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1 TAMARA S. GALANTER (SBN 142532)
SARA A. CLARK (SBN 273600)
2 AARON M. STANTON (SBN 312530)
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 11/4/2020
6 Stanton@smwlaw.com
7 Attorneys for Plaintiff PENINSULA OPEN
SPACE TRUST
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349
12 Plaintiff, PLAINTIFF’S REPLY TO OBJECTION
TO DAMBACHER DECLARATION IN
13 v. SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
14 REDWOOD TRUST DEED SERVICES,
INC., a California Corporation; ERNEST J. Date: November 5, 2020
15 MCNABB, individually and as Trustee of the Time: 2:00 p.m.
Ernest J. McNabb Revocable Living Trust Dept.: 28, Courtroom 2F
16 Dated 11/19/1990; LOUIS J ARATA, Judge: Hon. George A. Miram
individually; LAURA ARATA, individually,
17 and as sole successor trustee of the John and
Grace Arata 2004 Trust Executed August 11,
18 2004; MARIE JOANNE ARATA,
individually, and as the Representative of the
19 Estate of Gary J. Arata, Deceased; and DOES
1-20.
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Defendants.
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REPLY TO OBJECTION TO DAMBACHER DECLARATION
Case No. 20-CIV-02349
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LAIIRA J. ARATA, as sole and successor
2 trustee of the John and Grace Arata 2004
Trust, dated August 11, 2004,
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Cross Complainant,
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v.
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ERNEST J. MCNABB, individually and as
6 Trustee of the Ernest J. McNABB Revocable-
Living Trust dated 11/19/1990; REDWOOD
7 TRUST DEED SERVICES, INC., a California
Corporation; HILLCREST REAL ESTATE
8 INC., A California Corporation; WILLIAM
JACOB MAIER; and ROES 1-50, inclusive,
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Cross-Defendants.
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REPLY TO OBJECTION TO DAMBACHER DECLARATION
Case No. 20-CIV-02349
1 Defendant Ernest J. McNabb’s Objection to the Declaration of Gary P. Dambacher Filed in
2 Support of Plaintiff’s Motion for Preliminary Injunction (“Dambacher Declaration”) erroneously
3 asserts that the Dambacher Declaration should not be considered because Mr. Dambacher is not a
4 party to POST’s motion and thus the declaration constitutes an improper joinder. Not so.
5 The Dambacher Declaration is simply a declaration in support of POST’s motion for a
6 preliminary injunction to correct the misleading factual allegations made by McNabb that the
7 Arata property would never be sold. Defendant Ernest J. McNabb’s Opposition to Plaintiff’s
8 Motion for Preliminary Injunction at 3. The Dambacher Declaration shows that the Aratas are
9 making significant progress toward a sale. Dambacher Declaration ¶ 6 (asserting that the listing
10 price is likely to be reduced by $1,000,000 and clean-up of the property is almost complete).
11 POST has the right to submit declarations in support of it preliminary injunction motion.
12 Thus, POST could have submitted the Dambacher Declaration with its reply brief on its law firm’s
13 pleading paper. But since Mr. Dambacher’s client, Laura Arata, trustee of the John Arata Trust,
14 (“Laura”), has filed a cross-complaint in this action and is thus a party, the Dambacher Declaration
15 was submitted on Mr. Dambacher’s firm’s pleading paper. While Laura also seeks injunctive relief
16 in her cross-complaint, a fact of which McNabb has long been aware, the Dambacher Declaration
17 is not a joinder.
18 As such, the cases about joinder cited by McNabb in its Objection are not on point.
19 Furthermore, even if the Dambacher Declaration were somehow considered a request for joinder,
20 the cases relied on by McNabb are irrelevant since they address joinder requirements for summary
21 judgement motions, not preliminary injunctions. Frazee v. Steely (2002) 95 Cal.App.4th 627, 636-
22 7 (addressing requirements for joinder under summary judgment statute); Village Nurseries LP v.
23 Greenbaum (2002) 101 Cal.App4th 26, 46-7 (same).
24 POST urges the Court to disregard McNabb’s objection and consider the Dambacher
25 Declaration in its consideration of POST’s preliminary injunction motion.
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REPLY TO OBJECTION TO DAMBACHER DECLARATION
Case No. 20-CIV-02349
1 DATED: November 4, 2020 SHUTE, MIHALY & WEINBERGER LLP
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By:
4 TAMARA S. GALANTER
SARA A. CLARK
5 AARON M. STANTON
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Attorneys for Plaintiff PENINSULA OPEN
7 SPACE TRUST
8 1306135.1
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REPLY TO OBJECTION TO DAMBACHER DECLARATION
Case No. 20-CIV-02349
1 PROOF OF SERVICE
2 PENINSULA OPEN SPACE TRUST v. ERNEST J. MCNABB et al.
San Mateo County Superior Court
3 Case No. 20-CIV-02349
4 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of San Francisco, State of California. My business address is 396 Hayes
5 Street, San Francisco, California 94102.
6 On November 4, 2020, I served true copies of the following document(s) described as:
7 PLAINTIFF’S REPLY TO OBJECTION TO DAMBACHER DECLARATION IN
SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION
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on the parties in this action as follows:
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SEE ATTACHED SERVICE LIST
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BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
11 document(s) to be sent from e-mail address Larkin@smwlaw.com to the persons at the e-mail
addresses listed in the Service List. I did not receive, within a reasonable time after the
12 transmission, any electronic message or other indication that the transmission was unsuccessful.
