Motion for Consolidation in Lalani Nailau vs Susan Clarke et al| Trellis.Law

On September 13, 2016 a Motion-Secondary was filed involving a dispute between Lalani Nailau, and Albert K. Clarke, Robert M. Pickle, Susan M. Clarke, The Pickle Marital Trust, for Auto Unlimited (22) in the District Court of Santa Clara County.

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THOMAS J. MURRAY, ESQ. 154245
DANIEL G. BALICH, ESQ. 278105
GEOFFREY L. MEISNER, ESQ. 304986
KERN SEGAL & MURRAY
1388 Sutter Street, Suite 600
San Francisco, CA 94109
Tel: (415) 474-1900
Fax: (415) 474-0302

Attorney for Defendant,
SUSAN M. CLARKE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

SANTA CLARA COUNTY

10 UNLIMITED JURISDICTION
1 LALANI NAILAU, CASE NO.: 16CV299824
12 Plaintiff, DEFENDANT SUSAN M. CLARKE’S
OPPOSITION TO PLAINTIFF’S
13 VS. MOTION TO CONSOLIDATE
14 SUSAN M. CLARKE; ALBERT K.
CLARKE; AND DOES | THROUGH 20, DATE: Sept. 25, 2018
1S TIME: 9:00 am
Defendants. DEPT.: 9
16 /
7
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
18
Defendant SUSAN M. CLARKE (hereinafter “Defendant”) opposes the Plaintiff's
19
Motion to Consolidate Nailau v. Clarke, et al., Case No. 16CV299824 (hereinafter “accident
20
case”) and Nailau y. Clarke, et al. Case No.: 18CV321960 (hereinafter “property case”) on
21
the grounds that Plaintiff failed to demonstrate good cause as to why the cases should be
22
consolidated. The accident case concerns liability and personal injury damages caused as a
23
result thereof. The property case concerns a house that Plaintiff alleges title to which was
24
transferred in violation of the Fraudulent Transfer Act. There are no common facts or issues
25
in these cases and massive juror confusion is inevitable if it has to decide both real property
26
and personal injury claims cases simultaneously, especially when the real property is not
27
alleged to be a cause of the Plaintiff's personal injury claims. The witnesses are different, the
28
DEFENDANT SUSAN M. CLARKE’S OPPOSITION TO PLAINTIFF’S
MOTION TO CONSOLIDATE
claims are different, and the legal issues are substantively different. Further, there is real

prejudice to defendant if a fraud claim is introduced into the accident case. Not to mention

she is represented by different counsel in each case.

Instead of consolidation, Defendant requests that the accident case be stayed to allow

the property case to be fully adjudicated. Once the disposition of the property is resolved in

the property case, the probability of settlement in the accident case will greatly increase as the
parties will know if this potentially substantial asset is available to satisfy any excess

judgment.

Lastly, the property issue has to be decided before the punitive damages claim against

10 defendant can be litigated in the accident case. The house at issue is a big asset that will, or

W will not, be an issue in the punitive damages phase of the accident case.

12, MEMORANDUM OF POINT AND AUTHORITIES

13 I. FACTUAL BACKGROUND

14 Accident Case

15 The accident case stems from a 2 car accident that occurred on August 19, 2015 at the

16 intersection of Summit Road and Old Santa Cruz Highway in Santa Clara County, CA.

17 Defendant Susan M. Clarke, with Plaintiff Lalani Nailau in the front passenger seat, was

18 broad sided while traveling on Old Santa Cruz Highway.

19 Plaintiff's Complaint in the accident case, filed September 13, 2016, asserts causes of

20 action for General Negligence and Motor Vehicle Negligence against Susan M. Clarke.

21 The Plaintiff's Complaint in the accident case includes a prayer for punitive damages

22 based on an allegation that Defendant was intoxicated and failed to stop at a stop sign before

23 traveling into the subject intersection. Declaration of Daniel G. Balich at { 2, Exhibit A.

24 Plaintiff is seeking compensatory damages and punitive damages. The case is simple,

25 straightforward, and will likely require testimony of two parties, two lay witnesses, and four

26 expert witnesses. Defendant anticipates the case will require no more than 5-7 court days.

27 Property Cas

28 Atsome point following the motor vehicle accident, Defendant quitclaimed herself off
DEFENDANT SUSAN M. CLARKE’S OPPOSITION TO PLAINTIFF’S
MOTION TO CONSOLIDATE
~2-
of the deed to her father Robert Pickle’s home located at 335 Loyola Drive in Aptos, CA.

Plaintiff filed the property case based on an allegation that the transfer was unlawful and

intended to shield the home from a potential judgment in the accident case. Declaration of
Daniel G. Balich at 7 3, Exhibit B. Plaintiff seeks to void the post-accident conveyance and

restore the home to the financial condition of the Defendant so that it may be considered by

the jury in its assessment of punitive damages in the accident case.

