Preview
7
8
9
1
2
3
4
5
6
10
11
12
13
14
15
‘ 1
Richard E.
51
Campbell,
(408)
(408)
LALANI
SUSAN
\s
Eichenbaur..,
Jeff Atterbury,
CAPUTO
E.
&
Campbell
CA
733-0100
733-0123
NAILAU
M.
Esq.
95008
fax
Attorneys for Plaintiff
LALANI RAILAU
. ,
Pld'"“”~
.
CLARKE and
usq,
SBN 229462
VAN DER WALDE
Avenue, Suite
SBN
120
157065
LLP
SUPERIOR
ALBERT
COUNTY
K.
COURT
OF SANTA
IN
To
OF CALIFORNIA
Case
“I?”
CLARA
No.:
DECLARATION
SUPPORT
CONTINUE
D.”
\
mmwmm
>
16CV299824
MarCh
F' L ED
JAN
.
29
..
OF PLAINTIFF’S
THE
19’
TRIAL
2018
21113
R. A
OF JEFF ATTERBURY
DATE
MOTION
‘I
.
Trial Time: 9:00 am.
16
CLA RK E’ Cl 41‘,
Locatign: TBD
17
Defendants, DI 1
0N?
. .
' 9‘- DX~ I 3
18 m 071 01“
19
I) 1, Jeff Atterbury, Esq., declare and say as follows:
21
l. I am an attomey at law, duly licensed to practice before allthe courts of the State of
California, and have been assigned to second chair this case for the upcoming jury trial. I am
joining the attorney of record, Richard Eichenbaum, on behalf of our client, Plaintiff Lalani Nailau.
24
If called as a witness I can competently testify to my own personal knowledge of the facts set forth
5 below.
26
2. On January 18, 2018, I filed a complaint in Santa Clara County Superior Court
27
alleging a violation of the Uniform Voidable Transfer Act (UVTA) and conspiracy to commit a
28
violation of same, naming Susan Clarke, her husband Alben Clarke, and her father Robert M.
ILI‘
(‘AI‘L'TO & VAN DER “DUDE
DECLARATION OF JEI-F A’l'l‘l—IRBL'RY “WEE—L “31E
51 5- 5““: 12°
IN SUPPORT or PLANrrrr's MOTION TO
PAGE 1
“mm C“ 9m “mm“
CONTINUE T11}: TRL\L DATE
11 Pickle as defendants. '1ne docket number for that case is 18CV321960. All three defendants have
2 already been served with that complaint. As of this writing, no defendant has answered If the
3 court grants the trial continuance for the Docket #16CV299824, it will be the Plaintiffs intention
4 to consolidate it with #18CV321960, as the two lawsuits are based on the same operative facts.
5.
3. This case arises out of an automobile collision that occurred on August 19, 2015, in
6 an unincorporated area of Santa Clara County, California, near Los Gatos, CA, After a lunch that
7 included consuming alcoholic beverages, Defendant Clarke began driving to her home in Aptos,
8 California, with Plaintiff as her passenger. Defendant failed to yield at a stop sign and was
9 .
broadsided by a Chevy Tahoe resulting in a large impact. Plaintiff and Defendant were both taken
10‘ by ambulance from the scene, Plaintiff suffered, among other injuries, a fractured pelvis. Plaintiff
11 incurred over $48,000 in medical bills as a result. Plaintiffs overall demand to Defendant is in
12 excess of $535,000.
13 4. On November 6, 2015, (2.5 months after the underlying car collision had occurred),
14 GEICO insurance, the carrier for Defendants Susan M. Clarke & Albert K. Clarke, represented to
.
15 Plaintiff that Defendants Susan M. Clarke & Albert K. Clarke only had $15,000 to offer as
16 compensation for the car collision, This was not true. At this time, Defendant Susan Clarke was in
17 legal possession of real property described herein as: 335 Loyola Dr, Aptos, CA 95003, further
18 described as "Lot 2 in Block 15, as shown upon the Map entitled, 'Subdivision No. 1, Aptos Beach
19 Country Club Properties‘, filed for record August 10, 1925, in Map Book 23, Page 1, Santa Cruz
Z) 1
County Records. APN: 044-192-64” (hereinafter "The Property")
21 5. On February 17, 2016, a representative of GEICO communicated a policy limits
offer of $15,000 to Plaintiff as full satisfaction for injuries and damages suffered by Plaintiffin the
subject car collision. On February 18, 2016, Plaintiff, through her attorneys, declined the offer and
informed GEICO’s representative that Plaintiff would be seeking additional compensation directly
from the tortfeasors
63880181318
in the case, to wit, Defendants Susan M, Clarke & Albert K. Clarke.
6. 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
(‘Al’l'TO & \\ AIDE-1UP
\',»\.\' DI-R
1)HCI,AR.~\'1‘IO.\' OF JEFF A'I'I‘ERBL 'RY PAGE 2 “‘WBH‘L M1311?
51,5. 5“” 11"
IN SUPPORT OF PLAIN'mT‘s MOTION TO L‘A’mm' CA 95°” “08’ mow"
CONTINUE m]: TRLAL DATE
1 t Albert K. Clarke consented to this Grant Deed by his own signature on the Grant Deed. This
2 document was filed with the Santa Cruz County Recorder‘s Office on April 13, 2016.
3 7. On August 9, 2016, Plaintiff sent, via Federal Express overnight mail, to Defendants
4 Susan M. Clarke & Albert K. Clarke, a demand for damages arising out of the car collision that had
5 occurred on August 19, 2015. This demand was sent to the address for The Property and was for
6 in excess of $500,000.
7 8. On August 20, 2016, (11 days after the demand package was sent), Defendant Susan
8 M. Clarke signed a notarized quitclaim deed in favor of Defendant Robert M. Pickle. This
9 document was filed with the Santa Cruz County Recorder's Office on August 22, 2016 at 2:41 pm.
