Preview
Filed
11 November 14 P4:43
Amalia Rodriguez-Mendoza
District Clerk
Travis District
CAUSE NO. D-1-GN-10-002408 D-1-GN-10-002408
EDSON KILIM, AN INDIVIDUAL, § IN THE DISTRICT COURT
Plaintiff,
v.
VINICIUS TAVARES, AN
INDIVIDUAL; DONALD CICIERI, AN
§
§
§
§
§ TRAVIS COUNTY, TEXAS
INDIVIDUAL; MARCO ANTONIO §
§
§
§
§
§
§
PEREIRA, AN INDIVIDUAL; and
PACIFIC SHORE STONE LLC, A
TEXAS COMPANY,
Defendants.
261st JUDICIAL DISTRICT COURT
DEFENDANTS’ MOTION TO QUASH THE DEPOSITION OF ANDRES GUIGA
TO THE HONORABLE JUDGE OF SAID COURT:
Defendants Vinicius Tavares, Donald Cicieri, Marco Antonio Pereira, and Pacific Shore
Stone, LLC (collectively, “Defendants”) file this Motion to Quash the Deposition of Andres
Guiga as follows:
MOTION TO QUASH
1. On November 10, 2011, Defendants’ counsel received a copy of Plaintiff Edson
Kilim’s (“Plaintiff's”) “Deposition Subpoena for Personal Appearance and Production of
Documents and Things in Action Pending Outside of California” (the “California Subpoena”). A
true and correct copy of the California Subpoena served upon Defendants’ counsel is attached as
Exhibit A.
2. The California Subpoena was issued by the People of the State of California to
non-party accountant Andres Guiga under the above-captioned Texas cause number.
=f3. Plaintiff did not move this Court for a letter rogatory or other device pursuant to
Texas Rule of Civil Procedure 201.1 prior to issuing the California Subpoena.
4. The deposition was unilaterally noticed without any agreement as to the date, time
or place of the deposition. Defendants’ counsel is not available for the deposition at the date,
time and place identified in the California Subpoena.
5. Defendants and Plaintiff have tentatively agreed to enter into a new scheduling
order and to postpone all depositions, including the deposition of Andres Guiga, so as to permit
the Court time to rule upon Defendants’ forthcoming motion for summary judgment. Plaintiff
has been deported twice from the United States and is barred from re-entry such that he will not
permit Defendants to take his deposition in the forum county or anywhere else within the United
States, On this basis, Defendants will be moving for summary judgment and the case may be
resolved without the additional expense of discovery. However, the parties could not reach a
written agreement within three business days following service of the California Subpoena.
6. Accordingly, pursuant to Texas Rule of Civil Procedure 199.4, Defendants object
to the date, time and place of the deposition in the California Subpoena. Because this motion is
filed within three (3) business days of the date that the California Subpoena was served on
Defendants’ counsel, this motion objecting to the deposition automatically stays the deposition
until any motion can be determined by the Court. See Tex. R. Civ. P. 199.4.
WHEREFORE, premises considered, Defendants respectfully request that the Court
order that the deposition be quashed and for such other relief, both at law and in equity, to which
Defendants may show themselves justly entitled.Respectfully submitted,
GREENBERG TRAURIG LLP
By:
Gregoty’J. Casas
Texas State Bar. No. 00787213
CasasG@gtlaw.com
Jana K. Terry
Texas State Bar No. 24003041
TerryJa@gtlaw.com
300 West 6" Street, Suite 2050
Austin, Texas 78701
Telephone: (512) 320-7200
Facsimile: (512) 320-7210
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing instrument has been forwarded to all
counsel of record in accordance with the Texas Rules of Civil Procedure on this 14th day of
November 2011.
Ji TerryBar numnber, and peldress): FOR COURT USE ONLY
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State!
\Willlam C. O'Neill / SBN 251071
Raynes and Boone, LLP
18100 Von Karman, Suite 750, Irvine, CA 92612
TALEPHONE NO: 949-202-3000 FAX NO. (Optional: 949-202-3154
E-NAIL ADORESS (Onions): william onelli@haynesboone.com
ATTORNEY FOR (Marre): Plaintiff
Court for county in which discovery Is lo be conducted:
SUPERIOR COURT OF CALIFORNIA, COUNTY oF Orange
street aporess: 700 Civic Center Drive West
MAILING ADORESS:
emry an ze cove: Santa Ana, CA 92701
arance awe: Central Justice Center
Court in which action Is pending:
Nome of Court: 261st Judicial District Court of Travis County, Texas
streeTanoress: 1000 Guadalupe, 3rd Floor
waiuna aooress: P.O. Box 1748
lciry, STATE, AND 2w cone: Austin, TX 78767
counrey: United States of America
PLAINTIFFPETITIONER: Edson Kilim
DEFENDANT/RESPONDENT: Vinicius Tavares, et al.
CALIFORNIA CASE NUMBER QV ony paskgned by court:
DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND (GABE: NUMBER ft won penn ould Calor
PRODUCTION OF DOGUMENTS AND THINGS D-1-GN-10-002408
IN ACTION PENDING OUTSIDE CALIFORNIA
‘THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and felaphone number of deponent, known):
Andres Guiga, 2812 Santa Monica Bivd., Suite 204, Santa Monica, CA 90404, 310-450-5700
4. YOU ARE ORDERED TO APPEAR IN PERSON TO TESTIFY AS A WITNESS In this action at the following date, time, and place:
Date: 11/29/14 Time: 1:00pm. Address: 43190 Van Karman Avenue Suile 750, Irvine, CA 92612
‘a. [] Asa denonent who is not a natural person, vou are ordered to designate one or more persons fo testify on your behalf as
to the matters described in item 4. (Code Clv. Proc., § 2025.230.)
b. (2) You are ordered to produce the documents and things described in item 3.
