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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jan-07-2014 9:31 am
Case Number: CUD-13-645401
Filing Date: Jan-07-2014 9:31
Filed by: WESLEY G. RAMIREZ
Juke Box: 001 Image: 04331435
OPPOSITION
SBERLO, YOEL, TRUSTEE FOR SBERLO FAMILY TRUST VS. YARNG ALTAWAL
et al
001004331435
Instructions:
Please place this sheet on top of the document to be scanned.won
n wo
28
LAW OFFICES OF
4115
(415) 563-9300
Hani Cf
LAW OFFICES OF KAREN Y. UCHIYAMA
KAREN Y. UCHIYAMA - STATE BAR NO. 154414
AARON A. FARMER - STATE BAR NO. 268921
1441 Baker Street
San Francisco, California 94115
Telephone: (415) 563-9300
Facsimile: (415) 563-9304
Attorney for Plaintiff
YOEL SBERLO, TRUSTEE FOR SBERLO
FAMILY TRUST
LLE D.
JAN OT 24
CLERK QESH QURT
BY: ‘S na aputy jork
San Frei
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - LIMITED CIVIL JURISDICTION
YOEL SBERLO, TRUSTEE FOR SBERLO
FAMILY TRUST,
Plaintiff
v.
YARNG ALTAWAL, SUSAN ALTAWAL,
and DOES | through X, in occupancy,
Defendants.
SSS
Case No. CUD-13-645401
PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION TO
DISQUALIFY PLAINTIFF’S COUNSEL
KAREN UCHIYAMA, AND THE
ATTORNEYS IN HER FIRM, AARON
FARMER, AND TO HOLD THEM IN
CONTEMPT FOR VIOLATING A COURT
ORDER AND INTERFERING WITH THE
JUDICIAL PROCESS; MEMORANDUM
OF POINTS AND AUTHORITIES;
DECLARATION OF KAREN Y.
UCHTY AMA, ESQ.
Hearing:
Date: January 8, 2014
Time: 9:30 a.m.
Dept.: 501
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO
DISQUALIFY PLAINTIFF’S COUNSEL AND HOLD THEM IN
CONTEMPT FOR VIOLATING COURT ORDER28
LAW OFFICES OF
94115
(415) 583-9300
Plaintiff YOEL SBERLO, TRUSTEE FOR SBERLO FAMILY TRUST hereby
opposes Defendant YARNG ALTAWAL/’s motion to disqualify his counsel on the eve of trial, as
follows:
The facts are very simple in this case. Plaintiff and his property managers
terminated Defendant’s tenancy because he was subletting his rent-controlled apartment to
strangers without permission, and pocketing the rent money. While Plaintiff was investigating
the subletting operation, they installed a security camera in the common areas of the apartment
building and held three months of rent checks pending their investigation (Litigation Privileged
conduct). Both Defendant ALTAWAL and his attorney were aware that the rent checks were not
being cashed because they each raised the issue to Plaintiff's attorney and property manager.
When the investigation was completed and Plaintiff was ready to start the
litigation, four rent checks were deposited at the same time at the beginning of April 2013. Three
out of four of the rent checks bounced on April 10, 2013 and the bank notified Defendant of the
problem. Defendant had three weeks to make good on the bounced checks; but he did nothing.
On May 1, 2013, Plaintiff served him with a Three Day Notice to Pay Rent or Quit and was
surprised when Defendant failed to cure the rent default. Plaintiff thereafter served a Three Day
Notice to Quit regarding the unauthorized subletting and master tenant profiteering on May 6,
2013, and then proceeded with the unlawful detainer action on three causes of action.
The trial is scheduled for the week of January 27, 2014.
A. THERE ARE NO GROUNDS FOR DEFENDANT TO DISQUALIFY
OPPOSING COUNSEL ON THE EVE OF TRIAL OR HOLD THEM IN
CONTEMPT FOR VIOLATING A “PRIOR RESTRAINTS” ORDER.
Defendant can cite no legal authority for a party to disqualify his opponent’s trial
counsel on the eve of trial. He only cites “the trial court’s inherent power.”
A court may disqualify an attorney upon “a showing that disqualification is
required under professional standards governing avoidance of conflicts of interest or potential
adverse use of confidential information.” Oaks Management Corporation v. Superior Court
(2006) 145 Cal. App.4"" 453, 462.
PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO
DISQUALIFY PLAINTIFF’S COUNSEL AND HOLD THEM IN
CONTEMPT FOR VIOLATING COURT ORDER27
28
LAW OFFICES OF
KAREN Y. UCHIYAMA
1441 Baker Steet
‘San Francisco, Calfornia
4115
(415) 563-9300
Defendant can cite no legal authority for the court to disqualify an attorney via her
opponent’s bringing a motion to disqualify opposing counsel simply because they are adverse to
each other, or do not like each other. Obviously, Defendant brought this motion to disqualify
opposing counsel because Plaintiff keeps winning motions against Defendant; Plaintiff got
$9,230.00 in sanctions against Defendant and his attorney for discovery abuses; and Plaintiff
successfully opposes motions brought by Defendant and his attorney.
