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Nancy Duffy McCarron, CBN 164780 Law

Office of Nancy Duffy McCarron 950 Roble Lane Santa Barbara, CA 93103 805-450-0450 fax 805-965-3492 nancyduffysb@yahoo.com
SUPERgIDR COURT /COUNTY OF 'ARCM) SAN BERNAF RIOT

Real Estate Broker Lic. 853086 Notary Public Lie. 1791117 Certified Arbitrator for BBB 30329

Attorney for Defendant Bonnie Shipley

By Deputy

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SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO STUBBLEFIELD PROPERTIES, a California General Partnership, dba Mountain Shadows Mobile Home Community Plaintiff, V. BONNIE SHIPLEY, action filed: 8-27-12 Defendant Case No. UDDS1204130

Motion to Transfer Jurisdiction

Date: October 4, 2012

Time: 7:30 a.m. S-31 Hon. Wilfred Schneider

303 W. 3rd St. San Bernardino 92415-0210 Place:

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PLEASE TAKE NOTICE that at the above time and place defendant Bonnie Shipley will move the court to transfer this case,
improperly filed in "Limited Jurisdiction" to Superior Court under CCP 396(a)(b) and CCP

86 (a)(1) and CA Judges Benchbook 31.6. Jurisdiction of municipal courts is limited to

proceedings in which it is expressly conferred St. James Church v Superior Court (1955) 135 CA2d 35: CCP 86. Specific cases and proceedings that are limited civil cases (a) The following civil cases and proceedings are limited civil cases: (1) Cases at law in which the demand, exclusive of interest, or the value of the property in controversy amounts to twentyfive thousand dollars ($25,000) or less. This paragraph does not apply to cases that involve the legality of any tax, impost, assessment, toll, or municipal fine, except actions to enforce payment of delinquent unsecured personal property taxes if the legality of the tax is not contested by the defendant.
Motion to Transfer Case to Superior Court

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Motion to Transfer Case to Superior Court

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Here, plaintiff alleges it is "owner of the property and entitled to immediate possession" Par. 8. No. 1 of prayer seeks and order for "possession of the premises." Answering Defendant Shipley denies that allegation and denies right to such prayers. This raises issues of fact as to ownership, possession and title to real property.
Superior Court has exclusive jurisdiction on these issues under Quite Title and

Ejectment actions, both statutory and common law. Plaintiff cannot confer contrived jurisdiction by adding allegations of imaginary cause of action falling within jurisdiction of superior court. St. James Church v Superior Court (1955) 135 CA2d 352. In this case an imaginary "forcible detainer" cause of action. Where plaintiff seeks damages in unlawful detainer action in excess of jurisdiction of municipal court, remedy is to transfer of action to superior court. Ritter v Salsbery (1950 142 CA2d Supp 847. To determine jurisdictional amount in controversy, demand for
attorneys' fees must be added to principal demand. Allstate Leasing Corp. v Smith (1965)

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238 CA2d 128. Provision conferring jurisdiction on municipal courts of demands below certain amounts does not forbid determination of such demands in superior court where they are connected with type of demand solely within jurisdiction of superior court. St. James

Church v Superior Court (1955) 135 CA2d 352 For purposes of determining whether the
municipal court has subject matter jurisdiction over an unlawful detainer action, the
demand in the complaint is the basis upon which the jurisdictional limit is tested (Code

Civ. Proc., 86, subd (a)(4)). Singer v Hunsinger(1979) 91 CA3d Supp 1. St. James Church

v Superior Court (1955) 135 CA2d 352. Former Cal Const, Art VI, 5, and its implementing
statute (former CCP 89) made it clear that the municipal court's jurisdiction was exclusive; it did not have any concurrent jurisdiction with the superior court.

Castellini v Municipal Court (1970) 7 CA3d 174

"The issue of ownership is tendered by the plaintiff, who conceives that his right of action is based wholly or partly upon it. The jurisdiction of the superior court is thus determined, and cannot await upon the contingency that the answer of the defendant may admit the allegation." (Citing cases.) "This is true even if the issue is incidental. On the other hand, if such a complaint be filed in the justice's court, and an answer
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Motion to Transfer Case to Superior Court

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be filed which makes no traverse of the allegation of title or possession of the real property, so that no question of such title or possession is involved, the justice's court will have jurisdiction of the action ( Hart v. Carnall-Hopkins Co., 103 Cal. 132 [37 P. 196]). If the issue of title or possession is so involved that it must be decided in order to determine the case, the superior court has original jurisdiction of the action, whether the involution may be said to be merely incidental or not." {49 Cal. App. 2d 167} On the basis of the complaint alone, it fairly appears that possession of the real estate is a direct and material fact and issue in the case, upon which the plaintiff relies for a recovery or the defendant for a defense Hebert v Gray (1942) 49 CA2d 162, 166-167 (San Bernardino)
Under CCP 396 this case must be transferred to superior court. CCP 396. Transfer of case from court lacking jurisdiction; Effect of transfer