¢. This deposition will be recorded stenographically through the Instant visual display of testimony
and by [[_] audiotape videotape.
2. The personal attendance of the custodian or other qualified witness ‘and the production of the originel recards are required by this
The procedure authorized by Evidence Code sections 4560(b), 1561, and 1562 will not be deemed sufficient compliance
subpoena.
with this subpoena.
3. The documents and things to be produced and any testing or sampling being sought are described as follows:
See attachment 2
[1 Continued on Attachment 3 (use form MC-025).
4, If the witness is a representative of a business or other entily, the matters upon which the witness is to be examined are described
8s follows:
[] Continued on Attachment 4 (use form MC-026).
5. Attomeys for the parties to this action of parties without attomeys are (name, address, Jelephone number, and name of party
See atiachment 3
[1 Continued on Attachment 5 (use form MC-025). Paget of 2
Fam higietta taney DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND Saaioustezso zion toms
eubbotspiewdmvny 139 PRODUCTION OF DOCUMENTS AND THINGS 2025838 Gor Con § 0075
IN ACTION PENDING OUTSIDE CALIFORNIA EXHIBIT eA CAL
E_A
zSUBP-045
PLAINTIFF/PETITIONER: Edson Kilim CASE NUMBER:
DEFENDANT/RESPONDENT: Viniclus Tavares, et al. D-1-GN-10-002408
6. (21 Other terms or provisions from out-of-state subpoene, If any (specify):
See attachment 1
[) Continued on Attachment 6 (use form MC-026).
7. f you have been served with this subpoena as a custodian of consumer or employee records under Code of Civil
Procedures section 1985.3 or 1985.6 and a motion to quash or an objection has been served on you, a court order or
‘agreement of the parties, witnesses, and consumer or employes affected nwust be obtained before you aro required to
produce consumer or employee records.
8. At the deposition, you will be asked questions under oath. Questions and answers are recorded stenographically at the deposition;
Jatar they are transcribed for possible use at tial. You may read the written record and change any incorrect anawers before you
sign the deposition. You are entitled to receive witness fees and mileage actually traveled both ways. Tha money must be paid, at
the option of the party giving notice of the deposition, sither with service of this subpoena or at the time of the deposition. Unless the
court orders or you agree otherwise, if you are being deposed as an individual, the deposition must take place within 75 mites of
your residence. The location of the deposition all deponents is governed by Gode of Civil Procedure section 2025.250.
DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE
FOR THE SUM OF $500 AND ALL DAMAGES RESULTING F: OUR FAILURE Ti EY.
Date issued: November 4, 2011 .
(BIGNATURE OF PERSON ISSUING SUBPOENA)
William C. O'Neilt Attorney
(TYPE OR PRINT NAME) (ime)
PROOF OF SERVICE OF DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE
AND PRODUCTION OF DOCUMENTS AND THINGS
4. I served this Deposition Subpoena for Persanal Appearance and Production of Documents and Things in Action Pending Outside
California by personalty delivering a copy to the person served as follows:
a. Person served (nama):
b. Address where served:
c. Date of delivery: . Time of delivery:
e. Witness fees and mileage both ways (check one):
(1) were paid. Amount: ....-.-.--- $
(2)L_] were not pald.
(3) 1 were tendered to the witness's public enlity employer as required by Goverment Cade section 68097.2, The
amount tendered was (specify): $
f. Fee for service: ...---.-----eeeeee eee $
2. | recelved this subpoena for service on (date):
3 CO 1 also served a completed Proof of Service of Notice to Consumer or Employee and Objection {form SUBP-025)
by personally delivering a copy to the person served as described in 1 above.
4 Person serving:
a. (7) Notaregistered Caiifornia process server
pb. CL] California sheriff or marshal
e« J Registered California process server
6. LJ) Employee or independent contractor of a registered California process sarver
e [1 Exempt from registration under Business and Professions Code section 22350(b)
f. Name, address, telephone number, and, If applicable, county of registration and number.
I daciara under penalty of perjury under the laws of the State of (For California sheriff or marshal use only}
Callfomia that the foregoing is true and correct. I certify that the foregoing is true and correct.
Date: Date:
{S1ONATURED
{SIGNATURE
‘SUBPANS New Jomayt.2010 DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND
PRODUCTION OF DOCUMENTS AND THINGS
IN ACTION PENDING OUTSIDE CALIFORNIA
Page 2 ofaSHORT TITLE: CASE NUMBER:
[— Definitions for Requests for Production
ATTACHMENT (Number): 1
(This Attachment may be used with any Judicial Counci form.)
1. “Ciceri” shall mean Defendant Donald Ciceri, as well as any person or entity presently or formerly acting or
authorized to act on his behalf. .
2. “Demavi” shall mean Demavi Granitos De Brasil, Ltda, f/k/a Pacific Shore Importada ¢ Exporiadora, Ltda.
3. “Kilim” shall mean Plaintiff Edson Kilim.
4, “Pacshore-California” shall mean Pacific Shore Stone, LLC, a California company, its executives, directors,
parent companies, subsidiaries, shareholders, employees, agents, or any other person or entity presently or
formerly acting or authorized to act on its behalf and includes, but is not limited to, Pacshore — California
branch offices in Los Angeles or Bakersfield and to the extent applicable branch offices in Austin, San Antonio
or Oklahoma City.
