Harms v. Macciola
Case No: 19CVP-0120
Hearing Date: Tue Jun 25, 2019 8:30

Nature of Proceedings: Motion: Declare Plaintiffs Vexatious Litigants

The court grants the requests for judicial notice of the records and files of San Luis Obispo Superior Court Case No. 17CVP-0260. (Evid. Code, § 452, subd. (d).)[1] The court declines to take judicial notice of Exhibit A titled “Historical Timeline—San Luis Obispo Superior Court 17CVP-0260” created by attorney Shae Luchetta on the basis that it is not capable of judicial notice. (See Evid. Code, §§ 451-452.) Moreover, absent compelling reason otherwise, the court takes judicial notice of the case records as they exist through the San Luis Obispo Superior Court Attorney Portal.

San Luis Obispo Superior Court Case No. 17CVP-0260 (“SLO Case”)

On September 28, 2017, Frank Macciola and Domenica Macciola as trustees of the Macciola Trust, James Cella, Holly Lundbeck, trustee of the Holly Lundbeck Family Trust, Gary Thatcher, and Richard Algert and Nancy Algert as trustees of the Algert Trust (“Neighbors”) filed a complaint for quiet title to deeded easement, prescriptive easement, easement by necessity, equitable easement, and trespass against David Harms and Jolene Harms (“plaintiffs” or “Harms”). Briefly, Neighbors alleged they had a dominant easement for road purposes over Harms’ property for access to their property. They are otherwise landlocked. The Harms allegedly interfered with and trespassed on the easement by removing surveyor’s stakes and installing a water well and equipment. On January 17, 2018, an amended complaint was filed. San Luis Obispo County Superior Court Judge Linda Hurst was assigned to the case for all-purposes.

The Harms demurred to and moved to strike the amended complaint on April 17, 2018 in which they argued among other things that Neighbors’ FAC includes a cause of action for quiet title and as such must be verified, and that the party designation for Frank Macciola and Domenica Macciola was so confusing that they were not able to answer. On April 27, 2018, Harms filed a supplemental memorandum raising new issues, including failure to join indispensable parties, failure to serve a lis pendens notice, and violation of due process and constitutional rights. On May 15, 2018, Judge Hurst overruled the demurrer and denied the motion to strike, and ordered the Harms to file their answer by June 14, 2018. The Harms filed a verified answer on June 13, 2018.

On May 15, 2018, Judge Hurst also indicated that she had received and reviewed Plaintiffs’ request for a discovery conference concerning Defendant David Harms’ failure to provide responses to Plaintiffs’ discovery requests. Judge Hurst ultimately ordered David Harms to provide substantive responses, without objections, to Neighbors’ discovery requests by June 14, 2018. He did not do so.

On June 18, 2018, Neighbors requested a discovery conference with Judge Hurst regarding David Harms’ failure to respond to the discovery request, as ordered by Judge Hurst. The request was renewed on June 20, 2018. The discovery conference was set on July 9, 2018. Notice of the conference was mailed by the court to the Harms and the attorney for Neighbors on June 29, 2018.

The Harms did not appear at the discovery conference on July 9, 2018. The court was advised that “Defendants’ address of record is incorrect. Defendants may not have received notice of today’s hearing.” The court took the hearing off-calendar. The conference was re-set for July 23, 2018. Notice was mailed on July 11, 2018. On July 23, 2018, Judge Hurst ordered the matter off-calendar.

On July 18, 2018, David Harms filed a Declaration of Notice of Request for a Judicial Officer to Recuse Herself or for a Notice to Disqualify a Judicial Officer, requesting that Judge Linda Hurst disqualify herself from presiding over the case on the basis that the first amended complaint was not properly verified. In addition, the Harms’ alleged that Judge Hurst had a conflict of interest with Attorney Luchetta, having previously worked together and the same law firm, and that the court showed bias and prejudice against them in her rulings. On July 31, 2018, the Harms filed a supplemental declaration in support of their motion to disqualify Judge Hurst. On July 26, 2018, Judge Hurst filed a verified answer in response to the motion. On August 9, 2018, Judge Timothy Staffel of this court denied the motion.

On October 9, 2018, Judge Hurst heard argument on Neighbors’ Motion to Compel Discovery Responses and Sanctions for Abusing Discovery Process and took the matter under submission. No opposition had been submitted, but Jolene Harms appeared and presented oral argument. Judge Hurst ordered the Harms to provide further responses without objection as well as produce all responsive documents. She imposed a monetary sanction against the Harms jointly and severally in the amount of $3,030.00.

On December 18, 2018, the Harms filed a notice of appeal from Judge Hurst’s discovery ruling. On January 23, 2019, the Court of Appeal dismissed the appeal for lack of jurisdiction.

