Preview
846509
KEKER & VAN NEST LLP
JOHN W. KEKER - # 49092
jkeker@kvn.com
WARREN A. BRAUNIG - # 243884
whraunig@kvn.com
BENJAMIN BERKOWITZ - # 244441
bberkowitz@kvn.com
ABHISHEK BAJORIA - #255294
abajoria@kyn.com
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415 391 5400
Facsimile: 415 397 7188
MYERS URBATSCH P.C.
PETER S. MYERS - # 115113
psmyers@myersurbatsch.com
MATTHEW R. MRAULE - # 263433
mmraule@myersurbatsch.com
625 Market Street, 4th Floor
San Francisco, California 94105
Phone: (415) 896-1500
Fax: (415) 979-0761
Attorneys for Petitioner and Respondent
BRUCE H. QVALE, FAMILY TRUSTEE
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
JUL 17 2014
Clerk of the Court
BY: NOELIA RIVERA
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
In the Matter of the
Kathryn C. Qvale Exempt Marital Trust,
dated January 31, 2006
Miles Jeffrey Qvale, individually and as
trustee,
VS.
Bruce H. Qvale, Laura Hiura, and Does 1-10
Case No. PTR-13-297016
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF RESPONDENT’S MOTION
TO STRIKE PETITION TO REMOVE,
SUSPEND, AND INSTRUCT CO-
TRUSTEE
Date: July 24, 2014
Time: 2:00 p.m.
Dept.: Probate, Room 204
Date approved by Ella
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT'S
MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE
Case No. PTR-13-297016846509
Pursuant to Evidence Code sections 452 and 453 and California Rule of Court 3.1306(c),
respondent Bruce H. Qvale requests that this Court take judicial notice of Exhibit A hereto in
support of respondent’s Motion to Strike Miles Jeffrey Qvale’s Petition to Remove, Suspend and
instruct his Co-Trustees. Exhibit A is a true and correct copy of excerpts of the rough transcript
of the deposition of petitioner Miles Jeffrey Qvale, taken on July 8, 2014.
California Evidence Code § 452(h) states that judicial notice may be taken of “[flacts and
propositions that are not reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.” In addition, Section 453
states that the Court must take judicial notice of matters under Section 452 if a party requests it
and the party has (a) provided sufficient notice to each adverse party through the pleadings or
otherwise to enable such adverse party to prepare to meet the request; and (b) furnished the Court
with sufficient information to enable it to take judicial notice of the matters requested. Evid.
Code § 453. Here, respondents do not seek judicial notice of petitioner’s deposition for the
“truth” of his testimony, but merely for the fact of his refusal to answer questions based upon his
invocation of his privilege against self-incrimination under the Fifth Amendment. See Jostin v.
HLA.S. Ins. Brokerage, 184 Cal. App. 3d 369, 375 (1986): see also Singh v. Superior Court, 140
Cal. App. 4th 387, 391 (2006) (taking judicial notice of deposition testimony).
For the foregoing reasons, respondent respectfully requests that the Court take judicial
notice of Exhibit A in connection with Respondent’s Motion to Strike Miles Jeffrey Qvale’s
Petition to Remove, Suspend, and Instruct his Co-Trustees.
Dated: July 17, 2014 KEKER & VAN NEST LLP
By: _/s/ Benjamin Berkowitz
BENJAMIN W. BERKOWITZ
Attorneys for Petitioner and Respondent
BRUCE H. QVALE, FAMILY TRUSTEE
1
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT'S
MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE
Case No. PTR-13-297016EXHIBIT AROUGH Jeff Qvale ROUGH July 8, 2014
ROUGH DRAFT DISCLAIMER
LORRIE L. MARCHANT
CERTIFIED SHORTHAND REPORTER, CSR No. 10523
RPR, CRR, CCRR, CLR, RMR
DEPOSITION OF: Jeff Ovale
DATE: 7/8/2014
It is understood by all attorneys and/or their
staff using, saving onto a hard computer disk, or
receiving a Livenote/Realtime ASCII or e-mailed
rough draft transcript that:
1. The following is an unedited rough draft
transcript. Various corrections and/or changes may
be made before the final version is complete. The
use of this rough draft transcript is limited by
C.C.P. 2025.540(b). This reporter, as well as any
affiliated court reporting agency, will not be
responsible for any variance of this draft from the
final transcript.
2. Because of the nature of stenographic
outlines, differences WILL exist between the
Livenote/Realtime rough draft copy and the certified
transcript prepared by the reporter. Those
differences will include the following, among
others:
a. Words may change;
b. Page and line numbers may change;
ce. Punctuation may change; and/or
d. Quotes may change.
3. Providing a Livenote/Realtime ASCII
and/or e-mail or saving Livenote/Realtime onto a
computer hard drive will only be provided when a
certified copy is purchased and there will be a
charge for the Livenote/Realtime rough transcript in
addition to the charge for the certified copy.
ACCEPTANCE OF THIS REALTIME DRAFT
IS AN AUTOMATIC FINAL COPY ORDER.
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THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH July 8, 2014
1 more than three.
2 Q. Where were these visits conducted? Were
3 they at his house?
