Preview
b—d
Tyler M. Paetkau, State Bar No. 146305 FILED
Tracie E. Stender, State Bar No. 280071 SAN MATEQ COUNTY
PROCOPIO, CORY, HARGREAVES & SAVITCH LLP
1117 S. California Ave., Suite 200
JUL 1 0 2013 ~
,
Palo Alto, CA 94304
Telephone: (650) 645—9027
Facsimile: (650) 687-8323
Email: tyler.paetkau@procopio.com
Attorneys for Defendant and Cross—Complainant
’
\DOOQGMAWN
DAVID B. EVANS
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO
UNLIMITED JURISDICTION
KATHRYN M. SCHOENDORF, an individual, Case No. CIV532937
and as Trustee of the Kathryn M. Schoendorf
Trust dated July 10, 1993, RESPONSE BY DEFENDANT/CROSS-
‘
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COMPLAINANT DAVID B. EVANS TO
Plaintiff, PLAINTIFF/CROSS-DEFENDANT’S
[PROPOSED] STATEMENT OF DECISION
vs.
[Code Civ. Proc. § 632; Ca1.R.Ct. 3.1590] _
DAVID B. EVANS, an individual, and DOES 1
through 25, inclusive, [Declaration of Tyler M. Paetkau filed
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concurrently]
Defendants.
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Date: July 27, 2018
Time: 2:30 pm.
Dept: 10
Trial Judge: Hon. Gerald J. Buchwald
AND RELATED CROSS ACTION.
[l532931
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MPAR . _ _
Memorandum of Points and Authorities In Repl
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Case No.: C1V532937 Schoendorfv. Evans.
RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION
TABLE OF CONTENTS
Page
I. INTRODUCTION .................................................................................................................... 3
11. DAVID B. EVANS’S RESPONSE TO SCHOENDORF’S
[PROPOSED] STATEMENT OF DECISION ........................................................................ 3
\OOO\]O\UIJ>UJNr—l
A. The Statement of Decision Process. ......................................................................................... 3
B. Schoendorf Filed a Clearly Erroneous [Proposed] Statement of Decision on June
21, 2018, Without Sewing It on Evans in Violation of His Constitutional Due
Process Rights. ......................................................................................................................... 8
C. Mr. Evans’s Objections to SchoendorPs [Proposed] Statement of Decision and
Mr. Evans’s [Proposed] Statement. ........................................................................................ 12
III. CONCLUSION ...................................................................................................................... 13
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Case No.: CIVS 32937 1 Schoendorfv. Evans.
RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION
TABLE OF AUTHORITIES
Page
Cases
Bay World Trading, Ltd. v. Nebraska Beef Inc., 101 Cal. App. 4th 135 (2002) ................................. 6
Cola v. County ofLos Angeles, 105 Cal. App. 3d 282 (1980) ............................................................. 6
Gordon v. Wolfe, 179 Cal. App. 3d 162 (1986) ................................................................................... 7
\DOOQONUl-QUJNH
Horning v. Shilberg, 130 Cal. App. 4th 197 (2005 .............................................................................. 8
Hughes v. Blue Cross ofNorthern California, 215 Cal. App. 3d 832 (1989) ........................................ 6
Kimball Ave v. Franco, 162 Cal. App. 4th 1224 (2008) ................................................................... 11
Le Francois v. Gael, 35 Cal. 4th 1094 (2005) .................................................................................... 10
Lentz v. McMahon, 49 Cal. 3d 393 (1989) ........................................................................................... 7
McDonald v. Severy, 6 Cal. 2d 629 (1936) ........................................................................................ 10
Mirimar Hotel Corp. v. FrankE. Hall Co., 163 Cal. App. 3d 1126 (1985) ......................................... 7
People v. Morrison, 34 Cal. 4th 698 (2004) ......................................................................................... 6
Valeria v. Andrew Youngquist Construction, 103 Cal. App. 4th 1264 (2002) ....................................... 6
Varela v. Wells Fargo Bank, 15 Cal. App. 3d 741 (1971) ................................................................... 7
Wallis v. PHI. Assocs., Inc. 220 Cal. App. 4th 814 (2013) ................................................................. 7
Whittington v. McKinney, 234 Cal. App. 3d 123 (1991) .................................................................. 7, 8
Statutes
Cal. Bus. & Prof. Code 6068 ........................................................................................................... 11
§
Cal. Bus. & Prof. Code 6128 § ................ 11
Cal. Civ. Proc. Code § 1003 ............................................................................................................... 11
Cal. Civ. Proc. Code § 1005 ............................................................................................................... 11
Cal. Civ. Proc. Code § 632 ................................................................................................................... 6
Cal. Civ. Proc. Code § 664 .................................................................................................................. 5
Cal. Evid. Code § 210 ............................................................ '............................................................... 6
Cal. Evid. Code § 350 ........................................................................................................................... 6
Cal. Evid. Code § 623 ........................................................................................................................... 6
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Cal. Evid. Code §§ 800 et seq. ..................................................................................................... 6
Other Authorities
Cal. State Bar’s Civility Guidelines § 7 ............................................................................................. 12
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Cal. State Bar’s Civility Guidelines § 9 ............................................................................................. 12
W. Wegner, R. Fairbanks, et 211., Cal. Prac. Guide: Civ. Trials & Evid. (TRG 2016) ......................... 7
Rules
ABA Model Rule 33 .................... 11
ABA Model Rule 4.1 ..........................................................................................................................
