Receivership specialists fraud on the court attorney john rachlin lawyer malpractice receiver kevin

Case 2:14-cv-09104-GW-JC Document 9 Filed 12/16/14 Page 1 of 4 Page ID #:517 AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT for the

Central District __________ District of of California __________ ARCHIBALD CUNNINGHAM, HUMBERTO RUIZ, both individually and on behalf of a class of others similarly situated.

Plaintiff(s)

v.

KEVIN SINGER, Court-appointed receiver, sued individually and official capacity; RECEIVERSHIP SPECIALISTS, a California licensed business, See Attached Names Defendant(s)

) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 2:14-cv-09104-GW-JC

SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) KEVIN SINGER, Court-appointed receiver, 11150 W. Olympic Blvd., Suite 810 Los Angeles, CA 90064; RECEIVERSHIP SPECIALISTS, a California licensed business, 11150 W. Olympic Blvd., Suite 810 Los Angeles, CA 90064; JOHN RACHLIN, principal, sued in his individual capacity, 11150 W. Olympic Blvd., Suite 810 Los Angeles, CA 90064; KAMALA D. HARRIS, Attorney General of California, sued individually and in her official capacity, 455 Golden Gate, Suite 11000, San Francisco, CA 94102; See attachment.

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: Patrica Barry, Esq. 634 S. Spring Street, Suite 823, Los Angeles, CA 90014 Arch Cunningham, 1489 McAllister Street, San Francisco CA 94115

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.

You also must file your answer or motion with the court.

CLERK OF COURT Date:December

16, 2014 Signature of Clerk or De D Deputy eputy Clerk

Case 2:14-cv-09104-GW-JC Document 9 Filed 12/16/14 Page 2 of 4 Page ID #:518

Attachment to Summons

Named Defendants:

JOHN RACHLIN, principal, sued in his individual capacity; RICK MARQUIS, principal, sued in his individual capacity; KAMALA D. HARRIS, Attorney General of California, sued individually and in her official capaciy; CITY AND COUNTY OF SAN FRANCISCO; San Francisco County Sheriff ROSS MIRKARIMI, sued individually and in his official capacity; San Francisco District Attorney, GEORGE GASCON, sued individually and in his official capacity; COUNTY OF LOS ANGELGES, a municipality: District Attorney JACKIE LACEY, sued individually and in her official capacity; COUNTY OF KERN, District Attorney LISA GREEN, sued individually and in her official capacity; COUNTY OF MARIN, District Attorney EDWARD S. BERBERIAN, sued individually and in his official capacity; COUNTY OF SACRAMENTO, District Attorney JAN SCULLY, sued individually and in her official capacity; COUNTY OF ALAMEDA, District Attorney NANCY O’MALLEY, sued individually and in her official capacity; COUNTY OF CONTRA COSTA, District Attorney SCOTT PETERSON, sued individually and in his official capacity; JUDGE BARBARA A. MEIERS, Los Angeles Superior Court Judge, sued individually and in her official capacity; JUDGE ROBERT H. O’BRIEN, Los Angeles Superior Court Judge, sued individually and in his official capacity; JUDGE THOMAS L. BROWN, Sacramento Superior Court Judge, sued individually and in his official capacity; JUDGE LAWRENCE J. APPEL, Alameda Superior Court Judge, sued individually and in his official capacity: JUDGE LAUREL S. BRADY, Contra Costa Superior Court Judge, sued individually and in her official capacity; JUDGE RANDOLPH HEUBACH, Marin Superior Court Judge, sued individually and in his official capacity; JUDGE MARLA MILLER, San Francisco Court Judge, sued individually and in her official capacity; JUDGE JAMES STOELKER, Santa Clara Court Judge, sued individually and in his official capacity; JUDGE LORNA H. BRUMFIELD,, Kern Court Judge, sued individually and in her official capacity; JUDGE DELBERT C. GEE, Alameda Superior Court Judge, sued individually and in his official capacity; JUDGE DAVID B. FINN, Contra Costa Superior Court Judge, sued individually and in his official capacity; JUDGE LYNN O’MALLEY TAYLOR, San Francisco Court Judge, sued individually and in her official capacity; JUDGE LYNN JUDITH CRADDICK, Contra Costa Court Judge, sued individually and in her official capacity; JUDGE DONALD EVANS QUIDACHAY, San Francisco Superior Court Judge, sued individually and in his official capacity; JUDGE A. JAMES ROBERTSON II., San Francisco Superior Court, sued individually and in his official capacity; ,JUDGE LILLIAN SING, San Francisco Superior Court Judge, sued individually and in her official capacity; PRESIDING JUDGE CYNTHIA MING-mei LEE, Presiding Judge of the San Francisco Superior Court, sued individually and in her official capacity; CHIEF JUSTICE TANI G. CANTIL-SAKAUYE, Chief Justice of State Supreme Court, Chair of California Judicial Council, sued individually and in her official capacity; PRESIDING JUSTICE ANTHONY KLINE, California Court of Appeals, First Appellate Division, sued individually and in his official capacity; JUDGE JAMES RICHMOND, Justice of California Court of Appeals, First Appellate District, sued individually and in her official capacity; JOHN SCOTT McKAY, an officer of the court and attorney in the underlying case, sued in his individual capacity; MICHAEL COOMBS, property-owner and partner in condominium association, sued in individual capacity, TAMARA WOODS, property-owner and partner in condominium association, sued in individual capacity.

Defendants, and DOES 1 through 10.

Case 2:14-cv-09104-GW-JC Document 9 Filed 12/16/14 Page 3 of 4 Page ID #:519

To: (Defendant’s name and address)

CITY AND COUNTY OF SAN FRANCISCO; San Francisco County Sheriff ROSS MIRKARIMI, sued individually and in his official capacity, San Francisco City Hall 1 Dr Carlton B Goodlett Pl, San Francisco, CA 94102; San Francisco District Attorney, GEORGE GASCON, sued individually and in his official capacity, 850 Bryant St #322, San Francisco, CA 94103; COUNTY OF LOS ANGELGES, a municipality: District Attorney JACKIE LACEY, sued individually and in her official capacity, 210 West Temple Street, Suite 18000 Los Angeles, CA 90012; COUNTY OF KERN, District Attorney LISA GREEN, sued individually and in her official capacity, 1115 Truxtun Ave, Bakersfield, CA 93301; COUNTY OF MARIN, District Attorney EDWARD S. BERBERIAN, sued individually and in his official capacity, 3501 Civic Center Dr. San Rafael CA 94903; COUNTY OF SACRAMENTO, District Attorney JAN SCULLY, sued individually and in her official capacity, 901 G St, Sacramento, CA 95814; COUNTY OF ALAMEDA, District Attorney NANCY O’MALLEY, sued individually and in her official capacity, 1225 Fallon Street, Suite 900 Oakland, CA 94612; COUNTY OF CONTRA COSTA, District Attorney SCOTT PETERSON, sued individually and in his official capacity, 900 Ward St, Martinez, CA 94553; JUDGE BARBARA A. MEIERS, Los Angeles Superior Court Judge, sued individually and in her official capacity, 111 North Hill Street Los Angeles, CA 90012; JUDGE ROBERT H. O’BRIEN, Los Angeles Superior Court Judge, sued individually and in his official capacity, 111 North Hill Street Los Angeles, CA 90012; JUDGE THOMAS L. BROWN, Sacramento Superior Court Judge, sued individually and in his official capacity, 720 9th St Sacramento, CA; JUDGE LAWRENCE J. APPEL, Alameda Superior Court Judge, sued individually and in his official capacity, 1225 Fallon St, Oakland, CA 94612; JUDGE LAUREL S. BRADY, Contra Costa Superior Court Judge, sued individually and in her official capacity, 1020 Ward Street, Martinez CA 94553; JUDGE RANDOLPH HEUBACH, Marin Superior Court Judge, sued individually and in his official capacity, 3501 Civic Center Dr C10, San Rafael, CA 94903; JUDGE MARLA MILLER, San Francisco Court Judge, sued individually and in her official capacity, 400 McAllister St, San Francisco, CA 94102; JUDGE JAMES STOELKER, Santa Clara Court Judge, sued individually and in his official capacity, 191 North First Street San Jose, CA 95113;

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JUDGE LORNA H. BRUMFIELD,, Kern Court Judge, sued individually and in her official capacity, 1415 Truxtun Ave. Bakersfield, CA 93301; JUDGE DELBERT C. GEE, Alameda Superior Court Judge, sued individually and in his official capacity, 1225 Fallon St, Oakland, CA 94612; JUDGE DAVID B. FINN, Contra Costa Superior Court Judge, sued individually and in his official capacity, 1020 Ward Street, Martinez CA 94553; JUDGE LYNN O’MALLEY TAYLOR, San Francisco Court Judge, sued individually and in her official capacity, 400 McAllister St, San Francisco, CA 94102; JUDGE LYNN JUDITH CRADDICK, Contra Costa Court Judge, sued individually and in her official capacity, 1020 Ward Street, Martinez CA 94553; JUDGE DONALD EVANS QUIDACHAY, San Francisco Superior Court Judge, sued individually and in his official capacity, 400 McAllister St, San Francisco, CA 94102; JUDGE A. JAMES ROBERTSON II., San Francisco Superior Court, sued individually and in his official capacity, 400 McAllister St, San Francisco, CA 94102; JUDGE LILLIAN SING, San Francisco Superior Court Judge, sued individually and in her official capacity, 400 McAllister St, San Francisco, CA 94102; PRESIDING JUDGE CYNTHIA MING-mei LEE, Presiding Judge of the San Francisco Superior Court, sued individually and in her official capacity, 400 McAllister St, San Francisco, CA 94102; CHIEF JUSTICE TANI G. CANTIL-SAKAUYE, Chief Justice of State Supreme Court, Chair of California Judicial Council, sued individually and in her official capacity, 350 McAllister St, San Francisco, CA 94102; PRESIDING JUSTICE ANTHONY KLINE, California Court of Appeals, First Appellate Division, sued individually and in his official capacity, 350 McAllister St, San Francisco, CA 94102; JUDGE JAMES RICHMOND, Justice of California Court of Appeals, First Appellate District, sued individually and in her official capacity, 350 McAllister St, San Francisco, CA 94102; JOHN SCOTT McKAY, an officer of the court and attorney in the underlying case, sued in his individual capacity, 2175 N California Blvd, Suite 775, Walnut Creek, CA 94596; MICHAEL COOMBS, property-owner and partner in condominium association, sued in individual capacity, 1487 McAllister Street, San Francisco, CA 94115; TAMARA WOODS, property-owner and partner in condominium association, sued in individual capacity, 1487 McAllister Street, San Francisco, CA 94115; Defendants, and DOES 1 through 10.

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 1 of 52 Page ID #:1

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Patricia Barry, Esq. (SBN 59116) 634 S. Spring St., Suite 823 Los Angeles, CA 90014 (213) 995-0734

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Arch Cunningham (SBN 210625) 1489 McAllister St. San Francisco, CA 94115 archcunnghm@yahoo.com (415) 563-1828

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Attorneys for Plaintiff JOHN DOE, et al.

On behalf of themselves and other similarly situated.

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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ARCHIBALD CUNNINGHAM, ) HUMBERTO RUIZ, both individually and on ) behalf of a class of others similarly situated. ) Case No. 2:14-cv-09104-GW-JC ) ) CLASS ACTION COMPLAINT FOR Plaintiffs, ) DECLARATORY RELIEF UNDER 42 v. ) U.S.C. ยง1983; ATTORNEY FEES UNDER ) 42 U.S.C. ยง1988 KEVIN SINGER, Court-appointed receiver, ) sued individually and official capacity; ) RECEIVERSHIP SPECIALISTS, a California ) licensed business, JOHN RACHLIN, ) principal, sued in his individual capacity; ) (1) Violations of Civil Rights RICK MARQUIS, principal, sued in his ) (42 U.S. C 1983); individual capacity; KAMALA D. HARRIS, ) (2) Monell-Related Claims; Attorney General of California, sued ) (3) Declaratory and Prospective Injunctive individually and in her official capaciy; CITY ) Relief.

AND COUNTY OF SAN FRANCISCO; San ) Francisco County Sheriff ROSS MIRKARIMI,) DEMAND FOR JURY TRIAL sued individually and in his official capacity; ) San Francisco District Attorney, GEORGE ) .

GASCON, sued individually and in his official ) capacity; COUNTY OF LOS ANGELGES, a municipality: District Attorney JACKIE ) LACEY, sued individually and in her official ) capacity; COUNTY OF KERN, District ) Attorney LISA GREEN, sued individually and ) in her official capacity; COUNTY OF ) MARIN, District Attorney EDWARD S. ) BERBERIAN, sued individually and in his official capacity; COUNTY OF _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 2 of 52 Page ID #:2

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SACRAMENTO, District Attorney JAN SCULLY, sued individually and in her official capacity; COUNTY OF ALAMEDA, District Attorney NANCY O’MALLEY, sued individually and in her official capacity; COUNTY OF CONTRA COSTA, District Attorney SCOTT PETERSON, sued individually and in his official capacity; JUDGE BARBARA A. MEIERS, Los Angeles Superior Court Judge, sued individually and in her official capacity; JUDGE ROBERT H. O’BRIEN, Los Angeles Superior Court Judge, sued individually and in his official capacity; JUDGE THOMAS L. BROWN, Sacramento Superior Court Judge, sued individually and in his official capacity; JUDGE LAWRENCE J. APPEL, Alameda Superior Court Judge, sued individually and in his official capacity: JUDGE LAUREL S. BRADY, Contra Costa Superior Court Judge, sued individually and in her official capacity; JUDGE RANDOLPH HEUBACH, Marin Superior Court Judge, sued individually and in his official capacity; JUDGE MARLA MILLER, San Francisco Court Judge, sued individually and in her official capacity; JUDGE JAMES STOELKER, Santa Clara Court Judge, sued individually and in his official capacity; JUDGE LORNA H. BRUMFIELD,, Kern Court Judge, sued individually and in her official capacity; JUDGE DELBERT C. GEE, Alameda Superior Court Judge, sued individually and in his official capacity; JUDGE DAVID B. FINN, Contra Costa Superior Court Judge, sued individually and in his official capacity; JUDGE LYNN O’MALLEY TAYLOR, San Francisco Court Judge, sued individually and in her official capacity; JUDGE LYNN JUDITH CRADDICK, Contra Costa Court Judge, sued individually and in her official capacity; JUDGE DONALD EVANS QUIDACHAY, San Francisco Superior Court Judge, sued individually and in his official capacity; JUDGE A. JAMES ROBERTSON II., San Francisco Superior Court, sued individually and in his official capacity; ,JUDGE LILLIAN SING, San Francisco Superior Court Judge, sued individually and in her official capacity; PRESIDING JUDGE CYNTHIA MING-mei LEE, Presiding Judge of the San Francisco Superior Court, sued individually and in her official capacity; CHIEF JUSTICE TANI G. CANTILSAKAUYE, Chief Justice of State Supreme Court, Chair of California Judicial Council, _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 3 of 52 Page ID #:3

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sued individually and in her official capacity; PRESIDING JUSTICE ANTHONY KLINE, California Court of Appeals, First Appellate Division, sued individually and in his official capacity; JUDGE JAMES RICHMOND, Justice of California Court of Appeals, First Appellate District, sued individually and in her official capacity; JOHN SCOTT McKAY, an officer of the court and attorney in the underlying case, sued in his individual capacity; MICHAEL COOMBS, propertyowner and partner in condominium association, sued in individual capacity, TAMARA WOODS, property-owner and partner in condominium association, sued in individual capacity.

9 Defendants, and DOES 1 through 10

10.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 4 of 52 Page ID #:4

TABLE OF CONTENTS

INTRODUCTION………………………………………………………………. 1 II. JURISDICTION…………………………………………………………….. 4 III. VENUE……………………………………………………………………… 4 IV. INTRADISTRICT ASSIGNMENT ………………………………………. 4 V. CLASS ALLEGATIONS……………………………………………………. 4 VI. PARTIES……………………………………………………………………. 7 VI. FACTUAL ALLEGATIONS……………………………………………… 19 A. Statutory Framework for Unauthorized Practice of Law……….. 19

B. Statutory and Regulatory Framework Related to Appointment of Receivers …………………………………….. 21

C. The Various Appointments of Mr. Singer In This Class Action ………………………………………………………….. 23 D. The Unauthorized Practice of Law Conspiracy In the Context of Receiverships ……………………………………………………….. 26 FIRST CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiffs/Class Against All Defendants (Violation of Class Members’ Civil Rights Under Color of State Law by Engaging in Conspiracy) ………… 32

SECOND CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiffs/Class Against All Defendants .

(Bus. & Prof. Code §6125 As Applied Violates Class Members’ Procedural Due Process Rights) …… 34

THIRD CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiffs/Class Against Singer, All Judicial and Non-judicial Defendants)

Table of Contents, i

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(Violation of Separation of Powers Clause) ….. 36 FOURTH CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiffs/Class Against All Defendants .

(Constitutional Challenge to Code of Civil Procedure §564 et. al., On its Face and As Applied Violated Class Members’ Substantive and Procedural Due Process Rights) …38

FIFTH CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiff Against City and County of San Francisco (Sheriff’s Department), All District Attorneys, AG Kamala Harris Violation of Civil Rights under Color of Law Municipal and Individual Liability for Unconstitutional Policies and Practices ……………. 42

SIXTH CAUSE OF ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF ………….. 45

Table of Contents, ii

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 6 of 52 Page ID #:6

INTRODUCTION

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1. This case involves the criminal matter of one court-appointed receiver, Mr. Kevin

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Singer, who has been engaging in a criminal and fraudulent scheme throughout the state that involves his unauthorized practice of law (UPL). Under the State Bar Act, no one can practice law in California unless they are an active member of the bar. (Cal. Bus. & Prof. Code §§61256126). While the judicial defendants, Attorney General Kamala Harris, and State Bar President

6

Craig Holden are certainly aware of the problems of the unauthorized practice of law in the

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context of immigration law as spelled out by Assembly Bill 1159, 1 they seem impervious to the

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same criminal conduct in the context of court-appointed receiverships. But even when members

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of the State Bar are aware of the problem of the unauthorized practice of law in the context of immigration, it seems they lack the resources or the resolve to uphold the laws prohibiting the unlawful practice of law. 2

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2. In the context of receiverships, not only is there no attempt by the judicial defendants,

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the Attorney General Kamala Harris, or State Bar President Holden to prosecute the unlawful

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practice of law, there seems to be a deliberate obliviousness to the fact that at least one receiver,

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Mr. Singer, is given carte blanche to practice law and file any type of pleading or case. For

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instance, in the Superior Court of Alameda County, Mr. Singer filed a motion for a “Contempt of

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Court Hearing Against John Tyler and Gregory J. Tyler; If Found Guilty, Fine $1,000 and Hold Under Arrest for Five Days or Until They Turn Over $3,245 of Receivership Rents and

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Books/Records.” (RJN, Exhibit B, RG 10-499443). Mr. Singer, a non-lawyer, is filing contempt

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motions and threatening to have parties thrown in jail for not cooperating with what amounts to

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his criminal scheme to practice law without a license. He routinely prepares legal documents

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such as releases and stipulations for parties even though this is considered the practice of law. He

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not only prepares stipulations, 3 but submits them to various courts such as the Superior Court of

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http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1159 AB 1159, signed by Governor Brown on October 5, 2014 expanded the State Bar Act related to the unauthorized practice of law to apply to “anyone who is not an attorney” from advertising as a “notario,” not just notaries public. The ban is intended to prevent confusion that has often times been capitalized upon by non-attorneys hoping to present themselves as attorneys, as a “notario” in many Latin American nations is a type of lawyer.

2 Mark J. Geragos just filed a lawsuit against the State Bar Association and its President, Craig Holden, for failure to enforce AB1159 and the unauthorized practice in the area of immigration law. (RJN, Exhibit A).

3 In In re Garcia (9th Cir. BAP 2005) 335 B.R. 717, 728, the court found that the preparation of a stipulation and release between a debtor and trustee was the practice of law: “It is well settled _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 1

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 7 of 52 Page ID #:7

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Marin and the Superior Court of San Francisco. (RJN, Exhibit I, Exhibit H).

3. In another case in San Francisco Superior Court, Mr. Singer was allowed by judicial

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defendants to practice law and “evict” the owner of real property. (RJN, Exhibit C, CGC-10510760). When it became apparent to Mr. Singer that his Judicial Council approved EJ-130 “writ of possession” form was defective and that he was about to evict not just the targeted “owner” but all of the owner’s tenants, he was allowed by the court to “recall” his writ and submit a new

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one. 4 When counsel for the “tenant” asked judicial defendant Lynn O’Malley Taylor at the

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hearing on the tenant’s claim of right to possession if she was allowing Mr. Singer to practice

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law without a license, she abruptly terminated the hearing. She became indignant that counsel

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would even ask if a court-appointed non-lawyer receiver was engaging in the unauthorized practice of law. She shut out any discussion of whether she was aiding and abetting the unlawful practice of law even though the California Commission on Judicial Performance has found that a

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judicial officer “unlawfully aided and abetted” the unlawful practice of law. (RJN, Exhibit D).

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4. In an odd twist in the Superior Court of Contra Costa, Mr. Singer had a “disagreement”

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with opposing counsel over the interpretation of a court order and then filed a “Motion for Order

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Authorizing Receiver to Retain Legal Counsel; Memorandum of Points and Authorities and

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Declaration of Kevin Singer in Support Thereof.” (RJN, Exhibit E, C12-00284). While Mr.

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Singer thought he had the right to evict the owner of real estate or bring a contempt action against a property owner even though he is not a licensed attorney, he sought to retain counsel in

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this case, stating in his declaration, (RJN, Exhibit E, pg. 3, ¶5):

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Although the Receiver has the ability to write basic pleadings and file papers with the

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in California that "practicing law" means more than just appearing in court. Estate of Condon, 65 Cal.App.4th 1138, 76 Cal.Rptr.2d 922 (1998). Under California law, the practice of law includes the preparation of legal instruments and contracts by which legal rights are secured, whether the matter is pending in court or not. Frankfort Digital Services. Ltd. v. Neary (In re Reynoso), 315 B.R. 544, 552 (9th Cir.BAP2004).”

4

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http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=Vali dateCaseNumber&ARGUMENTS=-ACPF10510760 SEP-30-2014

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UNLAWFUL DETAINER MOTION 501, DEFENDANT HUMBERTO RUIZ, JR.S HEARING ON CLAIM OF RIGHT TO POSSESSION IS DENIED. WRIT, ON WHICH THIS MOTION IS BASED, HAS BEEN RECALLED AND A NEW WRIT HAS BEEN ISSUED. CLAIMANT'S ALLEGED TENANCY IS NOT AT ISSUE IN THIS CASE. ORDER OF AUGUST 20, 2014 SPECIFICALLY EXCLUDES ANY CURRENT TENANT WHO IS RESIDING ON THE PROPERTY. ANY ISSUES RELATING TO CLAIMANT'S TENANCY ARE OUTSIDE THE SCOPE OF THIS ACTION.

28 _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 2

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Court, he is not an attorney. The Receiver is also not an expert in legal environmental disclosures that will need to be provided to tenants. The Receiver also seeks help from time to time in interpreting the Court’s Order and working with the Parties’ legal counsels.

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Mr. Singer then goes on to quote Cal. Rule of Court 3.1180 and acknowledges that “a receiver must not employ an attorney without the approval of the court.” Ironically, he’s engaged in the unauthorized practice of law by filing a memorandum of points and authorities and appearing in court on his motion to “retain counsel.” No Judicial Council forms have been promulgated for him to come into court to request an attorney and avoid the actual or appearance of practicing

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law without a license. Making matters worse, the existing forms contradict CRC 3.1180 by

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suggesting that the need for an attorney is “permissive.” (*See, RC-310, ¶18; “The receiver may

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employ unlawful detainer attorneys and eviction services without a court order.”).

5. Not only are the judicial officers complicit in denying the fact of the receiver’s

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unauthorized practice of law, but they seem confused about the nature and scope of the receiver’s authority. While the case law states that the appointment of a receiver is a “drastic remedy” that

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should only be applied only in “exceptional circumstances,” 5 the judicial defendants here have

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rubber-stamped every request for an appointment. They simply ignore any opposition to the

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appointment. (RJN, Exhibit F, Exhibit G). They then grant the receiver the right to possession

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and control of the disputed property and the authority to manage, sell, or control it as he sees fit.

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The receiver is given almost unfettered authority without any actual oversight or accountability.

6. Given the almost unfettered rights of the receiver once appointed under Code of Civil

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Procedure 564 coupled with his unauthorized practice of law, Mr. Singer has engaged in nothing 19

short of a reign of terror throughout the state. He evicts owners from their property, threatens to

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throw those he considers uncooperative in jail, and rings up unconscionable fees while practicing

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law without a license. One hapless owner of a car wash Mr. Singer was appointed to sell would

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complain that Mr. Singer “accomplished nothing” while churning up $247,771.94 in fees. (RJN,

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Exhibit G, pg. 2/28, pg. 3/18-19).

7. Mr. Singer’s unauthorized practice of law dovetails with the financial incentives banks,

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lenders, and other petitioning parties. By appointing a receiver, the party petitioning for an appointment regains control over a distressed business or real property and avoids incurring the costs associated with a protracted judicial foreclosure. On the other hand, the property or

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5

City and County of San Francisco v. Daley (1993) 16 Cal.App. 4th 734, 744. _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 3

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business owner loses possession of his property, any rental income, and is smothered in fees the

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receiver churns up to extract a “stipulated agreement” to sell. This unholy alliance involving Mr.

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Singer’s (and perhaps many other receivers) UPL and the financial incentive of lenders/banks must be held accountable.

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II. JURISDICTION

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8. This action for declaratory and injunctive relief and damages arises under the 5th

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Amendment to the U.S. Constitution, the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, the Privileges and Immunities Clause of the Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. section 1983; and the Supremacy Clause, U.S. Const., Art. VI, cl. 2.

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9. The court has jurisdiction over the claims alleged in this complaint pursuant to 28

10

U.S.C section 1331 and 1343 for a violation of 42 U.S.C. §1983. Plaintiff’s claim for injunctive

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and declaratory relief are authorized under 28 U.S.C. §2202. Defendants were acting under color

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of state law in all matters and rulings related to this case.

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10. Supplemental Jurisdiction over the pendant state law claims is proper pursuant to 28 U.S.C. §1367.

III. VENUE

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11. Venue is proper in the Southern District of California pursuant to 28 U.S.C. §1391(b)

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because Defendant Singer performs his administrative and official duties there and thus resides

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there for purposes of venue. While Mr. Singer has engaged in his unlawful practice of law (UPL)

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throughout the state, many of the events or actions giving rise to these claims were directed from

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Mr. Singer’s principal place of business which is located in Los Angeles.

IV. INTRADISTRICT ASSIGNMENT

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12. Pursuant to Civil L.R. 3-2(c), this action should be assigned to Los Angeles because 21 22

all the events, rulings, hearings, orders giving rise to this complaint have been directed from Mr. Singer’s office in Los Angeles. The counsel for the class members also has her office in Los

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Angeles. The judicial defendants rendering the various rulings and orders perform their judicial

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functions throughout the state. Los Angeles is as more convenient forum than Bakersfield or

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other possible locations.

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V. CLASS ALLEGATIONS 13. Plaintiffs bring this action pursuant to 23(a)(1-4) and (b)(3) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated individuals who have suffered financial and emotional harm as a direct result of Mr. Singer’s UPL scheme. _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 4

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14. The class, to be represented by Archibald Cunningham and Humberto Ruiz, is defined as follows: All owners of real estate or businesses, tenants, and other parties who have been the subject of orders, stipulations, or other motions and actions in state superior courts that were brought against them by non-lawyer and court-appointed receiver Mr. Kevin Singer while Mr. Singer was practicing law without a license.

5 6 7 8 9

15. This action has been brought and may properly be maintainted as a class action under Federal law and satisfies the numerosity, commonality, typicality and adequacy rquirements for maintaining a class action under Fed. R. Civ. P. 23(a).

16. The member of the class are so numerous as to render joinder impracticable. There are hundreds of cases Mr. Singer has been appointed to spread throughout the state where he has

10

been engaged in the UPL. In any given superior court, it’s possible that some judicial officers

11

have followed the rules of court and Mr. Singer has appeared in those particular cases only while

12

represented or under the supervision of one of the law firms. However, in the same court, another

13

judicial officer will have allowed Mr. Singer to practice law without a license. Upon information

14

and belief, the size of the proposed class is approximately 200. Further, Mr. Singer is only one of many “receivers” practicing throughout the state and it’s not unreasonable to assume that other

15 16 17

receivers are also being allowed, deliberately or inadvertently, to practice law without a license.

In which case, it may be that many other prospective class members will emerge.

17. Upon information and belief, joinder of all of these individuals is impracticable

18

because of the large number of class members and the fact that the class members are dispersed

19

over the entire state of California, with most scattered in different judicial districts. Furthermore,

20

upon information and belief, many of the class members are distressed business and real property owners, who are in court in their own case “in propria persona” because they cannot afford to

21

hire an attorney who might point out Mr. Singer’s UPL. In that regard, these class members have

22

been financially compromised by the appointment of a receiver and would have great difficulty

23

in pursuing their rights individually. Moreover, those class members who are represented and

24

who have been contact by counsel, have expressed an unwillingness to join the class because

25

they are concerned above the professional repercussion of “suing” judges, however justified the

26 27 28

basis for the lawsuit might be. Finally, it’s likely that many of the attorneys for prospective class members are afraid of their own roles and potential liability in Mr. Singer’s UPL. For example, Mr. Singer routinely prepares a stipulation where all parties, attorneys, and judges sign off. In one case in the Superior Court of Alameda, Mr. Singer prepared a stipulations where the attorney _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 5

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1

for plaintiff, Alan Scott Koenig, and the attorney for defendant, Stephen M. Flynn, both have

2

signed off on Mr. Singer’s document. (RJN, Exhibit SS). In signing off on Mr. Singer’s legal

3 4

document, they are arguable “aiding and abettting” in the UPL. Naturally, counsel for the class members are encountering resistance from the attorneys for prospective class member who may have unwittingly and with no bad intentions implicated themselves in the UPL.

