Preview
1 Paul L. Gumina (SBN: 160110)
Law Offices of Paul L. Gumina, P.C.
2 560 W. Main St., #205
Alhambra, CA 91801
3
Tel: 866-894-8863
4 Fax: 866-894-8867
paul@westcoastbizlaw.com
5
Attorney for Defendants and Cross-Complainants
6 AMERICAN ABALONE FARMS, LLC,
OCEAN QUEEN USA, INC., and Defendant JAMES HO
7
8
9
10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF SANTA CRUZ
12
TOM EBERT, an individual; ) Case No.: 19CV03672
13 )
Plaintiff, ) DECLARATION OF PAUL L. GUMINA IN
14 ) OPPOSITION TO PLAINTIFF’S MOTION
VS. ) FOR ORDER COMPELLING DEFENDANT
15 ) AMERICAN ABALONE FARMS, LLC TO
AMERICAN ABALONE FARMS, LLC, a ) PRODUCE A PERSON MOST
16 California Limited Liability Company, OCEAN ) KNOWLEDGEABLE FOR DEPOSITION, TO
17 QUEEN USA, INC., a California Corporation, ) PROVIDE VERIFIED DISCOVERY
JAMES HO, an individual, HENSON XIE aka ) RESPONSES, FOR AN ORDER
18 SHOU HAI XIE, an individual, and DOES 1 To ) COMPELLING JAMES HO TO PROVIDE AN
50, inclusive, ) ANSWER TO A DEPOSITION QUESTION,
19 ) AND FOR SANCTIONS
Defendants. )
20 ) DATE: MARCH 16, 2023
) TIME: 8:30 P.M.
21
) DEPT: 5
22 _________________________________________ )
AND RELATED CROSS-COMPLAINT. ) TRIAL: April 17, 2023
23 )
24
I, Paul L. Gumina, am an attorney licensed to practice law in the State of California, and I am an
25
attorney for Defendants AMERICAN ABALONE FARMS, LLC (“AAF”), OCEAN QUEEN USA, INC.
26 ("Ocean Queen"), and JAMES HO (collectively, “Defendants”) in this action, and for Cross Defendants
27 AAF and Ocean Queen. If called as a witness in this action, I would and could testify from my own
28
personal knowledge, as follows:
Declaration of Paul L. Gumina in Opposition to Plaintiff’s Motion to Compel Page 1
1 1. Attached hereto as Exhibit A are my meet and confer communications with Plaintiff’s
2 counsel, Sasha Shahabi, from January 31, 2023, to March 1, 2023, filed as Exhibit A to Defendants’
March 7, 2023, Opposition to Plaintiff’s Ex Parte Application.
3
2. Attached hereto as Exhibit B is a true and correct copy of Defendant American Abalone
4
Farms, LLC’s Verified Responses to Set One of Plaintiff’s Requests for Production of Documents, dated
5
May 20, 2020.
6 3. Attached hereto as Exhibit C is a true and correct copy of Defendant American Abalone
7 Farms, LLC’s Verified Responses to Set One of Plaintiff’s Form Interrogatories—General, dated April
8 24, 2020.
4. Attached hereto as Exhibit D is a true and correct copy of Defendant American Abalone
9
Farms, LLC’s Verified Responses to Set One of Plaintiff’s Form Interrogatories—Employment, dated
10
April 24, 2020.
11 I declare under penalty of perjury under the laws of the State of California that the foregoing is
12 true and correct. Executed on March 13, 2023, in Alhambra, California.
13
14
15 Paul L. Gumina
Attorney for Defendants and Cross-Complainants
16 AMERICAN ABALONE FARMS, LLC,
OCEAN QUEEN USA, INC., and Defendant JAMES HO
17
18
19
20
21
22
23
24
25
26
27
28
Declaration of Paul L. Gumina in Opposition to Plaintiff’s Motion to Compel Page 2
Exhibit A
Paul Gumina
From: Sasha Shahabi
Sent: Wednesday, March 1, 2023 10:32 AM
To: Paul Gumina
Cc: Gabrielle Korte; Emily Humy
Subject: Re: Ebert v. American Abalone Farms (Discussing possible stipulation to continue the
trial)
Mr. Gumina,
Just to be clear, we are not requesting a trial continuance, rather, we're accommodating your client's request
to continue the trial to June.
Because our attorneys are unavailable in June due to another trial, we are suggesting a continuance to July.
We will wait to hear from you regarding Mr. Ho's availability in July.
With regard to American Abalone Farm's PMK, here are the topics on which the PMK should be knowledgeable.
1. The identity of current member(s) and manager(s) of American Abalone Farms LLC.
2. The identity of members and managers of American Abalone Farms LLC between July 2018 and May 2019.
3. American Abalone Farms LLC’s employment of or work-contract with Thomas Ebert between July 2018 and August
2019.
4. The employment or work, including consulting, performed by Thomas Ebert for American Abalone Farms LLC between
July 2018 and August 2019.
5. Any agreements with Thomas Ebert between July 2018 and August 2019.
6. The transfer of any ownership interest in American Abalone Farms LLC by James Ho within the past three years.
7. The transfer of any ownership interest by Ocean Queen USA Inc. within the past three years.
8. The management of American Abalone Farms LLC from July 2018 through present.
9. American Abalone Farms LLC’s financials and accounting from July 2018 through present.
10. The transfer of any membership interest in American Abalone Farms LLC within the past three years.
Based on Mr. Ho's sworn testimony, it's clear that neither Mr. Ho nor Ocean Queen USA's bookkeeper have the requisite
knowledge to be designated American Abalone Farm's PMK.
Mr. Ho testified that he and Ocean Queen USA sold American Abalone Farms in early 2019 and have no knowledge or
information about the LLC since that time.
Defendant American Abalone Farms LLC is refusing to designate the proper person or persons for its deposition.
Regards,
On Tue, Feb 28, 2023 at 3:52 PM Paul Gumina wrote:
Confidential Attorney Client Communication
Dear Mr. Shahabi: In principle, I'll agree to prepare a stipulation to continue the trial date until at least July
2023, but I'll check with my client, Mr. Ho, first to make sure what dates this spring and summer he will be
available, and when he's not available. I understand for now that he plans on returning to the US in about mid-
May after spending about two months in Taiwan caring for his ailing mom, but let me get confirmation and I'll
1
EXH A. PG 1
Paul Gumina
From: Paul Gumina
Sent: Tuesday, February 28, 2023 3:52 PM
To: Sasha Shahabi
Cc: Gabrielle Korte; Emily Humy
Subject: RE: Ebert v. American Abalone Farms (Discussing possible stipulation to continue the
trial)
Confidential Attorney Client Communication
Dear Mr. Shahabi: In principle, I'll agree to prepare a stipulation to continue the trial date until at least July
2023, but I'll check with my client, Mr. Ho, first to make sure what dates this spring and summer he will be
available, and when he's not available. I understand for now that he plans on returning to the US in about mid-
May after spending about two months in Taiwan caring for his ailing mom, but let me get confirmation and I'll
get back to you no later than tomorrow. We can also discuss continuing the discovery cut-off until a later date
as part of the stipulation.
Given that AAF's PMK deposition has not been concluded, and given that Mr. Ho was not completely
knowledgeable about accounting matters, the only other witness who has knowledge of AAF's financials until
the aborted sale of AAF to Ocean Xie is Tracy Cui, Ocean Queen's bookkeeper. I'm happy to make her
available on March 9, 2023, or on another mutually agreeable date, provided the depo is remote, and that Ms.
Cui has a Mandarin language translator. Also, let me know if you intend to continue your examination of Mr.
Ho.
I'll keep you posted when I hear anything.
Sincerely,
Paul L. Gumina
Cell: 408-313-3410
West Coast Business Law
The Law Offices Of Paul L. Gumina, P.C.
Main Office
560 W. Main St., Suite 205
Alhambra, CA 91801
Tel. (Toll Free): 866-894-8863
Fax: 866-894-8867
E-Mail: Paul@westcoastbizlaw.com
www.westcoastbizlaw.com
Please address correspondence to our Alhambra Office
San Jose Branch Office
1641 N. First St., Suite 250
San Jose, CA 95112
IRS Circular 230 disclosure:
To ensure compliance with requirements imposed
1
EXH A. PG 2
Paul Gumina
From: Sasha Shahabi
Sent: Tuesday, February 28, 2023 2:28 PM
To: Paul Gumina
Cc: Gabrielle Korte; Emily Humy
Subject: Ebert v. American Abalone Farms
Mr. Gumina,
In light of Mr. Ho's unavailability as a result of visiting his ill mother in Taiwan, we are willing to stipulate to a short trial
continuance.
Would July work for you and your clients?
Please let me know.
Thank You.
--
Sasha Shahabi
BRERETON, MOHAMED, & TERRAZAS, LLP
1362 Pacific Avenue, Suite 221
Santa Cruz, California 95060
Tel: (831)429-6391
Fax: (831)459-8298
NOTICE:
This email message and/or its attachments may contain information that is confidential or restricted. It is intended only for the
individuals named as recipients in the message. This entire message constitutes a privileged and confidential communication pursuant
to California Evidence Code Section 952 and California Code of Civil Procedure Section 2018.010 et seq. If you are NOT an
authorized recipient, you are prohibited from using, delivering, distributing, printing, copying, or disclosing the message or content to
others and must delete the message from your computer. If you have received this message in error, please notify the sender by return
email.
This email has been scanned for spam and viruses. Click here to report this email as spam.
1
EXH A. PG 3
Paul Gumina
From: Sasha Shahabi
Sent: Monday, February 27, 2023 4:54 PM
To: Paul Gumina
Subject: Re: Ebert v. American Abalone Farms -- MEET & CONFER Deposition of PMK for AAF
Mr. Gumina,
It's not my place to tell your client who it should designate and produce as its person most knowledgeable. You have
our deposition notice with the list of topics.
Your client James Ho testified under oath that he and Ocean Queen USA have had nothing to do with American Abalone
Farms since early 2019 and that all of the discovery responses he signed in 2020 on behalf of American Abalone Farms
were false.
Please review the notice of deposition directed to American Abalone Farms and have your client designate the person
most knowledgeable by the end of the day tomorrow.
