Document for ARNTSEN FAMILY PARTNERSHIP, LP, et al vs. GREGORY J DAVIS, et al

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                                1    Brian Zimmerman (admitted pro hac vice)
     Nicholas Reisch (admitted pro hac vice)
2    Jessica E. Chong (SBN 317869)
     SPENCER FANE LLP
3    3040 Post Oak Blvd., Suite 1400
     Houston, TX 77056
4    (713) 552-1234 telephone
5    Ernesto F. Aldover (SBN 157625)
     RETZ & ALDOVER, LLP
6    2550 Via Tejon, Suite 3A
     Palos Verdes Estates, California 90274
7    (310) 540-9800 telephone
8    Attorneys for Defendants
     SVRV 385 Moore, LLC; SVRV 387 Moore, LLC;
9    Gregory J. Davis; Kevin Wolfe; Jason Justesen;
     Paramont Woodside, LLC; Paramont Capital,
10   LLC; Monks Family Trust; TEH Capital, LLC;
     Caproc III, LLC; WZ Partners LLC; McLan
11   Trust; Wild Rose Irrevocable Trust; Black
     Horse Holdings, LLC; Phil Stoker; Diane
12   Stoker; Scott O’Neil; and Dale Huish
13
                SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
                               COUNTY OF SAN MATEO
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16   Robert Arntsen; Mary Lee; Arntsen           Case No. 22-CIV-01148 consolidated
     Family Partnership, LP; and Brian           with Case No. 22-CIV-01099
17   Christopher Dunn Custodianship;
                                                   DEFENDANTS’ RESPONSE TO
18                             Plaintiffs,        PLAINTIFFS’ NOTICE OF ISSUES
                                                           FOR TRIAL
19            -vs-
20   David M. Bragg; Kurtis Stuart Kludt;        Dept. 24
     Silicon Valley Real Ventures, LLC;          Honorable Jeffrey Finigan
21   SVRV 385 Moore, LLC; SVRV 387
     Moore, LLC; Gregory J. Davis; Kevin
22   Wolfe; Jason Justesen; Paramont
     Woodside, LLC; and Paramont Capital,
23   LLC;
24                               Defendants.
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                                              PAGE 1
      John Ho and Quanyu Huang;
1
                                   Plaintiffs,
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                -vs-
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      David M. Bragg; Silicon Valley Real
4     Ventures, LLC; SVRV 385 Moore, LLC;
      SVRV 387 Moore, LLC; Gregory J.
5     Davis; Kevin Wolfe; Jason Justesen;
      Paramont Woodside, LLC; Paramont
6     Capital, LLC; Monks Family Trust; TEH
      Capital, LLC; Caproc III, LLC; WZ
7     Partners LLC; McLan Trust; Wild Rose
      Irrevocable Trust; Black Horse Holdings,
8     LLC; Phil Stoker; Diane Stoker; Scott
      O’Neil; and Dale Huish;
9
                                    Defendants.
10