13 BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx
and addressed to the persons at the addresses listed in the Service List. I placed the envelope or
14 package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx
or delivered such document(s) to a courier or driver authorized by FedEx to receive documents.
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I declare under penalty of perjury under the laws of the State of California that the
16 foregoing is true and correct.
17 Executed on November 4, 2020, at San Francisco, California.
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Patricia Larkin
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REPLY TO OBJECTION TO DAMBACHER DECLARATION
Case No. 20-CIV-02349
1 SERVICE LIST
2 PENINSULA OPEN SPACE TRUST v. ERNEST J. MCNABB et al.
San Mateo County Superior Court
3 Case No. 20-CIV-02349
4 Benjamin R. Levinson Andrew Wiegel
Law Office of Benjamin R. Levinson Ryan Patrick
5 46 N. 2nd Street Andrew Wiegel Law Group
Campbell, CA 95008 414 Gough Street
6 (408) 366-2999 San Francisco, CA 94102
ben@benlevinsonlaw.com (415) 552-8230
7 andrew@wiegellawgroup.com
Attorneys for Redwood Trust Deed Services, ryan@wiegellawgroup.com
8 Inc.
Attorneys for Ernest J. McNabb
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Gary Dambacher Louis J. Arata
10 Carrie M. Mckernan 53 E. Cremetti Lane
Dambacher, Trujillo & Associates Yerington, NV 89447
11 32 N. Washington Street (209) 617-0446
Sonora, CA 95370 louiejarata@gmail.com
12 (209) 533-1883
gary@dtalawyers.com Pro Per
13 carrie@dtalawyers.com
14 Attorneys for Laura Arata and Marie Joanne
Arata
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REPLY TO OBJECTION TO DAMBACHER DECLARATION
Case No. 20-CIV-02349
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1 TAMARA S. GALANTER (SBN 142532) SARA A. CLARK (SBN 273600) 2 AARON M. STANTON (SBN 312530) 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 11/4/2020 6 Stanton@smwlaw.com 7 Attorneys for Plaintiff PENINSULA OPEN SPACE TRUST 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349 12 Plaintiff, PLAINTIFF’S REPLY TO OBJECTION TO DAMBACHER DECLARATION IN 13 v. SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 14 REDWOOD TRUST DEED SERVICES, INC., a California Corporation; ERNEST J. Date: November 5, 2020 15 MCNABB, individually and as Trustee of the Time: 2:00 p.m. Ernest J. McNabb Revocable Living Trust Dept.: 28, Courtroom 2F 16 Dated 11/19/1990; LOUIS J ARATA, Judge: Hon. George A. Miram individually; LAURA ARATA, individually, 17 and as sole successor trustee of the John and Grace Arata 2004 Trust Executed August 11, 18 2004; MARIE JOANNE ARATA, individually, and as the Representative of the 19 Estate of Gary J. Arata, Deceased; and DOES 1-20. 20 Defendants. 21 22 23 24 25 26 27 28 REPLY TO OBJECTION TO DAMBACHER DECLARATION Case No. 20-CIV-02349 1 LAIIRA J. ARATA, as sole and successor 2 trustee of the John and Grace Arata 2004 Trust, dated August 11, 2004, 3 Cross Complainant, 4 v. 5 ERNEST J. MCNABB, individually and as 6 Trustee of the Ernest J. McNABB Revocable- Living Trust dated 11/19/1990; REDWOOD 7 TRUST DEED SERVICES, INC., a California Corporation; HILLCREST REAL ESTATE 8 INC., A California Corporation; WILLIAM JACOB MAIER; and ROES 1-50, inclusive, 9 Cross-Defendants. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 REPLY TO OBJECTION TO DAMBACHER DECLARATION Case No. 20-CIV-02349 1 Defendant Ernest J. McNabb’s Objection to the Declaration of Gary P. Dambacher Filed in 2 Support of Plaintiff’s Motion for Preliminary Injunction (“Dambacher Declaration”) erroneously 3 asserts that the Dambacher Declaration should not be considered because Mr. Dambacher is not a 4 party to POST’s motion and thus the declaration constitutes an improper joinder. Not so. 5 The Dambacher Declaration is simply a declaration in support of POST’s motion for a 6 preliminary injunction to correct the misleading factual allegations made by McNabb that the 7 Arata property would never be sold. Defendant Ernest J. McNabb’s Opposition to Plaintiff’s 8 Motion for Preliminary Injunction at 3. The Dambacher Declaration shows that the Aratas are 9 making significant progress toward a sale. Dambacher Declaration ¶ 6 (asserting that the listing 10 price is likely to be reduced by $1,000,000 and clean-up of the property is almost complete). 