4 A. Yes.
5 a. Any of them in the hospital?
6 A. Some were. Most were in the -- in the
7 house. JT think I was -- saw him once or twice in
8 the hospital.
9 Q. Do you remember when you saw him in the
10 hospital?
11 A. Tt was sometime in February, but I don't
12 remember the exact date.
13 Q. Do you remember why you saw him in the
14 hospital?
15 A. Because he was there and he was sick.
16 Q. What was he sick with?
1? A. T'm not sure at that time what it was, but
18 I might have been a urinary situation or something
19 like that.
20 Q. After visiting him in the hospital did you
21 then subsequently visit him a few days later at
22 home?
23 A. Yes.
24 Q. Did you tape the conversation that you had
25 with him when you visited him at home?
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1 MR. CAMPISI: As a matter of caution I'm
2 going to instruct you net to answer on the grounds
3 of your right not to incriminate yourself and direct
4 to you take the fifth amendment on this issue.
5 THE WITNESS: So on advice of counsel, I
6 cefuse to answer under the grounds of the fifth
7 amendment .
8 BY MR. KEKER:
9 Q. Okay. You have produced two tapes in this
10 case. Can you tell us what dates those tapes were
11 made?
12 MR. CAMPIST: As I stated before as an
13 exercise of caution, I'm going to direct you not to
14 answer and to assert your fifth amendment privilege.
15 BY MR. KEKER:
16 Q. Are you aware that taping a person without
17 their consent is illegal in California?
18 MR. CAMPISI: Again, in an exercise of
19 caution, I'm going to direct you not to answer and
20 to assert your Fifth Amendment privilege.
21 THE WITNESS: Do you want me to say it
22 every time?
23 BY MR. KEKER:
24 Q. Please do. Are you going to take the Fifth
25 Amendment on these questions? Just say so. I take
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July 8, 2014ROUGH Jeff Qvale ROUGH July 8, 2014
1 the fifth?
2 A. Yes.
3 Q. Just like Joe McCarthy.
4 A. On advice of counsel I'm going to invoke
5 the Fifth Amendment.
6 Qo. Okay. When you visited your father, did
7 you always tape him after the family meeting?
8 MR. CAMPISI: In an exercise of caution,
9 I'm going to instruct you not to answer that it
19 might incriminate you under the Fifth Amendment.
1L MR. KEKER: Well, I do think that we're
12 entitled to know -- well, first, let me ask you a
13 few more questions.
14 BY MR. KEKER:
15 Q. Are you aware of taping of your father by
16 others?
1? A. No.
18 Q. Did your son Chris record, tape or
19 videotape your father?
20 A. I think he might have videotaped a sales
21 meeting or a meeting at the office one time.
22 Q. Do you know --
23 A. But that's ali I know of.
24 Q. Do you know whether or not your son Chris
25 attend or videotaped or otherwise recorded your
THORSNES LITIGATION SERVICES, LLC | 877.771.3312) | www.thorsnes.comROUGH Jeff Qvale ROUGH
1 father at any time after this family meeting in
2 2013?
3 A. No. I don't believe so. I don't know
4 anything about it.
5 MR. CAMPISI: Between, have you to waited
6 until he answers.
7 THE WITNESS: Sorry.
8 MR. CAMPISTI: You're running over him.
9 It's not polite.
10 THE WITNESS: Sorry.
11 BY MR. RKEKER:
12 a. Did you or anyone, to your knowledge, tape
13 Laura Hiura or record a conversation with her?
La DE ALT LE pnd LO
15 Q. Did you ever ask your father for possession
16 to record your conversation with him?
17 MR. CAMPIST: In 18 exercise of caution I'm
18 going to direct to you assert your Fifth Amendment
19 rights with respect to this question.
20 THE WITNESS: So I assert my fifth
21 amendment rights on advice of counsel.
22 BY MR. KEKER:
23 Q. Okay. Can we have the patent or invalidity
24 put in front of Mr. Qvale, please. And we'll use
25 one at 1297016.
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July 8, 2014ROUGH Jeff Qvale ROUGH July 8, 2014
1 A. Yes.
2 a. And you signed it?
3 A. Yes.
4 a. Look at paragraph 49, please. It says Jeff
5 spoke to his father on February 19, 2013. Did you
6 tape that meeting?
7 MR. CAMPISI: Again, I -- in an exercise of
8 caution I'll directing you not to answer on the
9 grounds of the Fifth Amendment.
10 THE WITNESS: I invoke the fifth amendment
AL on the advice of my attorney.
12 BY MR. RKEKER:
13 Qo. Paragraph 51, there's a statement that says
14 on February 25, 2013 Jeff returned to visit his
15 father. Did you tape that meeting?
16 A. No.
1? Q. Why not?
18 A. IT don't know. I just didn't.
19 Q. There is a reference at paragraph 52, last
20 sentence says, in May of 2013 Jeff visited his
21 father and Kjell volunteered that he had made a
22 mistake and there was nothing he could do about it
23 and so on. Did you tape that meeting?
24 A. No.
25 Q. Did you tape any other meeting besides the
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1 one on February 19, 2013 which you have invoked the
2 Fifth Amendment on and refuse to tell us whether or
3 not you attend? I understand that. Did you tape
4 any other meeting?