On January 23, 2019, Neighbors filed a Motion for Terminating, Evidentiary and Monetary Sanctions for Defendants’ Abuse of the Discovery Process. It was set for hearing on February 26, 2019. On February 26, 2019, Jolene Harms filed a Motion to Request Disqualification of Judge Hurst for cause. The motion for sanctions was ordered off-calendar. On March 7, 2019, Judge Hurst filed a verified answer in opposition to the challenge. On April 23, 2019, this court denied the motion to disqualify Judge Hurst. The case remains pending in the San Luis Obispo County Superior Court.

Instant Action (19CVP-0120) (“Instant Action”)

On April 19, 2019, the Harms filed the instant action against Neighbors, attorneys Roy Ogden and Shae Luchetta (“Attorneys”) and Judge Linda Hurst (“Judge”) alleging the following causes of action: (1) independent action in equity to set aside and vacate judgment for collateral challenge to lack of personal jurisdiction and subject matter jurisdiction and void proceedings; (2) independent equity to set aside and vacate void orders and proceedings; (3) breach of contract (easements); (4) specific performance; (5) conspiracy; (6) breach of fiduciary duty; (7) fraud and misrepresentation; (8) breach of good faith and fair dealing; (9) declaratory relief; (10) quiet title (adverse possession); (11) civil rights violations (42 USC § 1983), and (12) civil rights violations (42 USC §1985, § 1986). On May 10, 2019, the case was reassigned to this court pursuant to a reciprocal agreement between San Luis Obispo County Superior Court and Santa Barbara County Superior Court.

On Calendar

The following matters are on calendar on June 25, 2019:

James Cella’s Demurrer to Plaintiff’s Complaint;

James Cella’s Motion to Strike Complaint;

James Cella’s Motion to Declare Plaintiffs Vexatious Litigants

On June 11, 2019, plaintiffs filed an Amended Response to Demur and Plaintiffs Request that the Motion Currently Set for June 19, 2019 Go Off Calendar for Lack of Timely Service of the Motion and a Supplemental Declaration in Support thereof. Although these documents were untimely filed, the court will exercise its discretion to consider them (CRC 3.1300(d)), and deems these documents as opposition to the motions from plaintiff Jolene Harms.[2] Another Supplemental Declaration was filed on June 17, 2019.

Service

Jolene Harms’ opposition argues that the motions were not timely served. The hearing was originally set on June 19, 2019. Timeliness of service is measured from that date. The court concludes Ms. Harms is correct.

The notice and all supporting papers must be served at least 16 court days before the hearing. (Code Civ. Proc. § 1005, subd. (b).) If service is by express mail or other method providing for overnight delivery, the 16-day notice period is extended by only 2 calendar days. (See Code Civ. Proc., § 1005 subd. (b).) The proofs of service accompanying the documents state that the demurrer and motions were served by overnight mail on May 24, 2019. The proof of service is sufficient to raise a rebuttable presumption that the notice has been received in the ordinary course of mail. (See Ev.C. § 641.)

Jolene Harms argues that, despite the proofs of service, the documents were not sent via overnight service and that accordingly, the time for service should have been extended by the time frame applicable to postal service, or 5 calendar days. (Code Civ. Proc., § 1005, subd. (b).) She additionally argues that service was untimely as to David Harms because he is currently out of the state and therefore mailed service on him is extended by 10 days. (Code Civ. Proc. § 1005, subd. (b).)

The court is aware that noticing has become an ongoing issue in this case. Although Jolene Harms cannot represent David Harms in court (see fn. 2, supra), the court would nevertheless like to address the issue of notice to David Harms, who is currently out of the state. According to the rules that govern all parties, documents must be “addressed to the person on whom it is to be served, at the office address last given by that person on any document filed in the cause . . .” (Code of Civ. Proc., § 1013, subd. (c).) Here, all documents filed in this action represent that David Harms’ address is 3250 Ridge Road, Templeton, CA 93465. Service on him at this address is thus appropriate. California Rule of Court, rule 2.200 states: “An attorney or self-represented party whose mailing address, telephone number, fax number, or e-mail address (if it was provided under rule 2.111(1)) changes while an action is pending must serve on all parties and file a written notice of the change.” No such notice of a change of address is on file. The court rejects any argument that service on David Harms at the address on the pleadings is ineffective.

Of course, service issues of this nature could be avoided if the parties entered into an agreement for electronic service. (Code Civ. Proc. § 1010.6, subd. (a)(2); CRC 2.253 (b).) Plaintiffs should be prepared to address why they have not entered into such an agreement.