5

18. Common questions of law and fact exist as to all members of the Class, in that they

6

have had their civil rights violated by Mr. Singer’s UPL. All of the class members have been

7

dragged into court by the non-lawyer Mr. Singer while he was acting “in propria persona.” They

8

have all had their civil rights violated by the judicial defendants and non-judicial defendants who

9 10

have allowed Mr. Singer’s UPL. They have all been billed “receiver fees” that are actually legal fees incurred by a non-lawyer who was practicing law without a license. The order or judgments obtained by a non-lawyer engaged in the UPL of law are a “nullity” and the billed fees are not

11

recoverable because they are “unathorized legal services” as explained in the holding of the

12

Supreme Court in Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Ca.

13

4th 119, 135.6 19. Plaintiffs’ claims are typical of the claims of the members of the Class. Plaintiffs and

14 15 16

all class members sustained damages arising out of Defendant Siinger’s course of conduct related to his UPL scheme. The harms suffered by Plaintiffs are typical of the harms suffered by the class members.

17

20. The representative Plaintiffs have the requisite personal interest in the outcome of this

18

action and will fairly and adequately protect the interests of the Class. Plaintiffs have no interests

19

that are adverse to the interests of the members of the Class.

20

21. Plaintiffs’ counsel have the knowledge and experience to successfully prosecute this

21

action against the Defendants. While counsel for the Plaintiffs is aware of no conflict of interest

22

between counsel and members of the class, Plaintiff has noted that there is concern among the counsel for class members (in their own ongoing cases) involving their possible implication in

23

the UPL.

24

22. Common question of law and fact related to the UPL exist as to all members of the

25

Class and predominate over questions and law related to the receivership issues that affect the

26

individual members of the Class. Theses common questions of law and fact include, without

27 28

6

Birbrower, supra, 135: “We agree with the Court of Appeal to the extent it barred Birbrower from recovering fees generated under the fee agreement for the unauthorized legal services it _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 6

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limitation or exception, the impact of Mr. Singer’s UPL on the various receivership estates. A

2

favorable ruling on the issue of the UPL will render any orders or judgment or rulings related to

3 4 5

the underlying receiver issues moot.

23. A class action is superior to other available methods for the fair and efficient adjudication of the controversy because there are inherent obstacles and biases that judges have in judging other judges or themselves. In this action, judicial defendant Quidachay gave short

6

shrift to Plaintiff’s assertion on May 6, 2014 that Mr. Singer was engaged in the UPL. He simply

7

dismissed the UPL issue as “untimely.” Also, on October 20, 2014, when counsel for Plaintiff

8

Ruiz asked judicial defendant Lynn O’Malley Taylor if she was allowing Mr. Singer to practice

9 10

law without a license, the judicial defendant promptly and abruptly terminated the hearing. The judicial defendants don’t want this issue raised because it implicates them in the unlawful conduct of UPL. The Commission on Judicial Performance has found judges guilty of “aiding

11

and abetting” in the misdemeanor of UPL. For instance, on February 28, 1995, Victoria B.

12

Henley found that Judge Thomas M. Kelly of the Alpine Judicial District of California, aided

13

and abetted in the misdemeanor of the “unauthorized practice of law,” (RJN, Exhibit D):

14 15 16

The trial court determined that Judge Kelly, by agreeing that the Nevada attorney would handle the management of the lawsuits in the absence of a court order permitting the Nevada attorney to appear as counsel, after signing the complaints prepared by the attorney, unlawfully aided and abetted the unauthorized practice of law. (emphasis added).

17 18

A class action is needed here because, as experienced by Plaintiff, the judicial officers find one pretext or another to dispatch the issue and allow the receiver to continue his UPL. By suing the

19

judicial officers en masse, counsel can avoid some summary dismissals on the pretext that their

20

cases are “de facto appeals” under the Rooker-Feldman doctrine rather than general

21

constitutional challenges. Further, the cost and expense of each individual member of the class

22

litigating would be enormous and deter them from litigating even if they were afraid or rightly

23

apprehensive of suing judges.

VI. PARTIES

24 25 26 27

Plaintiffs 24. Archibald Cunningham (hereinafter Cunningham) is the owner of the condominium located at 1489 McAllister St., San Francisco, which is the subject of this lawsuit and was the subject of Mr. Coombs’ suit of September 29, 2010 to compel arbitration under the 2007 TIC

28 performed in California.” _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 7

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1

Agreement. (CPF-10-510760). Mr. Cunningham sued Mr. Coombs, Ms. Woods, and their

2

attorney, for fraud for suing on the defunct 2007 TICA rather than the governing document,

3 4 5

which was, under the California Subdivision Map Act, the 2009 CC&Rs and Bylaws. (CGC-11511994). After his civil complaint in state court was dismissed when he failed to post $50,000 in security under the state Vexatious Litigant Statute (VLS), Cunningham filed a federal civil rights suit, arguing that the VLS was never intended to be applied against “represented” litigants.

6

25. Humberto Ruiz is a tenant of Mr. Cunningham and was subject to eviction by Mr.

7

Singer’s first and second writ of possession. He avoid being evicted by filing a Claim of Right to

8

Possession under Code of Civil Procedure 1174.3, which halts an eviction. Although Mr. Singer

9 10

would “recall” his second writ of possession on Judicial Council form EJ-130 and check the box that he had not served “all the tenants” with a “Pre-judgment Clam of Possession,” Mr. Ruiz was still subject to eviction under the procedures promulgated under statutes and the judicial council

11 12

forms.

Defendants 26. Kevin Singer7. Mr. Singer is employed as a court-appointed receiver. He’s also the

13 14

“President” of a firm doing business in California as “Receiver Specialist.” Mr. Singer has been

15

employed in almost 200 cases in numerous counties throughout California. Alhough California

16

Rule of Court 3.1179(a)(1-2) provides that he should remain “neutral” and “act for the benefit”

17

of all who have an interest in the receivership property, he normally does the bidding of the party

18

seeking his appointment because he only gets paid and recovers his fees and expense once the

19

“receivership estate” is sold or liquidated. In all the cases cited in the Request for Judicial Notice,

20

Mr. Singer has practice law without a license. He’s also acted in excess of his statutory authority

21

as receiver and tried to initiate “contempt” actions against recalcitrant parties who do not follow

22

his biddings. In some of his pleadings, he’s asked to be allowed to use the Sheriff as his private

23

security company. (*See, RJN, Exhibit RHO). In another case, he slipped in a general release

24 25 26 27 28

7

Brentwood Academy v. Tennessee Secondary School Athletic Assoc. (2001) 531 U.S. 288, 298. “We have treated a nominally private entity as a state actor when it is controlled by an agency of the State, when it has been delegated a public function by the State, when it is entwined with government policies, or when government is entwined in its management or control.”: Blum v. Yaretsky, 457 U.S. 991, 997 (1982)(holding that the issue of whether a private party is an actor functioning under color of law or as a state actor is a question of law for the court _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 8

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form exonerating him from any liability. (*See, RJN, Exhibit FF). Besides improperly

2

expanding his statutory rights, he has engaged in a scheme to practice law without a license. In

3

the guise of being “in-house counsel,” his partner John Rachlin provides him “legal services.”

4

Likewise, the parties who have sought his appointment often have their attorney provide him

5

“legal services” or appear in court to provide him support during “oral argument.” For instance,

6

attorney John Scott McKay has written numerous pleadings on Mr. Singer’s behalf and acted as

7

his attorney at court. The fact that Cal. Rule of Court 3.1179 prohibits the party who sought

8

appointment from entering into any “agreements, contracts, or understanding” with the receiver,

9

both Mr. Singer and those very parties collude to bring about the “sale” of the receivership estate

10

so that they may collect their various fees.

11

27. John Rachlin. John Rachlin is an attorney licensed to practice law in California and

12

is also a principal in Receivershp Specialists. His duties with Receivership Specialists is

13

described as “in-house” counsel. He is sued in his individual capacity for aiding and abetting Mr.

14

Singer’s UPL. He’s provide his legal services to Mr. Singer and provided him various

15

“declarations” for the cases in which Mr. Singer has been appointed a receiver. (RJN, Exhibit

16

JR, Exhibit JR-1, Exhibit JR-2). Their firm Receivership Specialists is simply a mechanism

17

where Mr. Rachlin aids and abets Mr. Singer’s UPL in violation of CRPC 1-300(A) “[A]

18

member shall not aid any person or entity in the unauthorized practice of law.” Upon

19

information and belief, it may be shown that they are illegally fee-splitting in violation of the

20

CRPC.

21 22 23 24 25 26 27 28

28. RECEIVERSHIP SPECIALISTS. (John Rachlin, Rick Marguis). Receiver Specialists is a licensed business doing business in California. Mr. Singer is the principal and founder of the company. The company is sued for damages for the criminal activity of its principal. Rick Marquis is the firm’s licensed real estate broker who Mr. Singer uses for the “sales” of real property and then apparently splits or shares the commissions. Most recently, Mr. Marquis aided and abetted Mr. Singer’s UPL by participating in the wrongful eviction of an owner from his house.

29. Attorney General Kamala Harris. She is the chief law enforcement officer of the state of California and is charged with seeing “that the laws of the State are uniformly and _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 9

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1

adequately enforced.” (Cal. Const. Art. V, sec. 13). She has direct and complete supervisory

2

control over every district attorney and sheriff and such other law enforcement officers as

3 4

directed by law. In that regard, a district attorney’s enforcement action for violation against the UPL provides a basis for relief to the offended party. (Bus. & Prof. Code 61255). Further, the state constitution provides (Cal. Art. V, sec 13);

5 Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violations of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney. When required by the public interest or directed by the Governor, the Attorney General shall assist any district attorney in the discharge of the duties of that office.

6 7 8 9 10

Here, at least one class member has filed a complaint with the San Francisco District Attorney’s

11

Office as well as with the San Francisco Sheriff’s Department and Sheriff Ross Mikarimi.

12

Neither the district attorney, the Sheriff, nor the AG, however, has taken any steps to “enforce”

13

the prohibition against the UPL. Ironically, the San Francisco Sheriff’s Department at the behest

14

of Sheriff Mirkarimi and with the legal support of Mark Nicco has “enforced” a facially void “writ of possession” on Judicial Council form EJ-130 filed by non-lawyer receiver Kevin Singer.

15

30. Craig Holden, President of California State Bar. Craig Holden was elected

16

President of the California State Bar in September, 2014 and was promptly sued by the former

17

president (Joseph Dunn) who alleged that he was “fired” for Whistle-Blowing activities that

18

related, among other things, to the failure of the State Bar to uphold its duty to enforce the

19

prohibition against the unauthorized practice of law. This story was recently covered in the Los

20

Angeles Times. 8 Mr. Holden as President of the State Bar is charged with performing a variety of functions, most notably here, the prevention of the unlawful practice of law. (Keller v. State

21

Bar of California, (1999) 496 U.S. 1, 5; Keller v. State Bar (1989) 47 Cal. 3d. 1152, 1160, “In

22

addition to those duties, the State Bar enforces the law relating to the unlawful practice of law

23

and illegal solicitation upholding…” (Citations omitted)). Bus. & Prof. Code section 6001.1

24

provides that “protection of the public shall be the highest priority for the State Bar of California

25

and the board of trustees in exercising their licensing, regulatory, and disciplinary functions.”

31. City and County of San Francisco. (San Francisco Sheriff’s Department, Ross

26 27 28

Mirkarimi). The City is subject to for municipal liability for maintaining the policy of allowing 8

http://www.latimes.com/la-me-ln-cal-bar-20141113-story.html?track=rss; _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 10

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1

“court-appointed receivers” to practice law without a license and by enforcing the receivers’

2

facially void orders though the San Francisco Sheriff’s Office. For purposes of Monell liability,

3 4 5

it’s the policy and practice of the City, through the San Francisco Sheriff’s Department and Ross Mirkarimi, to enforce facially void “writs of possession,” which are not filed and signed by licensed California attorneys authorized to practice law and are not obtained after “judgments” under the Unlawful Detainer Act (as mandated by CCP §715.050), but by non-lawyer receivers

6

who are not members of the State Bar. This violates Bus. & Prof. Code §6125 as well California

7

Rule of Court 3.1180 which required the received to obtain court “approval” to “hire” an

8

attorney to file such a writ. On September 17, 2014, the San Francisco Sheriff’s Department

9

“served” a Notice to Vacate on Plaintiff and evicted him on November 6, 2014.

32. City and County of San Francisco. (George Gascon, San Francisco Sheriff’s

10

Department.) It’s also the policy and practice of the San Francisco District Attorney’s Office 11

not to enforce the prohibition against the UPL. While Steve Cooley and the DA’s Office in Los

12

Angeles has bent over backwards to deal with the issue of the UPL in the context of immigration

13

law, the DA’s office in San Francisco has neglected to implement any policy to curb or prevent

14

the UPL by court-appointed receivers. The DA’s office has failed to provide any training or

15

supervision regarding methods and procedures for assuring that the UPL is not taking place in

16

the county by court-appointed receivers. 9 Specifically, Plaintiff filed a complaint against Mr. Singer back in June, 2014 with Maffei of the Consumer Fraud Department of theDA’s office.

17

The DA’s office has failed to investigate his charges or respond to Mr. Singer’s UPL.

18

33. County of Los Angeles. (District Attorney Jackie Lacey). The City is sued for

19

municipal liability for maintaining the policy or practice of allowing “court-appointed receivers”

20

to practice law without a license. Former District Attorney Steve Cooley and the DA’s Office in

21

Los Angeles proactively dealt with the issue of the UPL, but there is no indication that District

22

Attorney Lacey has acknowledged or taken any steps to prevent the by court-appointed receivers.

The Los Angeles’ DA’s office, under the direction of District Attorney Lacey, has failed to

23 24

provide any training or supervision regarding methods and procedures for assuring that the UPL is not taking place in the county’s courts by court-appointed receivers. The failure to provide

25 26 27 28

9

The Ninth Circuit has found that four conditions for municipal liability must be satisfied in order establish municipal liaibilty for failing to take appropriate actions to preserve constitutional rights: "(1) that [the plaintiff] possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy `amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the `moving force behind the _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 11

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1

training or enforce the prohibition against the UPL in the context of court-appointed receivers is

2

a practice that has directly caused the constitutional violations of the members of the Class.

3 4 5 6

34. County of Kern (Kern County District Attorney Lisa Green). The County is sued for municipal liability under the holding of Monell v. Dept. of Social Services of City of N.Y. (1978) 436 U.S. 658, 694-695 on the grounds that it has failed to correct the policy or practice of allowing “court-appointed receivers” to practice law without a license.

35. County of Marin. (Marin County District Attorney Edward S. Berberian). The

7

County is sued for municipal liability under the holding of Monell v. Dept. of Social Services of

8

City of N.Y. (1978) 436 U.S. 658, 694-695 on the grounds that it has failed to correct the policy

9 10

or practice of allowing “court-appointed receivers” to practice law without a license.

36. City and County of Sacramento. (District Attorney Jan Scully). The County is sued for municipal liability under the holding of Monell v. Dept. of Social Services of City of N.Y.

11 12 13

(1978) 436 U.S. 658, 694-695 on the grounds that it has failed to correct the policy or practice of allowing “court-appointed receivers” to practice law without a license.

37. City and County of Alameda. (District Attorney Nancy O’Malley). The County is

14

sued for municipal liability under the holding of Monell v. Dept. of Social Services of City of

15

N.Y. (1978) 436 U.S. 658, 694-695 on the grounds that it has failed to correct the policy or

16

practice of allowing “court-appointed receivers” to practice law without a license.

38. City and County of Contra Costa. (District Attorney Mark Peterson). The County

17

is sued for municipal liability under the holding of Monell v. Dept. of Social Services of City of

18

N.Y. (1978) 436 U.S. 658, 694-695 on the grounds that it has failed to correct the policy or

19

practice of allowing “court-appointed receivers” to practice law without a license.

20

39. Judge Barbara A. Meiers. Judge Barbara A. Meiers is a judge at the Superior Court

21

of California in Los Angeles County. She is sued in her individual and official capacity for

22

aiding and abetting Mr. Singer’s UPL by signing off on his stipulation on September 18, 2014

23

and allowing him to set hearings and practice law in her courtroom even though he is unlicensed

24

and engaged in the UPL. (RJN, Exhibit BM).

25

40. Judge Robert H. O’Brien. Judge O’Brien is a judge at the Superior Court of

26

California in Los Angeles County. He is sued in his individual and official capacity for aiding

27

and abetting Mr. Singer’s UPL. He has allowed Mr. Singer to file pleadings, notice of hearings

28

constitutional violation.'" Oviatt v. Perace, 954 F.2d 1470, 1474 (9th Cir. 1992). _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 12

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1

and even a request for a “contempt” on December 24, 2013. (RJN, Exhibit RHO). While Judge

2

O’Brien curbed Mr. Singer’s overreach of his power as a receiver by inking out the hearing for a

3

contempt action, he did open his court as a forum for Mr. Singer’s UPL. Judge O’Brien also

4

rightly, unlike the vast majority of the other judicial defendants here, affirmatively curbed the

5

law firms’ request that Mr. Singer be given the right to engage the Sheriff as a private security

6

force to “to take and safely keep possession and control of the Properties.” (RJN, Exhibit RHO-

7

1, pg. 10, ¶18).

8

41. Judge David L. Brown. Judge Brown is a judge at the Superior Court of California

9

in Sacramento County. He is sued in his individual and official capacity for aiding and abetting

10

Mr. Singer’s UPL by allowing him to file pleadings, make court appearance, and represent

11

clients. (RJN, Exhibit DLB).

12

42. Judge Lawence John Appel. Judge Appel is a judge at the Superior Court of

13

California in Alameda County. He is sued in his individual and official capacity for aiding and

14

abetting Mr. Singer’s UPL. (RJN, Exhibit SS).

15

43. Judge Laurel S. Brady. Judge Brady is a judge at the Superior Court of California in

16

Contra Costa County. She is sued in her individual and official capacity for aiding and abetting

17

Mr. Singer’s UPL. (RJN, Exhibit EE, Exhibit G).

18

44. Judge Randolph Heubach. Judge Heubach is a judge at the Superior Court of

19

California in Marin County. He is sued in his individual and official capacity for aiding and

20

abetting Mr. Singer’s UPL. (RJN, Exhibit I).

21

45. Judge Marla Miller. Judge Miller is a judge at the Superior Court of California in

22

San Francisco County. She is sued in her individual and official capacity for aiding and abetting

23

Mr. Singer’s UPL. (RJN, Exhibit H).

24

46. Judge James Stoelker . Judge Stoelker is a judge at the Superior Court of California

25

in Santa Clara County. He is sued in his individual and official capacity for aiding and abetting

26

Mr. Singer’s UPL. (RJN, Exhibit Y).

27

47. Judge Lorna H. Brumfield. Judge Brumfield is a judge at the Superior Court of

28

California in Kern County. She is sued in her individual and official capacity for aiding and _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 13

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1

abetting Mr. Singer’s UPL. (RJN, Exhibit V).

2

48. Judge Delbert C. Gee. Judge Gee is a judge at the Superior Court of California in

3

Alameda County. He is sued in his individual and official capacity for aiding and abetting Mr.

4

Singer’s UPL. (RJN, Exhibit M).

5

49. Judge Harold Kahn. Judge Kahn is a judge at the Superior Court of California in

6

San Francisco County. He is sued in his individual and official capacity for aiding and abetting

7

Mr. Singer’s UPL, including his signing off on Mr. Singer’s stipulations. (RJN, Exhibit HK).

8 9

50. Judge David B. Flinn. Judge Flinn is a judge at the Superior Court of California in Contra Costa County. He is sued in his individual and official capacity for aiding and abetting

10

Mr. Singer’s UPL, including his signing off on Mr. Singer’s orders. (RJN, Exhibit DBF).

11

51. Judge Lynn O’Malley Taylor. Judge Lynn O’Malley Taylor is a judge at the

12

Superior Court of California in San Francisco County. She is sued in her individual and official

13

capacity for aiding and abetting Mr. Singer’s UPL in several cases. (CGC-10-510760; CGC 14-

14

542184 10). At an October 20, 2014 hearing, she terminated a hearing on a tenant’s Claim of

15

Right to Possession when the tenant’s counsel asked if she was allowing Mr. Singer to practice

16

law without a license. Mr. Singer had filed for a “writ of possession” without having obtained a

17

judgment under the Unlawful Detainer Act as mandated by CCP 715.050. (RJN, Exhibit LOT).

18

52. Judge Judith Craddick. Judge Craddick is a judge at the Superior Court of

19

California in Contra Costa County. She is sued in her individual and official capacity for aiding

20

and abetting Mr. Singer’s UPL filing of pleadings and other legal documents.. (RJN, Exhibit

21

JC).

53. Judge A. James Robertson II. Judge Robertson is a judge in the Superior Court of

22 23 24 25 26 27 28

10

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=case infoscreens&ARGUMENTS=-ACGC14542184,-AT,-AGenerated\%3A%20Nov-192014%2012\%3A25%20pm,-A00315649,-AD,-AOCT-14-2014,-ANOV-05-2014,ASort%20by%20Party%20Name,-ASort%20by%20Name,-AS,-AS,-AD,-AA,-A,-A,-A SINGER, KEVIN 11150 WEST OLYMPIC BLVD. LOS ANGELES, CA 90064

OTHER

Pro Per

OCT-23-2014 BOND OCT-23-2014 GENERIC CIVIL FILING (NO FEE) NOV-05-2014 EX PARTE APPLICATION FOR ORDER $60.00 PAYMENT

_____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 14

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1

San Francisco. He aided and abetted Mr. Singer’s UPL by allowing him to appear in court and

2

present oral argument, to file pleadings, and represent clients. On July 31, 2014, 11 Judge

3 4 5 6

Robertson allowed Mr. Singer to practice law in his courtroom and even issued him an order allocating him fees to defend himself in a federal civil rights lawsuit against Mr. Singer based on his UPL. He is sued in his individual capacity and his official and administrative capacity. Judge Robertson also aided and abetted Mr. Singer’s UPL in another case in which an appeal was taken. (CGC-09-492710; RJN, Exhibit JR, Exhibit JR-1).

7 8 9 10

54. Judge Donald Evans Quidachay. Judge Quidachay is a judge in the Evictions Division of the San Francisco Superior Court, Department 501. On May 6, 2014, he was presented with pleadings that asserted that the court-appointed receiver, Mr. Singer, was engaging in the UPL by filing pleadings, including a request for a writ of possession. Judge Quidachay stated that the objection to Mr. Singer’s alleged misdemeanor under Bus. & Prof.

11

Code §6126(a) was untimely. He has aided and abetted Mr. Singer by allowing him to come into

12

in his court room and commit the misdemeanor of UPL. He has willfully colluded with Mr.

13

Singer’s conspiracy to practice law without a license. He signed Mr. Singer’s drafted “writ of

14

possession” on August 20, 2014 knowing very well that such a writ can issue only “pursuant to a

15

judgment for possession in an unlawful detainer action.” (CCP §715.050). He is sued in his

16

individual capacity and his official and administrative capacity.

55. Judge Lillian Sing. Judge Lillian Sing is a judicial officer at the San Francisco

17

Superior Court. She has aided and abetted Mr. Singer’s UPL. For instance, on April 18, 2014,

18

she allowed Mr. Singer and Mr. McKay to come into her court-room and set times for Mr.

19

Singer’s request for a writ of possession. In assigning Mr. Singer court dates and allowing him to

20

request hearing dates, she participated in his crime of practicing law without a license and

21

colluded in his UPL conspiracy. She is sued in her individual and official capacity.

56. Chief Justice Tani G. Cantil-Sakauye. Chief Justice Cantil-Sakauye is the

22 23 24 25 26 27

Director of the Judicial Council, the state agency responsible for assuring that the law, statutes, and court rules and procedures are consistent with constitutional guarantees.

11

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=Vali dateCaseNumber&ARGUMENTS=-ACPF10510760 JUL-30-2014

ORDER ON EX PARTE APPLICATION (AUTHORIZING RECEIVER)

28 _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 15

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1

Defendant Chief Justice Cantil-Sakauye is a public agency director responsible for a

2

public entity, pursuant to 42 U.S.C. §121319(1)(A)&(B). She denied a class member’s

3

Petition for Review (S218853 12, file July 9, 2014) in which he sought declaratory and

4

injunctive relief against Mr. Singer’s unlawful practice of the law in the San Francisco

5

Superior Court. By failing to grant the petition, she has tacitly sanctioned Mr. Singer’s

6 7 8

criminal conduct and acted in the complete absence of all her jurisdiction. Defendant Chief Justice Cantil-Sakauye is sued in her official, individual, and administrative capacity.

57. Chief Justice Cantil-Sakauye is also authorized under Gov. Code §68501 to

9 10 11

appoint communities to study the “means” for improving the “administration of justice.”

She is also charged with the duty of preparing Judicial Council forms (Gov. Code §68511) to help implement court rules and enactments. She has failed to appoint any

12

“committee” to “study” the UPL in the context of receiverships. She also has failed to

13

produce any forms that allow a receiver to appear in court to seek “approval” to hire an

14

attorney under CRC 3.1180 without inadvertently engaging in the UPP. She has failed to

15

produce any form that would provide notice to an opposing party as well as the court that

16

a receiver is acting as an “agent” of the court (CRC 3.1179) as opposed in exercising

17

some right to self-representation on matters of his “own interests.” In failing to fabricate

18

such forms, she has enabled Mr. Singer’s UPL conspiracy and to perpetuate and deceive

19

the court that he is entitled to practice law solely based on his appointment as receiver.

58. Judge Anthony Kline. Judge Kline is the Presiding Judge of Division Two of

20 21 22 23 24

the Court of Appeals for California, First District. He summarily denied Plaintiff’s writ of mandate (A141788) seeking to enjoin Mr. Singer’s unlawful practice of law. On July 31, 2014, he summarily dismissed an appeal (A142115) related to Mr. Singer’s unlawful practice of law,13 essentially denying the class member any recourse to address the issue

25 12

26 27 28

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2078061&doc_n o=S218853 13

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2079756&doc_n o=A142115 _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 16

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1

of Mr. Singer’s unlawful practice of law. In refusing to uphold the law and enjoin Mr.

2

Singer’s violation of §6126(a), judicial defendant Kline has tacitly or effectively

3

approved and sanctioned and aided Mr. Singer in the commission of the crime and UPL

4

conspiracy. He is sued in his individual and official capacity.

5

59. Judge James Richmond. Judge Richmond is an appellate judge in Division

6

Two of the Court of Appeals for California, First District. He summarily denied a

7

Plaintiff writ of mandate (A141788) seeking to enjoin Mr. Singer’s unlawful practice of

8

law. In refusing to uphold the law as mandated by Judicial Canon 3B(2) and refusing to

9

enjoin Mr. Singer’s violation of Bus. & Gov. Code 6126(a), judicial defendant Richmond

10

has tacitly approved and sanctioned and aided Mr. Singer in the commission of the crime.

11

Judge Richmond has an unflattering reputation in the legal community for turning a blind

12

eye on judicial misconduct or implicating “lawyers” rather than judges. 14 He is sued in

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

07/31/2014 Dismissal order filed.

Respondent's unopposed motion to dismiss is granted and the above-entitled appeal is hereby dismissed.

14

In In re Henry James Koehler (A125012), Judge Richmond summarily denied two habeas corpus petitions before he got it right and granted the third petition. But by that time the mid70ish year old Princeton alumni, University of Michigan Law School educated lawyer, James Henry Koehler, had spent 10 days in jail (two five day stints), was disbarred, was financially and professionally ruined, and had moved backed to Ohio where the attorney who represented him speculated that it was likely that he was dead. Now some would argue that his death (negligent homicide by judicial fiat?) could not or should not be imputed to trial judge Susan I. Etezadi who issued the orders of contempt because his death was too attenuated from her orders or the delay of Judge Richmond in, not exactly upholding the law, but putting a long delayed end to the petty ego-damaged abuse in her position as a judicial officer. While Judge Richmond would scold the trial judge for not “crossing her ‘ts’ and totting her ‘i’” in using the “ultimate weapon” of contempt, he uttered nary a word about the “ultra vires” acts of the Judge Susan I. Etezadi. (Is contempt or incarceration a matter for facile penmanship metaphors?) However, he did take it upon himself to speculate whether Henry James Koehler was being “contumacious” and thereby somehow incited and provoked his incarceration on an “ad infinitum” basis. Of course, Henry James submitted to the trial court’s jurisdiction and went along with being thrown in jail for not complying with a facially void sanction order, but that did not deter Judge Richmond from impugning Henry’s motives and deflecting attention from the trial judge’s outrageous conduct.

It’s difficult to say whether the greater outrage lies with the sadistic trial judge who blatantly, recklessly, and arrogantly abuses her power or the appellate judge who fabricates excuses for her and enables the insanity, that is, the trial judge’s belief that she has the right to throw an attorney in jail “ad infinitum” and on the basis of sanctions under Family Code §271 that did not even _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 17

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1

his individual and official capacity.

