Party Discovery: Charles Somers vs. Dr. James Longoria

On March 16, 2018 a Party Discovery was filed involving a dispute between Charles Somers Individually And As Trustee For The Charles Somers Living Trust, Somers, Charles, and Does 1-10, Longoria, Dr. James, for (Fraud (no contract)) in the District Court of Sacramento County.

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Superior Court of California,
Sacramento
04/28/2023
DOWNEY BRAND LLP
WILLIAM R. WARNE (Bar No. 141280) crowtht
bwarne@downeybrand.com By , Deputy
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ANNIE S. AMARAL (Bar No. 238189)
aamaral@downeybrand.com 34-2018 0622921 2-CU-FF
BRADLEY C. CARROLL (Bar No. 300658)
bearroll@downeybrand.com
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621 Capitol Mall, 18 Floor
Sacramento, California 95814
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Telephone: 916.444.1000
Facsimile: 916.444.2100
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Attorneys for Plaintiff CHARLES SOMERS,
individually and as trustee for the CHARLES
SOMERS LIVING TRUST
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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10 COUNTY OF SACRAMENTO

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12 CHARLES SOMERS, individually and as Case No. 34-2018-00229212
trustee for the CHARLES SOMERS LIVING
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13 TRUST, PLAINTIFF’S SUPPLEMENTAL BRIEF
REGARDING STATUTE OF FRAUDS
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14 Plaintiff,
Action Filed: March 16, 2018
15 Vv. Trial Date: October 16, 2023
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16 DR. JAMES LONGORIA, an individual, and
DOES 1-10,
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Defendant. BY FAX
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1857866v6

PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
I. INTRODUCTION

During the April 14, 2023, hearing on Defendant James Longoria’s motion for summary
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judgment, his counsel belatedly raised arguments that Plaintiff Charles Somers’s breach of
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contract causes of action are barred by the statute of frauds. Somers addressed these issues in his
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written opposition, and Longoria could have — and should have — made his arguments in a written
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reply so that the issue was fully presented for the Court. Instead, Longoria filed no reply and
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addressed Somers’s opposition for the first time at the hearing. The Court then gave both parties
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the opportunity to submit additional briefing, and Somers does so here.
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In short, Longoria’s arguments regarding the statute of frauds are not well founded. First,
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10 the arguments, undisputed material facts, and record evidence initially proffered by Longoria fail

11 to satisfy his burden to show there are no triable issues of material fact related to the sufficiency of

12 the May 9, 2017, email under the statute of frauds. Indeed, the May 9, 2017, email clearly
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13 satisfies the statute of frauds as a memorandum that provides evidence of an oral agreement, and
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14 none of Longoria’s facts show otherwise. Second, the May 9, 2017, email and its contents do not

15 raise issues outside of the pleadings in this case. Third, there is at least a triable issue of fact as to
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16 whether Longoria is estopped from raising the statute of frauds as a defense in this matter. The

17 Court should thus sustain its tentative ruling and deny in full Longoria’s motion for summary

18 judgment/adjudication.

19 II. RELEVANT MATERIAL FACTS AND RECORD EVIDENCE RELATED TO
LONGORIA’S STATUTE OF FRAUDS ARGUMENT
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21 Longoria’s Separate Statement of Undisputed Facts (“SSUF”) contains only two unique

22 material facts (““UMF”) relevant to the argument that Somers’s sixth, seventh, and eighth causes of

23 action for breach of contract are barred by the statute of frauds. First, facts 334, 395, and 446 each

24 state that “[a]ll of the contracts alleged in the SAC involved the infusion of money by Somers

25 above $1,000, and performance could not be completed within one year.” For purposes of

26 Longoria’s motion for summary judgment only, Somers does not dispute these facts. (See

oF Somers’s Response to SSUF, UMF Nos. 334, 395, and 446.)