Plaintiff asserted causes of action for Violation of Uniform Voidable Transfer Act-

UVTA per Civil Code Section 3439-3439.12 and for Conspiracy to Violate Uniform

Voidable Transfer Act-UVTA against Susan M. Clarke, Albert K. Clarke, Robert M. Pickle

10 and The Pickle Marital Trust, Robert M. Pickle as Trustee. Plaintiff is seeking the following

ll measures of damages:

12 1, That the transfer from Defendants Susan M. Clarke & Albert K. Clarke to

13 Defendant Robert M. Pickle, filed April 13, 2016, at the Santa Cruz County

14 Recorder's Office, be set aside or be annulled and declared void as to the Plaintiff

15 herein to the extent necessary to satisfy Plaintiff s claim in the sum of-according to

16 proof, but well in excess of $25,000-—-plus interest thereon at the rate of 10% percent

17 per annum from August 19, 2015;

18 2. That the quitclaim deed transfer from Defendants Susan M. Clarke to Robert M.

19 Pickle, filed August 22, 2016, at the Santa Cruz County Recorder's Office, be set aside

20 and/or be annulled and declared void as to the Plaintiff herein to the extent necessary

21 to satisfy Plaintiffs claim in the sum of $1,000,000 plus interest thereon at the rate of

22 10% percent per annum from August 19, 2015;

23 3. That the transfer from Defendant Robert M. Pickle to the Pickle Marital Trust filed

24 August 22, 2016, at the Santa Cruz County Recorder's Office, be set aside and/or be

25 annulled and declared void as to the Plaintiff herein to the extent necessary to satisfy

26 Plaintiffs claim in the sum of $1,000,000, plus interest thereon at the rate of 10%

27 percent per annum from August 19, 2015;

28 4. That the property in the hands of Defendant Robert M, Pickle, as trustee for the
DEFENDANT SUSAN M. CLARKE’S OPPOSITION TO PLAINTIFF’S
MOTION TO CONSOLIDATE
e3e
Pickle Marital Trust be attached in accordance with the provisions of Sections

481.010 through 493.060 of the Code of Civil Procedure,

5, That Defendant Robert M, Pickle, as trustee for the Pickle Marital Trust be

restrained from disposing of the property transferred until Santa Clara County

Superior Court Case number 16CV299824 has resolved via a full and final judgment,

verdict or settlement, which date is currently unknown, but will likely have matured.

by March 15, 2020, and the sum of $1,000,000 will be due and owing from these

Defendants;

6. That a temporary restraining order be granted to Plaintiff enjoining and restraining

10 Defendants Susan M, Clarke, Albert K Clarke & Robert M, Pickle, and their

I representatives, attorneys, and agents from selling, transferring, conveying, or

12 otherwise disposing of any of The Property;

13 7. That an order “pendente lite” be granted to Plaintiff enjoining and restraining

14 Defendants Susan M, Clarke, Albert K Clarke & Robert M, Pickle and their

15 representatives, , attorneys, servants, and agents from selling, transferring, conveying,

16 assigning, or otherwise disposing of any of The Property;

17 8. That the judgment herein be declared a lien on the property transferred;

18 9. That an order be made declaring that Defendants Susan M. Clarke & Albert K

19 Clarke hold the entirety of The Property described above in trust for Plaintiff;

20 10. That Defendants Susan M. Clarke, Albert K Clarke & Robert M, Pickle be

21 required to account to Plaintiff for all profits and proceeds earned from or taken in

22 exchange for the property described above;

23 11. For general damages in the sum of -according to proof but in excess of $25,000;

24 12. For special damages according to proof;

25 13. For exemplary or punitive damages;

26 IL. LEGAL AUTHORITY

27 Pursuant to California Code of Civil procedure § 1048(a)-(b), when actions involving

28 acommon question of law or fact are pending before the count, it may order a joint hearing or
DEFENDANT SUSAN M. CLARKE’S OPPOSITION TO PLAINTIFF’S
MOTION TO CONSOLIDATE
-4-
trial of any or all the matters in issue in the actions; it may order all the actions consolidated

and it may make such orders concerning proceedings therein as may tend to avoid

unnecessary costs or delay. (Cal. Civ. Proc. Cade § 1048(a)-(b)).

The court, in furtherance of convenience or to avoid prejudice, or when separate trials

will be conducive to expedition and economy, may order a separate trial of any cause of

action, including a cause of action asserted in a cross~complaint, or of any separate issue or of

any number of causes of action or issues, preserving the right of trial by jury required by the

Constitution or a statute of this state or of the United States. (/d.)

