No Value: CAPITAL EQUITY MANAGEMENT GROUP INC VS SWANGER, STEVEN A

On February 03, 2017 a No Value was filed involving a dispute between Capital Equity Management Group Inc, and Brenda Gillum, Carter, Mary Rose, Carter, William Keith, Castleberry, George, Castleberry, Richard, Clements, Jamee Lynn, Clements, Rick, George Castleberry, Gillum, Brenda, Jamee Lynn Clements, Kenneth A Swanger, Mark Tillotson, Mary Rose Carter, Norcal Redevelopment Corp, Northcutt, Richard, Northern California Investments Lp, Richard Castleberry, Richard Northcutt, Rick Clements, Steven A Swanger, Swan Construction, Swanger, Kenneth A, Swanger Properties Llc, Swanger, Steven A, Swan Investments Inc, Tillotson, Mark, William Keith Carter, for Fraud: Unlimited in the District Court of Stanislaus County.

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Michael J. Dyer SBN 109297
Dustin J. Dyer SBN 274308 I
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DYER LAW FIRM W." '
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5250 Claremont Ave., Ste. 119
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Stockton, CA 95207
Attorney for Plaintiffs, CEMG 25H Hm 2L1 D 12: 2Q
(209) 472—3668; FAX 472-3675
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Email: ddyer@dyerlawﬁnn.c0m CL:
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IN AND FOR THE COUNTY OF STANISLAUS

CAPITAL EQUITY MANAGEMENT Case No.: 2023519
GROUP, INC.
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PLANTIFF’S Pom'rs AND »

AUTHORITIES IN OPPOSITION To
vs. MOTION To STAY DISCOVERY
STEVEN. A. SWANGER; KENNETH A.
SW—ANGER; BRENDA GILLUM; RICK
CLEMENTS; SWAN CONSTRUCTION; Date: April 7, 2017
SWAN INVESTMENTS, INC; SWANGER Time: 8:30am
PROPERTIES, LLC; NORTHERN Dept: 21
CALIFORNIA INVESTMENTS, L.P.;
NORCAL REDEVELOPMENT CORR;
RICHARD CASTLEBERRY, GEORGE
CASTLEBERRY; JAMIE LYNN CLEMENTS;
MARY ROSE CARTER; WILLIAM KEITH
CARTER; MARK TILLOTSON, RICHARD
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NORTHCUTT and DOES 1 TO 100, inclusive,

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Defendants

I.INTRODUCTION
The Department 0f Justice has inserted themselves in the present litigation and seeks to

obtain a discovery stay based upon their never ending illogical perceived fear that civil discovery

will jeopardize their criminal litigation regarding properties that are unrelated to the present case.

At ﬁrst blush itmay appear that the criminal case and the present civil case are similar due to the

fact that they are both involve the buying and selling of houses. However, with closer

investigation, the federal criminal case isquite dissimilar to the present litigation. The parties are

PLAINTIFF’S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY
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‘not the same, the properties are completely different, the allegations are completely different.

This opposition will provide substantial evidence showing that a discovery stay is not proper in

the current litigation, serves no public interest and protects no person or entity. Finally, although

the Justice Department has repeatedly stated in conclusory fashion that this civil case will

somehow interfere with their current opposition to Andrew Katakis’s Motiou for a New Trial in
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the criminal action they have failed to provide a single fact, statute or case that supports their

position.

II. FACTUAL BACKGROUND
On December 7, 201 1,the government ﬁled an indictment alleging bid-rigging and mail—

fraud conspiracies against Andrew B. Katakis (hereinafter “Katakis”) and other individuals.

