This case was last updated from Fresno County Superior Courts on 08/05/2019 at 14:13:26 (UTC).

Bradley Kinderski vs. Robert Blackhurst

Case Summary

On 03/22/2018 a Property - Other Real Property case was filed by Bradley Kinderski against Robert Blackhurst in the jurisdiction of Fresno County Superior Courts, Bf Sisk Courthouse located in Fresno, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0999

  • Filing Date:

    03/22/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Property - Other Real Property

  • Court:

    Fresno County Superior Courts

  • Courthouse:

    Bf Sisk Courthouse

  • County, State:

    Fresno, California

Judge Details

Gaab, Kimberly

 

Party Details

Plaintiffs and Cross Plaintiffs

Kinderski, Bradley

Amaya, Peggy N

Defendants and Cross Defendants

Doe, Stuart

Blackhurst, Robert M

Doe, Stewart

 

Court Documents

Summons issued and filed

Summons on Cross Complaint Blackhurst Flat.pdf; Summons issued and filed; Comment: on Cross Complaint

Cross Complaint Filed

Blackhurst Cross Complaint Signed Flat.pdf; Comment: Cross Action/Cross Complaint

Declaration Filed

Blackhurst Reply Dec Merged.pdf; Comment: of Adam Apollo in Support of Reply

Reply filed

Reply for Demur Blackhurst.pdf; Comment: Reply to the Plaintiff's Opposition to Demurrer to the Complaint; Memorandum of Points and Authorities

Opposition filed

2018-06-04 Supp Opp to Demurrer.pdf; Comment: to Demurrer of Defendant Robert M. Blackhurst

Declaration Filed

2018-06-01 Decl of BDH.pdf; Comment: HRG 6/14/18 Declaration of Benjamin D. Harris, Esq. in Opposition to Demurrer

Opposition filed

2018-06-01 Opp to Demurrer.pdf; Comment: HRG 6/14/18 Emergency Opposition to Demurrer

Order Received for Signature

Proposed Order Blackhurst.pdf; Comment: For Demurrer ** PENDING HEARING **

Answer Filed

Demurrer to Complaint Blackhurst.pdf; Comment: Demurrer

Case Management Statement Filed

cm110signedflatblackhurst.pdf

Minute Order Attachment

Minute Order Attachment

Case Management Statement Filed

2018-07-20 CMC Statement.pdf; Comment: HRG 7/23/18 Case Management Statement

Order Received for Signature

Proposed Order Blackhurst.pdf; Comment: PENDING HEARING DATE Order for: (Proposed) Order on Demurrer and Motion to Strike Plaintiff's Complaint

Notice of Motion

MTS Blackhurst.pdf; Comment: and Motion to: Strike Plaintiff's First Amended Complaint; Memorandum of Points and Authorities

Notice of Hearing

Demurrer to FAC Blackhurst.pdf; Comment: Notice of Demurrer and Demurrer to Plaintiff's First Amended Complaint; Memorandum of Points and Authorities; Declaration re CCP 430.41

Amended Document Filed

2018-06-22 FAC Verified.pdf; Comment: Plaintiff's Verified First Amended Complaint

Minute Order Attachment (Tentative Rulings Only)

Minute Order Attachment (Tentative Rulings Only); Comment: Tentative Ruling and certificate of mailing

Summons issued and filed

Summons on Cross Complaint Blackhurst Flat.pdf; Summons issued and filed; Comment: on Cross Complaint

20 More Documents Available

 

Docket Entries

  • 08/24/2018
  • View Court Documents
  • Disposition: Judgment- Request for Dismissal filed; Judgment Type: Request for Dismissal filed; Party Names: Kinderski, Bradley; Blackhurst, Robert M; Doe, Stewart; Blackhurst, Robert M; Amaya, Peggy N; Kinderski, Bradley; Comment: With Prejudice.

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  • 12/04/2018
  • Order Received for Signature- Comment: Forwarded to Dept: 503 Order for: Refund of Jury Deposit

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  • 12/04/2018
  • Chambers Work- Pre- Judicial Officer: Gaab, Kimberly; Hearing Time: 5:30 PM

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  • 11/30/2018
  • Fax Received- Comment: Cover sheet and (Proposed) order forward to Supervisor. RE: Request for Refund of Jury Deposit

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  • 11/21/2018
  • View Court Documents
  • Request Filed- Request Filed; Comment: for Refund of Jury Deposit

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  • 09/24/2018
  • Case Management Conference- Hearing Time: 9:00 AM; Cancel Reason: Dismissed

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  • 08/30/2018
  • Motion - Strike- Judicial Officer: Gaab, Kimberly; Hearing Time: 3:28 PM; Cancel Reason: Dismissed; Comment: Adam Apollo

