Preview
Petition for Writ (Misdemeanor. Clerk stamps date here when form is filed.
Infraction, or Limited Civil Case)
ILE
Cesar Padaguan
Petitioner
(fill in the name of the person asking for the writ)
OCT 21 2020
Clerk of th ourt
v. ‘Of Santa Ciara
BY.
Superior Court of California, County of SANTA CLARA . ARAG
Hon. ChristopherG. Rudy Clerk will fill in the number below:
Appellate Division Case Num!
Respondent
(fill in the name of the court whose action or ruling you are challenging) 20AP002 e84
Thuy Vo, Vinh Dinh
Real Party in Interest Stay requested
(fill in the name of any other parties in the trial court case)
(see item (42) c. on page 6)
Instructions
. This form is only for requesting a writ in a misdemeanor, infraction, or limited civil case, or a writ challenging a
postjudgment enforcement order in a small claims case (see below*)
Do not use this form for other writs and for appeals. You can get forms to use for those at any courthouse or county law
library or online at www.courts.ca.gov/forms.
Before you fill out this form, read Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil
Cases (form APP-150-INFO) to know your rights and responsibilities. You can get form APP-150-INFO at any
courthouse or county law library or online at www.courts.ca.gov/forms
Unless a special statute sets an earlier deadline, you should file this form no later than 30 days after the date the trial
court took the action or issued the ruling you are challenging in this petition (see form APP-150-INFO, page 7, for more
information about the deadline for filing a writ petition). It is your responsibility to find out if a special statute sets an
earlier deadline. If your petition is filed late, the appellate division may deny it.
Fill out this form and make a copy of the completed form for your records and for the respondent (the trial court whose
action or ruling you are challenging) and each of the real parties in interest (the other party or parties in the trial court
case).
Serve a copy of the completed form on the respondent and on each real party in interest and keep proof of this service
Proof of Service (Appellate Division) (form APP-109) or Proof of Electronic Service (Appellate Division) (form
APP-109E) can be used to make this record. You can get information about how to serve court papers and proof of
service from What Is Proof of Service? (form APP-109-INFO) and on the California Courts Online Self-Help Center at
www.courts.ca. gov/selfhelp-serving.htm
Take or mail the completed form and your proof of service on the respondent and each real party in interest to the
clerk’s office for the appellate division of the superior court that took the action or issued the ruling you are challenging
Small Claims cases. If you are a party in a small claims case, this form is only to be used for requesting a writ relating
to a postjudgment enforcement order of a small claims division. For writs relating to other acts of a small claims
division, the form to use is the Petition for Writ (Small Claims) (form SC-300). See also Cal. Rules of Court, rules
8.970-8.977. For writs relating to acts ofa superior court in a small claims appeal, see Cal. Rules of Court, rules 8.485-
8.493
Judicial Council of California, www.courts.ca. gov
Revised January1, 2017, Optional Form Petition for Writ APP-151, Page 1 of7
California Rulesof Court, rules 8 930-8 938 (Misdemeanor, Infraction, or Limited Civil Case) =
Appellate Division Appellate Division Case Number:
Case Name: Padaguan v. Superior Court 20AP002684
@) Your Information
a. Petitioner (the party who is asking for the writ):
Name: Cesar Padaguan
Street address: 2781 Gavilan Dr San Jose CA 95148
Street City State Zip
Mailing address (if different):
Street City State Zip
Phone: E-mail:
Petitioner’s lawyer (skip this if the petitioner does not have a lawyer for this petition):
Name: None-Pro Per State Bar number:
Street address:
Street City State Zp
Mailing address (if different):
Street City State Zp
Phone E-mail:
Fax:
The Trial Court Action or Ruling You Are Challenging
@ 1 am/My client is filing this petition to challenge an action taken or ruling made by the trial court in the following
case:
a. Case name (fill in the trial court case name): Vo v Padaguan
b. Case number (fill in the trial court case number): 20CV370125
The trial court action or ruling I am/my client is challenging is (describe the action taken or ruling made by the
trial court): The court failed to require mandatory additional evidence, after my challenge to the process
server's declaration, prior to ruling.
@ The trial court took this action or made this ruling on the following date (fill in the date): October 13, 2020
® If you are filing this petition more than 30 days afier the date that you listed in(@), explain the extraordinary
circumstances that caused the delay in filing this petition:
Revised January 1, 2017
Petition for Writ APP-151, Page 2 of7
(Misdemeanor, Infraction, or Limited Civil Case) >
Appellate Division Appellate Division Case Number:
Padaguan v. Superior Court
Case Name:
L_20AP002684|
The Parties in the Trial Court Case
© a.
I/My client (check and fill in a or b):
v was a party in the case identified in(2)
b. C1 was nota party in the case identified in (2) but will be directly and negatively affected in the following way
by the action taken or ruling made by the trial court (describe how you/your client will be directly and
negatively affected by the trial court’s action or ruling):
The other party or parties in the case identified in ® was/were (fill in the names of the parties):
Thuy Vo, Vinh Dinh
Appeals or Other Petitions for Writs in This Case
Did you or anyone else file an appeal about the same trial court action or ruling you are challenging in this petition?
(Check and fill in a or b).
alv No
b. Yes (fillin the appellate division case number of the appeal):
Have you filed a previous petition for a writ challenging this trial court action or ruling? (Check and fill in a or b):
a.}¥| No
b Yes (Please provide the following information about this previous petition).
(1) Petition title (fill in the title of the petition):
(2) Date petition filed (fill in the date you filed this petition):
(3) Case number (fill in the case number of the petition):
If you/your client filed more than one previous petition, attach another page providing this information for each
additional petition. At the top of each page, write “APP-151, item 9.”)
Reasons for This Petition
The trial court made the following legal error or errors when it took the action or made the ruling described in@)
(check and fill in at least one):
a. The trial court has not done or has refused to do something that the law says it must do.