As for the delivery issue, the court finds there is insufficient evidence to rebut the inference of delivery. Evidence Code section 641 provides: “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.” A presumption of receipt is rebutted by testimony denying receipt. (Bear Creek Master Ass’n v. Edwards (2005) 130 Cal.App.4th 1470, 1486.) However, the disappearance of the presumption does not mean there is insufficient evidence to support a finding of receipt of notice. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.) If the adverse party denies receipt, the presumption is gone from the case. But the trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received. (Id. at p. 422; Bear Creek Master Ass’n v. Edwards, supra, at p. 1486.)

Here, Jolene Harms states that “the invoice for the delivery service did not include that the package be delivered on the following day, May 25, 2019, which was a Saturday . . .” It apparently did not arrive “until the following week because of Memorial Day Holiday on the following Monday.” Jolene Harms includes what appears to be an unauthenticated copy of the shipping label that does not support her assertion one way or another.

It does, however, include a tracking number for the shipment. Cella could easily have resolved this issue by producing a tracking record from the overnight service. Instead, he produces a declaration from Courtney Donahue, who signed the proofs of service, which merely reiterates that she placed the package “with delivery fees paid” “in a box or other facility regularly maintained by Golden State Overnight an express service carrier to receive documents.” (Donahue Decl., ¶ 1d.)

Courts have inherent authority to take judicial notice of any evidence that is mandatory under California Evidence Code, section 451, or permissive under section 452. (See Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1313, n. 22.) Under Evidence Code section 452, subdivision (h), courts may take judicial notice of “facts and propositions that are determination by resort to sources of reasonably indisputable accuracy.” By resort to GSO’s online tracking system, the court finds that the package, addressed to David Harms with a shipping location of Templeton, was not delivered until May 28, 2019. This hearing was originally set on June 19, 2019, in Dept. 1. Service for the June 19, 2019, hearing date was thus untimely. The hearing was reset for June 26, 2019, when the case was reassigned within this court to this department. The continuance necessitated by the reassignment does not cure the defect.

The court finds the presumption of receipt was satisfactorily rebutted and, absent evidence that the package was, in fact, delivered by May 25, 2019, there was insufficient evidence to support a finding of receipt of timely notice.

The court thus continues this hearing and sets a briefing schedule as follows:

The hearing is continued to July 23, 2019 at 8:30 a.m.

Moving party is not required to re-serve the motions;

Plaintiffs have until July 10, 2019 at noon to file and serve their oppositions;

Moving party has until July 16, 2019 at noon to file and serve their reply.

The court expects all parties to follow the rules of Civil Procedure and the California Rules of Court. Plaintiff Jolene Harms may not represent plaintiff David Harms. “Supplemental” oppositions or replies are not authorized and this will be strictly enforce. Service on David Harms at the Templeton address as appears on the documents of record is lawful unless he timely files and serves a Notice of Change of Address or Other Contact Information (Judicial Council form MC-040 [Approved for Optional Use]) or other written form so notifying the court and the parties.

Meet and Confer Efforts

In anticipation of the following argument, the court finds that no further efforts to meet and confer are required.

Code of Civil Procedure provides that prior to filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading that is subject to the demurrer or motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the demurrer or motion to strike. (Code of Civ. Proc., §§ 430.41 [demurrer]; 435.5 [motion to strike].)

Here, Attorney Luchetta states that she called the Harms on the morning of May 20, 2019. She called the number on the complaint, reached an answering machine for the Law Offices of Michael LeSage, for whom Jolene Harms worked, and left a voicemail, requesting a return call to “meet and confer prior to my filing a motion to strike and demurrers.” She called again the morning of May 21, 2019. She received no return call. Jolene Harms states that she did, in fact, return the call on May 24, 2019, but she did not receive a response.

The court finds that further meet and confer efforts would be unproductive given the posture of this litigation. Thus, no further meet and confer is required for purposes of this motion to strike and demurrer.

Appearances are required to ensure that all parties understand the court’s orders.

[1] The document titled Exhibits in Support of Pleading identifies and includes twenty-one (21) exhibits. They were not bookmarked. “Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” (CRC 3.1110 (f).) Bookmarks are not optional and they are essential to efficient use of judicial resources.

[2] Plaintiff Jolene Harms has signed the documents “Respectfully Submitted on behalf of David and Jolene Harms.” Jolene Harms is not an attorney. Therefore, she cannot represent David Harms in court. “The general American rule is that an unlicensed person cannot appear in court for another person, and that the resulting judgment is a nullity.” (Russell v. Dopp (1995) 36 Cal.App.4th 765, 775–777; Gomes v. Roney (1979) 88 Cal.App.3d 274; City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 783.)