' 11
ABA Model Rule 8.4 .......................... ................................................................................................ 1 2
Cal. Ct. R. 3.1300 .............................................................................................................................. 11
Cal. Ct. R. 1.21 ...................................... ............................................................................................. 1 1
~
Cal. Ct. R. 3.1590 ......................................................................................................................... 3, 6, 8
Cal. Ct. R. 8.25 ............................................................................................................................. 10, 11
Cal. Rule of Prof. Conduct 5-200 ....................................................................................................... 11
Case No.: CIV532937 2 Schoendorfv. Evans.
RESP. BY DEF./X—COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION
u—A
I. INTRODUCTION
N Pursuant to the Court’s Minute Order dated June 25, 2018, Defendant and
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Cross-Complainant David B; Evans respectfially submits the following Response to the [Proposed]
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Statement of Decision filed ex parte, without service on Mr. Evans, on or about June 21, 2018 by
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Plaintiff and Cross-Defendant Kathryn Schoendorf.
O\ I
II. DAVID B. EVANS’S RESPONSE TO SCHOENDORF’S
\I
[PROPOSED] STATEMENT OF DECISION
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A. The Statement of Decision Process.
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Following an eight-day bench trial, The Honorable Gerald J. Buchwald issued an oral
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O tentative statement of decision on September 27, 2017, and invited the Parties to file written
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objections. Reporter’s Transcript (“RT”) at 721 :13—722z2, EX. 1 to Declaration of Tyler M. Paetkau
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N (“Paetkau Decl.”), filed concurrently. Specifically, the Court stated:
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So I just want to get the court rule in front of me here because what
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in the case pursuant to Rule of Court 3.1590(a), which can be done
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if both parties are present and both counsel are present, which they
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are.
u—A \I Under rule 3.1590(0), I’m going to state that it’s the Court’s
intention that the tentative decision is the proposed statement of
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decision of the court. That’s subject to any objections that parties
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might have under other sections of that rule. think it’s I
subdivision (g). Parties can make exceptions, and that’s also
NO subject to if one or the other side or you jointly request for a more
extensive written statement of decision in which event I would
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probably assign the writing of that to one or the other of counsel.
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RT at 721:13—722:2 (emphases added) (9/27/17), Ex. 1 to Paetkau Decl.1
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Rule 3.1590, “Announcement of tentative decision, statement of decision, and judgment,” states
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See also id. at 748214-74924 (“So that will be for the reasons that I’ve stated the tentative decision of the Court in this
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N 0\ case. If there is no objection filed by either side, within the timelines, and the Court rule, then that will become the
statement of decision. If
any on either side wants a more extensive written statement of decision, then you can
[\J \I request that. And I think the only issue, maybe, is whether both sides want me to relax the deadlines in Rule 3 at this
time 1590 because they’re a little tight. And now you know what I think about the case, and you might be able to meet
N 00 and confer in light of what I’ve found and concluded and resolve this. I don’t know if you want some time to be able to
do that. But I have discretion under subdivision (m) of 3.1590 to extend those time limits on all of the post-trial
procedures that are set forth on the:e.”) (emphasis added).
Case No.: CIV532937 3 Schoendorfv. Evans.
RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION
in relevant part:
(a) Announcement and service of tentative decision
On the trial of a question of fact by the court, the court must announce its
tentative decision by an oral statement, entered in the minutes, or by a
written statement filed with the clerk. Unless the announcement is made
in open court in the presence of all parties that appeared at the trial, the
clerk must immediately serve on all parties that appeared at the trial a
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copy of the minute entry or written tentative decision.
(b) Tentative decision not binding
The tentative decision does not constitute a judgment and is not binding on
the court. If the court subsequently modifies or changes its announced
tentative decision, the clerk must serve a copy of the modification or
change on all parties that appeared at the trial.
(c) Provisions in tentative decision
The court in its tentative decision may:
(1) State that it is the court’s proposed statement of decision, subject to a
party’s objection under (g);
(2) Indicate that the court will prepare a statement of decision;
(3) Order a party to prepare a statement of decision; or
(4) Direct that the tentative decision will become the statement of
decision unless, within 10 days after announcement or service of the
tentative decision, a party specifies those principal controverted issues as
to which the party is requesting a statement of decision or makes proposals
not included in the tentative decision.
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Request for statement of decision
((1)
Within 10 days after announcement or service of the tentative decision,
whichever is later, any party that appeared at trial may request a statement
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of decision to address the principal controverted issues. The principal
controverted issues must be specified in the request.
(e) Other party’s response to request for statement of decision
If a party requests a statementof decision under ((1), any other party may
make proposals as to the content of the statement of decision within 10
days after the date of request for a statement of decision.
(1) Preparation and service of proposed statement of decision and
judgment
If a party requests a statement of decision under (d), the court must, within
30 days of announcement or service of the tentative decision, prepare and
serve a proposed statement of decision and a proposed judgment on all
parties that appeared at the trial, unless the court has ordered a party to
prepare the statement. A party that has been ordered to prepare the
statement must within 30 days after the announcement or service of the
Case No.: CIV532937 4 Schoendorfv. Evans.
RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION
tentative decision, serve and submit to the court a proposed statement of
decision and a proposed judgment. If the proposed statement of decision
and judgment are not served and submitted within that time, any other
party that appeared at the trial may within 10 days thereafter: (1) prepare,
serve, and submit to the court a proposed statement of decision and
judgment or (2) serve on all other parties and file a notice of motion for an
O\DOO\]O\LII-bb3l\)v—e
order that a statement of decision be deemed waived.
(g) Objections to proposed statement of decision
Any party may, within 15 days after the proposed statement of decision
and judgment have been served, serve and file objections to the proposed
statement of decision orjudgment.
(h) Preparation and filing of written judgment when statement of
‘
decision not prepared
If no party requests or is ordered to prepare a statement of decision and a
written judgment is required, the court must prepare and serve a proposed
judgment on all parties that appeared at the trial within 20 days after the
announcement or service of the tentative decision or the court may order a
party to prepare, serve, and submit the proposed judgment to the court
within 10 days after the date of the order.
(i) Preparation and filing of written judgment when statement of
decision deemed waived
If the court orders that the statement of decision
is deemed waived and a
written judgment is required, the court must, within 10 days of the order
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deeming the statement of decision waived, either prepare and serve a
proposed judgment on all parties that appeared at the trial or order a party
to prepare, serve, and submit the proposed judgment to the court within 10
days.
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(j) Objection to proposed judgment
Any party may, within 10 days after service of the proposed judgment,
serve and file objections thereto.
(k) Hearing ,
'The court may order a hearing on proposals or objections to a proposed
statement of decision or the proposed judgment.
(1) Signature and filing ofjudgment _
If a written judgment is required, the court must sign and file the judgment
within 50 days after the announcement or service of the tentative decision,
whichever is later, or, if a hearing was held under (k), within 10 days afier
the hearing. An electronic signature by the court is as effective as an
original signature. The judgment constitutes the decision on which
judgment is to be entered under Code of Civil Procedure section 664.
Case No.: CIV532937 5 Schoendorfv. Evans.
RESP. BY DEF./X—COMPL. DB. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION
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(m) Extension of time; relief from noncompliance
The court may, by written order, extend any of the times prescribed by this
rule and at any time before the entry of judgment may, for good cause
shown and on such terms as may be just, excuse a noncompliance with the
time limits prescribed for doing any act required by this rule.
In announcing its oral tentative decision on September 27, 2017, the Court did not invoke
\OOOQQUI-PUJN
subdivision_(c)(4) of Rule 3.1590 (i.e., “[d]irect that the tentative decision will become the statement
of decision unless, within 10 days after announcement or service of the tentative decision, a party
specifies those principal controverted issues as to which the party is requesting a statement of
decision or makes proposals not included in the tentative decision”). Instead, the Court invoked
subdivision (c)(1), by “[s]tat[ing] that it is the court’s proposed statement of decision, subject to a
party’s objection under (g).” Id. at 721213-7222, EX. 1 to Paetkau Decl.
On October 6, 2017, Mr. Evans’ filed timely written Objections to the Court’s oral, tentative
statement of decision, and filed a separate Request for Statement of Decision regarding “the
principal controverted factual and legal issues at trial.” Exs. 3—4 to Paetkau Dec]. See Code Civ.
Proc. § 632 (“The court shall issue a statement of decision explaining the factual and legal basis for
its decision as to each of the principal controverted issues at trial upon the request of any party
appearing at the trial”); Cal. R. Ct. 3.1590; Bay World Trading, Ltd. v. Nebraska Beef, Inc., 101 Cal.
NMNNNNNNNh—AHb—As—d—‘Hp—AHHH
App. 4th 135, 140 (2002).
OOflOm-bWNHOOOOQONUi-hWNb-‘O
Mr. Evans objected to certain purported, un—plead offsets or “equitable adjustments” to Mr.
Evans’s breach of written contract damages: (1) the Parties’ 2013 Buy—Out/Settlement Price
Agreement did not authorize these purported “adjustments,” offsets or deductions, which constituted
an unfair surprise that deprived Mr. Evans of his constitutional right to due process of law (see Evid.
Code 352; see also Hughes= 215 Cal. App. 3d. at 858; Cota, 105 Cal. App. 3d at 293; Valerio, 103
§
Cal. App. 4th at 1271); (2) the unauthorized offsets are purely speculative (see Evid. Code § 210;
People v. Morrison, 34 Cal. 4th 698, 711 (2004)), lack foundation (Evid. Code §§ 800 et seq), are
irrelevant (Evid. Code §§ 210, 350), and the admissible evidence does not support them; and (3) the
offsets cannot be justified on the grounds of equity because there is no legal authority or evidence to
support the elements of an equitable estoppel (see Evid. Code § 623; Lentz v. McMahon, 49 Cal. 3d
Case No.: CIV532937 6 Schoendorfv. Evans.
RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION
393, 399 (1989); Varela v. Wells Fargo Bank, 15 Cal. App. 3d 741, 748 (1971)), and because
Schoendorf has “unclean hands” in the same matters alleged, including without limitation her
material breach of the 2013 Buy—Out/Settlement Price Agreement (RT at 13:1-102), her breach of
fiduciary duty, her failure and refusal to provide Mr. Evans with an accurate accounting, and her
\DOOQQUI-bUJN—I
failure and refusal to return Mr. Evans’s one-half share of the permitting agencies’ refunded fees
(see Mr. Evans’s Ex Parte Application for Disgorgement of Stolen Money, filed on June 19, 2018).
Importantly, as of the filing of this Response, the Court has yet to rule on any of the Parties’
written Objections to its oral tentative decision or issue its proposed Statement of Decision.
The Court’s Statement of Decision serves several important purposes: (1) it allows
modification of the Court’s tentative, oral decision, and to make whatever findings are necessary to
support its intended judgment (Marriage of Ditto, 206 Cal. App. 3d 643, 647 (1988)); (2) it
facilitates a motion for new trial (Whittington v. McKinney, 234 Cal. App. 3d 123, 127 (1991)); (3)
it facilitates appellate review (id. at 127; Gordon v. Wolfe, 179 Cal. App. 3d 162, 168 (1986)); (4) it
discourages futile appeals (Mirimar Hotel Corp. v. Frank E. Hall Ca, 163 Cal. App. 3d 1126, 1129
(1985)); and (5) it facilitates determination of the matters adjudicated for purposes of res judicata
and collateral estoppel. See W. Wegner, R. Fairbanks, et al., Cal. Prac. Guide: Civ. Trials & Evid.
NMNNNNMNND—‘t—‘HP—‘HHt—‘t—db—Ir—l
(TRG 2016) 1l1116:93-16:99 at p. 16-21.
Where, as here, the Court announces its tentative decision on some issues but reserves other
WQONMAWNHOKOOOQQMQWNHO
issues for later decision,3 the 10 days in which to request a statement of decision runs from the time
the Court completes announcement of its decision on all reserved issues. Wallis v. PHL Assocs.,
Inc., 220 Cal. App. 4th 814, 826 (2013); W. Wegner, et al., Civ. Trials & Evid., supra, at 1116:1401,
p. 16—31. The Court Reporter’s transcript of the Court’s oral, tentative “findings” is no substitute
2 “A couple of other related findings that the evidence is clear and convincing in one regard is that, as you pointed out
yesterday, Mr. Smith, Ms. Schoendctftestified under cross-examination that she read and understood the deed of trust,
the note, including its indemnity provisions. She testified that she read and understood Exhibit 23, the 2013 agreement,
and understood that as a result of that agreement, that the parties would be obligated to determine an amount that
would be paid to Mr. Evans according to the calculated number, based on the average of three appraisals. And so
there ’s no question in my mind that the parties agreed to this and that — and that the threshold net adjustment of the note
down to the $248,333 is something that’s beyond dispute. The parties clearly agreed to resolving the value of the note
in that way.” (Italics added.) ,
3
For example, here the Court expressly reserved the issue of prevailing party attomey’s fees until later resolution. RT
at 744:5-0 (“But any issues to do with attorneys’ fees will be reserved, subject to an appropriate motion for award of
attorneys’ fees with proper supporting documentation, and 1 can hear that as a post-trial supplemental judgment with
respect to that”), 746:23—24 (“Now, the attorneys’ fees issues that will be reserved as 1 said”).
Case No.: CIV532937 7 Schoendorfv. Evans.
RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION
for the Court’s written, formal [Proposed] Statement of Decision. See Whittington v. McKinney,
234 Cal. App. 3d 123, 128 (1991). Similarly, the Court’s oral, tentative decision is no substitute for
the Court’s written, formal [Proposed] Statement of Decision. Cal. R. Ct. 3.1590(0); Homing v.
Shilberg, 130 Cal. App. 4th 197, 203 (2005).
\DOOVQLA-RUONH
B. Schoendorf Filed a Clearly Erroneous [Proposed] Statement of Decision on June 21,
2018, Without Serving It on Evans in Violation of His Constitutional Due Process
Rights.
The record shows that on April 7, 2018, Mr. Evans’s counsel, Mr. Paetkau, sent via e—mail to
Schoendorfs counsel, Mr. Kelly, the Court Reporter’s transcript of the Court’s oral tentative
decision on September 27, 2017. Paetkau Decl., 16. On April 9, 2018, Mr. Kelly sent to Mr.
Paetkau a “[Proposed] Statement of Decision,” stating in his cover e-mail: “I took the transcript and
converted it to a drafted Decision/Judgment; it is attached. [1] NOTE: the end has yellow where
my objections were based and the very end is very rough depending upon findings. . ...but the overall
tentative statement is what the transcript was as stated.” Id. at 117 & Ex. 5. For the most part,
Schoendorf’s [Proposed] Statement of Decision simply tracked the Court’s oral tentative decision.
