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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
RONALD J. HOLLAND, Cal. Bar No. 148687 ELECTRONICALLY
BABAK YOUSEFZADEH, Cal. Bar No. 235974 FILED
DORNA MOINI, Cal. Bar No, 235974 Superfor Court of California,
Four Embarcadero Center, 17" Floor County of San Francisco
San Francisco, California 041 11-4109 12/23/: 2014
Telephone: 434,
Facsimile: 415-434:3047 eee eputy clerk
Email: rholland@sheppardmullin.com
byousefzadeh@sheppardmullin.com
dmoini@sheppardmullin.com
Attorneys for Plaintiff
BENTLY BIOFUELS COLLECTION SERVICES LLC d/b/a
BENTLY BIOFUELS COLLECTION SERVICES, LLC,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BENTLY BIOFUELS COMPANY LLC Case No. CGC-13-535864
d/b/a BENTLY BIOFUELS
COLLECTION SERVICES, LLC, DECLARATION OF DORNA MOINI
IN SUPPORT OF PLAINTIFF’S
Plaintiff, MOTION FOR SUMMARY
JUDGMENT OR, IN THE
v. ALTERNATIVE, SUMMARY
ADJUDICATION
K. DAVID FISHER; 3D OIL&GREASE,
LLC; and DOES 1-25, inclusive, Date: March 12, 2015
Time: 9:30 a.m.
Defendants. Dept.: 302
Reservation No. 121714-09
Complaint Filed: December 3, 2013
Trial Date: April 6, 2015
I, Dorna Moini, declare as follows:
1. I am an associate with the law firm of Sheppard, Mullin, Richter & Hampton
LLP, counsel of record for Plaintiff Bently Biofuels Company LLC, d/b/a Bently Biofuels
Collection Services (“Bently”). I make this declaration based on my own personal
knowledge in support of Bently’s Motion for Summary Judgment or, in the alternative,
Summary Adjudication, and if called as a witness, I could and would testify competently
thereto.
-1- Case No. CGC-13-535864
SMRH:435625198.1 DECLARATION OF DORNA MOINI ISO PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT OF IN THE ALTERNATIVE , SUMMARY ADJUDICATIONoO OA ANQ DA F&F Ww YY =|
NR RYN NY NY NN NY Hee ee we Se Se Se Se
RBRRRRERARBSCREWIFGREBRES
2. Attached hereto as Exhibit A is a true and correct copy of pertinent excerpts
from the deposition transcript of K. David Fisher taken on June 10, 2014.
3. Attached hereto as Exhibit B is a true and correct copy of Exhibit 2 from the
deposition transcript of K. David Fisher taken on June 10, 2014.
4. Attached hereto as Exhibit C is a true and correct copy of Exhibit 3 from the
deposition transcript of K. David Fisher taken on June 10, 2014.
5 Attached hereto as Exhibit D is a true and correct copy of Exhibit 4 from the
deposition transcript of K. David Fisher taken on June 10, 2014.
6. Attached hereto as Exhibit E is a true and correct copy of Exhibit 22 from
the deposition transcript of K. David Fisher taken on June 10, 2014.
7. Attached hereto as Exhibit F is a true and correct copy of Defendant K.
David Fisher’s Response to Plaintiff's First Set of Requests for Admission, dated March
19, 2014.
8. Attached hereto as Exhibit G is a true and correct copy of Defendant K.
David Fisher’s Response to Plaintiff’s First Set of Form Interrogatories, dated March 18,
2014.
9. Attached hereto as Exhibit H is a true and correct copy of Defendant K.
David Fisher’s CONFIDENTIAL Supplemental Response to Plaintiff’s First Set of Form
Interrogatories, dated May 19, 2014.
10. Attached hereto as Exhibit I is a true and correct copy of Defendant K. David
Fisher’s Response to Plaintiff's First Set of Form Interrogatories - Employment Law, dated
March 19, 2014.
11. Based on the strength of its evidence, Bently moved for a Preliminary
Injunction against Defendants. On April 15, 2014, the Court granted Bently’s Motion,
enjoining Fisher and/or any other employee of 3D from (1) misrepresenting themselves as
having any current affiliation with Bently or Got Grease, (2) wearing Bently or Got Grease
uniforms, (3) moving or altering Bently or Got Grease oil collection containers without
-2- Case No. CGC-13-535864
SMREAISOSTONI DECLARATION OF DORNA MOINTISO PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT OF IN THE ALTERNATIVE , SUMMARY ADJUDICATIONoOo mn nua F&F WY NY
NN KRY NY NY NY NN HN He Bee ee me ee
oI DA A BwWwNH F DO we N DH BW NY KS OS
Bently’s written permission, (4) collecting oil from Bently or Got Grease containers
without Bently’s written permission, or (5) collecting oil from any oil collection container
that 3D employees know are intended to be collected by Bently.
I hereby declare that the above statements are true to the best of my knowledge and
belief, and that I understand they are made for use as evidence in court and are subject to
penalty for perjury.
Executed this 19" Day of December, 2014 in San Francisco, California.
lo
Z
Dorna Moini
SMRH:435625198.1
-3- Case No. CGC-13-535864
SMREE35625198.1 DECLARATION OF DORNA MOINI ISO PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT OF IN THE ALTERNATIVE , SUMMARY ADJUDICATIONEXHIBIT AK. David Fisher
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
BENTLY BIOFUELS COMPANY, LLC
d/b/a BENTLY BIOFUELS
COLLECTION SERVICES, LLC,
Plaintiff,
Case No.
vs. CGC-13-535864
K. DAVID FISHER; 3D OIL&GREASE,
LLC; and DOES 1-25, inclusive,
Defendants.
VIDEOTAPED DEPOSITION OF K. DAVID FISHER
San Francisco, California
Tuesday, June 10, 2014
VOLUME I
1
Reported by: !
ANA M. DUB, RMR, CRR, CCRR i
CSR No. 7445 H
t
(PAGES 1 - 323)
eLitigation Services - els@elitigationservices.comK. David Fisher
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
BENTLY BIOFUELS COMPANY, LLC
d/b/a BENTLY BIOFUELS
COLLECTION SERVICES, LLC,
Plaintiff,
Case No.
vs. CGC-13-535864
K. DAVID FISHER; 3D OIL&GREASE,
LLC; and DOES 1-25, inclusive,
Defendants.
Videotaped Deposition of K. DAVID FISHER, taken
on behalf of Plaintiff, at Four Embarcadero Center,
17th Floor, San Francisco, California, beginning at
9:02 a.m. and ending at 5:57 p.m. on Tuesday,
June 10, 2014, before Ana M. Dub, RMR, CRR, CCRR,
Certified Shorthand Reporter No. 7445.
eLitigation Services - els@elitigationservices.K. David Fisher
(Non-confidential portion of deposition
BY MR. YOUSEFZADEH:
1
2 resumes.)
3
4
22 MR. YOUSEFZADEH: Okay.
23 MR. COLLINS: -- don't want any -- his
24 number'out there. Thank you.
25 MR. YOUSEFZADEH: Sure.
Page 26
eLitigation Services - els@elitigationservices.comK. David Fisher
Q.
A.
Okay. You're the owner as well?
Correct. I'm not really into job titles,
owner-operator. I'm just a truck driver.
Okay. Does it have a business address?
Yes.
What is it?
74 Kelloch.
And just so I'm clear, Kelloch is spelled
K-e-1-1l-o-c-h?
A.
Q.
as well;
A.
Q.
Correct.
All right. And that's your home address
correct?
Correct.
Okay. And how about 3D Photography? What
is your -- how long have you had 3D Photography?
A.
Q
A.
Q
eLitigation Services - els@elitigationservices.com
20 -- 20 years.
Always by that name?
Yes.
And is that also a sole proprietorship?K. David Fisher
1 . A. Yes.
2 Q. Okay. When were you first hired by them?
3 A. I believe 2007. It's 2007 or 2008.
4 I'm -- I think it's 2007, October 2007.
5 Q. And what was your title when you were }
6 hired? !
7 A. Truck driver.
8 Q. What were your duties as a truck driver :
9 for Got Grease?
10 A. In the beginning -- I mean,-my duties !
11 expanded over the years; but in the beginning, well,
12 to wash and clean trucks, to set up containers, to
13 go out, recycle oil, offload trucks.
Sale:
18 Q. Okay. When all of that was going on, did
19 your duties -- did your title remain truck driver?
20 A. Correct.
21 Q. I'm going to come back to those duties in
22 just a second.
23 A. Okay.
24 Q. Who did you report to at Got Grease?
25 A. David Levenson, Linda Levenson. In the
eLitigation Services - els@elitigationservices.comK. David Fisher
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beginning, Toby Fischer.
Q. Any relation? ]
A. No.
I can't remember -- those are fine.
I -~- you know, I -- those were the only three people
that -- those are fine.
Q. Okay. So in the beginning it was Toby
Fischer, David Levenson, and Linda Levenson?
A. Correct.
it
Q. And then later on it was --
A. It was just David Levenson and Linda
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Q. -- let me talk to you about setting up
containers, What does that mean?
A. Some containers -- barrels, bins,
have to put wheels on them. You know, they have to
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et cetera -- don't come with wheels. You know, you
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be washed and cleaned. They also have to have a ;
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eLitigation Services - els@elitigationservices.comK. David Fisher
label, they have to be labeled, and then loaded onto
a truck for delivery.
Q. Okay. And then where were --
A. Or swapped.
Q. Where were they delivered?
A. Various different restaurants.
Q. Okay. And these restaurants were
customers of Got Grease?
A. Yes.
Okay And
eLitigation Services - els@elitigationservices.com™K. David Fisher
A. Various different vendors would come to
pick up the oil from one set address, and then they
would re-.-- they would filter it, refilter it, put
an additive in it, and call it biodiesel
Q. Okay. Your position as truck driver
didn't involve that latter part? Once you brought
the oil in, you weren't involved in the process by
which they made used oil biodiesel; is that correct?
A. From the very beginning, I knew of the
drivers and the process. So, to that question, I'm
going to say yes, I knew of it. I was not
physically involved in the making of biodiesel, but
I knew of it.
Q. Were you involved in, say, delivering used
oil from Got Grease to a vendor that would convert
it to biodiesel?
A. Yes. I'd help them load their trucks.
eLitigation Services - els@elitigationservices.comK. David Fisher
nS)
ae
Q. Well, I don't think that answered my
question.
Did you have a set schedule? Whether that
subsequently changed or not, was there a schedule?
A. Again, pattern and schedules change.
Sometimes there were set patterns, but there's
always room for a change or improvement.
There could be a big festival, Fourth of
July, when the restaurant needs to be visited twice
in a week. You know, I mean, things change.
Q. You weren't randomly dropping by
restaurants; correct? It wasn't like you were
dropping by one day, and then maybe the same
restaurant two days later, and then the same
restaurant a month later, and then the same
eLitigation Services - els@elitigationservices.comeLitigation Services - els@elitigationservices.com
20 Q.
22 A.
23 Q
24 A.
25 Q
K. David Fisher
Yes.
Okay. Incidentally, were you the only
21 driver that Got Grease had?
No.
How many other drivers were there?
It seemed at least four.
Four including or excluding you?K. David Fisher
Q. And so you approached these potential new
customers, basically explained what services
Got Grease could offer, and then offered to leave
them, say, a Got Grease barrel or bin for their used
oil collection?
ag that, you would
agreement, assuming you’
sé services:
Q. Okay. So, if somebody were interested,
somebody that you approached that was interested in
potential services, you'd either give them
Got Grease's 1-800 number or your own personal cell
phone?
A. Correct.
Q. All right. And if they called your
personal cell phone, how would the negotiation and
coming up with either a verbal or written contract
go?