(1) Describe what you believe the law says the trial court must do:
(2) Identify the law (the section of the Constitution or statute, published court decision, or other legal
authority) that says the trial court must do this
Revised January 1, 2017
Petition for Writ APP-151, Page 3 of7
(Misdemeanor, Infraction, or Limited Civil Case) >
Appellate Division Appellate Division Case Number:
Case Name: Padaguan v. Superior Court 20A P002684
(10) (continued)
(3) Identify where in the supporting documents (the record of what was said in the trial court and the
documents from the trial court) it shows that the court did not do or refused to do this
O1 Check here if you need more space to describe the reason for your petition and attach a separate page
or pages describing it. At the top of each page, write “APP-151, item 10a.
The trial court has done something that the law says the court cannot or must not do.
Q) Describe what the trial court did.
Q) Identify where in the supporting documents (the record of what was said in the trial court and the
documents from the trial court) it shows that the court did this
G) Identify the law (the section of the Constitution or statute, published court decision, or other legal
authority) that says the trial court cannot or must not do this
O1 Check here if you need more space to describe the reason for your petition and attach a separate page
or pages describing it. At the top of each page, write “APP-151, item 10b.”
c.|¥ The trial court has performed or said it is going to perform a judicial function (like deciding a person’s
rights under law in a particular situation) in a way the court does not have the legal power to do.
Q) Describe what the trial court did or said it is going to do. The trial court failed to require additional
om m pon them with additional
evidence of valid service.
Q) Identify where in the supporting documents (the record of what was said in the trial court and the
documents from the trial court) it shows that the court did or said it was going to do this
Motion to Quash, Opposition, Minute Order.
Revised January1, 2017 APP-151, Page 4 of 7
Petition for Writ
(Misdemeanor, Infraction, or Limited Civil Case) =
Appellate Division Appellate Division Case Number:
Case Name: Padaguan v. Superior Court 2 AP002684
(continued)
(3) Identify the law (the section of the Constitution or statute, published court decision, or other legal
authority) that says the trial court does not have the power to do this:
Code of Civil Procedure sections 1167.4, Evidence Code 647; Palm Property Investments, LLC
y. Yadegar (2011) 194 Cal.App.4th 1419, 1428 [presumption eliminated by challenge, requires
additional evidence]
1 Check here if you need more space to describe this reason for your petition and attach a separate page
or pages describing it. At the top of each page, write “APP-151, item 10c.
C1 Check here if there are more reasons for this petition and attach an additional Page or pages describing
these reasons. At the top of each page, write “APP-151, item 10d.”
This petition will be granted only if there is no other adequate way to address the trial court’s action or tuling other
than by issuing the requested writ.
a. Explain why there is no way other than through this petition for a writ—through an appeal, for example—for
your arguments to be adequately presented to the appellate division:
CCP_418 10(c) requires this writ
,
b. Explain how you/your client will be irreparably harmed if the appellate division does not issue the writ you are
requesting:
homelesness in this COVID enviornment.
Order You Are Asking the Appellate Division to Make
@) I request that this court (check and fill in all that apply):
a. v order the trial court to do the following (describe what, if anything, you want the trial court to be ordered
to do):
Vacate the ruling of Judge Rudy: reassign the motion to quash to a different judge
order the trial court not to do the following (describe what, if anything, you want the trial court to be
ordered NOT to do):
Revised January 1, 2017
Petition for Writ APP-151, Page 5 of 7
(Misdemeanor, Infraction, or Limited Civil Case)
Appellate Division Appellate Division Case Number:
Case Name:
Padaguan v. Superior Court 20AP002684
2) (continued)
c. Y issue a stay ordering the trial court not to take any further action in this case until this court decides whether
to grant or deny this petition (describe below why it is urgent that the trial court not take any further action
and check the Stay requested box on page | of this form):
trial court clerks will enter default intiff becar e untrains
unsupervised, and fear taking any action that appears to be contrary to the illegal order at issue.
I/My client:
(1) (1 asked the trial court to stay these proceedings, but the trial court denied this request (include in your
supporting documents a copy of the trial court’s order denying your request for a stay).
(2) v did not ask the trial court to stay these proceedings for the following reasons (describe below why you
did not ask the trial court to stay these proceedings):
Not present to make request, having submitted on the papers under Rule 3.1304(c)
d take other action (describe):
e. (1) grant any additional relief that the appellate division decides is fair and appropriate.
Supporting Documents
(3) Is a record of what was said in the trial court about the action or ruling you are challenging attached as required by
tule 8.931(b)(1)(D) of the California Rules of Court?
a. [] Yes, a transcript or an official electronic recording of what was said in the trial court is attached.
b. vv No, a transcript or official electronic recording is not attached, but I have attached a declaration (a statement
signed under penalty of perjury) (Check (1) or (2):
qd) stating the transcript or electronic recording has been ordered, the date it was ordered, and the date it is
expected to be filed.
(2) ¥ explaining why the transcript or official electronic recording is not available and providing a fair
summary of what was said in the trial court, including the petitioner’s arguments and any statement by
the trial court supporting its ruling.
Revised January 1, 2017
Petition for Writ APP-151, Page 6 of7
(Misdemeanor, Infraction, or Limited Civil Case) 3
Appellate Division Appellate Division Case Number:
Padaguan v. Superior Court
Case Name: 20AP002684
@) Are the following documents attached as required by rule 8.931(b)(1)(A)-(C):
. The trial court ruling being challenged in this petition
. All documents and exhibits submitted to the trial court supporting and opposing the petitioner’s position
. Any other documents or portions of documents submitted to the trial court that are necessary for a complete
understanding of the case and the ruling being challenged? (Check a or b).
i v Yes, these documents are attached.
No, these documents are not attached for the following reasons (explain why these documents are not
attached and give a fair summary of the substance of these documents. Note that rule 8.931 provides that, in
extraordinary circumstances, the petition may be filed without these documents, but the petitioner must
explain the urgency and the circumstances making the documents unavailable):
Verification
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: October 20, 2020
Cesar Padaguan
Type or print Jou name
» ees ‘Stgnature of Petitioner or attorney
Revised January1, 2017
Petition for Writ APP-151, Page 7 of7
(Misdemeanor, Infraction, or Limited Civil Case)
MC-025
SHORT TITLE: CASE NUMBER:
[~ Padaguan v. Superior Court 20AP002684
ATTACHMENT (Number):
(This Attachment may be used with any Judicial Council form.)