5 MR. CAMPISI: Okay. I -- I move to strike
6 the preamble. If you want to rephrase the question.
7 MR. KEKER: No.
8 MR. CAMPISTI: Okay. Because of the
9 preamble, I am going to there an exercise of
19 caution, direct you and advise you to take the Fifth
11 Amendment as to this issue.
12 THE WITNESS: So on advice of counsel, I
13 invoke the fifth.
14 BY MR. KEKER:
15 Q. Okay. Mr. Ovale, do you love your brother,
16 Bruce?
17 A. That's a good question. I did. I'm not
18 sure how much now.
19 Q. Do you hate your brother, Bruce?
20 A. No.
21 Q. What are your feelings towards your
22 brother, Bruce?
23 A. I'm rather ambivalent. I -- I don't hate
24 him or love him that much right now.
25 Q. Do you think you and your brother Bruce
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1 regard.
2 Q. You've never had a discussion with your
3 father, maybe a attend discussion, in which you
4 talked about interest on the notes with your father?
5 MR. CAMPISI: Again, in an excess of
6 caution, I'm directing you not to answer on the
7 grounds that it may tend to incriminate you under
8 the Fifth Amendment. So you advise you to take the
9 Fifth Amendment on.
10 THE WITNESS: I invoke the Fifth, as per my
Ld lawyer's instructions.
12 BY MR. RERER:
13 Qo. Are you on tape telling your father --
14 recordings that you made telling your father that
15 these notes had been for given and your father
16 saying well I agreed that he could only pay
17 interested on them?
18 MR. CAMPISI: Again, in an excess of
19 caution, I am directing you to exercise your rights
20 under the Fifth Amendment to remain silent as to
21 this question.
22 BY MR. KEKER:
23 Q. Okay.
24 A. I wish to remain silent based on the Fifth
25 Amendment.
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1 least remember that he had signed anything to change
2 his will in that regard.
3 And so I questioned the situation in saying
4 well you did and if you did, it seems as though you
5 signed something that you are not sure of and you're
6 not aware of and doesn't match with what you're
7 telling me now. Therefore, I guess you were helped
8 to sign it or contributed to sign it by Laura's
9 helping you do that. And that's -- was the issue
190 that came up.
11 Qo. Are you testifying now about a conversation
12 which you taped without your father's consent?
13 MR. CAMPISI: In an excess of caution, I'm
14 going to direct you not to answer under the Fifth
15 Amendment.
16 THE WITNESS: Okay. I'm not answering
17 under the Fifth Amendment.
18 BY MR. KEKER:
19 Q. Other than what you've told us about Laura
20 meeting with Kjell in December and January of
21 2012/'13, is there anything else that you rely on
22 for your allegation that she engaged in conduct by
23 which the mind of Kjell was subjugated to her will?
24 A. The activities in January. That's --
25 that's it.
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1 A. This was -~- on February 20th. I believe
2 that was the day that I -- one of the days that I
3 went to talk to my father about it. And he was -~-
4 on that day he was indicating that he didn’t agree
5 with what had been done. That's what he indicated
6 to me. So -- or this was the day after that I spoke
7 to my dad about it, I think.
8 a. There is the day after you attend a
9 conversation with your dad?
10 MR. CAMPIST: I on an excess of caution
11 I'll directing you not to answer under your Fifth
12 Amendment privilege.
13 THE WITNESS: I exercise my privilege as
14 per my attorney.
I5 BY MR. KEKER:
16 Q. Okay. Can you tell us why you were having
17 this conversation with your brother?
18 A. Because on the previous day, my dad had
19 indicated he didn't agree with the fact that the
20 notes that were given to Bruce in January should be
21 given to Bruce. That's not had you I had understood
22 it and I had said well, that's what you did. As far
23 as I understood. And he said well, we should calli
24 Jordan and talk about it. So we called Jordan on
25 the phone and he expressed those feelings to Jordan
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1 on the phone and said that from I understood I
2 didn't hear both sides of the conversation, but I
3 heard half of it, and that it seemed, like, Jordan
4 was going to come and talk to him about it, that he
5 ought to come and talk to him about it. And remove
6 that conversation at some point I left and I went to
7 get a bite to eat and came back and Laura was there
8 with him talking to him about what he had done. And
9 there was a lot of confusion as to -- in his mind as
10 to what was done.
11 He didn't express an understanding of it
12 and he didn't like it. And he was getting agitated
13 about it. And at some point he began to get
14 confused, and at that point we stopped the
15 conversation, Laura was there. I was there. He was
16 there. And I think Laura left and then I left
17 shortly thereafter because he was becoming upset and
18 confused about the situation. So we deemed it
19 wasn't prudent to continue or necessary to continue
20 the discussion.
21 Q. You're talking about a conversation on
22 February 19 --
23 A. That happened before this day.
24 Q. And this is the conversation that I've
25 asked you five times whether or not you attend and
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July 8, 2014ROUGH Jeff Qvale ROUGH
1 you've taken the Fifth, you're going to take the
2 Fifth again, I take it?
3 THE WITNESS: Yes.
4 MR. CAMPISI: Yes, I exercise the caution
5 since you keep bringing it up I will advise you to
6 asserted your Fifth Amendment privileges.
a BY MR. RKERKER:
8 a. And now you say the Laura was there?
