Request Judicial NoticeCal. Super. - 6th Dist.June 21, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV384545 Santa Clara - Civil Electronically Filed Tyler M. Paetkau (Bar No. 146305) by Superior Court of CA, Olga Savage (Bar No. 252009) county of Santa Clara, PROCOPIO, CORY, HARGREAVES & SAVITCH LLP on 10/29/2021 7:09 PM 1117 S. California Ave., Suite 200 Reviewed By: J_ Ngo Palo Alto, CA 94304 Case #21 CV384545 Telephone: (650) 645-9027 Envelope: 7571076 Facsimile: (650) 687-8323 Email: tyler.paetkau@procopio.com Attorneys for Defendants JOHN M. SAICH and NICHOLE L. SAICH SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION STEPHEN W. GETTEL, CASE NO.: 21CV384545 Plaintiff, REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ vs. MOTION FOR ORDER TO SHOW CAUSE JOHN M. SAICH, Trustee of John M. Saich Declaration 0f Trust dated August 2, 2004, Date: NICHOLE L. SAICH, Trustee ofNichole L. Time: Saich Declaration of trust dated September 28, Dept: 20 2012, DOES 1 through 100, Defendants. Judge: Hon. Socrates P. Manoukian J. Ngo Case NO.: 2 1CV3 84545 REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR OSC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendants John M. Saich and Nichole L. Saich, pursuant t0 California Evidence Code sections 451 through 453, inclusive, request that the Court take judicial notice of the following matters, facts and documents in connection With their Motion for Order t0 Show Cause: 1. February 24, 2021 Order after Hearing Granting Default Judgment in Favor 0f Plaintiffs and Against Defendant in Saich v. Gettel, Case No. 17CV3 14350 (“Gettel I”) and final Judgment, true and correct copies 0f Which are attached as Exhibit 1. 2. July 20, 2021 Order Denying Gettel’s Motion for Clarification of Judgment in Gettel I, a true and correct copy 0fWhich is attached as Exhibit 2. 3. June 5, 2018 Ex Parte Application by Gettel to Remove Motion to Quash from Calendar in Gettel I, a true and correct copy of which is attached as Exhibit 3. 4. September 17, 2019 Order Granting Tyler Paetkau’s Motion t0 Strike in Gettel v. Paetkau, Santa Cruz Superior Court Case N0. 18CV02355 (“Gettel II”), a true and correct copy 0fwhich is attached as Exhibit 4. 5. September 17, 2019 Order Granting Mr. Saich and Ms. Saich’s Motion in Strike in Gettel v. Saich, Santa Cruz Superior Court Case N0. 18CV02356 (“Gettel 111”), a true and correct copy 0fwhich is attached as Exhibit 5. 6. April 7, 2021 Order Sustaining Defendants Demurrer Without Leave to Amend in Gettel v. Saich, Santa Cruz Superior Court Case N0. 20CV00337 (“Gettel IV”), a true and correct copy 0fwhich is attached as Exhibit 6. 7. August 11, 2017 Complaint in Gettel I, a true and correct copy 0f Which is attached as Exhibit 7. 8. January 4, 2021 Reporter’s Transcript of Default Prove-Up Hearing in Gettel I, a true and correct copy of Which is attached as Exhibit 8. 9. October 6, 2020 Judgment in Gettel III, a true and correct copy 0f Which is attached as Exhibit 9. 1 Case No.: 21CV3 84545 REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR OSC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. October 6, 2020 Judgment in Gettel II, a true and correct copy of which is attached as Exhibit 10. 11. March 23, 2021 Tentative Ruling and March 24, 2021 Minute Order Adopting Tentative Ruling Sustaining Demurrer in Gettel IV, a true and correct copy of Which is attached as Exhibit 11. 12. September 17, 2020 First Amended Complaint in Gettel IV (with exhibits removed), a true and correct copy of which is attached as Exhibit 12. 13. November 13, 2019 Default in Gettel I, a true and correct copy 0f Which is attached as Exhibit 13. 14. September 1, 2020 Order Denying Gettel’s Motion t0 Set Aside Default in Gettel I, a true and correct copy 0f Which is attached as Exhibit 14. 15. March 12, 2021 Declaration 0f Stephen Gettel Re: Guns in Gettel I, a true and correct copy 0fWhich is attached as Exhibit 15. 16. March 12, 2021 Declaration of Stephen Gettel Re: Social Security Card in Gettel I, a true and correct copy of which is attached as Exhibit 16. 17. March 18, 2021 Declaration of Stephen Gettel Re: Personal Property and Documents in Gettel I, a true and correct copy 0f Which is attached as Exhibit 17. 18. April 7, 2021 Judgment 0f Dismissal in Gettel IV, a true and correct copy 0fWhich is attached as Exhibit 18. 19. June 11, 2021 Order Denying Gettel’s Motion for Reconsideration in Gettel IV, a true and correct copy of which is attached as Exhibit 19. 20. March 1, 2021 Notice of Entry of Order Granting Request for Default Judgment and Proof 0f Service 0f Notice 0f Entry in Gettel I, a true and correct copy 0f Which is attached as Exhibit 20. 21. October 18, 2021 Order re: Motion t0 Set Aside the Default Court Judgment 0f February 24, 2021 in Gettel I, a true and correct copy 0f which is attached as Exhibit 2 1. 2 Case No.: 21CV3 84545 REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR OSC \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. August 6, 2021 Complaint for Damages filed in Stephen Gettel v. Kathleen Wells, Santa Cruz Superior Court Case No. 21CV01912, a true and correct copy of which is attached as Exhibit 22. The above documents are properly the subject of judicial notice pursuant to Evidence Code section 452(d) because they are records of the courts of the State of California. The documents are relevant to Mr. Saich and Ms. Saich’s motion because they demonstrate that Gettel and his counsel, Mark Steven Corrinet (California State Bar No. 190471), intentionally violated the Court’s final Judgment in Gettel I by failing and refusing to return Mr. Saich and Ms. Saich’s personal, real estate and financial documents, and by attaching the documents to his new Complaint in this action, and that the Santa Cruz Superior Court’s Order in Gettel IV dismissing Gettel’s identical claims on the grounds that Gettel relinquished his right to pursue those claims by failing to allege them in compulsory cross-complaint in Gettel I bars Gettel’s Complaint in this action. Dated: October 29, 2021 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP Olga Savage (Bar N0. 252009) Attorneys for Defendants JOHN M. SAICH and NICHOLE L. SAICH 3 Case No.: 21CV3 84545 REQUEST FOR JUDICIAL NOTICE ISO MOTION FOR OSC EXHIBIT 1 EFS-020 AfiORNEV 0R PARTY WITHOUT ATTORNEY: STATE BAR NO: 146305 FOR COURTUSEONLY NAME: Tyler M. Paetkau FIRM NAME. PROCOPIO, CORY, HARGREAVES 8. SAVITCH LLP 0" 2,2120% 4-58 PM STREET ADDRESS: 1117 S. California Ave.. Suite 200 - . - ' CW Palo Alto STATE, CA ZIPCODE: 94304 Rewewed By. TunISIa Turner TELEPHONE N0: 650-645-9027 FAX No‘: E-MAIL ADDRESS: tyler.paetkau@procopio.com Envempe' 5764797 ATrORNEY FOR (name): Plaintiffs John M. Saich and Nichole L. Saich SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara STREEr ADDRESS: 191 N, First St, MAILING ADDRESS: CITYAND ZIP CODE: San Jose‘, CA 951 13 BRANCH NAME: Downtown Superior Court CASE NUMBER.» PLAINTIFHPETITDNER: John M. Saich and Nichole L. Saich 17CV31435° DEFENDANTIRESPONDENT: Stephen W. Gettel as lndiv. & dba Gettel & Associates JUDICIAL omega: _ Hon. Beth McGowan OTHER. DEPT: PROPOSED ORDER [COVER SHEET] 22 NOTE: This cover sheet is to be used to electronically file and submit to lhe court a proposed order. The proposed order sent electronicaily to the court mus£ be in PDF format and must be attached to this cover sheet. In addition, a version of the proposed order in an editable word-processing format must be sent to the court at the same time as this cover sheet and the attached proposed order in PDF iorma! are filed. 1. Name of the patty submitting the proposed order: Plaintiffs John M4 Saich and Nichole L. Saich 2. Title of the proposed order: [Proposed] Order After Hearing Granting Default Judgment in Favor of Plaintiffs and Against Defendant. 3. The proceeding to which the proposed order relates is: a. Description of proceeding: Request for Default Judgment Hearing b. Date and time: January 4, 2021 at 1:30 p.m. c. Place: Santa Clara Superior Court, 191 N 1st St., San Jose, CA 951 13. Dept. 22 4. The proposed order was served on the other parties in the case. Yveline Coulond } 3:1": *_, (TYPE 0R pRINT NAME) (SIGNATURE 0F pm-nr 0R A?TBRHE‘U w » P3991 DI 2 Form Mapled for Mandatmy Use pROPOSED ORDER (cOVER SHEET) Cal. Rules or Com.Judiaalcomcalmcaaomia I _ _ rules 225231312 EFSaoszev. Febmary1,2017] (Electronic Flllng) m.wuns.ca.gov EFS-020 CASE NAME: CASE NUMBER: Saich v. Gettel 170V314350 PROOF OF ELECTRONIC SERVICE PROPOSED ORDER 1. | am at least 18 years old and not a party to this action. a- My residence or business address is (specify): 1117 S. California Ave., Suite 200. Palo Alla, CA 94304 b. My electronic service address is (specify): yveline.coulond@procopio.com 2, | electronicalty served the Proposed Order (Cover Sheet) with a proposed order in PDF format attached. and a proposed order in an editable word-processing format as follows: a. 0n (name ofperson served) (If the person served is an attorney, the party or panfes represented should also be stated): Recipients designated on the on the Santa Clara County Superior Court's website for Department 22. b. To (electronic service address ofperson served): department22@scscourt.org c. 0n (date): February 2, 2021 E Electronic service of the Proposed Order (Cover Sheer) with the attached proposed order in PDF format and service of the proposed order in an editable word-processing format on additional persons are described in an attachment. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: February 2, 2021 Yveline Coulond ’ r ‘ __ A (TYPE OR PRINT NAME 0F DECLARANT) (SIGNATURE OF DECLARAm-ji EFW“ IRE“ Fem”! 1r 2°17! PROPOSED ORDER (COVER SHEET) "9' z °' 2 (Electronic Filing) KOOONO‘NUILUJNr-t NNNNNNNNNh-Hr-Ar-kr-Ah-Hr-Ah-H OONONMLWNHOKOOONONMLWNF-‘O Tyler M. Paetkau (Bar No. 146305) Olga Savage (Bar No. 252009) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 1117 S. California Ave., Suite 200 Palo Alto, CA 94304 Telephone: (650) 645-9027 Facsimile: (650) 687-8323 Email: tyler.paetkau@procopio.com Attorneys for Plaintiffs Filed February 24, 2021 Clerk of the Court Superior Court of CA County of Santa Clara JOHN M. SAICH and NICHOLE L. SAICH 17CV31 4350 By: svera SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN M. SAICH and NICHOLE L. SAICH, CASE NO.: 17CV314350 Plaintiffs, VS. 421102031311] ORDER AFTER HEARING GRANTING DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST STEPHEN W. GETTEL, individually and doing DEFENDANT business as GETTEL & ASSOCIATES, and DOES 1 through 25, inclusive, Defendants. Date: January 4, 2021 Time: 1:30 pm. Dept: 22 Judge: Hon. Beth A. R. McGowen Case NO.: 17CV3 14350 [PROPOSED] ORDER AFTER HEARING GRANTING DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT STEPHEN W. GETTEL KOOONO‘NUILUJNr-t NNNNNNNNNh-Hr-Ar-kr-Ah-Hr-Ah-H OONONMLWNHOKOOONONMLWNF-‘O On January 4, 2020, Plaintiffs JOHN M. SAICH and NICHOLE L. SAICH’S application for entry 0f a default judgment against Defendant STEPHEN W. GETTEL dba Gettel & Associates (“Defendant”) and came 0n regularly for hearing. The Court, having reviewed and considered the moving papers, the declarations and sworn hearing testimony by Mr. Saich and Ms. Saich, and having heard oral argument, and GOOD CAUSE APPEARING, IT IS HEREBY ORDERED: 1. The Court has entered Defendant’s default on Plaintiffs John and Nichole Saich’s causes of action for 1) Breach 0f Oral Contracts; 2) Fraud; 3) Breach of Fiduciary Duty; 4) Violation of Elder Abuse and Dependent Adult Civil Protection Act (Cal. Welf. & Inst. Code § 15610.30); 5) Conversion; 6) Breach of the Implied Covenant of Good Faith and Fair Dealing; 7) Unfair Business Practices (Cal. Bus. & Prof. Code § 17200); 8) Unjust Enrichment; 9) An Accounting; 10) Common Count; and 11) Injunctive Relief. 2. On June 4, 2020, the U.S. Trustee filed a motion to dismiss Defendant’s bankruptcy case for cause pursuant to 11 U.S.C. section 109(h)(1) due t0 Defendant’s failure t0 obtain pre-petition credit counseling, failure to provide itemized disclosures and tax returns, and other identified defects in Defendant’s petition. On July 16, 2020, The Honorable M. Elaine Hammond, Judge 0f the U.S. Bankruptcy Court for the Northern District of California, granted the U.S. Trustee’s motion to dismiss Defendant’s bankruptcy case. 3. Defendant then filed a motion t0 set aside the default against him, which the Court (Hon. Sunil Kulkarni) denied 0n September 1, 2020. Defendant then filed a writ petition with the Sixth District Court of Appeal challenging the Court’s order, which the Court of Appeal denied 0n December 22, 2020. 