Preview
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LAW OFFICE OF JEFF BENNION RECEIVER
JEFFREY M. BENNION, SBN 275946
H
2869 INDIA ST
SAN DIEGO, CA 92 103 201s 29 PH 5‘:
as
(619) 609-7198 FILED...,H,___ .
JEFF@]BENNIONLAW.COM swim A
‘
Attorne s for Defendants
E SUPERI’J.‘ coum
Chris Hiilme and JUL 30 2015
ClearView Industries,
.
Inc. Dan... E.p an m om“,
OWVO‘MAWN
"
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA BARBARA
ANACAPA DIVISION
Patsy M0 l er’
Case No. 1417847
Plaintiff,
Defendants’ Opposition to Ex
v. Parte A lica on to Continue the
Motion or Summary Judgment
Chris I-Iulme, 1nd1v1dually and dba
. _ .
Clearv1ee_1dustr_1es,Inc., and Does 1 Date: July 30, 2015
throughlo, 1nclus1ve Time: 8:45 A.M.
Dept: 83]”
Defendants.
Complaint Filed: 7/ 1/1 3
é
NNNNNNNNNI—lr—II—ID—l—db—ll—ID—Ib—II—l
As_s1 ned: Hon. James E Herman
And Related Cross Action Tn Data: 12/ 9/ 20 1 5
ma XED
“\IQMAWNHOOWNQM-kmNHO
I. Summary of Argument
Plaintiff entered into a contract for services with ClearView Industries, Inc.
to do projects at one of her many homes. Although Plaintiff came out to visit the
property many times over the course of the year and a half span of the project and
approved the work that was done and asked for more work with each visit, she now
claims that she never liked any of it. Based on their past working relationship,
ClearView allowed Plaintiff to leave a balance on the amount owed, while
ClearView fronted almost $200,000 in labor and materials. Once the outstanding
1
Defendants’ Opposition to Ex Parte Application re MTC Computers
amount reached this limit, after several months of asking ClearView to continue to
work without pay, she decided to sue, claiming she was tricked. Plaintiff decided to
bring suit against ClearView, with whom she had a contract, and Chris Hulme
Individually. She alleged that Chris Hulme stole money from the corporation, sold
assets to himself from the corporation with little or
\OWQO‘m-pn—I
no consideration, and engaged
in various other activities to defraud the shareholders and board of directors.
Defendants have responded to approximately 1,000 .written discovery
requests and produced approximately 3,000 pages of records, including all
documents requested regarding the shareholders and board of directors and the
corporate minutes. When asked in discovery what the basis was for these specific
allegations that have caused this litigation to drag on and nearly force Chris Hulme
into personal bankruptcy, Plaintiff stated that she could just tell that itwas true
based on conversations she had with Chris Hulme and also the format of the
monthly bills just seemed like the type of bills a corporation that does not have
annual meetings would produce. When asked in follow up discovery when these
conversations took place, Plaintiff said there actually never were any conversations,
but nonetheless, she always had the impression these things were true.
NNNNNNNNNHI—lb—‘I—fil—‘I—II—lh—‘I—ID—l
Defendants
WQOMAWNfloomflOM-kla3N—‘O
immediately filed a motion for summary judgment, attaching
the corporate minutes, and a declaration from Chris Hulme (President of
ClearView) and jennifer Hulme (CFO and TreaSurer) that these allegations are not
true.
Now, over two years after the case was brought, Plaintiff demands that date
for the MS] must be continued because there are more rocks to turn over to and
maybe there could be some shred of evidence somewhere to support the hunches
that Plaintiff had two years ago when she filed her Complaint and when she later
verified that the allegations are true and supported by evidence.
2
Defendants’ Opposition to Ex Parte Application re MTC Computers
.—a
II. Plaintiff’s Counsel Is Not Prevented from
Obtaining Any Discovery
In February of this year, Plaintiff filed her case management statement with
the following to say about discovery:
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,
sis-smififié
l
E E’lTl'NG DEFENDANTS‘ ass N8Es To DISCOVERY'
DEPOSITIONS HAVE BEEN DELAYED SIGNIFICANTLiio
-
Following the CMC, the Court set an August trial date. Despite indicating to the
court that Plaintiff is anxious to finally be able to take depositions, four months went
by before Plaintiff’s counsel even reached out to discuss deposition dates. A date
for Chris Hulme only was noticed after the parties met and conferred on dates of
availability. Days before the noticed deposition, Plaintiff’s counsel sent a letter
cancelling the deposition. Itwasn’t until two weeks ago that Plaintiff’s counsel sent
notices of deposition for Chris Hulme and Jennifer Hulme with unilaterally noticed
dates. No other dates have been discussed.
