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 Andrew J. Wiegel, Esq., (SBN 075204)
G. Ryan Patrick, Esq., (SBN 275517)
2
WIEGEL LAW GROUP, PLC
3 414 Gough Street
San Francisco, CA 94102-4464
4 (415) 552-8230 2/11/2021
5
andrew@wiegellawgroup.com
ryan@wiegellawgroup.com
6
Attorneys for Defendants:
7 ERNEST J. MCNABB, Individually and as
8 Trustee of the ERNEST J. MCNABB REVOCABLE
LIVING TRUST DATED 11/19/1990
9
SUPERIOR COURT OF CALIFORNIA
10
11 COUNTY OF SAN MATEO
12
13 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349
14 Plaintiff, NOTICE OF DEMURRER AND
DEMURRER TO FIRST AMENDED
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: March 12, 2021
18 Time: 9:00 A.M.
Living Trust Dated 11/19/1990; LOUIS
J. ARATA, individually; LAURA Dept. 21, Courtroom 2J
19
ARATA, individually, as the Co-
20 Executor and Representative of the Hon. Robert D. Foiles
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.
24
25
26
27
28
NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA’S CROSS-COMPLAINT
-1-
1
LAURA J. ARATA, as sole and
2 successor trustee of the John and Grace
Arata 2004 Trust, dated August 11, 2004,
3
Cross Complainant,
4
5
vs.
6 ERNEST J. MCNABB, individually and
as Trustee of the Ernest J. McNABB
7 Revocable Living Trust dated
11/19/1990; REDWOOD TRUST DEED
8 SERVICES, INC., a California
Corporation; HILLCREST REAL
9 ESTATE INC., A California
Corporation; WILLIAM JACOB
10 MAIER; and ROES 1-50, inclusive
11 Cross-Defendants.
12
13
14
TO CROSS-COMPLAINANT AND HER ATTORNEYS OF RECORD:
15
PLEASE TAKE NOTICE: on March 12, 2021 at 9:00 A.M or as soon thereafter as this
16
matter may be heard in Dept._21, Courtroom 2J of San Mateo County Superior Court, located at
17
18 400 County Center, Redwood City, CA 94063, during the regular law and motion calendar,
19 Cross-Defendant ERNEST J. MCNABB will move the court to sustain a demurrer to LAURA
20
ARATA’S First Amended Cross-Complaint without leave to amend.
21
Cross-Defendant McNabb’s demurrer to Laura Arata’s first amended cross-complaint is
22
23 made pursuant to California Code of Civil Procedure Section 430.30 (e) and (f) on the ground
24 that Laura Arata’s cross-complaint fails to allege facts sufficient to state a cause of action against
25 cross-defendant and on the ground the pleading is uncertain.
26
Cross-Complainant Laura Arata has filed her first amended complaint in an attempt to
27
avoid the demurrer filed by Cross-Defendant McNabb. However, the amended allegations in
28
NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA’S CROSS-COMPLAINT
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1 Laura Arata’s first amended complaint do not make the amended pleading any less subject to
2
demurrer than her original pleading.
3
As Laura Arata alleged in her original verified cross-complaint, the claims alleged and
4
5
relief sought in her first amended cross-complaint are all predicated on Laura Arata’s claim that
6 the “Deeney” and “McNabb” secured loan transactions are usurious. Specifically, Laura Arata
7 alleges that these two loan transactions are not exempt from the interest rate restrictions set forth
8
by Civil Code § 1916.1 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
11 as set forth in this Demurrer to Laura Arata’s first amended cross-complaint, William J. Maier
12 and Peter Carl Foppiano dba ARC Capital were the licensed brokers who arranged these two
13
secured loan transactions. The licensing information from the NMLS and California’s
14
Department of Real Estate show that each of these individuals held an active real estate broker’s
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
18 making/arranging the subject loan transactions. Civil Code § 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 term
21
22 ‘made or arranged’ includes 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
24
scope of such license.” (Civ. Code § 1916.) Thus, the usury exemption in Civil Code § 1916.1
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
28 Inc. was not licensed is irrelevant.
NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA’S CROSS-COMPLAINT
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1
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’ Demurrer to the original
4
5
cross-complaint, and the real estate licensing records pursuant to Evid. Code § 451, 452, and
6 453.
7 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
11 and argument that the Court may receive at or before the hearing.