60. Judge Cynthia Ming-mei Lee. Judge Lee at all times applicable herein was the

2 3 4 5

Presiding Judge of the San Francisco Superior Court with authority to administer, implement, and enforce the state’s statute related to the unauthorized practice of law. She had authority to promulgate policies and procedures for doing so. She is sued in her official capacity as an officer, agent, and employee of the City and County of San Francisco for damages and

6

prospective injunctive relief. 15 She is sued in her individual and in her administrative capacity

7

for damages for acts taken as an administrator and for failing to correct of the practice of

8

allowing court-appointed receivers to file pleadings and practice and schedule hearings on their

9

“pro se” motions. She was notified repeated by letter that Mr. Singer was engaged in the UPL. 61. Scott McKay16. Scott McKay is the lawyer for Mr. Coombs and Ms. Woods and is a

10 11

named Defendant and is sued in his individual capacity for aiding and abetting Mr. Singer’s UPL. He has provided Mr. Singer legal support in the state law arbitration case of In Re Coombs

12

(CPF 10-510760) in the San Francisco Court. In the arbitration proceeding, he drafted the order

13

seeking the appointment of Mr. Singer to enforce the “forced sale” in accordance with the 2007

14

TICA. Although Mr. McKay, as the “party seeking the appointment of the receiver,” was not to

15

come to any “understanding” or “agreement” with the receiver (CRC 3.1180(b)), Mr. McKay has

16

encouraged and conspired with Mr. Singer to commit the crime of practicing law without a

17

license. In fact, Mr. Singer’s billing statement showed that he and Mr. McKay coordinated the timing of Mr. Singer’s motion and that he and McKay had numerous correspondences regarding

18

his ex parte hearing. At the May 6, 2014 hearing before Judge Quidachay, Mr. McKay conceded

19

that Mr. Singer was not an attorney and he effectively conceded that he was committing a crime

20

but he nevertheless argued and tried to persuade Judge Quidachay, on Mr. Singer’s behalf, that

21

Mr. Singer was authorized to evict Plaintiff without first obtaining a judgment under the

22

Unlawful Detainer Act. Mr. McKay, as an officer of the court, knows that California Rules of

23

Professional Conduct 1-300(A) provides that “[A] member shall not aid any person or entity in the unauthorized practice of law.” Yet, he deliberately violated this rule and colluded with Mr.

24

Singer in the conspiracy to evict Plaintiff, which occurred on November 6, 2014. He is sued in

25 26 27 28

apply to this “attorney” who was representing his client.

15

Will v. Michigan Department of State Police, 491 U.S. 58, 77 (1989).

Dennis v. Sparks, 449 U.S. 24, 28 (1980) (holding that private parties who corruptly conspired with a state judge acted “under color of law”).

16

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1 2 3 4 5

his individual capacity.

62. Michael Coombs. Mr. Coombs has aided and abetted Mr. Singer in the UPL by providing declarations in his action in the San Francisco Superior Court. (CGC 10-510760). He has colluded in Mr. Singer’s conspiracy to practice law without a license by loaning him money to defend against charges that he is in fact practicing law without a license. (District Court, ND of Cal. cv-14-3250 WHA). He is sued in his individual capacity.

6

63. Tamara Woods. Ms. Woods has aided and abetted Mr. Singer in the UPL by

7

providing declarations in his action in the San Francisco Superior Court. (CGC 10-510760). She

8

has colluded in Mr. Singer’s conspiracy to practice law without a license by loaning him money

9 10

to defend against charges that he is in fact practicing law without a license. (District Court, ND of Cal. cv-14-3250 WHA). She is sued in her individual capacity.

VII. FACTUAL ALLEGATIONS

11 12

A. Statutory Framework for Unauthorized Practice of Law 64. Judicial officers have no authority to determine who practices law. The State Bar Act

13

(Bus. & Prof. Code, § 6000 et seq.) provides the comprehensive legislative scheme for regulating

14

the practice of law. It prohibits the practice of law by anyone who is not an active member of the

15

State Bar. (J.W. v. Superior Court (1993) 17 Cal. App. 4th 958, 965). Since the passage of the

16

State Bar Act in 1927, the general rule has been that "[w]hile any person may represent himself, and his own interests, at law and in legal proceedings," no person shall practice law for another

17

unless he or she is an active member of the State Bar. (Abar v. Rogers (1981) 124 Cal.App. 3d

18

862, 864; J.W. v. Sup. Ct., supra at 965). The prohibition against unauthorized law practice is

19

within the state's police power and is designed to ensure that those performing legal services do

20

so competently. (Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Ca. 4th

21

119, 127). Section 6125 articulates a strong public policy favoring the practice of law in

22 23 24

California by licensed State Bar members. (Birbrower, supra, 134).

1. Section 6125 65. Bus. & Prof. Code section 6125 thus states: "No person shall practice law in California unless the person is an active member of the State Bar." A person who engages in the

25

unauthorized practice of law may be guilty of a misdemeanor or felony (§6126), and subject to

26

civil penalties (§6126.5), and contempt (§6127). A single incident of practicing law without a

27

license constitutes a statutory violation. (People v. Ring (1937) 26 Cal. App. 2d Supp. 768, 773;

28

disapproved on other grounds in Birbrower, supra, 17 Cal. 4th, at 129). _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 19

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2. Exceptions to Section 6125

1

66. Exceptions to §6125 are narrowly drawn, strictly interpreted and are generally limited

2 3 4 5

to allowing out-of-state attorneys to make brief appearances before a state court. Title Nine Rules, 9.40-9.48, provide exceptions to §6125 for “out-of-state” attorney or certified law students (CRC 9.42) but there are no “exceptions” for “non-attorneys.” The Legislature has made two exceptions to section 6125, one for international disputes resolved in California under the

6

state’s rules for arbitration and conciliation of international commercial disputes. (CCP §1297.11

7

et seq). 17 The other for labor negotiations and arbitrations arising under collective bargaining

8

agreement in industries subject to federal law. (Teamsters Local v. Lucas Flour Co. (1962). 369

9

U.S. 95, 103).

3. No Judicial Exceptions to Section 6125

10

67. In Birbrower, the state Supreme Court “declined” to fashion an “arbitration 11

exception to section 6125’s prohibition of the unlicensed practice of law,” reasoning that an

12

“exception for arbitration is best left to the Legislature.” (Birbrower, supra, 133-134). In

13

rejecting the plea of an exception, the Supreme Court concluded, supra, at 131-133: This contention is without merit because it contravenes the plain language of the statute.

Section 6125 clearly states that no person shall practice law in California unless that person is a member of the State Bar. The statute does not differentiate between attorneys or nonattorneys, nor does it excuse a person who is a member of another state bar. (6) It is well-settled that, in determining the meaning of a statute, we look to its words and give them their usual and ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [7 Cal. Rptr.2d 238, 828 P.2d 140]; Kimmel v. Goland (1990) 51 Cal.3d 202, 208209 [271 Cal. Rptr. 191, 793 P.2d 524].) "[I]f statutory language is `clear and unambiguous there is no need for construction, and courts should not indulge in it.'

[Citation.]" (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218 [188 Cal. Rptr. 115, 655 P.2d 317].) (5b) The plain meaning controls our interpretation of the statute here because Birbrower has not shown "that the natural and customary import of the statute's language is either `repugnant to the general purview of the act' or for some other compelling reason, should be disregarded...." (Id. at pp. 218219.)

14 15 16 17 18 19 20 21 22 23

4. The Right to Self-Representation Does Not Apply to Individuals Acting in a Representative Capacity.

24 25

68. California appellate courts have uniformly refused to fashion exceptions to §6125 for

26 17

27 28

This exception provides that in a commercial conciliation in California involving international commercial disputes, “The parties may appear in person or be represented or assisted by any person of their choice. A person assisting in representing a party need not be a member of the legal profession or licensed to practice law in California.’ (CCP §1297.351). _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 20

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1

non-attorneys acting in “representative” capacities. 18 These courts have categorically rejected

2

the legal argument that individuals acting in a “representative capacity” are acting in “pro per.”

3 4 5

For instance, in City of Downey v. Johnson (1968) 263 Cal. App. 2d, 775, the Court of Appeals ruled that a non-lawyer representing his mother's estate as conservator and as executor after her death was held incapable of appearing in propria persona on behalf of her estate. The court expressly rejected the theory that "`an administrator, executor or guardian'" could "`practice law

6

in matters relating to his trusteeship on the theory that he is practicing for himself.'" (Id. at p.

7

779).

5. Judgments and Orders Obtained by Non-lawyer Receiver Are a Nullity.

8

69. Orders or judgments obtained by the non-lawyer receiver are a nullity.

9 10

((“The general American rule is that an unlicensed person cannot appear in court for another person, and that the resulting judgment is a nullity.” Russell v. Dopp (1995) 36 Cal. App. 765,

11

775; "A judgment obtained against a party represented by an unlicensed person is invalid." 1

12

Witkin, Cal. Procedure (3d ed. 1985; Attorneys, § 294, p. 330; “A nonattorney trustee who

13

represents the trust in court is representing and affecting the interests of the beneficiary and is

14

thus engaged in the unauthorized practice of law.” Ziegler v. Nickel (1998) 64 Cal. App. 545,

15

549; “Thus, one holding a special power of attorney cannot act as an attorney for another by

16

virtue of the power of attorney.” People ex rel. Dept. of Public Works v. Malone (1965) 232 Cal. App. 2d 531, 537).

17 18

B. Statutory and Regulatory Framework Related to Appointment of Receivers.

19 20

70. The California Supreme Court has stated that “[T]he appointment of a receiver is a

21

drastic remedy, may involve unnecessary expense and hardship and courts carefully weigh the

22

propriety of such appointment in exercising their discretion to appoint a receiver particularly if

23 24 25 26 27 28

18

*See, Torres v. Friedman (1985) 169 Cal. App. 3d 880, 888, A purported substitution of attorney form was ineffective because it purported to substitute a non-attorney guardian ad litem as the attorney of record; City of Downey v. Johnson (1968) 263 Cal. App. 2d 275, 279, a nonlawyer representing his mother’s estate as conservator and as executor after her death was incapable of appearing in court on behalf of estate; Abar v. Rogers (1981) 124 Ca. App. 3d 862, 865, a husband, not licensed to practice law, may not represent his wife as a plaintiff in civil suit; In re Gordon J (1980) 108 Cal. App. 3d 907, 914, juvenile not entitled to have father assist him in his defense or represent him since father was not member of the bar; Campell v. Jewish Com. For P. Services (1954) 125 Cal. App. 2d 771, non-lawyer brother could not appear as attorney for his sibling in a libel suit). _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 21

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1

there is an alternative remedy." (Hoover v. Galbraith (1972) 7 Cal. 3d 519, 528)..)

71. In California, a receiver may only be “appointed in the class of cases expressly set

2 3 4 5

forth in statute.” (Marsch v. Williams (1994) 23 Cal. App. 4th 238, 246; 6 Witkin, Cal. Procedure, (3 ed. 1985) Provisional Remedies, supra, § 340, pg. 288; Miller v. Oliver (1917) 174 Ca. 407, 410. The Marsch court explained that great care must be taken in “narrowly defining the circumstances” because the appointment of a receiver is tantamount to the statutory

6

authorization for the taking of the property of another and transferring it to the agent of a court.

7

(supra, 247). 19 This implicates the 14th and 5th Amendments concern for the taking of property

8

without due process of law. It also raises procedural due process issues regarding the standards

9 10

and procedures for the exercise of the statutory right to appoint a receiver and the due process safeguards to prevent improper takings.

72. Code of Civil Procedure section 564 provides:

11

"A receiver may be appointed, in the manner provided in this chapter, by the court in which an action or proceeding is pending in any case in which such court is empowered by law to appoint a receiver.

"In superior courts a receiver may be appointed by the court in which an action or proceeding is pending, or by a judge thereof, in the following cases: ...

12 13 14

"2. In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt; ...

15 16 17 18

"7. In all other cases where receivers have heretofore been appointed by the usages of courts of equity."

19 20 21

73. In some mortgages and deeds of trust, there are provisions stipulating that a receiver may be appointed in the event of a default. One California appellate court has viewed such a

22 23 24 25 26 27 28

19

Monarsch, supra, at 247-248: “…When exercised, it means the taking of property by the court from one who may turn out to be the rightful owner thereof, and transferring it, pro re nata, to an agent of the court vested with power to handle and dispose of it according as the court may direct for the purposes of the action in which such agent or receiver is appointed. There is no power vested in the courts more jealously guarded or safeguarded than this very power to appoint a receiver to take, for the court, the possession and control of the property of others, and this is because, as above suggested, the exercise of the power may mean the divesting the owner of his lawful right to remain in possession of his property. It is, therefore, obvious that, while the power to appoint a receiver is provisional and an ancillary remedy, its scope may go beyond that of a mere remedy and strike at the very substance of a person's property rights." _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 22

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1

“stipulation in a mortgage” as “an agreement in equity that should not be ignored,” and

2

presumably given effect or at least some “evidentiary weight.” (Barclays Bank of California v.

3

Superior Court (1977) 69 Cal. App. 3d 593, 601-602). In Barclays, the court took note of the

4

“New York rule” that does not consider it “inequitable to take the property out of an owner’s

5

hands pending an action to foreclose the mortgage” if the “parties have agreed, that, in case of a

6

default, a receiver shall be appointed.” (Barclays, supra, at 601-602, quoting C.B. Keogh

7

Manuf’g Co. v. Whiston, 14 N.Y.S. 344).

8 9

74. As a result of these stipulations coupled with the broad reading of statutory language related to“usages of equities,” financial institutions routinely include such stipulations in their

10

legal instruments and argue that they are “entitled to the appointment of receivers” in accordance

11

with the stipulations in either the deed of trust or mortgage without making any showing that the

12

real property security (rents, etc.) is inadequate to service the debt. (Barclays, supra, at 597;

13

Mines v. Superior Court (1932) 216 Cal. 776; Lovett v. Point Loma Development Corp. (1968)

14

266 Cal. App. 2d 70. 20 In short, an owner’s property is handed over to the receiver on the bare

15

allegations of a plaintiff and without the need for an evidentiary hearing on the factual and legal

16

issues of “default.” If a trust deed further provides that there is no need for an undertaking or a

17

bond, the trial court will even waive those court rules. (*See, RJN, Exhibit E, pg. 2/14-17). Mr.

18

Singer just files his “pleadings” in pro per (UPL), provides “points and authorities” for the sale,

19

and the trial court rubber stamps the sale “for the best interest of the parties.” (RJN, Exhibit

20

LHB, pg. 5/4-23).

21

C. The Various Appointments of Mr. Singer In This Class Action.

75. In the 200 cases or so in which Mr. Singer has been appointed as a receiver 21,

22 23

the courts have rubber-stamped every request for appointment without ever considering if

24 20

25 26

Lovett v. Point Loma, supra, 73-75: “Where the lienholder seeks enforcement of a provision in the lien agreement conferring the right to collect rents and apply such upon the secured indebtedness, the authority to appoint a receiver is conferred by Code of Civil Procedure, section 564, subdivision 7.”

27 28

21

*See Mr. Singer’s reference to his “Case List” at his web page. http://www.receivershipspecialists.com/case-list/ _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 23

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1

there is an “alternative” 22 to the “drastic remedy” that is the appointment of a receiver. In

2

fact, judicial defendant Wynne Carvil of the Superior Court of Alameda granted Budget

3

Finance Company’s unopposed motion for the appointment of a receiver in a “tentative

4

ruling” in a “law and motion” proceeding. Gregory Taylor’s property was simply handed

5

over to Mr. Singer without any type of evidentiary hearing and in apparent contravention

6 7

of fundamental notions of due process. (RJN, Exhibit L, Motion to Confirm Appointment of Receiver, RG 10499443).

76. Even when a defendant such as Benyam Mulugeta hires an attorney who

8

provides a memorandum of points and authorities opposing the “drastic remedy” of the 9 10 11

appointment of a receiver on equitable grounds, the trial judges routinely rubber stamp the requests for appointment which are normally brought by banks or other financial institutions that are represented by high-profile law firms. (RJN, Exhibit M, Lone Oak

12

Fund, LLC v. Mulugeta, RG 12634973). Four days after Mr. Mulugeta’s counsel files

13

his opposition, the judicial defendant Delbert C. Gee granted the motion to appoint the

14

receiver in a half-paragraph order. (RJN, Exhibit N). Not only were there no clear,

15

written, or published statutory standards or criteria that defendant had to satisfy in order

16

to defeat the appointment, the judicial defendant provided no written explanations or

17

reasons for granting the motion. In that regard, there is only a scant record on appeal and

18

no transcript of the law and motion hearing on which the defendant could fashion some

19

response to the court’s ruling.

77. The scope of a trial court’s appointment often exceeds the statutory limits or is

20 21 22

amended thereafter without regard to those limits. For instance, in Lone Oak Fund v.

Mulugeta, no sooner had Mr. Singer been appointed then he filed pleadings, appeared in court without an attorney (UPL), and asked for an ex parte hearing to expand his rights

23 24

and to allow him to issue “certificates of indebtedness” to support the receivership estate and his fees and expenses for managing the property. (RJN, Exhibit O). Despite Mr.

25 26 27 28

22

"[T]he availability of other remedies does not, in and of itself, preclude the use of a receivership. (Sibert v. Shaver [(1952)] 113 Cal.App.2d [19,] 21 [247 P.2d 609].) Rather, a trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership. (Alhambra-etc. Mines v. Alhambra G. Mine (1953) 116 Cal.App.2d 869, 873 [254 P.2d 599].)" (City and County of San Francisco v. Daley, _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 24

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1

Mulugeta’s objection that this would undermine the fair market value of the property

2

(RJN, Exhibit P), judicial defendant Gee allowed Mr. Singer’s unlawful practice of law,

3

his ex parte hearing, and granted him new powers. The judicial defendant then signs off

4

on Mr. Singer’s “proposed order” without changing a word. (RJN, Exhibit Q).

5 6 7 8

78. In a case in the Superior Court of Contra Costa County, judicial defendant Judith A. Sanders appointed Mr. Singer receiver based on the stipulations in the deed of trust (which stated… “in the event of a default under the Borrowing Agreement”) and the Plaintiff’s allegations in the complaint of the existence of a default. (RJN, Exhibit R, pg.

1/25-2). At an ex parte hearing on the proposed order to stipulate to a receiver, judicial

9 10 11

defendant Judith Sanders signed off on the order prepared by the law firm even though the order purported to allow Mr. Singer to “evict tenants.” (RJN, Exhibit R, pg. 6/16).

While CCP §564(b)(7) provides that a receiver may be appointed “in an action for

12

unlawful detainer,” there was no pending action, no proof the tenants were in breach, and

13

a question of whether Mr. Singer has standing to bring such an action because he is not

14

the landlord, owner, or a new purchaser. 23 In Los Angeles county, Mr. Singer sought an

15

order allowing him to rely on the “Sheriff” to ensure an owner left his property. (*See,

16

RJN, Exhibit RHO-1, pg. 10/13-16).

17

79. In another case, Mr. Singer seems to have colluded in a deliberate fraud on the

18

court and an owner as to his “powers” as a receiver. 24 He was appointed pursuant to CCP

19

§564(b)(3) to enforce an arbitration award requiring the “owner’s cooperation” in the

20

“forced sale” of the owner’s property under a Tenants-in-Common Agreement. (RJN,

21 22 23 24 25 26 27 28

supra, 16 Cal.App.4th at p. 745, 20 Cal.Rptr.2d 256.)

23 Berry v. Society of St. Pius X (1999) 69 Cal.App.4th 354, 358; The procedure in unlawful detainer "is covered in [Code of Civil Procedure section] 1161 et seq. The remedy, as broadened by statutory changes, is available in three situations: [¶] (a) Landlord against tenant for unlawfully holding over or for breach of the lease (the traditional and most important proceeding). ([Code Civ. Proc., http://www.receivershipspecialists.com/case-list/] 1161;...) [¶] (b) Owner against servant, employee, agent, or licensee, whose relationship has terminated. ([Code Civ. Proc., §] 1161(1);...) [¶] (c) Purchaser at sale under execution, foreclosure, or power of sale in mortgage or deed of trust, against former owner and possessor. ([Code Civ. Proc., §] 1161a;...)" (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 599, p. 69.)

24 Turner v. Superior Court, (1977) 72 Cal. App. 3d 804. The requirements of Code of Civil Procedure section 564 are jurisdictional, and without a showing bringing the receiver within one of the subdivisions of that section the court's order appointing a receiver is void. (Rondos v. _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 25

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 31 of 52 Page ID #:31

1

Exhibit S). The owner informed Mr. Singer that the TIC Agreement provided for the

2

“forced sale” of the “defaulting Cotenant’s’ cotenancy share in the TIC property,” and

3

that his interest was not a “tenancy-in-common” but a separately owned condominium

4

that had been converted to a condo a year Mr. McKay even filed his petition to compel

5

arbitration. Instead of returning to the court and asking for clarification of the arbitration

6 7 8

award or the appointment or for permission to file an unlawful detainer under CCP §564(b)(3), he simply asked “in propria persona” for judicial defendant to issue a “writ of

possession.” Although “writs of possession” are only issued “pursuant to a judgment for possession in an unlawful detainer action” (CCP §715.050), Mr. Singer convinced

9 10 11

judicial defendant to sign off, not on the approved Judicial Council form EJ-130, but his own drafted pleading. (RJN, Exhibit T). Mr. Singer was practicing law without a license while participating in a fraud.

12

D. The Unauthorized Practice of Law Conspiracy In the Context of Receiverships.

13

1. Incentives to Hire Non-Lawyer Receivers.

80. On his web site, 25 Mr. Singer identifies himself as the “President” of his firm

14 15 16

Receiver Specialist. His “in-house counsel” is John Rachlin, a member of the California State Bar (SBN 166214). 26 Mr. Singer’s unauthorized practice of law dovetails with the incentives lenders and other petitioning parties have for the appointment of a receiver. It is axiomatic that

17

lenders have an incentive to appoint a receiver in order to avoid the delay and expense of hiring

18

attorneys for a judicial foreclosure or some other legal proceeding such as an unlawful detainer

19

action. If a deed of trust or mortgage contains a stipulation for a receiver in the event of a default,

20

lenders can request a receiver and effectively regain control of the real property. The petitioning

21

party at once regains controls over rental incomes or other income-producing activities and can

22

call the shots through the receiver. On the other hand, the owner is deprived of his property, any income from rents, and is saddled with the new expenses of a receiver while trying to remain

23 24

solvent. This 14th Amendment rights to notice and hearing are essentially ignored. As noted above, upon appointment, the owner’s property is taken from him/her by operation of a statute

25

and apparently without an evidentiary hearing or the need for a lender to prove or show a

26

“default.”

27 28

Superior Court (1957) 151 Cal. App. 2d 193, 195, [311 P.2d 113]). http://www.receivershipspecialists.com/

25

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81. By hiring Mr. Singer as a receiver, lenders and petitioning parties are essentially

1 2 3 4 5

hiring his firm, Receiver Specialists, with an “in-house” counsel at Mr. Singer’s beck and call and a licensed broker, Mr. Marquis, who is available to sell any real property once Mr. Singer forces the parties to agree to sell. In one case, Satwant Singh complained that Mr. Singer had churned up $155,726.30 in fees and another $92,045.62 in “consultant fees,” presumably to his confederates at Receiver Specialists. This occurred in the 15 month period between October 15,

6

2012 and February 13, 2014. (RJN, Exhibit U).

7

2. Coercion to Stipulate to Sale.

82. Under the weight of Mr. Singer’s receivership, property and business owners feel

8 9 10

compelled to sell if they are to salvage any equity in their property or businesses. This is evinced in Mr. Singer’s pro per pleading for an order of sale of real proper that he filed in the Superior Court of Kern County on June 25, 2013. (RJN, Exhibit V). Likewise, Mr. Singer managed to get

11

an order for the sale of real property in the Superior Court of Santa Clara County, including a

12

“real estate commission” of $76,716 which Mr. Singer’s colleague and real estate broker, Mr.

13

Marquis, pocketed. (RJN, Exhibit W). Mr. Singer supports and justifies the need for a sale by

14

his bare allegations in his own pro per documents. (RJN, Exhibit X). In the “Stipulated

15

Distribution of Funds from the Sale” prepared by Mr. Singer “in propria persona” and filed by

16

him in court (RJN, Exhibit Y), he names his own price and walks away with fees of $31,258.23.

3. State Bar’s Responses to UPL.

17

83. Assembly Bill 1159 was passed to enhance the State Bar’s Office of the Chief Trial

18

Counsel’s (OCTC) enforcement powers to prosecute both lawyer and “notarios” fraud, a from of

19

unauthorized practice of law that preys on California’s large immigrant community. 27 Likewise,

20

the State Bar Committee on Professional Responsibility and Conduct issued an Ethics Alert (Feb.

21

2, 2000) to remind California attorneys that they may not, among other things, aid foreclosure

22

consultants (or other nonlawyers) in the unauthorized practice of law. (e.g., lawyers may not form partnerships or joint ventures with foreclosure consultants or other nonlawyers if any of the

23

business activities involve providing legal services). In other words, lawyers may not, under the

24 25

26

http://members.calbar.ca.gov/fal/Member/Detail/166214 AB 1159, signed by Governor Brown on October 5, 2014, expanded the State Bar Act related to the unauthorized practice of law so that it would apply to “anyone who is not an attorney” and is advertising as a “notario” as opposed to a notary public. The ban related to “notarios” is intended to prevent confusion about this label which has been exploited by non-attorneys hoping to present themselves as attorneys. “Notario,” in many Latin American nations, is a type of lawyer.

27

26 27 28

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1

guise of serving as “in-house counsel” for foreclosure consulting businesses, perform legal

2

services for clients.

3 4 5

4. Mr. Singer’s Scheme to Practice Law Without a License.

84. Mr. Singer’s UPL is not like those of the “notarios” who want to deceive the innocent and unsuspecting into believing they are “attorneys.” Mr. Singer’s motive is just the opposite. He wants lenders and other parties petitioning for a receiver to hire him as a “non-lawyer receiver”

6

so that the lender can gain immediate control over a property or business and avoid the costs of

7

hiring lawyers to undergo a foreclosure. As a non-lawyer receiver, unlike an attorney in a

8

foreclosure action, he gains immediate possession and control without the delay or expense of a

9 10

judicial foreclosure. But, at the same time, Mr. Singer markets his firm as a “one-stop shop” of in-house counsel, accountants, and licensed brokers who can dispatch a property. In one odd twist, a party sought to recover fees from a court-appointed receiver who was playing by the

11

books and hiring attorneys as required by CRC 3.1180. The party’s attorney presumed that the

12

prior receiver “would conduct her own legal work, as has the current referee, Kevin Singer.”

13

(RJN, Exhibit ZZ).

14

85. In this regard, Mr. Singer’s UPL follows the example of “foreclosure consultants.”

15

Mr. Singer’s associate, Mr. Rachlin, under the guise of serving as “in-house counsel” for their

16

firm (Receivership Specialists is tantamount of a business/real estate foreclosure firm), is performing legal services for lenders and petitioning parties Mr. Singer is working with. For

17

instance, in the Superior Court of Santa Clara County, Mr. Rachlin, while Mr. Singer practiced

18

law and filed the pleadings (UPL), provided his declaration for an ex parte hearing on the sale of

19

real property. He discussed with opposing counsel any “objections” they might have to Mr.

20

Singer’s ex parte order for sale of the property. (RJN, Exhibit JR, CIVMSC 11-00890). In Santa

21

Clara Superior Court, Mr. Singer, acting in propria persona, had Mr. Rachlin file a similar

22

pleading. (RJN, Exhibit JR-2). In short, Mr. Rachlin, behind the veneer of being in-house counsel, is providing legal support to Mr. Singer and legal services to the parties.

23 24

86. Besides using his “in-house counsel” at Receivership Specialist to perform legal services related to his receivership duties, Mr. Singer is even more brazen and cavalier about his

25

UPL. At a hearing on May 6, 2014, a class member filed pleadings and raised the issue of his

26

UPL. (RJN, Exhibit AA). Mr. Singer did not deny that he was appearing in court, filing legal

27

pleadings, and seeking court orders, and practicing law. Rather, he suggested or implied that his

28

“in-house” counsel could delegate to him authority to practice law. (“The right to practice law _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 28

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 34 of 52 Page ID #:34

1

not only presupposes in its possessor integrity, legal standing and attainment, but also the

2

exercise of a special privilege, highly personal and partaking of the nature of a public trust. It is

3 4 5 6

manifest that the powers and privileges derived from it may not with propriety be delegated to or exercised by a nonlicensed person.” McGregor v. State Bar (1944) 24 Cal.2d 283, 288). Judicial defendant Quidachay, who was presiding over the case, simply ignored the issue of Mr. Singer’s UPL and dismissed the matter of a misdemeanor as “untimely.”

87. Mr. Singer also insists that his duties as a receiver are his “own interests” or affairs

7

and he has the right to “self-representation” regarding these matters. As noted above, Mr. Singer

8

has the right to self-representation. However, when he’s acting as a receiver he’s an agent of the

9 10

court and acting in a “representative capacity,” not for his own interest. At October 20, 2014 hearing for one of the class members, Mr. Ruiz’ attorney raised the issue of Mr. Singer’s UPL. Mr. Singer insisted he had the right to act in “pro per” and judicial defendant Lynn O’Malley

11 12 13 14 15 16

Tyler terminated the hearing when counsel asked if she was allowing Mr. Singer to “practice law without a license.”

