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April

the fol I owi ng

ngs were hel d i n open

(Whereupon,

proceedi

court, to

THE COURT:

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Gillespie versus

t:

I'l I

cal

I the case of

Hoffman.

forward to the table,

pl ease. It doesn't real-l y matter wh1 ch one,
|VlR. FLETCHER: Good morning, Your Honor.
THE COURT: Good morning,

Robert Fletcher on behalf

Mr. Hoffman and |Vlr. Hoffman i s present i n court.
|\4R. FLETCHERI

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of

THE COURT: And Melody and Courtney

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wi

THE CLERK: Come

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15,2011

Gillespie.
Gillespie.

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MR. GILLESPIE:

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MS, GILLESPIE: Good morni

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ng,

Your

Honor.

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ff's
I
understand there's two mot-i ons on cal endar, One i s
for reconsi derati on, The other's to stri ke the

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Cross - Compl ai nt

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THE COURT: Thi

s is

p1

ai ntj

MS, GILLESPIE: Yes.

address the i ssues.

MS. GILLESPIE: And a cl ari f .i cati on of
the tentati ve order.
THE COURT: You may address the i ssues.
THE C0URT: You may

KATHY

1',|

CORREIA, CSR NO. 4490

OFFICIAL. RPR &

CP

15

Okay. The the motjon

for re-consideration was for the demurrer to the
answer whi ch i n your tentati ve ru1 i ng you stated

that

Cross-Comp1 ai

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MS. GILLESPIE:

that

that

THE COURT:

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What occurred i s you

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answer,

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to

answer the

nt forthwi th.
We d-i dn't understand what that meant
or why you needed to have an answer before a moti on
to strike or demurrer. We did the motion to strike
and demurrer. And the motion to strike 'i s the
enti re Compl a'i nt because everythi ng has a1 ready
been addressed in Porterville Case Number 1 --

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we needed

Let

me

take you back a step.

fi I ed a demurrer to

the

MS. GILLESPIE: Ri ght.

That's what you fi I ed, I

i ssued a tentatj ve ru1 i ng, The I ocal rul es requi re
once the tentatj ve i s i ssued, i f you take i ssue
wi th the Court's tentati ve ru1 i ng , you have to
request oral argument. You appeared j n the morni ng
and were unaware of the rul e that you had to
request oral argument. You apparently were
prepared to argue the case, ?s I understand i t,
That's a I ocal rul e that's consi stent wi th the
Rul es of Court , and I adopted the tentati ve rui 'i ng
because no one d-id request oral argument. So
THE COURT:

KATHY

CORREIA, CSR NO. 4490

OFFICIAL, RPR &

CP

that's what occurred at that heari ng back on

January 1 8th, That's when that occurred,
You had made a motion for me to
reconsider that. Now, that was timely f iIed. From
a procedural standpo'i nt, you have to compl y wi th
the code because you j ust can't ask to reconsi der,
there has to be a basj s for requesti ng the

reconsi derati on

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There are essentially two factors

that can be consi dered by the Court i n a moti on for
recons j derati on. They're po'i nted out by
l',|r, Fl etcher i n hi s memorandum of authori ti es and
he makes ref erence to 1008 of the Code of C'ivi I
Procedure, But one i s that there are new facts
that I have become aware of that I was not aware of
at the time of the decision of the Court and the
Court needs to take i nto consi derati on these new

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facts.

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In a demurrer, we rarel y consj der

facts because j t's an attack on the p1 eadi ng from
the standpoi nt of whether the p1 eadi ng i s
suffjc'i ent, usually jt's a Complaint, but in thjs
case an answer. So new facts aren't an i ssue.
The questi on i s, j s there new I aw?
And what occurs frequentl y when thi s type of moti on
i s made on that ground, the appel I ate court or the

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KATHY

CORREIA, CSR NO. 4490

OFFICIAL. RPR &

CP

17

court has rendered a deci si on after the

Court ' s deci si on and bef ore the runni ng of the t-i me
for reconsi derati on and the Court takes i nto

consideration that new law,

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supreme

ther factor i s present here. And

wi thout one of those factors bei ng present, the
on1 y one that can rebonsj der the deci si on i s the
Court on its own mot'i on. And I can do that at any
ti me. But you have to overcome that procedural
dj ffi cu1 ty before I'm goi ng to address the
reconsideration of my ruling which essentially was
to overrule your motion to deny your mot-i on or
your demurrer to the answer,
Nej

MS. GILLESPIE:

ThC

dn't attack the

Cross-Compl ai nt so that's why I sai d forthwi th,
THE C0URT: You di

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the answer, but you

didn't challenge the Cross-Compiaint and the answer
to the Cross-Comp'l a'i nt was overdue at that time"
So that's why I ordered jt forthwith,
MS. GILLESPIE: The motion for

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reconsi derati on was based on exi gent and

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extenuati ng ci rcumstances and there are

there
are excepti ons to that rul e,
The tri al court's i nherent power to
re-consi der i ts rul i ng wh j ch remai ns -i n ef f ect

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because you had chal 1 enged

KATHY

1.,|

CORREIA, CSR NO. 4490

OFFICIAL. RPR &

CP

18
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j udgment i s wel I establ i shed.

