Preview
Richard E. Eichenbaum, Esq. SBN 157065
Jeff Atterbury, Esq. SBN 229462
CAPUTO & VAN DER WALDE LLP
51 E. Campbell Avenue, Suite 120
Campbell, CA 95008
(408) 733-0100
(408) 733-0123 fax
Attorneys for Plaintiff
LALANI NAILAU.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
LALANI NAILAU,
Plaintiff,
vs.
SUSAN M. CLARKE and ALBERT K.
CLARKE and DOES 1-20,
Defendants.
LALANI NAILAU,
| Plaintiff,
vs.
SUSAN M. CLARKE, ALBERT K. CLARKE,
ROBERT M, PICKLE & THE PICKLE
MARITAL TRUST, ROBERT M. PICKLE AS
TRUSTEE & DOES 1-25, inclusive.
Defendants.
| PLAINTIFF'S MOTION TO COMPEL
PURSUANT TO CCP 2031.310
Case No.: 16CV299824
PLAINTIFF’S NOTICE OF MOTION &
MOTION TO COMPEL PRODUCTION OF|
DOCUMENTS PURSUANT TO CCP
2031.310; MEMORANDUM OF POINTS &
AUTHORITIES; REQUEST FOR
MONETARY SANCTIONS
Date: April 30, 2019
Time: 9:00 a.m.
Dept.: 9
Complaint Filed:
Trial Date:
September 13, 2016
None
Case No.: 18CV321960
Complaint Filed:
Trial Date:
January 18, 2018
None
CAPUTO & VAN DER WALDE LL}
51.E. CAMPBELL AVENUE, SUITE 120
CAMPBELL, CA 95008 (408) 733-0100
PAGE 121)
To the Court, Defendants, and their respective attorneys of record:
NOTICE IS HEREBY GIVEN that on April 30, 2019 or as soon thereafter as the matter
may be heard, in Department 9 of this Court located at 191 North First Street, San Jose, CA 95113,
Plaintiff LALANI NAILAU will, and hereby does, move for a court order compelling production
of the Susan Clarke Asset Protection Trust, as requested pursuant to Plaintiff’s Demand for
Production, Set Two, served on Defendants on November 15, 2018. The motion will be made on
the grounds that Defendants improperly objected and refused to produce a highly relevant
document with their discovery response served on December 20, 2018.
Plaintiff also seeks monetary sanctions against Defendant Susan Clarke, Defendant Robert
Pickle, and their Counsel of Record, Bradley Kass, in the amount of $1,260.00 due to Plaintiff
being forced to file this motion to enforce Plaintiffs duly authorized and properly served Demand
for Production, Set Two. Plaintiff’s sanctions are authorized by CCP 2031.310(h).
The motion will be based on this notice of motion, on the declaration of Jeff Atterbury, the
memorandum of points and authorities served and filed herewith, on the papers and records on file
herein, and on such oral and documentary evidence as may be presented on the hearing of the
motion.
DATED: January x 2019
By:
JEFF ATTERBURY, ESQ.
Attorney for Plaintiff
PLAINTIFF'S MOTION TO COMPEL carro van pee WALDE Lif
PURSUANT TO CCP 2031.310 “CAMPBELL CA 20008 (06) 735-0100
PAGE 2|
| lawsuit is J6CV299824. Since this lawsuit contained an allegation of driving under the influence,
| Pickle caused to be filed a quitclaim deed to The Property in favor of, Robert M. Pickle,’ at the
| Clarke has no real assets, is not well-off, and still needs Defendant Pickle’s financial assistance.®
FACTS
On August 19, 2015, Plaintiff Lalani Nailau was a passenger in a vehicle being driven by
Defendant Susan Clarke that was involved in a car collision! Plaintiff filed a Complaint for
personal injuries in Santa Clara County on September 13, 2016, against Susan Clarke (the
Defendant driver) and Albert Clarke (the Defendant registered owner)” The case number for this
punitive damages were also pled. Those punitive damages are still pending in this litigation? At
the time of this car collision, Ms. Clarke held title to a piece of real property located at 335 Loyola
Drive in Aptos, California (hereinafter “The Property”). However, on August 22, 2016, during the
pendency of the aforementioned litigation, Defendant Susan Clarke and Defendant Robert M.
Santa Cruz County Recorder’s Office. On that same day, Defendant Robert M. Pickle executed a
Grant Deed of The Property, in favor of the Pickle Marital Trust.> Defendant Susan Clarke
admitted that the Pickle Marital Trust® has title to The Property when she filled out a sworn Asset
Declaration.”
The deposition of Defendant Pickle was conducted on October 11, 2018. At his deposition,
Mr. Pickle testified that in 2016 (after the underlying car collision had occurred) he paid an
attomey to create an asset protection trust for his daughter, Defendant Susan Clarke. He also
testified that Ms, Clarke has a copy of this asset protection trust. Finally, he testified that Ms.
