Preview
DAVID M. HELBRAUN (SBN 129840)
HELBRAUN LAW FIRM
44 Montgomery Street, Suite 3340 ELECTRONICALLY
DAVID M. HELBRAUN (SBN 129840)
HELBRAUN LAW FIRM F I L E D
Superior Court of California,
44 Montgomery Street, Suite 3340 County of San Francisco
San Francisco, California 94104
Telephone: (415) 982-4000 07/31/2019
Email: dmhAahclhraunlaw.corn Clerk of the Court
BY: RONNIE OTERO
Deputy Clerk
John Douglas Moore (SBN 95655)
1999 Harrison Street, 18'" Floor
Oakland, CA 94612
Telephone: (510) 893-6300
Email: imoore&rr,rccvclelaw.corn
9 Attorneys for Plaintiffs
BATROA PROFIT SHARING PLAN,
10 MICHAEL L. LEVINE, M.D.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SAN FRANCISCO
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BATROA PROFIT SHARING PLAN ) Case No. CGC-17-556907
(BATROA) for )
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the benefit of MICHAEL L. LEVINE M.D. ) DECLARATION OF DAVID M.
and ) HELBRAUN IN SUPPORT OF
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MICHAEL L. LEVINE, individually, ) PLAINTIFFS'OTION TO COMPEL
) WRITTEN RESPONSES TO RPD'S,
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Plaintiffs, ) COMPEL PRODUCTION OF
) DOCUMENTS, DEEM ADMITTED
18 ) REQUESTS FOR ADMISSIONS AND
) COMPEL ANSWERS TO FORM
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DIMITRIOU d'c ASSOCIATES, P.C. a ) INTERROGATORIES FROM
California Professional Corporation, et. al. ) DIMITRIOU & ASSOCIATES, P.C.
20 ) AND FOR SANCTIONS
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Date: August 23, 2019
Time: 9:00 a.m.
22 Dept: 301
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Trial: January 13, 2020
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25 I, David M. Helbraun, do declare:
26 1. I am an attorney licensed to practice law before all the courts of the State of California,
27 and am attorney of record for plaintiffs herein, BATROA PROFIT SHARING PLAN
28 ("BATROA'*) and Michael L. Levine, M.D. (" Levine" ).
IIELDRAUII DECL. ISO MOTIoiV To COAII'EL AND To DEEM EFA'S ADMTITED
A. The Underlying Matter
2. This matter is a legal malpractice action, and concerns the underlying lawsuit
originally filed on August 22, 2011, entitled BA TROA v. Bar-K Inc. et al., being Action No.
MSC 11-02000 in the Superior Court in and for the County of Contra Costa ("the underlying
action" or "the Contra Costa County Action"). The gravamen of the Contra Costa County
Action was a fraud claim against multiple persons and entities whereby $ 800,000 invested by
BATROA on behalf of Levine was lost in a real estate Ponzi scheme, involving a real estate
investment operated by RE Loans, and by Bar-K Inc. Plaintiffs had invested $ 800,000 with the
defendants in the underlying action, and lost it all. On March 31, 2013, Plaintiffs entered into a
10 written fee agreement with Andrew Dimitriou of Dimitriou & Associates for representation in the
underlying action.
12 3. In May 2015, Andrew Dimitriou of Dimitriou & Associates, P.C. ("DAPC") was
13 suspended from the practice of law for one year. Mr. Dimitriou then arranged for various
14 attorneys to make appearances on behalf of plaintiffs in the underlying action during the period
15 of his suspension. However, two of those attorneys — co-defendants J. Harmond Hughey and
16 Matthew A. Cebrian (Cebrian has settled out) — repeatedly missed Case Management Conference
17 appearances and related Order To Show Cause appearances. On February 8, 2016, the Court in
18 the underlying action held one last OSC hearing. Counsel for plaintiffs again did not appear, nor
19 was a response to the OSC filed. The Court in the underlying action then dismissed that action,
20 with prejudice. Notice of Entry of the Dismissal of the underlying action was filed on February
21 16, 2016.
