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Kevin R. Martin (176853)
MARTIN APC
A Professional Law Corporation y}
1939 Harrison Street, suite 29o
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*
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V ‘
Oakland, CA 94612 355919549332;qu
€53
”J “93 L
510-444-7600 Phone
‘
‘“W
kevin@martinapc.com ""SIfiB’ABTEEE
Attorneys for Third Party
mmeU‘I-bOJMA
McAfee Capital, LLC
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
GIBRALTAR SSI, LLC, a Delaware Case No. 1-12-CV-230686
limited liability company,
Plaintiff, DECLARATION 0F ERIC MCAFEE IN
OPPOSITION TO JUDGMENT CREDITOR
v. GIBRALTAR SSI, LLC’S EX PARTE
APPLICATION FOR ORDER T0 SHOW
ROBERT COMES, an individual, ERIC CAUSE RE CONTEMPT AND SANCTIONS
MCAFEE, and individual,
Defendants.
Date: July 8, 2015
Time:
Dept.:
3:30
1
pm. BY FAX
Judge: I-lon.Peter Kirwan
NNNMNNNMNA—AAA-x—L-a—x—LA
I, Eric McAfee
mNOUm-hWN—‘OtomNmm-th—‘O
declare:
1. Iam a judgment debtor in this proceeding and submit the following in opposition
to judgment creditor Gibraltar SSI, LLC (“Gibraltar”) ’s Ex Parte Application for Order To
Show Cause Re Contempt and Sanctions.
2. Iam amanaging member of McAfee Capital, LLC but I have a very limited role
in the business operations. Paul Schroeder, Lee Fogal, Barbara Hall, Adam McAfee and Jill
Hayadashi, among others, are and have been executives, accountants, paralegals, and
administrative staff for McAfee Capital since itsfomation in 2003.
RMRTIN APC
OAKLAN DMWANTON
MCAFEE DECLARATION
Case No.: 1-12-CV—230686
3. Ido not have direct access to the financial records of McAfee Capital. I do not
have direct online access to the bank accounts of McAfee Capital, nor receive or process the mail
for McAfee Capital. I do not generally review invoices, approve payments, sign checks or
originate wire transfers for payments made by McAfee Capital and I do not make the tax
payments due from McAfee Capital.
(OGVQO‘I-th—I
I also do not arrange payments on loans made by McAfee
Capital from P2 Capital. Mougins Capital (aDBA of Paul Schroeder), American Express, Visa
or other lenders to McAfee Capital.
4. Eric McAfee does not manage the escrowed cash and share certificates held by
McAfee Capital on behalf of third parties including Mougins Capital, P2 Capital and many
others in McAfee Capital's regular and proper role as escrow agent for third party investors.
5. Ihave reviewed Gibraltar’s Application, including the Receiver’s Report No. 4
(See Exhibit E to Declaration of Ryan M. Penhallegon) and his remarks as to certain payments
made from the McAfee Capital business account.
6. With respect to Note 1, thisaccount was established prior to formation of McAfee
Capital, LLC and so bears the old
it still name “Eric A. McAfee Business Checking.” The
NNNNNNNNM&—I—A—x—s—A—x—‘—\_s
account is used for oflice supplies and miscellaneous
memAwN—‘OOmVO‘Jm-hQM—AO
items necessary for McAfee Capital
operations. This issue has been raised several times by Gibraltar and the answer isthe same as it
was then. Funds paid out of this account are drawn from the 75% of Aemetis salary earned by
Eric McAfee that isexempt from creditor claims under California state law (CCP § 706.050).
7. With respect to Note 2, thepayments directed to the mortgage service center
handling the property at 22040 Mount Eden Road in Saratoga, California, were made at the
request of and for the benefit of P2 Capital LLC. P2 Capital has lent money to McAfee Capital
at various times since 2006. P2 Capital also has a $3.2 million lien on the Saratoga property as
0f July 2012. The payments identified under Receiver’s Note 2 are payments that McAfee
MARTIN AFC
OAmxn/PLEASANTON
MCAFEE DECLARATION
Case No.2 l-lZ-CV—230686
Capital has been consistently making on behalf of and to the benefit of P2 Capital to pay off its
loan obligations and to protect P2 Capital’s security interest in the Saratoga property.
