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1 ALISON P. BUCHANAN – BAR NO. 215710 08/20/2020
ASHLEE N. CHERRY – BAR NO. 312731
2 HOGE, FENTON, JONES & APPEL, INC.
60 South Market Street, Suite 1400
3 San Jose, California 95113-2396
Phone: 408.287.9501
4 Fax: 408.287.2583
5 Attorneys for Defendants
CUNNINGHAM LEGAL;
6 PRESTON MARX, III;
JAMES CUNNINGHAM; and
7 ASCENT WEALTH MANAGEMENT
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF PLACER
10
11
DONALD MACHHOLZ, JR., Case No. SCV0043518
12
Plaintiff, NOTICE OF DEFENDANT
13 CUNNINGHAM LEGAL’S MOTION TO
v. COMPEL PLAINTIFF’S DEPOSITION
14 TESTIMONY AND REQUEST FOR
CUNNINGHAM LEGAL, a California SANCTIONS
15 Professional Corporation; PRESTON
MARX, III, an individual; JAMES Date: September 17, 2020
16 CUNNINGHAM, an individual; ASCENT Time: 8:30 a.m.
WEALTH MANAGEMENT, a California Dept.: Law and Motion
17 corporation; and DOES 1 through 10,
inclusive, Action Filed: August 6, 2019
18 Trial Date: January 25, 2021
Defendants.
19
20 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:
21 PLEASE TAKE NOTICE THAT on September 17, 2020, at 8:30 a.m., or as soon
22 thereafter as counsel may be heard, in the Law and Motion Department of the above-
23 captioned Court, located at 10820 Justice Center Drive, Roseville, CA 95678, Defendant
24 Cunningham Legal (“Defendant”) will and hereby does move this Court for an Order
25 compelling Plaintiff Donald Machholz, Jr. (“Plaintiff”) to testify regarding: (1) his
26 assignment of legal malpractice claims against Defendants; (2) his December 24, 2019
27 correspondence to this Court; (3) when he first met Ognian Gavrilov; (4) when he first
28 retained Ognian Gavrilov; (5) when he first learned of the lawsuit; (6) how he first learned
3985290
-1-
NOTICE OF DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION TESTIMONY AND
REQUEST FOR SANCTIONS
1 of the lawsuit; and (7) his online posts regarding this lawsuit. Additionally, Defendant
2 requests that this Court issue an order compelling Plaintiff and his counsel, jointly and
3 severally, to pay monetary sanctions to Defendant in the amount of $1,057.50, pursuant
4 to California Code of Civil Procedure sections 2023.010, subds. (e) and (h), 2023.030,
5 and 2025.480, subd. (j). Finally, given the impending trial date and related deadlines,
6 Defendant requests that this Court order Plaintiff to appear for the deposition within 10
7 days of the date of this Court’s order.
8 Defendant brings this Motion on the grounds that Plaintiff asserted numerous
9 inapplicable and unmeritorious objections to and refused to respond to deposition
10 questioning. (Cal. Code Civ. Proc. § 2025.480, subd. (a)).
11 This Motion is based on this Notice of Motion, the attached Memorandum of Points
12 and Authorities, the Declaration of Ashlee N. Cherry filed concurrently herewith, the
13 Request for Judicial Notice filed herewith, the Separate Statement filed herewith, all of
14 the pleadings, files, and records in this proceeding, all other matters of which the Court
15 may take judicial notice, and any argument or evidence that may be presented to or
16 considered by the Court prior to its ruling.
17
DATED: August 20, 2020 HOGE, FENTON, JONES & APPEL, INC.
