Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Darrel E. Parker, Executive Officer
2/20/2024 4:13 PM
1 David J. Tappeiner (SBN 243979) By: Narzralli Baksh , Deputy
RIMON LAW, P.C.
2 3 West Carrillo Street, Suite 216
Santa Barbara, CA 93101
3 Telephone: (805) 892-7177
Email: David.Tappeiner@rimonlaw.com
4 Attorneys for Plaintiffs, Mark Sellars, Individually and as Trustee of the Rosemary Free Trust
u/d/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of
5 Rosemary Free Leahy
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION
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9 MARK SELLARS, individually and as ) Case No. 20CV04132
Trustee of the Rosemary Free Trust u/d/t )
10 dated September 13, 2000; and REBECCA ) [Assigned for all purposes to Hon. Thomas
MORIN, Conservator of the Estate and ) P. Anderle]
11 Person of Rosemary Free Leahy, )
) SUPPLEMENTARY
12 Plaintiffs, ) DECLARATION OF DAVID J.
)
13 vs. ) TAPPEINER IN OPPOSITION
) TO NOTICE OF MOTION AND
14 PATRICK LEAHY; CHANNE COLES, ) MOTION FOR ISSUE AND
THE LAW OFFICE OF CHANNE G. ) EVIDENTIARY
15 COLES, a California corporation; ) SANCTIONS, AS WELL AS
PATRICIA WOLLUM; SUSAN )
16 REYNOLDS; HONOR HOME CARE ) MONETARY SANCTIONS
SERVICES CALIFORNIA, INC., a )
17 Delaware corporation doing business in ) Complaint Filed:
California; and DOES 1-10, inclusive, ) 12/11/2020
18 )
Defendants. )
19 ) Third Amended Complaint Filed:
) January 12, 2024
20 )
) Date: February 21, 2024
21 ) Time: 10:00 a.m.
) Dept.: 3
22
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I, David J. Tappeiner, hereby declare as follows:
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1. I am an attorney duly licensed to practice law in the State of California, under State
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Bar No. 243979. I am a partner in the firm of RIMON LAW, P.C., located at 3 West Carrillo
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Street, Suite 216, Santa Barbara, CA 93101. I am legal counsel to Plaintiffs herein and I am the
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attorney primarily responsible for representing Plaintiffs in this matter.
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1
_______________________________________________________________________________________________________
_
SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION
FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS
1 2. The following facts are known to me personally and, if called upon, I could
2 competently testify to them.
3 3. This supplementary declaration is being filed for the purpose of including email
4 correspondence concerning the discovery responses and documents which have been provided to
5 date to Mr. Kroes and counsel for the other named defendants in this case.
6 4. Attached as EXHIBIT 1 is a true and correct copy of my email to Mr. Kroes on
7 December 18, 2023, which included email communications from and by and between my clients
8 from 2017-2023. This was the initial production of documents.
9 5. Although I had been in contact with Mr. Kroes regarding document production,
10 and even though there were still demurrer and motion to strike issues involved, and the case had
11 not even been set for trial, Mr. Kroes filed a motion to compel and for sanctions. As I was unable
12 to produce all of the documents requested prior to the date of the hearing on Mr. Kroes’ Motion
13 to Compel and for Sanctions, I submitted to this Court’s ruling regarding Mr. Kroes’ motion..
14 6. Thereafter, I asked Mr. Kroes if he would be willing to allow the further document
15 production to be provided by January 15, 2024. At the time, I failed to realize that January 15,
16 2024 was a holiday and, as such, I would not have any help putting the document production
17 together.
18 7. I then emailed Mr. Kroes to inform him that I was still working on the document
19 production and would produce more documents one day later, on January 16, 2024.
20 8. I worked as diligently as possible to provide substantial additional discovery on
21 January 16, 2024. Due to the volume of the documents requested and provided, I set up a file
22 sharing service through Box.com (similar to dropbox).
23 9. I uploaded additional documents and media files to Box.com on January 16, 2024.