11         Defendants contend that several of the suggestions of Plaintiffs in their Notice
12   are not realistic or justified. They respond briefly as follows:
13         1.     Defendants do not believe it makes sense to attempt to dictate a schedule
14   of what will occur on each day of trial beyond identifying when jury selection begins.
15   For example, as the Court indicated, neither the parties nor the Court can know how
16   long jury selection will take. So, declaring that initial jury instructions and opening
17   statements will occur on Tuesday, March 12, 2024, makes no sense. Nor does planning
18   when the trial will be completed.
19         2.     Defendants believe it makes sense for most, if not all, witnesses to be
20   called only once and that the scope of cross-examination not limited to the direct
21   examination. However, Defendants reserve the right to potentially play short video
22   clips from some of the Plaintiffs’ depositions as part of their case, depending on how
23   Plaintiffs’ evidence develops in its case.
24         3.     While Plaintiffs are entitled to call any disclosed witness they want
25   during their case, Defendants object to Plaintiffs’ proposal that Plaintiffs be allowed
26   to be the first to question “Defendants’ witnesses” (i.e. witnesses called by the
27   Defendants, rather than Plaintiffs). There is no justification for such a proposal.
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1          4.     Defendants contend that Plaintiffs are not entitled to unilaterally
2    declare how much time Defendants have to cross-examine Plaintiffs’ witnesses or put
3    on their own witnesses or decide to split of any amount of time between Defendants.
4    Moreover, Defendants contend that Plaintiffs’ suggested estimate of the time to
5    present many of their planned witnesses is unrealistic and contrary to the estimates
6    Plaintiffs previously provided to the Court. Nor should Defendants be unreasonably
7    constrained in putting on their defense simply because Plaintiffs have decided they
8    want the trial to be shorter.
9          Defendants contend that there is no justification for the “findings of law”
10   proposed by Plaintiffs. And notably, Plaintiffs only provide vague descriptions of what
11   those issues are. Defendants do not doubt that the Court will decide some legal issues
12   as the trial progresses, as is typical during trial; particularly, at the directed verdict
13   stage. But Plaintiffs have clearly signaled that the “findings of law” they seek are not
14   those type of rulings, and instead effectively a grant of summary adjudication on fact
15   issues in favor of the Plaintiffs that they would prefer the jury not decide. Plaintiffs’
16   proposal is not realistic or justified. There is a reason that the procedural rules for the
17   timing of summary adjudication exist, including the time it provides for the parties to
18   provide detailed briefing to the Court and the Court to carefully examine the issues.
19   Plaintiffs deliberately spurned the option of seeking summary adjudication by
20   requesting a preferential trial, even after Defendants noted the consequence. And
21   Plaintiffs opposed Defendants’ request to adjust the time limits within the Court’s
22   discretion to have such motions heard. Moreover, Defendants anticipate that the
23   issues on which Plaintiffs will attempt to seek summary adjudication involve factual
24   disputes for the jury that Plaintiffs will be asking the Court to pretend are issues of
25   law. For example, it is clear that Plaintiffs want the Court to “declare” that the
26   unsigned draft February 2018 operating agreement is somehow a valid contract
27   agreed to by the parties despite the overwhelming evidence to the contrary. This is
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1    the same argument that the Plaintiffs advanced in their MIL No. 3 which is improper.
2    Plaintiffs attempt to recast a motion for summary adjudication in the form of the
3    instant request is similarly improper. (Clemens v. American Warranty Corp. (1987)
4    193 Cal.App.3d 444, 451.).
5          5.     Plaintiffs thinly disguised attempt to ask the Court to make summary
6    adjudications under these circumstances should be rejected.
7          6.     Defendants contend that it does not make any sense to present
8    instructions to the jury before the presentment of evidence beyond those instructions
9    indicated by CACI as appropriate. Defendants have prepared a set of such instructions
10   to present to all parties and eventually the Court prior to the first day of trial. Any
11   proposal to present other instructions prior to presenting evidence, especially special
12   instructions that will likely be hotly contested, is impractical and will only
13   unjustifiably delay the start of the trial.
14         7.     Defendants contend that judicial resources and the time of the jury is
15   better served by holding any decision on equitable issues until after the jury’s verdict.
16   The Plaintiffs have asserted 22 separate “counts” and only two of them—separate
17   claims for Violation of Cal. Bus. & Prof. Code § 17200—are equitable. The Court’s
18   decision of those claims will not resolve the remainder of the 20 claims. Similarly,
19   most of Defendants defenses are for the jury to decide. The only equitable defenses
20   are estoppel and unclean hands. And those few defenses may not even need to be
21   decided depending on the jury’s verdict.
22         8.     As for Plaintiffs’ assertion that “unjust enrichment” is an equitable claim
23   to which there is no right to a jury trial, they are simply wrong—as Defendants
24   already informed Plaintiffs’ counsel as well as provided supporting case law. “Unjust
25   enrichment” is not a cause of action or remedy but a general principle underlying
26   various doctrines and remedies. (McBride v. Boughton (2004) 123 Cal.App.4th 379,
27   387.) It is often asserted as a basis for seeking restitution. (Id. 387-88.) In such cases,
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1    it is treated as seeking recovery under a “common count” such as quasi contract or
2    assumpsit. Id. Because such common counts historically had a right to jury trial under
3    the common law, the right to a jury remains for such claims. (Jogani v. Superior Court
4    (2008) 165 Cal.App.4th 901, 905). The rationale was that such common counts were
5    actions at law even though they were governed by principles of equity. (Id. 905-907.)
6    As a result, the Court of Appeal in Jogani held that a party to a suit involving the
7    common count of quantum meruit had a right to a jury trial. (Id.; see also Lectrodryer
8    v. SeoulBank (2000) 77 Cal.App.4th 723, 728 (holding that “unjust enrichment” claim
9    carried a right to a jury trial).) It should also be noted that CACI contains jury
10   instructions for the common counts of money had and received and quasi-contract that
11   would be applicable to Plaintiffs. No such CACI instructions would exist if they were
12   not issues for the jury. In addition, notably absent from Plaintiffs’ Notice is any legal
13   authority supporting that there is no jury trial for “unjust enrichment.”
14   Dated: March 4, 2024                           SPENCER FANE LLP
15                                           By:     /s/ Brian Zimmerman
                                                     Brian W. Zimmerman (admitted pro
16                                                  hac vice)
                                                     Nicholas Reisch (admitted pro hac
17                                                  vice)
                                                     Jessica E. Chong (SBN 317869)
18                                                   SPENCER FANE LLP
                                                     3040 Post Oak Blvd., Suite 1400
19                                                   Houston, TX 77056
20                                                   and
21                                                   Ernesto F. Aldover, Esq.
                                                     RETZ & ALDOVER, LLP
22                                                   2550 Via Tejon, Suite 3A
                                                     Palos Verdes Estates, CA 90274
23                                                   Attorneys for Defendants
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1                                  PROOF OF SERVICE
2
     STATE OF NEVADA, COUNTY OF CLARK
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     I am employed in the county of Las Vegas State of Nevada. I am over the age of 18
4    and not a party to the action; my business address is 300 S. Fourth Street, Suite 950
     Las Vegas, NV 89101.
5

