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1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102)
ALEXANDER D. PROMM, ESQ. (State Bar No. 318412)
2 GALLOWAY, LUCCHESE, EVERSON & PICCHI
A Professional Corporation
3 2300 Contra Costa Blvd., Suite 350
Pleasant Hill, CA 94523-2398
4 Tel. No. (925) 930-9090
Fax No. (925) 930-9035
5 Email: jpicchi@glattys.com; apromm@glattys.com
6 Attorneys for Defendants
B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; SUNDERLAND | and
7 McCUTCHAN, LLP
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SONOMA
10 RICHARD ABEL, an individual, Case No. SCV263456
11 Plaintiff, The Honorable Christopher
Honigsberg
12 vs.
SECOND SUPPLEMENTAL
13 B. EDWARD McCUTCHAN JR., an DECLARATION OF ALEXANDER D.
individual; SUNDERLAND/McCUTCHAN, PROMM, ESQ. IN SUPPORT OF
14 LLP, a general partnership; and DOES 1 DEFENDANTS MOTION FOR
through 100, inclusive, ADDITIONAL SANCTIONS
15
Defendants.
16 Date: February 8, 2023
Time: 3:00 p.m.
17 Dept: 18
18 Date Complaint Filed: November 2, 2018
Trial: March 10, 2023
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22 I, ALEXANDER D. PROMM, ESQ., declare as follows:
23 1. I am an attorney at law duly licensed to practice before all the courts in the
24 State of California and am an attorney with the Pleasant Hill law firm of Galloway,
25 Lucchese, Everson & Picchi, attorneys of record for defendants herein.
26 2. I make this declaration on behalf of said defendant B. EDWARD
27 MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; SUNDERLAND | MCCUTCHAN, LLP
28 and SUNDERLAND | MCCUTCHAN, INC. in support of the previously filed Motion for
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., __________________________________ 1
Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450
Pleasant Hill, CA 94523
(925) 930-9090
IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS
1 Additional Sanctions from personal knowledge unless otherwise stated, and if called as
2 a witness, I could and would competently testify to the information contained within this
3 declaration.
4 3. On December 22, 2021, Defendants filed a motion for additional sanctions
5 based on Plaintiff’s failures to abide by Court orders. In this motion, Defendants brought
6 the non-payment of November 18, 2020 sanctions ($1,490) from a motion to compel.
7 4. On September 19, 2022 Plaintiff was also ordered to pay Defendants $555
8 for abuses of discovery.
9 5. At the hearing on the Motion for Additional Sanctions on December 5, 2022,
10 the Court noted that Plaintiff has consistently failed to pay Court Ordered sanctions and
11 ordered Plaintiff to pay previously imposed sanctions in the total amount of $2,045.00
12 ($1,490 + $555) not later than thirty (30) days of today's date. Based on the Court’s Minute
13 order, Plaintiff’s deadline for payment was January 7, 2023.
14 6. After several attempts to contact Mr. Abel. He stated that he would be
15 sending a check through his bill pay service. A true and correct copy of correspondence
16 with Plaintiff is attached hereto as Exhibit A. He represented that the payment would be
17 made by January 9, 2023, already after the deadline set by the Court. However, despite
18 the failure of strict compliance on the part of Plaintiff, Defendants were not going to make
19 a problem out of this, but on January 9, no payment was received. In fact, to date, no
20 payment has been received.
21 7. On January 13, 2023, I contacted Plaintiff to follow up on the fact that we
22 had not received payment of these sanctions as well as some other items.
23 8. Finally, on January 25, 2023, Plaintiff responded to this inquiry. He stated
24 that the bank had processed the checks. Having not received any checks to our office,
25 we inquired about the specifics of his alleged compliance. He stated that he had sent
26 these checks directly to the attorney defendants.
27 9. We contacted these clients and they stated that they had received two (2)
28 checks from Mr. Abel for $138.75 each. They did not know what these checks were for
GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., __________________________________ 2
Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450
Pleasant Hill, CA 94523
(925) 930-9090
IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS
1 as they did not represent adequate payment for any of Plaintiff’s ordered sanctions. They
2 have submitted their own declaration and attached exhibits concerning the Plaintiff’s
3 payment of ordered sanctions as ordered to the Doe Defendants. See Exhibit A.
4 10. Finally, after attempting to meet and confer with Plaintiff over his payments,
5 he stated that no checks were sent to our office and that he believes that my office was
6 not awarded any sanctions. See Exhibit A. We informed him, as he has been informed
7 previously and consistently, that correspondence to our clients should be directed through
8 our office. We asked him for proof of his claimed payments, but since that request, Plaintiff
9 has not responded to us and no further payments have been received.
10 11. Even if we assume, relying on Plaintiff’s statements, that the payment of
11 $277.50 was in payment for the sanctions that he owes the “attorney defendants”, this
12 amount is approximately 10% of what the Court ordered.
13 12. It is believed that this payment is yet another purposefully confounding
14 move in this litigation on the part of Plaintiff. While, we expect Plaintiff to claim that he
15 has complied with the Court’s order, we have no evidence of complete, or even
16 substantial, compliance. It seems clear from the correspondence that Plaintiff has no
17 intention of complying with the Court’s order.
