Preview
Edward McCutchan (SBN 119376)
SUNDKRLAND )
McCUTCHAN, LLP
1083 Vine Street, Suite 907
3 Healdsburg, CA 95448
Telephone: (707) 433-0377
Facsimile: (707) 433-0379
5
Attorneys for Defendants
6 DALE DAVIS sued as DOE 4
JAMES NORD aka JIM NORD as an individual and on behalf
of the Patrick Trust and Mein Trust sued as DOE 5
JACINDA DUVAL SUED AS DOE 7
BILL HING SUED AS DOE 8
3 LENORA VERNE FUNG SUED AS DOE 9
JUSTIN POENG SUED AS DOE 11
MATTHFW ZDANEK SUED AS DOE 16
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COIJNTY OF SONOMA
RICHARD ABEL, CASE NO. SCV-263456
Plaintiff, SEPARATE STATKMKN'I" OF
UNDISPUTED MATERIAL FACTS IN
16 )
vs. ) SUPPORT OF MOTION I"OR SUMMARY
17 ADJIJDUCATION ON BEHALF OF
B. EDWARD McCUTCHAN, JR., an DEFKNI)ANTS DALE DAVIS sued as DOII
individual; SUNDERLAND ~
McCUTCHAN, 4, .IAMLFS NORD aka,IIM NORD as an
LI,P, a general partnership; and DOES I individual and on behalf of the Patrick
through 100, inclusive. Trust and Mein Trust sued as DOII 5,
20 ) JACINDA IIIJVAL SUED AS DOK 7,
Defendants. ) BILL HING SUED AS DOK 8, LENORA
21 ) VKRNE FUNG SUED AS DOK 9,
JUSTIN POENG SUED AS DOK 11,
22
MATTHEW ZDANEK SUED AS DOE 16
23
Date:
Time:
Dept:
25 Complaint Filed: November 2, 2018
Trial: March 10, 2023
26
The Honorable Christopher Honigsberg
27
28
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY GMENT ON
BEHALF OF DOE DEFENDANT
Rf
I
1 Pursuant to Code of Civil Procedure f 437c(b)(1), DALE DAVIS sued as DOE 4 JAMES
2
NORD aka JIM NORD as an individual and on behalf of the Patrick Trust and Mein Trust sued
3
as DOE 5, JACINDA DUVAL SUED AS DOE 7, BILL HING SUED AS DOE 8, LENORA
VERNE FUNG SUED AS DOE 9, JUSTIN POENG SUED AS DOE 11 and MATTHEW
6 ZDANEK SUED AS DOE 16 submit the following Statement of Undisputed Material Facts,
together with references to supporting evidence, in support of their motion for summary
8
adjudication in this action pursuant to Barak v. Ouisenberrv Law Firm (2002) 135 Cal. App. 4th
9
654 in support of their notice of joinder and joinder to Defendants B. EDWARD McCUTCHAN,
10
JR4 ROBERT J. SUNDERI.AND; AND SUNDERLAND ~
McCUTCHAN, LI,P.
ISSUE I - THK FIRST CAUSE OF ACTION FOR I,EGAL
MALPRACTICE IS BARRED BECAUSE THIS CAUSE OF ACTION
I"AILS TO STATE FACTS SUFI"ICIKNT TO CONSTITUTE A CAUSE OF ACTION
MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE
MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
18
DEFENDANTS ARK ENTITLED TO SUMMARY ADJUDICATION
20
1. In early 2009, Sunderland )
McCutchan
LLP was contacted by an investor about a
loan made in connection with a real estate
development in Malibu, CA. Defendant
B. Edward McCutchan, one of the owners
23 of Sunderland ~
McCutchan LLP was
informed that several lenders loaned the
borrower, Robert E. Zuckerman as
president of Malibu Greene 3 Corporation,
25 a Nevada Corporation, money for
development of property in Southern
26
California. Mortgage Brokers for the loan
27
were Charlene Goodrich Loan Servicing,
Inc. (CGLS). The escrow closer was
28 Fidelity National Title
JUDGMENT ON
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY
BEHALF OF DOE DEFENDANT
2
MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE
MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
4
Company. He was also informed that no
payments had been made from the
borrowers, and that they were in default.
See Evidence in Support of Defendants'otion
for Summary Judgment ("Evidence" ) at Exhibit
7 A, Declaration of McCutchan, $ 1, 4.
2. On May 4, 2009 Mr. McCutchan met with
the investors at the Hilton Hotel
conference room in Santa Rosa, CA.
Plaintiff Richard Abel was present at this
10 meeting.
See Evidence at Exhibit A, Declaration of
Fdward McCutchan, Esq„g 8.
3, At the May 4, 2009 meeting at the Hilton
Hotel conference room, Mr. McCutchan
14 proposed a hybrid fee agreement of
$ 250.00 per hour and 15% of any
recovery to the group,
See Fvidence at Exhibit A, Declaration of
Edward McCutchan, Esq. 1t 9
17
4. On or about August 29, 2009 in Santa
Rosa, California, Mr. Abel retained and
employed Sunderland ~
McCutchan, LLP
to represent him in an action to recover
money he invested (hereafter. the "Li ebling
20 Action" ). Mr. Abel signed an Attorney-
21
Client Fee Agreement with Sunderland ~
McCutchan, LLP, and a Cooperation,
22 Voting Rights, and Recovery Sharing
Agreement reflecting the duties owed
23 among the clients in the Liebli ng Action.
24 See Evidence at Exhibit A. Declaration of
Edward McCutchan, Esq. $ 10; see also Exhibit
25 B, Plaintiff s First Amended Complaint, $ 9; see
also Exhibit C, Fee Agreement; see also
26 Exhibit D, Cooperation, Voting Rights, and
Recovery Sharing Agreement.
27
5. In addition to Mr. Abel, Sunderland )
28 McCutchan also represented several other
investor/claimants in the same action.