6     On March 4, 2024 I served the foregoing document(s) described as DEFENDANTS’
             RESPONSE TO PLAINTIFFS’ NOTICE OF ISSUES FOR TRIAL
7    as follows:

8     Collin J. Vierra (State Bar No. 322720)      Ryan van Steenis (S.B. #254542)
      EIMER STAHL LLP                              1601 S Shepherd Dr., #276
9     99 Almaden Blvd., Suite 641                  Houston, Texas 77019
                                                   rjvansteenis@gmail.com
      San Jose, CA 95113-1605                      ATTORNEY FOR DEFENDANTS
10
      Telephone: (408) 889-1668                    DAVID M. BRAGG AND SILICON
11    Email: cvierra@eimerstahl.com                VALLEY REAL VENTURES, LLC

12    Attorney for Plaintiffs
13
      _ _ (BY US MAIL) As follows: I am “readily familiar” with the firm’s practice of
14   collection and processing correspondence for mailing. Under that practice it would be
     deposited with the U.S. Postal Service on that same day with postage thereon fully
15   prepaid at Palos Verdes Estate, CA in the ordinary cause of business. I am aware
16   that on motion of the party served, service is presumed invalid of postal cancellation
     date or postage meter is more than one day after date of deposit for mailing an
17   affidavit.

18   _X_ (BY ELECTRONIC SERVICE) I electronically served the foregoing document(s)
19   on opposing counsel via electronic mail.

20    X (STATE) I declare under penalty of perjury under the laws of the State of
     Nevada that the foregoing is true and correct.
21

22   Executed on March 4, 2024 at Las Vegas, Nevada.

23                                          /s/ Adam Miller
                                            Adam Miller
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