8. With respect to Note 3, these payments are small payroll amounts paid to
employees of McAfee Capital, LLC at the minimum wage rate for the sole purpose of providing
these employees with medical insurance, including Paul Schroeder,
(OWVQU'IAOONA
Lee Fogal and Eric McAfee.
The amount paid from this account to Eric McAfee is specifically taken from personal funds
from the Aemetis salary to pay himself a minimum wage in order to obtain medical insurance
under a group policy. These expenditures are referenced as “Payroll Service Eric A. McAfee” as
a holdover from the prior business arrangement before McAfee Capital, LLC was formed in
2003. The payment of salary by Aemetis to Eric McAfee asjudgment debtor is specifically
allowed under California state law (Cal. Code Civ. Proc. §706.050).
9. With respect to Note 4, the payments identified by the Receiver are taken from
direct deposit of Mr. McAfee‘s exempt salary from Aemetis into the business checking account.
All of these items are either payments by McAfee Capital t0 P2 Capital under the $3.2 million
promissory note from 2006, or are payments of Aemetis salary that are exempt from claim by
Gibraltar under the California Wage Gamishment limitations (Cal. Code Civ. Proc. §706.050)
methN—‘Ommflmmhww—‘O
NNNNNNMMNA—x—x—A—AAAA—LA
I declare under penalty of perjury under the laws the state of California that
the foregoing is true and correct. Executed this Em da f JuneflOlS, in
talc California.
Eric McAfee ‘
/
MARTIN AFC
OAKLAND/PLHSANTON
MCAFEE DECLARATION
Cme No.1 l-lZ-CV-230686
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PROOF 0F SERVICE”
I,Kevin R. Martin, declare: 7,355 JUN 2b p 23 Ln
APC,
Iam over
1939 Harrison
18 years of age and not a party to this actlgm..k
Suite 290, Oakland, CA 94612.
M
Oath
basin qsgglggfifs'1s MARTIN
"
elow, Iserved
Street, gséffim
the within: _-¢ ,-
(Dmflmm-bCON—i
DECLARATION OF ERIC MCAFEE \\
on the parties in this action as listed below:
Heinz Binder
Hein bindermalter.com
Wendy W. Smith
Wendy@bindem1alter.com
Ryan M. Penhallegon
Ryan@bindermalter.com
BINDER & MALTER, LLP
2775 Park Ave.
Santa Clara, CA 95050
Tel. (408) 295-1700
Fax (408) 295-1531
Attorneysfor PlaintiflGibralz‘ar SS1, LLC
[X](By U.S. Mail) I enclosed the document in a sealed envelope or package addressed to the
person(s) listed above by placing the envelope for collection and mailing, following ordinary
business practices. I am readily familiar with this business’ practice for collection and
processing correspondence for mailing. On the same day that correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the United States
Postal Service, in a sealed envelope with postage fully prepaid.
[] (By Facsimile) Based on an agreement of the parties to accept service by fax transmission, I
faxed the document to the persons at the fax numbers listed above. No error was reported by the
fax machine that I used.
mVODO'IAWN—\OCOQ\IOHO1AOON—\O
NNNNMMNNNAAQJAAAAAA
D (By Overnight Delivery) I enclosed the document in an envelope or package provided by an
overnight delivery carrier and addressed to the persons at the addresses listed above. I caused
the envelope or package for collection and overnight delivery at an office or a regularly utilized
drop box of the overnight delivery carrier.
[I (By Email) Based on a court order or an agreement of the parties to accept service by
electronic transmission, I caused the documents to be sent to the persons at the electronic
notification addresses listed above.