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1857866v6 1]
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
= Second, facts 335, 396, and 447 each state that “[n]one of the agreements alleged in the

SAC for breach of oral contract were ever reduced to writing.” The only evidence Longoria cites
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in support of these facts includes the SAC itself; excerpts of Ken Silva’s deposition testimony
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explaining that a promissory note was prepared for the loans made by Somers, but never signed;
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and Longoria’s declaration that he never entered into a written contract that required him to repay
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Somers. Notably, Longoria merely declares that no written contract of any kind was ever formed
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requiring him to pay back Somers, not that no contract was ever formed requiring Longoria to do
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the acts alleged by Somers! in exchange for Somers’s investment in LCT. Thus, none of this
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evidence relates to the sufficiency of any writing under the statute of frauds. Nor does this
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evidence relate to the breach of contract causes of action actually pleaded by Somers. Rather,
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Longoria has created a fake cause of action Somers did not plead relating to a promissory note that
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Longoria now claims was never memorialized.
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Somers disputes facts 335, 396, and 447, citing as evidence the May 9, 2017, email sent by
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Longoria to Somers that evidences the oral agreements between Somers and Longoria. (See
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Declaration of Charles Somers (“Somers Decl.”), § 30, Ex. N.) That May 9, 2017, email, written
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by Longoria and sent to Somers, is clear evidence of an existing agreement between them. It
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describes the amounts invested by Somers (“$3.335 mil”) and the promises by Longoria (“the
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conversion of the S Corp to an LLC” and “50/50 partnership b/w JL & CS”). As discussed below,
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that is all that is required to satisfy the basic requirements of the statute of frauds.
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Il. ARGUMENT
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A. The Statute of Frauds
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The statute of frauds requires that certain agreements be memorialized in writing. (Civ.
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Code, § 1624.) However, it does not require a fully formed written contract. Instead, a “note or
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memorandum subscribed by the party to be charged is adequate.” (Sterling v. Taylor (2007) 40
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Cal.4th 757, 765-766, internal citations omitted.) The written note or memorandum is not itself a
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' Those acts include converting LCT from an S corporation to an LLC, allowing Somers to
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purchase additional equity to the extent he was interested, and making Somers a member of the
LCT Board of Directors and co-equal partner with control of the company. (See SAC, §§ 85-99.)
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PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
written contract but is merely evidence of the parties’ agreement. (Jbid.) “Indeed, in most

instances it is not even necessary that the parties intended the memorandum to serve a contractual
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purpose.” (/d. at p. 766.) In fact, the purpose of the statute of frauds is not to ensure written
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contracts at all. Rather, the doctrine is an evidentiary tool that prevents fraudulent enforcement of
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agreements that were never formed. (/d. at pp. 766-767.) Accordingly, all that is required is a
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memorandum that “identifies the subject of the parties’ agreement, shows that they made a
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contract, and states the essential contract terms with reasonable certainty.” (/d. at p. 766; Kaneko

v. Okuda (1961) 195 Cal.App.2d 217, 230 [“If the court . . . can plainly determine from the
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memorandum the identity of the parties to the contract, the nature of its subject matter, and its
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10 essential terms, the memorandum will be held to be adequate.”’].)

11 “California law is clear that a note or memorandum under the statute of frauds need not

12 contain all of the details of an agreement between the parties.” (Lamle v. Mattel, Inc. (Fed. Cir.
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13 2005) 394 F.3d 1355, 1361, internal citations and quotations omitted.) Instead, “the few terms
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14 deemed essential as a matter of law by California courts to satisfy the statute of frauds

15 requirements [are]: the subject matter, the price, and the party against whom enforcement is
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16 sought.” (Levin v. Knight (9th Cir. 1986) 780 F.2d 786, 787 [construing California law to find that

17 a written memorandum detailing the parties, amount of stock to be purchased, and purchase price

18 was sufficient to satisfy statute of frauds, and reversing district court’s grant of summary judgment

19 in defendant’s favor accordingly].) All such terms are confirmed here by the May 9, 2017, email.

20 B. Neither Longoria’s Separate Statement Nor the Record Evidence Establishes that the
Statute of Frauds Bars Somers’s Breach of Contract Causes of Action.
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22 As a threshold issue, the facts and record evidence discussed above and presented by

23 Longoria in support of his motion for summary judgment are focused on Longoria’s argument that

24 there is no underlying writing evidencing the party’s agreement, not on the sufficiency of any

25 writing under the statute of frauds. There are simply no facts or argument in the record addressing

26 the sufficiency of the writing provided by Somers. Thus, Longoria cannot prevail on his argument

27 that the statute of frauds applies here because he has failed to carry his burden of making a prima

28 facie showing that there are no triable issues of material fact related to the sufficiency of the

1857866v6 3
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
writing under the statute of frauds.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,