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT ON
BEHALF OF DOE DEFENDANT
3
1
MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK
MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK
KVIDKNCK
3
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. tt 11.
5
6. Per the Cooperation, Voting Rights, and
6 Recovery Sharing Agreement, Claimants
were to recover based on their percentage
7 of the total investment.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 13; see also Exhibit
D, Cooperation, Voting Rights, and Recovery
Sharing Agreement.
10
7. Mr. Abel's investment was $ 72,500.00,
This equated to 1.3191% of the total
invested by the Claimants.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 14,
g. On February 19, 2010, Defendant s filed a
Complaint in the Liebli ng Action. The
Complaint named as Plaintiffs
CHARLENE GOODRICH, JEANNI.;
TIIIACCA, JEFF GREENE, MALIBU
I:7 GREFNE VIFW CORPORATION,
GREENE MALIBIJ VAI,LEY RANCII
18 CORPORATION, GRFENE MALIBU 3
CORPORATION, TRIPLE J'S
CORPORATION, GREENE LOWER
BROAD IJEACH CORPORATION,
20 CANYON GREENE CORPORATION,
GREENE BROAD BEACH
CORPORATION, MALIBU BEACH
22 VIEW CORPORATION, STEPHEN
REEDER, CHARLES R. REEDER,
23 ROBERT ZUCKERMAN, JOHN W.
CRUIKSHANK, RAPHAEL
ROSINGANA, RONALD REDDEKOPP,
ERIC REDDEKOPP, JOHN PAUL
25 HANSON, STEVEN K. TALBOT,
PETERSKARPIAS AKAPETER
26 SCARPIAS, JOYCELYN ORBASE,
TYNA DEGENHARDT, DAYSTAR
REAL ESTATE SERVICES, ANTHONY
PHILLIP, DEGENHARDT, DAYSTAR
28 REAL ESTATE SERVICES, ANTHONY
PHILLIP PIAZZA, KJELL NELSON,
./
SUMMARY JUDGMENT ON
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OE MOTION FOR
EEIIALF OF DOE DEFENDANT
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MOVING PARTY)S UNDISPUTED OPPOSING PARTY'S RESPONSE
'ATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
CANDYCE LYNN GERRIOR, FIDELITY
NATIONAL TITLE COMPANY, AND
5 DOES I THROUGH 100, INCLUSIVE in
Sonoma County Superior Court, Case No.
CASE NO. SCV-245738
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq., $ 12; see also Exhibit
8 K, Complaint in the Liebling Action.
During the course of litigation,
Sunderland McCutchan corresponded with
its clients in the Liebling Action by
regular status reports, These would
update the clients on case developments,
recoveries, costs, and fees due.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. 15; see also Exhibit
F, Sunderland McCutchan's status reports to
clients in the Liebling Action,
10. In orrier to pay for litigation expenses the
16 other Claimants were requested to pay
their prorated share of attoniey fees,
During the pendency of the action Mr,
Abel paid not more than $ 10,000 in fees to
18 Sunderland McCutchan.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 16.
20
11. During the pendency of the case,
21
Sunderland ~
McCutchan engaged in
22 significant discovery and motion practice.
It also conducted asset searches and
23 research with respect to the claim in order
to identify those persons and entities
24 responsible for the misconduct and who
had sufficient assets to allow recovery.
25
See Evidence at Exhibit A. Declaration of
26 Edward McCutchan, Esq. $ 17; see also Exhibit
F. Sunderland (
McCutchan's status reports to
27 clients in the Liebling Action.
12. During the Liebling Action, written
FOR SUMMARY IUDGMENT.ON
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION
BEHALF OF DOE DEFENDANT
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MOVING PARTY'S UNDISPUTKD OPPOSING PARTY'S RESPONSE
MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK
EVIDENCE
confidential settlements were reached with
the Brokers Charlene Goodrich and
Jeanne Triacca, and with Charles Reeder.
Mr. Abel approved both of these
settlements and was mailed checks with
his share of the settlement proceeds.
7
See Evidence at Exhibit A, Declaration of
s Edward McCutchan, Esq. $ 18-23.
13. Based upon Mr. McCutchan's research
into the claims, it was his belief that
10 Defendants Zuckerman, Cruikshank and
Skarpias were responsible for misleading
the investors in that they were the contact
persons per Charlene Goodrich and Robert
Zuckerman had submitted his c.v. to
Charlene Goodrich to get a loan for the
Malibu project, It was his belief that other
14 of the underlying Liebling Defendants had
limited involvement and no clear liability
or lacked assets as a result of bankruptcy.
For these reasons, Mr. McCutchan
16 determined that several of the underlying
Defendants in the Ii ebli Jtg Action should
be dismissed to allow them to pursue
those with potential liability and assets.
Specifically, those defendants who Mr.
McCutchan believed should be dismissed
for no perceived liability or lack of assets
were JEFF GRFENE, STEPHEN
20 REEDER, RAPHAEl, ROSINGANA,
ERIC AND RONALD REDDEKOPP,
TYNA DEGENHARDT, DAYSAR
22
REAL ESTATE SERVICES, ANTHONY
PHILLIP PIAZZA, FIDELITY
23 NATIONAL TITLE COMPANY.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 17, 29, 30
25
14. On September 26, 2011, Robert
26 Zuckerman filed a Cross-Complaint
against the Claimants in the Liebling
27 Action. The Cross-Complaint stated
causes of action for: FRAUD IN THE
28 INDUCEMENT, INTENTIONAL
MISREPRESENTATON,
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OP MOTION
FOR SUMMARY JUDGMENT ON
BEHALF;OF DOE DEFENDANT r
6
1
MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE
MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
NEGLIGENT MISREPRESENTATON,
CIVIL RICO, CIVIL EXTORTION,
LIBEL, SLANDER PER SE,
INTENTIONAL INTERFERENCE
WITH PROSPECTIVE BUSINESS
ADVANTAGE, NEGLIGENT
INTERFERENCE WITH PROSPECTIVE
BUSINESS ADVANTAGE, BREACH
OF THE COVENANT OF GOOD
FAITH AND FAIR DEALING,
INTENTIONAL INFLICTION OF
FMOTIONAL DISTRESS, NEGLIGENT
10 INFLICTION OF EMOTIONAL
DISTRESS
See Evidence at Exhibit A, Declaration of
12
Edward McCutchan, Fsq, $ 24,'ee also, Exhibit
G„Zuckerman's Cross-Complaint.
