Preview
1 BOUTIN JONES INC. 11/13/2020
Bruce M. Timm (SBN 199679)
2 Kimberly A. Lucia (SBN 266503)
Kendall C. Fisher (SBN 322155)
3 555 Capitol Mall, Suite 1500
Sacramento, CA 95814
4 Telephone: (916) 321-4444
Fax: (916) 441-7597
5 Email: btimm@boutinjones.com
klucia@boutinjones.com
6 kfisher@boutinjones.com
7 Attorneys for Defendants MJ Akerland, R.N., APNC dba
K12 Health, and Marianne J. Akerland
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF PLACER
11 DAVID MOELLER, Case No. SCV 0042445
12 Plaintiff, SUPPLEMENTAL DECLARATION OF
BRUCE TIMM IN SUPPORT OF
13 v. REPLY IN SUPPORT OF
DEFENDANTS MJ AKERLAND, R.N.,
14 MJ AKERLAND, R.N. A PROFESSIONAL APNC dba K12 HEALTH AND
NURSING CORPORATION doing business as MARIANNE J. AKERLAND’S MOTION
15 K12 HEALTH, a California Corporation; FOR SANCTIONS RE FAILURE TO
MARIANNE J. AKERLAND, an individual; and COMPLY WITH COURT’S ORDER
16 DOES 1-10, inclusive, REGARDING REQUESTS FOR
ADMISSION
17 Defendants.
DATE: November 20, 2020
18 TIME: 8:30 a.m.
DEPT.: 3
19
Action Filed: February 4, 2019
20 Trial Date: June 14, 2021
21
22 I, Bruce M. Timm, declare as follows:
23 1. I am an attorney at law licensed to practice before all courts of the state of California,
24 and am a shareholder with the law firm of Boutin Jones Inc., attorneys for Defendants MJ Akerland,
25 R.N., APNC dba K12 Health (“K12 Health”), and Marianne J. Akerland (“Defendants”). I have
26 personal knowledge of the following facts:
27 2. On October 22, 2020, I took Plaintiff’s deposition. A true and correct copy of excerpts
28 of Plaintiff’s deposition testimony is attached hereto as Exhibit A.
1
TIMM DECLARATION ISO MOTION FOR SANCTIONS RE FAILURE TO COMPLY WITH
COURT’S ORDER REGARDING REQUESTS FOR ADMISSION 1122321.1
1 3. The transcript of Plaintiff’s deposition testimony was sent to counsel for both parties
2 via electronic delivery on October 31, 2020.
3 4. On May 21, 2020 and May 22, 2020, counsel for both parties exchanged several
4 emails in an attempt to meet and confer about the sufficiency of Plaintiff’s response to Request for
5 Admission No. 14, among other responses. A true and correct copy of an email that Eliezer Cohen,
6 counsel for Plaintiff, sent to Kendall C. Fisher, defense counsel, on May 21, 2020 at 9:13 AM, is
7 attached hereto as Exhibit B. A true and correct copy of an email that Mr. Cohen sent to Ms. Fisher
8 on May 22, 2020 at 11:11 AM is attached hereto as Exhibit C.
9 I declare, under penalty of perjury, under the laws of the state of California, that the foregoing
10 is true and correct. Executed on this 13th day of November, 2020, at Sacramento, California.
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13 BRUCE M. TIMM
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TIMM DECLARATION ISO MOTION FOR SANCTIONS RE FAILURE TO COMPLY WITH
COURT’S ORDER REGARDING REQUESTS FOR ADMISSION 1122321.1
EXHIBIT A
EXHIBIT A
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 COUNTY OF PLACER
3 ---oOo---
4
5 DAVID MOELLER,
6 Plaintiff(s),
7 v. No. SCV 0042445
8 MJ AKERLAND, R.N. A PROFESSIONAL
NURSING CORPORATION DOING BUSINESS
9 AS K12 HEALTH, A CALIFORNIA
CORPORATION; MARIANNE J. AKERLAND,
10 AN INDIVIDUAL; AND DOES 1-10,
INCLUSIVE,
11
Defendant(s).
12 _________________________________/
13
14 VIDEOTAPED DEPOSITION OF
15 DAVID MOELLER
16
THURSDAY, OCTOBER 22, 2020
17
18
19
20 Reported by:
KAREN A. URBANO, CSR License No. 6698
21 Registered Professional Reporter
Job No: 4291124
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1 APPEARANCES
2
3 For the Plaintiff:
4 GAVRILOV & BROOKS
5 BY: J. EDWARD BROOKS, ESQ.
6 2315 Capitol Avenue
7 Sacramento, CA 95816
8 916.504.0529
9 ebrooks@gavrilovlaw.com
10
11 For the Defendants:
12 BOUTIN JONES
13 BY: BRUCE M. TIMM, ESQ.
14 555 Capitol Mall, 15th Floor
15 Sacramento, CA 95814
16 916.321.4444
17 btimm@boutinjones.com
18
19 Also Present:
20 JASON SISACK, Videographer
21 MARIANNE AKERLAND
22 DON AKERLAND
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1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 COUNTY OF PLACER
3 ---oOo---
4 DAVID MOELLER,
5 Plaintiff(s),
6 v. No. SCV 0042445
7 MJ AKERLAND, R.N. A PROFESSIONAL
NURSING CORPORATION DOING BUSINESS
8 AS K12 HEALTH, A CALIFORNIA
CORPORATION; MARIANNE J. AKERLAND,
9 AN INDIVIDUAL; AND DOES 1-10,
INCLUSIVE,
10
Defendant(s).