22 4. Some months later, on July I, 2016, co-defendant attorney Kevin Sullivan, ostensibly
23 as Of Counsel to Dimitriou & Associates, filed a Motion to Vacate the Dismissal of the
24 underlying action on behalf of BATROA and Levine, pursuant to Code of Civil Procedure
25 Section 473. The Motion to Vacate argued that relief was mandatory because the dismissal was
26 based upon the error or omission of an attorney. Sullivan included in that motion a Declaration
27 of Matthew Cebrian, acknowledging that his negligent failures as an attorney for plaintiffs
28 resulted in the dismissal of the Contra Costa County Action. An Opposition filed on behalf of
HELBRAUN DECI- ISO MOTION To COMPEL AND To DEEM RFA'S ADMITI'ED
one of the several defendants in the underlying action argued that Section 473 did not apply,
because the dismissal supposedly had been a dismissal for failure to prosecute. In reality,
however, the dismissal had been for counsel's failures to appear at Orders To Show Cause and
Case Management Conferences, not for a failure to prosecute. Defendant attorneys Dimitriou,
Sullivan and DAPC then failed to file a Reply brief rebutting the Opposition argument with
California
controlling authority, namely, Garcia v. McCutcheon {1997) 16 Cal.4'" 469, 475-476, in which
the Supreme Court held that a court may not dismiss a case for failures to comply with
case management rules where the noncompliance was the responsibility of counsel and not the
client.
10 5. Co-defendant attorney Isaac Jacobsen appeared on behalf of plaintiffs Levine and
BATROA at the hearing on the Motion to Vacate the dismissal in the underlying action.
12 Attorney Jacobsen failed to adequately prepare for the hearing and failed to present the
13 controlling authority noted above to rebut the Opposition. The Motion to Vacate Dismissal was
denied.
15 6. On October 11, 2016, a Notice of Appeal of the denial of the Motion to Vacate was
16 filed by DAPC and Andrew Dimitriou on behalf of plaintiffs. On June 5 and, again on June 15,
17 2017, DAPC and Dimitriou obtained extensions of time from the Court of Appeal to file an
18 opening brief. On July 18, 2017, the Court of Appeal dismissed the appeal for failure to file an
19 opening brief, after having been granted repeated extensions of time to do so.
20 B. The Subject Motion To Compel
21 7. On May 24, 2019, plaintiffs herein served Requests for Production of Documents
22 ("RPD"), Set One, on Dimitriou & Associates P.C. {"DAPC"). Attached hereto as Exhibit 1 is a
23 true and correct copy of that RPD, Set One. Written Responses and production of documents
24 were due no later than June 28, 2019. No request for an extension of time was made by DAPC.
25 No Response to the RPD Set One was ever received from DAPC.
8. On May 31, 2019, plaintiffs herein served Requests for Admissions ("RFA"), Set One,
27 on DAPC. Attached hereto as Exhibit 2 is a true and correct copy of that RFA, Set One (with
28 document exhibits 1 -7 whch were attached). Written Responses were due no later than July 5,
HELBRAUN DECL Iso aiOTION To COMPEL AND TO DEEM RFA'S ADMiTTED
2019. No request for an extension of time was made by DAPC. No Response to the RFA Set
One was ever received f'rom DAPC.
9. Given the complex set of facts presented by the underlying action, and the resulting
complications for proof of the "case within a case" methodology necessary for proof at the trial
of this legal malpractice action (trial is now set for January 13, 2020), we sought to obtain
admissions as to many basic underlying facts, and as to the authenticity of several relevant
documents. Because the resulting number of RFA's exceeded 35, we served with the RFA Set
One a Declaration of David M. Helbraun For Additional Discovery, a true and correct copy of
which is attached hereto as Exhibit 3.