5, "Pacshore-Texas” shall mean Pacific Shore Stone, LLC, a Texas company, its executives, directors, parent
companies, subsidiaries, shareholders, employees, agents, and includes, but is not limited to Pacshore — Texas
branch offices in Austin, San Antonio or Oklahoma City and to the extent applicable branch offices in Los
Angeles or Bakersfield.
6. “Pereira” shall mean Defendant Marco Antonio Pereira, as well as any person or entity presently or
formerly acting or authorized to act on his behalf.
7, “Partners” shall mean Ciceri, Pereira and Tavares.
8. “Tavares” shall mean Defendant Vinicius Tavares as well as any person or entity presently or formerly
acting or authorized to act on his behalf.
9. The words “and” and “or” shall be construed conjunctively or disjunctively as necessary to make the
request inclusive rather than exclusive. The use of the word “including” shall be construed without any
limitation.
10. The words “related to” or “relating to” a given subject means zeferring to, alluding to, responding to,
connected with, commenting on, in respect of, about, regarding, discussing, showing, describing, mentioning,
reflecting, analyzing, constituting, evidencing, or in any way pertinent to that certain subject.
11. As used in these Requests, the terms “document” and “documents” are intended to have their broadest
meaning and include all written, printed, typed, recorded or graphic matter of every kind and description, both
originals and copies and all attachments and appendices thereto. Without limiting the foregoing, the terms
“document” and “documents” shall include all accountings, agreements, contracts, letters, communications,
messages, memos, records, reports, any records of telephone conversations, summaries or any other records of
conversations, notes or other records of meetings and conferences, diaries, diary entries, calendars,
appointment books, consultants’ reports, bills, statements, print or other forms of advertisements, files, checks,
canceled checks, however and by whomever produced, prepared, reproduced, disseminated or made, The term.
“document” also includes all data (including metadata) stored in electronic form or accessible through
computer or other information retrieval systems, together with instructions and all other materials necessary to
use or interpret that data.
12. As used in this Request, the terms “document” and “documents” also include (i) copies of documents upon
which notations or writings appear that are not present on the originals or other copies of such documents
including drafts and (ii) electronically stored data and information that would otherwise be responsive to any
request for production set forth below. A document is deemed to be in your custody if you have possession of
the document ot have the right to secure such document from another person having possession of the
document.
{if the item that this Attachment concems is made under penalty of perjury, all statemanis in this Pago 1 of 2
“ a (Add pages as. required)
Pome Seed ct Gomme ATTACHMENT wevonrtntocagoe
MC-225 JRev. sudy 4, 2008] to Judicial Council FormMC-025
SHORT TITLE: CASE NUMBER:
| Definitions for Requests for Production (cont.)
ATTACHMENT (Number): 1
(This Attachment may be used with any Judicial Councit form.)
13. As used in this Request, the term “communication” includes, without limitation of its generality,
statements, discussions, conversations, speeches, meetings, remarks, questions, answers, whether written or
oral. The term includes, without limitation of its generality, both communications and statements which are
face-to-face and those which are transmitted by telephones.
(Of the iter thet this Attachment concems is made under penalty of perjury, all statements in this Page 2 af 2
are f ty of perjury.) {Add pages as required}
ATTACHMENT wwe courtdo.ca.gav
[ees
C025 [Rev ly 4, 2005} to Judicial Council FormMC-025
SHORT TITLE: CASE NUMBER:
| Requests For Production
ATTACHMENT (Number): 2
{This Attachment may be used with any Judicial Council form.)
Request No. 1: All valuations of Pacshore-California performed by Pacshore-California, Pacshore-Texas,
Pereira, Ciceri or Tavares relating to and covering the period from January 1, 2007 through July 31, 2008.
Request No. 2: Alll valuations of Pacshore—California performed by any accountant ar appraiser on behalf of
Pacshore-California, Pacshore-Texas, Pereira, Ciceri or Tavares relating to and covering the period from
. January 1, 2007 through July 31, 2008.
Request No. 3: Ail valuations of Pacshore-California performed by Andres Guiga on relating to and covering
the period from January 1, 2007 through July 31, 2008.
Request No. 4: All valuations of Pacshore-Texas performed by Pacshore-Texas, Pacshore—California, Pereira,
Ciceri or Tavares. relating to and covering the period from January 1, 2007 through July 31, 2008.
Request No. 5: All valuations of Pacshore-Texas performed by any accountant or appraiser on behalf of
Pacshore — Texas, Pacshore—California, Pereira, Ciceri or Tavares relating to and covering the period from
January 1, 2007 through July 31, 2008.
Request No. 6: All valuations of Pacshore-Texas performed by Andres Guiga relating to and covering the
period from January 1, 2007 through July 31, 2008.
Request No. 7: Copies of sales, capital, and operating budgets for each branch office of Pacshore-California
and Pacshore-Texas (monthly, quarterly and annual consolidated) for the period of January 1, 2007 through
July 31, 2008.
Request No. 8: Reports of CPAs or other auditors prepared for or on behalf of Pacshore-California and
Pacshore-Texas with respect to the period of January 1, 2007 through July 31, 2008.
Request No. 9: Reports of Andres Guiga prepared for or on behalf of. ‘Pachsore-California and Pacshore-Texas
with respect to the period of January 1, 2007 through July 31, 2008.
Request No.10: The monthly and quarterly sales reports for Pacshore-California and Pacshore-Texas from
January 1, 2007 through July 31, 2008.