4. Mr. Saich and Ms. Saich describe and calculate their losses and damages in some detail in their sworn declarations, including inter alia a permanent injunction and writ of possession requiring Defendant t0 return Plaintiff John M. Saich’s two guns, his original social security card, and all of his financial, real estate or personal documents in Defendant’s possession, custody or control, and t0 certify that he has destroyed any means of providing signatures including electronic signatures on Plaintiffs’ behalf in his possession, custody or 1 Case No.: 17CV3 14350 [PROPOSED] ORDER AFTER HEARING GRANTING DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT STEPHEN W. GETTEL KOOONO‘NUILUJNr-t NNNNNNNNNh-Hr-Ar-kr-Ah-Hr-Ah-H OONONMLWNHOKOOONONMLWNF-‘O control. (John M. Saich Decl., fill, 44 & 45 & EXS. 1-4; Complaint, 1113; see also Nichole Saich Decl., W1-23.) 5. The Court finds that the California Elder Abuse Act applies here t0 Mr. Saich. Section 15657.5 reads, in relevant part, “(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to all other remedies otherwise provided by law, the court shall award t0 the plaintiff reasonable attorney’s fees and costs.” Under the statute, “Financial abuse” 0f an elder 0r dependent adult occurs when “a person or entity does any of the following” (subdivision (a)): (1) Takes, secretes, appropriates, obtains, 0r retains real 0r personal property of an elder or dependent adult for a wrongful use 0r with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real 0r personal property of an elder 0r dependent adult for a wrongful use 0r With intent t0 defraud, 0r both. (3) Takes, secretes, appropriates, obtains, or retains, 0r assists in taking, secreting, appropriating, obtaining, or retaining, real 0r personal property of an elder 0r dependent adult by undue influence, as defined in Section 15610.70. (b) A person 0r entity shall be deemed to have taken, secreted, appropriated, obtained, 0r retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person 0r entity knew or should have known that this conduct is likely t0 be harmfiJI to the elder 0r dependent adult. (c) For purposes 0f this section, a person 0r entity takes, secretes, appropriates, obtains, 0r retains real 0r personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless 0f whether the property is held directly or by a representative 0f an elder 0r dependent adult. (Amended by Stats. 2013, Ch. 668, Sec. 2. (AB 140) Effective January 1, 2014.) 6. The Court also makes the following additional findings of fact and conclusions 0f law: 2 Case No.: 17CV3 14350 [PROPOSED] ORDER AFTER HEARING GRANTING DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT STEPHEN W. GETTEL KOOONO‘NUILUJNr-t NNNNNNNNNh-Hr-Ar-kr-Ah-Hr-Ah-H OONONMLWNHOKOOONONMLWNF-‘O a. The Court’s minute order Will reflect a brief history 0f the case. Plaintiffs filed this action in August 2017. b. By the time that the case was filed, Plaintiff John Saich had already achieved the age of 65 0r older, and therefore qualifies for protection under the Elder Abuse Act, Cal. Welfare & Institutions Code §§ 15657.5 et seq. c. The Court, through Judge James Stoelker, in January 0f 2019 issued an order directing the Clerk’s office to complete the entry 0f Defendant’s default. Default by the Clerk was in fact entered, and in September 2020, Judge Sunil Kulkarni further ordered that Defendant’s motion t0 set aside the default be denied. This Court specifically references and incorporates by reference Judge Stoelker’s directive on January 25, 2019 ordering the entry of Defendant’s default and Judge Kulkarni’s order 0n September 1, 2020 denying Defendant’s motion t0 set aside his default. d. Given then that this is a prove-up hearing and relying on those prior Court Orders, Plaintiffs’ request for default judgment is GRANTED. e. The demand 0f the Complaint and Mr. Saich’s Declaration in Support 0f Entry 0f Defendant’s Default (see id. at W11, 44 & 45 & EXS. 1-4), $285,000, is awarded jointly to both Plaintiffs Nichole Saich and John Saich. f. Plaintiffs’ requests for emotional distress damages and punitive damages are denied, as this is a default prove-up hearing. g. The Court awards Plaintiffs pre-judgment interest on the stated amount in the Complaint of $285,000, 0r $98,305.48 until January 21, 2021. h. The Court also awards costs, although the Court modifies the requested costs t0 reduce the costs of Plaintiffs’ private investigator, so that costs are awarded in the amount 0f $5,899.22. i. The Court also awards attorney’s fees under the Elder Abuse Statute as set forth in the declaration 0f Tyler M. Paetkau and Exhibit 1 in the amount 0f $142,236.17, Which includes fees until the date 0f the hearing, January 4, 2021. 3 Case No.: 17CV3 14350 [PROPOSED] ORDER AFTER HEARING GRANTING DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT STEPHEN W. GETTEL OWNO\UIAUJN- NNNNNNNNNH-HH----_-n mqamhLaJhlflcomflO‘M-hWN-o j. The Court also orders Defendant to immediately return all of Plaintiffs’ personal property in his possession, custody or control (including any documents and all copies in the possession, custody or control of Defendant’s attorneys), including the two identified firearms and any additional documents, financial or rcal estate, in Defendant’s possession, custody or control. 1n lieu of the above provision of all property and documents to Plaintiffs, Defendant may submit a declaration under penalty of peljury that those documents have been permanently destroyed. 7. The Coufl will enter final Judgment in this action in favor of Plaintiffs John M. Saich and Nichole L. Saich and against Defendant Stephen W. Gettel dba Gettel & Associates in accordance with this Order following the January 4, 2021 default prove-up hearing, and retain jurisdiction over this action for enforcement purposes. IT IS SO ORDERED. 5322??( Dated: February 1_6, 2021 Hon. Beth A. R. McGowen Judge ofthe Superior Court 4 Case No.: 17CV314350 [PROPOSED] ORDER AFTER HEARING GRANTING DEFAULT JUDGMENT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT STEPHEN W. GETTEL KOOONO‘NUILUJNr-t NNNNNNNNNh-Hr-Ar-kr-Ah-Hr-Ah-H OONONMLWNHOKOOONONMLWNF-‘O on 2/2/2021 4:58 PM Reviewed By: Tunisia Turnénve'opm 5764797 Tyler M. Paetkau (Bar No. 146305) Olga Savage (Bar No. 252009) vs. STEPHEN W. GETTEL, individually and doing business as GETTEL & ASSOCIATES, and DOES 1 through 25, inclusive, Defendants. PROCOPIO, CORY, HARGREAVES & SAVITCH LLP 1117 S. California Ave., Suite 200 Palo Alto, CA 94304 Filed Telephone: (650) 645-9027 February 24, 2021 Facsimile: (650) 687-8323 Clerk of the Court Email: tyler.paetkau@procopio.com Superior Court of CA County of Santa Clara Attorneys for Plaintiffs 17cv31 4350 JOHN M. SAICH and NICHOLE L. SAICH By: svera SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN M. SAICH and NICHOLE L. SAICH, CASE NO.: 17CV314350 Plaintiffs, WJUDGMENT Case NO.: 17CV3 14350 [PROPOSED] JUDGMENT OWNO\UIAUJN- NNNNNNNNNH-HH----_-n On January 4, 2021, the Court entered a minute order granting Plaintiffs John M. Saich and Nichole L. Saich’s Request for Default Judgment. The Court also awarded Plaintiffs the demand in their Complaint and Mr. Saich’s supporting declaration in the amount of $285,000, with prc-judgment interest of $98,305.48, and granted Defendants’ attorney’s fees and costs in the amounts of $142,236. l7 and $5,899.22, respectively. Pursuant to the Court’s Orders, IT IS HEREBY ORDERED, ADIUDGED, AND DECREED that: 1. Judgment is entered in favor of Plaintiffs John M. Saich and Nichole L. Saich jointly on their Complaint against Defendant Stephen W. Gettel dba Gettel & Associates. 2. Judgment is entered in favor of Plaintiffs John M. Saich and Nichole L. Saich jointly against Defendant Stephen W. Gettel dba Gettel & Associates in the amount of $531,440.87. 3. The Court orders Defendant to immediame return all of Plaintiffs’ persona] property in his possession, custody or control (including any documents and all copies in the possession, custody or control of Defendant’s attorneys), including the two identified firearms and any additional documents, financial or real estate, in Defendant’s possession, custody or control. In lieu of that, Defendant may submit a declaration under penalty of perjury that those documents have been permanently destroyed. 4. The Court shall retain jurisdiction over this action for enforcement lT lS SO ORDERED. WWDated: February 13, 2021 The Honorable Beth A. R. McGowen Judge of the Superior Court purposes. 1 Case No.: 17CV3 14350 [PROPOSED] JUDGMENT EXHIBIT 2 ew‘dalflfiuNH Hl-I 5H0 l4 15 16 17 l8 l9 20 21 22 23 24 25 26 27 23 JOHN SAICH et a1, VS. STEPHEN GETTEL, FILED JUL 2 0 202] fin!" SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA Case No. 17cv3 1 4350 Pumas, ORDER RE: MOTION FOR CLARLFICATION 0F JUDGMENT rder Issuad fie!o itted a Defendant on aubrn \\\\ \\\\ This matter was before the Court on July 13, 2021 for a motion by Defendant Stephen Gene} seeking “clarification, guidance and instructions" fi'om the Court regarding the Default Judgment entered in this action against him by the Hon. Beth McGowan. The Court posted its tentative ruling pursuant to California Rule ofCourt 3.1308 on July l2, 2021. The tentative ruling was contested by Defendant and oral argument was requested. Both parties appeared OD July 13, 2021 and argued the matter further. Having considered the further arguments 0f counsel, the Court issues its final ruling as follows: Case No. I?CV3 14350 Order Re: Motion for Guidance and Clarification t0 'A 5- b) 20 21 22 23 24 25 26 27 28 BACKGROUND Before the Court is the Motion Stephen W. Gettel (Defendant) seeking “clarification, guidance and instructions“ from the Court regarding the Default Judgment entered against him in this action by the Hon. Beth McGowan on February 24, 2021. DISCUSSION Although Defendant’s motion is couched in language seeking “guidance, clarification and insuuctions" “hat Defendant really wants is an order reviewing and modifying Judge McGowan's judgment. In a very real sense, Defendant asks this court to overrule Judge r McGoxmn by narrowing the scope of the orders she made in the judgment. Not surprisingly, Defendant cits no law that would support this proposition. Indeed, the law is to the contrary. “[T]he general rule is that one superior courtjudge may not overrule another. If the rule were otherwise, it would be only a matter ofdays until we would have a rule ofman rather than a rule of law. To afi'um the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, defendants would try another and anotherjudge until finally they found one “ho would grant what they were seeking. Such a procedure would instantly breed ‘lack ofconfidence in the integity of the courts.” (People v. Garcia (2006) 147 Cal.App.4th 913, 91 6-917; People v. Woodward (l 982) 131 Ca1.App.3d 107, 111: “"Whatever the merits of that axgumcm. Judge ShaIford’s actions were past history at the time the defendant appeared before Judge Alston for trial. The Superior Court ofLos Angelcs County, though comprised ofa \numbcr ofjudgcs, is a single court and one member of that court cannot sit in review on the actions ofanother member of that same court”) The Court is unable to grant the requested relief because it is neither supported by the law or the facts before the Court. Defendant’s motion is DENIE Dated: _7 / /}/ 7[j Hon. istop‘w Judge of the S ‘ ' ourt Case No. I7CV314350 ()rdcr Kc: Motion for Guidance and Clarification SUPERlOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE I9l Noam Fmer-merr SAN Jose. CALIFORNIA 951 13 CIVIL DIVISION Tyler Mark Paetkau Pmcomo Cory Hargreaves a Savltch LLP 1117 S California Ave Ste 200 Palo Alto CA 94304 RE: John Saich vs Stephen Gottel Case Number. 1TCV314350 PROOF OF SERVICE ORDER RE: MOTION FOR CLARIFICATION OF JUDGMENT was delivered to the parties listed below the above entifled case as set forth in the sworn declaration below. If you. a pony teptesemed by you. or a witness to be called on behaIf of that party need an accommodation mder the American wim Disabilities Ad, ptease oontad Me Court Administrators afliee at (408) 882-2700, or use the Court's TDO fine (408) 882-2690 or tho VoieelTDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MNL: l dedam that I served this notice by endoslng a We copy h a sealed envelope. addms” b each person Mose name is shown below. and by depositing the envelope with postage fully prepaid. In the United Slates Mail at San Jose, CA on July 20. 2021. CLERK OF THE COURT. by Ricmue Belligan. Deputy. cc: Mam Steven Corrine: 2210 NW Bayshore Loop Waldport OR 97394 cw-ooz7 REV moms PROOF OF SERVICE EXHIBIT 3 OWQOM¥wN-' NNNNNNNN-fl-‘I------- Q¢M$WN-OOWQQM#WN~O J O KATHLEEN E. WELLS (SBN 107051) JUN 3393 Maplethorpe Lane " 5 2018 Soquel, CA 95073 hmWmTelephone: (83 1 ) 475-1243 . 