II. ARGUMENT

10 Common Questions of Law/Fact

ll The Court has discretion to consolidate actions that involve common questions of law

12 and fact. The accident case and the property case do not have any common facts. One is an

13 auto accident. The other concerns the transfer of real property. Nor do these cases have the

I4 same parties. There are no common facts, no common questions of law, and the cases

Is involve different parties.

16 Plaintiff, in her Motion to Consolidate, makes broad stroke assertions that the cases

17 involve common questions of law and fact but fails to specify what those are. Plaintiff asserts

18 on page 4 and 5 of the present Motion,

19 “there is clearly a large overlap of the operative facts between the two cases. The

20 initial car collision created a claim by Plaintiff to be paid/honored by Defendant Susan

21 Clarke. Punitive damages have always been present in the first complaint. But for the

22 fraudulent conveyance by the Defendants, the second lawsuit would never have been

23 necessary and this matter would have gone to trial back on March 19, 2018. The

24 Defendants collective actions are the sole cause of the UVT A lawsuit. The Plaintiff is

25 simply trying to restore the status quo as it existed prior the fraudulent conveyance, so

26 that the jury may consider The Property (and its $647,000+equity) when deliberating

27 over punitive damages.”

28 Plaintiff is saying that the property should be available to satisfy any judgment
DEFENDANT SUSAN M. CLARKE’S OPPOSITION TO PLAINTIFF’S
MOTION TO CONSOLIDATE
-5-
awarded in the auto accident case. But it is not part of the auto accident case. The property

has no bearing on the damages caused by the auto accident. The property only becomes

“relevant” in the auto accident case if Plaintiff prevails and gets a large enough award to have

standing to attach a judgment lien on the property if said judgment is not satisfied by other

means. The motion should be denied.

Extreme Prejudice

Consolidating these actions would have Defendant’s financial condition adjudicated

by a jury prior to a finding of any liability and/or damages in the auto accident case. These

issues should be adjudicated in front of a separate jury prior to the commencement of the trial

10 in the accident case so as to avoid the clear and certain prejudice that would be caused by a

WW consolidated trial.

12 To adjudicate Plaintiff's allegations that the property was fraudulently conveyed and

13 essentially hidden by Defendant, her father, her husband, and a Trust, in front of the same jury

14 that hears evidence/argument on Defendant's motor vehicle negligence and alleged

15 intoxication, which will be in serious dispute, would be extremely and unduly prejudicial to

16 the Defendant in the accident case. The jury would have to sit through several weeks of trial

17 and hear testimony from a slew of lay witnesses and experts in regards to allegations of fraud

18 and conspiracy. Further, they’d hear testimony and examine evidence in relation to the

19 financial condition of Defendant’s father, Robert Pickle, who is not a party in the auto

20 accident case. They’d hear testimony and examine evidence in relation to the financial

21 relationship between Bob Pickle and his daughter defendant Susan M. Clarke. They'd hear

22 testimony and examine evidence on the financial condition and dealings of Defendant’s

23 husband, Albert K. Clarke, who was dismissed from the accident case given he had no

24 involvement whatsoever in the underlying accident. Any findings or opinions of the jury

25 made against Bob Pickle, Albert K. Clarke, the Trust or its administers, or against Defendant

26 Susan M. Clarke in the property case will inevitably bleed over into the jury’s evaluation of

27 the accident case to the great prejudice of defendant, Susan Clarke as well as her husband,

28 who has been dismissed from the auto case.
DEFENDANT SUSAN M. CLARKE’S OPPOSITION TO PLAINTIFF’S
MOTION TO CONSOLIDATE
z6e
IV. CONCLUSION

The accident case and the property case involve no common questions of law, fact,

parties and/or witnesses. And allowing adjudication of Defendant’s financial condition and

liability for real property transfer fraud and conspiracy before the same jury that decides the

auto personal injury case, where financial condition of the parties is specifically excluded,

would be extremely and unduly prejudicial to the Defendant.

Given the above, Defendant respectfully requests that the Plaintiffs Motion to

Consolidate be denied and that the accident case (Nailau_v. Clarke, et al., Case No.

16CV299824) be placed on a stay until final adjudication of the property case (Nailau_y,

10 Cla rke, et al, Case No.: 18CV321960).

I DATED: 9/41 /1B
12 KERN SEGAL & MURRAY
13

14 By: LR thn.
THOMAS J. MURRAY
15 DANIEL G. BALICH
GEOFFREY L. MEISNER
16 Attorney for Defendants,
SUSAN M. CLARKE and ALBERT K.
17 CLARKE
18

28
DEFENDANT SUSAN M. CLARKE’S OPPOSITION TO PLAINTIFF’S
MOTION TO CONSOLIDATE
-7-
DECLARATION OF DANIEL G. BALICH, ESQ.

I, Daniel G. Balich, declare as follows:

I I am an attorney duly licensed to practice before all the courts of California, and I

am a partner attorney with Kern Segal & Murray, attorneys for Defendant Susan M.

Clarke. I could and would competently testify to the matters stated herein if called upon to

do so.

2. Attached hereto as “Exhibit A” is a true and correct copy of the Plaintiff's
Complaint in the “Accident Case”.

3. Attached hereto as “Exhibit B” is a true and correct copy of the Plaintiffs

10 Complaint in the “Property Case”.

iM I declare under penalty of perjury under the laws of the State of California that the

12 foregoing is true and correct, and that this Declaration was executed on September —!,

13 2018, in San Francisco, California.

14 [rw PL

15 DANIEL G. BALICH

28
DEFENDANT SUSAN M. CLARKE’S OPPOSITION TO PLAINTIFF'S
MOTION TO CONSOLIDATE
Ris
EXHIBIT A
ENDORSE fo:P1001
[_ATonney on Party yOUE ATTORNEY (tiers, Sate Bar nary.
[— Richard E. Eichenbaum, Esq. SBN 157065; ‘Banc,"Schaar, Esq, SBN 257737
ren folioseur
Caputo & Van Der Walde LLP
51 E. Campbell Ave., Suite 120 SEP 13 2014
Campbell, CA 95008
TeLePHoNe No: (408) 733-0100 axa (Op0m9 (408) 733-0123 34
E-MAK ADDRESS (Oprenug: nme eg Con
Cay
artonney son wens); Lalani Nailau, Plaintiff =
SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara ra
stneeranoness- 19} N. Ist St.
wanwic anoress: 19] N. Ist St.
ervanonpcove: San Jose, CA 95113
arancuawe; Downtown Superior Court, Unlimited Jurisdiction
PLAINTIFF: Lalani Nailau

DEFENOANT: Susan M. Clarke; Albert K, Clarke; and

bogs:to 20
COMPLAINT—Personal injury, Proparty Damage, Wrongful Death
(CJ AMENDED (Number):
Type (check ail that apply):
JOTOR VEHICLE [1 OTHER (specify)
Property Damage [=] Wrongfut Death
(4) Personal Injury C2) Other Damagos (specify): Exemplary
Jurisdiction (ehack all that apply): CASE NUMBER:
[] ACTION IS A LIMITED CIVIL CASE
Amount demanded [__] doos not exceed $10,000 16cVve29 2 4.
(—} exceeds $10,000, bul does nol exceed $25,000
(2) ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000)
[ACTION Is RECLASSIFIED by this amended complaint
CJ trom timitad to untimited
(J) fram unlimited to limited
4. Plaintiff
(namo or names): Lalani Nailau
alleges causes of action against defendant (name or namas):
Susan M. Clarke; AlbertK. Clarke; and Does | through 20
2. This pleading, including attachments and exhibits, consists of the following number of pages: 6
3. Each plaintiff named above Is a compelont adult
a. (__] except plaintiff (name):
(4) 8 corporation qualified to da businass in California
(2) [-_] an unincorporated enlity (describe):
(3) () a pubtic entity (describe).
(4) 2) aninor (J an adutt
(2) (1) for whom = guardian of conservator of the estate or a guardian ad litem has been appointed
(b} [2] other (spocity):
45} () other (specify)
b. [except plaintit (name)
a) B corporation quatified (o do business in California
(2) [) an unincorporated entity (describo):
(3) (2) a public entity (describe):
(4) 2) aminor (J an adutt
(a) (7) for whom a guardinn or conservator of the estate or a guardian ad litem has baen appointed
{b) (7) other (spacity):
(5) [J other (specity):
[7 taformation about additional plaintitis who are not competent adutls is shown in Attachment 3. Page told
TAretevad fox Opvonai Ure COMPLAINT—Persona! Injury, Property Ce oT Gra radar, 4475 17
cago
PLO-PHOW! Pv, January1, 2907] Damaga, Wrongfut Death
PLD-PI-001

I |
————s —=
SHORT TITLE:
| Nailau v. Clarke, et al.

4, (2) Piaintiff (name}:
is doing businass under the ficlilious namo (specify):
and has complied with tha fictitlous businass name laws.
5, Each dofondent nemed above fs a natural person
a. £2] except defendant (name); a except defendant (name);
(1) [77] 5 business organization, form unknown 4) a business organization, form unknown
(2) [_] a corporation (2) (_) a corporation
(3) [J an unincorporated antity (describa): (3) [_] nn unincorporated entity (describe):
(4) (2) a puntic entity (describe): (4) 2) a public entity (describe):
(8) [J other (specify): (5) (7) otter (specify):

b. [[_) excopt defendant (name): d. (1 oxcopt dofendant (name):
(1) (2) 8 business organization, form unknown (1) [2] a business organization, form unknawn
(2) (__] a corporation (2) [J a corporation
(3) [-] an unincorporated entity (desenbe): (3) () anunincorparatad entity {describe};

(4) (2) a public entity (dascrba): (4) () a publte entity (describe):
(5) (7) other (specity): (5) () othar (spacity):

[1 information about additional defendants who are not natural persons is contalned In Attachment 5.
The true names of defendants sued as Does are unknown to plainiff,
Doe defendants (specify Ooe numbers): 1 through 20 were the agonts or employees of other
named defendants and acted wilhin the scope of that agency or employment.
b. Doo defendants (spacity Doe numbers):_1 through 20 ava persons whose capacilies are unknown to
plaintiff,
(J Defendants who are joined undar Codo of Civil Procedure section 382 are {namas):

This court fs (he proper court because
a, (2) atleast one defendant now resides in Ils Jurisdictional area.
», [J the principal placa of business of a defandant corporation or unincorporated association Is In|ts Jurisdictional area,
Injury to parson of damage to personal property occurred in its jurisdict onal ara.
él other (specify):

() Plalotit is requirad to comply with a claims statute, and
8. [J has complied with applicable clakms stalutes, or
b. (J is excused fram complying because (specify):

=
OPLOON ew. taney 2007] COMPLAINT—Personal Injury, Property Pagezela
Damage, Wrongful Death
— a PLD-PI-001
SHORT THLE: CASE NUMBER
Naitau v. Clarke, et al.
— i St is = a
10. The following causes of action aro attached and the statements above apply to oach (each complaint must hava one or more
causes of action altached)
Motor Vehicle
General Negligence
intentional Tort
1. [J Products Liability
(J) Premises Liabitity
2) other (spacity):

44, Piainiltt has suifored
wage loss
Joss of uso of property
ospltal and medical oxpansos
general damago
Property damege
3s of carning capacity
other damage (spacity):
Pre-judgment interest pursuant to Civil Code section 3291

12. (7) The damages elsimad far wrongful death and the ratatlonships of pleintill to the deceased are
a. [_] listed in Attachmont 12,
b. [Jas talows:

13, Tha relief sought in this complaint is within the jurisdiction of this court.

14, Plaintiff prays for judgment for costs of suit; for such roliof as |s falr, just, and equitable; and for
a (1) compensslary damages:
(2) punitive damagas
The int of damages Is {in cases for personal injury or wrongful dealt, you must check (1)):
(1) according to proof
(2) (2) ia the amount of: $
15. (Z1] The paragraphs of this complaint allaged on information and bollef are as follows (specify paragraph numbers):

Data: September 1, 2016

Richard E. Eichenbaum, s b ‘
(hee a AT NAME} (SIGNATUREOF PLALITIFF OF ATTORNEY]
PLD-PI-001 Pees. Janay 1, 2007] COMPLAINT—Personal Injury, Property Page zeta
Damage, Wrongful Death
PLD-PI-004(4)
ss
‘SHORT TITLE, CASC NUMBER
Nailau v. Clarke, et al.
= = —

First GAUSE OF ACTION—Motor Vehicle
{oumbor)
ATTACHMENT TO Complaint (—] Cross
- Comptaint
(Use a saparote cause of acticn form for each causa of action)
Plaintiff (cama): Lalani Nailau
MV- 1, Plaintiff alleges the acts of defendants wera negligent; ihe acts were the legal (proximate) cause of injuries
and damages to plaintiff; ha acts occurrad
on (dato): August 19, 2015
at (placa):
Summit Road, at intersection with Old Santa Cruz Highway, in unincorporated Santa Clara County,
California.

MV- 2, DEFENDANTS
a The defendants wha operated a mator vehicto are (names):
Susan M. Clarke; and

[Z) boos 1 to 20
b Tho dofendants who employed tho persons who operated a motor vehicle in the course of thair employment
are (names):
Albert K. Clarke; and

Does 1 to 20
The defendants who owned the motor vahicla which was operated with thelr permission ara (names):
Susan M. Clarke; Albert K. Clarke; and

Boas 1 to 20
. The defendants who entrusted the motor vehicle ere (names):
Albert K. Clarke; and

C®) Does 1 to 20
Tha defondants who wore tha agants and omployses of the othar defendants and acted within the scopa
of the agency ware (names):
Susan M. Clarke; Albert K. Clarke; and

Does to 20
The dafendanis who are liable ta plaintiffs for other reasons and tho reasons for the liability aro
CO) bsted in Attachment MV-2t J as follows:
Defendants, and each of them, are further liable to Plaintiff at common law and under Civil
Code section 1714 for their failure to exercise due care under existing conditions, thereby
causing injuries and damages to Plaintiff.

(2) Coes 1 to 20 Page 4

Pages oft
Ferm Approved
tor Opto) Ue CAUSE OF ACTION—Motor Vehicle Coca ot Grrl Proceoure 435.32
exo bnat yn denny 1 2807] ercoustnnsCa pow
= i PLD-P1-004(2}
| SHORT TITLE:
| Nailaw
: v. Clarke, et al,
ee

Second CAUSE OF ACTION—General Negligence Page 5
(number)
ATTACHMENT TO. Complaint [—) Cross - Complaint
(Uso @ separate cause of action form for exch cause of action.)

GN-1, Plaintiff (rame): Lalani Nailau
alleges that defendant (name): Susan M. Clarke, Albert K. Clarke; and

[41 boos 1 to 20

was tha legal (proximate) cause of damages to plalniiff, By the foliowing acts or omissions to act, defendant
negligently caused the damage to plainliff
on (date); Aupust 19, 2015
at (place): Summit Rd, at intersection with Old Santa Cruz Hwy, Senta Clara County, CA
(easeriplion of raasans for liability):
On or about the above date, and at or about the above location, Plaintiff was a front seat passenger
in a vehicle operated by Defendant Susan M. Clarke, and owned by Defendants Susan M. Clarke
and Albert K, Clarke, Defendant Susan M. Clarke was waveling southbound on Old Santa Cruz
Highway approaching a stop sign at the intersection of Old Santa Cruz Highway and Summit
Road. Defendant Susan M. Clarke failed to stop at the stop sign controlling traffic for her
direction of travel, and failed to yield the right of way to traffic on Summit Road. As Defendant
Susan M. Clarke entered the intersection, the vehicle was struck by oncoming traffic, causing
serious injuries and damages to Plaintiff Nailau,

In doing the acts described above, Defendant Susan M. Clarke violated Califomia Vehicle Code
sections 22450, for failing to stop at a stop sign, and 21802, for failing to yield the right of way to
vehicles approaching from another highway. These stacutes were enacted for safety purposes and
were designed to protect people in the same class as Plaintiffs, that is, persons Jawfully upon the
roadways. The violation of these code sections were a cause of the subject incident, and of
Plaintiff's resultant injuries and damages.

Defendants, and each of them, are further liable to Plaintiff at common law and under Civil] Code
section 1714 for their failure to exercise due care under existing conditions, thereby causing
injuries and damages to Plaintiff.

Page tert
Ferm Approvedtoe Opona Wie (Cade
al Ene Precadury O25 12
kideaa: Gouna ome. CAUSE OF ACTION—General Negligance enlace gee
Pruuirg0i(a] [fie January 1, 2007]
PLD-PI-004(6
SHORT TITLE: case nawaee
Nailau v. Clarke, et al.

Exemplary Damages Attachment Page
ATTACHMENT
TO (2) Complaint (7) Cross
- Complaint

EX-1. As addlilonal damages against defendant (nama):
Susan M. Clarke
Plaintiff altogas defendant was guily of
CZ) matice
C4) traud
C5 oppression
as definad in Civil Codo section 3294, and plainliff should recovar, in addition to actual damages, damages:
ta make an axample of and to punish dafondant.
EX-2, The facts supporting plaintiffs claim aro as follows:
On or about August 19, 2015, and at or about the intersection of Summit Road at Old Santa Cruz
Highway in Santa Clara County, California, Plaintiff was a front seat passenger in a vehicle
operated by Defendant Susan M. Clarke. Defendant Clarke was traveling southbound on Old
Santa Cruz Highway approaching a stop sign at the intersection of Old Santa Cruz Highway and
Summit Road. Defendant Clarke failed to stop at the stop sign controlling traffic for her direction
of travel, and failed to yield the right of way to traffic on Summit Road. As Defendant Clarke
entered the intersection, the vehicle was struck by oncoming traffic, causing serious injuries and
damages to Plaintiff Nailau.

Plaintiff
is informed and believes, and thereon alleges, that prior to the automobile collision that is
the subject of this lawsuit, Defendant Susan M. Clarke willfully consumed alcoholic beverages to
the point of intoxication, knowing that she thereafter would or must operate a motor vehicle.
Defendant Susan M. Clarke performed these actions, willfully consuming such intoxicating
beverages, knowing that such activity would thereby combine sharply impaired physical and
mental faculties with a vehicle capable of great force and speed, thereby exhibiting a conscious
disregard for the rights and safety of Plaintiff. See Taylor v. Superior Court (1979) 24 Cal.3d 890,
895. Defendant Susan M. Clarke's acts as described herein constitute despicable conduct carried
on in conscious and willful disregard of the rights and safety of Plaintiff.