15, Mr. McCutchan prepared and filed a
demurrer to ZuckeiTnan's Cross-
complaint, which was eventually granted
on July 24, 2012.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 241 see also, Exhibit
H, Order sustaining demurrer to cross-
complaint.
16. During the pendency of the Liebling
Action, several claimants asked to dismiss
20 their claims for various reasons. When
this would occur Sunderland McCutchan
LLP would request waivers of costs from
22
the remaining underlying Defendants in
the underlying action.
23
See Evidence at Exhibit A, Declaration of
24 Edward McCutchan, Esq. $ 25; see also Exhibit
F, Sunderland McCutchan's status reports to
25 clients in the Liebling Action; see also Exhibit I,
Requests for dismissals of Plaintiffs in Liebling
26 Action.
27 17. Prior to and after the first trial, which was
held on March 27, 2014, regular status
28 reports were sent to the Claimants
including Mr. Abel in the Liebling Action
providing updates about the case, these
SUMMARY JUDGMENT ON .,
SEPARATE STATEMENT OF UNDISPUTED MATERIAL PACTS IN SUPPORT OF MOTION FOR
BEHALF OF DOE DEFENDANT
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MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK
MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK
KVIDKNCK
reports would also note which of the
claimants had dismissed their claims.
5
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 27
18. Mr. Abel never contacted Mr. McCutchan
during the pendency of the Liebling
Action to state that any of the Claimants
identified in the status reports as having
dismissed their claims had, prior to the
dismissal assi 8 ned their claims to him.
10
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 27
12
19. The first Mr, McCutchan learned that Mr.
13 Abel was claiming assignments from
plaintiffs from the underlying action was
in mid-April of 2014.
See Evidence at Kxhibit A, Declaration of
Edward McCutchan, Esq, $ 27
16
20, At trial on March 27, 2014 none of the
17 underlying Defendants appeared and the
trial was conducted as an uncontested
trial. The Court awarded judgment to
Claimants and against all of the remaining
underlying Defendants in the amount of
$ 17,280,966.37.
20
21
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 28, see also Exhibit
22 B, Plaintiff s FAC, $ 15; see also Exhibit J,
April 2, 2014 Judgment in the Liebling Action,
23
21. At the time of the March 27, 2014 trial,
the remaining defendants were Robert
Zuckerman, Peter Skarpias, John
25 Cruickshank, Malibu Greene View
Corporation, Greene Malibu Valley Ranch
26 Corporation, Triple J's Corporation,
Canyon Greene Corporation, Greene
27 Broad Beach Corporation and Malibu
Beach View Corp oration.
2S
See Evidence at Exhibit A, Declaration of
SEPARATE STATEMENI'F UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION,
FOR SUMMARY JUDGMENT ON
BEHALF OF WOE DEFENDANT
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1
MOVING PARTY'S UNDISPUTED OPPOSING PARTY) S RKSPONSK
MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK
EVIDENCE
3
Edward McCutchan, Esq. $ 29; see also Exhibit
J, April 2, 2014 Judgment in the Liebling Action
5
22. On April 2, 2014, the Court entered
judgment. The April 2, 2014 judgment
awarded special damages of
$ 4,669,937.34, which was the collective
loan amount of all of the loans
fraudulently obtained by the defendants,
minus the money recovered by plaintiffs
when the land was resold by Claimants as
part of their efforts to mitigate their
10 damages. In addition, the court awarded
prejudgment interest, statutory and general
damages for those plaintiffs who were
"elders," attorneys'ees, costs, and
punitive damages. The total judgment
was $ 17„280,966.37
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. 1[31; see also Exhibit
15 8, Plaintifps FAC, 1[16; see also Exhibit,l,
April 2, 2014 Judgment in the Liebling Action
16
23. Richard Abel received an award of
$ 123,877.70 in the April 2, 2014
judgment.
18
Scc Evidence at Kxhibit A, Declaration of
19 Edward McCutchan, Esq. [[ 32; see also Kxhibit
8, Plaintiff s FAC, 1[ 18; see also Exhibit J,
April 2, 2014 Judgment in the Liebling Action
24. Following the April 2014 judgment, Mr.
22 Abel stated to Mr. McCutchan that at least
some of the Claimants had assigned their
23 claims to him.
24 See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. t[ 33.
25
25. On April 9, 2014 Mr. McCutchan sent a
26 letter to Mr. Abel requesting that he
provide the assignments he claimed to
27 have. In the letter, Mr. McCutchan
explained to Mr. Abel that the
28 assignments would need to be notarized
SUMMAILY IUDGMENT ON
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR
BEHALF OP DOE DEFENDANT
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MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK
MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK
KVIDKNCK
3
and include the effective dates of the
assignment, the terms and the names and
address of the person giving the
assignment. He included a form for him
to use and modify in obtaining the claimed
assignments.
7
See Evidence at Exhibit A, Declaration of
8 Edward McCutchan, Esq. $ 33; see also Exhibit
K, Mr. McCutchan's April 9, 2014 letter to Mr.
Abel.
10 26. Mr. McCutchan did not receive
documentation of any assignments from
Mr. Abel in response to his April 9, 2014
12
and on May 23, 2014, he sent another
letter requesting the assignments.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 34; see also Exhibit
L, Mr. McCutchan's May 23, 2014 letter to Mr,
15 Abel
1.6 27. On May 29, 2014 Mr. McCutchan emailed
Mr. Abel requesting again the written
assignments. That same day, in response
to Mr. McCutchan's email, Mr. Abel
responded to stating that he did not have
any assignments and that thc former
18 clients were not interested in signing.