Request No.11: The monthly and quarterly receivables reports for Pacshore-California and Pacshore-Texas
from January 1, 2007 through July 31, 2008. :
Request No. 12: The monthly and quarterly accounts payable reports for Pacshore—Caltformia and
Pacshore-Texas from January 1, 2007 through July 31, 2008.
Request No. 13: The monthly bank statements for Pacshore-Califomia and Pacshore-Texas from January 1,
2007 through July 31, 2008.
Request No. 14: The balance sheets (monthly, quarterly and annual consolidated) for Pacshore—California and
Pacshore-Texas from January 1, 2007 through July 31, 2008.
{if the item thet this Attachment concerns Is made under penalty of perjury, ail statements in this Page 1 of 2
Alta ae f ty of perjury) (Add pages as required)
"RAS Coen of Galera ATTACHMENT rma a
ME-025 Rev. duly 4, 2008] to Judicial Gouncil FormMC-025
SHORT TITLE: CASE NUMBER:
| Requests for Production (cont.)
ATTACHMENT (Number): 2
(This Attachment may be used with any Judicial Council form.)
Request No. 15: The income/loss Statements (monthly, quarterly and annual consolidated) for Pacshore—
California and Pacshore-Texas from January 1, 2007 through July 31, 2008.
Request No. 16: The cash flow Statements (monthly, quarterly and annual consolidated) for
Pacshore-Califomia and Pacshore-Texas from January 1, 2007 through July 31, 2008.
Request No. 17: The monthly and quarterly materials on consignment reports for Pacshore—California and
Pacshore-Texas from January 1, 2007 through July 31, 2008.
Request No, 18: The monthly and quarterly current inventory reports for Pacshore-California and
Pacshore-Texas from January 1, 2007 through July 31, 2008.
Request No. 19: The monthly and quarterly credit card statement reports for Pacshore-California and
Pacshore-Texas from January 1, 2007 through July 31, 2008.
Request No. 20: The monthly and quarterly petty cash disbursements reports for Pacshore-California and
Pacshore-Texas from January 1, 2007 through July 31, 2008.
Request No. 21: The monthly and quarterly saved box reports for Pacshore-California and Pacshore-Texas
from January 1, 2007 through July 31, 2008.
Request No. 22: The monthly and quarterly sales by customer summary reports for Pacshore-Califomnia and
Pacshore-Texas from January 1, 2007 through July 31, 2008.
Request No. 23: The monthly and quarterly initial investment reports for Pacshore—California and
Pacshore-Texas from January 1, 2007 through July 31, 2008.
{if the Rem that this Attachment concerns is made undet penalty of perjury, ail stalements in this oe a
ae f ty of perjury.) (Add pages as required)
Fone foprrnd font ee ATTACHMENT sewuccourtct.ca.gov
dudic a
1-028 FRev. July 1, 2005] to Judicial Council FormCo wey Ae BU & YH YP
eee
n vw & Bw NF OO
17
18
19
20
21
8
BR RB
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ORANGE
1, the undersigned, declare that I am over the age of 18 years and not a party to
the within action, I am employed in the County of Orange, State of California, within which
county the subject service occurred. My business address is 18100 Von Karman Avenue, Suite
750, Irvine, California 92612.
On November 7, 2011, I served the foregoing document described as?
DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF
DOCUMENTS AND THINGS IN ACTION PENDING OUTSIDE CALIFORNIA on the
interested parties in this action in the manner indicated below and as further indicated on the
attached Service/Mailing List:
[J Gy US. Mail) lam readily familiar with my employer's business practice|
for collection and processing of correspondence for mailing with the United States Postal
Service. | am aware that on motion of the party served, service is presumed invalid if postal
cancellation date or postage meter is more than one day after date of deposit for mailing in the
affidavit, I caused such envelope to be deposited, with postage thereon fully prepaid, in the
United States Mail at Irvine, California as indicated on the attached Service/Mailing List.
(1 _ — @y Electronic Delivery) | served a true and correct copy by electronic
delivery pursuant to C.C.P. § 1010.6, calling for agreement to accept service by electronic
delivery, to the interested parties in this action as indicated on the altached Service/Mailing List.
[1 — @y Hand Delivery) I caused such document to be delivered by hand to
the addressee as indicated on the attached Service/Mailing List.
(1 _ @®y Express Service) I served a true and correct copy, enclosed in a
sealed Federal Express envelope, for collection and for delivery marked for next day delivery in
the ordinary course of business, addressed to the offices of the addressees as indicated on the
attached Service/Mailing List.
J declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
Executed on November 7, 2011, at Irvine, Califomia.
a
Ge L. GatesMC-025
SHORT TILE: CASE NUMOER:
| Attorneys for Parties
ATTACHMENT (Number): 3
{This Attachment may be used with any Judiclal Council form.)
Edson Kilina, represented by:
Leslie C. Thome
HAYNES AND BOONE, LLP
600 Congress Avenue, Suite 1300
Austin, TX 78701
(512) 867-8400
Michael L. Hood
HAYNES AND BOONE, LLP
2323 Victory Avenue, Suite 700
Dallas, Texas 75219
(214) 651-5000
Vinicius Tavares, et al., represented by:
Gregory J. Casas, Esq.
GREENBERG TRAURIG LLP
300 West 6th Street, Suite 2050
Austin, Texas 78701
(512) 320-7200
Bina Paluitkar, Esq.
GREENBERG TRAURIG LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
(214) 665-3600
(if the item that this Attachment concerns is made under penalty of perjury, all statements in this
Attachment are made under penalty of perjury.)
Feet ermctofGatonia
MC-O25 Few, July 1, 2008]
ATTACHMENT
to Judicial Council Foon
Page 1 of _1
(Add pages as required)
War. COUrTIAND.C8.gOYCAUSE NO. D-1-GN-10-002408
EDSON KILIM, AN INDIVIDUAL, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. §
§
VINICIUS TAVARES, AN §
INDIVIDUAL; DONALD CICIERI, AN § TRAVIS COUNTY, TEXAS
INDIVIDUAL; MARCO ANTONIO §
PEREIRA, AN INDIVIDUAL; and §
PACIFIC SHORE STONE LLC, A §
TEXAS COMPANY, §
§
§
§
Defendants.
261st JUDICIAL DISTRICT COURT
ORDER GRANTING MOTION TO QUASH
Came on to be considered on this day of » 2011,
Defendants’ Motion to Quash the Deposition of Andres Guiga, and the Court, after having
considered the same, is of the opinion that it should be in all things GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the deposition of
Andres Guiga, is QUASHED.
SIGNED this day of , 2011.
JUDGE PRESIDING
Preview
Filed 11 November 14 P4:43 Amalia Rodriguez-Mendoza District Clerk Travis District CAUSE NO. D-1-GN-10-002408 D-1-GN-10-002408 EDSON KILIM, AN INDIVIDUAL, § IN THE DISTRICT COURT Plaintiff, v. VINICIUS TAVARES, AN INDIVIDUAL; DONALD CICIERI, AN § § § § § TRAVIS COUNTY, TEXAS INDIVIDUAL; MARCO ANTONIO § § § § § § § PEREIRA, AN INDIVIDUAL; and PACIFIC SHORE STONE LLC, A TEXAS COMPANY, Defendants. 261st JUDICIAL DISTRICT COURT DEFENDANTS’ MOTION TO QUASH THE DEPOSITION OF ANDRES GUIGA TO THE HONORABLE JUDGE OF SAID COURT: Defendants Vinicius Tavares, Donald Cicieri, Marco Antonio Pereira, and Pacific Shore Stone, LLC (collectively, “Defendants”) file this Motion to Quash the Deposition of Andres Guiga as follows: MOTION TO QUASH 1. On November 10, 2011, Defendants’ counsel received a copy of Plaintiff Edson Kilim’s (“Plaintiff's”) “Deposition Subpoena for Personal Appearance and Production of Documents and Things in Action Pending Outside of California” (the “California Subpoena”). A true and correct copy of the California Subpoena served upon Defendants’ counsel is attached as Exhibit A. 2. The California Subpoena was issued by the People of the State of California to non-party accountant Andres Guiga under the above-captioned Texas cause number. =f3. Plaintiff did not move this Court for a letter rogatory or other device pursuant to Texas Rule of Civil Procedure 201.1 prior to issuing the California Subpoena. 4. The deposition was unilaterally noticed without any agreement as to the date, time or place of the deposition. Defendants’ counsel is not available for the deposition at the date, time and place identified in the California Subpoena. 5. Defendants and Plaintiff have tentatively agreed to enter into a new scheduling order and to postpone all depositions, including the deposition of Andres Guiga, so as to permit the Court time to rule upon Defendants’ forthcoming motion for summary judgment. Plaintiff has been deported twice from the United States and is barred from re-entry such that he will not permit Defendants to take his deposition in the forum county or anywhere else within the United States, On this basis, Defendants will be moving for summary judgment and the case may be resolved without the additional expense of discovery. However, the parties could not reach a written agreement within three business days following service of the California Subpoena. 6. Accordingly, pursuant to Texas Rule of Civil Procedure 199.4, Defendants object to the date, time and place of the deposition in the California Subpoena. Because this motion is filed within three (3) business days of the date that the California Subpoena was served on Defendants’ counsel, this motion objecting to the deposition automatically stays the deposition until any motion can be determined by the Court. See Tex. R. Civ. P. 199.4. WHEREFORE, premises considered, Defendants respectfully request that the Court order that the deposition be quashed and for such other relief, both at law and in equity, to which Defendants may show themselves justly entitled.Respectfully submitted, GREENBERG TRAURIG LLP By: Gregoty’J. Casas Texas State Bar. No. 00787213 CasasG@gtlaw.com Jana K. Terry Texas State Bar No. 24003041 TerryJa@gtlaw.com 300 West 6" Street, Suite 2050 Austin, Texas 78701 Telephone: (512) 320-7200 Facsimile: (512) 320-7210 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing instrument has been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure on this 14th day of November 2011. Ji TerryBar numnber, and peldress): FOR COURT USE ONLY ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State! \Willlam C. O'Neill / SBN 251071 Raynes and Boone, LLP 18100 Von Karman, Suite 750, Irvine, CA 92612 TALEPHONE NO: 949-202-3000 FAX NO. (Optional: 949-202-3154 E-NAIL ADORESS (Onions): william onelli@haynesboone.com ATTORNEY FOR (Marre): Plaintiff Court for county in which discovery Is lo be conducted: SUPERIOR COURT OF CALIFORNIA, COUNTY oF Orange street aporess: 700 Civic Center Drive West MAILING ADORESS: emry an ze cove: Santa Ana, CA 92701 arance awe: Central Justice Center Court in which action Is pending: Nome of Court: 261st Judicial District Court of Travis County, Texas streeTanoress: 1000 Guadalupe, 3rd Floor waiuna aooress: P.O. Box 1748 lciry, STATE, AND 2w cone: Austin, TX 78767 counrey: United States of America PLAINTIFFPETITIONER: Edson Kilim DEFENDANT/RESPONDENT: Vinicius Tavares, et al. CALIFORNIA CASE NUMBER QV ony paskgned by court: DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND (GABE: NUMBER ft won penn ould Calor PRODUCTION OF DOGUMENTS AND THINGS D-1-GN-10-002408 IN ACTION PENDING OUTSIDE CALIFORNIA ‘THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and felaphone number of deponent, known): Andres Guiga, 2812 Santa Monica Bivd., Suite 204, Santa Monica, CA 90404, 310-450-5700 4. YOU ARE ORDERED TO APPEAR IN PERSON TO TESTIFY AS A WITNESS In this action at the following date, time, and place: Date: 11/29/14 Time: 1:00pm. Address: 43190 Van Karman Avenue Suile 750, Irvine, CA 92612 ‘a. [] Asa denonent who is not a natural person, vou are ordered to designate one or more persons fo testify on your behalf as to the matters described in item 4. (Code Clv. Proc., § 2025.230.) b. (2) You are ordered to produce the documents and things described in item 3. ¢. This deposition will be recorded stenographically through the Instant visual display of testimony and by [[_] audiotape videotape. 