The only one preventing Plaintiff from conducting any depositions is
NNNNNNNNNb—‘v—lh—ID—‘r—II—db—Is—Iu—Is—a
Plaintiff’s counsel.
The Law Office of Michael P. Ring 8: Associates has three attorneys on the
caption (including an attorney with a 16 bar number).
WQQM$WNHO®wQQm-#WNHO
None of them have reached
out to discuss taking-one of their office’s depositions to accommodate their boss’s
vacation schedule.
III. Plaintiff Has Not Met the Requisite
Showing of Proving that Additional Evidence May
Exist
Plaintiff has already received thousands of pages of documents relating to
the corporate entity, several written discovery responses, and a declaration under
penalty of perjury describing how the minutes were prepared and two declarations
3
Defendants’ Opposition to Ex Parte Application re MTC Computers
A O 1- I \x/ -'~
./
a I
.
attesting to the fact that the meetings occurred. Plaintiff’s only argument is that,
despite the-written discovery, documents produced, and declarations, perhaps if
asked a fourth way, Defendants might contradict themselves. However, he has
produced no evidence that this may be the case as required under the code and in
the case law cited in Plaintiff’s application.
\omuouxsmn.‘
IV. Defendants Will Be Prejudiced If the M8] Date
Is Moved
The Motion for Summary Judgment is 90 days before trial. Defendants need
to know if they are preparing for a trial with two parties or with one. Likewise,
Defendants need to know which remaining causes of action will be in place and
prepare accordingly. If Chris Hulme and the fraud cause of action remain, a lot of
work will remain, including additional written discovery. Defendants have asked
for invoices and descriptions of work completed to allegedly remediate the damage
Plaintiff claims. To date, Defendant has only responded that that information is not
complete. Even in the application, Plaintiff can only allege that the damage
‘
amounts are “staggering.”
Defendants need as much time as possible to prepare
NNNNNNNNNs—nn—An—As—Is—As—nn—An—Is—Ae—I
for this case, at least
the 90 days post MSJ that Defendants currently have. The MS] was served on June
9, 2015 - 92 days before the hearing specifically to allow Plaintiff extra time to
axiom-hunfloooofloxu-t-fio
prepare. It isnot Defendants’ fault that Plaintiff did not take advantage of that and
Defendants should not be punished for Defendants’ lack of diligence.
%
Dated: July 29, 2015 Law Office of Jeff Bennion-
By:
Jeffr lgennion, Esq.
Attorneys for Defendants
4-
Defendants' Opposition to Ex Parte Application re MTC Computers
Preview
\/~ LAW OFFICE OF JEFF BENNION RECEIVER JEFFREY M. BENNION, SBN 275946 H 2869 INDIA ST SAN DIEGO, CA 92 103 201s 29 PH 5‘: as (619) 609-7198 FILED...,H,___ . JEFF@]BENNIONLAW.COM swim A ‘ Attorne s for Defendants E SUPERI’J.‘ coum Chris Hiilme and JUL 30 2015 ClearView Industries, . Inc. Dan... E.p an m om“, OWVO‘MAWN " SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA BARBARA ANACAPA DIVISION Patsy M0 l er’ Case No. 1417847 Plaintiff, Defendants’ Opposition to Ex v. Parte A lica on to Continue the Motion or Summary Judgment Chris I-Iulme, 1nd1v1dually and dba . _ . Clearv1ee_1dustr_1es,Inc., and Does 1 Date: July 30, 2015 throughlo, 1nclus1ve Time: 8:45 A.M. Dept: 83]” Defendants. Complaint Filed: 7/ 1/1 3 é NNNNNNNNNI—lr—II—ID—l—db—ll—ID—Ib—II—l As_s1 ned: Hon. James E Herman And Related Cross Action Tn Data: 12/ 9/ 20 1 5 ma XED “\IQMAWNHOOWNQM-kmNHO I. Summary of Argument Plaintiff entered into a contract for services with ClearView Industries, Inc. to do projects at one of her many homes. Although Plaintiff came out to visit the property many times over the course of the year and a half span of the project and approved the work that was done and asked for more work with each visit, she now claims that she never liked any of it. Based on their past working relationship, ClearView allowed Plaintiff to leave a balance on the amount owed, while ClearView fronted almost $200,000 in labor and materials. Once the outstanding 1 Defendants’ Opposition to Ex Parte Application re MTC Computers amount reached this limit, after several months of asking ClearView to continue to work without pay, she decided to sue, claiming she was tricked. Plaintiff decided to bring suit against ClearView, with whom she had a contract, and Chris Hulme Individually. She alleged that Chris Hulme stole money from the corporation, sold assets to himself from the corporation with little or \OWQO‘m-pn—I no consideration, and engaged in various other activities to defraud the shareholders and board of directors. Defendants have responded to approximately 1,000 .written discovery requests and produced approximately 3,000 pages of records, including all documents requested regarding the shareholders and board of directors and the corporate minutes. When asked in discovery what the basis was for