Grindstone Indian Rancheria et al v. Olliff
Filing
14
STIPULATION and ORDER signed by District Judge John A. Mendez on 4/6/2018 GRANTING defendants leave to amend and file an Amended Answer and Counterclaim. Plaintiff's responsive pleading to the Counterclaim is due within 30 days. All prior orders issued by the Court remain in full force and effect (Fabillaran, J)
1
2
3
4
5
6
David R. Griffith, Esq. (SBN 170172)
GRIFFITH & HORN, LLP
1530 Humboldt Road, Suite 3
Chico, CA 95928
Telephone: (530) 812-1000
Email: david@davidgriffithlaw.com
Attorney for Defendants,
TERRENCE OLLIFF and DIANNE L. OLLIFF,
Individually and as Trustees of the Olliff Family Trust
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
(Sacramento Division)
11
12
13
14
15
16
17
18
19
20
21
GRINDSTONE INDIAN RANCHERIA
and ONE HUNDRED PLUS MEN,
WOMEN AND CHILDREN LIVING ON
GRINDSTONE INDIAN RESERVATION,
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
TERRENCE OLLIFF, individual and as a )
beneficiary/trustee of the Olliff family Trust; )
DIANNE L. OLLIFF, individually and as a )
beneficiary/trustee of the Olliff family Trust; )
DOES 1-10,
)
)
Defendants.
)
____________________________________)
Case No. 2:17-CV-02292-JAM-EFB
ORDER ALLOWING
THE FILING OF AN AMENDED
ANSWER AND COUNTERCLAIM,
AND REQUEST FOR JURY TRIAL
22
ORDER
23
24
25
The Court having reviewed the foregoing Stipulation, and good cause appearing
therefore:
26
27
28
AMENDED ANSWER AND COUNTERCLAIM - 1-
Case No. 2:17-CV-02292-JAM-EFB
1
2
IT IS HEREBY ORDERED that Defendants, TERRANCE OLLIFF, et al., are granted
leave to amend and file their Amended Answer and Counterclaim, and Request for Jury Trial, a
3
copy of which is attached hereto as Exhibit “A”.
4
5
IT IS ALSO ORDERED that Plaintiff’s responsive pleading to the Counterclaim is due
6
thirty (30) days after the filing of Defendants’ Amended Answer and Counterclaim, and Request
7
for Jury Trial.
8
IT IS FURTHER ORDERED that the Amended Answer and Counterclaim is deemed
9
filed as of the date this Order is transmitted via the CM/ECF system.
10
11
12
IT IS FURTHER ORDERED that all prior orders issued by the Court remain in full force
and effect.
13
14
Dated: 4/6/2018
/s/ John A. Mendez_________________
15
U. S. District Court Judge
16
17
18
19
20
21
22
23
24
25
26
27
28
AMENDED ANSWER AND COUNTERCLAIM - 2-
Case No. 2:17-CV-02292-JAM-EFB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Exhibit “A”
AMENDED ANSWER AND COUNTERCLAIM - 3-
Case No. 2:17-CV-02292-JAM-EFB
1
2
3
4
5
6
David R. Griffith, Esq. (SBN 170172)
GRIFFITH & HORN, LLP
1530 Humboldt Road, Suite 3
Chico, CA 95928
Telephone: (530) 812-1000
Email: david@davidgriffithlaw.com
Attorney for Defendants,
TERRENCE OLLIFF and DIANNE L. OLLIFF,
Individually and as Trustees of the Olliff Family Trust
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
(Sacramento Division)
11
12
13
14
15
16
17
18
19
20
21
GRINDSTONE INDIAN RANCHERIA
and ONE HUNDRED PLUS MEN,
WOMEN AMD CHILDREN LIVING ON
GRINDSTONE INDIAN RESERVATION,
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
TERRENCE OLLIFF, individual and as a )
beneficiary/trustee of the Olliff family Trust; )
DIANNE L. OLLIFF, individually and as a )
beneficiary/trustee of the Olliff family Trust; )
DOES 1-10,
)
)
Defendants.
)
____________________________________)
Case No. 2:17-CV-02292-JAM-EFB
AMENDED
ANSWER AND COUNTERCLAIM
REQUEST FOR JURY TRIAL
22
23
Defendants TERRENCE OLLIFF and DIANNE L OLLIFF, individually and as Trustees
24
of the Olliff Family Trust, answer the FIRST AMENDED COMPLAINT (“Complaint”) filed
25
26
herein by Plaintiff GRINDSTONE INDIAN RANCHERIA as follows:
27
///
28
///
AMENDED ANSWER AND COUNTERCLAIM - 4-
Case No. 2:17-CV-02292-JAM-EFB
1
2
ANSWER
1.
In answer to paragraph 1 of the Complaint, Defendants admit that Plaintiff
3
GRINDSTONE INDIAN RANCHERIA is a real party in interest as a Federally Recognized
4
5
Indian Tribe listed on the Federal Register. However, Defendant lacks sufficient information or
6
belief as to identity of the alleged “tribal membership” that Plaintiff seeks to bring the purported
7
claims as a class and on that basis denies said allegations.
8
2. In answer to paragraph 2 of the Complaint, Defendants deny that this Court has
9
subject matter jurisdiction under 25 U.S.C. § 345, 18 U.S.C. § 1151,28 U.S.C. § 1362, 28 U.S.C.