10‘ 9. On the exact same date (August 20, 2016), Defendant Robert M. Pickle
11 simultaneously executed a notarized Grant Deed for The Property, in favor of the Pickle Marital
12 Trust. This document was filed with the Santa Cruz County Recorder's Office on August 22, 2016
13 at 2:41 pm.
14 10. Defendant Susan Clarke referred to this trust as the “Pickle Asset Protection Trust”
15‘. in her declaration of assets under penalty of perjury. (emphasis added)
16 11. Trial in this matter is currently set for March 19, 2018. There are very few contested
17 issues for trial. Defendant has admitted fault. Plaintiff suffered a fractured pelvis that was
18 undoubtedly caused by the subject collision. Plaintiff is prepared to prove that Defendant was
19 driving under the influence of alcohol at the time of the accident, although the Defendant will
.
Z) likely dispute this at trial. Aside from that, the primary issue at trial,aside from the Plaintiffs
21 general damages, will be a jury’s assessment of appropriate punitive damages against Defendant
Susan Clarke.
$30313 12. The Plaintiff previously filed a motion under Civil Code section 3295 for financial
records of Defendant Susan Clarke, which was granted by the court. A deposition was taken of
Defendant Clarke on January 18, 2018. Aside from admitting that The Property was currently in
the Pickle Marital Trust (aka Pickle Asset Protection Trust), Defendant Clarke provided very little
$55188
information about The Property. Defendant Clarke claims to have never seen the trust, doesn’t
have a copy of it, and doesn’t know the contents of it, although she readily admits she is a
“'AIDH [LP
(‘APUI'O & VAN Dl-R
DHCLARA'I'ION ()F JEFF A'l'l‘ERBlfRY PAGE 3 5' CAMPBELL
“mm C" 95°“
51 “Bu; SUITE73““
120
m SLTPORT or PLANrrrr‘s MOTION TO ‘4“)
CON‘I‘INUE mi: TRLAL DATE
1 t beneficiary of the trust. Defendant Clarke similarly had scant details to provide about the
2 circumstances surrounding the creation of this trust or about how The Property found its way into
3 this trust,
4 13. Defendant Susan Clarke admitted at her deposition that she has made, and continues
5 to make, the monthly mortgage payment on The Property, even though The Property has not
6 legally been in her name since the fraudulent transfer back on August 20, 2016. Defendant Clarke’s
7 various checking account statements show direct withdrawals continuing to pay the monthly
8 mortgage on The Property, through the end of calendar year 2017. Defendant Susan Clarke has
9 lived at and continues to live at the Property at least since the date of the collision, which is
10‘ August 19, 2015.
11 14. Aside from some very large and unaccounted for deposits in Defendant‘s financial
12 statements, which Defendant appeared to spend very quickly, Defendant does not appear to have
13 any significant assets, other than the fraudulently conveyed property, referred to here as The
14 Property.
15
.
15. Plaintiff has diligently prepared their case for trial. Almost all non-expert discovery
16 has been completed. Plaintiff has secured all necessary witnesses for trial.Plaintiff‘s Civil Code
17 section 3295 motion was granted, and Plaintiff has received the majority (but not all) of
18 Defendant’s financial documents. Plaintiff has conducted a deposition of Defendant with respect to
19 the produced documents. Aside from some large, unaccounted for, and mysterious deposits (which
Z) were quickly depleted from the account), Defendant’s produced financial documents do not
demonstrate any significant assets of the Defendant.
16. As this case is currently postured, Plaintiff’s presentation of Defendant‘s financial
03 condition to ajury would demonstrate that Defendant has very littlein the way of financial assets.
However, this is not an accurate portrayal of Defendant Susan Clarke‘s financial condition,
because, but for the fraudulent transfer, Plaintiff could have demonstrated an additional $650,000+
in real assets for Defendant Susan Clarke.
6888!}
17. Plaintiff is in possession of a Wells Fargo mortgage statement from November 21,
2017, with respect to The Property. This statement demonstrates that the “unpaid principal
C/\Pl."l'() A VAN l)l-R WAIDF. l.l.l"
1)1<;CLAR.-\Tl()x OF JEFF A'l'l‘l-IRBIJRY PAGE 4 51“MERE-L “NE SW“:
mmm’ CA ”003 Hosms‘moo
11“
IN SUPPORT or PLAIN'HFF‘S MOTION TO
comtxu: ml:- TRIAL DATE
il balance” on the loan, wrtn respect to The Property, is approxrmately $405,000. Attached here as
2 Exhibit B, is a true and correct copy of the Wells Fargo mortgage statement.
3 18. Plaintiff has also secured an assessment of the approximate value of The Property
4 .
from wwwzillowcom, which assesses the approximate current value of The Property as being
5. $1,057,299. Attached here as Exhibit C, is a true and correct printout from www.2illow.com with
6 1
the aforementioned approximate value of The Property.
7 19. This means that the there is approximately $652,000 of “equity” in The Property,
s which considerably alters the portrait of Defendant Susan Clarke's financial condition for review
9 .
by the jury at the trial currently set for March 19,2018.
103 20. A continuance Of this matter would be in the interests of justice, as the Defendant
11. should not be able to benefit from their own malfeasance by disrupting the Plaintiff’s ability to
12 i
present an accurate portrayal of Defendant’s true financial condition, which includes an additional
$650,000+ in assets that
1
13 were previously under her control and at her disposal. Plaintiff should be
14‘ afforded the opportunity for a full and fair trial, and without a continuance of this matter, Plaintiff
15; is likely to be denied such an opportunity.
16 21. Attached here as Exhibit A, is a true and correct copy of the meet and confer
17 communications between the attorneys.