11 _________________________________/
12 BE IT REMEMBERED that on THURSDAY, OCTOBER 22,
13 2020, commencing at the hour of 10:06 a.m., at the
14 offices of BOUTIN JONES, 555 Capitol Mall, 15th Floor,
15 Sacramento, California 95814, before me, KAREN A.
16 URBANO, a Certified Shorthand Reporter, License No.
17 6698, there personally appeared
18
19 DAVID MOELLER
20
21 called as a witness herein; and after having been
22 first duly sworn to tell the truth, the whole truth
23 and nothing but the truth, was examined and testified
24 as follows.
25 ---o0o--- 10:05
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1 A. Yes.
2 Q. So I'm trying to ask a question basically to
3 see if you're doing anything where you're providing
4 services, giving advice, helping in return for money,
5 whether you call it wages, whatever, passive, whatever 10:32
6 it is. I'm not looking for, like, 401K.
7 A. Right.
8 Q. So you know what I mean. That's why I'm
9 calling it business venture. Kind of like, you know,
10 participating in a Starbucks, that kind of thing. 10:33
11 Anything where you're doing something to earn money?
12 A. No.
13 Q. All right. Okay. So let's just work our way
14 back. So before you started with the Knights on
15 April 1st of 2018, where were you last employed? 10:33
16 A. With K12 Health.
17 Q. All right. And do you remember your dates --
18 I've got March 2016 through February 2018?
19 A. Yes, that's correct.
20 Q. Do you remember the exact dates? 10:33
21 A. We set March 15th as the official start date,
22 and I believe I was paid through February 7th.
23 Q. 2018?
24 A. Yes.
25 Q. And then I've got last day February 2nd. 10:33
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1 Does that sound right --
2 A. Yes.
3 Q. -- 2018. All right. And let's just -- I'll
4 skip that.
5 Before K12 Health, were you -- where were you 10:34
6 last employed?
7 A. I owned a company called Nurse Next Door.
8 Q. How long did you own Nurse Next Door?
9 A. I owned Nurse Next Door for approximately
10 three years. 10:34
11 Q. So 2013 sound about right --
12 A. Yes.
13 Q. -- when you bought it?
14 A. Yes, that's correct.
15 Q. And did you own Nurse Next Door with anyone? 10:34
16 A. I did not, no.
17 Q. No partners or anything?
18 A. No, I was an owner of an S Corp called TCC
19 Home Care Health Services.
20 Q. Can you say that again? 10:34
21 A. TCC Home Care Health Services.
22 Q. And then was Nurse Next Door just a dba?
23 A. That's correct of a franchise.
24 Q. Can you describe the business you owned?
25 A. Yes, we provided home care, nurses and 10:35
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1 Q. Between the time you bought Silver Lining in
2 2010 approximately --
3 A. Yes.
4 Q. -- and the time you started working for Nurse
5 Next Door -- and the time you bought the Nurse Next 10:57
6 Door franchise --
7 A. Yes.
8 Q. -- did you have any other jobs or business
9 ventures during that time other than what you've just
10 told me? 10:57
11 A. I believe, no.
12 Q. And just I want to ask you why you're
13 qualifying that a little bit?
14 A. Because at some point I did work for Energy
15 Services, like I mentioned. And I don't remember 10:58
16 exactly when I was working for them. I know I started
17 before Silver Lining. And I believe it had ended by
18 the time I got to Silver Lining.
19 Q. Do -- were you -- when you sold Silver
20 Lining, were there payments coming to you after you 10:58
21 sold it?
22 A. No, not for Silver Lining.
23 Q. Okay. But from Energy Services you were
24 telling me?
25 A. There were commissions, yes. 10:58
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1 Q. So before you bought Silver Lining, what was
2 your lowest -- the job you had before that job or
3 business venture before Silver Lining?
4 A. That would have been Energy Services.
5 Q. And what was your position with Energy 10:59
6 Services?
7 A. I was a -- I was the basically salesman, but
8 I don't remember the exact title.
9 Q. Were you an employee?
10 A. No. 10:59
11 Q. Independent contractor?
12 A. Yes.
13 Q. When -- did you have any other role at Energy
14 Services other than independent contractor?
15 A. No. 10:59
16 Q. What dates were you an independent contractor
17 for Energy Services?
18 A. I don't recall. I would say, roughly, 2008
19 to 2000 -- till I bought Silver Lining.
20 Q. So 2008 to like 2000, what, '12 or, no, 2010? 11:00
21 A. '10, right, that would be about right.
22 Q. And then after you bought Silver Lining, were
23 you an independent contractor at any time for Energy
24 Services?
25 A. No. 11:00
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1 else?