10 10. The Proof of Service for plaintiffs'FA's Set One, and for the Declaration for
Additional Discovery is at the back of the Declaration of David M. Helbraun For Additional
12 Discovery, Exhibit 3 attached here.
13 11. Also on May 31, 2019, plaintiffs also served Form Interrogatories, Set One, on
14 Dimitriou & Associates P.C. ("DAPC"). Attached hereto as Exhibit 4 is a true and correct copy
15 of those Form Interrogatories, Set One. Written Responses were due no later than July 5, 2019.
16 No request for an extension of time was made by DAPC. No Response to the Form
17 Interrogatories, Set One was ever received from DAPC.
18 12. In the absence of any responses at all being received on behalf of DAPC, plaintilt's
19 would have been well within their rights to have filed this Motion without first attempting to
20 meet and confer with DAPC. Nevertheless, I sought to avoid the need to burden the Court with
21 this motion by first writing to Andrew Dimitriou via e-mail to explain the situation and to request
22 cooperation in providing DAPC's discovery responses. Attached hereto as Exhibit 5 is a true and
23 correct copy of my July 11, 2019 e-mail advising him of DAPC's failures to respond and
24 resulting waivers of objections, and asking for substantive responses within one week. Nothing
25 whatsoever has been received in response.
26 13. We have a January 13, 2020 trial date and a December 13, 2019 discovery cut-off.
Numerous depositions are required to be taken, but Mr. Dimitriou's refusal to participate in
28 discovery, by refusing to respond to discovery served in May or to produce documents, is
HELBRAUN DECI ISO MOTION To COMPEL AND To DEEM RFA'S ADMITTED
delaying that important trial preparation. The discovery cut-off is 5 months from now, so, given
defendant Dimitriou's delays, time is a concern. Accordingly, documents should be produced
immediately. These would include any and all e-mails between DAPC and the various co-
defendants, among other items (while plaintiff obtained their file from DAPC before this action
was filed, DAPC has produced no other documents responsive to the subject RPD's). The Court
is therefore respectfully requested to order that written responses and responsive documents to be
produced within one week from the date of the hearing. Substantial delay has already occurred
because the same defendants DAPC and Andrew Dimitriou filed a time-consuming, but
ultimately un-meritorious, motion to challenge Plaintiff s good-faith settlement with co-
10 defendants Matthew Cebrian and Jones Devoy LLP. Attached hereto as Exhibit 6 is a true and
8r,
correct copy of Judge Shulman's Order Denying Dimitriou's objections to that good faith
settlement, and citing the factual reasoning for that decision.
13 14. I have spent one half-hour reviewing the status of the outstanding discovery and
14 service of same as well as drafting my July 11, 2019 e-mail to Andrew Dimitriou in my effort to
15 avoid burdening the Court with this motion. I have spent an additional five hours to research and
16 draft the Points 4 Authorities, Notice of Motion, Proposed Order, and this Declaration in
California
17 Support, and to assemble exhibits for the same. I am a graduate of Yale College and the
University of Hastings College of Law. I have been practicing law since 1987 and
19 have been a partner in a national law firm (Wilson Elser Moskowitz Edelman & Dicker) as well
20 as the principal of my own firm for almost two decades now, specializing in professional liability
21 trial work. My hourly rate charged to clients is $ 600 per hour. Therefore, plaintiffs have already
22 incurred attorneys fees, plus motion filing fees of $ 180.00 ($ 60 for each discovery device
23 motion: RPD, RPA, Interrogatory), totaling $ 3,300.00. I conservatively estimate that I will spend
24 an additional three hours of time to review defendants'pposition, draft a Reply briefing, and
25 appear at the hearing of this matter. Accordingly, plaintiffs'equest monetary sanctions from
26 Andrew Dimitriou and DAPC pursuant to the authority cited in the accompanying Points k
27 Authorities, in the total amount of $ 5,100.00.
28 I declare under penalty of perjury under the laws of the State of California that this
HELBRAUN DECL. ISO MOTION To COMPEL AND To DEEM RFA'S ADMlTTED
declaration was executed by me in the City and County of San Francisco on July 31, 2019.