these specific allegations that have caused this litigation to drag on and nearly force Chris Hulme into personal bankruptcy, Plaintiff stated that she could just tell that itwas true based on conversations she had with Chris Hulme and also the format of the monthly bills just seemed like the type of bills a corporation that does not have annual meetings would produce. When asked in follow up discovery when these conversations took place, Plaintiff said there actually never were any conversations, but nonetheless, she always had the impression these things were true. NNNNNNNNNHI—lb—‘I—fil—‘I—II—lh—‘I—ID—l Defendants WQOMAWNfloomflOM-kla3N—‘O immediately filed a motion for summary judgment, attaching the corporate minutes, and a declaration from Chris Hulme (President of ClearView) and jennifer Hulme (CFO and TreaSurer) that these allegations are not true. Now, over two years after the case was brought, Plaintiff demands that date for the MS] must be continued because there are more rocks to turn over to and maybe there could be some shred of evidence somewhere to support the hunches that Plaintiff had two years ago when she filed her Complaint and when she later verified that the allegations are true and supported by evidence. 2 Defendants’ Opposition to Ex Parte Application re MTC Computers .—a II. Plaintiff’s Counsel Is Not Prevented from Obtaining Any Discovery In February of this year, Plaintiff filed her case management statement with the following to say about discovery: \OWQONM-bwlx) 0.. mmsfoIMgdnavc In .1cl dl "" W" m. ““°°""'°'*°°"°~~wo~« , sis-smififié l E E’lTl'NG DEFENDANTS‘ ass N8Es To DISCOVERY' DEPOSITIONS HAVE BEEN DELAYED SIGNIFICANTLiio - Following the CMC, the Court set an August trial date. Despite indicating to the court that Plaintiff is anxious to finally be able to take depositions, four months went by before Plaintiff’s counsel even reached out to discuss deposition dates. A date for Chris Hulme only was noticed after the parties met and conferred on dates of availability. Days before the noticed deposition, Plaintiff’s counsel sent a letter cancelling the deposition. Itwasn’t until two weeks ago that Plaintiff’s counsel sent notices of deposition for Chris Hulme and Jennifer Hulme with unilaterally noticed dates. No other dates have been discussed. The only one preventing Plaintiff from conducting any depositions is NNNNNNNNNb—‘v—lh—ID—‘r—II—db—Is—Iu—Is—a Plaintiff’s counsel. The Law Office of Michael P. Ring 8: Associates has three attorneys on the caption (including an attorney with a 16 bar number). WQQM$WNHO®wQQm-#WNHO None of them have reached out to discuss taking-one of their office’s depositions to accommodate their boss’s vacation schedule. III. Plaintiff Has Not Met the Requisite Showing of Proving that Additional Evidence May Exist Plaintiff has already received thousands of pages of documents relating to the corporate entity, several written discovery responses, and a declaration under penalty of perjury describing how the minutes were prepared and two declarations 3 Defendants’ Opposition to Ex Parte Application re MTC Computers A O 1- I \x/ -'~ ./ a I . attesting to the fact that the meetings occurred. Plaintiff’s only argument is that, despite the-written discovery, documents produced, and declarations, perhaps if asked a fourth way, Defendants might contradict themselves. However, he has produced no evidence that this may be the case as required under the code and in the case law cited in Plaintiff’s application. \omuouxsmn.‘ IV. Defendants Will Be Prejudiced If the M8] Date Is Moved The Motion for Summary Judgment is 90 days before trial. Defendants need to know if they are preparing for a trial with two parties or with one. Likewise, Defendants need to know which remaining causes of action will be in place and prepare accordingly. If Chris Hulme and the fraud cause of action remain, a lot of work will remain, including additional written discovery. Defendants have asked for invoices and descriptions of work completed to allegedly remediate the damage Plaintiff claims. To date, Defendant has only responded that that information is not complete. Even in the application, Plaintiff can only allege that the damage ‘ amounts are “staggering.” Defendants need as much time as possible to prepare NNNNNNNNNs—nn—An—As—Is—As—nn—An—Is—Ae—I for this case, at least the 90 days post MSJ that Defendants currently have. The MS] was served on June 9, 2015 - 92 days before the hearing specifically to allow Plaintiff extra time to axiom-hunfloooofloxu-t-fio prepare. It isnot Defendants’ fault that Plaintiff did not take advantage of that and Defendants should not be punished for Defendants’ lack of diligence. % Dated: July 29, 2015 Law Office of Jeff Bennion- By: Jeffr lgennion, Esq. Attorneys for Defendants 4- Defendants' Opposition to Ex Parte Application re MTC Computers