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THE HEIRS OF DAVID L. BEDOLLA (760) 941-5924 Petitioners,

SUPERIOR COURT OF THE STATE OF CALIFORNIA

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FOR THE COUNTY OF SAN DIEGO NORTH COUNTY DIVISION

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In Re
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DAVID L. BEDOLLA LIVING TRUST ESTABLISHED JULY 24, 2007 THE HEIRS OF DAVID L. BEDOLLA Petitioners, vs. DAVID L. BEDOLLA LIVING TRUST ALEJANDRA BEDOLLA,TRUSTEE; ROBERTO BEDOLLA, TRUSTEE; GRACIELA MEZA HEALTHCARE REPRESENTATIVE and DOES 1-50 Respondents,

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CASE No.: 37-2010-00150342-PR-TR-NC OBJECTIONS TO RESPONDENT'S MOTION FOR JUDGMENT ON THE PLEADINGS

DATE: Sep. 8, 2011 TIME: 2:30 p.m. DEPT: N-23 JUDGE: Hon. Harry L. Powazek TRIAL DATE: Not set COMPLAINT FILED: July 15, 2010

Petitioners submit the following objections to Respondents Alejandra Bedolla, Roberto

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Bedolla and Graciela Meza Motion for Judment on the Pleadings. 1. Motion for Judment on the Pleadings was not timely served on Petitioners 2. Respondents did not file a Separate Statement with the court or served on Petitioners 3. A motion for summary on the pleadings is filed under Federal Rules of Civil Procedure Rule 12 different than California Rules of the court.

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FIRST OBJECTION MOTION FOR JUDMENT ON THE PLEADING WAS NOT TIMELY SERVED ON PETITIONERS Respondents Alejandra Bedolla, Roberto Bedolla and Graciela Meza filed a 1. Notice of Motion and Motion for Judgment on the Pleadings
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2. Memorandum in Support of Motion for Judgment on the Pleadings 3. Request for Judicial Notice in support of Motion for Judgment on the Pleadings 4. Notice of Lodgment and lodged Documents in Support of Motion for Judgment on the

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and Request for Judicial Notice. (See Exhibit 1-4.) These documents were filed with this Court on June 24, 2011; Petitioners were not served with the above documents. On the scheduled July 8, 2011 Case Management Conference Honorable Judge Harry L. Powasek asked Respondent's attorney Roland Achtel if he had filed a Motion for Judgment to which Respondents attorney answered that he in fact had filed said documents. Judge Harry L. Powasek asked Respondents attorney if he had served the documents on Petitioners. Attorney Roland Achtel answered that he had not but that the scheduled hearing was set for September 8, 2011 and he had plenty of time to do so. Judge Harry L. Powasek ordered attorney Roland Achtel to serve Petitioners the documents he had filed with this Court. The above entitled documents were served on July 11, 2011. A moving party, has to serve notice of motion and supporting documents (if notice is hand delivered) at least 75-days before the court hearing and 80-days if the documents are mailed in the U.S.A. CCP 437c sub. (a).) The trial court cannot shorten time without the responding party's

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consent. CCP 437c, allows other time periods pertaining to summary judgment to be shortened, but not notice provision. (Ushn v. Musicians' Credit Union (2004) 120 CA4th 758, 765, 15 CR3d 839.) Petitioners were served 58-days before the September 8, 2011 Motion for Judgment on the Pleadings. Outside of the CCP 437c sub. (a) required rules. The requirements of timely serving opponents is critical. The Court has no authority to

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shorten the minimum notice period for the hearing on a summary motion. See Ushn v. Musicians' Credit Union (2004) 120 CA4th 758, 765, 15 CR3d 839; McNahon v. Superior Court (2003) 106, CA4th 112, 118, 130 CR2d 407. When opposing party does not stipulate to a shorter period or

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wave any objection to the untimely notice. Petitioners did not stipulate or waive the mandatory minimum requiems and were unaware the motion was filed by Respondents. The motion is invalid unless and until the judge finds good cause Robinson v. Woods (2008)

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168 CA4th 1258, 1268, 86 CR3d 241. A parties may waive the mandatory minimum notice period of summary judgment. Credit Suisse First Boston Mortgage Capital v. Danning Gill, Diamond & Kollitz (2009) 178 CA4th 1290, 1301, 101 CR3d 192. Petitioners were never presented with the notice or were aware that Respondent's had filed a

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Motion for Summary on the Pleadings. Upon viewing the examiners notes on July 7, 2011 Petitioners because aware that Respondents had filed the notice with the accompanying documents. Respondent further wanted a ruling on the motion on July 8, 2011, which completely violated Petitioners constitutional and statutory rights. Petitioners object to this unlawful strategically maneuver by Respondents.