18‘ 22. Attached Exhibit
here as D, is a true and correct copy of the Uniform Voidable
19 Transfer Act (UVTA) lawsuit filed against Defendant Susan Clarke, her husband, Albert Clarke,
Z) . and her father, Robert M. Pickle in Docket #18CV321960.
21 23. I respectfully request that the trial of this matter be rescheduled for at least 120 days.
‘
Plaintiff intends to continue to work diligently and expects to file a motion to consolidate the two
R0313
matters as soon as #18CV321960 is at issue.
I declare under penalty of perjury under the laws of the State f California that the
foregoing is true and correct. Executed this 26‘h day of January 201 at ell, CA.
, Cam
attract
Affine 'pur , sq\\
(‘APL'TO &
V AX DER “V ‘\I 10H ”.17
DEC] .ARA'I'IOX 0F JEFF A'IT‘ERBL 'RY PAGE 5 E
51, “WEED “NE 81m 11"
1N stPPORT or PLATNTTIT*5 MOTION TO
”mam CA 95°” (““73““)
CONTINUE Tin: TRIAL DATE
EXHIBITA
'
CAPUTO&VAN DER WALDE
@ SPECIALIZING IN CATASTROPHIC INJURY AND WRONGFUL DEATH
up
January 19, 2018
Via US. Mail, Facsimile (415) 474-0302
and Electronic Mail
Thomas J , Murray, Esq, timurraflbkernlaweom
Geoffrey Meisner, Esq., gmeisnerflikernlmvuim
Daniel Balich, Esq., dbalichtazkernlawcom
Kern, Segal & Murray
1388 Sutter Street, Suite 600
San Francisco, CA 94109
Re: Nailau v. Clarke, e! (7].,
Case No, .‘
16CV299824
MEET & CONFER LETTER
Gentlemen:
I wanted to take a moment to discuss various issues with you regarding the future posture
of this case as we move forward As you know, the trial for this case is set for March 19, 2018,
There are several outstanding things that should be addressed in order to be properly prepared for
trial.
First there isthe matter of the further production of documents. As we discussed, on the
record, at the conclusion of Susan Clarke’s deposition, you have agreed to supply more
documents that were not produced for the first part of Susan Clarke‘s deposition. It should be
noted that we only received Ms. Clarke’s financial documents (537 pages) at approximately 3
pm, the day bejbre her deposition was to take place. While we made great efforts to be prepared
and conduct Ms. Clarke’s deposition, we were unable to complete her deposition due to missing
documents. Among other things, these documents included, a copy of the trust (Pickle Marital
Trust aka Pickle Asset Protection Trust) of which your client is a beneficiary, one year of Wells
Fargo mortgage statements (as well as copies of the tangential documents related to the Wells
Fargo loaniloan application etc), all documents related to the Cenlar loan (that your client was
paying the mortgage on), missing bank/credit card statements for the months of December and
January, all documents related to the personal loans she has taken as well
1
out, as the car loan for
her Toyota Prius (as was noted in her Star One records), Since we have the burden of proof at
1
51 CAMPBELL AVENUE SUITE
E. 120 >
CAMPBELL CA 95008 -
TEL: (408)733-0100 -
FAX(408)731-0171-www vwmnwu n: r‘nu
Thomas J. Murray, Esq.
Geoffrey Meisner, Esq.
Daniel Balich, Esq.
January 19, 2018
Page 2
trial, we will need these documents to properly discuss Ms. Clarke’s financial condition for the
jury to weigh the imposition of punitive damages. When can we expect this updated
production of documents?
Furthermore, after some deliberation, we have determined that we will need the account
numbers for the various financial documents you provided. Your office redacted the account
numbers prior to producing the statement to us, ostensibly because you were worried about our
client seeing those account numbers. First, we need the account numbers because your client
testified repeatedly at her deposition that she could not identify where various deposits came
from “unless she had the documents in front of her.” The ability to prove our case at trialshould
not be hampered by your client’s inability to remember things, nor on her reluctance to provide
us with relevant, admissible, unredacted copies of her financial documents. It is our intention to
subpoena the financial documents and ask for copies of cancelled checks as well as other
information to discern the source/identity of the unaccounted for deposits in their various
accounts. To assuage any concerns related to our client, we will agree to stipulate to a
protective order for the production of the actual account numbers.
Next, we have the collateral, but related, issue of when Ms. Clarke will be made available
to complete her deposition to discuss the documents that will be produced. The discovery cutoff
will occur on/about February 18, 2018. Will you agree to waive the discovery cutolT so as to
ensure that both sides are able to conduct the necessary discovery prior to trial?
We also have the motion for summary judgment coming up. The last day to file our
opposition to the MS] is on February 1, 2018, with the hearing on February 15, 2018. Because
we have not been able to conclude the deposition of Ms. Clarke, we feel we do not have all of the
necessary information for our opposition. For instance, we need to determine whether various
assets of the defendants are community property or separate property. If Ms. Clarke has
comingled her assets with Mr. Clarke and used those assets to purchase the Toyota Prius, then
Albert Clarke is a proper defendant because we will seek to secure judgment against him in order
to perfect our client’s ability to collect on the large judgment she is very likely to obtain Will
you agree to continue the hearing date for the MS! until such time as we have been able to
complete our discovery with Ms. Clarke?
As you can see there are quite a few moving pieces to this case that both sides may have
trouble addressing when backstopped against the trial date of March 19, 2018. Are you and
your clients interested in stipulating to a continuance of the trial date? This may be the best
course of action, given the above issues, as well as the introduction of the second lawsuit for the
fraudulent transfer.
Thomas]. Murray, Esq,
Geoffrey Meisner, Esq.