12 Respectfully submitted,
13
14
Dated: February 11, 2021 WIEGEL LAW GROUP, PLC
15
16
17 By: /s/ G. Ryan Patrick
G. Ryan Patrick, Esq.
18 ERNEST J. MCNABB, Individually and as
19
Trustee of the ERNEST J. MCNABB
REVOCABLE LIVING TRUST DATED
20 11/19/1990
21
22
23
24
25
26
27
28
NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA’S CROSS-COMPLAINT
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Preview
1 Andrew J. Wiegel, Esq., (SBN 075204) G. Ryan Patrick, Esq., (SBN 275517) 2 WIEGEL LAW GROUP, PLC 3 414 Gough Street San Francisco, CA 94102-4464 4 (415) 552-8230 2/11/2021 5 andrew@wiegellawgroup.com ryan@wiegellawgroup.com 6 Attorneys for Defendants: 7 ERNEST J. MCNABB, Individually and as 8 Trustee of the ERNEST J. MCNABB REVOCABLE LIVING TRUST DATED 11/19/1990 9 SUPERIOR COURT OF CALIFORNIA 10 11 COUNTY OF SAN MATEO 12 13 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349 14 Plaintiff, NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED 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: March 12, 2021 18 Time: 9:00 A.M. Living Trust Dated 11/19/1990; LOUIS J. ARATA, individually; LAURA Dept. 21, Courtroom 2J 19 ARATA, individually, as the Co- 20 Executor and Representative of the Hon. Robert D. Foiles 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. 24 25 26 27 28 NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA’S CROSS-COMPLAINT -1- 1 LAURA J. ARATA, as sole and 2 successor trustee of the John and Grace Arata 2004 Trust, dated August 11, 2004, 3 Cross Complainant, 4 5 vs. 6 ERNEST J. MCNABB, individually and as Trustee of the Ernest J. McNABB 7 Revocable Living Trust dated 11/19/1990; REDWOOD TRUST DEED 8 SERVICES, INC., a California Corporation; HILLCREST REAL 9 ESTATE INC., A California Corporation; WILLIAM JACOB 10 MAIER; and ROES 1-50, inclusive 11 Cross-Defendants. 12 13 14 TO CROSS-COMPLAINANT AND HER ATTORNEYS OF RECORD: 15 PLEASE TAKE NOTICE: on March 12, 2021 at 9:00 A.M or as soon thereafter as this 16 matter may be heard in Dept._21, Courtroom 2J of San Mateo County Superior Court, located at 17 18 400 County Center, Redwood City, CA 94063, during the regular law and motion calendar, 19 Cross-Defendant ERNEST J. MCNABB will move the court to sustain a demurrer to LAURA 20 ARATA’S First Amended Cross-Complaint without leave to amend. 21 Cross-Defendant McNabb’s demurrer to Laura Arata’s first amended cross-complaint is 22 23 made pursuant to California Code of Civil Procedure Section 430.30 (e) and (f) on the ground 24 that Laura Arata’s cross-complaint fails to allege facts sufficient to state a cause of action against 25 cross-defendant and on the ground the pleading is uncertain. 26 Cross-Complainant Laura Arata has filed her first amended complaint in an attempt to 27 avoid the demurrer filed by Cross-Defendant McNabb. However, the amended allegations in 28 NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA’S CROSS-COMPLAINT -2- 1 Laura Arata’s first amended complaint do not make the amended pleading any less subject to 2 demurrer than her original pleading. 3 As Laura Arata alleged in her original verified cross-complaint, the claims alleged and 4 5 relief sought in her first amended cross-complaint are all predicated on Laura Arata’s claim that 6 the “Deeney” and “McNabb” secured loan transactions are usurious. Specifically, Laura Arata 7 alleges that these two loan transactions are not exempt from the interest rate restrictions set forth 8 by Civil Code § 1916.1 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 11 as set forth in this Demurrer to Laura Arata’s first amended cross-complaint, William J. Maier 12 and Peter Carl Foppiano dba ARC Capital were the licensed brokers who arranged these two 13 secured loan transactions. The licensing information from the NMLS and California’s 14 Department of Real Estate show that each of these individuals held an active real estate broker’s 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 18 making/arranging the subject loan transactions. Civil Code § 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 term 21 22 ‘made or arranged’ includes 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 24 scope of such license.” (Civ. Code § 1916.) Thus, the usury exemption in Civil Code § 1916.1 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 28 Inc. was not licensed is irrelevant. NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA’S CROSS-COMPLAINT -3- 1 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’ Demurrer to the original 4 5 cross-complaint, and the real estate licensing records pursuant to Evid. Code § 451, 452, and 6 453. 7 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 11 and argument that the Court may receive at or before the hearing. 12 Respectfully submitted, 13 14 Dated: February 11, 2021 WIEGEL LAW GROUP, PLC 15 16 17 By: /s/ G. Ryan Patrick G. Ryan Patrick, Esq. 18 ERNEST J. MCNABB, Individually and as 19 Trustee of the ERNEST J. MCNABB REVOCABLE LIVING TRUST DATED 20 11/19/1990 21 22 23 24 25 26 27 28 NOTICE OF DEMURRER AND DEMURRER TO LAURA ARATA’S CROSS-COMPLAINT -4-