850.)
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Moreover, the facts and record evidence submitted by Longoria address the absence of a

formal written, signed contract for Longoria to repay Somers for the loans Somers made to LCT,
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but this evidence is all irrelevant because it fails to address the promises alleged by Somers in his
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breach of contract claims. (See, e.g., Longoria Decl., § 33.) Somers alleges contracts whereby
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Longoria agreed to: (1) convert LCT from an S corporation to an LLC in exchange for Somers’s
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agreement to provide funding for LCT (SAC, {J 85-89); (2) allow Somers to purchase additional
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shares in LCT should the company need additional funding in exchange for Somers’s agreement
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10 to provide funding for LCT (SAC, 90-94); and (3) make Somers a member of the LCT Board of

11 Directors and share equal control over LCT with Somers in exchange for Somers’s agreement to

12 provide funding for LCT (SAC, {J 95-99). Thus, Longoria’s statement that he did not sign a
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13 written agreement where he personally agreed to pay back Somers is a non-sequitur.

14 As noted previously, Longoria’s focus on the absence of a formal written, signed contract

15 misses the point of the statute of frauds. Longoria has failed to carry his burdens of persuasion
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16 and production on his motion for summary judgment.

17 Cc. The Email Sent By Longoria to Somers that Memorialized Their Agreements Does
Not Contradict the Allegations of the Second Amended Complaint.
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19 During the hearing, Longoria argued that the May 9, 2017, email (Somers Decl., Ex. N)

20 does not defeat his statute of frauds argument because the writing contradicts the Second

21 Amended Complaint’s allegation of an oral agreement. Longoria is incorrect.

22 Somers’s complaint sets the outer limits of the issues to be addressed on Longoria’s

23 motion for summary judgment. (See Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242,

24 1258.) A moving party is not required to “refute liability on some theoretical possibility not

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? Somers produced the May 9, 2017, email (Somers Decl., Ex. N) in discovery long before
26 Longoria filed his motion for summary judgment. Thus, Longoria was necessarily aware of the
writing, and there is no apparent reason why Longoria could not have offered evidence and
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argument related to the sufficiency of this writing as part of his argument that the statute of frauds
28 applies.

1857866v6 4
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486,

493.)
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However, a written memorandum evidencing an oral agreement is not a “theoretical
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possibility not included in” Somers’s SAC. As discussed at length above, the statute of frauds
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does not require that certain types of contracts be embodied by formal written or signed contracts.
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Rather, the doctrine is merely an evidentiary tool that ensures that agreements are not being
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fraudulently enforced. Thus, Somers’s reliance on an email that serves as a memorandum
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evidencing his oral agreements with Longoria does not expand the pleadings or inject a new
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theory of liability not previously pleaded.
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Indeed, California authority confirms that oral agreements alleged in the pleadings can be
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enforced so long as a written memorandum satisfies the evidentiary requirements of the statute of
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frauds. For example, in Kaneko v. Okuda (1961) 195 Cal.App.2d 217, plaintiff Kaneko sued
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several defendants for specific performance of a contract for the sale of corporate stock. The trial
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court ruled partially in Kaneko’s favor, awarding him a number of shares based on an alleged oral
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agreement. (Jd. at pp. 221-222, 229-230.) The trial court found that the plaintiff was not
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foreclosed by the statute of frauds from prevailing on the oral contract because the defendant had
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signed an application to transfer his stock, which was directed to the Commissioner of
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Corporations. (/d. at pp. 229-230.) The application stated the amount of shares owned by the
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defendant, that he proposed to transfer 25 of them to plaintiff, and noted that plaintiff was to pay
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$100 for each share. (Jd. at p. 230.) The appellate court held that the application “was a sufficient
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memorandum to take the oral agreement made by [defendant] out of the statute of frauds.” (bid.)
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The court expressly stated that the writing “need not be a formal contract drawn with technical
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exactness or even one intended to create an obligation.” (Jd. at p. 230.)
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Because an oral contract that is subject to the statute of frauds can be enforced even if it is
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not reduced to a “formal contract with technical exactness” (id. at p. 230), Somers’s presentation
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of an email as evidence that the statute of frauds has been satisfied in this case does not contradict
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the SAC’s allegations that his agreements with Longoria were oral.
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1857866v6 5
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
D. To the Extent Longoria Has Adequately Raised the Statute of Frauds as a Defense,
Somers Has Produced Evidence To Satisfy the Minimal Requirements of the Statute
of Frauds.
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Even if the Court were to find that Longoria has satisfied his initial burden of production,
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such that the burden switches to Somers to demonstrate a disputed issue of material fact exists, the
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May 9 email easily satisfies the minimal requirements of the statute of frauds and thus defeats
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Longoria’s motion for summary judgment/adjudication. The email specifically identifies the

