notice of motion for leave to file corrected amended complaint sh ag

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Star: Hills & Alan Gjurovich,temporary mailing location, care of: [ P.O. box 72537, Bakersfield, California (93387) ]non domestic, without the US

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF KERN

Star: Hills, Alan Gjurovich CASE #: S-1500-CV-271292-SPC; plaintiffs, NOTICE OF & MOTION FOR LEAVE TO FILE A CORRECTED 1st AMENDED -VS- COMPLAINT OF PLAINTIFFS Alan & Star; SUPPORTING AFFIDAVIT; MEMORANDUMGMAC MORTGAGE LLC, OF POINTS & AUTHORITIES IN SUPPORT President NICK CANALE Jr.; OF MOTION FOR LEAVE TO FILE CORRECTED ERIC A. FELDSTEIN, (CEO OF FIRST AMENDED COMPLAINT GMAC MORT. LLC) Et Al, defendants. HEARING DATE: 11 / 28 / 2011; ________________________________ DEPT.: 7 ; TIME: 8:30 A.M. 1. TO: THE ABOVE NAMED COURT, CLERK OF THE COURT & ALL INTERESTED PARTIES & THEIR COUNSEL OF RECORD IN THE ABOVE NAMED ACTION, PLEASE TAKE NOTICE OF THE FOLLOWING: 2. On the day of 11/28/2011, in Department 7 of the above named Court, at the hour of

8:30 A.M., or as soon thereafter as they can be heard, Plaintiffs in the above entitled

Action will Move the Above Entitled Court & Dept. 7 Judge David Lampe for an

Order Granting them leave to File a Corrected 1st Amended Complaint, said Corrected

1st Amended Complaint is attached as Exhibit # 1, to the accompanying Supporting

Affidavit in support of this Motion & is hereby incorporated by Reference as if

PLAINTIFFS NOTICE & MOTION for leave to file corrected first amended complaint

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fully set forth & is made a part hereof this Motion; Said Motion is based upon the

following Grounds:

(1) The First Amended complaint was filed incomplete due to inadvertent omissions

caused by being rushed & preoccupied with other matters such as two other

Civil Actions & exigent circumstances beyond the power, control, or ability of

Plaintiffs to change, avoid or prevent;

(2) If the Court does not allow Plaintiffs to file a Corrected first Amended Complaint

Plaintiffs will be Denied State & Federal Due Process of Law, a Fair Impartial

hearing & Res Judicata on all Material issues of Fact & Law bearing upon the

Determination of Plaintiffs Causes of Action in this Case, which is a Gross

Miscarriage of Justice Causing Irreparable harm & Injury to Plaintiffs if not

Remedied by this Court immediately & Forthwith;

3. This Motion is based upon this Notice, the Accompanying Memorandum of Points &

Authorities in support thereof, the Supporting Affidavit served & filed herewith the

motion, as well as the corrected 1st Amended Complaint attached hereto as Exhibit 1,

which is incorporated herein by reference as if fully set forth.

4. Wherefore Plaintiffs Request the following Relief:

(1) This Court Grants this Motion, and;

(2) Issues an Order Deeming the Corrected first Amended Complaint in Exhibit 1

served & filed, and;

(3) Grants whatever other Relief the Court Deems Right & Proper.

On this day, the-7th-day-of-the-Eleventh-month-Two-thousand-eleven,

_________________ __________________


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Alan Gjurovich, Star: Hills, all Rights reserved all Rights reserved


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Star: Hills, Alan Gjurovich, CASE #: S-1500-CV-271292-SPC; Plaintiffs, MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO -VS- FILE A CORRECTED 1st AMENDED COMPLAINT OF PLAINTIFFS Alan & Star, ETC. GMAC MORTGAGE LLC, President NICK CANALE Jr.; ERIC A. FELDSTEIN, (CEO OF GMAC MORT. LLC) Et Al, Defendants. HEARING DATE: 11 / 28 / 2011; DEPT.: 7 ; TIME: 8:30 A.M. ________________________________