I, Cesar Pagaduan, state:
I was not present at the hearing on the motion to quash, having submitted on the papers under Rule3.1304(c)
I have requested a transcript of the motion to quash hearing, but the clerks are unable to identify when it might
be ready. The courthouse refuses to record proceedings in unlawful detainer actions, so there is no transcript of
what was said at the hearing.
There was no waiver of the right to a judge, nor a waiver of notice of ruling.
I challenged the Plaintiff's evidence with regard to service of the summons and complaint. The Court refused
to require additional evidence to overcome the burden that shifted to the Plaintiff to prove lawful service of
summons and complaint
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
correct. Executed on October 20. ‘0 at San Jose, California.
Re Resginet (Co
Cesar Padaguan, Declarant
(If the item that this Attachment concems is made under penalty of perjury, all statements in this Page of
Attachment are made under penalty o” perjury.)
(Add pages as required)
Form Approved for Optional Use ATTACHMENT wunw courtinfo.ca.gov
Judicial Council of California
MC-025 [Rev. July 1, 2003) to Judicial Council Form
20AP002684
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
lam loyed in the County of Riverside, California at PO Box 2417, Idyllwild, CA
92549. I am over the age of 18 and not a party to the within action.
On October 20, 2020 , L served the attached Notice of Filing of Petition for
th
Writ of Mandate on the opposing party(s) in this action by lacing a true copy thereof enclosed
in a sealed envelope with postage thereon fully prepaid in e United States mail at Idyllwild,
California, addressed to:
Todd Rothbard, 100 Saratoga Ave., Ste. 200, Santa Clara, CA. 95051
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on October 20, 2020 at Idyllwild, California
10
D
ll
Ken Carl
ILE
12
OCT 21 2020
13 Clerk of
Court
of C, Court
BY. ty of Santa Clara
14 DEPUTY
15
16
17
18
19
20
21
22
23
24
25
26
27
28 NOTICE OF FILING PETITION FOR WRIT OF MANDATE [CCP 418.10(c)]
stim a eran
yw
AM 4 ¢Y suMMONS POR COURT USE ONLY
SUM-130
ce
{SOLO PARA USO DE LA CORTE)
4 (CITACION JUDICIAL)
-FILED
UNLAWFUL DETAINER—EVICTION
1147/2020 1:11 PM
(RETENCION ILICITA DE UN INMUEBLE—DESALOJO)
lerk of Court
NOTICE TO DEFENDANT; CESAR PAGADUAN uperior Court of CA
(AVISO AL DEMANDADO) ‘county of Santa Clara
DOES | through V, inclusive 0CV370125
YOU ARE BEING SUED BY PLAINTIFF: eviewed By: M Vu
(LO ESTA DEMANDANDO FL DEMANDANTE) nvelope: 4950284
THUY VO,-VINH DINH
NOTICE! You have been sued, The court may decide against jAVISO! Usted ha sido demandado. S! no responde dentro de 5
you without your being heard unless you respond within 5 days, dias, el tribunal puede emitir un fello en su contra sin una
You have 5 DAYS, not counting Saturdays and Sundays and audiencla, Una vez que le entreguen esta citacién y papeles
other judicial holidays, after this summons and legal papers are legales, solo tiene 5 DIAS, sin contar sébado y domingo y otros
served on you to file a written response at this court and have a dlas feriedos del tribunal, para presentar una respuesta por
copy served on the plaintiff ascrito en este tribunal y hacer que so entregue una copla al
demandante.
A latter or phone call will not protect you, Your written response Una carla o una Hamada telefénica no lo protege. Su respuesta
must be in proper legal form if you want the court to hear your por escrito tiene que estar en formato legal correcto si desea que
case, There may be a court form that you can use for your procesen su caso én la corte, Es posible que haya un formulario
response, You can find these court forms and more information que usted pueda user para su respuesta. Puade encontrar estos
ai the California Courts Online Self-Help Center formularios de la corte y mas informacién en el Centro de Ayuda
(www.courls,ca.gov/selfhelp), your county aw library, or the de las Cortes de California (www.sucorte.ca.gov), en la biblioteca
courthouse nearest you, If you do not file your response on de leyes de su candado o en fa carte que le quede més cerca. Si
time, you may lose the case by default, and your wages, no presenta su respuesta a tiempo, puede porder el caso por falta
money, and property may be taken without further warning from de comparecencia y se fe podré quitar su sueldo, dinero y bienes
the court, sin mas advertenala,
There are cther legal requirements, You may want to call an Hay otros requisites legates. Es recomendable que flame aun
attorney right away. If you do not know an altomey, you may abogado inmediatamente, Si no canoce a un abogado, puede
want to call an attorney referral service, If you cannot afford an llamar & un serviclo de ramisién a abogados, Sino puede pagar a
atlorney, you may be eligible for free legal services from a un abogado, es posible que cumpla con los requisitos para
nonprofit legal services program, You can locate these obtener servicios legales gratuitos da un programa de servicios
honprofit groups at the California Legal Services website Jegales sin finas de lucro. Puede encontrar estos grupos sin fines
(www.lawhelpea.org), the California Courts Onilne Self-Help de fuaro en é! sitfo web de Califomla Legal Services,
Center (www.courts.ca.gov/selfhelp), or by contacting your {vww.lawhelpcalifornla.org), en ef Centro de Ayuda de las Cortes
lacal court or county bar association. de California, (www.sucorte.ca.gov) o poniéndose en contacto
con la corte 0 e! colegio de abogados local,
FEE WAIVER; If you cannot pay the filing fee, ask the clerk for EXENCION DE CUOTAS; Sino puede pagar la cuots de
a fee walver form. NOTE: The court has a statutory lien for presentacién, pide al secretario de (a corte que le dé un formulario
aived fees and costs on any settlement or arbitration award of de exenclén de page de cuotas. AVISO: Por ley, la corte tlene
$10,000 or more in a civil case. The court's len must be paid derecho a reclamar las cuotas y los costes exentos con un
before the court will dismiss the case, gravamen sobre cualquier cantidad de $10,000 6 mas recibida
Clerk of Court mediante un acuerdo o una concesién de arbitraje en un caso de
deracho civil. Tiene que pagar el gravamen de la corte antes de
que Ja corta pueda desestimar al caso.
The name and address of the court is: Superior Court of the Santa Clara CASE NUMBER {numero del caso).
(El nombra y direocién de le corte es): Judicial District, 191 North First Street, 20CV370125
San Jose, CA 95113
The name, address, and telephone number of plaintiff's attorney, or plalntiff without an attomey, Is: (El nombre, la direccion y of
numero de teléfono del abogado def ommandania, o dal demandante que no tiene abogado, es):
Todd Rothbard, Attorney at Law #67351
100 Saratoga Avenue, Suite 200, Santa Clara, CA 95051
408-244-4200 Page 1 of2
Form Adspiad for Mandaiary Use SUMMONS—UNLAWFUL DETAINER—EVICTION Code
of Civ Procedure, 95 412.20,
2, 498, 1187
udielal Counct! of Galitornia uris.ca.gey
8UM-139 [Rev, Saptomber1, 2018)
aoRN He ere we nan wnRe WHY ROS KES an
a erent repens stesso ini a i i i
SUM-130
PLAINTIFE (Name); THUY VO, VINH DINH caze NUMBER:
DEFENDANT (Vem): CESAR PAGADUAN 20CV370125
3. (Must be answered In ail casos) An unlawful dotainer assistant (Bus. & Prof. Code, §§ 6400-8415) [_] did not (J aia
for compensation give advice or assistance with this form. (/f plaintiff has raceived any help or advice far pay from an unlawful
detainor wssistant, complete itam 6 on the next page.)
4. Unlawful detainer assistant (complete /f plaintiff hes received any help or advice for pey from en unlawful detsiner assistant):
4 Assistant's name:
b. Telephone no.:
ce Streat address, clty, and zip:
d. County of raglstration:
e Registration no.:
f Registration oxpires on (date) ;
Date: Clerk of Court 9/17/2020 1:11 PM Clerk, by M Vu . Deputy
(Fecha) {(Secretario) fAdunto)
(For proof
of service of this summons, use Proof of Service of Summons (form POS-010).
(Pare prueba
|
ga de este citatién use al formulario Proof of Service of Summons (form POS-010).)
(ee ea! NO TO THE PERSON SERVED: You ate sorved
3, se an Individual defendant.
Gage tb. [_) as the person sued under the fictitious name of (specify):
oH
nee iEa
=jae
7
3,10
qd i
under:
ag an occupant.
on. behalf of (specity):
ree GCP 416,10 (corporation), 7) CCP 416.60 (minor)
SS A ad COP 416.20 (cefunct corporation). CCP 418,70 (consarvatea),
a Si) [J CCP 416,40 (eagociation or partnership), (__] CGP 416,90 (authorized person).
a
De CCP 418,48 {ccoupor EE} other fopcait
e. (] by per ‘sonal delivery on (date)
«
SURETSE av, Tapiamea 7, FaTw] SUMMONS UNLAWFUL DETAINER—EVICTION Page rare
inirinins aera SnaRey anawe, ay SES AS Fee ew
E-FILED
9/4/2020 3:19 PM
TODD ROTHBARD #67351 Clerk of Court
ATTORNEY AT LAW
100 Saratoga Avenue #200 Superior Court of CA,
Santa Clara, California 95051 County of Santa Clara
Tel..% (408) 244-4200 200V370125
Reviewed By: M Vu
Attorney for the Plaintiffs
SUPERIOR COURT - LIMITED CIVIL JURISDICTION
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA
THUY VO, VINH DINE, )
10 200V370125
Plaintiffs, ) No.
il vs. ) COMPLAINT FOR
12 ) UNLAWFUL DETAINER
CESAR PAGADUAN, DOES I through V,
inclusive, ) {Action based on Code
13 Defendants. ) of Civil Procedure
Section aaee
iiéia
V4 Plaintiffs allege:
15 r
All txansactions herein relevant took place in Santa Clara
16
County,
17
It
18
The real property owned by plaintiffs, possession of which
19
is sought in this action, is situated at 2781 Gavilan Drive, San
20
Jose, Santa Clara County, California 95148.
a1 IIt
22 The true names of defendants named herein as DOES T through
23 Vv, inclusive, are unknown to plaintiffs who therafore sue aaid
24 defendante by said fictitious names and pray leave to amend this
25 complaint to show the true names ae they become known.
26 Iv
On or about November 13, 2019, Plaintiffs! predecessor
Todd Rothbard 27
=is™ 28
Attomey xt Law acquired title to said premises at a trustee's sale following
Sama Cla, Califor
9505 foreclosure upon a deed cf trust, pursuant to the provisions of
UNLAWFUL DETAINER
RTAH/ONNA TH sous
Civil Code section 2924. A copy of the Trustee's Deed Upon Sale
is attached hereto, marked "EXHIBIT A", incorporated by
reference herein, and made a part hereof. Title was duly
perfacted thereunder. Title was subsequently conferred to
plaintiffs by Grant Deed. A copy of said Grant Deed is attached
hereto, marked “EXHIBIT B", incorporated by reference herein,
and made a part hereof.
Vv
Defendant, who was the trustor of the deed of trust which
was foreclosed upon, remained in possession of said premises
10
following said trustee's sale.
iW VI
12 On May 10, 2020, plaintiffs caused to be served upon
13 defendant a written notice requiring defendant to quit and
14 deliver up possession of said premises effective three days from
15 the date of service of said notice upon him. A copy of said
notice is attached hereto, marked "EXHIBIT C*, incorporated by
16
reference herein, and made a part hereof.
17
VII
18
More than three days have elapsed since the date of service
19
of said notice upon defendant, but defendant xvemains in
20 possession of said premises without plaintiffs’ permission or
21 consent. Pursuant to the provisions of Code of Civil Procedure
22 section 11l61a, there is an unlawful detainer of said premises.
23 VIII
24 The reasonable rental value of said premises is the sum of
25 $130.00 per day, and damages for the unlawful detainer of said
premises have accrued at said rate from May 14, 2020 and will
26
continue to accrue at said rate until such time as defendant
Todd Rothberd 27
Attorney 2t Law vacates said premises.
100:Sars Avene 28
tx Clava, California
95051
2
UNLAWFUL DETAINER
Brana cian.
WHEREFORE, plaintiffs pray judgment as follows:
z For restitution of possession of said premises.
2 For damages at the rate of $130.00 per day from May
14, 2020 through the date of restitution of possession
or the date of judgment herein, whichever comes first.
For costs herein, and for such other and further
relief as to the Court may seem just and proper.
/
/ f 4
9
DATED: September 4, 2020 By
10 Attorney for Plaintiffs
11
12
Preview
Petition for Writ (Misdemeanor. Clerk stamps date here when form is filed. Infraction, or Limited Civil Case) ILE Cesar Padaguan Petitioner (fill in the name of the person asking for the writ) OCT 21 2020 Clerk of th ourt v. ‘Of Santa Ciara BY. Superior Court of California, County of SANTA CLARA . ARAG Hon. ChristopherG. Rudy Clerk will fill in the number below: Appellate Division Case Num! Respondent (fill in the name of the court whose action or ruling you are challenging) 20AP002 e84 Thuy Vo, Vinh Dinh Real Party in Interest Stay requested (fill in the name of any other parties in the trial court case) (see item (42) c. on page 6) Instructions . This form is only for requesting a writ in a misdemeanor, infraction, or limited civil case, or a writ challenging a postjudgment enforcement order in a small claims case (see below*) Do not use this form for other writs and for appeals. You can get forms to use for those at any courthouse or county law library or online at www.courts.ca.gov/forms. Before you fill out this form, read Information on Writ Proceedings in Misdemeanor, Infraction, and Limited Civil Cases (form APP-150-INFO) to know your rights and responsibilities. You can get form APP-150-INFO at any courthouse or county law library or online at www.courts.ca.gov/forms Unless a special statute sets an earlier deadline, you should file this form no later than 30 days after the date the trial court took the action or issued the ruling you are challenging in this petition (see form APP-150-INFO, page 7, for more information about the deadline for filing a writ petition). It is your responsibility to find out if a special statute sets an earlier deadline. If your petition is filed late, the appellate division may deny it. Fill out this form and make a copy of the completed form for your records and for the respondent (the trial court whose action or ruling you are challenging) and each of the real parties in interest (the other party or parties in the trial court case). Serve a copy of the completed form on the respondent and on each real party in interest and keep proof of this service Proof of Service (Appellate Division) (form APP-109) or Proof of Electronic Service (Appellate Division) (form APP-109E) can be used to make this record. You can get information about how to serve court papers and proof of service from What Is Proof of Service? (form APP-109-INFO) and on the California Courts Online Self-Help Center at www.courts.ca. gov/selfhelp-serving.htm Take or mail the completed form and your proof of service on the respondent and each real party in interest to the clerk’s office for the appellate division of the superior court that took the action or issued the ruling you are challenging Small Claims cases. If you are a party in a small claims case, this form is only to be used for requesting a writ relating to a postjudgment enforcement order of a small claims division. For writs relating to other acts of a small claims division, the form to use is the Petition for Writ (Small Claims) (form SC-300). See also Cal. Rules of Court, rules 8.970-8.977. For writs relating to acts ofa superior court in a small claims appeal, see Cal. Rules of Court, rules 8.485- 8.493 Judicial Council of California, www.courts.ca. gov Revised January1, 2017, Optional Form Petition for Writ APP-151, Page 1 of7 California Rulesof Court, rules 8 930-8 938 (Misdemeanor, Infraction, or Limited Civil Case) = Appellate Division Appellate Division Case Number: Case Name: Padaguan v. Superior Court 20AP002684 @) Your Information a. Petitioner (the party who is asking for the writ): Name: Cesar Padaguan Street address: 2781 Gavilan Dr San Jose CA 95148 Street City State Zip Mailing address (if different): Street City State Zip Phone: E-mail: Petitioner’s lawyer (skip this if the petitioner does not have a lawyer for this petition): Name: None-Pro Per State Bar number: Street address: Street City State Zp Mailing address (if different): Street City State Zp Phone E-mail: Fax: The Trial Court Action or Ruling You Are Challenging @ 1 am/My client is filing this petition to challenge an action taken or ruling made by the trial court in the following case: a. Case name (fill in the trial court case name): Vo v Padaguan b. Case number (fill in the trial court case number): 20CV370125 The trial court action or ruling I am/my client is challenging is (describe the action taken or ruling made by the trial court): The court failed to require mandatory additional evidence, after my challenge to the process server's declaration, prior to ruling. @ The trial court took this action or made this ruling on the following date (fill in the date): October 13, 2020 ® If you are filing this petition more than 30 days afier the date that you listed in(@), explain the extraordinary circumstances that caused the delay in filing this petition: Revised January 1, 2017 Petition for Writ APP-151, Page 2 of7 (Misdemeanor, Infraction, or Limited Civil Case) > Appellate Division Appellate Division Case Number: Padaguan v. Superior Court Case Name: L_20AP002684| The Parties in the Trial Court Case © a. I/My client (check and fill in a or b): v was a party in the case identified in(2) b. C1 was nota party in the case identified in (2) but will be directly and negatively affected in the following way by the action taken or ruling made by the trial court (describe how you/your client will be directly and negatively affected by the trial court’s action or ruling): The other party or parties in the case identified in ® was/were (fill in the names of the parties): Thuy Vo, Vinh Dinh Appeals or Other Petitions for Writs in This Case Did you or anyone else file an appeal about the same trial court action or ruling you are challenging in this petition? (Check and fill in a or b). alv No b. Yes (fillin the appellate division case number of the appeal): Have you filed a previous petition for a writ challenging this trial court action or ruling? (Check and fill in a or b): a.}¥| No b Yes (Please provide the following information about this previous petition). (1) Petition title (fill in the title of the petition): (2) Date petition filed (fill in the date you filed this petition): (3) Case number (fill in the case number of the petition): If you/your client filed more than one previous petition, attach another page providing this information for each additional petition. At the top of each page, write “APP-151, item 9.”) Reasons for This Petition The trial court made the following legal error or errors when it took the action or made the ruling described in@) (check and fill in at least one): a. The trial court has not done or has refused to do something that the law says it must do. (1) Describe what you believe the law says the trial court must do: (2) Identify the law (the section of the Constitution or statute, published court decision, or other legal authority) that says the trial court must do this Revised January 1, 2017 Petition for Writ APP-151, Page 3 of7 (Misdemeanor, Infraction, or Limited Civil Case) > Appellate Division Appellate Division Case Number: Case Name: Padaguan v. Superior Court 20A P002684 (10) (continued) (3) Identify where in the supporting documents (the record of what was said in the trial court and the documents from the trial court) it shows that the court did not do or refused to do this O1 Check here if you need more space to describe the reason for your petition and attach a separate page or pages describing it. At the top of each page, write “APP-151, item 10a. The trial court has done something that the law says the court cannot or must not do. Q) Describe what the trial court did. Q) Identify where in the supporting documents (the record of what was said in the trial court and the documents from the trial court) it shows that the court did this G) Identify the law (the section of the Constitution or statute, published court decision, or other legal authority) that says the trial court cannot or must not do this O1 Check here if you need more space to describe the reason for your petition and attach a separate page or pages describing it. At the top of each page, write “APP-151, item 10b.” c.|¥ The trial court has performed or said it is going to perform a judicial function (like deciding a person’s rights under law in a particular situation) in a way the court does not have the legal power to do. Q) Describe what the trial court did or said it is going to do. The trial court failed to require additional om m pon them with additional evidence of valid service. Q) Identify where in the supporting documents (the record of what was said in the trial court and the documents from the trial court) it shows that the court did or said it was going to do this Motion to Quash, Opposition, Minute Order. Revised January1, 2017 APP-151, Page 4 of 7 Petition for Writ (Misdemeanor, Infraction, or Limited Civil Case) = Appellate Division Appellate Division Case Number: Case Name: Padaguan v. Superior Court 2 AP002684 (continued) (3) Identify the law (the section of the Constitution or statute, published court decision, or other legal authority) that says the trial court does not have the power to do this: Code of Civil Procedure sections 1167.4, Evidence Code 647; Palm Property Investments, LLC y. Yadegar (2011) 194 Cal.App.4th 1419, 1428 [presumption eliminated by challenge, requires additional evidence] 1 Check here if you need more space to describe this reason for your petition and attach a separate page or pages describing it. At the top of each page, write “APP-151, item 10c. C1 Check here if there are more reasons for this petition and attach an additional Page or pages describing these reasons. At the top of each page, write “APP-151, item 10d.” This petition will be granted only if there is no other adequate way to address the trial court’s action or tuling other than by issuing the requested writ. a. Explain why there is no way other than through this petition for a writ—through an appeal, for example—for your arguments to be adequately presented to the appellate division: CCP_418 10(c) requires this writ , b. Explain how you/your client will be irreparably harmed if the appellate division does not issue the writ you are requesting: homelesness in this COVID enviornment. Order You Are Asking the Appellate Division to Make @) I request that this court (check and fill in all that apply): a. v order the trial court to do the following (describe what, if anything, you want the trial court to be ordered to do): Vacate the ruling of Judge Rudy: reassign the motion to quash to a different judge order the trial court not to do the following (describe what, if anything, you want the trial court to be ordered NOT to do): Revised January 1, 2017 Petition for Writ APP-151, Page 5 of 7 (Misdemeanor, Infraction, or Limited Civil Case) Appellate Division Appellate Division Case Number: Case Name: Padaguan v. Superior Court 20AP002684 2) (continued) c. Y issue a stay ordering the trial court not to take any further action in this case until this court decides whether to grant or deny this petition (describe below why it is urgent that the trial court not take any further action and check the Stay requested box on page | of this form): trial court clerks will enter default intiff becar e untrains unsupervised, and fear taking any action that appears to be contrary to the illegal order at issue. I/My client: (1) (1 asked the trial court to stay these proceedings, but the trial court denied this request (include in your supporting documents a copy of the trial court’s order denying your request for a stay). (2) v did not ask the trial court to stay these proceedings for the following reasons (describe below why you did not ask the trial court to stay these proceedings): Not present to make request, having submitted on the papers under Rule 3.1304(c) d take other action (describe): e. (1) grant any additional relief that the appellate division decides is fair and appropriate. Supporting Documents (3) Is a record of what was said in the trial court about the action or ruling you are challenging attached as required by tule 8.931(b)(1)(D) of the California Rules of Court? a. [] Yes, a transcript or an official electronic recording of what was said in the trial court is attached. b. vv No, a transcript or official electronic recording is not attached, but I have attached a declaration (a statement signed under penalty of perjury) (Check (1) or (2): qd) stating the transcript or electronic recording has been ordered, the date it was ordered, and the date it is expected to be filed. (2) ¥ explaining why the transcript or official electronic recording is not available and providing a fair summary of what was said in the trial court, including the petitioner’s arguments and any statement by the trial court supporting its ruling. Revised January 1, 2017 Petition for Writ APP-151, Page 6 of7 (Misdemeanor, Infraction, or Limited Civil Case) 3 Appellate Division Appellate Division Case Number: Padaguan v. Superior Court Case Name: 20AP002684 @) Are the following documents attached as required by rule 8.931(b)(1)(A)-(C): . The trial court ruling being challenged in this petition . All documents and exhibits submitted to the trial court supporting and opposing the petitioner’s position . Any other documents or portions of documents submitted to the trial court that are necessary for a complete understanding of the case and the ruling being challenged? (Check a or b). i v Yes, these documents are attached. No, these documents are not attached for the following reasons (explain why these documents are not attached and give a fair summary of the substance of these documents. Note that rule 8.931 provides that, in extraordinary circumstances, the petition may be filed without these documents, but the petitioner must explain the urgency and the circumstances making the documents unavailable): Verification I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: October 20, 2020 Cesar Padaguan Type or print Jou name » ees ‘Stgnature of Petitioner or attorney Revised January1, 2017 Petition for Writ APP-151, Page 7 of7 (Misdemeanor, Infraction, or Limited Civil Case) MC-025 SHORT TITLE: CASE NUMBER: [~ Padaguan v. Superior Court 20AP002684 ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) I, Cesar Pagaduan, state: I was not present at the hearing on the motion to quash, having submitted on the papers under Rule3.1304(c) I have requested a transcript of the motion to quash hearing, but the clerks are unable to identify when it might be ready. The courthouse refuses to record proceedings in unlawful detainer actions, so there is no transcript of what was said at the hearing. There was no waiver of the right to a judge, nor a waiver of notice of ruling. I challenged the Plaintiff's evidence with regard to service of the summons and complaint. The Court refused to require additional evidence to overcome the burden that shifted to the Plaintiff to prove lawful service of summons and complaint I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 20. ‘0 at San Jose, California. Re Resginet (Co Cesar Padaguan, Declarant (If the item that this Attachment concems is made under penalty of perjury, all statements in this Page of Attachment are made under penalty o” perjury.) (Add pages as required) Form Approved for Optional Use ATTACHMENT wunw courtinfo.ca.gov Judicial Council of California MC-025 [Rev. July 1, 2003) to Judicial Council Form 20AP002684 PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA, COUNTY OF RIVERSIDE lam loyed in the County of Riverside, California at PO Box 2417, Idyllwild, CA 92549. I am over the age of 18 and not a party to the within action. On October 20, 2020 , L served the attached Notice of Filing of Petition for th Writ of Mandate on the opposing party(s) in this action by lacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in e United States mail at Idyllwild, California, addressed to: Todd Rothbard, 100 Saratoga Ave., Ste. 200, Santa Clara, CA. 95051 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 20, 2020 at Idyllwild, California 10 D ll Ken Carl ILE 12 OCT 21 2020 13 Clerk of Court of C, Court BY. ty of Santa Clara 14 DEPUTY 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF FILING PETITION FOR WRIT OF MANDATE [CCP 418.10(c)] stim a eran yw AM 4 ¢Y suMMONS POR COURT USE ONLY SUM-130 ce {SOLO PARA USO DE LA CORTE) 4 (CITACION JUDICIAL) -FILED UNLAWFUL DETAINER—EVICTION 1147/2020 1:11 PM (RETENCION ILICITA DE UN INMUEBLE—DESALOJO) lerk of Court NOTICE TO DEFENDANT; CESAR PAGADUAN uperior Court of CA (AVISO AL DEMANDADO) ‘county of Santa Clara DOES | through V, inclusive 0CV370125 YOU ARE BEING SUED BY PLAINTIFF: eviewed By: M Vu (LO ESTA DEMANDANDO FL DEMANDANTE) nvelope: 4950284 THUY VO,-VINH DINH NOTICE! You have been sued, The court may decide against jAVISO! Usted ha sido demandado. S! no responde dentro de 5 you without your being heard unless you respond within 5 days, dias, el tribunal puede emitir un fello en su contra sin una You have 5 DAYS, not counting Saturdays and Sundays and audiencla, Una vez que le entreguen esta citacién y papeles other judicial holidays, after this summons and legal papers are legales, solo tiene 5 DIAS, sin contar sébado y domingo y otros served on you to file a written response at this court and have a dlas feriedos del tribunal, para presentar una respuesta por copy served on the plaintiff ascrito en este tribunal y hacer que so entregue una copla al demandante. A latter or phone call will not protect you, Your written response Una carla o una Hamada telefénica no lo protege. Su respuesta must be in proper legal form if you want the court to hear your por escrito tiene que estar en formato legal correcto si desea que case, There may be a court form that you can use for your procesen su caso én la corte, Es posible que haya un formulario response, You can find these court forms and more information que usted pueda user para su respuesta. Puade encontrar estos ai the California Courts Online Self-Help Center formularios de la corte y mas informacién en el Centro de Ayuda (www.courls,ca.gov/selfhelp), your county aw library, or the de las Cortes de California (www.sucorte.ca.gov), en la biblioteca courthouse nearest you, If you do not file your response on de leyes de su candado o en fa carte que le quede més cerca. Si time, you may lose the case by default, and your wages, no presenta su respuesta a tiempo, puede porder el caso por falta money, and property may be taken without further warning from de comparecencia y se fe podré quitar su sueldo, dinero y bienes the court, sin mas advertenala, There are cther legal requirements, You may want to call an Hay otros requisites legates. Es recomendable que flame aun attorney right away. If you do not know an altomey, you may abogado inmediatamente, Si no canoce a un abogado, puede want to call an attorney referral service, If you cannot afford an llamar & un serviclo de ramisién a abogados, Sino puede pagar a atlorney, you may be eligible for free legal services from a un abogado, es posible que cumpla con los requisitos para nonprofit legal services program, You can locate these obtener servicios legales gratuitos da un programa de servicios honprofit groups at the California Legal Services website Jegales sin finas de lucro. Puede encontrar estos grupos sin fines (www.lawhelpea.org), the California Courts Onilne Self-Help de fuaro en é! sitfo web de Califomla Legal Services, Center (www.courts.ca.gov/selfhelp), or by contacting your {vww.lawhelpcalifornla.org), en ef Centro de Ayuda de las Cortes lacal court or county bar association. de California, (www.sucorte.ca.gov) o poniéndose en contacto con la corte 0 e! colegio de abogados local, FEE WAIVER; If you cannot pay the filing fee, ask the clerk for EXENCION DE CUOTAS; Sino puede pagar la cuots de a fee walver form. NOTE: The court has a statutory lien for presentacién, pide al secretario de (a corte que le dé un formulario aived fees and costs on any settlement or arbitration award of de exenclén de page de cuotas. AVISO: Por ley, la corte tlene $10,000 or more in a civil case. The court's len must be paid derecho a reclamar las cuotas y los costes exentos con un before the court will dismiss the case, gravamen sobre cualquier cantidad de $10,000 6 mas recibida Clerk of Court mediante un acuerdo o una concesién de arbitraje en un caso de deracho civil. Tiene que pagar el gravamen de la corte antes de que Ja corta pueda desestimar al caso. The name and address of the court is: Superior Court of the Santa Clara CASE NUMBER {numero del caso). (El nombra y direocién de le corte es): Judicial District, 191 North First Street, 20CV370125 San Jose, CA 95113 The name, address, and telephone number of plaintiff's attorney, or plalntiff without an attomey, Is: (El nombre, la direccion y of numero de teléfono del abogado def ommandania, o dal demandante que no tiene abogado, es): Todd Rothbard, Attorney at Law #67351 100 Saratoga Avenue, Suite 200, Santa Clara, CA 95051 408-244-4200 Page 1 of2 Form Adspiad for Mandaiary Use SUMMONS—UNLAWFUL DETAINER—EVICTION Code of Civ Procedure, 95 412.20, 2, 498, 1187 udielal Counct! of Galitornia uris.ca.gey 8UM-139 [Rev, Saptomber1, 2018) aoRN He ere we nan wnRe WHY ROS KES an a erent repens stesso ini a i i i SUM-130 PLAINTIFE (Name); THUY VO, VINH DINH caze NUMBER: DEFENDANT (Vem): CESAR PAGADUAN 20CV370125 3. (Must be answered In ail casos) An unlawful dotainer assistant (Bus. & Prof. Code, §§ 6400-8415) [_] did not (J aia for compensation give advice or assistance with this form. (/f plaintiff has raceived any help or advice far pay from an unlawful detainor wssistant, complete itam 6 on the next page.) 4. Unlawful detainer assistant (complete /f plaintiff hes received any help or advice for pey from en unlawful detsiner assistant): 4 Assistant's name: b. Telephone no.: ce Streat address, clty, and zip: d. County of raglstration: e Registration no.: f Registration oxpires on (date) ; Date: Clerk of Court 9/17/2020 1:11 PM Clerk, by M Vu . Deputy (Fecha) {(Secretario) fAdunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010). (Pare prueba | ga de este citatién use al formulario Proof of Service of Summons (form POS-010).) (ee ea! NO TO THE PERSON SERVED: You ate sorved 3, se an Individual defendant. Gage tb. [_) as the person sued under the fictitious name of (specify): oH nee iEa =jae 7 3,10 qd i under: ag an occupant. on. behalf of (specity): ree GCP 416,10 (corporation), 7) CCP 416.60 (minor) SS A ad COP 416.20 (cefunct corporation). CCP 418,70 (consarvatea), a Si) [J CCP 416,40 (eagociation or partnership), (__] CGP 416,90 (authorized person). a De CCP 418,48 {ccoupor EE} other fopcait e. (] by per ‘sonal delivery on (date) « SURETSE av, Tapiamea 7, FaTw] SUMMONS UNLAWFUL DETAINER—EVICTION Page rare inirinins aera SnaRey anawe, ay SES AS Fee ew E-FILED 9/4/2020 3:19 PM TODD ROTHBARD #67351 Clerk of Court ATTORNEY AT LAW 100 Saratoga Avenue #200 Superior Court of CA, Santa Clara, California 95051 County of Santa Clara Tel..% (408) 244-4200 200V370125 Reviewed By: M Vu Attorney for the Plaintiffs SUPERIOR COURT - LIMITED CIVIL JURISDICTION COUNTY OF SANTA CLARA, STATE OF CALIFORNIA THUY VO, VINH DINE, ) 10 200V370125 Plaintiffs, ) No. il vs. ) COMPLAINT FOR 12 ) UNLAWFUL DETAINER CESAR PAGADUAN, DOES I through V, inclusive, ) {Action based on Code 13 Defendants. ) of Civil Procedure Section aaee iiéia V4 Plaintiffs allege: 15 r All txansactions herein relevant took place in Santa Clara 16 County, 17 It 18 The real property owned by plaintiffs, possession of which 19 is sought in this action, is situated at 2781 Gavilan Drive, San 20 Jose, Santa Clara County, California 95148. a1 IIt 22 The true names of defendants named herein as DOES T through 23 Vv, inclusive, are unknown to plaintiffs who therafore sue aaid 24 defendante by said fictitious names and pray leave to amend this 25 complaint to show the true names ae they become known. 26 Iv On or about November 13, 2019, Plaintiffs! predecessor Todd Rothbard 27 =is™ 28 Attomey xt Law acquired title to said premises at a trustee's sale following Sama Cla, Califor 9505 foreclosure upon a deed cf trust, pursuant to the provisions of UNLAWFUL DETAINER RTAH/ONNA TH sous Civil Code section 2924. A copy of the Trustee's Deed Upon Sale is attached hereto, marked "EXHIBIT A", incorporated by reference herein, and made a part hereof. Title was duly perfacted thereunder. Title was subsequently conferred to plaintiffs by Grant Deed. A copy of said Grant Deed is attached hereto, marked “EXHIBIT B", incorporated by reference herein, and made a part hereof. Vv Defendant, who was the trustor of the deed of trust which was foreclosed upon, remained in possession of said premises 10 following said trustee's sale. iW VI 12 On May 10, 2020, plaintiffs caused to be served upon 13 defendant a written notice requiring defendant to quit and 14 deliver up possession of said premises effective three days from 15 the date of service of said notice upon him. A copy of said notice is attached hereto, marked "EXHIBIT C*, incorporated by 16 reference herein, and made a part hereof. 17 VII 18 More than three days have elapsed since the date of service 19 of said notice upon defendant, but defendant xvemains in 20 possession of said premises without plaintiffs’ permission or 21 consent. Pursuant to the provisions of Code of Civil Procedure 22 section 11l61a, there is an unlawful detainer of said premises. 23 VIII 24 The reasonable rental value of said premises is the sum of 25 $130.00 per day, and damages for the unlawful detainer of said premises have accrued at said rate from May 14, 2020 and will 26 continue to accrue at said rate until such time as defendant Todd Rothberd 27 Attorney 2t Law vacates said premises. 100:Sars Avene 28 tx Clava, California 95051 2 UNLAWFUL DETAINER Brana cian. WHEREFORE, plaintiffs pray judgment as follows: z For restitution of possession of said premises. 2 For damages at the rate of $130.00 per day from May 14, 2020 through the date of restitution of possession or the date of judgment herein, whichever comes first. For costs herein, and for such other and further relief as to the Court may seem just and proper. / / f 4 9 DATED: September 4, 2020 By 10 Attorney for Plaintiffs 11 12