trustee of
the Gregg Patronyk Revocable Trust, which is the title holder to the real property located
at 2924 Arriba Way, Santa Barbara, California 93105. Upon information and belief, Sell is
a resident of 2924 Arriba Way, Santa Barbara, California 93105. Upon information and
belief, at all times relevant to this complaint, Sell was a resident of the State of California,
County of Santa Barbara.
FACTUAL BACKGROUND
4 Plaintiff Sloan purchased and moved to her home at 2928 Arriba Way in
2on. Plaintiff Corrigan moved to 2928 Arriba Way in 2015.
10 5 2928 Arriba Way is next door to 2924 Arriba Way, and there are balconies
lh at 2924 Arriba Way from which an individual can see into the backyard of Plaintiff's home|
12 at 2928 Arriba Way.
3 6 Plaintiffs’ property, and the property of other neighbors along Arriba Way,
4 is accessed via a driveway over Patronyk’s property. ‘The neighbors have a right to use
5 this driveway through an easement that runs with the property. The neighbors’
16 respective rights to use of the easement, as well as the shared responsibility for
47 maintenance of the driveway, are outlined in an agreement called the Roadway Easement
18 Use and Maintenance Agreement (“REUMA”),
19 History of Disagreements
20 7 Plaintiffs have a history of disagreements with their neighbor, Patronyk.
2 Many of these disagreements have to do with the use and maintenance of the driveway.
22 In the past, Patronyk routinely attempted to exclude visitors and workers who, with
23 permission of Plaintiffs, used the driveway to access Plaintiffs’ property.
24 8 Unfortunately, when Plaintiffs attempted to address issues in a neighborly
25 manner, Patronyk has either ignored their requests or refused to change his behavior, On|
26 several occasions now, Plaintiffs have had to resort to litigation to enforce their rights to
27 their property.
28 9, In 2017 Sloan commenced litigation against Patronyk for his exclusion of
[GRIFFITH A THORNELIRGH, LL
ATTORNEYS AND GOUNBELORS 2
BEAST FIGUEROA STREET ~STE 303 [COMPLAINT]
[SANTA BAROARA CA 05101-2767
workers from the driveway. ‘This litigation was settled in 2018, and the parties entered
into a new REUMA to further define the rights and responsibilities to the shared
driveway. Another element to this settlement agreement required Patrenyk to remove a
camera he had installed on his property, which was pointed at a window into Plaintiffs’
living room.
10, tn November 2008, the Plaintiffs, along with the other neighbors who have
an easement to use the driveway over Patronyk’s property, requested that Patronyk
initiate a project with Southern California Edison to bury overhead powerlines along the
driveway. Patronyk failed to respond to this request within the 30-day period required by
10 the REUMA, and then he refused to relinquish his contracting authority for the project,
u also required by the REUMA. Sloan then initiated litigation to enforce the terms of the
12 agreement. This case is currently pending in Santa Barbara Superior Court (Case No.
3 19CVo0qq21).
4 ne Additional disagreements have arisen between Patronyk and other
15 neighbors along Arriba Way. In 2018 Patronyk began plans to add two accessory dwelling
16 units (“ADUs”) to his two properties in the neighborhood. Neighbors were concerned
7 because Arriba Way is already overcrowded with parked cars, and it can be difficult for
18 emergency vehicles to access the neighborhood and turn around during wildfire
19 emergencies. There were also privacy concerns with Patronyk's proposed multi-story
20 ADU structures. When the neighbors discovered that Patronyk had made material
21 misrepresentations to the City of Santa Barbara to secure building permits for the ADUs,
22 they brought suit (organized under “Arriba Way Citizens United”) against Patronyk. This
23 case is also currently pending in Santa Barbara Superior Court (Case No. CV 18CVo05826).
24 This case is stayed, however, because Patronyk also has a pending fourteen-count
25 criminal case for violations of mulLiple provisions of Santa Barbara's building code.
26 12, In Plaintiffs’ experience, Patronyk does not respond to polite requests about
27 issues between neighbors and will only engage when faced with litigation.
28 \\
GRUFPITIIn THORNBURSH. ALE
ATTORNEYS AND COUNSELORS: 3
BEAST FIGUERUA STREEI - STE 300 [COMPLAINT]
EANTA BARBARA. CAS3101-2762
Invasion of Privacy Issues
13. In 2038, Plaintiffs began to notice that Sell and Patronyk would eavesdrop
on their conversations from the balcony at their property that overlooks Plaintiffs’
backyard. Plaintiffs have noticed Sell pointing an iPad at them to record their
conversation on at least twenty occasions. Sell has also recorded workers on Plaintiffs’
property.
14. Upon information and belief, on multiple occasions in 2019 and 2020,
Defendants recorded conversations that Plaintiffs intended to be private between
themselves. Defendants also recorded conversations of invitees on Plaintiffs’ property.