24 Once these additional responsive documents were uploaded, I emailed Mr. Kroes and other
25 counsel alerting them to the same and providing access to Box.com to allow Mr. Kroes and other
26 counsel to view and download such documents. Attached as EXHIBIT 2 is a true and correct
27 copy of my January 16, 2024 email in reference to the foregoing, wherein I state:
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2
_______________________________________________________________________________________________________
_
SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION
FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS
1 I have sent a shared link to Mr. Kroes and David Napper as to documents.
I was unable to upload the outlook emails I have from my old firm (Fell, Marking) into
2
Box so I put them on a flash drive. I dropped the flash drive at Kroes’ office this afternoon.
3 I will mail the flash drive to Mr. Napper's office. I will likely be adding supplementary
documents to the Box drive as I obtain them. I will let you know when anything new is
4 added. You should be able to access the box directory but let me know if there are any
issues.
5
6
10. Attached as EXHIBIT 3 is another email sent on January 16, 2024, informing
7
counsel:
8
I just added a one drive file containing all of the conservatorship and TRO pleadings and
9 related documents. I also added the bates stamped documents that were produced with the
10
original discovery responses.
11. Attached as EXHIBIT 4 is the email I sent to Mr. Kroes regarding ongoing
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discovery and also his misplaced reliance on the legal authority cited in the demurrer filed by him
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to the Second Amended Complaint, which states:
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Chris:
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I wanted to let you know I will have a thumb drive dropped at your office today with
the media files. Also, the response to the Request for Production for Rebecca Morin
16 requires revision. That will happen today as well. I believe the responses are complete
and I have provided substantive responses and documents. I think the only information
17
not included in response to the form interrogatories is the contact information for the
18 witnesses identified. I just hired a paralegal and she is putting a contact list together,
which will be sent shortly.
19
Also, when we last spoke, I indicated that it is my belief that your reliance on the
20
attached Hernandez case is misplaced as to claims brought on behalf of Rosemary
21 Leahy. The attached case of Tzolov v. International Jet Leasing Inc. is clearly
distinguishable and directly on point as to this issue. The holding in Tzolov is as
22 follows:
23
When an individual has been injured so severely as to be rendered “ ‘incapable of
24 caring for [his or her] property or transacting business, or understanding the nature or
effects of [his or her] acts' ” (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1027,
25
242 Cal.Rptr. 368, quoting from Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562,
26 571, 66 Cal.Rptr. 659), California has followed the general rule that the period of
the statute of limitations applicable to the incompetent's action for the injuries will not
27 begin so long as the incompetence continues. (Code Civ.Proc., § 352, subd. (a)2;
28
Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 231–232, 36 Cal.Rptr. 537; 3 Witkin,
Cal.Procedure (3d ed. 1985) Actions, § 485, p. 515.) When the injuries have apparently
3
_______________________________________________________________________________________________________
_
SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION
FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS
rendered the potential plaintiff permanently incompetent, should appointment of a
1
guardian ad litem to maintain the incompetent's action start the statutory period? We
2 conclude it should not.
3 12. Attached as EXHIBIT 5 is my December 26, 2023 to Mr. Kroes requesting that
4 we set a time to meet and confer as to the remaining documents that were requested pursuant to
5 the Request for Production of Documents, Set One, served on both plaintiffs, which states:
6 Chris:
I can meet and confer on this matter this afternoon or tomorrow.
7 And work on any corrections or supplements in document production this week. Can you
8
take the motions off calendar tomorrow and we can discuss sanctions?
David
9
13. Attached as EXHIBIT 6 is email correspondence between myself and Mr. Kroes
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regarding the flash drive I hand delivered to his office containing over 600 emails by and among
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me and my clients. Although Mr. Kroes states that the flash drive contained no documents, that
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is not true. The emails provided were provided in Microsoft Outlook format and simply needed
13
to be opened using Outlook. The Declaration of Esmeralda Murillo from Mr. Kroes’ office
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confirms the same. The emails were provided in the manner in which they r were kept and could
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have easily been opened using Microsoft Outlook, which is readily and easily accessible.