Additionally, please immediately provide proper verifications for American Abalone Farms' discovery responses, as those
signed by your client James Ho were invalid.
Thank You,
On Mon, Feb 27, 2023 at 3:39 PM Paul Gumina wrote:
Dear Mr. Shahabi: I have just finished speaking with Mr. Ho. He indicates he is available to complete his portion of the
deposition on March 1, if that is how you wish to proceed. Please forward to my office the link for a remote
appearance on March 1 as neither I nor Mr. Ho will be able to appear in person.
To follow up on my previous email, the only other individual with knowledge of AAF is Ocean Queen’s accountant Tracy
Cui. Ms. Cui is available for a remote depo on March 8. If you are going to depose Ms. Cui on March 8, as I previously
mentioned, we would waive the discovery cut-off of March 7 to allow for this deposition.
Please confirm you will have a Mandarin language translator available for Mr. Ho on March 1, and one available on for
March 8 at Ms. Cui’s deposition.
Lastly, I was just advised by Mr. Ho that his mother in Taiwan has been very ill, and it appears that he will be in Taiwan
from mid-March to approximately mid-May to care for her. We may wish to stipulate a trial continuance until June of
this year.
Let me know your thoughts.
1
EXH A. PG 4
Paul Gumina
From: Paul Gumina
Sent: Monday, February 27, 2023 3:39 PM
To: Sasha Shahabi
Subject: RE: Ebert v. American Abalone Farms -- MEET & CONFER Deposition of PMK for AAF
Importance: High
Dear Mr. Shahabi: I have just finished speaking with Mr. Ho. He indicates he is available to complete his portion of the
deposition on March 1, if that is how you wish to proceed. Please forward to my office the link for a remote appearance
on March 1 as neither I nor Mr. Ho will be able to appear in person.
To follow up on my previous email, the only other individual with knowledge of AAF is Ocean Queen’s accountant Tracy
Cui. Ms. Cui is available for a remote depo on March 8. If you are going to depose Ms. Cui on March 8, as I previously
mentioned, we would waive the discovery cut-off of March 7 to allow for this deposition.
Please confirm you will have a Mandarin language translator available for Mr. Ho on March 1, and one available on for
March 8 at Ms. Cui’s deposition.
Lastly, I was just advised by Mr. Ho that his mother in Taiwan has been very ill, and it appears that he will be in Taiwan
from mid-March to approximately mid-May to care for her. We may wish to stipulate a trial continuance until June of
this year.
Let me know your thoughts.
Sincerely,
Paul L. Gumina
Cell: 408-313-3410
West Coast Business Law
The Law Offices Of Paul L. Gumina, P.C.
Main Office
560 W. Main St., Suite 205
Alhambra, CA 91801
Tel. (Toll Free): 866-894-8863
Fax: 866-894-8867
E-Mail: Paul@westcoastbizlaw.com
www.westcoastbizlaw.com
Please address correspondence to our Alhambra Office
San Jose Branch Office
1641 N. First St., Suite 250
San Jose, CA 95112
IRS Circular 230 disclosure:
To ensure compliance with requirements imposed
by the IRS, we inform you that any tax advice
contained in this communication, unless expressly
1
EXH A. PG 5
Paul Gumina
From: Paul Gumina
Sent: Monday, February 27, 2023 3:19 PM
To: Sasha Shahabi
Subject: RE: Ebert v. American Abalone Farms -- MEET & CONFER Deposition of PMK for AAF
Dear Mr. Shahabi: Unfortunately, I am not available for a deposition on March 1.
Are you amenable to continue taking Mr. Ho’s deposition? Otherwise, I would have his bookkeeper, Tracy Cui,
answer questions about any financial statements or AAF bank records. However, please note that prior to the
aborted sale of AAF to Ocean Xie, Ms. Cui relied entirely on bank statements and accounting records created
and maintained by Mr. Ebert. She simply compiled them for the CPA that did AAF’s taxes.
I am obtaining Mr. Ho and Ms. Cui’s availability after March 1. If they are not available before the discovery
cut-off on March 7, we will still provide you access to the witnesses.
Please let me know how you wish to proceed.
Sincerely,
Paul L. Gumina
Cell: 408-313-3410
West Coast Business Law
The Law Offices Of Paul L. Gumina, P.C.
Main Office
560 W. Main St., Suite 205
Alhambra, CA 91801
Tel. (Toll Free): 866-894-8863
Fax: 866-894-8867
E-Mail: Paul@westcoastbizlaw.com
www.westcoastbizlaw.com
Please address correspondence to our Alhambra Office
San Jose Branch Office
1641 N. First St., Suite 250
San Jose, CA 95112
IRS Circular 230 disclosure:
To ensure compliance with requirements imposed
by the IRS, we inform you that any tax advice
contained in this communication, unless expressly
stated otherwise, was not intended or written to be
used, and cannot be used, for the purpose of (i)
avoiding tax-related penalties under the Internal
Revenue Code or (ii) promoting, marketing or
recommending to another party any tax-related
matter(s) addressed herein.
1
EXH A. PG 6
Paul Gumina
From: Paul Gumina
Sent: Tuesday, February 28, 2023 3:52 PM
To: Sasha Shahabi
Cc: Gabrielle Korte; Emily Humy
Subject: RE: Ebert v. American Abalone Farms (Discussing possible stipulation to continue the trial)
Confidential Attorney Client Communication
Dear Mr. Shahabi: In principle, I'll agree to prepare a stipulation to continue the trial date until at least July
2023, but I'll check with my client, Mr. Ho, first to make sure what dates this spring and summer he will be
available, and when he's not available. I understand for now that he plans on returning to the US in about mid-
May after spending about two months in Taiwan caring for his ailing mom, but let me get confirmation and I'll
get back to you no later than tomorrow. We can also discuss continuing the discovery cut-off until a later date
as part of the stipulation.
Given that AAF's PMK deposition has not been concluded, and given that Mr. Ho was not completely
knowledgeable about accounting matters, the only other witness who has knowledge of AAF's financials until
the aborted sale of AAF to Ocean Xie is Tracy Cui, Ocean Queen's bookkeeper. I'm happy to make her
available on March 9, 2023, or on another mutually agreeable date, provided the depo is remote, and that Ms.
Cui has a Mandarin language translator. Also, let me know if you intend to continue your examination of Mr.
Ho.
I'll keep you posted when I hear anything.
Sincerely,
Paul L. Gumina
Cell: 408-313-3410
W e s t C o as t B u s in e s s L aw
Th e L aw O ffic e s O f P au l L . G u m in a, P .C .
Main Office
560 W . Main St., Suite 205
Alhambra, CA 91801
Tel. (Toll Free): 866-894-8863
Fax: 866-894-8867
E-Mail: Paul@ westcoastbizlaw.com
www.westcoastbizlaw.com
San Jose Branch Office
1641 N. First St., Suite 250
San Jose, CA 95112
IRS Circular 230 disclosure:
To ensure compliance with requirements imposed
by the IRS, we inform you that any tax advice
1
EXH A. PG 7
contained in this communication, unless expressly
stated otherwise, was not intended or written to be
used, and cannot be used, for the purpose of (i)
avoiding tax-related penalties under the Internal
Revenue Code or (ii) promoting, marketing or
recommending to another party any tax-related
matter(s) addressed herein.
From: Sasha Shahabi
Sent: Tuesday, February 28, 2023 2:28 PM
To: Paul Gumina
Cc: Gabrielle Korte ; Emily Humy
Subject: Ebert v. American Abalone Farms
Mr. Gumina,
In light of Mr. Ho's unavailability as a result of visiting his ill mother in Taiwan, we are willing to stipulate to a short trial
continuance.
Would July work for you and your clients?
Please let me know.
Thank You.
--
Sasha Shahabi
BRERETON, MOHAMED, & TERRAZAS, LLP
1362 Pacific Avenue, Suite 221
Santa Cruz, California 95060
Tel: (831)429-6391
Fax: (831)459-8298
NOTICE:
This email message and/or its attachments may contain information that is confidential or restricted. It is intended only for the
individuals named as recipients in the message. This entire message constitutes a privileged and confidential communication pursuant
to California Evidence Code Section 952 and California Code of Civil Procedure Section 2018.010 et seq. If you are NOT an
authorized recipient, you are prohibited from using, delivering, distributing, printing, copying, or disclosing the message or content to
others and must delete the message from your computer. If you have received this message in error, please notify the sender by return
email.
This email has been scanned for spam and viruses. Click here to report this email as spam.
2
EXH A. PG 8
Paul Gumina
From: Sasha Shahabi
Sent: Tuesday, February 28, 2023 2:28 PM
To: Paul Gumina
Cc: Gabrielle Korte; Emily Humy
Subject: Ebert v. American Abalone Farms
Mr. Gumina,
In light of Mr. Ho's unavailability as a result of visiting his ill mother in Taiwan, we are willing to stipulate to a short trial
continuance.
Would July work for you and your clients?
Please let me know.
Thank You.
--
Sasha Shahabi
BRERETON, MOHAMED, & TERRAZAS, LLP
1362 Pacific Avenue, Suite 221
Santa Cruz, California 95060
Tel: (831)429-6391
Fax: (831)459-8298
NOTICE:
This email message and/or its attachments may contain information that is confidential or restricted. It is intended only for the
individuals named as recipients in the message. This entire message constitutes a privileged and confidential communication pursuant
to California Evidence Code Section 952 and California Code of Civil Procedure Section 2018.010 et seq. If you are NOT an
authorized recipient, you are prohibited from using, delivering, distributing, printing, copying, or disclosing the message or content to
others and must delete the message from your computer. If you have received this message in error, please notify the sender by return
email.
This email has been scanned for spam and viruses. Click here to report this email as spam.
1
EXH A. PG 9
Paul Gumina
From: Sasha Shahabi
Sent: Monday, February 20, 2023 4:12 PM
To: Paul Gumina
Subject: Ebert v. American Abalone Farms -- MEET & CONFER
Attachments: Third Amended NOD of American Abalone.pdf
Mr. Gumina,
This email is an attempt to meet and confer regarding the issue of your client, American Abalone Farms LLC's improper
designation of their person most knowledgeable. As you are aware, your client designated Mr. Ho as their PMK in
response to Plaintiff's notice of deposition of the person most knowledgeable for American Abalone Farms. In the
notice of deposition, Plaintiff requested the designated PMK to be most knowledgeable about subject matters including
but not limited to the identity of current members and managers, financials and accounting, transfer of membership
interest, and management. A copy of the deposition subpoena with the subjects listed is attached.