Daniel Balich, Esq
January 19, 2018
Page 3
Although I know you are busy, as we all are, we would like to discuss this with you, or
have a response to this letter no later than Monday January 22, 2018, by 2:00 pm. due to the
time constraints as outlined above. Please let us kno our thoughts.
REE/jjs
From, TJ Murray 2
'.' «a ilfi“.
’.
"
1?
Subject. RE- Nailau - Meet and Confer
Date January 24. 2018 at 3:08 P
To. JeffAtterbury 1 "'i 1-
‘ ’.Geoff Meisner _-
.
'
DanielBalich i.:
"
Cc Rich Eichenbaum .
:
Mr. Atterbury,
My response to your meet and confer letter:
1. Our production of documents made in response to your ROPD, set 2, was timely. If
you needed more time you had the option to continue the deposition. So
complaining about that is a bit lame;
With respect to the additional documents to be produced, Idiscussed those on the
record in her deposition Iexpect to have those to you by early next week. They have
been coming in sporadically but l’m optimistic;
My client tells me she asked Bob Pickle for a copy ofthe trust and she is not going to
be able to get it;
As you correctly note, Albert Clarke is no longer a party to this case. You should have
dismissed him much earlier. We showed you he was not on title to the car and that
Susan had coverage for the minimum statutory limits. No longer any basis for
vicarious liability given those facts. And now you have sued him as an alleged co
conspirator for the transfer of a real estate title he was never on. lhave attached a
copy of the original transfer deed from Bob Pickle to Ms. Clarke on the Los Altos
property at issue. Robert Pickle bought the property at the end of October or early
November, 2013, and then he added Susan’s name to the deed as seen in the
attached. He made a gratuitous transfer She did not buy the house. She had no
interest in the house. He did it in case he died before it got into the trust which is why
they held title as joint tenants. And then they delayed so Susan could have her name
on the re-fi and try to rebuild her lousy credit. You can’t refi a house if your name is
not on the deed. Albert’s name is nowhere on the deed, and has never been on the
deed, but you are still suing him for an alleged fraudulent transfer of this property. A
second baseless lawsuit against him. Regardless, he is no longer a party in the
pending action, the court’s order re disclosure of financial information did not apply
to him, and he has privacy rights in hisjoint accounts with his wife. So Ifeel the
fishing subpoenas you propose given you already have the information needed to see
she has no assets, Ms. Clarke has provided testimony with respect thereto, and you
can continue her deposition if you feel the need to do so. But there will be no further
testimony regarding the real estate transfer as that is now the subject of the separate
action you have filed. l will not be representing her in that matter;
As we pointed out at the deposition once she reviewed the documents she produced,
she saw that she was transferring money between accounts. Earlier in the day she did
not know where the source of some deposits came from but in looking at her other
account statements later in the day, inclusive of the savings account that held the
proceeds from the sale of the LA house, she was able to identify the source ofthe
transfers. Look at the statements. They match up. And if you want to ask her about
it again, fine. Though, of course, the only subject matter to be addressed at any
further deposition are the financial documents and questions pertaining thereto;
6. l’m good with the current trial date;
lthink that covers it. Please let me know if you need anything else. Thx. TJM
Thomas J. Murray. Esq.
Kern, Segal & Murray
1388 Sutter 31.. Suite 600
San Francisco. CA 94109
Tele: 415/474-1900
Fax: 415/474-0302
e-mail: _tjmurray @kernlawcom
CONFIDENTIALITY NOTICE: The information in this e-mail message is personal.
confidential and protected by the attorney-client privilege and the Electronic
Communications Act. 19 U.S.C.. Sections 2510-2521. Ifyou are not the intended
recipient. you are hereby notified that any dissemination. disclosure or copying ofthis
communication. including all attachments. is strictly prohibited. Ifyou have received this
communication in error. please immediately notify us by return E-Mail and destroy this
original message. Thank you
From: Jeff Atterbury [mailtozjbflvanderwaldecom]
Sent: Wednesday, January 24, 2018 1:49 PM
To: Geoff Meisner; _tjmurray@kernlaw.com; dbalich@kernlaw.c0m
Cc: Rich Eichenbaum
Subject: Re: Nailau - Meet and Confer
Gentlemen:
Wejust received your signed CCP 998 (waiver ofcosts/dismissal) related to Alben
Clarke. Thank you for that We are having that tiled immediately which will moot the
issue related to the MS] that was coming up with respect to Albert Clarke on this case.
We didn‘t get any sort of response from anyone (as you had indicated below) on the
remaining issues that were discussed in the meet and confer letter. We had hoped to hear
from you yesterday as you had indicated.
Could you please indicate to us when you intend to respond to the meet and confer? I
only stress the urgency based on a number of dates rapidly approaching in which things
will have to be done absent some sort of agreement between the attorneys/parties.
Thank you.
EXHIBIT B
i
Row M Openl/ons
ciI
Page I
PD Bax 144 71 [I
Du Marni/1 59306—3111 Slaterrentdile
lo-u numbu
in am
Fuymcnx
Iz/oI/n
Total amount dun
$3,247.99
mun/um «awn-um um
Pmpenyadc‘ress 335 LOVOLA DRIVE
717705,c 9500:
Emma“! sarvlu
Onfllll lphcnl'
@ wul‘a'lvgmcon Noam-om
M
"SM M :‘AME (on-1min:- m
‘
f®
POMXWNS FEED-2784179
ROBERTM PICKLE
DasNamu IA 50366
3;; LOVCLA DR mna'apmvan
AP'OS,CA§SE03-527.7 hymn
Possum:
® Mon-inalm-Iflpm. g
Snllmnlnmn
M
Ln An1CA 9305!
i
Pmdun Mun-nun
g
$ 1-866&7-3026
(armn‘flcumwwceu'k
Explanation of amount due Lccount summary
F'lndpl
56645:w primbolbllluu
km payments breakdown
swuuua
W
Inleru! S'rnhuurnm
new
8'1666‘Minimum-«mum r\ “I ruelvcd‘ ya wr-
u
5737 ”WIN-M 51376-75
52.55553 52135537
gunmrflmg anus p«Iva!