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  • 08/30/2018
  • Demurrer- Judicial Officer: Gaab, Kimberly; Hearing Time: 3:27 PM; Cancel Reason: Dismissed; Comment: Adam Apollo

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  • 08/24/2018
  • View Court Documents
  • Request for Dismissal Received - Pending Review- dismissal Blackhurst Flat.pdf

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  • 08/07/2018
  • View Court Documents
  • Order Granting Waiver of Court Fees and Cost Signed- Order Granting Waiver of Court Fees and Cost Signed; Judicial Officer: Gaab, Kimberly

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34 More Docket Entries
  • 07/24/2018
  • Financial info for Blackhurst, Robert M: EFile Payment Receipt # WEB-2018-53722 Blackhurst, Robert M $150.00

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  • 07/24/2018
  • Financial info for Blackhurst, Robert M: Transaction Assessment $150.00

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  • 07/10/2018
  • Financial info for Blackhurst, Robert M: EFile Payment Receipt # WEB-2018-49966 Blackhurst, Robert M $120.00

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  • 07/10/2018
  • Financial info for Blackhurst, Robert M: Transaction Assessment $120.00

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  • 05/22/2018
  • Financial info for Blackhurst, Robert M: EFile Payment Receipt # WEB-2018-36946 Blackhurst, Robert M $435.00

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  • 05/22/2018
  • Financial info for Blackhurst, Robert M: Transaction Assessment $435.00

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  • 05/22/2018
  • Financial: Blackhurst, Robert M; Total Financial Assessment $705.00; Total Payments and Credits $705.00

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  • 03/23/2018
  • Financial info for Kinderski, Bradley: Fee Waiver $435.00

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  • 03/23/2018
  • Financial info for Kinderski, Bradley: Transaction Assessment $435.00

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  • 03/23/2018
  • Financial: Kinderski, Bradley; Total Financial Assessment $435.00; Total Payments and Credits $435.00

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Complaint Information

Adam Apollo, Esqg. (SBN: 285829) E-FILED

BV LAW & ASSOCIATES

1210 N. Jefferson St. Suite F 6/7/2018 8:34 PM Anaheim, CA 92807 FRESNO COUNTY SUPERIOR COURT Tel: (714) 902-2088 Fax: (714) 243-6000 _

Attorney for Defendant Blackhurst By: S. Lopez, Deputy

SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF FRESNO

BRADLEY KINDERSKI, Case No.: 18CECG00999

Plaintiff,

REPLY TO THE PLAINTIFE’S

VS. OPPOSITION TO DEMURRER TO THE COMPLAINI; MEMORANDUM OF ROBERT M. BLACKHURST; STEWART DOE | POINI'SAND AUTHORITIES aka STEWART DOE; and DOES 1-20, inclusive. Date: 6/14/2018 Defendants. Time: 3:30PM

Honorable Judge Kimberly Gaab Dept.: 503

Defendant Blackhurst submits the following Memorandum of Points and A uthorities in Repl

to the Plaintiff’s Opposition to his Demur to the Complaint.

Dated: June 7, 2018

JBV LAW & ASSOCIATES

By: /‘75:4« /u’})/jé- Adam Apollo, Esq. Attorneys for Defendant Blackhurst

MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND & INTRODUCTION

Defendant Blackhurst and his sister, Amaya, entered into a joint venture for an investment property (the subject property in this case). Amaya is presumed to be in a romantic relationship wi Plaintiff Kinderski, and allowed him to stay on the property rent free (for a purported promise to improve upon it).

Defendant Blackhurst visited his real property, and to his surprise discovered Plaintif Kinderski occupying it, and growing cannabis on it. Defendant Blackhurst expressed dissatisfactio to Amaya regarding the occupancy, at which point Plaintiff Kinderski encouraged her to file a quiet title action against Defendant Blackhurst (17CECG03673), claiming title to the entirety of the real property (notwithstanding the loan and Deed of Trust which Blackhurst continues to maintain for it).

A's Kinderski has not been paying rent on the investment property, as he has been engaging i illegal activity thereupon, and as said property will likely need to be sold given the dissolution, Defendant Blackhurst served Plaintiff Kinderski with a sixty day notice to quit. Thereafter, Plaintif Kinderski filed the instant suit based upon his aforementioned surprise encounter with Defendant

Blackhurst,

ARGUMENI

A. DEFENDANT BLACKHURST’S NOTICE OF MOTION WAS SUFFICIENT, AND

REGARDLESS PLAINTIFF KINDERSKI’'S TIMELY RESPONSE WOULD HAVE ACTED ASA WAIVER TO ANY DEFECT

A's an initial matter, Defendant Blackhurst's notice was sufficient. It was mailed via overnight service on the 5/18, 16 court days counting backwards from 6/14 (skipping over the 5/28 holiday) would be 5/22. As overnight service requires an additional two days for notice, so long as it was mailed by 5/20, notice was sufficient. Thus, counsel actually had an additional two days to respond. (Further, it is terribly confusing as to why Plaintiff's counsel asserts over and over that 5/4 was &

Court holiday, as it was 14 days before service was actually made and thus very irrelevant).

