Preview
1 Mark W. Epstein (SBN 143202)
SEILER EPSTEIN LLP
2 275 Battery Street, Suite 1600
San Francisco, California 94111 ELECTRONICALLY
3 Phone: (415) 979-0500 F I L E D
Fax: (415) 979-0511 Superior Court of California,
County of San Francisco
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Attorneys for Respondent 06/12/2020
5 SAMETC, LLC Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SAN FRANCISCO
9 UNLIMITED CIVIL JURISDICTION
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11 REGINALD HINDLEY, an individual Case No. CPF 19-516917
12 Petitioner, SAMETC’S OPPOSITION TO PETITION TO
MODIFY OR VACATE ARBITRATION AWARD
13 vs.
[CCP § 1285.2]
SEILER EPSTEIN LLP
14 MARK EPSTEIN, SAMETC, LLC, JOHN
Attorneys at Law
SOLLNER AND SEILER EPSTEIN ZIEGLER Date: July 2, 2020
15 & APLEGATE, LLP Time: 9:30 a.m.
Dept. 501
16 Respondents. Judge: Hon. Charles F. Haines
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 TABLE OF CONTENTS
2 INTRODUCTION ...........................................................................................................................1
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CURRENT OWNERSHIP INTERESTS ........................................................................................2
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STRUCTURE OF THIS OPPOSITION ..........................................................................................2
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ARGUMENT ...................................................................................................................................2
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7 1. Judge Snowden’s Jurisdiction & Experience with the Parties and the Property. ...................2
8 A. Judge Snowden Was Granted Extremely Broad Jurisdiction ..................................2
9 (1) Judge Snowden’s Judicial Appointment – Retirement of Arbitrator
Steven Block ................................................................................................3
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11 (2) Judge Snowden’s Jurisdiction from Appointment Order ............................4
12 (3) Judge Snowden’s Authority from the November 4, 2013
Four Way Agreement ..................................................................................5
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(4) Judge Snowden’s Authority from the March 27, 2015
14 Agreement to Pay NOAVs ..........................................................................6
Attorneys at Law
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(5) Judge Snowden’s Authority from the November 27, 2017
16 Settlement Agreement and Related February 9, 2018 Order .......................6
17 B. Judge Snowden’s experience with the Property and the Parties..............................7
18 2. SEZA Never Represented Hindley. ................................................................................7
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3. California Law Establishing the Power and Authority of an Arbitrator is Clear. ...........9
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A. The California Supreme Court .......................................................................................9
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B. Applicable California Statute ................................................................................12
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23 (1) Judge Snowden did not exceed his Powers. ..............................................12
24 (2) Judge Snowden did not substantially prejudice Hindley. ..........................12
25 4. Historical Arbitration and Court Orders/Awards ..........................................................13
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5. Judge Snowden’s October 15, 2019 Final Arbitration Award ......................................17
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6. Response to Other Allegations by Hindley ...................................................................18
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A. Hindley’s Discovery and Evidentiary hearing Rights Were not Violated. ............19
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
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B. Hindley Was Never Billed by SEZA and Never Paid Legal Fees to SEZA..........19
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C. Epstein Did Not “Secretly” Buy Back into Sametc. ..............................................19
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4 D. Epstein, Not SEZA is the Proper Party. .................................................................20
5 E. Sollner Disclaimer .................................................................................................20
6 F. Rules of Professional Conduct...............................................................................20
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CONCLUSION..............................................................................................................................20
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 TABLE OF AUTHORITIES
2 Cases
3 Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534 .............................3
Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334...............................................11
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Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312 3
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Griffith Co. v. San Diego Col. For Woman (1955) 45 Cal.2d 501 ................................................11
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Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431 ..........................................3
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Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 .............................................................2, 9, 10, 11
