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.
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Andrew J. Wiegel, Esq., (SBN 015204i 12/10/2020
G. Ryan Patrick, Esq., (SBN 275517i
WIEGEL LAW GROUP, PLC
414 Gough Street
San Francisco, CA 94102-4464
(415) 5S2-8230
andrewAFwie ellaw rou .corn
rvanÃt.wieaeltawarouo.cotn
Attorneys for Defendants:
ERNEST J. MCNABB, Individually and as
Trustee of the ERNEST J. MCNABB REVOCABLE
LIVING TRUST DATED 11/19/1990
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SAN MATEO
12
13 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349
14 Plaintiff, NOTICE OF DEMURRER AND
DEMURRER TO FIRST AMKNDKD
15 vs. CROSS-COMPLAINT FILED BY
16 REDWOOD TRUST DEED SERVICES, LAURA ARATA
INC., a California Corporation; ERNEST
17 J. MCNABB, individually and as Trustee
of the Ernest J. McNabb Revocable Date: TBD 02/5/2021
18 Time: TBD 9:00 AM
Living Trust Dated 11/19/1990; LOUIS
J. ARATA, individually; LAURA Dept.: TBD 10
19
ARATA, individually, as the Co-
Executor and Representative of the JUDGE BUCHWALD
20
Estate of Gary J. Arata, Deceased, and as
21 sole successor trustee of the John and
Grace Arata 2004 Trust Executed August
22 11, 2004; and DOES 1-20.
23 Defendants.
25
27
28
NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA'S CROSS-COMPLAINT
1
LAURA J. ARATA, as sole and
successor trustee of the John and Grace
Arata 2004 Trust, dated August 11, 2004,
3
Cross Complainant,
vs.
ERNEST J. MCNABB, individually and
as Trustee of the Ernest J. McNABB
7 Revocable Living Trust dated
11/19/1990; REDWOOD TRUST DEED
6 SERVICES, INC., a California
Corporation; HILLCREST REAL
9 ESTATE INC., A California
Corporation; WILLIAM JACOB
1o MAIER; and ROES 1-50, inclusive
Cross-Defendants.
12
13
TO CROSS-COMPLAINANT AND HKR ATTORNEYS OF RECORD:
15
PLEASE TAKE NOTICE: on TBD or as soon thereafter as this matter may be
16
17
heard in Dept. TBD, of San Mateo County Superior Court, located at 400 County
Center, Redwood City, CA 94063, during the regular law and motion calendar, Cross-Defendant
ERNEST J. MCNABB will move the court to sustain a demurrer to LAURA ARATA'S First
20
Amended Cross-Complaint without leave to amend.
21
Cross-Defendant McNabb's denmrrer to Laura Arata's first amended cross-complaint is
22
3
inade pursuant to California Code of Civil Procedure Section 430.30 (e) and (I) on the ground
24 that Laura Arata's cross-complaint fails to allege facts sufficient to state a cause of action against
cross-defendant and on the ground the pleading is uncertain.
26
Cross-Complainant Liana Arata has filed her first amended complaint in an attempt to
27
avoid the demurter filed by Cross-Defendant McNabb. However, the amended allegations in
28
NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA'S CROSS-COMPLAINT
Laura Arata's first amended complaint do not make the amei Ried pleadillg ally less subject to
2
dennurer than her original pleading.
3
As Laura Arata alleged in her original verified cross-complaint, the claims alleged and
5
relief sought in her first amended cross-complaint are all predicated on Laura Arata's claim that
the "Deeney" and "McNabb" secured loan transactions are usurious. Specifically, Laura Arata
alleges that these two loan transactions are not exempt from the interest rate restrictions set fodh
8
by Civil Code II1916.1 because the loans were not arranged by a licensed real estate broker.
9
As set forth in Cross-Defendant McNabb's Demurrer to the original cross-complaint and
10
as set forth in this Demurrer to Laura Arata's first amended cross-complaint, William J. Maier
42 and Peter Carl Foppiano dba ARC Capital were the licensed brokers who arranged these two
13
secured loan transactions. The licensing information fiom the NMLS and California's
14
Depai4ment of Real Estate show that each of these individuals held an active real estate broker'
15
license at the time these loan transactions were arranged.