I declare under penalty of perjury that the foregoing istrue and correct and that this declaration
was executed on June 26, 2015, at Oakland, California. \
‘
Kevin R. Martin
MAR11N APC
DAKLANDIPLEAMNTON
PROOF OF SERVICE I
Case No.: 1-12-CV-230686
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Kevin R. Martin (176853) MARTIN APC A Professional Law Corporation y} 1939 Harrison Street, suite 29o “g _ * I . , V ‘ Oakland, CA 94612 355919549332;qu €53 ”J “93 L 510-444-7600 Phone ‘ ‘“W kevin@martinapc.com ""SIfiB’ABTEEE Attorneys for Third Party mmeU‘I-bOJMA McAfee Capital, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA GIBRALTAR SSI, LLC, a Delaware Case No. 1-12-CV-230686 limited liability company, Plaintiff, DECLARATION 0F ERIC MCAFEE IN OPPOSITION TO JUDGMENT CREDITOR v. GIBRALTAR SSI, LLC’S EX PARTE APPLICATION FOR ORDER T0 SHOW ROBERT COMES, an individual, ERIC CAUSE RE CONTEMPT AND SANCTIONS MCAFEE, and individual, Defendants. Date: July 8, 2015 Time: Dept.: 3:30 1 pm. BY FAX Judge: I-lon.Peter Kirwan NNNMNNNMNA—AAA-x—L-a—x—LA I, Eric McAfee mNOUm-hWN—‘OtomNmm-th—‘O declare: 1. Iam a judgment debtor in this proceeding and submit the following in opposition to judgment creditor Gibraltar SSI, LLC (“Gibraltar”) ’s Ex Parte Application for Order To Show Cause Re Contempt and Sanctions. 2. Iam amanaging member of McAfee Capital, LLC but I have a very limited role in the business operations. Paul Schroeder, Lee Fogal, Barbara Hall, Adam McAfee and Jill Hayadashi, among others, are and have been executives, accountants, paralegals, and administrative staff for McAfee Capital since itsfomation in 2003. RMRTIN APC OAKLAN DMWANTON MCAFEE DECLARATION Case No.: 1-12-CV—230686 3. Ido not have direct access to the financial records of McAfee Capital. I do not have direct online access to the bank accounts of McAfee Capital, nor receive or process the mail for McAfee Capital. I do not generally review invoices, approve payments, sign checks or originate wire transfers for payments made by McAfee Capital and I do not make the tax payments due from McAfee Capital. (OGVQO‘I-th—I I also do not arrange payments on loans made by McAfee Capital from P2 Capital. Mougins Capital (aDBA of Paul Schroeder), American Express, Visa or other lenders to McAfee Capital. 4. Eric McAfee does not manage the escrowed cash and share certificates held by McAfee Capital on behalf of third parties including Mougins Capital, P2 Capital and many others in McAfee Capital's regular and proper role as escrow agent for third party investors. 5. Ihave reviewed Gibraltar’s Application, including the Receiver’s Report No. 4 (See Exhibit E to Declaration of Ryan M. Penhallegon) and his remarks as to certain payments made from the McAfee Capital business account. 6. With respect to Note 1, thisaccount was established prior to formation of McAfee Capital, LLC and so bears the old it still name “Eric A. McAfee Business Checking.” The NNNNNNNNM&—I—A—x—s—A—x—‘—\_s account is used for oflice supplies and miscellaneous memAwN—‘OOmVO‘Jm-hQM—AO items necessary for McAfee Capital operations. This issue has been raised several times by Gibraltar and the answer isthe same as it was then. Funds paid out of this account are drawn from the 75% of Aemetis salary earned by Eric McAfee that isexempt from creditor claims under California state law (CCP § 706.050). 