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Moshonov v. Walsh (2000) 22 Cal.4th 771....................................................................................11
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Statutes
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Cal. Code Civ. Pro. § 1286 ........................................................................................................3, 12
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Cal. Code Civ. Pro. § 1286.2 ...................................................................................................10, 11
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Cal. Code Civ. Pro. § 1286.6 ...................................................................................................10, 11
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 INTRODUCTION
2 Petitioner Reginald Hindley (“Hindley”) seeks to modify or vacate an arbitration award
3 issued by the Hon. W. Scott Snowden (Ret.) in which he found that Mark Epstein (“Epstein”) is
4 permitted to be a member of Sametc, LLC (“Sametc”) and/or otherwise own an interest in the 6-
5 unit TIC property located at 3300 Clay Street in San Francisco (the “Property”). Epstein was a
6 member of Seiler Epstein Ziegler & Applegate LLP, (“SEZA”) and represented Sametc in the
7 underlying arbitration. Hindley was represented by his own counsel, who submitted pleadings,
8 supplemental pleadings and participated in a preliminary conference and scheduling call with
Judge Snowden as well as the hearing that resulted in the award now being challenged. Judge
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Snowden, who was contractually and by court order given broad powers to hear disputes relating
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to the Property and to make final and binding decisions, read and considered the briefs and
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accompanying declarations and exhibits, and heard and considered the arguments of counsel and
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Hindley at the hearing. Hindley did not make any request to conduct discovery or have an in-
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person evidentiary hearing.
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Attorneys at Law
Hindley’s Petition seeking to modify or vacate the award, is not supported by the facts
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relating to the dispute or well-settled California law that an arbitrator’s decision is not reviewable
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for errors of fact or law except under extremely narrow circumstances.
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Hindley’s pleadings and supplemental pleadings filed to date in this matter are a
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confusing collection of partial truths, misrepresentations, and outright falsehoods. One such
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falsehood is Hindley’s repeated assertion that he was represented by SEZA, something he now
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states is “the core factual issue in this case.” This often-repeated misrepresentation amounts to a
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fraud on this Court and in making these repeated misrepresentations, Hindley has perjured
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himself.
23 Hindley is an original owner of the Property and purchased his interest in 2004.
24 Although intimately familiar with the facts and procedural history of this and other disputes
25 which are at the core of this matter (as well as being an experienced attorney and officer of the
26 Court), Hindley repeatedly misstates the procedural and factual history related to the Property
27 dispute, argues that inapplicable cases are relevant or controlling, and misstates the relevant
28 rulings of arbitrators and this Court. Tellingly, Hindley never refers to the seminal California
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 Supreme Court case on arbitrator authority/jurisdiction: Moncharsh v. Heily & Blase (1992) 3
2 Cal.4th 1. Moncharsh details California law for determining the extent of an arbitrator’s powers,
3 which start and end with what powers the parties contractually granted to the arbitrator (a subject
4 Hindley never addresses). It would be impossible to perform even cursory research on the issue
5 of arbitral review under California law and miss the controlling Moncharsh case.
6 But as shown below, Judge Snowden was given broad authority to address any and all
7 disputes related in any way to the Property or between the owners of the Property and to make
8 final and binding decisions. There is no merit to this Petition, and Judge Snowden’s Final Award
should be confirmed.
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CURRENT OWNERSHIP INTERESTS
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The Property is a six-unit apartment building located at Clay/Presidio Streets in San
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Francisco. Sametc owns Units 2, 3 and 6; Epstein owns Units 1 and 4; and Hindley owns Unit 5.
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Hindley, Sametc, Epstein and SEZA are collectively referred to as the “Parties.”
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STRUCTURE OF THIS OPPOSITION
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Attorneys at Law
To consider Hindley’s request that Judge Snowden’s Final Arbitration Award of October
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15, 2019 (“Final Award”) be corrected or vacated, there are five relevant areas of fact/law:
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1. The extent of Judge Snowden’s jurisdiction and his experience with the Property/Parties;
17 2. The truth and veracity of Hindley’s claims of being represented by SEZA;
3. California law applicable to the judicial review of Judge Snowden’s Final Award;
18 4. The procedural history of this matter, including arbitration and court orders at issue; and
19 5. An accurate reading of Judge Snowden’s Final Arbitration Award.