X-3. Tha amount af exemplary damages sought is
a, not shown, pursuant to Code of Civil Procadure section 425.10.
o Cos
— 1
Form Aceroved
tor Ontonel Vow Coe ol Co Procacera, §
‘CaRtom ‘Exomplary Damages Attachment wren Durt¥O 3 gov
muoimoont or demvery 1 2007]
EXHIBIT B
I Richard EB. Bichenbaum, £sq., SBN 157065
Jeff Atterbury, Esq., SBN 229462
CAPUTO & VAN DER WALDE LLP
(ENDORSED)

F
51E. Campbell Avenue, Suite 120
i Campbell, CA 95008
is
(408) 733-0100 iLeE
4| (408) 733-0123 fax JAN 18 2018
5| Attorneys for Plaintiff,
LALANI NAILAU Clerk of the Court
6! Supertor Court of CA County of Santa Ciara
BY___a-ipponez———DEPUT)

7| SUPERIOR COURT OF CALIFORNIA
8)
COUNTY OF SANTA CLARA
9;
Unlimited Jurisdiction
105
a LALANI NAILAU,
Case No.: 180 ¥3.1969
2 Plaintif?, VERIFIED COMPLAINT TO SET ASIDE
B vs.
FRAUDULENT TRANSFERS
PURSUANT TO THE UNIFORM
4 VOIDABLE TRANSFER ACT (UYTA),
SUSAN M. CLARKE, ALBERT K. CLARKE, FOR DAMAGES AND A TEMPORARY
ROBERT M. PICKLE & THE PICKLE RESTRAINING ORDER; CONSPIRACY
MARITAL TRUST, ROBERT M. PICKLE AS TO VIOLATE THE UVTA
16 TRUSTEE & DOES 1-25, inclusive,

7 Defendants.

19;

Plaintiff alleges by and through the within verified complaint the following:
21
THE PARTIES

1. Defendant Susan M. Clarke is, and at al! times herein mentioned was, a resident of Santa

Cruz County, California. Defendant Albert K. Clarke is, and at all times herein mentioned was, a

resident of Santa Cruz County, California. Defendant Robert M. Pickle is, and at all times herein

mentioned was, a resident of Santa Clara County, California. Defendant Pickle Marital Trust,

Robert M. Pickle as trustee, is not a natural person, but rather a legal document (trust) that has

Robert M. Pickle as the trustee of said trust. Plaintiff is informed and believes and thereon alleges
B that at all times herein mentioned each of the defendants was the agent and employee of each of the|
PLAINTIP'S VERIFIED COMPLAINT TO SET ASIDE FRAUDULENT TRANSFER: CAPCTO & VAN DER WALDE LLP
TEMPORARY RESTRAINING ORDER & DAMAGES; CONSPIRACY 51 E CAMPBELL AVENUE, SUITE 120
CAMPBELL. CA 95008 (408) 733-0100
(
1
t
remaining defendants, and in doing the things hereinafter alleged, was acting within the course and

2!
| scope of such agency.
33 2. Plaintiff is ignorant of the true names and capacities, whether individual, corporate or

otherwise, of Defendants sued herein as DOES 1-25, inclusive, are unknown to plaintiff who

3| therefore sues these Defendants by such fictitious names. Plaintiff will amend this complaint to
6: allege their true names and capacities when ascertained, Plaintiff is informed and believes and

7) thereon alleges that each of the fictitiously named Defendants be in some manner responsible for

8! the events and happenings referred to in this complaint and/or claims an interest in the property

|| hereinafter described and which is the subject of this action and has caused damages proximately

10) and foreseeably thereby to plaintiff as herein alleged.

11} JURISDICTION
12: 3. Defendant Robert M. Pickle is a resident of Santa Clara County. The injury to Plaintiff
{|
Nailau occurred in Santa Clara County, in that, this is the location of her pending lawsuit against|
"i
4 Defendants Susan M. Clarke & Albert K. Clarke, in case number 16CV299824. Finally, some of

the acts to further the fraudulent transfer, as well as the conspiracy to commit the fraudulent!
I
16 transfer occurred in Santa Clara County, in that one of the Grant Deeds and one of the Quitclaim

7 deeds filed by the Defendants in the Santa Cruz County Recorder’s office were notarized and

18) signed by the Defendants in Santa Clara County.