10 15. On November 19, 2019, Plaintiffs were in their backyard having a private
i conversation when they noticed Sell on the balcony recording them with an electronic
12 device. A true and accurate timestamped photograph of Sell using a device to record
3 Plaintiff's conversation is attached to this complaint as Exhibit 1.
14 16. On at Jeast two occasions during the weekend of February 1 and 2", 2020,
15 Plaintiffs were in their backyard and noticed Sell using an iPad to record them while they
16 had a private conversation in their backyard. A true and accurate timestamped
17 photograph of the instance on February 1, 2020, is attached to this complaint as Exhibit
18 2.
‘9 17, Following these incidents, an attorney for Plaintiff Corrigan sent a cease
20 and desist letter to two of Patronyk's attorneys, including his attorney of record for both
2 his criminal case and in the dispute over his ADUs,
22 18, Plaintiffs have verbally notified Patronyk and Sell on multiple occasions to
23 cease their recording activities.
24 19, Again, on February 17, 2020, Plaintiffs noticed Sell on the balcony of 2924
25 Arriba Way recording them with an electronic device while Plaintiffs were trying to have
26 a private conversation in their backyard.
27 20. On March 7, 2020, Plaintiffs again noticed Sell on the balcony of 2924
28 Arriba Way pointing an electronic recording device at them while they tried to have a
GRIFF THOANEURGE LLP
ATTORNEYS AND COUNSELORS.
‘BEART FIGUEROA SIREET- STE 300 [COMPLAINT]
SANTA BARBARA, CARS (012762
private conversation in their backyard. A true and correct time-stamped photograph of
this incident is attached to this complaint as Exhibit 3.
an. That same day, on March 7, 2020, Plaintiffs called the City of Santa Barbara
police and made a complaint about Sell’s actions. The police visited the 2924 Arriba Way
property, but Sell would not answer the door when they knocked (Incident No. 20-13382).
A true and correct copy of the police report is attached to the complaint as Exhibit 4.
22, In each instance, Plaintiffs only photographed Sell in order to document her
actions in recording them in their backyard.
23. Plaintiffs are no longer able to enjoy their backyard because they are afraid
10 their actions and conversations are being recorded by Defendants.
Hh 24. Defendants’ conduct, in light of the history between the neighbors, was
2 likely meant to harass and oppress Plaintiffs.
13 FIRST CAUSE OF ACTION
4 (Violation of Cal. Civ. Code § 1708.8, Invasion of Privacy)
15 25. Plaintiffs reallege and incorporate by reference each and every allegation of
16 Paragraphs 1 through 24, inclusive, asif fully set forth herein,
7 26. Plaintiffs’ backyard is a private space, and Plaintiffs have taken steps to
18 make it as private as possible. The property sits on a steep private hillside, and the only
19 access to the backyard is through a locked gate. Plaintiffs have let trees and shrubs grow
20 up on the property line with 2924 Arriba Way to increase privacy, and Plaintiffs plan to
21 add more fencing and plants to increase privacy. There are no sightlines into the
22 backyard other than from the balcony at 2924 Arriba Way and from far across the canyon
23 27. Plaintiffs have a reasonable expectation of privacy in their backyard.
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GRIFFITH & THORNBURGH, LLP ATTORNEYS AND COUNSELORS. 8 EAST FIGUEROA STREET, SUITE 300 SANTA BARBARA, CA 93101-2762 ELECTRONICALLY FILED TELEPHONE: 805-965-5131 Superior Court of California TELECOPIER: 805-965-6751 County of Santa Barbara Darrel E. Parker, Executive Officer John R. Rydell II, Bar No. 62606 9/28/2020 3:04 PM rydell@g-tlaw.com Austin S. Payne, Bar No. 319740 By: Sarah Sisto, Deputy payne@g-tlaw.com Attorneys for Plaintiffs Tine F. Sloan and Michael Corrigan 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA BARBARA uu ANACAPA DIVISION 12 CASE NO.: 20CVo1530 3 TINE F. SLOAN AND MICHAEL OPPOSITION TO DEFENDANT'S CORRIGAN, MOTION TO VACATE AND SET ASIDE 4 DEFAULT AND MOTION TO QUASH Plaintiffs, SERVICE OF SUMMONS; 5 DECLARATION OF AUSTIN S. PAYNE; Vv. AND DECLARATION OF HOLDEN 16 CORRIGAN MICHELLE ANN BELTRAN SELL; and 17 DOES 1 through 50, inclusive, Date: October 9, 2020 Time: 10a.m. 18 Defendant. Dept: 4 19 [Assigned for all purposes to Hon. Donna D. Geck 20 21 I. INTRODUCTION 22 This case is the textbook exception to the rule that the law favors granting a 23 request to set aside a default. Defendant Michelle Beltran Sell wants this court to reward 24 her efforts to evade service and skirt responsibility for harassing her neighbors. She 25 thought that by hiding in her house and refusing to acknowledge her identity that she 26 couldn’t be held accountable. The law does not support her actions, and the evidence is 27 condemning. Filed with this opposition is transcribed video evidence capturing personal 28 service of