parties (Somers and Longoria) and the subject matter of the oral agreement (the precise equity

stake Somers was purchasing for the precise amount, that Somers and Longoria were to be 50/50
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partners, and the connection between these terms and the agreement to convert LCT from an S
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10 corporation to an LLC). The email is also signed by Longoria, the party against whom it is to be

11 charged. (See Levin v. Knight, supra, 780 F.2d at p. 787; see also Kaneko v. Okuda, supra, 195

12 Cal.App.2d at p. 230 [“If the court, after acquiring knowledge of all the facts concerning the
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13 transaction which the parties themselves possessed at the time the agreement was made, can

14 plainly determine from the memorandum the identity of the parties to the contract, the nature of its

15 subject matter, and its essential terms, the memorandum will be held to be adequate.”].)
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16 During the hearing, Longoria argued that certain terms or items were missing from the

17 email. In particular, Longoria claimed that the email “doesn’t say, we have agreed to the

18 following or there’s mutual consideration for the following.” (Apr. 14, 2023, Tr., p. 12:18-20.)?

19 Longoria is confused about the requirements. As discussed above, a memorandum satisfying the

20 statute of frauds need not even be “one intended to create an obligation.” (Kaneko v. Okuda,

a supra, 195 Cal.App.2d at p. 230.) But the May 9 email clearly identifies mutual consideration by

22 referring to “the conversion of the S Corp to an LLC” and the “$3.335 mil by CS purchased 50%
23 equity stake in LC Therapeutics.” (Somers Decl., Ex. N.)

24 Longoria also argued that the email failed to satisfy the statute of frauds because it was

25 purportedly prospective in nature, rather than retrospective. Again, however, the statute of frauds

26 does not require the written memorandum evidencing the parties’ oral agreement to be a

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28 3 A copy of the hearing transcript is attached hereto as Exhibit A.

1857866v6 6
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
technically precise document that conveys with perfect exactness the parties’ agreement. (See

Kaneko v. Okuda, supra, 195 Cal.App.2d at p. 230.) All that is required is that the email identify
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the parties to the contract, the nature of its subject matter, and the essential terms. The May 9,

2017, email does precisely that.
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In any event, the email does not describe a new negotiation between the parties that never
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became an agreement, as suggested by Longoria at the hearing on his motion. As alleged in the
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SAC and as Somers declared in opposition to Longoria’s motion, although Longoria made initial

promises to Somers in 2013 to induce Somers to invest in LCT (see SAC, J 15), Longoria
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repeatedly reiterated these promises from 2014 to 2017 to keep the money flowing from Somers
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10 (see SAC, ff] 22-25, 34). (See Somers Decl., ff 6, 9-12, 17, 25-26, 30.) These included

1] discussions from early 2017 through May 2017, in which Longoria continued to promise Somers

12 that he would convert LCT to an LLC. (Somers Decl., ] 26, 30.) Thus, the May 9, 2017, email is
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13 a summary of promises that had been made repeatedly in the past, but that Somers and Longoria

14 were specifically discussing again “over the past 2 days.” (Somers Decl., Ex. N.)

15 Moreover, Longoria’s argument at the hearing regarding the prospective vs. retrospective
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16 nature of the May 9, 2017, email is a strawman that has nothing to do with the contracts alleged in

17 the SAC by Somers. Longoria’s counsel argued that the second paragraph of the May 9, 2017,

18 email — the paragraph that begins “2. $2.25 mil (up to ? $7 mil by end of 2017)” — was

19 prospective, not retrospective. (See Apr. 14, 2023, Tr., pp. 13:7-14:4.) Longoria’s argument

20 focuses exclusively on the loan terms discussed in the second paragraph, but ignores the terms

21 discussed in the first paragraph regarding the conversion of LCT to an LLC, Somers’s equity

22 investment in LCT, and Longoria’s agreement that Longoria and Somers would have a “50/50

23 partnership.” (Somers Decl., Ex. N.) These are, of course, the subject of Somers’s breach of

24 contract causes of action.