10
11
§ 2201, or 28 U.S.C. § 367(a), because the strip of land in question is, and has been the private
12
property belonging to Defendant for almost four decades and before Plaintiff purchased the
13
appurtenant parcels and: (a) is not an allotment or any parcel of land to which Plaintiff may
14
claim to be lawfully entitled by virtue of any Act of Congress as provided for under 25 U.S.C. §
15
345; (b) is not “Indian country” as that term is defined by 18 U.S.C. § 1151; (c) does not involve
16
17
a controversy arising under the Constitution, laws, or treaties of the United States; (d) does not
18
involve a controversy within the jurisdiction of this Court required by 28 U.S.C. § 2201; and (e)
19
this Court therefore lacks original jurisdiction as required by 28 U.S.C. § 367(a).
20
3.
In answer to paragraph 3 of the Complaint, Defendants deny that this Court is the
21
proper venue for matter pursuant to 28 U.S.C. § 1391(b)(2) for lack of jurisdiction as set forth in
22
23
the answer to the allegations of Paragraph 2 of the Complaint as set forth above and further
24
assert that the proper venue for the matter is the Glenn County Superior Court where the property
25
is located and Defendants reside.
26
4.
In answer to paragraph 4 of the Complaint, Defendants admit that Plaintiff
27
GRINDSTONE INDIAN RANCHERIA is a real party in interest as a Federally Recognized
28
AMENDED ANSWER AND COUNTERCLAIM - 5-
Case No. 2:17-CV-02292-JAM-EFB
1
2
Indian Tribe listed on the Federal Register. However, Defendant lacks sufficient information or
belief as to identity of the alleged “tribal membership” that Plaintiff seeks to bring the purported
3
claims as a class and on that basis denies said allegations.
4
5
6
7
8
5. In answer to paragraphs 5 and 6 of the Complaint:
(a) Defendants admit that TERENCE OLLIFF and DIANNE L OLLIFF, as
Trustees of the Olliff Family Trust, own the real property commonly referred to as 3580 County
Road 305, Orland, CA 95963, Glenn County, California, consisting of approximately 15 acres of
9
agricultural land and a family residence more particularly described as:
10
12
“The East 396 Feet of the South 20 acres of the Northwest quarter and
the east 396 feet of the North half of the Southwest quarter of Section 15,
Township 21 North, Range 6 West, M.D.B. & M.”
13
APN: 025-090-019-000 and 025-090-016-000 (the “Olliff Parcel”)
11
14
(b) Defendants assert that they acquired title to the Olliff Parcel in 1977.
15
(c) Defendants are informed and believe and thereon allege that the Bureau of
16
17
Indian Affairs owns the 80 acre parcel to the Southeast corner of the Olliff Parcel commonly
18
referred to as 3600 County Road 305, Elk Creek, CA 95939, Glenn County Assessor Number
19
025-090-099-000 (referred to herein as the “Indian Reservation Parcel”). Defendants are
20
informed and believe and thereon allege that the Bureau of Indian Affairs established the Indian
21
Reservation Parcel in or about 1909.
22
23
(d) Defendants are informed and believe and thereon allege that Plaintiff
24
purchased and/or was provided title to approximately 20.03 acres of land appurtenant and to the
25
east of the Olliff Parcel in or about 1993 commonly referred to as Glenn County Assessor Parcel
26
Number 025-090-026-000 (referred to herein as the “Rancheria Parcel”). The Rancheria Parcel
27
28
AMENDED ANSWER AND COUNTERCLAIM - 6-
Case No. 2:17-CV-02292-JAM-EFB
1
2
is where Plaintiff has developed the housing for its Tribe. Defendants admit that the Rancheria
Parcel is adjacent to the Olliff Parcel at issue in this litigation.
3
(e) Defendants allege that at the time Plaintiff obtained title to the Rancheria
4
5
6
7
8
Parcel, Plaintiff did so with knowledge of recorded public survey by George Pride, License 3747,
dated June 26, 1974, clearly showing the corner markers of the Olliff Parcel (the “Pride Survey’).
(f) Defendants admit that in 2011, the Bureau of Land Management (“BLM”)
conducted a survey of the of the 80 acre Indian Reservation Parcel and the 20 acre Rancheria
9
Parcel which was noticed for filing in the Federal Register on October 19, 2011 and subsequently
10
11
filed in the Bureau of Land Management California State Office, Sacramento (the “BLM
12
Survey”). Defendants allege that the BLM Survey shows location of the Olliff Parcel East
13
property line in the same location as the 1974 Pride Survey, save and except, noting a small
14
overlapping conflict of the Indian Reservation Parcel in its North West corner onto the South
15
East corner of the Olliff Parcel containing approximately 40’ x 26’ square feet (referred to herein
16
17
as the “Corner Conflict Area”). Defendants are informed and believe and thereon allege that the
18
corner conflict was determined by the BLM Survey to be that the historical cedar post corner
19
marker for the North West corner of the Indian Reservation Parcel was originally established by
20
T.L. Knock, “LS 6”, in his 1893 survey filed May 8, 1893, in Book 1 of Maps and Surveys, Page
21
39, Glenn County Recorder’s Office, and is different in that it lays with the South East corner of
22
23
24
25
26
the Olliff Parcel as set in 1974 by the Pride Survey establishing the corner marker position by
more contemporary existent section control and the then current rules for subdividing sections.
Defendants admit that Defendants did not object to the survey of the Corner Conflict
Area and such possession is that of Plaintiff as part of the 80 acre Indian Reservation Parcel.