Compare Schoendorf’s first [Proposed] Statement (Ex. 5 to Paetkau Decl.) with Reporter’s
Transcript of Court’s oral, tentative decision (Ex. 1
Preview
b—d Tyler M. Paetkau, State Bar No. 146305 FILED Tracie E. Stender, State Bar No. 280071 SAN MATEQ COUNTY PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 1117 S. California Ave., Suite 200 JUL 1 0 2013 ~ , Palo Alto, CA 94304 Telephone: (650) 645—9027 Facsimile: (650) 687-8323 Email: tyler.paetkau@procopio.com Attorneys for Defendant and Cross—Complainant ’ \DOOQGMAWN DAVID B. EVANS SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO UNLIMITED JURISDICTION KATHRYN M. SCHOENDORF, an individual, Case No. CIV532937 and as Trustee of the Kathryn M. Schoendorf Trust dated July 10, 1993, RESPONSE BY DEFENDANT/CROSS- ‘ ' COMPLAINANT DAVID B. EVANS TO Plaintiff, PLAINTIFF/CROSS-DEFENDANT’S [PROPOSED] STATEMENT OF DECISION vs. [Code Civ. Proc. § 632; Ca1.R.Ct. 3.1590] _ DAVID B. EVANS, an individual, and DOES 1 through 25, inclusive, [Declaration of Tyler M. Paetkau filed NNNNNNNNNb—‘v—‘r—Il—‘h—db—Ar—Ah—dy—Au—A concurrently] Defendants. MQOMhWNHOOWVQMLWNfi—‘O Date: July 27, 2018 Time: 2:30 pm. Dept: 10 Trial Judge: Hon. Gerald J. Buchwald AND RELATED CROSS ACTION. [l532931 ' MPAR . _ _ Memorandum of Points and Authorities In Repl l , | “Ti k__ null ill “l— I _ I“. Case No.: C1V532937 Schoendorfv. Evans. RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION TABLE OF CONTENTS Page I. INTRODUCTION .................................................................................................................... 3 11. DAVID B. EVANS’S RESPONSE TO SCHOENDORF’S [PROPOSED] STATEMENT OF DECISION ........................................................................ 3 \OOO\]O\UIJ>UJNr—l A. The Statement of Decision Process. ......................................................................................... 3 B. Schoendorf Filed a Clearly Erroneous [Proposed] Statement of Decision on June 21, 2018, Without Sewing It on Evans in Violation of His Constitutional Due Process Rights. ......................................................................................................................... 8 C. Mr. Evans’s Objections to SchoendorPs [Proposed] Statement of Decision and Mr. Evans’s [Proposed] Statement. ........................................................................................ 12 III. CONCLUSION ...................................................................................................................... 13 NNNNNNNNNh—lhflfi—il—di—dh—IHHF—ib—l WVCNM-PWNHOOOOQONUIQWNF—‘O Case No.: CIVS 32937 1 Schoendorfv. Evans. RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION TABLE OF AUTHORITIES Page Cases Bay World Trading, Ltd. v. Nebraska Beef Inc., 101 Cal. App. 4th 135 (2002) ................................. 6 Cola v. County ofLos Angeles, 105 Cal. App. 3d 282 (1980) ............................................................. 6 Gordon v. Wolfe, 179 Cal. App. 3d 162 (1986) ................................................................................... 7 \DOOQONUl-QUJNH Horning v. Shilberg, 130 Cal. App. 4th 197 (2005 .............................................................................. 8 Hughes v. Blue Cross ofNorthern California, 215 Cal. App. 3d 832 (1989) ........................................ 6 Kimball Ave v. Franco, 162 Cal. App. 4th 1224 (2008) ................................................................... 11 Le Francois v. Gael, 35 Cal. 4th 1094 (2005) .................................................................................... 10 Lentz v. McMahon, 49 Cal. 3d 393 (1989) ........................................................................................... 7 McDonald v. Severy, 6 Cal. 2d 629 (1936) ........................................................................................ 10 Mirimar Hotel Corp. v. FrankE. Hall Co., 163 Cal. App. 3d 1126 (1985) ......................................... 7 People v. Morrison, 34 Cal. 4th 698 (2004) ......................................................................................... 6 Valeria v. Andrew Youngquist Construction, 103 Cal. App. 4th 1264 (2002) ....................................... 6 Varela v. Wells Fargo Bank, 15 Cal. App. 3d 741 (1971) ................................................................... 7 Wallis v. PHI. Assocs., Inc. 220 Cal. App. 4th 814 (2013) ................................................................. 7 Whittington v. McKinney, 234 Cal. App. 3d 123 (1991) .................................................................. 7, 8 Statutes Cal. Bus. & Prof. Code 6068 ........................................................................................................... 11 § Cal. Bus. & Prof. Code 6128 § ................ 11 Cal. Civ. Proc. Code § 1003 ............................................................................................................... 11 Cal. Civ. Proc. Code § 1005 ............................................................................................................... 11 Cal. Civ. Proc. Code § 632 ................................................................................................................... 6 Cal. Civ. Proc. Code § 664 .................................................................................................................. 5 Cal. Evid. Code § 210 ............................................................ '............................................................... 6 Cal. Evid. Code § 350 ........................................................................................................................... 6 Cal. Evid. Code § 623 ........................................................................................................................... 