the complaint and summons for this matter, as well as Ms. Sell’s clear attempt GRIFFITH & THORNBURGH, LLP 1 ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS, SANTA BARBARA, CA 99101-2762 to evade that service, and video proof that the declaration she now presents to this court is false. Couple that evidence with the admission through Ms. Sell’s declaration that she attempted to “refuse” service, and the facts become quite clear. Ms. Sell’s motion fails to justify her request to set aside the entry ofa default, so the court should deny her request. Il. FACTS This is an invasion of privacy case. Plaintiffs Tine Sloan and Michael Corrigan are a married couple who live in Santa Barbara on Arriba Way. They have a history of unfortunate disputes with their neighbor, Gregg Patronyk, which includes two other 10 cases currently pending in this court.' Defendant Michelle Beltran Sell lives with Mr. uu Patronyk. (Complaint, paras. 2-12). 12 In 2018 Plaintiffs began noticing that Ms. Sell would film them with her iPad or cell] 3 phone from Mr. Patronyk’s neighboring balcony while they were trying to have private 4 conversations in their backyard. They politely asked her to stop doing this on multiple 5 occasions, but Ms. Sell refused and continued regularly filming them in their backyard 16 well into 2020. Fed up with Ms. Sell’s intrusions, in March 2020 Plaintiffs called the 17 police to intervene after noticing Ms. Sell again filming them, but Ms. Sell refused to 18 answer the door when the police knocked. This case was filed on March 24, 2020, after 19 Plaintiffs spent months pleading with Ms. Sell to stop. (Complaint paras. 13-24). 20 After filing the complaint, Mr. Corrigan’s son Holden, served her with the 21 complaint and summons on April 3, 2020. Ms. Sell attempted to refuse to accept the 22 complaint and summons. During her profanity-laced threats to Holden, she 23 acknowledged that she was being sued and screamed at Mr. Patronyk to call the police 24 After this interaction and while Ms. Sell was standing in her yard, Holden left the 25 complaint and summons in her driveway. Ms. Sell tore the documents and threw them 26 on the ground. (Declaration of Holden Corrigan, para. 3-4). 27 28 Case Nos. 19CV04421 and 18CV05826. 2 GRIFFITH & THORNBURGH, LLP ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS, SANTA BARBARA, CA 99101-2762 1 Following up on this service, on April 7, 2020, counsel for Mr. Corrigan sent Ms. Sell a preservation obligation letter for her recordings of the Plaintiffs, accompanied with a copy of the complaint. Past experience with Mr. Patronyk indicated that he regularly refused certified mail, so this correspondence was sent through regular mail to ensure it would not be refused. The mail was returned to Plaintiff's counsel with the address marked out with black marker. (Declaration of Austin Payne, para. 2-3). On June 3, 2020, having received no responsive pleading from Ms. Sell, ? Plaintiff filed for entry of default, which the clerk entered, and Plaintiffs served it on Ms. Sell via U.S. mail. (Payne Declaration, para. 4). Ms. Sell has now filed a motion to set aside the 10 default and quash service of the summons. She did not confer with Plaintiff's counsel uu prior to filing her combined motion. Her motion should be denied for the following 12 reasons: (1) service was proper under California law, and (2) she has not demonstrated 3 legal grounds to set aside the default. 4 Ill. APPLICABLE LAW 5 A Proper Service of Complaint and Summons 16 “A summons may be served by personal delivery ofa copy of the summons and of 17 the complaint to the person to be served.” C.C.P. § 415.10. When a defendant refuses to 18 accept service, personal service can still be effective if the defendant is aware they are 19 being served and the papers are left in their proximity. Trujillo v. Trujillo (1945) 71 20 Cal.App.2d 257, 260; In re Ball (1934) 2 Cal.App.2d 578; Cal. Prac. Guide Civ. Pro. Before 21 Trial (The Rutter Group 2020) Ch. 4-D, D. Service of Summons. 22 B Requirements to Set Aside Entry of Default 23 The court has broad discretion to vacate the clerk’s entry ofa default, but that 24 discretion can only be exercised if the moving party establishes proper grounds for relief, 25 26 ? This court’s emergency order regarding COVID-19 instituted a court holiday for 27 purposes of filing deadlines from March 17, 2020, until May 23, 2020. Therefore, 28 Defendant’s responsive pleading that would have been due on May 3, 2020, was due upon resumption of court activities on May 23, 2020. 3 GRIFFITH & THORNBURGH, LLP ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS, SANTA BARBARA, CA 99101-2762 by the proper procedure, and within the proper time limits. Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495. Procedurally, the motion to set aside the default must be accompanied by a copy of the proposed responsive pleading and should be filed within six months. C.C.P. § 473(b). The proper grounds for discretionary relief under C.C.P. § 473(b) are “mistake, inadvertence, surprise or excusable neglect.”3 A party moving for relief under § 473(b) without an attorney affidavit of fault must show specific facts demonstrating one of these grounds. Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401. 1410. Ill. ARGUMENT 10 A Service of the Summons and Complaint Were Proper. uu The gravamen of Ms. Sell’s argument is that the default should be set aside 12 because the service of process was not effective. In her motion and supporting 3 declaration, Ms. Sell states that she “refused the attempted service,” that she “did not 4 acknowledge [her] identity,” that she “refused to pick the papers off the ground and did 5 not read them,” and claims that she did not “know that the papers were the Summons 16 and Complaint.” (Declaration of Sell In Support of Motion to Set Aside, para. 3). These 17 statements are striking for three reasons: (1) personal service can still be effective if the 18 defendant “refuses” service; (2) Ms. Sell admits that she attempted to evade service, a 19 clear sign of bad faith; and (3) Ms. Sell’s statement that she did not know it was a 20 summons is contradicted by her own words during the interaction. 21 When a defendant knows that service of process is being attempted, yet attempts 22 to avoid or refuse service, service is effective ifa copy of the complaint and summons are 23 left near the defendant. Trujillo, 71 Cal.App.2d at 260. In Trujillo the process server 24 25 26 3 Under C.C.P. § 473(b), a defendant is only entitled to mandatory relief upon the affidavit of an attorney of record stating the default was due to the attorney’s mistake, inadvertence, surprise, or neglect. Esther B v. City of Los Angeles (2008) 158 Cal.App.4th 27 1093, 1099. Ms. Sell is pro per, so relief from default is discretionary in this case, not 28 mandatory. And a non-attorney’s declaration of fault does not trigger the right to mandatory relief. Stafford v. Mach (1998) 64 Cal.App.4th 1174, 187-89. 4 GRIFFITH & THORNBURGH, LLP ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS, SANTA BARBARA, CA 99101-2762 approached the defendant to serve a divorce petition. The process server explained the nature of the documents he was delivering, and the defendant attempted to evade by getting in his car and closing the door. The process server left the summons and complaint under the defendant’s windshield wiper. After a default was entered against him, the defendant testified that he didn’t understand what was happening because he could not hear the process server through the car’s window and claimed he was unaware a lawsuit was filed against him. He then dislodged the paperwork from his windshield wiper. The court of appeal upheld the trial court’s ruling that personal service was complete under these circumstances and also upheld denial of the defendant’s motion to 10 vacate the ensuing default. Id. at 259-260. uu The parallels to the present case are readily apparent. Ms. Sell wants this court to 12 vacate a default and reward her attempts to avoid service, but the video shows that 3 Holden Corrigan’s service attempt was legally sufficient. Holden told Ms. Sell that he was 4 serving her with a summons. (Dec. of Holden Corrigan, para. 3). She acknowledged this 5 in the video of the exchange - “He’s got a summons’ - so she was aware of the nature of 16 the documents being served (See Certified Transcript 3:15-17, which is concurrently 17 lodged with the Court). In spite of first acknowledging her identity, she then claimed to 18 not know who the defendant on the summons was. But she now submits a declaration to 19 the court that admits that she was the one present for that interaction. (Sell Declaration, 20 para. 3). Holden then left a copy of the summons and complaint on the driveway of her 21 residence as she watched, continuing to scream profanity and threatening to call the 22 police. She even picked up the documents to tear them apart. (Holden Corrigan Dec., 23 para. 4). Under these facts, personal service was achieved and effective under C.C.P. § 24 415.10 because Ms. Sell knew what was being served, actively evaded service, and the 25 papers were left near her. See In re Ball (1934) 2 Cal.App.2d 578 (“We take it that, when 26 men are within easy speaking distance of each other and facts occur that would convince 27 a reasonable man that personal service ofa legal document is being attempted, service 28 cannot be avoided by denying service and moving away without consenting to take the 5 GRIFFITH & THORNBURGH, LLP ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND EAST FIGUEROA STREET STE 300 MOTION TO QUASH SERVICE OF SUMMONS, SANTA BARBARA, CA 99101-2762 document in hand.”). Ms. Sell’s bad faith is further evidenced by the returned preservation obligation letter and copy of the complaint, sent to her as a courtesy. B Defendant Has Not Demonstrated Grounds to Set Aside Default. In order to trigger the court’s discretion to set aside the default, Ms. Sell needed to submit a declaration that shows mistake, inadvertence, surprise, or excusable neglect. Ms. Sell cannot claim any of these in the face of the video of her being served. In her declaration, Ms. Sell states that she “refused the attempted service,” that she “did not acknowledge [her] identity to the process server,” and that she believed “that by this action, ‘service’ was not complete.” (Sell Declaration, paras. 