A. Either I'd pick up their oil, you know --
Sa TE
eLitigation Services - els@elitigationservices.comK. David Fisher
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1 with David?
2 A. Excuse me? !
3 Q. What were you doing with David to help |
4 build the customer base? : ;
5 A. Oh, we'd go cold call. We'd go out and :
6 drop and deliver containers. We'd talk about
7 franchises that were expanding. We'd go on the
8 Internet and look. You know, I mean, well, he'd go
9 on the Internet and show me. Read the newspaper. ;
10 , A lot of different, various ways that we
11 built Got Grease's customer base.
12 Q. And speaking of sales job duties,
13 Got Grease didn't have, like, one standard -- first
14 of all, were most of Got Grease's agreements, were |
15 they verbal or were they in writing? /
16:
:
20 Q. Okay. Would you say more were verbal or :
21 more were in writing?
22 To the extent he knows.
23 MR. COLLINS: Well, are you talking about
24 the contracts that he specifically worked with or :
25 all of Got Grease's contracts? :
Page 55
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eLitigation Services - els@elitigationservices.comK. David Fisher
L some of them at least, on the agreements that you
2 helped negotiate with them; and three, based on the
3 fact that you were physically paying some of them? !
4 MR. COLLINS: I'm going to object. It's
5 asked and answered and misstates prior testimony.
6 But you can answer, to the extent that |
7 you're able to.
8 THE WITNESS: Yes.
BY MR. YOUSEFZADEH:
a3
23 Q. And is that -- and you gave them your cell
24 phone number; correct?
25 A. People in the office gave it to them too.
eLitigation Services - els@elitigationservices.comK. David Fisher
1 answer --
Q. So would it be fair to say that yes, you
won
had the names and numbers, except that sometimes
4 those contacts moved to another restaurant?
5 A. Well, that's not answering that question
6 because that's saying that they're at a different
7 place, different -- you know. But yes, I guess yes.
eLitigation Services - els@elitigationservices.comK. David Fisher
21 Q. The Got Grease one, where did it have a
22 Got Grease tag?
23 A. On the left side.
24 Q. So you mean on, like, left shoulder or
25 left arm?
eLitigation Services - els@elitigationservices.com
1K. David Fisher
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Linda Levenson left; right?
A No.
Q. When did Linda Levenson leave?
A October Ist.
Q. Oh, I see. Okay. So after you stopped
working with Bently but before Linda Levenson left,
you went back to her and returned some uniforms to
her?
A. Yes.
Q. Remember approximately how many you
returned?
A. Ten.
Q. Let me ask you really quickly about
collection bins on customer properties. We
discussed that Got Grease placed collection bins on
customer property. Right?
THE WITNESS: Stephen, I need -- because
of the State stuff, do I answer some of these?
Or
MR. COLLINS: Can we repeat the question
real quick?
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eLitigation Services -- els@elitigationservices.comK. David Fisher
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Q. Okay. In terms of coloring, did
Got Grease have certain colors for containers?
A. A lot of -- there are various different
colors. You know, the plastic containers were
generally black with lettering.
The barrels come in all different colors,
whether they're black, blue, yellow, green. I mean,
barrels come in various different colors. The metal
containers also come in various different colors:
black, green, dark green, lime green. It depends
on how new the container was.
Q. Do you remember some of them being sort of
like bright lime green?
A. Correct.
(Cellular telephone sounds.)
MR. YOUSEFZADEH: Is that urgent?
THE WITNESS: No.
BY MR. YOUSEFZADEH:
eLitigation Services - els@elitigationservices.comK. David Fisher
22 Q. All right. And I appreciate that for
23 different restaurants, it's different places. But
25 the bins; right?
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24 each restaurant had a location of where they kept :
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K. David Fisher
made that deal on behalf of the company --
BY MR. YOUSEFZADEH:
Q. Okay.
A. -- but, you know, that was not the company
or a Bently deal; that was a David Fisher deal.
Q. Okay. ‘Are you saying that deals that you
made on behalf of the company were not attributable
to the company?
A. Some yes; some no.
Q. So what deals did you make on behalf of
Got Grease that were not attributable to Got Grease?
A. I'd like to say there were a lot. You
know, I mean, if -- if -- well, with Got Grease.
Hold on. That's with Got Grease. There was nothing
bitter with Got Grease.
With Bently, on the other hand, there were
eLitigation Services - els@elitigationservices.comK. David Fisher
me. i
A. Because he was the supervisor.
1
2 Q. And why?
3
4
2
13 Q. Fair to say that you received most of your
14 calls directly from customers on your cell phone,
15 not through an answering service?
16 MR. COLLINS: Objection as to -~ what time
17 are we talking about?
18 MR. YOUSEFZADEH: During the time he was
19 with Bently up until that Thursday.
20 MR. COLLINS: Okay.
21 THE WITNESS: No. I mean, Dave and Josh
22 just told me to do my thing, do what I do, and
23 that's what I done.
24 BY MR. YOUSEFZADEH:
25 Q. I understand. The question is: Until
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K. David Fisher
"Bently" sort of written on there, not like a
sticker but on the actual container?
A. No. I believe it was just the Bently
sticker.
Q. Okay. While you were working for Bently,
did you wear a uniform?
A. I believe you asked me that question
prior.
Q. Did you continue to wear the same uniform
that you were wearing while you were with
Got Grease?
A. I believe I answered that question earlier
too, but yes.
Q. Okay. Did Bently provide any new uniforms
to its employees?
A. Yes. Not to me, but yes.
Q Okay. And also two-piece?
A. Yes.
Q Also, dark blue?
eLitigation Services - els@elitigationservices.com
Page 12324
K. David Fisher
as 1, and it's just -- it's a packet. It's got
several color pictures in it, which we will come
back to.
But I just.-- the very first one is a --
if you will agree with me, it's an individual whose
face is blurred and is wearing a two-piece uniform
with the word "Bently Biofuels" on the left chest.
It's a green circular-type pattern.
Do you see that?
A. Yes.
Q. Okay. Best of your recollection, that
accurately reflects the uniform that Bently provided
to its employees when it -- when it started, when it
purchased the assets of Got Grease?
A. No.
Q. When did it -- when did it issue that
uniform?
A. I don't know.
Q. Okay. But that is a Bently uniform that
you're familiar with?
A. Yes. I'm familiar with the Bently logo
and the Bently hat.
eLitigation Services - els@elitigationservices.com
Page 125K. David Fisher
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11 Q. In fact, there are pictures of him in H
12 here -- |
13 A Yes.
14 Q -- in this packet, Exhibit 1 --
15 A Yes. |
16 Q. -- wearing just that uniform?
17 A. Yes. Not that uniform. That logo.
18 Q That logo. |
19 A It's a different color uniform. |
20 Q. Okay. Let's see if we can -- why don't L
21 you look at the picture that is fourth -- let's see; ._
22 one, two -- third from the back.
23 MR. COLLINS: Would it be easier just to |
24 mark them 1-A through -- r
25 MR. YOUSEFZADEH: Yeah, I think --
eLitigation Services - els@elitigationservices.comYT An WwW B® WN
K. David Fisher
MR. COLLINS: I'll just object.
BY MR. YOUSEFZADEH:
Q. Well, do you agree that --
MR. COLLINS: The best evidence rule. The
pictures -~
MR. YOUSEFZADEH: Yeah.
MR. COLLINS: -- speak for themselves.
MR. YOUSEFZADEH: I agree, actually.
BY MR. YOUSEFZADEH:
Q. Okay. So you've seen Mr. Dently wear
whatever he's wearing in pages 7 and 8?
A. Yes.
Q. All right.
A. And it's not this.
Q. Okay. What do you recall signing?
A. To be perfectly honest, I don't really
recall signing. I know that I did. I guess an
employment agreement.
Q. Okay.
A. I think maybe something for some medical
eLitigation Services - els@elitigationservices.comK. David Fisher
benefits.
Q. Okay.
A. And, you know, I mean, there could be
other documents.
MR. YOUSEFZADEH: Okay. No problem. Why
don't we just see if we can't locate some of them.
THE WITNESS: Okay.
eLitigation Services - els@elitigationservices.comK, David Fisher
20 Q. Okay. Did you ever read that section Hh
21 under. "Security"?
22 A. I have since. But, yes.
23 Q. Okay. You don't remember one way or the
24 other if you read it when you were first given it?
25 A. I know I skimmed through it to see if
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eLitigation Services - els@elitigationservices.comK. David Fisher
1 documents, designs, materials and products are the
2 sole property of Bently Biofuel Collections.
3 Q. Okay.
4 A. I was not privy to any customer lists or
Bently procedures or softwares or Bently documents
5
6 or designs. I wasn't privy to any of that.
7
a3
24 . Okay.
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23
25)
28)
K. David Fisher
what I done.
So -- so, I mean, I'm thinking that
Tuesday and Wednesday were the only days that they
were there, and they complained about doing -- you
know, they asked me to do what I continued to do at
Got Grease, but then they complained about it.
Then they asked me to forge some
manifests. So, I mean --
Q. We're going to get to the manifests in a
second.
Do you recall getting a Bently employee
manual?
A. Nope.
Q. Okay.
A. Never got. one.
Q. You never got one.
A. I wasn't there long enough.
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Page 135K. David Fisher
24 Q. Even though you don't recall having seen
25 the employee handbook, do you remember ever becoming
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eLitigation Services - els@elitigationservices.comDocuments removed subject to
stipulated protective order.K. David Fisher
1
2
3
4
5
6
7
8
Q. Did anyone ever tell you that you were
being fired because you didn't forge manifests?
A. I think manifests was part of the
termination letter.
I don't know what happened, to be
perfectly honest. I -- you know, I was coming back
from Richmond; and Josh asked me to come to the
warehouse, I guess because they were supposed to be
assigning phones. And, you know, I go back in
there, thinking they're going to assign me a phone,
and they terminated me.
But manifests or a write-up or a
suspension or nothing ever came up, other than
Thursday night when Josh said he'd have to write me
up. None of it ever came up.
Q. Would you agree that Bently was more of a
stickler for the rules than Got Grease?
A. I don't know.
Q. Okay.
A. Yes. I don't agree with it, but yes, I am
aware of it.
Q. Okay. Incidentally, based on your
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Page 168K. David Fisher
1 opposition, I'm assuming you were also aware that
2 forging a manifest is not permitted?
3 A. Correct.
®
a
7 Q. Okay. Now, do you remember what you were
8 told about why you were fired?
9 A. Not really.
10 MR. YOUSEFZADEH: Why don't we just show
11 it to you.
12 (Whereupon, Plaintiff's Exhibit 7 was
13 marked for identification.)
14 BY MR. YOUSEFZADEH:
24 Q. Okay. And then it provides two reasons:
25 insubordination and acting outside your authority;
eLitigation Services - els@elitigationservices.com1
2
3
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K. David Fisher
Coming back to Exhibit 10, because I think
we skipped over it, we were talking about manifests?
Correct.
This is a manifest; correct?
Correct.
And it is for transportation of IKG?
Correct.
And the receiving facility is Hanford; is
correct?
Correct.
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eLitigation Services - els@elitigationservices.comK. David Fisher
Q. You got a final check stub or pay -- final
wages from Bently when you were terminated; is that
correct?
A. Correct.
MR. YOUSEFZADEH: Okay. Let me see if I
can find that document.
Let's mark that next in order.
(Whereupon, Plaintiff's Exhibit 12 was
marked for identification.)
BY MR. YOUSEFZADEH:
Q. Placed in front of you a document marked
eLitigation Services - els@elitigationservices.comK. David Fisher
1 A. Wasn't privy to it. Didn't really know.
2 Q. Let's talk really quickly about
3 3D Oil&Grease, which we've just been referring to as
4 3D.
