Motion for Protective Order in BIG WASHINGTON, LLC VS FRY ET AL| Trellis.Law

On October 05, 2017 a Motion,Ex Parte was filed involving a dispute between Big Washington, Llc, A California Limited Liability Company, and Benhong, Ruth M. Fry As Trustee Of The T & R Fry Family Trust, Thomas H. Fry As Trustee Of The T&R Fry Family Trust, for 26-CV Other Real Property-Civil Unlimited in the District Court of Kern County.

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1 LAW OFFICES OF RICHARD JACOBS
RICHARD JACOBS, SBN 252226
2 13512 Hatteras St.
Valley Glen, California 91401
3 Tel: (818) 216-0663
Fax: (818) 780-8696
4 RichardJacobsLaw@gmail.com
5 Attorneys for Plaintiff, BIG WASHINGTON, LLC.
6

7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF KERN – METROPOLITAN DIVISION
9

10 BIG WASHINTON, LLC., a Case No.: BCV17-102341 SDS
California Limited Liability
11 Company MOTION FOR PROTECTIVE ORDER, OR IN THE
ALTERNATIVE, AN ORDER DEEMING
12 Plaintiff; DEPOSITIONS OF PLAINTIFF’S PMK, AND NON-
PARTY WITNESSES TO HAVE BEEN TAKEN
13 v.
Date: March 14, 2022
14 BENHONG (AMERICA) Time: 8:30 a.m.
RECYCLING CO. LTD, a Dept.: H
15 California Limited Liability
Company; and THOMAS H.
16 FRY; RUTH M. FRY, as
Trustees of the T & R FRY
17 FAMILY TRUST, and Does 1 to
100,
18
Defendants.
19

28
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 The Court ordered Plaintiff’s PMK and non-party witnesses Ben Eilenberg,

4 Martin Smith, and Stephanie Smith to appear for in-person depositions. Plaintiff’s

5
PMK and Ben Eilenberg have offered to appear multiple times, but Defendants

6
refuse to take the deposition. Martin Smith has now flown to California from Florida
to have his deposition taken, but Defendants refuse to take the deposition.
7
Therefore, Plaintiff respectfully requests the Court either issue a protective
8
order or deem that the depositions be taken.
9
II. PLAINTIFF’S PMK AND THE NON-PARTY WITNESSES AGREED TO
10
SHOW UP FOR AN IN-PERSON DEPOSITION THAT DEFENDANTS
11
REFUSED TO TAKE
12
There are four depositions Defendant is requesting: Plaintiff’s additional PMK
13
(they have already taken two PMK depositions on various topics, this would be the
14
third on additional topics); Ben Eilenberg (Plaintiff’s COO), Martin Smith (a non-party
15
witness with no job at Plaintiff and no ownership stake), and Stephanie Smith (the
16
owner of the company).
17
Despite living over 150 miles from the deposition location and having the
18
pending appeal, Plaintiff agreed to have their PMK and Ben Eilenberg’s deposition
19 in-person on the requested date by Defendant. Defendant refused to take the
20 deposition. (Exhibit 1.)
21 Non-party witness Martin Smith flew to Los Angeles from Florida to have his
22 deposition taken, but Defendants now refuse to take his deposition as well. (Exhibit
23 2.)
24 Instead, Defendants seem to take the position that they would rather not take

25 the depositions and instead move for sanctions based upon the depositions. This, of

26 course, is nonsensical.

