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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
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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
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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
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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.
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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
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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