Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Demartini v. Demartini

United States District Court, E.D. California

February 20, 2018

TIMOTHY P. DEMARTINI, et al., Plaintiffs,
MICHAEL J. DEMARTINI, et al., Defendants.


          JOHN A. MENDEZ, United States District Judge

         Pursuant to court order, a Pretrial Conference was held on February 16, 2018 before Judge John Mendez. Kirk S. Rimmer, Peter A. Klein and Christian F. Kemos appeared as counsel for plaintiffs; defendants Michael J. Demartini and Renate Demartini appeared Pro Se. After hearing, the Court makes the following findings and orders:


         Jurisdiction is predicated upon 28 U.S.C. § 1332 and 28 U.S.C. § 1367(a), and has previously been found to be proper by order of this court, as has venue. Those orders are confirmed.

         II. JURY/NON-JURY

         Defendants have demanded a jury trial. See Section XIX, infra.


         Seven (7) days prior to trial the parties shall E-file a joint statement of the case that may be read to the jury at the beginning of jury selection.



         Plaintiffs' Disputed Factual Issues:

         A. Plaintiffs' Claim for Partition

         Defendants dispute that the property at issue in Plaintiffs' first cause of action is "owned" by both Plaintiffs and Defendants.

         Defendants dispute that Plaintiffs are entitled to partition, and partition by sale.

         B. Plaintiffs' Claim for Breach of Contract

         Defendants dispute that they have breached the promissory note and extension, and claim that Plaintiffs were the cause of any breach because they failed to refinance or extend the loan further.

         Defendants' Disputed Factual Issues:

         1. Defendants are informed and believe that at relevant times hereto Plaintiffs were residents and/or citizens of the State of Nevada, which Plaintiffs dispute. Except as mentioned in the undisputed facts above, Defendants have disputed and denied the remainder of the allegations in Plaintiffs' complaint.

         2. Defendants dispute that Plaintiffs have an absolute right to partition the claimed property based on Defendants' affirmative defenses, title to the property, partnership claims, and other issues.

         3. Further, Defendants dispute that there is an issue regarding the loan payments as Plaintiffs allege. Defendants dispute that the alleged loan was paid by Plaintiffs.

         4. Defendants dispute that the property was operated as a tenant in common property.

         5. Defendants dispute that the title to the property is clear and in the name of the parties as tenants in common.

         6. Defendants dispute that Plaintiffs built the building at 12759 Loma Rica Drive.

         7. Plaintiffs dispute that the 12757 and 12761 building was built by the partnership or Michael and Renate DeMartini.

         8. Plaintiffs dispute that a partnership exists and defendants claim that Plaintiffs wrongfully dissociated from the partnership for personal gain adverse to the partnership.


         Plaintiffs' Disputed Evidentiary Issues:

         A. Defendants' Documents

         1. Plaintiffs anticipate that Defendants may attempt to introduce at trial, exhibits which have never been produced before in discovery as Defendants have repeatedly claimed they have "more" information they have not disclosed. Plaintiffs expect that they will seek a motion in limine precluding the admission and use of any document or tangible evidence by Defendants, which they have not produced in discovery.

         2. Plaintiffs also expect that they will seek motions in limine barring any discussion or documents relating in any manner to the claims or properties disposed of in Plaintiffs Motion for Summary Judgment.

         B. Defendants' Witnesses

         Plaintiffs anticipate that Defendants will attempt to call witnesses previously undisclosed or improperly disclosed, if that is the case, they will seek a motion in limine precluding these witness' testimony. Plaintiffs will also seek a motion in limine barring the testimony of any witness whose expected testimony relates to any of the issues or claims disposed of in Plaintiffs Motion for Summary Judgment.

         C. Expert Witness Issues

         Plaintiffs will seek to challenge the testimony and designation of Defendant Michael DeMartini and his son as percipient expert witnesses.

         Defendants' Disputed Evidentiary Issues:

         Defendants do not anticipate any disputes. Absent a rule to the contrary, Defendants anticipate that all exhibits produced at trial will be documents or things previously produced in the terabytes of information that Plaintiffs requested during discovery.



         A. Plaintiffs' Claim for Partition

         1. For a determination by the court that Plaintiffs and Defendants are the sole co-owners of the real property and that no other persons have any interest in the real property;

         2. For an order and judgment that the real property be sold and that from the proceeds of the sale any encumbrance and adjustments be paid, together with the costs and expenses of this action and the sale, and the net proceeds then be divided between Plaintiffs and Defendants in accordance with their respective interests; and

         3. Plaintiffs seek statutory costs pursuant to sections 874.010 and 874.040 of the California Code of Civil Procedure Partition statute.

         B. Plaintiffs' Claim for Breach of Contract

         1. Compensatory damages of $68, 606.26; and

         2. Interest on the sum of $68, 606.26 at the legal rate of interest from the date of breach to the entry of judgment in this action.


         Regarding relief sought in response to Plaintiffs' present claims, Defendants seek that the partition and breach of contract claims be denied.


         Trial briefs shall be E-filed with the court no later than seven (7) days prior to the date of trial, i.e., April 9, 2018. Any points of law not previously argued to the Court should be briefed in the trial briefs.



         Plaintiffs know of no abandoned claims/issues other than all of the claims in Defendants Second Amended Counterclaim which were effectively disposed of by Plaintiffs Motion for Summary Judgment.


         None of Defendants' affirmative defenses have been abandoned.

         X. WITNESSES

         Plaintiffs anticipate calling the following witnesses:

         1. Timothy P. DeMartini

         2. Margie DeMartini

         3. Susan K. McGuire

         4. Chris Skinner of Westamerica Bank 5. Custodian of Records of Westamerica Bank 6. Michael DeMartini 7. Renate DeMartini 8. Daniel Ketcham ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.