2 A. I believe he did, but I wasn't -- I wasn't an
3 owner. So I wasn't really involved in that.
4 Q. I mean did you understand he owned it with
5 anyone? 11:02
6 A. Maybe his dad possibly.
7 Q. Do you know where the company was located
8 when you worked there?
9 A. Yes, Granite Bay.
10 Q. And then you were a salesman. So who did 11:02
11 you -- who were you soliciting for Energy Systems?
12 A. Businesses, large businesses that were either
13 large gas consumers or had a need for solar power.
14 Q. Businesses?
15 A. Yes. 11:02
16 Q. And how were you paid when you worked for
17 Energy Service Systems?
18 A. On commission.
19 Q. Did you have a base?
20 A. No. 11:03
21 Q. So, like, just as an example of the kind of,
22 do you call them customers?
23 A. Yes.
24 Q. What would be like an example of a customer
25 that you would sell to? 11:03
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1 A. School districts, a lot of the agricultural,
2 rice, rice producers.
3 Q. Okay.
4 A. Those were -- those were the biggest. Oh,
5 Indian -- Indian casinos too as well. 11:03
6 Q. Okay. What -- when was the last payment that
7 you received from Energy Systems if you can recall?
8 A. I don't recall.
9 Q. Would it have been -- would the last payment
10 have been during the time you owned Silver Lining? 11:04
11 A. No.
12 Q. After?
13 A. Yes.
14 Q. How about during the time you worked at Nurse
15 Next Door? 11:04
16 A. Yes. You're saying these quarterly
17 commissions?
18 Q. Yeah. So just tell me -- explain the
19 quarterly commissions because that's a long time
20 after. I'm just trying to understand. 11:04
21 A. So when we sold the gas, you can think of it
22 as we were basically a competitor representing Tiger,
23 Inc., selling versus PG&E's natural gas.
24 And so as long as the client stayed on with
25 Tiger, we, as a company, got commissions for that. So 11:04
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1 even after I was able to not work, I was still getting
2 those residual commissions --
3 Q. Gotcha.
4 A. -- I guess you could say. So that continued
5 on for several years. 11:05
6 Q. And then the deal was as long as customers
7 that you brought to the company remained customers,
8 continued to buy gas, you got a chunk of that?
9 A. Yes, that's correct.
10 Q. Do you remember what percent that was? 11:05
11 A. I do not.
12 Q. All right. And when you were an independent
13 contractor for Energy Systems, what kind of work would
14 you have to do to make sure the customer kept buying
15 gas? 11:05
16 A. None.
17 Q. So you bring them in, and you're done?
18 A. Yes.
19 Q. You have no further client relations, tasks
20 or anything like that? 11:05
21 A. No.
22 Q. Before -- let me just go back one more.
23 Before Energy Systems, do you remember what your last
24 employment was or the job you had right before Energy
25 Systems? 11:05
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1 now 11:08 a.m. We're now off the record.
2 (Whereupon a recess was taken.)
3 THE VIDEOGRAPHER: Counsel, time is
4 approximately 11:32 a.m., and we are back on the
5 record. 11:32
6 Q. BY MR. TIMM: Mr. Moeller, we're back on the
7 record. Other than your attorney, have you talked to
8 anyone about the deposition?
9 A. No.
10 Q. Okay. So I was asking you about the 11:32
11 quarterly payments from Energy Systems.
12 A. Yes.
13 Q. And when was the last one that you received?
14 A. I'm estimating probably a year ago or so.
15 Q. And was that for -- was that for a client 11:33
16 that you had brought in during the time you were an
17 independent contractor?
18 A. Yes, all those commissions for that, right.
19 Q. Okay.
20 A. And slowly commissions are getting less and 11:33
21 less as clients are getting poached, I guess. And
22 usually I would have to -- I would just e-mail Stu and
23 remind him, hey, how's the commission kind of thing.
24 And then I haven't done that in probably a year.
25 That's why I don't know if he's still around, 11:33
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1 business.
2 Q. Is he a friend of yours, Stu?
3 A. Yeah, he was. Yes, he is. I just don't -- I
4 haven't seen him in quite some time.
5 Q. How long have you been friends with him? 11:33
6 A. Both of our sons were in Boy Scouts together.
7 So I'm thinking that would have been in the -- since
8 the -- when was that, late 90s, early 2000's.
9 Q. Have you -- since being an independent
10 contractor, have you ever introduced Stu to a 11:34
11 potential customer?
12 A. No.
13 Q. When did you get your insurance license?
14 A. I originally got my insurance license when I
15 was with Edward Jones. That lapsed. And then I got 11:34
16 my insurance license again when I came to work for the
17 Knights of Columbus.
18 Q. So I'm sorry. I know you mentioned Edward
19 Jones earlier. When did you work there?
20 A. Edward Jones, I worked there just briefly 11:34
21 again for probably about three months. That was --
22 well, that was -- that would have been in 2008 just
23 because it was during the market crash. It was a
24 terrible time to be training while everyone's losing
25 half their retirement. 11:35
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1 A. Club it with a hammer?