5 A. Okay.
6 Q. When -- hold on. Just -- instead of
7 asking it that way -- I was going to ask you when it
8 was -- when you filed your articles of organization,
9 but I think we actually have that information.
10 Do you remember when you filed your
11 articles of organization?
12 A. I believe it was somewhere thereabout
13 September 15th or so.
14 MR. YOUSEFZADEH: Let me just hand you
15 this.
16 (Whereupon, Plaintiff's Exhibit 13 was
17 marked for identification.)
18 BY MR. YOUSEFZADEH:
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Page 202K. David Fisher
17 Q. When did you come up with the idea of
18 forming 3D?
19 A. On or about September 10th.
20 Q. Say, shortly after your termination from
22 A. Correct.
23 Q. Okay. What does "3D" stand for?
24 A. Technically, there's supposed to be an
25 apostrophe S. My name is David; I have a brother
eLitigation Services - els@elitigationservices.comK. David Fisher
—
1 keep repeating it. }
2 MR. COLLINS: So long as you understand, :
3 Mr. Fisher.
4 THE WITNESS: Mm-hmm.
5 MR. COLLINS: Okay.
6 MR. YOUSEFZADEH: Okay.
7 THE WITNESS: Yes, I do.
8 MR. COLLINS: Okay.
9 BY MR. YOUSEFZADEH
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16 I don't know -- I don't recall if it was }
17 before or after the 3lst. It could have been on.the |
18 3lst. I'm not sure. That's how come I don't know.
19 But he has not been paid anything.
20 Q. Okay. If he were providing services
21 without pay on or before January 31st, 2014, what !
22 was he helping you do?
23 A. Could be a number of things. Could be
24 collecting oil; could be maintenance on the truck.
25 Could be a variety of things. He's my family |
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12 Q. Okay. So up until on or about
13 January 28th, 2014, he was a Bently employee?
14 A. Yes.
15 Q. Okay. On the -- for the three days,
16 assuming he worked with you for those three days,
17 was he -- were part of his duties interacting with
18 customers?
19 A. He --
20 Q. I shouldn't say "duties." Were part of
21 his services that he was providing, was he helping
22 interact with customers?
23 A. Probably.
24 Q. Okay.
25 A. You know, again, I don't know if he helped
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additional people?
A. He -- he could not do additional. He
would do the priorities, not additionals, the
priorities.
Q. While Mr. Dently was still employed with
Bently, did you ever speak with him about helping
you with 3D?
A. No.
Q. Okay. After your termination from Bently
but while Mr. Dently was still hired or still
employed with them, did any of the following things
ever happen: Did he help you service any Got Grease
or Bently customer?
A. I was terminated. He serviced plenty of
Got’ Grease/Bently accounts. I don't know how
you're --
Q. Okay. So did he ever help you go after
some of those accounts?
A. No.
Q. Okay. Did he ever accompany you while you
were, through 3D, going to service any accounts that
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previously belonged to Got Grease or Bently?
A. While he was employed? No.
Q. Yeah. These are all while he was still
there.
A. Correct. No.
Q. Okay. Did he, while he was employed for
Bently, ever transport any oil for 3D?
A. No.
Q. Did he ever transfer any oil to 3D?
A. No.
Q. For the three days after his termination
when he was helping you voluntarily, what clothing
was he wearing?
A. I believe he was wearing Bently clothing.
Q Okay. So the Bently uniform?
A. Yes.
Q Okay. And so he was accompanying you.
And at that time, were you still trying to
get some of your old accounts, the ones that you
used to have with Got Grease or Bently?
A. No. He did not go out on any sales or
anything, no.
Q. No. I mean just to service the accounts.
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Q. Do you think it might have been misleading
for anybody inside those restaurants to see you
there with a person wearing a Bently uniform?
A. That's speculation.
MR. COLLINS: Objection.
THE WITNESS: But, no.
BY MR. YOUSEFZADEH:
Q. No, you don't think that was misleading?
A. No, not at all, because he wasn't going
into the restaurant. They weren't physically seeing
him there.
You know, it wasn't like he'd walk into
the restaurant and get the container. I'd bring the
containers out to him.
MR. YOUSEFZADEH: Okay.
THE WITNESS: Oh, you got some treats for
us.
MR. YOUSEFZADEH: I'11l come back to these
in a while.
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Q. What's Industrial?
A. It was a warehouse that used to be where
Got Grease's warehouse was.
Q. Okay. And where did it move to after
that?
A. Bently moved to 3501 Collins.
Q. Okay. And what -- they had already moved
by 1/30, I'm assuming.
A. Yes.
Q. Okay. So what were you doing at the old
Got Grease facility?
A. Working on trying to secure that space for
3D.
Q. Okay. So you were trying to move 3D into
the old Got Grease facility?
A. Correct.
Q. Okay. And what was Mr. Dently doing there
with you?
A. On this day? It appears as though maybe
we were restocking the truck for barrels or -- I
don't particularly know. I can't necessarily say I
know.
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u ad
2 Q. When you say "Swap out," what are you
3 referring to?
4 A. Bently had a habit of putting their
containers in my spots or putting their stickers on
5
6 my containers.
7
Q. When you say on "my spots," what are you
8 referring to?
9 A. At ~~ at my locations -- like Cha Cha Cha,
10 Le Colonial, Limon -- Bently would have a tendency
ll to remove or damage my sticker and put their sticker
12 in its place.
13 Q. The places that you just named,
14 Le Colonial, Cha Cha Cha -- and I don't remember
15 what the third one was.
16 A. Limon.
17 Q. -- Limon, those are all customers that you
18 serviced through Got Grease; right?
19 A. Formerly through Got Grease, yes.
20 Q. Okay. And then through Bently?
21 A. I don't know if I ever got to service them
22 with Bently.
23 Q. Okay. Assuming that Bently inherited the
24 customers and the customer list of those entities,
25 what would make them your customers?
eLitigation Services - els@elitigationservices.comK. David Fisher
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1 A. Again, from my understanding, there is
2 nothing proprietary about the list. It's public
3 information. , :
4 And anyone can do this. Maybe not as well
as me, but anyone could get a pump truck, get a
5
6 license, and go and solicit any of the restaurants.
7 And if you're giving them a bigger, better deal,
8 they're more inclined to sign up with you.
9
on
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As Cor
Q. And you were the lead and the head person
and the point of contact for them when they had
issues; right?
A. Correct.
Q. Okay. So when they called you, do you
know if they were trying to reach you, the employee
of Bently/Got Grease, or you the individual?
A. Generally, they'd call for an oil pickup;
and I will explain -- I would explain to them that I
was a separate entity.
Q. Okay. Did any of the people that called
you for an oil pickup subsequently -- well, let me
just put it this way: Has it come to your attention
since that some of the people that called you for
oil pickups remained confused that you were still
part of Bently or Got Grease?
A. I don't know. I can't speak for them. IK. David Fisher
24
25
Maybe, if I can give an example, I'd go
and sign up a Tempest under 3D with a chef, and
Bently will go and re-sign them with the owner.
Q. Okay.
A. I mean, I -- something like that.
So, I mean, I'd imagine they'd be
confused; but it wasn't for something that I've
done. And I tried to remedy, I mean, I've tried
to -- anyone that's called me, I've tried to explain
that I've been a separate entity, that I ama
separate entity.
Q. You brought up Tempest. There might be
some documentation. So let me just take a quick
look. You also brought up Limon.
Let me -- we're going to come back to
that. I want to ask you about Tempest and Limon and
the rest. But --
A. Okay.
Q. -- before we get there, after you left --
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All right.
Q
A. So, yes, I know the going rates.
Q Okay.
A
And I've known the going rates.
Q. Okay. And when you were going to secure
somebody who was with Got Grease or Bently and if it
happened to be one of the people that you were
offering rates to, I'm assuming you made your offer
competitive by considering those rates when you
offered your own?
A. No.
Q. So you --
A. I could not compete with the Bently rates.
Q. Okay. You understand that some of your
con~ -- some of the agreements that you've made paid
more than the Bently rates?
A. Don't think so.
Q. Okay. We'll come back to that.
So you think, uniformly, your rates that
you paid per gallon were lower than what Bently was
paying?L
K. David Fisher
removed? Or
Q. Okay. Did -- how did Bently know where to
retrieve them?
A. Josh's -- Josh Clutter's brother worked
for CAB.
Q. Okay. What does that have to do with the
question? I'm sorry. I don't understand the
answer.
A. You asked me how would Bently know.
Josh Clutter's brother, Ralph, worked for
CAB. I was selling my oil to CAB. He was a driver.
Josh Clutter's brother told him where the bins were.
Q. Okay. How would Josh Clutter's brother
know where the bins were?
A. I showed him.
Q. Okay. So if I may summarize this, you
removed these bins, your testimony is, at the
direction of the restaurant owners without
coordination or permission from Bently; dropped them
off in an industrial space; and then subsequently
showed Josh Clutter's brother, who worked at CAB,
where they were so that he could advise Josh Clutter
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But, I mean, there's other documents from
CDFA that I don't have immediate access to. But
everything that I have immediate access to I've
turned over, whether it was helpful to me or not, as
I see that some of these things I've turned over are
coming back to haunt me. So
Q. Okay.
A. I mean, you know, I wanted to clear that
up.
Q. All right. Well, I will -- I will meet
and confer with your counsel on that issue.
A. Okay.
Q. With respect to Exhibits 18, 19, 20, and
21, were these exhibits sent to Bently?
A. Yes.
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2 Q. All right. You were aware, as a result of
3 working for Got Grease and Bently, that Limon was at
4 the time a Got Grease and Bently customer?
A. No. I signed them up prior. I signed
5
6 them up October 2nd. ;
7 Q. That Notice of Cancellation?
8 A. Yes. i
9 Q. Okay. So you signed up Limon on
10 October 2nd, 2013, is what you're testifying to?
11 A. Correct.
12 Q. Okay. And this is Exhibit 20, which is
13 not signed by anyone.
14 A. Well, management, they don't sign,
15 correct, although I did get a service agreement !
16 signed by the chefs.
17 Q. Okay. Let's talk about that for a minute.
18 Brought them up. We'll come back to the CDFA in :
19 just a second.
20 A. Okay. )
i
21 Q. All right. Now, sometime after you were :
22 terminated -- this is a few weeks later -- my :
23 understanding is that you received a call from
24 someone at Limon Rotisserie. Is that correct?
25 A. Yes.
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1 All right. And do you recall who called
2 you?
3 A. Yes.
4 Q. Who was it? !
5 A. The chef, Cesar.
6 Q. All right. And does the -- does the date :
7 of 10 -- October 6, 2013 sound accurate?
8 A. Excuse me? F
9 Q. He called you on October 6th, 2013; is :
10 that correct? Or maybe that's when you went over
11 there.
12 A. I think I went over there. I think he
13 called me on the 4th.
14 Q. Okay. So he called you on October 4th,
15 2013. And what did he say?
16 A. "David, I got some chicken for you."
17 Q. I guess the question is: What did he tell
18 you about the grease trap?
19 A. "David, I got some stuff that smells. Can
20 you come suck it out?"
21 Q. Okay. Did he call you on your cell phone?
22 A. Yes.
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1 Q. Up until October 2nd, there is no question :
2 that they were a Got Grease or Bently customer; f
3 correct? !
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Q.
When you went -- well, first of all, when
Limon called you, did you tell them that you were no
longer with Bently?
A.
Q.
Yes.
Okay. When you went over there, did you
ask them if they had an agreement with someone?
A.
Pr oO Fr OO Fr 0
Yes.
And what did they say?