This begs the question: Why does someone with no assets need an asset protection trust?”
1 Please sce Declaration of Jeff Atterbury.
2 Please sce attached here as Exhibit A.
3 Please sce attached order denying Defendant's motion to strike punitive damages, as Exhibit B.
4 Please see attached copy of the quitclaim deed, as Exhibit C.
5 Please see attached copy of the grant deed, as Exhibit D.
6 However, it should be noted that Defendant Susan Clarke refers to the trust as the Pickle Asser Protection Trust
7 Please see attached here as Exhibit E, at page 3 (bottom of page).
8 Please see attached here as Exhibit F, a copy of the relevant deposition transcript excerpts reflecting this
testimony.
9 Defendant Robert Pickle agrees. Please see Exhibit J, his deposition transcript, at page 134, lines 13-16, wherein
he admits that his daughter, Susan Clarke, has no assets to protect.
PLAINTIFF'S MOTION TO COMPEL CAPUTO & VAN DER WALDE LU}
51 E. CAMPBELL AVENUE, SUITE 120
PURSUANT TO CCP 2031310 CAMBBELL CA 95008, (408) 735-0100
PAGE 38 ||
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Plaintiff served a Demand for Production to Defendants on November 15, 2018, in which
Plaintiff asked for a copy of the Susan Clarke Asset Protection Trust.!° Defendants served their
response on December 20, 2018.'! No documents were produced. Instead, Defendants made
generalized objections based on “privacy” and “relevancy.”
MEET AND CONFER?”
On December 31, 2018, Plaintiff sent a meet and confer email to Defendant indicating the
basis and reasons why Defendant should voluntarily produce the Susan Clarke Asset Protection
Trust. Mr. Kass responded via email on January 7, 2019, reiterating the same objections he made in
his discovery response, by generalized objections on privacy and relevancy grounds. Plaintiff
responded to this email on January 8, 2019, in which Plaintiff invited Defendant to review the case
law cited in the Plaintiff's Motion to Compel, already filed in this matter, related to the Pickle
Asset Protection Trust. There was no subsequent response from Defendant. 3
POINTS & AUTHORITIES
CCP 203 1.310 reads in pertinent part:
(a) On receipt of a response to a demand for inspection, copying, testing, or
sampling, the demanding party may move for an order compelling further response
to the demand if the demanding party deems that any of the following apply:
(3) An objection in the response is without merit or too general.
Defendants were properly served, through their attorney, with a Demand for Production
requesting one set of documents, to wil, the Susan Clarke Asset Protection Trust. It’s clear from
Defendant Pickle’s deposition testimony that he paid an altorncy to create Defendant Susan
Clarke's Asset Protection Trust after the underlying claim for personal injuries had already
accrued, and was known to all parties. Defense Counsel, Bradley Kass, objected to the production
of Defendant Clarke’s Asset Protection Trust with generalized privacy and relevancy objections.
Mr. Kass has not provided any case law (in his discovery objections or meet and confer email) that
10 Please see attached here as Exhibit G, a true and correct copy of Plaintif{’s Demand for Production Set Two.
11 Picase see attached here as Exhibit H a truc and correct copy of Defendant’s Response to Plaintiff’s Demand
for Production, Set Two.
12 Please sce Declaration of Jeff Atterbury
13 Please sce attached here, as Exhibit I, a copy of all mect and confer emails.
PLAINTIFF'S MOTION TO COMPEL SF CARDREL RV Ee CURT Iat
PURSUANT TO CCP 2031310 Teas ine EN ens |eaoen erated
PAGE 44 |
5 |
16
17)
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19
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7A
supports his position. As Plaintiff has essentially already briefed this issue in the companion
“Motion to Compel the Pickle Asset Protection Trust,” (being heard on March 5, 2019) Plaintiff
will reiterate much of that same law in this motion.
Unlike privilege, the (privacy) protection afforded is qualified, not absolute. In each case,
the court must carefully balance the right of privacy against the need for discovery. Hill v.
National Collegiate Athletic Ass'n (1994) 7 Cath 1, 34-35. The right of privacy “protects the
individual's reasonable expectation of privacy against a serious invasion.” Pioneer Electronics
(USA), Inc. v. Sup.Ct. (Olmstead) (2007) 40 C4th 360, 370. (emphasis added)
Considerations the Court should include are as follows: 1) the purpose of the information
sought; 2) the effect that disclosure will have on the parties and the trial; 3) the nature of the
objections urged by the party resisting disclosure; and 4) the “ability of the court to make
an alternative order which may grant partial disclosure, disclosure in another form, or disclosure
only in the event that the party seeking the information undertakes certain specified burdens which
appear just under the circumstances.” Pioneer Electronics (USA), Inc. v. Sup.Ct. (Olmstead)
(2007) 40 C4th 360, 371.