20 Sametc addresses each of these points in correspondingly numbered paragraphs below, as well as
21 some of the less developed and largely irrelevant allegations by Hindley in a Section 6 entitled
22 “Response to Hindley’s Other Allegations.”
23 ARGUMENT
24 1. Judge Snowden’s Jurisdiction & Experience with the Parties and the Property.
25 A. Judge Snowden Was Granted Extremely Broad Jurisdiction
26 Hindley’s claim that Judge Snowden did not have the power or jurisdiction to render the
Final Award is without merit because he granted Judge Snowden the very power he now
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challenges. In cases involving private arbitration: “[t]he scope of arbitration is ... a matter of
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agreement between the parties . . . .” Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v.
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 100 Oak Street (1983) 35 Cal.3d 312, 323. The court’s review of an arbitrator’s decision should
2 provide “substantial deference towards the arbitrator’s determination of his or her contractual
3 authority” and “is not subject to judicial review except on grounds set forth in [CCP] section
4 1286.” Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 443-444. All
5 reasonable inferences must be drawn in support of the award. Ajida Technologies, Inc. v. Roos
6 Instruments, Inc. (2001) 87 Cal.App.4th 534, 541.
7 There are five independent sources where Hindley granted Judge Snowden his
8 jurisdiction and authority, in addition to this Court’s 2015 order appointing Judge Snowden.
Each source is identified below with the operative language cited. These documents expressly
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provide that Hindley and the other owners are judicially and contractually obligated to resolve
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“any and all” disputes with Judge Snowden as the trier of fact and that his decisions are to be
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final and binding. Further, all rights to appeal his determinations have been waived except in
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very limited circumstances that do not exist here. Judge Snowden’s jurisdiction, by design, is
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extremely broad, all-inclusive, and final.
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(1) Judge Snowden’s Judicial Appointment – Retirement of Arbitrator Steven Block
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Prior to Judge Snowden’s appointment over five years ago, the Parties and their
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predecessors had another designated arbitrator, Steven Block of JAMS, assigned to hear and
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resolve all disputes. Declaration of Mark W. Epstein (Epstein Decl.), ¶ 1. Like Judge Snowden,
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Arbitrator Block was engaged early and often to hear and resolve disputes throughout his
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approximate four-year term. When Arbitrator Block retired in 2014, Hindley and former owner
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Ted Elms (“Elms”) refused to comply with his orders regarding the appointment of a new
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arbitrator or acknowledge the validity of the sale from former owner Scott Jacques (“Jacques”) to
22 Sametc. Id. ¶ 17. Sametc and former owner John Sollner (“Sollner”), who is a named
23 respondent in this action, were forced to file a Petition to Confirm the validity of the Jacques sale
24 before this Court in Action No. CPF 14-513720. The Petition resulted in Judge Quidachay
25 issuing both a Confirmation Order and an assessment of costs and attorney’s fees against
26 Hindley and Elms. Sametc Request for Judicial Notice, Exhibit A (Confirmation Order) and
27 Exhibit B (Attorney’s Fees Order). Even then, Hindley and Elms both continued to refuse to
28 arbitrate disputes related to the Property necessitating an additional Petition to Compel
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 Arbitration and the issuance of a further order compelling arbitration, assessing costs and fees,
2 and appointing Judge Snowden. The January 12, 2015 Order appointing Judge Snowden in
3 Action No. CPF 14-513996 (“Appointment Order”), is attached as Exhibit C to Sametc’s Request
4 for Judicial Notice.