To talk to Antonio or Fernando.
And did you?
Yes, I did.
And what did they tell you?
That they had signed up with me.
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Q. In your experience --
Q. Okay. Do you recall somebody giving you a
call after -- well, first of all -- yeah. Actually,
do you recall somebody calling you from Bently after
this incident and asking you about it?
A. I recall Josh, from Bently, asking me
about some grease traps. And this was something --
I told him this was a completely different
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1 Bently?
2 A. No, I was not aware of that.
3 Q. Do you know Tyrrell Brooks? :
4 A. Yes.
5 Q. Who is he?
6 A. The owner of CAB. i
7 Q. Someone that you work with or used to work
8 with?
9 A. Yes.
eLitigation Services - els@elitigationservices.comK. David Fisher
14 Q. And -- well, if I were to tell you his
15 actual report was that you had pulled into Limon
16 Restaurant in a red International truck with a
17 black -- with a black tank on the back and began
18 vacuuming oil from the Bently or Got Grease
19 55-gallon drum located adjacent to the restaurant,
20 would you say that that is an inaccurate statement?
21 A. I would say that's a very inaccurate
22 statement.
23 Q. And how is it inaccurate?
24 A. First of all, I sucked out grease trap out
25 of some 5-gallon bucket. And my drum was in place
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MR. YOUSEFZADEH: Let me provide, just for
the record, these things from the CDFA. I want to
get some authentication of documents that you have
filed with them.
Where's my CDFA file?
That's what I was looking for earlier.
Before we do that, let me mark this
document.
(Whereupon, Plaintiff's Exhibit 23 was
marked for identification.)
BY MR. YOUSEFZADEH:
Q. This, I will represent to you, is an
e-mail dated October 10th, 2013, memorializing your
conversation with Mr. Clutter, marked Exhibit 23.
Have you had an opportunity to review this
document?
A. Yes.
Q. Okay. In reviewing this document, does it
refresh your recollection as to the conversation you
had with Mr. Clutter regarding Limon Rotisserie?
A. I had this conversation, from my
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1 (Whereupon, Plaintiff's Exhibit 29 was
nD
marked for identification.)
w
MR. YOUSEFZADEH: . 30.
4 (Whereupon, Plaintiff's Exhibit 30 was
5 marked for identification.) |
6 MR. YOUSEFZADEH: And, lastly, 31. ;
7 (Whereupon, Plaintiff's Exhibit 31 was ;
8 marked for identification.)
9 BY MR. YOUSEFZADEH: t
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As) Yess)
Q. So in here you're confirming -- so let's
take a look at D0014, your letter.
A. Mm-hmm.
Q. You're confirming that for five years
while you were employed with Got Grease, you were
not only the sale -- you were not only driving but
in sales and management also; right?
A. Correct.
Q. And that you were a focal point of
building Got Grease; is that right?
A. Correct.
Q. Okay. You identify further down that you
started collecting oil on Sunday, October 20th. Is
that correct? The last paragraph.
A. Yes.
Q. I draw your attention to DOO1LS.
A. Okay.
Q. The first paragraph, the fourth line from
the bottom.
A. Mm-hmm.
Q. I believe, if I'm -- tell me if I'm not,
but if I understand correctly, the context of this
is that we're talking about that transfer of oil to
Hanford Commodities. Correct?
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A. Yes.
Q. Okay. And you write here:
"I had Mr. Balibrera send his
certificate-to Hanford Commodities."
A. Correct,
Q. And Mr. Balibrera is Kenny Balibrera of
KB?
A. Correct.
Q. And the next sentence, it reads:
"I made this decision because this is a
very competitive business and I had lost
at least 10 restaurants to competitors
that had committed to 3D Oil&Grease."
Do you see that?
A. Yes.
What were you referring to?
When I had started signing up restaurants
October lst, a number of restaurants that had
committed to 3D OilsGrease went to various different
companies, like Bently, Krause and Nagy, Blue Sky.
You know, I had lost at least ten restaurants to
those guys. Ten in one -- you know, ten in one
place. So
eLitigation Services - els@elitigationservices.comK. David Fisher
20)
20
22)
25)
sinéss
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Q. -- before you started providing these
services, you would have lost more business?
A. As it stands, this is very incorrect.
Maybe if I had just waited, period, until
October 29th and not jumped the gun, maybe I might
not be in trouble with the State. I don't know.
You know, I mean, I -- I honestly don't know.
Q. Yeah. I'm not asking, though, reasonably
for a judgment on that decision. What I'm saying
is: What you're writing here, that's what you
meant?
A. Right. I mean, that's what I meant at the
eLitigation Services - els@elitigationservices.comK. David Fisher
In the second paragraph, you say
"Bently Biofuels and Got Grease do not
have written or in many cases oral
contracts with many of the [sic]
restaurants that they are servicing."
A. Correct.
Q. How do you know that?
A. At that time, they did not. Because,
being in sales from Got Grease, I knew that. That
wasn't -- that isn't -- that was a matter of fact.
It might not be now, but it was a matter of fact
then.
Q. Okay. You also agree that Got Grease had
at least verbal agreements with most of its
customers; right?
A. That they knew.
Q. Okay. And did you know whether or not
Bently Biofuels had contracts with their customers?
A. Yes, I did.
Q. How did you know that?
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1 A. I knew the primary sales guy and from what
2 David and Linda turned over to them: So, yes, I
3 did.
4 Q. But from what they turned over, it
5 wouldn't identify whether they were oral agreements; :
6 right?
7 A. From my knowledge, yes. For me being out !
8 in the field, yes, I would know if there were oral i
9 agreements or not.
25 Q. In fact, I believe somewhere around here
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Q. Which is?
A. Oh. This location? Or
Q. No. The one that you were talking about,
3501 Collins.
A. That -- that's -- that's Bently's
location. That's Bently's address.
18 Q. Have you taken any back to the old i
19 Got Grease facility?
20 A. That is the industrial. JI mean -- |
21 Q. That's the industrial complex? That's in
22 Exhibit 15?
23 A. No. That -- this is an industrial :
24 complex, The old Got Grease facility is technically |
25 on Industrial Way, like three blocks away. :
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open at 9 o'clock.
So if you're in the business, you can take
that. It's public information that's --
Q. You agree that there are certain
businesses that, say, have a rush in the morning;
others, in the afternoon; others, in the evening?
A. Correct.
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1 A. -- I mean --
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Q. Okay.
A I will agree with that.
MR. YOUSEFZADEH: All right. Well, I
believe we're over our seven-hour mark; so I will go
ahead and mark this conversation -- or the end of
the deposition.
I, of course -- I don't know if I've -- 1
haven't said this on the record. I'm just
adjourning, and I intend to either meet and confer
with counsel or move for an order for two to three
additional hours.
So with that said, I will go ahead and
adjourn.
MR. COLLINS: All right. Thank you.
THE VIDEOGRAPHER: This marks the end of
Tape No. 4 in the deposition of K. David Fisher.
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I, ANA M. DUB, CSR No. 7445, Certified
Shorthand Reporter, hereby certify that:
T am authorized to administer oaths or
affirmations. (Cal CCP § 2093 (b) and FRCP 28(a)).
The foregoing proceedings were taken before me
at the time and place therein set forth, at which
time the witness was duly sworn by me. (Cal CCP
§ 2025.330(a), 2025.540(a) and FRCP 30(f)(1i)).
The foregoing pages contain a full, true and
accurate record of all proceedings and testimony.
(Cal CCP § 2025.540(a) and FRCP 30(f£)(1)).
TI am not. a relative or employee of the parties,
nor financially interested in the action. (Cal CCP
§ 2025.320(a)).
Before completion of the proceedings, review of
the transcript [ x ] was [ J] was not requested.
If requested, any changes made by the witness (and
provided to the reporter) during the period allowed,
are appended hereto. (FRCP 30(e)).
I declare under penalty of perjury under the
laws of California that the foregoing is true and
correct.
Dated this 24th day of JUNE, 2014
ANA M. DUB, RMR, CRR, CCRR, CSR NO. 7445
eLitigation Services - els@elitigationservices.comEXHIBIT BEmployment Agreement wmess Fisher
extiair__&
For: K, David Fisher
oate@lO-FotR AD.
eLitigatlon Services ino,
| accept employment with Bently Biofuel Collection Services commencing on August 30, 2013.
l understand my position title to be a CDL Class B Truck Driver with a starting rate of 21.50 per HOUR.
Policy | understand that the standards and pollcies of Bently Biofuel Collection Services are set forth in the
Employeé Handbook, which | agree to read, accept and follow to the best of my ability. Future revisions
to the Employee Handbook will be posted and my responslbility is to record these revisions In my copy of
the Employee Handbook and to follow the action described, Violation of the Company Policy described in
the Employee Handbook, Policy and Procedures Manual and revisions thereto are subject to discipline,
up to and including termination.
Wage
Adjustment | accept my starting wage as a fair and equitable rate for the position offered to me and understand that
all future increases or decreases will be made in accordance with my job performance. My Job
Performance will be reviewed in a timely fashion and merit Increases, if eamed, may be awarded. If
circumstances require (such as promotion, damoilon or transfer), a special performance review may be
given at any time the company deems necessary.
Safety | understand that Safety is an Integral part of my Job with Bently Biofuel Collection Services. | agree to
keep myself Informed of all Bently Blofuel Collection Services safe-work procedures and practices in my
working area and to follow them completely. | am responsible for making sure that all persons coming
Into my work area are informed of our safety requirements. 1 must abide by all of the safety requirements
of other working areas of Bently Holdings California LP that | may enter for any reason,
Security | understand that all materials marked Company Confidential ar Information of a proprietary nature or
obtalned In confidence, Including but not limited to customer Iists, procedures, software, documents,
designs, materials and products are the sole property of Bently Blofuel Collection Services and are
confidential. | agree that | will not disclose any such Information In any form or format, except in the
regular course of my employment as approved by my supervisor or manager, to any outside party or
parties elther during my employment, or for 3 years after the termination of my employment with Bently
Blofuel Collection Services. .
| understand that in exchange for my agreed upon compensation, | agree that all intellectual property
such as Inventions, formulas, trade secrets, techniques and processes whether or not patentable, made
or conceived either solely or In conjunction with others during the period of my employment, which relate
to or result from the actual or demonstrably anticipated business, work, or research and development of
the company are and shall remain the sole property of Bently Biofuel Collection Services, and all such
Intellectual property shall be assigned to Bently Blofuel Collaction Services,
| understand that all property of Bently Blofuel Collection Services including all work materials, furniture,
equipment, supplies, parts, products, telephones and vehiclas are for the sole use of the operation of the
Company and that any private use, abuse, misappropriation or destruction of the Company property is
prohibited.
Acceptance During the period of my employment | agree to abide by the policies and Procedures of Bently Blofuel
Collection Services as they may be amended from time to time. | have read and understand the
Employee Handbook.
| understand and agree that my employment Is at will, and that this agreement Is regarding
conduct during and after employment, it Is nota contract regarding continued employment, itis
for no definite perlod and may, regardless of the date of payment of any wages and salary, be
terminated at any time without my previous notice or cause.
d Jo he Baa 30903 YW 16/3/1013
CY
Employee Signature Date H.R. Representative Signature DateEXHIBIT CCTION
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co Oem NY DH BF WN SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations RONALD J. HOLLAND, Cal. Bar No. 148687 ELECTRONICALLY BABAK YOUSEFZADEH, Cal. Bar No. 235974 FILED DORNA MOINI, Cal. Bar No, 235974 Superfor Court of California, Four Embarcadero Center, 17" Floor County of San Francisco San Francisco, California 041 11-4109 12/23/: 2014 Telephone: 434, Facsimile: 415-434:3047 eee eputy clerk Email: rholland@sheppardmullin.com byousefzadeh@sheppardmullin.com dmoini@sheppardmullin.com Attorneys for Plaintiff BENTLY BIOFUELS COLLECTION SERVICES LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO BENTLY BIOFUELS COMPANY LLC Case No. CGC-13-535864 d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, DECLARATION OF DORNA MOINI IN SUPPORT OF PLAINTIFF’S Plaintiff, MOTION FOR SUMMARY JUDGMENT OR, IN THE v. ALTERNATIVE, SUMMARY ADJUDICATION K. DAVID FISHER; 3D OIL&GREASE, LLC; and DOES 1-25, inclusive, Date: March 12, 2015 Time: 9:30 a.m. Defendants. Dept.: 302 Reservation No. 121714-09 Complaint Filed: December 3, 2013 Trial Date: April 6, 2015 I, Dorna Moini, declare as follows: 1. I am an associate with the law firm of Sheppard, Mullin, Richter & Hampton LLP, counsel of record for Plaintiff Bently Biofuels Company LLC, d/b/a Bently Biofuels Collection Services (“Bently”). I make this declaration based on my own personal knowledge in support of Bently’s Motion for Summary Judgment or, in the alternative, Summary Adjudication, and if called as a witness, I could and would testify competently thereto. -1- Case No. CGC-13-535864 SMRH:435625198.1 DECLARATION OF DORNA MOINI ISO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OF IN THE ALTERNATIVE , SUMMARY ADJUDICATIONoO OA ANQ DA F&F Ww YY =| NR RYN NY NY NN NY Hee ee we Se Se Se Se RBRRRRERARBSCREWIFGREBRES 2. Attached hereto as Exhibit A is a true and correct copy of pertinent excerpts from the deposition transcript of K. David Fisher taken on June 10, 2014. 3. Attached hereto as Exhibit B is a true and correct copy of Exhibit 2 from the deposition transcript of K. David Fisher taken on June 10, 2014. 4. Attached hereto as Exhibit C is a true and correct copy of Exhibit 3 from the deposition transcript of K. David Fisher taken on June 10, 2014. 5 Attached hereto as Exhibit D is a true and correct copy of Exhibit 4 from the deposition transcript of K. David Fisher taken on June 10, 2014. 6. Attached hereto as Exhibit E is a true and correct copy of Exhibit 22 from the deposition transcript of K. David Fisher taken on June 10, 2014. 7. Attached hereto as Exhibit F is a true and correct copy of Defendant K. David Fisher’s Response to Plaintiff's First Set of Requests for Admission, dated March 19, 2014. 8. Attached hereto as Exhibit G is a true and correct copy of Defendant K. David Fisher’s Response to Plaintiff’s First Set of Form Interrogatories, dated March 18, 2014. 9. Attached hereto as Exhibit H is a true and correct copy of Defendant K. David Fisher’s CONFIDENTIAL Supplemental Response to Plaintiff’s First Set of Form Interrogatories, dated May 19, 2014. 10. Attached hereto as Exhibit I is a true and correct copy of Defendant K. David Fisher’s Response to Plaintiff's First Set of Form Interrogatories - Employment Law, dated March 19, 2014. 11. Based on the strength of its evidence, Bently moved for a Preliminary Injunction against Defendants. On April 15, 2014, the Court granted Bently’s Motion, enjoining Fisher and/or any other employee of 3D from (1) misrepresenting themselves as having any current affiliation with Bently or Got Grease, (2) wearing Bently or Got Grease uniforms, (3) moving or altering Bently or Got Grease oil collection containers without -2- Case No. CGC-13-535864 SMREAISOSTONI DECLARATION OF DORNA MOINTISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OF IN THE ALTERNATIVE , SUMMARY ADJUDICATIONoOo mn nua F&F WY NY NN KRY NY NY NY NN HN He Bee ee me ee oI DA A BwWwNH F DO we N DH BW NY KS OS Bently’s written permission, (4) collecting oil from Bently or Got Grease containers without Bently’s written permission, or (5) collecting oil from any oil collection container that 3D employees know are intended to be collected by Bently. I hereby declare that the above statements are true to the best of my knowledge and belief, and that I understand they are made for use as evidence in court and are subject to penalty for perjury. Executed this 19" Day of December, 2014 in San Francisco, California. lo Z Dorna Moini SMRH:435625198.1 -3- Case No. CGC-13-535864 SMREE35625198.1 DECLARATION OF DORNA MOINI ISO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OF IN THE ALTERNATIVE , SUMMARY ADJUDICATIONEXHIBIT AK. David Fisher SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO BENTLY BIOFUELS COMPANY, LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, Plaintiff, Case No. vs. CGC-13-535864 K. DAVID FISHER; 3D OIL&GREASE, LLC; and DOES 1-25, inclusive, Defendants. VIDEOTAPED DEPOSITION OF K. DAVID FISHER San Francisco, California Tuesday, June 10, 2014 VOLUME I 1 Reported by: ! ANA M. DUB, RMR, CRR, CCRR i CSR No. 7445 H t (PAGES 1 - 323) eLitigation Services - els@elitigationservices.comK. David Fisher SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO BENTLY BIOFUELS COMPANY, LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, Plaintiff, Case No. vs. CGC-13-535864 K. DAVID FISHER; 3D OIL&GREASE, LLC; and DOES 1-25, inclusive, Defendants. Videotaped Deposition of K. DAVID FISHER, taken on behalf of Plaintiff, at Four Embarcadero Center, 17th Floor, San Francisco, California, beginning at 9:02 a.m. and ending at 5:57 p.m. on Tuesday, June 10, 2014, before Ana M. Dub, RMR, CRR, CCRR, Certified Shorthand Reporter No. 7445. eLitigation Services - els@elitigationservices.K. David Fisher (Non-confidential portion of deposition BY MR. YOUSEFZADEH: 1 2 resumes.) 3 4 22 MR. YOUSEFZADEH: Okay. 23 MR. COLLINS: -- don't want any -- his 24 number'out there. Thank you. 25 MR. YOUSEFZADEH: Sure. Page 26 eLitigation Services - els@elitigationservices.comK. David Fisher Q. A. Okay. You're the owner as well? Correct. I'm not really into job titles, owner-operator. I'm just a truck driver. Okay. Does it have a business address? Yes. What is it? 74 Kelloch. And just so I'm clear, Kelloch is spelled K-e-1-1l-o-c-h? A. Q. as well; A. Q. Correct. All right. And that's your home address correct? Correct. Okay. And how about 3D Photography? What is your -- how long have you had 3D Photography? A. Q A. Q eLitigation Services - els@elitigationservices.com 20 -- 20 years. Always by that name? Yes. And is that also a sole proprietorship?K. David Fisher 1 . A. Yes. 2 Q. Okay. When were you first hired by them? 3 A. I believe 2007. It's 2007 or 2008. 4 I'm -- I think it's 2007, October 2007. 5 Q. And what was your title when you were } 6 hired? ! 7 A. Truck driver. 8 Q. What were your duties as a truck driver : 9 for Got Grease? 10 A. In the beginning -- I mean,-my duties ! 11 expanded over the years; but in the beginning, well, 12 to wash and clean trucks, to set up containers, to 13 go out, recycle oil, offload trucks. Sale: 18 Q. Okay. When all of that was going on, did 19 your duties -- did your title remain truck driver? 20 A. Correct. 21 Q. I'm going to come back to those duties in 22 just a second. 23 A. Okay. 24 Q. Who did you report to at Got Grease? 25 A. David Levenson, Linda Levenson. In the eLitigation Services - els@elitigationservices.comK. David Fisher Wo NM beginning, Toby Fischer. Q. Any relation? ] A. No. I can't remember -- those are fine. I -~- you know, I -- those were the only three people that -- those are fine. Q. Okay. So in the beginning it was Toby Fischer, David Levenson, and Linda Levenson? A. Correct. it Q. And then later on it was -- A. It was just David Levenson and Linda iy | I Levenson. | y i Q. -- let me talk to you about setting up containers, What does that mean? A. Some containers -- barrels, bins, have to put wheels on them. You know, they have to y i : iH ! et cetera -- don't come with wheels. You know, you yo iE ! be washed and cleaned. They also have to have a ; Hi eLitigation Services - els@elitigationservices.comK. David Fisher label, they have to be labeled, and then loaded onto a truck for delivery. Q. Okay. And then where were -- A. Or swapped. Q. Where were they delivered? A. Various different restaurants. Q. Okay. And these restaurants were customers of Got Grease? A. Yes. Okay And eLitigation Services - els@elitigationservices.com™K. David Fisher A. Various different vendors would come to pick up the oil from one set address, and then they would re-.-- they would filter it, refilter it, put an additive in it, and call it biodiesel Q. Okay. Your position as truck driver didn't involve that latter part? Once you brought the oil in, you weren't involved in the process by which they made used oil biodiesel; is that correct? A. From the very beginning, I knew of the drivers and the process. So, to that question, I'm going to say yes, I knew of it. I was not physically involved in the making of biodiesel, but I knew of it. Q. Were you involved in, say, delivering used oil from Got Grease to a vendor that would convert it to biodiesel? A. Yes. I'd help them load their trucks. eLitigation Services - els@elitigationservices.comK. David Fisher nS) ae Q. Well, I don't think that answered my question. Did you have a set schedule? Whether that subsequently changed or not, was there a schedule? A. Again, pattern and schedules change. Sometimes there were set patterns, but there's always room for a change or improvement. There could be a big festival, Fourth of July, when the restaurant needs to be visited twice in a week. You know, I mean, things change. Q. You weren't randomly dropping by restaurants; correct? It wasn't like you were dropping by one day, and then maybe the same restaurant two days later, and then the same restaurant a month later, and then the same eLitigation Services - els@elitigationservices.comeLitigation Services - els@elitigationservices.com 20 Q. 22 A. 23 Q 24 A. 25 Q K. David Fisher Yes. Okay. Incidentally, were you the only 21 driver that Got Grease had? No. How many other drivers were there? It seemed at least four. Four including or excluding you?K. David Fisher Q. And so you approached these potential new customers, basically explained what services Got Grease could offer, and then offered to leave them, say, a Got Grease barrel or bin for their used oil collection? ag that, you would agreement, assuming you’ sé services: Q. Okay. So, if somebody were interested, somebody that you approached that was interested in potential services, you'd either give them Got Grease's 1-800 number or your own personal cell phone? A. Correct. Q. All right. And if they called your personal cell phone, how would the negotiation and coming up with either a verbal or written contract go? A. Either I'd pick up their oil, you know -- Sa TE eLitigation Services - els@elitigationservices.comK. David Fisher ~ |, 1 with David? 2 A. Excuse me? ! 3 Q. What were you doing with David to help | 4 build the customer base? : ; 5 A. Oh, we'd go cold call. We'd go out and : 6 drop and deliver containers. We'd talk about 7 franchises that were expanding. We'd go on the 8 Internet and look. You know, I mean, well, he'd go 9 on the Internet and show me. Read the newspaper. ; 10 , A lot of different, various ways that we 11 built Got Grease's customer base. 12 Q. And speaking of sales job duties, 13 Got Grease didn't have, like, one standard -- first 14 of all, were most of Got Grease's agreements, were | 15 they verbal or were they in writing? / 16: : 20 Q. Okay. Would you say more were verbal or : 21 more were in writing? 22 To the extent he knows. 23 MR. COLLINS: Well, are you talking about 24 the contracts that he specifically worked with or : 25 all of Got Grease's contracts? : Page 55 SS eLitigation Services - els@elitigationservices.comK. David Fisher L some of them at least, on the agreements that you 2 helped negotiate with them; and three, based on the 3 fact that you were physically paying some of them? ! 4 MR. COLLINS: I'm going to object. It's 5 asked and answered and misstates prior testimony. 6 But you can answer, to the extent that | 7 you're able to. 8 THE WITNESS: Yes. BY MR. YOUSEFZADEH: a3 23 Q. And is that -- and you gave them your cell 24 phone number; correct? 25 A. People in the office gave it to them too. eLitigation Services - els@elitigationservices.comK. David Fisher 1 answer -- Q. So would it be fair to say that yes, you won had the names and numbers, except that sometimes 4 those contacts moved to another restaurant? 5 A. Well, that's not answering that question 6 because that's saying that they're at a different 7 place, different -- you know. But yes, I guess yes. eLitigation Services - els@elitigationservices.comK. David Fisher 21 Q. The Got Grease one, where did it have a 22 Got Grease tag? 23 A. On the left side. 24 Q. So you mean on, like, left shoulder or 25 left arm? eLitigation Services - els@elitigationservices.com 1K. David Fisher an Oo ® WN Linda Levenson left; right? A No. Q. When did Linda Levenson leave? A October Ist. Q. Oh, I see. Okay. So after you stopped working with Bently but before Linda Levenson left, you went back to her and returned some uniforms to her? A. Yes. Q. Remember approximately how many you returned? A. Ten. Q. Let me ask you really quickly about collection bins on customer properties. We discussed that Got Grease placed collection bins on customer property. Right? THE WITNESS: Stephen, I need -- because of the State stuff, do I answer some of these? Or MR. COLLINS: Can we repeat the question real quick? Page 68 eLitigation Services -- els@elitigationservices.comK. David Fisher mB WN oY Aw Q. Okay. In terms of coloring, did Got Grease have certain colors for containers? A. A lot of -- there are various different colors. You know, the plastic containers were generally black with lettering. The barrels come in all different colors, whether they're black, blue, yellow, green. I mean, barrels come in various different colors. The metal containers also come in various different colors: black, green, dark green, lime green. It depends on how new the container was. Q. Do you remember some of them being sort of like bright lime green? A. Correct. (Cellular telephone sounds.) MR. YOUSEFZADEH: Is that urgent? THE WITNESS: No. BY MR. YOUSEFZADEH: eLitigation Services - els@elitigationservices.comK. David Fisher 22 Q. All right. And I appreciate that for 23 different restaurants, it's different places. But 25 the bins; right? i j i ; 24 each restaurant had a location of where they kept : LE ; i Page 71 eLitigation Services - els@elitigationservices.com2 Yo Ww K. David Fisher made that deal on behalf of the company -- BY MR. YOUSEFZADEH: Q. Okay. A. -- but, you know, that was not the company or a Bently deal; that was a David Fisher deal. Q. Okay. ‘Are you saying that deals that you made on behalf of the company were not attributable to the company? A. Some yes; some no. Q. So what deals did you make on behalf of Got Grease that were not attributable to Got Grease? A. I'd like to say there were a lot. You know, I mean, if -- if -- well, with Got Grease. Hold on. That's with Got Grease. There was nothing bitter with Got Grease. With Bently, on the other hand, there were eLitigation Services - els@elitigationservices.comK. David Fisher me. i A. Because he was the supervisor. 1 2 Q. And why? 3 4 2 13 Q. Fair to say that you received most of your 14 calls directly from customers on your cell phone, 15 not through an answering service? 16 MR. COLLINS: Objection as to -~ what time 17 are we talking about? 18 MR. YOUSEFZADEH: During the time he was 19 with Bently up until that Thursday. 20 MR. COLLINS: Okay. 21 THE WITNESS: No. I mean, Dave and Josh 22 just told me to do my thing, do what I do, and 23 that's what I done. 24 BY MR. YOUSEFZADEH: 25 Q. I understand. The question is: Until Page 115 eLitigation Services - els@elitigationservices.comWw NY K. David Fisher "Bently" sort of written on there, not like a sticker but on the actual container? A. No. I believe it was just the Bently sticker. Q. Okay. While you were working for Bently, did you wear a uniform? A. I believe you asked me that question prior. Q. Did you continue to wear the same uniform that you were wearing while you were with Got Grease? A. I believe I answered that question earlier too, but yes. Q. Okay. Did Bently provide any new uniforms to its employees? A. Yes. Not to me, but yes. Q Okay. And also two-piece? A. Yes. Q Also, dark blue? eLitigation Services - els@elitigationservices.com Page 12324 K. David Fisher as 1, and it's just -- it's a packet. It's got several color pictures in it, which we will come back to. But I just.-- the very first one is a -- if you will agree with me, it's an individual whose face is blurred and is wearing a two-piece uniform with the word "Bently Biofuels" on the left chest. It's a green circular-type pattern. Do you see that? A. Yes. Q. Okay. Best of your recollection, that accurately reflects the uniform that Bently provided to its employees when it -- when it started, when it purchased the assets of Got Grease? A. No. Q. When did it -- when did it issue that uniform? A. I don't know. Q. Okay. But that is a Bently uniform that you're familiar with? A. Yes. I'm familiar with the Bently logo and the Bently hat. eLitigation Services - els@elitigationservices.com Page 125K. David Fisher ! ; 11 Q. In fact, there are pictures of him in H 12 here -- | 13 A Yes. 14 Q -- in this packet, Exhibit 1 -- 15 A Yes. | 16 Q. -- wearing just that uniform? 17 A. Yes. Not that uniform. That logo. 18 Q That logo. | 19 A It's a different color uniform. | 20 Q. Okay. Let's see if we can -- why don't L 21 you look at the picture that is fourth -- let's see; ._ 22 one, two -- third from the back. 23 MR. COLLINS: Would it be easier just to | 24 mark them 1-A through -- r 25 MR. YOUSEFZADEH: Yeah, I think -- eLitigation Services - els@elitigationservices.comYT An WwW B® WN K. David Fisher MR. COLLINS: I'll just object. BY MR. YOUSEFZADEH: Q. Well, do you agree that -- MR. COLLINS: The best evidence rule. The pictures -~ MR. YOUSEFZADEH: Yeah. MR. COLLINS: -- speak for themselves. MR. YOUSEFZADEH: I agree, actually. BY MR. YOUSEFZADEH: Q. Okay. So you've seen Mr. Dently wear whatever he's wearing in pages 7 and 8? A. Yes. Q. All right. A. And it's not this. Q. Okay. What do you recall signing? A. To be perfectly honest, I don't really recall signing. I know that I did. I guess an employment agreement. Q. Okay. A. I think maybe something for some medical eLitigation Services - els@elitigationservices.comK. David Fisher benefits. Q. Okay. A. And, you know, I mean, there could be other documents. MR. YOUSEFZADEH: Okay. No problem. Why don't we just see if we can't locate some of them. THE WITNESS: Okay. eLitigation Services - els@elitigationservices.comK, David Fisher 20 Q. Okay. Did you ever read that section Hh 21 under. "Security"? 22 A. I have since. But, yes. 23 Q. Okay. You don't remember one way or the 24 other if you read it when you were first given it? 25 A. I know I skimmed through it to see if Page 130 eLitigation Services - els@elitigationservices.comK. David Fisher 1 documents, designs, materials and products are the 2 sole property of Bently Biofuel Collections. 3 Q. Okay. 4 A. I was not privy to any customer lists or Bently procedures or softwares or Bently documents 5 6 or designs. I wasn't privy to any of that. 7 a3 24 . Okay. Page 132 eLitigation Services - els@elitigationservices.comty 25 23 25) 28) K. David Fisher what I done. So -- so, I mean, I'm thinking that Tuesday and Wednesday were the only days that they were there, and they complained about doing -- you know, they asked me to do what I continued to do at Got Grease, but then they complained about it. Then they asked me to forge some manifests. So, I mean -- Q. We're going to get to the manifests in a second. Do you recall getting a Bently employee manual? A. Nope. Q. Okay. A. Never got. one. Q. You never got one. A. I wasn't there long enough. eLitigation Services - els@elitigationservices.com Page 135K. David Fisher 24 Q. Even though you don't recall having seen 25 the employee handbook, do you remember ever becoming Page 136 i | i ie i if H i | eLitigation Services - els@elitigationservices.comDocuments removed subject to stipulated protective order.K. David Fisher 1 2 3 4 5 6 7 8 Q. Did anyone ever tell you that you were being fired because you didn't forge manifests? A. I think manifests was part of the termination letter. I don't know what happened, to be perfectly honest. I -- you know, I was coming back from Richmond; and Josh asked me to come to the warehouse, I guess because they were supposed to be assigning phones. And, you know, I go back in there, thinking they're going to assign me a phone, and they terminated me. But manifests or a write-up or a suspension or nothing ever came up, other than Thursday night when Josh said he'd have to write me up. None of it ever came up. Q. Would you agree that Bently was more of a stickler for the rules than Got Grease? A. I don't know. Q. Okay. A. Yes. I don't agree with it, but yes, I am aware of it. Q. Okay. Incidentally, based on your eLitigation Services - els@elitigationservices.com Page 168K. David Fisher 1 opposition, I'm assuming you were also aware that 2 forging a manifest is not permitted? 3 A. Correct. ® a 7 Q. Okay. Now, do you remember what you were 8 told about why you were fired? 9 A. Not really. 10 MR. YOUSEFZADEH: Why don't we just show 11 it to you. 12 (Whereupon, Plaintiff's Exhibit 7 was 13 marked for identification.) 14 BY MR. YOUSEFZADEH: 24 Q. Okay. And then it provides two reasons: 25 insubordination and acting outside your authority; eLitigation Services - els@elitigationservices.com1 2 3 bs K. David Fisher Coming back to Exhibit 10, because I think we skipped over it, we were talking about manifests? Correct. This is a manifest; correct? Correct. And it is for transportation of IKG? Correct. And the receiving facility is Hanford; is correct? Correct. eLitigation Services - els@elitigationservices.com —— SSSSSSSSSSSSS—SSSSSSSSSSSSs— imoK. David Fisher Page 196} eLitigation Services - els@elitigationservices.comK. David Fisher Q. You got a final check stub or pay -- final wages from Bently when you were terminated; is that correct? A. Correct. MR. YOUSEFZADEH: Okay. Let me see if I can find that document. Let's mark that next in order. (Whereupon, Plaintiff's Exhibit 12 was marked for identification.) BY MR. YOUSEFZADEH: Q. Placed in front of you a document marked eLitigation Services - els@elitigationservices.comK. David Fisher 1 A. Wasn't privy to it. Didn't really know. 2 Q. Let's talk really quickly about 3 3D Oil&Grease, which we've just been referring to as 4 3D. 5 A. Okay. 6 Q. When -- hold on. Just -- instead of 7 asking it that way -- I was going to ask you when it 8 was -- when you filed your articles of organization, 9 but I think we actually have that information. 10 Do you remember when you filed your 11 articles of organization? 12 A. I believe it was somewhere thereabout 13 September 15th or so. 14 MR. YOUSEFZADEH: Let me just hand you 15 this. 16 (Whereupon, Plaintiff's Exhibit 13 was 17 marked for identification.) 18 BY MR. YOUSEFZADEH: eLitigation Services - els@elitigationservices.com Page 202K. David Fisher 17 Q. When did you come up with the idea of 18 forming 3D? 19 A. On or about September 10th. 20 Q. Say, shortly after your termination from 22 A. Correct. 23 Q. Okay. What does "3D" stand for? 24 A. Technically, there's supposed to be an 25 apostrophe S. My name is David; I have a brother eLitigation Services - els@elitigationservices.comK. David Fisher — 1 keep repeating it. } 2 MR. COLLINS: So long as you understand, : 3 Mr. Fisher. 4 THE WITNESS: Mm-hmm. 5 MR. COLLINS: Okay. 6 MR. YOUSEFZADEH: Okay. 7 THE WITNESS: Yes, I do. 8 MR. COLLINS: Okay. 9 BY MR. YOUSEFZADEH i i Ht i i i ! 16 I don't know -- I don't recall if it was } 17 before or after the 3lst. It could have been on.the | 18 3lst. I'm not sure. That's how come I don't know. 19 But he has not been paid anything. 20 Q. Okay. If he were providing services 21 without pay on or before January 31st, 2014, what ! 22 was he helping you do? 23 A. Could be a number of things. Could be 24 collecting oil; could be maintenance on the truck. 25 Could be a variety of things. He's my family | Page 210 ———— a i eLitigation Services - els@elitigationservices.comK. David Fisher 1 member. 2 3 4 % @ B 8 3% 10} id 12 Q. Okay. So up until on or about 13 January 28th, 2014, he was a Bently employee? 14 A. Yes. 15 Q. Okay. On the -- for the three days, 16 assuming he worked with you for those three days, 17 was he -- were part of his duties interacting with 18 customers? 19 A. He -- 20 Q. I shouldn't say "duties." Were part of 21 his services that he was providing, was he helping 22 interact with customers? 23 A. Probably. 24 Q. Okay. 25 A. You know, again, I don't know if he helped Page 211 eLitigation Services ~- els@elitigationservices.com1 2 K. David Fisher additional people? A. He -- he could not do additional. He would do the priorities, not additionals, the priorities. Q. While Mr. Dently was still employed with Bently, did you ever speak with him about helping you with 3D? A. No. Q. Okay. After your termination from Bently but while Mr. Dently was still hired or still employed with them, did any of the following things ever happen: Did he help you service any Got Grease or Bently customer? A. I was terminated. He serviced plenty of Got’ Grease/Bently accounts. I don't know how you're -- Q. Okay. So did he ever help you go after some of those accounts? A. No. Q. Okay. Did he ever accompany you while you were, through 3D, going to service any accounts that Page 214 eLitigation Services - els@elitigationservices.com 7Yn OW B® WN K. David Fisher previously belonged to Got Grease or Bently? A. While he was employed? No. Q. Yeah. These are all while he was still there. A. Correct. No. Q. Okay. Did he, while he was employed for Bently, ever transport any oil for 3D? A. No. Q. Did he ever transfer any oil to 3D? A. No. Q. For the three days after his termination when he was helping you voluntarily, what clothing was he wearing? A. I believe he was wearing Bently clothing. Q Okay. So the Bently uniform? A. Yes. Q Okay. And so he was accompanying you. And at that time, were you still trying to get some of your old accounts, the ones that you used to have with Got Grease or Bently? A. No. He did not go out on any sales or anything, no. Q. No. I mean just to service the accounts. Page 215 eLitigation Services - els@elitigationservices.comK. David Fisher Q. Do you think it might have been misleading for anybody inside those restaurants to see you there with a person wearing a Bently uniform? A. That's speculation. MR. COLLINS: Objection. THE WITNESS: But, no. BY MR. YOUSEFZADEH: Q. No, you don't think that was misleading? A. No, not at all, because he wasn't going into the restaurant. They weren't physically seeing him there. You know, it wasn't like he'd walk into the restaurant and get the container. I'd bring the containers out to him. MR. YOUSEFZADEH: Okay. THE WITNESS: Oh, you got some treats for us. MR. YOUSEFZADEH: I'11l come back to these in a while. eLitigation Services ~ els@elitigationservices.com Page 216 i iK. David Fisher Q. What's Industrial? A. It was a warehouse that used to be where Got Grease's warehouse was. Q. Okay. And where did it move to after that? A. Bently moved to 3501 Collins. Q. Okay. And what -- they had already moved by 1/30, I'm assuming. A. Yes. Q. Okay. So what were you doing at the old Got Grease facility? A. Working on trying to secure that space for 3D. Q. Okay. So you were trying to move 3D into the old Got Grease facility? A. Correct. Q. Okay. And what was Mr. Dently doing there with you? A. On this day? It appears as though maybe we were restocking the truck for barrels or -- I don't particularly know. I can't necessarily say I know. 3e eLitigation Services - els@elitigationservices.comK. David Fisher u ad 2 Q. When you say "Swap out," what are you 3 referring to? 4 A. Bently had a habit of putting their containers in my spots or putting their stickers on 5 6 my containers. 7 Q. When you say on "my spots," what are you 8 referring to? 9 A. At ~~ at my locations -- like Cha Cha Cha, 10 Le Colonial, Limon -- Bently would have a tendency ll to remove or damage my sticker and put their sticker 12 in its place. 13 Q. The places that you just named, 14 Le Colonial, Cha Cha Cha -- and I don't remember 15 what the third one was. 16 A. Limon. 17 Q. -- Limon, those are all customers that you 18 serviced through Got Grease; right? 19 A. Formerly through Got Grease, yes. 20 Q. Okay. And then through Bently? 21 A. I don't know if I ever got to service them 22 with Bently. 23 Q. Okay. Assuming that Bently inherited the 24 customers and the customer list of those entities, 25 what would make them your customers? eLitigation Services - els@elitigationservices.comK. David Fisher — 1 A. Again, from my understanding, there is 2 nothing proprietary about the list. It's public 3 information. , : 4 And anyone can do this. Maybe not as well as me, but anyone could get a pump truck, get a 5 6 license, and go and solicit any of the restaurants. 7 And if you're giving them a bigger, better deal, 8 they're more inclined to sign up with you. 9 on Page 223 eLitigation Services - els@elitigationservices.comK. David Fisher As Cor Q. And you were the lead and the head person and the point of contact for them when they had issues; right? A. Correct. Q. Okay. So when they called you, do you know if they were trying to reach you, the employee of Bently/Got Grease, or you the individual? A. Generally, they'd call for an oil pickup; and I will explain -- I would explain to them that I was a separate entity. Q. Okay. Did any of the people that called you for an oil pickup subsequently -- well, let me just put it this way: Has it come to your attention since that some of the people that called you for oil pickups remained confused that you were still part of Bently or Got Grease? A. I don't know. I can't speak for them. IK. David Fisher 24 25 Maybe, if I can give an example, I'd go and sign up a Tempest under 3D with a chef, and Bently will go and re-sign them with the owner. Q. Okay. A. I mean, I -- something like that. So, I mean, I'd imagine they'd be confused; but it wasn't for something that I've done. And I tried to remedy, I mean, I've tried to -- anyone that's called me, I've tried to explain that I've been a separate entity, that I ama separate entity. Q. You brought up Tempest. There might be some documentation. So let me just take a quick look. You also brought up Limon. Let me -- we're going to come back to that. I want to ask you about Tempest and Limon and the rest. But -- A. Okay. Q. -- before we get there, after you left -- eLitigation Services ~ els@elitigationservices.com iWwW mM K. David Fisher All right. Q A. So, yes, I know the going rates. Q Okay. A And I've known the going rates. Q. Okay. And when you were going to secure somebody who was with Got Grease or Bently and if it happened to be one of the people that you were offering rates to, I'm assuming you made your offer competitive by considering those rates when you offered your own? A. No. Q. So you -- A. I could not compete with the Bently rates. Q. Okay. You understand that some of your con~ -- some of the agreements that you've made paid more than the Bently rates? A. Don't think so. Q. Okay. We'll come back to that. So you think, uniformly, your rates that you paid per gallon were lower than what Bently was paying?L K. David Fisher removed? Or Q. Okay. Did -- how did Bently know where to retrieve them? A. Josh's -- Josh Clutter's brother worked for CAB. Q. Okay. What does that have to do with the question? I'm sorry. I don't understand the answer. A. You asked me how would Bently know. Josh Clutter's brother, Ralph, worked for CAB. I was selling my oil to CAB. He was a driver. Josh Clutter's brother told him where the bins were. Q. Okay. How would Josh Clutter's brother know where the bins were? A. I showed him. Q. Okay. So if I may summarize this, you removed these bins, your testimony is, at the direction of the restaurant owners without coordination or permission from Bently; dropped them off in an industrial space; and then subsequently showed Josh Clutter's brother, who worked at CAB, where they were so that he could advise Josh Clutter Page 250 eLitigation Services ~ els@elitigationservices.coma WN K. David Fisher But, I mean, there's other documents from CDFA that I don't have immediate access to. But everything that I have immediate access to I've turned over, whether it was helpful to me or not, as I see that some of these things I've turned over are coming back to haunt me. So Q. Okay. A. I mean, you know, I wanted to clear that up. Q. All right. Well, I will -- I will meet and confer with your counsel on that issue. A. Okay. Q. With respect to Exhibits 18, 19, 20, and 21, were these exhibits sent to Bently? A. Yes. a9 x eLitigation Services - els@elitigationservices.comK. David Fisher Page 255 eLitigation Services - els@elitigationservices.comK. David Fisher Page 256 eLitigation Services - els@elitigationservices.comK. David Fisher Lu A onteeb 2 Q. All right. You were aware, as a result of 3 working for Got Grease and Bently, that Limon was at 4 the time a Got Grease and Bently customer? A. No. I signed them up prior. I signed 5 6 them up October 2nd. ; 7 Q. That Notice of Cancellation? 8 A. Yes. i 9 Q. Okay. So you signed up Limon on 10 October 2nd, 2013, is what you're testifying to? 11 A. Correct. 12 Q. Okay. And this is Exhibit 20, which is 13 not signed by anyone. 14 A. Well, management, they don't sign, 15 correct, although I did get a service agreement ! 16 signed by the chefs. 17 Q. Okay. Let's talk about that for a minute. 18 Brought them up. We'll come back to the CDFA in : 19 just a second. 20 A. Okay. ) i 21 Q. All right. Now, sometime after you were : 22 terminated -- this is a few weeks later -- my : 23 understanding is that you received a call from 24 someone at Limon Rotisserie. Is that correct? 25 A. Yes. Page 257 eLitigation Services - els@elitigationservices.comK. David Fisher 1 All right. And do you recall who called 2 you? 3 A. Yes. 4 Q. Who was it? ! 5 A. The chef, Cesar. 6 Q. All right. And does the -- does the date : 7 of 10 -- October 6, 2013 sound accurate? 8 A. Excuse me? F 9 Q. He called you on October 6th, 2013; is : 10 that correct? Or maybe that's when you went over 11 there. 12 A. I think I went over there. I think he 13 called me on the 4th. 14 Q. Okay. So he called you on October 4th, 15 2013. And what did he say? 16 A. "David, I got some chicken for you." 17 Q. I guess the question is: What did he tell 18 you about the grease trap? 19 A. "David, I got some stuff that smells. Can 20 you come suck it out?" 21 Q. Okay. Did he call you on your cell phone? 22 A. Yes. Page 258 eLitigation Services - els@elitigationservices.comK. David Fisher — 1 Q. Up until October 2nd, there is no question : 2 that they were a Got Grease or Bently customer; f 3 correct? ! i 4 A. No, no question. it i Y i it ! t B i} i ! t i } : H ! Page 259 eLitigation Services - els@elitigationservices.comK. David Fisher 24 25 AD Q. When you went -- well, first of all, when Limon called you, did you tell them that you were no longer with Bently? A. Q. Yes. Okay. When you went over there, did you ask them if they had an agreement with someone? A. Pr oO Fr OO Fr 0 Yes. And what did they say? To talk to Antonio or Fernando. And did you? Yes, I did. And what did they tell you? That they had signed up with me. eLitigation Services - els@elitigationservices.com Page 260K. David Fisher Q. In your experience -- Q. Okay. Do you recall somebody giving you a call after -- well, first of all -- yeah. Actually, do you recall somebody calling you from Bently after this incident and asking you about it? A. I recall Josh, from Bently, asking me about some grease traps. And this was something -- I told him this was a completely different eLitigation Services - els@elitigationservices.com (hee |K. David Fisher 1 Bently? 