David M. Helbraun
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IIELBRAUIV DFCL. ISO MOTIoiV To COEIPEL ARD To DEEIR RFA'S Anlllll TED
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DAVID M. HELBRAUN (SBN 129840) HELBRAUN LAW FIRM 44 Montgomery Street, Suite 3340 ELECTRONICALLY DAVID M. HELBRAUN (SBN 129840) HELBRAUN LAW FIRM F I L E D Superior Court of California, 44 Montgomery Street, Suite 3340 County of San Francisco San Francisco, California 94104 Telephone: (415) 982-4000 07/31/2019 Email: dmhAahclhraunlaw.corn Clerk of the Court BY: RONNIE OTERO Deputy Clerk John Douglas Moore (SBN 95655) 1999 Harrison Street, 18'" Floor Oakland, CA 94612 Telephone: (510) 893-6300 Email: imoore&rr,rccvclelaw.corn 9 Attorneys for Plaintiffs BATROA PROFIT SHARING PLAN, 10 MICHAEL L. LEVINE, M.D. SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 IN AND FOR THE COUNTY OF SAN FRANCISCO 13 14 BATROA PROFIT SHARING PLAN ) Case No. CGC-17-556907 (BATROA) for ) 15 the benefit of MICHAEL L. LEVINE M.D. ) DECLARATION OF DAVID M. and ) HELBRAUN IN SUPPORT OF 16 MICHAEL L. LEVINE, individually, ) PLAINTIFFS'OTION TO COMPEL ) WRITTEN RESPONSES TO RPD'S, 17 Plaintiffs, ) COMPEL PRODUCTION OF ) DOCUMENTS, DEEM ADMITTED 18 ) REQUESTS FOR ADMISSIONS AND ) COMPEL ANSWERS TO FORM 19 DIMITRIOU d'c ASSOCIATES, P.C. a ) INTERROGATORIES FROM California Professional Corporation, et. al. ) DIMITRIOU & ASSOCIATES, P.C. 20 ) AND FOR SANCTIONS 21 Date: August 23, 2019 Time: 9:00 a.m. 22 Dept: 301 23 Trial: January 13, 2020 24 25 I, David M. Helbraun, do declare: 26 1. I am an attorney licensed to practice law before all the courts of the State of California, 27 and am attorney of record for plaintiffs herein, BATROA PROFIT SHARING PLAN 28 ("BATROA'*) and Michael L. Levine, M.D. (" Levine" ). IIELDRAUII DECL. ISO MOTIoiV To COAII'EL AND To DEEM EFA'S ADMTITED A. The Underlying Matter 2. This matter is a legal malpractice action, and concerns the underlying lawsuit originally filed on August 22, 2011, entitled BA TROA v. Bar-K Inc. et al., being Action No. MSC 11-02000 in the Superior Court in and for the County of Contra Costa ("the underlying action" or "the Contra Costa County Action"). The gravamen of the Contra Costa County Action was a fraud claim against multiple persons and entities whereby $ 800,000 invested by BATROA on behalf of Levine was lost in a real estate Ponzi scheme, involving a real estate investment operated by RE Loans, and by Bar-K Inc. Plaintiffs had invested $ 800,000 with the defendants in the underlying action, and lost it all. On March 31, 2013, Plaintiffs entered into a 10 written fee agreement with Andrew Dimitriou of Dimitriou & Associates for representation in the underlying action. 12 3. In May 2015, Andrew Dimitriou of Dimitriou & Associates, P.C. ("DAPC") was 13 suspended from the practice of law for one year. Mr. Dimitriou then arranged for various 14 attorneys to make appearances on behalf of plaintiffs in the underlying action during the period 15 of his suspension. However, two of those attorneys — co-defendants J. Harmond Hughey and 16 Matthew A. Cebrian (Cebrian has settled out) — repeatedly missed Case Management Conference 17 appearances and related Order To Show Cause appearances. On February 8, 2016, the Court in 18 the underlying action held one last OSC hearing. Counsel for plaintiffs again did not appear, nor 19 was a response to the OSC filed. The Court in the underlying action then dismissed that action, 20 with prejudice. Notice of Entry of the Dismissal of the underlying action was filed on February 21 16, 2016. 