Even if there is some arguable privacy consideration, the competing interests can be
“accommodated” by allowing partial disclosure of the confidential information, then the court can
limit its order accordingly. Valley Bank of Nevada v. Sup.Ct. (Barkett) (1975) 15 C3d 652, 658.
(emphasis added).
Furthermore, instead of denying discovery, the court may restrict who may inspect
confidential information and conditions under which such inspection will be allowed. Typically,
disclosure is limited to counsel for the party seeking discovery; and that counsel is ordered to use
such information only for purposes of the lawsuit. Moskowitz v. Sup.Ct. (Zemer) (1982) 137 CA3d
313, 318-319 (disapproved on other grounds in Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017)
3 CSth 531, 557.
In the present case, the Plaintiff has alleged that Defendant Robert Pickle conspired with
Defendant Susan Clarke and Albert Clarke to improperly transfer title to The Property in order to
PLAINTIFF'S MOTION TO COMPEL CAPUTO & VAN DER WALDE Li
PURSUANT TO CCP 2031.310 canara Dcaleenas|cnayeerned
PAGE 5avoid having The Property subjected to a judgment in a collateral personal injury case where
punitive damages are alleged. The Property, via a series of documents filed with the County
Recorder, was ultimately placed in a trust called the Pickie Marital Trust. Subsequent to this,
Defendant Pickle paid an attorney to draft the Susan Clarke Asset Protection Trust. The Clarke
Trust has no assets in it. Defendant Pickle admits that his daughter, Defendant Susan Clarke, does
not have any real assets, needs help paying her mortgage on The Property, and that she needs other
financial assistance from her father.
This ultimately leads to the question: Why does someone (Defendant Susan Clarke) with
virtually no real property, no vehicles, no substantial bank accounts, retirement accounts,
brokerage accounts, and constant financial assistance from her father, need an Asset
Protection Trust? What is there to protect? A reasonable answer is that it was Defendant Pickle’s
intent to have The Property transferred, upon his death,'* to Defendant Clarke’s Asset Protection
Trust, with the hope of frustrating Plaintiff's claims for all eternity. Accordingly, Plaintiff
maintains that she is entitled to review the Clarke Asset Protection Trust to determine its
interplay with the Pickle Asset Protection Trust and The Property.
The Susan Clarke Asset Protection Trust document is highly relevant, and only in the
possession of Defendant Robert Pickle and Defendant Susan Clarke. Any privacy interest
Defendants had in this document was waived when they sought to fraudulently transfer The
Property into The Pickle Marital Trust for the purposes of avoiding a judgment. Plaintiff should be
entitled to review this document in order to see what legal mechanisms these two Asset Protection
Trusts have in place, with respect to The Property. Plaintiff also should see how it is that The
Property can be transferred out of these trusts in the future.
It should be noted that Defendant Pickle admitted at his deposition that he created an asset
protection trust! for his daughter Defendant Susan Clarke in 2016 (well after Plaintiff Nailau
14 Please see, attached here as Exhibit F, a copy of Defendant Pickles deposition transcript, at page 40, line 4-6,
where Defendant Pickle admits that The Property will go 50/50 to each of his children from the Pickle Marital
Trust.
15 Please see, attached here as Exhibit F, a copy of Defendant Pickle’s deposition transcript, at page 37, line 7 to
page 38, line 8.
DrAINTIEE'S UNTION TO COUPE CAPUTO & VAN DER WALDE LL}
PLAINTIFF'S MOTION TO COMPEL Bre Canara Avenue suite ia
PURSUANT TO CCP 2031.310 Peete CAMPBELL, CA 95008 (408)733-0100suffered her personal injuries in 2015). Defendant also admitted at his deposition that Susan
2] Clarke’s Asset Protection Trust is going to be funded, upon his death, by his trusts, one of which
3 currently holds title to The Property.!® So essentially, upon Defendant Pickle’s death, The
a | Property that was fraudulently transferred from Defendant Susan Clarke to the Pickle
5| Marital Trust, will eventually be transferred to Defendant Susan Clarke’s Asset Protection
6 Trust, from the Pickle Marital Trust.
7| To the extent the Court determines these Defendants retain any privacy interest in these
S | trusts, the Court could certainly fashion some sort of discovery order that balances the interests of
Z both parties. For instance, the Court could enter a protective order for “attorney’s eyes only.” Or
7 | the Court could order the Defendants to produce the Susan Clarke Asset Protection Trust, but with
a permission to redact out any assets, other than The Property, while leaving all relevant trust
a verbiage for review.
BI REQUEST FOR MONETARY SANCTIONS
4 | This Court should impose sanctions against Defendant Susan Clarke, Defendant Robert
| Pickle, and his Counsel, Bradley Kass, for the misuse of the discovery process described in detail
16) above and in the attached declaration of Jeff Atterbury.
