Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
1 LAW OFFICES OF Darrel E. Parker, Executive Officer
McCARTHY & KROES 2/5/2024 2:30 PM
2 125 E. VICTORIA STREET, SUITE A By: Terri Chavez , Deputy
SANTA BARBARA, CA 93101
(805) 564-2085
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4 R. Chris Kroes, SBN 134935
5 Attorneys for Defendants: CHANNE COLES, and
THE LAW OFFICE OF CHANNE G. COLES, a California corporation
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FORTHECOUNTYOFSANTABARBARA
9
10 MARK SELLARS, individually and as Trustee CASE NO.: 20CV04132
of the Rosemary Free Trust u/d/t dated
11 September 13, 2000, and REBECCA MORIN, REPLY TO OPPOSITION TO OSC RE
Conservator of the Estate and Person of CONTEMPT; DECLARATION OF
<§ 12 R. CHRIS KROES; DECLARATION OF
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Rosemary Free Leahy,
t.1.1 !- °' AMANDA LOPEZ-SOLIS
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Complaint Filed: 12/11/20
Third Amended Complaint Filed: 1/12/24
<>cc 15 PATRICK LEAHY; CHANNE COLES, THE
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California corporation; PATRICIA WOLLUM;
17 SUSAN REYNOLDS; HELP UNLIMITED, a Date: February 14, 2024
California corporation; and DOES 1 -10, Time: 10:00 a.m.
18 inclusive, Dept: 3
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Defendants.
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21 COMES NOW Defendants CHANNE COLES, and THE LAW OFFICE OF CHANNE G. COLES,
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with this Reply as follows:
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This Court issued an OSC re: contempt as against Rebecca Morin, Mark Sellars, and their
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counsel of record, David Tappeiner for their failure to comply with the Court order dated December
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27, 2023 regarding responding to a Notice to Produce and Form Interrogatories. The plaintiffs did
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27 not comply and still have not complied with that Court order. None of the "links" he has sent have
28 1
REPLY TO OPPOSITION TO OSC RE: CONTEMPT;
DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS
1 ever functioned and none of the thumb drives he provided had any documents on them. On each
2 occasion, Mr. Tappeiner was promptly advised of same, but he refused to correct the problems or
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provide the data. See attached declarations. There has been excuse after excuse in this case, but the
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plaintiffs and their counsel refuse to comply with their discovery obligations and refuse to comply
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with the Court orders regarding same. A finding of contempt therefore is appropriate.
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7
OVERVIEW
8 The opposition to the OSC re: Contempt is at best misplaced. It starts out: "Plaintiff and
9 cross-defendant Hub City Solid Waste Services Inc., by its attorney or record in this case submits
10 the following ... " Apparently Mr. Tappeiner is confusing this with another case. Hub City Solid
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Waste Services is not a party to this lawsuit. Plaintiffs counsel then goes on for pages, asserting
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t.lJ !- °' ''abuse of the discovery process" and arguing about a demurrer, none of which have any validity and
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ad~~ none of which have anything to do with an OSC re Contempt. Contrary to the assertions of Mr.
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16 declarations and proofs of service. None of them have complied with the Court's order. Failure to
17 comply with a court order regarding civil discovery constitutes contempt. (Koshak v. Malek (2011)
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200 Cal.App.4th 1540, 1548-1549.)
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CONTEMPT AND THE CHRONOLOGY OF EVENTS
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1. On December 27, 2023, this Court issued a court order, requiring Plaintiffs, Mark Sellars
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and Rebecca Morin; and their counsel, David Tappeiner, to fully respond, without
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23 objection, to the Form Interrogatories, Set 1 and Demand for Production of Documents. 1
24 Since that date, neither the plaintiffs, nor their counsel have provided ANY documents
25 responsive to the Court's order on the Notice to Produce, nor have they properly
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27
1
This was issued after months of stalling for basic discovery which was served in September of 2023.
28 2
REPLY TO OPPOSITION TO OSC RE: CONTEMPT;
DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS
1 responded to the form interrogatories. See attached declarations of R. Chris Kroes and
2 Amanda Lopez-Solis.
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2. On January IS, 2024, Mr. Tappeiner sent over incomplete, non-code compliant
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responses to the Form Interrogatories which were and are in violation of the Court order.
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He also sent over non-compliant responses to the Notice to Produce, providing a blank
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7 thumb drive (producing no documents whatsoever), and asserting attorney-client
8 privilege even though the Court order provided that all objections had been waived. Mr.
9 Tappeiner was advised of his failure to comply in an email sent to him on the morning of
IO January 17, 2024. He promised to remedy the documents (only) but has never done so,
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even up to the date of this Reply. See attached declarations.
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t.Ll f- °' 3. On Friday morning, February 2, 2024, Mr. Tappeiner sent an email stating that he had
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now been able to produce all the documents. We emailed him back that same day,
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16 4. On Friday, February 2, 2024, at 3:00 p.m. Mr. Tappeiner sent over an email to our
17 office, supposedly with a link to documents. However, as before, the link was invalid and
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not able to be opened. We advised Mr. Tappeiner of same but he has not rectified or
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provided a link that works, a thumb drive with any data, or physical paper documents
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responsive to the Court's order.
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5. As of February 5, 2024, we still have not received Code-compliant responses to the
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23 Form Interrogatories ordered by the Court.
24 As of the date of this reply, neither the plaintiffs nor their counsel have complied with the
25 Court order. There have been no documents produced, and no code-compliant responses to the Form
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Interrogatories.
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REPLY TO OPPOSITION TO OSC RE: CONTEMPT;
DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS
1 EXCUSES DO NOT MATTER IN A CONTEMPT
2 The opposition to the OSC re contempt consists almost entirely of a myriad of excuses by
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Mr. Tappeiner as to why he has failed to comply with basic discovery which was due in October of
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2023. It is one excuse after another. There is no declaration from either Rebecca Morin or Mark
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Sellars regarding same. Contempt does not care about excuses. (Clear Lake Water Co. v. Superior
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Court (1939) 33 Cal.App.2d 710.) If he is too busy to handle a case, or comply with basic discovery,
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8 then Mr. Tappeiner should not be filing meritless lawsuits against local counsel.
9 Plaintiffs counsel asserts that contempt is a drastic sanction which is rarely justified, citing
10 (In re De La Parra (1986) 184 Cal.App.3d 139.) Mr. Tappeiner however has mis-cited the holding
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of that case. In De La Parra, the trial judge incarcerated the petitioner for a period of 15 days for
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16 to the hearing.
17 6. This Court then issued an OSC re: contempt as against Rebecca Morin, Mark Sellars, and
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their counsel of record, David Tappeiner for their failure to comply with the Court order
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dated December 27, 2023 regarding responding to a Notice to Produce and Form
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Interrogatories.
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7. Despite the December 27, 2023 Court order and despite the OSC re: Contempt, the plaintiffs
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23 Rebecca Morin and Mark Sellars as well as their counsel, David Tappeiner, still have not
24 complied with that Court order. None of the electronic "links" Mr. Tappeiner has ever sent
25 have ever functioned, nor have the thumb drives he provided had any documents on them
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responsive to the Court's order.
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REPLY TO OPPOSITION TO OSC RE: CONTEMPT;
DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS
1 8. On each occasion, when he has claimed to electronically provide information, Mr. Tappeiner
2 was promptly advised of same by our office, but he refused to correct the problems or
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provide the data.
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9. The Court ordered Mr. Tappeiner and his clients to provide full and verified, complete
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responses to the Form Interrogatories without objection and verified, and complete responses
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to the Notice to Produce without objection by January 10, 2024.
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8 10. January 15, 2024, came and went without actual compliance with the Court's order. Mr.
9 Tappeiner also sent over responses to Form Interrogatories but they failed to comply with the
10 Court's order. He has not corrected those deficiencies despite our requests. On January 16,
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2024, I sent him an email, attached hereto as Exhibit 3.
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°' 11. As set forth in my original declaration, Mr. Tappeiner also sent over a thumb drive and a link
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a'd -c=:: to documents. The thumb drive he provided us was blank and the link he provided required
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Ci=::_< an access code, which was not included. He likewise made an assertion of "attorney client
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16 privilege" which was already waived per the Court order. He never provided a new thumb
17 drive or a link that functioned notwithstanding that we demanded same from him in
18 writing on January 17, 2024. He promised to remedy the documents but has never done so,
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even up to the date of this Reply.
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12. On January 17, 2024, I sent him yet another email, a true and correct copy of which is
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attached as Exhibit 4, regarding his failure to comply with the Court order. On January 24,
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23 2024, I sent an email to Mr. Tappeiner regarding his production of documents response (with
24 no documents attached), a true and correct copy of which is attached as Exhibit 5.
25 13. On Friday morning, February 2, 2024, Mr. Tappeiner sent an email stating that he had now
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been able to produce all the documents. We emailed him back that same day, advising that he
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REPLY TO OPPOSITION TO OSC RE: CONTEMPT;
DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS
had not sent over any documents to our office. See a true and correct copy of san1e attached
2 as Exhibit 6.
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14. On Friday afternoon, February 2, 2024, Mr. Tappeiner sent over another email to our office,
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supposedly with a link to documents. However, as before, the link was invalid and not able to
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be opened. We advised Mr. Tappeiner of same on Monday morning, February 5, 2024. See
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Declaration of Amanda Lopez-So lis.
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8 15. As of the writing of this Reply, we still have not received code-compliant responses to the
9 Form Interrogatories ordered by the Court or the Notice to Produce.
10 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
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and correct. Executed this 5th day of February, 2024, at Santa Barbara, California.
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REPLY TO OPPOSITION TO OSC RE: CONTEMPT;
DECLARAT ION OF R. CHR IS KROES; DECLA RATION OF AMANDA LOPEZ-SOLIS
EXHIBIT “1”
Allomey or Parry wirhouc Arromey: For Co11rr Use Only
R. CHRIS KROES , Bar# J34935
MCCARTHY & KROES
125 EAST VICTORIA ST.
Santa Barbara, CA 9310 I
Telep/Jorie No: 805 564-2085 FAX No: 564-8891
'Ref No. or File No ..
Auomey for: Defendanl
l11serr 11ame o/Courr. a11d J11dicia/ Disrricr and Branch Co11rr:
SANTA BARBARA SUPERIOR COURT- ANACAPA DIVISION
Plai11tiff MARK SELLARS, ET AL.
I
Defe11da111: PATRICK LEAHY, ET AL.
PROOF OF SERVICE Hearing Dore: rme: I' l;pr/Div:
Case Number:
- Wed, Feb. 14, 2024 10:00AM 20CV04J32
I. At the time of service [ was at least I 8 years of age and not a party to this action.
2. I served copies of Lhe -; ORDER TO SHOW CAUSE RE: CONTEMPT; DECLARATION OF R. CHRIS KROES ; DECLARATION
OF ESMERALDA MURfLLO; DECLARATION OF ESMERALDA MURfLLO ISO ORDER TO SHOW CAUSE RE:
CONTEMPT; ORDER TO SHOW CAUSE RE: CONTEMPT.
3. a. Parry served: REBECCA MORIN
b. Person served: party in item 3.a., W hite, Female, 55 Years Old, Brown Hair, 5 Feet 5 Inches, 160
Pounds
4. Address where rhe parry was served: 8080 Bayberry Court
C ITRUS HEIGHTS. CA 95610
5. I served the party:
a. by personal service. I personally delivered the documents listed in item 2 to the pany o r person authorized to receive
process for the party ( I ) on: Tue .. Jan. 23. 2024 (2) al: 5:42PM
7. Person Who Served Papers: Recoverable Cost Per CCP I033.5ta)(4)(I3)
a. CELINA ALVARADO d. The Fee fo r Service was: 135.00
b. UNITED PROCESS SERVERS, Inc. e. I am: (3) registered Cali fornia process server
142 East Figueroa Street (i) Owner
San La Barbara, Cl\ 93 IO I (ii) Registration No. : PS 194
C. 805 966-2102 (iii) Counry: Tulare
8. I declare under penalty of perjury under the laws of the Stale of California tlza
Date: Wed, Jan. 24, 2024
),uilicial CQ_uncil Form PROOF OF SERVICE
Ruic 2.bO.(a)&(b) Rev January 1, 2007 kroes.241477
EXHIBIT “2”
FOR COURl'USE OMLY
Law Offices of McCarthy & Kroes
125 E. Victoria St., Ste A
Santa Barbara, CA 93101
EMAIL:
ATTORNEY FOR:
NAMI Or COURr, JUDICIAL DISTRICT ot BRANCH COURl', IP MY:
Santa Barbara County Superior Court-Anacapa Division
1100 Anacapa St.
Santa Barbara, CA 93101
PlADfflW: CQURI' CASE NO:
Sellars et al.
DEFENDANT:
20CV04132
Leahy et al.
L&\IY!NG m:FICER FILS NO:
Proof of Service 2024000188
1. At the time of the service I was at least 18 years of age and not a party to this action.
2. I served copies of the:
f. other (specify documents):
Exhibit 1, Exhibit 2, Exhibit 3, Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E, Exhibit F, Notice of Order
to Show Cause Re: Contempt; Declaration of R. Chris Kroes
3. a. Party SeNed (specify name of party as shown on documents served):
Mark Sellars
4. Address where party was served: Sheriffs Civil Bureau
1105 Santa Barbara St.
P.O.Box690
Santa Barbara, CA 93101
5. I served the party:
a. by personal service. I personally delivered the documents listed in Item 2 to the party or person authorized to receive
service of process for U,e party (1) on: 01/24/2024 at 3:00 PM.
7. Person who served the papers:
a. Name: Deputy D. Frledll, 0412
b. Address: Sheriffs Clvfl Bureau, 1105 Santa Barbara St., P.O. Box 690, Santa Barbara, CA 93101
c. Telephone number: (805) 568.·2900
d. The fee for service was: $50.00
9. I am a Callfomla sheriff or marshal and I certify Ulat the foregoing Is true and correct.
Date: Wednesday, January 24, 2024
Hearing: 02/14/2024 10:00 AM In Dept/Div: 3
by: ~-
Sheriffs Authorized Agent
Bill Brown
Judlctal Council Form POS-040 Attomay/Plaln11ff
(Cl CeunlySuito Sheriff. Toloosoll. Inc.
EXHIBIT “3”
Chris Kroes
From: Chris Kroes
Sent: Tuesday, January 16, 2024 1:42 PM
To: David J. Tappeiner; Esmeralda Murillo
Cc: Amanda Lopez-Solis
Subject: RE: Sellars v. Coles M +C
Attachments: 2024_01_ 16_0SC Draft.pdf
David:
There is an old expression that says: "Fool me once, shame on you. Fool me twice, shame on
me." Last time, with these very same documents, you told me this exact same thing four or five
times, (I'll have it for you tonite!). But you never did. Finally, I was forced to bring a motion to
compel because you never actually followed through on your promises to deliver the responses
and documents. I have already prepared and signed an OSC re contempt as against you and
your clients. A copy of same is attached.
You are past the court-ordered deadline. You are past the extension I granted, beyond the
court-ordered deadline. I need full and complete compliance today. That means a check for the
$2500 in sanctions delivered to my office before close of business today, and complete
compliance with the Court order today. If I do not have both, then we will fi le the OSC re:
Contempt first thing tomorrow morning, followed by a motion for evidentiary sanctions.
From: David J. Tappeiner
Sent: Tuesday, January 16, 2024 1:02 PM
To: Esmeralda Murillo
Cc: Chris Kroes ; Amanda Lopez-Solis
Subject: Re: Sellars v. Coles M+C
Please be advised that I am organizing documents in response to all pending discovery and downloading those
documents into Box (like Dropbox) and will send the link to the documents by tonight.
Supplemental responses to the original FROGS and RFPs to my clients wil l also be downloaded into Box or emailed
directly
David J. Tappeiner I Partner
RIMON PC
david.tappeiner@rimonlaw.com
701 Anacapa St., Suite B
Santa Barbara, CA 93101
Please note: I often dictate my emails and replies to emails. As such, please forgive any typos. If my email is unclear,
please let me know immediately. Thank you.
From: Esmeralda Murillo
Sent: Wednesday, January 10, 2024 1:48:55 PM
1
To: David J. Tappeiner
Cc: Chris Kroes ; Amanda Lopez-Solis
Subject: Se llars v. Coles M+C
Good afternoo n,
Please see the attached correspo ndence from R. Chris Kroes to David Tappei ner.
Thank you,
Esmeralda Murillo
Legal Assistant
McCarthy & Kroes
(805) 564-2085
2
EXHIBIT “4”
Chris Kroes
From: Chris Kroes
Sent: Wednesday, January 17, 2024 9:44 AM
To: David J. Tappeiner, Esmeralda Murillo; Amanda Lopez-Solis; gsabo@cgdrlaw.com;
Napper, David; service@cgdrlaw.com; patsprod@yahoo.com
Subjed: RE: Supplemental Discovery Responses
David:
You have utterly and completely failed to comply with the Court's order dated December 27, 2023. The order
required that you provide full and complete Code-compliant responses without objection to Set # 1 of the Form
Interrogatories and Set #1 of the Notice to Produce. On yesterday's date,just after 5:00 p.m. you emailed what
was supposed to be your response. They are deficient, and violative of the court order as follows:
FORM INTERROGATORIES AS TO REBECCA MORIN:
You only provided supplemental responses to #9.2, 12.1, 12.4 and 12.6. Even as to those responses, they are
deficient. Regarding Form Interrogatory 12.4, you made the same statement that you made before, and which I
wrote you about on December 29, 2023 as being inadequate. 12.4 is very specific and has four subparts. You
did not even attempt to comply, except to say they are being supplied herewith (and they were not). Even if had
been, you cannot say: "See another document." I need an answer to this question, in this response. You make
the same argument regarding 12.6, and for the same reasons as 12.4 above, it is not valid, and even if it were, it
has been waived.
FORM INTERROGATORIES AS TO MARK SELLARS:
You only provided supplemental responses to #9.2, 12.1, 12.4 and 12.6. Even as to those responses, they are
deficient. Regarding Form Interrogatory 12.4, you made the same statement that you made before, and which I
wrote you about on December 29, 2023 as being inadequate. 12.4 is very specific and has four subparts. You
did not even attempt to comply, except to say they are being supplied herewith (and they were not). Even if had
been, you cannot say: "See another document." I need an answer to this question, in this response. You make
the same argument regarding 12.6, and for the same reasons as 12.4 above, it is not valid, and even if it were, it
has been waived.
REQUEST FOR PRODUCTION OF DOCUMENTS AS TO REBECCA MORIN:
You provided a flash drive with nothing on it, and you provided us a link to a Rimon drop box without the
access code to open it. You literally gave us no documents yesterday. Regarding NTP #9, you asserted the
attorney client privilege. That has been waived, per the Court order.
REQUEST FOR PRODUCTION OF DOCUMENTS AS TO MARK SELLARS:
You provided a flash drive with nothing on it, and you provided us a link to a Rimon drop box without the
access code to open it. You literally gave us no documents yesterday.
You need to remedy all of these problems today. We need, per the court order, full and complete Code-
compliant verified responses without objection. Code compliant also means that the responses to the
documents correspond with the request. If you just send me a bunch of documents, that is insufficient. Ifl do
not have what the court ordered today, then we will file an Order to Show Cause re Contempt as against you
and your clients. Stop playing games and comply with the Court order. R. Chris Kroes
1
From: David J. Tappeiner
Sent: Tuesday, January 16, 2024 5:34 PM
To: Chris Kroes ; Esmera lda Murillo ; Amanda Lopez-Solis
; gsabo@cgdrlaw.com; Napper, David ; service@cgdrlaw.com;
patsprod@yahoo.com
Subject: RE: Supp lemental Discovery Responses
I just added a one drive file containing all of the conservatorship and TRO pleadings and related documents.
I also added the bates stamped documents that were produced with the original discovery responses.
David
From : David J.Tappeiner
Sent: Tuesday, January 16, 2024 5:11 PM
To: Chris Kroes ; Esmeralda Murillo ; Amanda Lopez-Solis
; gsabo@cgdrlaw.com; Napper, David ; service@cgdrla w.com;
patsprod@yahoo.com
Subject: RE: Supplemental Discovery Responses
I have sent a shared link to Chris Kroes and David Napper as to documents.
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 afternoon.
I wi ll mail the flash drive to Mr. Napper's office.
I wi ll 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 be able to access the box directory but let me know if there are any issues.
David
From: David J. Tappeiner
Sent: Tuesday, January 16, 2024 5:01 PM
To: Chris Kroes ; Esmeralda Murillo ; Amanda Lopez-Solis
; gsabo@cgdrlaw.com; Napper, David ; service@cgdrlaw.com;
patsprod@yahoo .com
Subject: Supplementa l Discovery Responses
See attached.
David J . Tappeiner I Partn
RIM ON PC
" , 2 -7 dav,d tdpo,::,n,; 'q?runo., 1aw co1"
J 1avd,1a y - c, S ·t , l' d-t '-1 1 J
www nmonlaw.com I See Our International Offices I Read Our Insights
Connect on Linked ln I Like us on Facebook
This e-mail is sent by a law firm and contains in formation that may be confidential or privile ged. If you have received this communication in error.
please reply to the sender (only) and then please delete this message from your in box as well as any copies. Thank you.
2
EXHIBIT “5”
LAW OFFICES OF
McCARTHY & KROES TELEPHONE
PATlUCK McCARTHY 125 EAST VI CTORIA STREET, SUITE A
patrick@mccarthykroes.com (805) 564-2085
SANTA BARBA RA. CALIFORN IA 93 101 FACSIMILE
R. CHRlS KROES w11 11• 111ccarth ykroes.co111
(805) 564-889 1
chris@mccarthykroes com
BRIANA E . McCARTHY
briana@mccarthykroes com
LINDA ELJAS-\'\'HEELOCK
1in1@mccarthykroes.com
RONALD ZONEN
ron@mccarthykroes.com
JAKE STODDARD
Senior Counsel
jake@mccarthykroes.com
JOHN WENINGER
1ohn@mccarthykroes com
January 24, 2024
WILLI.AM: P. FRUSETT
will1am@mccarthykroes.com
David J. Tappeiner
David.tappeiner@ rimo nlaw.com
RE: Sellars v. Coles . .\1eet and Confer re: Defendants' responses to Notice to Produce, Set #2
Dear David:
We are in receipt of your clients' respo nses to the Notice to Produce, Set #2. T hey consist
entirely of obj ections, inc luding objections based o n attorney client privilege for documents, which the
Court has already fou nd to have been waived. These responses are in bad faith . To date, you have
produced nothing as far as documents, notwithstanding the Notice to Produce sent to you in September;
notwithstanding your multiple promises and notwithstand ing the court order dated December 27, 2023
requiring you and your clients to produce docum ents without objection.
You have Iiterally thumbed yo ur nose at the Court in defiance. The vast maj ority of your
obj ections are either already waived per the court order, or can be addressed through a protective order
and/or other means. We are willing to enter into a protective order regarding the production of this
information. We are willing to exclude tax in fo rmation and any other private or irrelevant info nnation.
We can have electronic m irrors of the information downloaded and not even seen by us, except as to
those communications related to the issues in th is case.
I need to hear from you wi th a reasonable response, with appropriate safeguards in place on or
before January 29, 2024. [f we do not hear from you by that time, we will bring yet another motion to
compel seekin g sanctions against you. Thank you for your immediate attention to this matter.
@~R. Chris Kroes
EXHIBIT “6”
Chris Kroes
From: Chris Kroes
Sent: Friday, February 2, 2024 5:29 AM
To: David J. Tappeiner; Amanda Lopez-Solis; Esmeralda Murillo
Subject: Re: Meet and Confer
David; I am not aware of any production of documents by you, responsive to our demand . I am out of the office
today. We will not however, bring taking our motions off calendar. Regarding the additional discovery which you have
ignored, I am aware that my office is preparing additional motions. If you want to avoid same, you should comply by
providing Code compliant responses immediately. Chris Kroe s
Sent from my iPhone
On Feb 2, 2024, at 12:23 AM, David J. Tappeiner wrote:
Mr. Kroes:
Now that I have finally been able to produce all of the documents you reque sted, I believe there are two
outstanding meet and confer matters to discuss. Please let me know when you are available . I have
time tomorrow afternoon between noon and 2pm .
Also, as you will see, the document produ ction wa s a significant undertaking, but I believe all documents
have been produced per code. As such, I would ask that you withdraw your OSC re contempt and
motion for evidence, monetary sanctions.
David
David J . Tappeiner I Partn
RIMON PC
."
v,ww rirnonlaw.com I See Our nternat1onal Offices I Read Our Insights
Connect on Linked ln I Like us on Facebook
This e-mail is sent by a law firm and contains information that may be confidential or privileged. If you have received this communication in error,
please reply to the sender (only) and then please delete this message from your inbox as well as any copies. Thank you.
1
DECLARATION OF AMANDA LOPEZ-SOLIS
2 I, AMANDA LOPEZ-SOLIS, say and declare as follows:
...,
.)
I . I have worked for the law firm of McCarthy & Kroes for over 20 years, as a Legal Assistant I
4
know the following from my own personal knowledge. If called upon to testify, I could and
5
would competently testify to the fo llowing from my own personal knowledge.
6
2. On 2/2/24 at 2:57 p.m. l received an e-mail from David Tappeiner stating "thousands of
7
documents have been uploaded in the ' Box' directory", however a link was not provided to
8
access these documents.
9
3. At 6:15 p.m. on Friday, that same day 2/2/24, David Tappeiner sent another e-mail. This e-
10
mail was from Box stating "David Tappeiner invited you to collaborate on: Sellars v. Leahy" .
I1
I did not actually see this ema il unti l Monday morning, 2/5/24, as it was sent after business
<~ 12
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WJ ;._ °' hours on Friday.
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< 4. When I clicked on the link to view the documents a screen popped up that stated, "Opps! We
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2: .,.. !- 5. I proceeded to check Mr. Kroes' and Esmeralda Murrillo' s e-mails, as they had also been
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sent the same link from Mr. Tappeiner, in hopes that their link would work. However, again
17
the same screen came up, the documents were inaccessible.
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6. I then e-mailed Mr. Tappeiner advising him of this issue and asked that he either send over
19
paper copies or a new link that worked. I still have not received a response.
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7. This is not the first time we have received either links or a thumb drive that have not worked
21
from him.
22
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
23
24 California.
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28 9
REPLY TO OPPOSIT ION TO OSC RE: CONTEMPT;
D ECLARATION OF R. C HRIS KRO ES; DECLARATION OF AMANDA LOPEZ-SO LIS
Updated 2.5.24
Case Name: Sellars v. Leahy, et al.
Case No.: 20CV04 132
2
3 PROOF OF SERVICE
4 I am employed in the county of Santa Barbara, State of California. I am over the age of 18
years of age and am not a party to the within action ; my business address is 125 E. Victoria Street,
5 Suite A, Santa Barbara, California.
6
On the date set forth below, I served the foregoing documents entitled:
7
REPLY TO OPPOSITION TO OSC RE CONTEMPT; DECLARATION OF R. CHRIS
8 KROES; DECLARATION OF AMANDA LOPEZ-SOLIS
9 on all interested parties in said action by:
10 _X_ (MAJL) By placing a true copy thereof enclosed in a sealed envelope for each
person(s) named below, addressed as set forth immediately below the respective
11
name(s), with postage thereon fully prepaid as first-class mail. I deposited the same in
12 a mailing facility regularly maintained by the United States Post Office for the mailing
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V1 rn M of letter(s) at my above-stated place of business.
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_ _ (OVERNIGHT DELIVERY) By placing a true copy thereof enclosed in a
>- c::: < 14 sealed envelope, designated by Federal Express, for each person(s) named below,
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r ue::: addressed as set forth immediately below the respective name(s). Such envelope
c::: - <
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< was deposited in a Federal Express receptacle prior to the pick-up time, on the
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- < 16 date set forth below.
(/)
17 _ X_ (E-MAIL) By placing a true copy thereof in our office scanner, scanning the
document and transmitting the document via electronic mail for each person(s)
18 named below as set forth immediately below the respective name(s) pursuant to this
19 Proof of Service.
20 _ _ CE-SERVICE) By placing a true copy thereof in our office scanner, scanning the
document and transmitting the document via Odyssey for each person(s) named
21 below as set forth immediately below the respective name(s) pursuant to this Proof
of Service.
22
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_.)
*** SEE ATTACHED SERVICE LIST***
24 I declare under the penalty of perjury that the foregoing is true and correct.
25 Executed on February 5, at Santa Barbara, ~
26
27 ~ ANDALOPmOLIS
28
PROOF OF SERVICE
Updated 2.5.24
Case Name: Sell ars v. Leahy, et al.
Case No.: 20CV04132
2
SERVICE LIST
3
4
5 Counsel for Plaintiff David J. Tappeiner
MARK SELLARS and Rimon Law P.C.
6 REBECCA MORIN 70 I Anacapa Street, Suite B
Santa Barbara, CA 9310 I
7
David.Tappeiner~rimonlaw.com
8 E-MAIL ONLY
9
Counselfor Defendant Gregory K. Sabo
10 PATRICIA WOLLUM and David A. Napper
11 SUSAN REYNOLDS Chapman & Glucksman
11900 West Olympic Blvd., Ste. 800
< ~
12 Los Angeles, CA 90064-0704
L.!J r"I
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t.U ~ °' gsabo@cgdrlaw.com
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::a .,..,.... Defendant in Pro Per Patrick Leahy
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< 16 PATRICK LEAHY 961 Randolph Road
17 Santa Barbara, CA 93111
U.S. MAIL ONLY
18
19
20
21
22
23
24
25
26
27
28
2
PROOF OF SERVICE
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara 1 LAW OFFICES OF Darrel E. Parker, Executive Officer McCARTHY & KROES 2/5/2024 2:30 PM 2 125 E. VICTORIA STREET, SUITE A By: Terri Chavez , Deputy SANTA BARBARA, CA 93101 (805) 564-2085 3 4 R. Chris Kroes, SBN 134935 5 Attorneys for Defendants: CHANNE COLES, and THE LAW OFFICE OF CHANNE G. COLES, a California corporation 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FORTHECOUNTYOFSANTABARBARA 9 10 MARK SELLARS, individually and as Trustee CASE NO.: 20CV04132 of the Rosemary Free Trust u/d/t dated 11 September 13, 2000, and REBECCA MORIN, REPLY TO OPPOSITION TO OSC RE Conservator of the Estate and Person of CONTEMPT; DECLARATION OF <§ 12 R. CHRIS KROES; DECLARATION OF tll t.1.1 M Rosemary Free Leahy, t.1.1 !- °' AMANDA LOPEZ-SOLIS o-< 13 0:: ~ u ~ .. cid< < Plaintiffs, >- -0:: 0:: < 14 vs. :c !- o::_ < 6 cc 0:: Complaint Filed: 12/11/20 Third Amended Complaint Filed: 1/12/24 <>cc 15 PATRICK LEAHY; CHANNE COLES, THE u(,) t.lJ·< !- ::E In z LAW OFFICE OF CHANNE G. COLES, a [Assigned to the Honorable Thomas Anderle, ~< ti) 16 in department 3.] California corporation; PATRICIA WOLLUM; 17 SUSAN REYNOLDS; HELP UNLIMITED, a Date: February 14, 2024 California corporation; and DOES 1 -10, Time: 10:00 a.m. 18 inclusive, Dept: 3 19 Defendants. 20 21 COMES NOW Defendants CHANNE COLES, and THE LAW OFFICE OF CHANNE G. COLES, 22 with this Reply as follows: 23 This Court issued an OSC re: contempt as against Rebecca Morin, Mark Sellars, and their 24 counsel of record, David Tappeiner for their failure to comply with the Court order dated December 25 27, 2023 regarding responding to a Notice to Produce and Form Interrogatories. The plaintiffs did 26 27 not comply and still have not complied with that Court order. None of the "links" he has sent have 28 1 REPLY TO OPPOSITION TO OSC RE: CONTEMPT; DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS 1 ever functioned and none of the thumb drives he provided had any documents on them. On each 2 occasion, Mr. Tappeiner was promptly advised of same, but he refused to correct the problems or 3 provide the data. See attached declarations. There has been excuse after excuse in this case, but the 4 plaintiffs and their counsel refuse to comply with their discovery obligations and refuse to comply 5 with the Court orders regarding same. A finding of contempt therefore is appropriate. 6 7 OVERVIEW 8 The opposition to the OSC re: Contempt is at best misplaced. It starts out: "Plaintiff and 9 cross-defendant Hub City Solid Waste Services Inc., by its attorney or record in this case submits 10 the following ... " Apparently Mr. Tappeiner is confusing this with another case. Hub City Solid 11 Waste Services is not a party to this lawsuit. Plaintiffs counsel then goes on for pages, asserting <~ 12 .J:lt.lJM t.lJ !- °' ''abuse of the discovery process" and arguing about a demurrer, none of which have any validity and o-< 13 0:: ~ u :::..:: . . ad~~ none of which have anything to do with an OSC re Contempt. Contrary to the assertions of Mr. >- 0:: < 14 :co cc !- t; ci:: o::_ < Tappeiner, Rebecca Morin and Mark Sellars each have been personally served see attached <>cc 15 u t.lJ·< (.I !- :;:Eor; z ~< ti) 16 declarations and proofs of service. None of them have complied with the Court's order. Failure to 17 comply with a court order regarding civil discovery constitutes contempt. (Koshak v. Malek (2011) 18 200 Cal.App.4th 1540, 1548-1549.) 19 CONTEMPT AND THE CHRONOLOGY OF EVENTS 20 1. On December 27, 2023, this Court issued a court order, requiring Plaintiffs, Mark Sellars 21 and Rebecca Morin; and their counsel, David Tappeiner, to fully respond, without 22 23 objection, to the Form Interrogatories, Set 1 and Demand for Production of Documents. 1 24 Since that date, neither the plaintiffs, nor their counsel have provided ANY documents 25 responsive to the Court's order on the Notice to Produce, nor have they properly 26 27 1 This was issued after months of stalling for basic discovery which was served in September of 2023. 28 2 REPLY TO OPPOSITION TO OSC RE: CONTEMPT; DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS 1 responded to the form interrogatories. See attached declarations of R. Chris Kroes and 2 Amanda Lopez-Solis. 3 2. On January IS, 2024, Mr. Tappeiner sent over incomplete, non-code compliant 4 responses to the Form Interrogatories which were and are in violation of the Court order. 5 He also sent over non-compliant responses to the Notice to Produce, providing a blank 6 7 thumb drive (producing no documents whatsoever), and asserting attorney-client 8 privilege even though the Court order provided that all objections had been waived. Mr. 9 Tappeiner was advised of his failure to comply in an email sent to him on the morning of IO January 17, 2024. He promised to remedy the documents (only) but has never done so, 11 even up to the date of this Reply. See attached declarations. < :: 12 {I) LU M t.Ll f- °' 3. On Friday morning, February 2, 2024, Mr. Tappeiner sent an email stating that he had o-< 13 ci::~u ~ ~ ~ ~<< -ci:: now been able to produce all the documents. We emailed him back that same day, >- 0:: < 14 :I: 0 CD E- b 0:: 0::-< advising that he had not sent over any documents to our office. <>CD 15 u() t.Ll·< E- ::E irl z ~< {I) 16 4. On Friday, February 2, 2024, at 3:00 p.m. Mr. Tappeiner sent over an email to our 17 office, supposedly with a link to documents. However, as before, the link was invalid and 18 not able to be opened. We advised Mr. Tappeiner of same but he has not rectified or 19 provided a link that works, a thumb drive with any data, or physical paper documents 20 responsive to the Court's order. 21 5. As of February 5, 2024, we still have not received Code-compliant responses to the 22 23 Form Interrogatories ordered by the Court. 24 As of the date of this reply, neither the plaintiffs nor their counsel have complied with the 25 Court order. There have been no documents produced, and no code-compliant responses to the Form 26 Interrogatories. 27 28 3 REPLY TO OPPOSITION TO OSC RE: CONTEMPT; DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS 1 EXCUSES DO NOT MATTER IN A CONTEMPT 2 The opposition to the OSC re contempt consists almost entirely of a myriad of excuses by 3 Mr. Tappeiner as to why he has failed to comply with basic discovery which was due in October of 4 2023. It is one excuse after another. There is no declaration from either Rebecca Morin or Mark 5 Sellars regarding same. Contempt does not care about excuses. (Clear Lake Water Co. v. Superior 6 Court (1939) 33 Cal.App.2d 710.) If he is too busy to handle a case, or comply with basic discovery, 7 8 then Mr. Tappeiner should not be filing meritless lawsuits against local counsel. 9 Plaintiffs counsel asserts that contempt is a drastic sanction which is rarely justified, citing 10 (In re De La Parra (1986) 184 Cal.App.3d 139.) Mr. Tappeiner however has mis-cited the holding 11 of that case. In De La Parra, the trial judge incarcerated the petitioner for a period of 15 days for § - - 0:: 0:::: al 15 incarceration was the appropriate remedy, but there are many appropriate lesser sanctions available ~ . - c:::: < 14 ::r: 0 co !- !- c:::: c:::: Sd < 5. A true and correct copy of the proof of service by hand on David Tappeiner will be brought <>co 15 u UJ·< (.> !- '.2.,. z ~< rJJ 16 to the hearing. 17 6. This Court then issued an OSC re: contempt as against Rebecca Morin, Mark Sellars, and 18 their counsel of record, David Tappeiner for their failure to comply with the Court order 19 dated December 27, 2023 regarding responding to a Notice to Produce and Form 20 Interrogatories. 21 7. Despite the December 27, 2023 Court order and despite the OSC re: Contempt, the plaintiffs 22 23 Rebecca Morin and Mark Sellars as well as their counsel, David Tappeiner, still have not 24 complied with that Court order. None of the electronic "links" Mr. Tappeiner has ever sent 25 have ever functioned, nor have the thumb drives he provided had any documents on them 26 responsive to the Court's order. 27 28 6 REPLY TO OPPOSITION TO OSC RE: CONTEMPT; DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS 1 8. On each occasion, when he has claimed to electronically provide information, Mr. Tappeiner 2 was promptly advised of same by our office, but he refused to correct the problems or 3 provide the data. 4 9. The Court ordered Mr. Tappeiner and his clients to provide full and verified, complete 5 responses to the Form Interrogatories without objection and verified, and complete responses 6 to the Notice to Produce without objection by January 10, 2024. 7 8 10. January 15, 2024, came and went without actual compliance with the Court's order. Mr. 9 Tappeiner also sent over responses to Form Interrogatories but they failed to comply with the 10 Court's order. He has not corrected those deficiencies despite our requests. On January 16, 11 2024, I sent him an email, attached hereto as Exhibit 3. <~ 12 Cl) 1JJ t.LI E- M °' 11. As set forth in my original declaration, Mr. Tappeiner also sent over a thumb drive and a link o-< 13 o::~u ~ ~ ~ << a'd -c=:: to documents. The thumb drive he provided us was blank and the link he provided required >-Ci=::< 14 :c: 0 a:) !:- t; Ci=: Ci=::_< an access code, which was not included. He likewise made an assertion of "attorney client <> a:) 15 u<.> UJ·< !:- 211"1z ~< Cl) 16 privilege" which was already waived per the Court order. He never provided a new thumb 17 drive or a link that functioned notwithstanding that we demanded same from him in 18 writing on January 17, 2024. He promised to remedy the documents but has never done so, 19 even up to the date of this Reply. 20 12. On January 17, 2024, I sent him yet another email, a true and correct copy of which is 21 attached as Exhibit 4, regarding his failure to comply with the Court order. On January 24, 22 23 2024, I sent an email to Mr. Tappeiner regarding his production of documents response (with 24 no documents attached), a true and correct copy of which is attached as Exhibit 5. 25 13. On Friday morning, February 2, 2024, Mr. Tappeiner sent an email stating that he had now 26 been able to produce all the documents. We emailed him back that same day, advising that he 27 28 7 REPLY TO OPPOSITION TO OSC RE: CONTEMPT; DECLARATION OF R. CHRIS KROES; DECLARATION OF AMANDA LOPEZ-SOLIS had not sent over any documents to our office. See a true and correct copy of san1e attached 2 as Exhibit 6. 3 14. On Friday afternoon, February 2, 2024, Mr. Tappeiner sent over another email to our office, 4 supposedly with a link to documents. However, as before, the link was invalid and not able to 5 be opened. We advised Mr. Tappeiner of same on Monday morning, February 5, 2024. See 6 Declaration of Amanda Lopez-So lis. 7 8 15. As of the writing of this Reply, we still have not received code-compliant responses to the 9 Form Interrogatories ordered by the Court or the Notice to Produce. 10 I declare under penalty of perjury under the laws of the State of California that the foregoing is true 11 and correct. Executed this 5th day of February, 2024, at Santa Barbara, California. < '.=: 12 c;/J t.lJ ('"') L.lJ f- °' 9 5 < 13 ;;: ~ ~ oc!::; >- 0:: < .s 14 R. CHRIS KROES = p co f- Go:: 0:: - < u c:i 15 uj -;!. 2 ~~ - VJ < 16 17 18 19 20 21 22 23 24 25 26 27 28 8 REPLY TO OPPOSITION TO OSC RE: CONTEMPT; DECLARAT ION OF R. CHR IS KROES; DECLA RATION OF AMANDA LOPEZ-SOLIS EXHIBIT “1” Allomey or Parry wirhouc Arromey: For Co11rr Use Only R. CHRIS KROES , Bar# J34935 MCCARTHY & KROES 125 EAST VICTORIA ST. Santa Barbara, CA 9310 I Telep/Jorie No: 805 564-2085 FAX No: 564-8891 'Ref No. or File No .. Auomey for: Defendanl l11serr 11ame o/Courr. a11d J11dicia/ Disrricr and Branch Co11rr: SANTA BARBARA SUPERIOR COURT- ANACAPA DIVISION Plai11tiff MARK SELLARS, ET AL. I Defe11da111: PATRICK LEAHY, ET AL. PROOF OF SERVICE Hearing Dore: rme: I' l;pr/Div: Case Number: - Wed, Feb. 14, 2024 10:00AM 20CV04J32 I. At the time of service [ was at least I 8 years of age and not a party to this action. 2. I served copies of Lhe -; ORDER TO SHOW CAUSE RE: CONTEMPT; DECLARATION OF R. CHRIS KROES ; DECLARATION OF ESMERALDA MURfLLO; DECLARATION OF ESMERALDA MURfLLO ISO ORDER TO SHOW CAUSE RE: CONTEMPT; ORDER TO SHOW CAUSE RE: CONTEMPT. 3. a. Parry served: REBECCA MORIN b. Person served: party in item 3.a., W hite, Female, 55 Years Old, Brown Hair, 5 Feet 5 Inches, 160 Pounds 4. Address where rhe parry was served: 8080 Bayberry Court C ITRUS HEIGHTS. CA 95610 5. I served the party: a. by personal service. I personally delivered the documents listed in item 2 to the pany o r person authorized to receive process for the party ( I ) on: Tue .. Jan. 23. 2024 (2) al: 5:42PM 7. Person Who Served Papers: Recoverable Cost Per CCP I033.5ta)(4)(I3) a. CELINA ALVARADO d. The Fee fo r Service was: 135.00 b. UNITED PROCESS SERVERS, Inc. e. I am: (3) registered Cali fornia process server 142 East Figueroa Street (i) Owner San La Barbara, Cl\ 93 IO I (ii) Registration No. : PS 194 C. 805 966-2102 (iii) Counry: Tulare 8. I declare under penalty of perjury under the laws of the Stale of California tlza Date: Wed, Jan. 24, 2024 ),uilicial CQ_uncil Form PROOF OF SERVICE Ruic 2.bO.(a)&(b) Rev January 1, 2007 kroes.241477 EXHIBIT “2” FOR COURl'USE OMLY Law Offices of McCarthy & Kroes 125 E. Victoria St., Ste A Santa Barbara, CA 93101 EMAIL: ATTORNEY FOR: NAMI Or COURr, JUDICIAL DISTRICT ot BRANCH COURl', IP MY: Santa Barbara County Superior Court-Anacapa Division 1100 Anacapa St. Santa Barbara, CA 93101 PlADfflW: CQURI' CASE NO: Sellars et al. DEFENDANT: 20CV04132 Leahy et al. L&\IY!NG m:FICER FILS NO: Proof of Service 2024000188 1. At the time of the service I was at least 18 years of age and not a party to this action. 2. I served copies of the: f. other (specify documents): Exhibit 1, Exhibit 2, Exhibit 3, Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E, Exhibit F, Notice of Order to Show Cause Re: Contempt; Declaration of R. Chris Kroes 3. a. Party SeNed (specify name of party as shown on documents served): Mark Sellars 4. Address where party was served: Sheriffs Civil Bureau 1105 Santa Barbara St. P.O.Box690 Santa Barbara, CA 93101 5. I served the party: a. by personal service. I personally delivered the documents listed in Item 2 to the party or person authorized to receive service of process for U,e party (1) on: 01/24/2024 at 3:00 PM. 7. Person who served the papers: a. Name: Deputy D. Frledll, 0412 b. Address: Sheriffs Clvfl Bureau, 1105 Santa Barbara St., P.O. Box 690, Santa Barbara, CA 93101 c. Telephone number: (805) 568.·2900 d. The fee for service was: $50.00 9. I am a Callfomla sheriff or marshal and I certify Ulat the foregoing Is true and correct. Date: Wednesday, January 24, 2024 Hearing: 02/14/2024 10:00 AM In Dept/Div: 3 by: ~- Sheriffs Authorized Agent Bill Brown Judlctal Council Form POS-040 Attomay/Plaln11ff (Cl CeunlySuito Sheriff. Toloosoll. Inc. EXHIBIT “3” Chris Kroes From: Chris Kroes Sent: Tuesday, January 16, 2024 1:42 PM To: David J. Tappeiner; Esmeralda Murillo Cc: Amanda Lopez-Solis Subject: RE: Sellars v. Coles M +C Attachments: 2024_01_ 16_0SC Draft.pdf David: There is an old expression that says: "Fool me once, shame on you. Fool me twice, shame on me." Last time, with these very same documents, you told me this exact same thing four or five times, (I'll have it for you tonite!). But you never did. Finally, I was forced to bring a motion to compel because you never actually followed through on your promises to deliver the responses and documents. I have already prepared and signed an OSC re contempt as against you and your clients. A copy of same is attached. You are past the court-ordered deadline. You are past the extension I granted, beyond the court-ordered deadline. I need full and complete compliance today. That means a check for the $2500 in sanctions delivered to my office before close of business today, and complete compliance with the Court order today. If I do not have both, then we will fi le the OSC re: Contempt first thing tomorrow morning, followed by a motion for evidentiary sanctions. From: David J. Tappeiner Sent: Tuesday, January 16, 2024 1:02 PM To: Esmeralda Murillo Cc: Chris Kroes ; Amanda Lopez-Solis Subject: Re: Sellars v. Coles M+C Please be advised that I am organizing documents in response to all pending discovery and downloading those documents into Box (like Dropbox) and will send the link to the documents by tonight. Supplemental responses to the original FROGS and RFPs to my clients wil l also be downloaded into Box or emailed directly David J. Tappeiner I Partner RIMON PC david.tappeiner@rimonlaw.com 701 Anacapa St., Suite B Santa Barbara, CA 93101 Please note: I often dictate my emails and replies to emails. As such, please forgive any typos. If my email is unclear, please let me know immediately. Thank you. From: Esmeralda Murillo Sent: Wednesday, January 10, 2024 1:48:55 PM 1 To: David J. Tappeiner Cc: Chris Kroes ; Amanda Lopez-Solis Subject: Se llars v. Coles M+C Good afternoo n, Please see the attached correspo ndence from R. Chris Kroes to David Tappei ner. Thank you, Esmeralda Murillo Legal Assistant McCarthy & Kroes (805) 564-2085 2 EXHIBIT “4” Chris Kroes From: Chris Kroes Sent: Wednesday, January 17, 2024 9:44 AM To: David J. Tappeiner, Esmeralda Murillo; Amanda Lopez-Solis; gsabo@cgdrlaw.com; Napper, David; service@cgdrlaw.com; patsprod@yahoo.com Subjed: RE: Supplemental Discovery Responses David: You have utterly and completely failed to comply with the Court's order dated December 27, 2023. The order required that you provide full and complete Code-compliant responses without objection to Set # 1 of the Form Interrogatories and Set #1 of the Notice to Produce. On yesterday's date,just after 5:00 p.m. you emailed what was supposed to be your response. They are deficient, and violative of the court order as follows: FORM INTERROGATORIES AS TO REBECCA MORIN: You only provided supplemental responses to #9.2, 12.1, 12.4 and 12.6. Even as to those responses, they are deficient. Regarding Form Interrogatory 12.4, you made the same statement that you made before, and which I wrote you about on December 29, 2023 as being inadequate. 12.4 is very specific and has four subparts. You did not even attempt to comply, except to say they are being supplied herewith (and they were not). Even if had been, you cannot say: "See another document." I need an answer to this question, in this response. You make the same argument regarding 12.6, and for the same reasons as 12.4 above, it is not valid, and even if it were, it has been waived. FORM INTERROGATORIES AS TO MARK SELLARS: You only provided supplemental responses to #9.2, 12.1, 12.4 and 12.6. Even as to those responses, they are deficient. Regarding Form Interrogatory 12.4, you made the same statement that you made before, and which I wrote you about on December 29, 2023 as being inadequate. 12.4 is very specific and has four subparts. You did not even attempt to comply, except to say they are being supplied herewith (and they were not). Even if had been, you cannot say: "See another document." I need an answer to this question, in this response. You make the same argument regarding 12.6, and for the same reasons as 12.4 above, it is not valid, and even if it were, it has been waived. REQUEST FOR PRODUCTION OF DOCUMENTS AS TO REBECCA MORIN: You provided a flash drive with nothing on it, and you provided us a link to a Rimon drop box without the access code to open it. You literally gave us no documents yesterday. Regarding NTP #9, you asserted the attorney client privilege. That has been waived, per the Court order. REQUEST FOR PRODUCTION OF DOCUMENTS AS TO MARK SELLARS: You provided a flash drive with nothing on it, and you provided us a link to a Rimon drop box without the access code to open it. You literally gave us no documents yesterday. You need to remedy all of these problems today. We need, per the court order, full and complete Code- compliant verified responses without objection. Code compliant also means that the responses to the documents correspond with the request. If you just send me a bunch of documents, that is insufficient. Ifl do not have what the court ordered today, then we will file an Order to Show Cause re Contempt as against you and your clients. Stop playing games and comply with the Court order. R. Chris Kroes 1 From: David J. Tappeiner Sent: Tuesday, January 16, 2024 5:34 PM To: Chris Kroes ; Esmera lda Murillo ; Amanda Lopez-Solis ; gsabo@cgdrlaw.com; Napper, David ; service@cgdrlaw.com; patsprod@yahoo.com Subject: RE: Supp lemental Discovery Responses I just added a one drive file containing all of the conservatorship and TRO pleadings and related documents. I also added the bates stamped documents that were produced with the original discovery responses. David From : David J.Tappeiner Sent: Tuesday, January 16, 2024 5:11 PM To: Chris Kroes ; Esmeralda Murillo ; Amanda Lopez-Solis ; gsabo@cgdrlaw.com; Napper, David ; service@cgdrla w.com; patsprod@yahoo.com Subject: RE: Supplemental Discovery Responses I have sent a shared link to Chris Kroes and David Napper as to documents. 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 afternoon. I wi ll mail the flash drive to Mr. Napper's office. I wi ll 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 be able to access the box directory but let me know if there are any issues. David From: David J. Tappeiner Sent: Tuesday, January 16, 2024 5:01 PM To: Chris Kroes ; Esmeralda Murillo ; Amanda Lopez-Solis ; gsabo@cgdrlaw.com; Napper, David ; service@cgdrlaw.com; patsprod@yahoo .com Subject: Supplementa l Discovery Responses See attached. David J . Tappeiner I Partn RIM ON PC " , 2 -7 dav,d tdpo,::,n,; 'q?runo., 1aw co1" J 1avd,1a y - c, S ·t , l' d-t '-1 1 J www nmonlaw.com I See Our International Offices I Read Our Insights Connect on Linked ln I Like us on Facebook This e-mail is sent by a law firm and contains in formation that may be confidential or privile ged. If you have received this communication in error. please reply to the sender (only) and then please delete this message from your in box as well as any copies. Thank you. 2 EXHIBIT “5” LAW OFFICES OF McCARTHY & KROES TELEPHONE PATlUCK McCARTHY 125 EAST VI CTORIA STREET, SUITE A patrick@mccarthykroes.com (805) 564-2085 SANTA BARBA RA. CALIFORN IA 93 101 FACSIMILE R. CHRlS KROES w11 11• 111ccarth ykroes.co111 (805) 564-889 1 chris@mccarthykroes com BRIANA E . McCARTHY briana@mccarthykroes com LINDA ELJAS-\'\'HEELOCK 1in1@mccarthykroes.com RONALD ZONEN ron@mccarthykroes.com JAKE STODDARD Senior Counsel jake@mccarthykroes.com JOHN WENINGER 1ohn@mccarthykroes com January 24, 2024 WILLI.AM: P. FRUSETT will1am@mccarthykroes.com David J. Tappeiner David.tappeiner@ rimo nlaw.com RE: Sellars v. Coles . .\1eet and Confer re: Defendants' responses to Notice to Produce, Set #2 Dear David: We are in receipt of your clients' respo nses to the Notice to Produce, Set #2. T hey consist entirely of obj ections, inc luding objections based o n attorney client privilege for documents, which the Court has already fou nd to have been waived. These responses are in bad faith . To date, you have produced nothing as far as documents, notwithstanding the Notice to Produce sent to you in September; notwithstanding your multiple promises and notwithstand ing the court order dated December 27, 2023 requiring you and your clients to produce docum ents without objection. You have Iiterally thumbed yo ur nose at the Court in defiance. The vast maj ority of your obj ections are either already waived per the court order, or can be addressed through a protective order and/or other means. We are willing to enter into a protective order regarding the production of this information. We are willing to exclude tax in fo rmation and any other private or irrelevant info nnation. We can have electronic m irrors of the information downloaded and not even seen by us, except as to those communications related to the issues in th is case. I need to hear from you wi th a reasonable response, with appropriate safeguards in place on or before January 29, 2024. [f we do not hear from you by that time, we will bring yet another motion to compel seekin g sanctions against you. Thank you for your immediate attention to this matter. @~R. Chris Kroes EXHIBIT “6” Chris Kroes From: Chris Kroes Sent: Friday, February 2, 2024 5:29 AM To: David J. Tappeiner; Amanda Lopez-Solis; Esmeralda Murillo Subject: Re: Meet and Confer David; I am not aware of any production of documents by you, responsive to our demand . I am out of the office today. We will not however, bring taking our motions off calendar. Regarding the additional discovery which you have ignored, I am aware that my office is preparing additional motions. If you want to avoid same, you should comply by providing Code compliant responses immediately. Chris Kroe s Sent from my iPhone On Feb 2, 2024, at 12:23 AM, David J. Tappeiner wrote: Mr. Kroes: Now that I have finally been able to produce all of the documents you reque sted, I believe there are two outstanding meet and confer matters to discuss. Please let me know when you are available . I have time tomorrow afternoon between noon and 2pm . Also, as you will see, the document produ ction wa s a significant undertaking, but I believe all documents have been produced per code. As such, I would ask that you withdraw your OSC re contempt and motion for evidence, monetary sanctions. David David J . Tappeiner I Partn RIMON PC ." v,ww rirnonlaw.com I See Our nternat1onal Offices I Read Our Insights Connect on Linked ln I Like us on Facebook This e-mail is sent by a law firm and contains information that may be confidential or privileged. If you have received this communication in error, please reply to the sender (only) and then please delete this message from your inbox as well as any copies. Thank you. 1 DECLARATION OF AMANDA LOPEZ-SOLIS 2 I, AMANDA LOPEZ-SOLIS, say and declare as follows: ..., .) I . I have worked for the law firm of McCarthy & Kroes for over 20 years, as a Legal Assistant I 4 know the following from my own personal knowledge. If called upon to testify, I could and 5 would competently testify to the fo llowing from my own personal knowledge. 6 2. On 2/2/24 at 2:57 p.m. l received an e-mail from David Tappeiner stating "thousands of 7 documents have been uploaded in the ' Box' directory", however a link was not provided to 8 access these documents. 9 3. At 6:15 p.m. on Friday, that same day 2/2/24, David Tappeiner sent another e-mail. This e- 10 mail was from Box stating "David Tappeiner invited you to collaborate on: Sellars v. Leahy" . I1 I did not actually see this ema il unti l Monday morning, 2/5/24, as it was sent after business <~ 12 ;-/) U,J M WJ ;._ °' hours on Friday. Ss < 13 ;;;: "'~~ o,:! -< o:: < 4. When I clicked on the link to view the documents a screen popped up that stated, "Opps! We >- 0:: < 14 : :c ~s ~~ <'. can't seem to find the page you' re looking for." u< > cc 15 u u..i < 2: .,.. !- 5. I proceeded to check Mr. Kroes' and Esmeralda Murrillo' s e-mails, as they had also been NZ - (/') < 16 sent the same link from Mr. Tappeiner, in hopes that their link would work. However, again 17 the same screen came up, the documents were inaccessible. 18 6. I then e-mailed Mr. Tappeiner advising him of this issue and asked that he either send over 19 paper copies or a new link that worked. I still have not received a response. 20 7. This is not the first time we have received either links or a thumb drive that have not worked 21 from him. 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true 23 24 California. 25 26 27 28 9 REPLY TO OPPOSIT ION TO OSC RE: CONTEMPT; D ECLARATION OF R. C HRIS KRO ES; DECLARATION OF AMANDA LOPEZ-SO LIS Updated 2.5.24 Case Name: Sellars v. Leahy, et al. Case No.: 20CV04 132 2 3 PROOF OF SERVICE 4 I am employed in the county of Santa Barbara, State of California. I am over the age of 18 years of age and am not a party to the within action ; my business address is 125 E. Victoria Street, 5 Suite A, Santa Barbara, California. 6 On the date set forth below, I served the foregoing documents entitled: 7 REPLY TO OPPOSITION TO OSC RE CONTEMPT; DECLARATION OF R. CHRIS 8 KROES; DECLARATION OF AMANDA LOPEZ-SOLIS 9 on all interested parties in said action by: 10 _X_ (MAJL) By placing a true copy thereof enclosed in a sealed envelope for each person(s) named below, addressed as set forth immediately below the respective 11 name(s), with postage thereon fully prepaid as first-class mail. I deposited the same in 12 a mailing facility regularly maintained by the United States Post Office for the mailing < ::: V1 rn M of letter(s) at my above-stated place of business. uj ;::::: °'< 0 :.... c::: :) u 13 ~ ct: . o;:! << -c::: _ _ (OVERNIGHT DELIVERY) By placing a true copy thereof enclosed in a >- c::: < 14 sealed envelope, designated by Federal Express, for each person(s) named below, I ~ a:l r ue::: addressed as set forth immediately below the respective name(s). Such envelope c::: - < u a:i 15 < was deposited in a Federal Express receptacle prior to the pick-up time, on the ~ \ /"'I E- r-aZ - < 16 date set forth below. (/) 17 _ X_ (E-MAIL) By placing a true copy thereof in our office scanner, scanning the document and transmitting the document via electronic mail for each person(s) 18 named below as set forth immediately below the respective name(s) pursuant to this 19 Proof of Service. 20 _ _ CE-SERVICE) By placing a true copy thereof in our office scanner, scanning the document and transmitting the document via Odyssey for each person(s) named 21 below as set forth immediately below the respective name(s) pursuant to this Proof of Service. 22 ')"' _.) *** SEE ATTACHED SERVICE LIST*** 24 I declare under the penalty of perjury that the foregoing is true and correct. 25 Executed on February 5, at Santa Barbara, ~ 26 27 ~ ANDALOPmOLIS 28 PROOF OF SERVICE Updated 2.5.24 Case Name: Sell ars v. Leahy, et al. Case No.: 20CV04132 2 SERVICE LIST 3 4 5 Counsel for Plaintiff David J. Tappeiner MARK SELLARS and Rimon Law P.C. 6 REBECCA MORIN 70 I Anacapa Street, Suite B Santa Barbara, CA 9310 I 7 David.Tappeiner~rimonlaw.com 8 E-MAIL ONLY 9 Counselfor Defendant Gregory K. Sabo 10 PATRICIA WOLLUM and David A. Napper 11 SUSAN REYNOLDS Chapman & Glucksman 11900 West Olympic Blvd., Ste. 800 < ~ 12 Los Angeles, CA 90064-0704 L.!J r"I V; t.U ~ °' gsabo@cgdrlaw.com o '-- < 13 c:e:~• u :,L dnapper@ cgdrlaw.com _ ,.,, al:!<< E-MAIL ONLY >- I c,:: O < Cll 14 t.... r N ~~< <> Cll 15 'd w.i < ::a .,..,.... Defendant in Pro Per Patrick Leahy NZ - V) < 16 PATRICK LEAHY 961 Randolph Road 17 Santa Barbara, CA 93111 U.S. MAIL ONLY 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE