arrow left
arrow right
  • Lalani Nailau vs Susan Clarke et al Auto Unlimited (22)  document preview
  • Lalani Nailau vs Susan Clarke et al Auto Unlimited (22)  document preview
  • Lalani Nailau vs Susan Clarke et al Auto Unlimited (22)  document preview
  • Lalani Nailau vs Susan Clarke et al Auto Unlimited (22)  document preview
						
                                

Preview

FPF © ONY Dw ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRADLEY KASS, ESQ. (CBN# 127658) KASS & KASS LAW OFFICES 1900 S. Norfolk Street, Suite 265 San Mateo, CA 94403 Phone Number: (650) 579-0612 Fax: (650) 579-0760 Attorney for Defendants SUSAN M. CLARKE, ALBERT K. CLARKE, AND ROBERT M. PICKLE, ind. and as Trustee IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION Lead Case No. 16CV299824 {consolidated with Case No. 18CV321960] LALANI NAILAU, Plaintiff, Vs. DEFENDANTS’ MANDATORY SETTLEMENT CONFERENCE STATEMENT SUSAN M. CLARKE, ALBERT K. CLARKE, ROBERT M. PICKLE & THE PICKLE MARITAL TRUST, ROBERT M. PICKLE AS TRUSTEE and Does 1-25, inclusive, DATE: February 5, 2020 TIME: 9:00 a.m. Defendants, DEPT: 9 MANDATORY SETTLEMENT CONFERENCE, L STATEMENTos yan w 10 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION AND BRIEF STATEMENT OF FACTS Defendants Susan M. Clarke, Albert K. Clarke, Robert M. Pickle & the Pickle Marital Trust in case no. 18CV321960 hereby submit their settlement conference statement. Plaintiff filed the action 16CV299824 on September 13, 2016 for her alleged injuries as a passenger from an alleged auto accident on or about August 19, 2015. Then over a year later on January 18, 2018, Plaintiff filed second action case no. 18CV321960 alleging fraudulent transfer of a real property and naming the additional Defendant Robert Pickle individually and as Trustee of the Pickle Marital Trust. Defendant Robert Pickle is the father of Defendant Susan Clarke who was the driver of the vehicle in which Plaintiff alleges she was injured as a passenger. Plaintiff alleges that subsequent to her alleged injuries and claim, Defendant Susan Clarke transferred her interest in a residence at 335 Loyola Drive, Aptos, Ca. to her father Robert Pickle which was then put into his revocable living trust. Defendants assert that this transfer was not fraudulent and the facts will show that Robert Pickle always owned the residence. II. LIABILITY It is believed that the Plaintiff cannot meet her burden of proof to establish any liability for fraudulent transfer. In order for the second lawsuit for fraudulent transfer to become at issue, Plaintiff will have to prove liability with an award of punitive damages against the Defendant Susan Clarke in the underlying accident case no. 16CV299824. Plaintiff will also have to show that her claim for injuries is reasonable and that she is not responsible in any manner for such alleged injuries. MANDATORY SETTLEMENT CONFERENCE 2 STATEMENT10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff claims that Defendant Susan Clarke was under the influence of alcohol at the time of the incident which was a cause of the auto accident on or about August 19, 2015. This is the basis which Plaintiff asserts a claim for punitive damages in case no. 16CV299824 which she then asserts exposes the Defendants in the fraudulent transfer action to liability and damages. Defendants believe that the evidence will show that the Defendant Susan Clarke was not under the influence of alcohol as being a cause of the auto accident. In addition, if Plaintiff's theory is that Defendant was intoxicated while driving, then Plaintiff would have had a duty to protect herself and not agree to be a passenger in the vehicle. Plaintiff claims her and Defendant Susan Clarke were leaving a bar and thus Plaintiff would have a duty not to get into a car with an alleged intoxicated driver. Accordingly, it may be that a court or jury will find fault on the part of the Plaintiff. It is also believed that Plaintiff will not make a credible witness due to various factors of her past. The primary elements of a fraudulent transfer case are as mandated in Civil Code Sec. 3439.04 which states in pertinent part: (a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: (1) With actual intent to hinder, delay, or defraud any creditor of the debtor. (2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either:....” MANDATORY SETTLEMENT CONFERENCE 3 STATEMENTWw nN BP ia FE © OY HD Ww Plaintiff alleges in the second case no. 18CV321960 that a transfer recorded August 22, 2016 from Susan Clarke of any interest in the property located at 335 Loyola Drive, Aptos, Ca. to her father Robert Pickle was a fraudulent transfer. It is not believed that Plaintiff will be able to prove the elements in order to recover for a fraudulent transfer. The subject property was already owned by Robert Pickle who was on the prior Deed in joint tenancy with his daughter Susan Clarke. The subject property was purchased by Robert Pickle on or about November 2013. The evidence will show that he made the substantial down payment of approx. $140,000.00 to purchase the property and was always the owner. Defendant Robert Pickle took out a mortgage in his name for the purchase from American Financial in the amount of approx. $475,000.00. Defendant Susan Clarke was not a purchaser of the subject property. Robert Pickle merely put his daughter Susan Clarke on title with him for credit purposes and that she would have a place to live etc. It is believed that the claim for fraudulent transfer will fail at trial since a person cannot fraudulently transfer a property to themselves which they already own. Also, it is believed Plaintiff will not be able to show ill intent which is a fundamental element for fraudulent transfer. In addition, Defendants strongly oppose Plaintiff’s alleged damages from the auto accident. It is believed that the Plaintiff is an opportunist who is using her claim to make overinflated claims for damages from alleged injuries and other special damages. MANDATORY SETTLEMENT CONFERENCE 4 STATEMENTw nN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. DAMAGES Although the Plaintiff was injured in the accident, it is believed that she has severely exaggerated the extent of such injuries and claims for wage loss etc. Iv. SETTLEMENT The parties in both cases participated in a mediation on September 13, 2019 before Bernard Cotter Esq. Geico insurance Co. for Defendant Susan Clarke in the auto accident case no. 16CV299824 offered to tender the policy limits of $15,000.00 to Plaintiff in exchange for a release. At the mediation, Defendant Robert Pickle offered to contribute personal monies in the amount of $50,000.00 in exchange for a full release in favor of all Defendants only valid as an open offer at the mediation. This brought the total settlement offer at mediation to $65,000.00. Plaintiff rejected the offers at mediation and countered with an exorbitant amount of several hundreds of thousands of dollars. After the mediation, Plaintiff served Defendants a C.C.P, Sec. 998 offer of $299,999.99. This offer was rejected by the Defendants. There has not been any further substantial settlement discussions. V._ CONCLUSION Defendants believe that there is a strong probability of a defense judgment on the fraudulent transfer claim and thus the Plaintiff should substantially factor this into settlement discussions at the Mandatory Settlement Conference. DATED: January 29, 2020 KASS & KASS LAW OFFICES /S/ Bradley Kass BRADLEY KASS, ESQ. Attorney for Defendants MANDATORY SETTLEMENT CONFERENCE 5 STATEMENTB WN Yn w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare that: I am employed in the City of San Mateo, County of San Mateo, State of California. My business address is 1900 S. Norfolk Street, Suite 265, San Mateo, CA 94403. I am over the age of eighteen (18) years and am not a party to the within cause. On January 29, 2020, I served the within: DEFENDANTS’ MANDATORY SETTLEMENT CONFERENCE STATEMENT on counsel of record in said cause by email through eFiling System as follows: Richard E. Eichenbaum, Esq. CAPUTO & VAN DER WALDE, LLP ree@vanderwalde.com Geoffrey L. Meisner, Esq. KERN, SEGAL, MURRAY gmeisner@kernlaw.com Thomas J. Murray, Esq. KERN, SEGAL, MURRAY timurray@kernlaw.com I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on January 29, 2020, at San Mateo, California. SEES Neyda Carranza