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14. As explained in prior submissions to this Court, as I transitioned from my old firm
17
to Rimon Law, P.C., I had to become accustomed to Rimon’s file-sharing protocols. Rimon Law
18
has limitations on sharing files with outside parties or organizations. As such, on December 8,
19
2023, I emailed Mr. Kroes as follows:
20
21 Chris:
I have an IT person coming in today to help me figure out how to get the media files
22
onto a flash drive that will not have any access issues. If that does not work, I am
23 meeting with my clients tomorrow at 10am and they will bring the files on a flash
drive that they create and will not have any encryption or other issues.
24
Are you in the office tomorrow to discuss the other discovery matters?
25
David
26 A true and correct copy of that email is attached as EXHIBIT 7, incorporated herein by
27 reference.
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4
_______________________________________________________________________________________________________
_
SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION
FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS
1 15. Attached as EXHIBITS 8 and 9 are emails I sent on January 16, 2023 to Mr.
2 Kroes and other opposing counsel, informing them:
3
I have sent a shared link to Chris Kroes and David Napper as to documents.
4 I was unable to upload the outlook emails I have from my old firm (Fell, Marking)
into Box so I put them on a flash drive. I dropped the flash drive at Kroes office this
5 afternoon. I will mail the flash drive to Mr. Napper’s office. I will likely be adding
supplementary documents to the Box drive as I obtain them. I will let you know when
6 anything new is added. I will likely be adding supplementary documents to the Box
drive as I obtain them. I will let you know when anything new is added. You should
7 be able to access the box directory but let me know if there are any issues.
8
16. One day after producing the above-referenced documents, on January 17, 2024, I
9
received a so-called “meet and confer: letter from Mr. Kroes demanding further and/or amended
10
discovery responses. Mr. Kroes was not attempting to meet and confer but making demands as to
11
what he believed to be non-code compliant responses. Attached as EXHIBIT 10 is the email
12
exchange between myself and Mr. Kroes from January 17, 2024. First. Mr. Kroes claims the flash
13
drive I hand delivered to his office was blank. This is not true and contradicted by Ms. Murrillo
14
from Mr. Kroes’ office, who admits there were emails in Microsoft Outlook format, that could
15
have easily been opened using the Outlook program.
16
17. Attached as Exhibit 11 is the report from “Box.Com” showing the volume of
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documents and other discovery items provided and corresponding dates. Contrary to Mr. Kroes’
18
claims, a substantial amount of documents and audio and video media have been provided.
19
18. While there are additional documents to be provided, the production is
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substantially complete.
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19. This case is set for trial in about 11 months from now and, as of this date, Mr. Kroes
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has received a substantial amount of discovery. The supplementary discovery to be provided will
23
not relieve his clints of their liability in this case. In fact, all of the discovery reinforces the claims
24
against Mr. Kroes’ clients.
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20. While issue and evidentiary sanctions are clearly inappropriate here, I do not
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believe monetary sanctions are wither, as I have regularly communicated with Mr. Kroes and,
27
given the volume of the discovery requested, and all other relevant facts and circumstances, I ask
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the Court to deny Mr. Kroes’ motion in its entirety.
5
_______________________________________________________________________________________________________
_
SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION
FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS
1 I declare under penalty of perjury under the laws of the State of California that the
2 foregoing is true and correct. Executed at Santa Barbara, California on February 20, 2024.