0mm M‘ Email: lioness a omet RWAttorney for Specially Appearing Defendant Stephen W. Gettel SUPERIOR COURT FOR SANTA CLARA COUNTY SAN JOSE BRANCH JOHN M. SAICH and ) No. I7CV3I4350 NICHOLE L. SAICH, ) ) Plaintiffs, ) ) EX PARTE APPLICATION TO vs, ) REMOVE MOTION TO QUASH ) FROM CALENDAR STEPHEN W. GE'ITEL, ) ) Defendant. ) Ex Parte Hearing: ) Tuesday, June 6, 201 8 9:00 a.m. Dept. l3 (Judge James L. Stoelker) Specially appearing Defendant STEPHEN W. GETTEL (GETTEL) hereby makes an ex pane application to remove his motion to quash service fiom the June 12, 201 8 law and motion calendar in Department l3 ofthe above-referenced court. Said application is made on the gound that GETTEL requires discovery in the form ofan oral deposition of the alleged process server prior to the evidentiary motion presently scheduled for June 12, 201 8, coupled with the fact that Plaintiffs have obstructed and delayed said discovery. Said application is based on this application notice, the Declaration ofCounsel filed herewith, the Satch v. Getter. Case No. l7CV3l4360 Bx Pm: Application lo Remove Motion lo Quuh fiomCalm .1- WOOQQMAUJN- NNNNNN -- n----- -- Sguth-OGmSoMAGSZO JO memorandum ofPoints & Authorities ofDefendant filed herewith, and the Declaration of Counsel of Specially Appearing Gettel Re Notice ofEx Parte Hearing, filed herewith. June 4, 2018 E. Wells, A omcy for Steph W. Gene}, Specially Appearing Defendant Salch v. Getter. Cue No. l7CV3 [4360 ExPm Appficm'on toRmove Motion to Quash fioln Cindi .2. OOOQGthN-n NNNNNNNN ----- - qomawNo-oquaGZSS-S JO KATHLEEN E. WELLS (SBN 10705 l) 3393 Maplethoxpe Lane Soquel, CA 95073 Telephone: (83 I) 475-1243 Email: lioness ot.net Attorney for Specially Appearing Defendant Stephen W. Gettel SUPERIOR COURT FOR SANTA CLARA COUNTY SAN JOSE BRANCH JOHN M. SAICH and ) N0. I7CV314360 NICHOLE L. SAICH, ) ) Plaintim, ) DECLARATION 0F COUNSEL FOR ) SPECIALLY APPEARING DEFENDANT vs, ) GE'I‘TEL 1N SUPPORT OF MOTION ) TO WITHDRAW HEARING DATE STEPHEN W. GETTEL, ) ON HIS MOTION TO QUASH ) Defendant. ) ) I, KATHLEEN E. WELLS, declare: 1. I am a licensed attorney and an active member in good standing with the California State Bar and authorized to practice in all courts in the state. 2. Attached as Exhibit A is a true and accurate copy ofa letter I attached to an email and mailed by U.S. mail to counsel for plaintifi‘s Tyler Paetkau on April 23, 20] 8. In said letter, I infomed Mr. Paetkau that it was my intention to depose Mr. Dellepere, the individual who allegedly served Mr. Gette] and who submitted a declaration under oath stating so. I further informed Mr. Paetkau that the intended time for the deposition was sometime in the week of April 30 and asked him to respond with what dates he was available to attend. 3. Attached hereto as Exhibit B is a true and accurate copy ofa letter fiom Tyler Paetkau to the undersimed purportedly in response to my April 23 letter. In said DechmionMW E. Wells(wing specially) .1. SRMAWNflowwNOUI#WN-io JD ©WN¢M$WNH letter, Mr. Paetkau does not respond to my request for available dates, but instead, lists all ofthe reasons why he believes that Mr. Gettel has been served. . Attached hereto as Exhibit C is a true and accurate copy ofmy letter to Mr. Paetkau dated May 9 in which I inform him that afler researching the issue of conducting a deposition of the process server, I discovered that it was required that I obtain a court order to do so in order to retain Mr. Gettel’s status as a specially- appearing defendant. I attached to the letter a drafi of our proposed discovery motion and infomed him that we would be contacting the calendar clerk and his office to coordinate an agreeable date for the hearing. . Attached hereto as Exhibit D is a true and accurate copy of the body ofan email I sent to Mr. Paetkau on May 18, 201 8, wherein I informed him ofthe available dates I had obtained fi‘om the calendar clerk for the hearing on Mr. Gettel’s discovery motion and asking him to respond as t_o which date or data would be convenient for him. I also inquired ifhe was willing to stipulate to taking the June 12 hearing on the motion to quash ofl'calendar in order to avoid the necessity of having to file an ex pane motion and attend the hearing on the motion. . Attached hereto as Exhibit E is a flue and accurate copy ofmy letter to Mr. Paetkau’s dated May 23. Not having heard fiom Mr. Paetkau regarding my May 18 request for available hearing dates and my inquiry as to whether or not he was willing stipulate to taking the June 12 hearing ofi‘calendar, I send the May 23 letter again asking for available data for the discovery motion and again asking if he would be willing to stipulate to taking the scheduled hearing date ofl' calendar. I also attached to the letter a revised drafi of the points and authorities in support of the motion for discovery. . Attached hereto as Exhibit F 1's a true and accurate copy ofMr. Paetkaus’s May 25 letter to me in which he refers to my May 23 letter mponding that his clients opposed any sort ofdiscovery by Mr. Gettel and also opposed delaying the June 12 hearing date. Declaration of Kathleen E. Wdls (min; specially) OWNQthNH NNNNNNNNh-n-In-u-H-HH-m QaMhWNflocmqothNflo J9 8. On June l, 2018, I received by electronic submission, the defendants’ opposition to Mr. Gettel’s motion to quash scheduled for June 12. I declare under penalty of perjury under the laws ofthe smte ofCalifomia, that the foregoing is true ofmy own personal knowledge and ifcalled upon to testify, Iwould and could honestly testify thereto. Signed this 4th day ofJune, 201 8, at Soquel, California. KATHfgfiv E. WELLS 3 Declaration ofKnhlem E. Wells(min; spedally) i ¥- EXHIBIT A KATHLEEN E. WELLS ATTORNEYAT LAW (CSB # 107051) 3393 Maplethorpe Lane Soquel, California 95073 Telephone: 831-475-1243 Cell Phone: 831-461-5073 Email: lioness@got.net SENT BY EMAIL AND U.S. MAIL April 23, 2018 Tyler M. Paetkau Procopio, Cory, Hargreaves & Savitch LLP 1117 S. California Ava, Suite 200 Palo Alto CA 94304 Re: Saich v Gettel - Santa Clara County Superior Court No. 17CV3 14360 Dear Mr. Paetkau, As a courtesy and to avoid unnecessary time and effort, I am writing to inform you that it is my intention to schedule the deposition ofthe process server in this case, Mr. Dellepere, in the week ofApril 30 to May 4. Assuming that you, as the Saich’s attorney, wish to attend the deposition, it would be appreciated ifyou would promptly provide me with what day(s) you will be available. Sincerely, Isl Kathleen E. Wells Kathleen E. Wells, Esq. EXHIBIT B HHHFHHIHTi P a l. rnmnu I'OCOplO 1117 sCalmmam _, system7 Palo Alto. CA 94304 T. 650.645.9000 F. 619.235.0398 TYLER M. PAETKAU P. 650.645.9027WW7 DE]. MAR HEIGHTS LAB VEGAS PHOENIX SAN DIEGO Slucml VALLEY Aprfl 27. 2013 Kathleen E. Wells Attnmey At Law 3393 Maplethorpe Lane Sequel, CA 95073 Ra: W Santa Ciara County Superior noun Case No. 170V314350 Dear Kathleen: This letter responds to your letter dated April 23. 2013, stating your client's Intention to schedule the deposition of the process server in this case. Mr. Dellepere. duringthe week of April 30 to May 4. In light of Mr. Gettel's failure to show any credible evidence in support of his pending motion. piease provide authority that would allow Mr. Gettei to take such a deposition under mesa circumstances. Mr. Gettel‘s motion to quash service of process is totally and completely without merit. Mr. Gettel filed his motion to quash after our clients. plaintiffs John and Nicole Saich. had filed extensive evidence in opposition to Mr. Gettel’s ex pane appiication. demonstrating that Mr. Gettel was properiy served by a licensed private investigator with the Summons and Complaint on August 11, 201?. Yet Mr. Gettel‘s motion and decimation fail to offer any credible explanation why he sat on his hands for so long, even as he and his attorney clearly had notice of the Complaint and were served with written discovery as well as a notice of Mr. Garters deposition (which he unilaterally cancelled an the evening before his deposition. after our clients have reserved a Court Reporter and Vldeographer for his scheduled deposition}. For example. in his motion to quash, Mr. Gettel: u Does not dispute that the photo attached to Mr. Dellepere's Declaration as Exhibit A is in fact of Mr. Gettel: fi Procopio‘ u Does not dispute that the photo attached to Mr. Deliepere‘s Declaration as Exhibit B shm the foot of the driveway to Mr. Mr. Gettel's remote Quait Canyon property: a Does not dispute that he emailed me on Friday. August 11. 201T at 7:57 p.m.. approximately 5? minutes after Mr. Dellepere's Proof of Service of Summons states that he was personally served: I Does not dispute that he received my email to him. sent August 13, 2017. stating In pertinent, part. “The timing of your email below. La, immedianety after your aggressive and unlawful conduct forced our clients to terminate their reiationship wim you, effective immediateiy, and to file a lawsuit against you; after our Process Server served you with our client's Summons and Complaint (and your awesshre behavior during the service); and after you ignored both my detailed August 3, 2017 demand letter {and mdely refused to provide your fax number to my assistant) and my follow up August 101“ email. is telling and transparent" n Does not dispute that he was represented by David Meyberg as of August 18. 2017. or August 27, 201?. the date of my letter to Mr. Meyberg stating in pertinent part. ”In case your client has not provided a copy to you. attached fur your reference and background is our clients“ Commalnt filed on August 11. 201T In the Santa Clara County Superior Court.” I Does not dispute that he received via email and U5. Mall. my ietter dated September 12. 2017. enclosing our cllents' Notice of Mr. Gettel's deposition and a first set of document requests: n Fans to explain why he failed ta assert that he was not properly served with me Summons and Complaint until November 24. 2017. Including by falling to challenge or obiect to my August 11, 201? email to him asserting proper service of our clients' Summons and Compiaint: n Fails to explain why he delayed for long in filing his motion deSp'rte undisputedly having notice of the Summons and Complaint soon after rt was served: and a Fails to offer any explanation as to why, “The proof of service ~an file does not suffice t0 meet the Plaintiffs' burden." (Mr. Gettel‘s Memorandum of Palnm and Autharities in Support of Motion to Quash. at 3:10-11} Simply put Mr. Gettel's motion to quash hinges on a declaration that simply Is not wedlb‘le. See Young v. Rasenthal. 212 Cal. App. 36 96. 127 £1969). Ptaintlffs are considering all of melr options. Including a potential motion for sanctions. if Mr. Gettel does nut wm-Idraw his frivolous motion by no later than May 9. 20 18. 2 WM @Procopio‘ Please contact me If you have questions regarding this matter. If your office doesserve Mr. Dellepere with a Deposrtlon Subpoena, please promptly serve us with it any notice of hisdeposition. Our clients reserve all of their rims and remedies. Very tint yours. I I ~ It l Cl WI. f'afllfldu EXHIBIT C KATHLEEN E. WELLS ATTORNEYAT LAW (CSB # 107051) 3393 Maplethorpe Lane Soquel, California 95073 Telephone: 831-475-1243 Cell Phone: 831-461-5073 Email: lioness@got.nct SENT BY EMAIL AND U.S. MAIL May 9, 2018 Tyler M. Paetkau Procopio, Cory, Hargreaves & Savitch LLP I I 17 S. California Ave., Suite # 200 Re: Saich v Gettel (Superior Court for Santa Clara County No. 17CV3 14350) Dear Tyler: In your April 27 letter you cataloged a number of factors why you conclude, and expect the Court to conclude, that Stephen Gettel was in fact served with process on August ll, 2017. And yet, as you are well aware, Gettel has denied that such service in fact occurred. Obviously, either Mr. Dellepere or Mr. Gettel is not telling the truth. I would be completely remiss in my duties as an attorney if I were to glibly accept your characterization ofthe prospects ofthe Court's credibility assessment without at least engaging in appropriate discovery to ascertain whether Mr. Dellepere's account does or does not hold up when closely examined, especially in the light of relevant documentary evidence. Unfortunately, my research discloses that initiation ofthat discovery is not as straightforward as I initially assumed, and that it will be necessary to obtain a court order for me to conduct appropriate discovery while retaining Mr. Gettel‘s special appearance status. I am enclosing a drafi ofmy discovery motion brief, so that you may understand the complication to which I refer. By the end ofthis week, I expect to be in touch with the calendar clerk, and your ofi'lce, to determine the best date for the discovery motion to be heard. Obviously, we aiso will have to 1 arrange for a postponement ofthe evidentiary hearing so that discovery can be concluded in advance of it. After the completion ofsuch discovery, it is possible that the evidence will be so overwhelming on one side or the other that the disadvantaged side will find it prudent to fold on this issue. However, I suspect the more likciy outcome of discovery is that both sides will amass evidence that will produce a substantial credibility contest. As you know, now that service has been disputed your side has the burden ofproof. It is obviously premature at this point for me to counter your catalog with one ofmy own. In the meantime, you can be confident that I will do my utmost to do my job, as I am confident you will continue to do yourjob. This particular issue is