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April 15,2011(Whereupon, the fol I owi ng

proceedi ngs were hel d i n opencourt, to wi t: )THE COURT: I'l I cal I the case of

Gillespie versus Hoffman.THE CLERK: Come 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,|\4R. FLETCHERI Robert Fletcher on behalf

of Mr. Hoffman and |Vlr. Hoffman i s present i n court.THE COURT: And Melody and Courtney

Gillespie.MR. GILLESPIE: Gillespie.MS, GILLESPIE: Good morni ng, Your

Honor.THE COURT: Thi s i s p1 ai ntj ff's I

understand there's two mot-i ons on cal endar, One i sfor reconsi derati on, The other's to stri ke theCross - Compl ai nt .

MS, GILLESPIE: Yes.THE C0URT: You may 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.

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MS. GILLESPIE: Okay. The the motjonfor re-consideration was for the demurrer to theanswer whi ch i n your tentati ve ru1 i ng you statedthat that that we needed to answer theCross-Comp1 ai nt forthwi th.

We d-i dn't understand what that meantor why you needed to have an answer before a moti onto strike or demurrer. We did the motion to strikeand demurrer. And the motion to strike 'i s theenti re Compl a'i nt because everythi ng has a1 readybeen addressed in Porterville Case Number 1 --

THE COURT: Let me take you back a step.What occurred i s you fi I ed a demurrer to theanswer,

MS. GILLESPIE: Ri ght.THE COURT: That's what you fi I ed, I

i ssued a tentatj ve ru1 i ng, The I ocal rul es requi reonce the tentatj ve i s i ssued, i f you take i ssuewi th the Court's tentati ve ru1 i ng , you have torequest oral argument. You appeared j n the morni ngand were unaware of the rul e that you had torequest oral argument. You apparently wereprepared to argue the case, ?s I understand i t,That's a I ocal rul e that's consi stent wi th theRul es of Court , and I adopted the tentati ve rui 'i ngbecause no one d-id request oral argument. So

that's what occurred at that heari ng back onJanuary 1 8th, That's when that occurred,

You had made a motion for me toreconsider that. Now, that was timely f iIed. Froma procedural standpo'i nt, you have to compl y wi ththe code because you j ust can't ask to reconsi der,there has to be a basj s for requesti ng thereconsi derati on .

There are essentially two factorsthat can be consi dered by the Court i n a moti on forrecons j derati on. They're po'i nted out byl',|r, Fl etcher i n hi s memorandum of authori ti es andhe makes ref erence to 1008 of the Code of C'ivi IProcedure, But one i s that there are new factsthat I have become aware of that I was not aware ofat the time of the decision of the Court and theCourt needs to take i nto consi derati on these newfacts.

In a demurrer, we rarel y consj derfacts because j t's an attack on the p1 eadi ng fromthe standpoi nt of whether the p1 eadi ng i ssuffjc'i ent, usually jt's a Complaint, but in thjscase 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 oni s made on that ground, the appel I ate court or the

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supreme court has rendered a deci si on after theCourt ' s deci si on and bef ore the runni ng of the t-i mefor reconsi derati on and the Court takes i ntoconsideration that new law,

Nej ther factor i s present here. Andwi thout one of those factors bei ng present, theon1 y one that can rebonsj der the deci si on i s theCourt on its own mot'i on. And I can do that at anyti me. But you have to overcome that proceduraldj ffi cu1 ty before I'm goi ng to address thereconsideration of my ruling which essentially wasto overrule your motion to deny your mot-i on oryour demurrer to the answer,

MS. GILLESPIE: ThCTHE C0URT: You di dn't attack the

Cross-Compl ai nt so that's why I sai d forthwi th,because you had chal 1 enged the answer, but youdidn't challenge the Cross-Compiaint and the answerto the Cross-Comp'l a'i nt was overdue at that time"So that's why I ordered jt forthwith,

MS. GILLESPIE: The motion forreconsi derati on was based on exi gent andextenuati ng ci rcumstances and there are thereare excepti ons to that rul e,

The tri al court's i nherent power tore-consi der i ts rul i ng wh j ch remai ns -i n ef f ect

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unti I the entry of 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 butthere's a I i mi tati on under the code as to when youcan do j t and the grounds on whi ch you can bri ngthat motion for reconsideration before the Court.And I don't see the grounds here,

MS. GILLESPIE: Judi ci al noti ce i sone

THE COURT: I'm not i ncl i ned to do i t onmy own because I bel i eve i t was the ri ght deci si on.

MS. GILLESPIE: The j udi ci al notj cei s one of the excepti ons to Rul e 1 - - 1 008. Andbut the the part that we wanted you toreconsi der was was to put i n the answer wi thoutputting in a motion to strike or demurrer becausethey weren't due unti I the fol I owi ng Monday, andthat would have been the time that we got served.We had 30 days accord'i ng to the according to theCode of Civil Procedure and the court rules and sotherefore that was the clarification we needed, whyyou requested jt ear'l y, and if forthwith meant thatsame day or we did could do it within that tjme,but we did put -i n the motion to strjke anddemurrer, And whi ch i sn't whi ch i sn't ananswer according to 1aw, but we needed the

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cl ari fi cati on on that.So are you does that affect our

mot-i on to strike and demurrer?THE C0URT: Does what affect your

moti on?MS. GILLESPIE: Your tentative ruling,THE COURT: The tentative ruling is the

tentat'i ve rul i ng, The tentat j ve rui i ng was to denythe demurrer.