18 13. Based on these failures and apparent contempt for this Court, Defendants
19 now request the reconsideration of the Court’s tentative and request the imposition of the
20 further sanctions requested in the originating motion.
21 I declare under penalty of perjury under the laws of the State of California that the
22 foregoing is true and correct.
23 Executed this 3rd day of February, 2023 at Pleasant Hill, California.
24
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ALEXANDER D. PROMM, ESQ.
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., __________________________________ 3
Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450
Pleasant Hill, CA 94523
(925) 930-9090
IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS
EXHIBIT A
From: Alexander Promm
To: Richard Abel
Cc: Joseph Picchi; Valarie Bellomo; Carrie Hughes
Subject: RE: Payment of Sanctions
Date: Friday, January 27, 2023 12:45:00 PM
Attachments: image001.png
Mr. Abel,
The question is: “Are you representing yourself in this action?” If so, you are a pro se/pro per and
should comport yourself appropriately. You clearly did not read the opinion I sent attached to my
previous message. It does not just apply to me. You decided to enter this litigation without an
attorney, we did not make that choice for you. As a pro se/pro per, you are held to the same
standards as I am. I remind you of this, only because it seems that, whenever convenient,
Where would we even send these checks? We have already had significant issues with your non-
receipt of certified correspondence and so I cannot be sure that these checks will even make it to
you. Further, I still don’t know how many checks you sent out directly to my clients and so I will be
unable to verify that all of these have been returned to you. Can you cancel these checks from your
end? That may be a better choice than attempting to track down and return each individual check.
As you have not actually made any payments to my clients, you do not need their tax ID numbers.
And when you properly pay my firm for these sanctions, we will provide you our tax ID.
Thank you,
Alexander D. Promm, Esq.
Galloway, Lucchese, Everson & Picchi
2300 Contra Costa Blvd, Suite 350
Pleasant Hill, CA 94523
P | 925.930.9090
F | 925.930.9035
apromm@glattys.com
www.glattys.com
Proud to be a part of the California Green Business Network
GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION
This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected from
disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you are hereby
notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not authorized. If you have
received this document in error, please immediately notify our office and shred all copies.
From: Richard Abel
Sent: Friday, January 27, 2023 11:53 AM
To: Alexander Promm
Cc: Joseph Picchi ; Valarie Bellomo ; Carrie Hughes
Subject: Re: Payment of Sanctions
Mr. Promm,
I am not a "pro se lawyer" nor any kind of lawyer, therefore the ABA opinion has no
application. It only applies to lawyers which I am not. It only applies to you.
If your clients do not plan to cash my checks, then send them back to me.
Please provide the tax ID numbers for each of the 4 attorney defendants so that I can prepare
form 1099 for the IRS and Franchise Tax Board.
On Fri, Jan 27, 2023, 1:15 PM Alexander Promm wrote:
Mr. Abel,
We are not required to Fed Ex your check, especially since this will be our second attempt at
delivery. We are not going to have you pick up the check from Mr. McCutchan’s office either.
Thank you for the information concerning your change of address, and we will await an updated
address and will send your check to that address upon receipt of your formal notice.
Your position will be noted with the Court. I do not believe that they will be pleased with you or
this position you are taking. It was my office’s motion that was granted and the sanctions were
awarded to the attorney defendants as a whole. Your correspondence with them, even to provide
payment, is improper as I have outlined previously to you and Mr. McCutchan has also informed
you. As a pro per, you are representing yourself as an attorney and are required to abide by the
same rules as attorneys. I encourage you to read the attached opinion from the American Bar
Association which outlines this requirement and your duties as it relates to this type of
communication. Any further contact with any of the represented parties, with the limited
exception of correspondence with Mr. McCutchan for the purposes and in the course of his
representation of the Doe Defendants will be brought to the Court’s attention. It is my office’s job
to collect these sanctions and divide them among my clients’ interests.
Even if we believe that you have paid each of the 4 attorney defendants $138.75, for which there
is only evidence of $277.50, the payments are still only ¼ of the sanctions that you owe to my
clients. Where are the other Court ordered payments that you are alleging that you paid? How do
we know if the money paid to Mr. McCutchan and Dale Davis are actually attempted payment for
the sanctions that you owe the Doe Defendants? This is why it is standard practice to include a
cover letter with this payment and a memo to outline what the payment is for. This is also why I
requested your evidence of other payments, which you have failed to provide.
I fail to see why you include statements about Mr. McCutchan’s unwillingness to negotiate your
non-payment. This seems to have no bearing on the issue at hand. All this means is that he is not
willing to accept your incomplete payment. We are in the same position and are unwilling to
negotiate your incomplete and improper payment.
Alexander D. Promm, Esq.
Galloway, Lucchese, Everson & Picchi
2300 Contra Costa Blvd, Suite 350
Pleasant Hill, CA 94523
P | 925.930.9090
F | 925.930.9035
apromm@glattys.com
www.glattys.com
Proud to be a part of the California Green Business Network
GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION
This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected from
disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you are
hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not authorized. If
you have received this document in error, please immediately notify our office and shred all copies.