not concluded by your May 9 ultimatum deadline. Best regards. /s/ Kathleen E. Wells cc: Stephen W. Gettel EXHIBIT D M Fri. 18 May 2013 12:33:51 07m Infinflfla 12:33:51 PH PDT] Fflfin mxmgfimeHflGFII 1h:flyMtQEMmm@menfiogmm'dyhmpaflhaflflpnumflmammflfl thyuifSakthEHHH Hlimul:3nm~AflHaamrs Dear Tyler, First, as we discussed earlier. I have ascertained that there are several dates available for the hearing on our motion for discovery and I would appreciate your response informing me which date{3) would be convenient for you. The earliest date available is August 2 - hearings are held on Tuesdays and Thursdays. A11 hearing dates after the 2nd are open except for August 16 and August 21. Second, as far as the June 12 hearing date, either we can file a stipulaticn to take the hearing off calendar without prejudice to refiling it if, after discovery, it appears appropriate, or I can appear ex-parte to do so. Obviously, we would much prefer the stipulation route a3 it would not only save time, but also relieve us of the necessity of making a court appearance. Please let me knew your available dates and whether or not you are willing to agree to a stipulation. Thank you, Kate Wells EXHIBIT E KATHLEEN E. WELLS ATTORNEYAT IAW (CSB # 1070.51) 3393 Maplethorpe Lane Soquel, California 95073 Telephone: 831-475-1243 Cell Phone: 831-461-5073 Email: lioness@got.net SENT BY EMAIL AND us. MAIL May 23, 201 8 Tyler M. Paetkau Procopio, Cory, Hargreaves & Savitch LLP 1 1 17 S. California Ava, Suite # 200 Re: Saich v Gettel (Superior Court for Santa Clara County No. 17CV3 14350) Dear Tyler: First, pursuant to our previous discussion, I have ascertained that there are several dates available for the hearing on our motion for discovery and Iwould appreciate your response informing me which date(s) would be convenient for you. The earliest date available, as ofthe date ofmy previous email, was August 2 - hearings are held on Tuesdays and Thursdays. All hearing dates afier the 2nd are open except for August l6 and August 21. Second, as far as the hearing calendared for June 12, either we can file a stipulation t0 take the hearing offcalendar without prejudice t0 refiling it if, after discovery, it appears apprOpriate; or, I can appear ex-parte to do so. Obviously, we would much prefer the stipulation route as it would not only save time, but also relieve both ofus of the necessity of making a court appearance. Please let me know your available dates and whether or not you are willing to agee to a stipulation. I have enclosed herewith a copy of the revised drafi of the motion we intend to file. Hopefully, this one is more comprehensible than the first drafi. Bestiards, cc: tephen W. Gettel EXHIBIT F @Procopio’ May 25, 2018W Kathleen E. Welb Attorney At Law 3393 Maplethorpe Lane Soquel, CA 95073 Re: W Santa Clara County Superior Court Case No. 17CV314350 Dear Kathleen: m0 1117 S mliorrl'a Ave Suite 200 P80 Alto. CA9m T. $0.645.m F. 619.235m TYLER M. PAETKw P 650 645 9027WW DB. MAR HBGHI'SWVEGB PHOENIX SAN DIEGO SLmN VALLEY I received your lens: dated May 23, 2018, stating your intent to file a new motion for discovery and asking whether our clients would be willing to agee to a stipulation to take the hearing on your client's pending motion to quash. currently scheduled for June 12. off calendar without prejudice to renting it it. after discovery. you determme It appears appropnate. Our clients oppose any discovery or further delays. including any delay of the hearing on your client's pending motion to quash. Your client was properly served over nine months ago and has failed to show any credible evidence in support of his pending motion. No further delays are warranted. Nor has your client ever explained any basis for his extraordinarily lengthy delays in moving to quash or in seeking discovery. Very truly yours. Tyler M. Paetkau mmmmmd. OWQGM$WN~ NNNNNNN~--~----~u- SQM¥WN-OOWQQMAUJN-‘O JD FILED KATHLEEN E. WELLS (SBN 107051) JUN - 5 2013 3393 Maplethorpe Lane Soquel, CA 95073 “m; " -‘ Telephone: (831) 475-1243 'L- °' max£ka Email: lionessgibgomet R.AW Attorney for Specially Appearing Defendant Stephen W. Gettel SUPERIOR COURT FOR SANTA CLARA COUNTY SAN JOSE BRANCH JOHN M. SAICH and ) No. 17CV3 14350 NICHOLE L. SAICH, ) ) Plaintifis, ) ) POINTS AND AUTHORITIES IN vs, ) SUPPORT OF EX PARTE APPLICATION ) TO REMOVE MOTION TO STEPHEN W. GETTEL, ) QUASH FROM CALENDAR ) Defendant. ) Ex Pane Hearing: ) Tuesday, June 6, 2018 9:00 am. Dept. l3 (Judge James L. Stoelker) As is documented by the Declaration of counsel for Specially Appearing Defendant STEPHEN W. GE'I‘TEL (GET'I'EL), GETTEL has been seeking since April 23, 201 8 to accomplish an oral deposition of Matthew Dellepere (Dellepere), the individual who signed the proofof service alleging service of the Summons and Complaint on GETI'EL, which service GETTEL denies in his declaration in support of the pending motion to quash. As is also documented in said Declaration ofcounsel, Plaintifl‘s have systematically engaged in a process of obstructing and delaying said discovery. That pattern will be briefly summarized here. On April 23, 2018 counsel for GETI'EL, Kathleen E. Wells (\Nells), sent counsel for Plaintiffs, Tyler M. Paetkau (Paetkau), an e-mail and letter announcing her intent to depose Dellepere. (Exhibit A attached to the Declaration ofCounsel in Support ofEx Parte Saich v. Genel. Case No. 17CV314350 P& A in Smut ofEx Pane Application to Remove Motion Io Quasi: fiom Calendlt -1. DOOQGUI#WN~ NNNNNNN- Hmt-I-t-n-nwu 80~u&wu~oo;qo~m.>u~-o J3 Application filed herewith) Said April 23 communication announced she wished to accomplish said deposition in the week of April 30 to May 4, and requwted that Paetkau "promptly" advise her what day(s) he (Paetkau) would be available for such deposition. Neither Paetkau nor his ofiice ever provided the information as to what dates they would be available. Rather, Paetkau responded with an April 27 e-mail and letter "demanding authority that would allow Mr. Gettel to take such a deposition under these circumstances." (Exhibit B attached to the Declaration ofCounsel in Support ofEx Parte Application filed herewith) The remainder ofthe letter catalogued various reasons why Paetkau had concluded that Gettel had in fact been served, characterized GETI‘EL's motion to quash as "fiivolous” and threatened sanctions ifsaid motion were not withdrawn by May 9. Wells did indeed research the "authority that would allow Mr. Gettel to take such a deposition under thwe circumstances.” Partially accomplishing that mearch, on May 9 Wells sent Paetkau another letter and with an 8-page first drafi ofa proposed leg] memorandum in support ofsuch authority. (Exhibit C attached to the Declaration ofCounsel in Support ofEx Parte Application filed herewith) That drafi memorandum not only includ the authority for such discovery (Islamic Republic ofIran vs. Pahlaw' (1 984) 160 Cal.App.3d 620) but also set forth two cases holding that under "these circumstances," to wit: a pending motion to quash by a specially appearing defendant, mere service ofa statutory deposition subpoena would constitute a general appearance and a waiver ofthe motion to quash, and that it was necessary to file a motion to have the court issue a nonstatutory deposition subpoena (as Pahlavi had filed a motion for a nonstatutory notice of deposition). In her May 9 letter, Wells asserted to Paetkau, "Obviously, we also will have to arrange for a posmonement of the evidentiaty hearing so that discovery can be concluded in advance of it." Neither Paetkau nor his omce responded to Wells' May 9 letter. On May 18 Wells sent Paetkau another e-mail, this time requesting to be informed, as she is required to do, ofdates on which Paetkau would be available for a hearing on her proposed motion for a nonsmtutory discovery. (Exhibit D attached to the Declaration of Satch v. Genet, Cm No. 17CV314350 Pd A in SWOI‘EX Pam Applicafim to Remove Mou'on to Qunhfi'omCM .2. wooxlaxtnkutou NN NNNNNHu-ImH-u-nn-u-_~ QQEhWN-oewflGMA‘NN-‘o 29 Counsel in Support ofEx Pane Application filed herewith) Wells advised Paetkau that as of that time all Tuesday and Thursday law and motion calendars fi'om August 2 forward (with the exception of2 named dates) were available. Neither Paetkau nor his ofiice responded to this May l8 e-mail. 0n May 23, Wells sent yet another e-mail and letter to Paetkau inquiring into what dates he would be available for a hearing on a motion for nonsmtutory deposition subpoenas. In addition, Wells sent Paetkau a longer drafi brief. (Exhibit E attached to the Declaration of Counsel in Support ofEx Parte Application filed herewith) Neither Paetkau nor his oflice ever notified Wells ofany dates upon which they were available for such a hearing. Instead, Paetkau sent a May 25 e-mail and letter announcing that they opposed any discovery whatsoever regarding the issue ofservice of the Summons and Complaint. (Exhibit F attached to the Declaration ofCounsel in Support ofEx Pane Application filed herewith) Finally, Wells filed a motion and supporting brieffor issuance ofnonstatutory deposition subpoenas ofDellepere and his employer, Nationwide Legal Services LLC. By this time, the earliest available hearing date was August 9, which was selected by Wells. Plaintifi‘s are entitled to oppose Specially Appearing Defendant's motion for nonstatutory subpoenas. Indeed, Plaintifis are entitled to oppose any discovery by making appropriate motions to quash a subpoena. What Plaintifis are not entitled to do is to withhold fi'om Wells dates upon which they are available for a hearing on such discovery motion or to withhold dates upon which they would be available for a deposition, should it be proper to hold one. The proper procedure for Plaintifl‘s to test the entitlement ofGETTEL to depose Dellepere would be to provide the dates upon which Plaintifi's’ counsel was available, but to announce that they would oppose, presumably by a motion to quash any statutory deposition subpoena or opposition to the issuance bfa nonstatutory subpoena. It is also proper for Plaintifi‘s to inquire ofWells what authority she has for such discovery. Of course, the making ofsuch a request implies that Wells would be able to take the time necessary to research and provide such authority. Satchv. Genet, CueNo. 17CV314350 P&A’mSWdEmeAppliufiontoRmchofimtoQMfimCM .3- WOONGUI#NN~ N NNNNN-H-mu-n-mp‘ BaaAWN-ioomflau#m-o Ja It is entirely improper for Plaintiffi to then bootstrap the delays which they created, and to insist that GETTEL is the source ofdelay on accomplishing the necessary discovery prior to an evidentiary hearing on the motion to quash. It is also important not to confound the issue ofdelays regarding this discovery, with claimed delays regarding the filing ofthe original motion to quash. Whatever significance there is to delays ofthe original motion to quash is a matter to be argued in connection with that motion to quash, not in connection with this application to allow the discovery motion to precede an evidentiary hearing. There is also one other red herring that GETTEL wishes to squelch in advance. As GETI‘EL is NOT making, at least at this time, a general appearance, he does not suggest that there need be or should be any delay whatsoever in the default proceeding requested by Plaintifi. Since Plaintifi's are fi’ee to seek their defaultjudgment without interference by GETTEL, other than what may or may not occur through the motion to quash which may or may not be resolved before a default judgment, which may or may not be issued by this Court, according to its own judgment and without input on the merits by GETTEL. Accordingly, in N0 SENSE is the present Application, the pending motion for issuance of nonstatutory deposition subpoenas, or the pending motion to quash, DELAYING Plaintim' efions to obtain a defaultjudgnent. IfDefenth prevails on his motion to quash, that will supersede any default. IfDefendant does not prevail on his motion to quash, OR IS UNABLE TO OBTAIN A RULING ON HIS MOTION T0 QUASH PRIOR TO PLAINTIFFS' OBTAINING A DEFAULT JUDGMENT, then GEI‘TEL will have to elect between entering a general appearance and appealing fi'om said defiultjudgment or collaterally attacking said judgment in a separate action. June 4, 2018 Z;b Kathleefi .WeuéffitBTanor Stephen . Gettel, Specially Appearing Defendant Satchv.G¢twl.CaeNo. l7CV3l4350 P&AinSumatofEmeApflicafimtoRcmoveMofiontoQumhfiomcm .4. Ja \DmnlthwM_ KATHLEEN E. WELLS (SB‘N 107051) Fl LED 3393 Maplethorpe Lane ‘ ‘ _ Sequel, CA 95073 JUN 5 7-013 Telephone: (83 l) 475-1243 - - ' m 0 .. I a ‘ Emmi: l10ness@got.nel mfinm -» Attorney for Specially Appearing Defendant Stephen W. Gcttel SUPERIOR COURT FOR. SANTA CLARA COUNTY SAN JOSE BRANCH JOHN M. SAICH and ) N0. I7CV3I4360 NICHOLE L. SAICH, ) ) Plaintifi, ) DECLARATION OF COUNSEL FOR ) SPECIALLY APPEARING DEFENDANT vs, ) GE’ITEL RE: ORAL NOTICE ) OF EX-PARTE HEARING STEPHEN W. GETTEL, ) TO COUNSEL FOR PLAINTIFFS ) Defendant. ) I I, KATHLEEN E. WELLS, declare: l. I am a licensed attorney and an active member in good standing with the California State Ba: and authnrized to practice in all mum: in the state. 