Defendant and his attorney, Mark Hooshmand, pray for an order holding
Plaintiff's attorney, Karen Uchiyama, “in contempt” for competently defending her clients’
depositions and not allowing them to fall for Mark Hooshmand’s trick questions, for talking at
her clients’ depositions, and for not allowing Mark Hooshmand to bully the deponents during the
depositions. Defendant does not articulate why attorney Aaron Farmer should be held in
contempt too.
Defendant’s attorney lost sight of what a deposition of for (fact finding, evidence
finding, witness finding...). Instead, Mr. Hooshmand attempted to use a deposition as a vehicle
to record statements that can be used against the deponent, particularly if the question was
misunderstood by the deponent or the deponent to not grasp what the questioning attorney was
suggesting. For that reason, it was essential for Plaintiff's attomey to be at the depositions of her
clients and speak at times, at the depositions of her clients.
Karen Uchiyama’s success at defending her clients’ depositions and preventing
them from falling into “language traps” evidently infuriated a bully like attorney Mark
Hooshmand (to the degree that he sought a “prior restraint” order.
In a somewhat ridiculous effort to try to keep Plaintiff's attorney to keep her
mouth shut at her clients’ depositions, on December 16, 2013, Defendant’s attorney made an ex
parte application before the December 19" depositions of Plaintiff, his wife, and his property
managers for a court order “ordering” Plaintiff's counsel to “not interrupt counsel or the
witness,” and “not make speaking objections, not coach the witness, and not respond for the
witness or suggest an answer.” Plaintiff's counsel, Karen Uchiyama, did not appear at the
hearing to oppose the ex parte application because she thought it was frivolous and just another
3
PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO
DISQUALIFY PLAINTIFF’S COUNSEL AND HOLD THEM IN
CONTEMPT FOR VIOLATING COURT ORDERoS
nan oO
27
28
LAW OFFICES OF
KAREN Y. UCHIVAMA
1441 Baker Street
attempt by Mark Hooshmand to insult her, harass her client and increase his legal expenses.
Defendant’s application was like getting an ex parte injunction to order an attorney to follow the
Code of Civil Procedure, and to order an attorney not to do anything to annoy his or her
Opponent, or talk at a deposition! Plaintiff was very surprised that the Court even granted this
application as Defendant’s remedy should be sought after a deposition through a motion to
compel further responses, not as a Prior Restraint injunction order entered before the speech at
the depositions occurred.
B. THE EX PARTE INJUNCTION ORDER WAS AN UNLAWFUL PRIOR
EEE ERECTION ORDER WAS AN UNLAWFUL PRIOR
RESTRAINT ON FREE SPEECH.
The Court’s order of December 16, 2013 regarding his attorney Karen Uchiyama’s
conduct and speech at depositions placed a direct restraint on her right to freedom of speech
under the United States and California Constitutions (U. S. Const., 1" Amend. ; California Const.,
art I & 2, subd (a)), and would have denied Ms. Uchiyama’s clients proper defenses at their
depositions had she not spoken out against Mr. Hooshmand at times during the depositions. Ms.
Uchiyama should be held in contempt or disqualified as Plaintiff's counsel for speaking at her
clients’ depositions, whether Mr. Hooshmand liked it or not.
“Orders which restrict or preclude a citizen from speaking in advance are known
as ‘prior restraints,” and are disfavored and presumptively invalid.” Hurvitz v. Hoefflin (2000)
84 Cal.App.4" 1232, 1241, fn omitted.
“Prior restraints on speech and publications are the most serious and the least
tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart (1 976) 427
U.S. 539, 559. An order restricting the speech of trial participants (including attorneys) is a prior
restraint. Hurvitz, at pp 1241-1242; Saline v. Superior Court (2002) 100 Cal.App.4" 909, 915-
916. Although the right to a fair trial is also a protected constitutional right, a court seeking to
insure a fair trial may not impose a prior restraint unless “the gravity of the “evil,” discounted by
its improbability, justifies such invasion of free speech as it necessary to avoid the danger.”
Nebraska Press, at p. 562.
As a general rule, gag orders on trial participants are subject to strict judicial
PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO.
DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN
CONTEMPT FOR VIOLATING COURT ORDER27
28
LAW OFFICES OF
KAREN Y. UCHIYAMA,
1441 Baker Street
‘San Francisco, Calfomia
scrutiny and may not be imposed “unless (1) the speech sought to be restrained poses a clear and
present danger or serious and imminent threat to a protected competing interest; (2) the order is
narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.”
Hurvits, supra, 84 Cal, App.4" at p. 1241, Jn. Omitted; Maggi v. Superior Court (2004) 119
Cal. App.4" 1218, 1225.
In the instant case, the court did not apply this or any other standard on December
16, 2013 because Defendant’s counsel got the gag order via an ex parte application and
Plaintiff's counsel did not appear to oppose because she thought it was just another one of Mark
Hooshmand’s many, stupid mean-spirited applications that was intended to just personally attack
her.
The evidence shows in Defendants proffered sample of a deposition transcript
that Plaintiff's attorney did not do or say anything egregious, even when the broad scope of the
Order could have substantially invaded her right to free speech and her clients’ right to have fair
Tepresentation at their depositions. Attorney Karen Uchiyama was not going to let Mark
Hooshmand bully her into saying nothing at the depositions in fear of a motion like the one that
Defendant is presently making against her and her client.
CONCLUSION
In short, Defendant ALTAWAL’s motion to disqualify Plaintiffs counsel is
unsupported by the applicable law and the facts in this case. Plaintiff's attorney has successfully
brought and opposed four discovery motions against Mark Hooshmand, and Plaintiff was
awarded over $9,300.00 in discovery sanctions against Mark Hooshmand in this case to date.
Now Attorney Mark Hooshmand does not want attorneys, Karen Uchiyama and Aaron Farmer, to
try this case on January 27, 2014 either.
Clearly, this motion to disqualify Plaintiff's counsel was brought by Defendant’s
counsel, Mark Hooshmand, to retaliate against Plaintiff's attorneys who are strong and resilient
enough to withstand his constant bullying in person and through his flagrant abuses of process
and his effort to drive up Plaintiff's legal expenses.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO
DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN
CONTEMPT FOR VIOLATING COURT ORDER27
28
LAW OFFICES OF
KAREN Y. UCHIYAMA
1441 Baker Street
‘San Francisco, Califomia
5
ait
(415) 563-0300
Plaintiff has done nothing wrong in this case and has nothing to hide from
Defendant as far as discovery goes. He certainly should not be deprived of good representation
at trial. Defendant ALTAWAL and his attorney’s motion to disqualify Plaintiffs counsel on the
eve or trial and/or hold attorney Karen Uchiyama in contempt of court should be denied.
DATED: January b- 2014
YOEL SBERLO, TRUSTEE FOR
SBERLO FAMILY TRUST
PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO
DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN
CONTEMPT FOR VIOLATING COURT ORDERwon
27
28
LAW OFFICES OF
KAREN Y. UCHIYAMA
1441 Baker Street
San Francisco, Califomia
ont
1
(415) 563-6300
I, KAREN Y. UCHIYAMA, declare:
1. Tam the attorney and trial counsel for Plaintiff YOEL SBERLO,
TRUSTEE FOR SBERLO FAMILY TRUST and licensed to practice law in all of the courts in
California. The following statements are within my personal knowledge and I could and would
testify to them if called as a witness.
2. This motion is just another example of how Defendant’s counsel makes up
his own law and civil procedures, gets constantly sanctioned by the Court, and unnecessarily
increases his opponent's attorney’s fees for no good reason.
3. In short, Defendant has no grounds to disqualify his opponents on the eve
of trial. His personal attacks on me should show the Court that he can fabricate no good defense
for his client in this case. Mr. Hooshmand has resorted to trying to create an appearing of
wrongdoing on my and my associate’s part which is unsupported by any evidence. I never
“prepared false declarations” or “prepared discovery responses based on false facts.” I defended
my clients’ depositions to the best of my abilities, particularly when faced with Mr.
Hooshmand’s litigation style — which is to bully deponents, ask trick questions, and make them
agree to false statements of the law on the record,
5. I did not appear at the hearing on Defendant’s ex parte application to
govern my speech and conduct prior to my clients’ depositions because I did not believe the
Court would grant such an injunction and a “Prior Restraints” order via ex parte application.
And frankly, I thought Mark Hooshmand’s request was ridiculous as it was like trying to geta
court order before a deposition to not anger the attorney taking the deposition.
6. Nonetheless, despite Mr. Hooshmand’s continuing threats toward me
(during the deposition) whenever I spoke, I spoke during the depositions when appropriate, when.
the questions were unclear, ambiguous, harassing, and misleading, and I properly defended those
depositions. I refuse to be intimidated by Mr. Hooshmand, and the Court should not be
intimidated by him either. Based on my personal experience with Mr. Hooshmand and his
litigation style over the years, he will appeal orders and judgments rendered against him and
clients just for the effect of it, whether he believes they have merit or not.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO
DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN
CONTEMPT FOR VIOLATING COURT ORDER1 7. Plaintiff's case against Defendant has merit and none of the notices are
defective as a matter of law. Defendant has already brought a motion for summary judgment and
wien
summary adjudication (and lost) in this case already. If Plaintiff's notices to quit were defective,
4 | or he did not comply with the procedural requirements to terminate a tenancy, Defendant would
5 | have prevailed by now.
6 8. Since there is no legal authority for the Court to grant Defendant’s motion
7 | to disqualify Plaintiff's attorneys on the eve of trial, Defendant’s motion should be denied. This
8 | is especially important since Defendant and his attorney refuse to settle the case under reasonable
9 | terms, and are forcing Plaintiff to try this case at his expense.
10 I declare under penalty of perjury under the laws of the State of California that the
11 | foregoing is true and correct. Executed this G. day of January, 2014, in San Francisco,
12 | California.
13 ZL Ve fy
14 By
KAREN Y. UCHTYAMA‘% ESQ.
25
26
27
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LAW OFFICES OF 8
KAREN Y. UCHIYAMA
1441 Baker Street PLAINTIFF’S OPPOSITION TO DEFENDANT'S MOTION TO.
sore DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN
(+15 5-300 CONTEMPT FOR VIOLATING COURT ORDERKaren Uchiyama
From: Mark Hooshmand
Sent: Tuesday, December 31, 2013 11:42 AM
To: Karen Uchiyama; Aaron Farmer
Ce: Mark Hooshmand; Ian Hansen; Deanna Maxfield
Subject: Sberlo v. Altawal - Demand for Withdrawal of Counsel of Plaintiff
Karen and Aaron,
We are demanding that you withdraw from representing Plaintiff Yoel Sberlo in this case. Some of the reasons
why you should withdraw are as follows:
1) You prepared false declarations for your clients and have put forth false facts in this case thereby
prejudicing the Defendant significantly. For example the declaration of Ryan Gilbert was false as confirmed by
the depositions of the Plaintiff's agents.
2) You prepared a false and improper 3 day notice and then tried to correct the problem after the fact thereby
prejudicing the Defendant significantly.
3) You have made yourselves witnesses and also prepared discovery responses based on false facts rather
than the truth in this matter.
4) You have refused to put forth basic background information about the case.
5) You are aware that the 3 day notices are defective and improper.
For these reasons please immediately contact substitute counsel for the Plaintiff because your continued
involvement is improper and only causing significant difficulty and prejudice to the Court and to the
Defendant.
Mark
Hooshmand Law Group
22 Battery St., Ste. 610
San Francisco, CA 94111
Tel: (415) 318-5709
Fax: (415) 376-5897
This email and any attachments thereto may contain private, confidential, and privileged material for the sole
use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto)
by others is strictly prohibited. if you are not the intended recipient, please contact the sender immediately
and permanently delete the original and any copies of this email and any attachments thereto.
EXHIBIT 4"Karen Uchiyama
From: Karen Uchiyama
Sent: Saturday, January 04, 2014 10:29 PM
To: ‘Mark Hooshmand’
Subject: RE: Sberlo v. Altawal - Demand for Withdrawal of Counsel of Plaintiff
Mr. Hooshmand,
Perhaps YOU should withdraw for the following reasons:
1) You continue to fabricate your own law and your own version of the Code of Civil Procedure, which is
exemplified by your motion to disqualify us (ie., no legal grounds);
2) You continue to make the same legal arguments over and over again even though the judges reject them over
and over;
3) Nothing in Ryan Gilbert’s declaration was false, he signed as a representative of Urban Pioneer Property
Management;
4) There is nothing wrong or defective or improper about the subject Three Day Notice (as discussed at the hearing
on your first motion for summary judgment!); you just refuse to accept the law on the subject;
5) We are witnesses to your supporting the lies of your client, your encouraging him to suborn perjury, you
prepared a declaration signed by witness Matthew Richardson that you later insisted was “a mistake,” and your
client obviously fabricated evidence by submitting that check in November 2013;
6) You also have forgotten what the evidence in this case will show — YOU and Altawal had notice that the three
rent checks were not cashed. The landlord did not have to give you and Altawal notice of something you already
knew. And Altawal had three weeks to pay three months’ of rent — His having an “investment account” and
“overdraft protection” and being a victim of “bank fraud” are obvious lies with no supporting evidence;
7) And now you are withholding witness contact information and withholding documents ORDERED by the Court to
produce!
Clearly, the only reason you want my law firm to withdraw as counsel for Plaintiff is because we are stomping you —
which is evidenced by your having to pay $9,375.00 in discovery sanctions to date. You are now in contempt of court by
ignoring Judge Taylor’s order to Altawal to produce documents and a declaration explaining his unexplained cash
deposits, by December 19°”.
More importantly, you should withdraw from representing Defendant Altawal because you are clearly NOT looking after
his best interests. We should have settled this case months ago. Clearly, you are getting delight out of HARASSING my
clients and increasing their legal expenses by filing more and more frivolous motions and ex parte applications that have
no basis in law. You are a vexatious litigant with a law license. Scary.
Karen Y. Uchiyama
Law Offices of Karen Y. UchiyamaPROOF OF SERVICE
I, Ralph Etheart, declare: I am over the age of eighteen years and not a party to the
cause. On January 6, 2014, caused to be served the document(s) described as:
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISQUALIFY
PLAINTIFF’S COUNSEL KAREN UCHIYAMA, AND THE ATTORNEYS IN
HER FIRM, AARON FARMER, AND TO HOLD THEM IN CONTEMPT FOR
VIOLATING A COURT ORDER AND INTERFERING WITH THE JUDICIAL
PROCESS; MEMORANDUM OF POINTS AND AUTHORITIES;
DECLARATION OF KAREN Y. UCHIYAMA, ESQ.
on the following parties:
Mark Hooshmand, Esq.
Hooshmand Law Group
22 Battery Street, Suite 610
San Francisco, CA 94111
Service of the above documents was effectuated by the following means of service:
By First Class Mail - I am readily familiar with this firm's practice for collection and
processing of correspondence for mailing with the United States Postal Service. It is
deposited with the United States Postal Service in the ordinary course of business on the
same day it is processed for mailing. I caused such envelope(s) to be deposited in the
mail at San Francisco, California. The envelope was mailed with postage thereon fully
prepaid.
By Hand Delivery - I caused to be hand-delivered by professional messenger such
document(s) to the above parties at the above address and confirmed actual delivery of
the same.
XX By Electronic Mail — I caused to be sent such document(s) to the parties at the email
address: Mark@Lawmmh.com.
XX = State Court - I declare under penalty of perjury that the foregoing is true and correct and
that service was made under the direction of a member of the bar of this Court who is
admitted to practice and is not a party to the cause.
Executed on January G. 2014, in San Franciseg, California
Ralph Effeart
PROOF OF SERVICE
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jan-07-2014 9:31 am Case Number: CUD-13-645401 Filing Date: Jan-07-2014 9:31 Filed by: WESLEY G. RAMIREZ Juke Box: 001 Image: 04331435 OPPOSITION SBERLO, YOEL, TRUSTEE FOR SBERLO FAMILY TRUST VS. YARNG ALTAWAL et al 001004331435 Instructions: Please place this sheet on top of the document to be scanned.won n wo 28 LAW OFFICES OF 4115 (415) 563-9300 Hani Cf LAW OFFICES OF KAREN Y. UCHIYAMA KAREN Y. UCHIYAMA - STATE BAR NO. 154414 AARON A. FARMER - STATE BAR NO. 268921 1441 Baker Street San Francisco, California 94115 Telephone: (415) 563-9300 Facsimile: (415) 563-9304 Attorney for Plaintiff YOEL SBERLO, TRUSTEE FOR SBERLO FAMILY TRUST LLE D. JAN OT 24 CLERK QESH QURT BY: ‘S na aputy jork San Frei SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - LIMITED CIVIL JURISDICTION YOEL SBERLO, TRUSTEE FOR SBERLO FAMILY TRUST, Plaintiff v. YARNG ALTAWAL, SUSAN ALTAWAL, and DOES | through X, in occupancy, Defendants. SSS Case No. CUD-13-645401 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL KAREN UCHIYAMA, AND THE ATTORNEYS IN HER FIRM, AARON FARMER, AND TO HOLD THEM IN CONTEMPT FOR VIOLATING A COURT ORDER AND INTERFERING WITH THE JUDICIAL PROCESS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KAREN Y. UCHTY AMA, ESQ. Hearing: Date: January 8, 2014 Time: 9:30 a.m. Dept.: 501 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL AND HOLD THEM IN CONTEMPT FOR VIOLATING COURT ORDER28 LAW OFFICES OF 94115 (415) 583-9300 Plaintiff YOEL SBERLO, TRUSTEE FOR SBERLO FAMILY TRUST hereby opposes Defendant YARNG ALTAWAL/’s motion to disqualify his counsel on the eve of trial, as follows: The facts are very simple in this case. Plaintiff and his property managers terminated Defendant’s tenancy because he was subletting his rent-controlled apartment to strangers without permission, and pocketing the rent money. While Plaintiff was investigating the subletting operation, they installed a security camera in the common areas of the apartment building and held three months of rent checks pending their investigation (Litigation Privileged conduct). Both Defendant ALTAWAL and his attorney were aware that the rent checks were not being cashed because they each raised the issue to Plaintiff's attorney and property manager. When the investigation was completed and Plaintiff was ready to start the litigation, four rent checks were deposited at the same time at the beginning of April 2013. Three out of four of the rent checks bounced on April 10, 2013 and the bank notified Defendant of the problem. Defendant had three weeks to make good on the bounced checks; but he did nothing. On May 1, 2013, Plaintiff served him with a Three Day Notice to Pay Rent or Quit and was surprised when Defendant failed to cure the rent default. Plaintiff thereafter served a Three Day Notice to Quit regarding the unauthorized subletting and master tenant profiteering on May 6, 2013, and then proceeded with the unlawful detainer action on three causes of action. The trial is scheduled for the week of January 27, 2014. A. THERE ARE NO GROUNDS FOR DEFENDANT TO DISQUALIFY OPPOSING COUNSEL ON THE EVE OF TRIAL OR HOLD THEM IN CONTEMPT FOR VIOLATING A “PRIOR RESTRAINTS” ORDER. Defendant can cite no legal authority for a party to disqualify his opponent’s trial counsel on the eve of trial. He only cites “the trial court’s inherent power.” A court may disqualify an attorney upon “a showing that disqualification is required under professional standards governing avoidance of conflicts of interest or potential adverse use of confidential information.” Oaks Management Corporation v. Superior Court (2006) 145 Cal. App.4"" 453, 462. PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL AND HOLD THEM IN CONTEMPT FOR VIOLATING COURT ORDER27 28 LAW OFFICES OF KAREN Y. UCHIYAMA 1441 Baker Steet ‘San Francisco, Calfornia 4115 (415) 563-9300 Defendant can cite no legal authority for the court to disqualify an attorney via her opponent’s bringing a motion to disqualify opposing counsel simply because they are adverse to each other, or do not like each other. Obviously, Defendant brought this motion to disqualify opposing counsel because Plaintiff keeps winning motions against Defendant; Plaintiff got $9,230.00 in sanctions against Defendant and his attorney for discovery abuses; and Plaintiff successfully opposes motions brought by Defendant and his attorney. Defendant and his attorney, Mark Hooshmand, pray for an order holding Plaintiff's attorney, Karen Uchiyama, “in contempt” for competently defending her clients’ depositions and not allowing them to fall for Mark Hooshmand’s trick questions, for talking at her clients’ depositions, and for not allowing Mark Hooshmand to bully the deponents during the depositions. Defendant does not articulate why attorney Aaron Farmer should be held in contempt too. Defendant’s attorney lost sight of what a deposition of for (fact finding, evidence finding, witness finding...). Instead, Mr. Hooshmand attempted to use a deposition as a vehicle to record statements that can be used against the deponent, particularly if the question was misunderstood by the deponent or the deponent to not grasp what the questioning attorney was suggesting. For that reason, it was essential for Plaintiff's attomey to be at the depositions of her clients and speak at times, at the depositions of her clients. Karen Uchiyama’s success at defending her clients’ depositions and preventing them from falling into “language traps” evidently infuriated a bully like attorney Mark Hooshmand (to the degree that he sought a “prior restraint” order. In a somewhat ridiculous effort to try to keep Plaintiff's attorney to keep her mouth shut at her clients’ depositions, on December 16, 2013, Defendant’s attorney made an ex parte application before the December 19" depositions of Plaintiff, his wife, and his property managers for a court order “ordering” Plaintiff's counsel to “not interrupt counsel or the witness,” and “not make speaking objections, not coach the witness, and not respond for the witness or suggest an answer.” Plaintiff's counsel, Karen Uchiyama, did not appear at the hearing to oppose the ex parte application because she thought it was frivolous and just another 3 PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL AND HOLD THEM IN CONTEMPT FOR VIOLATING COURT ORDERoS nan oO 27 28 LAW OFFICES OF KAREN Y. UCHIVAMA 1441 Baker Street attempt by Mark Hooshmand to insult her, harass her client and increase his legal expenses. Defendant’s application was like getting an ex parte injunction to order an attorney to follow the Code of Civil Procedure, and to order an attorney not to do anything to annoy his or her Opponent, or talk at a deposition! Plaintiff was very surprised that the Court even granted this application as Defendant’s remedy should be sought after a deposition through a motion to compel further responses, not as a Prior Restraint injunction order entered before the speech at the depositions occurred. B. THE EX PARTE INJUNCTION ORDER WAS AN UNLAWFUL PRIOR EEE ERECTION ORDER WAS AN UNLAWFUL PRIOR RESTRAINT ON FREE SPEECH. The Court’s order of December 16, 2013 regarding his attorney Karen Uchiyama’s conduct and speech at depositions placed a direct restraint on her right to freedom of speech under the United States and California Constitutions (U. S. Const., 1" Amend. ; California Const., art I & 2, subd (a)), and would have denied Ms. Uchiyama’s clients proper defenses at their depositions had she not spoken out against Mr. Hooshmand at times during the depositions. Ms. Uchiyama should be held in contempt or disqualified as Plaintiff's counsel for speaking at her clients’ depositions, whether Mr. Hooshmand liked it or not. “Orders which restrict or preclude a citizen from speaking in advance are known as ‘prior restraints,” and are disfavored and presumptively invalid.” Hurvitz v. Hoefflin (2000) 84 Cal.App.4" 1232, 1241, fn omitted. “Prior restraints on speech and publications are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn. v. Stuart (1 976) 427 U.S. 539, 559. An order restricting the speech of trial participants (including attorneys) is a prior restraint. Hurvitz, at pp 1241-1242; Saline v. Superior Court (2002) 100 Cal.App.4" 909, 915- 916. Although the right to a fair trial is also a protected constitutional right, a court seeking to insure a fair trial may not impose a prior restraint unless “the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as it necessary to avoid the danger.” Nebraska Press, at p. 562. As a general rule, gag orders on trial participants are subject to strict judicial PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO. DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN CONTEMPT FOR VIOLATING COURT ORDER27 28 LAW OFFICES OF KAREN Y. UCHIYAMA, 1441 Baker Street ‘San Francisco, Calfomia scrutiny and may not be imposed “unless (1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.” Hurvits, supra, 84 Cal, App.4" at p. 1241, Jn. Omitted; Maggi v. Superior Court (2004) 119 Cal. App.4" 1218, 1225. In the instant case, the court did not apply this or any other standard on December 16, 2013 because Defendant’s counsel got the gag order via an ex parte application and Plaintiff's counsel did not appear to oppose because she thought it was just another one of Mark Hooshmand’s many, stupid mean-spirited applications that was intended to just personally attack her. The evidence shows in Defendants proffered sample of a deposition transcript that Plaintiff's attorney did not do or say anything egregious, even when the broad scope of the Order could have substantially invaded her right to free speech and her clients’ right to have fair Tepresentation at their depositions. Attorney Karen Uchiyama was not going to let Mark Hooshmand bully her into saying nothing at the depositions in fear of a motion like the one that Defendant is presently making against her and her client. CONCLUSION In short, Defendant ALTAWAL’s motion to disqualify Plaintiffs counsel is unsupported by the applicable law and the facts in this case. Plaintiff's attorney has successfully brought and opposed four discovery motions against Mark Hooshmand, and Plaintiff was awarded over $9,300.00 in discovery sanctions against Mark Hooshmand in this case to date. Now Attorney Mark Hooshmand does not want attorneys, Karen Uchiyama and Aaron Farmer, to try this case on January 27, 2014 either. Clearly, this motion to disqualify Plaintiff's counsel was brought by Defendant’s counsel, Mark Hooshmand, to retaliate against Plaintiff's attorneys who are strong and resilient enough to withstand his constant bullying in person and through his flagrant abuses of process and his effort to drive up Plaintiff's legal expenses. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN CONTEMPT FOR VIOLATING COURT ORDER27 28 LAW OFFICES OF KAREN Y. UCHIYAMA 1441 Baker Street ‘San Francisco, Califomia 5 ait (415) 563-0300 Plaintiff has done nothing wrong in this case and has nothing to hide from Defendant as far as discovery goes. He certainly should not be deprived of good representation at trial. Defendant ALTAWAL and his attorney’s motion to disqualify Plaintiffs counsel on the eve or trial and/or hold attorney Karen Uchiyama in contempt of court should be denied. DATED: January b- 2014 YOEL SBERLO, TRUSTEE FOR SBERLO FAMILY TRUST PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN CONTEMPT FOR VIOLATING COURT ORDERwon 27 28 LAW OFFICES OF KAREN Y. UCHIYAMA 1441 Baker Street San Francisco, Califomia ont 1 (415) 563-6300 I, KAREN Y. UCHIYAMA, declare: 1. Tam the attorney and trial counsel for Plaintiff YOEL SBERLO, TRUSTEE FOR SBERLO FAMILY TRUST and licensed to practice law in all of the courts in California. The following statements are within my personal knowledge and I could and would testify to them if called as a witness. 2. This motion is just another example of how Defendant’s counsel makes up his own law and civil procedures, gets constantly sanctioned by the Court, and unnecessarily increases his opponent's attorney’s fees for no good reason. 3. In short, Defendant has no grounds to disqualify his opponents on the eve of trial. His personal attacks on me should show the Court that he can fabricate no good defense for his client in this case. Mr. Hooshmand has resorted to trying to create an appearing of wrongdoing on my and my associate’s part which is unsupported by any evidence. I never “prepared false declarations” or “prepared discovery responses based on false facts.” I defended my clients’ depositions to the best of my abilities, particularly when faced with Mr. Hooshmand’s litigation style — which is to bully deponents, ask trick questions, and make them agree to false statements of the law on the record, 5. I did not appear at the hearing on Defendant’s ex parte application to govern my speech and conduct prior to my clients’ depositions because I did not believe the Court would grant such an injunction and a “Prior Restraints” order via ex parte application. And frankly, I thought Mark Hooshmand’s request was ridiculous as it was like trying to geta court order before a deposition to not anger the attorney taking the deposition. 6. Nonetheless, despite Mr. Hooshmand’s continuing threats toward me (during the deposition) whenever I spoke, I spoke during the depositions when appropriate, when. the questions were unclear, ambiguous, harassing, and misleading, and I properly defended those depositions. I refuse to be intimidated by Mr. Hooshmand, and the Court should not be intimidated by him either. Based on my personal experience with Mr. Hooshmand and his litigation style over the years, he will appeal orders and judgments rendered against him and clients just for the effect of it, whether he believes they have merit or not. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN CONTEMPT FOR VIOLATING COURT ORDER1 7. Plaintiff's case against Defendant has merit and none of the notices are defective as a matter of law. Defendant has already brought a motion for summary judgment and wien summary adjudication (and lost) in this case already. If Plaintiff's notices to quit were defective, 4 | or he did not comply with the procedural requirements to terminate a tenancy, Defendant would 5 | have prevailed by now. 6 8. Since there is no legal authority for the Court to grant Defendant’s motion 7 | to disqualify Plaintiff's attorneys on the eve of trial, Defendant’s motion should be denied. This 8 | is especially important since Defendant and his attorney refuse to settle the case under reasonable 9 | terms, and are forcing Plaintiff to try this case at his expense. 10 I declare under penalty of perjury under the laws of the State of California that the 11 | foregoing is true and correct. Executed this G. day of January, 2014, in San Francisco, 12 | California. 13 ZL Ve fy 14 By KAREN Y. UCHTYAMA‘% ESQ. 25 26 27 28 LAW OFFICES OF 8 KAREN Y. UCHIYAMA 1441 Baker Street PLAINTIFF’S OPPOSITION TO DEFENDANT'S MOTION TO. sore DISQUALIFY PLAINTIFF'S COUNSEL AND HOLD THEM IN (+15 5-300 CONTEMPT FOR VIOLATING COURT ORDERKaren Uchiyama From: Mark Hooshmand Sent: Tuesday, December 31, 2013 11:42 AM To: Karen Uchiyama; Aaron Farmer Ce: Mark Hooshmand; Ian Hansen; Deanna Maxfield Subject: Sberlo v. Altawal - Demand for Withdrawal of Counsel of Plaintiff Karen and Aaron, We are demanding that you withdraw from representing Plaintiff Yoel Sberlo in this case. Some of the reasons why you should withdraw are as follows: 1) You prepared false declarations for your clients and have put forth false facts in this case thereby prejudicing the Defendant significantly. For example the declaration of Ryan Gilbert was false as confirmed by the depositions of the Plaintiff's agents. 