Motion Transfer Jurisdiction 10-4-12

8/12/2019 Motion Transfer Jurisdiction 10-4-12

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3/6 Motion to Transfer Case to Superior Court

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 ofmunicipal 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)

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 ofaction is based wholly or partly upon it. The jurisdiction of the superior court is thusdetermined, and cannot await upon the contingency that the answer of the defendantmay 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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be filed which makes no traverse of the allegation of title or possession of the realproperty, 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. 2d167} On the basis of the complaint alone, it fairly appears that possession of the realestate is a direct and material fact and issue in the case, upon which the plaintiff

relies for a recovery or the defendant for a defenseHebert v Gray (1942) 49 CA2d162, 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

(a)If an action or proceeding is commenced in a court that lacks jurisdiction of the subject matterthereof, as determined by the complaint or petition, if there is a court of this state that has subjectmatter jurisdiction, the action or proceeding shall not be dismissed (except asprovided in Section399, and paragraph (1) of subdivision (b) of Section 581) but shall, on the application of eitherparty, 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 matterjurisdiction that is designated by law as a proper court for the trial or determination thereof, and it shallthereupon 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 inthe 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 subjectmatter 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 acrosscomplaint, 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 ofthe 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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(b)If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the courshall determine whether in equity and good conscience the action should proceed among the parties befoit, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. Thefactors to be considered by the court include: (1) to what extent a judgment rendered in the person'sabsence 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 oravoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether theplaintiff 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 asdescribed in paragraph (1) or (2) of subdivision (a) who are not joined, and the reasons why they are notjoined.

CCP 1006. Title conferred by occupancy

Occupancy for any period confers a title sufficient against all except the state and those who have title byprescription, accession, transfer, will, or succession; but the title conferred by occupancy is not a sufficientinterest in real property to enable the occupant or the occupant's privies to commence or maintain an actioto 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 theaction 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 beproper under the circumstances of the case.

CCP 762.010. Known personsThe plaintiff shall name as defendants in the action the persons having adverse claims to the title othe plaintiff against which a determination is sought.

A party in actual possession of real property cannot be regarded as an "unknown" person so as tobe bound by a decree based upon published service in an action relating to such realty. Manuel vKiser (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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1

2 PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY

OF SAN BERNARDINO

Bonnie Shipley v. Marvin Freeman CIVDS 1208367Nancy Duffy McCarron v. Marvin Freeman 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:

Robert G. Williamson, Attorney for Plaintiff Hart,King, and Coldren200 Sandpointe 4th FloorSanta 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. C OM(copy maintained)

[email protected]

H (By Mail) 1013a, 2015.5 CCP. I deposited the documents in a pre-paid stamped envelope to:

I am familiar with mail collection in San Bernardino. I deposited the envelope in themail at San Bernardino, CA. I am aware on a motion of the party served, service is presumed invalid ifpostal 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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mailto:[email protected]:[email protected]:[email protected]

Documents

Motion Transfer Jurisdiction 10-4-12