2. On June 4, 2018 at 9:25 a.m., I telephoned and spoke with counsel for plaintiffs, Tyler Paetkau, and notified him ofdate, time, place and substance ofthe instant ex-parte hearing. 3. I also sent an email to him confirming my communication about the ex-parte to be held on June 5, 2013. 4. I also emailed him all ofthe documents for the ex parts including the Application, the Points and Authorities, Declaration of Counsel and Exhibits A - F, Declaration ofCounsel re Oral Notification and Proposed Order. I declare under penalty of perjury under the laws of the state of California, that the Declultim of Kathleen E Wells {wing specially) ©00QGUI¥WN~ 3o3¢w~-o$mqo~m#w-o .DO foregoing is true ofmy own personal knowledge and ifcalled upon to testify, I would and could honestly tactify thereto. Signed this 4th day ofJune, 20] 8, at Sequel, California. KATHLW E. WELLS W Declaration cf KahluaE Wells(wing specially) .2- OWQGUIAWN-fl NNNNNNN-nu-n-t------ 3aMAWN#OQWQQM#WNt-‘O 2D KATHLEEN E. WELLS (SBN 107051) F I LED 3393 Maplethorpe Lane Sequel, CA 95073 JUN ' 5 2013 Telephone: (831) 475-1243 m I_ , Emafl: lioness omet wand ' cu- Attomey for Specially Appearing Defendant Stephen W. Gettel ' SUPERIOR COURT FOR SANTA CLARA COUNTY SAN JOSE BRANCH JOHN M. SAICH and NO. l7CV3I4360 NICHOLE L. SAICH, SPECIALLY APPEARING Plaintifi's, PROOF OF SERVICE vs, STEPHEN W. GETTEL, Defendant. Attached hereto is the Proof of Service of the following documents: Ex Pane Application to Remove Motion to Quash fiom Calendar; Points and Authorities in Support ofthe Application; Declaration of Counsel in Support of Application with Exhibits A-F; Declaration ofCounsel re Oral Notification to Opposing Counsel; Proposed Order; and Proofof Service. Saich. e! a! v. Gene]. Case No. I7CV314360 ProofofSuvice OMQQMAWNH NNNNNNN ~n-4 n-I-Iu-qu-uru 3¢u§w-°$mq$m¢m-0 J3 PR F F ERVI E BY MAIL ATTACHMENT AND HAND DELIVERY I declare: IamaresidentoftheCounty ofSantaCruz;IamovertheageoflSyemandnotapartyto this action. My business address is 3393 Maplethorpe Lane, Sequel, CA 95073. 0n June 4, 2018, ll served the following documents by attaching them to an email to counsel for plaintifi‘s: Ex Partc Application to Remove Motion to Quash from Calendar; Points and Authorities in Support of the Application; Declaration of Counsel in Support of Application with Exhibits A-F; Declaration ol'Counsel re Oral Notification to Opposinfi Counsel; Proposed Order; and Proofof Service addressed as follows: Tyler.paetkau@procopio.com Said transmission was successful. Additionally, on June 5, 2018, I hand delivered all ofthe foregoing documents to counsel for Plaintifi‘s, Tyler Paetkau. I declare under penalty ofpcrjury that the foregoing is true and comet Executed on Jum 5, 2018 at Santa Cruz, California. KATHLEEN E. WELLS Saich. er al v. Geml, CascNo. l7CV3l4360 PmofofSu'viec H HIGU’I-hU-i F#DNDWHCNU’IAHMHD JO KDWHJmUI-BLHN fnmnsse KATHLEEN E. WELLS (SBN 107051) * w 3393 Maplethorpe Lane ‘ JUN " 5 2018 Soquel, CA 95073 Clark of tho Court Telephone: (33 l) 475-1 243 mmm °'“M °'“2% Email: lionesséflgomet R. ARA‘GON Attorney for Specially Appearing Defendant Stephen W. Gettel SUPERIOR COURT FOR SANTA CLARA COUNTY SAN JOSE BRANCH JOHN M. SAICH and ) No. I7Cv3 14350 NICHOLE L. SAICH, ) ) Plaintiffs, ) ) [pm] ORDER GRANTING vs. ) EX PARTE APPLICATION TO ) REMOVE MOTION TO QUASH STEPHEN W. GETTEL, ) FROM CALENDAR ) Defendant. ) Ex Paste Hearing: ) Tuesday, June 6, 2018 9:00 am. Dept. l3 (Judge James L‘ Staelker) GOOD CAUSE BEING SHOWN, IT IS HEREBY ORDERED that the Specially appearing defendant GETTEL"s application to remove the June 12, 201 8 Motion to Quash hearing fi'om the court’s calendar is granted. SO ORDERED. James. L. Stoelker DateTbhcfzms The Hon. James L. Stoelker Judge of Santa Clara County Superior Court Sate}: v. Getter. Cue No, 17CV314360 Ordu're Ex Pane Application u: Ranmre Modal: toQuash fiomCalm .1- fi EXHIBIT 4 Greenfield “} _.. will: I l). A m V O) U1 L 03 N -* O (O m N O) OI h 00 N -\ O 7-55 South-Market Street, Suite 1500 ' [San Jose, California 951 13 .. i L E Telephone: (408) 995-5600 Facsimile: (408) 995-0308 SEP 17 2mg i Attorney for Respondent ALEX CALVO, CLERK TYLER PAETKAU ‘ ,l' '2" if S, = a TYLER PAETKAU AND OLGA SAVAGE, MAUREEN A. HARRINGTON (SBN 194606) . GREENFIELD SOUTHWICK LLP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY 0F SANTA CRUZ STEPHEN w. GETTEL, Cmcvozsss , Petitioner, [ . ] ORDER GRANTING SPECIAL MOTION To STRIKE vs. _ (C.C.P. § 425.16) Respondents. The Special Motion to Strike the “Verified Petition Pursuant to CPP §1714.10, etc.” filed herein on August 17, 201 8 (the “Petition”) came on regularly for hearing on September 17, 2019, at 8:30 AM,‘ in Department 5 of the above-captioned court before the Honorable Paul Burdick. Maureen A. Harrington appeared for moving party, Tyler Paetkau, and Kathleen Wells appeared for Petitioner Stephen W. Gettel. The court having considered the papers filed and the arguments of counsel,_and good cause appearing therefore, IT IS HEREBY ORDERED that the motion to strike the Petition is GRANTED. An anti-SLAPP motion involves a two-step process. “First, the moving party has the initial burden of making athreshold showing that the challenged cause of action is one 'arising from a protected activity” as defined in CCP § 425.16. (Malin v. Singer, 217 Cal. ' App. 4th 1283, 1292 (201 3)). Once the court finds that the defendant has made a threshold Page 1 ORDER GRANTING SPECIAL MOTION TO STRIKE Greenfield -:, comwoach¢wm showing that the actiVity is protected, the “burden then shifts to the plaintiff to establish a I probability of prevailing on‘ the claim.” (HaightAshbury Free Clinics, 184 Cal. App. 4th 1539, 1547‘ (2010). The defendant may meet his burden by showing the act which forms the basis for the plaintiff's cause of action was a written or oral statement made befOre a legislative, Véxecutive, 6r judicial proceeding. (§ 425.16, subd. (e)(1).) Thus, if the defendant's act was a lawsuit... Ithe defendant would have a prima facie First Amendment defense. (Wilcox v. Superior Court (1 994) 27 Cal. App. 4th 809, 820). Filing a lawsuit is an exercise of a party’s constitutional right to petition for grievances. (CA Practice Guide, Civil Procedure Before ”Trial (TRG 2019) § 7:539) Mr. Paetkau's activity, as alleged, is the filing of the Santa Clara Action as counsel -for Mr. and Ms. Saich. (Petition at 1m 3-1 1 .) The constitutional right of petition (protected by _'CCP § 425.16, subd. (e)(1)), encompasses " ' "the basic act of filing litigation." ' (Navellier v. Sletten (2002) 29 Cal. 4th 82, 90.) Therefore, Respondent has met his initial burden of making a‘ threshold showing that the challenged cause of action is one arising from a protected activity. Turning next to Plaintiff’s burden of establishing a probability of prevailing on ‘the claim, Plaintiff has provided no facts or admissible evidence, much less a prima facie case, 'that refute Saiches’ claim that venue is proper in Santa Clara Court because the Parties' oral Iagreement requ'ired performance in Santa Clara County and because a substantial number of Defendants' wrongful acts, omissions, and failures to perform occurred in Santa :Clara County. (Dec. Paetkau, Ex. 1 Complaint 1] 38) Therefore Plaintiff has not .met his burden of establishing a probability of prevailing on his claim. In addition however, Plaintiff must overcome admissible evidence sufficient to ' ;:bvercom'e 'any privilege or defense that defendant has asserted to the claim. (Weil and Brown, Civil Procedure Before Trial (2019) §7z1015 pg. 7II-63) Cal. Civ. Code § 47 Privileged publication or broadcast provides: Page‘ 2 ORDER GRANTING SPECIAL MOTION TO STRIKE Greenfield -V _. o coooxloao-n'hwm NNNNNNNNN-LAAAAAAAAA mflam-hWN-AOCOWNODCfl-bWN-‘O A privileged publiCation or broadcast is one made: (a) in any (2) judicial proceeding; ' The constitutional right to petition, includes the basic act of filing litigation or otherwise seeking administrative action. (Ludwig v. Superior Court (1 995) 37_Ca|. App. 4th 8, 19.) The privilege established by this subdivision (47(b)) often is referred to as an “absolute” privilege, and it bars all tort causes of action except a claim for malicious prosecution. (Hagberg v. California Federal Bank (2004) 32 Cal. 4th 350, 360) Therefore the filing of the underlying action is also protected by the litigation privilege and Plaintiff has not overcome this privilege or defense. With respect to Plaintiff’s argument that this Court lacks jurisdiction to make the determination because the issue of venue is still before the Santa Clara County Superior Court, CA CCP § 396D provides: if an action or proceeding is commenced in a court having jurisdiction of the Subject matter thereof, other than the court designated as the proper court - for the trial thereof, under this title, the action may, notwithstanding, be tried in the court 7where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time othenNise allowed to respond to the complaint, files With the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Plaintiff here failed to challenge venue in Santa Clara County Superior Court and also removed from the Court’s calendar his motion to quash service of the summons and complaint. Plaintiff therefore waived any objection to venue and this Court has jurisdiction to make a determination on this motion. In addition, CCP § 1714.10 requires that before a cause of action against an attorney for civil conspiracy shall be included in a complaint, the court must determine that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. As explained above, Plaintiff has provided no facts, i.e. no admissible evidence to _ Paqe 3 ORDER GRANTING SPECIAL MOTION TO STRIKE Greenfield (O m N O) U'l $ OOZN -a. N N N N N N N N N _\ _\ _\ A _\ __x _\ _x A _\ m N O) U1 $ (JO N -¥ O (O m N 03' U1 -h (JO N -‘ O support a judgment in plaintiff’s favor that (1) Defendant contemplated an ulterior motive filing the underlying action in Santa Clara County Superior Court, and (2) committed a willful act in doing so. (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1057) ln addition, Paetkau’s acts in filing, the underlying complaint are protected by the litigation privilege. The constitutional right to petition, as we have seen, includes the basic act of filing litigation. (Ludwigv. Superior Court, (1995) 37 Cal. App. 4th 8, 19) Nor is Paetkau liable for conspiring on his client’s behalf. “An attorney acting only within the scope of his or her official duties who is not personally bound by the duty violated may not be held liable for civil conspiracy even though he or she may have participated in the agreement underlying the injury.” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal. App. 4th 802, 825.) For the foregoing reasons the special motion to strike Plaintiff’s verified petition is granted. In addition, Gettel’s verified petition to file amended complaint pursuant to CCP § 1714.10 is denied, Plaintiff having filed to establish that there is a reasonable probability that he will prevail in the action. ATTORNEY’S FEES Pursuant to CCP § 425.16 (c)(1), Respondent Tyler Paetkau is awarded attorney’s fees as prevailing defendant pursuant to a motion for attorney’s fees. DEFENDANT’S OBJECTIONS TO EVIDENCE None of Defendants’ objections to evidence were deemed material to disposition of the motion, therefore the Court declines to rule on them. SO ORDERED. Dated: September ‘/7 ,‘2019 $61,“; The Honorable Paul Burdick Judge of the Superior Court Page 4 ORDER GRANTING SPECIAL MOTION To STRIKE EXHIBIT 5 \DWNO‘UIAWN" NNNNNNNNN----fl--fl-~ WQOM¥WN~O©WQOMAMN~° Tyler M. Paetkau (Bar No. 146305) Olga Savage (Bar No. 252009) PROCOPIO, CORY, HARGREAVES & SAVITCH LLP l 1 17 S. California Ave., Suite 200 Palo Alto, CA 94304 Telephone: (650) 645-9027 Facsimile: (650) 687-8323 Email: tyler.paetkau@procopio.com Attorneys for Defendants JOHN M. SAICH and NICHOLE L. SAICH F I L E SEP172019 ALEX CALVO. CLERK BY DECLAN SALSEDO DEPUTY, SANTA CRUZ COUNTY SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CRUZ UNLIMITED JURISDICTION STEPHEN W. GETTEL, CASE NO.: 18CV02356 Plaintiff, TPRB'POSEBf ORDER GRANTING SPECIAL MOTION TO STRIKE vs. ' COMPLAINT PURSUANT TO C.C.P. § 425.16 BY DEFENDANTS JOHN M. JOHN M. SAICH, MCHOLE L. SAICH, DOES SAICH AND NICHOLE L. SAICH 1 through 10, inclusive, Date: September 17, 201 9 Defendants. Time: 8:30 am. Dept: 5 Judge: Hon. Paul Burdick Case NO.: 18CV02356 [PROPOSED] ORDER GRANTING SPECIAL MOTION TO STRIKE COMPLAINT \DfiOHJOxlhfiUJMI-l N M M N M IQ N N M H n-t v-I r-n ru- p- H n=- t-i u-n 00 Ml Ox UI ap- L'J M H D ND 00 ml ON U'I h W N I-' D The special motion by Defendants John Saich and Nichole Saich to strike Plaintiff Stephen W. Gcttefl’s Complaint came on fur hearing on September 1?, 2019. The Court having reviewed and considered the moving papers and any opposition thereto and having heard oral argument, and GOOD CAUSE APPEARING, [T IS HEREBY ORDERED: The special ‘matiun by Defendants John Saich and Nichole Saich to strike Plaintiff Stephen W. Gettel‘s Complaint is GRANTED. This determination is based upon on each ofthe following grounds: I. GETTEL v SAICH (18CV02356) SPECIAL MOTION T0 STRIKE PLAINTIFF‘S PAC BY DEFENDANTS SAICH An anti-SLAPP motion involves a two-step process. “First, the moving party has the initial burden of making a threshold showing that the challenged cause of action is one arising from a protected activity" as defined in CCP § 425.16. (Mah'n .v. Singer, 217 Cal. App. 4th 1283, 1292 (2013)), Once the court finds that the defendant has made a threshold showing that the activity is protected, the “burden then shifts to the plaintiff tn establish a probability of prevailing on the claim.