See Evidence at Kxhibif A, Declaration of
Edward McCutchan, Esq. tt 35; see also Exhibit
M, Mr. McCutchan's May 29, 2014 email string
with Mr. Abel
23 28. In response, to Mr. Abel's email, Mr.
McCutchan emailed Mr. Abel and told
him that unless the former clients assign
their claims to him per the form
25 assignment drafted for him as a courtesy
in the Spring of 2014, he would get
26 nothing in collection based on the
assignments, and the judgment would only
be split between remaining active clients
evenly.
28
SEPARATE STATEMENT OP UNDISPUTED MATERIAL PACTS IN SUPPORT OF MOTION FOR, SUMMARY
JUDGMENT ON
BEHALF OF DOE IfEFENDANT
10
1
MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE
MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
EVIDENCE
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 36; see also Exhibit
M, Mr. McCutchan's May 29, 2014 email string
with Mr. Abel.
6
29. The very last client who was dismissed
from the Liebling Action was dismissed in
early 2013. No former Claimants in the
Liebling Action ever told Mr. McCutchan
that they assigned any of their claims to
Mr, Abel.
10 See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. fl 37; see also Exhibit
I, Requests for dismissals of Plaintiffs in
Liebling Action.
13 30. Robert Zuckerman brought a motion to set
aside the April 2014 Judgment, which was
granted.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 38; see also Exhibit
16 B, Plaintiff" s FAC, $ 19.
31. On September 2, 2014 Mr. McCutchan
filed a third amended complaint (the
1.8 "TAC") for the Liebling Action, with
7uckerman as the only remaining
Defendant, given the judgment against the
other Defendants remained intact.
20
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 39; see also Exhibit
B, Plaintiff s FAC, $ 20.
23 32. On October 28, 2014 Mr. McCutchan
filed an amendment to the TAC which
alleged that Mr. Abel was the owner of
several claimed assignments. He filed this
25 amendment based on Mr. Abel's
representations that he had obtained
26 assignments from the listed individuals
and that he had obtained those
assignments prior to their dismissal of
their claims. The individuals listed on the
28 pleading were those that Mr. Abel had
JUDGMENT ON
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION POR SUMMARY
BEHALF OP DOE DEFENDANT
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MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK
MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE
KVIDKNCK
3
stated he had received assignments from
prior to their requested dismissal from the
action.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 40; see also Exhibit
7 L, Amendment to TAC.
8 33. Robert Zuckerman demurred to the TAC.
Mr. McCutchan filed an Opposition to the
9 demurrer, and the demurrer was overruled.
10 Sec Fvidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 41; see also Exhibit
N„Order overruling demurrer.
34. On January 2, 2015 the second trial in
13 Liebling Action took place against
defendant Zuckerman. Zuckerman failed
to appear at the second trial, and trial
proceeded as an uncontested trial, The
court awarded judgment to Claimants, and
Mr. McCutchan submitted a proposed
16 judgment to the court.
See Evidence at Kxhibit A, Declaration of
Edward McCutchan, Esq. ft 42; see also Exhibit
B, Plaintiff's FAC, f( 24.
35. Judgment was entered on January 5, 2015
(the "2015 Judgment" ) against Zuckeiman
20
only, in the amount of $ 20,989,591.99.
21
See Evidence at Kxhibit A, Declaration of
22 Edward McCutchan, Esq. tt 43; see also Exhibit
B, Plaintiff s FAC, $ 25; see also Exhibit 0, the
23 2015 Judgment.
36. Richard Abel received an award of
$ 159,500.12 in the 2015 Judgment.
25
See Evidence at Exhibit A, Declaration of
26 Edward McCutchan, Esq. $ 44; see also Exhibit
B, Plaintiff's FAC, $ 27.
27
37. On July 7, 2015, Zuckerman's attorney
28 Raul Garcia brought a post-trial motion to
vacate the 2015 Judgment pursuant to
/
)EPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SU PPORT OF MOTION FOR SUMMARY JUDGMENT ON
BEHALr or DGE DEFEItIDANT
12
1
MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK
MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK
KVIDKNCK
CCP Ij473(b) on grounds of mistake,
inadvertence, or surprise, based on his
claim that he failed to calendar the trial
date. The court granted the motion and
vacated the 2015 judgment against Robert
Zuckerman.
See Evidence at Kxhibit A, Declaration of
Edward McCutchan, Esq. $ 45; see also Kxhibit
B, Plaintiff s FAC, $ 28; see also Exhibit 0, the
2015 Judgment.
38. On April 7, 2016, a trial setting
conference was held where the Court set
the date for a third trial for September 30,
2016.
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. fI 46; see also Exhibit
B, Plaintiff's FAC, $ 29.
39. Prior to the third trial, Robeit Zuckerman
brought a motion to dismiss the l.ieblmg
16 Action pursuant to CCP $ 583.340 on
grounds that the litigation had exceeded
five years. Mr. McCutchan Opposed the
Motion and the Motion was denied,
18
See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. ft 47.
20
40. On September 30, 2016, the third trial in
21
the Liebling Action commenced. Mr.
Garcia appeared on behalf of Robert
22 Zuckerman at trial call on that day.
23 See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 49; see also Exhibit
B, Plaintiff's FAC, $ 31.
25 41. At trial call for the third trial, Mr. Garcia
argued a motion in limine based on the
26 five-year statute CCP $ 583.340. After the
Court denied the motion, Mr. Garcia
27 walked out the door and did not return.
28 See Evidence at Exhibit A, Declaration of
Edward McCutchan, Esq. $ 50; see also Exhibit
B, Plaintiff's FAC, $ 32
SUMMARY JUDGMENT ON
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR
BEkIALF OP DOE DEFENDANT
I3
.Robert Zuckerman did not put on a
defense. The third trial proceeded as an
uncontested trial. The court awarded
judgment to the plaintiffs on the I iebling
Action. Following trial, Mr. McCutchan
submitted a proposed judgment to the
court and personally sat in Judge
Chouteau's chambers going over with
him how he wanted the final judgment to
read where a revised proposed judgment
was sent to Judge Chouteau for signature,
dating and filing.