18
19
20
By:
21 Alison P. Buchanan
Ashlee N. Cherry
22
Attorneys for Defendants CUNNINGHAM
23 LEGAL; PRESTON MARX, III; JAMES
CUNNINGHAM; and ASCENT WEALTH
24 MANAGEMENT
25
26
27
28
3985290
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NOTICE OF DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION TESTIMONY AND
REQUEST FOR SANCTIONS
Preview
1 ALISON P. BUCHANAN – BAR NO. 215710 08/20/2020 ASHLEE N. CHERRY – BAR NO. 312731 2 HOGE, FENTON, JONES & APPEL, INC. 60 South Market Street, Suite 1400 3 San Jose, California 95113-2396 Phone: 408.287.9501 4 Fax: 408.287.2583 5 Attorneys for Defendants CUNNINGHAM LEGAL; 6 PRESTON MARX, III; JAMES CUNNINGHAM; and 7 ASCENT WEALTH MANAGEMENT 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF PLACER 10 11 DONALD MACHHOLZ, JR., Case No. SCV0043518 12 Plaintiff, NOTICE OF DEFENDANT 13 CUNNINGHAM LEGAL’S MOTION TO v. COMPEL PLAINTIFF’S DEPOSITION 14 TESTIMONY AND REQUEST FOR CUNNINGHAM LEGAL, a California SANCTIONS 15 Professional Corporation; PRESTON MARX, III, an individual; JAMES Date: September 17, 2020 16 CUNNINGHAM, an individual; ASCENT Time: 8:30 a.m. WEALTH MANAGEMENT, a California Dept.: Law and Motion 17 corporation; and DOES 1 through 10, inclusive, Action Filed: August 6, 2019 18 Trial Date: January 25, 2021 Defendants. 19 20 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: 21 PLEASE TAKE NOTICE THAT on September 17, 2020, at 8:30 a.m., or as soon 22 thereafter as counsel may be heard, in the Law and Motion Department of the above- 23 captioned Court, located at 10820 Justice Center Drive, Roseville, CA 95678, Defendant 24 Cunningham Legal (“Defendant”) will and hereby does move this Court for an Order 25 compelling Plaintiff Donald Machholz, Jr. (“Plaintiff”) to testify regarding: (1) his 26 assignment of legal malpractice claims against Defendants; (2) his December 24, 2019 27 correspondence to this Court; (3) when he first met Ognian Gavrilov; (4) when he first 28 retained Ognian Gavrilov; (5) when he first learned of the lawsuit; (6) how he first learned 3985290 -1- NOTICE OF DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION TESTIMONY AND REQUEST FOR SANCTIONS 1 of the lawsuit; and (7) his online posts regarding this lawsuit. Additionally, Defendant 2 requests that this Court issue an order compelling Plaintiff and his counsel, jointly and 3 severally, to pay monetary sanctions to Defendant in the amount of $1,057.50, pursuant 4 to California Code of Civil Procedure sections 2023.010, subds. (e) and (h), 2023.030, 5 and 2025.480, subd. (j). Finally, given the impending trial date and related deadlines, 6 Defendant requests that this Court order Plaintiff to appear for the deposition within 10 7 days of the date of this Court’s order. 8 Defendant brings this Motion on the grounds that Plaintiff asserted numerous 9 inapplicable and unmeritorious objections to and refused to respond to deposition 10 questioning. (Cal. Code Civ. Proc. § 2025.480, subd. (a)). 11 This Motion is based on this Notice of Motion, the attached Memorandum of Points 12 and Authorities, the Declaration of Ashlee N. Cherry filed concurrently herewith, the 13 Request for Judicial Notice filed herewith, the Separate Statement filed herewith, all of 14 the pleadings, files, and records in this proceeding, all other matters of which the Court 15 may take judicial notice, and any argument or evidence that may be presented to or 16 considered by the Court prior to its ruling. 17 DATED: August 20, 2020 HOGE, FENTON, JONES & APPEL, INC. 18 19 20 By: 21 Alison P. Buchanan Ashlee N. Cherry 22 Attorneys for Defendants CUNNINGHAM 23 LEGAL; PRESTON MARX, III; JAMES CUNNINGHAM; and ASCENT WEALTH 24 MANAGEMENT 25 26 27 28 3985290 -2- NOTICE OF DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S DEPOSITION TESTIMONY AND REQUEST FOR SANCTIONS