3-4). She thought the law| 10 had those additional requirements to complete service, so she is therefore justifying uu grounds for relief based on mistake. See Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter| 12 Group 2020) Ch. 5-G, Relief from Default 4 5:316-5:317. Specifically, because she based 3 her mistake on her belief that the law required her to acknowledge her identity, this is a 4 mistake of law defense. In California, a mistake about what constitutes legal service is not] 5 sufficient grounds to set aside a default. Anderson v. Sherman (1981) 125 Cal.App.3d 238. 16 In fact, when a defendant decides to pursue a motion to set aside a default without an 17 attorney affidavit, as Ms. Sell has here, the mistake of law grounds are highly disfavored. 18 Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2020) Ch. 5-G, Relief from 19 Default § 5:316 (“Thus, without an ‘attorney affidavit of fault,’ it is difficult to obtain relief > 20 from the court for ‘mistake of law. ). This is because a party should not be punished for 21 their attorney’s confusion and misapplication of complex legal concepts. But service of 22 process is not considered complex (Anderson, 125 Cal.App.3d at 237), and Ms. Sell is not 23 basing her evasion on an attorney’s mistake. In this case, mistake is not proper grounds 24 to set aside the default. 25 Nor is Ms. Sell’s invocation of “excusable neglect” and subsequent “reasonable 26 diligence” proper grounds under these facts. (Sell Declaration, para. 9). The burden is on 27 Ms. Sell to show her neglect was excusable, which means that the default could not have 28 been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 GRIFFITH & THORNBURGH, LLP 6 ATTORNEYS AND COUNSELORS OPPOSITION TO DEFENDANT’S MOTION TO VACATE AND SET ASIDE DEFAULT AND BEAST FIGUEROA STREET - STE 300 MOTION TO QUASH SERVICE OF SUMMONS, SANTA BARBARA, CA 99101-2762 reasonably prudent person under the same circumstances.”). Believing you have not been| properly served is not excusable neglect, especially when the defendant does not investigate the propriety of service after the fact, Stafford v, Mach (1998) 64 Cal.App.4th 174, 185-87 (“defendant, ‘sat on his hands at the same time he thumbed his nose at the judicial process.”"). Again, returning the preservation obligation letter and copy of the complaint further indict Ms, Sell’s failure to exercise ordinary care. Ms. Sell’s excuse of not being able to afford an attorney (Sell Declaration, para. 9) is also not excusable neglect. Davis v. Thayer (1980) 113 Cal.App.3d 892, 905-06, and neither is a mistake in judgment by proceeding without an attorney, Burnete v. La Casa Dana Apts. (2007) 148 10 Cal.App.4th 1262, 1264. u The caselaw is clear — a motion to set aside a default under C.C.P. § 473 is not 2 simply an extra strike for bad actors. It’s a protection reserved for reasonably diligent B defendants who can establish the default was entered through no fault of their own. ‘The 14 evidence shows that is not the case here. 5 Iv. CONCLUSION 16 Ms. Sell has not met her burden to show proper grounds to set aside the default, 17 nor can she based on the video evidence plaintiffs provide in support of this opposition, 18 The court should deny Defendant’s motion to set aside the default and quash service of 19 the summons, and Plaintiffs should be allowed to move forward in seeking a default 20 judgment. 21 22 Dated: September 28. 2020 GRIFFITH & THORNBURGH, LLP 23 24 all Austin S. Payne ———— I 25 Attorneys for Plaintiff's 26 Tine F. Sloan and 27 28 - ‘GRIFFITH THORNBURGH. LLP ATTORNEYS AND COUNSELORS OPPOSITION TO PLAINTIEF'§ MOTION TO VACATE AND SET ASIDE DEFAULT AND BEAST FIGUEROA STREET—STE 300 MOTION TO QUASH SERVICE FO SUMMONS, SANTA BARBARA CA 93101-2762 DECLARATION OF AUSTIN S. PAYNE I, Austin S. Payne, cleclare as follows: 1 [am an attorney, licensed to practice before the courts of the State of California, and am an associate of the law firm of Griffith & Thornburgh, LLP, counsel of record for Plaintiffs Tine F. Sloan and Michael Corrigan. | have persona! knowledge of 6 the following facts and could and would competently testify thereto if called upon to do so. 2 On April 7, 2020, | sent via U.S. mail to Defendant Michelle Beltran Sell a 9 preservation obligation letter for her recordings of the Plaintiffs, accompanied with a 10 copy of the complaint for this matter. I sent this mail to 2924 Arriba Way, Santa Barbara, California 93105. My firm has been involved in past litigation with Mr. Patronyk, and he 12 regularly refused certified mail, so this correspondence was sent through regular mail to 13, ensure it would not be refused. 