27
28
AMENDED ANSWER AND COUNTERCLAIM - 7-
Case No. 2:17-CV-02292-JAM-EFB
1
2
(g) Defendants are informed and believe and thereon allege that Plaintiff
contends that the North West corner marker of the 80 acre Indian Reservation Parcel which is
3
approximately 40 feet into the South East corner of the Olliff Parcel should be adjudicated to
4
5
extend and run due north approximately 1,082 feet along the eastern boundary of the 20 acre
6
Rancheria Parcel appurtenant to the Olliff Parcel to give Plaintiff approximately 43,500 square
7
feet of the Olliff Parcel (the approximately 43,500 square feet is referred to herein as the
8
“Disputed Area”).
9
(h) Defendants allege and contend that the Disputed Area is and has been for
10
11
12
13
14
over 40 years, the property of Defendants, and that the BLM Survey did not and does not show
the Disputed Area as being property of Plaintiff.
(i) Defendants are informed and believe and thereon allege that in or about 2014,
Plaintiff purchased the parcel to the south of the Olliff Parcel and west of the Indian Reservation
15
Parcel commonly referred to as APN 025-090-008-000 (hereinafter referred to as the “Ball
16
17
Filed”), for use as a baseball filed. Since 1977, Defendants driveway access has been to the west
18
off of County Road 305 through a portion of the Ball Field in the “Easement” area depicted
19
below consisting of approximately 26 feet x 350 feet (the “Easement”) with Defendants’ fence
20
line in the Ball Filed parcel approximately 26 feet.
21
(j) For a period of five before any use by Plaintiff of the Disputed Area or
22
23
Easement, and within five years prior to the filing of this action, Defendants have openly and
24
notoriously with use of fences and occupation continuously and exclusively used and possessed
25
same and claim they have established a prescriptive easement to the Easement area and that
26
Plaintiff’s acquisition of the Ball Field parcel is subject to the rights of Defendants in an to same.
27
28
AMENDED ANSWER AND COUNTERCLAIM - 8-
Case No. 2:17-CV-02292-JAM-EFB
1
2
(k) Defendants contend and allege that Defendants title is based on Defendants’
actual, open, notorious, exclusive, hostile, and adverse possession of the Olliff Parcel including
3
the Disputed Area and Easement for five years preceding the commencement of this action,
4
5
together with Defendants’ payment of all taxes assessed against said real property for the same
6
five years. Defendants are not aware of anyone else claiming and interest in and to the Disputed
7
Area or Easement other than Plaintiff.
8
A summary of the parcels and areas described above are depicted below, not for the
9
purpose of survey or to be scale, but for visual example only, as follows:
10
11
12
O
l
l
i
f
f
13
14
15
16
17
18
19
20
Corner
Conflict
Area
P
a
r
c
e
l
Area of Dispute
Rancheria
Parcel
21
22
23
24
25
Indian Reservation Parcel
Easement
Ball
Field
26
27
28
AMENDED ANSWER AND COUNTERCLAIM - 9-
Case No. 2:17-CV-02292-JAM-EFB
1
2
6. In answer to paragraph 6 of the Complaint, Defendants lack sufficient information or
belief to either admit or deny same and on that basis deny same.
3
7. In answer to paragraph 7 of the Complaint, Defendants admits that Plaintiff occupies
4
5
approximately 120 acres of land located in the Elk Creek, Glenn County, California area and that
6
it has members including men, women and children who reside upon same and denies the
7
balance of said allegations upon a lack of information or belief.
8
8.
In answer to paragraph 8 of the Complaint, Defendants admit that the BLM Survey
9
was made in 2011 and published in the Federal Register and Defendant did not object as set forth
10
11
in paragraph 5(f) above. Defendants deny the balance of allegations not specifically admitted
12
herein and alleges that the BLM Survey is construed or interpreted in the manner Plaintiff
13
contends as set forth in paragraphs 5(g) above but should be construed and interpreted in the
14
manner alleged by Defendants in Paragraph 5(h) above.
15
9.
In answer to paragraph 9 of the Complaint, Defendants deny the allegations, save and
16
17
except, Defendants admit that Defendant TERENCE OLLIFF has yelled at occupants of the
18
adjoining parcel to get off the Olliff Parcel including the Disputed Area, of which Defendants
19
claims they are the rightful owner, and have moved fences placed in said area to the property line
20
claimed by Defendants, and have done all things to occupy same including the use of path of
21
travel on said property. Defendants allege that the Disputed Area is that belonging to
22
23
24
25
26
Defendants and not Plaintiff as more specifically set forth above.
10.
In answer to paragraph 10 of the Complaint, Defendants deny the allegations, save
and except, Defendants admit that they filed a lawsuit in 2014 with the assistance of legal
counsel in the Glenn County Superior Court against Steven Corkill for trespassing on the Olliff
27
28
AMENDED ANSWER AND COUNTERCLAIM - 10-
Case No. 2:17-CV-02292-JAM-EFB
1
2
Parcel including the Disputed Area, which was voluntarily dismissed “without prejudice” to save
the costs of litigation as hostilities subsided.
3
11.
In answer to paragraph 11 of the Complaint, Defendants admit that Defendants
4
5
have told agents of Plaintiff, whether they be Ronald Kirk, or others unknown to Defendants, to
6
get off the Olliff Parcel including the Disputed Area, all of which Defendants claim they have a
7
superior right to over that of Plaintiff and that Defendants are the rightful owner.
8
12.
In answer to paragraph 12 of the Complaint, Defendants admit that Plaintiff has the
9
right of occupation to the Indian Reservation Parcel, including the Corner Conflict Area, and the
10
11
Rancheria Parcel. Defendants deny that Plaintiff has any right, title or interest in or to the Olliff
12
Parcel or the Disputed Area within same, all of which Defendants claim they have a superior
13
right to title and possession.
14
13.