25 By focusing on the loan terms discussed in the email, Longoria has again concocted a

26 claim that Somers is not making, and has never made: that the oral agreements Longoria is alleged

Zi to have breached were for the repayment of loans made to LCT, that Longoria did not like the

28 terms of those agreements, and that Longoria never agreed to the prospective terms discussed in

18578666 7
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
paragraph 2 of the May 9, 2017, email. Again, the sixth, seventh, and eighth causes of action

allege contracts where Longoria made a specific promise (e.g., to convert LCT to an LLC) in
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exchange for Somers’s agreement to fund LCT (whether through equity purchases or loans). (See
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SAC, J 85-99.) Somers has not alleged a theory of liability relating to an oral agreement that was
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never memorialized in a promissory note on loan terms requiring Longoria to repay Somers. The
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terms in the email that Longoria claims are prospective, not retrospective, relate only to loan
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repayment terms and have nothing to do with the contracts alleged by Somers in the SAC.
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On the other hand, even Longoria admitted at the hearing that the email was retrospective
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as to the terms that do relate to the contracts alleged by Somers: “But the first paragraph discusses
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10 what had already happened; 10 million initial for 20 percent, open paren, 10 million initial

11 valuation, closed paren. And then second, 1.35 mil for an additional 30 percent.” (Apr. 14, 2023,

12 Tr., p. 13:3-6, emphasis added.) Thus, the May 9, 2017, email, even though it is not required to be
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13 explicitly retrospective by the statute of frauds, is explicitly retrospective as to the description of

14 the oral agreements it memorializes: it refers to the promises Longoria made to convert LCT to an

15 LLC and to be 50/50 partners with Somers in the context of Somers’s past payment of funds to
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16 secure an equity interest in LCT. (See Somers Decl., Ex. N.)

17 In sum, the May 9, 2017, email easily satisfies the requirements of a memorandum under

18 the statute of frauds and describes the retrospective agreement made by Longoria and Somers.

19 E. Alternatively, Somers Has Raised Triable Issues of Fact as to Whether Longoria Is
Estopped from Raising the Statute of Frauds as a Defense.
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21 A party may be equitably estopped from raising the statute of frauds as a defense to a

22 breach of contract claim. (Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623.) The doctrine of

23 equitable estoppel historically developed on the notion that equity must occasionally estop the

24 assertion of the statute of frauds in order to prevent fraud. (See Colon v. Tosetti (1910) 14

25 Cal.App. 693, 695 [“The statute of frauds is for the prevention, not in aid of the perpetration, of

26 fraud.”].) The modern doctrine was set out by the California Supreme Court in Monarco, supra,

27 35 Cal.2d 621, where the high court noted that:

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18578666 8
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
The doctrine of estoppel to assert the statute of frauds has been
consistently applied by the courts of this state to prevent fraud that
would result from refusal to enforce oral contracts in certain
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circumstances. Such fraud may inhere in the unconscionable injury
that would result from denying enforcement of the contract after one
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party has been induced by the other seriously to change his position
in reliance on the contract . . . or in the unjust enrichment that would
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result if a party who has received the benefits of the other’s
performance were allowed to rely upon the statute.
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(Monarco, supra, 35 Cal.2d at pp. 623-624.)
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California courts have since found parties were estopped from raising the statute of frauds
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in a wide variety of circumstances. (See, e.g., Allied Grape Growers v. Bronco Wine Co. (1988)
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10 203 Cal.App.3d 432, 444 [upholding jury’s finding that defendant was equitably estopped from

11 raising statute of frauds as a defense to oral contract with grape growers cooperative where

12 substantial evidence was presented that the cooperative “was induced by Bronco to change its
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13 position in reliance on the oral contract for the sale of Carnelians and that Allied would suffer

14 unconscionable injury if enforcement of the contract against Bronco was denied”].)

15 “Whether the doctrine of equitable estoppel should be applied in a given case is generally a
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16 question of fact.” (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068.) Thus, summary judgment

17 is not proper where a reasonable trier of fact could find that the party seeking to enforce the

18 contract reasonably and detrimentally relied on the defendant’s promises, or where it would be

19 unconscionable to permit a defendant to use the statute of frauds to escape obligations under the

20 contract. (Jd. at pp. 1068-1069 [finding that equitable estoppel of statute of frauds argument was

21 question of fact that required reversal of trial court’s grant of summary adjudication as to breach of

22 oral contract claim].)