7 California Code of Civil Procedure § 2031.310(h) states:
8) “ch) Except as provided in subdivision (j), the court shall impose a monetary
19 sanction under Chapter 7 (commencing with Section 2023.010) against any party,
20 person, or attorney who unsuccessfully makes or opposes a motion to compel
further response to a demand, unless it finds that the one subject to the sanction
21 | acted with substantial justification or that other circumstances make the imposition
of the sanction unjust.”
B In the present case, Defendants and their Counsel cannot make a substantial justification for
24) their objection. Mr. Kass failed to provide any legal authority (other than to lay out blanket
25| “privacy” and “relevancy” claims. The Susan Clarke Asset Protection Trust is in the sole
26 | possession of Defendants Pickle and Clarke, and Plaintiff is entitled to review this trust to see if it
q7\\ reveals any further information about the fraudulent transfer of The Property.
| 16 Please see, attached here as Exhibit J, a copy of Defendant Pickle’s deposition transcript, at page 133-136.
PLAINTIFF'S MOTION TO COMPEL CAPUTO & VAN DER WALDE LL}
$1. CAMPBELL AVENUE, SUITE 120
PURSUANT TO CCP 2031.310 EAaPDEs tT CATesooE| ave) 750 0100
PAGE 7“privacy” and “relevancy” claims. The Susan Clarke Asset Protection Trust is in the sole
possession of Defendants Pickle and Clarke, and Plaintiff is entitled to review this trust to see if it
reveals any further information about the fraudulent transfer of The Property.
Plaintiff expended 3 hours conferring, researching, drafting, reviewing, preparing exhibits
and ultimately filing this motion to compel. Plaintiff’s Counsel, Jeff Atterbury, has been an
attorney for 15 years, with the last 7 years being focused exclusively on personal injury law. A fair
and reasonable hourly rate is $400.00 per hour. It also costs $60.00 to file this motion. Therefore,
Plaintiff requests $,1260.00 as monetary sanctions be ordered against Defendants Robert Pickle,
0 BAYA NW FF WN
Susan Clarke, and their Counsel of Record, Bradley Kass.
CONCLUSION
Plaintiff requests that this Court issue an order for Defendants to produce an unredacted,
| complete copy of the Susan Clarke Asset Protection Trust, including all amendments, addendums,
and any other additions from this trust’s inception. Finally, Plaintiff requests monetary sanctions in
the amount of $,1260.00 be awarded against both Defendants Robert Pickle and Susan Clarke, and
their Counsel of Record, Bradley Kass.
16)
"7
18)| DATED: sonny dws CAPUTO &¥,
19)
» By
a
ATTERBURY, ESQ.
Attormey for Plaintiff
PLAINTIFF'S MOTION TO COMPEL CAPUTO & VAN DER WALDE LL]
PURSUANT TO CCP 2031.310 PAGE 8 SIE Sear CN cons ce poateConsolidated Case Name: Nailau v. Clarke, et al.
Case No.: 16CV299824 (Consolidated w/i18CV321960)
1
2
| PROOF OF SERVICE
3 I am over the age of eighteen years and not a party to the within action. My business address
4 || is 51 East Campbell Avenue, Suite 120, Campbell, CA 95008. 1 am cmployed in the county of Santa
Clara where this service occurs. I am readily familiar with my employer's normal business practice
5) forcollection and processing of correspondence for mailing with U.S. Postal Service, and that practice
6
/
8
9
is that the correspondence is deposited with the U.S. Postal Service the same day as the day of
collection in the ordinary course of business.
On the date set forth below, following ordinary business practice, I served a true copy of the
foregoing document(s) described as:
PLAINTIFF'S NOTICE OF MOTION & MOTION TO COMPEL PRODUCTION OF DOCUMENTS
PURSUANT TO CCP 2031.310; MEMORANDUM OF POINTS & AUTHORITIES; REQUEST FOR
10 MONETARY SANCTIONS
iL | on the parties listed below.
pn x (BY MAIL) I caused ‘such envelope(s) with postage thereon fully prepaid to be placed in the United States
mail at Campbell, California.
B (BY FAX) by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below,
or as stated on the attached service list, on this date before 5:00 p.m.
(BY HAND-DELIVERY BY COURIER SERVICE) | caused such envelope(s) to be delivered to a same-
day courier service with delivery [ces provided for, addressed 10 the person(s) on whom it is to be served.
(BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an overnight delivery carrier
5 with delivery Cees provided for, addressed to the person(s) on wham it is to be served.
} (BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this date to the offices
16 of the addressee(s),
Other, ELECTRONIC MAIL -I caused the document(s) listed above to the email addresses set forth below,
14
17 or as stated on the attached service list, on this date.
18 | Thomas J. Murray, Esq. Attorney for Defendants,
Geoffrey Meisner, Esq. Susan M. Clarke and Albert K. Clarke
19) Kern, Segal & Murray
n» 1388 Sutter Street, Suite 600
San Francisco, CA 94109
21 Telephone: (415) 474-1900;
Facsimile: (415) 474-0302
2
B Bradley Kass, Esq. Altorney for Defendants,
_| Kass & Kass Law Offices SUSAN M. CLARKE, ALBERT K. CLARKE,
mA 1900 S. Norfolk Street, Suite 265 ROBERT M. PICKLE & THE PICKLE
sn Mo Soo oo MARITAL TRUST, ROBERT M. PICKLE AS
Fx: 650.579.0760 TRUSTER
2
er the laws
| I certify and declare under penalty of perjury
27\| is true and correct, )
Executed on: January WD, 2019
ifornia that the foregoing
| Corene Abrego
PROOF OF SERVICE
Preview
Richard E. Eichenbaum, Esq. SBN 157065 Jeff Atterbury, Esq. SBN 229462 CAPUTO & VAN DER WALDE LLP 51 E. Campbell Avenue, Suite 120 Campbell, CA 95008 (408) 733-0100 (408) 733-0123 fax Attorneys for Plaintiff LALANI NAILAU. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA LALANI NAILAU, Plaintiff, vs. SUSAN M. CLARKE and ALBERT K. CLARKE and DOES 1-20, Defendants. LALANI NAILAU, | Plaintiff, vs. SUSAN M. CLARKE, ALBERT K. CLARKE, ROBERT M, PICKLE & THE PICKLE MARITAL TRUST, ROBERT M. PICKLE AS TRUSTEE & DOES 1-25, inclusive. Defendants. | PLAINTIFF'S MOTION TO COMPEL PURSUANT TO CCP 2031.310 Case No.: 16CV299824 PLAINTIFF’S NOTICE OF MOTION & MOTION TO COMPEL PRODUCTION OF| DOCUMENTS PURSUANT TO CCP 2031.310; MEMORANDUM OF POINTS & AUTHORITIES; REQUEST FOR MONETARY SANCTIONS Date: April 30, 2019 Time: 9:00 a.m. Dept.: 9 Complaint Filed: Trial Date: September 13, 2016 None Case No.: 18CV321960 Complaint Filed: Trial Date: January 18, 2018 None CAPUTO & VAN DER WALDE LL} 51.E. CAMPBELL AVENUE, SUITE 120 CAMPBELL, CA 95008 (408) 733-0100 PAGE 121) To the Court, Defendants, and their respective attorneys of record: NOTICE IS HEREBY GIVEN that on April 30, 2019 or as soon thereafter as the matter may be heard, in Department 9 of this Court located at 191 North First Street, San Jose, CA 95113, Plaintiff LALANI NAILAU will, and hereby does, move for a court order compelling production of the Susan Clarke Asset Protection Trust, as requested pursuant to Plaintiff’s Demand for Production, Set Two, served on Defendants on November 15, 2018. The motion will be made on the grounds that Defendants improperly objected and refused to produce a highly relevant document with their discovery response served on December 20, 2018. Plaintiff also seeks monetary sanctions against Defendant Susan Clarke, Defendant Robert Pickle, and their Counsel of Record, Bradley Kass, in the amount of $1,260.00 due to Plaintiff being forced to file this motion to enforce Plaintiffs duly authorized and properly served Demand for Production, Set Two. Plaintiff’s sanctions are authorized by CCP 2031.310(h). The motion will be based on this notice of motion, on the declaration of Jeff Atterbury, the memorandum of points and authorities served and filed herewith, on the papers and records on file herein, and on such oral and documentary evidence as may be presented on the hearing of the motion. DATED: January x 2019 By: JEFF ATTERBURY, ESQ. Attorney for Plaintiff PLAINTIFF'S MOTION TO COMPEL carro van pee WALDE Lif PURSUANT TO CCP 2031.310 “CAMPBELL CA 20008 (06) 735-0100 PAGE 2| | lawsuit is J6CV299824. Since this lawsuit contained an allegation of driving under the influence, | Pickle caused to be filed a quitclaim deed to The Property in favor of, Robert M. Pickle,’ at the | Clarke has no real assets, is not well-off, and still needs Defendant Pickle’s financial assistance.® FACTS On August 19, 2015, Plaintiff Lalani Nailau was a passenger in a vehicle being driven by Defendant Susan Clarke that was involved in a car collision! Plaintiff filed a Complaint for personal injuries in Santa Clara County on September 13, 2016, against Susan Clarke (the Defendant driver) and Albert Clarke (the Defendant registered owner)” The case number for this punitive damages were also pled. Those punitive damages are still pending in this litigation? At the time of this car collision, Ms. Clarke held title to a piece of real property located at 335 Loyola Drive in Aptos, California (hereinafter “The Property”). However, on August 22, 2016, during the pendency of the aforementioned litigation, Defendant Susan Clarke and Defendant Robert M. Santa Cruz County Recorder’s Office. On that same day, Defendant Robert M. Pickle executed a Grant Deed of The Property, in favor of the Pickle Marital Trust.> Defendant Susan Clarke admitted that the Pickle Marital Trust® has title to The Property when she filled out a sworn Asset Declaration.” The deposition of Defendant Pickle was conducted on October 11, 2018. At his deposition, Mr. Pickle testified that in 2016 (after the underlying car collision had occurred) he paid an attomey to create an asset protection trust for his daughter, Defendant Susan Clarke. He also testified that Ms, Clarke has a copy of this asset protection trust. Finally, he testified that Ms. This begs the question: Why does someone with no assets need an asset protection trust?” 