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1 III. NON-PARTY WITNESS STEPHANIE SMITH IS IN FLORIDA WITH

2 HER CHILDREN AND THEY HAVE COVID-19

3 Separately, while non-party witness Stephanie Smith was also planning to

4 attend depositions, she and several of her children have now been diagnosed with

5
Covid-19. (Declaration of Stephanie Smith, ¶ 2-6.) Defendants insist that non-party

6
witness Stephanie Smith fly despite the CDC’s ban on flying with Covid-19. (Exhibit
3.)
7
Notably, Stephanie Smith, as owner of the Plaintiff is the very definition of an
8
”apex deposition”, which is generally prohibited without a weighing of the factors by
9
the Court. According to the Courts, “it amounts to an abuse of discretion to withhold
10
a protective order when a plaintiff seeks to depose a corporate president, or
11
corporate officer at the apex of the corporate hierarchy, absent a reasonable
12
indication of the officer's personal knowledge of the case and absent exhaustion of
13
less intrusive discovery methods.” (Liberty Mutual v. Superior Court (1992) 10
14
Cal.App.4th 1282, 1287.)
15
In this case, the only personal knowledge that Stephanie Smith has on the
16
matter is signing the original contract, which was then later assigned to the Plaintiff
17
prior to closing the sale. (Declaration of Stephanie Smith, ¶ 2-6.) Therefore,
18
requiring a mother of five who has Covid-19 to travel from Florida in violation of CDC
19 requirements to take a deposition prior to exhausting the less intrusive means of
20 deposing the PMK first is an abuse of discretion.
21 IV. CONCLUSION
22 Plaintiff has offered to accommodate Defendants. Plaintiff’s PMK has offered
23 to appear multiple times. Ben Eilenberg has offered to appear multiple times.
24 Martin Smith flew from Florida to Los Angeles to be deposed. However, Defendants

25 refuse to take the depositions. Therefore, the Court can deem that those

26 depositions are now taken or issue a protective order.

28
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1 Meanwhile, Stephanie Smith, the owner of Plaintiff who has no personal

2 knowledge of the case and is an “apex deposition” cannot legally fly at the moment.

3 Nonetheless, Defendants insist that she violate the CDC’s ban on traveling with

4 Covid-19.

5
For all of these reasons, Plaintiff respectfully requests that the Court issue a

6
protective order or deem the depositions to have been taken due to Defendants’
refusal to take the depositions.
7
February 2, 2022
8

10
___________________________________
11 Richard Jacobs, Esq.
12

28
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REQUEST FOR JUDICIAL NOTICE
1
Plaintiff respectfully requests the Court take judicial notice of the following
2
under the California Evidence Code:
3
1. CDC – Domestic Travel During Covid-19 Guidelines available online at
4
https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-
5
covid19.html#:~:text=Do%20not%20travel%20until%20a%20full%205%20
6
days%20after%20your,after%20your%20last%20close%20contact..
7
February 2, 2022
8

9 ___________________________________

10 Richard Jacobs, Esq.

28
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1 DECLARATION OF RICHARD B. JACOBS

2 1. I am the attorney of record for Plaintiff in this matter. If called to testify I

3 could and would testify to the following:

4 2. I offered to provide Plaintiff’s PMK and COO for in-person depositions on

5
the requested dates for Defendants.

6
3. They refused to take the depositions.
4. After the Court of Appeal issued a split decision on the writ, we appealed
7
the matter to the Supreme Court.
8
5. We initially had asked for an immediate stay, but based upon
9
conversations with Defendants’ counsel and the fact that there were no
10
pending motions on the deposition issue, we agreed to take the
11
immediate stay request off calendar.
12
6. Once the immediate stay request was removed from the Supreme Court
13
appeal, Defendants pushed for the depositions while the Supreme Court
14
matter was pending.
15
7. Nonetheless, the PMK, Ben Eilenberg, and Martin Smith have now all
16
agreed to appear for in-person depositions.
17
8. Martin Smith flew from Florida to Los Angeles for his deposition, but
18
Defendants are now refusing to take his deposition.
19 9. Stephanie Smith is home in Florida with her children in quarantine
20 because she and several of the children have Covid-19.
21 10. A true and correct copy of the correspondence with Defendants regarding
22 the PMK and Ben Eilenberg is attached hereto as Exhibit 1.
23 11. A true and correct copy of the correspondence with Defendants regarding
24 Martin Smith is attached hereto as Exhibit 2.