9 THE WITNESS: I'm going to assert my Five
10 Amendment privileges.
11 BY MR. REKER:
12 QO. Laura was there?
13 MR. CAMPIST: Was there where? What are
14 you talking about?
15 BY MR. KEKER:
16 Q. At this meeting, this conversation.
17 MR. CAMPISI: He just explained --
18 THE WITNESS: Later in the day after we had
19 called Jordan on the phone and after he had
20 indicated he wasn't clear and happy with the
21 situation then Laura arrived at the house after
22 that. And she was in a meeting with me and him for
23 a short period of time.
24 BY MR. KEKER:
25 Q. And what was said in that meeting that
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July 8, 2014ROUGH Jeff Qvale ROUGH July 8, 2014
1 MR. KEKER: Could we mark this as next in
2 order, please.
3 (Marked for identification purposes,
4 Exhibit 20.)
5 BY MR. KEKER:
6 a. You can put that document aside and just
7 look at 20.
8 A. This one?
9 oO. Yeah. Give it back to the court reporter,
10 please.
11 Do you recognize Exhibit 20?
12 A I do.
13 o Do you recognize the handwriting?
14 A. Yes.
15 QO Whose is it?
16 A It's mine.
17 Qo Do you know when you made these notes?
18 A. I think I made them in February after one
19 of our meetings discussing these issues.
20 Q. So after one of the meetings you had with
21 your father?
22 A. Yes.
23 Q. Do you remember which meeting?
24 A. No.
25 Q. Was it one you attend?
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1 MR. CAMPISI: Again, in an excess of
2 caution, I'm going to direct you to exercise your
3 Fifth Amendment rights.
4 THE WITNESS: I exercise my Fifth Amendment
5 vights regarding that question.
6 BY MR. KEKER:
7 QO. The first entry is loans from QAG/BMC to
8 KHO estate to be paid back. The next says 25 to
9 $30 million. Can you explain why you made that note
10 and what it means?
11 A. He -- I made that note and I may not have
12 had the number correct because I wasn't informed of
13 all the details of the various notes, but that was
14 his main -- one of his main contentions was Point 1
15 and Point 2, that the cash that went to Florida
16 would not be forgiven.
17 The only reason that that came up was that
18 he didn't agree with it and I didn't understand the
19 specifics of all this because I hadn't been shown
20 it, but that he insisted that those notes regarding
21 the Florida store were supposed to be paid back.
22 That's why I kept questioning what was going on.
23 Q. Did you tell him that those loans were 25
24 or $30 million?
25 A. I may have. You may have been lumping
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July 8, 2014ROUGH Jeff Qvale ROUGH July 8, 2014
1 A. I don't remember if we discussed the exact
2 rate, but I know it was a low rate.
3 a. Did he tell you that it was 2 percent rate
4 was he aware that it was a 2 percent rate?
5 A. I don't think we made a specific number but
6 we knew it was a very low family interactive rate.
7 oO. Did he tell you that Bruce and he had
8 discussed paying interest only at that 2 percent
9 rate?
10 A. No. He just was -- he was mad that he had
11 heard that he stopped paying out telling him.
12 a. Did he mention that he was getting -- that
13 they were paying a couple hundred thousand dollars a
14 year on a 10 million-dollar note?
15 A. Whatever the interest was would have been
16 whatever the interest was.
1? Q. Well, did he tell that you? Did he seem
18 aware of what the interest payment was?
19 A. He seemed somewhat aware of what the
20 interest payment was, yes.
21 Q. Is this a conversation that you taped?
22 MR. CAMPISI: In an excess of caution, I'm
23 going to direct you not to answer under the Fifth
24 Amendment and exercise your privilege to remain
25 silent.
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1 THE WITNESS: I exercise my right to remain
2 silent.
3 BY MR. KEKER:
4 a. Did you attempt to persuade your father in
5 February of 2013 that instead of these notes being
6 outstanding and the interest being paid on them they
7 had been, quote, forgiven, close quote?
8 A. I'm sure that I discussed with him the fact
9 that they had been given to Bruce and that at that
10 time, as I think I already have said, I explained to
11 him that it was as if they were forgiven. Because
12 he pays them back to himself.
13 QO. When Kjell died, what percentage of
14 property and bonds and marketable securities was
15 Bruce going to get?
16 A. As you have seen in the documents and
17 stated, it was not to be any of that.
18 Q. Okay. All the property, all the bonds, ail
19 the marketable securities and certain other assets
20 were going to go to you exclusively; right?
21 A. Net of whatever the taxes might be.
22 Q. Certain notes were going to go on Kjell's
23 death to Bruce exclusively; right?
24 A. Yes.
25 Q. Did you discuss that with your father?
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e-mailed rough also; right?
MR. BRAUNIG: Please, yeah.
(Deposition concluded at 4:45 p.m.)
