DeclarationCal. Super. - 6th Dist.March 2, 2021.-»- --®\O0<>\lO\ .a»--.-»-»-p--»-->-- \O0O\lO\UI-blfilx) Ix)O Ix) ._. Ix) Ix) I\) Q.) Ix)A Ix) K/I Ix) O\ Ix) \l Ix) O0 DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1151 Minnesota Avenue San Jose, CA 95125 Telephone: (408) 293-8500 Facsimile: (408) 293-8507 Attorney for Defendants Michael Hart, Frances Hart, Tracy Hart-DeGregorio and Gail Hart SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Plaintiff, Case No: 21CV37899l FREDERICK HART,JR DECLARATION OF DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. v. §l28.5 SANCTIONS Defendants, Date: Time: MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART Department: DECLARATION OF DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. §l28.5 SANCTIONS I am counsel for the Defendants in the above referenced matter. I declare that the following matters are true and correct and that I have personal knowledge of each of them. If called to testify with regard to the matters stated herein, I could and would do so competently. l. Defendants were served with the Complaint and initially retained me as counsel to see if a settlement could be reached with the Plaintiff, before proceeding with litigation. I contacted Plaintiffs counsel and told them I was plarming to make a settlement offer, and they agreed to extend DECLARATION OF DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. §l28.5 SANCTIONS Hart v. Hart, et 111. Case No. 21CV37899l 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/16/2021 2:55 PM Reviewed By: A. Villanueva Case #21CV378991 Envelope: 6866930 21CV378991 Santa Clara - Civil A. Villanueva ._ 8\OOO\lO'\UI-lkbikx) ._ ._ .- N »-- U) .- 4> ,_. (II o-- or >-- \l -- % >- NO I\)O Ix) »-~ Ix) Ix! I0 Lo-3 I\) 43 ix) ll! Ix) O\ I\) \l I\) 00 the time to file a responsive pleading. The final date to file a responsive pleading was ultimately extended to June 14, 2021. At the time of my first offer, I explained that I believed that the Complaint could not withstand a demurrer, and I gave Plaintiffs attorneys several specific reasons with explanations, and indicated that the defects could not be cured by amendment due to the nature of the defects. While I expected a substantive response to my demurrer issues, Plaintiffs attorney declined to respond to the substance of the reasons for the demurrer, and only responded to the monetary aspects of settlement. 2. A number of settlement offers were then exchanged between counsel, and after ongoing discussions, the settlement negotiations broke down, and no settlement was reached. The last settlement offer from the Defendants expired on Thursday June 10, 2021 at 5:00 p.m. with no response from the Plaintiff. The final day to file a responsive pleading had been agreed to be the following Monday, June 14, 2021. On that day, I filed a Meet and Confer Declaration Re Demurrer for my clients which, pursuant to Code of Civ. Proc. §430.4l(a)(2) granted them an automatic 30-day extension of time within which to file a responsive pleading. 3. Two days later, at 4:30 p.m. on Wednesday, June 16, 2021, Plaintiff submitted a request to enter default, which was preceded by an email an hour and 5 minutes earlier. The email argued with the content of my §430.4l(a)(2) Meet and Confer Declaration, expressed their dissatisfaction with the final settlement offer made by my clients, and insisted that the §430.41(a)(2) Meet and Confer Declaration did not grant us an automatic extension of time to respond to the Complaint. Thus, the Plaintiff said in the email that they planned to file a Request to Enter Default forthwith. I did not see the email until after I received notification of the filing of the Request to Enter Default through the e-filing system, so there was no opportunity to discuss their proposed action with them before they submitted the papers to the Court. A true and correct copy of the DECLARATION OF DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. §l28.5 SANCTIONS I-[art V. Hart, et :11. Case No. 21CV378991 2 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Request To Enter Default is attached hereto as Exhibit “A.” A true and correct copy of the email that preceded the Request to Enter Default is attached hereto as Exhibit “B’ [with proposed settlement terms and prior email strings redacted.] 4. I am also attaching a true and correct copy of my Meet and Confer Declaration Re Demurrer to Verified Complaint, that was e-filed on June 14, 2021 as Exhibit “C” [with proof of e- service and service by mail attached,] and I incorporate the contents of that Declaration into this Declaration by this reference. 5. In compliance with Code of Civ. Proc. §l28.5(f)(1)(D), I am providing Plaintiff and his counsel with 21 days to withdraw the Request to Enter Default before filing this motion. If the Request to Enter Default is not withdrawn by the end of that time, I will file this motion. 6. Pursuant to Code of Civ. Proc. §l28.5, Defendants are requesting sanctions against the Plaintiff, his counsel Paymon Hifai, and the law firm representing him, Homer Law Group, PC in the amount of $11,325.20 for their conduct, which constitutes an action or tactic made in bad faith and which is frivolous and solely intended to cause unnecessary expense and delay. This is based on the legal fees and costs described below that have already, and will be incurred by them as a result of the conduct of Plaintiff and his counsel in the matters described in this motion. 7. I am an attorney at law, and have been licensed to practice law in all state courts in the State of California since 1979. I graduated from Santa Clara University, School of Law with a Juris Doctorate Degree in 1979 and from New York University School of Law with an LL.M. (Taxation) Degree in 1980. I am an experienced litigation attorney, having spent the vast majority of the last 40 years litigating civil and tax matters in various courts, and including supervising as many as 10 attorneys engaged in private civil and tax litigation. My regular hourly rate that I charge to clients is $565.00 per hour, and I am charging that rate to the Defendants in this case. In preparing this motion, DECLARATION OF DOUGLAS SCOTT MAYNARD RE CODE OF CIV. PROC. §128.5 SANCTIONS Hart v. Hart, et a]. 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N~O-©\O%\lO\‘J|-‘>9-)3‘) 2835333335 DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1 151 Minnesota Avenue San Jose, CA 95125 Telephone: (408) 293-8500 Facsimile: (408) 293-8507 Attorney for Defendants Michael Hart, Frances Hart, Tracy I-Iart-DeGregorio and Gail Han SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Plaintiff, Case No: 21CV378991 FREDERICK HART, JR MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Defendants, MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO a.nd GAIL HART MEET AND CONFER DECLARATION RE DEMURRER I am counsel for the Defendants in the above referenced matter. I declare that the following matters are true and correct and that I have personal knowledge of each of them. If called to testify with regard to the matters stated herein, I could and would do so competently. 1. I received the current operative pleading, a Verified Complaint, from the Defendants on April 8, 2021, shortly after they were served with it. Upon review of the Verified Complaint, I detennined that there are a number of deficiencies in the Verified Complaint that are susceptible to a MEET AND CONFER DECLARATION RE DEMURRER T0 VERIFIED COMPLAINT Hart v. Hart, et :1. Case No. 2lCV378991 1 Ix) LA) \OO0\lO\UI-§ 10 ll 12 14 16 17 19 20 21 22 23 24 25 26 27 28 demurrer, and I plan to demur if I am unable to obtain Plaintiff’ s counsel’s agreement to dismiss the single cause of action and/or amend the Amended Complaint to cure them. 2. I initially contacted counsel for the plaintiff, and gave him some general information concerning the defects in the complaint upon which I plan to demur. Thereupon, we engaged in settlement negotiations, which after a number of attempts, were eventually unfruitful. The last offer to settle expired at 5:00 pm last Thursday, June 10, 2021, with no response from the Plaintiff. In the course of those settlement negotiations, Pla.intifE‘s counsel granted extensions to respond to the Verified Complaint through today, Monday June 14, 2021. 3. Pursuant to Code of Civil Procedure §430.4l, I am required to provide the Plaintiff with legal support for the basis of the deficiencies which I already disclosed to the Plaintiff. However, we did not reach the point of discussing specific legal authorities since settlement discussions ensued. In addition, the Plaintiff is also required to provide legal support to me for his position that the pleading is legally sufficient, or in the alternative, how the complaint could be amended to cure any legal insufficiency. To date, I have received nothing to support Plaintiffs position, and I presume that this is primarily due to the attempts to settle the case. 4. Since the settlement discussions failed on Thursday at 5:00 pm, and our deadline to file the demurrer was the following Monday, there was not time to complete the meet and confer discussions. Moreover, due to other professional obligations and the complexity of the issues that will be presented on demurrer, I have not had sufiicient time available to delineate all of the specific legal authority for each of those deficiencies that will be the basis of the demurrer. Thus, I have not yet had time to prepare for the follow-up in-depth meet and confer with Plaintiffs’ counsel on the proposed demurrer, as required by Code of Civil Procedure §430.41(a)(1). MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et al. Case No. 21CV37B99l 2 .- --.-- ---O\O0O\lO\UI-#UJI\J N._-.-._«»--._..--.-.._- O\O00\IO\VI-§U’l\’ Is) .- IQ IQ Is) DJ Id -03 ts) LII IQ O\ I0 \I I0% 5. As a result, I am submitting this Declaration under Code of Civil Procedure §430.41(a)(2). Pursuant to said section, upon submission of this decimation, there is an automatic 30-day extension of time to file a responsive pleading, and the demurring party shall not be subject to default during the period of the extension. I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on June 14, 2021 at San Jose, California. ~ Dated: June 14, 2021 ~ Douglas Scott Maynard Attorney for Defendants MEET AND CONFER DECLARATION RE DEMURRER T0 VERIFIED COMPLAINT Hart v. Hart, et al. Case No. 21CV37899l 3 POS-O30 ATYORNEV oa w