22 4. Some months later, on July I, 2016, co-defendant attorney Kevin Sullivan, ostensibly 23 as Of Counsel to Dimitriou & Associates, filed a Motion to Vacate the Dismissal of the 24 underlying action on behalf of BATROA and Levine, pursuant to Code of Civil Procedure 25 Section 473. The Motion to Vacate argued that relief was mandatory because the dismissal was 26 based upon the error or omission of an attorney. Sullivan included in that motion a Declaration 27 of Matthew Cebrian, acknowledging that his negligent failures as an attorney for plaintiffs 28 resulted in the dismissal of the Contra Costa County Action. An Opposition filed on behalf of HELBRAUN DECI- ISO MOTION To COMPEL AND To DEEM RFA'S ADMITI'ED one of the several defendants in the underlying action argued that Section 473 did not apply, because the dismissal supposedly had been a dismissal for failure to prosecute. In reality, however, the dismissal had been for counsel's failures to appear at Orders To Show Cause and Case Management Conferences, not for a failure to prosecute. Defendant attorneys Dimitriou, Sullivan and DAPC then failed to file a Reply brief rebutting the Opposition argument with California controlling authority, namely, Garcia v. McCutcheon {1997) 16 Cal.4'" 469, 475-476, in which the Supreme Court held that a court may not dismiss a case for failures to comply with case management rules where the noncompliance was the responsibility of counsel and not the client. 10 5. Co-defendant attorney Isaac Jacobsen appeared on behalf of plaintiffs Levine and BATROA at the hearing on the Motion to Vacate the dismissal in the underlying action. 12 Attorney Jacobsen failed to adequately prepare for the hearing and failed to present the 13 controlling authority noted above to rebut the Opposition. The Motion to Vacate Dismissal was denied. 15 6. On October 11, 2016, a Notice of Appeal of the denial of the Motion to Vacate was 16 filed by DAPC and Andrew Dimitriou on behalf of plaintiffs. On June 5 and, again on June 15, 17 2017, DAPC and Dimitriou obtained extensions of time from the Court of Appeal to file an 18 opening brief. On July 18, 2017, the Court of Appeal dismissed the appeal for failure to file an 19 opening brief, after having been granted repeated extensions of time to do so. 20 B. The Subject Motion To Compel 21 7. On May 24, 2019, plaintiffs herein served Requests for Production of Documents 22 ("RPD"), Set One, on Dimitriou & Associates P.C. {"DAPC"). Attached hereto as Exhibit 1 is a 23 true and correct copy of that RPD, Set One. Written Responses and production of documents 24 were due no later than June 28, 2019. No request for an extension of time was made by DAPC. 25 No Response to the RPD Set One was ever received from DAPC. 8. On May 31, 2019, plaintiffs herein served Requests for Admissions ("RFA"), Set One, 27 on DAPC. Attached hereto as Exhibit 2 is a true and correct copy of that RFA, Set One (with 28 document exhibits 1 -7 whch were attached). Written Responses were due no later than July 5, HELBRAUN DECL Iso aiOTION To COMPEL AND TO DEEM RFA'S ADMiTTED 2019. No request for an extension of time was made by DAPC. No Response to the RFA Set One was ever received f'rom DAPC. 9. Given the complex set of facts presented by the underlying action, and the resulting complications for proof of the "case within a case" methodology necessary for proof at the trial of this legal malpractice action (trial is now set for January 13, 2020), we sought to obtain admissions as to many basic underlying facts, and as to the authenticity of several relevant documents. Because the resulting number of RFA's exceeded 35, we served with the RFA Set One a Declaration of David M. Helbraun For Additional Discovery, a true and correct copy of which is attached hereto as Exhibit 3. 10 10. The Proof of Service for plaintiffs'FA's Set One, and for the Declaration for Additional Discovery is at the back of the Declaration of David M. Helbraun For Additional 12 Discovery, Exhibit 3 attached here. 13 11. Also on May 31, 2019, plaintiffs also served Form Interrogatories, Set One, on 14 Dimitriou & Associates P.C. ("DAPC"). Attached hereto as Exhibit 4 is a true and correct copy 15 of those Form Interrogatories, Set One. Written Responses were due no later than July 5, 2019. 