Court holiday, as it was 14 days before service was actually made and thus very irrelevant). Regardless, the Plaintiff's opposition was due on 6/1, or 9 court days before the hearing. A the Plaintiff did timely file and serve his opposition, he waives any argument regarding defect i notice. "Courts applying the waiver rule generally have concluded that the party's appearance at the hearing and opposition on the merits showed that the notice "served its purpose,” despite any defect [citation], and that any defect in the notice did not prejudice the party's preparation for the hearing and opportunity to be heard." Arambula v. Union Carbide Corp., 26 Cal. Rptr. 3d 854, 860. (2005).

Regardless, the Plaintiff's opposition was due on 6/1, or 9 court days before the hearing. A the Plaintiff did timely file and serve his opposition, he waives any argument regarding defect i notice. "Courts applying the waiver rule generally have concluded that the party's appearance at the hearing and opposition on the merits showed that the notice "served its purpose,” despite any defect [citation], and that any defect in the notice did not prejudice the party's preparation for the hearing and opportunity to be heard." Arambula v. Union Carbide Corp., 26 Cal. Rptr. 3d 854, 860. (2005).

B. DEFENDANT’S ATTEMPT TO DEFINE ALL DEFENDANTS SINGULARLY IS NO EXCUSE FOR COMPLIANCE WITH CAL. RULES OF COURT 2.112(4)

As to CRC 2.112(4), the Plaintiff’s use of "Defendant" as a singular definition does not excuse him from complying with the CRC. As to the ambiguity of the allegations, it is in fact not onl ambiguous but quite problematic that singular allegations of assault (for example) have been alleged generally against all Defendants in a verified complaint. It of course raises the question as to how the Defendants shared a fist in this alleged endeavor.

C. BREACH OF IMPLIED WARRANTY OF HABITABILITY

The Plaintiff's reliance on Stolber v. Honeychuck, 101 Cal. App. 3d 903 (1980) denoting that a tenant may sue for emotional distress, does not form a cause of action for the affirmative defense of breach of warranty. Nor does it excuse it as a duplicative pleading. In so far as Stolbe recognized such a cause of action, they recognized it only in the form of other established causes o action. See Stolber 101 Cal. App. 3d at 929.

D. NEGLIGENT MAINTENANCE OF PREMISES

In support of the Plaintiff's position to maintain a cause of action for negligent maintenance, if refutes case law cited by Defendant Blackhurst that a cause of action that adds nothing to the pleading ought to be stricken (without explaining how said case is supposedly not controlling, and without citing any supporting precedent for his position).

The Plaintiff then proceeds to attempt to distinguish negligent maintenance from its cause o action supra referencing Civ. Code 1941, which relates to "untenable" conditions, as opposed to the facts alleged in the breach of warranty of "habitability" section supra. Defendant Blackhurst does not understand the distinction between "untenable" and not ‘habitable," because there is no notable

The Plaintiff then proceeds to attempt to distinguish negligent maintenance from its cause o action supra referencing Civ. Code 1941, which relates to "untenable" conditions, as opposed to the facts alleged in the breach of warranty of "habitability" section supra. Defendant Blackhurst does not understand the distinction between "untenable" and not ‘habitable," because there is no notable distinction. This duplicative pleading is, and would continue to be a waste of judicial resources at trial. Defendant Blackhurst maintains it has not been explained how this cause of action add anything to the pleading. E. MAINTENANCE OF NUISANCE The Plaintiff fails to explain how untenable conditions in and of themselves would suffice a pleading standard requiring a showing of intentional acts by Defendant Blackhurst himself. F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The Plaintiff fails to rectify deficiencies in his Complaint with respect to actions which must be 'intolerable,' and fails even in his Opposition to explain how such purported actions were proximate, G. FORCIBLE ENTRY/TRESPASS The Opposition fails to rectify the problems with the Complaintfails to allege that the Plaintiff did not have the right to occupy the space at issue. H. BREACH OF COVENANT OF QUIET ENJOY MENT This cause of action in fact shares in its very title the element which must be proven in a cause of action for nuisance. The Opposition does nothing to explain how this is not duplicative pleading, or how it adds anything new to the Complaint by way of fact or theory. Thus again, pursuant to the holding in Award, this demur to the duplicative cause of action should be sustained. Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1132, 1135 relying on Rodrigues v. Campbell Industries (1978) 87 Cal. App. 3d 494, 501. I. UNJUST ENRICHMENT The Plaintiff's tirade in his Opposition, totally devoid of any case law, fails to explain how the Plaintiff should be allowed to proceed under a legal theory which is in fact, not a legal theory. As the Plaintiff has failed to rebut the precedent of McBride, the demur to this remedy asserted as a cause o action should be sustained without leave. Of course, as the Court in Harshbarger notes while leave to amend should be granted liberally, this is only upon a showing that the party seeking to amend ha