In answer to paragraph 13 of the Complaint, Defendants admit that Defendants
15
own the Olliff Parcel, including the Disputed Area but excluding the Corner Conflict Area, and
16
17
18
19
20
that the Olliff Parcel is appurtenant to the Rancheria Parcel occupied by Plaintiff. Defendants
deny any further or other allegations not specifically admitted herein.
14.
In answer to paragraph 14 of the Complaint, Defendants admits that Defendants
own the Olliff Parcel, including the Disputed Area but excluding the Corner Conflict Area, and
21
that the Olliff Parcel is appurtenant to the Rancheria Parcel occupied by Plaintiff. Defendants
22
23
deny any further or other allegations not specifically admitted herein. Defendants further deny
24
that the BLM Survey established a property line within the Disputed Area of the Olliff Parcel as
25
described in paragraph 5 above.
26
27
28
AMENDED ANSWER AND COUNTERCLAIM - 11-
Case No. 2:17-CV-02292-JAM-EFB
1
2
15.
In answer to paragraph 15 of the Complaint, Defendants lacks sufficient
information or belief to answer the allegations set forth therein and on that basis deny said
3
allegation.
4
5
16. In answer to Paragraph 16 of the Complaint, Defendants deny the allegations, save
6
and except, Defendants admits that: (a) Defendants maintain a fence along the property line of
7
the Olliff Parcel to the east of the Disputed Area, of which Defendants claim they have a superior
8
right to possession and title over that of Plaintiff; (b) Defendants have used water from Stony
9
Creek which runs adjacent to the west side of the Olliff Parcel but has not done so for some time
10
11
now. Defendants lack sufficient information or belief as to the extent of water rights claimed by
12
Plaintiff to water flowing in Stony Creek but denies the water flowing through Stony Creek is
13
exclusive to Plaintiff.
14
17. In answer to Paragraph 17 of the Complaint, Defendants deny the allegations, save
15
and except, as admitted to the limited extent by way similar allegations addressed in the
16
17
18
19
20
Defendants’ answer in paragraph 5 above incorporated herein as though fully set forth.
18. In answer to Paragraph 18 of the Complaint, Defendants deny the allegations and
assert that Defendants have a superior right to possession and title to the Olliff Parcel including
the Disputed Area but excluding the Corner Conflict Area as set forth in Defendants’ answer in
21
paragraph 5 above incorporated herein as though fully set forth.
22
23
19. In answer to Paragraph 19 of the Complaint, Defendants deny the allegations and
24
assert that Defendants have a superior right to possession and title to the Olliff Parcel including
25
the Disputed Area but excluding the Corner Conflict Area as set forth in Defendants’ answer in
26
paragraph 5 above incorporated herein as though fully set forth.
27
28
AMENDED ANSWER AND COUNTERCLAIM - 12-
Case No. 2:17-CV-02292-JAM-EFB
1
2
20. In answer to Paragraph 20 of the Complaint, Defendants deny the allegations and
assert that Defendants have a superior right to possession and title to the Olliff Parcel including
3
the Disputed Area as set forth in Defendants’ answer in paragraph 5 above incorporated herein as
4
5
though fully set forth. Defendants admit that they have used water from Stony Creek which runs
6
adjacent to the west side of the Olliff Parcel but has not done so for some time now. Defendants
7
lack sufficient information or belief as to the extent of water rights claimed by Plaintiff to water
8
flowing in Stony Creek but denies the water flowing through Stony Creek is exclusive to
9
Plaintiff.
10
11
12
13
14
21. In answer to Paragraph 21 of the Complaint, Defendants incorporate the answers set
forth in paragraphs 1 through 20 above, including subparagraphs, as fully set forth herein.
22. In answer to Paragraph 22 of the Complaint, Defendants deny the allegations and
assert that Defendants have a superior right to possession and title to the Olliff Parcel including
15
the Disputed Area but excluding the Corner Conflict Area as set forth in Defendants’ answer in
16
17
18
19
20
paragraph 5 above incorporated herein as though fully set forth.
23. In answer to Paragraph 23 of the Complaint, Defendants deny the allegations and
assert that Defendants have a superior right to possession and title to the Olliff Parcel including
the Disputed Area but excluding the Corner Conflict Area as set forth in Defendants’ answer in
21
paragraph 5 above incorporated herein as though fully set forth.
22
23
24
25
26
24. In answer to Paragraph 24 of the Complaint, Defendants incorporate the answers set
forth in paragraphs 1 through 23 above, including subparagraphs, as fully set forth herein.
25. In answer to Paragraph 25 of the Complaint, Defendants deny the allegations and
assert that Defendants have a superior right to possession and title to the Olliff Parcel including
27
28
AMENDED ANSWER AND COUNTERCLAIM - 13-
Case No. 2:17-CV-02292-JAM-EFB
1
2
the Disputed Area but excluding the Corner Conflict Area as set forth in Defendants’ answer in
paragraph 5 above incorporated herein as though fully set forth.
3
26. In answer to Paragraph 26 of the Complaint, Defendants deny the allegations and
4
5
assert that Defendants have a superior right to possession and title to the Olliff Parcel including
6
the Disputed Area but excluding the Corner Conflict Area as set forth in Defendants’ answer in
7
paragraph 5 above incorporated herein as though fully set forth.
8
27. In answer to Paragraph 27 of the Complaint, Defendants deny the allegations and
9
assert that Defendants Trust have a superior right to possession and title to the Olliff Parcel
10
11
12
13
14
including the Disputed Area but excluding the Corner Conflict Area as set forth in Defendants’
answer in paragraph 5 above incorporated herein as though fully set forth.