On January 17, 2023, the continued deposition of Mr. Ho took place. During the deposition, in response to a series of
questions about his connection to American Abalone Farms, Mr. Ho stated that he did not have any sort of connection
with American Abalone Farms even before he sold the company in May 2019.
Notably, Mr. Ho stated that after 2019 when he transferred membership interest, he had “no ownership interest in
American Abalone Farms,” he didn’t know the current members and managers of American Abalone Farms, he didn’t
know the current ownership structure, and he doesn’t know of their financial records and accounting records.
Also during the deposition, Mr. Ho confirmed that he had signed the verification page of Defendant American Abalone
Farm’s responses to Plaintiff’s requests for production, which stated, “I, James Ho, am the chief executive officer of
American Abalone Farms, LLC.”
Mr. Ho confirmed that at the time he signed the verification, he had no role at American Abalone Farms, LLC. Mr. Ho
also confirmed that he signed verifications for American Abalone Farms, LLC’s responses to Plaintiff’s form
interrogatories.
Per Code of Civil Procedure section 2025.230, if the notice of deposition or subpoena served on the entity describes the
matters on which questions will be asked “with reasonable particularity,” the entity is under a duty to designate and
produce the officers, directors, managing agents or employees “most qualified” to testify on its behalf. Based on Mr.
Ho's responses during the deposition, it is clear that he was improperly designated as the PMK for American Abalone
Farms.
We request that you designate a proper PMK by EOD on Wednesday, February 22th, and produce them for a deposition
on March 1st, 2023.
Regards,
--
Sasha Shahabi
BRERETON, MOHAMED, & TERRAZAS, LLP
1362 Pacific Avenue, Suite 221
Santa Cruz, California 95060
Tel: (831)429-6391
Fax: (831)459-8298
1
EXH A. PG 10
Paul Gumina
From: Sasha Shahabi
Sent: Tuesday, January 31, 2023 4:53 PM
To: Paul Gumina
Subject: Ebert v. American Abalone Farms LLC et al - Meet & Confer
Mr. Gumina,
I'm writing to meet and confer with you regarding your January 17, 2023 objection and instruction to the deponent,
James Ho, not to answer the question whether Mr. Ho is paying the attorney fees on behalf of American Abalone Farms
LLC.
"Payment of fees is incidental to the attorney-client relationship, and does not usually involve disclosure of confidential
communications arising from the professional relationship." Los Angeles County Bd. of Supervisors v. Superior Court
(2016) 2 Cal 5th 282.
The deposition questions did not ask for details of attorney client communications nor for any content of invoices that
might reveal attorney client communications. The question is whether Mr. Ho is paying American Abalone Farms
LLC's legal fees, if not, who is paying those fees. If more than one person is paying or has paid fees on behalf of AAF,
who those persons are and what proportion of the fees have they paid. And whether Ocean Queen USA has paid or is
paying legal fees on behalf of AAF.
The questions do not seek privileged information and responses under oath must be provided.
Please confirm no later than this Friday, February 3, 2023, that verified responses under oath will be provided to the
above questions.
Thank You,
--
Sasha Shahabi
BRERETON, MOHAMED, & TERRAZAS, LLP
1362 Pacific Avenue, Suite 221
Santa Cruz, California 95060
Tel: (831)429-6391
Fax: (831)459-8298
NOTICE:
This email message and/or its attachments may contain information that is confidential or restricted. It is intended only for the
individuals named as recipients in the message. This entire message constitutes a privileged and confidential communication pursuant
to California Evidence Code Section 952 and California Code of Civil Procedure Section 2018.010 et seq. If you are NOT an
authorized recipient, you are prohibited from using, delivering, distributing, printing, copying, or disclosing the message or content to
others and must delete the message from your computer. If you have received this message in error, please notify the sender by return
email.
This email has been scanned for spam and viruses. Click here to report this email as spam.
1
EXH A. PG 11
Exhibit B
Exhibit C
1 Paul L. Gumina (SBN 160110)
Law Offices of Paul L. Gumina, P.C.
2 560 W. Main St., #205
Alhambra, CA 91801
3
Tel: 866-894-8863
4 Fax: 866-894-8867
Email: paul@westcoastbizlaw.com
5
Attorney for Defendants and Cross-Complainants
6 American Abalone Farms, LLC; Ocean Queen USA, Inc.,; and
Defendant James Ho
7
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SANTA CRUZ
10
UNLIMITED CIVIL JURISDICTION
11
TOM EBERT, an individual; ) Case No.: 19CV03672
12
)
13 Plaintiff, ) RESPONSE BY AMERICAN ABALONE
) FARMS, LLC, TO FORM INTERROGATORIES-
14 VS. ) GENERAL, SET ONE, FROM PLAINTIFF TOM
) EBERT
15 AMERICAN ABALONE FARMS, LLC, a )
California Limited Liability Company, OCEAN )
16 QUEEN USA, INC., a California Corporation, )
17 JAMES HO, an individual, and DOES 1 To 50, )
inclusive, )
18 )
Defendants. )
19 ________________________________________ )
)
20 AMERICAN ABALONE FARMS, LLC; and )
OCEAN QUEEN USA, INC.; )
21
)
22 Cross-Complainants, )
)
23 VS. )
)
24 THOMAS EBERT, and DOES 1 through 10, and )
each of them, )
25 )
26
Cross-Defendants. )
)
27
28
Response by AAF, LLC to Form-Rog. General 1 Page 1
1 PROPOUNDING PARTY: Plaintiff and Cross-Defendant TOM EBERT
2 RESPONDING PARTY: Defendant and Cross-Complainant AMERICAN ABALONE FARMS, LLC
3 SET NO. ONE
4 Pursuant to California Code of Civil Procedure Section 2030.210, Defendant & Cross-
5 Complainant AMERICAN ABALONE FARMS, LLC (hereinafter “Cross-Complainant"), hereby
6 responds to Plaintiff & Cross-Defendant TOM EBERT’s (hereinafter “Cross-Defendant") first set of
7 Form Interrogatories - General, as follows:
8 RESPONSES TO FORM INTERROGATORIES
9 FORM INTERROGATORY NO. 1.1
State the name, ADDRESS, telephone number and relationship to you of each PERSON who prepared or
10 assisted in the preparation of the responses to these interrogatories.
RESPONSE TO NO. 1.1
11
Paul L. Gumina, Attorney
12 The Law Offices of Paul L. Gumina, P.C.
560 W. Main St., Suite 205
13 Alhambra, CA 91801
Telephone: (866) 894-8863
14
FORM INTERROGATORY NO. 2.1
15 State:
(a) your name:
16
(b) every name you have used in the past: and
17 (c) the dates you used each name.
RESPONSE TO NO. 2.1
18 a) Chihyang Ho (since birth)
b) James Ho, Chihyang Ho
19 c) James Ho (used for more than approximately 35 years)
20
FORM INTERROGATORY NO. 3.1
21 Are you a corporation? If so, state:
(a) the name stated in the current articles of incorporation;
22 (b) all other names used by the corporation during the past 10 years and the dates each was used:
(c) the date and place of incorporation;
23 (d) the ADDRESS of the principal place of business; and
(e) whether you are qualified to do business in California.
24 RESPONSE TO NO. 3.1
No
25
26 FORM INTERROGATORY NO. 3.2
Are you a partnership? If so, state:
27 (a) the current partnership name;
(b) all other names used by the partnership during the past 10 years and the dates each was used;
28 (c) whether you are a limited partnership and, if so, under the laws of what jurisdiction:
Response by AAF, LLC to Form-Rog. General Page 2
1 (d) the name and ADDRESS of each general partner; and
(e) the ADDRESS of the principal place of business.
2 RESPONSE TO NO. 3.2
No
3
4 FORM INTERROGATORY NO. 3.3
Are you a limited liability company? If so, state:
5 (a) the name stated in the current articles of organization;
(b) all other names used by the company during the past 10 years and the date each was used;
6 (c) the date and place of filing of the articles of organization;
(d) the ADDRESS of the principal place of business: and
7 (e) whether you are qualified to do business in California.
8 RESPONSE TO NO. 3.3
Yes
9 a) American Abalone Farms, LLC
b) To our knowledge, no other names have been used by the company.
10 c) June 9, 2009, filed in the State of California
d) 245 Davenport Landing Road, Davenport, CA 95017
11 e) Yes
12
FORM INTERROGATORY NO. 3.4
13 Are you a joint venture? If so, state:
(a) the current joint venture name;
14 (b) all other names used by the joint venture during the past 10 years and the dates each was used:
(c) the name and ADDRESS of each joint venture; and
15 (d) the ADDRESS of the principal place of business.
RESPONSE TO NO. 3.4
16 No
17
FORM INTERROGATORY NO. 3.5
18 Are you an unincorporated association? If so, state:
(a) the current unincorporated association name:
19 (b) all other names used by the unincorporated association
during the past 10 years and the dates each was used; and
20 (c) the ADDRESS of the principal place of business.
RESPONSE TO NO. 3.5
21
No
22
FORM INTERROGATORY NO. 3.6
23 Have you done business under a fictitious name during the past 10 years? If so, for each fictitious name
state:
24 (a) the name:
(b) the dates each was used;
25 (c) the state and county of each fictitious name filing; and
26
(d) the ADDRESS of the principal place of business
RESPONSE TO NO. 3.6
27 Not to our knowledge
28
Response by AAF, LLC to Form-Rog. General Page 3
1 FORM INTERROGATORY NO. 3.7
Within the past five years has any public entity registered or licensed your business? If so, for each
2 license or registration:
(a) identify the license or registration;
3
(b) state the name of the public entity; and
4 (c) state the dates of issuance and expiration.