STATEMENT OF FACTS

Plaintiffs were Evicted from the Home they were living in December of 2010, and have

had numerous troubles & problems since then, and have been involved in several other

Civil Law Suits & Actions Case #: S-1500-CL-259766-SPC ROYAL PALMS ESTATES

LLC VS ALAN GJUROVICH; Case #: S-1500-CS-183094; Alan Gjurovich VS ROYAL

PALMS ESTATES LLC MANAGERS VICKIE & JOHN COBB; & FOUR (4) OTHER

CIVIL DISPUTES THAT HAVE YET TO GO TO COURT WHICH HAVE TAKEN

PLAINTIFFS MOTION FOR LEAVE TO FILE A CORRECTED SECOND AMENDED COMPLAINT

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AWAY FROM PLAINTIFFS TIME & ABILITY TO PROPERLY COMPLETE THE

FIRST AMENDED COMPLETE IN THIS CASE WITHIN THE TIME FRAME

ORDERED BY THE COURT, RESULTING IN THE FILING OF AN INCOMPLETE

FIRST AMENDED COMPLAINT, as well as several Exigent Circumstances which took

away from the time they had to Expend on preparing & filing a First Amended

Complaint in this Case. Since the filing of Plaintiffs First Amended Complaint Defendants

served & filed a Demurrer to that Complaint which is set for hearing on November 28,

2011 in Department 7 of this Court, which Demurrer fails to address several substantial

allegations in the Complaint Regarding Negligence, Intentional Negligence, Etc. Perhaps

due to the fact that the Negligence & Intentional Negligence alleged in the body of the

Complaint were inadvertently omitted from the Causes of Action Portion of the said Complaint

which was Due to a rush to get it filed within the deadline set by the Court. Plaintiff's

have added amplified allegations of Promises made by Defendants to Plaintiffs, & Duties

of Defendants Owed to Plaintiffs. Based on the unintentional Omission of said material

from the Second Amended Complaint Plaintiffs herein Move for leave to correct the First

Amended Complaint with the omitted Causes of Action & material inadvertently Omitted

from the Complaint, which is Required for Plaintiffs to obtain Due Process of Law &

Res Judicata on the Merits of all their Material Claims & Causes of Action against

Defendants in this Case.

INCORPORATION BY REFERENCE

Plaintiffs hereby incorporates by reference as if fully set forth herein the “corrected First

Amended Complaint” in Exhibit # 1 Attached hereto this Affidavit in support of the


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Motion for leave to file said Corrected Amended Complaint, which is hereby made a part of this Motion & supporting Memorandum.

ISSUES OF LAW

ITHE COURT IS EMPOWERED BY STATUTE

TO ALLOW A PARTY TO AMEND ANY PLEADING TO CORRECT A MISTAKE OR IN ANY OTHER PARTICULARS

ATHE POLICY & RULE OF THE LAW OF THE STATE OF

CALIFORNIA IS LIBRALITY IN FAVOR OF LEAVE TO AMEND CIVIL COMPLAINTS

BDEFENDANTS WILL NOT BE PREJUDICED

BY THE GRANTING OF THIS MOTION

CTHE COURT IS REQUIRED BY THE LIBERAL POLICY OF THE STATE

OF CALIFORNIA TO GRANT PLAINTIFFS LEAVE TO FILE A CORRECTED SECOND AMENDED COMPLAINT

-------------------------------------------------------------------------------------------------

California C.C.P. Section 473. (a) Provides in relevant Part:

“(1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.The court may likewise,in its discretion,after notice to the adverse party, allow,upon any terms as may be just, an amendment to any pleading or proceeding in other particulars;and may upon like terms allow an answer to be made after the time limited by this code.”

"It can very rarely happen that a court would be justified in refusing a party leave to amend his pleading so that he may properly present his case." ; Harvey v. City of Holtville,(1969) 271 Cal. App. 2d 816, at page 820, Citing Crosby v. Clark, 132 Cal. 1, 8.


