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  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
  • Jarvis, Todd Henry vs. Calder, Robin Elizabeth Other Tort: Other Non PI/PD/WD (35) document preview
						
                                

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1 Port J. Parker (SBN 179256) Jeffrey S. Einsohn (SBN 260150) 2 PARKER LAW GROUP ATTORNEYS A Professional Corporation 3 555 Capitol Mall, Suite 1230 4 Sacramento, CA 95815 Telephone: (916) 996-0400 10/13/2020 5 Facsimile: (916) 668-5760 6 Attorneys for TODD JARVIS 7 8 9 SUPERIOR COURT OF CALIFORNIA 10 IN AND FOR THE COUNTY OF PLACER 11 GROUP 555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814 TODD HENRY JARVIS, Case No. SCV0039929 12 Plaintiff, OPPOSITION TO DEFENDANT’S EX 13 v. PARTE APPLICATION FOR AN ORDER EXTENDING DEFENDANT’S TIME TO LAW 14 ROBIN ELIZABETH CALDER, aka ROBIN OBJECT TO PLAINTIFF’S NOTICE TO GOODNO CALDER, ROBIN CALDER, DEFENDANT TO APPEAR AT TRIAL AND 15 ROBIN ELIZABETH GOODNO CALDER, IN THE ALTERNATIVE FOR AN ORDER PARKER and ROBIN GOODNO SHORTENING TIME; DECLARATION OF 16 JEFFREY S. EINSOHN Defendant. 17 Date: October 13, 2020 18 Time: 8:00 a.m. Dept.: 42 19 20 Complaint Filed: August 23, 2017 Current Trial Date: September 21, 2020 21 22 I. INTRODUCTION 23 This ex parte application is totally without merit. Defendant Robin Calder’s counsel 24 voluntarily and unequivocally waived privilege with respect to Calder’s Schedule E tax documents 25 during her deposition in March 2020.1 (Exhibit A.) Aspects of Calder’s Schedule E and other tax 26 27 1 Calder chose to waive privilege for strategic reasons, primarily so she could show she took depreciation on the subject property that same as her other properties, thus indicating her ownership. In stark contrast to Calder, Jarvis has maintained 28 privilege with respect to all tax documents and has consistently objected to disclosure of the same. Calder made a calculated decision and now must live with it. OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION 1 1 documents then became the basis for an opinion expressed in connection with one of Jarvis’s expert’s 2 deposition on August 24, 2020 to which Calder’s counsel made no objection. (Declaration of Jeffrey 3 S. Einsohn ¶4.) 4 On October 7, 2020, at approximately 4 pm, counsel for the parties met and conferred by 5 telephone on a range of issues from witnesses to exhibits. Jarvis’s counsel asked Calder’s counsel, 6 Mr. Miller, if there were any other issues the parties needed to discuss. Mr. Miller said no and did not 7 bring up any tax return or privilege issue. The very next day at 2:17 pm, Mr. Miller emailed a letter 8 and draft stipulation demanding that Jarvis modify his request for unredacted Schedule E’s (made six 9 months earlier) so that only redacted version (which Calder knew Jarvis already possessed) would be 10 brought to trial. Mr. Miller indicated that if Jarvis’s counsel did not agree, he would file an ex parte 11 application. Around 4:45 pm, barely 2½ hours later, Mr. Miller gave ex parte notice to Plaintiff’s GROUP 555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814 12 counsel’s receptionist, followed by an email regarding the same. The following day Jarvis’s counsel 13 explained to Mr. Miller by telephone that he was working on another matter that he could not interrupt LAW 14 and questioned whether this was really an emergency that required ex parte notice just hours after it 15 had been raised for the very first time. Mr. Miller stated that it was. (Declaration of Jeffrey S. Einsohn PARKER 16 ¶¶5-7.) 17 Having now reviewed the papers over the weekend, it is clear this application is nothing more 18 than an attempt by Calder to walk back an unequivocal waiver made by her attorney on the record. 