THE C0URT: That's what I told you
about, The Court can do it on -i ts own motion but
there's a I i mi tati on under the code as to when you
can do j t and the grounds on whi ch you can bri ng
that motion for reconsideration before the Court.
And I don't see the grounds here,

unti

I the entry of

MS. GILLESPIE: Judi ci

noti ce i s

one

THE COURT:

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al

my own because

I'm not

i ncl i ned

bel i eve i t was

to do i t

on

the ri ght deci si on.

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The j udi ci al notj ce

i s one of the excepti ons to Rul e 1 - - 008. And
but the the part that we wanted you to
reconsi der was was to put i n the answer wi thout
putting in a motion to strike or demurrer because
they weren't due unti I the fol I owi ng Monday, and

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that would have been the time that we got served.

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We had

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Procedure and the court rules and so

therefore that was the clarification we needed, why
you requested jt ear'l y, and if forthwith meant that

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MS. GILLESPIE:

Code

30 days accord'i ng

to the

according

to

the

of Civil

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or we did could do it within that tjme,

but we did put -i n the motion to strjke and
demurrer, And whi ch i sn't
whi ch i sn't an

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answer according

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same day

KATHY

to
M

1aw, but we needed the

CORREIA, CSR NO. 4490

OFFICIAL. RPR &

CP

19
1

cl ari

fi cati on on that.
So are

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mot-i

on

does

that affect

our

to strike and demurrer?

THE C0URT: Does

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you

what affect your

moti on?

tentative ruling,
The tentative ruling is the

MS. GILLESPIE: Your

THE COURT:

tentat'i ve rul i ng, The tentat j ve rui i ng was to deny

the demurrer.

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f'm tal ki ng about

for the Cross-Complajnt, not for the answer. There
was two di fferent demurrers i n there,
MS, GILLESPIE: No,

THE COURT: The

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Court issued an order

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that you are to

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forthwi th

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ch we d j d a f ew days
I ater but i t wasn't
i t was a moti on to stri ke
and a demurrer. And the tentat j ve ru1 i ng actua'l 1y

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WAS

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you're getting
si detracked a I j ttl e bi t because what we're ta1 ki ng
about i s whether you have the ri ght under the Code
of Ci vi I Procedure to even bri ng thj s moti on for

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recons'i derati on,

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the Cross-Complaint

t'ls, GI LLESPIE:

Wh1

WAS

THE COURT: You know,

s a pre'l 'i mi nary f act the Court

ne, and that i s that there's new I aw

There'

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answer

has to determi

KATHY

t"l

CORREIA, CSR NO. 4490

OFFICIAL. RPR &

CP

20

or new facts. And you have to tel I me what the new

I aw or new facts are,
'i t was
0h , okay . The
|\4S . GI LLESPI E :
that the j udi ci al noti ce had not been consi dered
and it was due to exigent and extenuat'i ng
ci rcumstances, we weren't abl e to get that i n on

t-i

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me

THE COURT: Wel I

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, that's not new I aw or

facts, Those are thi ngs that were j n exi stence

at the tj me you're sayi ng that I j ust dj dn't have
ti me to get i t done.
MS. GILLESPIE: And the part that our
Cross-Complaint our motjon to strike and
new

demurrer against the Cross-Complaint wasn't due for

a few days and we sti I I had about four more days to
get it -i n, And you ruled that we had to put an
answer i n forthwi th when we wanted to exerci se
we wanted and needed to exerci se our ri ght to
to
have the 30
ful I 30 days, and whi ch we dj d put
that j fi, but we can't untj I the parts that are

the parts that are stri cken that need to be

stri cken because they don't coi nci de wi th previ ous
court heari ngs , previ ous testi mony, and previ ous
evi dence brought forth i n other cases, There's no
way we can provi de an answer. So we're ki nd of i n
a quandary on that because that has to be revi ewed
KATHY

M. CORREIA,

OFFICIAL.

N0.

CSR
RPR & CP

4490

21

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by the Court and we need a determi nat-i on on the

mot'i on to stri ke.

e, thi s i s the
pl eadi ng stage we' re ta'l ki ng about now, I mean
that's al I we're ta1 ki ng about,
THE C0URT:

t',|i

ss

Gi I I espi

l'1S. GILLESPIE: Uh-huh.