2. The personal attendance of the custodian or other qualified witness ‘and the production of the originel recards are required by this The procedure authorized by Evidence Code sections 4560(b), 1561, and 1562 will not be deemed sufficient compliance subpoena. with this subpoena. 3. The documents and things to be produced and any testing or sampling being sought are described as follows: See attachment 2 [1 Continued on Attachment 3 (use form MC-025). 4, If the witness is a representative of a business or other entily, the matters upon which the witness is to be examined are described 8s follows: [] Continued on Attachment 4 (use form MC-026). 5. Attomeys for the parties to this action of parties without attomeys are (name, address, Jelephone number, and name of party See atiachment 3 [1 Continued on Attachment 5 (use form MC-025). Paget of 2 Fam higietta taney DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND Saaioustezso zion toms eubbotspiewdmvny 139 PRODUCTION OF DOCUMENTS AND THINGS 2025838 Gor Con § 0075 IN ACTION PENDING OUTSIDE CALIFORNIA EXHIBIT eA CAL E_A zSUBP-045 PLAINTIFF/PETITIONER: Edson Kilim CASE NUMBER: DEFENDANT/RESPONDENT: Viniclus Tavares, et al. D-1-GN-10-002408 6. (21 Other terms or provisions from out-of-state subpoene, If any (specify): See attachment 1 [) Continued on Attachment 6 (use form MC-026). 7. f you have been served with this subpoena as a custodian of consumer or employee records under Code of Civil Procedures section 1985.3 or 1985.6 and a motion to quash or an objection has been served on you, a court order or ‘agreement of the parties, witnesses, and consumer or employes affected nwust be obtained before you aro required to produce consumer or employee records. 8. At the deposition, you will be asked questions under oath. Questions and answers are recorded stenographically at the deposition; Jatar they are transcribed for possible use at tial. You may read the written record and change any incorrect anawers before you sign the deposition. You are entitled to receive witness fees and mileage actually traveled both ways. Tha money must be paid, at the option of the party giving notice of the deposition, sither with service of this subpoena or at the time of the deposition. Unless the court orders or you agree otherwise, if you are being deposed as an individual, the deposition must take place within 75 mites of your residence. The location of the deposition all deponents is governed by Gode of Civil Procedure section 2025.250. DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF $500 AND ALL DAMAGES RESULTING F: OUR FAILURE Ti EY. Date issued: November 4, 2011 . (BIGNATURE OF PERSON ISSUING SUBPOENA) William C. O'Neilt Attorney (TYPE OR PRINT NAME) (ime) PROOF OF SERVICE OF DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS 4. I served this Deposition Subpoena for Persanal Appearance and Production of Documents and Things in Action Pending Outside California by personalty delivering a copy to the person served as follows: a. Person served (nama): b. Address where served: c. Date of delivery: . Time of delivery: e. Witness fees and mileage both ways (check one): (1) were paid. Amount: ....-.-.--- $ (2)L_] were not pald. (3) 1 were tendered to the witness's public enlity employer as required by Goverment Cade section 68097.2, The amount tendered was (specify): $ f. Fee for service: ...---.-----eeeeee eee $ 2. | recelved this subpoena for service on (date): 3 CO 1 also served a completed Proof of Service of Notice to Consumer or Employee and Objection {form SUBP-025) by personally delivering a copy to the person served as described in 1 above. 4 Person serving: a. (7) Notaregistered Caiifornia process server pb. CL] California sheriff or marshal e« J Registered California process server 6. LJ) Employee or independent contractor of a registered California process sarver e [1 Exempt from registration under Business and Professions Code section 22350(b) f. Name, address, telephone number, and, If applicable, county of registration and number. I daciara under penalty of perjury under the laws of the State of (For California sheriff or marshal use only} Callfomia that the foregoing is true and correct. I certify that the foregoing is true and correct. Date: Date: {S1ONATURED {SIGNATURE ‘SUBPANS New Jomayt.2010 DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS IN ACTION PENDING OUTSIDE CALIFORNIA Page 2 ofaSHORT TITLE: CASE NUMBER: [— Definitions for Requests for Production ATTACHMENT (Number): 1 (This Attachment may be used with any Judicial Counci form.) 1. “Ciceri” shall mean Defendant Donald Ciceri, as well as any person or entity presently or formerly acting or authorized to act on his behalf. . 2. “Demavi” shall mean Demavi Granitos De Brasil, Ltda, f/k/a Pacific Shore Importada ¢ Exporiadora, Ltda. 3. “Kilim” shall mean Plaintiff Edson Kilim. 4, “Pacshore-California” shall mean Pacific Shore Stone, LLC, a California company, its executives, directors, parent companies, subsidiaries, shareholders, employees, agents, or any other person or entity presently or formerly acting or authorized to act on its behalf and includes, but is not limited to, Pacshore — California branch offices in Los Angeles or Bakersfield and to the extent applicable branch offices in Austin, San Antonio or Oklahoma City. 5, "Pacshore-Texas” shall mean Pacific Shore Stone, LLC, a Texas company, its executives, directors, parent companies, subsidiaries, shareholders, employees, agents, and includes, but is not limited to Pacshore — Texas branch offices in Austin, San Antonio or Oklahoma City and to the extent applicable branch offices in Los Angeles or Bakersfield. 6. “Pereira” shall mean Defendant Marco Antonio Pereira, as well as any person or entity presently or formerly acting or authorized to act on his behalf. 7, “Partners” shall mean Ciceri, Pereira and Tavares. 8. “Tavares” shall mean Defendant Vinicius Tavares as well as any person or entity presently or formerly acting or authorized to act on his behalf. 9. The words “and” and “or” shall be construed conjunctively or disjunctively as necessary to make the request inclusive rather than exclusive. The use of the word “including” shall be construed without any limitation. 10. The words “related to” or “relating to” a given subject means zeferring to, alluding to, responding to, connected with, commenting on, in respect of, about, regarding, discussing, showing, describing, mentioning, reflecting, analyzing, constituting, evidencing, or in any way pertinent to that certain subject. 11. As used in these Requests, the terms “document” and “documents” are intended to have their broadest meaning and include all written, printed, typed, recorded or graphic matter of every kind and description, both originals and copies and all attachments and appendices thereto. Without limiting the foregoing, the terms “document” and “documents” shall include all accountings, agreements, contracts, letters, communications, messages, memos, records, reports, any records of telephone conversations, summaries or any other records of conversations, notes or other records of meetings and conferences, diaries, diary entries, calendars, appointment books, consultants’ reports, bills, statements, print or other forms of advertisements, files, checks, canceled checks, however and by whomever produced, prepared, reproduced, disseminated or made, The term. “document” also includes all data (including metadata) stored in electronic form or accessible through computer or other information retrieval systems, together with instructions and all other materials necessary to use or interpret that data. 12. As used in this Request, the terms “document” and “documents” also include (i) copies of documents upon which notations or writings appear that are not present on the originals or other copies of such documents including drafts and (ii) electronically stored data and information that would otherwise be responsive to any request for production set forth below. A document is deemed to be in your custody if you have possession of the document ot have the right to secure such document from another person having possession of the document. {if the item that this Attachment concems is made under penalty of perjury, all statemanis in this Pago 1 of 2 “ a (Add pages as. required) Pome Seed ct Gomme ATTACHMENT wevonrtntocagoe MC-225 JRev. sudy 4, 2008] to Judicial Council FormMC-025 SHORT TITLE: CASE NUMBER: | Definitions for Requests for Production (cont.) ATTACHMENT (Number): 1 (This Attachment may be used with any Judicial Councit form.) 13. As used in this Request, the term “communication” includes, without limitation of its generality, statements, discussions, conversations, speeches, meetings, remarks, questions, answers, whether written or oral. The term includes, without limitation of its generality, both communications and statements which are face-to-face and those which are transmitted by telephones. (Of the iter thet this Attachment concems is made under penalty of perjury, all statements in this Page 2 af 2 are f ty of perjury.) {Add pages as required} ATTACHMENT wwe courtdo.ca.gav [ees C025 [Rev ly 4, 2005} to Judicial Council FormMC-025 SHORT TITLE: CASE NUMBER: | Requests For Production ATTACHMENT (Number): 2 {This Attachment may be used with any Judicial Council form.) Request No. 1: All valuations of Pacshore-California performed by Pacshore-California, Pacshore-Texas, Pereira, Ciceri or Tavares relating to and covering the period from January 1, 2007 through July 31, 2008. Request No. 2: Alll valuations of Pacshore—California performed by any accountant ar appraiser on behalf of Pacshore-California, Pacshore-Texas, Pereira, Ciceri or Tavares relating to and covering the period from . January 1, 2007 through July 31, 2008. Request No. 3: Ail valuations of Pacshore-California performed by Andres Guiga on relating to and covering the period from January 1, 2007 through July 31, 2008. Request No. 4: All valuations of Pacshore-Texas performed by Pacshore-Texas, Pacshore—California, Pereira, Ciceri or Tavares. relating to and covering the period from January 1, 2007 through July 31, 2008. Request No. 5: All valuations of Pacshore-Texas performed by any accountant or appraiser on behalf of Pacshore — Texas, Pacshore—California, Pereira, Ciceri or Tavares relating to and covering the period from January 1, 2007 through July 31, 2008. Request No. 6: All valuations of Pacshore-Texas performed by Andres Guiga relating to and covering the period from January 1, 2007 through July 31, 2008. Request No. 7: Copies of sales, capital, and operating budgets for each branch office of Pacshore-California and Pacshore-Texas (monthly, quarterly and annual consolidated) for the period of January 1, 2007 through July 31, 2008. Request No. 8: Reports of CPAs or other auditors prepared for or on behalf of Pacshore-California and Pacshore-Texas with respect to the period of January 1, 2007 through July 31, 2008. Request No. 9: Reports of Andres Guiga prepared for or on behalf of. ‘Pachsore-California and Pacshore-Texas with respect to the period of January 1, 2007 through July 31, 2008. Request No.10: The monthly and quarterly sales reports for Pacshore-California and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No.11: The monthly and quarterly receivables reports for Pacshore-California and Pacshore-Texas from January 1, 2007 through July 31, 2008. : Request