5 (2) Judge Snowden’s Jurisdiction from Appointment Order
6 In the Appointment Order, this Court appointed Judge Snowden and provided him with
7 broad powers:
8 The assigned arbitrator (Judge Snowden) will also determine in the first instance
whether other disputes that may arise in the future sufficiently relate to the 3300
9 Clay Street tenancy-in-common to fall within the scope of the arbitration clauses of
10 the parties agreements, such that they can be resolved by arbitration without the need
for a further petition to compel.
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Id. pp. 2-3. Judge Snowden was and is affiliated with JAMS, previously having served as a
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judge and presiding judge on the Napa Superior Court for over fifteen years. A true and correct
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copy of Judge Snowden’s CV taken from the JAMS website is attached to the Epstein Decl. as
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Exhibit K.
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As noted above, the basis for Judge Snowden’s appointment was the contracts between
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the Property’s owners, the most comprehensive of which is the forty-eight-page Tenants in
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Common Agreement (“TICA”) between the Parties. A true and correct copy of the TICA for the
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Property is included in Hindley’s Amended Petition (“Hindley Petition”) as Attachment 4(c).
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The TICA expressly provided Judge Snowden the jurisdiction to hear all disputes related to the
20 Property with extremely limited and expressly identified exceptions. According to the TICA,
21 Judge Snowden has the following jurisdiction (all bold text other than the titles is added for
22 emphasis by Sametc):
23 • TICA 14.2 G: Deadlock. In the event of a deadlock, all matters shall be determined
through binding arbitration by the successor arbitrator to Steven Block, the Honorable W.
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Scott Snowden (Ret.).
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• TICA 14.10 ARBITRATION: Through an agreement entitled Four Way Agreement the
26 Cotenants have provided for the resolution of disputes through a designated arbitrator,
Steven Block. Mr. Block accepted employment with the California Department of Justice
27 and was required to resign .... Thereafter, the San Francisco Superior Court appointed
28 the Honorable Judge W. Scott Snowden (Ret.) as successor arbitrator. Accordingly, the
TC has a designated arbitrator for the resolution of disputes . . . .
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 A. Agreement to Arbitrate. Any dispute related to the Property which is not subject to
mediation and not resolved through mediation shall be submitted to binding
2 arbitration in accordance with the provisions of the California Civil and Code of
Civil Procedure pertaining to contract arbitration. No such dispute shall be resolved
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through court action except as specifically provided in this Agreement ...
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H. Statutory Notice.
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“YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO
6 HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU
ARE ALSO GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND
7 APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE
8 “ARBITRATION” PROVISION.
• TICA 14.11: MATTERS EXCLUDED FROM ARBITRATION. The following
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matters are excluded from … mandatory binding arbitration, but not from mediation: A.
10 … unlawful detainer; B. … Small Claims Act; C. … probate or domestic relations court;
D. … to compel arbitration or mediation . . . ; and E. … a notice of pending action . . .
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The TICA, which Hindley signed, could not have been clearer. Judge Snowden was vested with
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the jurisdiction and authority to determine all matters of dispute, in a binding manner, without
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the right to appeal or conduct discovery. The only exceptions are provided in Section 14.11.
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(3) Judge Snowden’s Authority from the November 4, 2013 Four Way Agreement
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In Section 14.10 of the TICA cited above, reference is made to the “Four Way
16 Agreement” (“FWA”) The FWA, misrepresented by Hindley to be a “retainer agreement,” was a
17 contract between the four owners in 2013 that resolved numerous disputes. The FWA is attached
18 as Exhibit C to the initial Hindley Declaration and Exhibit B to the Epstein Decl. One such
19 dispute was whether owners Jacques and Sollner who had retained SEZA to represent them in
20 litigation against WB Coyle (the original developer of the Property) and thereafter, to evict
21 squatters that Coyle had unlawfully placed into units 4 and 6, should be entitled to some
22 contribution from Hindley and Elms. Under the FWA, the Parties voluntarily agreed that since
23 SEZA’s efforts on behalf of its clients Jacques/Sollner were also benefitting the other owners,
24 Jacques and Sollner’s attorney’s fees incurred in those specific litigations would be shared
25 equally by all owners. As the FWA itself and Hindley’s admissions (set forth below) make clear,
26 the FWA was never a “retainer agreement” and SEZA never represented Hindley, Elms or the