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(a)If an action or proceeding is commenced in a court that lacks jurisdiction of the subject matter thereof, as determined by the complaint or petition, if there is a court of this state that has subject matter jurisdiction, the action or proceeding shall not be dismissed (except as provided in Section 399, and paragraph (1) of subdivision (b) of Section 581) but shall, on the application of either party, or on the court's own motion, be transferred to a court having jurisdiction of the subject matter that may be agreed upon by the parties, or, if they do not agree, to a court having subject matter jurisdiction that is designated by law as a proper court for the trial or determination thereof, and it shall thereupon be entered and prosecuted in the court to which it is transferred as if it had been commenced therein, all prior proceedings being saved. In that case, if summons is served prior to the filing of the action or proceeding in the court to which it is transferred, as to any defendant, so served, who has not appeared in the action or proceeding, the time to answer or otherwise plead shall date from service upon that defendant of written notice of filing of the action or proceeding in the court to which it is transferred.
(b) If an action or proceeding is commenced in or transferred to a court that has jurisdiction of the subject matter thereof as determined by the complaint or petition, and it thereafter appears from the verified pleadings, or at the trial, or hearing, that the determination of the action or proceeding, or of a crosscomplaint, will necessarily involve the determination of questions not within the jurisdiction of the court, in which the action or proceeding is pending, the court, whenever that lack of jurisdiction appears, must suspend all further proceedings therein and transfer the action or proceeding and certify the pleadings (or if the pleadings be oral, a transcript of the same), and all papers and proceedings therein to a court having jurisdiction thereof that may be agreed upon by the parties, or, if they do not agree, to a court having subject matter jurisdiction that is designated by law as a proper court for the trial or determination thereof.

Finally, plaintiffs were required to file a quiet title or ejectment action and join all known persons in any action for quiet title, including Nancy Duffy McCarron, whom they know has title and possession to the mobilehome. (an indispensible party to jurisdiction.)
CCP 389. Indispensable or conditionally necessary parties; Order to bring in party, and dismissal on failure to comply; Separate trials A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.
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Motion to Transfer Case to Superior Court

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(b)If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or crosscomplainant will have an adequate remedy if the action is dismissed for nonjoinder. (c) A complaint or crosscomplaint shall state the names, if known to the pleader, of any persons as described in paragraph (1) or (2) of subdivision (a) who are not joined, and the reasons why they are not joined.
CCP 1006. Title conferred by occupancy

Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession; but the title conferred by occupancy is not a sufficient interest in real property to enable the occupant or the occupant's privies to commence or maintain an action to quiet title, unless the occupancy has ripened into title by prescription.
CCP 760.040. Jurisdiction for quiet Title actions

(a)The superior court has jurisdiction of actions under this chapter. (b)The court has complete jurisdiction over the parties to the action and the property described in the complaint and is deemed to have obtained possession and control of the property for the purposes of the action with complete jurisdiction to render the judgment provided for in this chapter. (c) Nothing in this chapter limits any authority the court may have to grant such equitable relief as may be proper under the circumstances of the case. CCP 762.010. Known persons The plaintiff shall name as defendants in the action the persons having adverse claims to the title of the plaintiff against which a determination is sought. A party in actual possession of real property cannot be regarded as an "unknown" person so as to be bound by a decree based upon published service in an action relating to such realty. Manuel v Kiser (1949) 94 Cal App 2d 540
For the above reasons defendant asks the court to transfer this action to Superior Court.

9-28-12

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Motion to Transfer Case to Superior Court

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PROOF OF SERVICE

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STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO Bonnie Shipley v. Marvin Freeman Nancy Duffy McCarron v. Marvin Freeman CIVDS 1208367 CIVDS 1208825

I am counsel for defendant: My address is 950 Roble Lane, Santa Barbara, CA 93103. 805-450-0450 fax 805-965-3492 On Sept.28, 2012 I served respondents with the following documents: Motion to Transfer Jurisdiction to Superior Court, Objections to Depositions, Objections &CCP 632 demand
[x] (By Personal Delivery) as follows:

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Robert G. Williamson, Attorney for Plaintiff Hart, King, and Coldren 200 Sandpointe 4th Floor Santa Ana, CA 92707 [ (By Fax) The fax machine I used complied with Rule 2003(3) and no error was reported by machine. Pursuant to Rule CRC, 2008 [c](4). I caused the machine to maintain a record of same. [ (By Electronic) to address below (agreement) & nancyduffysb@yahoo.
rwilliamson@hkclaw.com H (By Mail) 1013a, 2015.5 CCP. I deposited the documents in a pre-paid stamped envelope to:
C OM (

copy

maintained)

I am familiar with mail collection in San Bernardino. I deposited the envelope in the mail at San Bernardino, CA. I am aware on a motion of the party served, service is presumed invalid if postal cancellation date is more than one day after deposit date on affidavit. [ ] (STATE) I declare under penalty of perjury and laws of California that the above is true. Executed in Santa Barbara, CA on Sept. 26, 2012

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Motion to Transfer Case to Superior Court