UnEd Ian swim
tum me 3159*I - mass
532$“?
$7,206.92
Preview
7 8 9 1 2 3 4 5 6 10 11 12 13 14 15 ‘ 1 Richard E. 51 Campbell, (408) (408) LALANI SUSAN \s Eichenbaur.., Jeff Atterbury, CAPUTO E. & Campbell CA 733-0100 733-0123 NAILAU M. Esq. 95008 fax Attorneys for Plaintiff LALANI RAILAU . , Pld'"“”~ . CLARKE and usq, SBN 229462 VAN DER WALDE Avenue, Suite SBN 120 157065 LLP SUPERIOR ALBERT COUNTY K. COURT OF SANTA IN To OF CALIFORNIA Case “I?” CLARA No.: DECLARATION SUPPORT CONTINUE D.” \ mmwmm > 16CV299824 MarCh F' L ED JAN . 29 .. OF PLAINTIFF’S THE 19’ TRIAL 2018 21113 R. A OF JEFF ATTERBURY DATE MOTION ‘I . Trial Time: 9:00 am. 16 CLA RK E’ Cl 41‘, Locatign: TBD 17 Defendants, DI 1 0N? . . ' 9‘- DX~ I 3 18 m 071 01“ 19 I) 1, Jeff Atterbury, Esq., declare and say as follows: 21 l. I am an attomey at law, duly licensed to practice before allthe courts of the State of California, and have been assigned to second chair this case for the upcoming jury trial. I am joining the attorney of record, Richard Eichenbaum, on behalf of our client, Plaintiff Lalani Nailau. 24 If called as a witness I can competently testify to my own personal knowledge of the facts set forth 5 below. 26 2. On January 18, 2018, I filed a complaint in Santa Clara County Superior Court 27 alleging a violation of the Uniform Voidable Transfer Act (UVTA) and conspiracy to commit a 28 violation of same, naming Susan Clarke, her husband Alben Clarke, and her father Robert M. ILI‘ (‘AI‘L'TO & VAN DER “DUDE DECLARATION OF JEI-F A’l'l‘l—IRBL'RY “WEE—L “31E 51 5- 5““: 12° IN SUPPORT or PLANrrrr's MOTION TO PAGE 1 “mm C“ 9m “mm“ CONTINUE T11}: TRL\L DATE 11 Pickle as defendants. '1ne docket number for that case is 18CV321960. All three defendants have 2 already been served with that complaint. As of this writing, no defendant has answered If the 3 court grants the trial continuance for the Docket #16CV299824, it will be the Plaintiffs intention 4 to consolidate it with #18CV321960, as the two lawsuits are based on the same operative facts. 5. 3. This case arises out of an automobile collision that occurred on August 19, 2015, in 6 an unincorporated area of Santa Clara County, California, near Los Gatos, CA, After a lunch that 7 included consuming alcoholic beverages, Defendant Clarke began driving to her home in Aptos, 8 California, with Plaintiff as her passenger. Defendant failed to yield at a stop sign and was 9 . broadsided by a Chevy Tahoe resulting in a large impact. Plaintiff and Defendant were both taken 10‘ by ambulance from the scene, Plaintiff suffered, among other injuries, a fractured pelvis. Plaintiff 11 incurred over $48,000 in medical bills as a result. Plaintiffs overall demand to Defendant is in 12 excess of $535,000. 13 4. On November 6, 2015, (2.5 months after the underlying car collision had occurred), 14 GEICO insurance, the carrier for Defendants Susan M. Clarke & Albert K. Clarke, represented to . 15 Plaintiff that Defendants Susan M. Clarke & Albert K. Clarke only had $15,000 to offer as 16 compensation for the car collision, This was not true. At this time, Defendant Susan Clarke was in 17 legal possession of real property described herein as: 335 Loyola Dr, Aptos, CA 95003, further 18 described as "Lot 2 in Block 15, as shown upon the Map entitled, 'Subdivision No. 1, Aptos Beach 19 Country Club Properties‘, filed for record August 10, 1925, in Map Book 23, Page 1, Santa Cruz Z) 1 County Records. APN: 044-192-64” (hereinafter "The Property") 21 5. On February 17, 2016, a representative of GEICO communicated a policy limits offer of $15,000 to Plaintiff as full satisfaction for injuries and damages suffered by Plaintiffin the subject car collision. On February 18, 2016, Plaintiff, through her attorneys, declined the offer and informed GEICO’s representative that Plaintiff would be seeking additional compensation directly from the tortfeasors 63880181318 in the case, to wit, Defendants Susan M, Clarke & Albert K. Clarke. 6. 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 (‘Al’l'TO & \\ AIDE-1UP \',»\.\' DI-R 1)HCI,AR.~\'1‘IO.\' OF JEFF A'I'I‘ERBL 'RY PAGE 2 “‘WBH‘L M1311? 51,5. 5“” 11" IN SUPPORT OF PLAIN'mT‘s MOTION TO L‘A’mm' CA 95°” “08’ mow" CONTINUE m]: TRLAL DATE 1 t Albert K. Clarke consented to this Grant Deed by his own signature on the Grant Deed. This 2 document was filed with the Santa Cruz County Recorder‘s Office on April 13, 2016. 3 7. On August 9, 2016, Plaintiff sent, via Federal Express overnight mail, to Defendants 4 Susan M. Clarke & Albert K. Clarke, a demand for damages arising out of the car collision that had 5 occurred on August 19, 2015. This demand was sent to the address for The Property and was for 6 in excess of $500,000. 7 8. On August 20, 2016, (11 days after the demand package was sent), Defendant Susan 8 M. Clarke signed a notarized quitclaim deed in favor of Defendant Robert M. Pickle. This 9 document was filed with the Santa Cruz County Recorder's Office on August 22, 2016 at 2:41 pm. 10‘ 9. On the exact same date (August 20, 2016), Defendant Robert M. Pickle 11 simultaneously executed a notarized Grant Deed for The Property, in favor of the Pickle Marital 12 Trust. This document was filed with the Santa Cruz County Recorder's Office on August 22, 2016 13 at 2:41 pm. 14 10. Defendant Susan Clarke referred to this trust as the “Pickle Asset Protection Trust” 15‘. in her declaration of assets under penalty of perjury. (emphasis added) 16 11. Trial in this matter is currently set for March 19, 2018. There are very few contested 17 issues for trial. Defendant has admitted fault. Plaintiff suffered a fractured pelvis that was 18 undoubtedly caused by the subject collision. Plaintiff is prepared to prove that Defendant was 19 driving under the influence of alcohol at the time of the accident, although the Defendant will . Z) likely dispute this at trial. Aside from that, the primary issue at trial,aside from the Plaintiffs 21 general damages, will be a jury’s assessment of appropriate punitive damages against Defendant Susan Clarke. $30313 12. The Plaintiff previously filed a motion under Civil Code section 3295 for financial records of Defendant Susan Clarke, which was granted by the court. A deposition was taken of Defendant Clarke on January 18, 2018. Aside from admitting that The Property was currently in the Pickle Marital Trust (aka Pickle Asset Protection Trust), Defendant Clarke provided very little $55188 information about The Property. Defendant Clarke claims to have never seen the trust, doesn’t have a copy of it, and doesn’t know the contents of it, although she readily admits she is a “'AIDH [LP (‘APUI'O & VAN Dl-R DHCLARA'I'ION ()F JEFF A'l'l‘ERBlfRY PAGE 3 5' CAMPBELL “mm C" 95°“ 51 “Bu; SUITE73““ 120 m SLTPORT or PLANrrrr‘s MOTION TO ‘4“) CON‘I‘INUE mi: TRLAL DATE 1 t beneficiary of the trust. Defendant Clarke similarly had scant details to provide about the 2 circumstances surrounding the creation of this trust or about how The Property found its way into 3 this trust, 4 13. Defendant Susan Clarke admitted at her deposition that she has made, and continues 5 to make, the monthly mortgage payment on The Property, even though The Property has not 6 legally been in her name since the fraudulent transfer back on August 20, 2016. Defendant Clarke’s 7 various checking account statements show direct withdrawals continuing to pay the monthly 8 mortgage on The Property, through the end of calendar year 2017. Defendant Susan Clarke has 9 lived at and continues to live at the Property at least since the date of the collision, which is 10‘ August 19, 2015. 11 14. Aside from some very large and unaccounted for deposits in Defendant‘s financial 12 statements, which Defendant appeared to spend very quickly, Defendant does not appear to have 13 any significant assets, other than the fraudulently conveyed property, referred to here as The 14 Property. 15 . 15. Plaintiff has diligently prepared their case for trial. Almost all non-expert discovery 16 has been completed. Plaintiff has secured all necessary witnesses for trial.Plaintiff‘s Civil Code 17 section 3295 motion was granted, and Plaintiff has received the majority (but not all) of 18 Defendant’s financial documents. Plaintiff has conducted a deposition of Defendant with respect to 19 the produced documents. Aside from some large, unaccounted for, and mysterious deposits (which Z) were quickly depleted from the account), Defendant’s produced financial documents do not demonstrate any significant assets of the Defendant. 16. As this case is currently postured, Plaintiff’s presentation of Defendant‘s financial 03 condition to ajury would demonstrate that Defendant has very littlein the way of financial assets. However, this is not an accurate portrayal of Defendant Susan Clarke‘s financial condition, because, but for the fraudulent transfer, Plaintiff could have demonstrated an additional $650,000+ in real assets for Defendant Susan Clarke. 6888!} 17. Plaintiff is in possession of a Wells Fargo mortgage statement from November 21, 2017, with respect to The Property. This statement demonstrates that the “unpaid principal C/\Pl."l'() A VAN l)l-R WAIDF. l.l.l" 1)1<;CLAR.-\Tl()x OF JEFF A'l'l‘l-IRBIJRY PAGE 4 51“MERE-L “NE SW“: mmm’ CA ”003 Hosms‘moo 11“ IN SUPPORT or PLAIN'HFF‘S MOTION TO comtxu: ml:- TRIAL DATE il balance” on the loan, wrtn respect to The Property, is approxrmately $405,000. Attached here as 2 Exhibit B, is a true and correct copy of the Wells Fargo mortgage statement. 3 18. Plaintiff has also secured an assessment of the approximate value of The Property 4 . from wwwzillowcom, which assesses the approximate current value of The Property as being 5. $1,057,299. Attached here as Exhibit C, is a true and correct printout from www.2illow.com with 6 1 the aforementioned approximate value of The Property. 7 19. This means that the there is approximately $652,000 of “equity” in The Property, s which considerably alters the portrait of Defendant Susan Clarke's financial condition for review 9 . by the jury at the trial currently set for March 19,2018. 103 20. A continuance Of this matter would be in the interests of justice, as the Defendant 11. should not be able to benefit from their own malfeasance by disrupting the Plaintiff’s ability to 12 i present an accurate portrayal of Defendant’s true financial condition, which includes an additional $650,000+ in assets that 1 13 were previously under her control and at her disposal. Plaintiff should be 14‘ afforded the opportunity for a full and fair trial, and without a continuance of this matter, Plaintiff 15; is likely to be denied such an opportunity. 16 21. Attached here as Exhibit A, is a true and correct copy of the meet and confer 17 communications between the attorneys. 18‘ 22. Attached Exhibit here as D, is a true and correct copy of the Uniform Voidable 19 Transfer Act (UVTA) lawsuit filed against Defendant Susan Clarke, her husband, Albert Clarke, Z) . and her father, Robert M. Pickle in Docket #18CV321960. 