27 TIC.
28 The powers and jurisdiction granted to the arbitrator under the FWA include:
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 Arbitrator’s Retention of Jurisdiction. The Arbitrator retains jurisdiction over
this matter as to all issues arising out of the TIC, this agreement and any other
2 issues that arise in the execution of both agreements.
3 FWA, Exhibit C to Hindley, Decl., p. 7, ¶ 12; Exhibit B to Epstein Decl. (emphasis added).
4 (4) Judge Snowden’s Authority from the March 27, 2015 Agreement to Pay NOAVs
5 Following the FWA, disputes continued between the Parties, including allegations that
6 Hindley had failed to pay thousands of dollars in TIC assessments, putting the TIC’s solvency at
7 stake. Ultimately a resolution was reached with Hindley, resulting in him paying $16,539 to the
8 TIC and signing a March 27, 2015 Agreement to Pay NOAVs (“NOAV Agreement”). A true
9 and correct copy of the NOAV Agreement is attached as Exhibit H to the Epstein Decl. (omitting
10 numerous exhibits). Once again, the NOAV Agreement also contained language acknowledging
11 Judge Snowden’s powers and authority:
Successor Arbitrator. The Parties expressly recognize the authority of Retired
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Judge Scott Snowden of JAMS as the successor arbitrator for the TIC and that he has
13 the authority to hear and resolve any and all disputes related in any way to the TICA,
the Four Way Agreement and this Agreement without further action or order of the
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Attorneys at Law
15 Id. at p. 4, ¶ 4.
16 (5) Judge Snowden’s Authority from the November 27, 2017 Settlement Agreement
and Related February 9, 2018 Order
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A few years after the NOAV Agreement, there was another dispute requiring significant
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arbitration proceedings between Hindley, Sollner and Sametc. The disputes were ultimately
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resolved during an arbitration before Judge Snowden and documented in a November 27, 2017
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Settlement Agreement (“Hindley Settlement Agreement”). Judge Snowden’s authority to hear
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disputes between the parties was again acknowledged in the Hindley Settlement Agreement and
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utilized a short time later when the Parties disputed what version of the TICA would apply going
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forward. Epstein Decl. ¶ 21.
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The Hindley Settlement Agreement specifically provided that if the Parties were unable
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to agree on a new TICA, each Party would submit their proposed TICA to Judge Snowden with
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supporting briefing and he would determine which document would be the operative TICA.
27 Hindley submitted his own version and Sollner/Sametc presented a jointly proposed TICA. As
28 set forth in the February 9, 2018 Order (“TICA Order”) included in the Hindley Petition as
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 Attachment 4(b), the TICA proposed by Sollner/Sametc “shall be the binding and effective TICA
2 for the 3300 Clay Street TIC.” Further, the TICA Order provides:
3 Pursuant to Court Order and the terms of the TICA, the Arbitrator shall
maintain jurisdiction to consider any challenges made by Reginald Hindley to the
4 amendments to the TICA as set forth in the Settlement Agreement or to hear any
further disputes between the Parties.
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6 Id. at p. 2, ¶5 (emphasis added). Importantly, Hindley’s proposed TICA, which Judge Snowden
7 rejected, included language that would have permanently prevented Epstein from owning an
interest in the Property. Id.