14 3 The preservation obligation letter and complaint copy were returned to my 15 firm with Ms. Sell’s address marked out with black marker and “RTS” written across it. A 16 true and correct copy of the preservation obligation letter and the envelope it was a7 returned in is attached as Exhibit 1. 18 4 On June 3, 2020, having received no responsive pleading from Ms. Sell,| 19 filed for entry of default, which the clerk entered, and my office served it on Ms. Sell via 20 U.S. mail. 21 I declare under penalty of perjury, under the laws of the State of California, that 22 the foregoing is true and correct. Executed on September 28, 2020, at Santa Barbara, Ab 2 3 California. 24 25 Austin S. Payne, Declarant 26 27 28 GRIFFITH& THORNBURGH LLP 8 ATTORNEYS AND COUNSELORS. OPPOSITION ‘TO DE! DANT’S MOTION TO VACATE AND SET ASIDE DEFAULT BEAST FIGUEROA STREET - STE 300 AND MOTION TO QUASI | SERVICE OF SUMMONS 'SANTABARBARA, CA 93101-2762 EXHIBIT 1 | } gd A fi} 14\ VyN}) QT GRIFFITH AITGRALYS AWA & THORNBURGH. COUNSELORS LLP | SISEL 1974 ( QONALD BODEN & EAS) FIGUEROA STREET - SUITE 300 WM. G GRIFFITH (4887 - 1950) AOHN RYDELL D SANTA BARBARA GA 93101-2762 {ASFLLE THORNAURGH (1898 - 1973) CRAIG PRICE YALE 8. GRIFFITH (1903 - 1994) BRUCE 0, GLESBY TELEPHONE 805-865-5131 ROBERT L THORNBURGH (1924 - 2016} JOSEPHM, SHOLDER FAX 805-986-6751 SOHN G.ECK www. ¢i-llaw.com SENDER'S E-MAIL: MARISA K BEUOY payne@g-llaw.com PAUL A. CAPRITTO FELICITAA TORRES AUSTIN S. PAYNE MEAGANL. HARMON April 7, 2020 Our Fite No.: 4246-0008 Sent Via US Mail Michelle Ann Beltran Sell 2924 Arriba Way Santa Barbara, CA 93105 Re: Tine F. Sloan and Michael Corrigan v. Michelle Ann Beltran Sell Case No.; 20CV01530 Evidence Preservation Obligation Dear Ms. Sell: I represent Tine F. Sloan and Michael Corrigan in the lawsuit recently filed against you lor invasion of privacy. This letter is to inform you of certain legal obligations you have 1o preserve evidence — including video. audio, or photographic evidence — of the allegations in the complaint, Once a lawsuit has been filed. and in some cases even when litigation is merely anticipated. a party has a duty to preserve evidence that is relevant to the allegations of the lawsuit. The destruction or “spoliation” of evidence is condemned by courts because it “can destroy faimess and justice” by increasing the risk of an erroneous result, and potentially increase the expense of the litigation by forcing them to reconstruct or develop other evidence. Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223. In California, destruction of evidence material to a lawsuit is considered a misuse of the discovery process and eligible for a broad range of sanctions. These sanctions can include monetary penalties, adverse inference instructions (Cal. Evid. Code § 413). and even terminating sanctions, which effectively end the case in favor of the adverse party. Ja. Now that a lawsuit has been filed against you, you have the obligation to preserve relevant evidence. Th : an invasion of privacy and nuisance lawsuit thal alleges thal you made certain April 7. 2020 Page 2 audio, video. or photographic recordings of Ms. Sloan and Mr. Corrigan: therefore. you have an obligation to preserve any such recordings and photographs in your custody or control, The audio/video/photographic evidence is nat exhaustive, of course, and you also have an obligation to preserve any other evidence material to the allegations, including emails, text messages, written notes, and any other documentation you have relevant to the lawsuit. Adequate preservation of electronically stored information is not limited to refraining from deleting the data. You must also intervene to prevent any kind of automatic deletion or overriding of this data due to routine operations. Because hard copies do not preserve any potential metadata, preserving hard copies only is not sufficient. If information exists in both hard copy and electronic form, you must preserve them both. Once this case proceeds Lo the discovery phase, I will contact you about what specifically should be shared and the best format for providing this information. If you have retained counsel, please forward this letter to your attorney. tI | — Sincerely, Austin 8, Payne ELECTRONICALLY FILED Superior Court of California GRIFFITH & THORNBURGH, LLP County of Santa Barbara ATTORNEYS AND COUNSELORS BEAST FIGUEROA STREET. SLNTE S00 Darrel E. Parker, Executive Officer SANTA BARBARA. CA 92101-2762 TELEPHONE 805-965-5131 3/24/2020 10:52 AM TELECOPIER: 406-065-8751 By: Narzralli Baksh, Deputy John R., Rydell I, Bar No. 62606 rydeli@g-tlaw.com Austin S. Payne, Bar No. 319740 payne@g-tlaw.com Attorneys for Plaintiffs Tine F, Sloan and Michael Corrigan 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 1a FOR THE COUNTY OF SANTA BARBARA A ANACAPA DIVISION 20CV01530 12 TINE F, SLOAN AND MICHAEL CASE NO.; CORRIGAN, 3 COMPLAINT FOR PRIVATE Plaintiffs, NUISANCE; INVASION OF PRIVACY 4 IN VIOLATION OF CAL. CIV. CODE§ Vv. 1708.8 5 MICHELLE ANN BELTRAN SELL; and 16 DOES 1 through 50, inclusive, 17 Defendant. 