6 NNNNNNNNNb—Iv—i—au—Au—AHr—A—Ar—Ar—i Cal. Evid. Code §§ 800 et seq. ..................................................................................................... 6 Other Authorities Cal. State Bar’s Civility Guidelines § 7 ............................................................................................. 12 WVQMfiWNHOOWQQM-RWNHO Cal. State Bar’s Civility Guidelines § 9 ............................................................................................. 12 W. Wegner, R. Fairbanks, et 211., Cal. Prac. Guide: Civ. Trials & Evid. (TRG 2016) ......................... 7 Rules ABA Model Rule 33 .................... 11 ABA Model Rule 4.1 .......................................................................................................................... ' 11 ABA Model Rule 8.4 .......................... ................................................................................................ 1 2 Cal. Ct. R. 3.1300 .............................................................................................................................. 11 Cal. Ct. R. 1.21 ...................................... ............................................................................................. 1 1 ~ Cal. Ct. R. 3.1590 ......................................................................................................................... 3, 6, 8 Cal. Ct. R. 8.25 ............................................................................................................................. 10, 11 Cal. Rule of Prof. Conduct 5-200 ....................................................................................................... 11 Case No.: CIV532937 2 Schoendorfv. Evans. RESP. BY DEF./X—COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION u—A I. INTRODUCTION N Pursuant to the Court’s Minute Order dated June 25, 2018, Defendant and L») Cross-Complainant David B; Evans respectfially submits the following Response to the [Proposed] 4}- Statement of Decision filed ex parte, without service on Mr. Evans, on or about June 21, 2018 by ' U1 Plaintiff and Cross-Defendant Kathryn Schoendorf. O\ I II. DAVID B. EVANS’S RESPONSE TO SCHOENDORF’S \I [PROPOSED] STATEMENT OF DECISION 00 A. The Statement of Decision Process. \O Following an eight-day bench trial, The Honorable Gerald J. Buchwald issued an oral ,_. O tentative statement of decision on September 27, 2017, and invited the Parties to file written r—A >—‘ objections. Reporter’s Transcript (“RT”) at 721 :13—722z2, EX. 1 to Declaration of Tyler M. Paetkau r—A N (“Paetkau Decl.”), filed concurrently. Specifically, the Court stated: r—A U.) So I just want to get the court rule in front of me here because what r—A J> I’m going to do at this time is announce an oral tentative decision in the case pursuant to Rule of Court 3.1590(a), which can be done r—I LII if both parties are present and both counsel are present, which they r—I O\ are. u—A \I Under rule 3.1590(0), I’m going to state that it’s the Court’s intention that the tentative decision is the proposed statement of 00 decision of the court. That’s subject to any objections that parties u—A u—t \O might have under other sections of that rule. think it’s I subdivision (g). Parties can make exceptions, and that’s also NO subject to if one or the other side or you jointly request for a more extensive written statement of decision in which event I would [\J )—‘ probably assign the writing of that to one or the other of counsel. NM RT at 721:13—722:2 (emphases added) (9/27/17), Ex. 1 to Paetkau Decl.1 DJ N Rule 3.1590, “Announcement of tentative decision, statement of decision, and judgment,” states Rx) 4}- N U1 See also id. at 748214-74924 (“So that will be for the reasons that I’ve stated the tentative decision of the Court in this 1 N 0\ case. If there is no objection filed by either side, within the timelines, and the Court rule, then that will become the statement of decision. If any on either side wants a more extensive written statement of decision, then you can [\J \I request that. And I think the only issue, maybe, is whether both sides want me to relax the deadlines in Rule 3 at this time 1590 because they’re a little tight. And now you know what I think about the case, and you might be able to meet N 00 and confer in light of what I’ve found and concluded and resolve this. I don’t know if you want some time to be able to do that. But I have discretion under subdivision (m) of 3.1590 to extend those time limits on all of the post-trial procedures that are set forth on the:e.”) (emphasis added). Case No.: CIV532937 3 Schoendorfv. Evans. RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION in relevant part: (a) Announcement and service of tentative decision On the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk. Unless the announcement is made in open court in the presence of all parties that appeared at the trial, the clerk must immediately serve on all parties that appeared at the trial a \OOOQO‘xUt-bUJNH copy of the minute entry or written tentative decision. (b) Tentative decision not binding The tentative decision does not constitute a judgment and is not binding on the court. If the court subsequently modifies or changes its announced tentative decision, the clerk must serve a copy of the modification or change on all parties that appeared at the trial. (c) Provisions in tentative decision The court in its tentative decision may: (1) State that it is the court’s proposed statement of decision, subject to a party’s objection under (g); (2) Indicate that the court will prepare a statement of decision; (3) Order a party to prepare a statement of decision; or (4) Direct that the tentative decision will become the statement of decision unless, within 10 days after announcement or service of