25 12. I will also note that despite many requests, Defendants have still refused

26 to provide a single proposed deposition date for their three witnesses:

28
-1-
1 Defendant Thomas Fry, Defendant Ruth Fry, and their business manager

2 John Richardson.

3 I swear under the laws of California that the foregoing is true and correct, and

4 the this declaration was executed on February 2, 2022.

6
___________________________________
7
Richard Jacobs, Esq.
8

28
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1 DECLARATION OF MARTIN SMITH

2 1. I am not a party in this matter. If called to testify I could and would testify

3 to the following:

4 2. While I have no information beyond the information being testified to by

5
the Plaintiff’s PMK in this matter, I arranged to fly to Los Angeles from

6
Florida where I live to then have my in-person deposition taken by
Defendants.
7
3. I arrived in Los Angeles on January 29, 2022 and will be returning to help
8
take care of Stephanie and our children who have Covid-19 on February
9
5, 2022.
10
4. I have now been told that Defendants are refusing to take my deposition,
11
but I will remain through my return flight in hopes that they reconsider.
12
I swear under the laws of California that the foregoing is true and correct, and
13
the this declaration was executed on February 2, 2022.
14

15 ___________________________________
16 Martin Smith

28
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1 DECLARATION OF STEPHANIE SMITH

2 1. I am not a party in this matter. If called to testify I could and would testify

3 to the following:

4 2. While I have no information beyond the information being testified to by

5
the Plaintiff’s PMK in this matter, I planned to fly to Los Angeles from

6
Florida where I live to then have my in-person deposition taken by
Defendants.
7
3. The entirety of my knowledge on this matter was signing the original
8
contract and then assigning the contract to Plaintiff. Otherwise, I have
9
not been involved in this transaction.
10
4. Nonetheless, apparently I am being forced to be deposed because I own
11
Plaintiff.
12
5. However, prior to flying to Los Angeles several of my children and I
13
became sick with Covid-19 symptoms. Therefore, I am unable to fly and
14
it would be both illegal and extremely improper form me to fly while I may
15
be infectious.
16
6. Therefore, I am unable to fly and it would be both illegal and extremely
17
improper for me to fly while I am infectious.
18
I swear under the laws of California that the foregoing is true and correct, and
19 the this declaration was executed on February 2, 2022.
20

21
___________________________________
Stephanie Smith
22

28
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1

26
EXHIBIT 1
27

28
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Ben Eilenberg

Fwd: Deposition of Martin Smith
Richard Jacobs Thu, Feb 3, 2022 at 9:13 AM
To: Ben Eilenberg

---------- Forwarded message ---------
From: William Alexander
Date: Thu, Jan 27, 2022 at 1:52 PM
Subject: RE: Deposition of Martin Smith
To: Richard Jacobs
Cc: Elizabeth Estrada , Ivonne Silva , Rocki Parnell
, Shontice Yates

Mr. Jacobs:

Thank you for your email.

I’m sorry to learn that Stephanie Smith and several of her children have been diagnosed with Covid while in
Florida. Hopefully their symptoms are mild or nonexistent, and will be soon to pass.

Please produce all writings that establish that Stephanie Smith “… transferred all her interest in this
transaction to Big Washington before it closed.”

I disagree with your contention that Stephanie Smith has “limited to no knowledge of the transaction.” The
documentary evidence is to the contrary. If she has limited to no knowledge, we will learn that at her
deposition.

Thank you for offering to make Martin Smith and Ben Eilenberg available for in-person depositions.
However, and as I have stated now on multiple occasions, I intend to take the depositions in the order that I
noticed them. The order is: Stephanie Smith, then Martin Smith, then Ben Eilenberg, and then the PMQ of
Big Washington. Therefore, please provide dates for the deponents when they become available. And
before proposing dates, please have your clients’ agreement to appear on those dates.

If the deponents are not made available for their in-person depositions soon, then I will have to notify Judge
Barmann and then may have to file yet another motion to continue relevant hearing dates.