5. Aiding and Abetting Mr. Singer’s UPL Attorneys 88. State Bar members are subject to discipline for “aiding any person or entity in the unauthorized practice of law.” [CRPC-1-300(A); see Geibel v. State Bar 91938) 11 C2d 412, 419-423, 79 P2d 1073, 1078-1079…lawyers allowed their names to be used on pleadings

17

prepared by unlicensed persons without attorney’s review of supervision; Matter of Valinoti

18

(Rev. Dept. 2002) 4 Cal. State Bar Ct. Rptr. 498, 502;…attorney deliberately aided and abetted

19

unauthorized practice of law by relying on and permitting nonlawyers to prepare and file

20

immigration applications, pleadings, and other documents.) As noted above, Mr. Rachlin has

21

filed pleadings for Mr. Singer while he practiced law without a license. He’s also colluded with

22

or clandestinely authored all of the pleadings Mr. Singer has filed on behalf of clients’ of Receivership Specialists. Likewise, defendant McKay has appeared in court and presented oral

23 24

argument on Mr. Singer’s behalf. He has also aided and abetted Mr. Singer’s misdemeanor by providing him “points and authorities” in opposition to a motion that Plaintiff had filed to vacate

25

Mr. Singer’s August 20, 2014 writ of possession. Mr. Singer had drafted the writ himself and

26

judicial defendant attached his signature along with an impromptu “stay-away order.” (RJN,

27

Exhibit BB). He also aided and abetted Mr. Singer’s UPL by filing pleadings related to Mr.

28

Singer’s second and third writs of possession that affected Mr. Ruiz’ right to possession. (RJN, _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 29

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 35 of 52 Page ID #:35

1

Exhibit CC). Furthermore, there is the issue of whether various attorneys, such as Brenda Cruz-

2

Keith and Drexel A. Bradshaw deliberately aided and abetted Mr. Singer when they signed the

3 4 5 6

stipulation prepared by the unlicensed receiver. (*See, RJN, Exhibit H, San Francisco Superior Court, CGC-10-504897). In the Superior Court of Marin, attorney Roger L. Meredith also signed off on a stipulation prepared by the unlicensed receiver. (*See, RJN, Exhibit I, pg. 4). In this class action, there are dozens of attorneys who have signed off on Mr. Singer’s myriad “pro per” legal pleadings.

7

Non-lawyers/Lay Persons 89. According to former District Attorney Steve Cooley’s Manual on the Unauthorized

8 9 10

Practice of Law, the various offices of the District Attorney are to investigate a non-lawyer’s UPL or the aiding and abetting of such UPL. In his press release, 28 Mr. Cooley stated: "Unqualified and unlicensed con artists are preying on a growing number of unsuspecting victims, especially new immigrants,’’ Cooley said. "They’re not only taking their money but also violating their legal rights. As District Attorney, I am committed to combating this serious form of fraud."….

11 12 13

"This office has initiated numerous investigations and prosecutions against these unscrupulous operators. We also have led statewide efforts to strengthen California’s laws and the penalties for the unauthorized practice of law," Cooley said. "Working closely with the State Bar of California and community bar associations, I have launched a broad-scale effort to identify and prosecute these crimes."

14 15 16 17 18

In this class action, Mr. Singer’s real estate broker has aided and abetted his UPL by providing him “declarations” supporting Mr. Singer’s motion for a writ of possession. 29 Mr. Marquis also was present and choreographed with the San Francisco Sheriff’s Department the wrongful

19 20

eviction of Plaintiff on November 6, 2014. Further, defendants Coombs and Woods have provided Mr. Singer with their “declarations” in support of his various unlawful motions. As

21 22

28

23

29

24

http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=Vali dateCaseNumber&ARGUMENTS=-ACPF10510760

25 26 27

http://da.lacounty.gov/mr/archive/2004/021904b.htm

MAY-06-2014

UNLAWFUL DETAINER MOTION, 501, NTC OF MTN AND MTN FOR ORDER: 1) ISSUING A WRIT OF POSSESSION TO REMOVE ARCHIBALD CUNNINGHAM FROM THE PROPERTY LOCATED AT 1489 MCALLISTER ST, SF, CA 2) RESPONDENT IS ORDER TO STAY AWAY FROM 1489 MCALLISTER ST, SF, CA / DEC OF RICK MARQUIS; DEC OF J. SCOTT MCKAY; DEC OF KEVIN SINGER, SUBMITTED ON MAY-06-2014 BY RONALD E. QUIDACHAY.

28 _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 30

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1

noted above, Plaintiff filed a complaint regarding Mr. Singer’s UPL with the San Francisco

2

District Attorney’s Consumer Fraud Unit back in July, 2014.

State Bar Association/Craig Holden

3 4 5

90. The United States Supreme Court pointed out in Keller v. State Bar of California 496 U.S. 1 that the broad statutory mission of the State Bar is to “promote the improvement of the administration of justice.” It also noted that one of its functions was to “prevent the unlawful

6

practice of law.” (Keller, supra, at 5). However, as noted by Mark Geragos in his recently filed

7

lawsuit, the State Bar and President Craig Holden have failed to enforce the UPL as mandated by

8

AB 1159. In this class action, the class member’s complaint to the State Bar regarding defendant

9 10

McKay’s aiding and abetting Mr. Singer’s UPL was denied but the State Bar investigator invited him to resubmit it to the Office of the Chief Trial Counsel. Although Plaintiff has resubmitted his complaint, the State Bar has failed to enforce the prohibition against the ULP or investigate Mr.

11

McKay’s aiding and abetting of Mr. Singer’s UPL.

12

Attorney General Kamala Harris/District Attorney

13

91. On July 8, 2014, Plaintiff sent Attorney General Harris a letter complaining about Mr.

14

Singer’s UPL. The AG’s willful failure to enforce the prohibition against the UPL in the context

15

of non-lawyer receivers is equaled only by its unwillingness to admit or acknowledge the fact

16

that Mr. Singer and his firm are engaged in the UPL. VII. Judicial Immunity As Applied to the Misdemeanor of Unauthorized Practice of Law.

17

92. In Mireless v. Waco (1991) 502 U.S. 9, the Supreme Court noted that judges have

18

absolute immunity for “judicial acts” committed with malice, for erroneous decision, and even

19

for acts committed in the “excess of jurisdiction.” However, the Supreme Court, in Mirelss v.

20

Waco, also noted limits to immunity, recognizing that a judge’s “criminal acts” are not subject to

21

absolute immunity, citing 30 at fn 1 Ex Parte Virginia 100 U.S. 339, 348-349 (1880). In his

22 23

dissenting opinion in Mireless, Justice Stevens pointed out that a judge acts in a “judicial capacity 31” when he has bailiffs drag a public defender back into court but not when he orders bailiffs to commit a battery on him. (Id., at 14; “He ordered them to bring respondent into his

24 25 30

26 27 28

Mireless v. Waco, 502 U.S. 9, fn 1 (1991): The Court, however, has recognized that a judge is not absolutely immune from criminal liability,Ex parte Virginia, 100 U. S. 339, 348-349 (1880), or from a suit for prospective injunctive relief, Pulliam v. Allen, 466 U. S. 522, 536-543 (1984), or from a suit for attorney's fees authorized by statute, id., at 543-544.

31 Stumps v. Sparkman (1978) 435 U.S. 349 for the four-part test for determining when a judge acts in his official judicial capacity _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 31

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1

courtroom, and he ordered them to commit a battery. The first order was an action taken in a

2

judicial capacity; the second clearly was not. Ordering a battery has no relation to a function

3 4 5

normally performed by a judge.)

93. In the instant case, the judicial defendants have allowed Mr. Singer, a non-lawyer, to come into their courtrooms and practice law without a license. While the judicial defendants have each opened their courtroom as a forum for Mr. Singer to commit his misdemeanor, that

6

doesn’t make Mr. Singer’s act any less criminal, it makes it more insidious. The judicial

7

defendants decided, deliberately or inadvertently, to cloak his criminality in the guise of a

8

“judicial act,” but the fact is that the judges were simply “aided and abetting” the unauthorized

9 10

practice of law. The law against the unauthorized practice of law has never been upheld by the judicial defendants or enforced by the Attorney General or Craig Holden. (Rooker-Feldman does not apply to void judgments…)

11

94. Plaintiff is unable to identify any state or federal decision finding that a judge is

12

immune from liability for “aiding and abetting” the authorized practice of law, a criminal as

13

opposed to “judicial act.” The state Commission on Judicial Performance, however, has

14

censored a trial judge for “aiding and abetting” the unauthorized practice of law. On February

15

28, 1995, Victoria B. Henley found that Judge Thomas M. Kelly of the Alpine Judicial District

16

of California, aided and abetted in the misdemeanor of the “unauthorized practice of law,” (RJN, Exhibit D):

17 18 19 20 21 22

The trial court determined that Judge Kelly, by agreeing that the Nevada attorney would handle the management of the lawsuits in the absence of a court order permitting the Nevada attorney to appear as counsel, after signing the complaints prepared by the attorney, unlawfully aided and abetted the unauthorized practice of law. (emphasis added).

In this class action, the judicial defendants have “signed” off on myriad legal pleadings and orders prepared by Mr. Singer and allowed him into their court rooms to present oral argument on these pleadings and commit the misdemeanor of practicing law without a license.

23 24 25

FIRST CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiffs/Class Against All Defendants

26 27 28

(Violation of Class Members’ Civil Rights Under Color of State Law by Engaging in Conspiracy) 95. The Class Members reallege and incorporates herein by reference each and every _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 32

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1

allegation and paragraph previously set forth.

2

96. California Penal Code §182 provides that two or more persons engage in a conspiracy

3

when they collude and conspire to commit any crime, when they falsely maintain any suit, action

4

or proceeding, or when they try to cheat or defraud any person of property by means by

5

themselves are criminal. (Penal Code §182(a)(1-3)). Section §182(a)(5) also provides that there

6

can be a conspiracy to “pervert or obstruct justice, or the due administration of the law.”

7

97. California Business & Professional Code §6125 provides that “[N]o person shall

8

practice law in California unless the person is an active member of the State Bar.” Bus. & Prof.

9

code §6126(a) provides that “any person” who “holds themselves out” as “entitled to practice

10

law” but “who is not a member of the State Bar” or “otherwise authorized to practice law by

11

court rule or statute” is “guilty of a misdemeanor” punishable to up to one year in jail. Under

12

Bus. & Prof. Code §16240,32 a person satisfies the elements of the misdemeanor of practicing

13

law without a license when the person “practiced, or offered” to practice law but failed to have

14

the requisite license required by the State Bar.

15

98. As detailed above, the judicial defendants as well as the non-judicial defendants have

16

conspired with the court-appointed receiver Mr. Singer in the unauthorized practice of law and

17

did so with the objective of depriving the class members of their real and personal property

18

without due process of law. All of the judicial defendants are obliged under the Judicial Canon

19

3B to uphold the law and were on notice that the UPL is a misdemeanor. Nevertheless, they

20

conspired with Mr. Singer and aided and abetted him in prosecuting his various actions and

21

motions. By allowing Mr. Singer to come into their courtrooms “in propria persona” and under

22

the guise that he was entitled to “self-representation” as a receiver, they also have conspired to

23

violate Cal. Rules of Court 3.1180. This violation of the rules of court amounted to “improper

24

government activity” under the Whistle Blower Act, that is, Gov. Code §8547.2(c).

25 26

99. All of the defendants have conspired with each other to violate the civil rights of the class members by participating in Mr. Singer’s UPL conducted under the guise of his business,

27 28

32

*See, Bus. & Prof. Code 16240. _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 33

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 39 of 52 Page ID #:39

1

Receiver Specialists. All of the judicial and non-judicial defendants have either affirmatively

2

participated in, or, at a minimum, promoted the conspiracy, by filing Mr. Singer’s pleadings, by

3

providing him hearing dates, by providing sworn affidavits in support of his UPL scheme, by

4

providing oral argument in support his scheme, and by opening the court room as a forum for the

5

unlawful practice of law.

6

100. All the judicial and non-judicial defendants knew or should have known that Mr.

7

Singer’s UPL by and through and with his “Receivership Specialists” firm was a misdemeanor

8

under Bus. & Prof. Code §6126(a), an “improper government activity” under the Whistle Blower

9

Act, and any resultant orders or judgments are to be considered a “nullity.”

10 11 12 13

101 The actions of the judicial and non-judicial defendants were taken in bad faith, and with malice toward the class members.

102. The conduct of the judicial and non-judicial defendants represents a violation of 42 U.S.C. §1983 given that their actions were undertaken under color of state law.

14

103. Class members are informed and believe that Defendants Singer and his employees

15

at Receiver Specialists acted knowingly and willfully, with malice and oppression, and with the

16

intent to harm the class members. Therefore, pursuant to Cal. Civ. Code §3294, the class

17

members are entitled to an award of punitive damages for the purpose of punishing said

18

defendants and to deter them and other from such conduct in the future.

19 20 21 22 23 24 25 26 27

104. As a direct and proximate result of the unconstitutional acts described above, the class members have been irreparably injured.

SECOND CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiffs/Class Against All Defendants .

(Bus. & Prof. Code §6125 As Applied Violates Class Members’ Procedural Due Process Rights) 105. The class members reallege and incorporate herein by reference each and every allegation and paragraph previously set forth.

106. The class members are constitutionally guaranteed procedural due process under the

28 _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 34

Case 2:14-cv-09104-GW-JC Document 1 Filed 11/25/14 Page 40 of 52 Page ID #:40

1

5th and 14th Amendments, which requires both notice and an opportunity to be heard. 33 Before

2

the class members could be deprived of their personal and real property or business, they had the

3

right to be heard under the Fourteenth Amendment to the Constitution, which provides that no

4

State shall “deprive any person of life, liberty, or property, without due process of law.” 34

5

107. The class members had the constitutional right to adequate notice and “a meaningful

6

opportunity” 35 to be heard on the issue of whether Mr. Singer’s was engaging in the UPL and

7

whether the state trial courts were opening their courtrooms as a forum for him to commit his

8

misdemeanor and thereby unlawfully aiding and abetting his misdemeanor. (The "right to be

9

heard before being condemned to suffer grievous loss of any kind, even though it may not involve

10

the stigma and hardships of a criminal conviction, is a principle basic to our society." Joint

11

Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (Frankfurter, J. concurring). The

12

fundamental requirement of due process is the opportunity to be heard “at a meaningful time and

13

in a meaningful manner.” Armstrong v. Manzo, 380 U.S 545, 522 (1965).

108. In California, “the prohibition against unauthorized law practice is within the state's

14 15

police power and is designed to ensure that those performing legal services do so competently.”

16

(Bribrower, Montalbano, Condon & Frank, P.C., et al. v. Superior Court, (1998) 17 Cal. 4th

17

119, 127). The Attorney General and President of the State Bar know or should have known that

18

they have been delegated the responsibility by the Legislature and state constitution to uphold

19

and enforce the State Bar Act, particularly the prohibition against the UPL described in Bus. &

20

Prof. Code §§6125-6128. They know or should know that the class members have no authority

21

to “enforce” the prohibition against the UPL. The Attorney General, by failing to enforce the

22

prohibition against the UPL, both at the state level and through each county’s district attorney’s

23

office, has violated the class member’s due process rights.

24

109. The President of the State Bar knows or should know that the class members do not

25

have either the right or the authority to “enforce” the State Bar Act. By failing to adopt policies,

26 27 28

33

See 7 Witkin, Summary of Calif. Law (9th ed.) Constitutional Law, §502.

34 Also Calif. Const. Art. 1, §7.

35 Boddie v. Connecticut (1971) 401 U.S. 371: _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 35

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1

procedures, or issue an ethics advisory on the UPL in the context of receivership law, Mr.

2

Holden and the State Bar have also violated the class members’ due process rights under the 5th

3

and 14th Amendments.

4

110. The judicial defendants are obliged under the Judicial Canon to uphold the law and

5

are presumed to act “in the lawful exercise of their jurisdiction.” (Canon 3B(2); “A judge shall

6

be faithful to the law regardless of partisan interests, public clamor, or fear of criticism, and

7

shall maintain professional competence in the law.”; Evid. Code 666). By failing to uphold the

8

prohibition against the unlawful practice of law, the judicial defendants acted in excess of all of

9

their jurisdiction in unlawfully aiding and abetting the misdemeanor, violated Canon 3B(2), and

10

deprived the class members of their rights under the Due Process Clause of the 14th Amendment.

11

111. The actions of the judicial and non-judicial defendants were taken in bad faith, and

12

with malice toward the class members. This was evinced by judicial defendant Quidachay’s

13

dismissal of the challenge to Mr. Singer’s UPL at the May 6, 2014 hearing as “untimely.”

14

Similarly, judicial defendant’s Lynn O’Malley Taylor’s termination of an October 20, 2014

15

hearing when counsel for a class member asked her if she was allowing Mr. Singer to practice

16

law without a license evinced malice. Finally, judicial defendant James Robertson’s outrageous

17

order to grant Mr. Singer’s request for an attorney, to be paid at the class member’s expense, to

18

represent him in a civil rights suit in the federal court alleging Mr. Singer’s UPL not only was in

19

excess of all his jurisdiction but evinced malice. (Northern District of California, cv-14-3250.).

20

112. The conduct of the judicial and non-judicial defendants represents a violation of 42

21 22 23 24 25

U.S.C. §1983 given that their actions were undertaken under color of state law.

113. As a direct and proximate result of the unconstitutional acts described above, the class members has been irreparably injured.

THIRD CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiffs Against Singer, All Judicial and Non-judicial Defendants)

26 27 28

(Violation of Separation of Powers Clause) 114. Plaintiff realleges and incorporates herein by reference each and every allegation _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 36

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1

and paragraph previously set forth.

2

115. The Separation of Powers Clause precludes judicial officers from acting in

3

legislative capacities. (Calif. Const. Art 3, §3; “The powers of state government are legislative,

4

executive, and judicial. Persons charged with the exercise of one power may not exercise either

5

of the others except as permitted by this Constitution.). While the California Supreme Court

6

recognizes that “courts have fundamental inherent authority equity, supervisory, and

7

administrative powers, as well as inherent power to control litigation before them,”36 there are

8

constitutional limits on judicial authority. (Green v. Ralee Engineering Co. (1998) 19 Cal. 4th

9

66, 71; “…aside from constitutional policy, the Legislature, and not the courts, is vested with the

10

responsibility to declare the public policy of the state.”).

11

116. The judicial Defendants knew or should have known that the Legislature enacted the

12

State Bar Act, which granted the State Bar the authority to determine who is eligible or qualified

13

to practice law in California. 37 The judicial Defendants knew or should have known that their

14

“inherent authority” under the state constitution did not allow them to ignore Legislative intent,

15

policy, or the statutory scheme related to the unauthorized practice of law. (Bus. & Prof. Code

16

§§6125-6127). The judicial Defendants knew or should have known that the Legislature has not

17

delegated the authority to determine eligibility to practice law to individuals or the judiciary.

18

(“The right to practice law not only presupposes in its possessor integrity, legal standing and

19

attainment, but also the exercise of a special privilege, highly personal and partaking of the

20

nature of a public trust. It is manifest that the powers and privileges derived from it may not with

21

propriety be delegated to or exercised by a nonlicensed person.” McGregor v. State Bar (1944)

22

24 Cal.2d 283, 288).

23 24

117. In allowing Mr. Singer to practice law in various courtrooms throughout the state, the named judicial defendants knew or should have known that they had no authority to override

25 36

26 27 28

Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. App. 953, 967 J.W. v. Superior Court (1993) 17 Cal. App. 4th 958, 965). Since the passage of the State Bar Act, originally enacted in 1927, the general rule has been that "[w]hile any person may represent himself, and his own interests, at law and in legal proceedings," no person shall practice law for another unless he or she is an active member of the State Bar. (Abar v. Rogers (1981) 124 Cal.App. 3d 862, 864; J.W. v. Sup. Ct., supra at 965).

37

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1

the Bus. & Prof. Code §§6125-6127 and allow Mr. Singer to commit a misdemeanor in their

2

courtroom. They knew or should have known that under the Separate of Powers Clause they had

3

no authority to judicially legislate and allow Mr. Singer to practice law without a license. They

4

knew or should have known that neither they nor anyone else had the authority to delegate to Mr.

5

Singer the right to practice law.

6

118. In allowing Mr. Singer to commit a misdemeanor in their courtrooms, judicial

7

defendants acted in the complete absence of their jurisdiction, thereby forfeiting the right to

8

judicial immunity from suits for damages.

9

119. The effect of their violations of the Separation of Powers Clause was to deny the

10

class members their fundamental procedural due process rights. The class members had no notice

11

or reason to believe that judicial defendants would ignore the fact that Mr. Singer was engaging

12

in the unauthorized practice of law or that they would refuse to enforce the law regarding the

13

UPL and refuse to enjoin Mr. Singer’s illegal action. They had no reason to believe that Mr.

14

Singer, a non-lawyer without the skills, training, and legal education, and apparently lacking the

15

requisite moral turpitude, would be allowed to practice law, present pleadings chock-full of

16

memorandum of points and authorities, and presume to know what the law is.

17 18 19 20 21 22

120. The actions of the Defendants were taken in bad faith, and with malice toward the Plaintiff.

121. The conduct of the Defendants represents a violation of 42 U.S.C. §1983 given that their actions were undertaken under color of state law.

122. As a direct and proximate result of the unconstitutional acts described above, Plaintiff has been irreparably injured.

23 24 25 26 27

FOURTH CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiffs/Class Against All Defendants .

(Constitutional Challenge to Code of Civil Procedure §564 et. al., On its Face and As Applied Violated Class Members’ Substantive and Procedural Due Process Rights)

28 123. The class members reallege and incorporate herein by reference each and every _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 38

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1

allegation and paragraph previously set forth.

2

124. The class members are constitutionally guaranteed procedural due process under the

3

5th and 14th Amendments, which requires both notice and an opportunity to be heard. 38 Before

4

the class members could be deprived of their personal and real property or business, they had the

5

right to be heard under the Fourteenth Amendment to the Constitution, which provides that no

6

State shall “deprive any person of life, liberty, or property, without due process of law.” 39 125. The class members have the constitutional right to adequate notice and “a

7 8 9 10 11

meaningful opportunity” to be heard on the issue of whether the trial court should appoint a receiver under Code of Civil Procedure §564 and hand over the owner’s property to the receiver.

The Supreme Court in Mathews v. Eldridge (1976) 422 U.S. 319, 333 has stated that “[T]his Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.” (citations omitted.). In Boddie v. Connecticut (1971) 401 U.S.

12

371, the Supreme Court explained that the “meaningful opportunity” to be heard must be at a

13

“meaningful time and in a meaningful manner.” (Id, 378). The Cal. Rules of Court 3.1177 refers

14

to a “hearing” but provides no details as to the type of hearing and essentially begs the question

15 16

by stating that the parties may “suggest a receiver.” Worse yet, CRC 3.1176, by its language… “whenever a receiver is appointed without notice”…suggests that the appointment is automatic and presumed justified unless “the matter is made returnable upon an order to show cause.”

17

126. In this class action, the class members have been afforded “law and motion”

18

hearings with tentative rulings, summary procedures and with no statutory right to call witnesses,

19

to cross-examination, to present all “relevant evidence” (Evid. Code. §362). For instance, and as

20

noted above, Wynne Carvil of the Superior Court of Alameda granted Budget Finance

21

Company’s unopposed motion for the appointment of a receiver in a “tentative ruling” in a “law

22

and motion” proceeding. Gregory Taylor’s property was simply handed over to Mr. Singer without any type of evidentiary hearing and based solely on the self-serving pleadings of the

23

lender without any pretense of affording due process protections. (RJN, Exhibit L, Motion to

24

Confirm Appointment of Receiver, RG 10499443). ("The fundamental requisite of due process

25

of law is the opportunity to be heard." Grannis v. Ordean 234 U.S. 385, 394; “But when notice

26

is a person's due, process which is a mere gesture is not due process.” Mullane v. Central

27 28

38

See 7 Witkin, Summary of Calif. Law (9th ed.) Constitutional Law, §502.

39 Also Calif. Const. Art. 1, §7. _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 39

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1

Hanover Bank & Trust Co. 339 U.S. 306 (1950)).

127. In the deed of trust and mortgage cases cited here, lenders have relied on the

2 3 4 5

“stipulation to appoint” a receiver in those documents to summarily grant the appointment without requiring the lenders to even show “default.” (Barclays Bank of California v. Superior Court (1977) 69 Cal. App. 3d 593, 601-602). In that respect, the judicial defendant routinely rubber stamped the appointment based on the stipulation without affording the party a

6

meaningful hearing on the issue of default and the related underlying issue of whether the

7

lenders were engaging in predatory lending practices by demanding these “receivership

8

provisions” in their contracts as a mandatory condition for granting a loan. (RJN, Exhibit R,

9

pg. 6/16).

128. Not only are the hearings provided in the “trust deed and mortgage” cases of

10 11 12 13

this class action constitutionally flawed, but the hearings in the appointment cases related to the “enforcement of judgments” under CCP §564(b)(3) are also flawed. As noted above, several of the judicial defendants have granted Mr. Singer the right to “evict” tenants and apparently foregone the due process protections that inhere under the

14 15 16

Unlawful Detainer Act. In one case involving a class member, judicial defendant Quidachay ignored the need to grant Mr. Singer the right to bring an “unlawful detainer action” under CCP §564(b)(7), but instead just liberally construed CCP §564 and

17

concluded that the mere fact of appointment (given statutory language of a receiver’s

18

right to possession) was itself sufficient to “evict” a landlord without a judgment under

19

the Unlawful Detainer Act. (Oddly, the receiver’s right to possession was only construed

20

as applying to the owner of the real property, not his tenants/roommates; RJN, Exhibit

21

S).

22

129. The procedures, standards, and criteria for “granting” the appointment of a

23

receiver are also constitutionally inadequate, vague, or overbroad. As noted above, the

24

case law provides that the appointments are “drastic remedies” 40 that should only be

25 26 27 28

applied if there are no other “alternatives,” but the consistent and routine practice of trial courts is to rubber stamp the appointments. The orders granting the “appointments” are prepared by the attorney of the petitioning party and neglect to provide any legal basis or 40

City and County of San Francisco v. Daley (1993) 16 Cal. App. 4th 734, 745.

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1

explanation for the ruling. This precludes or undermines any possible appeal.

130. In the same way, there are no set standards, procedures, or written and

2 3

published criteria that a party or a trial judge can rely on or consider in determining

4

whether to deny or grant a party’s “opposition” to an appointment. The “oppositions” to

5

an appointment are also routinely denied without written explanations or legal reasons.

6 7 8

(RJN, Exhibit DD, Superior Court Ct. of Marin Court, CIV-025229). On the other hand, Kevin Singer is allowed by the court to file his opposition to a party’s motion to amend the appointment even though he is unlicensed (UPL) and is required to be acting as a “neutral” party under Cal. Rules of Court 3.1179(a). (RJN, Exhibit EE). Mr. Singer is

9 10 11

also allowed to draft and submit his own “proposed orders” regarding the trial court’s “Retaining Jurisdiction Regarding this Receivership” where he tries to slip in a provision excusing him from any potential liability. (RJN, Exhibit FF, pg. 2, “Finding that all of

12

the Receiver’s actions were right and proper and in the best interest of the Receivership

13

Estate.”). To his credit, judicial defendant John Appel inked out Mr. Singer’s impromptu

14

self-serving release (though he did not cite him for his UPL).

15

131. The state statute here is constitutionally infirm in that it leaves public policy

16

considerations related to the procedures, criteria, and standards for granting or denying an

17

appointment to the discretion of judges and, often times, the receiver himself. (Note Mr.

18

Singer’s attempt to limit his liability). Both trial judges and litigants must guess at what

19

standards they need to meet in order to defeat or prevail in a motion to appoint a receiver.

20 21

(“If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the

22 23

attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 US 104, 108-109 (1972)).

24

132. The judicial and non-judicial defendants know or should know that an individual has

25

a fundamental right to contract and be secure in one’s home. (Myers v. Nebraska 262 U.S. 390,

26

399; U.S. Const. Art. I, sec 10; Cal. Const. Art. I, sec 9). 41 While the state may have a rational

27 28

41

Myers, supra, 399: “While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 41

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1

reason or purpose for depriving a party of it real property without a meaningful hearing or

2

quickly expediting property disputes, there is no compelling reason to deprive an individual of

3 4 5 6 7 8 9 10 11 12

his real property or physical possession of his home (impromptu evictions) without a compelling reason. (“Strict scrutiny is the proper test of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Brandwein v. California Bd. of Osteopathic Ex'rs, 708 F. 2d 1466, 1470 (9th Cir. 1983) 133. The actions of the judicial and non-judicial defendants were taken in bad faith, and with malice toward the class members.

134. The conduct of the judicial and non-judicial defendants represents a violation of 42 U.S.C. §1983 given that their actions were undertaken under color of state law.

135. As a direct and proximate result of the unconstitutional acts described above, the class members has been irreparably injured.

13

FIFTH CAUSE OF ACTION FOR VIOLATION OF CIVIL RIGHTS (42 U.S.C. Section 1983)

By Plaintiff Against City and County of San Francisco (Sheriff’s Department), All District Attorneys, AG Kamala Harris

14 15 16

(Violation of Civil Rights under Color of Law Municipal and Individual Liability for Unconstitutional Policies and Practices)

17 18 19 20 21 22

136. The actions of the Defendants were taken in bad faith, and with malice toward the Plaintiff.

137. The Defendants know or should know that a municipality will be considered a person subject to liability within the meaning of section 1983 when “the municipality itself causes the constitutional violations at issue.” (Monell v. Dept. of Social Services of City of N.Y.