“ (Haight Aghburv Free Clinicg, 184 Cal. App. 4th 1539, 1547 (2010).) The defendant may meet his burden by showing the act which forms the basis for the plaintiff’s cause of action was a written or oral statement made before a legislative, executive, or judicial proceeding. (§ 425.16, subd. (e)(1).) Thus, if the defendant’s act was a lawsuit,... the defendant would have a prima facic First Amendment defense. (Wilcox v. Supen’or Court, (1994) 27 Cal. App. 4th 309, 820). Filing a lawsuit is an exercise of a party‘s mnstitutional right t0 petition for grievances. (CA Practice Guide, Civil Procedure Before Trial (TRG 2019) § 7:539) Here the chanenged activity is the filing a lawsuit against Gettel in the underlying Santa Clara County Superiur Court action. This is an act in furtherance ofa person‘s right of petition or free speech under the United States or Califomia Constitution in cannection with a public issue pursuant t0 CCP § 426.16 (c)(l). Therefore, Defendant has met its initial burden of making a threshold showing that the challenged cause of action is one arising fi'mn a protected activity. I Case No; JBCVOZBSG [PROPOSED] ORDER. GRANTING SPECIAL MOTION T0 STRIKE COWIAWT \DOOHJGNLHLLQMa-n NNNNMNMHHWHHp-IwHHHfl-n mamM-hmmflcflmqafithhmwflo Turning next to Plaintist burden of establishing a probability of prevailing on the claim, Plaintiff has profided no facts or admissible evidence, much less a prima facie case, that refute Defendants’ claim that venue is proper in Santa Clara Court bmause the Parties’ oral agreement required performance in Santa Clara County and because a substantial number of Defendants’ wrongful acts, omissions, and failures to perfonn occurred in Santa Clara County. (Dec. Paetkau, Ex. l Complaint 11 38.) Therefore Plaintiff has not met his burden of establishing a pmbahflity of prevailing on his claim. In addition however, Plaintiff must overcome admissible evidence sufficient to overcome any privilege or defense that defendant has asserted t0 the claim. (Wail and Brown, Civil Pmcedure Before Trial (2019) §?:101 5 pg. 711-63.) Ca] Civ Code § 47 Privileged publication or broadcast provides: A privileged publicatiun or broadcast is one made: (a) in any (2) judicial procwding; The constitutional right to petition, includes the basic act of filing litigation or otherwise seeking adminifitrative action. (Ludwig v. Superior Court, (l 995) 37 Cal. App. 4th 8, 19.) The privilege established by this subdivision (47%)) often is referred to as an “absolute" privilege, and it bars all tort causes of action except a claim for malicious prosecution. (Hagberg v. California Federal Bank, (2004) 32 Cal. 4th 350, 360.) Therefore the filing of the underlying action is also protected by the litigation privilege and Plaintiffhas nut overcome this privilege or defense. With respect to Plaintifi‘s argument that this Court lacks jurisdiction to make the determination becausa the issue of venue is still befurc the Santa Clara County Superior Court, CA CCP § 39613 provides: if an action or proceeding is commenced in a court having jurisdiction of the: subject matter thareof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where cnmmenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, 01' moving to strike and Within the time otherwise allnwed to respond to the complaint, files with the clerk, a notice of motion for an 2 Case ND; 18CV02356 [PROPOSED] ORDER. GRANTING SPECIAL MOTION T0 STRIKE COMPLAINT \OOOQO‘UIAUJNH NNNNNNNNNHH-A-nflflww-aw OOQQM-huNb‘oomflathN-‘o order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Plaintiff here failed to challenge venue in Santa Clara County Superior Court and also removed from the Court’s calendar his motion to quash service of the summons and complaint. Plaintiff therefore waived any objection to venue and this Court has jurisdiction to make a determination on this motion. The special motion to strike Plaintiffs Complaint is granted. Attorney’s fees CCP § 425.16 provides: (d)(]) Except as provided in parayaph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attomey’s few and costs. If the court finds that a special motion to stn'ke is fi'ivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiffprevailing on the motion, pursuant to Section 128.5. Pursuant to CCP § 425.16 (c)(l), Defendant is awarded attomey’s fees as prevailing defendant pursuant to a motion for attorney’s fees. Defendant’s Objections to Evidence None of Defendants’ objections to evidence were deemed material to disposition of the motion, therefore the Court declines to rule on them. IT IS SO ORDERED. g: - u r.) r39: Lava; Dated: September fl, 2019 i “L’- ‘ ' “'U‘ "J'L'h The Honorable Paul Burdick Judge ofthe Superior Court 3 Case No.: 18CV02356 [PROPOSED] ORDER GRANTING SPECIAL MOTION TO STRIKE COMPLAINT EXHIBIT 6 OWQO‘MhWNt-I NNNNNNNNNn-HHHI-HHn-I-H OOQO‘UIhUJNH6900QQUIAU-INI-‘O Electronically Filed ELECTRONICALLY RECEIVED Superior Court of California 4/1/2021 2:49 PM County of Santa Cruz Tyler M. Paetkau (Bar No. 146305) April 7, 2021 Olga Savage (Bar No. 252009) Alex CaIVO, Clerk PROCOPIO, CORY, HARGREAVES & SAVITCH LLP By eputy, Gonzalez! Sandra 1 1 17 S. California Ave., Suite 200 Palo Alto, CA 94304 Telephone: (650) 645-9027 Facsimile: (650) 687-8323 Email: tyler.paetkau@procopio.com Attorneys for Defendants JOHN M. SAICH and NICHOLE L. SAICH SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CRUZ UNLIMITED JURISDICTION STEPHEN W. GETTEL, CASE NO.: 20CV00337 Plaintiff, l J ORDER SUSTAINING DEMURRER BY DEFENDANTS T0 vs. PLAINTIFF’S FIRST AMENDED COMPLAINT WITHOUT LEAVE TO JOHN M. SAICH, Trustee ofJohn M. Sajch AMEND Declaration of Trust dated August 2, 2004, NICHOLE L. SAICH, Tmstee ofNichole L. Date: March 24, 2021 Saich Declaration of Trust dated September 28, Time: 8:30 a.m. 2012, DOES l through 100, Judge: Hon. Judge Connolly Dept: 4 Defendants. Complaint Filed: January 31, 2020 On March 24, 2021, the Motions by Defendants, including Defendants’ Demutrer t0 Plaintiff Stephen W. Gettel’s First Amended Complaint, and Defendants’ Motion To Compel Retum of Documents and to Seal Them, Motion to Quash Service of Summons and Complaint and Motion to Compel Document Production, came on regularly for hearing. Mark Corrinet and Donald Schwartz appeared for Plaintiff Stephen W. Gettel. Tyler M. Paetkau appeared for Defendants. The Court, having reviewed and considered the moving papers and any opposition 1 Case No.: 20CV00337 ORDER SUSTAINING DEMURRER BY DEFS. T0 PLAINTIFF’S FAC W/O LEAVE TO AMEND KOOONO‘NUILUJNr-t NNNNNNNNNh-Hr-Ar-kr-Ah-Hr-Ah-H OONONMLWNHOKOOONONMLWNF-‘O thereto and having heard oral argument, and GOOD CAUSE APPEARING, IT IS HEREBY ORDERED: 20CV00337 GETTEL V. SAICH DEMURRER TO FAC Under the rule of exclusive concurrent jurisdiction, When two superior courts have concurrent jurisdiction over the subject matter and the parties, the first court to assume jurisdiction has exclusive and continuing jurisdiction until such time as all necessarily related matters have been resolved. (Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 460.) The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free t0 make contradictory decisions or awards relating t0 the same controversy and preventing vexatious litigation and multiplicity of suits. The rule is established and enforced not “so much t0 protect the rights of parties as t0 protect the rights of Courts of co-ordinate jurisdiction t0 avoid conflict ofjurisdiction, confusion and delay in the administration 0f justice.” (Plant Insulation C0. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787 [274 Ca1.Rptr. 147].) Here, there is a logical relationship between the Complaint in Saich V. Gettel, Santa Clara County Superior Court Case N0. 17CV3 14350 (“Gettel I”) and each 0f the six causes of action in the FAC herein in that they involve “common issues 0f law and fact,” an “overlap 0f issues,” and a common transaction. (ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 82; compare FAC herein 1W 14,15,16,25,29 and 1H] 19, 23,57,60 0f Complaint in Gettel I.) Under the rule 0f exclusive concurrent jurisdiction, because the Santa Clara and Santa Cruz Superior Court have concurrent jurisdiction over the subj ect matter and the parties, the first court (Santa Clara County Superior) t0 assume jurisdiction has exclusive and continuing jurisdiction until such time as all necessarily related matters have been resolved. (Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Ca1.App.3d 455, 460.) Code CiV Proc § 426.30(a) provides: Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails t0 allege in a cross-complaint any related cause 0f action which (at the time of serving his answer t0 the complaint) he has against 2 Case No.: 20CV00337 [PROPOSED] ORDER SUSTAINING DEMURRER BY DEFS. TO PLAINTIFF’S FAC W/O LEAVE TO AMEND H the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause 0f action not pleaded. Because Gettel failed to file a cross-complaint in Gettel I for his related causes of action (Which he was required to d0 pursuant to CA CCP § 428.50(a)), he is barred from bringing the claims in this Court, therefore the demurrers to the six causes of action in the FAC are sustained Without leave t0 amend. (Lawrence v. Bank ofAm. (1985) 163 Cal.App.3d 431, 436.) KOOONO‘NUl-PUJN NNNNNNNNNh-Hr-Ar-kr-Ah-Hr-Ah-H OONONMLWNHOKOOONONMLWNF-‘O Defendants’ Request for Judicial Notice . Complaint for Damages and Injunctive Relief, filed in the matter of John M. Saich and Nichole L. Saich, Santa Clara County Superior Court Case No. 17CV3 14350: Granted. . Default entered against Gettel 0n November 13, 2019 in Gettel I: Granted. . Notice of Default Prove-Up Hearing filed in Gettel I on November 12, 2020: Granted. . Declaration 0f John M. Saich in Support 0f Plaintiffs’ Request for Default Judgment filed in Gettel I 0n November 13, 2019: Granted. . Declaration 0f Tyler M. Paetkau in Support 0f Plaintiffs’ Request for Default Judgment filed in Gettel I 0n November 13, 2019: Granted. . Order denying Gettel’s motion to set aside entry 0f default filed in Gettel I on September 1, 2020: Granted. . Order granting Defendants John M. Saich and Nichole L. Saich’s special motion t0 strike Complaint filed in the matter 0f Stephen W. Gettel V. John M. Saich and Nichole L. Saich, Santa Cruz County Superior Court Case N0. 18CV02356 0n September 17,20 1 9: Granted. . Order granting Respondent Tyler Paetkau’s special motion to strike filed the matter 0f Stephen W. Gettel V. Tyler Paetkau and Olga Savage, Santa Cruz County Superior Court Case N0. 18CV02356 0n September 17, 2019: Granted. Plaintiff’s Request for Judicial Notice . Complaint for Damages for Breach of Oral Contract” filed in the Santa Cruz County Superior Court 1/3 1/2020: Granted. 3 Case No.: 20CV00337 [PROPOSED] ORDER SUSTAINING DEMURRER BY DEFS. TO PLAINTIFF’S FAC W/O LEAVE TO AMEND UI A w N OCOOVO 2. First Amended Complaint for Damages and Equitable Relief“ filed in the Santa Cruz County Superior Court 9/ l 7/2020: Granted. MOTION T0 QUASH SERVICE OF SUMMONS The demurrer having been sustained without leave to amend. this motion is moot. Moreover, because this motion is moot, the Court exercises its discretion to not set an OSC why sanctions should not be imposed against Gettel and his attorneys. MOTION TO COMPEL RETURN OF DOCUMENTS AND TO SEAL THEM Pursuant to Cal. Code Civ. Proc. § 436. the Court uses its discretion to Strike Exhibits 3-13 attached to the FAC as improper matter inserted in a pleading not drawn or filed in conformity with the laws of this state. a court rule. or an order of the court. The clerk will "return" Exhibits 3-l3 attached to the First Amended Complaint filed 9/17/20 to Defendants Saich and remove them from public access. lf Defendants contend that Gettel has violated a Santa Clara Superior Court order to return documents (see Saich Supplemental Brief in support of motion to compel return of documents filed 2/3/2l). Defendants should apply to that Court for relief. MOTION TO COMPEL liESPONSES TO DEFENDANTS’ REQUEST FOR PRODUCTION OF DOCUMENTS The demurrer having been sustained without leave to amend. this motion is moot. IT IS SO ORDERED. K Z [IDate. Apr” 7’ 2021 Hon. Rebecca Coma} Judge of the Superior Court APPROVED AS TO FORM: Marchgi. 202 l‘ ‘ v \ / 3 A 0w k 7'5 Mark Steven C'orrinet. Esq. Donald Schwartz, Esq. Attorneys for Plaintiff Steven W. Gettel 4 Case No.: 20CV00337 ORDER SUSTAINING DEMURRER BY DEFS. T0 PLAINTIFF’S PAC Wlo LEAVE To AMEND EXHIBIT 7 BY FAX Ix) "rJ Tyler M. Paetkau (Bar No. 146305) Olga Savage (Bar N0. 252009) PROCOPIO, CORY, HARGRBAVES & SAVITCH LLP 1117 S. Ca1ifomia Ave., Suite 200 Palo Alto, CA 94304 Telephone: (650) 645-9027 Facsimile: (650) 687-8323 Email: ty1er.paetkau@procopio.com Attorneys for Plaintiffs JOHN M. SAICH and NICHOLE L. SAICH SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION CASENo. 17CV314350 COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: JOHN M. SAICH and NICHOLE L. SAICH, Plaintiffs, vs. STEPHEN W. GETI‘EL, individuafly and doing business as GETTEL & ASSOCIATES, and DOES 1 through 25, inclusive, Defendants. 1 2 3. 4 8. 9. 10. 11. . Breach 0f Oral Contracts; . Fraud; Breach of Fiduciary Duty; . Violation of Elder Abuse and Dependent Adult Civil Protection Act (Cal. Welf. & Inst. Code § 15610.30) Conversion; Breach 0f the Implied Covenant of Good Faith and Fair Dealing; Unfair Business Practices (Cal. Bus. & Prof. Code § 17200); Unj ust Enrichment; An Accounting; Common Count; and Injunctive Relief DEMAND FOR JURY TRIAL Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELlEF I‘d Cooflomfiw Plaintiffs JOHN M. SAICH and NICHOLE L. SAICH (“Plaintiffs”) hereby allege as follows: PRELIMINARY ALLEGATIONS 1. Plaintiffs are individuals residing in Santa Cruz County, California. Plaintiff JOHN M. SAICH is Plaintiff NICHOLE L. SAICH’S father. Plaintiffs own and manage real estate projects in Santa Clara and Santa Cruz Counties, primarily for investment purposes. 2. Upon information and belief, Defendant STEPHEN W. GETTEL, doing business as GETTEL & ASSOCIATES (“Defendant”), is an individual residing at 288 Quail Canyon Road in Watsonville, California, who holds himself out as a real estate broker (www.genelandassociates.c0m), and who purports t0 hold a Califomia real estate broker license, CalBRE 300659755, and a California Certified General Real Estate Appraiser license, CalBREA #AGOO9207, who provided certain services to Plaintiffs. described below. > 3. Plaintiffs are unaware of the true names of Defendants DOES 1 through 25, and of the facts on which the liability of said Defendants is based. Plaintiffs sue said Defendants by said fictitious names, and will amend this Complaint when the true names and capacities are ascertained 0r when such facts pertaining t0 liability are ascertained, 0r as permitted by law or by the Court. 4. At all material times, each of the Defendants, including DOES l through 25, was the agent, servant, employee, partner, joint venture, representative, subsidiary, parent, affiliate, alter ego, or co~conspirator of the others, had full knowledge of and gave substantial assistance to the alleged activities, and in doing the things alleged, each was acting within the scope ofsueh agency, service, employment. partnership, joint venture, representation, affiliation, 0r conspiracy, and each is legally responsible for the acts and omissions of'the others. 5. Piaintiff‘JOHN M. SAICH turned 65 years old on December l6, 2016. Plaintiff JOHN M. SAICH first met Defendant STEPHEN W. GETTEL in 2005, when he hired him as an appraiser on an eminent domain issue in Santa Cruz County (the Davis case). Plaintiff JOHN M. SAICH and Defendant had various professional interactions over the years, but Lno ongoing working relationship. l Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 6. In 2008, the third of three wildfires spread through the Larkin Valley in Santa Cruz, County, California. Plaintiff JOHN M. SAICH became aware that Defendant and his family had been displaced by the fire and allowed them to stay in the beach house that Plaintiff JOHN M. SAICH owned in La Selva, Califomia, at no charge and out of compassion for their situation. This act of kindness put Plaintiff JOHN M. SAICH and Defendant’s relationship 0n more of a personal, versus strictly professional, level. Defendant observed Plaintiff JOHN M. SAICI-I’s generosity and kind spirit firsthand, and Defendant decided to take advantage 0f, defraud, manipulate, steal from, swindle and otherwise abuse PlaintiffJOHN M. SAICH. 7. Plaintiff NICHOLE L. SAICH owns a partial interest in four of the famiiy investment properties: a beach home in La Selva, California; a single-family home in the Larki‘n Valley on Red Fox Ridge; a two-bedroom condominium in Campbell, California; and; a commercial building and lot in downtown Cupertino, California, which is currently leased by Bank of America, and suffered similarly as a direct and proximate result 0f Dcfendants’ frahch manipulation and abuse. 8. In 2012, Defendant assisted when Plaintiff JOHN M. SAICH wanted to gift property to his daughter, Plaintiff NICHOLE L. SAICH. Defendant assisted Plaintiff JOHN M. SAICH in working with the trust attomey, Jim Dyke, and coordinated the necessary appraisetls for the real property transfer. 9. In 2013, Defendant acted as the broker on the listing of two adjoining lots that Plaintiffs jointly owned in Saratoga (Santa Clara County). Defendant also worked with Plaintiff JOHN M. SAICH to coordinate the potential Internal Revenue Code section 1031 transfer of those proceeds into other investment properties. A properly structured 1.R.C. § 1031 exchange a110ws an investor to sen a property, to reinvest the proceeds in a new property and t0 defer a1] capital gain taxes. 10. In 2014, Plaintiff JOHN M. SAICH went through a painful breakup of a long-term, 20-year personal relationship. It was a very difficult time for him and he felt very alone in the world. Defendant used this unfortunate persona1 situation to ingratiate himselt' further, telling Plaintif‘t'JOHN M. SAICH that he could “simplify his life” by letting Defendant 2 Case No. COMPLAINT FOR DAMAGES AND 1NJUNCT‘1VE RELIEF Ix.) DJ OONO‘J'J-i manage all of his personal and professional affairs for him. This sounded attractive to Plaintiff JOHN M. SAICH, given his fragile emotional state. 11. The Saratoga lots sold in late 2014/carly 2015. At this time, Plaintiffs are unable to confirm the exact dates, but will amend this Complaint to allege them when discovered, due to Defendant’s theft (conversion) of Plaintiffs’ personal property and files, including their personal papers relating to numerous real estate and other business transactions “handled” by Defendant. As alleged further below, Defendant has failed and refused to return Plaintiff‘s" personal property and files, despite Plaintiffs’ repeated oral and written demands for their immediate return t0 their rightful owners. In fact, to date, and throughout his working relationship with Plaintiffs, Defendant has provided to Plaintiffs minimal copies of critical documents evidencing and related to real estate transactions and appraisals. (As described further below, on August 7, 20l7, Plaintiffs’ counsel sent Defendant a detailed written demaimd for the immediate return 0f all of I’laintiffs’ personal property and files, including without limitation all real estate, financial and other business documents. as alleged above, a true and correct copy of which is attached as Exhibit l and incorporated here by reference; and on August 10, 2017, Plaintiffs” counsel sent Defendant a follow up electronic mail message, a true and correct copy of which is attached as Exhibit 2, demanding the immediate return of two firearms that Plaintiff JOHN M. SAICH loaned to Defendant (hereinafter “Plaintiffi’ Personal Property”).) 12. Defendant worked with Plaintiff JOHN M. SAlCll to identify propertias to purchase, focusing on a very limited geographic area that was both within Defendant‘s brokerage area and close to Defendant’s own home. Defendant then began working on the 103 l: exchange ofthe lots. ’l‘wo potential exchange properties were identified: Red Fox Ridge, where Plaintiff JOHN M. SAICH currently resides, and a nondescript condominium in Campbell, California. Defendant described both properties as “the best 0f what was available" in the very limited market area that hc led Plaintiff JOHN M. SAICH to consider. The purchases were completed in October 201 5 (approximately). 3 Case No. COMPLAINT FOR DAMAGES AND INJUNCTWE RESUEF (Q ocqum-b 20 I3. In April 2015, Defendant made Plaintiff JOHN M. SAICH aware [hat he might "lose his house.” Plaintiff JOHN M. SAICH loaned Defendant $50,000 to save his home from foreclosure by the bank holding Defendant’s mortgage. Plaintiff JOHN M. SAICH agreed to loan Defendant the $50,000, never wondering why his agent and supposed “real estate consultant” was losing his home due m poor financial decisions. Plaintiff JOHN M. SAICH has demanded a full and accurate accounting of any loan repayments, but Defendant has failed and refused to provide any accounting, 0r any documents at all proving that Defendant repaid Plaintiff'JOHN M. SAICH the $50,000 loan. l4. At around the same time that the real estate transactions closed (September 0r October of 2015), Defendant told Plaintiff JOHN M. SAICH that “if he wanted his help on an ongoing basis, he would have to tell him now and hire him 0r he would go seek clients elsewhere.” Upon information and belief, Defendant had no other clients at the time. Defendant applied great pressure and employed coercive tactics on Plaintiff JOHN M, SAICll to retain Defendant‘s purported “real estate consulting" services on an ongoing basis. Defendant proposed an oral agreement under which Plaintiff JOHN M. SAICH would pay $16,000 per month for working I60 hours at $100 per hour, and intensely pressured Plaintiff JOHN M. SAICH to accept it or “be on his own.” Plaintiff JOHN M. SAlCH was fresh fromfia personal breakup, living alone and overwhelmed by the details of an increasingly complicated real estate investment portfolio - due mainly to Defendant‘s efforts to create complexity and unnecessary work and expense. Plaintiff JOHN M. SAICH saw no option at the time but to agree to the arrangement proposed by Defendant. 15. In approximately October 2015, Plaintiff JOHN M. SAICH began paying Defendant $16,000 per month ($l92,000 per year) for purported “general services” to Plaintiff JOHN M. SAICH. The oral agreement was to continue as long as there was “work to be done." 16. Although Defendant apparently now falsely contends that Plaintiffs agreed to compensate him at the rate of $350 per hour for alleged “broker-level services,” on May l8, 2017, in a case pending in the Santa Clara County Superior Court, John M. Saich and Nichole Li Saich, Trustees vs_ Marina Plaza, LLC, er 01., Case No. 16CV300526 (the “Marina Plaza 4 Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF (x) $9.) 6 Action"). Defendant testified t0 the alleged terms of his oral contract with PlaintiffJOHN M. SAICH, i.e., 40 hours per week. a1 $100 per hour, at pages 86-90. l7. Sometime'afier the closing 0f the Red Fox Ridge property, Defendant suggested the construction of a guest house unit on the front acreage of the property. The iII-fated project -- which did not and could not “pencil out” on paper - ultimately cost Plaintiff JOHN M. SAICH $275,000 in entitlements plus Defendant’s time. It was never built. As a broker, Defendant should have advised Plaintiff JOHN M. SAICH that the project could not be built profitably. Defendant did not do so and, in fact, advised Plaintiff JOHN M, SAICH that a guest house would be “of great benefit" and “substantially raise the value” ot‘ the Red Fox Ridge property. 18. Defendant continued to create projects that produced more “work” for him to dof Among them were a photovoltaic construction project proposed for Red Fox Ridge, and an aggressive effort Io turn a proposed development next t0 Plaintiff JOHN M. SAICH’S downtown Cupertino property into an expensive and prolonged legal battle and lawsuit. Defendant urged a lawsuit (the “Marina Plaza Action” referenced in Paragraph 16 above). which began in 2016 and continues to this date at a cost of more than $30,000 per month to PlaintiffJOI-IN M. SAICH. The Marina Plaza Action has not yet been scheduled for trial. 19. During this same period of time, Defendant also worked with Plaintiff JOHN M. SAICH to negotiate a new lease with Bank of America, the commercial tenant on the Cupertino property. The bank had been a tenant since 1963, when Plaintiff JOHN M. SAICH’S father built the building. It was the renewal of an existing lease, which will end next year. The Cupertino branch is Bank of America’s 16th most profitable branch worldwide and it was very unlikely that it would terminate its tenancy and move elsewhere. Regardless, Defendant advised Plaintiffs JOHN M. SAlCH and NICHOLE L. SAlCH (a l0% co-owner in the pmperty) to give up a 2.5% annual cost ot‘ living increase over the life ot‘the 10-year lease tenn. Once again, Defendant was not working to promote of protect the interests of his clients, but looking to assure his continued role in Plaintii‘l‘s’ financial and real estate affairs. 