Thank you.
William L. Alexander

Alexander & Associates, PLC

1925 G Street

Bakersfield, CA 93301

Phone: 661-316-7888

Please copy Rocki@alexander-law.com, Shontice@alexander-law.com & Ivonne@alexander-law.com on all emails to me.

This email and any attachments may contain information which is legally confidential and/or privileged. If you are not the intended recipient of this email, you are
hereby notified that any copying, forwarding or distribution of the email is prohibited. If you have received this email in error, please notify Alexander &
Associates immediately and permanently delete the email from your computer and destroy any printed version.

From: Richard Jacobs
Sent: Thursday, January 27, 2022 10:38 AM
To: William Alexander
Cc: Elizabeth Estrada ; Ivonne Silva ; Rocki Parnell
; Shontice Yates
Subject: Re: Deposition of Martin Smith

Hello,

In an effort to resolve the deposition issues I am having Martin Smith fly in from Florida. He is scheduled to fly into Los
Angeles, CA on Saturday 1/29/22. He will be in town all of next week. Please advise as to the dates next week your
office is available. He requests that his deposition begin at 1 p.m., if possible. Ben Eilenberg remains available for his in-
person deposition personally and as PMK. Please be advised that Stephanie Smith remains in Florida with Covid and
taking care of 5 kids, several of whom have been diagnosed with Covid. As you are aware, she transferred all her
interest in this transaction to Big Washington before it closed and has limited to no knowledge of the transaction. Please
let us know your availability.

Regards,

Richard

On Wed, Jan 26, 2022 at 4:16 PM William Alexander wrote:

Mr. Jacobs:

Thank you for your email. Please provide dates for the depositions in the order that I noticed them. The
order is: Stephanie Smith, then Martin Smith, then Ben Eilenberg, and then the PMQ of Big Washington.
Thank you.
Before proposing dates, please have your clients’ agreement to appear on those dates. I just don’t want to
learn that they are not available, even though you were. Once I have confirmed dates, I will check with
my clients and also confirm my availability and theirs, assuming they intend to attend.

The dates you have proposed look open for me right now. I have not checked with my clients.

My meeting and conferring with you, I am not waiving, and are hereby reserving, all my clients’ rights
and remedies with respect to the pending motion for sanctions and otherwise.

Thank you,

William L. Alexander

Alexander & Associates, PLC

1925 G Street

Bakersfield, CA 93301

Phone: 661-316-7888

Please copy Rocki@alexander-law.com, Shontice@alexander-law.com & Ivonne@alexander-law.com on all emails to me.

This email and any attachments may contain information which is legally confidential and/or privileged. If you are not the intended recipient of this email, you
are hereby notified that any copying, forwarding or distribution of the email is prohibited. If you have received this email in error, please notify Alexander &
Associates immediately and permanently delete the email from your computer and destroy any printed version.

From: Richard Jacobs
Sent: Wednesday, January 26, 2022 2:47 PM
To: Elizabeth Estrada ; William Alexander
Subject: Deposition of Martin Smith

William,

This is a good faith effort to meet and confer regarding the in person depositions ordered by the Court. Currently I am
available for the in person deposition of Martin Smith on February 8th or the 11th. I have not run these dates with my
Client yet, however, I think they are good. Please advise if you are available and if these dates work for you.

Richard
1

26 EXHIBIT 2

28
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Fwd: Big Washington v. Fry
1 message

[REDACTED CLIENT COMMUNICATION]

From: William Alexander
Date: September 28, 2021 at 10:18:12 AM PDT
To: Richard Jacobs
Cc: Elizabeth Estrada , Rocki Parnell , Shontice Yates
Subject: RE: Big Washington v. Fry

Yesterday’s email made clear our position.

We will let Judge Barmann resolve these issues and disputes.

Thank you,

William L. Alexander

Alexander & Associates, PLC

1925 G Street

Bakersfield, CA 93301

Phone: 661-316-7888

Please copy Rocki@alexander-law.com, Shontice@alexander-law.com & Ivonne@alexander-law.com on all emails to me.