23

(1978) 436 U.S. 658, 694-695). The Defendants know or should know that the Supreme Court

24

explained that a policy, custom, or practice for purposes of imposing municipal liability under

25

section 1983 "generally implies a course of action consciously chosen from among various

26 27 28

also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 42

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1

alternatives.” (Oklahoma City v. Tuttle (1985) 471 U.S. 808, 823-824).

138. The Defendants know or should know that San Francisco Sheriff Ross Mirkarimi

2 3 4 5

had “final authority” to enforce or not enforce facially void “writs of possession.” In the same way, the District Attorney of each of the named municipalities had the “final authority” to establish policies and practices for enforcing the statutory prohibition against the UPL. (Pembaur v. City of Cincinnati (1986) 475 U.S. 469, 482-483; “The official must also be

6

responsible for establishing final government policy respecting such activity before the

7

municipality can be held liable.”).

COUNT ONE -San Francisco Sheriff’s Department.

8

139. Here, Plaintiff has spoken with and emailed Ross Mirkarimi and Rick Nicco, the

9 10

staff attorney for the Sheriff’s Department, and pointed out that Mr. Singer’s “writ of possession” was facially defective for not being filed by an attorney. Plaintiff informed both men

11

that Mr. Singer was engaged in the UPL. He informed them that a “valid writ” was a

12

precondition to their issuing a “Notice to Vacate.”42 Plaintiff’s attorney also emailed Mr. Nicco

13

and informed him that the writ was facially void in view of the UPL and the failure to comply

14

with statutory procedures. Both Mr. Nicco and the Sheriff were provided them copies of

15

Plaintiff’s pleadings and proof that the “writ of possession” was not issued pursuant to a

16

“judgment for possession under the Unlawful Detainer Act” as mandated by CCP section 715.050 but by a “petition to comply arbitration.” Nevertheless, the Sheriff and Mr. Nicco

17 18

scheduled three separate evictions, before finally forcibly and wrongfully evicting Plaintiff on November 6, 2014.

19

140. The San Francisco Sheriffs Department’s policy or practice of presuming that a

20

“writ of possession” issued by a court or a clerk of the court is presumptively valid or by

21

definition is not “facially ambiguous or void” is not supported by case law. The Sheriffs

22

Department should know that their improper policies and practices have been rejected by appellate courts. Bedi v. McMullen (1984) 160 Cal. App. 272, 275:

23 The trial court took the view an eviction by the marshal under color of judicial process is not forcible, by definition. (3) It is certainly true a landlord is not liable for forcible entry and detainer if he evicts a tenant under a valid writ of execution issued under an enforceable judgment. (Hamilton v. Waters (1949) 93 Cal. App.2d 866, 867 [210 P.2d

24 25 26 42

27 28

Bedi, supra, at 275: “A valid writ of execution is the ultimate indispensable element of the legal process by which a party entitled to possession of the property acquires possession. Allowing the landlord to forcibly evict a tenant on the strength of a judgment alone would remove the key conditions on the use of force: necessity and judicial authorization.” _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 43

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1 2 3 4

67].) (2b) But, the case at bench presents just the opposite set of facts. It is alleged the eviction was carried out under an invalid writ of execution issued under an unenforceable judgment.

Clearly, an eviction is no less forcible because it is carried out by the marshal instead of by the landlord personally. (See Tri-State Refreshments, Inc. v. Nitke (1964) 41 Misc.2d 386 [246 N.Y.S.2d 79, 83-84].)

5 6

Here, the Sheriffs Department policy and practice of enforcing facially void writs of possession

7

based not on judgments for possession” obtained under the Unlawful Detainer Act but on

8

petitions to compel arbitration should subject the City to Monell liability.

COUNT TWO-District Attorney’s Non-Enforcement Practice/Policy

9

141. The municipal Defendants know of should know that their policy or practice of

10

failing to enforce the prohibition against the UPL in the context of receivership cases was the

11

proximate cause of the class member’s constitutional violations. The Defendants know or should

12

know that the enforcement of the prohibition against the UPL is a matter within the “police

13

powers” and that the class members lacked any authority to enforce the statute. Without the

14

DA’s oversight and supervision, the members of the class were easy targets and prey for Mr. Singer’s unlawful scheme to practice law without a license, to game judicial inadvertence or

15 16

ineptitude, and to deprive the members of the class of their property, possession of their homes, and their peace of mind without due process of law.

17

142. Here, Plaintiff has informed the Consumer Fraud Division of the San Francisco

18

District Attorney’s Office of Mr. Singer’s UPL. He has also sent a complaint to AG Kamala

19

Harris and the U.S. Attorney General apprising them of Mr. Singer’s UPL. At a hearing on

20 21 22 23

August 5, 2014, Mr. Singer acknowledged Plaintiff’s complaints and interpreted the failure of the district attorney’s office to enforce his UPL as a vindication of his UPL. He then mocked and ridiculed Plaintiff’s allegations that he was engaged in the UPL, stating that he had the right to act in “pro per.”

143. The Defendants know or should know that each District Attorney in each of the

24

named municipalities is responsible for establishing official policy regarding the UPL as evinced

25

by the Prosecutor’s Manual for the Unlawful Practice of Law issued by former LA District

26

Attorney Steve Cooley. While it is laudable that District Attorney Cooley had implemented a

27

policy and manual for preventing the UPL, it’s shameful and a constitutional tort to have a policy for the remaining District Attorneys, as well as the current LA district attorney, not to enforce the

28

ban against the UPL. As noted above, AG Harris may be responsible for implementing a state_____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 44

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1

wide policy, but the District Attorneys for each county are the “final authority” for implementing

2

a policy and assuring that it is enforced. 43 The District Attorneys have woefully failed to enforce

3

the prohibition against the UPL, causing the class members’ irreparable harm.

144. This conduct on the part of the above-named Defendants, the San Francisco Sheriff,

4 5 6

and the various District Attorneys also represents a violation of 42 U.S.C. §1983, given that their actions were undertaken under color of state law.

145. As a direct and proximate result of the unconstitutional actions described above,

7 8

Plaintiff has been irreparably injured.

SIXTH CAUSE OF ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF

9 10

146. Plaintiff realleges and incorporates herein by reference each and every allegation

11 12

and paragraph previously set forth.

147. As stated herein, the members of the class, as citizens and individuals, are protected

13 14 15

by the laws of the State of California, as well as those of the United States Constitution, including the First, Fifth, and Fourteenth Amendments thereto.

148. As stated herein, the judicial defendants and non-judicial defendants have

16 17 18 19 20

wrongfully, unlawfully, and with deliberate indifference to the rights of the members of the class, acted, practiced an/or adopted policies, practices, procedures an/or customs which are in violation of the rights of the Class, including subjecting the members to actions, motions, and suits by individuals not authorized to practice law in the state of California.

149. The Defendants, particularly the judicial defendants, have failed to acknowledge

21 22 23 24 25 26 27 28

their improper, unlawful and unconstitutional actions, conduct and policies at the time of the incidents at issue in the present action, and Plaintiff is informed and believes, and on that basis alleges, that they have not changed or modified the procedures or policies that allow for the unauthorized practice of law and the enforcement of invalid of writs of possession (which is the basis for an eviction by the Sheriffs Department)..

43

Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (holding that “[t]he decision not to take any action to alleviate the problem of detecting missed arraignments constitutes a policy for purposes of § 1983 municipal liability”). _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 45

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1

150. The Defendants’ wrongful and unlawful conduct, actions and/or policies, unless and

2

until enjoined and restrained by order of this court, will cause, and continue to cause, great an

3

irreparable injury to the Plaintiffs, and other similarly situated members of the class, in that the

4

Defendants will continue to act in accordance with said unlawful polices, and with deliberate

5

indifference to their duties and obligations under state and federal law, including those under the

6

First, Fifth, and Fourteenth Amendments as alleged herein above.

7

151. Plaintiff has no adequate remedy at law to prevent or prohibit Defendants from

8

continuing, and/or repeating, their unlawful and unconstitutional conduct and policies related to

9

the UPL other than through declaratory relief, and therefore Plaintiff on behalf of the Class seek

10

an order enjoining and prohibiting Defendants, particularly judicial defendants, from, but not

11

limited to, conducting and/or allowing court-appointed receivers such as Kevin Singer or any

12

other non-lawyer to practice law and file lawsuits against Plaintiff.

13

REQUEST FOR RELIEF

14

WHEREFORE, Plaintiff prays that the Court order the following relief and remedies:

15

1). Issue a judicial declaration that Defendant Singer’s unauthorized practice of law is a

16

violation of the Class Member’s due process rights under the 14th Amendment, and 42 U.S.C.

17

§1983;

18 19

2). Issue a judicial declaration that a court receiver’s powers under the statute (CCP §568, CCP §708.610) do not entail the right to practice law without a license;

20 3). Issue a judicial declaration that a court-appointed receiver for the “right to possession” 21 22

under CCP §568 does not deprive the other party of his due process protections including the right to a jury trial under the Seventh Amendment and California Const. Art. I, sec. 16.

23 4). Issue a judicial declaration that a judicial officer acts in the complete absence of all 24 25

his jurisdiction in allowing his courtroom to be used as a forum for the commission of the misdemeanor of practicing law without a license;

26 5). Issue a judicial declaration that Mr. Rachlin, Mr. McKay and the other defendants 27 28

colluded and conspired with Mr. Singer to commit the crime of practicing law without a license and for the purpose of furthering their eviction scheme; _____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 46

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1 2 3 4 5 6 7 8

6). Issue a judicial declaration that all proposed orders, stipulations, or writs of possession submitted by Mr. Singer and signed by the judicial defendants’ while Mr. Singer was practicing law without a license are a “nullity” and invalid.

7). Issue a preliminary injunction enjoining Mr. Singer from practicing law while acting in his “representative capacity” as a court-appointed receiver.

8). Award the Class punitive damages for the conspiracy, costs and expenses, including reasonable attorney’s fees under 42 U.S.C. §1988; 9). Award such further and additional relief as is just and proper.

9 10 11

DEMAND FOR JURY TRIAL In accordance with Fed. R. Div. P. 38(b), and Central District Local Rule 38-1. Plaintiff hereby demand a jury trial on all issues triable by a jury.

12 13

Respectfully submitted,

14 /s/ Patricia Barry 15 16

________________________ Patricia Barry, Esq. Attorney for Plaintiffs

17 18

/s/ Archibald Cunningham

19

________________________ Arch Cunningham, Esq. Attorney for Plaintiffs

20 21 22 23 24 25 26 27 28

_____________________________________________________________________________________________________ Complaint for Damages and Declaratory and Injunctive Relief – PAGE 47

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 1 of 288 Page ID #:57

Patricia Barry, Esq. (SBN 59116) 634 S. Spring St., Suite 823 Los Angeles, CA 90014 (213) 995-0734 Arch Cunningham (SBN 210625) 1489 McAllister St. San Francisco, CA 94115 archcunnghm@yahoo.com (415) 563-1828 Attorneys for Plaintiff JOHN DOE, et al.

On behalf of themselves and other similarly situated.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ARCHIBALD CUNNINGHAM, ) HUMBERTO RUIZ, both individually and on ) behalf of a class of others similarly situated. ) Case No. 2:14-CV-9104 ) ) Plaintiffs, ) REQUEST FOR JUDICIAL NOTICE v. ) ) KEVIN SINGER, Court-appointed receiver, ) sued individually and official capacity; ) RECEIVERSHIP SPECIALISTS, a California ) licensed business, JOHN RACHLIN, ) principal, sued in his individual capacity; ) RICK MARQUIS, principal, sued in his ) individual capacity; KAMALA D. HARRIS, ) Attorney General of California, sued ) individually and in her official capacity; CITY ) AND COUNTY OF SAN FRANCISCO; San ) Francisco County Sheriff ROSS MIRKARIMI,) sued individually and in his official capacity; ) San Francisco District Attorney, GEORGE ) GASCON, sued individually and in his official ) capacity; COUNTY OF LOS ANGELGES, a municipality: District Attorney JACKIE ) LACEY, sued individually and in her official ) capacity; COUNTY OF KERN, District ) Attorney LISA GREEN, sued individually and ) in her official capacity; COUNTY OF ) MARIN, District Attorney EDWARD S. ) BERBERIAN, sued individually and in his official capacity; COUNTY OF

1

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 2 of 288 Page ID #:58

SACRAMENT, District Attorney DON SCULLY, sued individually and in his official capacity; COUNTY OF ALAMEDA, District Attorney NANCY O’MALLEY, sued individually and in her official capacity; COUNTY OF CONTRA COSTA, District Attorney SCOTT PETERSON, sued individually and in his official capacity; JUDGE BARBARA A. MEIERS, Los Angeles Superior Court Judge, sued individually and in her official capacity; JUDGE ROBERT H. O’BRIEN, Los Angeles Superior Court Judge, sued individually and in his official capacity; JUDGE THOMAS L. BROWN, Sacramento Superior Court Judge, sued individually and in his official capacity; JUDGE LAWRENCE J. APPEL, Alameda Superior Court Judge, sued individually and in his official capacity: JUDGE LAUREL S. BRADY, Contra Costa Superior Court Judge, sued individually and in her official capacity; JUDGE RANDOLPH HEUBACH, Marin Superior Court Judge, sued individually and in his official capacity; JUDGE MARLA MILLER, San Francisco Court Judge, sued individually and in her official capacity; JUDGE JAMES STOELKER, Santa Clara Court Judge, sued individually and in his official capacity; JUDGE LORNA H. BRUMFIELD,, Kern Court Judge, sued individually and in her official capacity; JUDGE DELBERT C. GEE, Alameda Superior Court Judge, sued individually and in his official capacity; JUDGE DAVID B. FINN, Contra Costa Superior Court Judge, sued individually and in his official capacity; JUDGE LYNN O’MALLEY TAYLOR, San Francisco Court Judge, sued individually and in her official capacity; JUDGE LYNN JUDITH CRADDICK, Contra Costa Court Judge, sued individually and in her official capacity; JUDGE DONALD EVANS QUIDACHAY, San Francisco Superior Court Judge, sued individually and in his official capacity; JUDGE A. JAMES ROBERTSON II., San Francisco Superior Court, sued individually and in his official capacity; ,JUDGE LILLIAN SING, San Francisco Superior Court Judge, sued individually and in her official capacity; PRESIDING JUDGE MING-LEE, Presiding Judge of the San Francisco Superior Court, sued individually and in her official capacity; CHIEF JUSTICE CANTIL-SAKAUYE, Chief Justice of State Supreme Court, Chair of California Judicial Council, sued individually and in her official

2

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 3 of 288 Page ID #:59

capacity; PRESIDING JUSTICE ANTHONY KLINE, California Court of Appeals, First Appellate Division, sued individually and in his official capacity; JUDGE JAMES RICHMOND, Justice of California Court of Appeals, First Appellate District, sued individually and in her official capacity; JOHN SCOTT McKAY, an officer of the court and attorney in the underlying case, sued in his individual capacity; MICHAEL COOMBS, property-owner and partner in condominium association, sued in individual capacity, TAMARA WOODS, property-owner and partner in condominium association, sued in individual capacity.

Defendants, and DOES 1 through 10.

Plaintiffs and members of the Class respectfully request pursuant to Fed. R. Evid. 201 that the District Court take judicial notice of official records, transcripts, judicial council forms, pleadings, and correspondences from various superiors courts of the state of California as well as pleadings from California Commission on Judicial Performance.

Fed. R. Evid. 201 (b) states that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be determined.” It is appropriate for a court to take judicial notice of court filings and other matters of public interest such as the pleadings in related litigation. *See, Reyna v. Pasta Bella, LLC v. Visa USA, Inc. 442 F. 3d 741, 746, n. 6 (9th Cir. 2006); Schweitzer v. Scott, 469 F. Supp. 1017, 1020 (C.C. Cal. 1979). Sufficient notice of matters subject to judicial notice is provided by lodging a copy of the relevant documents and records with the Court. Fed. R. Evid. 201(d).

DECLARATION OF PLAINTIFFS’ COUNSEL I, Patricia Barry, declare as follows: 1. I am the counsel for Plaintiffs and the members of the class and an active member of the California State Bar. 2. I have personal knowledge of the matters set forth in this declaration and could competently testify if called as a witness, except for matters stated upon information and belief, and as to those matters I believe them to be true.

3

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 4 of 288 Page ID #:60

3. A true and correct copy of the following court records are attached to this declaration as Exhibits A-EE. The records, pleadings, transcripts are from proceedings in superior courts of the state of California and the California Commission on Judicial Performance.

Exhibit Title Date Pages ___________________________________________________________________________

Exhibit A

Mark J. Geragos’ Complaint Against State Bar President Craig Holden

11/17/14

9-23

Exhibit B

Contempt of Court Hearing Against John Tyler and Gregory J. Tyler; If Found Guilty, Fine $1,000 and Hold Under Arrest for Five Days or Until They Turn Over $3,245 of Receivership Rents and Books/Records.

7/30/10

24-33

Exhibit C

Memo of Points and Authorities In Support Of Humberto Ruiz Claim of Right to Possession

9/26/14

34-50

Exhibit D

Commission on Judicial Performance Censure of Judge Thomas Kelly

2/28/95

51-53

Exhibit E

Motion for Order for Receiver to Obtain Legal Counsel, Memo of Points & Authorities

9/11/12

54-73

Exhibit F

Declaration of Satwant Singh In Opposition 9/20/12 To Plaintiff’s Motion for Appointment of Receiver (CIVMSC-12-01134, Santa Clara Sup. Ct.)

74-81

Exhibit G

Receiver’s Declaration and Response to Amend Order Confirming Appointment (CIVMSC-12-01134, Santa Clara Sup. Ct.)

5/23/14

82-91

Exhibit H

Kevin Singer’s Stipulation Amongst the Parties To Buyout Interest in Property and Application For Orders (CGC-504807; SF Sup. Ct).

1/18/13

92-106

Exhibit I

Kevin Singer’s Stipulation and Order Correcting the Address and Name of the Real Property to Be Secured By a Bank Loan (FL 060341; Marin Sup. Ct)

5/31/11

107-114

Exhibit J

Judge Carvill’s Order Granting Motion to Confirm Appointment Of Receiver

7/16/10

115-116

4

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 5 of 288 Page ID #:61

Exhibit K

Defendant’s Memo of Points and Authorities In Opposition to Order to Show Cause Re Appointment of Receiver (Alameda Sup. Ct. No. RG 12-634973)

7/6/12

117-126

Exhibit L

Judge Delbert Dee’s Order Granting Receiver (Alameda Sup. Ct. No. RG 12-634973)

7/10/12

127-128

Exhibit M

Kevin Singer’s Ex Parte Application for Order Authorizing Receiver to Borrow Money and Execute Receiver Certificates (Alameda Sup. Ct. No. RG 12-634973)

9/10/12

129-142

Exhibit N

Judge Delbert Dee’s Order Granting Ex Parte Application of Mr. Singer (Alameda Sup. Ct. No. RG 12-634973)

9/12/12

143-148

Exhibit O

Order Appointing Receiver (Contra Costa County Sup. Court No. CIV C12-00284)

7/12/12

149-162

Exhibit P

Order Appointing Receiver (SF Sup. Co. No. CGC 10-510760)

8/1/11

163-170

Exhibit Q

Judge Quidachay Signing Off on Kevin Singer’s Writ of Possession (SF Sup. Ct.No. CGC-10-510760)

8/20/14

171-182

Exhibit R

Declaration of Satwant Singh In Support of 4/1/14 Motion to Amend Order Confirming Appointment Of Kevin Singer as Receiver (C-12-01134)

183-186

Exhibit S

Kevin Singer’s Notice of Order Judge Blumfield’s Order Granting Singer’s Ex Parte Application (Kern County Sup. Ct. S-1500-CV-277435)

7/23/14 6/25/13

187-194

Exhibit T

Judge Solker Signing Off on Kevin Singer’s Proposed Order for Sale of Bellville Way Sunnyvale, CA (Santa Clara Sup. Co. No 112-CV-222194)

1/17/13

195-207

Exhibit U

Declaration of Mr. Singer in Support of Motion for Interlocutory Judgment for Partition of Real Property

6/14/13

208-240

5

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 6 of 288 Page ID #:62

(Santa Clara County Court; 112-cv-237304) Exhibit V

Kevin Singer’s Stipulation RE: Distribution Of Funds from Sale of Property (Santa Clara County Sup. Ct. 112-cv-222194)

3/20/13

241-249

Exhibit W

Kevin Singer’s Notice of Order (LA Sup. Ct., No. BC465205)

12/30/13

250-257

Exhibit X

Judge O’Briens Order Granting Appointment of Receiver (LA Sup. Ct., No. BC465205)

12/2/13

258-272

Exhibit Y

Kevin Singer’s Stipulation RE: Approving Sales Package to Be Used In the Sale of 12 Condominiums Units (Sup. Ct. of Alameda, No. RG 10508193

7/15/10

273-281

Exhibit Z

Kevin Singer’s Order for Retaining Jurisdiction Regarding Receivership (Sup. Ct. of Alameda, No. RG9440563)

8/14/09

282-288

Exhbit AA

Kevin Singer’s Pleading, Ex Parte Declaration of John Rachlin (LA Sup. Ct., No. BC465205)

12/24/13

289-291

Exhbit BB

Kevin Singer’s Pleading, Ex Parte Declaration of John Rachlin (Santa Clara Sup. Ct. No. 112-CV-222194)

1/2/13

292-294

Exhibit CC

Kevin Singer’s Pleading, Ex Parte Declaration of John Rachlin (Contra Costa Sup. Ct. No. CIVMSC 11-00890

11/26/13

295-297

Exhibit DD

Kevin Singer’s Ex Parte Application to Sell Property, Points and Authorities (Sacrament County Sup. Ct. No. 34-2012-00124519)

9/24/13

298-309

Exhibit EE

Kevin Singer’s Ex Parte Application Confirming Stipulation to Conduct Sale (SF Up. Ct. No. CGC-09-493126)

4/16/12

310-333

Exhibit FF

Kevin Singer’s Notice of Order

12/9/13

334-337

6

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 7 of 288 Page ID #:63

Exhibit GG

Judge David B. Finn Signing Off On Kevin Singer’s Proposed Order

12/12/13

338-340

Exhibit HH

Judge Lynn O’Malley Taylors Denial Of Claim of Right to Possession

10/29/14

341-345

Exhibit II

Singer’s Ex Parte to Sell Property 1785 Rockwood Place, Concord (Contra Costa County Sup. Ct. No. CIVMSC 11-00890)

11/26/13

346-355

Exihibit JJ

Judge James. A. Robertson Signing Off On Kevin Singer’s Order Instructing Receiver as to The Distribution of Proceeds From Sale of Liquor License (SF Sup. Ct. No. CGC-09-492710)

1/31/1

356-365

Exhibit KK

Judge Robertson Signing Off on Kevin Singer’s Order Approving and Ratifying All of Receiver’s Acts and Transactions (CGC- 13-533770)

3/7/14

366-375

Exhibit LL

Objections to Approval of Sale (SF Sup. Ct. No. CGC 09-493126)

6/27/12

376-380

Exhibit MM

Opposition to Motion to Vacate Mr. Singer’s Writ of Execution (SF Sup. Co. No. CGC 10510760)

9/29/14

381-387

Exhibit NN

Judge Quidachay’s Order Denying Claim of Right of Possession by Humberto Ruiz, Jr. (SF Sup. Co. No. CGC 10-510760)

10/8/14

388-392

Exhibit OO

Opposition to Motion for Appointment Of a Receiver. (Marin County Sup. Ct. No (CIV 025229)

9/26/11

393-402

Exhibit PP

Declaration of William Cheek in Opposition to Motion for Appointment Of a Receiver. (Marin County Sup. Ct. No (CIV 025229)

9/26/11

403-407

Exhibit QQ

Receiver’s Declaration and Response To Defendant’s Motion to Amend Order Confirming Appointment of Kevin Singer

5/23/14

408-417

7

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 8 of 288 Page ID #:64

As Receiver (Sup. Ct. Contra Costa, No. CIVMSC 12-01134) Exhibit RR

Exhibit SS

Revised Notice of Continuance of Hearing (LA Sup. Ct. BC447913)

10/3/14

Stipulation Between Kevin Singer City National Bank, Kogan Law Firm

9/18/14

Kevin Singer’s Ex Parte Order to Sell 228-318 White Lane In Bakersfield (Kern County Sup. Ct. No. S-1500-CV-277435)

6/24/13

418-428

429-441

Respectfully submitted, /s/ Patricia Barr ________________________ Patricia Barry, Esq. Attorney for Plaintiffs/Class Dated: 11/22/14

8

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 9 of 288 Page ID #:65

EXHIBIT A

9

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 10 of 288 Page ID #:66

1 2 3 4 5 6

GERAGOS & GERAGOS A PROFESSIONAL CORPORATION LAWYERS HISTORIC ENGINE Co. No. 28 644 SOUTH FIGUEROA STREET Los ANGELES, CALIFORNIA 90017-3411 TELEPHONE (213) 625-3900 FACSIMILE (213) 625-1600 GERAGOS@GERAGOS.COM

MARK J. GERAGOS SBN 108325 BEN J. MEISELAS SBN 277412 Attorneys for Plaintiff SENATOR JOSEPH DUNN (Ret.)

7 SUPERIOR COURT OF THE STATE OF CALIFORNIA

8

COUNTY OF LOS ANGELES - CENTRAL DISTRICT

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Case No.

SENATOR JOSEPH DUNN (Ret.), Executive Director of the State Bar of California; and WHISTLEBLOWER DOES 1-7,

COMPLAINT FOR DAMAGES 1.WHISTLEBLOWER LIABILITY AND RETALIATION CALIFORNIA LABOR CODE SECTION 1102.5 2.BREACH OF FIDUCIARY DUTY

Plaintiff, vs.

15 16 17

THE STATE BAR OF CALIFORNIA; CRAIG HOLDEN, an individual; and ROES 1 through 50, inclusive,

TRIAL

Defendants.

18 19 20

DEMAND FOR

INTRODUCTION 1.

Senator Joseph Dunn (Ret.), the Executive Director of the State Bar of

21

California, and Whistleblower DOES 1-7 bring this whistleblower action and demand for

22

injunctive relief against the State Bar of California (the "State Bar") based on the State Bar's

23

unilateral termination of Senator Dunn's employment on November 7, 2014, immediately

24

after Senator Dunn, and other whistleblowers, through counsel, lodged two whistleblower

25

notices with the State Bar's Board of Trustees ("BOT") on November 3, 2014 and November

26

5, 2014.

27 28

1 COMPLAINT

Exhibit A 10

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 11 of 288 Page ID #:67

2.

1 2

prosecutorial lapses, and fiscal improprieties by State Bar President Craig Holden, certain

3

BOT members, and Chief Trial Counsel and head of the State Bar's Office of the Chief Trial

4

Counsel ("OCTC") Jayne Kim, which were being concealed from the public.

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Senator Dunn's whistleblower notices identified senous ethical breaches,

3.

The conduct Senator Dunn complained about included (1) the unlawful

6

intentional manipulation and false reporting of backlog cases, (2) the intentional lack of

7

prosecutorial efforts to proactively investigate and prosecute "notario" and lawyer fraud as

8

envisioned by the Legislature in passing Assembly Bill 1159, and (3) the conflicted retention

9

of a private firm with close ties to a BOT member in violation of State Bar protocol to

10

evaluate a complaint against undisclosed targets and, upon information and belief, against

11

Senator Dunn.

12

outside of established protocol, leading to a bill that is likely in excess of $300,000.00, even

13

though a retired California Supreme Court Justice had agreed to provide the same services

14

pro bono as a way to give back to the State Bar. Even with this unnecessary and exorbitant

15

cost to members of the State Bar, the BOT only decided to terminate Senator Dunn without

16

cause.

Holden, and a small group of BOT members, hired the conflicted firm

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4.

Since becoming the Chief Executive of the State Bar in 2010, Senator Dunn

18

received consistent high praise and positive performance reviews in his formal performance

19

evaluations from 2011-2013. In fact, Senator Dunn's performance was determined to be so

20

excellent by the State Bar that he received bonuses substantially above his yearly salary

21

during the years 2011-2013.

22

5.

In September 2014, attorney Craig Holden was installed as the new President

23

of the State Bar. In May 2014, Holden was the only announced candidate, so it was clear he

24

would be elected State Bar President.

25

determined "to do something about Dunn," with the clear implication that he was determined

26

to have him fired. The events described below gave Holden the pretext to begin a process

27 28

Starting in May, Holden told several people he was

-2COMPLAINT

Exhibit A 11

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 12 of 288 Page ID #:68

1

leading to Senator Dunn's termination. Finally, after Senator Dunn sent his whistleblower

2

notice, Holden guided the BOT to terminate Senator Dunn, but even then only "without

3

cause."

4

6.

Defendant Craig Holden was installed as President of the State Bar in Defendant Craig Holden, now a partner at Lewis Brisbois Bisgaard &

5

September 2014.

6

Smith LLP, is an attorney that has had difficulties in previous law firms and who submitted

7

irregular expense reports to the State Bar.

8

7.

Defendant Craig Holden's conduct is part of an effort to usurp executive

9

authority in the State Bar and has cleared the way for Defendant Holden to assume control

10

over the State Bar's executive functions. Employees of the State Bar have been infomLed

11

that Defendant Holden and Deputy Executive Director Robert Hawley will oversee and

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manage the State Bar in the "interim" period.

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formation of a process to hire a new Executive Director. No previous State Bar President in

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history has assumed executive management authority over the State Bar, as Defendant

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Holden has now done. Plaintiff alleges that Defendant Holden has engaged in this conduct

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to ultimately become the State Bar Executive Director.

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8.

There has been no announcement for the

In addition to the termination of Senator Dunn, the State Bar has recently

18

targeted some of the Whistleblower DOES 1-7 with various degrees of discipline and

19

retaliation because they corroborated and identified the same conduct Senator Dunn

20

complained of and joined in the whistleblower notices to the State Bar. Under the leadership

21

of Holden, the BOT has engaged in an effort to purge the ranks of whistleblowers at the State

22

Bar who were aware of and complained about the conduct of the BOT, President Holden,

23

and other ROE defendants. That purge of State Bar employees, consolidating power in the

24

hands of Holden, is unprecedented in the history of the State Bar.

25 26 27 28

9.

On Friday, November 7, 2014, at approximately 5:00 p.m., while giving a

speech for the State Bar in San Francisco, Plaintiff Senator Dunn received a termination -3COMPLAINT

Exhibit A 12

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 13 of 288 Page ID #:69

1

letter from Defendant President Holden. The termination letter demanded that Senator Dunn

2

not speak with the press or public if he desired to negotiate a "mutually acceptable

3

[severance] agreement."

4

10.

Senator Dunn brings this whistleblower action to protect the public integrity of

5

the Defendant State Bar, to overturn the illegally motivated decision to terminate his

6

employment, and to vindicate his rights as a whistleblower.

PARTIES

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Senator Joseph Dunn (Ret.) is a former California State Senator who

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represented California's 34th Senate District in Orange County, California. Senator Dunn

10

was appointed as Executive Director of the State Bar of California on November 22, 2010.

11

Senator Dunn served in this capacity as the State Bar's chief executive officer from

12

November 22, 2010 through his termination on November 8, 2014.

13

resident of Orange County, California.

Senator Dunn is a

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"The State Bar of California is a public corporation. Every person admitted and

15

licensed to practice law in this State is and shall be a member of the State Bar except while

16

holding office as a judge of a court of record." (Cal. Const., art VI, § 9.) Under pain of

17

criminal punishment, no person may practice law in California unless he is an active member

18

of the State Bar. (Cal. Bus. & Prof. Code§§ 6125-6126.) The Board of Trustees of the State

19

Bar, upon authorization from the Legislature, fixes and imposes an annual membership fee

20

upon members of the State Bar. (Id. § 6140.) The fees are paid into the treasury of the State

21

Bar, and become part of its funds. (Id. § 6144.)

22

Trustees of the State Bar of California. The Board of Trustees makes rules of procedure,

23

regulates and operates the State Bar. The State Bar office is located at 845 South Figueroa

24

Street, Los Angeles, California 90017.

25 26 27 28

13.

The State Bar acts through the Board of

Defendant Craig Holden was installed as President of the State Bar in

September 2014 and is also a current partner at Lewis Brisbois Bisgaard & Smith LLP. -4COMPLAINT

Exhibit A 13

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 14 of 288 Page ID #:70

1

Defendant Holden resides in Los Angeles County, California. Craig Holden is sued herein in

2

his individual capacity.

3

14.

ROES 1-50 include trustees and employees of the State Bar who acted in

4

concert with Defendant Holden as well as certain government employees not employed by

5

the State Bar.

6 7 8 9

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AND VENUE 15.

The Court has personal jurisdiction over the Defendants because they are

residents of and/or are doing business in the State of California.

16.

Venue is proper in this county in accordance with Section 395(a) of the

10

California Code of Civil Procedure because the Defendants, or some of them, reside in this

11

county and the injuries alleged herein occurred in this county.

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STATEMENT OF FACTS

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Senator Dunn's Appointment as Executive Director

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In 2009, the California Bureau of State Audits conducted a complete audit of

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the State Bar's disciplinary system. The Bureau highlighted the backlog reporting process

16

and shined light on the failure of the State Bar to include all backlog cases in the annual

17

discipline report. The report called for more transparency in the reporting of backlog cases

18

to give stakeholders a clear picture of the State Bar's effectiveness.

19

criticized: "By not reporting consistently and including all pertinent information, the State

20

Bar is limiting its stakeholders' and the Legislatures ability to measure the effectiveness of

21

the discipline system."

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18.

The Audit Report

Senator Dunn was appointed as Executive Director in 2010, in the wake of this

23

highly critical audit, with the directive to reform the State Bar by bringing fiscal

24

responsibility and transparency to the State Bar's reporting obligations.

25

Director functions as the chief executive officer for the State Bar and oversees all employees.

26

The Executive Director is the only employee directly hired by the BOT and the Executive

27 28

The Executive

-5COMPLAINT

Exhibit A 14

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 15 of 288 Page ID #:71

1

Director reports directly to the BOT. All other State Bar employees report directly to the

2

Executive Director, with the exception of the head of the OCTC

3

prosecuting grievances in the State Bar Court

4

based on the unique appointment process which requires direct BOT approval and Senate

5

confirmation. The head of the OCTC is Jayne Kim.

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responsible for

who exercises a quasi independent function

Senator Dunn succeeded in bringing important reforms to the State Bar. For

7

example, Senator Dunn brought the investigative backlog on open complaints with the State

8

Bar to near zero in 2011 after years of criticism from the legislature on the size of the

9

backlog. Senator Dunn oversaw the purchase, remodel, and move in to the State Bar's new

10

home at 845 South Figueroa Street. Working with the Chief Financial Officer, Senator Dunn

11

stabilized the State Bar's budget with no new increase in mandatory dues under his

12

leadership.

13

public protection mission of the State Bar. This includes outreach to other State regulatory

14

bodies, law enforcement, the consulate community, religious communities, labor unions, and

15

others. Senator Dunn is also credited with substantially improving relations between the

16

Legislature and the State Bar including launching joint town halls with other regulatory

17

partners through the district offices of legislators.

18

working group that met regularly to develop proposals to increase funding for legal services

19

in California.

20

20.

Senator Dunn created an external relations team to proactively advance the

Senator Dunn also created a small

In all his years as Executive Director of the State Bar, Senator Dunn received

21

glowing performance reviews. All of Senator Dunn's formal performance reviews from

22

2011-2013 were positive leading the State Bar to award him substantial yearly bonuses in

23

addition to his salary.

24 25

2 1.

Senator Dunn's written employment agreement, initially set for a three year

term, was renewed in 2013 for a subsequent three-year term through 2016.

However,

26 27 28

-6COMPLAINT

Exhibit A 15

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 16 of 288 Page ID #:72

1

Senator Dunn was given notice of termination on November 7, 2014, just one year into his

2

new term as Executive Director. The termination was "without cause."

3

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As discussed below, Senator Dunn had learned of egregious improprieties

4

being committed by BOT members, by Chief Trial Counsel Jayne Kim, and by Holden.

5

When Senator Dunn raised these concerns with other whistleblowers, which called to task

6

the State Bar's core functions and competencies, Senator Dunn was targeted by Holden who

7

has attempted to cover up for the malfeasance that was reported.

8

"evaluation" of certain executive employees at the State Bar including Senator Dunn and

9

tasked a private firm, outside of protocol, to investigate Senator Dunn and those executive

10 u

22.

employees.

Ethical Breaches - Unlawful Removal of Backlog

11 12

Holden initiated an

23.

Senator Dunn was one of the whistleblowers within the State Bar who reported

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that Chief Trial Counsel Jayne Kim unlawfully removed backlog cases from the official

14

reports released to the BOT and the public. This was done to benefit Ms. Kim in her

15

upcoming evaluation and to fraudulently inflate the productivity of her office.

16

24.

It was uncovered that at Ms. Kim's direction, internal reports were altered to

17

unlawfully remove cases from the statutory backlog. Ms. Kim then issued false reports to

18

the Regulation Admissions & Discipline ("RAD") Committee of the State Bar, the

19

membership of the State Bar, the Legislature and the Governor, and the general public.

20

25.

Ms. Kim's conduct did not involve a few isolated incidents but was shockingly

21

rampant. In her reports to the RAD Committee on September 30, 2013, Ms. Kim unlawfully

22

removed 269 cases from the internal reports. She then used the altered internal reports to

23

prepare her official quarterly report to the RAD Committee and posted this information on

24

the State Bar website for public consumption. The information in the public reports was

25

false and misleading due to Ms. Kim's unlawful removal of cases from the backlog reports.

26 27 28

-7COMPLAINT

Exhibit A 16

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 17 of 288 Page ID #:73

1

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The State Bar server that houses the backlog and case reports left a digital

2

footprint detailing the changes to the reports made at Ms. Kim's direction. The first run of

3

the backlog reports shows the accurate number of backlogged files. However, the backlog

4

report run two hours later removed a certain group of cases to artificially lower the number

5

of backlog cases. The metadata on the State Bar server exposes the changes and Ms. Kim's

6

misconduct. The reduction in the State Bar's backlog inventory was not due to increased

7

productivity but rather due to Ms. Kim's removal of cases from the official backlog reports.

8

u

26.

27.

The California Bureau of State Audits is set to conduct its biannual audit of the

9

State Bar in 2015. Rather than hold Ms. Kim and the OCTC accountable for its actions as

10

Senator Dunn encouraged, the State Bar has terminated Senator Dunn and taken adverse

11

actions against other whistleblowers for bringing this issue to their attention.

12

28.

Upon hearing concerns from Senator Dunn about her performance, Ms. Kim

13

attempted to preserve her position by filing a complaint against Senator Dunn. As detailed

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14

below, an evaluation of Senator Dunn was conducted at an exorbitant expense to the

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15

membership of the State Bar. Ms. Kim's complaint against Senator Dunn was made shortly

16

after the annual review process for her was commenced, and was merely pretextual to avoid

17

Senator Dunn's oversight, criticism, and review of her.

18

provided a copy or summary of Ms. Kim's complaint to Senator Dunn. What we do know is

19

the unilateral decision to terminate Senator Dunn was made "without cause."

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Fiscal Improprieties

20 21

To date, the State Bar has not

29.

The BOT, upon receiving Ms. Kim's complaint, decided to conduct an

22

"internal evaluation" of Senator Dunn and others and to retain a private firm for that purpose.

23

This was despite the fact that a retired California Supreme Court Justice offered to do the

24

same evaluation, pro bono. The private firm retained by the State Bar had close personal ties

25

with BOT member Miriam Krinsky which ties were never fully disclosed prior to the firm's

26 27 28

-8COMPLAINT

Exhibit A 17

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 18 of 288 Page ID #:74

1

retention. The retention of the private firm, in addition to being an utter waste of State Bar

2

membership dues, violated State Bar protocol.

3

30.

The retention of private counsel by the State Bar is a function of the State The protocol for retaining a private firm is

4

Bar's Office of General Counsel ("OGC").

5

simple: if it is determined that the retention of a private firm is needed, the OGC is charged

6

with selecting the appropriate firm based on experience and cost. The OGC protocol that is

7

in place attempts to secure the retention of a private firm on financially feasible terms and to

8

sift out potential conflicts of interest and cronyism with BOT members. Here, that process

9

was blatantly ignored.

10

3 1.

The selected firm was retained based on the recommendation of BOT member

::;:

11

Miriam Krinsky. The OGC was never consulted in this process; rather, Holden decided the

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12

OGC was "conflicted out" from performing its functions. Furthermore, this private firm was

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13

retained at exorbitant rates. Three billing partners from the private firm that were put on the

14

"evaluation" each billed in excess of $800 per hour.

15

services rendered by that private firm likely exceeds $300,000.00.

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The current billable hours for the

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32.

BOT member Miriam Krinsky had a close personal and professional

17

relationship with the private firm's lead billing partner who was assigned to lead the

18

"evaluation." Board Member Krinsky and the lead partner of the private firm had a two­

19

decade long relationship beginning when they were co-counsel at the United States

20

Attorney's Office in the 1990s through 2010 when Ms. Krinsky shared office space with the

21

lead partner while she was the Executive Director of the LA County Citizen's Commission

22

in 2010. This was not disclosed to the BOT.

23 24 25

Legislative Compliance Failures 33.

Senator Dunn has raised concerns that the State Bar BOT and Jayne Kim of the

OCTC were not enforcing the provisions of Assembly Bill 1159.

26 27 28

-9COMPLAINT

Exhibit A 18

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 19 of 288 Page ID #:75

1

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prosecute both lawyer and "notario" fraud, a form of unauthorized practice of law ("UPL'')

4

that preys on California's large immigrant community.

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35.

The bill contained an urgency clause and was therefore effective the date it was

6

signed into law in October 2013. At or around the same time Ms. Kim was unlawfully

7

removing the backlog cases from her internal and public reports, she was also not

8

prosecuting fraud cases pursuant to the legislative will. Ms. Kim's failure to comply with

9

the legislative mandate was so egregious it prompted the author of AB 1159,

10

Assemblywoman Lorena Gonzalez, to send a letter demanding answers concerning the lack

11

of enforcement.

12

36.

13

To date, the Legislature's questions about the enforcement of AB 1159 remain

ignored.

Whistleblower Notice

14

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The bill was passed to enhance OCTC enforcement powers to

Assembly and Senate.

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Assembly Bill 1159 was passed with bipartisan support of the State

2

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34.

15

37.

On November 3, 2014, Senator Dunn and a group of other individuals

16

employed by the State Bar, through their counsel Geragos & Geragos, APC, submitted an

17

anonymous whistleblower complaint to the State Bar BOT outlining a number of the

18

concerns addressed above. Thereafter, on November 5, 2014, the whistleblowers submitted

19

another letter through counsel, providing further information and evidence of the

20

improprieties outlined herein. Senator Dunn was identified by the BOT as one of the group

21

of whistleblowers.

22

38.

Senator Dunn was given notice of his termination on Friday, November 7,

23

2014 at 5:00 p.m. while he was giving a speech for the State Bar in San Francisco. Senator

24

Dunn received no explanation as to the basis for his termination. Senator Dunn was also

25

instructed by Holden that if he wanted to negotiate a severance agreement, he should not

26

speak to the public or the press about what had taken place. To date, Senator Dunn has not

27 28

- 10 COMPLAINT

Exhibit A 19

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 20 of 288 Page ID #:76

1

been afforded any opportunity to respond to the unilateral notice of his termination or any of

2

the allegations that may have been made against him.

3

39.

On November 10, 2014, some of the other whistleblowers that were

4

responsible for providing information contained in the two whistleblower notices were

5

targeted with various degrees of retaliation and discipline and believe they are in imminent

6

jeopardy of being terminated. Like Senator Dunn, the other whistleblowers who have been

7

loyal, dedicated, and high level employees at the State Bar for many years received no

8

explanation for the sudden unilateral retaliation against them by the State Bar.

9

40.

It is with deep sadness and a heavy heart that Senator Dunn has been

10

compelled to bring this action against the State Bar of California, an organization which he

11

loyally served for four years. However, given the glaring injustices, unethical conduct, and

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12

massive cover-up that has crippled the State Bar's ability to function, this action has become

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13

necessary to restore the public trust and confidence in the State Bar, to restore the integrity of

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the organization, and to vindicate Senator Dunn's rights.

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FIRST CAUSE OF ACTION WHISTLEBLOWER LIABILITY AND RETALIATION

16

-­

17

LABOR CODE SECTION 1102.5

18

Senator Dunn Against Defendant the State Bar of California

19 20

41.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs of

this Complaint, as though fully set forth herein.

21

42.

At all relevant times, Plaintiff was an employee of the State Bar.

22

43.

On November 3, 2014 and November 5, 2014, Plaintiff made whistleblower

23

complaints to the State Bar as detailed above.

24

complaints to the State Bar's BOT about the willful failure of the Chief Trial Counsel Jayne

25

Kim to prosecute UPL fraud which would protect the immigrant community.

Additionally, Plaintiff made numerous

26 27 28

- 11 COMPLAINT

Exhibit A 20

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 21 of 288 Page ID #:77

44.

1 2

Director of the State Bar on November 7, 2014 because he was identified as a whistleblower

3

and because Holden intended to cover up malfeasance in the State Bar and secure his own

4

agenda in usurping executive authority within the State Bar. 45.

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Holden, Jayne Kim, and Miriam Krinsky. Specifically, the State Bar has terminated Plaintiff

7

because he reported the serious malfeasance, illegal conduct, and financial improprieties

8

described above.

9

46.

conduct violates the fundamental public policy against retaliation of whistleblowers in this

11

State and the protections afforded under Labor Code section 1102.5.

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The termination of Plaintiff on account of his complaints about the unlawful

10

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en

The State Bar has ratified and condoned the acts and omissions of Defendant

6

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Plaintiff was given notice of termination from his employment as Executive

As a result of the unlawful treatment of Plaintiff which culminated in his

termination, Plaintiff suffered damages.

48.

Defendants are subject to civil penalties and assessment under Labor Code

section 1102.5.

49.

16

Based on the unlawful acts taken by Defendants, Plaintiff has been deprived of

17

his position as Executive Director of the State Bar. Pursuant to Labor Code section 1102.5,

18

Plaintiff Senator Dunn seeks his immediate reinstatement as Executive Director of the State

19

Bar, or alternatively, for the Court to issue an Order to Show Cause regarding why Senator

20

Dunn should not be immediately reinstated based on the unlawful termination by the State

21

Bar.

22

SECOND CAUSE OF ACTION

23

BREACH OF FIDUCIARY DUTY

24

Senator Dunn Against Defendant Craig Holden and Board of Trustee ROES

25 26 27 28

50.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs of

this Complaint as though fully set forth herein.

- 12 COMPLAINT

Exhibit A 21

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 22 of 288 Page ID #:78

1 2 3

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52.

Defendant Holden breached his fiduciary obligations by engaging

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the

5

conflicted retention of a private firm, condoning and attempting to cover up the unlawful

6

removal of backlogged State Bar complaints, failing to implement legislation, and

7

terminating Plaintiff and the DOE whistleblowers for reporting the illegal, improper, and

8

unethical conduct described above.

11

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as Executive Director of the State Bar, to DOE Whistleblowers 1-7, and to the public.

conduct described above, including but not limited to, authorizing the out-of-protocol and

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At all times, Defendant Holden owed a fiduciary duty to the State Bar, Plaintiff

4

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51.

12

53.

As a direct and proximate cause of Defendants' conduct, Plaintiff has been

injured, in an amount according to proof at trial.

54.

Defendants' conduct was wanton, willful, and malicious giving rise to punitive

damages in favor of Plaintiff.

13 14

WHEREFORE,

15

On the First Cause of Action:

16

1.

For general and special damages in an amount according to proof at trial;

17

2.

For pre- and post-judgment interest according to proof;

18

3.

For costs of suit incurred herein;

19

4.

For attorneys' fees;

20

5.

For damages and fees pursuant to California Code of Civil Procedure§ 1021.5;

21

6.

For injunctive relief reinstating Plaintiff as Executive Director of the State Bar

Plaintiffs request judgment against the Defendants as follows:

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or, alternatively, for an Order to Show Cause why Senator Dunn (Ret.) should

23

not be immediately reinstated based on the unlawful termination and retaliation

24

by the State Bar; and

25

7.

For all other relief as this Court may deem proper.

26 27 28

- 13 COMPLAINT

Exhibit A 22

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 23 of 288 Page ID #:79

1

On the Second Cause of Action:

2

1.

For general and special damages in an amount according to proof at trial;

3

2.

For pre- and post-judgment interest according to proof;

4

3.

For exemplary damages against Defendants;

5

4.

For costs of suit incurred herein; and

6

5.

For all other relief as this Court may deem proper.

7 8

Respectfully submitted,

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DATED: November 13, 2014

By: . GERAGOS MAR BEN . MEISELAS Atto eys for Plaintiff SENATOR JOSEPH DUNN (Ret.)

14 15 16 17 18

TRIAL

DEMAND FOR

Plaintiff Senator Dunn (Ret.) hereby demands a jury trial.

19 20

DATED: November 13, 2014

21 22 23

By: . GERAGOS BEN J. EISELAS Atto ys for Plaintiff JOSEPH DUNN (Ret.)

24 25 26 27 28

- 14 COMPLAINT

Exhibit A 23

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 24 of 288 Page ID #:80

EXHIBIT B

24

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 25 of 288 Page ID #:81

Exhibit B 25

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 26 of 288 Page ID #:82

Exhibit B 26

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 27 of 288 Page ID #:83

Exhibit B 27

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 28 of 288 Page ID #:84

Exhibit B 28

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 29 of 288 Page ID #:85

Exhibit B 29

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 30 of 288 Page ID #:86

Exhibit B 30

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 31 of 288 Page ID #:87

Exhibit B 31

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 32 of 288 Page ID #:88

Exhibit B 32

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 33 of 288 Page ID #:89

Exhibit B 33

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 34 of 288 Page ID #:90

EXHIBIT C

34

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 35 of 288 Page ID #:91

Exhibit C 35

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 36 of 288 Page ID #:92

Exhibit C 36

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 37 of 288 Page ID #:93

Exhibit C 37

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 38 of 288 Page ID #:94

Exhibit C 38

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 39 of 288 Page ID #:95

Exhibit C 39

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 40 of 288 Page ID #:96

Exhibit C 40

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 41 of 288 Page ID #:97

Exhibit C 41

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 42 of 288 Page ID #:98

Exhibit C 42

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 43 of 288 Page ID #:99

Exhibit C 43

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 44 of 288 Page ID #:100

Exhibit C 44

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 45 of 288 Page ID #:101

Exhibit C 45

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 46 of 288 Page ID #:102

Exhibit C 46

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 47 of 288 Page ID #:103

Exhibit C 47

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 48 of 288 Page ID #:104

Exhibit C 48

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 49 of 288 Page ID #:105

Exhibit C 49

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 50 of 288 Page ID #:106

Exhibit C 50

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 51 of 288 Page ID #:107

EXHIBIT D

51

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 52 of 288 Page ID #:108

Ji>iafc Df California

(Ermtmissinn on 3Jufrtriai |Jerf0rrnanrE Ifll Jtofcarb ^freef, ^ u t f e 300 ^ a n (IfranriscD, QjA 94105 (415)904-3650 FAX (41 5) 904-3666

February 28, 1995

Honorable Thomas M. Kelly Judge of the Justice Court Alpine Judicial District P. O. Box 515 Markleeville, CA 96120-0515 Dear Judge Kelly: The Commission on Judicial Performance has determined that you should be publicly reproved for the following conduct: "In 1987, before justice court judges were prohibited from practicing law by California Constitution Article VI ยง17 and Government Code ยง71607, Judge Kelly became attorney of record for the plaintiff in Okoye v. Citicorp, Los Angeles Superior Court Case No. C 683268. Judge Kelly signed a complaint prepared by a Nevada attorney whose law library and office Judge Kelly sometimes used. Judge Kelly accommodated the Nevada attorney without receiving a fee or promise of fee, and without expecting a fee. The attorney had told Judge Kelly that he intended to handle the case and would file a motion to appear pro hac vice, seeking the court's permission to appear as an out-of-state attorney with Kelly, a California attorney, associated as counsel. However, within a month after the complaint was filed, the Nevada attorney abandoned his plan to file the application, and so advised Judge Kelly.

Because Kelly was counsel of record in Okoye v. Citicorp, the defendant's counsel communicated with Judge Kelly at the Nevada counsel's address. A demurrer to the complaint was filed. Judge Kelly and the Nevada attorney discussed the matter and agreed to stipulate to the demurrer. A first amended complaint was filed; a demurrer to that complaint was sustained, as well. No second amended complaint was filed.

During the spring and summer of 1987, defense counsel contacted Judge Kelly four times to schedule the plaintiff's deposition. Although Judge Kelly informed the Nevada attorney, Judge Kelly did not notify the plaintiff. On one occasion, Judge Kelly told defense counsel that he could not attend a deposition because he was scheduled on a judicial assignment.

Exhibit D 52

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 53 of 288 Page ID #:109

Honorable Thomas M. Kelly February 28, 1995 Page Two No discovery pertinent to the merits of the case was provided to the defense. On July 8, 1987, a motion to compel production of documents was heard. There was no appearance for plaintiff. The court ordered production of the requested documents and ordered sanctions against Judge Kelly and the plaintiff, which were later paid by the Nevada attorney. Judge Kelly never notified the plaintiff.

On August 25, 1987, Judge Kelly appeared at a hearing on defendant's motion to dismiss. This was the first occasion on which the plaintiff and Judge Kelly met with each other. The court ordered the case dismissed for failure to file a second amended complaint, and imposed sanctions of $2,500 on both Judge Kelly and the plaintiff.

A federal complaint signed by Judge Kelly also was filed on behalf of the plaintiff, in April of 1987. It was dismissed for lack of prosecution, and the motion to set the dismissal aside was dismissed without hearing in December 1987.

The plaintiff sued Judge Kelly and the Nevada attorney for breach of contract, fraud, and legal malpractice in their representation of him in the Okoye v. Citicorp case. After a court trial, the court found Judge Kelly and the Nevada attorney liable on the cause of action for legal malpractice.

The Nevada attorney was also held liable for breach of contract. Both were ordered to pay a judgment of $351,000.

The judgment was affirmed on appeal.

The trial court determined that Judge Kelly, by agreeing that the Nevada attorney would handle the management of the lawsuits in the absence of a court order permitting the Nevada attorney to appear as counsel, after signing the complaints prepared by the Nevada attorney, unlawfully aided and abetted the unauthorized practice of law, contrary to Business and Professions Code § 6126(a) and Code of Professional Responsibility Rule 3-101. The commission finds that by his conduct in the case, including abandoning, for all intents and purposes, a client for whom he was attorney of record, Judge Kelly committed a breach of fiduciary duty and committed legal malpractice. Judge Kelly's conduct constitutes conduct prejudicial to the administration of justice that brings the judiciary into disrepute."

This public reproval is being issued with your consent.

Very truly yours, i / ;

^-â&#x20AC;&#x201D;-N i \

VICTORIA B. HENLEY Director-Chief Counsel

/ !

Exhibit D 53

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 54 of 288 Page ID #:110

EXHIBIT E

54

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 55 of 288 Page ID #:111

1 2 3 4 5 6 7

KEVIN SINGER SUPERIOR COURT RECEIVER/REFEREE RECEIVERSHIP SPECIALISTS 795 Folsom Street, 1st Floor San Francisco, California 94107 Telephone: (415) 848-2984 Fax: (415) 848-2301 E-mail: Kevin@ReceivershipSpecialists.com Property Address:

4655-4677 Meade Street Richmond, CA 94804

8 9

:tlO I

SUPERIOR'COURT OF THE STATE OF CALIFORNIA

11

COUNTY OF CONTRA COSTA

......_:...

cs-

12 13 14 15 16 17 18 19 20 21 22 23 24

CERF SPVI, LLC, a Delaware limited liability) company,

)

·

) ) ) ) v. ) CHEROKEE SThIBON VENTURE I, LLC; a ) Plaintiff,

�

Delaware limited liability company, PIONEER HI-BRED INTERNATIONAL,

) INC., an Iowa corporation, LUMIPHORE ) INC., a Delaware corporation, GERONOVA ) RESEARCH, Inc., a Nevada corporation, ) ) NANOASIS TECHNOLOGIES, INC., a California corporation, CHEMORAGA, INC., ) a California corporation and DOES inclusive, Defendants.

�

1-50,

) ) ) ) )

--------�

CASE NO:

C12-00284

NOTICE OF MOTION AND MOTION FOR ORDER AUTHORIZING RECEIVER TO RETAIN LEGAL COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF KEVIN SINGER IN SUPPORT THEREOF.

�=: Dept.:

l�d�,,� Wk

31

Judge: Hon. Laurel S. Brady Martinez Superior Court

725 Court Street Martinez, CA 94553

)

25 26 27 28

Page l

Exhibit E 55 RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 56 of 288 Page ID #:112

1

TO:

2

RECORD:

3

THE PLANTIFFS, DEFENDANT AND THEIR RESPECTIVE ATTORNEYS OF

PLEASE TAKE NOTICE THAT on

4

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2012 at the hour of

or as soon thereafter as the matter can be heard in Department

31, at the

5

Martinez Superior Courthouse at 725 Court Street, Martinez, CA

6

Receiver, Kevin Singer, will and does hereby move the Court to grant his NOTICE OF

7

MOTION AND MOTION FOR ORDER AUTHORIZING RECEIVER TO RETAIN LEGAL

8

COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION

9

OF KEVIN SINGER IN SUPPORT THEREOF.

94553, Superior Court

This Motion is based on this Notice of

10

Motion, Memorandum of Points and Authorities, Declaration of Kevin Singer, pleadings,

11

records and files in this action, and oral and documentary evidence

12

hearing on this Motion.

13

DATED: September

14 15

as

may be presented at the

10, 2012 By: Kevin Singer Superior Court &

16 17 18 19 20 21 22 23 24 25 26 27 28

Page 2

Exhibit E 56 RECEIVER'S .MOTION TO RETAIN LEGAL COUNSEL

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 57 of 288 Page ID #:113

u 1 2

INTRODUCTION

1.

Through a stipulation amongst CERF SPVI, LLC, a Delaware limited liability

3

company ("Plaintiff"),

4

collectively (''the Parties"), the Court granted an Order Appointing Receiver Ex Parte and

5

Temporary Restraining Order In Aid of Receiver ("Court Order") which was entered on July

6

12, 2012 and

7

Singer's ("Receiver") Oath was filed on approximately July

8

and management of the Property was transitioned to him on August

9

agreed upon transition date by the Parties.

and CHEROKE SIMEON VENTURE I, LLC

("Defendant"),

attached hereto as "Exhibit 1." The appointed Superior Court Receiver, Kevin

12, 2012, by

Plaintiff's Counsel

15\ 2012.

This was an

10

2.

The collateral for Plaintiff's Deed of Trust is a commercial and industrial building

11

located at

4655路4677 Meade Street, Richmond, CA 94894 (the "Property"). The Property is

12

commonly referred to as Campus Bay. The Property has a long history of chemical

13

manufactures using the site. In

14

oversight of the San Francisco Bay Regional Water Quality Control Board.

15

"Exhibit 2," is information summarizing the environmental issues surrounding the Property.

16

3.

1997, an environmental cleanup was initiated under the Attached as

One of Receiver's primary duties is to lease or release the Property or any

17

portion of it on terms acceptable to Plaintiff. Any lease contract entered into will require

18

disclosers regarding the environmental issues.

19

4.

On August

8,

2012

and August

9,

2012,

the Receiver had a disagreement with

20

Defendant's legal counsel over the ability of Defendant to collect past due rents from the

21

tenants.

22

Receiver, and came to an amicable resolution with the Receiver regarding the collection of past

23

due rent, but there remains a disagreement in between the Receiver and Defendant's legal

24

counsel the interpretation of the Court Order.

25 26

Defendant's legal counsel was properly representing her client, respectful to the

5.

Although the Receiver has the ability to write basic pleadings and file papers with

the Court, he is not an attorney. The Receiver is also not an expert in legal environmental

27 28

Page 3

Exhibit E 57 RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 58 of 288 Page ID #:114

u

;;

1

disclosures that will need to be provided to tenants. The Receiver also seeks help from time to

2

time in interpreting the Court's Order and working with the Parties' legal counsels.

3

POINTS AND AUTHORITIES IN SUPPORT OF RECEIVER RETAINING COUNSEL

4

California Rules of Court 3.1180. Employment of attorney

5

A receiver must not employ an attorney without the approval of the court. The

6

application for approval to employ an attorney must be in writing and must state:

7

(1) The necessity for the employment;

8

(2) The name of the attorney whom the receiver proposes to employ; and

9

(3) That the attorney is not the attorney for, associated with, nor employed by an

10 11

attorney for any party.

The Court Order instructs the Receiver as follows (See "Exhibit 1"):

12

8a.)

13

preserve, protect, maintain, and operate the Property ..........;

14

8e.)

15

property managers, accountants, and other persons and professionals as Receiver

16

deems appropriate to effectuate the operation of the Property and to preserve and

17

protect the Property;

18

12)

19

this Court for further orders instructing Receiver.

Receiver shall have the power to take any and all lawful actions necessary to

Receiver is authorized to employ and compensate professionals, including

Receiver, or any party to this action, may from time to time, make application to

20

THE RECEIVER'S REQUEST TO RETAIN LEGAL COUNSEL

21

The Receiver needs to retain legal counsel for the limited purpose of advising the

22

Receivership Estate on the proper way to disclose environmental issues to new tenants to limit

23

the liability of the Receivership Estate. The legal counsel retained by Receiver can also advise

24

the Receivership Estate on interpretation of the Court Order when the Parties are in

25

disagreement as to its interpretation.

26 27 28

The Receiver would like to retain Mia Blackler ("Ms. Blackler") and Manuel Fishman

("Mr.

Fishman") of Buchalter Nemer. Ms. Blackler is an expert in receivership law Page 4

Exhibit E 58 RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 59 of 288 Page ID #:115

u

\_/

1

and Mr. Fishman is an expert in commercial lease contra cts and environmental issues. Their

2

billing rates are

3

assistance of associates whose billing rates are

4

3," are their bios.

$440 for Ms. Blackler and $495 per hour for Mr. Fishman and they utilize the $300

to

$350

per hour. Attached as "Exhibit

5

WHEREFORE, The Receiver requests that the Court grant the following:

6

1. The Superior Court Receiver, Kevin Singer, is authorized to retain Mia Blackler and

7

. e Manuel Fishman to advise him on any lease negotiations, disclosure issues related to the leas

8

negotiations and/or contracts, and guidance on interpretation of the Court Order.

9 10 11

2. For such other relief as the Court may deem just and appropriate.

DATED:

September

10, 2012 Respectfully submitted,

12 13 14

By:

ks Kevin Singer Superior Co

15 16 17 18 19 20 21 22 23 24 25 26 27 28

Page 5

Exhibit E 59 RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 60 of 288 Page ID #:116

u 1

'.,__;

DECLARATION OF KEVIN SINGER

2

I, KEVIN SINGER declare and state as follows:

3

I

am

a Superior Court Referee and Referee and have acted in that capacity in over 143

4

cases over the last eleven years.

5

specializes in Receivership and Referee appointments. If called upon to testify, I could and

6

would competently do so as to the matters hereinafter set forth based on firsthand knowledge.

7

I am the President of Receivership Specialists, which

I submit this Declaration in support of the accompanying NOTICE OF MOTION AND

8

MOTION FOR ORDER AUTHORIZING RECEIVER TO RETAIN LEGAL COUNSEL;

9

MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF KEVIN

10

SINGER IN SUPPORT THEREOF;

11

Through a stipulation amongst CERF SPVI, LLC, a Delaware limited liability company

12

("Plaintiff'), and CHEROKE SIMEON VENTURE I, LLC ("Defendant"), collectively (''the

13

Parties"), the Court granted an Order Appointing Receiver Ex Parte and Temporary

14

Restraining Order

15

the Court Order, I was appointed Superior Court Receiver. The parties agreed that the property

16

located at

17

transitioned to my control on August 1,

In Aid of Receiver ("Court Order") which was entered on July 12, 2012. In

4655-4677 Meade Street, Richmond, CA 94894 (the "Property") was to be 2012.

18

2. The Property serves as collateral for Plaintiff's Deed of Trust and is a commercial

19

and industrial building commonly referred to as Campus Bay. The Property has a long history

20

of chemical manufactures using the site.

21

the oversight of the San Francisco Bay Regional Water Quality Control Board.

In 1997, an environmental cleanup was initiated under

22

3. One of my primary responsibilities is to lease or release the Property or any portion

23

of it on terms acceptable to Plaintiff. Any lease contract I have entered into will require

24

disclosers regarding the environmental issues.

25 26 27 28

4.

On August

8, 2012 and August 9, 2012, I had a disagreement with Defendant's

legal counsel over the ability of Defendant to collect past due rents from the tenants at the Property. Defendant's legal counsel was properly representing her client, respectful to me, and Page 6

Exhibit E 60 RECEIVER'S MOTION TO RETAIN LEGAL COUNSEL

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 61 of 288 Page ID #:117

u

1 2 3 4 5 6 7

Dena M. Cruz (CA State Bar No. 121508) Richard Mooney (CA State Bar No. 176486) Leena Rege (CA.State Bar No. 236827) DRY.AN CAvE, LLP 560 Mission Street, 25th Floor San Francisco, CA. 94105 Telephone: (415)268;,2000.

Facsimile: (415) 268•1999

71111 .1 .

:P: l 2 o_,

""

.,. _

..

\: Sb

·

Attomeys for Plaintiff CERF SPVI, LLC

8 SUPERIOR COURT OF CALIFORNIA

9

COUNTY OF CONTRA COSTA

10 11

SPVI, LLC a Delaware limited liability company

CERF

12 13 14 15 16 17

18 19

CASE NO.: CIV C12-00284 1.

Plaintiff,

2.

v.

CHEROKEE SIMEON VENTURE I, LLC; a Delaware limited liability company, PIONEER ID-BRED INTERNATIONAL, INC., an Iowa

corporation, LUMIPHORE INC., a Delaware corporation, OERONOVA RESEARCH, Inc., a Nevada corporation, NANOASIS TECHNOLOGIBS, INC., a California corporation, CHBMORAGA, INC., a California corporation and DOES 1-50, inclusive,

20

Defendants.

21

[PldJl"tJili!D] ORDER APPOINTING RECEIVER EX PARTE (P�D] TEMPORARY �TRAINING ORDER IN AID OF RECEIVER

(Ex Parte Application, Stipulation to Entry of Order Appointing a Receiver and Preliminary Injunction, Declaration of Edward Elanjian, Declaration of Kevin Singer, Declaration of Dena M. Cruz, and Oath of Receiver filed concurrently herewith) Date: July 12, 2012 Time: 1 :30 p.m.

Dept.: 60

22 23 24 25 26 27 28

I I #80494 vt sar

[PROPOSBPJ ORDER Al':POIN'l'ING RBCBIVBREX PARTE AND TRO CERF SPVI, LLC va. Cherokee Simeon Venture I, LLC. Contra Costa SUperior Case No. Cl2-00284

Exhibit E 61

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 62 of 288 Page ID #:118 ;;:

â&#x20AC;˘

u

I

1

The motion of Plaintiff CERF SPV I, LLC ("Plaintiff'), for an ex parte order appointlng a

2

receiver and for the issuance of a Preliminary Injunction came on for hearing in Department 60 of

3

this Court on July 12, 2012 at 1 :30 p.m.. Plaintiff appeared by and through its counsel, Dena M.

4

Cruz; defendant Cherokee Simeon Venture I, LLC (''CSV'') appeared by and through its counsel,

5

Larisa A. Meisenheimer.

6

Having read and considered the moving papers, pleadings, and evidence in this matter;

7

having heard argument of counsel; and being apprised of the premises; it appearing to the Court that:

8

A. On or about September 6, 2007, Continental Environmental Redevelopment Financial, LLC (''CERF'') entered into a Loan and Security Agreement (the "2007 Loan

9 10

Agreement") and certain related documents, agreements and ins1nments, as lender, with

11

CSV,

12

certain real property located in Contra Costa County, CA, commonly known as Campus

13

Bay ("Campus Bay'').

14

borrower, to fund, amongst other things, a portion of the cost to remediate

B. Plaintiff is the holder of a promissory note dated September 6, 2007, executed by CSV as borrower (the ''Note").

15 16

as

C. The Note is secured by a deed of 1rust of even date (the ''Deed of Trust'') executed by

17

CSV in favor of CERF, which Note and Deed of Trust were assigned to Plaintiff on or

18

about September 6, 2007. A copy of the Deed of Trust is attached to theDeclaration of

19

EdwardElanjian (''ElanjianDecl.") as ExhibitB.

20

D. TheDeed of Trust is a lien on the title to Campus Bay (the "Property''). A copy of the

21

Deed of Trust, which contains a legal description of the Property is attached to the

22

Elanjian Deel.

23

Exhibit B.

E. TheDeed of Trust contains a provision whereby all the rents, issues, and profits of the Property are assigned as additional security on the Note and;

24 25

as

F. The 2007 Loan Agreement and the Deed of Trust contain certain provisions in which

26

CSV consented to the appointment of a receiver for the Property in the event of default

27

under the Borrowing Agreements; and,

28 1

[PROPOSED] ORDER. AP:POINTING RECEIVER BX PARTE AND TRO #80494 vl saf

CERF SPVI, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Case No. Cl2-00284

Exhibit E 62

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 63 of 288 Page ID #:119

u . '

G. Plaintiff alleges in the Complaint filed in this action �Defendant CSV has defaulted on

l 2

its obligations mderthe 2007 Loan Agreement, Note and Deed of Trust (her einafter

3

collectively the ďż˝'Borrowing Agreements") in that CSV (i) failed to pay the outstanding

4

principal balance ofth.e loan, all accrued and unpaid interest thereon, and all other sums

5

owing to Plaintiff pursuant to the terms of the Borrowing Agreements which were due

6

and payable on or before September 6, 2010; (ii) failed to pay when due and payable

7

property taxes assessed against the Property; and, (iii) fiiiled to pay premiums for

8

insurance required mder the terms of the Borrowing Agreements;

,

H.

9

Without admitting to or agreeing with Plaintiff's allegations, CSV stipulated on July 11, 2012, to the appointment of a receive r and a preliminary injunction.

10 11

TIIEREFORE, IT IS HEREBY ORDERED 1HAT:

12 13

ORDER APPOINTING RECEIVER

The Court grants Plaintiff's motion for the appointment of a receiver and appoints Kevin

14

1.

15

Singer as receiv er (the "Receiver''}, such appointment to be effective on the

16

of office. Purswmt to the terms of the Deed of Trust, the Receiver does not need to file an

17

undertaldng or bon d.

18

2.

Receiver is appointed by this Court to take possession of the Property.

19

3.

CSV shall surrender possession of the Property to Receiver as of August 1, 2012 (the

20

"Effective Date"), and shall deliver to Receiver all keys, all books and records related to the

21

ownership and maintenance of the Property, checkbooks, ledgers, accomits payable and accounts

22

receivable records, leases, rent rolls, insurance policies and certificates (except as specified in

23

Paragraph 18), executory contracts, plans, specifications and drawings, and all other documents

24

whatsoever related to the ownership and maintenance of the Property (collectively "Books and

25

Records''). Receiver shall take possession and control of all Books and Records, except that

26

Receiver may, in his discretion, choose to leave whatever portions of the Books and Records he

27

decides appropriate in the possession of the. persons possessing the same, provided that Receiver

28

shall have immediate access to these items. Receiver shall retain possession of the Property until the

filing of Receiver s oath '

2 [PROPOSED] ORDER APPOlNTJNG RECEIVBREX PARTE AND TRO #80494 vl saf

CERF SP'YI, LLC vs. Cherokee Simeon Venture I, UC. Contra Costa Superior Case No. C12-00284

Exhibit E 63

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 64 of 288 Page ID #:120 ::

u

:

1

earlier of further order of the Court or nonjudicial foreclosure of the Property by Plaintiff and/or its

2

assigns.

3

4.

4

personal property, assets, all rents due and hereinafter due, notes, receivables, actions and choses in

5

action; and,

6

action, or other evidence of indebtedness and, if need be, bring suit to recover the same in his own

7

name..

8

5.

9

may be路in possession there6f, be and they are hereby directed to (i) attom to Receiver, and until the

As of the Effective Date, Receiver shall (i) receive and take charge of the Property and all

(ii) collect all outstanding accounts, receivables, leases, rents, actions and choses in

As of the Effective Date, the tenants in possession of the Property or such other persons as

(ii) to pay over to Receiver, or its duly designated agent, all rents of the

10

further order of the Court;

11

Prop ez:ty now due and unpaid or hereafter to become due. CSV is hereby enjoined and restrained

12

from collecting the rents of the Property as of the Effective Date; and that all tenants of the Property

13

.

and other persons liable for the rents be and they hereby are enjoined and restrained from paying any

14

rent for the Property to CSV, or its managing agent, its officers, directors, employees, agents, or

15

attomeys.

16

6.

17

possession ofthe Property, CSV is restrained and enjoined until further order of this Court from

18

disposing of silch rents, issues, profits, and revenues of the Property in any manner, other than by

19

turning over such rents, issues, profits, and revenues to Receiver until further order of this Court;

20

7.

21

Plaintiff, for services performed as receiver for the Property pursuant to invoices

22

Plaintiff describing in detail the services perfonned and the hours worked, to be paid as a priority

23

from the rents and revenues of the Property, or otherwise paid by Lender; provided, however, in no

24

event shall Receiver's hourly fee exceed$ 250.00 per hour and $150 per hour for Receiver's support

25

staff;

26

8.

27

the following:

If CSV should receive any rents or revenues from the Property, on or after Receiver takes

Receiver shall be paid fees calculated on an hourly basis, at rates previously provided to

Submitted to

Receiver shall be authorized and empowered to, and when required by this Order must, do

28 3

[PROPOSED] ORDER APPOINTING RECEIVER EX PAR'IE AND TRO #80494Yl Hf

CERF SPVI, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Case No. Cl2-00284

Exhibit E 64

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 65 of 288 Page ID #:121

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1

2

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, iBffe�'{F:ll\W,;;�-��I·�fo�. ---

··�·

S

The power to possess,

6

manage and operate the Property shall include the power to assume or reject executory contracts,

7

including leases. Except as stated in Paragraph 18 ofthis Order. the power to possess, manage, and

8

operate shall also include the right to exclude from the Property anyone, including CSV and any

9

persons claiming under or through CSV, who are not in possession ofthe Property under valid lease

1O

or rental agreements or acting pursuant to an order or authority granted by the Department of Toxic

11

Substances Control ("DTSC'') or other government agency.

12

operations or management of any bus�ess operated wi1hin the Property, nor, is Recei ver required to

13

assure that

14

within the Property conform to Califomia state law.

any required licenses and per.mi.ta applicable to any business currently conducted at or

(b)

15

Receiver shall not be responsible for the

Rents and profits: Receiver shall have the right and power to take possession

16

and control ofany rents, profits, or income whatsoever generated by the Property ("Rents") after the

17

Effective Date, including any pre-paid Rents and profits, Rents and profits due and owing, and any

18

Rents and profits which become due and owing thereafter on the Effective Date, whether held by

19

CSV, its property managers, tenants, or any other third party. Receiver shall deposit all funds

20

received in an FDIC insured deposit account ("Receivership Account,,). Receiver may receive and

21

endorse checks constituting income from the Property. (c)

22

Management of the Property's Revenues: Receiver shall man.age the daily

23

operations ofthe Property and collect and hold all Rents, profits and other revenues generated by the

24

use and occupancy ofthe Property in the Receivership Account for which the authorized signatory

25

shall be Receiver and, at Receiver's option, designated agents ofReceiver. Receiver shall pay the

26

noimal, ordinary, and necessary operating expenses ofthe Property from the rents and other

27

revenues collected from the Property, subject to the limitations set forth in paragraph numb ered 8G)

28

below; otherwise, such costs shall be paid by Plaintiff following Receiver's delivery to Plaintiff of

#804!>4 vl 1sf

4 [PROPOSED] ORDBR. APPOINTING RECEIVER EX PAR.TB ANDTRO CERF SPYJ, LLC vs. Cherokee Simeon Venture 1, LLC. Contra Costa Superior Case No. Cl2-00284

Exhibit E 65

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 66 of 288 Page ID #:122

u

1

invoices describing such expenses in detail. All Rents, profits and revenue generated by the use and

2

occupancy ofthe Property shall be applied first to the payment of Operating Expenses.

3

Expenses shall include, without limitation, insurance, maintenance and repairs, utilities, payroll,

4

administration, refunds of security deposits, real property taxes, and assessments. Operating

5

Expenses shall not include, and Receiver shall not pay without further order of this Court or

6

Plaintiff's written consent: (i) any alle ged obligations owed to CSV, its agents, assigns, or to any

7

entity, person, partnership or cotporation owned, in whole or in part, by, related to, or otherwise

8

affiliated with CSV, or (ii) any obligations or payments owed, or claimed to be owed, to any junior

9

lien holder. All Rents, profits and revenue generated by the use and occupancy of the Property shall

10

then be applied to other fees, costs or expenses associated with the Property, as permitted by the

11

tenns of this Order. (d)

12

·

Operating

Protection of the Prqpert;y and Insurance: Receiver shall have the power to,

13

and is· ordered to, protect the Receivership Estate. "Receivership Estate" shall mean the Property,

14

Rents and profits, and other income derived from the Property and assets from any destruction, or

15

waste.

16

there ls sufficient insurance coverage to protect Plaintiff's security interest in the Property. If

17

necessary,

18

provided that the Receivership Estate's funds and required insurance

19

maintain existing insurance policies (except the PLL Insurance Policy referenced in Paragraph 17(b)

20

below) and pay any premiums due from available funds of the Receivership Estate. Receiver shall

21

not be persomtlly liable for any insurance claims arising before or after the appointment of a receiver

22

and procuremcmt of sufficient insurance. If insurance is not currently in place and cannot be

23

obtained by Receiver, the Court shall be notified within 30 days from the

Receiver shall determine upon taking possession ofthe Receivership Estate whether or not Receiver shall attempt to procure sufficient insurance coverage as soon as practicable, available.

Receiver may

date of this Order.

:�iii��illia:eampell$ate

(e)

24

are

;·Jl�-�l!i<:-Mt,

25 26

-������· ,;�����·�4;)�,

27 28 s

t/80494 vl saf

[PROPOSED] ORDBRAPPOINTIN"G RBCBIVBREX PARTE AND TRO CERF SPVI, LLC. vs. Cherokee Simeon Venture!, LLC. Contra Costa Superior Case No. Cl2-00284

Exhibit E 66

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 67 of 288 Page ID #:123

u

1

shall file in this action a detailed inventory of all property

2

undertaking and Oa1h are filed, Receiver

3

of the Receivership Estate. Receiver shall also file a supplemental inventory thereof; if necessary.

Periodic Accounting: Receiver shall provide periodic statements of account

(g)

4 that include a

5

summary

of the ootivities of Receiver and any property manager, a schedule of

receipts and disbursements, a summary of Receiver and its professional's interim fees and expenses,

.6

7

and other such information as the Court may direct. Receiver sba11 file said accounting with. the

8

Court and shall serve upon Plaintiff's counsel and CSV' s counsel a copy of said accounting.

9

Receiver shall file a final report within 3 0 days after the termination of the receivership.

(b.)

. 1 o路

.

Authorized Disbursements and Actions. Receiver shall be authorized, in the

exercise of Receiver's business judgment, to do, without limitation, the following:

11

(i)

12

Collect past due Rents and profits from tenants or former tenants of the

Property, and collect Rents and profits while this Order is in effect;

13

(ii)

Lease or r&-lease the Property or any portion of it on terms acceptable

16

(iii)

Evict tenants;

17

(iv)

As set forth in paragraph 8(c) above, pay Operating Expenses related

(v)

Incm and pay such other expenses as are reasonably necessary for

14 to P1aintiff;

15

to the Property.

18

19

Receiver to perform his duties;

20

路

Receiver's Initial Accounting: Within 30 days after the date Receiver's

(f)

21

(vi)

Retain, in Receiver's discretion, a working capital fund in an amount

22

sufficient for payment of Receivership expenses;

23

(vii)

Investigate and evaluate the financial condition and history of the

24

Property in order to determine their value and expenses, provided that such investigation does not

25

substantially increase the costs of the receivership over the compensation provided to Receiver

26

路

herein without Plaintiff's consent or further order of this Comt;

(viii)

27 28

Investigate and evaluate the Property for the presence of any readily

apparent dangerous conditions, hazardous waste, substances or chemicals that is not the subject of 6

[PROPOSED] ORDER APPOINTING R,BCBIVBREXPARTE AND TRO

CERFSP"YI, UC vs. Cherokee Simeon Venture[, UC.

#80494 vl saf

Contra Costa Superior Case No. Cl2M00284

Exhibit E 67

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 68 of 288 Page ID #:124 "' .

.. , '

20, 2011 Revised Draft Feasibility Stady and Remedial Action Plan for Lots 1,2, and 3,

1

the JUly

2

Campus Bay, Richmond, California ("Draft FSRAP'') or any revision or

(ix)

3

Subjeotto the terms of this Order,

amendment to same;

pay any necessary maintenance

4

required for health and safety reasons, property management fees, including :reimbursement for costs

5

on a monthly basis from the assets now held, or which may be received by, t1re Receivership Estate,

6

subject to.the final review of this Court;

(x)

7

Upon request of Pl� Receiver shall tum over to Plaintiff, to be lease proceeds net of (i) Receiver fees and expenses, (ii)

8

applied toward the indebtedness, any

9

Operating Expenses, and (iii) Receiver's working capital fund; (xi)

10

Upon Plaintiff's consent, provide for the payment of all

capital

11

improvements to the Property required to bring the Property to good condition and allow the lease of

12

the Property or any portion of the Property. ReCeiver shall first make any emergency capital

13

improvements or repairs which are necessary, in Receiver's business judgment, to protect persons

14

and the Property from serious bodily harm or damage. Receiver shall promptly notify Plaintiff and

1S

CSV of the need, if any, for any emergency capital improvements;

16 17

(xii)

Contest or protest taxes or assessments with respect to the Property;

{�)

Use any federal taxpayer identification numbers relating to the

and,

18 19

Property for any lawful purpose.

20

(i)

General Receivership Powers. In addition to all of the powers set forth above,

hereby vested with all of the

21

and subject to any limitations contained in this Order, Receiver is

22

general powers of receivers in cases of this kind, subject to the direction of this Court.

(j)

23 24

Limitations on Receiver's Authority: Except as provided for above, the

Receiver shall not, absent the consent of Plaintiffor further order of this Court:

25

(i)

Obtain loans, secured or unsecured, on behalf of the Receivership

26

Estate o r encumber the Receivership Estate. Notwithstanding this restriction

27

particularly set forth in paragraph 13 below, Receiver may request loans from Plaintiff at Plaintiff's

28

option and/or election to make any of the repairs and perform any maintenance determined by

on

loans, and as more

7

#80494 vl saf

[PROPOSBDJ ORDER APPOINTING RBCBIVBR.BX PARTE AND TRO CERF SPT'l, LLC vs. Cheroke.e Stmeon Venture I, LLC. Contra Costa Superior case No. Cl2�00284

Exhibit E 68

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 69 of 288 Page ID #:125

1

Receiver in his business judgment to be necessary to keep the Property in good condition, and any

2

emergency capital improvements or repairs as allowed above. Any and all loans Receiver obtains

3

from Pl� pursuant to this paragraph, shall be: (i) deemed obligatory advances on the

4

indebtedness; (ii) added to the balance due; and (iii) secured by the operative Deed of Trust. (ii)

5 6

Court, execute any documents that (i) result in a subdivision of the Property, or (ii) that result in a lot

7

line adjus1m.ent of any portion of the Property;

(iii)

8 9

· ·

Without the written consent of CSV and Plaintiff, or order of this

Without the written consent of CSV and Plaintiff, or order of this

Court, sell any portion of the Property.

Receiver shall have no responsibility for filing future federal and state income tax retums

1O

9.

11

(''Tax Retum'') or for dissolution of CSV. The responsibility for such filings lie exclusively with

12

csv.

13

10.

14

Estate upon ten (10) days notice to the parties. If no written specific objection is provided to

15

Receiver on all fees and expenses submitted; Receiver may pay its invoice and professional fees and

16

expenses owed from available Receivership Estate funds.

17

day period, Receiver must respond within a reasonable time to the parties with an acceptable

18

explanation. If an agreement cannot be reached, a noticed motion on shortened time will be filed

19

with the Court for approval of the fees and expenses in dispute.

20

11.

21

Receiver has no control, shall be obligations of CSV and may not be refunded by Receiver without

22

an

23

have paid or may pay to Receiver, if otherwise refundable under the terms of their leases or

24

agreements with Receiver1 shall be refundable by Receiver in accordance with the leases or

25

agreements.

26

12.

27

Receiver's fees and expenses will be paid monthly from available funds of the Receivership

If an

objection is received within the ten

Any security or other deposits which tenants have paid to CSV, or its agents, over which

order of this Court or approval of Plaintiff. Any other security or other deposits which tenants

.���1.:: �.:,�,,,,,:�·�,�-:.�,., ,,_·.·-'..

·'.

.

··miime!®fi!�:�p]fti�ontotbisealtti

f0f�'OM.ets"�'ll«el.Vtfff0'1f:

28 8

[PROPOSED] ORDER APPOINTING RECEIVER EX PARTBANDTRO #804'4 vl aaf

CERF SPVJ, LLC vs. Cherokee Simeon Venture I, UC. Contra Costa Superior Case No. C12-00284

Exhibit E 69

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 70 of 288 Page ID #:126

u

'0

Receiver is authorized to borrow from Plaintiff such funds as are necessary to perform bis

I

13.

2

duties as set forth in tbis Order. No obligation on the part of Plaintiffto advance or loan funds to the

3

Receiver shall arise prior to the Receiver's preparation of a budget for management and operation of

4.

the Property, and the approval of said budget by Plaintiff. In any event, Plaintiff shall have no

5

obligation to advance or loan funds to the Receivership Estate except in its sole and absolute

6

路discretion. In consideration for any such路 advance or loan, Receiver is authorized to and sh.all issue

7

to Plaintiff certificates of indebtedness ("Receiver's Certificates"), as evidence of receivership

8

indebtedness for any such advances made by Plaintiff pursuant to this Order. All Receiver's

9

Certificates shall be executed and delivered to Plaintiff by Receiver as a condition to funding, and

路 10

shall be numbered in sequential order for redemption purposes. All indebtedness represented by a

11

Receiver's Certi.fi.cate(s) shall be and constitute a lien and charge upon all assets of the Receivership

12

Estate, and with. respect to such assets and estate.

13

14.

14

Receiver is transferred by reason of a judicial foreclosure sale or nonjudicial trustee's sale conducted

15

pursuant to the tenns of the Deed of Trust sued upon in this action, Receiver shall immediately "turn

16

over possession and control of the applicable property, together with the Books and Records, and all

17

personal property associated therewith to the new owner upon presentation to Receiver of a certified

18

copy of the deed evidencing such transfer, or upon Order of this Court made upon an ex parte

19

application, which may be presented without Receiver's or counsel's personal appearance.

20

15.

21

aotions described in paragraph 18.

In the event that the title to a specific prQPerty and the personal property hereby entrusted to

Plaintiff and Receiver shall cooperate with CSV and Zen.eca, Inc., to effectuate the remedial

22

PRELIMlNARY INJUNCTION IT IS FURTHER ORDERED that CSV, along with any of its trustees, property managers,

23

16.

24

co-trustees, partners, employees, agents,' representatives, contractors and any other person or entity

25

under their control \'Related Parties") are hereby enjoined and restrained from:

26

(a)

Committing or permitting waste of the Property;

27

(b)

Removing. transferring or otherwise disposing of the Property or any of its

28

:fixtures

and/or incorporated materials; 9

[PROPOSED] ORDER APPOINTING RBCBIVBR BX PAR.TB AND TRO i#80494vl sat'

CERF SPY.I, LLC w. Cherokee Stmeon Venture I, LLC. Contta Costa Superior Case No. Cl2-00284

Exhibit E 70

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 71 of 288 Page ID #:127 i:

u

.''

1

(c)

Demandmg, collectin& diverting or receiving any Rents of the Property;

2

(d)

Transferring, moving, selling, leasing or otherwise disposing of any of the

3

personal property and/or improvements located in or around the Property; and,

4

路

In any way interfering with the discharge of the Receiver's duties.

(e)

In addition, CSV and Related Parties shall be obligated to do, and shall be restrained from

5

17.

6

doing, the following: Turnover of Books. and Records: Prior to the Effective Date, CSV shall tum

(f)

7 8

over complete copies of the Books and Records,

9

originals of the Books and Records to Receiver if so requested by the Receiver. CSV shall assist

as

defined herein, to Receiver. CSV shall deliver

10

Receiver in obtaining complete copies of the same in the event the Books and Records are held by

11

persons or entities other than CSV. CSV shall promptly, upon request by Receiver, furnish to

12

Receiver copies of such other financial infonnation or backup documentation relating to those Books

13

and Records.

(g)

14

路

Turnover of Insurance Information: CSV shall promptly provide Receiver

15

with the property insurance policies and policy information for the Property. CSV shall make

16

certain that Receiver is named as an additional insured on all applicable policies for the period that

17

Receiver shall be in possession of the Property, except for the Pollution Legal Liability Select Clean-

18

Up Cost Cap Insurance, Policy No. 195 8035 ("PLL Policy") issued by American Intematlonal

19

Specialty Lines Insurance Company, on which the Receiver shall not be named as an additional

20

insured ..

21

18.

22

selling, leasing or otherwise disposing of any of the personal property, fixtures and/or improvements

23

located in and around the properties. In addition, CSV and Related Parties are enjoined and

24

restrained from creating any dangerous conditions on the Property and from interfering with the

25

necessary activities of Receiver.

CSV and Related Parties shall be enjoined and restrained from transfening, appropriating,

26

Notwithstanding the foregoing, CSV and/or Zeneca, Inc., shall have the right upon

27

reasonable written notice to Receiver and Plaintiff, to enter upon the Property to ex.amine, test and

28

inspect the environmental condition of the Property and to perform any and all acts related to the 10

[PROPOSED]路 0'.IIDBR. APPOINTING RECBIVBR.EXPARTEAND TRO #180494 vi sat

CERF SP"Pl, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Case No. Cl2..00284

Exhibit E 71

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 72 of 288 Page ID #:128 t

u

.

1

Environmental Indemnity Agreement executed by CSV in favor of CERF, dated September 6, 2007

2

(''BIA"), related to any agreement or mandate from any governmental entity or official, including but

3

not limited to, implementing any remedies set forth in a Final Remedial Action Plan for Lots 1,2 and

4

3, Campus Bay, Richmond, California" ("FSRAP"), or related to other remediation activities

5

approved by or required by any governmental official or entity. As between CSV and the Plaint:ttI:

6

all terms and provisions contained in the EIA shall remain in place, including CSV's responsibility

7

for any damages to the Property as a result any investigatio� testing or remedial WQrk it performs on

8

the Property.

9

In the

event CSV is unable to provide Receiver with evidence of insurance required by this

10

Order, Receiver,, in its sole discretio� may, as set forth in paragraph 8(d) above, elect to acquire the

11

insurance and

allow investigation and/or remediation to occur.

12

19.

CSV and Related Parties shall be restrained and enjoined from transferring or

13

assigning, or encumbering atiy interest in the Property without further order of this Court. In

14

addition, CSV and Related Parties shall be restrained and enjoined from committing or pennitting

15

any waste on the Property or any part thereof: or suffedng or committing or permitting any act on

16

the Property or any part thereof in violation of law or removing or transferring or otherwise

17

disposing of any of the equipmeJrt or fixtures presently on the Receivership Estate or any part

18

thereof; until :further Otder of this Court.

19

20.

20

Procedure section 529.

Plaintiff is not required to file a preUminary injunction bond specified in California Civil

PROVISIONS UPON FORECLOSURE OR TERMINATION OF RECEIVERSHIP

21

IT IS FURTHER ORDERED that:

22

In the event that any or all of the Property is sold in a non-judicial or judicial foreclosure

23

21.

24

proceeding, and the receivership remains in effect. funds previously paid to and held by Receiver

25

.shall continue to be held by Receiver until Receiver•s final account and report (the "Final Report") is

26

approved by the Court. After Court approval of the Final Report and payment of all Court approved

27

Receivership Estate expenses, Plaintiff shall receive net proceeds in accordance with the operative

28

loan documents attached to and referenced in the Verified Complaint in this matter.

I

11

[PROPOSED] ORDER APPOINTING RECEIVER EX PARTE AND TR.O #80494 vl saf

CERF SPY!, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Cue No. Cl2-00284

Exhibit E 72

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 73 of 288 Page ID #:129 ;;

u

,. .

.1

22.

In the event that the obligations owing to Plamtiff m:e not fully satisfied by the proceeds of

2

such sale, or in the event that this action is dismissed or the receivership is terminated for any reason

3

whatsoever. Receiver, upon Court approval ofR.eceiver's Final Report and payment of all Receivership

4

Estate expenses, shall be authorized to release, within two (2) business days ofReceiver's receipt of a

5

'Written request by Plaintiff, all net funds under Receiver's control to Plaintiff to be applied toward any

6

obligations CSV may owe pursuant to the loan documents set forth in tb.e Complaint. In the event that

7

this receivership is terminated and.no foreclosure sale of the Properties has occurred or the loan has

8

been fully satisfied by the proceeds of a judicial or non-judicial foreclosure sale of the Property or

9

otherwise, all funds under Receiver's control shall be disbursed pursuant to the Court's instructions

10

upon termination of the receivership.

11

23.

12

documents and any obligations incurre d by or to Receiver, Plaintiff and Receiver shall cooperate to

13

promptly prepare and obtain Court approval of a Final Report and an order discharging Receiver and

14

exonerating its bond.

15

24.

16

foreclosure sale, whether judicial or non-judicial, relating to the Note or Deed of Trust and all debt

17

under the Note is fully paid; (ii) Plaintiff consents to the termination of the Receivership; and (ill)

18

the Court issues an order approving the Receiver's Final Report, discharging the Receiver and

19

exonerating its bond, thereby, terminating the Receivership.

Promptly upon the satisfaction of the entire indebtedness to Plaintiff pursuant to the loan

Receiver shall remain an agent of this Court until: (i) the Property and all security is sold at a

20 21

IT IS SO ORDERED.

22 23

JUDITH A. SANDERS DATED:

JUL 1 2 201Z ¡Judge of the Superior Court

24

'fro T@ďż˝

25 26 27 28 12

[PROPOSED] ORDER APPOINTING RBCEIVBRBXPARTE AND TR.O 1#80494 vl aaf

CERF SPT'I, LLC vs. Cherokee Simeon Venture I, LLC. Contra Costa Superior Case No. C12-00284

Exhibit E 73

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 74 of 288 Page ID #:130

EXHIBIT F

74

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 75 of 288 Page ID #:131

Exhibit F 75

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 76 of 288 Page ID #:132

Exhibit F 76

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 77 of 288 Page ID #:133

Exhibit F 77

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 78 of 288 Page ID #:134

Exhibit F 78

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 79 of 288 Page ID #:135

Exhibit F 79

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 80 of 288 Page ID #:136

Exhibit F 80

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 81 of 288 Page ID #:137

Exhibit F 81

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 82 of 288 Page ID #:138

EXHIBIT G

82

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 83 of 288 Page ID #:139

Exhibit G 83

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 84 of 288 Page ID #:140

Exhibit G 84

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 85 of 288 Page ID #:141

Exhibit G 85

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 86 of 288 Page ID #:142

Exhibit G 86

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 87 of 288 Page ID #:143

Exhibit G 87

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 88 of 288 Page ID #:144

Exhibit G 88

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 89 of 288 Page ID #:145

Exhibit G 89

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 90 of 288 Page ID #:146

Exhibit G 90

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 91 of 288 Page ID #:147

Exhibit G 91

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 92 of 288 Page ID #:148

EXHIBIT H

92

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 93 of 288 Page ID #:149

Exhibit H 93

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 94 of 288 Page ID #:150

Exhibit H 94

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 95 of 288 Page ID #:151

Exhibit H 95

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 96 of 288 Page ID #:152

Exhibit H 96

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 97 of 288 Page ID #:153

Exhibit H 97

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 98 of 288 Page ID #:154

Exhibit H 98

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 99 of 288 Page ID #:155

Exhibit H 99

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 100 of 288 Page ID #:156

Exhibit H 100

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 101 of 288 Page ID #:157

Exhibit H 101

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 102 of 288 Page ID #:158

Exhibit H 102

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 103 of 288 Page ID #:159

Exhibit H 103

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 104 of 288 Page ID #:160

Exhibit H 104

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 105 of 288 Page ID #:161

Exhibit H 105

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 106 of 288 Page ID #:162

Exhibit H 106

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 107 of 288 Page ID #:163

EXHIBIT I

107

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 108 of 288 Page ID #:164

Exhibit I 108

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 109 of 288 Page ID #:165

Exhibit I 109

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 110 of 288 Page ID #:166

Exhibit I 110

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 111 of 288 Page ID #:167

Exhibit I 111

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 112 of 288 Page ID #:168

Exhibit I 112

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 113 of 288 Page ID #:169

Exhibit I 113

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 114 of 288 Page ID #:170

Exhibit I 114

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 115 of 288 Page ID #:171

EXHIBIT J

115

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 116 of 288 Page ID #:172

Exhibit J 116

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 117 of 288 Page ID #:173

EXHIBIT K

117

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 118 of 288 Page ID #:174

Exhibit K 118

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 119 of 288 Page ID #:175

Exhibit K 119

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 120 of 288 Page ID #:176

Exhibit K 120

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 121 of 288 Page ID #:177

Exhibit K 121

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 122 of 288 Page ID #:178

Exhibit K 122

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 123 of 288 Page ID #:179

Exhibit K 123

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 124 of 288 Page ID #:180

Exhibit K 124

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 125 of 288 Page ID #:181

Exhibit K 125

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 126 of 288 Page ID #:182

Exhibit K 126

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 127 of 288 Page ID #:183

EXHIBIT L

127

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 128 of 288 Page ID #:184

Exhibit L 128

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 129 of 288 Page ID #:185

EXHIBIT M

129

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 130 of 288 Page ID #:186

Exhibit M 130

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 131 of 288 Page ID #:187

Exhibit M 131

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 132 of 288 Page ID #:188

Exhibit M 132

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 133 of 288 Page ID #:189

Exhibit M 133

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 134 of 288 Page ID #:190

Exhibit M 134

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 135 of 288 Page ID #:191

Exhibit M 135

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 136 of 288 Page ID #:192

Exhibit M 136

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 137 of 288 Page ID #:193

Exhibit M 137

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 138 of 288 Page ID #:194

Exhibit M 138

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 139 of 288 Page ID #:195

Exhibit M 139

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 140 of 288 Page ID #:196

Exhibit M 140

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 141 of 288 Page ID #:197

Exhibit M 141

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 142 of 288 Page ID #:198

Exhibit M 142

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 143 of 288 Page ID #:199

EXHIBIT N

143

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 144 of 288 Page ID #:200

Exhibit N 144

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 145 of 288 Page ID #:201

Exhibit N 145

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 146 of 288 Page ID #:202

Exhibit N 146

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 147 of 288 Page ID #:203

Exhibit N 147

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 148 of 288 Page ID #:204

Exhibit N 148

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 149 of 288 Page ID #:205

EXHIBIT O

149

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 150 of 288 Page ID #:206

Exhibit O 150

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 151 of 288 Page ID #:207

Exhibit O 151

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 152 of 288 Page ID #:208

Exhibit O 152

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 153 of 288 Page ID #:209

Exhibit O 153

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 154 of 288 Page ID #:210

Exhibit O 154

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 155 of 288 Page ID #:211

Exhibit O 155

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 156 of 288 Page ID #:212

Exhibit O 156

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 157 of 288 Page ID #:213

Exhibit O 157

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 158 of 288 Page ID #:214

Exhibit O 158

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 159 of 288 Page ID #:215

Exhibit O 159

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 160 of 288 Page ID #:216

Exhibit O 160

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 161 of 288 Page ID #:217

Exhibit O 161

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 162 of 288 Page ID #:218

Exhibit O 162

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 163 of 288 Page ID #:219

EXHIBIT P

163

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 164 of 288 Page ID #:220

Exhibit P 164

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 165 of 288 Page ID #:221

Exhibit P 165

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 166 of 288 Page ID #:222

Exhibit P 166

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 167 of 288 Page ID #:223

Exhibit P 167

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 168 of 288 Page ID #:224

Exhibit P 168

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 169 of 288 Page ID #:225

Exhibit P 169

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 170 of 288 Page ID #:226

Exhibit P 170

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 171 of 288 Page ID #:227

EXHIBIT Q

171

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 172 of 288 Page ID #:228

Exhibit Q 172

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 173 of 288 Page ID #:229

Exhibit Q 173

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 174 of 288 Page ID #:230

Exhibit Q 174

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 175 of 288 Page ID #:231

Exhibit Q 175

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 176 of 288 Page ID #:232

Exhibit Q 176

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 177 of 288 Page ID #:233

Exhibit Q 177

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 178 of 288 Page ID #:234

Exhibit Q 178

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 179 of 288 Page ID #:235

Exhibit Q 179

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 180 of 288 Page ID #:236

Exhibit Q 180

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 181 of 288 Page ID #:237

Exhibit Q 181

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 182 of 288 Page ID #:238

Exhibit Q 182

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 183 of 288 Page ID #:239

EXHIBIT R

183

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 184 of 288 Page ID #:240

Exhibit R 184

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 185 of 288 Page ID #:241

Exhibit R 185

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 186 of 288 Page ID #:242

Exhibit R 186

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 187 of 288 Page ID #:243

EXHIBIT S

187

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 188 of 288 Page ID #:244

Exhibit S 188

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 189 of 288 Page ID #:245

Exhibit S 189

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 190 of 288 Page ID #:246

Exhibit S 190

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 191 of 288 Page ID #:247

Exhibit S 191

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 192 of 288 Page ID #:248

Exhibit S 192

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 193 of 288 Page ID #:249

Exhibit S 193

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 194 of 288 Page ID #:250

Exhibit S 194

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 195 of 288 Page ID #:251

EXHIBIT T

195

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 196 of 288 Page ID #:252

Exhibit T 196

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 197 of 288 Page ID #:253

Exhibit T 197

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 198 of 288 Page ID #:254

Exhibit T 198

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 199 of 288 Page ID #:255

Exhibit T 199

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 200 of 288 Page ID #:256

Exhibit T 200

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 201 of 288 Page ID #:257

Exhibit T 201

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 202 of 288 Page ID #:258

Exhibit T 202

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 203 of 288 Page ID #:259

Exhibit T 203

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 204 of 288 Page ID #:260

Exhibit T 204

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 205 of 288 Page ID #:261

Exhibit T 205

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 206 of 288 Page ID #:262

Exhibit T 206

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 207 of 288 Page ID #:263

Exhibit T 207

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 208 of 288 Page ID #:264

EXHIBIT U

208

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 209 of 288 Page ID #:265

Exhibit U 209

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 210 of 288 Page ID #:266

Exhibit U 210

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 211 of 288 Page ID #:267

Exhibit U 211

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 212 of 288 Page ID #:268

Exhibit U 212

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 213 of 288 Page ID #:269

Exhibit U 213

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 214 of 288 Page ID #:270

Exhibit U 214

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 215 of 288 Page ID #:271

Exhibit U 215

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 216 of 288 Page ID #:272

Exhibit U 216

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 217 of 288 Page ID #:273

Exhibit U 217

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 218 of 288 Page ID #:274

Exhibit U 218

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 219 of 288 Page ID #:275

Exhibit U 219

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 220 of 288 Page ID #:276

Exhibit U 220

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 221 of 288 Page ID #:277

Exhibit U 221

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 222 of 288 Page ID #:278

Exhibit U 222

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 223 of 288 Page ID #:279

Exhibit U 223

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 224 of 288 Page ID #:280

Exhibit U 224

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 225 of 288 Page ID #:281

Exhibit U 225

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 226 of 288 Page ID #:282

Exhibit U 226

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 227 of 288 Page ID #:283

Exhibit U 227

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 228 of 288 Page ID #:284

Exhibit U 228

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 229 of 288 Page ID #:285

Exhibit U 229

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 230 of 288 Page ID #:286

Exhibit U 230

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 231 of 288 Page ID #:287

Exhibit U 231

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 232 of 288 Page ID #:288

Exhibit U 232

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 233 of 288 Page ID #:289

Exhibit U 233

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 234 of 288 Page ID #:290

Exhibit U 234

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 235 of 288 Page ID #:291

Exhibit U 235

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 236 of 288 Page ID #:292

Exhibit U 236

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 237 of 288 Page ID #:293

Exhibit U 237

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 238 of 288 Page ID #:294

Exhibit U 238

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 239 of 288 Page ID #:295

Exhibit U 239

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 240 of 288 Page ID #:296

Exhibit U 240

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 241 of 288 Page ID #:297

EXHIBIT V

241

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 242 of 288 Page ID #:298

Exhibit V 242

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 243 of 288 Page ID #:299

Exhibit V 243

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 244 of 288 Page ID #:300

Exhibit V 244

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 245 of 288 Page ID #:301

Exhibit V 245

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 246 of 288 Page ID #:302

Exhibit V 246

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 247 of 288 Page ID #:303

Exhibit V 247

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 248 of 288 Page ID #:304

Exhibit V 248

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 249 of 288 Page ID #:305

Exhibit V 249

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 250 of 288 Page ID #:306

EXHIBIT W

250

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 251 of 288 Page ID #:307

Exhibit W 251

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 252 of 288 Page ID #:308

Exhibit W 252

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 253 of 288 Page ID #:309

Exhibit W 253

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 254 of 288 Page ID #:310

Exhibit W 254

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 255 of 288 Page ID #:311

Exhibit W 255

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 256 of 288 Page ID #:312

Exhibit W 256

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 257 of 288 Page ID #:313

Exhibit W 257

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 258 of 288 Page ID #:314

EXHIBIT X

258

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 259 of 288 Page ID #:315

Exhibit X 259

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 260 of 288 Page ID #:316

Exhibit X 260

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 261 of 288 Page ID #:317

Exhibit X 261

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 262 of 288 Page ID #:318

Exhibit X 262

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 263 of 288 Page ID #:319

Exhibit X 263

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 264 of 288 Page ID #:320

Exhibit X 264

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 265 of 288 Page ID #:321

Exhibit X 265

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 266 of 288 Page ID #:322

Exhibit X 266

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 267 of 288 Page ID #:323

Exhibit X 267

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 268 of 288 Page ID #:324

Exhibit X 268

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 269 of 288 Page ID #:325

Exhibit X 269

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 270 of 288 Page ID #:326

Exhibit X 270

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 271 of 288 Page ID #:327

Exhibit X 271

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 272 of 288 Page ID #:328

Exhibit X 272

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 273 of 288 Page ID #:329

EXHIBIT Y

273

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 274 of 288 Page ID #:330

Exhibit Y 274

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 275 of 288 Page ID #:331

Exhibit Y 275

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 276 of 288 Page ID #:332

Exhibit Y 276

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 277 of 288 Page ID #:333

Exhibit Y 277

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 278 of 288 Page ID #:334

Exhibit Y 278

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 279 of 288 Page ID #:335

Exhibit Y 279

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 280 of 288 Page ID #:336

Exhibit Y 280

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 281 of 288 Page ID #:337

Exhibit Y 281

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 282 of 288 Page ID #:338

EXHIBIT Z

282

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 283 of 288 Page ID #:339

Exhibit Z 283

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 284 of 288 Page ID #:340

Exhibit Z 284

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 285 of 288 Page ID #:341

Exhibit Z 285

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 286 of 288 Page ID #:342

Exhibit Z 286

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 287 of 288 Page ID #:343

Exhibit Z 287

Case 2:14-cv-09104-GW-JC Document 3 Filed 11/25/14 Page 288 of 288 Page ID #:344

Exhibit Z 288

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 1 of 153 Page ID #:345

EXHIBIT AA

289

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 2 of 153 Page ID #:346

Exhibit AA 290

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 3 of 153 Page ID #:347

Exhibit AA 291

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 4 of 153 Page ID #:348

EXHIBIT BB

292

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 5 of 153 Page ID #:349

Exhibit BB 293

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 6 of 153 Page ID #:350

Exhibit BB 294

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 7 of 153 Page ID #:351

EXHIBIT CC

295

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 8 of 153 Page ID #:352

Exhibit CC 296

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 9 of 153 Page ID #:353

Exhibit CC 297

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 10 of 153 Page ID #:354

EXHIBIT DD

298

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 11 of 153 Page ID #:355

Exhibit DD 299

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 12 of 153 Page ID #:356

Exhibit DD 300

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 13 of 153 Page ID #:357

Exhibit DD 301

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 14 of 153 Page ID #:358

Exhibit DD 302

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 15 of 153 Page ID #:359

Exhibit DD 303

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 16 of 153 Page ID #:360

Exhibit DD 304

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 17 of 153 Page ID #:361

Exhibit DD 305

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 18 of 153 Page ID #:362

Exhibit DD 306

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 19 of 153 Page ID #:363

Exhibit DD 307

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 20 of 153 Page ID #:364

Exhibit DD 308

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 21 of 153 Page ID #:365

Exhibit DD 309

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 22 of 153 Page ID #:366

EXHIBIT EE

310

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 23 of 153 Page ID #:367

Exhibit EE 311

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 24 of 153 Page ID #:368

Exhibit EE 312

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 25 of 153 Page ID #:369

Exhibit EE 313

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 26 of 153 Page ID #:370

Exhibit EE 314

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 27 of 153 Page ID #:371

Exhibit EE 315

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 28 of 153 Page ID #:372

Exhibit EE 316

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 29 of 153 Page ID #:373

Exhibit EE 317

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 30 of 153 Page ID #:374

Exhibit EE 318

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 31 of 153 Page ID #:375

Exhibit EE 319

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 32 of 153 Page ID #:376

Exhibit EE 320

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 33 of 153 Page ID #:377

Exhibit EE 321

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 34 of 153 Page ID #:378

Exhibit EE 322

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 35 of 153 Page ID #:379

Exhibit EE 323

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 36 of 153 Page ID #:380

Exhibit EE 324

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 37 of 153 Page ID #:381

Exhibit EE 325

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 38 of 153 Page ID #:382

Exhibit EE 326

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 39 of 153 Page ID #:383

Exhibit EE 327

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 40 of 153 Page ID #:384

Exhibit EE 328

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 41 of 153 Page ID #:385

Exhibit EE 329

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 42 of 153 Page ID #:386

Exhibit EE 330

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 43 of 153 Page ID #:387

Exhibit EE 331

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 44 of 153 Page ID #:388

Exhibit EE 332

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 45 of 153 Page ID #:389

Exhibit EE 333

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 46 of 153 Page ID #:390

EXHIBIT FF

334

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 47 of 153 Page ID #:391

Exhibit FF 335

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 48 of 153 Page ID #:392

Exhibit FF 336

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 49 of 153 Page ID #:393

Exhibit FF 337

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 50 of 153 Page ID #:394

EXHIBIT GG

338

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 51 of 153 Page ID #:395

Exhibit GG 339

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 52 of 153 Page ID #:396

Exhibit GG 340

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 53 of 153 Page ID #:397

EXHIBIT HH

341

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 54 of 153 Page ID #:398

Exhibit HH 342

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 55 of 153 Page ID #:399

Exhibit HH 343

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 56 of 153 Page ID #:400

Exhibit HH 344

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 57 of 153 Page ID #:401

Exhibit HH 345

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 58 of 153 Page ID #:402

EXHIBIT II

346

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 59 of 153 Page ID #:403

Exhibit II 347

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 60 of 153 Page ID #:404

Exhibit II 348

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 61 of 153 Page ID #:405

Exhibit II 349

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 62 of 153 Page ID #:406

Exhibit II 350

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 63 of 153 Page ID #:407

Exhibit II 351

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 64 of 153 Page ID #:408

Exhibit II 352

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 65 of 153 Page ID #:409

Exhibit II 353

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 66 of 153 Page ID #:410

Exhibit II 354

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 67 of 153 Page ID #:411

Exhibit II 355

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 68 of 153 Page ID #:412

EXHIBIT JJ

356

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 69 of 153 Page ID #:413

Exhibit JJ 357

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 70 of 153 Page ID #:414

Exhibit JJ 358

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 71 of 153 Page ID #:415

Exhibit JJ 359

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 72 of 153 Page ID #:416

Exhibit JJ 360

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 73 of 153 Page ID #:417

Exhibit JJ 361

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 74 of 153 Page ID #:418

Exhibit JJ 362

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 75 of 153 Page ID #:419

Exhibit JJ 363

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 76 of 153 Page ID #:420

Exhibit JJ 364

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 77 of 153 Page ID #:421

Exhibit JJ 365

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 78 of 153 Page ID #:422

EXHIBIT KK

366

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 79 of 153 Page ID #:423

Exhibit KK 367

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 80 of 153 Page ID #:424

Exhibit KK 368

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 81 of 153 Page ID #:425

Exhibit KK 369

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 82 of 153 Page ID #:426

Exhibit KK 370

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 83 of 153 Page ID #:427

Exhibit KK 371

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 84 of 153 Page ID #:428

Exhibit KK 372

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 85 of 153 Page ID #:429

Exhibit KK 373

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 86 of 153 Page ID #:430

Exhibit KK 374

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 87 of 153 Page ID #:431

Exhibit KK 375

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 88 of 153 Page ID #:432

EXHIBIT LL

376

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 89 of 153 Page ID #:433

Exhibit LL 377

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 90 of 153 Page ID #:434

Exhibit LL 378

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 91 of 153 Page ID #:435

Exhibit LL 379

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 92 of 153 Page ID #:436

Exhibit LL 380

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 93 of 153 Page ID #:437

EXHIBIT MM

381

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 94 of 153 Page ID #:438

Exhibit MM 382

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 95 of 153 Page ID #:439

Exhibit MM 383

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 96 of 153 Page ID #:440

Exhibit MM 384

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 97 of 153 Page ID #:441

Exhibit MM 385

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 98 of 153 Page ID #:442

Exhibit MM 386

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 99 of 153 Page ID #:443

Exhibit MM 387

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 100 of 153 Page ID #:444

EXHIBIT NN

388

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 101 of 153 Page ID #:445

Exhibit NN 389

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 102 of 153 Page ID #:446

Exhibit NN 390

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 103 of 153 Page ID #:447

Exhibit NN 391

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 104 of 153 Page ID #:448

Exhibit NN 392

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 105 of 153 Page ID #:449

EXHIBIT OO

393

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 106 of 153 Page ID #:450

Exhibit OO 394

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 107 of 153 Page ID #:451

Exhibit OO 395

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 108 of 153 Page ID #:452

Exhibit OO 396

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 109 of 153 Page ID #:453

Exhibit OO 397

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 110 of 153 Page ID #:454

Exhibit OO 398

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 111 of 153 Page ID #:455

Exhibit OO 399

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 112 of 153 Page ID #:456

Exhibit OO 400

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 113 of 153 Page ID #:457

Exhibit OO 401

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 114 of 153 Page ID #:458

Exhibit OO 402

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 115 of 153 Page ID #:459

EXHIBIT PP

403

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 116 of 153 Page ID #:460

Exhibit PP 404

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 117 of 153 Page ID #:461

Exhibit PP 405

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 118 of 153 Page ID #:462

Exhibit PP 406

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 119 of 153 Page ID #:463

Exhibit PP 407

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 120 of 153 Page ID #:464

EXHIBIT QQ

408

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 121 of 153 Page ID #:465

Exhibit QQ 409

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 122 of 153 Page ID #:466

Exhibit QQ 410

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 123 of 153 Page ID #:467

Exhibit QQ 411

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 124 of 153 Page ID #:468

Exhibit QQ 412

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 125 of 153 Page ID #:469

Exhibit QQ 413

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 126 of 153 Page ID #:470

Exhibit QQ 414

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 127 of 153 Page ID #:471

Exhibit QQ 415

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 128 of 153 Page ID #:472

Exhibit QQ 416

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 129 of 153 Page ID #:473

Exhibit QQ 417

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 130 of 153 Page ID #:474

EXHIBIT RR

418

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 131 of 153 Page ID #:475

Exhibit RR 419

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 132 of 153 Page ID #:476

Exhibit RR 420

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 133 of 153 Page ID #:477

Exhibit RR 421

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 134 of 153 Page ID #:478

Exhibit RR 422

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 135 of 153 Page ID #:479

Exhibit RR 423

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 136 of 153 Page ID #:480

Exhibit RR 424

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 137 of 153 Page ID #:481

Exhibit RR 425

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 138 of 153 Page ID #:482

Exhibit RR 426

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 139 of 153 Page ID #:483

Exhibit RR 427

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 140 of 153 Page ID #:484

Exhibit RR 428

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 141 of 153 Page ID #:485

EXHIBIT SS

429

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 142 of 153 Page ID #:486

Exhibit SS 430

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 143 of 153 Page ID #:487

Exhibit SS 431

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 144 of 153 Page ID #:488

Exhibit SS 432

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 145 of 153 Page ID #:489

Exhibit SS 433

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 146 of 153 Page ID #:490

Exhibit SS 434

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 147 of 153 Page ID #:491

Exhibit SS 435

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 148 of 153 Page ID #:492

Exhibit SS 436

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 149 of 153 Page ID #:493

Exhibit SS 437

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 150 of 153 Page ID #:494

Exhibit SS 438

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 151 of 153 Page ID #:495

Exhibit SS 439

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 152 of 153 Page ID #:496

Exhibit SS 440

Case 2:14-cv-09104-GW-JC Document 3-1 Filed 11/25/14 Page 153 of 153 Page ID #:497

Exhibit SS 441