23 Here, the SAC plainly alleges and Somers’s declaration states that Somers relied on

24 Longoria’s fraudulent promises in entering into the alleged oral agreements and that Somers

25 performed his parts of the oral agreements in reliance on Longoria’s promises. (See Somers Decl.,
26 1 6-7, 9-12, 15-18.) Ata minimum, there is a triable issue of fact as to whether Longoria is

27 estopped from raising the statute of frauds as a defense in this matter that must be presented to the

28 jury. It would contravene the very foundation of the statute of frauds and would be

1857866v6 9
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
unconscionable to permit Longoria to raise it as a defense to a contract that was induced by his

fraud and that Somers has fully performed.
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IV. CONCLUSION
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For these reasons, the Court should affirm its tentative ruling and deny in full Longoria’s

motion for summary judgment/adjudication.
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DATED: April 28, 2023 DOWNEY BRAND LLP

a (eb
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10 WILLIAM R. WARNE
ANNIE S. AMARAL
11 BRADLEY C. CARROLL
Attorneys for Plaintiff CHARLES SOMERS,
12 individually and as trustee for the CHARLES
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13 SOMERS LIVING TRUST

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1857866v6 1 0
PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
PROOF OF SERVICE

Somers v. Longoria, et al.
Case No. 34-2018-00229212
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At the time of service, I was over 18 years of age and not a party to this action. Iam
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employed in the County of Sacramento, State of California. My business address is 621 Capitol
Mall, 18th Floor, Sacramento, CA 95814.

On April 28, 2023, I served true copies of the following document(s) described as
PLAINTIFF’S SUPPLEMENTAL BRIEF REGARDING STATUTE OF FRAUDS on the
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interested parties in this action as follows:

Mark E. Ellis Attorneys for Defendant, DR. JAMES
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Ellis Law Group LLP LONGORIA
1425 River Park Dr., Ste 400
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Sacramento, CA 95815-4524
10 Ph: (916) 283-8820
Fax: (916) 283-8821
11 Email: mellis@ellislawgrp.com

12
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13 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection and
14 mailing, following our ordinary business practices. I am readily familiar with the practice of
Downey Brand LLP for collecting and processing correspondence for mailing. On the same day
15 that correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I
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16 am a resident or employed in the county where the mailing occurred. The envelope was placed in
the mail at Sacramento, California.
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BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
18 document(s) to be sent from e-mail address tcastro@downeybrand.com to the persons at the e-
mail addresses listed in the Service List. I did not receive, within a reasonable time after the
19 transmission, any electronic message or other indication that the transmission was unsuccessful.

20 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on April 28, 2023, at Sacramento, California.
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Lamy 8 Cate
Tammy R. Castro
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1857866v6 1 1

PLAINTIFF'S SUPPLEMENTAL BRIEF RE: STATUTE OF FRAUDS
EXHIBIT A

EXHIBIT A
SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO

==6060==

DEPARTMENT NO. 39 HON PETER K. SOUTHWORTH, JUDGE

CHARLES SOMERS, individually )
and as trustee for the CHARLES )
SOMERS LIVING TRUST, )
)
Plaintiff, )
)
v. ) NO. 34-2018-00229212
)
DR. JAMES LONGORIA, an )
individual, and DOES 1-10, )
10 )
Defendant. )
11 )

12 --o00--

14 THIS REMOTE HEARING WAS CONDUCTED VIA ZOOM VIDEO

15 CONFERENCE

16 Friday, April 14, 2023

17 --o00--

22 REPORTED BY: TERESA KENWORTHY, CSR No. 6673

KENWORTHY COURT REPORTING 530-217-3811
TERESA KENWORTHY, CSR NO. 6673
REMOTE APPEARANCES VIA ZOOM VIDEO CONFERENCE

For the Plaintiff:

DOWNEY BRAND LLP
BY: ANNIE S. AMARAL, ESQ.
BY: BRADLEY C. CARROLL, ESQ.
621 Capitol Mall, 18th Floor
Sacramento, California 95814
(916) 444-1000
aamaral@downeybrandcom
bearroll@downeybrand.com

For the Defendant:
10

11 ELLIS LAW GROUP LLP
MARK E. ELLIS, ESQ.
12 1425 River Park Drive, Suite 400
Sacramento, California 95815-4524
13 916-283-8820
mellis@ellislawgrp.com
14

1 =-o00==

2:9

KENWORTHY COURT REPORTING 530-217-3811
TERESA KENWORTHY, CSR NO. 6673
PROCEEDINGS

Friday, April 14, 2023

8:39 a.m.