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B. Judge Snowden’s experience with the Property and the Parties
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Since his appointment over five years ago, Judge Snowden has arbitrated and mediated
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numerous disputes between the owners and has a deep and comprehensive appreciation for the
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relevant facts and history of the Parties and the Property. He has reviewed countless historical
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contract documents and emails from the Parties as arbitration exhibits and related submittals. He
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has heard the Parties’ testimony explaining the ownership history, the previous disputes and the
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Attorneys at Law
meaning of countless contracts and email exchanges. He has also held numerous conference
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calls with the Parties and often heard arguments related to various motions and discovery
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disputes. Through all of this, Judge Snowden has been able to learn the complicated history of
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the acquisition and development of the Property, its various ownership changes, the countless
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disputes, and importantly, has more than five years of history assessing the credibility of the
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Parties. Epstein Decl., ¶ 22.
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2. SEZA Never Represented Hindley.
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Hindley submitted a declaration under penalty of perjury and related pleadings that are
22 replete with false claims that SEZA represented him. There is no other way to address these
23 fabrications other than to say that Hindley is knowingly lying and committing a fraud on this
24 Court. Hindley has perjured himself and is unfortunately willing to say and do anything that
25 may get him the relief he improperly seeks in his Petition. Hindley represents:
26 • “Upon signing the agreement [FWA], I understood SEZA to be our counsel and advocate
representing the TIC owners, Sollner, Jacques, Elms and Hindley. … I have paid SEZA an
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estimated $110,000.” Hindley Decl., p. 5, lns 1-9.
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 • “Counsel Epstein, who was supposed to be our TIC counselor and attorney, was doing one
thing for Sollner/Jacques and another thing with Elms/Hindley.” Id., p. 6, lns 1-2.
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3 • “…Hindley’s former attorneys, . . . Epstein . . .SEZA . . .” Petitioner’s Memorandum, p. 7,
lns 4-7;
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• “. . . representation [legal] provided by Epstein and SEZA to TIC and Hindley . . .” Id. p. 7,
5 ln. 12;
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• “ . . . Epstein’s and SEZA’s ethical duties to Sollner and Hindley as former clients.” Id. p. 8,
7 lns. 16-17 (See additional examples of Hindley’s representations in Epstein Decl., ¶¶ 27-29);
8 • “. . . the core factual issues in this case is whether attorney Epstein and Sollner previously
represented Hindley or Hindley’s interests in the TIC as Arbitrator Block expressly found in
9 his award confirmed by the Judgement. Petitioner’s Memorandum at p. 26, lns. 18-21.
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These and many other noted misrepresentations are an attempted fraud on this Court and
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suggest other Hindley representations are likely fabrications as well. The proof of Hindley’s
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fraud is easily documented using his own often repeated statements quoted above and below and
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in the Declarations of Mark W. Epstein and Scott Jacques. A small portion of Hindley’s
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14 contradictory statements made at a time when he was not seeking the current relief include (all
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15 bold emphasis is added by Sametc):
16 • “SEZA’s loyalty has not been in the best interest of the TIC for the reason that SEZA does
17 not represent the TIC, SEZA only represents SAMETC, LLC, Mr. Jacques and Mr.
Sollner.” Reginald Hindley February 10, 2014 Arbitration Brief, p. 4, Exhibit F to Epstein
18 Decl.
19 • “Last March 2013, SEZA prepared and filed the Coyle squatter unlawful detainer complaints
under a retainer agreement only with Sollner and Jacques. Elms/Hindley were not
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included. Prior to that, SEZA came into the picture only representing John Sollner in
21 connection with another Coyle case . . .. SEZA then proceeded to represent only Sollner
and Jacques in confirmation of the arbitration award, not Elms or Hindley.” Id.
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• “Because Elms/Hindley technically are not clients of SEZA there would be no violation of
23 Rule 3-310.” Id. at p. 6.
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• “Because the retainer agreement is held by Sollner/Jacques/Sametc, Hindley cannot
25 terminate SEZA without further legal action.” Id. p. 3, (5).
26 • “Your firm already had a client relationship with Mr. Sollner in #179 adverse to other TIC
members. You therefore were never representing Elm’s Hindley’s interest. . . . My
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position has no reason to change as your firm does not represent Mr. Elms or Hindley.”