18 19 GENERAL ALLEGATIONS 20 J Plaintiff Tine F. Sloan (“Sloan”) is an individual and, at all times relevant ta 21 this complaint, was a resident of the State of California, County of Santa Barbara. Sloan is 22 the title holder to the real property located at 2928 Arriba Way, Santa Barbara, California 23 93105, where she lives full time with her husband, Plaintiff Michael Corrigan. 24 2 Plaintiff Michael Corrigan (“Corrigan”) is an individual and, at all times 25 relevant to this complaint, was a resident of the State of California, County of Santa 26 Barbara. Corrigan is the husband of Sloan and resides with her at 2928 Arriba Way, Santa 27 Barbara, California 93105. 28 GRIFFITH & THORNBURGH. LLP ATTORNEYS AND COUNSELORS BEAST FIGUEROA STREET - STE 300 [COMPLAINT] ‘SANTA BARBARA, CA 83101-7762 is the girlfriend and/or housemate of Greggory Myron Patronyk (“Patronyk”), trustee of the Gregg Patronyk Revocable Trust, which is the title holder to the real property located at 2924 Arriba Way, Santa Barbara, California 93105. Upon information and belief, Sell is a resident of 2924 Arriba Way, Santa Barbara, California 93105. Upon information and belief, at all times relevant to this complaint, Sell was a resident of the State of California, County of Santa Barbara. FACTUAL BACKGROUND 4 Plaintiff Sloan purchased and moved to her home at 2928 Arriba Way in 2on. Plaintiff Corrigan moved to 2928 Arriba Way in 2015. 10 5 2928 Arriba Way is next door to 2924 Arriba Way, and there are balconies lh at 2924 Arriba Way from which an individual can see into the backyard of Plaintiff's home| 12 at 2928 Arriba Way. 3 6 Plaintiffs’ property, and the property of other neighbors along Arriba Way, 4 is accessed via a driveway over Patronyk’s property. ‘The neighbors have a right to use 5 this driveway through an easement that runs with the property. The neighbors’ 16 respective rights to use of the easement, as well as the shared responsibility for 47 maintenance of the driveway, are outlined in an agreement called the Roadway Easement 18 Use and Maintenance Agreement (“REUMA”), 19 History of Disagreements 20 7 Plaintiffs have a history of disagreements with their neighbor, Patronyk. 2 Many of these disagreements have to do with the use and maintenance of the driveway. 22 In the past, Patronyk routinely attempted to exclude visitors and workers who, with 23 permission of Plaintiffs, used the driveway to access Plaintiffs’ property. 24 8 Unfortunately, when Plaintiffs attempted to address issues in a neighborly 25 manner, Patronyk has either ignored their requests or refused to change his behavior, On| 26 several occasions now, Plaintiffs have had to resort to litigation to enforce their rights to 27 their property. 28 9, In 2017 Sloan commenced litigation against Patronyk for his exclusion of [GRIFFITH A THORNELIRGH, LL ATTORNEYS AND GOUNBELORS 2 BEAST FIGUEROA STREET ~STE 303 [COMPLAINT] [SANTA BAROARA CA 05101-2767 workers from the driveway. ‘This litigation was settled in 2018, and the parties entered into a new REUMA to further define the rights and responsibilities to the shared driveway. Another element to this settlement agreement required Patrenyk to remove a camera he had installed on his property, which was pointed at a window into Plaintiffs’ living room. 10, tn November 2008, the Plaintiffs, along with the other neighbors who have an easement to use the driveway over Patronyk’s property, requested that Patronyk initiate a project with Southern California Edison to bury overhead powerlines along the driveway. Patronyk failed to respond to this request within the 30-day period required by 10 the REUMA, and then he refused to relinquish his contracting authority for the project, u also required by the REUMA. Sloan then initiated litigation to enforce the terms of the 12 agreement. This case is currently pending in Santa Barbara Superior Court (Case No. 3 19CVo0qq21). 