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846509 KEKER & VAN NEST LLP JOHN W. KEKER - # 49092 jkeker@kvn.com WARREN A. BRAUNIG - # 243884 whraunig@kvn.com BENJAMIN BERKOWITZ - # 244441 bberkowitz@kvn.com ABHISHEK BAJORIA - #255294 abajoria@kyn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188 MYERS URBATSCH P.C. PETER S. MYERS - # 115113 psmyers@myersurbatsch.com MATTHEW R. MRAULE - # 263433 mmraule@myersurbatsch.com 625 Market Street, 4th Floor San Francisco, California 94105 Phone: (415) 896-1500 Fax: (415) 979-0761 Attorneys for Petitioner and Respondent BRUCE H. QVALE, FAMILY TRUSTEE ELECTRONICALLY FILED Superior Court of California, County of San Francisco JUL 17 2014 Clerk of the Court BY: NOELIA RIVERA Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO In the Matter of the Kathryn C. Qvale Exempt Marital Trust, dated January 31, 2006 Miles Jeffrey Qvale, individually and as trustee, VS. Bruce H. Qvale, Laura Hiura, and Does 1-10 Case No. PTR-13-297016 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT’S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO- TRUSTEE Date: July 24, 2014 Time: 2:00 p.m. Dept.: Probate, Room 204 Date approved by Ella REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT'S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE Case No. PTR-13-297016846509 Pursuant to Evidence Code sections 452 and 453 and California Rule of Court 3.1306(c), respondent Bruce H. Qvale requests that this Court take judicial notice of Exhibit A hereto in support of respondent’s Motion to Strike Miles Jeffrey Qvale’s Petition to Remove, Suspend and instruct his Co-Trustees. Exhibit A is a true and correct copy of excerpts of the rough transcript of the deposition of petitioner Miles Jeffrey Qvale, taken on July 8, 2014. California Evidence Code § 452(h) states that judicial notice may be taken of “[flacts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” In addition, Section 453 states that the Court must take judicial notice of matters under Section 452 if a party requests it and the party has (a) provided sufficient notice to each adverse party through the pleadings or otherwise to enable such adverse party to prepare to meet the request; and (b) furnished the Court with sufficient information to enable it to take judicial notice of the matters requested. Evid. Code § 453. Here, respondents do not seek judicial notice of petitioner’s deposition for the “truth” of his testimony, but merely for the fact of his refusal to answer questions based upon his invocation of his privilege against self-incrimination under the Fifth Amendment. See Jostin v. HLA.S. Ins. Brokerage, 184 Cal. App. 3d 369, 375 (1986): see also Singh v. Superior Court, 140 Cal. App. 4th 387, 391 (2006) (taking judicial notice of deposition testimony). For the foregoing reasons, respondent respectfully requests that the Court take judicial notice of Exhibit A in connection with Respondent’s Motion to Strike Miles Jeffrey Qvale’s Petition to Remove, Suspend, and Instruct his Co-Trustees. Dated: July 17, 2014 KEKER & VAN NEST LLP By: _/s/ Benjamin Berkowitz BENJAMIN W. BERKOWITZ Attorneys for Petitioner and Respondent BRUCE H. QVALE, FAMILY TRUSTEE 1 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT'S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE Case No. PTR-13-297016EXHIBIT AROUGH Jeff Qvale ROUGH July 8, 2014 ROUGH DRAFT DISCLAIMER LORRIE L. MARCHANT CERTIFIED SHORTHAND REPORTER, CSR No. 10523 RPR, CRR, CCRR, CLR, RMR DEPOSITION OF: Jeff Ovale DATE: 7/8/2014 It is understood by all attorneys and/or their staff using, saving onto a hard computer disk, or receiving a Livenote/Realtime ASCII or e-mailed rough draft transcript that: 1. The following is an unedited rough draft transcript. Various corrections and/or changes may be made before the final version is complete. The use of this rough draft transcript is limited by C.C.P. 2025.540(b). This reporter, as well as any affiliated court reporting agency, will not be responsible for any variance of this draft from the final transcript. 2. Because of the nature of stenographic outlines, differences WILL exist between the Livenote/Realtime rough draft copy and the certified transcript prepared by the reporter. Those differences will include the following, among others: a. Words may change; b. Page and line numbers may change; ce. Punctuation may change; and/or d. Quotes may change. 3. Providing a Livenote/Realtime ASCII and/or e-mail or saving Livenote/Realtime onto a computer hard drive will only be provided when a certified copy is purchased and there will be a charge for the Livenote/Realtime rough transcript in addition to the charge for the certified copy. ACCEPTANCE OF THIS REALTIME DRAFT IS AN AUTOMATIC FINAL COPY ORDER. Page | THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH July 8, 2014 1 more than three. 2 Q. Where were these visits conducted? Were 3 they at his house? 4 A. Yes. 5 a. Any of them in the hospital? 6 A. Some were. Most were in the -- in the 7 house. JT think I was -- saw him once or twice in 8 the hospital. 9 Q. Do you remember when you saw him in the 10 hospital? 11 A. Tt was sometime in February, but I don't 12 remember the exact date. 13 Q. Do you remember why you saw him in the 14 hospital? 15 A. Because he was there and he was sick. 16 Q. What was he sick with? 1? A. T'm not sure at that time what it was, but 18 I might have been a urinary situation or something 19 like that. 20 Q. After visiting him in the hospital did you 21 then subsequently visit him a few days later at 22 home? 23 A. Yes. 24 Q. Did you tape the conversation that you had 25 with him when you visited him at home? Page 12 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH 1 MR. CAMPISI: As a matter of caution I'm 2 going to instruct you net to answer on the grounds 3 of your right not to incriminate yourself and direct 4 to you take the fifth amendment on this issue. 5 THE WITNESS: So on advice of counsel, I 6 cefuse to answer under the grounds of the fifth 7 amendment . 8 BY MR. KEKER: 9 Q. Okay. You have produced two tapes in this 10 case. Can you tell us what dates those tapes were 11 made? 12 MR. CAMPIST: As I stated before as an 13 exercise of caution, I'm going to direct you not to 14 answer and to assert your fifth amendment privilege. 15 BY MR. KEKER: 16 Q. Are you aware that taping a person without 17 their consent is illegal in California? 18 MR. CAMPISI: Again, in an exercise of 19 caution, I'm going to direct you not to answer and 20 to assert your Fifth Amendment privilege. 21 THE WITNESS: Do you want me to say it 22 every time? 23 BY MR. KEKER: 24 Q. Please do. Are you going to take the Fifth 25 Amendment on these questions? Just say so. I take Page 13 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.com July 8, 2014ROUGH Jeff Qvale ROUGH July 8, 2014 1 the fifth? 2 A. Yes. 3 Q. Just like Joe McCarthy. 4 A. On advice of counsel I'm going to invoke 5 the Fifth Amendment. 6 Qo. Okay. When you visited your father, did 7 you always tape him after the family meeting? 8 MR. CAMPISI: In an exercise of caution, 9 I'm going to instruct you not to answer that it 19 might incriminate you under the Fifth Amendment. 1L MR. KEKER: Well, I do think that we're 12 entitled to know -- well, first, let me ask you a 13 few more questions. 14 BY MR. KEKER: 15 Q. Are you aware of taping of your father by 16 others? 1? A. No. 18 Q. Did your son Chris record, tape or 19 videotape your father? 20 A. I think he might have videotaped a sales 21 meeting or a meeting at the office one time. 22 Q. Do you know -- 23 A. But that's ali I know of. 24 Q. Do you know whether or not your son Chris 25 attend or videotaped or otherwise recorded your THORSNES LITIGATION SERVICES, LLC | 877.771.3312) | www.thorsnes.comROUGH Jeff Qvale ROUGH 1 father at any time after this family meeting in 2 2013? 3 A. No. I don't believe so. I don't know 4 anything about it. 5 MR. CAMPISI: Between, have you to waited 6 until he answers. 7 THE WITNESS: Sorry. 8 MR. CAMPISTI: You're running over him. 9 It's not polite. 10 THE WITNESS: Sorry. 11 BY MR. RKEKER: 12 a. Did you or anyone, to your knowledge, tape 13 Laura Hiura or record a conversation with her? La DE ALT LE pnd LO 15 Q. Did you ever ask your father for possession 16 to record your conversation with him? 17 MR. CAMPIST: In 18 exercise of caution I'm 18 going to direct to you assert your Fifth Amendment 19 rights with respect to this question. 20 THE WITNESS: So I assert my fifth 21 amendment rights on advice of counsel. 22 BY MR. KEKER: 23 Q. Okay. Can we have the patent or invalidity 24 put in front of Mr. Qvale, please. And we'll use 25 one at 1297016. Page 15 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.com July 8, 2014ROUGH Jeff Qvale ROUGH July 8, 2014 1 A. Yes. 2 a. And you signed it? 3 A. Yes. 4 a. Look at paragraph 49, please. It says Jeff 5 spoke to his father on February 19, 2013. Did you 6 tape that meeting? 7 MR. CAMPISI: Again, I -- in an exercise of 8 caution I'll directing you not to answer on the 9 grounds of the Fifth Amendment. 10 THE WITNESS: I invoke the fifth amendment AL on the advice of my attorney. 12 BY MR. RKEKER: 13 Qo. Paragraph 51, there's a statement that says 14 on February 25, 2013 Jeff returned to visit his 15 father. Did you tape that meeting? 16 A. No. 1? Q. Why not? 18 A. IT don't know. I just didn't. 19 Q. There is a reference at paragraph 52, last 20 sentence says, in May of 2013 Jeff visited his 21 father and Kjell volunteered that he had made a 22 mistake and there was nothing he could do about it 23 and so on. Did you tape that meeting? 24 A. No. 25 Q. Did you tape any other meeting besides the Page 17 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH July 8, 2014 1 one on February 19, 2013 which you have invoked the 2 Fifth Amendment on and refuse to tell us whether or 3 not you attend? I understand that. Did you tape 4 any other meeting? 5 MR. CAMPISI: Okay. I -- I move to strike 6 the preamble. If you want to rephrase the question. 7 MR. KEKER: No. 8 MR. CAMPISTI: Okay. Because of the 9 preamble, I am going to there an exercise of 19 caution, direct you and advise you to take the Fifth 11 Amendment as to this issue. 12 THE WITNESS: So on advice of counsel, I 13 invoke the fifth. 14 BY MR. KEKER: 15 Q. Okay. Mr. Ovale, do you love your brother, 16 Bruce? 17 A. That's a good question. I did. I'm not 18 sure how much now. 19 Q. Do you hate your brother, Bruce? 20 A. No. 21 Q. What are your feelings towards your 22 brother, Bruce? 23 A. I'm rather ambivalent. I -- I don't hate 24 him or love him that much right now. 25 Q. Do you think you and your brother Bruce Page 18 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH July 8, 2014 1 regard. 2 Q. You've never had a discussion with your 3 father, maybe a attend discussion, in which you 4 talked about interest on the notes with your father? 5 MR. CAMPISI: Again, in an excess of 6 caution, I'm directing you not to answer on the 7 grounds that it may tend to incriminate you under 8 the Fifth Amendment. So you advise you to take the 9 Fifth Amendment on. 10 THE WITNESS: I invoke the Fifth, as per my Ld lawyer's instructions. 12 BY MR. RERER: 13 Qo. Are you on tape telling your father -- 14 recordings that you made telling your father that 15 these notes had been for given and your father 16 saying well I agreed that he could only pay 17 interested on them? 18 MR. CAMPISI: Again, in an excess of 19 caution, I am directing you to exercise your rights 20 under the Fifth Amendment to remain silent as to 21 this question. 22 BY MR. KEKER: 23 Q. Okay. 24 A. I wish to remain silent based on the Fifth 25 Amendment. Page 109 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH July 8, 2014 1 least remember that he had signed anything to change 2 his will in that regard. 3 And so I questioned the situation in saying 4 well you did and if you did, it seems as though you 5 signed something that you are not sure of and you're 6 not aware of and doesn't match with what you're 7 telling me now. Therefore, I guess you were helped 8 to sign it or contributed to sign it by Laura's 9 helping you do that. And that's -- was the issue 190 that came up. 11 Qo. Are you testifying now about a conversation 12 which you taped without your father's consent? 13 MR. CAMPISI: In an excess of caution, I'm 14 going to direct you not to answer under the Fifth 15 Amendment. 16 THE WITNESS: Okay. I'm not answering 17 under the Fifth Amendment. 18 BY MR. KEKER: 19 Q. Other than what you've told us about Laura 20 meeting with Kjell in December and January of 21 2012/'13, is there anything else that you rely on 22 for your allegation that she engaged in conduct by 23 which the mind of Kjell was subjugated to her will? 24 A. The activities in January. That's -- 25 that's it. Page 124 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH July 8, 2014 1 A. This was -~- on February 20th. I believe 2 that was the day that I -- one of the days that I 3 went to talk to my father about it. And he was -~- 4 on that day he was indicating that he didn’t agree 5 with what had been done. That's what he indicated 6 to me. So -- or this was the day after that I spoke 7 to my dad about it, I think. 8 a. There is the day after you attend a 9 conversation with your dad? 10 MR. CAMPIST: I on an excess of caution 11 I'll directing you not to answer under your Fifth 12 Amendment privilege. 13 THE WITNESS: I exercise my privilege as 14 per my attorney. I5 BY MR. KEKER: 16 Q. Okay. Can you tell us why you were having 17 this conversation with your brother? 18 A. Because on the previous day, my dad had 19 indicated he didn't agree with the fact that the 20 notes that were given to Bruce in January should be 21 given to Bruce. That's not had you I had understood 22 it and I had said well, that's what you did. As far 23 as I understood. And he said well, we should calli 24 Jordan and talk about it. So we called Jordan on 25 the phone and he expressed those feelings to Jordan Page 189 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH 1 on the phone and said that from I understood I 2 didn't hear both sides of the conversation, but I 3 heard half of it, and that it seemed, like, Jordan 4 was going to come and talk to him about it, that he 5 ought to come and talk to him about it. And remove 6 that conversation at some point I left and I went to 7 get a bite to eat and came back and Laura was there 8 with him talking to him about what he had done. And 9 there was a lot of confusion as to -- in his mind as 10 to what was done. 11 He didn't express an understanding of it 12 and he didn't like it. And he was getting agitated 13 about it. And at some point he began to get 14 confused, and at that point we stopped the 15 conversation, Laura was there. I was there. He was 16 there. And I think Laura left and then I left 17 shortly thereafter because he was becoming upset and 18 confused about the situation. So we deemed it 19 wasn't prudent to continue or necessary to continue 20 the discussion. 21 Q. You're talking about a conversation on 22 February 19 -- 23 A. That happened before this day. 24 Q. And this is the conversation that I've 25 asked you five times whether or not you attend and Page 190 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.com July 8, 2014ROUGH Jeff Qvale ROUGH 1 you've taken the Fifth, you're going to take the 2 Fifth again, I take it? 3 THE WITNESS: Yes. 4 MR. CAMPISI: Yes, I exercise the caution 5 since you keep bringing it up I will advise you to 6 asserted your Fifth Amendment privileges. a BY MR. RKERKER: 8 a. And now you say the Laura was there? 