28. In answer to Paragraph 28 of the Complaint, Defendants incorporate the answers set
forth in paragraphs 1 through 27 above, including subparagraphs, as fully set forth herein.
15
29. In answer to Paragraph 29 of the Complaint, Defendants admit that Defendants are
16
17
18
19
20
residents of Glenn County and lacks sufficient information or belief to either admit or deny the
balance and remaining allegations and deny them based upon same.
30. In answer to Paragraph 30 of the Complaint, Defendants lacks sufficient information
or belief to either admit or deny the allegations and on that basis deny same.
21
31. In answer to Paragraph 31 of the Complaint, Defendants deny the allegations as to
22
23
24
25
26
Defendants and lacks sufficient information or belief to either admit or deny the allegations as to
any purported DOE defendant and on that basis denies same.
32. In answer to Paragraph 32 of the Complaint, Defendants deny the allegations.
33. In answer to Paragraph 33 of the Complaint, Defendants incorporate the answers set
27
forth in paragraphs 1 through 32 above, including subparagraphs, as fully set forth herein.
28
AMENDED ANSWER AND COUNTERCLAIM - 14-
Case No. 2:17-CV-02292-JAM-EFB
1
2
34. In answer to Paragraph 34 of the Complaint, Defendants deny the allegations.
35. In answer to Paragraph 35 of the Complaint, Defendants deny the allegations.
3
36. In answer to Paragraph 36 of the Complaint, Defendants incorporate the answers set
4
5
forth in paragraphs 1 through 35 above, including subparagraphs, as fully set forth herein.
6
37. In answer to Paragraph 37 of the Complaint, Defendants deny the allegations.
7
38. In answer to Paragraph 38 of the Complaint, Defendants incorporate the answers set
8
forth in paragraphs 1 through 37 above, including subparagraphs, as fully set forth herein.
9
39. In answer to Paragraph 39 of the Complaint, Defendants admit that a controversy
10
11
12
13
14
exists by and between Defendants and Plaintiff and assert that the Court lacks jurisdiction to as
set forth in paragraph 2 above.
40. In answer to Paragraph 40 of the Complaint, Defendants admit that a controversy
exists by and between Defendants and Plaintiff and assert that the Court lacks jurisdiction to as
15
set forth in paragraph 2 above. To the extent the Court is inclined to assert jurisdiction over the
16
17
matter, Defendants contend that the relief requested by Plaintiff be denied unto Plaintiff and a
18
declaratory judgment be entered in favor of Defendants finding that the Defendants have a
19
superior right to possession and title over that of Plaintiff in and to the Olliff Parcel including the
20
Disputed Area.
21
AFFIRMATIVE DEFENSES
22
23
41.
FIRST AFFIRMATIVE DEFENSE – Lack of Jurisdiction. As a First
24
Affirmative Defense to all Claims, Defendants assert that this Court lacks subject matter
25
jurisdiction under 25 U.S.C. § 345, 18 U.S.C. § 1151,28 U.S.C. § 1362, 28 U.S.C. § 2201, or 28
26
U.S.C. § 367(a), because the strip of land in question is, and has been the private property
27
belonging to Defendants for almost four decades and before Plaintiff purchased the appurtenant
28
AMENDED ANSWER AND COUNTERCLAIM - 15-
Case No. 2:17-CV-02292-JAM-EFB
1
2
parcels and: (a) is not an allotment or any parcel of land to which Plaintiff may claim to be
lawfully entitled by virtue of any Act of Congress as provided for under 25 U.S.C. § 345; (b) is
3
not “Indian country” as that term is defined by 18 U.S.C. § 1151; (c) does not involve a
4
5
controversy arising under the Constitution, laws, or treaties of the United States; (d) does not
6
involve a controversy within its jurisdiction of this Court required by 28 U.S.C. § 2201; and (e)
7
this Court therefore lacks original jurisdiction as required by 28 U.S.C. § 367(a).
8
42.
SECOND AFFIRMATIVE DEFENSE – Failure to State a Claim for
9
Conversion.
As a Second Affirmative Defense to the Second Claim for Conversion, Plaintiff
10
11
has failed to state a claim upon which relief can be granted because the property in question is
12
real property and conversion is a tort which may be committed only in respect to personal
13
property and not to real property [Munger v. Moore (1970) 11 Cal. App. 3d 1, 7]
14
43. THIRD AFFIRMATIVE DEFENSE – Constitutionally Protected Right to Free
15
Speech.
As a Fourth Affirmative Defense to the Sixth Cause of Action for Civil Harassment,
16
17
18
19
20
Defendants assert that they have a right of free speech protected under the United States
Constitution, Amendment 1.
44. FOURTH AFFIRMATIVE DEFENSE – Unclean Hands. As a Fourth
Affirmative Defense to all Claims for Relief, Defendants assert that Plaintiff is guilty of unclean
21
hands thus rendering the relief requested by Plaintiff inequitable in that: (a) Defendants have
22
23
occupied the Olliff Parcel including the Disputed Area for four decades since 1977 openly and
24
notoriously under claim of right and title hostile to any claim of Plaintiff; (b) Plaintiff obtained
25
possession of the appurtenant Rancheria Parcel in or about 1984 with full knowledge that the
26
1974 Pride Survey showed and established corner markers for the Olliff Parcel as asserted by
27
Defendants contrary to the Plaintiff’s current claim of ownership; (c) From 1984 to 2013,
28
AMENDED ANSWER AND COUNTERCLAIM - 16-
Case No. 2:17-CV-02292-JAM-EFB
1
2
Plaintiff acquiesced to the use and occupation by Defendants on the Olliff Parcel including the
Disputed Area without objection or contrary hostile use; (d) After 29 years of Plaintiff
3
acquiescing to the use and occupation by Defendants on the Olliff Parcel including the Disputed
4
5
Area, Plaintiff, without permission or consent of the Olliffs, or resort to a civil proceeding,
6
intentionally embarked upon a course of conduct to interfere with the ownership and possession
7
of the Olliffs on the Olliff Parcel and Disputed Area by tearing down Defendants’ fences, placing
8
dirt, boulders, equipment and workers on the land which invoked a response from Defendants to
9
remove same to protect the land where the Olliffs reside, all causing severe emotional distress to
10
11
12
13
14
the Olliffs.