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We're addressi ng, the

Court's addressi ng the i ssue of whether the
p1 eadi ngs are suffi cj ent, not whether the facts al I
substanti ate the al 1 egati ons of the p1 eadi ng, but
just the question of as a matter of 1aw, are the
p1 eadi ngs such so we can go forward?
There's goi ng to be a trj al on thi s
case, A j ury or the Court's goi ng to make a
determ-i nati on as to what the f acts are. We're onl y
ta'l ki ng about the suf f i ci ency of the pl eadi ngs.
And the Court had anal yzed i ni ti a1'l y and
re-analyzed because of the mot'i ons you've made here
before the Court, Vou and your husband, and I'm not
j ncl i ned to change the tentati ve rui i ng.
MS. GILLESPIE: 0kay. How does that
i mpact our moti on to stri ke and demurrer agai nst

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the Cross -Compl ai nt?

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, the order of the Court

was to answer forthwi th so you need to answer,

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THE COURT:

THE COURT: Wel I

MS. GILLESPIE:
KATHY

|\,l

So

CORREIA, CSR

OFFICIAL. RPR &

NO
CP

4490

22

THE COURT:

Mr, Fletcher, do you have

any

Your Honor , we
would submit on the basis of our opposition,
THE COURT: Mi ss Gi I I espi e, here's

real

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on
there's
as to the rel ati onshi p between the parti es and the
ownershi p of the property and whether some type of
1 egal ri ght exi sts by one party as opposed to the
other. And we're goi ng to strai ghten al I thi s out
as we go through " But the p1 eadi ngs, i fl the
Court' s opi ni on as refl ected i n the tentati ve
ru1 i ng, i s suffi ci ent to bri ng those i ssues before
the Court, They're not defective as a matter of
law. So we need to get the answer on f-i le and we
-i
need to get the matter set f or
s i t set for

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tri al ?

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comments?

MR. FLETCHER: Wel I

mean, there's a factual di spute,

no questi on about j t. There's a questi

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MR. FLETCHER: Yes

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THE COURT:

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It is set for tr ial,

So,

you know, you shou I d be proceed i ng wi t h d-i scovery

You should be making a determ'i nation as to what
wi tnesses you're goi ng to need. You shoul d be
prepari ng to dj scuss wi th the Court at a settl ement
conference ways in wh1 ch this matter can be
resol ved , Because the Court expects at the ti me
.

KATHY 1'4. CORREIA, CSR

OFFICIAL, RPR &

N0.
CP

4490

23

14

the matter's set for tri al , the parti es are goi ng

to be prepared to put on evi dence, to prov'i de
appropri ate I aw to the Court so that we can get
thi s matter resol ved.
There's no questi on a di spute exj sts.
And the Court's opi ni on as refl ected i n the
tentati ve rul e i s the pl ead'i ngs are suf f i c'i ent to
put the parti es on noti ce as to what the questj ons
of fact and the theori es for recovery are by the
parti es. So the Court's goi ng to deny your motj on
for reconsi derati on and the moti on to stri ke and
you're to answer the Cross-Complaint. You need to
answer the Cross-Compl ai nt.
MS. GILLESPIE: Okay. I obj ect to

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that

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, I know you do.

MS. GILLESPIE: and

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THE COURT: And

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THE C0URT: Wel I

to have al I

my

you have an opportunity

orders revi ewed.

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MS. GILLESPIE: Uh-huh,

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THE COURT: And

welcome the

25

opportuni ty to have you peti ti on to have them

revi ewed, But based on the evi dence that I have,
and, you know, thjs is a pretty substantial file
al ready, I bel 'i eve that my deci si on was correct and

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that there's no 1 egal

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KATHY

]'4

basi

s for you under the Code

CORREIA, CSR NO. 4490

OFFICIAL, RPR &

CP

24
1

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B

I
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vi I Procedure
reconsi derati on.

of

Ci

to bri ng a moti on for

GILLESPIE: I would like a minute

and gi ve my not j ce of appea'l
order so that
THE COURT: You're not requesti ng. The
Court, i n due course, w-i 'l I have a mi nute order
prepared by the cl erk. The court reporter j s
taki ng down the testi mony or the arguments and the
Court's comments here wh j ch i s ava-i I abl e to you,
You'd have to contact the reporter. And I'm not
goi ng to gi ve you advi ce as to what to do because I
can't, But the moti on i s den'i ed.
MS. GILLESPIE: Both motions? Both
moti ons are deni ed?
MR, FLETCHER: Thank you, Your Honor.
l.1S,

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(Whereupon,

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were concl uded.

the

proceedi ngs

-o0o-

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KATHY

CORREIA, CSR NO. 4490

OFFICIAL, RPR &

CP