MS, GILLESPIE: No, f'm tal ki ng aboutfor the Cross-Complajnt, not for the answer. Therewas two di fferent demurrers i n there,

THE COURT: The Court issued an orderthat you are to answer the Cross-Complaintforthwi th ,

t'ls, GI LLESPIE: Wh1 ch we d j d a f ew daysI ater but i t wasn't i t was a moti on to stri keand a demurrer. And the tentat j ve ru1 i ng actua'l 1yWAS WAS

THE COURT: You know, you're gettingsi detracked a I j ttl e bi t because what we're ta1 ki ngabout i s whether you have the ri ght under the Codeof Ci vi I Procedure to even bri ng thj s moti on forrecons'i derati on,

There' s a pre'l 'i mi nary f act the Courthas to determi ne, and that i s that there's new I aw

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or new facts. And you have to tel I me what the newI aw or new facts are,

|\4S . GI LLESPI E : 0h , okay . The 'i t wasthat the j udi ci al noti ce had not been consi deredand it was due to exigent and extenuat'i ngci rcumstances, we weren't abl e to get that i n ont-i me

THE COURT: Wel I , that's not new I aw ornew facts, Those are thi ngs that were j n exi stenceat the tj me you're sayi ng that I j ust dj dn't haveti me to get i t done.

MS. GILLESPIE: And the part that ourCross-Complaint our motjon to strike anddemurrer against the Cross-Complaint wasn't due fora few days and we sti I I had about four more days toget it -i n, And you ruled that we had to put ananswer i n forthwi th when we wanted to exerci sewe wanted and needed to exerci se our ri ght to tohave the 30 ful I 30 days, and whi ch we dj d putthat j fi, but we can't untj I the parts that are

the parts that are stri cken that need to bestri cken because they don't coi nci de wi th previ ouscourt heari ngs , previ ous testi mony, and previ ousevi dence brought forth i n other cases, There's noway we can provi de an answer. So we're ki nd of i na quandary on that because that has to be revi ewed

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by the Court and we need a determi nat-i on on themot'i on to stri ke.

THE C0URT: t',|i ss Gi I I espi e, thi s i s thepl eadi ng stage we' re ta'l ki ng about now, I mean ,that's al I we're ta1 ki ng about,

l'1S. GILLESPIE: Uh-huh.THE COURT: We're addressi ng, the

Court's addressi ng the i ssue of whether thep1 eadi ngs are suffi cj ent, not whether the facts al Isubstanti ate the al 1 egati ons of the p1 eadi ng, butjust the question of as a matter of 1aw, are thep1 eadi ngs such so we can go forward?

There's goi ng to be a trj al on thi scase, A j ury or the Court's goi ng to make adeterm-i nati on as to what the f acts are. We're onl yta'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 andre-analyzed because of the mot'i ons you've made herebefore the Court, Vou and your husband, and I'm notj ncl i ned to change the tentati ve rui i ng.

MS. GILLESPIE: 0kay. How does thati mpact our moti on to stri ke and demurrer agai nstthe Cross -Compl ai nt?

THE COURT: Wel I , the order of the Courtwas to answer forthwi th so you need to answer,

MS. GILLESPIE: So

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THE COURT: Mr, Fletcher, do you haveany comments?

MR. FLETCHER: Wel I , Your Honor , wewould submit on the basis of our opposition,

THE COURT: Mi ss Gi I I espi e, here'sreal 1 y I mean, there's a factual di spute,there's no questi on about j t. There's a questi onas to the rel ati onshi p between the parti es and theownershi p of the property and whether some type of1 egal ri ght exi sts by one party as opposed to theother. And we're goi ng to strai ghten al I thi s outas we go through " But the p1 eadi ngs, i fl theCourt' s opi ni on as refl ected i n the tentati veru1 i ng, i s suffi ci ent to bri ng those i ssues beforethe Court, They're not defective as a matter oflaw. So we need to get the answer on f-i le and weneed to get the matter set f or -i s i t set fortri al ?

MR. FLETCHER: Yes ,THE COURT: 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 whatwi tnesses you're goi ng to need. You shoul d beprepari ng to dj scuss wi th the Court at a settl ementconference ways in wh1 ch this matter can beresol ved , Because the Court expects at the ti me

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the matter's set for tri al , the parti es are goi ngto be prepared to put on evi dence, to prov'i deappropri ate I aw to the Court so that we can getthi 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 thetentati ve rul e i s the pl ead'i ngs are suf f i c'i ent toput the parti es on noti ce as to what the questj onsof fact and the theori es for recovery are by theparti es. So the Court's goi ng to deny your motj onfor reconsi derati on and the moti on to stri ke andyou're to answer the Cross-Complaint. You need toanswer the Cross-Compl ai nt.

MS. GILLESPIE: Okay. I obj ect tothat

THE C0URT: Wel I , I know you do.MS. GILLESPIE: andTHE COURT: And you have an opportunity

to have al I my orders revi ewed.MS. GILLESPIE: Uh-huh,THE COURT: And I welcome the

opportuni ty to have you peti ti on to have themrevi ewed, But based on the evi dence that I have,and, you know, thjs is a pretty substantial fileal ready, I bel 'i eve that my deci si on was correct andthat there's no 1 egal basi s for you under the Code

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of Ci vi I Procedure to bri ng a moti on forreconsi derati on.

l.1S, GILLESPIE: I would like a minuteorder so that and gi ve my not j ce of appea'l ,

THE COURT: You're not requesti ng. TheCourt, i n due course, w-i 'l I have a mi nute orderprepared by the cl erk. The court reporter j staki ng down the testi mony or the arguments and theCourt'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 notgoi ng to gi ve you advi ce as to what to do because Ican't, But the moti on i s den'i ed.

MS. GILLESPIE: Both motions? Bothmoti ons are deni ed?

MR, FLETCHER: Thank you, Your Honor.(Whereupon, the proceedi ngs

were concl uded. )-o0o-