45. FIFTH AFFIRMATIVE DEFENSE – Laches. As a Fifth Affirmative Defense to
the First, Second, Third, and Seventh Claims for Relief, Defendants assert that Plaintiff
unreasonably delayed in bringing this action which disrupts the status quo and results in
15
prejudice to Defendants as follows: (a) Defendants have occupied the Olliff Parcel including
16
17
the Disputed Area and Easement for four decades since 1977 openly and notoriously under claim
18
of right and title hostile to any claim of Plaintiff; (b) Plaintiff obtained possession of the
19
appurtenant Rancheria Parcel in or about 1984 with full knowledge that the 1974 Pride Survey
20
showed and established corner markers for the Olliff Parcel as asserted by Defendants contrary
21
to the Plaintiff’s current claim of ownership; (c) From 1984 to 2013, Plaintiff acquiesced to the
22
23
use and occupation by Defendants on the Olliff Parcel including the Disputed Area and Easment
24
without objection or contrary hostile use; (d) After 29 years of Plaintiff acquiescing to the use
25
and occupation by Defendants on the Olliff Parcel including the Disputed Area and Easment,
26
Plaintiff, without permission or consent of the Olliffs, or resort to a civil proceeding,
27
intentionally embarked upon a course of conduct to interfere with the ownership and possession
28
AMENDED ANSWER AND COUNTERCLAIM - 17-
Case No. 2:17-CV-02292-JAM-EFB
1
2
of the Olliffs on the Olliff Parcel and Disputed Area by tearing down Defendants’ fences, placing
dirt, boulders, equipment and workers on the land which invoked a response from Defendant to
3
remove same to protect the land where the Olliffs reside, all causing severe emotional distress to
4
5
the Olliffs; (e) the boundary line of the Olliff Parcel appurtenant to the Rancheria Parcel is
6
approximately 50 feet from the Olliffs’ residence of 40 years. To adopt the position of Plaintiff
7
to have the property line established on the east side of the Disputed Area, would place the
8
Plaintiff and its occupants within feet of the Olliffs’ residence creating a harsh and inequitable
9
prejudice to the Olliffs.
10
11
46. SIXTH AFFIRMATIVE DEFENSE – Statute of Limitations (CA CCP §
12
338(b)). As a Sixth Affirmative Defense to the First, Second, and Seventh Claims for Relief,
13
Defendants assert that the purported trespass in the Disputed Area and Easement was permanent
14
in nature with placement of a fence under color of ownership by Defendants and their
15
predecessors in interest for over a decade and known to Plaintiff such that the trespass claims are
16
17
18
19
20
time barred by the three-year statute of limitations set forth in California Code of Civil Procedure
section 338(b).
47. SEVENTH AFFIRMATIVE DEFENSE – Statute of Limitations (CA CCP §
338(c)). As a Seventh Affirmative Defense to the Third Claim for Relief, Defendants assert that
21
the conversion claim is time barred by the three-year statute of limitations set forth in California
22
23
24
25
26
Code of Civil Procedure section 338(c).
48. EIGHTH AFFIRMATIVE DEFENSE – Statute of Limitations (CA CCP §
335.1). As an Eighth Affirmative Defense to the Fourth and Fifth Claims for Relief, Defendants
assert that the emotional distress claims are time barred by the two-year statute of limitations set
27
forth in California Code of Civil Procedure section 335.1.
28
AMENDED ANSWER AND COUNTERCLAIM - 18-
Case No. 2:17-CV-02292-JAM-EFB
1
2
49. EIGHTH AFFIRMATIVE DEFENSE – Lack of Standing – Failure to State a
Claim. As an Eighth Affirmative Defense to the Fourth and Fifth Claims for Relief, Defendants
3
assert that the emotional distress, Defendants contend that Plaintiff has failed to state a claim for
4
5
6
the relief requested as Plaintiff lacks standing to bring such tort claims on behalf of individual
Tribe members as a parens patriae action.
7
WHEREFORE Defendants seeks judgment as follows:
8
1. That Plaintiff’s complaint be dismissed;
9
2. For an order that Plaintiff take nothing by way of the Complaint;
10
3. For costs of suit incurred herein;
11
4. For such other and further relief as the Court deems just and proper.
12
13
DATED: March 23, 2018.
14
15
16
17
By:
/s/ David R. Griffith, Esq.
State Bar No. 70172
GRIFFITH & HORN, LLP
1530 Humboldt Road, Suite 3
Chico, CA 95928
Telephone: (530) 812-1000
Email: david@davidgriffithlaw.com
Attorney for Defendants,
TERRENCE OLLIFF and DIANNE L OLLIFF,
individually and as Trustees of the Olliff Family
Trust
18
19
20
21
///
22
///
23
///
24
///
25
26
///
27
///
28
///
AMENDED ANSWER AND COUNTERCLAIM - 19-
Case No. 2:17-CV-02292-JAM-EFB
1
2
COUNTERCLAIM
Defendants TERRENCE OLLIFF and DIANNE L OLLIFF, individually and as Trustees
3
of the Olliff Family Trust, assert the following counterclaim against Plaintiff GRINDSTONE
4
5
INDIAN RANCHERIA as follows:
Parties
6
7
8
1.