3
/s/ David J. Tappeiner
4 ________________________________
David J. Tappeiner
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SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION
FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS
PROOF OF SERVICE
1
2 MARK SELLARS vs PATRICK LEAHY, ET AL.
Santa Barbara County Superior Court - Anacapa Division - Case No. 20CV04132
3
I am employed in the County of Santa Barbara, State of California. I am over the age of
4 18 and not a party to the within action; my business address is 3 West Carrillo Street, Suite 216,
Santa Barbara, California 93101. My electronic service address is
5 david.tappeiner@rimonlaw.com
6
On February 2, 2024, I caused to be served the foregoing document described
7 as: SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN
OPPOSITION TO NOTICE OF MOTION AND MOTION FOR ISSUE AND
8 EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS on the
persons below by delivering the original true copies thereof by email, as
9
follows:
10
Attorney for Defendants Channe Coles and Attorneys for Defendants Patricia Wollum
11 Law Office of Channe Coles and Susan Reynolds
R. Chris Kroes, Esq. Gregory K. Sabo, Esq.
12
The Law Offices of McCarthy & Kroes David A. Napper, Esq.
13 125 East Victoria St. Suite A Benjamin Nachimson
Santa Barbara, CA 93101 Chapman Glucksman
14 Chris@mccarthykroes.com 11900 West Olympic Boulevard, Suite 800
amanda@mccarthykroes.com Los Angeles, CA 90064-0704
15
esmeralda@mccarthykroes.com service@cgdrlaw.com
16 dnapper@cgdrlaw.com
gsabo@cgdrlaw.com;
17 Defendant – in Pro Per
Patrick Leahy Defendant – in Pro Per
18
961 Randolph Road Patrick Leahy
19 Santa Barbara, CA 93111 c/o Knight Broadcasting
patsprod@yahoo.com 1101 S. Broadway STE C
20 Santa Maria, CA 93454
21
BY EMAIL-PDF TRANSMISSION: I electronically served the document listed above to
22 the electronic service addresses of the persons as shown above.
23 (STATE) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
24
25 Executed on February 20, 2024, at Santa Barbara, California.
26 /s/ David J. Tappeiner
27
David J. Tappeiner
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7
_______________________________________________________________________________________________________
_
SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION
FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS
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________________________________________________________________________________________________________
PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE;
LEGAL MALPRACTICE; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND
NEGLIGENCE
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Darrel E. Parker, Executive Officer 2/20/2024 4:13 PM 1 David J. Tappeiner (SBN 243979) By: Narzralli Baksh , Deputy RIMON LAW, P.C. 2 3 West Carrillo Street, Suite 216 Santa Barbara, CA 93101 3 Telephone: (805) 892-7177 Email: David.Tappeiner@rimonlaw.com 4 Attorneys for Plaintiffs, Mark Sellars, Individually and as Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of 5 Rosemary Free Leahy 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION 8 9 MARK SELLARS, individually and as ) Case No. 20CV04132 Trustee of the Rosemary Free Trust u/d/t ) 10 dated September 13, 2000; and REBECCA ) [Assigned for all purposes to Hon. Thomas MORIN, Conservator of the Estate and ) P. Anderle] 11 Person of Rosemary Free Leahy, ) ) SUPPLEMENTARY 12 Plaintiffs, ) DECLARATION OF DAVID J. ) 13 vs. ) TAPPEINER IN OPPOSITION ) TO NOTICE OF MOTION AND 14 PATRICK LEAHY; CHANNE COLES, ) MOTION FOR ISSUE AND THE LAW OFFICE OF CHANNE G. ) EVIDENTIARY 15 COLES, a California corporation; ) SANCTIONS, AS WELL AS PATRICIA WOLLUM; SUSAN ) 16 REYNOLDS; HONOR HOME CARE ) MONETARY SANCTIONS SERVICES CALIFORNIA, INC., a ) 17 Delaware corporation doing business in ) Complaint Filed: California; and DOES 1-10, inclusive, ) 12/11/2020 18 ) Defendants. ) 19 ) Third Amended Complaint Filed: ) January 12, 2024 20 ) ) Date: February 21, 2024 21 ) Time: 10:00 a.m. ) Dept.: 3 22 23 I, David J. Tappeiner, hereby declare as follows: 24 1. I am an attorney duly licensed to practice law in the State of California, under State 25 Bar No. 243979. I am a partner in the firm of RIMON LAW, P.C., located at 3 West Carrillo 26 Street, Suite 216, Santa Barbara, CA 93101. I am legal counsel to Plaintiffs herein and I am the 27 attorney primarily responsible for representing Plaintiffs in this matter. 