11 POST has the right to submit declarations in support of it preliminary injunction motion. 12 Thus, POST could have submitted the Dambacher Declaration with its reply brief on its law firm’s 13 pleading paper. But since Mr. Dambacher’s client, Laura Arata, trustee of the John Arata Trust, 14 (“Laura”), has filed a cross-complaint in this action and is thus a party, the Dambacher Declaration 15 was submitted on Mr. Dambacher’s firm’s pleading paper. While Laura also seeks injunctive relief 16 in her cross-complaint, a fact of which McNabb has long been aware, the Dambacher Declaration 17 is not a joinder. 18 As such, the cases about joinder cited by McNabb in its Objection are not on point. 19 Furthermore, even if the Dambacher Declaration were somehow considered a request for joinder, 20 the cases relied on by McNabb are irrelevant since they address joinder requirements for summary 21 judgement motions, not preliminary injunctions. Frazee v. Steely (2002) 95 Cal.App.4th 627, 636- 22 7 (addressing requirements for joinder under summary judgment statute); Village Nurseries LP v. 23 Greenbaum (2002) 101 Cal.App4th 26, 46-7 (same). 24 POST urges the Court to disregard McNabb’s objection and consider the Dambacher 25 Declaration in its consideration of POST’s preliminary injunction motion. 26 / / / 27 / / / 28 / / / 3 REPLY TO OBJECTION TO DAMBACHER DECLARATION Case No. 20-CIV-02349 1 DATED: November 4, 2020 SHUTE, MIHALY & WEINBERGER LLP 2 3 By: 4 TAMARA S. GALANTER SARA A. CLARK 5 AARON M. STANTON 6 Attorneys for Plaintiff PENINSULA OPEN 7 SPACE TRUST 8 1306135.1 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 REPLY TO OBJECTION TO DAMBACHER DECLARATION Case No. 20-CIV-02349 1 PROOF OF SERVICE 2 PENINSULA OPEN SPACE TRUST v. ERNEST J. MCNABB et al. San Mateo County Superior Court 3 Case No. 20-CIV-02349 4 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of San Francisco, State of California. My business address is 396 Hayes 5 Street, San Francisco, California 94102. 6 On November 4, 2020, I served true copies of the following document(s) described as: 7 PLAINTIFF’S REPLY TO OBJECTION TO DAMBACHER DECLARATION IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 8 on the parties in this action as follows: 9 SEE ATTACHED SERVICE LIST 10 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 11 document(s) to be sent from e-mail address Larkin@smwlaw.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the 12 transmission, any electronic message or other indication that the transmission was unsuccessful. 13 BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the persons at the addresses listed in the Service List. I placed the envelope or 14 package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. 15 I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct. 17 Executed on November 4, 2020, at San Francisco, California. 18 19 Patricia Larkin 20 21 22 23 24 25 26 27 28 5 REPLY TO OBJECTION TO DAMBACHER DECLARATION Case No. 20-CIV-02349 1 SERVICE LIST 2 PENINSULA OPEN SPACE TRUST v. ERNEST J. MCNABB et al. San Mateo County Superior Court 3 Case No. 20-CIV-02349 4 Benjamin R. Levinson Andrew Wiegel Law Office of Benjamin R. Levinson Ryan Patrick 5 46 N. 2nd Street Andrew Wiegel Law Group Campbell, CA 95008 414 Gough Street 6 (408) 366-2999 San Francisco, CA 94102 ben@benlevinsonlaw.com (415) 552-8230 7 andrew@wiegellawgroup.com Attorneys for Redwood Trust Deed Services, ryan@wiegellawgroup.com 8 Inc. Attorneys for Ernest J. McNabb 9 Gary Dambacher Louis J. Arata 10 Carrie M. Mckernan 53 E. Cremetti Lane Dambacher, Trujillo & Associates Yerington, NV 89447 11 32 N. Washington Street (209) 617-0446 Sonora, CA 95370 louiejarata@gmail.com 12 (209) 533-1883 gary@dtalawyers.com Pro Per 13 carrie@dtalawyers.com 14 Attorneys for Laura Arata and Marie Joanne Arata 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 REPLY TO OBJECTION TO DAMBACHER DECLARATION Case No. 20-CIV-02349