10
Evidence at Exhibit A, Declaration of
ward McCutchan, Esq. lt 50,
12
43,0n October 5, 2016, judgment was
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Edward McCutchan (SBN 119376) SUNDKRLAND ) McCUTCHAN, LLP 1083 Vine Street, Suite 907 3 Healdsburg, CA 95448 Telephone: (707) 433-0377 Facsimile: (707) 433-0379 5 Attorneys for Defendants 6 DALE DAVIS sued as DOE 4 JAMES NORD aka JIM NORD as an individual and on behalf of the Patrick Trust and Mein Trust sued as DOE 5 JACINDA DUVAL SUED AS DOE 7 BILL HING SUED AS DOE 8 3 LENORA VERNE FUNG SUED AS DOE 9 JUSTIN POENG SUED AS DOE 11 MATTHFW ZDANEK SUED AS DOE 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA COIJNTY OF SONOMA RICHARD ABEL, CASE NO. SCV-263456 Plaintiff, SEPARATE STATKMKN'I" OF UNDISPUTED MATERIAL FACTS IN 16 ) vs. ) SUPPORT OF MOTION I"OR SUMMARY 17 ADJIJDUCATION ON BEHALF OF B. EDWARD McCUTCHAN, JR., an DEFKNI)ANTS DALE DAVIS sued as DOII individual; SUNDERLAND ~ McCUTCHAN, 4, .IAMLFS NORD aka,IIM NORD as an LI,P, a general partnership; and DOES I individual and on behalf of the Patrick through 100, inclusive. Trust and Mein Trust sued as DOII 5, 20 ) JACINDA IIIJVAL SUED AS DOK 7, Defendants. ) BILL HING SUED AS DOK 8, LENORA 21 ) VKRNE FUNG SUED AS DOK 9, JUSTIN POENG SUED AS DOK 11, 22 MATTHEW ZDANEK SUED AS DOE 16 23 Date: Time: Dept: 25 Complaint Filed: November 2, 2018 Trial: March 10, 2023 26 The Honorable Christopher Honigsberg 27 28 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY GMENT ON BEHALF OF DOE DEFENDANT Rf I 1 Pursuant to Code of Civil Procedure f 437c(b)(1), DALE DAVIS sued as DOE 4 JAMES 2 NORD aka JIM NORD as an individual and on behalf of the Patrick Trust and Mein Trust sued 3 as DOE 5, JACINDA DUVAL SUED AS DOE 7, BILL HING SUED AS DOE 8, LENORA VERNE FUNG SUED AS DOE 9, JUSTIN POENG SUED AS DOE 11 and MATTHEW 6 ZDANEK SUED AS DOE 16 submit the following Statement of Undisputed Material Facts, together with references to supporting evidence, in support of their motion for summary 8 adjudication in this action pursuant to Barak v. Ouisenberrv Law Firm (2002) 135 Cal. App. 4th 9 654 in support of their notice of joinder and joinder to Defendants B. EDWARD McCUTCHAN, 10 JR4 ROBERT J. SUNDERI.AND; AND SUNDERLAND ~ McCUTCHAN, LI,P. ISSUE I - THK FIRST CAUSE OF ACTION FOR I,EGAL MALPRACTICE IS BARRED BECAUSE THIS CAUSE OF ACTION I"AILS TO STATE FACTS SUFI"ICIKNT TO CONSTITUTE A CAUSE OF ACTION MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 18 DEFENDANTS ARK ENTITLED TO SUMMARY ADJUDICATION 20 1. In early 2009, Sunderland ) McCutchan LLP was contacted by an investor about a loan made in connection with a real estate development in Malibu, CA. Defendant B. Edward McCutchan, one of the owners 23 of Sunderland ~ McCutchan LLP was informed that several lenders loaned the borrower, Robert E. Zuckerman as president of Malibu Greene 3 Corporation, 25 a Nevada Corporation, money for development of property in Southern 26 California. Mortgage Brokers for the loan 27 were Charlene Goodrich Loan Servicing, Inc. (CGLS). The escrow closer was 28 Fidelity National Title JUDGMENT ON SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY BEHALF OF DOE DEFENDANT 2 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE 4 Company. He was also informed that no payments had been made from the borrowers, and that they were in default. See Evidence in Support of Defendants'otion for Summary Judgment ("Evidence" ) at Exhibit 7 A, Declaration of McCutchan, $ 1, 4. 2. On May 4, 2009 Mr. McCutchan met with the investors at the Hilton Hotel conference room in Santa Rosa, CA. Plaintiff Richard Abel was present at this 10 meeting. See Evidence at Exhibit A, Declaration of Fdward McCutchan, Esq„g 8. 3, At the May 4, 2009 meeting at the Hilton Hotel conference room, Mr. McCutchan 14 proposed a hybrid fee agreement of $ 250.00 per hour and 15% of any recovery to the group, See Fvidence at Exhibit A, Declaration of Edward McCutchan, Esq. 1t 9 17 4. On or about August 29, 2009 in Santa Rosa, California, Mr. Abel retained and employed Sunderland ~ McCutchan, LLP to represent him in an action to recover money he invested (hereafter. the "Li ebling 20 Action" ). Mr. Abel signed an Attorney- 21 Client Fee Agreement with Sunderland ~ McCutchan, LLP, and a Cooperation, 22 Voting Rights, and Recovery Sharing Agreement reflecting the duties owed 23 among the clients in the Liebli ng Action. 24 See Evidence at Exhibit A. Declaration of Edward McCutchan, Esq. $ 10; see also Exhibit 25 B, Plaintiff s First Amended Complaint, $ 9; see also Exhibit C, Fee Agreement; see also 26 Exhibit D, Cooperation, Voting Rights, and Recovery Sharing Agreement. 27 5. In addition to Mr. Abel, Sunderland ) 28 McCutchan also represented several other investor/claimants in the same action. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON BEHALF OF DOE DEFENDANT 3 1 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK KVIDKNCK 3 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. tt 11. 5 6. Per the Cooperation, Voting Rights, and 6 Recovery Sharing Agreement, Claimants were to recover based on their percentage 7 of the total investment. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 13; see also Exhibit D, Cooperation, Voting Rights, and Recovery Sharing Agreement. 10 7. Mr. Abel's investment was $ 72,500.00, This equated to 1.3191% of the total invested by the Claimants. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 14, g. On February 19, 2010, Defendant s filed a Complaint in the Liebli ng Action. The Complaint named as Plaintiffs CHARLENE GOODRICH, JEANNI.; TIIIACCA, JEFF GREENE, MALIBU I:7 GREFNE VIFW CORPORATION, GREENE MALIBIJ VAI,LEY RANCII 18 CORPORATION, GRFENE MALIBU 3 CORPORATION, TRIPLE J'S CORPORATION, GREENE LOWER BROAD IJEACH CORPORATION, 20 CANYON GREENE CORPORATION, GREENE BROAD BEACH CORPORATION, MALIBU BEACH 22 VIEW CORPORATION, STEPHEN REEDER, CHARLES R. REEDER, 23 ROBERT ZUCKERMAN, JOHN W. CRUIKSHANK, RAPHAEL ROSINGANA, RONALD REDDEKOPP, ERIC REDDEKOPP, JOHN PAUL 25 HANSON, STEVEN K. TALBOT, PETERSKARPIAS AKAPETER 26 SCARPIAS, JOYCELYN ORBASE, TYNA DEGENHARDT, DAYSTAR REAL ESTATE SERVICES, ANTHONY PHILLIP, DEGENHARDT, DAYSTAR 28 REAL ESTATE SERVICES, ANTHONY PHILLIP PIAZZA, KJELL NELSON, ./ SUMMARY JUDGMENT ON SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OE MOTION FOR EEIIALF OF DOE DEFENDANT 4 1 MOVING PARTY)S UNDISPUTED OPPOSING PARTY'S RESPONSE 'ATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE CANDYCE LYNN GERRIOR, FIDELITY NATIONAL TITLE COMPANY, AND 5 DOES I THROUGH 100, INCLUSIVE in Sonoma County Superior Court, Case No. CASE NO. SCV-245738 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq., $ 12; see also Exhibit 8 K, Complaint in the Liebling Action. During the course of litigation, Sunderland McCutchan corresponded with its clients in the Liebling Action by regular status reports, These would update the clients on case developments, recoveries, costs, and fees due. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. 15; see also Exhibit F, Sunderland McCutchan's status reports to clients in the Liebling Action, 10. In orrier to pay for litigation expenses the 16 other Claimants were requested to pay their prorated share of attoniey fees, During the pendency of the action Mr, Abel paid not more than $ 10,000 in fees to 18 Sunderland McCutchan. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 16. 20 11. During the pendency of the case, 21 Sunderland ~ McCutchan engaged in 22 significant discovery and motion practice. It also conducted asset searches and 23 research with respect to the claim in order to identify those persons and entities 24 responsible for the misconduct and who had sufficient assets to allow recovery. 25 See Evidence at Exhibit A. Declaration of 26 Edward McCutchan, Esq. $ 17; see also Exhibit F. Sunderland ( McCutchan's status reports to 27 clients in the Liebling Action. 12. During the Liebling Action, written FOR SUMMARY IUDGMENT.ON SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION BEHALF OF DOE DEFENDANT I 1 MOVING PARTY'S UNDISPUTKD OPPOSING PARTY'S RESPONSE MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK EVIDENCE confidential settlements were reached with the Brokers Charlene Goodrich and Jeanne Triacca, and with Charles Reeder. Mr. Abel approved both of these settlements and was mailed checks with his share of the settlement proceeds. 7 See Evidence at Exhibit A, Declaration of s Edward McCutchan, Esq. $ 18-23. 13. Based upon Mr. McCutchan's research into the claims, it was his belief that 10 Defendants Zuckerman, Cruikshank and Skarpias were responsible for misleading the investors in that they were the contact persons per Charlene Goodrich and Robert Zuckerman had submitted his c.v. to Charlene Goodrich to get a loan for the Malibu project, It was his belief that other 14 of the underlying Liebling Defendants had limited involvement and no clear liability or lacked assets as a result of bankruptcy. For these reasons, Mr. McCutchan 16 determined that several of the underlying Defendants in the Ii ebli Jtg Action should be dismissed to allow them to pursue those with potential liability and assets. Specifically, those defendants who Mr. McCutchan believed should be dismissed for no perceived liability or lack of assets were JEFF GRFENE, STEPHEN 20 REEDER, RAPHAEl, ROSINGANA, ERIC AND RONALD REDDEKOPP, TYNA DEGENHARDT, DAYSAR 22 REAL ESTATE SERVICES, ANTHONY PHILLIP PIAZZA, FIDELITY 23 NATIONAL TITLE COMPANY. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 17, 29, 30 25 14. On September 26, 2011, Robert 26 Zuckerman filed a Cross-Complaint against the Claimants in the Liebling 27 Action. The Cross-Complaint stated causes of action for: FRAUD IN THE 28 INDUCEMENT, INTENTIONAL MISREPRESENTATON, SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OP MOTION FOR SUMMARY JUDGMENT ON BEHALF;OF DOE DEFENDANT r 6 1 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE NEGLIGENT MISREPRESENTATON, CIVIL RICO, CIVIL EXTORTION, LIBEL, SLANDER PER SE, INTENTIONAL INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE, NEGLIGENT INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE, BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, INTENTIONAL INFLICTION OF FMOTIONAL DISTRESS, NEGLIGENT 10 INFLICTION OF EMOTIONAL DISTRESS See Evidence at Exhibit A, Declaration of 12 Edward McCutchan, Fsq, $ 24,'ee also, Exhibit G„Zuckerman's Cross-Complaint. 15, Mr. McCutchan prepared and filed a demurrer to ZuckeiTnan's Cross- complaint, which was eventually granted on July 24, 2012. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 241 see also, Exhibit H, Order sustaining demurrer to cross- complaint. 16. During the pendency of the Liebling Action, several claimants asked to dismiss 20 their claims for various reasons. When this would occur Sunderland McCutchan LLP would request waivers of costs from 22 the remaining underlying Defendants in the underlying action. 23 See Evidence at Exhibit A, Declaration of 24 Edward McCutchan, Esq. $ 25; see also Exhibit F, Sunderland McCutchan's status reports to 25 clients in the Liebling Action; see also Exhibit I, Requests for dismissals of Plaintiffs in Liebling 26 Action. 