1 Please sce Declaration of Jeff Atterbury. 2 Please sce attached here as Exhibit A. 3 Please sce attached order denying Defendant's motion to strike punitive damages, as Exhibit B. 4 Please see attached copy of the quitclaim deed, as Exhibit C. 5 Please see attached copy of the grant deed, as Exhibit D. 6 However, it should be noted that Defendant Susan Clarke refers to the trust as the Pickle Asser Protection Trust 7 Please see attached here as Exhibit E, at page 3 (bottom of page). 8 Please see attached here as Exhibit F, a copy of the relevant deposition transcript excerpts reflecting this testimony. 9 Defendant Robert Pickle agrees. Please see Exhibit J, his deposition transcript, at page 134, lines 13-16, wherein he admits that his daughter, Susan Clarke, has no assets to protect. PLAINTIFF'S MOTION TO COMPEL CAPUTO & VAN DER WALDE LU} 51 E. CAMPBELL AVENUE, SUITE 120 PURSUANT TO CCP 2031310 CAMBBELL CA 95008, (408) 735-0100 PAGE 38 || 9| "| Ml) 2 14 19) 21 Plaintiff served a Demand for Production to Defendants on November 15, 2018, in which Plaintiff asked for a copy of the Susan Clarke Asset Protection Trust.!° Defendants served their response on December 20, 2018.'! No documents were produced. Instead, Defendants made generalized objections based on “privacy” and “relevancy.” MEET AND CONFER?” On December 31, 2018, Plaintiff sent a meet and confer email to Defendant indicating the basis and reasons why Defendant should voluntarily produce the Susan Clarke Asset Protection Trust. Mr. Kass responded via email on January 7, 2019, reiterating the same objections he made in his discovery response, by generalized objections on privacy and relevancy grounds. Plaintiff responded to this email on January 8, 2019, in which Plaintiff invited Defendant to review the case law cited in the Plaintiff's Motion to Compel, already filed in this matter, related to the Pickle Asset Protection Trust. There was no subsequent response from Defendant. 3 POINTS & AUTHORITIES CCP 203 1.310 reads in pertinent part: (a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (3) An objection in the response is without merit or too general. Defendants were properly served, through their attorney, with a Demand for Production requesting one set of documents, to wil, the Susan Clarke Asset Protection Trust. It’s clear from Defendant Pickle’s deposition testimony that he paid an altorncy to create Defendant Susan Clarke's Asset Protection Trust after the underlying claim for personal injuries had already accrued, and was known to all parties. Defense Counsel, Bradley Kass, objected to the production of Defendant Clarke’s Asset Protection Trust with generalized privacy and relevancy objections. Mr. Kass has not provided any case law (in his discovery objections or meet and confer email) that 10 Please see attached here as Exhibit G, a true and correct copy of Plaintif{’s Demand for Production Set Two. 11 Picase see attached here as Exhibit H a truc and correct copy of Defendant’s Response to Plaintiff’s Demand for Production, Set Two. 12 Please sce Declaration of Jeff Atterbury 13 Please sce attached here, as Exhibit I, a copy of all mect and confer emails. PLAINTIFF'S MOTION TO COMPEL SF CARDREL RV Ee CURT Iat PURSUANT TO CCP 2031310 Teas ine EN ens |eaoen erated PAGE 44 | 5 | 16 17) 18 19 21 2 | 7A supports his position. As Plaintiff has essentially already briefed this issue in the companion “Motion to Compel the Pickle Asset Protection Trust,” (being heard on March 5, 2019) Plaintiff will reiterate much of that same law in this motion. Unlike privilege, the (privacy) protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. Hill v. National Collegiate Athletic Ass'n (1994) 7 Cath 1, 34-35. The right of privacy “protects the individual's reasonable expectation of privacy against a serious invasion.” Pioneer Electronics (USA), Inc. v. Sup.Ct. (Olmstead) (2007) 40 C4th 360, 370. (emphasis added) Considerations the Court should include are as follows: 1) the purpose of the information sought; 2) the effect that disclosure will have on the parties and the trial; 3) the nature of the objections urged by the party resisting disclosure; and 4) the “ability of the court to make an alternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information undertakes certain specified burdens which appear just under the circumstances.” Pioneer Electronics (USA), Inc. v. Sup.Ct. (Olmstead) (2007) 40 C4th 360, 371. Even if there is some arguable privacy consideration, the competing interests can be “accommodated” by allowing partial disclosure of the confidential information, then the court can limit its order accordingly. Valley Bank of Nevada v. Sup.Ct. (Barkett) (1975) 15 C3d 652, 