(Declaration of Michael J. Dyer (“Dyer Declaration”) 1H). The Indictment charged the

defendants with conspiring t0 rig bids at public real—estate foreclosure auctions held in San

Joaquin County, California from September 2008 to October 2009. (Id). At n0 time was the

corporate plaintiff, CEMG, in this case indicted, questioned, accused or charged in the

criminal case. CEMG is a separate legal entity owned by a family trust. Additionally, at

n0 time were the real properties and auctions that are the subject 0f this civil action part 0f

the criminal case. Finally, all 0f the defendants in this civil case have been either tried,

convicted and sent t0 prison, 0r they were never charged and the statute 0f limitations to

charge them has passed. The sole basis for the government’s interference in this civil

matter is to cover-up their terrible error in judgment in failing to charge the admitted ring-

leader 0f the bid rigging process, STEVEN A. SWANGER, in order t0 charge the victim 0f

the bid rigging, Andrew Katakis. This blunder has resulted in the chief prosecutor 0f the

criminal case resigning and STEVEN A. SWANGER escaping justice due t0 the statute of
limitations.

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PLAINTIFF’S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY
March 11, 2014, a criminal jury found Katakis guilty ofthe bid-rigging and obstruction-

of-justice charges but was unable to reach a verdict on the mail—ﬁaud charge. (Id. at 112).On May

9,201 5, Criminal Federal Judge William B. Shubb set aside the jury’s conviction on the

obstruction ofjustice charge. (Id.). On June of 2014, Katakis’ criminal counsel ﬁled a motion for

new trial under Federal Rule of Criminal
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Procedure 33. This motion was based upon several

factors, including, but not limited to, 1) the DOJ’s use of false evidence, 2) improper jury

instructions, and 3) Katakis’ trial counsel’s failure to provide competent representation at trial.

(Id.).On March 20, 2017, all discovery and brieﬁng on the new trial motion was completed and

ﬁled. A true and correct copy of this Motion is attached to plaintiﬁ‘s Request for Judicial Notice
ﬁled herewith.

In total, the DOJ and criminal defendants had over 5 years to participate in written

discovery, talk to potential witness, take depositions, subpoena records, acquire declarations and

participate in other forms of discovery.

On October 3 1, 2016, the criminal litigation held a hearing in the Honorable William B.

Shubb’s Court. During this hearing, Plaintiff’s civil counsel expressed his concerns regarding the

DOJ’s repeated representations that the Federal Criminal Court, and in particular Judge Shubb,

CEMG.
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did not want civil discovery to proceed in any civil litigation involving In response to

these concerns, Judge Shubb states that he doesn’t “recall entering an order staying the State
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court case.” (Pg. 29 1n 22-23 of Exhibit 1 to the Declaration ofMichaeI J. Dyer). After an

explanation by both sides regarding the staying of civil discovery, Judge Shubb stated “there are

no motions 0r objections before me on this subject. I don’t render abstract opinions.” (Pg. 32 1n.

21-23 of Exhibit 1 to the Declaration of Michael J.Dyer). Judge Shubb concluded the healing by

stating “I’m not part 0f the civil action.”

In February of 2017, Capital Equity Management Group, Inc. (“Plaintiff”) ﬁled the

present lawsuit. In the lawsuit, Plaintiff alleged that Defendants committed several wrongful acts

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PLAINTIFF'S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY
in relation to the purchase 0f numerous properties in several counties, including Stanislaus

County. (Declaration of Michael J. Dyer 1H). It is important t0 note that none 0f the

properties which are the subject of the current civil litigation were in any way related t0

the properties which were the subject 0f the federal criminal case. Additionally, none ofthe

parties in the present litigation were parties to the criminal litigation. The current complaint
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alleges that several defendants conspired t0 defraud Plaintiff of money and property and used an

elaborate scheme to complete such wrongful acts.

III. LEGAL ARGUMENT
A. THE BALANCING TEST ARTICULATED IN MOLINARO DOES NOT
SUPPORT A STAY OF DISCOVERY IN THE PRESENT CASE.
In support of their motion for stay, the DOJ relied 0n Federal Savings and Loan

Insurance Corporation v. John Molinaro (1989) 889 F.2d 889. In Molinaro, Defendant Molinaro

and his partner Mangano purchased a savings and loan company, Ramona Savings and Loan

Association (“Ramona”). Molinaro, then bought out Mangano in order to own 100% of Ramona.

Molinaro then sold Ramona to Donald Stump, who quickly liquidated the company. Ramona

was determined t0 be insolvent and Plaintiff, Federal Savings and Loan Insurance Corp.

(“FSLIC”) was appointed as the receiver. FSLIC ﬁled a civil complaint against Molinaro.

Shortly thereafter, Molinaxo
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was investigated by the FBI. Molinaro then moved the civil court to
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stay all discovery until conclusion 0f the criminal trial.The civil tn'al court denied Molinaro’s

request. Molinaro appealed. The appellate court stated that “while a district court may stay

proceedings pending the outcome of parallel criminal proceedings, such action is not required

by the Constitution. (Id at 902, citing Securities & Exchange Commission v.Dress Industries

(1980) 202 App. D.C. 345,628). The appellate court then articulated a balancing test to

determine whether a discovery stay was appropriate.
“Obviously, a court should consider the extent to which the defendant's Fifth
Amendment rights are implicated. (cite omitted) Other factors a court should
consider will vary according t0 the case itself,but generally will include: (1) the

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PLAINTIFF'S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY
interest 0f the plaintiffs in proceeding expeditiously with this litigation or any
particular aspect 0f it,and the potential prejudice to plaintiffs 0f a delay; (2) the
burden which any particular aspect 0f the proceedings may impose on defendants;
(3) the convenience 0f the court in the management of its cases, and the efﬁcient
use ofjudicial resources; (4) the interests 0f persons not parties to the civil
litigation; and (S) the interest of the public in the pending civil and criminal
litigation.” (Molinaro at pg. 902).

The appellate court determined that the trial court correctly weighed all factors in denying

Molinaro’s motion for a stay and determined that despite concems regarding Molinaro’s Fifth
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Amendment rights, a denial was appropriate because “FSLIC would be prej udiced by delay ...,

the action had been pending for a year, and the court had an interest in clearing its docket; and

the interests 0f nonparties. ..would be frustrated by further delay.” (Id). There is n0 case

anywhere that states when the government is the palty seeking the stay a different test applies.

In the present litigation, the facts which support the denial of the motion t0 stay are more

apparent than those in Molinaro. Therefore, The DOJ’s primary legal authority which they used

to support their stay argument actually provides 110 factual 0r legal support for a stay. The factors

which support the removal 0f a discovery stay are as follows:

1) There are n0 Fifth Amendment concerns in the present litigation
2) The parties are different
3) The time and location are different.
4) Plaintiffwould be irreparably damaged by a further delay in discovery.
5) A further stay impairs the Court’s ability to provide efﬁcient judicial services
6) Interests 0f Non-Parties to the Civil Litigation are unaﬁ'ected.
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7) The Federal Court has not expressed an interest in establishing a discovery stay.
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l. The Department of Justice has n0 Fifth Amendment rights t0 protect by use of a
discovery stay.

In the Molinaro case, the chief concern of the court was the protection of the criminal

defendant’s Fifth Amendment right and what effect civil discovery will have on criminal

defendant’s rights. In the present civil litigation, this is not a concern. The DOJ is the prosecutor

in the criminal litigation and therefore has no Fifth Amendment rights wlgich must be protected.

The fate of all defendants in this action has been ﬁnally determined. The only person with any

Fifth Amendment concerns is Andrew Katakis. This civil action would potentially only help the

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PLAINTIFF’S POINTS AND AUTHORITIES [N OPPOSITION TO MOTION FOR DISCOVERY STAY
government obtain discovery against him. A11 of the other individuals in the criminal litigation

have been sentenced 0r agreed to plea deals (which the exception 0f Don Parker, who is not a

party to the civil litigation and Plaintiff’s will agree not to direct any discovery towards Mr.

Parker while the criminal case continues to be pending). As such, there isno pending Fifth

Amendment concerns. Therefore, the main concern in the Molinaro case isnot present in the
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current civil litigation. This provides substantial weight that a discovery stay is inappropriate in

the present case. Most importantly should Mr. Katakis’ Motion for a New Trial be denied

he will be in prison making his participation in the civil action near impossible.

2. None 0f the parties in the Civil Litigation were parties t0 the Criminal Litigation.
Many of the parties to the Civil Litigation did not even testify in the Criminal
Litigation.

Plaintiff in the present litigation isCEMG, a California CorporationMichael Tims is the

president of CEMG. (Dyer Declarationﬂ 2.). CEMG or Tims were not named as a party in the
criminal litigation and r10 ﬁnes were sought against CEMG as a corporation. (Dyer Declaration 11

2). Defendants Steven Swanger, Kenneth Swanger, and Rick Northcutt allwere witnesses who

testiﬁed at the criminal litigation, and their fate in the criminal action is complete due t0 being in

prison or the statute of limitations. (Dyer Declaration 1]3). Defendants Brenda Gillum, Swan

Construction, Swan Investments, Inc., Swangcr Properties, LLC; Northern California
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Investments, L.P., Norcal Redevelopment Corp. Richard Castleberry, George Castleberry, Jamie
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Lynn Clements, Mary Rose Carter, William Keith Carter, Mark Tillotson and Rick Clements

were neither witnesses nor parties to the criminal litigation. (Dyer Declaration 1]3).

Andrew Katakjs, Wiley Chandler, Donald Parker, Anthony Joaquim, W. Theodore

Longley and the US Government were the only parties named in the Criminal Litigation due to

plea arrangements. (Dyer Declaration 1] 3). Itshould be noted that Andrew Katakis did serve as

president 0f CEMG for a pedod 0f time; however, Katakis has since stepped down as president

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PLAINTIFF’S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY
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in 2013 and Michael Tims now runs CEMG and in turn is CEMG’s representative in the present
litigation.

Unlike in Molinaro, the panics in the criminal and civil case do not overlap. The vast

maj ority 0f the civil parties were not involved in the criminal litigation in any manner. As such,

this must provide weight in favor 0f denying the DOJ’s stay 0n discovery.

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i. The Subject Matter Is Dissimilar

The present litigation focuses 0n the events surrounding the purchase of numerous

properties in a variety of counties. The DOJ failed to acknowledge in their moving papers that

none 0f the properties which are the subj ect of the current litigation were discussed at all during

the criminal trial. The DOJ, attempted t0 tenuously link the criminal trial to the civil litigation by

stating that although none 0f the properties are the same, both cases involve the buying and

selling 0f houses. This argument lacks any legal or common sense support. Investigating causes

0f action regarding the properties which were in no way related t0 the criminal action cannot be

assumed to interfere with the criminal action. This issimply a red herring argument created by

DOJ t0 achieve their goal of a discovery stay in order t0 cover up their blunder.
3. The Time Periods are Dissimilar

The criminal trial involved bid rigging “between September 2008 and October 2009.” (DOJ
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Points and Authorities in Support 0f Motion to Stay Pg. 3 Ln. 17-18). In contrast, Plaintiff’s civil
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litigation involves the purchases ofproperties ﬁ'om 2009 t0 2013 With the vast majority 0f the

properties being purchased after 2009. Additionally, the vast maj ority of the properties in the

civil litigation were purchased in counties other than San Joaquin County. While, the criminal

litigation involved properties solely in San Joaquin County. Therefore, it cannot be argued that

the actions which are the subject matter of the civil litigation are in any way similar in time or

location to the subj cct matter of the criminal litigation.

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PLAINTIFF’S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY
4. Plaintiff has a signiﬁcant interest in the proceeding expeditiously with this litigation
and will irreparably prejudiced by a delay

The complaint in the present civil litigation was ﬁled in February of 2017 and relates to

actions which occurred as far back as 2009. As the Court isaware, Plaintiff’s complaint alleges

that essentially Defendants made misrepresentations to Plaintiff in order to acquire assets and

then proceeded t0 hide these assets from Plaintiff. Allowing discovery to be stayed provides
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Defendants ample opportunity to further cover their tracks regarding the assets that they have

hidden and to hide new assets in order t0 protect themselves from an eventual judgement. The

maximum amount oftime an individual or entity is reguired t0 keep tax records is 7 years.

Therefore, if a stay is granted many 0f the records vita] to providing P’laintiﬁ‘s case may be

discarded 0r destroyéd prior t0 Plaintiff having an opportunity to seek such information.

Furthermore, the more time that expires the haxder it isfor the parties to conduct useful

discovery. If the Court allows the stay t0 stand, Plaintiff will likely never be able to recoup his

damages due to Defendants disposal of assets. The criminal litigation (gould take several years to

complete, thus making Plaintiffs ability to prove his case exponentially more difﬁcult. Most

importantly Katakis’ ability to assist in this civil action will be severely damaged if he is in

prison.

5. A discovery stay signiﬁcantly impairs the Court’s ability to manage its cases 0r
efﬁciently use of judicial resources
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Currently, a motion for new trial ispending in the Federal Court. Once the new trial

motion is heard, there is a distinct possibility that a complete new trial would take place and a

possibility 0f appeals after the new trial. will likely take several yéars for this entire criminal
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process to be resolved. Keeping a discovery stay until the conclusion of the criminal litigation

wbuld burden the Courts calendar and create a horde 0f discovery issues due t0 the time elapsed

from the events and when discovery would be permitted. Given the number 0f parties and the

number of properties involved, the discovery process will take over a year to complete. This long

discovery process coupled with the possibility 0f several years t0 complete the criminal litigation

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PLAINTIFF’S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY
Will most certainly impair the Court’s ability to hear the case as well as the panies’ ability to

litigate the case.

Furthermore, the DOJ’S assertion that the criminal litigation may resolve the present

litigation has no legal basis. As conceded by DOJ, the numerous properties 0f the civil litigation

are completely independent 0f the properties which are the subj ect of the criminal litigation.

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Therefore, any decision made by the criminal court regarding the criminal properties would have

n0 collateral estoppel effect 0n the determination ofthe numerous civil properties. This argument

is not just another red herring by the DOJ, it iscompletely false and pprppseﬁllly misleading. As

the Motion for New Trial in the criminal action depicts in detail, the cnmmal case exposed thé

fact that CEMG was the victim 0f a multi-million dollar scam by the SWANGERS,
NORTHCUTT, and others.

6. The interests 0f persons not parties to the civil litigation

Interests of the persons who are not parties to the civil litigation will not be eﬁ'ected

substantially by permitting discovery while the criminal post-trial appeal is pending. The DOJ’s

moving papers failed t0 identify any individual who would be effected in any way by pennitting
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discovery t0 proceed. Instead, the DOJ argued that permitting discovery to proceed would put

these unknown persons in the “untenable position of having t0 choose between asserting their

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Fifth Amendment right against seIf-incrimination, with the attendant adverse inference against

parties to civil actions” (DOJ Points and Authorities in Support ofMotién to Stay Pg. 9 Ln. 25—

27 citing Baxter v.Palmigiano, 425 US 308, 318). However, the Court in Baxter stated, “The

short of it is that permitting an adverse inference to be drawn from an [witness’s] silence at a

...proceedings is not, on itsface, an invalid practice.” (Baxter Pg. 320). Additionally, delaying

discovery will not change the potential witness’s decision whether to provide substantive

testimony 0r plead the Fifth. Even aﬁer the conclusion 0f the Katakis criminal litigation,

witnesses will face the same decision because a resolution in the Katakis criminal litigation

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PLAINTIFF'S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY
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would have n0 bearing 0n the witness’s possible Criminal liability related t0 their alleged illegal

N activities. This argument is simply a red herring by the DOJ t0 attempt to provide a false sense of

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protection to a non—existent witness in order t0 sway the Court t0 grant uphold a discovery stay.

7. The Federal Court Judge has express no interest on the presence of a stay in a civil
A litigation.

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Considering the 'DOJ’S claims regarding the potential disruption civil discovery could

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have on a criminal litigation, itwould be thought the that the federal court judge had expressed

N concerns on the subject. Instead, Judge Shubb displayed complete mdiﬁerence as t0 the effect 0f

m civil discovery in the October 3 1, 2016 hearing. As identiﬁed above, Judge Shubb stated that he

(O 29'
doesn’t “recall entering an order staying the State C01‘1rtcase.” (Pg. 1n 22-23 0f Exhibit 1 t0

O the Declaration 0f Michael J. Dyer). After an explanation by both sides regarding the staying of

civil discovery, Judge Shubb stated “there are n0 motion or objections before me on this subject.

I don’t render abstract opinions.” (Pg. 32 1n.21-23 oﬁExhibit 1 to the Declaration 0f Michael J'.

Dyer). Judge Shubb concluded the hearing by stating “I’m not part ofthe civil action.” (Pg. 33

1n.2-3 0f Exhibit 1 to the Declaration 0f Michael J. Dyer). Judge Shubb’s complete indifference

to the existence 0f a civil discovery stay shows the Court has not stated a strong interest

preventing Plaintiff from conducting discovery. Had Judge Shubb thought that civil discovery

would have a prejudicial effect on a matter in his court, he most certainly would not be so
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disinterested in the matter.

Dated: March 24, 2017 DYER LAW FIRM

By: wy¢g
Michaél J. Dypr/
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Attorneys for Plaintiff, CEMG

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PLAINTIFF'S POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR DISCOVERY STAY

Case Info

Judge

Silveira, Marie Sovey Track Judge’s New Case

Case No.

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Document Filed Date

March 24, 2017

Case Filing Date

February 03, 2017

County

Parties

BRENDA GILLUM Defendant
CAPITAL EQUITY MANAGEMENT GROUP INC Plaintiff
CARTER, MARY ROSE Defendant
CARTER, WILLIAM KEITH Defendant
CASTLEBERRY, GEORGE Defendant
CASTLEBERRY, RICHARD Defendant
CLEMENTS, JAMEE LYNN Defendant
CLEMENTS, RICK Defendant
BRUNN & FLYNN Attorney for the Defendant
BENBROOK, BRADLEY A, Esq. Attorney for the Defendant
DYER, DUSTIN J, Esq. Attorney for the Plaintiff
HENDRICKSON, KURT D, Esq. Attorney for the Defendant
PARISH, WILLIAM H, Esq. Attorney for the Defendant
SAHOTA, MAHANVIR S, Esq. Attorney for the Defendant
DYER LAW FIRM Attorney for the Plaintiff
WILLIAM H PARISH PC Attorney for the Defendant
GEORGE CASTLEBERRY Defendant
GILLUM, BRENDA Defendant
JAMEE LYNN CLEMENTS Defendant
KENNETH A SWANGER Defendant
MARK TILLOTSON Defendant
MARY ROSE CARTER Defendant
NORCAL REDEVELOPMENT CORP Defendant
NORTHCUTT, RICHARD Defendant
NORTHERN CALIFORNIA INVESTMENTS LP Defendant
RICHARD CASTLEBERRY Defendant
RICHARD NORTHCUTT Defendant
RICK CLEMENTS Defendant
STEVEN A SWANGER Defendant
SWAN CONSTRUCTION Defendant
SWANGER, KENNETH A Defendant
SWANGER PROPERTIES LLC Defendant
SWANGER, STEVEN A Defendant
SWAN INVESTMENTS INC Defendant
TILLOTSON, MARK Defendant
US DEPARTMENT OF JUSTICE Intervenor
WILLIAM KEITH CARTER Defendant
Stephen Duvernay Attorney
Gerald Brunn Attorney
Benjamin Chouka Attorney
Michael Dyer Attorneys for Plaintiffs
Kelsey Linnett Attorney
Andrew Marsh Attorney
D. Durbin Attorneys for Plaintiffs
Paul Gaus Attorneys for Plaintiffs
Jennifer Han Attorney
Elliot Peters Attorneys for Defendants
Steven Hirsch Attorneys for Defendants
Jennifer Huber Attorneys for Defendants
Elizabeth McCloskey Attorneys for Defendants
David Austin Attorneys for Defendants
Scott Ivy Attorneys for Plaintiffs
Devon McTeer Attorney
William Holcomb Attorney
Doron Weinberg Attorney
Anna Pletcher Attorney
David Ward Attorney
Paul Pfingst Attorneys for Defendants
Russell Carlberg Attorneys for Defendants
Scott Tedmon Attorney
Matthew Block Attorney
Thomas Johnson Attorneys for Defendants
Chase Meister Attorney
William Parks Attorney

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No Value: CAPITAL EQUITY MANAGEMENT GROUP INC VS SWANGER, STEVEN A

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