27 17. Prior to and after the first trial, which was held on March 27, 2014, regular status 28 reports were sent to the Claimants including Mr. Abel in the Liebling Action providing updates about the case, these SUMMARY JUDGMENT ON ., SEPARATE STATEMENT OF UNDISPUTED MATERIAL PACTS IN SUPPORT OF MOTION FOR BEHALF OF DOE DEFENDANT 7 1 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK KVIDKNCK reports would also note which of the claimants had dismissed their claims. 5 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 27 18. Mr. Abel never contacted Mr. McCutchan during the pendency of the Liebling Action to state that any of the Claimants identified in the status reports as having dismissed their claims had, prior to the dismissal assi 8 ned their claims to him. 10 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 27 12 19. The first Mr, McCutchan learned that Mr. 13 Abel was claiming assignments from plaintiffs from the underlying action was in mid-April of 2014. See Evidence at Kxhibit A, Declaration of Edward McCutchan, Esq, $ 27 16 20, At trial on March 27, 2014 none of the 17 underlying Defendants appeared and the trial was conducted as an uncontested trial. The Court awarded judgment to Claimants and against all of the remaining underlying Defendants in the amount of $ 17,280,966.37. 20 21 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 28, see also Exhibit 22 B, Plaintiff s FAC, $ 15; see also Exhibit J, April 2, 2014 Judgment in the Liebling Action, 23 21. At the time of the March 27, 2014 trial, the remaining defendants were Robert Zuckerman, Peter Skarpias, John 25 Cruickshank, Malibu Greene View Corporation, Greene Malibu Valley Ranch 26 Corporation, Triple J's Corporation, Canyon Greene Corporation, Greene 27 Broad Beach Corporation and Malibu Beach View Corp oration. 2S See Evidence at Exhibit A, Declaration of SEPARATE STATEMENI'F UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION, FOR SUMMARY JUDGMENT ON BEHALF OF WOE DEFENDANT 8 1 MOVING PARTY'S UNDISPUTED OPPOSING PARTY) S RKSPONSK MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK EVIDENCE 3 Edward McCutchan, Esq. $ 29; see also Exhibit J, April 2, 2014 Judgment in the Liebling Action 5 22. On April 2, 2014, the Court entered judgment. The April 2, 2014 judgment awarded special damages of $ 4,669,937.34, which was the collective loan amount of all of the loans fraudulently obtained by the defendants, minus the money recovered by plaintiffs when the land was resold by Claimants as part of their efforts to mitigate their 10 damages. In addition, the court awarded prejudgment interest, statutory and general damages for those plaintiffs who were "elders," attorneys'ees, costs, and punitive damages. The total judgment was $ 17„280,966.37 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. 1[31; see also Exhibit 15 8, Plaintifps FAC, 1[16; see also Exhibit,l, April 2, 2014 Judgment in the Liebling Action 16 23. Richard Abel received an award of $ 123,877.70 in the April 2, 2014 judgment. 18 Scc Evidence at Kxhibit A, Declaration of 19 Edward McCutchan, Esq. [[ 32; see also Kxhibit 8, Plaintiff s FAC, 1[ 18; see also Exhibit J, April 2, 2014 Judgment in the Liebling Action 24. Following the April 2014 judgment, Mr. 22 Abel stated to Mr. McCutchan that at least some of the Claimants had assigned their 23 claims to him. 24 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. t[ 33. 25 25. On April 9, 2014 Mr. McCutchan sent a 26 letter to Mr. Abel requesting that he provide the assignments he claimed to 27 have. In the letter, Mr. McCutchan explained to Mr. Abel that the 28 assignments would need to be notarized SUMMAILY IUDGMENT ON SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR BEHALF OP DOE DEFENDANT 9 1 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK KVIDKNCK 3 and include the effective dates of the assignment, the terms and the names and address of the person giving the assignment. He included a form for him to use and modify in obtaining the claimed assignments. 7 See Evidence at Exhibit A, Declaration of 8 Edward McCutchan, Esq. $ 33; see also Exhibit K, Mr. McCutchan's April 9, 2014 letter to Mr. Abel. 10 26. Mr. McCutchan did not receive documentation of any assignments from Mr. Abel in response to his April 9, 2014 12 and on May 23, 2014, he sent another letter requesting the assignments. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 34; see also Exhibit L, Mr. McCutchan's May 23, 2014 letter to Mr, 15 Abel 1.6 27. On May 29, 2014 Mr. McCutchan emailed Mr. Abel requesting again the written assignments. That same day, in response to Mr. McCutchan's email, Mr. Abel responded to stating that he did not have any assignments and that thc former 18 clients were not interested in signing. See Evidence at Kxhibif A, Declaration of Edward McCutchan, Esq. tt 35; see also Exhibit M, Mr. McCutchan's May 29, 2014 email string with Mr. Abel 23 28. In response, to Mr. Abel's email, Mr. McCutchan emailed Mr. Abel and told him that unless the former clients assign their claims to him per the form 25 assignment drafted for him as a courtesy in the Spring of 2014, he would get 26 nothing in collection based on the assignments, and the judgment would only be split between remaining active clients evenly. 