658. (emphasis added). Furthermore, instead of denying discovery, the court may restrict who may inspect confidential information and conditions under which such inspection will be allowed. Typically, disclosure is limited to counsel for the party seeking discovery; and that counsel is ordered to use such information only for purposes of the lawsuit. Moskowitz v. Sup.Ct. (Zemer) (1982) 137 CA3d 313, 318-319 (disapproved on other grounds in Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 CSth 531, 557. In the present case, the Plaintiff has alleged that Defendant Robert Pickle conspired with Defendant Susan Clarke and Albert Clarke to improperly transfer title to The Property in order to PLAINTIFF'S MOTION TO COMPEL CAPUTO & VAN DER WALDE Li PURSUANT TO CCP 2031.310 canara Dcaleenas|cnayeerned PAGE 5avoid having The Property subjected to a judgment in a collateral personal injury case where punitive damages are alleged. The Property, via a series of documents filed with the County Recorder, was ultimately placed in a trust called the Pickie Marital Trust. Subsequent to this, Defendant Pickle paid an attorney to draft the Susan Clarke Asset Protection Trust. The Clarke Trust has no assets in it. Defendant Pickle admits that his daughter, Defendant Susan Clarke, does not have any real assets, needs help paying her mortgage on The Property, and that she needs other financial assistance from her father. This ultimately leads to the question: Why does someone (Defendant Susan Clarke) with virtually no real property, no vehicles, no substantial bank accounts, retirement accounts, brokerage accounts, and constant financial assistance from her father, need an Asset Protection Trust? What is there to protect? A reasonable answer is that it was Defendant Pickle’s intent to have The Property transferred, upon his death,'* to Defendant Clarke’s Asset Protection Trust, with the hope of frustrating Plaintiff's claims for all eternity. Accordingly, Plaintiff maintains that she is entitled to review the Clarke Asset Protection Trust to determine its interplay with the Pickle Asset Protection Trust and The Property. The Susan Clarke Asset Protection Trust document is highly relevant, and only in the possession of Defendant Robert Pickle and Defendant Susan Clarke. Any privacy interest Defendants had in this document was waived when they sought to fraudulently transfer The Property into The Pickle Marital Trust for the purposes of avoiding a judgment. Plaintiff should be entitled to review this document in order to see what legal mechanisms these two Asset Protection Trusts have in place, with respect to The Property. Plaintiff also should see how it is that The Property can be transferred out of these trusts in the future. It should be noted that Defendant Pickle admitted at his deposition that he created an asset protection trust! for his daughter Defendant Susan Clarke in 2016 (well after Plaintiff Nailau 14 Please see, attached here as Exhibit F, a copy of Defendant Pickles deposition transcript, at page 40, line 4-6, where Defendant Pickle admits that The Property will go 50/50 to each of his children from the Pickle Marital Trust. 15 Please see, attached here as Exhibit F, a copy of Defendant Pickle’s deposition transcript, at page 37, line 7 to page 38, line 8. DrAINTIEE'S UNTION TO COUPE CAPUTO & VAN DER WALDE LL} PLAINTIFF'S MOTION TO COMPEL Bre Canara Avenue suite ia PURSUANT TO CCP 2031.310 Peete CAMPBELL, CA 95008 (408)733-0100suffered her personal injuries in 2015). Defendant also admitted at his deposition that Susan 2] Clarke’s Asset Protection Trust is going to be funded, upon his death, by his trusts, one of which 3 currently holds title to The Property.!® So essentially, upon Defendant Pickle’s death, The a | Property that was fraudulently transferred from Defendant Susan Clarke to the Pickle 5| Marital Trust, will eventually be transferred to Defendant Susan Clarke’s Asset Protection 6 Trust, from the Pickle Marital Trust. 7| To the extent the Court determines these Defendants retain any privacy interest in these S | trusts, the Court could certainly fashion some sort of discovery order that balances the interests of Z both parties. For instance, the Court could enter a protective order for “attorney’s eyes only.” Or 7 | the Court could order the Defendants to produce the Susan Clarke Asset Protection Trust, but with a permission to redact out any assets, other than The Property, while leaving all relevant trust a verbiage for review. BI REQUEST FOR MONETARY SANCTIONS 4 | This Court should impose sanctions against Defendant Susan Clarke, Defendant Robert | Pickle, and his Counsel, Bradley Kass, for the misuse of the discovery process described in detail 16) above and in the attached declaration of Jeff Atterbury. 