DeclarationCal. Super. - 6th Dist.March 2, 2021U:-JADJIQ >-.-- |-'O\O0O\lO’\ N».-._-._-._..--.-.-.- ®\OOO\lO\UI->UJI\) IQ -- Ix) l\J I\) OJ I\) -5 I9 (II I\) O\ N \l l\) 00 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: 2lCV37899l FREDERICK HART, JR MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Defendants, MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and 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, 1 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 determined that there are a number of deficiencies in the Verified Complaint that are susceptible to a demurrer. Before the deadline to file a responsive pleading expired, I made extensive attempts to MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et al. Case No. 21CV378991 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/14/2021 3:58 PM Reviewed By: M. Sorum Case #21CV378991 Envelope: 6848340 21CV378991 Santa Clara - Civil M. Sorum ,_ 5\O0O\lO\LII-|>l.~)l\) _. ,_. r-I Ix) ,_ U) -- A -- (II -- Ox .- \I -- X >- \O Ix)O R\) -- I\)N l\) L») I\)A t\) LII I\) O\ I0 \l I\) O0 meet and confer with Plaintiff’ s counsel, as described below, and since Plaintiffs counsel refused to discuss any of those issues with me and has not agreed to dismiss the single cause of action and/or amend the Complaint to cure those defects, I am filing a Demurrer. 2. After doing some basic investigation about the case, I initially contacted counsel for the plaintiff, and I gave him some general information with the specific reasons that the complaint was defective and upon which I plarmed to demur. Thereupon, we engaged in settlement negotiations, which after a number of attempts, were eventually unfruitful. During those settlement discussions, Plaintiffs counsel explicitly told me that he “declined” to respond to any of the Demurrer issues I had raised. However, I continued to pursue the settlement talks to see if the matter could be resolved without litigation. The last offer to settle expired at 5:00 pm on Thursday, June 10, 2021, with no response from the Plaintiff. In the course of those settlement negotiations, Plaintiffs counsel had granted an extension to respond to the Verified Complaint through 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 that I had already disclosed to the Plaintiff, but he refused to discuss. However, we did not reach the point of discussing specific legal authorities before June 14, 2021 since settlement discussions ensued and Plaintiffs counsel had “declined” to discuss the substance of any of the issues. I had assumed that the reason Plaintiffs counsel “declined” to discuss the demurrer issues was that he did not want to spend time on them if the case was going to settle. I was wrong. Plaintiffs counsel had no intention of discussing any of those issues under any circumstances. I pointed out to Plaintiffs counsel that it is not just my obligation to meet and confer over demurrer issues. I reminded him that he 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 MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et :1]. Case No. 21CV37899l 2 LII-I>UJI\) \OOO\lO\ 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amended to cure any legal insufficiency. He did not do so. To date, I have received no response whatsoever to any of my attempts to meet and confer and I have received nothing to support Plaintiffs position. Although I originally presumed that this was primarily due to the attempts to settle the case, it now appears that the lack of communication was intentional and that he had no intention of ever meeting and conferring. 4. Since the settlement discussions failed on Thursday June 10, 2021 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 did not have sufficient time available to delineate all of the specific legal authority for each of those deficiencies that are the basis of the demurrer. Thus, I had 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 §430.4l(a)(l). 5. As a result, I submitted a Declaration under Code of Civil Procedure §430.41(a)(2) on June 14, 2021. Pursuant to said section, upon submission of that declaration, there was an automatic 30-day extension of time to file a responsive pleading. Based on that original declaration, the Defendants were not subject to any entry of default during the period of the extension. 6. In the meantime, despite the law providing for an automatic extension of time to file the demurrer as provided by Code of Civil Procedure §430.41, Plaintiffs counsel was apparently angered by the failure of the settlement discussions, and he submitted a retaliatory Request for Entry of Default to the Clerk’s Office through the E-filing system. At the time he did that, he knew that I had timely filed a Meet and Confer Declaration that automatically gave my clients an additional 30 days to meet and confer and to file their Demurrer, because he was e-served with it. Filing the Request for Entry of Default was an intentional strategy by Plaintiffs counsel to create fear and put MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et 211. Case No. 2lCV37899l 3 \OOO\lO'\UI-Jk 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 settlement pressure on the Defendants, and Plaintiffs counsel knows that his position in that regard is frivolous and that it constitutes a bad faith litigation tactic. 7. Thereafter, I sent 2 more meet and confer letters to Plaintiffs counsel and in each one I asked that he consider the legal points I was making and that he contact me to discuss them. These letters were dated June 30, 2021 and July 9, 2021. I received no response whatsoever to either of those meet and confer letters, even though I provided extensive detail about my position and provided extensive legal authorities, to the same level of detail that I am using in the Demurrer itself. 8. Since I received no response to either letter, I called Plaintiffs counsel Paymon Hifai in the afternoon on July 9, 2021. He took the call but refused to discuss any of the issues I planned to bring up in the demurrer and he talked over me every time I tried to discuss even the first issue on the list. He insisted that since I did not have “good enough excuses” in my Code of Civil Procedure §430.4l Meet and Confer Declaration, that the Declaration was invalid, that I was not entitled to the automatic extension provided in that section, that I was late and past the deadline to file a responsive pleading and that he had properly taken my clients’ default. He repeatedly told me that he had filed his Request to Enter Default knowing that the meet and confer declaration had been filed, that I was late and had “blown the deadline.” He went on to say that if the clerk refused to honor his Request to Enter Default, that he would file a motion to strike my Demurrer. He went on to say that he was not going to discuss any of the demurrer issues unless I engaged him in his tirade about the supposed inadequacy of the Meet and Confer Declaration to automatically extend the time to file a Demurrer. He also threatened to ask for $7,500 in sanctions if I did not concede to his demands. Eventually, after threatening to hang up on me, he eventually did hang up on me in the middle of the conversation, slamming down the phone without having ever responded to any of the demurrer issues that were the reason for my call and that I raised in my meet and confer letters. MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart V. Hart, et al. Case No. 21CV37899l 4 .--.-.-.-->--»- >- \lO\U1-J>laJI\) O\OOO\lO'\ 20 22 24 25 26 27 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: July 14, 2021 ouglas Scott Maymard Y Attorney for Defendants MEET AND CONFER DECLARATION RE DEMURRER TO VERIFIED COMPLAINT Hart v. Hart, et 21!. Case No. 2lCV37899l 5