19 The fact that Jarvis’s counsel was given only 2½ hours to respond to a letter before ex parte notice 20 was given, on an issue that presents no emergency or exigency, underscores the gamesmanship. There 21 is zero basis for granting this application in any form. 22 II. REPLY ARGUMENT 23 A. Calder Affirmatively, Knowingly, and Voluntarily Waived Privilege With Respect 24 Schedule E 25 Mr. Miller’s declaration states “I did not intend to waive Defendant’s tax return privilege other 26 than as to the information related to the Property.” (Miller Decl. iso Ex Parte Application ¶11.) With 27 due respect to counsel, his own words reveal otherwise. On March 13, 2020, Calder appeared for 28 deposition along with Mr. Miller. During the deposition, the questioning turned to Ms. Calder’s tax OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION 2 1 returns. On the record, in front of Calder, who is also an attorney, Mr. Miller affirmatively, knowingly, 2 and voluntarily waived Calder’s privilege associated with Schedule E as follow: 3 MR. MILLER: To the extent that this question – or this request includes tax 4 returns, other than Schedule E of the tax return, Ms. Calder's interposing an 5 objection based on the tax privilege, but Schedule E -- except for Schedule E 6 of her tax returns. So as long as we stick to Schedule E, there's -- to the extent 7 that that privilege will otherwise apply, we're going to waive it as to Schedule 8 E only. 9 (Exhibit A, emphasis added.) 10 Mr. Miller was crystal clear that with respect to tax return privilege, Calder was “going to 11 waive it as to Schedule E.” Calder was sitting right there and did not object to what her attorney said GROUP 555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814 12 on the record. There was no limitation other than to Schedule E. The transcript speaks for itself. The 13 notice to appear and produce documents which Calder wants to belatedly object to was drafted in LAW 14 compliance with what Mr. Miller represented was Calder’s position. There is no basis for relief. The 15 application should be denied in its entirety. PARKER 16 B. The Court Cannot Grant Section 473 Relief 17 Mr. Miller claims that relief should be granted under Code Civ. Proc. § 473 due to a “mistake” 18 of not objecting. However, as explained above, there was no mistake. Calder made the strategic 19 decision to waive privilege with respect to Schedule E. Now she just wants to change her mind after 20 seeing what Jarvis’s expert had to say about her improper tax treatments. 21 “The purpose of the statute [section 473] is to relieve the hardship on those parties who have 22 lost their day in court solely because of counsel's inexcusable failure to act.” (Gotschall v. Daley (2002) 23 96 Cal.App.4th 479, 483.) Minor issues such as “[l]ack of success in contesting a motion does not 24 equate to [a party] losing his day in court.” (Id. at p. 484.) Therefore, it is doubtful if section 473 even 25 applies in this situation as Calder is not losing her day in Court. 26 Further, with respect to granting discretionary relief under section 473, the Court may only do 27 so “after notice to the adverse party.” (Code Civ. Proc. § 473(a).) An ex parte with one court days’ 28 notice is not the proper vehicle for such a request. Although there is no basis for relief at all, and OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION 3 1 Jarvis objects to having to litigate such an issue given Calder’s counsel’s unequivocal waiver, the only 2 way that could be done is by a notice motion. 3 III. CONCLUSION 4 It would be improper to grant section 473 relief via ex parte and there is no point to issuing an 5 order shortening time when there has been an unequivocable waiver of privilege with respect to 6 Calder’s Schedule E’s. The ex parte application should be denied in full. 7 PARKER LAW GROUP ATTORNEYS 8 DATED: October 12, 2020 A Professional Corporation 9 10 ____________________________________ 11 PORT J. PARKER GROUP 555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814 JEFFREY S. EINSOHN 12 Attorneys for TODD JARVIS 13 LAW 14 15 DECLARATION OF JEFFREY S. EINSOHN PARKER 16 I, Jeffrey S, Einsohn, declare: 17 1. I am an attorney duly licensed to practice law in the State of California and am an 18 attorney at the law firm Parker Law Group Attorneys, APC, attorneys of record for the Plaintiff Todd 19 Jarvis (“Jarvis”) in the above-captioned case. 20 2. I make this declaration from my own personal knowledge and from the records kept in 21 the ordinary course of business by my law firm, except as to those matters stated on information and 22 belief, and, as to those matters, I believe them to be true. 23 3. A true and correct copy of portions of the transcript of the March 13, 2020 deposition 24 of Defendant Robin Calder, in which her counsel waived privilege with respect to Schedule E, is 25 attached hereto as Exhibit A. 26 4. Aspects of Calder’s Schedule E and other tax documents form the basis for an opinion 27 expressed in connection with one of Jarvis’s expert’s deposition on August 24, 2020. In advance of 28 that deposition, Calder’s attorney was provided a summary of the expert’s opinions that included OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION 4 1 discussion of Calder’s Schedule E’s. 2 5. On October 7, 2020, at approximately 4 pm, I participated in a telephone conference 3 with Jarvis’s trial counsel Mr. Parker and Calder’s trial counsel Mr. Miller regarding multiple topics 4 including witnesses and exhibits. We asked Mr. Miller if there were any other issues the parties needed 5 to discuss. Mr. Miller said no and did not bring up any tax return or privilege issue. 6 6. The very next day at 2:17 pm, Mr. Miller emailed me a letter and draft stipulation 7 demanding that Jarvis modify his request for unredacted Schedule E’s (made months earlier) so that 8 only redacted versions (which he knew we already possessed) would be brought to trial. Mr. Miller 9 indicated that if we did not agree, he would file an ex parte application. 10 7. Around 4:45 pm, barely 2½ hours later, Mr. Miller gave ex parte notice to our 11 receptionist, followed by an email regarding the same. The following day I explained to Mr. Miller GROUP 555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814 12 by telephone that I was working on another matter and could not immediately suspend what I was 13 doing to review his letter. I also questioned whether this was really an emergency that required ex LAW 14 parte notice just hours after it had been raised for the very first time. Mr. Miller stated that it was. 15 I declare under the penalty of perjury under the laws of the State of California that the foregoing PARKER 16 is true and correct. Executed on October 12, 2020 at Sacramento, California. 17 18 ___________________________ 19 JEFFREY S. EINSOHN 20 21 22 23 24 25 26 27 28 OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION 5 EXHIBIT “A” 1 SUPERIOR COURT OF CALIFORNIA 2 IN AND FOR THE COUNTY OF PLACER 3 4 - - - - - - - - - - - - - - - - - 5 TODD HENRY JARVIS, ) 6 Plaintiff, ) Case No. 7 vs. ) SCV0039929 8 ) 9 ROBIN ELIZABETH CALDER, aka ) 10 ROBIN GOODNO CALDER, ROBIN ) 11 CALDER, ROBIN ELIZABETH GOODNO ) 12 CALDER, and ROBIN GOODNO, ) 13 Defendant. ) 14 - - - - - - - - - - - - - - - - - 15 16 17 VIDEOTAPED DEPOSITION OF ROBIN E. CALDER 18 FRIDAY, MARCH 13, 2020 19 20 21 BEHMKE REPORTING AND VIDEO SERVICES, INC. 22 BY: SUZANNE I. ANDRADE, CSR NO. 10682 23 455 MARKET STREET, SUITE 970 24 SAN FRANCISCO, CALIFORNIA 94105 25 (415) 597-5600 BEHMKE REPORTING AND VIDEO SERVICES, INC. 1 (415) 597-5600 1 2 3 4 5 6 7 8 9 10 Videotaped Deposition of ROBIN E. CALDER, 11 taken on behalf of PLAINTIFF, at 630 North San Mateo 12 Drive, San Mateo, California, commencing at 9:51 A.M., 13 FRIDAY, MARCH 13, 2020, before Suzanne I. Andrade, 14 Certified Shorthand Reporter No. 10682, pursuant to 15 Notice. 16 17 18 19 20 21 22 23 24 25 BEHMKE REPORTING AND VIDEO SERVICES, INC. 2 (415) 597-5600 1 APPEARANCES OF COUNSEL: 2 FOR PLAINTIFF: 3 PARKER LAW GROUP ATTORNEYS 4 BY: PORT J. PARKER, ATTORNEY AT LAW 5 555 Capitol Mall, Suite 1230 6 Sacramento, California 95814 7 Telephone: (916) 996-0400 8 Email: port@parlawgroup.com 9 10 FOR DEFENDANT: 11 LAW OFFICE OF LAWRENCE D. MILLER 12 BY: LAWRENCE D. MILLER, ATTORNEY AT LAW 13 630 North San Mateo Drive 14 San Mateo, California 94401 15 Telephone: (650) 592-9151 16 Email: lmiller@ldmlawyer.com 17 18 ALSO PRESENT: 19 SHAWNA HYNES, VIDEO OPERATOR 20 21 22 23 24 25 BEHMKE REPORTING AND VIDEO SERVICES, INC. 3 (415) 597-5600 1 MR. PARKER: Yeah. 2 MR. MILLER: To the extent that this question -- or 3 this request includes tax returns, other than Schedule E 4 of the tax return, Ms. Calder's interposing an objection 5 based on the tax privilege, but Schedule E -- except for 6 Schedule E of her tax returns. So as long as we stick 7 to Schedule E, there's -- to the extent that that 8 privilege will otherwise apply, we're going to waive it 9 as to Schedule E only. 10 THE WITNESS: Well, as to the years we have it for. 11 MR. MILLER: We can only produce what we have. 12 THE WITNESS: Right. 13 MR. PARKER: Okay. Do you have anything that you're 14 producing today -- 15 THE WITNESS: Yes. 16 MR. PARKER: -- in response to that? 17 MR. MILLER: We have the Schedule E. 18 MR. PARKER: Excellent. Okay. So let's mark this 19 as Exhibit -- do you have multiple copies of that, by 20 chance? 21 MR. MILLER: I do. Which is why I hesitate to hand 22 them all to you, but I'm happy to do that. So 23 there's -- there are two -- there are three copies -- 24 MR. PARKER: Okay. 25 MR. MILLER: -- of Schedule E -- of each Schedule E BEHMKE REPORTING AND VIDEO SERVICES, INC. 289 (415) 597-5600 1 STATE OF CALIFORNIA ) 2 ) ss. 3 COUNTY OF SAN FRANCISCO ) 4 I hereby certify that the witness in the 5 foregoing deposition, ROBIN E. CALDER, was by me duly 6 sworn to testify to the truth, the whole truth and 7 nothing but the truth, in the within-entitled cause; 8 that said deposition was taken at the time and place 9 herein named; that the deposition is a true record of 10 the witness' testimony as reported by me, a duly 11 Certified Shorthand Reporter and disinterested person, 12 and was thereafter transcribed into typewriting by 13 computer. 14 I further certify that I am not interested in 15 the outcome of said action nor connected with, nor 16 related to, any of the parties in said action, nor to 17 their respective counsel. 18 IN WITNESS WHEREOF, I have hereunto set my hand 19 this 23rd day of March, 2020. 20 T 21 22 23 SUZANNE I. ANDRADE, CSR 10682 24 STATE OF CALIFORNIA 25 BEHMKE REPORTING AND VIDEO SERVICES, INC. 359 (415) 597-5600 1 COURT: Superior Court of California, County of Placer 2 CASE NO.: SCV0039929 CASE NAME: Jarvis v. Calder 3 PROOF OF SERVICE 4 5 I am a citizen of the United States, employed in the County of Sacramento. My business address is 555 Capitol Mall, Suite 1230; Sacramento, California 95814. I am over the age of 18 years 6 and not a party to the above-entitled action. 7 I am familiar with PARKER LAW GROUP ATTORNEYS, APC’s practice whereby each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon 8 and the sealed envelope is placed in the office mail receptacle. Each day's mail is collected and 9 deposited in a U.S. mailbox at or before the close of each day’s business. 10 On the date indicated below, I served the within: 11 OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION FOR AN ORDER GROUP 555 Capitol Ma ll, Suite 1230 Sacramento, CA 95814 EXTENDING DEFENDANT’S TIME TO OBJECT TO PLAINTIFF’S NOTICE TO 12 DEFENDANT TO APPEAR AT TRIAL AND IN THE ALTERNATIVE FOR AN ORDER 13 SHORTENING TIME; DECLARATION OF JEFFREY S. EINSOHN LAW 14 X E-MAIL --- 15 on the person(s)/entity(ies) listed below based on a court order or an agreement of the parties PARKER to accept electronic service, I caused the documents to be sent to the persons at the electronic 16 service addresses listed below: 17 18 Lawrence D. Miller Law Office of Lawrence D. Miller 19 P.O. Box 6107 San Mateo, CA 94403 20 Telephone: (650) 592-9151 21 Email: lmiller@ldmlawyer.com 22 I declare under penalty of perjury under the laws of the State of California that the foregoing 23 is true and correct and that this Declaration is executed on October 12, 2020 at Sacramento, California. 24 25 ZOILA PEREZ 26 27 28 PROOF OF SERVICE 1