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SECOND OBJECTION RESPONDENTS DID NOT FILE A SEPARATE STATEMENT WITH THE COURT OR WITH PETITIONERS CCP 437c (b)(1) it is mandatory that the supporting papers must include a Separate Statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial of the motion. The separate statement provides the court with a document that plainly and concisely specifies all material facts that a party contends are undisputed facts (Cal Rules of Ct. 3.1350). Facts not set in a separate statement do not exist Fenn v. Sheriff (2003) 109 CA4th 1466, 1480, 1CR3d 185; North Coast Bus. Park v. Nielson Constr. Co. (1993) 17 CA4th 22, 30 21 CR2d 104.. A separate statement is required from a party moving and opposing the summary judgment motion. Whitehead v. Habing (2008) 163 CA4th 896, 901, 77 CR3d 679.
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The separate statement is not merely a technical requirement, but is an indispensable part of the summary judgment or summary adjudication process 163 CAth at 902. A judge is not obligated to examine evidence outside of a separate statement Wall Street Network LTD v. New York Times Co. (2008) 164 CA4th 1171, 1185, n7 1190-1192, 80 CR3d 6. Petitioners were never served with a separate statement as required by law and no separate statement was filed with this Court (See Exhibit 1). The lack of a separate statement not filed by Respondents has prejudiced the Petitioners and deprived them of an opportunity to respond in an more cohesive direct and accurate reply to Respondent's moving Motion for summary Judgment on the Pleadings CCP 437c (b)(3). Even if the Court were to allow Respondents to submit a separate statement the Petitioners would still be prejudiced. Respondents would be given two separate chances for the exact same summary judgment motion and Petitioners would have to make two separate responses giving the Respondent a great unfair advantage. Respondents have failed to file a crucial separate statement, "the golden rule" of summary judgment motions. See United States Community Church v. Garcin (1991) 231 CA3d 327, 337, 282, CR 368. The separate statement is an exceeding important document and one that would afford a due process to opposing parties State ex rel Harris v. Price Waterhosue Coopers LLP (2005) 125 CA4th 1219, 1263, n28, 23 CR3d 529, rev'd on other grounds (2006) 39 CA4th 1220, 48 CR3d 144' United Community Church v. Garcin (1991) 231. CA3d 327, 335, 282, CR 368. CCP 437c (b) (1)), the statute does not authorize the granting the motion for summary judgment without first determining that the moving party has met is initial burden of production. Thatcher v. Lucky Stores, Inc. (2000) 79 CA4th 1081, 1084, 94, CR2d 575. Therefore, Petitioners object to Respondents Motion for Summary on the Pleadings for lack of filing of a separate statement with the court and serving a separate statement upon Respondents. THIRD OBJECTION IT APPEARS RESPONDANTS MADE A SUMMARY JUDGMENT MOTION ON THE PLEADINGS BASED ON FEDERAL RULES OF CIVIL PROCUDURE RULE 12.

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The entire format and caption of the complaint mirrors FRCP Rule 12 rather than California Civil Code of Procedure Section 438 (c). Although California summary judgments law mirror federal law for moving party's burden of persuasion and production of evidence Aguilar v. Atlanta Richfield Co. (2001) 25 CA4th at. 845 the California requirements differ from Federal summary judgment requirements in many aspects. The parties burden under California summary judgment law, generally, are outlined in Aguilar v. Atlantic Richfield Co. (2001) 25 CA4th 826, 850, 107 CR2d 841). In California the parties filing a motion for summary judgment or summary adjudication must follow the California Civil Procedures Codes 437c for procedural filing requirements. 1 The notice requirement and the filing of a separate statement as mention in the Objection One and objection Two above are two examples of differences between the requirements in the California Motion for Summary Judgment or Summary Adjudication verses the Federal Motion for Summary Judgment on the Pleadings (Respondent's motion at bar) per Federal Rules of Civil Procedure Rule 12. Based on the documents filed with this court Petitioners ascertain that the Respondents motion for Summary Judgment on the Pleadings per FRCP Rule 12. Therefore, Petitioners object and believe that this court lacks Personal Jurisdiction and subject Matter Jurisdiction and Proper Venue to hear Respondent's motion for Summary Judgment on the Pleadings per FRCP Rule 12. Therefore, Respondent's entire motion for Summary Judgment on the Pleadings must be dismissed on its entirety. Dated: August 24, 2011 _______________________________

(b)(1)The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denial...
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