7 California Code of Civil Procedure § 2031.310(h) states: 8) “ch) Except as provided in subdivision (j), the court shall impose a monetary 19 sanction under Chapter 7 (commencing with Section 2023.010) against any party, 20 person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction 21 | acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” B In the present case, Defendants and their Counsel cannot make a substantial justification for 24) their objection. Mr. Kass failed to provide any legal authority (other than to lay out blanket 25| “privacy” and “relevancy” claims. The Susan Clarke Asset Protection Trust is in the sole 26 | possession of Defendants Pickle and Clarke, and Plaintiff is entitled to review this trust to see if it q7\\ reveals any further information about the fraudulent transfer of The Property. | 16 Please see, attached here as Exhibit J, a copy of Defendant Pickle’s deposition transcript, at page 133-136. PLAINTIFF'S MOTION TO COMPEL CAPUTO & VAN DER WALDE LL} $1. CAMPBELL AVENUE, SUITE 120 PURSUANT TO CCP 2031.310 EAaPDEs tT CATesooE| ave) 750 0100 PAGE 7“privacy” and “relevancy” claims. The Susan Clarke Asset Protection Trust is in the sole possession of Defendants Pickle and Clarke, and Plaintiff is entitled to review this trust to see if it reveals any further information about the fraudulent transfer of The Property. Plaintiff expended 3 hours conferring, researching, drafting, reviewing, preparing exhibits and ultimately filing this motion to compel. Plaintiff’s Counsel, Jeff Atterbury, has been an attorney for 15 years, with the last 7 years being focused exclusively on personal injury law. A fair and reasonable hourly rate is $400.00 per hour. It also costs $60.00 to file this motion. Therefore, Plaintiff requests $,1260.00 as monetary sanctions be ordered against Defendants Robert Pickle, 0 BAYA NW FF WN Susan Clarke, and their Counsel of Record, Bradley Kass. CONCLUSION Plaintiff requests that this Court issue an order for Defendants to produce an unredacted, | complete copy of the Susan Clarke Asset Protection Trust, including all amendments, addendums, and any other additions from this trust’s inception. Finally, Plaintiff requests monetary sanctions in the amount of $,1260.00 be awarded against both Defendants Robert Pickle and Susan Clarke, and their Counsel of Record, Bradley Kass. 16) "7 18)| DATED: sonny dws CAPUTO &¥, 19) » By a ATTERBURY, ESQ. Attormey for Plaintiff PLAINTIFF'S MOTION TO COMPEL CAPUTO & VAN DER WALDE LL] PURSUANT TO CCP 2031.310 PAGE 8 SIE Sear CN cons ce poateConsolidated Case Name: Nailau v. Clarke, et al. Case No.: 16CV299824 (Consolidated w/i18CV321960) 1 2 | PROOF OF SERVICE 3 I am over the age of eighteen years and not a party to the within action. My business address 4 || is 51 East Campbell Avenue, Suite 120, Campbell, CA 95008. 1 am cmployed in the county of Santa Clara where this service occurs. I am readily familiar with my employer's normal business practice 5) forcollection and processing of correspondence for mailing with U.S. Postal Service, and that practice 6 / 8 9 is that the correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business. On the date set forth below, following ordinary business practice, I served a true copy of the foregoing document(s) described as: PLAINTIFF'S NOTICE OF MOTION & MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO CCP 2031.310; MEMORANDUM OF POINTS & AUTHORITIES; REQUEST FOR 10 MONETARY SANCTIONS iL | on the parties listed below. pn x (BY MAIL) I caused ‘such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at Campbell, California. B (BY FAX) by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, on this date before 5:00 p.m. (BY HAND-DELIVERY BY COURIER SERVICE) | caused such envelope(s) to be delivered to a same- day courier service with delivery [ces provided for, addressed 10 the person(s) on whom it is to be served. (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an overnight delivery carrier 5 with delivery Cees provided for, addressed to the person(s) on wham it is to be served. } (BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this date to the offices 16 of the addressee(s), Other, ELECTRONIC MAIL -I caused the document(s) listed above to the email addresses set forth below, 14 17 or as stated on the attached service list, on this date. 18 | Thomas J. Murray, Esq. Attorney for Defendants, Geoffrey Meisner, Esq. Susan M. Clarke and Albert K. Clarke 19) Kern, Segal & Murray n» 1388 Sutter Street, Suite 600 San Francisco, CA 94109 21 Telephone: (415) 474-1900; Facsimile: (415) 474-0302 2 B Bradley Kass, Esq. Altorney for Defendants, _| Kass & Kass Law Offices SUSAN M. CLARKE, ALBERT K. CLARKE, mA 1900 S. Norfolk Street, Suite 265 ROBERT M. PICKLE & THE PICKLE sn Mo Soo oo MARITAL TRUST, ROBERT M. PICKLE AS Fx: 650.579.0760 TRUSTER 2 er the laws | I certify and declare under penalty of perjury 27\| is true and correct, ) Executed on: January WD, 2019 ifornia that the foregoing | Corene Abrego PROOF OF SERVICE