This email and any attachments may contain information which is legally confidential and/or privileged. If you are not the intended recipient of this email, you are hereby notified that any copying, forwarding or distribution of the email is prohibited. If you have received this email in error, please notify Alexander &
Associates immediately and permanently delete the email from your computer and destroy any printed version.

From: Richard Jacobs
Sent: Tuesday, September 28, 2021 10:14 AM
To: William Alexander
Cc: Elizabeth Estrada ; Rocki Parnell ; Shontice Yates
Subject: Re: Big Washington v. Fry

Please be advised that Mr. Eilenberg and I have been waiting. To date no zoom link has been received regarding the zoom deposition. If one is not sent in the next 5 minutes, the deposition will be deemed abandoned.

Richard

Sent from my iPhone

On Sep 27, 2021, at 2:21 PM, Richard Jacobs wrote:

I am sorry,

I will not be appearing in person, nor will my clients. I suggest you take the 6th, as I expect the trial to be continued on the 4th. I am not sure if you are aware, but many of my available dates were not available on your busy
schedule. Therefore, you created your own problem, which included sitting on this issue for months at a time. However, as you were aware FROM THE BEGINNING, we were working around both of our schedules. Im
sorry that you set these hearings on dates not offered. From the beginning I stated Ben was available on the 28th and Martin and Stephanie on the 29th. Im that the depositions on the 29th need to be continued. I suggest
you set it for the 6th, with the other dates as back ups. However, if you choose to not go forward on Mr. Eilenberg, I will assume that this issue is closed as is that of the PMK.

As you have stated, you will not be going forward on Mr. Eilenberg's deposition, please advise if you change your mind.

Richard

On Mon, Sep 27, 2021 at 12:33 PM William Alexander wrote:

Mr. Jacobs:

I’m done with the games. I don’t know if this is your email or if it is really from Mr. Eilenberg, who is clearly in charge of this litigation and pulling the strings. For attorney work-product reasons
I will not disclose, I intend to take the following depositions in the following order and IN PERSON:

Martin or Stephanie Smith (so that your clients can arrange for one parent to be home with their children, I will take one deposition on one day and the other on another day)
Martin of Stephanie Smith (whoever is not taken above), on the following day if the prior day’s deposition is not completed. As stated below, I will try to complete both of their depositions
on the same day, but I will not commit to doing so.
Ben Eilenberg
The PMQ of the plaintiff unless Mr. Eilenberg is the PMQ for all categories of examination

Page 394
1.The confusion is why your clients cannot appear. This is Big Washington’s case and MSA. The excuse we’ve been given is child care, with no more details whatsoever. We’ve been
provided with no evidence explaining why neither Stephanie nor Martin can appear Mondays through Fridays (except for Wednesdays) due to child care. No information has been provided
of the ages of the children, the number, whether they are special needs children, who provides child care from Monday through Fridays, etc. Also, unless there is something extraordinary,
such as special needs children, there is no evidence or information showing that both Stephanie and Martin are jointly required to care for the children so as to prevent both from appearing at
a deposition. We can certainly schedule Stephanie on one day and Martin on another so that one may stay home with the children while the other is deposed.

We will take their depositions IN PERSON and will require ORIGINAL documents to be produced at the depositions.

2.You are not “squeezing” us in on October 6. In fact, you’ve made it crystal clear that October 6 is contingent on your trial calendar.

Please provide ASAP concrete, non-movable dates for the depositions of Stephanie and Martin Smith, Mr. Eilenberg and the PMQ of the plaintiff.

3.Thank you for offering firm dates of October 20 and 22. Here are my comments in response:
Those dates are too late. The current hearing date on Big Washington’s MSA is November 10. That means that our clients’ opposition is due October 27. October 20 and 22 are too
a.
late for the Smiths’ depositions and the other depositions. We would not get the deposition transcripts, even on an expedited basis, with sufficient time to prepare the oppositions.
While I have depositions and other commitments on those dates, I will make time to take depositions on October 20, and 22, but only so long as you can also provide October 21 as a
b.
contingent deposition date for the Smiths’ depositions.
c. If both Martin and Stephanie appear on October 20, I will do my best to complete both of their depositions on October 20. We could then eliminate October 21 as a deposition date and
then take Ben Eilenberg’s deposition and that/those of the PMQ(s) on October 22. The earlier we begin on October 20, the higher the likelihood that I will complete both depositions on
that date.
d. THEREFORE, please reserve these dates.