Defendants TERRENCE OLLIFF and DIANNE L OLLIFF, are individuals residing
in Glenn County, California, are husband and wife and Trustees of the Olliff Family Trust.
9
2.
Defendants are informed and believe and thereon allege that Plaintiff
10
11
12
13
14
GRINDSTONE INDIAN RANCHERIA is a ferally recognized Indian Tribe.
Background
3. Defendants TERRENCE OLLIFF and DIANNE L OLLIFF, as Trustees of the Olliff
Family Trust, own the real property commonly referred to as 3580 County Road 305, Orland,
15
CA 95963, Glenn County, California, consisting of approximately 15 acres of agricultural land
16
17
18
19
20
and a family residence more particularly described as:
“The East 396 Feet of the South 20 acres of the Northwest quarter and
the east 396 feet of the North half of the Southwest quarter of Section 15,
Township 21 North, Range 6 West, M.D.B. & M.”
APN: 025-090-019-000 and 025-090-016-000 (the “Olliff Parcel”)
21
4. Defendants assert that they acquired title to the Olliff Parcel in 1977.
22
23
5. Defendants are informed and believe and thereon allege that the Bureau of Indian
24
Affairs owns the 80 acre parcel to the Southeast corner of the Olliff Parcel commonly referred to
25
as 3600 County Road 305, Elk Creek, CA 95939, Glenn County Assessor Number 025-090-099-
26
000 (referred to herein as the “Indian Reservation Parcel”). Defendants are informed and
27
28
AMENDED ANSWER AND COUNTERCLAIM - 20-
Case No. 2:17-CV-02292-JAM-EFB
1
2
believe and thereon allege that the Bureau of Indian Affairs established the Indian Reservation
Parcel in or about 1909.
3
6.
Defendants are informed and believe and thereon allege that Plaintiff purchased
4
5
and/or was provided title to approximately 20.03 acres of land appurtenant and to the east of the
6
Olliff Parcel in or about 1993 commonly referred to as Glenn County Assessor Parcel Number
7
025-090-026-000 (referred to herein as the “Rancheria Parcel”). The Rancheria Parcel is where
8
Plaintiff has developed the housing for its Tribe.
9
7.
Defendants allege that at the time Plaintiff obtained title to the Rancheria Parcel,
10
11
12
13
14
Plaintiff did so with knowledge of recorded public survey by George Pride, License 3747, dated
June 26, 1974, clearly showing the corner markers of the Olliff Parcel (the “Pride Survey’).
8.
Defendants admit that in 2011, the Bureau of Land Management (“BLM”)
conducted a survey of the of the 80 acre Indian Reservation Parcel and the 20 acre Rancheria
15
Parcel which was noticed for filing in the Federal Register on October 19, 2011 and subsequently
16
17
filed in the Bureau of Land Management California State Office, Sacramento (the “BLM
18
Survey”). Defendants allege that the BLM Survey shows location of the Olliff Parcel East
19
property line in the same location as the 1974 Pride Survey, save and except, noting a small
20
overlapping conflict of the Indian Reservation Parcel in its North West corner onto the South
21
East corner of the Olliff Parcel containing approximately 40’ x 26’ square feet (referred to herein
22
23
as the “Corner Conflict Area”). Defendants are informed and believe and thereon allege that the
24
corner conflict was determined by the BLM Survey to be that the historical cedar post corner
25
marker for the North West corner of the Indian Reservation Parcel was originally established by
26
T.L. Knock, “LS 6”, in his 1893 survey filed May 8, 1893, in Book 1 of Maps and Surveys, Page
27
39, Glenn County Recorder’s Office, and is different in that it lays with the South East corner of
28
AMENDED ANSWER AND COUNTERCLAIM - 21-
Case No. 2:17-CV-02292-JAM-EFB
1
2
the Olliff Parcel as set in 1974 by the Pride Survey establishing the corner marker position by
more contemporary existent section control and the then current rules for subdividing sections.
3
9. Defendants admit that Defendants did not object to the survey of the Corner Conflict
4
5
Area and such possession is that of Plaintiff as part of the 80 acre Indian Reservation Parcel.
6
10. Defendants are informed and believe and thereon allege that Plaintiff contends that
7
the North West corner marker of the 80 acre Indian Reservation Parcel which is approximately
8
40 feet into the South East corner of the Olliff Parcel should be adjudicated to extend and run
9
due north approximately 1,082 feet along the eastern boundary of the 20 acre Rancheria Parcel
10
11
12
appurtenant to the Olliff Parcel to give Plaintiff approximately 43,500 square feet of the Olliff
Parcel (the approximately 43,500 square feet is referred to herein as the “Disputed Area”).
13
14
11. Defendants allege and contend that the Disputed Area is and has been for over 40
years, the property of Defendants, and that the BLM Survey did not and does not show the
15
Disputed Area as being property of Plaintiff.
16
12. Defendants are informed and believe and thereon allege that in or about 2014,
17
18
Plaintiff purchased the parcel to the south of the Olliff Parcel and west of the Indian Reservation
19
Parcel commonly referred to as APN 025-090-008-000 (hereinafter referred to as the “Ball
20
Filed”), for use as a baseball filed. Since 1977, Defendants driveway access has been to the west
21
off of County Road 305 through a portion of the Ball Field in the “Easement” area depicted
22
23
below consisting of approximately 26 feet x 350 feet (the “Easement”) with Defendants’ fence
24
line in the Ball Filed parcel approximately 26 feet.