2 Q. When did you smash it?
3 A. When I -- before I took it to the E-waste
4 place.
5 Q. Same timeframe, about a year ago? 03:50
6 A. Sure.
7 Q. That's not -- during the time you worked for
8 K12, did you receive money, wages, any kind of
9 financial payments other than like a 401K investment
10 from any source? 03:50
11 A. There was that passive income that we talked
12 about already.
13 Q. I don't know what that is. So I talked about
14 it with, not Mr. Brooks, but with Mr. Cohen. And he
15 describes passive income as like 401K investments, 03:51
16 which I don't want. That's not my business.
17 So but I'm trying to figure out something
18 other than like that 401K?
19 A. So I receive those quarterly commissions.
20 Q. From -- 03:51
21 A. From Energy --
22 Q. Systems?
23 A. And I was also receiving for the first,
24 probably, year the way that we had structured the
25 Nurse Next Door sale, it was based upon a repayment 03:51
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1 over the course of time. And so I was receiving those
2 payments. It's not income, but it's certainly money
3 that I was receiving.
4 Q. Okay. This issue with the computer that we
5 don't have, is anyone aware of that that you threw it 03:52
6 away?
7 A. I have no idea.
8 Q. I mean did anyone see you smash it with a --
9 smash the hard drive?
10 A. I -- no. 03:52
11 Q. Did anyone go with you to drop it off at the
12 dump?
13 A. No.
14 Q. So the quarterly payments, that was during
15 the whole time you were at K12? 03:52
16 A. Yes.
17 Q. And did you have to do anything to receive
18 those quarterly payments other than just take it?
19 A. Sometimes, like I mentioned, I had to call
20 Stu and just remind him that, you know, seems like it 03:52
21 was about time.
22 Q. But other than like, hey, where's the money,
23 did you have to do anything?
24 A. No.
25 (Exhibit P was marked.) 03:53
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1 Q. BY MR. TIMM: I'm showing you, Mr. Moeller,
2 what we just received from you in discovery. We
3 marked it as Exhibit P. Looks like calendar entries
4 and my understanding's you just recently produced this
5 to us. 03:53
6 A. Yes.
7 Q. When did you find this information?
8 A. I found it about -- about a week ago.
9 Q. Okay. Where?
10 A. In a file in my home. 03:54
11 Q. What kind of file?
12 A. My file cabinet.
13 Q. Okay. Was it like in a folder?
14 A. It was in a folder.
15 Q. With other K12 stuff? 03:54
16 A. No, it was in a folder with -- I had moved a
17 couple years ago, like I mentioned. And so there was
18 a bunch of paperwork that got put into a box that --
19 (Reporter clarification.)
20 THE WITNESS: That -- included in a box 03:54
21 that -- I don't remember what I just said.
22 Q. BY MR. TIMM: Was it your practice to print
23 this stuff out?
24 A. It was early on, yes.
25 Q. Is there any reason why you saved this? 03:55
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1 Q. -- that we just marked as Exhibit P. Okay.
2 Look at Exhibit K.
3 A. Okay.
4 Q. When did you find that?
5 A. See, again, I -- I don't know. 03:59
6 Q. Recently?
7 A. I don't believe so.
8 Q. Because your lawyer told us you just found it
9 a couple days ago?
10 A. Oh, I'll talk to him. 03:59
11 Q. Good luck. Let's go to Exhibit P.
12 A. Okay.
13 Q. I mean good luck, not your lawyer you're here
14 with today.
15 So let's go to Exhibit P. If you can skip 03:59
16 over to the date April 25th --
17 A. Okay.
18 Q. -- 2016. It's a Monday. Do you see that?
19 A. Right.
20 Q. And so this entry about conference call with 03:59
21 Chris of WinRiver, Energy Systems?
22 A. Right.
23 Q. What does that refer to?
24 A. That refers to Stu wanting to talk to this
25 guy named Chris at WinRiver. 04:00
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1 Q. Stu being --
2 A. Stu Chang, right.
3 Q. -- your buddy?
4 A. Yes.
5 Q. That you used to work for as an independent 04:00
6 contractor --
7 A. Yes.
8 Q. -- at Energy Systems?
9 A. Exactly. So he asked me to set up a call.
10 Q. With Chris. And what's Chris's last name? 04:00
11 A. I don't know.
12 Q. Does DeCamp sound familiar?
13 A. Yes.
14 Q. Okay. Do you know what he does?
15 A. He works for WinRiver for the Indian casino. 04:00
16 Q. Do you know what his position is?
17 A. He was the one in charge of construction.
18 Q. Okay. Is this the casino up in Redding?
19
Preview
1 BOUTIN JONES INC. 11/13/2020 Bruce M. Timm (SBN 199679) 2 Kimberly A. Lucia (SBN 266503) Kendall C. Fisher (SBN 322155) 3 555 Capitol Mall, Suite 1500 Sacramento, CA 95814 4 Telephone: (916) 321-4444 Fax: (916) 441-7597 5 Email: btimm@boutinjones.com klucia@boutinjones.com 6 kfisher@boutinjones.com 7 Attorneys for Defendants MJ Akerland, R.N., APNC dba K12 Health, and Marianne J. Akerland 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF PLACER 11 DAVID MOELLER, Case No. SCV 0042445 12 Plaintiff, SUPPLEMENTAL DECLARATION OF BRUCE TIMM IN SUPPORT OF 13 v. REPLY IN SUPPORT OF DEFENDANTS MJ AKERLAND, R.N., 14 MJ AKERLAND, R.N. A PROFESSIONAL APNC dba K12 HEALTH AND NURSING CORPORATION doing business as MARIANNE J. AKERLAND’S MOTION 15 K12 HEALTH, a California Corporation; FOR SANCTIONS RE FAILURE TO MARIANNE J. AKERLAND, an individual; and COMPLY WITH COURT’S ORDER 16 DOES 1-10, inclusive, REGARDING REQUESTS FOR ADMISSION 17 Defendants. DATE: November 20, 2020 18 TIME: 8:30 a.m. DEPT.: 3 19 Action Filed: February 4, 2019 20 Trial Date: June 14, 2021 21 22 I, Bruce M. Timm, declare as follows: 23 1. I am an attorney at law licensed to practice before all courts of the state of California, 24 and am a shareholder with the law firm of Boutin Jones Inc., attorneys for Defendants MJ Akerland, 25 R.N., APNC dba K12 Health (“K12 Health”), and Marianne J. Akerland (“Defendants”). I have 26 personal knowledge of the following facts: 27 2. On October 22, 2020, I took Plaintiff’s deposition. A true and correct copy of excerpts 28 of Plaintiff’s deposition testimony is attached hereto as Exhibit A. 1 TIMM DECLARATION ISO MOTION FOR SANCTIONS RE FAILURE TO COMPLY WITH COURT’S ORDER REGARDING REQUESTS FOR ADMISSION 1122321.1 1 3. The transcript of Plaintiff’s deposition testimony was sent to counsel for both parties 2 via electronic delivery on October 31, 2020. 3 4. On May 21, 2020 and May 22, 2020, counsel for both parties exchanged several 4 emails in an attempt to meet and confer about the sufficiency of Plaintiff’s response to Request for 5 Admission No. 14, among other responses. A true and correct copy of an email that Eliezer Cohen, 6 counsel for Plaintiff, sent to Kendall C. Fisher, defense counsel, on May 21, 2020 at 9:13 AM, is 7 attached hereto as Exhibit B. A true and correct copy of an email that Mr. Cohen sent to Ms. Fisher 8 on May 22, 2020 at 11:11 AM is attached hereto as Exhibit C. 9 I declare, under penalty of perjury, under the laws of the state of California, that the foregoing 10 is true and correct. Executed on this 13th day of November, 2020, at Sacramento, California. 11 12 13 BRUCE M. TIMM 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 TIMM DECLARATION ISO MOTION FOR SANCTIONS RE FAILURE TO COMPLY WITH COURT’S ORDER REGARDING REQUESTS FOR ADMISSION 1122321.1 EXHIBIT A EXHIBIT A 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 COUNTY OF PLACER 3 ---oOo--- 4 5 DAVID MOELLER, 6 Plaintiff(s), 7 v. No. SCV 0042445 8 MJ AKERLAND, R.N. A PROFESSIONAL NURSING CORPORATION DOING BUSINESS 9 AS K12 HEALTH, A CALIFORNIA CORPORATION; MARIANNE J. AKERLAND, 10 AN INDIVIDUAL; AND DOES 1-10, INCLUSIVE, 11 Defendant(s). 12 _________________________________/ 13 14 VIDEOTAPED DEPOSITION OF 15 DAVID MOELLER 16 THURSDAY, OCTOBER 22, 2020 17 18 19 20 Reported by: KAREN A. URBANO, CSR License No. 6698 21 Registered Professional Reporter Job No: 4291124 22 23 24 25 Page 1 Veritext Legal Solutions 916-927-3600 1 APPEARANCES 2 3 For the Plaintiff: 4 GAVRILOV & BROOKS 5 BY: J. EDWARD BROOKS, ESQ. 6 2315 Capitol Avenue 7 Sacramento, CA 95816 8 916.504.0529 9 ebrooks@gavrilovlaw.com 10 11 For the Defendants: 12 BOUTIN JONES 13 BY: BRUCE M. TIMM, ESQ. 14 555 Capitol Mall, 15th Floor 15 Sacramento, CA 95814 16 916.321.4444 17 btimm@boutinjones.com 18 19 Also Present: 20 JASON SISACK, Videographer 21 MARIANNE AKERLAND 22 DON AKERLAND 23 24 25 Page 2 Veritext Legal Solutions 916-927-3600 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 COUNTY OF PLACER 3 ---oOo--- 4 DAVID MOELLER, 5 Plaintiff(s), 6 v. No. SCV 0042445 7 MJ AKERLAND, R.N. A PROFESSIONAL NURSING CORPORATION DOING BUSINESS 8 AS K12 HEALTH, A CALIFORNIA CORPORATION; MARIANNE J. AKERLAND, 9 AN INDIVIDUAL; AND DOES 1-10, INCLUSIVE, 10 Defendant(s). 11 _________________________________/ 12 BE IT REMEMBERED that on THURSDAY, OCTOBER 22, 13 2020, commencing at the hour of 10:06 a.m., at the 14 offices of BOUTIN JONES, 555 Capitol Mall, 15th Floor, 15 Sacramento, California 95814, before me, KAREN A. 16 URBANO, a Certified Shorthand Reporter, License No. 17 6698, there personally appeared 18 19 DAVID MOELLER 20 21 called as a witness herein; and after having been 22 first duly sworn to tell the truth, the whole truth 23 and nothing but the truth, was examined and testified 24 as follows. 25 ---o0o--- 10:05 Page 5 Veritext Legal Solutions 916-927-3600 1 A. Yes. 2 Q. So I'm trying to ask a question basically to 3 see if you're doing anything where you're providing 4 services, giving advice, helping in return for money, 5 whether you call it wages, whatever, passive, whatever 10:32 6 it is. I'm not looking for, like, 401K. 7 A. Right. 8 Q. So you know what I mean. That's why I'm 9 calling it business venture. Kind of like, you know, 10 participating in a Starbucks, that kind of thing. 10:33 11 Anything where you're doing something to earn money? 12 A. No. 13 Q. All right. Okay. So let's just work our way 14 back. So before you started with the Knights on 15 April 1st of 2018, where were you last employed? 10:33 16 A. With K12 Health. 17 Q. All right. And do you remember your dates -- 18 I've got March 2016 through February 2018? 19 A. Yes, that's correct. 20 Q. Do you remember the exact dates? 10:33 21 A. We set March 15th as the official start date, 22 and I believe I was paid through February 7th. 23 Q. 2018? 24 A. Yes. 25 Q. And then I've got last day February 2nd. 10:33 Page 30 Veritext Legal Solutions 916-927-3600 1 Does that sound right -- 2 A. Yes. 3 Q. -- 2018. All right. And let's just -- I'll 4 skip that. 5 Before K12 Health, were you -- where were you 10:34 6 last employed? 7 A. I owned a company called Nurse Next Door. 8 Q. How long did you own Nurse Next Door? 9 A. I owned Nurse Next Door for approximately 10 three years. 10:34 11 Q. So 2013 sound about right -- 12 A. Yes. 13 Q. -- when you bought it? 14 A. Yes, that's correct. 15 Q. And did you own Nurse Next Door with anyone? 10:34 16 A. I did not, no. 17 Q. No partners or anything? 18 A. No, I was an owner of an S Corp called TCC 19 Home Care Health Services. 20 Q. Can you say that again? 10:34 21 A. TCC Home Care Health Services. 22 Q. And then was Nurse Next Door just a dba? 23 A. That's correct of a franchise. 24 Q. Can you describe the business you owned? 25 A. Yes, we provided home care, nurses and 10:35 Page 31 Veritext Legal Solutions 916-927-3600 1 Q. Between the time you bought Silver Lining in 2 2010 approximately -- 3 A. Yes. 4 Q. -- and the time you started working for Nurse 5 Next Door -- and the time you bought the Nurse Next 10:57 6 Door franchise -- 7 A. Yes. 8 Q. -- did you have any other jobs or business 9 ventures during that time other than what you've just 10 told me? 10:57 11 A. I believe, no. 12 Q. And just I want to ask you why you're 13 qualifying that a little bit? 14 A. Because at some point I did work for Energy 15 Services, like I mentioned. And I don't remember 10:58 16 exactly when I was working for them. I know I started 17 before Silver Lining. And I believe it had ended by 18 the time I got to Silver Lining. 19 Q. Do -- were you -- when you sold Silver 20 Lining, were there payments coming to you after you 10:58 21 sold it? 22 A. No, not for Silver Lining. 23 Q. Okay. But from Energy Services you were 24 telling me? 25 A. There were commissions, yes. 10:58 Page 50 Veritext Legal Solutions 916-927-3600 1 Q. So before you bought Silver Lining, what was 2 your lowest -- the job you had before that job or 3 business venture before Silver Lining? 4 A. That would have been Energy Services. 5 Q. And what was your position with Energy 10:59 6 Services? 7 A. I was a -- I was the basically salesman, but 8 I don't remember the exact title. 9 Q. Were you an employee? 10 A. No. 10:59 11 Q. Independent contractor? 12 A. Yes. 13 Q. When -- did you have any other role at Energy 14 Services other than independent contractor? 15 A. No. 10:59 16 Q. What dates were you an independent contractor 17 for Energy Services? 18 A. I don't recall. I would say, roughly, 2008 19 to 2000 -- till I bought Silver Lining. 20 Q. So 2008 to like 2000, what, '12 or, no, 2010? 11:00 21 A. '10, right, that would be about right. 22 Q. And then after you bought Silver Lining, were 23 you an independent contractor at any time for Energy 24 Services? 25 A. No. 11:00 Page 51 Veritext Legal Solutions 916-927-3600 1 else? 2 A. I believe he did, but I wasn't -- I wasn't an 3 owner. So I wasn't really involved in that. 4 Q. I mean did you understand he owned it with 5 anyone? 11:02 6 A. Maybe his dad possibly. 7 Q. Do you know where the company was located 8 when you worked there? 9 A. Yes, Granite Bay. 10 Q. And then you were a salesman. So who did 11:02 11 you -- who were you soliciting for Energy Systems? 12 A. Businesses, large businesses that were either 13 large gas consumers or had a need for solar power. 14 Q. Businesses? 15 A. Yes. 11:02 16 Q. And how were you paid when you worked for 17 Energy Service Systems? 18 A. On commission. 19 Q. Did you have a base? 20 A. No. 11:03 21 Q. So, like, just as an example of the kind of, 22 do you call them customers? 23 A. Yes. 24 Q. What would be like an example of a customer 25 that you would sell to? 11:03 Page 53 Veritext Legal Solutions 916-927-3600 1 A. School districts, a lot of the agricultural, 2 rice, rice producers. 3 Q. Okay. 4 A. Those were -- those were the biggest. Oh, 5 Indian -- Indian casinos too as well. 11:03 6 Q. Okay. What -- when was the last payment that 7 you received from Energy Systems if you can recall? 8 A. I don't recall. 9 Q. Would it have been -- would the last payment 10 have been during the time you owned Silver Lining? 11:04 11 A. No. 12 Q. After? 13 A. Yes. 14 Q. How about during the time you worked at Nurse 15 Next Door? 11:04 16 A. Yes. You're saying these quarterly 17 commissions? 18 Q. Yeah. So just tell me -- explain the 19 quarterly commissions because that's a long time 20 after. I'm just trying to understand. 11:04 21 A. So when we sold the gas, you can think of it 22 as we were basically a competitor representing Tiger, 23 Inc., selling versus PG&E's natural gas. 24 And so as long as the client stayed on with 25 Tiger, we, as a company, got commissions for that. So 11:04 Page 54 Veritext Legal Solutions 916-927-3600 1 even after I was able to not work, I was still getting 2 those residual commissions -- 3 Q. Gotcha. 4 A. -- I guess you could say. So that continued 5 on for several years. 11:05 6 Q. And then the deal was as long as customers 7 that you brought to the company remained customers, 8 continued to buy gas, you got a chunk of that? 9 A. Yes, that's correct. 10 Q. Do you remember what percent that was? 11:05 11 A. I do not. 12 Q. All right. And when you were an independent 13 contractor for Energy Systems, what kind of work would 14 you have to do to make sure the customer kept buying 15 gas? 11:05 16 A. None. 17 Q. So you bring them in, and you're done? 18 A. Yes. 19 Q. You have no further client relations, tasks 20 or anything like that? 11:05 21 A. No. 22 Q. Before -- let me just go back one more. 23 Before Energy Systems, do you remember what your last 24 employment was or the job you had right before Energy 25 Systems? 11:05 Page 55 Veritext Legal Solutions 916-927-3600 1 now 11:08 a.m. We're now off the record. 2 (Whereupon a recess was taken.) 3 THE VIDEOGRAPHER: Counsel, time is 4 approximately 11:32 a.m., and we are back on the 5 record. 11:32 6 Q. BY MR. TIMM: Mr. Moeller, we're back on the 7 record. Other than your attorney, have you talked to 8 anyone about the deposition? 9 A. No. 10 Q. Okay. So I was asking you about the 11:32 11 quarterly payments from Energy Systems. 12 A. Yes. 13 Q. And when was the last one that you received? 14 A. I'm estimating probably a year ago or so. 15 Q. And was that for -- was that for a client 11:33 16 that you had brought in during the time you were an 17 independent contractor? 18 A. Yes, all those commissions for that, right. 19 Q. Okay. 20 A. And slowly commissions are getting less and 11:33 21 less as clients are getting poached, I guess. And 22 usually I would have to -- I would just e-mail Stu and 23 remind him, hey, how's the commission kind of thing. 24 And then I haven't done that in probably a year. 25 That's why I don't know if he's still around, 11:33 Page 58 Veritext Legal Solutions 916-927-3600 1 business. 2 Q. Is he a friend of yours, Stu? 3 A. Yeah, he was. Yes, he is. I just don't -- I 4 haven't seen him in quite some time. 5 Q. How long have you been friends with him? 11:33 6 A. Both of our sons were in Boy Scouts together. 7 So I'm thinking that would have been in the -- since 8 the -- when was that, late 90s, early 2000's. 9 Q. Have you -- since being an independent 10 contractor, have you ever introduced Stu to a 11:34 11 potential customer? 12 A. No. 13 Q. When did you get your insurance license? 14 A. I originally got my insurance license when I 15 was with Edward Jones. That lapsed. And then I got 11:34 16 my insurance license again when I came to work for the 17 Knights of Columbus. 18 Q. So I'm sorry. I know you mentioned Edward 19 Jones earlier. When did you work there? 20 A. Edward Jones, I worked there just briefly 11:34 21 again for probably about three months. That was -- 22 well, that was -- that would have been in 2008 just 23 because it was during the market crash. It was a 24 terrible time to be training while everyone's losing 25 half their retirement. 11:35 Page 59 Veritext Legal Solutions 916-927-3600 1 A. Club it with a hammer? 2 Q. When did you smash it? 3 A. When I -- before I took it to the E-waste 4 place. 5 Q. Same timeframe, about a year ago? 03:50 6 A. Sure. 7 Q. That's not -- during the time you worked for 8 K12, did you receive money, wages, any kind of 9 financial payments other than like a 401K investment 10 from any source? 03:50 11 A. There was that passive income that we talked 12 about already. 13 Q. I don't know what that is. So I talked about 14 it with, not Mr. Brooks, but with Mr. Cohen. And he 15 describes passive income as like 401K investments, 03:51 16 which I don't want. That's not my business. 17 So but I'm trying to figure out something 18 other than like that 401K? 19 A. So I receive those quarterly commissions. 20 Q. From -- 03:51 21 A. From Energy -- 22 Q. Systems? 23 A. And I was also receiving for the first, 24 probably, year the way that we had structured the 25 Nurse Next Door sale, it was based upon a repayment 03:51 Page 201 Veritext Legal Solutions 916-927-3600 1 over the course of time. And so I was receiving those 2 payments. It's not income, but it's certainly money 3 that I was receiving. 4 Q. Okay. This issue with the computer that we 5 don't have, is anyone aware of that that you threw it 03:52 6 away? 7 A. I have no idea. 8 Q. I mean did anyone see you smash it with a -- 9 smash the hard drive? 10 A. I -- no. 03:52 11 Q. Did anyone go with you to drop it off at the 12 dump? 13 A. No. 14 Q. So the quarterly payments, that was during 15 the whole time you were at K12? 03:52 16 A. Yes. 17 Q. And did you have to do anything to receive 18 those quarterly payments other than just take it? 19 A. Sometimes, like I mentioned, I had to call 20 Stu and just remind him that, you know, seems like it 03:52 21 was about time. 22 Q. But other than like, hey, where's the money, 23 did you have to do anything? 24 A. No. 25 (Exhibit P was marked.) 03:53 Page 202 Veritext Legal Solutions 916-927-3600 1 Q. BY MR. TIMM: I'm showing you, Mr. Moeller, 2 what we just received from you in discovery. We 3 marked it as Exhibit P. Looks like calendar entries 4 and my understanding's you just recently produced this 5 to us. 03:53 6 A. Yes. 7 Q. When did you find this information? 8 A. I found it about -- about a week ago. 9 Q. Okay. Where? 10 A. In a file in my home. 03:54 11 Q. What kind of file? 12 A. My file cabinet. 13 Q. Okay. Was it like in a folder? 14 A. It was in a folder. 15 Q. With other K12 stuff? 03:54 16 A. No, it was in a folder with -- I had moved a 17 couple years ago, like I mentioned. And so there was 18 a bunch of paperwork that got put into a box that -- 19 (Reporter clarification.) 20 THE WITNESS: That -- included in a box 03:54 21 that -- I don't remember what I just said. 22 Q. BY MR. TIMM: Was it your practice to print 23 this stuff out? 24 A. It was early on, yes. 25 Q. Is there any reason why you saved this? 03:55 Page 203 Veritext Legal Solutions 916-927-3600 1 Q. -- that we just marked as Exhibit P. Okay. 2 Look at Exhibit K. 3 A. Okay. 4 Q. When did you find that? 5 A. See, again, I -- I don't know. 03:59 6 Q. Recently? 7 A. I don't believe so. 8 Q. Because your lawyer told us you just found it 9 a couple days ago? 10 A. Oh, I'll talk to him. 03:59 11 Q. Good luck. Let's go to Exhibit P. 12 A. Okay. 13 Q. I mean good luck, not your lawyer you're here 14 with today. 15 So let's go to Exhibit P. If you can skip 03:59 16 over to the date April 25th -- 17 A. Okay. 18 Q. -- 2016. It's a Monday. Do you see that? 19 A. Right. 20 Q. And so this entry about conference call with 03:59 21 Chris of WinRiver, Energy Systems? 22 A. Right. 23 Q. What does that refer to? 24 A. That refers to Stu wanting to talk to this 25 guy named Chris at WinRiver. 04:00 Page 208 Veritext Legal Solutions 916-927-3600 1 Q. Stu being -- 2 A. Stu Chang, right. 3 Q. -- your buddy? 4 A. Yes. 5 Q. That you used to work for as an independent 04:00 6 contractor -- 7 A. Yes. 8 Q. -- at Energy Systems? 9 A. Exactly. So he asked me to set up a call. 10 Q. With Chris. And what's Chris's last name? 04:00 11 A. I don't know. 12 Q. Does DeCamp sound familiar? 13 A. Yes. 14 Q. Okay. Do you know what he does? 15 A. He works for WinRiver for the Indian casino. 04:00 16 Q. Do you know what his position is? 17 A. He was the one in charge of construction. 18 Q. Okay. Is this the casino up in Redding? 19