4 ne Additional disagreements have arisen between Patronyk and other 15 neighbors along Arriba Way. In 2018 Patronyk began plans to add two accessory dwelling 16 units (“ADUs”) to his two properties in the neighborhood. Neighbors were concerned 7 because Arriba Way is already overcrowded with parked cars, and it can be difficult for 18 emergency vehicles to access the neighborhood and turn around during wildfire 19 emergencies. There were also privacy concerns with Patronyk's proposed multi-story 20 ADU structures. When the neighbors discovered that Patronyk had made material 21 misrepresentations to the City of Santa Barbara to secure building permits for the ADUs, 22 they brought suit (organized under “Arriba Way Citizens United”) against Patronyk. This 23 case is also currently pending in Santa Barbara Superior Court (Case No. CV 18CVo05826). 24 This case is stayed, however, because Patronyk also has a pending fourteen-count 25 criminal case for violations of mulLiple provisions of Santa Barbara's building code. 26 12, In Plaintiffs’ experience, Patronyk does not respond to polite requests about 27 issues between neighbors and will only engage when faced with litigation. 28 \\ GRUFPITIIn THORNBURSH. ALE ATTORNEYS AND COUNSELORS: 3 BEAST FIGUERUA STREEI - STE 300 [COMPLAINT] EANTA BARBARA. CAS3101-2762 Invasion of Privacy Issues 13. In 2038, Plaintiffs began to notice that Sell and Patronyk would eavesdrop on their conversations from the balcony at their property that overlooks Plaintiffs’ backyard. Plaintiffs have noticed Sell pointing an iPad at them to record their conversation on at least twenty occasions. Sell has also recorded workers on Plaintiffs’ property. 14. Upon information and belief, on multiple occasions in 2019 and 2020, Defendants recorded conversations that Plaintiffs intended to be private between themselves. Defendants also recorded conversations of invitees on Plaintiffs’ property. 10 15. On November 19, 2019, Plaintiffs were in their backyard having a private i conversation when they noticed Sell on the balcony recording them with an electronic 12 device. A true and accurate timestamped photograph of Sell using a device to record 3 Plaintiff's conversation is attached to this complaint as Exhibit 1. 14 16. On at Jeast two occasions during the weekend of February 1 and 2", 2020, 15 Plaintiffs were in their backyard and noticed Sell using an iPad to record them while they 16 had a private conversation in their backyard. A true and accurate timestamped 17 photograph of the instance on February 1, 2020, is attached to this complaint as Exhibit 18 2. ‘9 17, Following these incidents, an attorney for Plaintiff Corrigan sent a cease 20 and desist letter to two of Patronyk's attorneys, including his attorney of record for both 2 his criminal case and in the dispute over his ADUs, 22 18, Plaintiffs have verbally notified Patronyk and Sell on multiple occasions to 23 cease their recording activities. 24 19, Again, on February 17, 2020, Plaintiffs noticed Sell on the balcony of 2924 25 Arriba Way recording them with an electronic device while Plaintiffs were trying to have 26 a private conversation in their backyard. 27 20. On March 7, 2020, Plaintiffs again noticed Sell on the balcony of 2924 28 Arriba Way pointing an electronic recording device at them while they tried to have a GRIFF THOANEURGE LLP ATTORNEYS AND COUNSELORS. ‘BEART FIGUEROA SIREET- STE 300 [COMPLAINT] SANTA BARBARA, CARS (012762 private conversation in their backyard. A true and correct time-stamped photograph of this incident is attached to this complaint as Exhibit 3. an. That same day, on March 7, 2020, Plaintiffs called the City of Santa Barbara police and made a complaint about Sell’s actions. The police visited the 2924 Arriba Way property, but Sell would not answer the door when they knocked (Incident No. 20-13382). A true and correct copy of the police report is attached to the complaint as Exhibit 4. 22, In each instance, Plaintiffs only photographed Sell in order to document her actions in recording them in their backyard. 23. Plaintiffs are no longer able to enjoy their backyard because they are afraid 10 their actions and conversations are being recorded by Defendants. Hh 24. Defendants’ conduct, in light of the history between the neighbors, was 2 likely meant to harass and oppress Plaintiffs. 13 FIRST CAUSE OF ACTION 4 (Violation of Cal. Civ. Code § 1708.8, Invasion of Privacy) 15 25. Plaintiffs reallege and incorporate by reference each and every allegation of 16 Paragraphs 1 through 24, inclusive, asif fully set forth herein, 7 26. Plaintiffs’ backyard is a private space, and Plaintiffs have taken steps to 18 make it as private as possible. The property sits on a steep private hillside, and the only 19 access to the backyard is through a locked gate. Plaintiffs have let trees and shrubs grow 20 up on the property line with 2924 Arriba Way to increase privacy, and Plaintiffs plan to 21 add more fencing and plants to increase privacy. There are no sightlines into the 22 backyard other than from the balcony at 2924 Arriba Way and from far across the canyon 23 27. Plaintiffs have a reasonable expectation of privacy in their backyard.