25
///
26
///
27
28
AMENDED ANSWER AND COUNTERCLAIM - 22-
Case No. 2:17-CV-02292-JAM-EFB
1
2
13. A summary of the parcels and areas described above are depicted below, not for the
purpose of survey or to be scale, but for visual example only, as follows:
3
4
5
O
l
l
i
f
f
6
7
8
9
10
11
12
Corner
Conflict
Area
P
a
r
c
e
l
Area of Dispute
Rancheria
Parcel
13
14
15
16
Indian Reservation Parcel
Easement
17
Ball
Field
18
19
20
Counterclaim - Count 1
21
(Trespass)
22
14.
Plaintiffs incorporate by this reference paragraphs 1 through 13 above as though
23
24
25
26
27
fully set forth herein.
15.
In or about 2013, Plaintiff, and its agents and Members with the direction, consent
and control of Plaintiff, constructed a dirt embankment of approximately 245 feet long and 4 feet
high with a sloped edge on the west side of the Rancheria Parcel next to the Olliff Parcel and
28
AMENDED ANSWER AND COUNTERCLAIM - 23-
Case No. 2:17-CV-02292-JAM-EFB
1
2
residence having the sloop running west down into the Olliff Parcel toward the Olliff residence.
Plaintiffs are informed and believe and thereon allege that the dirt embankment was designed,
3
constructed, and placed in such a manner to intentionally interfere with and disrupt the quiet
4
5
enjoyment and use of the Olliff Parcel by Defendants.
6
16. From in or about 2013, and periodically each year thereafter, as a direct and
7
proximate result the embankment constructed and placed by Plaintiff, storm water runs off of the
8
Rancheria Parcel down the embankment onto the Olliff Parcel toward their residence along with
9
eroding dirt and rocks which builds up an encroachment through the Defendants’ fence line onto
10
11
12
13
14
the Olliff Parcel.
17.
Within the last three years of the complaint being filed herein, Plaintiff
GRINDSTONE INDIAN RANCHERIA has directed, acquiesced to, and/or failed to supervise
and control some of its members and agents such that they have come onto the Olliff Parcel with
15
vehicles and equipment, removed fences from the Olliff Parcel, and placed or created conditions
16
17
18
19
20
to deposit dirt and boulders on the Olliff Parcel, without the permission or consent of Defendants.
18.
Within the last three years of the complaint being filed herein, Plaintiff
GRINDSTONE INDIAN RANCHERIA directed, acquiesced to, and/or failed to supervise and
control some of its members and agents such that they have yelled at Defendants and taking
21
hostile action toward Defendants with physical presence, vehicles and equipment to deter and
22
23
24
25
26
disrupt Defendants’ use and quiet enjoyment of portions of the Olliff Parcel.
19.
As a proximate result of the Plaintiff’s trespass and actions, directly and through its
members and agents, Defendants have incurred general damages for diminution in value of the
Olliff Property and costs of restoration and repair according to proof.
27
28
AMENDED ANSWER AND COUNTERCLAIM - 24-
Case No. 2:17-CV-02292-JAM-EFB
1
2
20. As a further proximate result of the Plaintiff’s wrongful conduct and trespass,
Defendants have suffered and continue to suffer physical injury and/or emotional distress
3
manifesting upset stomach, headaches, stress, fear, discomfort, and loss of sleep, such that
4
5
6
Defendants seek general damages for emotional distress from Plaintiff in an amount according to
proof.
7
8
21. The action and conduct of Plaintiff GRINDSTONE INDIAN RANCHERIA directly
and indirectly through some of its members and agents under the direction and control of
9
Plaintiff were willful, malicious and oppressive such that Defendants seek an award of punitive
10
11
damages in an amount according to proof.
WHEREFORE, Defendants seek judgment against Plaintiff on this Counterclaim as set
12
13
14
forth below:
As to Counterclaim - Count 1 (Trespass):
15
1. For general damages for property damage according to proof;
16
2.
For general damages for mental distress according to proof;
18
3.
For an award of punitive damages according to proof;
19
4.
For a preliminary and permanent injunction enjoining Plaintiff and Counter
17
20
Defendants ROES 1 through 10 from trespassing on the Olliff Parcel including the Disputed
21
Area, directly or indirectly, by flow of storm water runoff, dirt, rock or boulders coming from the
22
23
embankment on the Rancheria Parcel onto the Olliff Parcel.
24
5.
25
6. For such other and further relief as the Court deems just and proper.
26
For an award of costs of suit incurred;
///
27
///
28
AMENDED ANSWER AND COUNTERCLAIM - 25-
Case No. 2:17-CV-02292-JAM-EFB
1
2
Respectfully Submitted,
DATED: March 23, 2017.
By:
3
4
5
/s/ David R. Griffith, Esq.
State Bar No. 70172
Attorney for Defendants,
TERRENCE OLLIFF and DIANNE L OLLIFF,
individually and as Trustees of the Olliff Family
Trust
6
REQUEST FOR JURY TRIAL
7
8
9
10
11
12
13
Defendants TERRENCE OLLIFF and DIANNE L OLLIFF, individually and as Trustees
of the Olliff Family Trust, request Jury Trial in this matter.
DATED: March 23, 2017.
By:
/s/ David R. Griffith, Esq.
State Bar No. 70172
Attorney for Defendants,
TERRENCE OLLIFF and DIANNE L OLLIFF,
individually and as Trustees of the Olliff Family
Trust
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AMENDED ANSWER AND COUNTERCLAIM - 26-
Case No. 2:17-CV-02292-JAM-EFB
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?