distinction. This duplicative pleading is, and would continue to be a waste of judicial resources at trial. Defendant Blackhurst maintains it has not been explained how this cause of action add anything to the pleading. E. MAINTENANCE OF NUISANCE The Plaintiff fails to explain how untenable conditions in and of themselves would suffice a pleading standard requiring a showing of intentional acts by Defendant Blackhurst himself. F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The Plaintiff fails to rectify deficiencies in his Complaint with respect to actions which must be 'intolerable,' and fails even in his Opposition to explain how such purported actions were proximate, G. FORCIBLE ENTRY/TRESPASS The Opposition fails to rectify the problems with the Complaintfails to allege that the Plaintiff did not have the right to occupy the space at issue. H. BREACH OF COVENANT OF QUIET ENJOY MENT This cause of action in fact shares in its very title the element which must be proven in a cause of action for nuisance. The Opposition does nothing to explain how this is not duplicative pleading, or how it adds anything new to the Complaint by way of fact or theory. Thus again, pursuant to the holding in Award, this demur to the duplicative cause of action should be sustained. Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1132, 1135 relying on Rodrigues v. Campbell Industries (1978) 87 Cal. App. 3d 494, 501. I. UNJUST ENRICHMENT The Plaintiff's tirade in his Opposition, totally devoid of any case law, fails to explain how the Plaintiff should be allowed to proceed under a legal theory which is in fact, not a legal theory. As the Plaintiff has failed to rebut the precedent of McBride, the demur to this remedy asserted as a cause o action should be sustained without leave. Of course, as the Court in Harshbarger notes while leave to amend should be granted liberally, this is only upon a showing that the party seeking to amend ha

shown a reasonable probability that the defect can be cured by amendment. Arguing that a remed

shown a reasonable probability that the defect can be cured by amendment. Arguing that a remed should be allowed to stand as a cause of action, when there is case law to the contrary has precluded such a showing. Harshbarger v. City of Colton (1998) 197 Cal. App. 3d 1335. J. ASSAULT

should be allowed to stand as a cause of action, when there is case law to the contrary has precluded such a showing. Harshbarger v. City of Colton (1998) 197 Cal. App. 3d 1335. J. ASSAULT

The Opposition acknowledges that it has been alleged that the Plaintiff was separated from Defendant Blackhurst via a door. Aside from an opinionated argument in the Complaint, devoid o actual relevant facts alleged, it isn’t only clear that insufficient facts have been alleged, but given the admission, unlikely that they can be reasonably alleged (especially via an amended verified complaint).

In that vein, leave to amend should only be granted when the Defendant has shown a reasonable probability that he can rectify issues with its Complaint. In the interest o judicial economy, Defendant Blackhurst requests that such leave not be granted where the Plaintiff

has failed to specifically explain how the Complaint would be supplemented to cure such defects. Id.

CONCLUSION

Based on the foregoing, Defendant Blackhurst respectfully requests that the Court sustain the Demurrer without leave to amend and dismiss the present action in its entirety.

Dated: June 7, 2018

JBV LAW & ASSOCIATES

By: /‘75:4« /u’})/jé- Adam Apollo, Esq. Attorneys for Defendant Blackhurst

PROOF OF SERVICE STATE OF CALIFORNIA )

) SS.

COUNTY OF ORANGE )

I am employed in the County of Orange, State of California. I am over the age of eightee (18) years and am not a party to the within action; my business address is: 1210 N. Jefferson St. Suite F, Anaheim CA 92807

On June 7, 2018, I served the following REPLY TO THE PLAINTIFF’S OPPOSITION TO DEMURRER TO THE COMPLAINI; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ADAM APOLLO IN SUPPORT OF REPLY on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes, at Orange County, addressed as follows:

Benjamin Harris 11121 Queensland St. Suite D30 Los Angeles, CA 90034

~_(BY ELECTRONIC MAIL ): The foregoing document was transmitted to the above-named persons by electronic mail to the email address listed above on said date, and the transmission was reported as complete and without error.

_____(BY REGULAR MALIL): I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at Orange County, California. I am “readily familiar” with firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of pa served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

__ X (BY OVERNIGHI MAIL): I enclosed the documents in an envelope or package provided b an overmght delivery carrier and addressed to the persons at the addresses below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier

X (STATE): I declare under penalty of perjury under the laws of the State of California that the

above is true and correct.

Executed: June 7, 2018 at Anaheim, California.

/ “i_»;-;‘tl;)zg‘f]( i tll./'_\'x:f,’ JLD Kristina Rogers