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“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” Angie M. v. Sup.Ct. (Hiemstra) (1995) 37 Cal.App.4th 1217, 1227, see also Stevens v. Sup.Ct. (API Auto Ins. Services) (1999) 75 Cal.App.4th 594, 601.

“The fact that the original Complaint filed in the action had been once amended would not of itself justify a refusal of permission further to amend.” SCHAAKE VS EAGLEETC. CAN CO., 135 CAL 472; JAMES VS STEINER MIN. CO, 35 C.A. 778,788; MACKAY VS CLARK RIG BLDG. CO. (1935) 5 C.A. 2d at page 62.

The facts in the Accompanying affidavit in support of this Motion establish that causes of

action & material were omitted from the first amended complaint due to the fact that

there were other matters which took away from the time available to prepare the first

amended complaint of plaintiffs which resulted in the first amended complaint being

served & filed incomplete. In light of the Liberal Policy & Rule of the Law of the State of

California in Favor of Amending Pleadings this Court should Grant this Motion & issue

an Order treating the Corrected Amended Complaint in Exhibit # 1 attached to the

Accompanying Affidavit as having been served & Filed in this Case, & giving the

Defendants 30 days to answer the said Corrected First Amended Complaint. There is no

way that the Defendants in this Action could be prejudiced by the Granting of this Motion, as the

Defendants are Corporate Bodies & Corporate Officers & Employees, who are Represented

by Bar Attorneys, Which said Defendants are answering to the Complaint in the capacity of

Legal Fictions, and whose personal lives are unaffected by the extended of the proceedings

30 days beyond what already has transpired

-CONCLUSION-

In light of all the foregoing it is clear that the Defendants will not be prejudiced in any


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way by the granting of leave to file the corrected First Amended Complaint in Exhibit 1

in light of the Fictional Capacity of Answering Defendants, & in light of the Liberal

Policy of Granting leave to Amend Pleadings of the State of California, & Plaintiffs herein

respectfully Request that this Court Grant this Motion & issue an Order deeming the

Corrected First Amended Complaint in Exhibit 1 attached hereto this Affidavit is filed &

served allowing thirty days for Defendants to answer said Complaint.

On this day, the-seventh- day-of-the-eleventh-month-two-thousand-eleven,

________________________ Alan Gjurovich

all Rights Reserved

________________________ Star: Hills

all Rights Reserved


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Star: Hills, Alan Gjurovich CASE #: S-1500-CV-271292-SPC; plaintiffs, AFFIDAVIT OF Alan Gjurovich & Star: Hills -VS- IN SUPPORT OF MOTION FOR LEAVE TO FILE A CORRECTED 1st AMENDED GMAC MORTGAGE LLC, COMPLAINT OF PLAINTIFFS Alan & Star President NICK CANALE Jr.; ERIC A. FELDSTEIN, (CEO OF GMAC MORT. LLC) KERN COUNTY SHERIFF DONNY Et Al, defendants. HEARING DATE: 11 / 28 / 2011; ________________________________ DEPT.: 7 ; TIME: 8:30 A.M.

Alan Gjurovich & Star: Hills say & Declare:

1. We were witnesses to & have Direct Personal Knowledge of the following matters

of fact & Law and we are Competent to Testify to the Truth of the same if we are

called upon to do so, and we will so testify if we are called upon;

2. Since being Evicted from our home on Linden Avenue in Bakersfield California we

have had numerous Exigent & Extenuating Circumstances which have taken away

from our ability to prepare an Amended Complaint in this Case including two Civil

Law Suits in Cases S-1500-CL-259766-SPC ROYAL PALMS ESTATES LLC VS


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ALAN GJUROVICH; Case #: S-1500-CS-183094; Alan Gjurovich VS ROYAL

PALMS ESTATES LLC MANAGERS VICKIE & JOHN COBB;

3. In addition to the foregoing we have been preoccupied with preparing legal papers

in at least 4 other Civil Disputes (1) with an Auto Mechanic Shop; (2) With a bail

Bonding Company (3) with a Chiropractic Business (4) With a Kern County Agency;

and there is yet more Civil Disputes that we are working on which have taken

more time away from the current First Amended Complaint which has kept us

heavily preoccupied & distracted from fully completing all the work on the First

Amended Complaint in this Case, including taking care of the Property of the Deceased

Father of Alan Gjurovich at 4405 Sandbrook way which has to be removed from

the premises due to a recent Judgment in Case #: S-1500-CL-259766-SPC.

4. We have attached the Proposed Corrected First Amended Complaint hereto this

Affidavit as Exhibit 1 which has been incorporated into the Motion for leave to file

it in this Case.

5. If we are not granted leave to file the Corrected First Amended Complaint in this

Case we will be denied State & Federal Due Process of Law, & a Fair impartial

hearing on the merits of all material issues of fact & Law bearing upon the

Determination of our Causes of Action in this case & will be denied Res Judicata on

the Merits, which will result in a Gross Miscarriage of Justice & Irreparable harm

& Injury to Plaintiffs herein, for which there is no plain speedy adequate remedy in

the Ordinary Course of Law.

6. We do not believe that the Defendants will be Prejudiced in any way by the


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Granting of this Motion as they are Represented by Bar Attorneys & are

responding in the Capacity of Officers & Employees of a Fictional Corporate

Entity not in a personal Capacity, & are not personally appearing in this

Proceeding but are appearing by way of Bar Attorneys & thus the thirty days

extended time to answer will not result in any personal injury damage or cost or

other prejudicial circumstance that outweighs Plaintiffs Right to Res Judicata and

Due Process of Law.

7. Based upon all the foregoing we move the Court for an Order allowing the filing

of the Attached Corrected First Amended Complaint as the Complaint of Record

& allowing thirty days for Defendants to Respond.

On this day, the-seventh- day-of-the-eleventh-month-two-thousand-eleven,

________________________ Alan Gjurovich

all Rights Reserved

________________________ Star: Hills

all Rights Reserved

-DECLARATION-

We the undersigned hereby Declare under Penalty of Perjury under the laws of the State of California that the foregoing is true and correct. Executed by our hand on this seventh day of November, 2011, in the Republic State of California, County of Kern,

________________________ Alan Gjurovich

all Rights Reserved

________________________ Star: Hills


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all Rights Reserved

EXHIBIT PAGE INDEX OF EXHIBITS

# 1: CORRECTED FIRST AMENDED COMPLAINT OF PLAINTIFFS Alan Gjurovich & Star: Hills


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PROOF OF SERVICE

I the undersigned hereby declare under penalty of perjury under the laws of the

state of California that I served the here attached Documents described as:

NOTICE OF & MOTION FOR LEAVE TO FILE A CORRECTED FIRST AMENDED COMPLAINT OF PLAINTIFFS Alan Gjurovich & Star: Hills;

ON THE PERSONS & PARTIES NAMED BELOW AT THE ADDRESSES TO

FOLLOW ON THE DAY OF 11/ 7 /2011, BY FIRST CLASS US MAIL

WITH COPIES ENCLOSED IN A SEALED ENVELOPE WITH THE POSTAGE

THEREFOR FULLY PREPAID BY ME. I AM OVER THE AGE OF EIGHTEEN

YEARS. I AM NOT A PARTY TO THE WITHIN ACTION MY BUSINESS

ADDRESS IS: [P.O. BOX 71537, BAKERSFIELD CALIFORNIA 93387]

DEFENDANTS GMAC MORTGAGE LLC, ET AL, CARE OF COUNSEL OF RECORD: ROBERT GANDY, THE ATRIUM, 19100 VON KARMAN AVE., SUITE 700, IRVINE CA. 92612.

EXECUTED BY MY HAND ON THIS DAY, NOVEMBER 7 , 2011, IN THE

COUNTY OF KERN, REPUBLIC STATE OF CALIFORNIA, CITY OF

BAKERSFIELD,

_________________Daniel: Lopez

all Rights reserved.


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