No. 12: The monthly and quarterly accounts payable reports for Pacshore—Caltformia and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 13: The monthly bank statements for Pacshore-Califomia and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 14: The balance sheets (monthly, quarterly and annual consolidated) for Pacshore—California and Pacshore-Texas from January 1, 2007 through July 31, 2008. {if the item thet this Attachment concerns Is made under penalty of perjury, ail statements in this Page 1 of 2 Alta ae f ty of perjury) (Add pages as required) "RAS Coen of Galera ATTACHMENT rma a ME-025 Rev. duly 4, 2008] to Judicial Gouncil FormMC-025 SHORT TITLE: CASE NUMBER: | Requests for Production (cont.) ATTACHMENT (Number): 2 (This Attachment may be used with any Judicial Council form.) Request No. 15: The income/loss Statements (monthly, quarterly and annual consolidated) for Pacshore— California and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 16: The cash flow Statements (monthly, quarterly and annual consolidated) for Pacshore-Califomia and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 17: The monthly and quarterly materials on consignment reports for Pacshore—California and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No, 18: The monthly and quarterly current inventory reports for Pacshore-California and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 19: The monthly and quarterly credit card statement reports for Pacshore-California and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 20: The monthly and quarterly petty cash disbursements reports for Pacshore-California and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 21: The monthly and quarterly saved box reports for Pacshore-California and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 22: The monthly and quarterly sales by customer summary reports for Pacshore-Califomnia and Pacshore-Texas from January 1, 2007 through July 31, 2008. Request No. 23: The monthly and quarterly initial investment reports for Pacshore—California and Pacshore-Texas from January 1, 2007 through July 31, 2008. {if the Rem that this Attachment concerns is made undet penalty of perjury, ail stalements in this oe a ae f ty of perjury.) (Add pages as required) Fone foprrnd font ee ATTACHMENT sewuccourtct.ca.gov dudic a 1-028 FRev. July 1, 2005] to Judicial Council FormCo wey Ae BU & YH YP eee n vw & Bw NF OO 17 18 19 20 21 8 BR RB PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE 1, the undersigned, declare that I am over the age of 18 years and not a party to the within action, I am employed in the County of Orange, State of California, within which county the subject service occurred. My business address is 18100 Von Karman Avenue, Suite 750, Irvine, California 92612. On November 7, 2011, I served the foregoing document described as? DEPOSITION SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS IN ACTION PENDING OUTSIDE CALIFORNIA on the interested parties in this action in the manner indicated below and as further indicated on the attached Service/Mailing List: [J Gy US. Mail) lam readily familiar with my employer's business practice| for collection and processing of correspondence for mailing with the United States Postal Service. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter is more than one day after date of deposit for mailing in the affidavit, I caused such envelope to be deposited, with postage thereon fully prepaid, in the United States Mail at Irvine, California as indicated on the attached Service/Mailing List. (1 _ — @y Electronic Delivery) | served a true and correct copy by electronic delivery pursuant to C.C.P. § 1010.6, calling for agreement to accept service by electronic delivery, to the interested parties in this action as indicated on the altached Service/Mailing List. [1 — @y Hand Delivery) I caused such document to be delivered by hand to the addressee as indicated on the attached Service/Mailing List. (1 _ @®y Express Service) I served a true and correct copy, enclosed in a sealed Federal Express envelope, for collection and for delivery marked for next day delivery in the ordinary course of business, addressed to the offices of the addressees as indicated on the attached Service/Mailing List. J declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 7, 2011, at Irvine, Califomia. a Ge L. GatesMC-025 SHORT TILE: CASE NUMOER: | Attorneys for Parties ATTACHMENT (Number): 3 {This Attachment may be used with any Judiclal Council form.) Edson Kilina, represented by: Leslie C. Thome HAYNES AND BOONE, LLP 600 Congress Avenue, Suite 1300 Austin, TX 78701 (512) 867-8400 Michael L. Hood HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 (214) 651-5000 Vinicius Tavares, et al., represented by: Gregory J. Casas, Esq. GREENBERG TRAURIG LLP 300 West 6th Street, Suite 2050 Austin, Texas 78701 (512) 320-7200 Bina Paluitkar, Esq. GREENBERG TRAURIG LLP 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 (214) 665-3600 (if the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Feet ermctofGatonia MC-O25 Few, July 1, 2008] ATTACHMENT to Judicial Council Foon Page 1 of _1 (Add pages as required) War. COUrTIAND.C8.gOYCAUSE NO. D-1-GN-10-002408 EDSON KILIM, AN INDIVIDUAL, § IN THE DISTRICT COURT § Plaintiff, § § v. § § VINICIUS TAVARES, AN § INDIVIDUAL; DONALD CICIERI, AN § TRAVIS COUNTY, TEXAS INDIVIDUAL; MARCO ANTONIO § PEREIRA, AN INDIVIDUAL; and § PACIFIC SHORE STONE LLC, A § TEXAS COMPANY, § § § § Defendants. 261st JUDICIAL DISTRICT COURT ORDER GRANTING MOTION TO QUASH Came on to be considered on this day of » 2011, Defendants’ Motion to Quash the Deposition of Andres Guiga, and the Court, after having considered the same, is of the opinion that it should be in all things GRANTED. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the deposition of Andres Guiga, is QUASHED. SIGNED this day of , 2011. JUDGE PRESIDING