4.As for the Fry depositions, Big Washington filed its MSA without the depositions, meaning that Big Washington clearly felt it did not need those depositions to file its MSA. Consequently,
the depositions of Big Washington’s witnesses must be prioritized over the Fry depositions. And since it is your schedule that is impeding depositions, we suggest you give us your available
dates and we can then confirm the dates that our clients are available.

5.I will not be taking Mr. Eilenberg’s deposition tomorrow. I will complete the depositions of Martin and Stephanie Smith before I take the depositions of Mr. Eilenberg and the PMQ(s) of the
plaintiff. That is why we scheduled them in that order. I am not willing to change the order in which I intend to take the depositions.

There is an obvious solution to accommodating your apparent busy schedule – we can stipulate to move the MSA hearing to a later date. We are willing to enter into such a stipulation
immediately. Please let me know ASAP if your client is willing to enter into such a stipulation.

Thank you,

William L. Alexander

Alexander & Associates, PLC

1925 G Street

Bakersfield, CA 93301

Phone: 661-316-7888

Please copy Rocki@alexander-law.com, Shontice@alexander-law.com & Ivonne@alexander-law.com on all emails to me.

This email and any attachments may contain information which is legally confidential and/or privileged. If you are not the intended recipient of this email, you are hereby notified that any copying, forwarding or distribution of the email is prohibited. If you have received this email in error,
please notify Alexander & Associates immediately and permanently delete the email from your computer and destroy any printed version.

From: Richard Jacobs
Sent: Monday, September 27, 2021 11:28 AM
To: Elizabeth Estrada
Cc: Rocki Parnell ; Shontice Yates ; William Alexander
Subject: Re: Big Washington v. Fry

Yes. I informed you on the 23rd. You failed to respond. Hence I sent a follow up email. I don’t understand your confusion.

As I always informed you, mr. Eilenberg is available on the 28th. If you chose not to proceed, then that is on you and you will have to proceed as you see fit. As to Martin and a stephanie smith, as you are aware my
schedule is tight, like yours, if you don’t like me trying to squeeze u I’m on the 6th, then I can offer the concrete date as to my schedule for 10/20 and 10/22.

Please advise. I await the email link RE: the deposition for Mr. Eilenberg.

Also, before you blow off your fake outrage. I am stilling waiting for any available dates regarding your clients depositions. You don’t get to ignore my request for dates.

Richard

Sent from my iPhone

On Sep 27, 2021, at 11:18 AM, Elizabeth Estrada wrote:

Mr. Jacobs,

In our phone call weeks ago, you said that September 28th and 29th were tentatively open, but in your email to me on September 16, you said you were still holding onto the September 28 and 29 dates. You
say that the 29th date “just happened,” was only recently set by the court without your input, and that you informed me as soon as practicable. So obviously your new conflict was not a conflict you knew
about on September 16 when you said you were holding that date for us. If you told me as soon as practicable, then you must have learned about it on September 23 when you emailed me to tell me that
you were unavailable.

We cannot continue to set contingent or tentative dates. You have again “tentatively” offered October 6, but you have made clear that it is not concrete. I need a concrete date, and you either cannot or will
not give me one. At this point, I simply do not trust that you intend to produce the Smiths, especially once Mr. Eilenberg has been deposed. And if the issue is child care, I fail to see how that impedes both
of them from attending a Zoom deposition, as you have stated to me that you will not produce them in person. Moreover, they surely can find child care for one day to attend a deposition in a lawsuit that
they filed and in an action in which they filed an MSA.

Page 395
We intend to depose the Smiths and Mr. Eilenberg, but we will not depose Mr. Eilenberg until we have a concrete date for the Smiths. Please provide me with dates that you, the Smiths, and Mr. Eilenberg
are all available. And since the Smiths appear to have availability on Wednesdays (and therefore must have child care), I expect them to appear in person.

Finally, I have not ignored your emails or communications. I have made every effort to get these depositions scheduled, only to be told over and over that either you or your clients are unavailable due to
holiday celebrations or sudden court appearances or unavailability in general. I have been exceedingly patient and attempted to work with your schedule. Your schedule, however, is preventing me from
preparing an opposition to your MSA, and if we cannot commence the depositions prior to October 6, we will have to move the MSA hearing again.

Elizabeth Estrada
Alexander & Associates, PLC

1925 G Street

Bakersfield, CA 93301

Phone: 661-316-7888

Fax: 661-316-7890

Email: Elizabeth@Alexander-law.com

This e-mail and any attachments may contain information which is legally confidential and/or privileged. If you are not the intended recipient of this e-mail, you are hereby notified that any copying, forwarding or distribution of the e-mail is prohibited. If you have received this e-mail in error,
please notify Alexander & Associates immediately and permanently delete the e-mail from your computer and destroy any printed version.

From: Richard Jacobs
Sent: Monday, September 27, 2021 10:40 AM
To: Elizabeth Estrada
Subject: Re: Big Washington v. Fry

As I have said from the beginning. These dates were to be fluid due to my trial calendar. Moreover, my clients are unavailable on Tuesdays Due to Child Care issues. They are available on
Wednesdays, hence, my offering of October 6. However, that is to come with the understanding that I have a Trial on October 4, 2021, therefore the deposition may need a further continuance if the trial
goes forward. I dont think it will, hence my offering it in prior ignored communications.

When I offered the dates to you, I offered them as 9/28 for Ben and 9/29 for Steph and Martin. I have repeated that from the beginning. I am sorry to say that I am unavailable on 9/29. Also, I had no part in
the hearing being set on this date. It was set by the Court and just happened, hence the late notice. It involves another case, unrelated to these clients and it demands a personal trial appearance as it will
be a evidentiary hearing. I am also sorry, that you ignored my statement as to availability and scheduled the depositions on different days then offered.

My offering of Mr. Eilenberg for the 28th has been consistent and if you choose to not go forward, then I will consider that matter closed and his deposition completed.

My current offering of Martin Smith and Stephanie Smith on October 6, 2021 is contingent on my trial not going forward. Please advise if you intend to proceed on tomorrow's deposition as I will be there
with Mr. Eilenberg.

Richard

On Mon, Sep 27, 2021 at 10:26 AM Elizabeth Estrada wrote:

Needless to say, I am quite frustrated. The court asked that you and I work together to set these deposition dates and I am beginning to believe that it simply is not possible. Please advise me as to why
Stephanie and Martin are not available on the 28th.
If you refuse to produce them in person, I do not see how they are unavailable for Zoom. Also, if you continue to have hearings that suddenly pop up,
on dates that we had previously cleared, we may need to seek another continuance of the MSA hearing.

We do not intend to depose Mr. Eilenberg until we have concrete dates for Stephanie and Martin. If they truly are unavailable on September 28, then please provide us with concrete dates for Stephanie
and Martin.

Thank you.

Elizabeth Estrada
Alexander & Associates, PLC

1925 G Street

Bakersfield, CA 93301

Phone: 661-316-7888

Fax: 661-316-7890

Email: Elizabeth@Alexander-law.com

This e-mail and any attachments may contain information which is legally confidential and/or privileged. If you are not the intended recipient of this e-mail, you are hereby notified that any copying, forwarding or distribution of the e-mail is prohibited. If you have received this e-mail in
error, please notify Alexander & Associates immediately and permanently delete the e-mail from your computer and destroy any printed version.