9 THE WITNESS: I'm going to assert my Five 10 Amendment privileges. 11 BY MR. REKER: 12 QO. Laura was there? 13 MR. CAMPIST: Was there where? What are 14 you talking about? 15 BY MR. KEKER: 16 Q. At this meeting, this conversation. 17 MR. CAMPISI: He just explained -- 18 THE WITNESS: Later in the day after we had 19 called Jordan on the phone and after he had 20 indicated he wasn't clear and happy with the 21 situation then Laura arrived at the house after 22 that. And she was in a meeting with me and him for 23 a short period of time. 24 BY MR. KEKER: 25 Q. And what was said in that meeting that Page 191 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.com July 8, 2014ROUGH Jeff Qvale ROUGH July 8, 2014 1 MR. KEKER: Could we mark this as next in 2 order, please. 3 (Marked for identification purposes, 4 Exhibit 20.) 5 BY MR. KEKER: 6 a. You can put that document aside and just 7 look at 20. 8 A. This one? 9 oO. Yeah. Give it back to the court reporter, 10 please. 11 Do you recognize Exhibit 20? 12 A I do. 13 o Do you recognize the handwriting? 14 A. Yes. 15 QO Whose is it? 16 A It's mine. 17 Qo Do you know when you made these notes? 18 A. I think I made them in February after one 19 of our meetings discussing these issues. 20 Q. So after one of the meetings you had with 21 your father? 22 A. Yes. 23 Q. Do you remember which meeting? 24 A. No. 25 Q. Was it one you attend? Page 216 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH 1 MR. CAMPISI: Again, in an excess of 2 caution, I'm going to direct you to exercise your 3 Fifth Amendment rights. 4 THE WITNESS: I exercise my Fifth Amendment 5 vights regarding that question. 6 BY MR. KEKER: 7 QO. The first entry is loans from QAG/BMC to 8 KHO estate to be paid back. The next says 25 to 9 $30 million. Can you explain why you made that note 10 and what it means? 11 A. He -- I made that note and I may not have 12 had the number correct because I wasn't informed of 13 all the details of the various notes, but that was 14 his main -- one of his main contentions was Point 1 15 and Point 2, that the cash that went to Florida 16 would not be forgiven. 17 The only reason that that came up was that 18 he didn't agree with it and I didn't understand the 19 specifics of all this because I hadn't been shown 20 it, but that he insisted that those notes regarding 21 the Florida store were supposed to be paid back. 22 That's why I kept questioning what was going on. 23 Q. Did you tell him that those loans were 25 24 or $30 million? 25 A. I may have. You may have been lumping Page 217 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.com July 8, 2014ROUGH Jeff Qvale ROUGH July 8, 2014 1 A. I don't remember if we discussed the exact 2 rate, but I know it was a low rate. 3 a. Did he tell you that it was 2 percent rate 4 was he aware that it was a 2 percent rate? 5 A. I don't think we made a specific number but 6 we knew it was a very low family interactive rate. 7 oO. Did he tell you that Bruce and he had 8 discussed paying interest only at that 2 percent 9 rate? 10 A. No. He just was -- he was mad that he had 11 heard that he stopped paying out telling him. 12 a. Did he mention that he was getting -- that 13 they were paying a couple hundred thousand dollars a 14 year on a 10 million-dollar note? 15 A. Whatever the interest was would have been 16 whatever the interest was. 1? Q. Well, did he tell that you? Did he seem 18 aware of what the interest payment was? 19 A. He seemed somewhat aware of what the 20 interest payment was, yes. 21 Q. Is this a conversation that you taped? 22 MR. CAMPISI: In an excess of caution, I'm 23 going to direct you not to answer under the Fifth 24 Amendment and exercise your privilege to remain 25 silent. Page 221 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.comROUGH Jeff Qvale ROUGH 1 THE WITNESS: I exercise my right to remain 2 silent. 3 BY MR. KEKER: 4 a. Did you attempt to persuade your father in 5 February of 2013 that instead of these notes being 6 outstanding and the interest being paid on them they 7 had been, quote, forgiven, close quote? 8 A. I'm sure that I discussed with him the fact 9 that they had been given to Bruce and that at that 10 time, as I think I already have said, I explained to 11 him that it was as if they were forgiven. Because 12 he pays them back to himself. 13 QO. When Kjell died, what percentage of 14 property and bonds and marketable securities was 15 Bruce going to get? 16 A. As you have seen in the documents and 17 stated, it was not to be any of that. 18 Q. Okay. All the property, all the bonds, ail 19 the marketable securities and certain other assets 20 were going to go to you exclusively; right? 21 A. Net of whatever the taxes might be. 22 Q. Certain notes were going to go on Kjell's 23 death to Bruce exclusively; right? 24 A. Yes. 25 Q. Did you discuss that with your father? Page 222 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.com July 8, 2014a oo B® WwW N ROUGH Jeff Qvale ROUGH July 8, 2014 e-mailed rough also; right? MR. BRAUNIG: Please, yeah. (Deposition concluded at 4:45 p.m.) Page 253 THORSNES LITIGATION SERVICES, LLC | 877.771.3312 | www.thorsnes.com