9 : GENERAL ALLEGATIONS

4. From August 19, 2015, and at all times since that date, Plaintiff has been the holder of a

21) certain claim against Defendants Susan M. Clarke and Albert K. Clarke. This claim for monetary
n 1 compensation arises from an automobile collision, caused by Susan M. Clarke, that occurred on the'

By above date and which resulted in personal injuries being suffered by Plaintiff Lalani Nailau. A

copy of that lawsuit is attached hereto as Exhibit A. Pursuant to Evidence Code section 452 & 453

of the California Evidence Code, and California Rules of Court section 3.1306(c), Plaintiff hereby

26. requests that the Court take judicial notice of the filed Complaint in the case of Nailau v. Clarke et}

273 al., case number 16CV299824, filed September 13, 2016, with the Santa Clara County Superior
Bi Court.

PLAINTIFI'S VERIFIED COMPLAINT 10 SET ASIDE PRAUDULENT TRANSFER, CAPUTO & VAN DER WALDE LL?
TEMPORARY RESTRAINING ORDER & DAMAGES; CONSPIRACY SLE, CAMPBELL AVENUE, SUITE 120
CAMPBELL, CA 95008 (408) 733-0100
|
‘ (
5. No part of the aforementioned claim has matured, and no part of the sum Defendants|

2| 1
Susan M, Clarke & Albert K. Clarke is required to pay is due and owing, because the lawsuit for

3H damages in the underlying lawsuit, has not yet settled or resolved via judgment or verdict.

aij Currently, the jury trial is scheduled for March 19, 2018, in Santa Clara County Superior Court.

:
7\
FIRST CAUSE OF ACTION
{Violation of Uniform Voidable Transfer Act-UVTA)
Civil Code section 3439-3439,12

8h 6 On November 6, 2015, (2.5 months after the underlying car collision had occurred),
i
9! GEICO insurance, the carrier for Defendants Susan M. Clarke & Albert K. Clarke, represented to

10, Plaintiff that Defendants Susan M. Clarke & Albert K. Clarke only had $15,000 to offer as
iy
i " compensation for the car collision. This was not true.

" 7, On February 17, 2016, representative of GEICO communicated a policy limits offer of|

$15,000 to Plaintiff as full satisfaction for injuries and damages suffered by Plaintiff in the subject
14 car collision. On February 18, 2016, Plaintiff, through her attorneys, declined the offer and

informed GELCO’s representative that Plaintiff would be seeking additional compensation directly

16 from the tortfeasors in that case, to wit, Defendants Susan M. Ciarke & Albert K. Clarke.

rl 8. On November 15, 2013, Defendant Albert K. Clarke signed a notarized quitclaim deed

18, for a piece of real property, described as 335 Loyola Dr., Aptos, CA 95003, further described as'

19 "Lot 2 in Block 15, as shown upon the Map entitled, 'Subdivision No. 1, Aptos Beach Country!

Club Properties’, filed for record August 10, 1925, in Map Book 23, Page 1, Santa Cruz County

21. | Records, APN: 044-192-64" (hereinafter "The Property") in favor of his spouse, Defendant Susan
M. Clarke, This quitclaim deed was filed with the Santa Cruz County Recorder's Office on

December 6, 2013,

4 9. On April 6, 2016, Defendants Susan M. Clarke and Robert M. Pickle (Susan M. Clarke's

father) executed a notarized Grant Deed, which had the effect of reclassifying The Property as joint

tenants between Defendants Susan M, Clarke and Robert M. Pickle. Defendant Albert K. Clarke
a, consented to this Grant Deed by his own signature on the Grant Deed. This document was filed

3) with the Santa Cruz County Recorder's Office on April 13, 2016.

PLAINTIFF'S VERIFIED COMPLAINT TO SET ASIDE FRAUDULENT TRANSFER, CAPUTO & VAN DER WALDE LLP
TEMPORARY RESTRAINING ORDER & DAMAGES; CONSPIRACY

Case Info

Judge

Mark H. Pierce Track Judge’s New Case

Case No.

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Document Filed Date

September 05, 2018

Case Filing Date

September 13, 2016

County

Parties

Albert K. Clarke Defendant
Bradley Mark Kass Attorney For The Defendant
Daniel George Balich Attorney For The Defendant
Lalani Nailau Plaintiff
Robert M. Pickle Defendant
Susan M. Clarke Defendant
The Pickle Marital Trust Defendant
Thomas Murray Attorney
Geoffrey Meisner Attorney
Jeff Atterbury Attorneys for Plaintiffs
Richard Eichenbaum Attorneys for Plaintiffs
Bernard Cotter Attorney
Daniel Schaar Attorneys for Plaintiffs
James Murray Attorneys for Defendants
Richard Erickson Attorneys for Plaintiffs
Eva Silva Attorneys for Plaintiffs
Susan MacLean Attorney
Daniel Bush Attorneys for Defendants

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Motion-Secondary: Lalani Nailau vs Susan Clarke et al

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