On June 03, 2020 a
Motion,Ex Parte
was filed
involving a dispute between
Arata, Laura,
Peninsula Open Space Trust,
and
Arata, Laura,
Arata, Louis J.,
Arata, Marie Joanne,
Does 1-20,
John And Grace Arata 2004 Trust,
Mcnabb, Ernest J.,
Redwood Trust Deed Services, Inc., A California Corporation,
for (26) Unlimited Other Real Property
in the District Court of San Mateo County.
Preview
1 TAMARA S. GALANTER (SBN 142532)
SARA A. CLARK (SBN 273600)
2 AARON M. STANTON (SBN 312530) 7/27/2020
SHUTE, MIHALY & WEINBERGER LLP
3 396 Hayes Street
San Francisco, California 94102
4 Telephone: (415) 552-7272
Facsimile: (415) 552-5816
5 Galanter@smwlaw.com
Clark@smwlaw.com
6 Stanton@smwlaw.com
7 Attorneys for Plaintiff
Peninsula Open Space Trust
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN MATEO
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PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349
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Plaintiff, PLAINTIFF’S NOTICE OF MOTION
13 AND MOTION FOR PRELIMINARY
v. INJUNCTION
14
REDWOOD TRUST DEED SERVICES, Date: August 20, 2020
15 INC., a California Corporation; Time: 2:00 p.m.
ERNEST J. MCNABB, individually and Dept.: 28, Courtroom 2F
16 as Trustee of the Ernest J. McNabb Judge: Hon. George A. Miram
Revocable Living Trust Dated
17 11/19/1990; LOUIS J ARATA, Filed Concurrently with Memorandum
individually; LAURA ARATA, of Points & Authorities in Support;
18 individually, and as sole successor Declaration of Noelle Thurlow;
trustee of the John and Grace Arata [Proposed] Order
19 2004 Trust Executed August 11, 2004;
MARIE JOANNE ARATA, individually,
20 and as the Representative of the Estate
of Gary J. Arata, Deceased; and DOES
21 1-20.
22 Defendants.
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Plaintiff’s Notice of Motion and Motion for Preliminary Injunction
Case No. 20-CIV-02349
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT at 2:00 p.m. on August 20, 2020, or as soon
3 thereafter as this matter may be heard, in Department 28, Courtroom 2F of the San Mateo
4 County Superior Court, located at 400 County Center, Redwood City, CA 94063, Plaintiff
5 Peninsula Open Space Trust (“POST”) will and hereby does move this Court for a
6 preliminary injunction or other order enjoining Defendants Redwood Trust Deed Services,
7 Inc. (“Redwood”), Ernest J. McNabb, and Laura Arata from: conducting any trustee sale or
8 other sale or conveyance of a portion of the Arata Ranch; seeking judicial foreclosure of
9 any loans secured by a portion of the Arata Ranch; and obtaining any further loans
10 secured by any interest in the Arata Ranch, unless Defendants can demonstrate an ability
11 to make payments under such loans, until the merits of Plaintiff’s case have been decided.
12 This motion is made on the grounds that POST is likely to succeed at trial on the
13 merits of its claims against Defendants, and POST will suffer irreparable injury if the
14 injunction is not granted. Specifically, the relevant deed of trust is secured by the portion
15 of the Arata Ranch owned by Defendant Laura Arata as trustee of the John and Grace
16 Arata 2004 Trust. Partial sale of the Arata Ranch, by a trustee sale or otherwise, would
17 violate the express terms of a 2004 conservation easement held by POST and recorded
18 against the entire property. The easement prohibits the sale or other conveyance of the
19 property except as a whole. California law allows POST, as holder of the conservation
20 easement, to enforce its terms against third parties like Redwood and McNabb.
21 The proposed sale will result in irreparable harm to POST if not immediately
22 halted. Such harm includes, but is not limited to, interference with POST’s rights under
23 the conservation easement and the effective loss of POST’s ability to enforce its terms.
24 POST bargained for and paid valuable consideration for the right to prevent partial sales
25 because ongoing divided ownership of the property threatens the property’s conservation
26 values. On the other hand, none of the Defendants would experience irreparable harm as a
27 result of a delay in the trustee sale. Such harms, if any, would be limited to lost interest
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2
Plaintiff’s Notice of Motion and Motion for Preliminary Injunction
Case No. 20-CIV-02349
1 on the debt pending resolution of this case, which could be recouped when the property is
2 sold.
3 This motion is based on this Notice of Motion, the accompanying Memorandum of
4 Points and Authorities, the Declaration of Noelle Thurlow, all pleadings and papers on file
5 in this action, all admissible evidence presented at the hearing, oral argument by counsel
6 at the hearing, if appropriate, and upon such other matters as may be presented to the
7 Court at the time of the hearing.
8 DATED: July 27, 2020 SHUTE, MIHALY & WEINBERGER LLP
9
10
By:
11 TAMARA S. GALANTER
SARA A. CLARK
12
AARON M. STANTON
13
Attorneys for Plaintiff
14 Peninsula Open Space Trust
15 1123290.7
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Plaintiff’s Notice of Motion and Motion for Preliminary Injunction
Case No. 20-CIV-02349
Preview
1 TAMARA S. GALANTER (SBN 142532) SARA A. CLARK (SBN 273600) 2 AARON M. STANTON (SBN 312530) 7/27/2020 SHUTE, MIHALY & WEINBERGER LLP 3 396 Hayes Street San Francisco, California 94102 4 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 5 Galanter@smwlaw.com Clark@smwlaw.com 6 Stanton@smwlaw.com 7 Attorneys for Plaintiff Peninsula Open Space Trust 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349 12 Plaintiff, PLAINTIFF’S NOTICE OF MOTION 13 AND MOTION FOR PRELIMINARY v. INJUNCTION 14 REDWOOD TRUST DEED SERVICES, Date: August 20, 2020 15 INC., a California Corporation; Time: 2:00 p.m. ERNEST J. MCNABB, individually and Dept.: 28, Courtroom 2F 16 as Trustee of the Ernest J. McNabb Judge: Hon. George A. Miram Revocable Living Trust Dated 17 11/19/1990; LOUIS J ARATA, Filed Concurrently with Memorandum individually; LAURA ARATA, of Points & Authorities in Support; 18 individually, and as sole successor Declaration of Noelle Thurlow; trustee of the John and Grace Arata [Proposed] Order 19 2004 Trust Executed August 11, 2004; MARIE JOANNE ARATA, individually, 20 and as the Representative of the Estate of Gary J. Arata, Deceased; and DOES 21 1-20. 22 Defendants. 23 24 25 26 27 28 Plaintiff’s Notice of Motion and Motion for Preliminary Injunction Case No. 20-CIV-02349 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT at 2:00 p.m. on August 20, 2020, or as soon 3 thereafter as this matter may be heard, in Department 28, Courtroom 2F of the San Mateo 4 County Superior Court, located at 400 County Center, Redwood City, CA 94063, Plaintiff 5 Peninsula Open Space Trust (“POST”) will and hereby does move this Court for a 6 preliminary injunction or other order enjoining Defendants Redwood Trust Deed Services, 7 Inc. (“Redwood”), Ernest J. McNabb, and Laura Arata from: conducting any trustee sale or 8 other sale or conveyance of a portion of the Arata Ranch; seeking judicial foreclosure of 9 any loans secured by a portion of the Arata Ranch; and obtaining any further loans 10 secured by any interest in the Arata Ranch, unless Defendants can demonstrate an ability 11 to make payments under such loans, until the merits of Plaintiff’s case have been decided. 12 This motion is made on the grounds that POST is likely to succeed at trial on the 13 merits of its claims against Defendants, and POST will suffer irreparable injury if the 14 injunction is not granted. Specifically, the relevant deed of trust is secured by the portion 15 of the Arata Ranch owned by Defendant Laura Arata as trustee of the John and Grace 16 Arata 2004 Trust. Partial sale of the Arata Ranch, by a trustee sale or otherwise, would 17 violate the express terms of a 2004 conservation easement held by POST and recorded 18 against the entire property. The easement prohibits the sale or other conveyance of the 19 property except as a whole. California law allows POST, as holder of the conservation 20 easement, to enforce its terms against third parties like Redwood and McNabb. 21 The proposed sale will result in irreparable harm to POST if not immediately 22 halted. Such harm includes, but is not limited to, interference with POST’s rights under 23 the conservation easement and the effective loss of POST’s ability to enforce its terms. 24 POST bargained for and paid valuable consideration for the right to prevent partial sales 25 because ongoing divided ownership of the property threatens the property’s conservation 26 values. On the other hand, none of the Defendants would experience irreparable harm as a 27 result of a delay in the trustee sale. Such harms, if any, would be limited to lost interest 28 2 Plaintiff’s Notice of Motion and Motion for Preliminary Injunction Case No. 20-CIV-02349 1 on the debt pending resolution of this case, which could be recouped when the property is 2 sold. 3 This motion is based on this Notice of Motion, the accompanying Memorandum of 4 Points and Authorities, the Declaration of Noelle Thurlow, all pleadings and papers on file 5 in this action, all admissible evidence presented at the hearing, oral argument by counsel 6 at the hearing, if appropriate, and upon such other matters as may be presented to the 7 Court at the time of the hearing. 8 DATED: July 27, 2020 SHUTE, MIHALY & WEINBERGER LLP 9 10 By: 11 TAMARA S. GALANTER SARA A. CLARK 12 AARON M. STANTON 13 Attorneys for Plaintiff 14 Peninsula Open Space Trust 15 1123290.7 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Plaintiff’s Notice of Motion and Motion for Preliminary Injunction Case No. 20-CIV-02349