21 23. I respectfully request that the trial of this matter be rescheduled for at least 120 days. ‘ Plaintiff intends to continue to work diligently and expects to file a motion to consolidate the two R0313 matters as soon as #18CV321960 is at issue. I declare under penalty of perjury under the laws of the State f California that the foregoing is true and correct. Executed this 26‘h day of January 201 at ell, CA. , Cam attract Affine 'pur , sq\\ (‘APL'TO & V AX DER “V ‘\I 10H ”.17 DEC] .ARA'I'IOX 0F JEFF A'IT‘ERBL 'RY PAGE 5 E 51, “WEED “NE 81m 11" 1N stPPORT or PLATNTTIT*5 MOTION TO ”mam CA 95°” (““73““) CONTINUE Tin: TRIAL DATE EXHIBITA ' CAPUTO&VAN DER WALDE @ SPECIALIZING IN CATASTROPHIC INJURY AND WRONGFUL DEATH up January 19, 2018 Via US. Mail, Facsimile (415) 474-0302 and Electronic Mail Thomas J , Murray, Esq, timurraflbkernlaweom Geoffrey Meisner, Esq., gmeisnerflikernlmvuim Daniel Balich, Esq., dbalichtazkernlawcom Kern, Segal & Murray 1388 Sutter Street, Suite 600 San Francisco, CA 94109 Re: Nailau v. Clarke, e! (7]., Case No, .‘ 16CV299824 MEET & CONFER LETTER Gentlemen: I wanted to take a moment to discuss various issues with you regarding the future posture of this case as we move forward As you know, the trial for this case is set for March 19, 2018, There are several outstanding things that should be addressed in order to be properly prepared for trial. First there isthe matter of the further production of documents. As we discussed, on the record, at the conclusion of Susan Clarke’s deposition, you have agreed to supply more documents that were not produced for the first part of Susan Clarke‘s deposition. It should be noted that we only received Ms. Clarke’s financial documents (537 pages) at approximately 3 pm, the day bejbre her deposition was to take place. While we made great efforts to be prepared and conduct Ms. Clarke’s deposition, we were unable to complete her deposition due to missing documents. Among other things, these documents included, a copy of the trust (Pickle Marital Trust aka Pickle Asset Protection Trust) of which your client is a beneficiary, one year of Wells Fargo mortgage statements (as well as copies of the tangential documents related to the Wells Fargo loaniloan application etc), all documents related to the Cenlar loan (that your client was paying the mortgage on), missing bank/credit card statements for the months of December and January, all documents related to the personal loans she has taken as well 1 out, as the car loan for her Toyota Prius (as was noted in her Star One records), Since we have the burden of proof at 1 51 CAMPBELL AVENUE SUITE E. 120 > CAMPBELL CA 95008 - TEL: (408)733-0100 - FAX(408)731-0171-www vwmnwu n: r‘nu Thomas J. Murray, Esq. Geoffrey Meisner, Esq. Daniel Balich, Esq. January 19, 2018 Page 2 trial, we will need these documents to properly discuss Ms. Clarke’s financial condition for the jury to weigh the imposition of punitive damages. When can we expect this updated production of documents? Furthermore, after some deliberation, we have determined that we will need the account numbers for the various financial documents you provided. Your office redacted the account numbers prior to producing the statement to us, ostensibly because you were worried about our client seeing those account numbers. First, we need the account numbers because your client testified repeatedly at her deposition that she could not identify where various deposits came from “unless she had the documents in front of her.” The ability to prove our case at trialshould not be hampered by your client’s inability to remember things, nor on her reluctance to provide us with relevant, admissible, unredacted copies of her financial documents. It is our intention to subpoena the financial documents and ask for copies of cancelled checks as well as other information to discern the source/identity of the unaccounted for deposits in their various accounts. To assuage any concerns related to our client, we will agree to stipulate to a protective order for the production of the actual account numbers. Next, we have the collateral, but related, issue of when Ms. Clarke will be made available to complete her deposition to discuss the documents that will be produced. The discovery cutoff will occur on/about February 18, 2018. Will you agree to waive the discovery cutolT so as to ensure that both sides are able to conduct the necessary discovery prior to trial? We also have the motion for summary judgment coming up. The last day to file our opposition to the MS] is on February 1, 2018, with the hearing on February 15, 2018. Because we have not been able to conclude the deposition of Ms. Clarke, we feel we do not have all of the necessary information for our opposition. For instance, we need to determine whether various assets of the defendants are community property or separate property. If Ms. Clarke has comingled her assets with Mr. Clarke and used those assets to purchase the Toyota Prius, then Albert Clarke is a proper defendant because we will seek to secure judgment against him in order to perfect our client’s ability to collect on the large judgment she is very likely to obtain Will you agree to continue the hearing date for the MS! until such time as we have been able to complete our discovery with Ms. Clarke? As you can see there are quite a few moving pieces to this case that both sides may have trouble addressing when backstopped against the trial date of March 19, 2018. Are you and your clients interested in stipulating to a continuance of the trial date? This may be the best course of action, given the above issues, as well as the introduction of the second lawsuit for the fraudulent transfer. Thomas]. Murray, Esq, Geoffrey Meisner, Esq. Daniel Balich, Esq January 19, 2018 Page 3 Although I know you are busy, as we all are, we would like to discuss this with you, or have a response to this letter no later than Monday January 22, 2018, by 2:00 pm. due to the time constraints as outlined above. Please let us kno our thoughts. REE/jjs From, TJ Murray 2 '.' «a ilfi“. ’. " 1? Subject. RE- Nailau - Meet and Confer Date January 24. 