DEPARTMENT 39 HON. PETER K. SOUTHWORTH, JUDGE

--Q00-—-

THE COURT: Good morning everyone. This is

Charles Somers versus Dr. James Longoria, Case

No. 34-2018-00229212.

Can I get appearances of counsel, please.

10 MR. ELLIS: Good morning, Your Honor. Mark

11 Ellis, Ellis Law Group on behalf of defendant,

12 Dr. James Longoria.

13 THE COURT: Good morning.

14 MS. AMARAL: Good morning, Your Honor. Annie

15 Amaral from Downey Brand on behalf of plaintiff, Charles

16 Somers.

17 MR. CARROLL: Good morning, Your Honor. Bradley

18 Carroll also from Downey Brand on behalf of plaintiff,

19 Charles Somers.

20 THE COURT: As an initial matter, the Court is

21 in receipt of a letter from Mr. Ellis and I was going

22 to give this disclosure anyway.

23 From 1993 to 1997 I was an associate attorney

24 employed at then Downey Brand Seymour & Rohwer. The

25 firm is now representing Mr. Somers.

KENWORTHY COURT REPORTING 530-217-3811 3
TERESA KENWORTHY, CSR NO. 6673
And I left the firm in 1997. I have had little

contact with them since.

Ms. Amaral and Mr. Carroll weren't even at the

firm.

Mr. Warne was a senior associate, then a young

partner at the time. I remember a few times that he

sent me to court on discovery motions. If anything,

that would make me prejudiced against Mr. Warne.

I can be fair and impartial in this case.

10 I have seen Mr. Warne once every couple of years

11 in connection with professional obligations, bar

12 functions, that kind of stuff. We don't go to lunch or

13 anything.

14 So based on that disclosure, do you want to be

15 heard Mr. Ellis?

16 MR. ELLIS: No, Your Honor. It had been

17 brought to my attention about it in the last week and

18 I just wanted to make sure that I had it all on the

19 record.

20 No, I am fully satisfied with what you just said

21 and I hope I did not cause any heartburn by writing that

22 letter.

23 THE COURT: I would have made that disclosure

24 anyway. Don't worry about it.

25 MR. ELLIS: All right.

KENWORTHY COURT REPORTING 530-217-3811 4
TERESA KENWORTHY, CSR NO. 6673
THE COURT: So I wrote my tentative. The only

change I had to that is as to the plaintiff's

evidentiary objections, I'm actually going to -- I

will be right back.

Before the hearing I indicated that I sustained

objections No. 5 and 6. I am actually going to overrule

those just for the record. And that will be formalized

in a formal order.

Mr. Bradley or Ms. Amaral, have you submitted a

10 proposed order on your evidentiary rulings or should I

11 just mark this up?

Case Info

Judge

Christopher E. Krueger Track Judge’s New Case

Case No.

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Document Filed Date

April 28, 2023

Case Filing Date

March 16, 2018

County

Parties

Charles Somers individually and as trustee for the Charles Somers Living Trust Plaintiff
Does 1-10 Defendant
Longoria, Dr. James Defendant
Mark E Ellis Attorney for the Defendant
Somers, Charles Plaintiff
William R Warne Attorney for the Plaintiff
Omid Shabani Attorneys for Defendants
Jeffrey Einsohn Attorneys for Defendants
Eric Goodman Attorneys for Defendants
Port Parker Attorneys for Defendants
Janice Dudensing Attorneys for Defendants
Annie Amaral Attorneys for Plaintiffs
Bradley Carroll Attorneys for Plaintiffs
Maria Rosenfeld Attorneys for Defendants
Brian Sytsma Attorneys for Defendants
Roy Ching Attorney
Mark Eckel Attorney
William Wyatt Attorney
Dhaivat Shah Attorney

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Party Discovery: Charles Somers vs. Dr. James Longoria

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