2) You prepared a false and improper 3 day notice and then tried to correct the problem after the fact thereby prejudicing the Defendant significantly. 3) You have made yourselves witnesses and also prepared discovery responses based on false facts rather than the truth in this matter. 4) You have refused to put forth basic background information about the case. 5) You are aware that the 3 day notices are defective and improper. For these reasons please immediately contact substitute counsel for the Plaintiff because your continued involvement is improper and only causing significant difficulty and prejudice to the Court and to the Defendant. Mark Hooshmand Law Group 22 Battery St., Ste. 610 San Francisco, CA 94111 Tel: (415) 318-5709 Fax: (415) 376-5897 This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by others is strictly prohibited. if you are not the intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto. EXHIBIT 4"Karen Uchiyama From: Karen Uchiyama Sent: Saturday, January 04, 2014 10:29 PM To: ‘Mark Hooshmand’ Subject: RE: Sberlo v. Altawal - Demand for Withdrawal of Counsel of Plaintiff Mr. Hooshmand, Perhaps YOU should withdraw for the following reasons: 1) You continue to fabricate your own law and your own version of the Code of Civil Procedure, which is exemplified by your motion to disqualify us (ie., no legal grounds); 2) You continue to make the same legal arguments over and over again even though the judges reject them over and over; 3) Nothing in Ryan Gilbert’s declaration was false, he signed as a representative of Urban Pioneer Property Management; 4) There is nothing wrong or defective or improper about the subject Three Day Notice (as discussed at the hearing on your first motion for summary judgment!); you just refuse to accept the law on the subject; 5) We are witnesses to your supporting the lies of your client, your encouraging him to suborn perjury, you prepared a declaration signed by witness Matthew Richardson that you later insisted was “a mistake,” and your client obviously fabricated evidence by submitting that check in November 2013; 6) You also have forgotten what the evidence in this case will show — YOU and Altawal had notice that the three rent checks were not cashed. The landlord did not have to give you and Altawal notice of something you already knew. And Altawal had three weeks to pay three months’ of rent — His having an “investment account” and “overdraft protection” and being a victim of “bank fraud” are obvious lies with no supporting evidence; 7) And now you are withholding witness contact information and withholding documents ORDERED by the Court to produce! Clearly, the only reason you want my law firm to withdraw as counsel for Plaintiff is because we are stomping you — which is evidenced by your having to pay $9,375.00 in discovery sanctions to date. You are now in contempt of court by ignoring Judge Taylor’s order to Altawal to produce documents and a declaration explaining his unexplained cash deposits, by December 19°”. More importantly, you should withdraw from representing Defendant Altawal because you are clearly NOT looking after his best interests. We should have settled this case months ago. Clearly, you are getting delight out of HARASSING my clients and increasing their legal expenses by filing more and more frivolous motions and ex parte applications that have no basis in law. You are a vexatious litigant with a law license. Scary. Karen Y. Uchiyama Law Offices of Karen Y. UchiyamaPROOF OF SERVICE I, Ralph Etheart, declare: I am over the age of eighteen years and not a party to the cause. On January 6, 2014, caused to be served the document(s) described as: PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL KAREN UCHIYAMA, AND THE ATTORNEYS IN HER FIRM, AARON FARMER, AND TO HOLD THEM IN CONTEMPT FOR VIOLATING A COURT ORDER AND INTERFERING WITH THE JUDICIAL PROCESS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF KAREN Y. UCHIYAMA, ESQ. on the following parties: Mark Hooshmand, Esq. Hooshmand Law Group 22 Battery Street, Suite 610 San Francisco, CA 94111 Service of the above documents was effectuated by the following means of service: By First Class Mail - I am readily familiar with this firm's practice for collection and processing of correspondence for mailing with the United States Postal Service. It is deposited with the United States Postal Service in the ordinary course of business on the same day it is processed for mailing. I caused such envelope(s) to be deposited in the mail at San Francisco, California. The envelope was mailed with postage thereon fully prepaid. By Hand Delivery - I caused to be hand-delivered by professional messenger such document(s) to the above parties at the above address and confirmed actual delivery of the same. XX By Electronic Mail — I caused to be sent such document(s) to the parties at the email address: Mark@Lawmmh.com. XX = State Court - I declare under penalty of perjury that the foregoing is true and correct and that service was made under the direction of a member of the bar of this Court who is admitted to practice and is not a party to the cause. Executed on January G. 2014, in San Franciseg, California Ralph Effeart PROOF OF SERVICE