2018 at 3:08 P To. JeffAtterbury 1 "'i 1- ‘ ’.Geoff Meisner _- . ' DanielBalich i.: " Cc Rich Eichenbaum . : Mr. Atterbury, My response to your meet and confer letter: 1. Our production of documents made in response to your ROPD, set 2, was timely. If you needed more time you had the option to continue the deposition. So complaining about that is a bit lame; With respect to the additional documents to be produced, Idiscussed those on the record in her deposition Iexpect to have those to you by early next week. They have been coming in sporadically but l’m optimistic; My client tells me she asked Bob Pickle for a copy ofthe trust and she is not going to be able to get it; As you correctly note, Albert Clarke is no longer a party to this case. You should have dismissed him much earlier. We showed you he was not on title to the car and that Susan had coverage for the minimum statutory limits. No longer any basis for vicarious liability given those facts. And now you have sued him as an alleged co conspirator for the transfer of a real estate title he was never on. lhave attached a copy of the original transfer deed from Bob Pickle to Ms. Clarke on the Los Altos property at issue. Robert Pickle bought the property at the end of October or early November, 2013, and then he added Susan’s name to the deed as seen in the attached. He made a gratuitous transfer She did not buy the house. She had no interest in the house. He did it in case he died before it got into the trust which is why they held title as joint tenants. And then they delayed so Susan could have her name on the re-fi and try to rebuild her lousy credit. You can’t refi a house if your name is not on the deed. Albert’s name is nowhere on the deed, and has never been on the deed, but you are still suing him for an alleged fraudulent transfer of this property. A second baseless lawsuit against him. Regardless, he is no longer a party in the pending action, the court’s order re disclosure of financial information did not apply to him, and he has privacy rights in hisjoint accounts with his wife. So Ifeel the fishing subpoenas you propose given you already have the information needed to see she has no assets, Ms. Clarke has provided testimony with respect thereto, and you can continue her deposition if you feel the need to do so. But there will be no further testimony regarding the real estate transfer as that is now the subject of the separate action you have filed. l will not be representing her in that matter; As we pointed out at the deposition once she reviewed the documents she produced, she saw that she was transferring money between accounts. Earlier in the day she did not know where the source of some deposits came from but in looking at her other account statements later in the day, inclusive of the savings account that held the proceeds from the sale of the LA house, she was able to identify the source ofthe transfers. Look at the statements. They match up. And if you want to ask her about it again, fine. Though, of course, the only subject matter to be addressed at any further deposition are the financial documents and questions pertaining thereto; 6. l’m good with the current trial date; lthink that covers it. Please let me know if you need anything else. Thx. TJM Thomas J. Murray. Esq. Kern, Segal & Murray 1388 Sutter 31.. Suite 600 San Francisco. CA 94109 Tele: 415/474-1900 Fax: 415/474-0302 e-mail: _tjmurray @kernlawcom CONFIDENTIALITY NOTICE: The information in this e-mail message is personal. confidential and protected by the attorney-client privilege and the Electronic Communications Act. 19 U.S.C.. Sections 2510-2521. Ifyou are not the intended recipient. you are hereby notified that any dissemination. disclosure or copying ofthis communication. including all attachments. is strictly prohibited. Ifyou have received this communication in error. please immediately notify us by return E-Mail and destroy this original message. Thank you From: Jeff Atterbury [mailtozjbflvanderwaldecom] Sent: Wednesday, January 24, 2018 1:49 PM To: Geoff Meisner; _tjmurray@kernlaw.com; dbalich@kernlaw.c0m Cc: Rich Eichenbaum Subject: Re: Nailau - Meet and Confer Gentlemen: Wejust received your signed CCP 998 (waiver ofcosts/dismissal) related to Alben Clarke. Thank you for that We are having that tiled immediately which will moot the issue related to the MS] that was coming up with respect to Albert Clarke on this case. We didn‘t get any sort of response from anyone (as you had indicated below) on the remaining issues that were discussed in the meet and confer letter. We had hoped to hear from you yesterday as you had indicated. Could you please indicate to us when you intend to respond to the meet and confer? I only stress the urgency based on a number of dates rapidly approaching in which things will have to be done absent some sort of agreement between the attorneys/parties. Thank you. EXHIBIT B i Row M Openl/ons ciI Page I PD Bax 144 71 [I Du Marni/1 59306—3111 Slaterrentdile lo-u numbu in am Fuymcnx Iz/oI/n Total amount dun $3,247.99 mun/um «awn-um um Pmpenyadc‘ress 335 LOVOLA DRIVE 717705,c 9500: Emma“! sarvlu Onfllll lphcnl' @ wul‘a'lvgmcon Noam-om M "SM M :‘AME (on-1min:- m ‘ f® POMXWNS FEED-2784179 ROBERTM PICKLE DasNamu IA 50366 3;; LOVCLA DR mna'apmvan AP'OS,CA§SE03-527.7 hymn Possum: ® Mon-inalm-Iflpm. g Snllmnlnmn M Ln An1CA 9305! i Pmdun Mun-nun g $ 1-866&7-3026 (armn‘flcumwwceu'k Explanation of amount due Lccount summary F'lndpl 56645:w primbolbllluu km payments breakdown swuuua W Inleru! S'rnhuurnm new 8'1666‘Minimum-«mum r\ “I ruelvcd‘ ya wr- u 5737 ”WIN-M 51376-75 52.55553 52135537 gunmrflmg anus p«Iva! UnEd Ian swim tum me 3159*I - mass 532$“? $7,206.92