28 May 20, 2014 email from Hindley to Mark Epstein in response to email of the same date
from Mark Epstein to Hindley (See, immediately below); Exhibit M to Epstein Declaration.
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SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD
CASE NO. CPF 19-516917
1 • “John [Sollner] and Scott [Jacques] (now Sametc) are this firm’s clients and the Four Way
covers how this litigation works. For the same reasons Mr. Klemenko could not continue
2 to represent your entire group, this firm likewise could not and would not represent you
3 [Hindley] and Ted [Elms].” Id.
4 An additional piece of evidence further documents the lack of candor in Hindley’s current
5 representations. Judge Snowden was previously faced with the very claim Hindley is now
6 making (that SEZA represented him) when Elms (initially with Hindley’s support), sought to
7 disqualify SEZA from representing Sollner/Sametc in a previous 2015 arbitration. After
8 extensive briefing and evidentiary hearings, Judge Snowden issued a July 15, 2015 Order
9 (“Legal Representation Order”) rejecting the very theory Hindley now again advances. The
Legal Representation Order concludes:
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[…] Respondents were never represented by SEZA . . . not only did Respondents not
11 believe that they and SEZA had an attorney client relationship, but also, Respondents
12 did not seek, nor did SEZA provide them with, any legal advice.
Legal Representation Order, pp 4-5, Epstein Decl., Exhibit Q. The Legal Representation Order
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was served on Hindley at his home address in 2015 and via email and he has known about Judge
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Snowden’s rejection of his current claim for over five years. Epstein Decl., 29. Understandably,
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Hindley did not advance the claim he makes to this Court, that SEZA represented him, in the
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underlying proceeding before Judge Snowden. Why? Because Hindley knew the issue had
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already been presented to Judge Snowden who rejected the claim.
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In spite of Hindley’s numerous admissions that he was never represented by SEZA, as
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well as the Legal Representation Order rejecting that claim, Hindley has here submitted a
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declaration under penalty of perjury and numerous pleadings to this Court claiming something he
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knows to be patently untrue.
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3. California Law Establishing the Power and Authority of an Arbitrator is Clear.
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A. The California Supreme Court
24 The California Supreme Court’s seminal ruling in Moncharsh, is the beginning and end
25 point for the consideration of Judge Snowden’s arbitral powers and in understanding the
26 extremely limited circumstances under which any court can properly review, modify, or vacate
27 his Final Award. The Court’s first sentence in the opinion leaves no doubt that it applies here:
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CASE NO. CPF 19-516917
1 “We granted review in this case to decide, inter alia, the extent to which a trial court may review
2 an arbitrator’s decision for errors of law.” 3 Cal.4th 1.
3 In Moncharsh, the Court provided an in-depth historical analysis of contractual
4 arbitration jurisdiction and authority, specifically where the ruling is wrong under California law
5 and resulted in an injustice to one of the parties. The decision further provides clear parameters
6 for the limited situations where it is appropriate for this Court to modify or vacate Judge
7 Snowden’s Final Award. The Moncharsh Court expressly held that in California, an arbitrator’s
8 decision is not generally reviewable for errors of fact or law, even if such errors appear on the
face of the award and cause substantial injustice to the parties. Id. Finally, the Court held that
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only extremely limited review, correction or vacation of an award was permissible, and only as
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provided in CCP section 1286.2 to vacate or 1286.6 to correct. Id. at 33.
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Moncharsh was a contractual arbitration dispute in which the arbitrator made rulings in
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favor of a law firm (Heily & Blase), based on allegations of a breach of contract by one of its
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SEILER EPSTEIN LLP
attorneys (Moncharsh). When Moncharsh petitioned the superior court to vacate and modify the
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Attorneys at Law
arbitrator’s award, the trial court, followed by the court of appeal, upheld th