2 A. No, I was not aware of that. 3 Q. Do you know Tyrrell Brooks? : 4 A. Yes. 5 Q. Who is he? 6 A. The owner of CAB. i 7 Q. Someone that you work with or used to work 8 with? 9 A. Yes. eLitigation Services - els@elitigationservices.comK. David Fisher 14 Q. And -- well, if I were to tell you his 15 actual report was that you had pulled into Limon 16 Restaurant in a red International truck with a 17 black -- with a black tank on the back and began 18 vacuuming oil from the Bently or Got Grease 19 55-gallon drum located adjacent to the restaurant, 20 would you say that that is an inaccurate statement? 21 A. I would say that's a very inaccurate 22 statement. 23 Q. And how is it inaccurate? 24 A. First of all, I sucked out grease trap out 25 of some 5-gallon bucket. And my drum was in place eLitigation Services - els@elitigationservices.comK. David Fisher Page 270 eLitigation Services - els@elitigationservices.comK. David Fisher MR. YOUSEFZADEH: Let me provide, just for the record, these things from the CDFA. I want to get some authentication of documents that you have filed with them. Where's my CDFA file? That's what I was looking for earlier. Before we do that, let me mark this document. (Whereupon, Plaintiff's Exhibit 23 was marked for identification.) BY MR. YOUSEFZADEH: Q. This, I will represent to you, is an e-mail dated October 10th, 2013, memorializing your conversation with Mr. Clutter, marked Exhibit 23. Have you had an opportunity to review this document? A. Yes. Q. Okay. In reviewing this document, does it refresh your recollection as to the conversation you had with Mr. Clutter regarding Limon Rotisserie? A. I had this conversation, from my eLitigation Services - els@elitigationservices.com Page 271 [|K. David Fisher 1 (Whereupon, Plaintiff's Exhibit 29 was nD marked for identification.) w MR. YOUSEFZADEH: . 30. 4 (Whereupon, Plaintiff's Exhibit 30 was 5 marked for identification.) | 6 MR. YOUSEFZADEH: And, lastly, 31. ; 7 (Whereupon, Plaintiff's Exhibit 31 was ; 8 marked for identification.) 9 BY MR. YOUSEFZADEH: t Page 274 eLitigation Services - els@elitigationservices.comK. David Fisher Page 275 eLitigation Services - els@elitigationservices.comK. David Fisher As) Yess) Q. So in here you're confirming -- so let's take a look at D0014, your letter. A. Mm-hmm. Q. You're confirming that for five years while you were employed with Got Grease, you were not only the sale -- you were not only driving but in sales and management also; right? A. Correct. Q. And that you were a focal point of building Got Grease; is that right? A. Correct. Q. Okay. You identify further down that you started collecting oil on Sunday, October 20th. Is that correct? The last paragraph. A. Yes. Q. I draw your attention to DOO1LS. A. Okay. Q. The first paragraph, the fourth line from the bottom. A. Mm-hmm. Q. I believe, if I'm -- tell me if I'm not, but if I understand correctly, the context of this is that we're talking about that transfer of oil to Hanford Commodities. Correct? eLitigation Services - els@elitigationservices.comK. David Fisher B WN o A. Yes. Q. Okay. And you write here: "I had Mr. Balibrera send his certificate-to Hanford Commodities." A. Correct, Q. And Mr. Balibrera is Kenny Balibrera of KB? A. Correct. Q. And the next sentence, it reads: "I made this decision because this is a very competitive business and I had lost at least 10 restaurants to competitors that had committed to 3D Oil&Grease." Do you see that? A. Yes. What were you referring to? When I had started signing up restaurants October lst, a number of restaurants that had committed to 3D OilsGrease went to various different companies, like Bently, Krause and Nagy, Blue Sky. You know, I had lost at least ten restaurants to those guys. Ten in one -- you know, ten in one place. So eLitigation Services - els@elitigationservices.comK. David Fisher 20) 20 22) 25) sinéss 4 a3 Oe Q. -- before you started providing these services, you would have lost more business? A. As it stands, this is very incorrect. Maybe if I had just waited, period, until October 29th and not jumped the gun, maybe I might not be in trouble with the State. I don't know. You know, I mean, I -- I honestly don't know. Q. Yeah. I'm not asking, though, reasonably for a judgment on that decision. What I'm saying is: What you're writing here, that's what you meant? A. Right. I mean, that's what I meant at the eLitigation Services - els@elitigationservices.comK. David Fisher In the second paragraph, you say "Bently Biofuels and Got Grease do not have written or in many cases oral contracts with many of the [sic] restaurants that they are servicing." A. Correct. Q. How do you know that? A. At that time, they did not. Because, being in sales from Got Grease, I knew that. That wasn't -- that isn't -- that was a matter of fact. It might not be now, but it was a matter of fact then. Q. Okay. You also agree that Got Grease had at least verbal agreements with most of its customers; right? A. That they knew. Q. Okay. And did you know whether or not Bently Biofuels had contracts with their customers? A. Yes, I did. Q. How did you know that? eLitigation Services - els@elitigationservices.com Page 279K. David Fisher 1 A. I knew the primary sales guy and from what 2 David and Linda turned over to them: So, yes, I 3 did. 4 Q. But from what they turned over, it 5 wouldn't identify whether they were oral agreements; : 6 right? 7 A. From my knowledge, yes. For me being out ! 8 in the field, yes, I would know if there were oral i 9 agreements or not. 25 Q. In fact, I believe somewhere around here Page 280 eLitigation Services - els@elitigationservices.comK. David Fisher Q. Which is? A. Oh. This location? Or Q. No. The one that you were talking about, 3501 Collins. A. That -- that's -- that's Bently's location. That's Bently's address. 18 Q. Have you taken any back to the old i 19 Got Grease facility? 20 A. That is the industrial. JI mean -- | 21 Q. That's the industrial complex? That's in 22 Exhibit 15? 23 A. No. That -- this is an industrial : 24 complex, The old Got Grease facility is technically | 25 on Industrial Way, like three blocks away. : Page 288 eLitigation Services - els@elitigationservices.coma WN K. David Fisher open at 9 o'clock. So if you're in the business, you can take that. It's public information that's -- Q. You agree that there are certain businesses that, say, have a rush in the morning; others, in the afternoon; others, in the evening? A. Correct. eLitigation Services - els@elitigationservices.com Page 317 iK. David Fisher 1 A. -- I mean -- eLitigation Services - els@elitigationservices.comK. David Fisher B Q. Okay. A I will agree with that. MR. YOUSEFZADEH: All right. Well, I believe we're over our seven-hour mark; so I will go ahead and mark this conversation -- or the end of the deposition. I, of course -- I don't know if I've -- 1 haven't said this on the record. I'm just adjourning, and I intend to either meet and confer with counsel or move for an order for two to three additional hours. So with that said, I will go ahead and adjourn. MR. COLLINS: All right. Thank you. THE VIDEOGRAPHER: This marks the end of Tape No. 4 in the deposition of K. David Fisher. eLitigation Services - els@elitigationservices.com Page 320 \ : ieee : i ! i i |K. David Fisher I, ANA M. DUB, CSR No. 7445, Certified Shorthand Reporter, hereby certify that: T am authorized to administer oaths or affirmations. (Cal CCP § 2093 (b) and FRCP 28(a)). The foregoing proceedings were taken before me at the time and place therein set forth, at which time the witness was duly sworn by me. (Cal CCP § 2025.330(a), 2025.540(a) and FRCP 30(f)(1i)). The foregoing pages contain a full, true and accurate record of all proceedings and testimony. (Cal CCP § 2025.540(a) and FRCP 30(f£)(1)). TI am not. a relative or employee of the parties, nor financially interested in the action. (Cal CCP § 2025.320(a)). Before completion of the proceedings, review of the transcript [ x ] was [ J] was not requested. If requested, any changes made by the witness (and provided to the reporter) during the period allowed, are appended hereto. (FRCP 30(e)). I declare under penalty of perjury under the laws of California that the foregoing is true and correct. Dated this 24th day of JUNE, 2014 ANA M. DUB, RMR, CRR, CCRR, CSR NO. 7445 eLitigation Services - els@elitigationservices.comEXHIBIT BEmployment Agreement wmess Fisher extiair__& For: K, David Fisher oate@lO-FotR AD. eLitigatlon Services ino, | accept employment with Bently Biofuel Collection Services commencing on August 30, 2013. l understand my position title to be a CDL Class B Truck Driver with a starting rate of 21.50 per HOUR. Policy | understand that the standards and pollcies of Bently Biofuel Collection Services are set forth in the Employeé Handbook, which | agree to read, accept and follow to the best of my ability. Future revisions to the Employee Handbook will be posted and my responslbility is to record these revisions In my copy of the Employee Handbook and to follow the action described, Violation of the Company Policy described in the Employee Handbook, Policy and Procedures Manual and revisions thereto are subject to discipline, up to and including termination. Wage Adjustment | accept my starting wage as a fair and equitable rate for the position offered to me and understand that all future increases or decreases will be made in accordance with my job performance. My Job Performance will be reviewed in a timely fashion and merit Increases, if eamed, may be awarded. If circumstances require (such as promotion, damoilon or transfer), a special performance review may be given at any time the company deems necessary. Safety | understand that Safety is an Integral part of my Job with Bently Biofuel Collection Services. | agree to keep myself Informed of all Bently Blofuel Collection Services safe-work procedures and practices in my working area and to follow them completely. | am responsible for making sure that all persons coming Into my work area are informed of our safety requirements. 1 must abide by all of the safety requirements of other working areas of Bently Holdings California LP that | may enter for any reason, Security | understand that all materials marked Company Confidential ar Information of a proprietary nature or obtalned In confidence, Including but not limited to customer Iists, procedures, software, documents, designs, materials and products are the sole property of Bently Blofuel Collection Services and are confidential. | agree that | will not disclose any such Information In any form or format, except in the regular course of my employment as approved by my supervisor or manager, to any outside party or parties elther during my employment, or for 3 years after the termination of my employment with Bently Blofuel Collection Services. . | understand that in exchange for my agreed upon compensation, | agree that all intellectual property such as Inventions, formulas, trade secrets, techniques and processes whether or not patentable, made or conceived either solely or In conjunction with others during the period of my employment, which relate to or result from the actual or demonstrably anticipated business, work, or research and development of the company are and shall remain the sole property of Bently Biofuel Collection Services, and all such Intellectual property shall be assigned to Bently Blofuel Collaction Services, | understand that all property of Bently Blofuel Collection Services including all work materials, furniture, equipment, supplies, parts, products, telephones and vehiclas are for the sole use of the operation of the Company and that any private use, abuse, misappropriation or destruction of the Company property is prohibited. Acceptance During the period of my employment | agree to abide by the policies and Procedures of Bently Blofuel Collection Services as they may be amended from time to time. | have read and understand the Employee Handbook. | understand and agree that my employment Is at will, and that this agreement Is regarding conduct during and after employment, it Is nota contract regarding continued employment, itis for no definite perlod and may, regardless of the date of payment of any wages and salary, be terminated at any time without my previous notice or cause. d Jo he Baa 30903 YW 16/3/1013 CY Employee Signature Date H.R. Representative Signature DateEXHIBIT CCTION COLLE SERVICES Cc i} axel Lal = Fabee © 8 QI B B Z E = eLtigation S