28 SEPARATE STATEMENT OP UNDISPUTED MATERIAL PACTS IN SUPPORT OF MOTION FOR, SUMMARY JUDGMENT ON BEHALF OF DOE IfEFENDANT 10 1 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RESPONSE MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE EVIDENCE See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 36; see also Exhibit M, Mr. McCutchan's May 29, 2014 email string with Mr. Abel. 6 29. The very last client who was dismissed from the Liebling Action was dismissed in early 2013. No former Claimants in the Liebling Action ever told Mr. McCutchan that they assigned any of their claims to Mr, Abel. 10 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. fl 37; see also Exhibit I, Requests for dismissals of Plaintiffs in Liebling Action. 13 30. Robert Zuckerman brought a motion to set aside the April 2014 Judgment, which was granted. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 38; see also Exhibit 16 B, Plaintiff" s FAC, $ 19. 31. On September 2, 2014 Mr. McCutchan filed a third amended complaint (the 1.8 "TAC") for the Liebling Action, with 7uckerman as the only remaining Defendant, given the judgment against the other Defendants remained intact. 20 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 39; see also Exhibit B, Plaintiff s FAC, $ 20. 23 32. On October 28, 2014 Mr. McCutchan filed an amendment to the TAC which alleged that Mr. Abel was the owner of several claimed assignments. He filed this 25 amendment based on Mr. Abel's representations that he had obtained 26 assignments from the listed individuals and that he had obtained those assignments prior to their dismissal of their claims. The individuals listed on the 28 pleading were those that Mr. Abel had JUDGMENT ON SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION POR SUMMARY BEHALF OP DOE DEFENDANT Ii 1 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK MATERIAL FACTS AND SUPPORTING AND SUPPORTING EVIDENCE KVIDKNCK 3 stated he had received assignments from prior to their requested dismissal from the action. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 40; see also Exhibit 7 L, Amendment to TAC. 8 33. Robert Zuckerman demurred to the TAC. Mr. McCutchan filed an Opposition to the 9 demurrer, and the demurrer was overruled. 10 Sec Fvidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 41; see also Exhibit N„Order overruling demurrer. 34. On January 2, 2015 the second trial in 13 Liebling Action took place against defendant Zuckerman. Zuckerman failed to appear at the second trial, and trial proceeded as an uncontested trial, The court awarded judgment to Claimants, and Mr. McCutchan submitted a proposed 16 judgment to the court. See Evidence at Kxhibit A, Declaration of Edward McCutchan, Esq. ft 42; see also Exhibit B, Plaintiff's FAC, f( 24. 35. Judgment was entered on January 5, 2015 (the "2015 Judgment" ) against Zuckeiman 20 only, in the amount of $ 20,989,591.99. 21 See Evidence at Kxhibit A, Declaration of 22 Edward McCutchan, Esq. tt 43; see also Exhibit B, Plaintiff s FAC, $ 25; see also Exhibit 0, the 23 2015 Judgment. 36. Richard Abel received an award of $ 159,500.12 in the 2015 Judgment. 25 See Evidence at Exhibit A, Declaration of 26 Edward McCutchan, Esq. $ 44; see also Exhibit B, Plaintiff's FAC, $ 27. 27 37. On July 7, 2015, Zuckerman's attorney 28 Raul Garcia brought a post-trial motion to vacate the 2015 Judgment pursuant to / )EPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SU PPORT OF MOTION FOR SUMMARY JUDGMENT ON BEHALr or DGE DEFEItIDANT 12 1 MOVING PARTY'S UNDISPUTED OPPOSING PARTY'S RKSPONSK MATERIAL FACTS AND SUPPORTING AND SUPPORTING KVIDKNCK KVIDKNCK CCP Ij473(b) on grounds of mistake, inadvertence, or surprise, based on his claim that he failed to calendar the trial date. The court granted the motion and vacated the 2015 judgment against Robert Zuckerman. See Evidence at Kxhibit A, Declaration of Edward McCutchan, Esq. $ 45; see also Kxhibit B, Plaintiff s FAC, $ 28; see also Exhibit 0, the 2015 Judgment. 38. On April 7, 2016, a trial setting conference was held where the Court set the date for a third trial for September 30, 2016. See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. fI 46; see also Exhibit B, Plaintiff's FAC, $ 29. 39. Prior to the third trial, Robeit Zuckerman brought a motion to dismiss the l.ieblmg 16 Action pursuant to CCP $ 583.340 on grounds that the litigation had exceeded five years. Mr. McCutchan Opposed the Motion and the Motion was denied, 18 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. ft 47. 20 40. On September 30, 2016, the third trial in 21 the Liebling Action commenced. Mr. Garcia appeared on behalf of Robert 22 Zuckerman at trial call on that day. 23 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 49; see also Exhibit B, Plaintiff's FAC, $ 31. 25 41. At trial call for the third trial, Mr. Garcia argued a motion in limine based on the 26 five-year statute CCP $ 583.340. After the Court denied the motion, Mr. Garcia 27 walked out the door and did not return. 28 See Evidence at Exhibit A, Declaration of Edward McCutchan, Esq. $ 50; see also Exhibit B, Plaintiff's FAC, $ 32 SUMMARY JUDGMENT ON SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR BEkIALF OP DOE DEFENDANT I3 .Robert Zuckerman did not put on a defense. The third trial proceeded as an uncontested trial. The court awarded judgment to the plaintiffs on the I iebling Action. Following trial, Mr. McCutchan submitted a proposed judgment to the court and personally sat in Judge Chouteau's chambers going over with him how he wanted the final judgment to read where a revised proposed judgment was sent to Judge Chouteau for signature, dating and filing. 10 Evidence at Exhibit A, Declaration of ward McCutchan, Esq. lt 50, 12 43,0n October 5, 2016, judgment was