the tentative decision, a party specifies those principal controverted issues as to which the party is requesting a statement of decision or makes proposals not included in the tentative decision. NNNNNNNNNF—‘i—‘HP—‘i—ib—lb—lv—AHp—l Request for statement of decision ((1) Within 10 days after announcement or service of the tentative decision, whichever is later, any party that appeared at trial may request a statement OO\)O\UIJ>UJN>—‘O\DOO\IO\UIJ>UJN*—‘0 of decision to address the principal controverted issues. The principal controverted issues must be specified in the request. (e) Other party’s response to request for statement of decision If a party requests a statementof decision under ((1), any other party may make proposals as to the content of the statement of decision within 10 days after the date of request for a statement of decision. (1) Preparation and service of proposed statement of decision and judgment If a party requests a statement of decision under (d), the court must, within 30 days of announcement or service of the tentative decision, prepare and serve a proposed statement of decision and a proposed judgment on all parties that appeared at the trial, unless the court has ordered a party to prepare the statement. A party that has been ordered to prepare the statement must within 30 days after the announcement or service of the Case No.: CIV532937 4 Schoendorfv. Evans. RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION tentative decision, serve and submit to the court a proposed statement of decision and a proposed judgment. If the proposed statement of decision and judgment are not served and submitted within that time, any other party that appeared at the trial may within 10 days thereafter: (1) prepare, serve, and submit to the court a proposed statement of decision and judgment or (2) serve on all other parties and file a notice of motion for an O\DOO\]O\LII-bb3l\)v—e order that a statement of decision be deemed waived. (g) Objections to proposed statement of decision Any party may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision orjudgment. (h) Preparation and filing of written judgment when statement of ‘ decision not prepared If no party requests or is ordered to prepare a statement of decision and a written judgment is required, the court must prepare and serve a proposed judgment on all parties that appeared at the trial within 20 days after the announcement or service of the tentative decision or the court may order a party to prepare, serve, and submit the proposed judgment to the court within 10 days after the date of the order. (i) Preparation and filing of written judgment when statement of decision deemed waived If the court orders that the statement of decision is deemed waived and a written judgment is required, the court must, within 10 days of the order NNNNNNNNNb—Ir—Ar—Ir—Ih—AH—Au—Ib—Av—A deeming the statement of decision waived, either prepare and serve a proposed judgment on all parties that appeared at the trial or order a party to prepare, serve, and submit the proposed judgment to the court within 10 days. Wflom-DWNHOQOOflmm-bWNH (j) Objection to proposed judgment Any party may, within 10 days after service of the proposed judgment, serve and file objections thereto. (k) Hearing , 'The court may order a hearing on proposals or objections to a proposed statement of decision or the proposed judgment. (1) Signature and filing ofjudgment _ If a written judgment is required, the court must sign and file the judgment within 50 days after the announcement or service of the tentative decision, whichever is later, or, if a hearing was held under (k), within 10 days afier the hearing. An electronic signature by the court is as effective as an original signature. The judgment constitutes the decision on which judgment is to be entered under Code of Civil Procedure section 664. Case No.: CIV532937 5 Schoendorfv. Evans. RESP. BY DEF./X—COMPL. DB. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION b—A (m) Extension of time; relief from noncompliance The court may, by written order, extend any of the times prescribed by this rule and at any time before the entry of judgment may, for good cause shown and on such terms as may be just, excuse a noncompliance with the time limits prescribed for doing any act required by this rule. In announcing its oral tentative decision on September 27, 2017, the Court did not invoke \OOOQQUI-PUJN subdivision_(c)(4) of Rule 3.1590 (i.e., “[d]irect that the tentative decision will become the statement of decision unless, within 10 days after announcement or service of the tentative decision, a party specifies those principal controverted issues as to which the party is requesting a statement of decision or makes proposals not included in the tentative decision”). Instead, the Court invoked subdivision (c)(1), by “[s]tat[ing] that it is the court’s proposed statement of decision, subject to a party’s objection under (g).” Id. at 721213-7222, EX. 1 to Paetkau Decl. On October 6, 2017, Mr. Evans’ filed timely written Objections to the Court’s oral, tentative statement of decision, and filed a separate Request for Statement of Decision regarding “the principal controverted factual and legal issues at trial.” Exs. 3—4 to Paetkau Dec]. See Code Civ. Proc. § 632 (“The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial”); Cal. R. Ct. 3.1590; Bay World Trading, Ltd. v. Nebraska Beef, Inc., 101 Cal. NMNNNNNNNh—AHb—As—d—‘Hp—AHHH App. 4th 135, 140 (2002). OOflOm-bWNHOOOOQONUi-hWNb-‘O Mr. Evans objected to certain purported, un—plead offsets or “equitable adjustments” to Mr. Evans’s breach of written contract damages: (1) the Parties’ 2013 Buy—Out/Settlement Price Agreement did not authorize these purported “adjustments,” offsets or deductions, which constituted an unfair surprise that deprived Mr. Evans of his constitutional right to due process of law (see Evid. Code 352; see also Hughes= 215 Cal. App. 3d. at 858; Cota, 105 Cal. App. 3d at 293; Valerio, 103 § Cal. App. 4th at 1271); (2) the unauthorized offsets are purely speculative (see Evid. Code § 210; People v. Morrison, 34 Cal. 4th 698, 711 (2004)), lack foundation (Evid. Code §§ 800 et seq), are irrelevant (Evid. Code §§ 210, 350), and the admissible evidence does not support them; and (3) the offsets cannot be justified on the grounds of equity because there is no legal authority or evidence to support the elements of an equitable estoppel (see Evid. Code § 623; Lentz v. McMahon, 49 Cal. 3d Case No.: CIV532937 6 Schoendorfv. Evans. RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION 393, 399 (1989); Varela v. Wells Fargo Bank, 15 Cal. App. 3d 741, 748 (1971)), and because Schoendorf has “unclean hands” in the same matters alleged, including without limitation her material breach of the 2013 Buy—Out/Settlement Price Agreement (RT at 13:1-102), her breach of fiduciary duty, her failure and refusal to provide Mr. Evans with an accurate accounting, and her \DOOQQUI-bUJN—I failure and refusal to return Mr. Evans’s one-half share of the permitting agencies’ refunded fees (see Mr. Evans’s Ex Parte Application for Disgorgement of Stolen Money, filed on June 19, 2018). Importantly, as of the filing of this Response, the Court has yet to rule on any of the Parties’ written Objections to its oral tentative decision or issue its proposed Statement of Decision. The Court’s Statement of Decision serves several important purposes: (1) it allows modification of the Court’s tentative, oral decision, and to make whatever findings are necessary to support its intended judgment (Marriage of Ditto, 206 Cal. App. 3d 643, 647 (1988)); (2) it facilitates a motion for new trial (Whittington v. McKinney, 234 Cal. App. 3d 123, 127 (1991)); (3) it facilitates appellate review (id. at 127; Gordon v. Wolfe, 179 Cal. App. 3d 162, 168 (1986)); (4) it discourages futile appeals (Mirimar Hotel Corp. v. Frank E. Hall Ca, 163 Cal. App. 3d 1126, 1129 (1985)); and (5) it facilitates determination of the matters adjudicated for purposes of res judicata and collateral estoppel. See W. Wegner, R. Fairbanks, et al., Cal. Prac. Guide: Civ. Trials & Evid. NMNNNNMNND—‘t—‘HP—‘HHt—‘t—db—Ir—l (TRG 2016) 1l1116:93-16:99 at p. 16-21. Where, as here, the Court announces its tentative decision on some issues but reserves other WQONMAWNHOKOOOQQMQWNHO issues for later decision,3 the 10 days in which to request a statement of decision runs from the time the Court completes announcement of its decision on all reserved issues. Wallis v. PHL Assocs., Inc., 220 Cal. App. 4th 814, 826 (2013); W. Wegner, et al., Civ. Trials & Evid., supra, at 1116:1401, p. 16—31. The Court Reporter’s transcript of the Court’s oral, tentative “findings” is no substitute 2 “A couple of other related findings that the evidence is clear and convincing in one regard is that, as you pointed out yesterday, Mr. Smith, Ms. Schoendctftestified under cross-examination that she read and understood the deed of trust, the note, including its indemnity provisions. She testified that she read and understood Exhibit 23, the 2013 agreement, and understood that as a result of that agreement, that the parties would be obligated to determine an amount that would be paid to Mr. Evans according to the calculated number, based on the average of three appraisals. And so there ’s no question in my mind that the parties agreed to this and that — and that the threshold net adjustment of the note down to the $248,333 is something that’s beyond dispute. The parties clearly agreed to resolving the value of the note in that way.” (Italics added.) , 3 For example, here the Court expressly reserved the issue of prevailing party attomey’s fees until later resolution. RT at 744:5-0 (“But any issues to do with attorneys’ fees will be reserved, subject to an appropriate motion for award of attorneys’ fees with proper supporting documentation, and 1 can hear that as a post-trial supplemental judgment with respect to that”), 746:23—24 (“Now, the attorneys’ fees issues that will be reserved as 1 said”). Case No.: CIV532937 7 Schoendorfv. Evans. RESP. BY DEF./X-COMPL. D.B. EVANS TO PLTF./X-DEF.’S [PROPOSED] STATEMENT OF DECISION for the Court’s written, formal [Proposed] Statement of Decision. See Whittington v. McKinney, 234 Cal. App. 3d 123, 128 (1991). Similarly, the Court’s oral, tentative decision is no substitute for the Court’s written, formal [Proposed] Statement of Decision. Cal. R. Ct. 3.1590(0); Homing v. Shilberg, 130 Cal. App. 4th 197, 203 (2005). \DOOVQLA-RUONH B. Schoendorf Filed a Clearly Erroneous [Proposed] Statement of Decision on June 21, 2018, Without Serving It on Evans in Violation of His Constitutional Due Process Rights. The record shows that on April 7, 2018, Mr. Evans’s counsel, Mr. Paetkau, sent via e—mail to Schoendorfs counsel, Mr. Kelly, the Court Reporter’s transcript of the Court’s oral tentative decision on September 27, 2017. Paetkau Decl., 16. On April 9, 2018, Mr. Kelly sent to Mr. Paetkau a “[Proposed] Statement of Decision,” stating in his cover e-mail: “I took the transcript and converted it to a drafted Decision/Judgment; it is attached. [1] NOTE: the end has yellow where my objections were based and the very end is very rough depending upon findings. . ...but the overall tentative statement is what the transcript was as stated.” Id. at 117 & Ex. 5. For the most part, Schoendorf’s [Proposed] Statement of Decision simply tracked the Court’s oral tentative decision. Compare Schoendorf’s first [Proposed] Statement (Ex. 5 to Paetkau Decl.) with Reporter’s Transcript of Court’s oral, tentative decision (Ex. 1