28 1 _______________________________________________________________________________________________________ _ SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS 1 2. The following facts are known to me personally and, if called upon, I could 2 competently testify to them. 3 3. This supplementary declaration is being filed for the purpose of including email 4 correspondence concerning the discovery responses and documents which have been provided to 5 date to Mr. Kroes and counsel for the other named defendants in this case. 6 4. Attached as EXHIBIT 1 is a true and correct copy of my email to Mr. Kroes on 7 December 18, 2023, which included email communications from and by and between my clients 8 from 2017-2023. This was the initial production of documents. 9 5. Although I had been in contact with Mr. Kroes regarding document production, 10 and even though there were still demurrer and motion to strike issues involved, and the case had 11 not even been set for trial, Mr. Kroes filed a motion to compel and for sanctions. As I was unable 12 to produce all of the documents requested prior to the date of the hearing on Mr. Kroes’ Motion 13 to Compel and for Sanctions, I submitted to this Court’s ruling regarding Mr. Kroes’ motion.. 14 6. Thereafter, I asked Mr. Kroes if he would be willing to allow the further document 15 production to be provided by January 15, 2024. At the time, I failed to realize that January 15, 16 2024 was a holiday and, as such, I would not have any help putting the document production 17 together. 18 7. I then emailed Mr. Kroes to inform him that I was still working on the document 19 production and would produce more documents one day later, on January 16, 2024. 20 8. I worked as diligently as possible to provide substantial additional discovery on 21 January 16, 2024. Due to the volume of the documents requested and provided, I set up a file 22 sharing service through Box.com (similar to dropbox). 23 9. I uploaded additional documents and media files to Box.com on January 16, 2024. 24 Once these additional responsive documents were uploaded, I emailed Mr. Kroes and other 25 counsel alerting them to the same and providing access to Box.com to allow Mr. Kroes and other 26 counsel to view and download such documents. Attached as EXHIBIT 2 is a true and correct 27 copy of my January 16, 2024 email in reference to the foregoing, wherein I state: 28 2 _______________________________________________________________________________________________________ _ SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS 1 I have sent a shared link to Mr. Kroes and David Napper as to documents. I was unable to upload the outlook emails I have from my old firm (Fell, Marking) into 2 Box so I put them on a flash drive. I dropped the flash drive at Kroes’ office this afternoon. 3 I will mail the flash drive to Mr. Napper's office. I will likely be adding supplementary documents to the Box drive as I obtain them. I will let you know when anything new is 4 added. You should be able to access the box directory but let me know if there are any issues. 5 6 10. Attached as EXHIBIT 3 is another email sent on January 16, 2024, informing 7 counsel: 8 I just added a one drive file containing all of the conservatorship and TRO pleadings and 9 related documents. I also added the bates stamped documents that were produced with the 10 original discovery responses. 11. Attached as EXHIBIT 4 is the email I sent to Mr. Kroes regarding ongoing 11 discovery and also his misplaced reliance on the legal authority cited in the demurrer filed by him 12 to the Second Amended Complaint, which states: 13 Chris: 14 15 I wanted to let you know I will have a thumb drive dropped at your office today with the media files. Also, the response to the Request for Production for Rebecca Morin 16 requires revision. That will happen today as well. I believe the responses are complete and I have provided substantive responses and documents. I think the only information 17 not included in response to the form interrogatories is the contact information for the 18 witnesses identified. I just hired a paralegal and she is putting a contact list together, which will be sent shortly. 19 Also, when we last spoke, I indicated that it is my belief that your reliance on the 20 attached Hernandez case is misplaced as to claims brought on behalf of Rosemary 21 Leahy. The attached case of Tzolov v. International Jet Leasing Inc. is clearly distinguishable and directly on point as to this issue. The holding in Tzolov is as 22 follows: 23 When an individual has been injured so severely as to be rendered “ ‘incapable of 24 caring for [his or her] property or transacting business, or understanding the nature or effects of [his or her] acts' ” (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1027, 25 242 Cal.Rptr. 368, quoting from Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 26 571, 66 Cal.Rptr. 659), California has followed the general rule that the period of the statute of limitations applicable to the incompetent's action for the injuries will not 27 begin so long as the incompetence continues. (Code Civ.Proc., § 352, subd. (a)2; 28 Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 231–232, 36 Cal.Rptr. 537; 3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 485, p. 515.) When the injuries have apparently 3 _______________________________________________________________________________________________________ _ SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS rendered the potential plaintiff permanently incompetent, should appointment of a 1 guardian ad litem to maintain the incompetent's action start the statutory period? We 2 conclude it should not. 3 12. Attached as EXHIBIT 5 is my December 26, 2023 to Mr. Kroes requesting that 4 we set a time to meet and confer as to the remaining documents that were requested pursuant to 5 the Request for Production of Documents, Set One, served on both plaintiffs, which states: 6 Chris: I can meet and confer on this matter this afternoon or tomorrow. 7 And work on any corrections or supplements in document production this week. Can you 8 take the motions off calendar tomorrow and we can discuss sanctions? David 9 13. Attached as EXHIBIT 6 is email correspondence between myself and Mr. Kroes 10 regarding the flash drive I hand delivered to his office containing over 600 emails by and among 11 me and my clients. Although Mr. Kroes states that the flash drive contained no documents, that 12 is not true. The emails provided were provided in Microsoft Outlook format and simply needed 13 to be opened using Outlook. The Declaration of Esmeralda Murillo from Mr. Kroes’ office 14 confirms the same. The emails were provided in the manner in which they r were kept and could 15 have easily been opened using Microsoft Outlook, which is readily and easily accessible. 16 14. As explained in prior submissions to this Court, as I transitioned from my old firm 17 to Rimon Law, P.C., I had to become accustomed to Rimon’s file-sharing protocols. Rimon Law 18 has limitations on sharing files with outside parties or organizations. As such, on December 8, 19 2023, I emailed Mr. Kroes as follows: 20 21 Chris: I have an IT person coming in today to help me figure out how to get the media files 22 onto a flash drive that will not have any access issues. If that does not work, I am 23 meeting with my clients tomorrow at 10am and they will bring the files on a flash drive that they create and will not have any encryption or other issues. 24 Are you in the office tomorrow to discuss the other discovery matters? 25 David 26 A true and correct copy of that email is attached as EXHIBIT 7, incorporated herein by 27 reference. 28 4 _______________________________________________________________________________________________________ _ SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS 1 15. Attached as EXHIBITS 8 and 9 are emails I sent on January 16, 2023 to Mr. 2 Kroes and other opposing counsel, informing them: 3 I have sent a shared link to Chris Kroes and David Napper as to documents. 4 I was unable to upload the outlook emails I have from my old firm (Fell, Marking) into Box so I put them on a flash drive. I dropped the flash drive at Kroes office this 5 afternoon. I will mail the flash drive to Mr. Napper’s office. I will likely be adding supplementary documents to the Box drive as I obtain them. I will let you know when 6 anything new is added. I will likely be adding supplementary documents to the Box drive as I obtain them. I will let you know when anything new is added. You should 7 be able to access the box directory but let me know if there are any issues. 8 16. One day after producing the above-referenced documents, on January 17, 2024, I 9 received a so-called “meet and confer: letter from Mr. Kroes demanding further and/or amended 10 discovery responses. Mr. Kroes was not attempting to meet and confer but making demands as to 11 what he believed to be non-code compliant responses. Attached as EXHIBIT 10 is the email 12 exchange between myself and Mr. Kroes from January 17, 2024. First. Mr. Kroes claims the flash 13 drive I hand delivered to his office was blank. This is not true and contradicted by Ms. Murrillo 14 from Mr. Kroes’ office, who admits there were emails in Microsoft Outlook format, that could 15 have easily been opened using the Outlook program. 16 17. Attached as Exhibit 11 is the report from “Box.Com” showing the volume of 17 documents and other discovery items provided and corresponding dates. Contrary to Mr. Kroes’ 18 claims, a substantial amount of documents and audio and video media have been provided. 19 18. While there are additional documents to be provided, the production is 20 substantially complete. 21 19. This case is set for trial in about 11 months from now and, as of this date, Mr. Kroes 22 has received a substantial amount of discovery. The supplementary discovery to be provided will 23 not relieve his clints of their liability in this case. In fact, all of the discovery reinforces the claims 24 against Mr. Kroes’ clients. 25 20. While issue and evidentiary sanctions are clearly inappropriate here, I do not 26 believe monetary sanctions are wither, as I have regularly communicated with Mr. Kroes and, 27 given the volume of the discovery requested, and all other relevant facts and circumstances, I ask 28 the Court to deny Mr. Kroes’ motion in its entirety. 5 _______________________________________________________________________________________________________ _ SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS 1 I declare under penalty of perjury under the laws of the State of California that the 2 foregoing is true and correct. Executed at Santa Barbara, California on February 20, 2024. 3 /s/ David J. Tappeiner 4 ________________________________ David J. Tappeiner 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 _______________________________________________________________________________________________________ _ SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS PROOF OF SERVICE 1 2 MARK SELLARS vs PATRICK LEAHY, ET AL. Santa Barbara County Superior Court - Anacapa Division - Case No. 20CV04132 3 I am employed in the County of Santa Barbara, State of California. I am over the age of 4 18 and not a party to the within action; my business address is 3 West Carrillo Street, Suite 216, Santa Barbara, California 93101. My electronic service address is 5 david.tappeiner@rimonlaw.com 6 On February 2, 2024, I caused to be served the foregoing document described 7 as: SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO NOTICE OF MOTION AND MOTION FOR ISSUE AND 8 EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS on the persons below by delivering the original true copies thereof by email, as 9 follows: 10 Attorney for Defendants Channe Coles and Attorneys for Defendants Patricia Wollum 11 Law Office of Channe Coles and Susan Reynolds R. Chris Kroes, Esq. Gregory K. Sabo, Esq. 12 The Law Offices of McCarthy & Kroes David A. Napper, Esq. 13 125 East Victoria St. Suite A Benjamin Nachimson Santa Barbara, CA 93101 Chapman Glucksman 14 Chris@mccarthykroes.com 11900 West Olympic Boulevard, Suite 800 amanda@mccarthykroes.com Los Angeles, CA 90064-0704 15 esmeralda@mccarthykroes.com service@cgdrlaw.com 16 dnapper@cgdrlaw.com gsabo@cgdrlaw.com; 17 Defendant – in Pro Per Patrick Leahy Defendant – in Pro Per 18 961 Randolph Road Patrick Leahy 19 Santa Barbara, CA 93111 c/o Knight Broadcasting patsprod@yahoo.com 1101 S. Broadway STE C 20 Santa Maria, CA 93454 21 BY EMAIL-PDF TRANSMISSION: I electronically served the document listed above to 22 the electronic service addresses of the persons as shown above. 23 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 24 25 Executed on February 20, 2024, at Santa Barbara, California. 26 /s/ David J. Tappeiner 27 David J. Tappeiner 28 7 _______________________________________________________________________________________________________ _ SUPPLEMENTARY DECLARATION OF DAVID J. TAPPEINER IN OPPOSITION TO MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS, AS WELL AS MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 ________________________________________________________________________________________________________ PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR ELDER ABUSE; FINANCIAL ELDER ABUSE; LEGAL MALPRACTICE; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: AND NEGLIGENCE