From: Richard Abel
Sent: Thursday, January 26, 2023 5:41 PM
To: Alexander Promm
Cc: Joseph Picchi ; Valarie Bellomo ; Carrie Hughes
Subject: Re: Payment of Sanctions
Mr. Promm,
I plan to change my address on February 1. Therefore I recommend that your clients send
their checks by Fed Ex tomorrow, or I could pick them up from their office in Healdsburg
CA tomorrow. Have your client leave the checks with the front desk of his "office" in
Healdsburg.
I will not sign for your certified mailing of an empty envelope.
No checks were sent to your office. You were not awarded any sanctions.. The checks were
sent to the Attorney Defendants, including the one who lives on Westside Road. The last
letter I got from Mc Cutcan said that he is not going to negotiate those checks I sent.
On Thu, Jan 26, 2023, 12:31 PM Alexander Promm wrote:
Mr. Abel,
No other checks have been received by my office. Also, I checked in with Mr. McCutchan and
SMLLP, and they have not received any other checks other than the two indicated below.
Therefore, we have no evidence that you have paid anything other than just 138.75 and 10.00.
If you believe this is in error, we will require evidence of other payments or we will proceed
under the assumption that you have not complied with your obligations.
Further, you sending checks directly to these clients is improper as Mr. McCutchan has
informed you concerning his clients. Any and all correspondence and payment with/to our
clients as it relates to their portions of this litigation should be directed through our office. I
understand that Mr. McCutchan also specifically represents some defendants in this matter,
and thus you are only to contact him in regard to his representation of his DOE Defendant
clients and not concerning matters for which we represent him and the Court-dubbed
“Attorney Defendants”.
We are prepared to pay the sanctions that are actually owed to you by Court order. We have
attempted the delivery of the sanctions check to you, but you failed to pick it up and therefore
it was returned to us. This is what part of our discussion has been. At this point, the non-
payment of any sanctions as it relates to my clients is a result of your failures, not on our office.
If you affirmatively state that you want us to attempt another delivery to you PO box, we will do
so, but be aware that it will again be registered mail as we do not send checks through the mail
without confirmation of receipt.
That being said, your deflection and misdirection off of the subject of your non-compliance is
not well taken. If you have specifics as to non-compliance, I encourage you to proffer the
evidence, including the specific order(s) to which you believe we have not complied. But that is
not the current subject of our discussion, and as I have said consistently in previous
correspondence, our alleged failures and yours are separate issues and any perceived failure on
our part does not relieve you of your responsibilities under the Court’s orders. As far as I am
aware, our office has complied fully with all the orders that this Court has made.
Thank you,
Alexander D. Promm, Esq.
Galloway, Lucchese, Everson & Picchi
2300 Contra Costa Blvd, Suite 350
Pleasant Hill, CA 94523
P | 925.930.9090
F | 925.930.9035
apromm@glattys.com
www.glattys.com
Proud to be a part of the California Green Business Network
GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION
This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected
from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you
are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not
authorized. If you have received this document in error, please immediately notify our office and shred all copies.
From: Richard Abel
Sent: Wednesday, January 25, 2023 3:20 PM
To: Alexander Promm
Cc: Joseph Picchi ; Valarie Bellomo ; Carrie
Hughes
Subject: Re: Payment of Sanctions
Wrong, there were more checks sent for more than just 138.75 and 10.00. McCutchans
letter is not an accurate reflection of the total amounts sent. The bank does not put
memos into envelopes, nor am I required to write a memo.
I need to remind you that your clients did not pay the full amounts owed, nor did they
provide the discovery that was ordered to me. So it looks like I will be filing a motion for
"additional sanctions" against your clients then.
I would rather not have to file another motion, so I think we should meet and confer to
get this resolved.
On Wed, Jan 25, 2023, 3:00 PM Alexander Promm wrote:
Mr. Abel,
You allege that you sent the sanction check as ordered by the Court. When I asked if you had
sent them to our business address, you did not respond. Apparently now you are saying that
the checks that were received by Mr. McCutchan were intended to be the payment of the
sanctions that were ordered by the Court. As you are well aware, you were ordered to pay
sanctions in the total amount of $2,045.00 ($1,490 + $555). You have failed to do so. If you
contend that you sent these checks directly to Sunderland McCutchan, the only checks that
were received were in the amount of $138.75 and $10.00 based on Mr. McCutchan’s letter
to you. There is no memo attached and it is entirely unclear what these payments were in
response to; for all we knew this was an insufficient payment of the sanctions that you
directly owe Mr. McCutchan’s clients. Even if you contend that this is payment for your
ordered sanctions, the amount is not even close to what was ordered. This seems to be a
willful failure on your part and will be brought to the Court’s attention.
As for your check: We have attempted delivery to the PO box you list as your address, but it
was returned as uncollected. You received two notices concerning the delivery before it was
returned. We can attempt another delivery, but based on the first attempted delivery, you
were not available at this address to receive it. This is why we asked at the hearing and in the
follow up for an address where you were available to receive this check. Based on your
representations in this correspondence, we will reissue the check and send it to you once
more.
Thank you,
Alexander D. Promm, Esq.