From: Richard Jacobs
Sent: Monday, September 27, 2021 10:02 AM
To: Elizabeth Estrada
Cc: Shontice Yates
Subject: Re: Big Washington v. Fry

Please advise as to the deposition of the pmk and Ben Eilenberg tomorrow. To date, I have not gotten a response related to my unavailability on the 29th, or the Smith’s unavailability on the 28th. As I
informed you previously, Mr. Eilenberg is the only witness available on the 28th. Therefore, mr Eilenberg will appear.

Also, please advise as to the suggested date regarding the smiths new deposition date.

Regards,

Page 396
Richard

Sent from my iPhone

On Sep 16, 2021, at 3:02 PM, Elizabeth Estrada wrote:

We just settled our case that had a trial date of September 27, so we are available the 28th and 29th. I will go ahead and send re-notices.

Thanks,

Elizabeth

Elizabeth Estrada
Alexander & Associates, PLC

1925 G Street

Bakersfield, CA 93301

Phone: 661-316-7888

Fax: 661-316-7890

Email: Elizabeth@Alexander-law.com

This e-mail and any attachments may contain information which is legally confidential and/or privileged. If you are not the intended recipient of this e-mail, you are hereby notified that any copying, forwarding or distribution of the e-mail is prohibited. If you have
received this e-mail in error, please notify Alexander & Associates immediately and permanently delete the e-mail from your computer and destroy any printed version.

From: Richard Jacobs
Sent: Tuesday, September 14, 2021 8:17 AM
To: Elizabeth Estrada
Cc: Shontice Yates
Subject: Re: Big Washington v. Fry

I am currently engaged in jury trial. Due to the upcoming Jewish Holidays, it is anticipated that said trial will conclude on or by September 23-24. At this point I am still holding onto the dates
related to the 28th and 29th. However, I believe it may be beneficial to discuss dates in mid October. I have another trial set to start on October 4.

Richard

On Fri, Sep 10, 2021 at 11:52 AM Elizabeth Estrada wrote:

Good morning,

Do you have any update on your upcoming trial and the availability for the depositions of Stephanie Smith, Martin Smith, and Mr. Eilenberg?

Thanks,

Liz

Elizabeth Estrada
Alexander & Associates, PLC

1925 G Street

Bakersfield, CA 93301

Phone: 661-316-7888

Fax: 661-316-7890

Email: Elizabeth@Alexander-law.com

This e-mail and any attachments may contain information which is legally confidential and/or privileged. If you are not the intended recipient of this e-mail, you are hereby notified that any copying, forwarding or distribution of the e-mail is prohibited. If you have
received this e-mail in error, please notify Alexander & Associates immediately and permanently delete the e-mail from your computer and destroy any printed version.

Page 397
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Case Info

Judge

Schuett, Stephen D. Track Judge’s New Case

Case No.

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Document Filed Date

February 03, 2022

Case Filing Date

October 05, 2017

County

Parties

ALEXANDER, WILLIAM L Attorney for the Defendant
BENHONG (AMERICA) RECYCLING CO. LTD, A CALIFORNIA LIMITED LIABILITY COMPANY Defendant
BIG WASHINGTON, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY Plaintiff
EILENBERG, BENJAMIN A Attorney for the Plaintiff
FIFTH DISTRICT COURT OF APPEAL Non-party
JACOBS, RICHARD B Attorney for the Plaintiff
PALLA, ALISYN J Attorney for the Defendant
RUTH M. FRY AS TRUSTEE OF THE T & R FRY FAMILY TRUST Defendant
THOMAS H. FRY AS TRUSTEE OF THE T&R FRY FAMILY TRUST Defendant
Elizabeth Estrada Attorneys for Defendants
John McCroskey Attorney
John Richardson Attorney
Josiah Neeper Attorney
Charles Melton Attorney
Drevet Hunt Attorneys for Plaintiffs
Tatiana Gaur Attorneys for Plaintiffs
Stephen Holzer Attorneys for Defendants
Hannah Sweiss Attorneys for Defendants

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Motion,Ex Parte: BIG WASHINGTON, LLC VS FRY ET AL

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Parties