16 No request for an extension of time was made by DAPC. No Response to the Form 17 Interrogatories, Set One was ever received from DAPC. 18 12. In the absence of any responses at all being received on behalf of DAPC, plaintilt's 19 would have been well within their rights to have filed this Motion without first attempting to 20 meet and confer with DAPC. Nevertheless, I sought to avoid the need to burden the Court with 21 this motion by first writing to Andrew Dimitriou via e-mail to explain the situation and to request 22 cooperation in providing DAPC's discovery responses. Attached hereto as Exhibit 5 is a true and 23 correct copy of my July 11, 2019 e-mail advising him of DAPC's failures to respond and 24 resulting waivers of objections, and asking for substantive responses within one week. Nothing 25 whatsoever has been received in response. 26 13. We have a January 13, 2020 trial date and a December 13, 2019 discovery cut-off. Numerous depositions are required to be taken, but Mr. Dimitriou's refusal to participate in 28 discovery, by refusing to respond to discovery served in May or to produce documents, is HELBRAUN DECI ISO MOTION To COMPEL AND To DEEM RFA'S ADMITTED delaying that important trial preparation. The discovery cut-off is 5 months from now, so, given defendant Dimitriou's delays, time is a concern. Accordingly, documents should be produced immediately. These would include any and all e-mails between DAPC and the various co- defendants, among other items (while plaintiff obtained their file from DAPC before this action was filed, DAPC has produced no other documents responsive to the subject RPD's). The Court is therefore respectfully requested to order that written responses and responsive documents to be produced within one week from the date of the hearing. Substantial delay has already occurred because the same defendants DAPC and Andrew Dimitriou filed a time-consuming, but ultimately un-meritorious, motion to challenge Plaintiff s good-faith settlement with co- 10 defendants Matthew Cebrian and Jones Devoy LLP. Attached hereto as Exhibit 6 is a true and 8r, correct copy of Judge Shulman's Order Denying Dimitriou's objections to that good faith settlement, and citing the factual reasoning for that decision. 13 14. I have spent one half-hour reviewing the status of the outstanding discovery and 14 service of same as well as drafting my July 11, 2019 e-mail to Andrew Dimitriou in my effort to 15 avoid burdening the Court with this motion. I have spent an additional five hours to research and 16 draft the Points 4 Authorities, Notice of Motion, Proposed Order, and this Declaration in California 17 Support, and to assemble exhibits for the same. I am a graduate of Yale College and the University of Hastings College of Law. I have been practicing law since 1987 and 19 have been a partner in a national law firm (Wilson Elser Moskowitz Edelman & Dicker) as well 20 as the principal of my own firm for almost two decades now, specializing in professional liability 21 trial work. My hourly rate charged to clients is $ 600 per hour. Therefore, plaintiffs have already 22 incurred attorneys fees, plus motion filing fees of $ 180.00 ($ 60 for each discovery device 23 motion: RPD, RPA, Interrogatory), totaling $ 3,300.00. I conservatively estimate that I will spend 24 an additional three hours of time to review defendants'pposition, draft a Reply briefing, and 25 appear at the hearing of this matter. Accordingly, plaintiffs'equest monetary sanctions from 26 Andrew Dimitriou and DAPC pursuant to the authority cited in the accompanying Points k 27 Authorities, in the total amount of $ 5,100.00. 28 I declare under penalty of perjury under the laws of the State of California that this HELBRAUN DECL. ISO MOTION To COMPEL AND To DEEM RFA'S ADMlTTED declaration was executed by me in the City and County of San Francisco on July 31, 2019. David M. Helbraun 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IIELBRAUIV DFCL. ISO MOTIoiV To COEIPEL ARD To DEEIR RFA'S Anlllll TED