16
17 Laura Arata admits that both William J. Maier and ARC Capital were involved in
nanking/arranging the subject loan transactions. Civil Code tj 1916.1 exempts secured loan
19
transactions from the interest rate restrictions when a secured loan transaction is made or
20
arranged by any person licensed as a real estate broker by the State of California. "The teim
21
'made or arranged'ncludes any loan made by a person licensed as a real estate broker as a
23 principal or as an agent for others, and whether or not the person is acting within the course and
scope of such license." (Civ. Code II 1916.) Thus, the usury exemption in Civil Code tj1916.1
25
applies to the loan transactions at issue because William J. Maier and ARC Capital were both
26
licensed brokers responsible for making/arranging the loan. The fact that Hillcrest Real Estate,
27
inc. was not licensed is irrelevant.
NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA'S CROSS-COMPLAINT
2
Cross-Defendant, Ernest J. McNabb, has requested that the Court take judicial notice of
3
Laura Arata's verified original cross-complaint, Cross-Defendant'ennuier to the original
5
cross-complaint, and the real estate licensing records pursuant to Evid. Code tj451, 4S2, and
4S3.
This Demurrer will be based upon this notice, the Memorandum in Support and the
8
Declaration of G. Ryan Patrick, Cross-Defendant's Request for Judicial Notice, and Laura
9
Arata's First Amended Cross-Complaint and exhibits attached thereto, and any further evidence
10
and argument that the Court may receive at or before the hearing.
12 Respectfully submitted,
13
14
Dated: December 3, 2020 WIEGEL LAW'GRO P, PLC
15
16
17
G. Ryan Patrick, Esq.
EI&IEST J. MCNABB, Individually and as
19 Trustee of the ERNEST J. MCNABB
REVOCABLE LIVING TRUST DATED
20 11/19/1990
21
22
23
25
26
27
28
NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA'S CROSS-COMPLAINT
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Andrew J. Wiegel, Esq., (SBN 015204i 12/10/2020 G. Ryan Patrick, Esq., (SBN 275517i WIEGEL LAW GROUP, PLC 414 Gough Street San Francisco, CA 94102-4464 (415) 5S2-8230 andrewAFwie ellaw rou .corn rvanÃt.wieaeltawarouo.cotn Attorneys for Defendants: ERNEST J. MCNABB, Individually and as Trustee of the ERNEST J. MCNABB REVOCABLE LIVING TRUST DATED 11/19/1990 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN MATEO 12 13 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349 14 Plaintiff, NOTICE OF DEMURRER AND DEMURRER TO FIRST AMKNDKD 15 vs. CROSS-COMPLAINT FILED BY 16 REDWOOD TRUST DEED SERVICES, LAURA ARATA INC., a California Corporation; ERNEST 17 J. MCNABB, individually and as Trustee of the Ernest J. McNabb Revocable Date: TBD 02/5/2021 18 Time: TBD 9:00 AM Living Trust Dated 11/19/1990; LOUIS J. ARATA, individually; LAURA Dept.: TBD 10 19 ARATA, individually, as the Co- Executor and Representative of the JUDGE BUCHWALD 20 Estate of Gary J. Arata, Deceased, and as 21 sole successor trustee of the John and Grace Arata 2004 Trust Executed August 22 11, 2004; and DOES 1-20. 23 Defendants. 25 27 28 NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA'S CROSS-COMPLAINT 1 LAURA J. ARATA, as sole and successor trustee of the John and Grace Arata 2004 Trust, dated August 11, 2004, 3 Cross Complainant, vs. ERNEST J. MCNABB, individually and as Trustee of the Ernest J. McNABB 7 Revocable Living Trust dated 11/19/1990; REDWOOD TRUST DEED 6 SERVICES, INC., a California Corporation; HILLCREST REAL 9 ESTATE INC., A California Corporation; WILLIAM JACOB 1o MAIER; and ROES 1-50, inclusive Cross-Defendants. 12 13 TO CROSS-COMPLAINANT AND HKR ATTORNEYS OF RECORD: 15 PLEASE TAKE NOTICE: on TBD or as soon thereafter as this matter may be 16 17 heard in Dept. TBD, of San Mateo County Superior Court, located at 400 County Center, Redwood City, CA 94063, during the regular law and motion calendar, Cross-Defendant ERNEST J. MCNABB will move the court to sustain a demurrer to LAURA ARATA'S First 20 Amended Cross-Complaint without leave to amend. 