RESPONSE TO NO. 3.7
5 Unknown at this time.
6 FORM INTERROGATORY NO. 4.1
At the time of the INCIDENT, was there in effect any policy of insurance through which you were or
7 might be insured in any manner (for example, primary, pro-rata, or excess liability coverage or medical
8 expense coverage) for the damages, claims, or actions that have arisen out of the INCIDENT? If so, for
each policy state:
9 (a) the kind of coverage;
(b) the name and ADDRESS of the insurance company;
10 (c) the name, ADDRESS, and telephone number of each named insured;
(d) the policy number:
11 (e) the limits of coverage for each type of coverage contained in the policy:
(f) whether any reservation of rights or controversy or coverage dispute exists between you and the
12
insurance company; and
13 (g) the name, ADDRESS, and telephone number of the custodian of the policy.
RESPONSE TO NO. 4.1
14 No
15 FORM INTERROGATORY NO. 4.2
Are you self-insured under any statute for the damages, claims, or actions that have arisen out of the
16 INCIDENT? If so, specify the statute.
17 RESPONSE TO NO. 4.2
No
18
FORM INTERROGATORY NO. 9.1
19 Are there any other damages that you attribute to the INCIDENT? If so, for each item of damage state:
(a) the nature;
20 (b) the date it occurred;
(c) the amount; and
21
(d) the name, ADDRESS, and telephone number of each PERSON to whom an obligation was incurred.
22 RESPONSE TO NO. 9.1
23 FIRST CAUSE OF ACTION
Breach of Written Contract
24 On or about July 31, 2019, Plaintiff Ebert breached the NDA by misappropriating Cross-
Complainant American Abalone Farms, LLC’s (“AAF”) Confidential Information and using that
25 information for his personal purposes, and in his subsequent employment with Four Star Seafood, Inc..
26
As a direct and proximate result of Cross-Defendant’s breach of the NDA, Cross-Complainants
have suffered injury and damages, in an amount in excess of this Court’s jurisdictional limit, according to
27 proof at trial.
Cross-Complainants pray that this Court grant temporary, preliminary and permanent injunctive
28 relief as provided under the NDA to prohibit Cross-Defendant from using Cross-Complainant AAF’s
Confidential Information; and for Cross-Defendant to return all Confidential Information to Cross-
Response by AAF, LLC to Form-Rog. General Page 4
1 Complainant AAF, or destroy it.
SECOND CAUSE OF ACTION
2 Breach of Verbal Contract
On or about July 28, 2018, to on or about July 31, 2019, Cross-Defendant Ebert breached his
3
verbal employment agreement with Cross-Complainant AAF, which was made for the benefit of Cross-
4 Complainant Ocean Queen, USA, Inc. as follows: by failing to carry out his job duties as General
Manager competently; failing to report financial information; concealing and taking away from from
5 Cross-Defendants the books and records of Cross-Defendant AAF; misrepresenting Cross-Defendant
AAF’s financial condition in order to solicit and obtain bridge loans from Cross-Complainant Ocean
6 Queen, which were made for the benefit of Cross-Defendant AAF; misappropriating Cross-Defendant
AAF’s Confidential Information; and misappropriating for himself the funds of Cross-Complaint AAF
7 that had been loaned to it by Cross-Complainant Ocean Queen.
8 As a direct and proximate result of Cross-Defendant’s breach of the verbal employment
agreement, Cross-Complainants have suffered injury and damages, in an amount in excess of this Court’s
9 jurisdictional limit, according to proof at trial.
10 THIRD CAUSE OF ACTION
Breach of Fiduciary Duty
11 On or about July 28, 2018 to on or about July 31, 2019, Cross-Defendant Ebert breached his
fiduciary duties that he owed to the Cross-Complainants as follows: by failing to carry out his job duties
12
as General Manager competently; failing to report financial information; concealing and taking away
13 from from Cross-Defendants the books and records of Cross-Defendant AAF; misrepresenting Cross-
Defendant AAF’s financial condition in order to solicit and obtain bridge loans from Cross-Complainant
14 Ocean Queen, which were made for the benefit of Cross-Defendant AAF; misappropriating Cross-
Defendant AAF’s Confidential Information; and misappropriating for himself the funds of Cross-
15 Complaint AAF that had been loaned to it by Cross-Complainant Ocean Queen.
As a direct and proximate result of Cross-Defendant’s breach of his fiduciary duties that he
16 owed to the Cross-Complainants, Cross-Complainants have suffered injury and damages, in an amount in
17 excess of this Court’s jurisdictional limit, according to proof at trial.
In doing the acts and causing the omissions set forth hereinabove, Cross-Defendant Ebert acted
18 with fraud, oppression and malice toward the Cross-Defendants, and therefore, Cross-Defendants are
entitled to recover from him exemplary and punitive damages in an amount subject to proof at trial.
19
FOURTH CAUSE OF ACTION
20 Conversion
On or about July 28, 2018 to on or about July 31, 2019, Cross-Defendant Ebert converted and took
21
away from Cross-Defendant AAF the following business personal property it owned and had rightful
22 possession of: Cross-Complainant AAF’s books and financial records, including its LLC formation and
organizational documents; bookkeeping and accounting records in paper and electronic format; its
23 monthly bank statements, checking registers, and copies of cancelled checks; its accounts payable and
receivable reports; and profit and loss statements. Cross-Complainants AAF and Ocean Queen are further
24 informed and believe, and therefore allege, that Cross-Defendant Ebert also copied and removed from
Cross-Defendant AAF its confidential information, including confidential information about its abalone
25 farming methods and techniques, as well as its customer and vendor lists. Cross-Complainants are
26
informed and believe, and thereon allege, that Cross-Defendant Ebert has used, and is using, the
Confidential Information of Cross-Complainant AAF for his own, personal use, and for his use as an
27 employee of Four Star Seafood, Inc., located in San Francisco, California.
As a direct and proximate result of Cross-Defendant’s conversion of the business personal
28 property of Cross-Complainant AAF, Cross-Complainants have suffered injury and damages, in an
amount in excess of this Court’s jurisdictional limit, according to proof at trial.
Response by AAF, LLC to Form-Rog. General Page 5
1 In doing the acts and causing the omissions set forth hereinabove, Cross-Defendant Ebert acted
with fraud, oppression and malice toward the Cross-Defendants, and therefore, Cross-Defendants are
2 entitled to recover from him exemplary and punitive damages in an amount subject to proof at trial.
3
FIFTH CAUSE OF ACTION
4 Misappropriation
On or about July 28, 2018 to on or about July 31, 2019, Cross-Complainants are informed and
5 believe, and thereon allege, that Cross-Defendant Ebert misappropriated from Cross-Complainant AAF its
funds, in amounts and on dates that are as yet unknown to Cross-Complainants, but which are believed to
6 be within the jurisdictional limit of this Court, subject to proof at trial.
As a direct and proximate result of Cross-Defendant’s misappropriation of funds belonging to
7 Cross-Complainant AAF, Cross-Complainants have suffered injury and damages, in an amount in excess
8 of this Court’s jurisdictional limit, according to proof at trial.
In doing the acts and causing the omissions set forth hereinabove, Cross-Defendant Ebert acted
9 with fraud, oppression and malice toward the Cross-Defendants, and therefore, Cross-Defendants are
entitled to recover from him exemplary and punitive damages in an amount subject to proof at trial.
10
SEVENTH CAUSE OF ACTION
11 Unfair Business Practices Per Business & Professions Code § 17200, et seq.
On or about July 28, 2018 to on or about July 31, 2019, as a result of Cross-Defendants acts,
12
omissions, and concealments described in the causes of action, above, which were unlawful, fraudulent
13 and unfair business practices, this Court should order Cross-Defendant Ebert to provide restitution to
Cross-Defendants as follows: for the funds he misappropriated; for the value of the business personal
14 property that he converted for his own personal use; for profits that he obtained and paid to himself while
he was the General Manager of Cross-Defendant AAF; and for the profits plus any compensation he
15 received from employment that he was able to obtain as a direct and proximate result of using Cross-
Complainant AAF’s Confidential Information on his own behalf, and on behalf of his subsequent
16 employer, Four Star Seafood, Inc., in amounts that are as yet unknown, but subject to proof at trial.
17
FORM INTERROGATORY NO. 12.1
18 State the name, ADDRESS, and telephone number of each individual:
(a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT;
19 (b) who made any statement at the scene of the INCIDENT;
(c) who heard any statements made about the INCIDENT by any individual at the scene: and
20 (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT
(except for expert witnesses covered by Code of Civil Procedure section 2034).
21
RESPONSE TO NO. 12.1
22 - This responding Defendant, James Ho, who can be contacted through his attorney.
- Robert Arthur, Attorney for James Ho, at Arthur & Associates, 1641 N. 1st St. Suite 250, San Jose, CA,
23 95112, Tel: (408)437-6986.
- David Weng aka Tsuwei Weng, associate and partner to James Ho in AAF, 388 9th Street, Ste 101,
24 Oakland, CA, Tel: (510) 367-6688.
- The Plaintiff, Tom Ebert, who can be contacted through his attorney.
25 - Ken Elving and John Myrtakis of JAMKE, a California general partnership. Contact information is
26
unknown at this time.
27 FORM INTERROGATORY NO. 12.2
Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the
28 INCIDENT? If so, for each individual state:
(a) the name, ADDRESS, and telephone number of the individual interviewed;
Response by AAF, LLC to Form-Rog. General Page 6
1 (b) the date of the interview: and
(c) the name, ADDRESS, and telephone number of the PERSON who conducted the interview.
2 RESPONSE TO NO. 12.2
Objection, the request calls for confidential attorney client communication and confidential attorney work
3
product. Without waving the aforestated objection, Defendant responds: no non-privileged interviews
4 have taken place.
5 FORM INTERROGATORY NO. 12.3
Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from
6 any individual concerning the INCIDENT? If so, for each statement state:
(a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained;
7 (b) the name. ADDRESS, and telephone number of the individual who obtained the statement:
8 (c) the date the statement was obtained; and
(d) the name, ADDRESS, and telephone number of each PERSON who has the original statement or a
9 copy.
RESPONSE TO NO. 12.3
10 Objection, the request calls for confidential attorney client communication and confidential attorney work
product. Without waving the aforestated objection, Defendant responds no non-privileged written records
11 have been taken.
12
FORM INTERROGATORY NO. 12.4
13 Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any photographs, films. or videotapes
depicting any place, object, or individual concerning the INCIDENT or plaintiffs injuries? If so. state:
14 (a) the number of photographs or feet of film or videotape:
(b) the places, objects, or persons photographed, filmed, or videotaped;
15 (c) the date the photographs, films, or videotapes were taken:
(d) the name. ADDRESS, and telephone number of the individual taking the photographs, films, or
16 videotapes: and
17 (e) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of the
photographs. films, or videotapes.
18 RESPONSE TO NO. 12.4
None
19
FORM INTERROGATORY NO. 12.5
20 Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any diagram, reproduction, or model of
any place or thing (except for items developed by expert witnesses covered by Code of Civil Procedure
21
sections 2034.210-2034.310) concerning the INCIDENT? If so, for each item state:
22 (a) the type (i.e .. diagram, reproduction. or model);
(b) the subject matter; and
23 (c) the name, ADDRESS, and telephone number of each PERSON who has it.
RESPONSE TO NO. 12.5
24 None
25 FORM INTERROGATORY NO. 12.6
26
Was a report made by any PERSON concerning the INCIDENT? If so, state:
(a) the name, title, identification number, and employer of the PERSON who made the report:
27 (b) the date and type of report made:
Preview
1 Paul L. Gumina (SBN: 160110) Law Offices of Paul L. Gumina, P.C. 2 560 W. Main St., #205 Alhambra, CA 91801 3 Tel: 866-894-8863 4 Fax: 866-894-8867 paul@westcoastbizlaw.com 5 Attorney for Defendants and Cross-Complainants 6 AMERICAN ABALONE FARMS, LLC, OCEAN QUEEN USA, INC., and Defendant JAMES HO 7 8 9 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF SANTA CRUZ 12 TOM EBERT, an individual; ) Case No.: 19CV03672 13 ) Plaintiff, ) DECLARATION OF PAUL L. GUMINA IN 14 ) OPPOSITION TO PLAINTIFF’S MOTION VS. ) FOR ORDER COMPELLING DEFENDANT 15 ) AMERICAN ABALONE FARMS, LLC TO AMERICAN ABALONE FARMS, LLC, a ) PRODUCE A PERSON MOST 16 California Limited Liability Company, OCEAN ) KNOWLEDGEABLE FOR DEPOSITION, TO 17 QUEEN USA, INC., a California Corporation, ) PROVIDE VERIFIED DISCOVERY JAMES HO, an individual, HENSON XIE aka ) RESPONSES, FOR AN ORDER 18 SHOU HAI XIE, an individual, and DOES 1 To ) COMPELLING JAMES HO TO PROVIDE AN 50, inclusive, ) ANSWER TO A DEPOSITION QUESTION, 19 ) AND FOR SANCTIONS Defendants. ) 20 ) DATE: MARCH 16, 2023 ) TIME: 8:30 P.M. 21 ) DEPT: 5 22 _________________________________________ ) AND RELATED CROSS-COMPLAINT. ) TRIAL: April 17, 2023 23 ) 24 I, Paul L. Gumina, am an attorney licensed to practice law in the State of California, and I am an 25 attorney for Defendants AMERICAN ABALONE FARMS, LLC (“AAF”), OCEAN QUEEN USA, INC. 26 ("Ocean Queen"), and JAMES HO (collectively, “Defendants”) in this action, and for Cross Defendants 27 AAF and Ocean Queen. If called as a witness in this action, I would and could testify from my own 28 personal knowledge, as follows: Declaration of Paul L. Gumina in Opposition to Plaintiff’s Motion to Compel Page 1 1 1. Attached hereto as Exhibit A are my meet and confer communications with Plaintiff’s 2 counsel, Sasha Shahabi, from January 31, 2023, to March 1, 2023, filed as Exhibit A to Defendants’ March 7, 2023, Opposition to Plaintiff’s Ex Parte Application. 3 2. Attached hereto as Exhibit B is a true and correct copy of Defendant American Abalone 4 Farms, LLC’s Verified Responses to Set One of Plaintiff’s Requests for Production of Documents, dated 5 May 20, 2020. 6 3. Attached hereto as Exhibit C is a true and correct copy of Defendant American Abalone 7 Farms, LLC’s Verified Responses to Set One of Plaintiff’s Form Interrogatories—General, dated April 8 24, 2020. 4. Attached hereto as Exhibit D is a true and correct copy of Defendant American Abalone 9 Farms, LLC’s Verified Responses to Set One of Plaintiff’s Form Interrogatories—Employment, dated 10 April 24, 2020. 11 I declare under penalty of perjury under the laws of the State of California that the foregoing is 12 true and correct. Executed on March 13, 2023, in Alhambra, California. 13 14 15 Paul L. Gumina Attorney for Defendants and Cross-Complainants 16 AMERICAN ABALONE FARMS, LLC, OCEAN QUEEN USA, INC., and Defendant JAMES HO 17 18 19 20 21 22 23 24 25 26 27 28 Declaration of Paul L. Gumina in Opposition to Plaintiff’s Motion to Compel Page 2 Exhibit A Paul Gumina From: Sasha Shahabi Sent: Wednesday, March 1, 2023 10:32 AM To: Paul Gumina Cc: Gabrielle Korte; Emily Humy Subject: Re: Ebert v. American Abalone Farms (Discussing possible stipulation to continue the trial) Mr. Gumina, Just to be clear, we are not requesting a trial continuance, rather, we're accommodating your client's request to continue the trial to June. Because our attorneys are unavailable in June due to another trial, we are suggesting a continuance to July. We will wait to hear from you regarding Mr. Ho's availability in July. With regard to American Abalone Farm's PMK, here are the topics on which the PMK should be knowledgeable. 1. The identity of current member(s) and manager(s) of American Abalone Farms LLC. 2. The identity of members and managers of American Abalone Farms LLC between July 2018 and May 2019. 3. American Abalone Farms LLC’s employment of or work-contract with Thomas Ebert between July 2018 and August 2019. 4. The employment or work, including consulting, performed by Thomas Ebert for American Abalone Farms LLC between July 2018 and August 2019. 5. Any agreements with Thomas Ebert between July 2018 and August 2019. 6. The transfer of any ownership interest in American Abalone Farms LLC by James Ho within the past three years. 7. The transfer of any ownership interest by Ocean Queen USA Inc. within the past three years. 8. The management of American Abalone Farms LLC from July 2018 through present. 9. American Abalone Farms LLC’s financials and accounting from July 2018 through present. 10. The transfer of any membership interest in American Abalone Farms LLC within the past three years. Based on Mr. Ho's sworn testimony, it's clear that neither Mr. Ho nor Ocean Queen USA's bookkeeper have the requisite knowledge to be designated American Abalone Farm's PMK. Mr. Ho testified that he and Ocean Queen USA sold American Abalone Farms in early 2019 and have no knowledge or information about the LLC since that time. Defendant American Abalone Farms LLC is refusing to designate the proper person or persons for its deposition. Regards, On Tue, Feb 28, 2023 at 3:52 PM Paul Gumina wrote: Confidential Attorney Client Communication Dear Mr. Shahabi: In principle, I'll agree to prepare a stipulation to continue the trial date until at least July 2023, but I'll check with my client, Mr. Ho, first to make sure what dates this spring and summer he will be available, and when he's not available. I understand for now that he plans on returning to the US in about mid- May after spending about two months in Taiwan caring for his ailing mom, but let me get confirmation and I'll 1 EXH A. PG 1 Paul Gumina From: Paul Gumina Sent: Tuesday, February 28, 2023 3:52 PM To: Sasha Shahabi Cc: Gabrielle Korte; Emily Humy Subject: RE: Ebert v. American Abalone Farms (Discussing possible stipulation to continue the trial) Confidential Attorney Client Communication Dear Mr. Shahabi: In principle, I'll agree to prepare a stipulation to continue the trial date until at least July 2023, but I'll check with my client, Mr. Ho, first to make sure what dates this spring and summer he will be available, and when he's not available. I understand for now that he plans on returning to the US in about mid- May after spending about two months in Taiwan caring for his ailing mom, but let me get confirmation and I'll get back to you no later than tomorrow. We can also discuss continuing the discovery cut-off until a later date as part of the stipulation. Given that AAF's PMK deposition has not been concluded, and given that Mr. Ho was not completely knowledgeable about accounting matters, the only other witness who has knowledge of AAF's financials until the aborted sale of AAF to Ocean Xie is Tracy Cui, Ocean Queen's bookkeeper. I'm happy to make her available on March 9, 2023, or on another mutually agreeable date, provided the depo is remote, and that Ms. Cui has a Mandarin language translator. Also, let me know if you intend to continue your examination of Mr. Ho. I'll keep you posted when I hear anything. Sincerely, Paul L. Gumina Cell: 408-313-3410 West Coast Business Law The Law Offices Of Paul L. Gumina, P.C. Main Office 560 W. Main St., Suite 205 Alhambra, CA 91801 Tel. (Toll Free): 866-894-8863 Fax: 866-894-8867 E-Mail: Paul@westcoastbizlaw.com www.westcoastbizlaw.com Please address correspondence to our Alhambra Office San Jose Branch Office 1641 N. First St., Suite 250 San Jose, CA 95112 IRS Circular 230 disclosure: To ensure compliance with requirements imposed 1 EXH A. PG 2 Paul Gumina From: Sasha Shahabi Sent: Tuesday, February 28, 2023 2:28 PM To: Paul Gumina Cc: Gabrielle Korte; Emily Humy Subject: Ebert v. American Abalone Farms Mr. Gumina, In light of Mr. Ho's unavailability as a result of visiting his ill mother in Taiwan, we are willing to stipulate to a short trial continuance. Would July work for you and your clients? Please let me know. Thank You. -- Sasha Shahabi BRERETON, MOHAMED, & TERRAZAS, LLP 1362 Pacific Avenue, Suite 221 Santa Cruz, California 95060 Tel: (831)429-6391 Fax: (831)459-8298 NOTICE: This email message and/or its attachments may contain information that is confidential or restricted. It is intended only for the individuals named as recipients in the message. This entire message constitutes a privileged and confidential communication pursuant to California Evidence Code Section 952 and California Code of Civil Procedure Section 2018.010 et seq. If you are NOT an authorized recipient, you are prohibited from using, delivering, distributing, printing, copying, or disclosing the message or content to others and must delete the message from your computer. If you have received this message in error, please notify the sender by return email. This email has been scanned for spam and viruses. Click here to report this email as spam. 1 EXH A. PG 3 Paul Gumina From: Sasha Shahabi Sent: Monday, February 27, 2023 4:54 PM To: Paul Gumina Subject: Re: Ebert v. American Abalone Farms -- MEET & CONFER Deposition of PMK for AAF Mr. Gumina, It's not my place to tell your client who it should designate and produce as its person most knowledgeable. You have our deposition notice with the list of topics. Your client James Ho testified under oath that he and Ocean Queen USA have had nothing to do with American Abalone Farms since early 2019 and that all of the discovery responses he signed in 2020 on behalf of American Abalone Farms were false. Please review the notice of deposition directed to American Abalone Farms and have your client designate the person most knowledgeable by the end of the day tomorrow. Additionally, please immediately provide proper verifications for American Abalone Farms' discovery responses, as those signed by your client James Ho were invalid. Thank You, On Mon, Feb 27, 2023 at 3:39 PM Paul Gumina wrote: Dear Mr. Shahabi: I have just finished speaking with Mr. Ho. He indicates he is available to complete his portion of the deposition on March 1, if that is how you wish to proceed. Please forward to my office the link for a remote appearance on March 1 as neither I nor Mr. Ho will be able to appear in person. To follow up on my previous email, the only other individual with knowledge of AAF is Ocean Queen’s accountant Tracy Cui. Ms. Cui is available for a remote depo on March 8. If you are going to depose Ms. Cui on March 8, as I previously mentioned, we would waive the discovery cut-off of March 7 to allow for this deposition. Please confirm you will have a Mandarin language translator available for Mr. Ho on March 1, and one available on for March 8 at Ms. Cui’s deposition. Lastly, I was just advised by Mr. Ho that his mother in Taiwan has been very ill, and it appears that he will be in Taiwan from mid-March to approximately mid-May to care for her. We may wish to stipulate a trial continuance until June of this year. Let me know your thoughts. 1 EXH A. PG 4 Paul Gumina From: Paul Gumina Sent: Monday, February 27, 2023 3:39 PM To: Sasha Shahabi Subject: RE: Ebert v. American Abalone Farms -- MEET & CONFER Deposition of PMK for AAF Importance: High Dear Mr. Shahabi: I have just finished speaking with Mr. Ho. He indicates he is available to complete his portion of the deposition on March 1, if that is how you wish to proceed. Please forward to my office the link for a remote appearance on March 1 as neither I nor Mr. Ho will be able to appear in person. To follow up on my previous email, the only other individual with knowledge of AAF is Ocean Queen’s accountant Tracy Cui. Ms. Cui is available for a remote depo on March 8. If you are going to depose Ms. Cui on March 8, as I previously mentioned, we would waive the discovery cut-off of March 7 to allow for this deposition. Please confirm you will have a Mandarin language translator available for Mr. Ho on March 1, and one available on for March 8 at Ms. Cui’s deposition. Lastly, I was just advised by Mr. Ho that his mother in Taiwan has been very ill, and it appears that he will be in Taiwan from mid-March to approximately mid-May to care for her. We may wish to stipulate a trial continuance until June of this year. Let me know your thoughts. Sincerely, Paul L. Gumina Cell: 408-313-3410 West Coast Business Law The Law Offices Of Paul L. Gumina, P.C. Main Office 560 W. Main St., Suite 205 Alhambra, CA 91801 Tel. (Toll Free): 866-894-8863 Fax: 866-894-8867 E-Mail: Paul@westcoastbizlaw.com www.westcoastbizlaw.com Please address correspondence to our Alhambra Office San Jose Branch Office 1641 N. First St., Suite 250 San Jose, CA 95112 IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly 1 EXH A. PG 5 Paul Gumina From: Paul Gumina Sent: Monday, February 27, 2023 3:19 PM To: Sasha Shahabi Subject: RE: Ebert v. American Abalone Farms -- MEET & CONFER Deposition of PMK for AAF Dear Mr. Shahabi: Unfortunately, I am not available for a deposition on March 1. Are you amenable to continue taking Mr. Ho’s deposition? Otherwise, I would have his bookkeeper, Tracy Cui, answer questions about any financial statements or AAF bank records. However, please note that prior to the aborted sale of AAF to Ocean Xie, Ms. Cui relied entirely on bank statements and accounting records created and maintained by Mr. Ebert. She simply compiled them for the CPA that did AAF’s taxes. I am obtaining Mr. Ho and Ms. Cui’s availability after March 1. If they are not available before the discovery cut-off on March 7, we will still provide you access to the witnesses. Please let me know how you wish to proceed. Sincerely, Paul L. Gumina Cell: 408-313-3410 West Coast Business Law The Law Offices Of Paul L. Gumina, P.C. Main Office 560 W. Main St., Suite 205 Alhambra, CA 91801 Tel. (Toll Free): 866-894-8863 Fax: 866-894-8867 E-Mail: Paul@westcoastbizlaw.com www.westcoastbizlaw.com Please address correspondence to our Alhambra Office San Jose Branch Office 1641 N. First St., Suite 250 San Jose, CA 95112 IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. 1 EXH A. PG 6 Paul Gumina From: Paul Gumina Sent: Tuesday, February 28, 2023 3:52 PM To: Sasha Shahabi Cc: Gabrielle Korte; Emily Humy Subject: RE: Ebert v. American Abalone Farms (Discussing possible stipulation to continue the trial) Confidential Attorney Client Communication Dear Mr. Shahabi: In principle, I'll agree to prepare a stipulation to continue the trial date until at least July 2023, but I'll check with my client, Mr. Ho, first to make sure what dates this spring and summer he will be available, and when he's not available. I understand for now that he plans on returning to the US in about mid- May after spending about two months in Taiwan caring for his ailing mom, but let me get confirmation and I'll get back to you no later than tomorrow. We can also discuss continuing the discovery cut-off until a later date as part of the stipulation. Given that AAF's PMK deposition has not been concluded, and given that Mr. Ho was not completely knowledgeable about accounting matters, the only other witness who has knowledge of AAF's financials until the aborted sale of AAF to Ocean Xie is Tracy Cui, Ocean Queen's bookkeeper. I'm happy to make her available on March 9, 2023, or on another mutually agreeable date, provided the depo is remote, and that Ms. Cui has a Mandarin language translator. Also, let me know if you intend to continue your examination of Mr. Ho. I'll keep you posted when I hear anything. Sincerely, Paul L. Gumina Cell: 408-313-3410 W e s t C o as t B u s in e s s L aw Th e L aw O ffic e s O f P au l L . G u m in a, P .C . Main Office 560 W . Main St., Suite 205 Alhambra, CA 91801 Tel. (Toll Free): 866-894-8863 Fax: 866-894-8867 E-Mail: Paul@ westcoastbizlaw.com www.westcoastbizlaw.com San Jose Branch Office 1641 N. First St., Suite 250 San Jose, CA 95112 IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice 1 EXH A. PG 7 contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. From: Sasha Shahabi Sent: Tuesday, February 28, 2023 2:28 PM To: Paul Gumina Cc: Gabrielle Korte ; Emily Humy Subject: Ebert v. American Abalone Farms Mr. Gumina, In light of Mr. Ho's unavailability as a result of visiting his ill mother in Taiwan, we are willing to stipulate to a short trial continuance. Would July work for you and your clients? Please let me know. Thank You. -- Sasha Shahabi BRERETON, MOHAMED, & TERRAZAS, LLP 1362 Pacific Avenue, Suite 221 Santa Cruz, California 95060 Tel: (831)429-6391 Fax: (831)459-8298 NOTICE: This email message and/or its attachments may contain information that is confidential or restricted. It is intended only for the individuals named as recipients in the message. This entire message constitutes a privileged and confidential communication pursuant to California Evidence Code Section 952 and California Code of Civil Procedure Section 2018.010 et seq. If you are NOT an authorized recipient, you are prohibited from using, delivering, distributing, printing, copying, or disclosing the message or content to others and must delete the message from your computer. If you have received this message in error, please notify the sender by return email. This email has been scanned for spam and viruses. Click here to report this email as spam. 2 EXH A. PG 8 Paul Gumina From: Sasha Shahabi Sent: Tuesday, February 28, 2023 2:28 PM To: Paul Gumina Cc: Gabrielle Korte; Emily Humy Subject: Ebert v. American Abalone Farms Mr. Gumina, In light of Mr. Ho's unavailability as a result of visiting his ill mother in Taiwan, we are willing to stipulate to a short trial continuance. Would July work for you and your clients? Please let me know. Thank You. -- Sasha Shahabi BRERETON, MOHAMED, & TERRAZAS, LLP 1362 Pacific Avenue, Suite 221 Santa Cruz, California 95060 Tel: (831)429-6391 Fax: (831)459-8298 NOTICE: This email message and/or its attachments may contain information that is confidential or restricted. It is intended only for the individuals named as recipients in the message. This entire message constitutes a privileged and confidential communication pursuant to California Evidence Code Section 952 and California Code of Civil Procedure Section 2018.010 et seq. If you are NOT an authorized recipient, you are prohibited from using, delivering, distributing, printing, copying, or disclosing the message or content to others and must delete the message from your computer. If you have received this message in error, please notify the sender by return email. This email has been scanned for spam and viruses. Click here to report this email as spam. 1 EXH A. PG 9 Paul Gumina From: Sasha Shahabi Sent: Monday, February 20, 2023 4:12 PM To: Paul Gumina Subject: Ebert v. American Abalone Farms -- MEET & CONFER Attachments: Third Amended NOD of American Abalone.pdf Mr. Gumina, This email is an attempt to meet and confer regarding the issue of your client, American Abalone Farms LLC's improper designation of their person most knowledgeable. As you are aware, your client designated Mr. Ho as their PMK in response to Plaintiff's notice of deposition of the person most knowledgeable for American Abalone Farms. In the notice of deposition, Plaintiff requested the designated PMK to be most knowledgeable about subject matters including but not limited to the identity of current members and managers, financials and accounting, transfer of membership interest, and management. A copy of the deposition subpoena with the subjects listed is attached. On January 17, 2023, the continued deposition of Mr. Ho took place. During the deposition, in response to a series of questions about his connection to American Abalone Farms, Mr. Ho stated that he did not have any sort of connection with American Abalone Farms even before he sold the company in May 2019. Notably, Mr. Ho stated that after 2019 when he transferred membership interest, he had “no ownership interest in American Abalone Farms,” he didn’t know the current members and managers of American Abalone Farms, he didn’t know the current ownership structure, and he doesn’t know of their financial records and accounting records. Also during the deposition, Mr. Ho confirmed that he had signed the verification page of Defendant American Abalone Farm’s responses to Plaintiff’s requests for production, which stated, “I, James Ho, am the chief executive officer of American Abalone Farms, LLC.” Mr. Ho confirmed that at the time he signed the verification, he had no role at American Abalone Farms, LLC. Mr. Ho also confirmed that he signed verifications for American Abalone Farms, LLC’s responses to Plaintiff’s form interrogatories. Per Code of Civil Procedure section 2025.230, if the notice of deposition or subpoena served on the entity describes the matters on which questions will be asked “with reasonable particularity,” the entity is under a duty to designate and produce the officers, directors, managing agents or employees “most qualified” to testify on its behalf. Based on Mr. Ho's responses during the deposition, it is clear that he was improperly designated as the PMK for American Abalone Farms. We request that you designate a proper PMK by EOD on Wednesday, February 22th, and produce them for a deposition on March 1st, 2023. Regards, -- Sasha Shahabi BRERETON, MOHAMED, & TERRAZAS, LLP 1362 Pacific Avenue, Suite 221 Santa Cruz, California 95060 Tel: (831)429-6391 Fax: (831)459-8298 1 EXH A. PG 10 Paul Gumina From: Sasha Shahabi Sent: Tuesday, January 31, 2023 4:53 PM To: Paul Gumina Subject: Ebert v. American Abalone Farms LLC et al - Meet & Confer Mr. Gumina, I'm writing to meet and confer with you regarding your January 17, 2023 objection and instruction to the deponent, James Ho, not to answer the question whether Mr. Ho is paying the attorney fees on behalf of American Abalone Farms LLC. "Payment of fees is incidental to the attorney-client relationship, and does not usually involve disclosure of confidential communications arising from the professional relationship." Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal 5th 282. The deposition questions did not ask for details of attorney client communications nor for any content of invoices that might reveal attorney client communications. The question is whether Mr. Ho is paying American Abalone Farms LLC's legal fees, if not, who is paying those fees. If more than one person is paying or has paid fees on behalf of AAF, who those persons are and what proportion of the fees have they paid. And whether Ocean Queen USA has paid or is paying legal fees on behalf of AAF. The questions do not seek privileged information and responses under oath must be provided. Please confirm no later than this Friday, February 3, 2023, that verified responses under oath will be provided to the above questions. Thank You, -- Sasha Shahabi BRERETON, MOHAMED, & TERRAZAS, LLP 1362 Pacific Avenue, Suite 221 Santa Cruz, California 95060 Tel: (831)429-6391 Fax: (831)459-8298 NOTICE: This email message and/or its attachments may contain information that is confidential or restricted. It is intended only for the individuals named as recipients in the message. This entire message constitutes a privileged and confidential communication pursuant to California Evidence Code Section 952 and California Code of Civil Procedure Section 2018.010 et seq. If you are NOT an authorized recipient, you are prohibited from using, delivering, distributing, printing, copying, or disclosing the message or content to others and must delete the message from your computer. If you have received this message in error, please notify the sender by return email. This email has been scanned for spam and viruses. Click here to report this email as spam. 1 EXH A. PG 11 Exhibit B Exhibit C 1 Paul L. Gumina (SBN 160110) Law Offices of Paul L. Gumina, P.C. 2 560 W. Main St., #205 Alhambra, CA 91801 3 Tel: 866-894-8863 4 Fax: 866-894-8867 Email: paul@westcoastbizlaw.com 5 Attorney for Defendants and Cross-Complainants 6 American Abalone Farms, LLC; Ocean Queen USA, Inc.,; and Defendant James Ho 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA CRUZ 10 UNLIMITED CIVIL JURISDICTION 11 TOM EBERT, an individual; ) Case No.: 19CV03672 12 ) 13 Plaintiff, ) RESPONSE BY AMERICAN ABALONE ) FARMS, LLC, TO FORM INTERROGATORIES- 14 VS. ) GENERAL, SET ONE, FROM PLAINTIFF TOM ) EBERT 15 AMERICAN ABALONE FARMS, LLC, a ) California Limited Liability Company, OCEAN ) 16 QUEEN USA, INC., a California Corporation, ) 17 JAMES HO, an individual, and DOES 1 To 50, ) inclusive, ) 18 ) Defendants. ) 19 ________________________________________ ) ) 20 AMERICAN ABALONE FARMS, LLC; and ) OCEAN QUEEN USA, INC.; ) 21 ) 22 Cross-Complainants, ) ) 23 VS. ) ) 24 THOMAS EBERT, and DOES 1 through 10, and ) each of them, ) 25 ) 26 Cross-Defendants. ) ) 27 28 Response by AAF, LLC to Form-Rog. General 1 Page 1 1 PROPOUNDING PARTY: Plaintiff and Cross-Defendant TOM EBERT 2 RESPONDING PARTY: Defendant and Cross-Complainant AMERICAN ABALONE FARMS, LLC 3 SET NO. ONE 4 Pursuant to California Code of Civil Procedure Section 2030.210, Defendant & Cross- 5 Complainant AMERICAN ABALONE FARMS, LLC (hereinafter “Cross-Complainant"), hereby 6 responds to Plaintiff & Cross-Defendant TOM EBERT’s (hereinafter “Cross-Defendant") first set of 7 Form Interrogatories - General, as follows: 8 RESPONSES TO FORM INTERROGATORIES 9 FORM INTERROGATORY NO. 1.1 State the name, ADDRESS, telephone number and relationship to you of each PERSON who prepared or 10 assisted in the preparation of the responses to these interrogatories. RESPONSE TO NO. 1.1 11 Paul L. Gumina, Attorney 12 The Law Offices of Paul L. Gumina, P.C. 560 W. Main St., Suite 205 13 Alhambra, CA 91801 Telephone: (866) 894-8863 14 FORM INTERROGATORY NO. 2.1 15 State: (a) your name: 16 (b) every name you have used in the past: and 17 (c) the dates you used each name. RESPONSE TO NO. 2.1 18 a) Chihyang Ho (since birth) b) James Ho, Chihyang Ho 19 c) James Ho (used for more than approximately 35 years) 20 FORM INTERROGATORY NO. 3.1 21 Are you a corporation? If so, state: (a) the name stated in the current articles of incorporation; 22 (b) all other names used by the corporation during the past 10 years and the dates each was used: (c) the date and place of incorporation; 23 (d) the ADDRESS of the principal place of business; and (e) whether you are qualified to do business in California. 24 RESPONSE TO NO. 3.1 No 25 26 FORM INTERROGATORY NO. 3.2 Are you a partnership? If so, state: 27 (a) the current partnership name; (b) all other names used by the partnership during the past 10 years and the dates each was used; 28 (c) whether you are a limited partnership and, if so, under the laws of what jurisdiction: Response by AAF, LLC to Form-Rog. General Page 2 1 (d) the name and ADDRESS of each general partner; and (e) the ADDRESS of the principal place of business. 2 RESPONSE TO NO. 3.2 No 3 4 FORM INTERROGATORY NO. 3.3 Are you a limited liability company? If so, state: 5 (a) the name stated in the current articles of organization; (b) all other names used by the company during the past 10 years and the date each was used; 6 (c) the date and place of filing of the articles of organization; (d) the ADDRESS of the principal place of business: and 7 (e) whether you are qualified to do business in California. 8 RESPONSE TO NO. 3.3 Yes 9 a) American Abalone Farms, LLC b) To our knowledge, no other names have been used by the company. 10 c) June 9, 2009, filed in the State of California d) 245 Davenport Landing Road, Davenport, CA 95017 11 e) Yes 12 FORM INTERROGATORY NO. 3.4 13 Are you a joint venture? If so, state: (a) the current joint venture name; 14 (b) all other names used by the joint venture during the past 10 years and the dates each was used: (c) the name and ADDRESS of each joint venture; and 15 (d) the ADDRESS of the principal place of business. RESPONSE TO NO. 3.4 16 No 17 FORM INTERROGATORY NO. 3.5 18 Are you an unincorporated association? If so, state: (a) the current unincorporated association name: 19 (b) all other names used by the unincorporated association during the past 10 years and the dates each was used; and 20 (c) the ADDRESS of the principal place of business. RESPONSE TO NO. 3.5 21 No 22 FORM INTERROGATORY NO. 3.6 23 Have you done business under a fictitious name during the past 10 years? If so, for each fictitious name state: 24 (a) the name: (b) the dates each was used; 25 (c) the state and county of each fictitious name filing; and 26 (d) the ADDRESS of the principal place of business RESPONSE TO NO. 3.6 27 Not to our knowledge 28 Response by AAF, LLC to Form-Rog. General Page 3 1 FORM INTERROGATORY NO. 3.7 Within the past five years has any public entity registered or licensed your business? If so, for each 2 license or registration: (a) identify the license or registration; 3 (b) state the name of the public entity; and 4 (c) state the dates of issuance and expiration. RESPONSE TO NO. 3.7 5 Unknown at this time. 6 FORM INTERROGATORY NO. 4.1 At the time of the INCIDENT, was there in effect any policy of insurance through which you were or 7 might be insured in any manner (for example, primary, pro-rata, or excess liability coverage or medical 8 expense coverage) for the damages, claims, or actions that have arisen out of the INCIDENT? If so, for each policy state: 9 (a) the kind of coverage; (b) the name and ADDRESS of the insurance company; 10 (c) the name, ADDRESS, and telephone number of each named insured; (d) the policy number: 11 (e) the limits of coverage for each type of coverage contained in the policy: (f) whether any reservation of rights or controversy or coverage dispute exists between you and the 12 insurance company; and 13 (g) the name, ADDRESS, and telephone number of the custodian of the policy. RESPONSE TO NO. 4.1 14 No 15 FORM INTERROGATORY NO. 4.2 Are you self-insured under any statute for the damages, claims, or actions that have arisen out of the 16 INCIDENT? If so, specify the statute. 17 RESPONSE TO NO. 4.2 No 18 FORM INTERROGATORY NO. 9.1 19 Are there any other damages that you attribute to the INCIDENT? If so, for each item of damage state: (a) the nature; 20 (b) the date it occurred; (c) the amount; and 21 (d) the name, ADDRESS, and telephone number of each PERSON to whom an obligation was incurred. 22 RESPONSE TO NO. 9.1 23 FIRST CAUSE OF ACTION Breach of Written Contract 24 On or about July 31, 2019, Plaintiff Ebert breached the NDA by misappropriating Cross- Complainant American Abalone Farms, LLC’s (“AAF”) Confidential Information and using that 25 information for his personal purposes, and in his subsequent employment with Four Star Seafood, Inc.. 26 As a direct and proximate result of Cross-Defendant’s breach of the NDA, Cross-Complainants have suffered injury and damages, in an amount in excess of this Court’s jurisdictional limit, according to 27 proof at trial. Cross-Complainants pray that this Court grant temporary, preliminary and permanent injunctive 28 relief as provided under the NDA to prohibit Cross-Defendant from using Cross-Complainant AAF’s Confidential Information; and for Cross-Defendant to return all Confidential Information to Cross- Response by AAF, LLC to Form-Rog. General Page 4 1 Complainant AAF, or destroy it. SECOND CAUSE OF ACTION 2 Breach of Verbal Contract On or about July 28, 2018, to on or about July 31, 2019, Cross-Defendant Ebert breached his 3 verbal employment agreement with Cross-Complainant AAF, which was made for the benefit of Cross- 4 Complainant Ocean Queen, USA, Inc. as follows: by failing to carry out his job duties as General Manager competently; failing to report financial information; concealing and taking away from from 5 Cross-Defendants the books and records of Cross-Defendant AAF; misrepresenting Cross-Defendant AAF’s financial condition in order to solicit and obtain bridge loans from Cross-Complainant Ocean 6 Queen, which were made for the benefit of Cross-Defendant AAF; misappropriating Cross-Defendant AAF’s Confidential Information; and misappropriating for himself the funds of Cross-Complaint AAF 7 that had been loaned to it by Cross-Complainant Ocean Queen. 8 As a direct and proximate result of Cross-Defendant’s breach of the verbal employment agreement, Cross-Complainants have suffered injury and damages, in an amount in excess of this Court’s 9 jurisdictional limit, according to proof at trial. 10 THIRD CAUSE OF ACTION Breach of Fiduciary Duty 11 On or about July 28, 2018 to on or about July 31, 2019, Cross-Defendant Ebert breached his fiduciary duties that he owed to the Cross-Complainants as follows: by failing to carry out his job duties 12 as General Manager competently; failing to report financial information; concealing and taking away 13 from from Cross-Defendants the books and records of Cross-Defendant AAF; misrepresenting Cross- Defendant AAF’s financial condition in order to solicit and obtain bridge loans from Cross-Complainant 14 Ocean Queen, which were made for the benefit of Cross-Defendant AAF; misappropriating Cross- Defendant AAF’s Confidential Information; and misappropriating for himself the funds of Cross- 15 Complaint AAF that had been loaned to it by Cross-Complainant Ocean Queen. As a direct and proximate result of Cross-Defendant’s breach of his fiduciary duties that he 16 owed to the Cross-Complainants, Cross-Complainants have suffered injury and damages, in an amount in 17 excess of this Court’s jurisdictional limit, according to proof at trial. In doing the acts and causing the omissions set forth hereinabove, Cross-Defendant Ebert acted 18 with fraud, oppression and malice toward the Cross-Defendants, and therefore, Cross-Defendants are entitled to recover from him exemplary and punitive damages in an amount subject to proof at trial. 19 FOURTH CAUSE OF ACTION 20 Conversion On or about July 28, 2018 to on or about July 31, 2019, Cross-Defendant Ebert converted and took 21 away from Cross-Defendant AAF the following business personal property it owned and had rightful 22 possession of: Cross-Complainant AAF’s books and financial records, including its LLC formation and organizational documents; bookkeeping and accounting records in paper and electronic format; its 23 monthly bank statements, checking registers, and copies of cancelled checks; its accounts payable and receivable reports; and profit and loss statements. Cross-Complainants AAF and Ocean Queen are further 24 informed and believe, and therefore allege, that Cross-Defendant Ebert also copied and removed from Cross-Defendant AAF its confidential information, including confidential information about its abalone 25 farming methods and techniques, as well as its customer and vendor lists. Cross-Complainants are 26 informed and believe, and thereon allege, that Cross-Defendant Ebert has used, and is using, the Confidential Information of Cross-Complainant AAF for his own, personal use, and for his use as an 27 employee of Four Star Seafood, Inc., located in San Francisco, California. As a direct and proximate result of Cross-Defendant’s conversion of the business personal 28 property of Cross-Complainant AAF, Cross-Complainants have suffered injury and damages, in an amount in excess of this Court’s jurisdictional limit, according to proof at trial. Response by AAF, LLC to Form-Rog. General Page 5 1 In doing the acts and causing the omissions set forth hereinabove, Cross-Defendant Ebert acted with fraud, oppression and malice toward the Cross-Defendants, and therefore, Cross-Defendants are 2 entitled to recover from him exemplary and punitive damages in an amount subject to proof at trial. 3 FIFTH CAUSE OF ACTION 4 Misappropriation On or about July 28, 2018 to on or about July 31, 2019, Cross-Complainants are informed and 5 believe, and thereon allege, that Cross-Defendant Ebert misappropriated from Cross-Complainant AAF its funds, in amounts and on dates that are as yet unknown to Cross-Complainants, but which are believed to 6 be within the jurisdictional limit of this Court, subject to proof at trial. As a direct and proximate result of Cross-Defendant’s misappropriation of funds belonging to 7 Cross-Complainant AAF, Cross-Complainants have suffered injury and damages, in an amount in excess 8 of this Court’s jurisdictional limit, according to proof at trial. In doing the acts and causing the omissions set forth hereinabove, Cross-Defendant Ebert acted 9 with fraud, oppression and malice toward the Cross-Defendants, and therefore, Cross-Defendants are entitled to recover from him exemplary and punitive damages in an amount subject to proof at trial. 10 SEVENTH CAUSE OF ACTION 11 Unfair Business Practices Per Business & Professions Code § 17200, et seq. On or about July 28, 2018 to on or about July 31, 2019, as a result of Cross-Defendants acts, 12 omissions, and concealments described in the causes of action, above, which were unlawful, fraudulent 13 and unfair business practices, this Court should order Cross-Defendant Ebert to provide restitution to Cross-Defendants as follows: for the funds he misappropriated; for the value of the business personal 14 property that he converted for his own personal use; for profits that he obtained and paid to himself while he was the General Manager of Cross-Defendant AAF; and for the profits plus any compensation he 15 received from employment that he was able to obtain as a direct and proximate result of using Cross- Complainant AAF’s Confidential Information on his own behalf, and on behalf of his subsequent 16 employer, Four Star Seafood, Inc., in amounts that are as yet unknown, but subject to proof at trial. 17 FORM INTERROGATORY NO. 12.1 18 State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; 19 (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene: and 20 (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034). 21 RESPONSE TO NO. 12.1 22 - This responding Defendant, James Ho, who can be contacted through his attorney. - Robert Arthur, Attorney for James Ho, at Arthur & Associates, 1641 N. 1st St. Suite 250, San Jose, CA, 23 95112, Tel: (408)437-6986. - David Weng aka Tsuwei Weng, associate and partner to James Ho in AAF, 388 9th Street, Ste 101, 24 Oakland, CA, Tel: (510) 367-6688. - The Plaintiff, Tom Ebert, who can be contacted through his attorney. 25 - Ken Elving and John Myrtakis of JAMKE, a California general partnership. Contact information is 26 unknown at this time. 27 FORM INTERROGATORY NO. 12.2 Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the 28 INCIDENT? If so, for each individual state: (a) the name, ADDRESS, and telephone number of the individual interviewed; Response by AAF, LLC to Form-Rog. General Page 6 1 (b) the date of the interview: and (c) the name, ADDRESS, and telephone number of the PERSON who conducted the interview. 2 RESPONSE TO NO. 12.2 Objection, the request calls for confidential attorney client communication and confidential attorney work 3 product. Without waving the aforestated objection, Defendant responds: no non-privileged interviews 4 have taken place. 5 FORM INTERROGATORY NO. 12.3 Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from 6 any individual concerning the INCIDENT? If so, for each statement state: (a) the name, ADDRESS, and telephone number of the individual from whom the statement was obtained; 7 (b) the name. ADDRESS, and telephone number of the individual who obtained the statement: 8 (c) the date the statement was obtained; and (d) the name, ADDRESS, and telephone number of each PERSON who has the original statement or a 9 copy. RESPONSE TO NO. 12.3 10 Objection, the request calls for confidential attorney client communication and confidential attorney work product. Without waving the aforestated objection, Defendant responds no non-privileged written records 11 have been taken. 12 FORM INTERROGATORY NO. 12.4 13 Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any photographs, films. or videotapes depicting any place, object, or individual concerning the INCIDENT or plaintiffs injuries? If so. state: 14 (a) the number of photographs or feet of film or videotape: (b) the places, objects, or persons photographed, filmed, or videotaped; 15 (c) the date the photographs, films, or videotapes were taken: (d) the name. ADDRESS, and telephone number of the individual taking the photographs, films, or 16 videotapes: and 17 (e) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of the photographs. films, or videotapes. 18 RESPONSE TO NO. 12.4 None 19 FORM INTERROGATORY NO. 12.5 20 Do YOU OR ANYONE ACTING ON YOUR BEHALF know of any diagram, reproduction, or model of any place or thing (except for items developed by expert witnesses covered by Code of Civil Procedure 21 sections 2034.210-2034.310) concerning the INCIDENT? If so, for each item state: 22 (a) the type (i.e .. diagram, reproduction. or model); (b) the subject matter; and 23 (c) the name, ADDRESS, and telephone number of each PERSON who has it. RESPONSE TO NO. 12.5 24 None 25 FORM INTERROGATORY NO. 12.6 26 Was a report made by any PERSON concerning the INCIDENT? If so, state: (a) the name, title, identification number, and employer of the PERSON who made the report: 27 (b) the date and type of report made: