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RANDALL E. KAY - 64975
RANDALL E. KAY, P.C.
535 Pacific Avenue, Suite 100
San Francisco, California 94133
Telephone: (415) 345-1170
Facsimile: (415) 345-1110
CLIFFORD CHANLER - 135534
THE CHANLER GROUP
2560 Ninth Street
Parker Plaza, Suite 205
Berkeley, CA 94710
Telephone: (510) 848-8880
Facsimile: (510) 848-8118
Attorneys for Plaintiff
ANTHONY E. HELD, PH_LD., P.E.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
ANTHONY E. HELD, PH.D., PE., ) No. 16CV289952
)
Plaintife ) DECLARATION OF RANDALL E. KAY IN
° ) SUPPORT OF MOTION FOR ASSIGNMENT
vs. ) ORDER AND RESTRAINING ORDER
)
)
WILLI HAHN CORPORATION, et al., ) Date. December 19, 2019
) Time: 9:00 a.m.
) Dept: 19
Defendants. )
TELEPHONE APPEARANCE
I, Randall E. Kay, declare as follows:
1. Tam an attorney at law licensed to practice before the courts of the State of California
and co-represent the plaintiff/Judgment Creditor in the above-captioned case.
DECLARATION OF RANDALL E. KAY10
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2. This case was initiated based on violations of Proposition 65. Judgment was entered on
May 15, 2017, providing for a permanent injunction, together with statutory penalties and attorneys fees
totaling $21,633.50. In the absence of any payments, I was retained as associate counsel to assist in the
collection of the monetary judgment. Based on the most recent Memorandum of Costs, the current
balance is approximately $35,000.
3. In early March 2018, I attempted to contact an appropriate responsible person at WILLI
HAHN CORPORATION in order to discuss payment arrangements and resolution of the case. I was
directed to someone who was aware of the lawsuit and the judgment, he was quite hostile and hung up
on me. Initial efforts at investigation to identify accessible income and assets of defendant were of
limited help, especially since defendant is a Minnesota corporation, is not registered to do business in
California with the Secretary of State’s Office, and is not believed to have any physical presence or
direct business activity in California except for sales to customers (e.g., retailers and wholesalers) in
California. Accordingly, post-judgment Interrogatories and Requests for Production of Documents,
directed towards the judgment debtor’s business activity, income and assets were served. No responses
were received, and a written reminder and request was sent to Mr. DiPerno, defendant’s CEO, in May
2018. This was also ignored. A Motion to Compel was filed in July 2018. Defendant did not oppose or|
otherwise respond to the Motion to Compel Discovery. I submitted a proposed Order to defendant for
review, and again received no response whatsoever. The Court entered its Order granting our Motion to
Compel Post-Judgment Discovery and for Sanctions, signed on October 30, 2018 and filed in early
November 2018. A copy was served on defendant, again with no response at all — it has simply refused
to comply with the Court’s Order.
4. Consequently, further investigation by myself and Mr. Chanler’s office was conducted.
We reviewed WILLI HAHN’s website, as well as the websites of numerous retailers and wholesalers
DECLARATION OF RANDALL E. KAYi
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that are believed to carry WILLI HAHN products. This turned up a number of what are believed to be
significant resellers (retail and wholesale) of WILLI HAHN’s or products. All of the below entities
further appear to have physical facilities in California, are incorporated in California, and/or are
registered with the Secretary of State’s office to do business in California. The specifically identified
entities for this Motion are as follows:
(i) W. W. Grainger, Inc.
(ii) Electronic Inventory Online, Inc.
(iii) Olander Company, Inc.
(iv) Walmart, Inc.
(v) Fastenal Company
(vi) MSC Industrial Supply Co. a/k/a MSC Industrial Direct Co.
(vii) SID Tool Co., Inc., also dba MSC Industrial Supply
Given the reasonable likelihood that these businesses purchase products from WILLI HAHN and
must, therefore, pay for them, we believe that an assignment of these accounts as requested is a
reasonable and efficient procedure.
St By correspondence in mid-September 2019, I wrote again to Mr. DiPerno, noting that
defendant had not complied with the Court’s discovery order, and indicating that we intended to move
forward with appropriate enforcement procedures, noting the additional costs and interest that were
running up, and encouraged them to consider resolving the matter and to contact me to discuss
resolution. This, as well, was ignored. Mr, Chanler and I attempted to reach Mr. DiPerno on the
telephone in late September 2019. We were put in touch with the controller, who advised us that only
Mr. DiPerno could determine whether or not to resolve the matter. He requested that I send another
copy of my earlier letter overnight to Mr. DiPerno and follow up the following week. I did so and left
another telephone message for Mr. DiPerno on October 7, 2019. He never returned my call.
DECLARATION OF RANDALL E. KAY4
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6. Given judgment debtor’s refusal to comply with the judgment in this case, and its full,
complete and knowing disobedience of this Court’s Order, I believe that judgment debtor WILLI HAHN
may attempt to avoid enforcement of the judgment. For these reasons, among others, I believe that there|
is a reasonable need, in addition to the requested Assignment Order, to restrain the judgment debtor (and
controlled entities or others acting in concert with it) from assigning, diverting, hiding, disposing of or
transferring any payment obligations, funds or receipts from the sources and potential sources of funds
with respect to which the Court has been requested to provide an Assignment Order.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed at San Francisco, California on October 23, 2019.
ree
RANDALL E./KAY
DECLARATION OF RANDALL E. KAY
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10 i 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 RANDALL E. KAY - 64975 RANDALL E. KAY, P.C. 535 Pacific Avenue, Suite 100 San Francisco, California 94133 Telephone: (415) 345-1170 Facsimile: (415) 345-1110 CLIFFORD CHANLER - 135534 THE CHANLER GROUP 2560 Ninth Street Parker Plaza, Suite 205 Berkeley, CA 94710 Telephone: (510) 848-8880 Facsimile: (510) 848-8118 Attorneys for Plaintiff ANTHONY E. HELD, PH_LD., P.E. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION ANTHONY E. HELD, PH.D., PE., ) No. 16CV289952 ) Plaintife ) DECLARATION OF RANDALL E. KAY IN ° ) SUPPORT OF MOTION FOR ASSIGNMENT vs. ) ORDER AND RESTRAINING ORDER ) ) WILLI HAHN CORPORATION, et al., ) Date. December 19, 2019 ) Time: 9:00 a.m. ) Dept: 19 Defendants. ) TELEPHONE APPEARANCE I, Randall E. Kay, declare as follows: 1. Tam an attorney at law licensed to practice before the courts of the State of California and co-represent the plaintiff/Judgment Creditor in the above-captioned case. DECLARATION OF RANDALL E. KAY10 a 12 13 15 16 17 18 19 20 21 2 23 24 25 26 27 28 2. This case was initiated based on violations of Proposition 65. Judgment was entered on May 15, 2017, providing for a permanent injunction, together with statutory penalties and attorneys fees totaling $21,633.50. In the absence of any payments, I was retained as associate counsel to assist in the collection of the monetary judgment. Based on the most recent Memorandum of Costs, the current balance is approximately $35,000. 3. In early March 2018, I attempted to contact an appropriate responsible person at WILLI HAHN CORPORATION in order to discuss payment arrangements and resolution of the case. I was directed to someone who was aware of the lawsuit and the judgment, he was quite hostile and hung up on me. Initial efforts at investigation to identify accessible income and assets of defendant were of limited help, especially since defendant is a Minnesota corporation, is not registered to do business in California with the Secretary of State’s Office, and is not believed to have any physical presence or direct business activity in California except for sales to customers (e.g., retailers and wholesalers) in California. Accordingly, post-judgment Interrogatories and Requests for Production of Documents, directed towards the judgment debtor’s business activity, income and assets were served. No responses were received, and a written reminder and request was sent to Mr. DiPerno, defendant’s CEO, in May 2018. This was also ignored. A Motion to Compel was filed in July 2018. Defendant did not oppose or| otherwise respond to the Motion to Compel Discovery. I submitted a proposed Order to defendant for review, and again received no response whatsoever. The Court entered its Order granting our Motion to Compel Post-Judgment Discovery and for Sanctions, signed on October 30, 2018 and filed in early November 2018. A copy was served on defendant, again with no response at all — it has simply refused to comply with the Court’s Order. 4. Consequently, further investigation by myself and Mr. Chanler’s office was conducted. We reviewed WILLI HAHN’s website, as well as the websites of numerous retailers and wholesalers DECLARATION OF RANDALL E. KAYi 12 13 14 1s 16 17 19 20 21 22 23 24 25 26 27 28 that are believed to carry WILLI HAHN products. This turned up a number of what are believed to be significant resellers (retail and wholesale) of WILLI HAHN’s or products. All of the below entities further appear to have physical facilities in California, are incorporated in California, and/or are registered with the Secretary of State’s office to do business in California. The specifically identified entities for this Motion are as follows: (i) W. W. Grainger, Inc. (ii) Electronic Inventory Online, Inc. (iii) Olander Company, Inc. (iv) Walmart, Inc. (v) Fastenal Company (vi) MSC Industrial Supply Co. a/k/a MSC Industrial Direct Co. (vii) SID Tool Co., Inc., also dba MSC Industrial Supply Given the reasonable likelihood that these businesses purchase products from WILLI HAHN and must, therefore, pay for them, we believe that an assignment of these accounts as requested is a reasonable and efficient procedure. St By correspondence in mid-September 2019, I wrote again to Mr. DiPerno, noting that defendant had not complied with the Court’s discovery order, and indicating that we intended to move forward with appropriate enforcement procedures, noting the additional costs and interest that were running up, and encouraged them to consider resolving the matter and to contact me to discuss resolution. This, as well, was ignored. Mr, Chanler and I attempted to reach Mr. DiPerno on the telephone in late September 2019. We were put in touch with the controller, who advised us that only Mr. DiPerno could determine whether or not to resolve the matter. He requested that I send another copy of my earlier letter overnight to Mr. DiPerno and follow up the following week. I did so and left another telephone message for Mr. DiPerno on October 7, 2019. He never returned my call. DECLARATION OF RANDALL E. KAY4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Given judgment debtor’s refusal to comply with the judgment in this case, and its full, complete and knowing disobedience of this Court’s Order, I believe that judgment debtor WILLI HAHN may attempt to avoid enforcement of the judgment. For these reasons, among others, I believe that there| is a reasonable need, in addition to the requested Assignment Order, to restrain the judgment debtor (and controlled entities or others acting in concert with it) from assigning, diverting, hiding, disposing of or transferring any payment obligations, funds or receipts from the sources and potential sources of funds with respect to which the Court has been requested to provide an Assignment Order. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at San Francisco, California on October 23, 2019. ree RANDALL E./KAY DECLARATION OF RANDALL E. KAY