Galloway, Lucchese, Everson & Picchi
2300 Contra Costa Blvd, Suite 350
Pleasant Hill, CA 94523
P | 925.930.9090
F | 925.930.9035
apromm@glattys.com
www.glattys.com
Proud to be a part of the California Green Business Network
GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION
This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and
protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the
addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this
communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies.
From: Richard Abel
Sent: Wednesday, January 25, 2023 11:41 AM
To: Alexander Promm
Cc: Joseph Picchi ; Valarie Bellomo ; Carrie
Hughes
Subject: Re: Payment of Sanctions
Dear Mr. Promm,
The bank processed the checks like I told you. In fact, I received a letter from your
esteemed client with copies of some of the checks he received.
Meanwhile I have not received your checks. You already have my address, and I don't
have a special address just for checks. Send to the same address where you send all
your other papers.
On Fri, Jan 13, 2023, 5:47 PM Alexander Promm wrote:
Mr. Abel,
We still have received nothing from you or your bank for the payment of these sanctions.
Have you been in contact with your bank concerning this check?
Please let me know if and when we can expect to receive this check.
Also, I reiterate my request for an address to deliver our sanctions check to you as you did
not pick it up at your PO box.
Thank you,
Alexander D. Promm, Esq.
Galloway, Lucchese, Everson & Picchi
2300 Contra Costa Blvd, Suite 350
Pleasant Hill, CA 94523
P | 925.930.9090
F | 925.930.9035
apromm@glattys.com
www.glattys.com
Proud to be a part of the California Green Business Network
GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION
This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and
protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to
the addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this
communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies.
From: Alexander Promm
Sent: Wednesday, January 4, 2023 3:30 PM
To: Richard Abel
Cc: Joseph Picchi ; Valarie Bellomo ; Carrie
Hughes
Subject: RE: Payment of Sanctions
Mr. Abel,
Thank you for this update. I will be on the lookout for this delivery. I assume you sent it to
our business address?
As I said at the hearing, we attempted to deliver your check but it was returned to us after
notices were given by your post worker and you never picked it up. If you provide me an
address that you want the delivery to be made to, I will send you the check as soon as
possible.
Additionally, you have never responded to my inquiry about stipulation to continuance of
the current trial date. Are you willing to agree to this stipulation as the motion hearing
date is 2 days before trial and we both have motions that are set to be heard after the
currently set trial date? The Court will likely grant any motion based on these items alone,
but it would show good faith for you to stipulate to this reasonable request. If I do not
hear from you by Friday (1/6/23) I will file a motion.
Thank you again,
Alexander D. Promm, Esq.
Galloway, Lucchese, Everson & Picchi
2300 Contra Costa Blvd, Suite 350
Pleasant Hill, CA 94523
P | 925.930.9090
F | 925.930.9035
apromm@glattys.com
www.glattys.com
Proud to be a part of the California Green Business Network
GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION
This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and
protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to
the addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this
communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies.
From: Richard Abel
Sent: Wednesday, January 4, 2023 2:14 PM
To: Alexander Promm
Subject:
Mr. Pronn:
I sent the checks for sanctions using the free bill pay service with my bank. The
bank estimates a delivery date on or before January 9.
1 PROOF OF SERVICE
2 I declare under penalty of perjury that:
3 I am a citizen of the United States and am employed in the County of Contra Costa. I am
over the age of eighteen years and not a party to the within action. My business address
4 is 2300 Contra Costa Boulevard, Suite 350, Pleasant Hill, CA 94523-2398.
5 On the date set forth below, I caused the attached SECOND SUPPLEMENTAL
DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF DEFENDANTS
6 MOTION FOR ADDITIONAL SANCTIONS to be served on the parties to this action as
follows:
7
[ X ] BY ELECTRONIC SERVICE.
8
I electronically served a true copy thereof on the parties at said electronic
9 notification addresses as set forth on the attached service list from my electronic
notification address: vbellomo@glattys.com. The transmission was reported as
10 complete and without error. C.C.P. § 1010.6(a) and C.R.C. Rule 2.251.
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12 Executed on February 3, 2023 at Pleasant Hill, California.
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Valarie L. Bellomo
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., __________________________________ 4
Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450
Pleasant Hill, CA 94523
(925) 930-9090
IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS
1 ABEL V. MCCUTCHAN
2 SONOMA COUNTY SUPERIOR COURT CASE NO. SCV263456
3 SERVICE LIST
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5 Mr. Richard Abel Plaintiff in propria persona
P. O. Box 9301
6 Santa Rosa, CA 95405
Fax:
7 Email: perere1@gmail.com
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B. Edward McCutchan, Jr., Esq. Counsel for Defendants JIM NORD
9 Sunderland | McCutchan, LLP and DALE DAVIS
1083 Vine Street, Suite 907
10 Healdsburg, CA 95448
Fax: (707) 284-5527
11 Email: emccutchan@sunmclaw.com
12
Nansi Ida Weil Counsel for Defendant in propria
13 15898 Wright Lane persona
Guerneville, CA 95446
14 Fax:
Email: nansiweil@comcast.net
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GALLOWAY, LUCCHESE,
EVERSON & PICCHI
2300 Contra Costa Blvd., __________________________________ 5
Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450
Pleasant Hill, CA 94523
(925) 930-9090
IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS
Preview
1 JOSEPH S. PICCHI, ESQ. (State Bar No. 157102) ALEXANDER D. PROMM, ESQ. (State Bar No. 318412) 2 GALLOWAY, LUCCHESE, EVERSON & PICCHI A Professional Corporation 3 2300 Contra Costa Blvd., Suite 350 Pleasant Hill, CA 94523-2398 4 Tel. No. (925) 930-9090 Fax No. (925) 930-9035 5 Email: jpicchi@glattys.com; apromm@glattys.com 6 Attorneys for Defendants B. EDWARD McCUTCHAN, JR.; ROBERT J. SUNDERLAND; SUNDERLAND | and 7 McCUTCHAN, LLP 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 RICHARD ABEL, an individual, Case No. SCV263456 11 Plaintiff, The Honorable Christopher Honigsberg 12 vs. SECOND SUPPLEMENTAL 13 B. EDWARD McCUTCHAN JR., an DECLARATION OF ALEXANDER D. individual; SUNDERLAND/McCUTCHAN, PROMM, ESQ. IN SUPPORT OF 14 LLP, a general partnership; and DOES 1 DEFENDANTS MOTION FOR through 100, inclusive, ADDITIONAL SANCTIONS 15 Defendants. 16 Date: February 8, 2023 Time: 3:00 p.m. 17 Dept: 18 18 Date Complaint Filed: November 2, 2018 Trial: March 10, 2023 19 20 21 22 I, ALEXANDER D. PROMM, ESQ., declare as follows: 23 1. I am an attorney at law duly licensed to practice before all the courts in the 24 State of California and am an attorney with the Pleasant Hill law firm of Galloway, 25 Lucchese, Everson & Picchi, attorneys of record for defendants herein. 26 2. I make this declaration on behalf of said defendant B. EDWARD 27 MCCUTCHAN, JR.; ROBERT J. SUNDERLAND; SUNDERLAND | MCCUTCHAN, LLP 28 and SUNDERLAND | MCCUTCHAN, INC. in support of the previously filed Motion for GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., __________________________________ 1 Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450 Pleasant Hill, CA 94523 (925) 930-9090 IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS 1 Additional Sanctions from personal knowledge unless otherwise stated, and if called as 2 a witness, I could and would competently testify to the information contained within this 3 declaration. 4 3. On December 22, 2021, Defendants filed a motion for additional sanctions 5 based on Plaintiff’s failures to abide by Court orders. In this motion, Defendants brought 6 the non-payment of November 18, 2020 sanctions ($1,490) from a motion to compel. 7 4. On September 19, 2022 Plaintiff was also ordered to pay Defendants $555 8 for abuses of discovery. 9 5. At the hearing on the Motion for Additional Sanctions on December 5, 2022, 10 the Court noted that Plaintiff has consistently failed to pay Court Ordered sanctions and 11 ordered Plaintiff to pay previously imposed sanctions in the total amount of $2,045.00 12 ($1,490 + $555) not later than thirty (30) days of today's date. Based on the Court’s Minute 13 order, Plaintiff’s deadline for payment was January 7, 2023. 14 6. After several attempts to contact Mr. Abel. He stated that he would be 15 sending a check through his bill pay service. A true and correct copy of correspondence 16 with Plaintiff is attached hereto as Exhibit A. He represented that the payment would be 17 made by January 9, 2023, already after the deadline set by the Court. However, despite 18 the failure of strict compliance on the part of Plaintiff, Defendants were not going to make 19 a problem out of this, but on January 9, no payment was received. In fact, to date, no 20 payment has been received. 21 7. On January 13, 2023, I contacted Plaintiff to follow up on the fact that we 22 had not received payment of these sanctions as well as some other items. 23 8. Finally, on January 25, 2023, Plaintiff responded to this inquiry. He stated 24 that the bank had processed the checks. Having not received any checks to our office, 25 we inquired about the specifics of his alleged compliance. He stated that he had sent 26 these checks directly to the attorney defendants. 27 9. We contacted these clients and they stated that they had received two (2) 28 checks from Mr. Abel for $138.75 each. They did not know what these checks were for GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., __________________________________ 2 Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450 Pleasant Hill, CA 94523 (925) 930-9090 IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS 1 as they did not represent adequate payment for any of Plaintiff’s ordered sanctions. They 2 have submitted their own declaration and attached exhibits concerning the Plaintiff’s 3 payment of ordered sanctions as ordered to the Doe Defendants. See Exhibit A. 4 10. Finally, after attempting to meet and confer with Plaintiff over his payments, 5 he stated that no checks were sent to our office and that he believes that my office was 6 not awarded any sanctions. See Exhibit A. We informed him, as he has been informed 7 previously and consistently, that correspondence to our clients should be directed through 8 our office. We asked him for proof of his claimed payments, but since that request, Plaintiff 9 has not responded to us and no further payments have been received. 10 11. Even if we assume, relying on Plaintiff’s statements, that the payment of 11 $277.50 was in payment for the sanctions that he owes the “attorney defendants”, this 12 amount is approximately 10% of what the Court ordered. 13 12. It is believed that this payment is yet another purposefully confounding 14 move in this litigation on the part of Plaintiff. While, we expect Plaintiff to claim that he 15 has complied with the Court’s order, we have no evidence of complete, or even 16 substantial, compliance. It seems clear from the correspondence that Plaintiff has no 17 intention of complying with the Court’s order. 18 13. Based on these failures and apparent contempt for this Court, Defendants 19 now request the reconsideration of the Court’s tentative and request the imposition of the 20 further sanctions requested in the originating motion. 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct. 23 Executed this 3rd day of February, 2023 at Pleasant Hill, California. 24 25 ALEXANDER D. PROMM, ESQ. 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., __________________________________ 3 Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450 Pleasant Hill, CA 94523 (925) 930-9090 IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS EXHIBIT A From: Alexander Promm To: Richard Abel Cc: Joseph Picchi; Valarie Bellomo; Carrie Hughes Subject: RE: Payment of Sanctions Date: Friday, January 27, 2023 12:45:00 PM Attachments: image001.png Mr. Abel, The question is: “Are you representing yourself in this action?” If so, you are a pro se/pro per and should comport yourself appropriately. You clearly did not read the opinion I sent attached to my previous message. It does not just apply to me. You decided to enter this litigation without an attorney, we did not make that choice for you. As a pro se/pro per, you are held to the same standards as I am. I remind you of this, only because it seems that, whenever convenient, Where would we even send these checks? We have already had significant issues with your non- receipt of certified correspondence and so I cannot be sure that these checks will even make it to you. Further, I still don’t know how many checks you sent out directly to my clients and so I will be unable to verify that all of these have been returned to you. Can you cancel these checks from your end? That may be a better choice than attempting to track down and return each individual check. As you have not actually made any payments to my clients, you do not need their tax ID numbers. And when you properly pay my firm for these sanctions, we will provide you our tax ID. Thank you, Alexander D. Promm, Esq. Galloway, Lucchese, Everson & Picchi 2300 Contra Costa Blvd, Suite 350 Pleasant Hill, CA 94523 P | 925.930.9090 F | 925.930.9035 apromm@glattys.com www.glattys.com Proud to be a part of the California Green Business Network GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies. From: Richard Abel Sent: Friday, January 27, 2023 11:53 AM To: Alexander Promm Cc: Joseph Picchi ; Valarie Bellomo ; Carrie Hughes Subject: Re: Payment of Sanctions Mr. Promm, I am not a "pro se lawyer" nor any kind of lawyer, therefore the ABA opinion has no application. It only applies to lawyers which I am not. It only applies to you. If your clients do not plan to cash my checks, then send them back to me. Please provide the tax ID numbers for each of the 4 attorney defendants so that I can prepare form 1099 for the IRS and Franchise Tax Board. On Fri, Jan 27, 2023, 1:15 PM Alexander Promm wrote: Mr. Abel, We are not required to Fed Ex your check, especially since this will be our second attempt at delivery. We are not going to have you pick up the check from Mr. McCutchan’s office either. Thank you for the information concerning your change of address, and we will await an updated address and will send your check to that address upon receipt of your formal notice. Your position will be noted with the Court. I do not believe that they will be pleased with you or this position you are taking. It was my office’s motion that was granted and the sanctions were awarded to the attorney defendants as a whole. Your correspondence with them, even to provide payment, is improper as I have outlined previously to you and Mr. McCutchan has also informed you. As a pro per, you are representing yourself as an attorney and are required to abide by the same rules as attorneys. I encourage you to read the attached opinion from the American Bar Association which outlines this requirement and your duties as it relates to this type of communication. Any further contact with any of the represented parties, with the limited exception of correspondence with Mr. McCutchan for the purposes and in the course of his representation of the Doe Defendants will be brought to the Court’s attention. It is my office’s job to collect these sanctions and divide them among my clients’ interests. Even if we believe that you have paid each of the 4 attorney defendants $138.75, for which there is only evidence of $277.50, the payments are still only ¼ of the sanctions that you owe to my clients. Where are the other Court ordered payments that you are alleging that you paid? How do we know if the money paid to Mr. McCutchan and Dale Davis are actually attempted payment for the sanctions that you owe the Doe Defendants? This is why it is standard practice to include a cover letter with this payment and a memo to outline what the payment is for. This is also why I requested your evidence of other payments, which you have failed to provide. I fail to see why you include statements about Mr. McCutchan’s unwillingness to negotiate your non-payment. This seems to have no bearing on the issue at hand. All this means is that he is not willing to accept your incomplete payment. We are in the same position and are unwilling to negotiate your incomplete and improper payment. Alexander D. Promm, Esq. Galloway, Lucchese, Everson & Picchi 2300 Contra Costa Blvd, Suite 350 Pleasant Hill, CA 94523 P | 925.930.9090 F | 925.930.9035 apromm@glattys.com www.glattys.com Proud to be a part of the California Green Business Network GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies. From: Richard Abel Sent: Thursday, January 26, 2023 5:41 PM To: Alexander Promm Cc: Joseph Picchi ; Valarie Bellomo ; Carrie Hughes Subject: Re: Payment of Sanctions Mr. Promm, I plan to change my address on February 1. Therefore I recommend that your clients send their checks by Fed Ex tomorrow, or I could pick them up from their office in Healdsburg CA tomorrow. Have your client leave the checks with the front desk of his "office" in Healdsburg. I will not sign for your certified mailing of an empty envelope. No checks were sent to your office. You were not awarded any sanctions.. The checks were sent to the Attorney Defendants, including the one who lives on Westside Road. The last letter I got from Mc Cutcan said that he is not going to negotiate those checks I sent. On Thu, Jan 26, 2023, 12:31 PM Alexander Promm wrote: Mr. Abel, No other checks have been received by my office. Also, I checked in with Mr. McCutchan and SMLLP, and they have not received any other checks other than the two indicated below. Therefore, we have no evidence that you have paid anything other than just 138.75 and 10.00. If you believe this is in error, we will require evidence of other payments or we will proceed under the assumption that you have not complied with your obligations. Further, you sending checks directly to these clients is improper as Mr. McCutchan has informed you concerning his clients. Any and all correspondence and payment with/to our clients as it relates to their portions of this litigation should be directed through our office. I understand that Mr. McCutchan also specifically represents some defendants in this matter, and thus you are only to contact him in regard to his representation of his DOE Defendant clients and not concerning matters for which we represent him and the Court-dubbed “Attorney Defendants”. We are prepared to pay the sanctions that are actually owed to you by Court order. We have attempted the delivery of the sanctions check to you, but you failed to pick it up and therefore it was returned to us. This is what part of our discussion has been. At this point, the non- payment of any sanctions as it relates to my clients is a result of your failures, not on our office. If you affirmatively state that you want us to attempt another delivery to you PO box, we will do so, but be aware that it will again be registered mail as we do not send checks through the mail without confirmation of receipt. That being said, your deflection and misdirection off of the subject of your non-compliance is not well taken. If you have specifics as to non-compliance, I encourage you to proffer the evidence, including the specific order(s) to which you believe we have not complied. But that is not the current subject of our discussion, and as I have said consistently in previous correspondence, our alleged failures and yours are separate issues and any perceived failure on our part does not relieve you of your responsibilities under the Court’s orders. As far as I am aware, our office has complied fully with all the orders that this Court has made. Thank you, Alexander D. Promm, Esq. Galloway, Lucchese, Everson & Picchi 2300 Contra Costa Blvd, Suite 350 Pleasant Hill, CA 94523 P | 925.930.9090 F | 925.930.9035 apromm@glattys.com www.glattys.com Proud to be a part of the California Green Business Network GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies. From: Richard Abel Sent: Wednesday, January 25, 2023 3:20 PM To: Alexander Promm Cc: Joseph Picchi ; Valarie Bellomo ; Carrie Hughes Subject: Re: Payment of Sanctions Wrong, there were more checks sent for more than just 138.75 and 10.00. McCutchans letter is not an accurate reflection of the total amounts sent. The bank does not put memos into envelopes, nor am I required to write a memo. I need to remind you that your clients did not pay the full amounts owed, nor did they provide the discovery that was ordered to me. So it looks like I will be filing a motion for "additional sanctions" against your clients then. I would rather not have to file another motion, so I think we should meet and confer to get this resolved. On Wed, Jan 25, 2023, 3:00 PM Alexander Promm wrote: Mr. Abel, You allege that you sent the sanction check as ordered by the Court. When I asked if you had sent them to our business address, you did not respond. Apparently now you are saying that the checks that were received by Mr. McCutchan were intended to be the payment of the sanctions that were ordered by the Court. As you are well aware, you were ordered to pay sanctions in the total amount of $2,045.00 ($1,490 + $555). You have failed to do so. If you contend that you sent these checks directly to Sunderland McCutchan, the only checks that were received were in the amount of $138.75 and $10.00 based on Mr. McCutchan’s letter to you. There is no memo attached and it is entirely unclear what these payments were in response to; for all we knew this was an insufficient payment of the sanctions that you directly owe Mr. McCutchan’s clients. Even if you contend that this is payment for your ordered sanctions, the amount is not even close to what was ordered. This seems to be a willful failure on your part and will be brought to the Court’s attention. As for your check: We have attempted delivery to the PO box you list as your address, but it was returned as uncollected. You received two notices concerning the delivery before it was returned. We can attempt another delivery, but based on the first attempted delivery, you were not available at this address to receive it. This is why we asked at the hearing and in the follow up for an address where you were available to receive this check. Based on your representations in this correspondence, we will reissue the check and send it to you once more. Thank you, Alexander D. Promm, Esq. Galloway, Lucchese, Everson & Picchi 2300 Contra Costa Blvd, Suite 350 Pleasant Hill, CA 94523 P | 925.930.9090 F | 925.930.9035 apromm@glattys.com www.glattys.com Proud to be a part of the California Green Business Network GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies. From: Richard Abel Sent: Wednesday, January 25, 2023 11:41 AM To: Alexander Promm Cc: Joseph Picchi ; Valarie Bellomo ; Carrie Hughes Subject: Re: Payment of Sanctions Dear Mr. Promm, The bank processed the checks like I told you. In fact, I received a letter from your esteemed client with copies of some of the checks he received. Meanwhile I have not received your checks. You already have my address, and I don't have a special address just for checks. Send to the same address where you send all your other papers. On Fri, Jan 13, 2023, 5:47 PM Alexander Promm wrote: Mr. Abel, We still have received nothing from you or your bank for the payment of these sanctions. Have you been in contact with your bank concerning this check? Please let me know if and when we can expect to receive this check. Also, I reiterate my request for an address to deliver our sanctions check to you as you did not pick it up at your PO box. Thank you, Alexander D. Promm, Esq. Galloway, Lucchese, Everson & Picchi 2300 Contra Costa Blvd, Suite 350 Pleasant Hill, CA 94523 P | 925.930.9090 F | 925.930.9035 apromm@glattys.com www.glattys.com Proud to be a part of the California Green Business Network GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies. From: Alexander Promm Sent: Wednesday, January 4, 2023 3:30 PM To: Richard Abel Cc: Joseph Picchi ; Valarie Bellomo ; Carrie Hughes Subject: RE: Payment of Sanctions Mr. Abel, Thank you for this update. I will be on the lookout for this delivery. I assume you sent it to our business address? As I said at the hearing, we attempted to deliver your check but it was returned to us after notices were given by your post worker and you never picked it up. If you provide me an address that you want the delivery to be made to, I will send you the check as soon as possible. Additionally, you have never responded to my inquiry about stipulation to continuance of the current trial date. Are you willing to agree to this stipulation as the motion hearing date is 2 days before trial and we both have motions that are set to be heard after the currently set trial date? The Court will likely grant any motion based on these items alone, but it would show good faith for you to stipulate to this reasonable request. If I do not hear from you by Friday (1/6/23) I will file a motion. Thank you again, Alexander D. Promm, Esq. Galloway, Lucchese, Everson & Picchi 2300 Contra Costa Blvd, Suite 350 Pleasant Hill, CA 94523 P | 925.930.9090 F | 925.930.9035 apromm@glattys.com www.glattys.com Proud to be a part of the California Green Business Network GALLOWAY LUCCHESE, EVERSON & PICCHI CONFIDENTIAL COMMUNICATION This email is intended only for the person(s) to whom it is addressed and may contain information that is privileged, confidential and protected from disclosure pursuant to applicable law. If you are not the addressee or the person authorized to deliver this document to the addressee, you are hereby notified that any review, disclosure, copying, dissemination or other action based on the content of this communication is not authorized. If you have received this document in error, please immediately notify our office and shred all copies. From: Richard Abel Sent: Wednesday, January 4, 2023 2:14 PM To: Alexander Promm Subject: Mr. Pronn: I sent the checks for sanctions using the free bill pay service with my bank. The bank estimates a delivery date on or before January 9. 1 PROOF OF SERVICE 2 I declare under penalty of perjury that: 3 I am a citizen of the United States and am employed in the County of Contra Costa. I am over the age of eighteen years and not a party to the within action. My business address 4 is 2300 Contra Costa Boulevard, Suite 350, Pleasant Hill, CA 94523-2398. 5 On the date set forth below, I caused the attached SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. IN SUPPORT OF DEFENDANTS 6 MOTION FOR ADDITIONAL SANCTIONS to be served on the parties to this action as follows: 7 [ X ] BY ELECTRONIC SERVICE. 8 I electronically served a true copy thereof on the parties at said electronic 9 notification addresses as set forth on the attached service list from my electronic notification address: vbellomo@glattys.com. The transmission was reported as 10 complete and without error. C.C.P. § 1010.6(a) and C.R.C. Rule 2.251. 11 12 Executed on February 3, 2023 at Pleasant Hill, California. 13 14 Valarie L. Bellomo 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., __________________________________ 4 Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450 Pleasant Hill, CA 94523 (925) 930-9090 IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS 1 ABEL V. MCCUTCHAN 2 SONOMA COUNTY SUPERIOR COURT CASE NO. SCV263456 3 SERVICE LIST 4 5 Mr. Richard Abel Plaintiff in propria persona P. O. Box 9301 6 Santa Rosa, CA 95405 Fax: 7 Email: perere1@gmail.com 8 B. Edward McCutchan, Jr., Esq. Counsel for Defendants JIM NORD 9 Sunderland | McCutchan, LLP and DALE DAVIS 1083 Vine Street, Suite 907 10 Healdsburg, CA 95448 Fax: (707) 284-5527 11 Email: emccutchan@sunmclaw.com 12 Nansi Ida Weil Counsel for Defendant in propria 13 15898 Wright Lane persona Guerneville, CA 95446 14 Fax: Email: nansiweil@comcast.net 15 16 17 18 19 20 956-10761/ADP/1272450 21 22 23 24 25 26 27 28 GALLOWAY, LUCCHESE, EVERSON & PICCHI 2300 Contra Costa Blvd., __________________________________ 5 Suite 350 SCV263456: SECOND SUPPLEMENTAL DECLARATION OF ALEXANDER D. PROMM, ESQ. 956-10761/ADP/1272450 Pleasant Hill, CA 94523 (925) 930-9090 IN SUPPORT OF DEFENDANTS MOTION FOR ADDITIONAL SANCTIONS