7. With respect to Note 2, thepayments directed to the mortgage service center handling the property at 22040 Mount Eden Road in Saratoga, California, were made at the request of and for the benefit of P2 Capital LLC. P2 Capital has lent money to McAfee Capital at various times since 2006. P2 Capital also has a $3.2 million lien on the Saratoga property as 0f July 2012. The payments identified under Receiver’s Note 2 are payments that McAfee MARTIN AFC OAmxn/PLEASANTON MCAFEE DECLARATION Case No.2 l-lZ-CV—230686 Capital has been consistently making on behalf of and to the benefit of P2 Capital to pay off its loan obligations and to protect P2 Capital’s security interest in the Saratoga property. 8. With respect to Note 3, these payments are small payroll amounts paid to employees of McAfee Capital, LLC at the minimum wage rate for the sole purpose of providing these employees with medical insurance, including Paul Schroeder, (OWVQU'IAOONA Lee Fogal and Eric McAfee. The amount paid from this account to Eric McAfee is specifically taken from personal funds from the Aemetis salary to pay himself a minimum wage in order to obtain medical insurance under a group policy. These expenditures are referenced as “Payroll Service Eric A. McAfee” as a holdover from the prior business arrangement before McAfee Capital, LLC was formed in 2003. The payment of salary by Aemetis to Eric McAfee asjudgment debtor is specifically allowed under California state law (Cal. Code Civ. Proc. §706.050). 9. With respect to Note 4, the payments identified by the Receiver are taken from direct deposit of Mr. McAfee‘s exempt salary from Aemetis into the business checking account. All of these items are either payments by McAfee Capital t0 P2 Capital under the $3.2 million promissory note from 2006, or are payments of Aemetis salary that are exempt from claim by Gibraltar under the California Wage Gamishment limitations (Cal. Code Civ. Proc. §706.050) methN—‘Ommflmmhww—‘O NNNNNNMMNA—x—x—A—AAAA—LA I declare under penalty of perjury under the laws the state of California that the foregoing is true and correct. Executed this Em da f JuneflOlS, in talc California. Eric McAfee ‘ / MARTIN AFC OAKLAND/PLHSANTON MCAFEE DECLARATION Cme No.1 l-lZ-CV-230686 77"“. ’7‘ "‘4" “‘1 ‘9'- ,~EI§ L 3; ”‘4 y 3H \‘a 2““! T: . _ ' .: ,1; PROOF 0F SERVICE” I,Kevin R. Martin, declare: 7,355 JUN 2b p 23 Ln APC, Iam over 1939 Harrison 18 years of age and not a party to this actlgm..k Suite 290, Oakland, CA 94612. M Oath basin qsgglggfifs'1s MARTIN " elow, Iserved Street, gséffim the within: _-¢ ,- (Dmflmm-bCON—i DECLARATION OF ERIC MCAFEE \\ on the parties in this action as listed below: Heinz Binder Hein bindermalter.com Wendy W. Smith Wendy@bindem1alter.com Ryan M. Penhallegon Ryan@bindermalter.com BINDER & MALTER, LLP 2775 Park Ave. Santa Clara, CA 95050 Tel. (408) 295-1700 Fax (408) 295-1531 Attorneysfor PlaintiflGibralz‘ar SS1, LLC [X](By U.S. Mail) I enclosed the document in a sealed envelope or package addressed to the person(s) listed above by placing the envelope for collection and mailing, following ordinary business practices. I am readily familiar with this business’ practice for collection and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. [] (By Facsimile) Based on an agreement of the parties to accept service by fax transmission, I faxed the document to the persons at the fax numbers listed above. No error was reported by the fax machine that I used. mVODO'IAWN—\OCOQ\IOHO1AOON—\O NNNNMMNNNAAQJAAAAAA D (By Overnight Delivery) I enclosed the document in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed above. I caused the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. [I (By Email) Based on a court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed above. I declare under penalty of perjury that the foregoing istrue and correct and that this declaration was executed on June 26, 2015, at Oakland, California. \ ‘ Kevin R. Martin MAR11N APC DAKLANDIPLEAMNTON PROOF OF SERVICE I Case No.: 1-12-CV-230686