21 Cross-Defendant McNabb's denmrrer to Laura Arata's first amended cross-complaint is 22 3 inade pursuant to California Code of Civil Procedure Section 430.30 (e) and (I) on the ground 24 that Laura Arata's cross-complaint fails to allege facts sufficient to state a cause of action against cross-defendant and on the ground the pleading is uncertain. 26 Cross-Complainant Liana Arata has filed her first amended complaint in an attempt to 27 avoid the demurter filed by Cross-Defendant McNabb. However, the amended allegations in 28 NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA'S CROSS-COMPLAINT Laura Arata's first amended complaint do not make the amei Ried pleadillg ally less subject to 2 dennurer than her original pleading. 3 As Laura Arata alleged in her original verified cross-complaint, the claims alleged and 5 relief sought in her first amended cross-complaint are all predicated on Laura Arata's claim that the "Deeney" and "McNabb" secured loan transactions are usurious. Specifically, Laura Arata alleges that these two loan transactions are not exempt from the interest rate restrictions set fodh 8 by Civil Code II1916.1 because the loans were not arranged by a licensed real estate broker. 9 As set forth in Cross-Defendant McNabb's Demurrer to the original cross-complaint and 10 as set forth in this Demurrer to Laura Arata's first amended cross-complaint, William J. Maier 42 and Peter Carl Foppiano dba ARC Capital were the licensed brokers who arranged these two 13 secured loan transactions. The licensing information fiom the NMLS and California's 14 Depai4ment of Real Estate show that each of these individuals held an active real estate broker' 15 license at the time these loan transactions were arranged. 16 17 Laura Arata admits that both William J. Maier and ARC Capital were involved in nanking/arranging the subject loan transactions. Civil Code tj 1916.1 exempts secured loan 19 transactions from the interest rate restrictions when a secured loan transaction is made or 20 arranged by any person licensed as a real estate broker by the State of California. "The teim 21 'made or arranged'ncludes any loan made by a person licensed as a real estate broker as a 23 principal or as an agent for others, and whether or not the person is acting within the course and scope of such license." (Civ. Code II 1916.) Thus, the usury exemption in Civil Code tj1916.1 25 applies to the loan transactions at issue because William J. Maier and ARC Capital were both 26 licensed brokers responsible for making/arranging the loan. The fact that Hillcrest Real Estate, 27 inc. was not licensed is irrelevant. NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA'S CROSS-COMPLAINT 2 Cross-Defendant, Ernest J. McNabb, has requested that the Court take judicial notice of 3 Laura Arata's verified original cross-complaint, Cross-Defendant'ennuier to the original 5 cross-complaint, and the real estate licensing records pursuant to Evid. Code tj451, 4S2, and 4S3. This Demurrer will be based upon this notice, the Memorandum in Support and the 8 Declaration of G. Ryan Patrick, Cross-Defendant's Request for Judicial Notice, and Laura 9 Arata's First Amended Cross-Complaint and exhibits attached thereto, and any further evidence 10 and argument that the Court may receive at or before the hearing. 12 Respectfully submitted, 13 14 Dated: December 3, 2020 WIEGEL LAW'GRO P, PLC 15 16 17 G. Ryan Patrick, Esq. EI&IEST J. MCNABB, Individually and as 19 Trustee of the ERNEST J. MCNABB REVOCABLE LIVING TRUST DATED 20 11/19/1990 21 22 23 25 26 27 28 NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA'S CROSS-COMPLAINT