5 Case Noi COMPLAINT FOR DAMAGES AND lNJUNC’l‘iViE RELIEF U\ J) w N OO\10\ 20. In April 2017, Defendant asked Plaintiff JOHN M. SAICH to lend him $25,000 to purchase a new Porsche Macan automobile from a dealership in Monlercy, Plaintiff JOHN M. SAICH agreed to loan Defendant $25,000. Defendant has repaid only $3,000 of that loan to date. 21. In the Spring of 2017 (April - June), PlaintiffJOHN M. SAICH began to suspect that Defendant was not providing 160 hours of work each month and asked him about it. Defendant became absolutely incensed, saying that Plaintiff JOHN M. SAICH did not appreciate his services, that Defendant had “created” and “saved" both Plaintiffs JOHN M. SAICH and NICHOLE L. SAICH’S entire financial lives. Defendant called Plaintiff JOHN M SAICH an “ingrate.” Plaintiff JOHN M. SAICH also mentioned that a “reduction” in Defendant’s $16,000 monthly cost might be appropriate. Defendant became verbally aggressive and hostile, making Plaintiff JOHN M. SAICH feel threatened. 22. On or about June 23, 2017, Plaintiff JOHN M. SAICH once again brought up a potential reduction in Defendant’s $16,000 monthly compensation. Defendant became very aggressive and told Plaintit‘t'JOHN M. SAICH that “I don’t know what I might do" if PIaintifT JOHN M. SAICH tried to reduce his compensation. Plaintiff JOHN M. SAICH understood Defendant’s statements as a threat. 23. On July 24‘ 2017, Defendant came to Plaintiff JOHN M. SAICH’S house on thc pretext 0f having “checks t0 sign” for the assessor‘s office. Defendant then presented a commission schedule to Plaintiff JOHN M. SAICH, claiming that he was due as much as $475,000 in commissions from Plaintiff JOHN MI SAICH for his alleged “work" on the Bank of America lease. 24. The growing concern of Plaintiff JOHN M. SAICH’S daughter, Plaintiff NICHOLE L. SAICH, his relationship partner, Lori Martinek, and PIaintiffJOHN M. SAICH himself led to a group meeting at Red Fox Ridge on August 3, 2017. Defendant stormed into the meeting and aggressively demanded to know whether he was being “recorded” and “being fired.” Defendant was very aggressive and combative. Plaintiff JOHN M. SAICH had asked Defendant to bring an accounting of his July hours with him (the first ever in the nearly 6 Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF two-year relationship), but he failed to do so, citing alleged “computer problems.” Defendant then refused to surrender any real estate files without copying them for his files. The tension in the meeting was palpable and uncomfortable for all. Plaintiffs JOHN M. SAICH and NICHOLE L. SAICH felt threatened and violated and decided to terminate Plaintiffs" relationship with Defendant. 25. Two days later, on August 5, 2017, Defendant presented his first-ever purported “invoice” and a description of his monthly “work.” It showed only 67.5 hours of work for the month and reflected a new, never-agreed upon hourly rate of $350 per hour. Plaintiffs knew that they had to terminate their relationship with Defendant immediately based on his fraticl: misrepresentation and misappropriation ofpersonal property and lrust. 26. Throughout the relationship, Defendant actively worked to instill fear] dependency and complacency in Plaintiff JOHN M. SAlCH while working to create a false representation of expertise and trustworthiness. He actively provided misinformation, xiiisrepresented Plaintiff JOHN M. SAICH to clients and on projects, and proactively worked Ito keep Plaintiffs from discussing projects, compensation or other issues that could raise red flags about his involvement with Plaintil‘fJOHN M. SAICH. 27. Defendant intentionally created chaos, issues, projects and “work” where none was necessary or requested, causing Plaintiff JOHN M. SAICI-l unwarranted anxiety, fear, pressure and expense. Defendant intentionally created false scenarios and irrational fears in PlaintiffJOHN M. SAICH - situations where he could come in and purportedly “save the day" for Plaintiff JOHN M. SAICH. Defendant worked to ensure his future work and income by promoting Plaintiff JOHN M. SAlCH’s dependency. Defendant actively worked to diminish Plaintiff NICHOLE L. SAICH’S role and dismiss her questions regarding his relationship with Plaintiff JOHN M. SAICH, and belitt'led her abilities and capacity to both her father and others. It was, from the start, a toxic, predatory relationship. Defendant took advantage of Plaintiff JOHN M. SAICH’S age, his emotional distress and his inability to deal with the growing complexity of the world that Defendant was intentionally creating. He worked to separate him from family and friends. He disparagcd Plaintiff JOHN M. SAlCH’s abilities to outside parties 7 Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 28 to build up his own perceived expertise. He abused his fiduciary responsibility and duty m Plaintiff JOHN M. SAICH on a long-term, continua] basis even though he represented himself to all parties as Plaintiff JOHN M. SAICH‘S “agent and representative,” “financial adviser," “primary contact” and “consultant." 28. On August 7, 201 7, Plaintifi‘s, through their counsel, notified Defendant in writing of the immediate and unconditional termination of Plaintifl‘s’ businsss relationship with Defendant, demanded that Defendant cease all work or services for Plaintiffs immediately. and send Plaintiffs’ counsel an itemized description of Defendant‘s services for the month ofAugust to date as soon as possible, and in any event n0 later than 'I‘hursday, August )0, 201 7. Attachéd as Exhibit l is a true and correct copy of Plaintift‘s’ counsel’s termination letter to Defendant. 29. ln that same letter, and consistent with the discussion between Defendant. Plaintiffs, and Ms. Martinek on 'l‘hursday, August 3, 2017, Plaintiffs demanded that Defendant also immediately return t0 Plaintiffs’ counsel all of Plaintiffs’ files and property in Defendant‘s possession, and certify and warrant in writing that Defendant has done so and that Defendant has not retained any hard or sofi ccpies 0f any such files, documents 0r data, and in any event n0 later than Thursday, August lO, 2017. Plaintiffs also demanded that Defendant contact Plaintiffs’ counsel as soon as possible to arrange for the immediate return of Plaintiffs’ files and property, including the key for 2785 Bascom, Unit #64 in Campbell. California. Plaintiff‘s emphasized that it was imperative that Plaintiffs receive all of their files in Defendant’s possession, custody or control promptly, as Plaintiffs need the documents urgently to manage their business and family affairs. 30. On August l0, 2017, Plaintiffs’ counsel sent a follow up email t0 Defendant, a tmc and correct copy 0fwhich is attached as Exhibit 2 and incorporated here by reference, which attached a copy of counsel’s August 7, 2017 letter t0 Defendant demanding that he promptly return Plaintiffs’ personal files and property, including, all real estate appraisals and other financial and business documents. 1n the same communication, Plaintiff JOHN M. SAlCH demanded that Defendant promptly return thc two firearms that Plaintiff JOHN M. SAICH had loaned to Defendant, a doublobarrel lO-guage shotgun and a .22 caliber Colt Woodsman target 8 Case N0. COMPLAINT FOR DAMAGES AND INJUNCTIVH RELIEF U: mum 10 ll 12 13 14 16 pistol. Plaintiff JOHN M. SAICH had loaned Defendant the two firearms after Defendant expressed concerns over his personal safety living remotely on a hill. On the same letter, Plaintiffs demanded immediate repayment of the two loans that PlaintiffJOHN M. SAICH made to Defendant, for $50,000 (home) and $25,000 (car). 31. 'l‘o date, despite Plaintith‘ repeated oral and written demands, Defendant has failed and refused to: (a) return Plainlifi’s’ personal files and property, including all real estate appraisals and other financial and business documents, the key to Plaintiffs’ condominium in Campbell, California, and the two fireamxs described in the immediately preceding paragraph (“Plaintiffls' Personal Property"); (b) provide any accounting ot‘tlte two loans; or (c) repay the two loans. I 32. According to Defendant’s purported “invoice" dated August 5, 2017, Defendanl only worked 67.5 actual hours in July 2017. The Parties‘ oral agreement, however, by Defendant’s own sworn admission (Defendant’s Deposition Transcript in the Marina Plaza Action at pp. 86-90), calls for 160 hours for the agreed $16,000 monthly compensation. Plaintiff" JOHN M. SAICH already paid Defendant $16,000 for his July “services" ($8,000 on June 27, 2017 and $8,000 on July 6, 2017). Further, Plaintiff JOHN M. SAICH paid Defendant another $8,000 (m July 25, 2017, as an advance for Defendant’s services for the period ol‘August 145;, 201 7. Accordingly, Plaintiffs overpaid Defendant in the amount of $9,250 for the month ot‘July (160 hours less 67.5 actua1 hours x $100). 33. Based on Defendant‘s purported “invoice” for his alleged “services” for July 2017, and Defendant’s failure to provide any other invoices to Plaintiffs, 0r any description 01' alleged “work” or “services,“ Plaintiffs are informed and believe, and thereon allege, that Plaintiffs also grossly overpaid Defendant for his alleged “services" during the prior two years as well. Plaintiffs seek in this action the recovery of all such fraudulently-obtained overpayments to Defendant. 34. As of the date of filing of this Complaint, Defendant has failed and refused to comply with Plaintiffs’ repeated oral and written demands for the immediate retum of Plaintiffs‘ 9 Case No. COMPLAINT FOR DAMAGES AND 1NJUNCT1VE RELlEF Persona! Property, for an accounting of Plaintit‘fJOHN M. SAICH’S two loam; to Defendant (car and home), and for repayment of a partial amount that Plaintiffs overpaid Defendant. JURISDICTION AND VENUE 35. This Court has jurisdiction over a1! causes of action asserted herein pursuant t0 thc California Constitution, Article VI, Section 10, because this case is a cause not given by statute Io other trial courts. 36. This Court has jurisdiction over all Defendants because each are individuals. associations, or corporations that are either authorized to conduct or, in fact, do conduct substantial business in the State 0f California. 0r knowingly and intentionally engaged in wrongful conduct directed at California, or knowingly and intentionally caused injury to Plaintiffs in California. 37. The matter is properly filed within the Unlimited Jurisdiction of the Court in that: (l) Plaintiffs seek lnjunctive Relief, which is beyond the jurisdiction of a coun of Limited Jurisdiction; and, (2) the amount in controversy, excluding Plaintil‘f‘s’ statutory claims for an award of reasonable attomeys’ fees, exceeds $25,000.00. I 38. The County of Santa Clara is the proper venue for the matter because the Parties’ oral agreement required performance in this County and a substantial number of Defendants“ wrongful acts, omissions, and failures to perform occurred in this County. flgST CAUSE 0F ACTION Breach of Oral Contracts (Against Defendant STEPHEN W. GETTEL) 39. Plaintiffs incorporate herein by reference Paragraphs l through 38, inclusive, ofthis Complaint as if fully sct forth herein. 40. As alleged above, in or about October 2015, Plaintiff JOHN M. SATCH and Defendant entered into an oral agreement whereby Plaintiff JOHN M. SAlCH agreed to Ipay Defendant $16,000 per month, representing 40 hours of broker and other purported “services” at the rate of $100 per hour. 41. Defendant materially breached the oral contract for services by the conduct alleged IO Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Yd OCOONOKI‘IvaJ above including, inter alia, not performing 4O hours of services per month, fraudulently “billing” for 40 hours per month of services knowing that he performed far less than 40 hours of services‘ fraudulently and unilaterally inflating his agreed $100 hourly fee to $350 per hour, taking advantage of and defrauding both Plaintiffs, and deliberately misleading Plaintiffs regarding the need for, and value of, Defendant’s purported services. 42. As alleged in Paragraph 13 above, in or about April 2015, Plaintiff JOHN M. SAICH and Defendant entered into an oral agreement whereby Plaintiff JOHN M. SAICH would loan Defendant $50,000 at Defendant‘s request for a home loan, and Defendant would repay the loan in an expeditious manner. 43. As alleged in Paragraph 20 above, in 0r about April 2017, Plaintiff JOHN M SAICH and Defendant entered into an oral agreement whereby PIaintift‘JOHN Mt SAICH w0uld loan Defendant $25,000 at Defendant’s request for a new car loan, and Defendant would repay the loan in an expeditious manner. To date. Defendant has only repaid $3,000 of this $25,000 car loan, leaving an outstanding balance of $22,000, notwithstanding Plaintiffs’ payment of $163000 per month t0 Defendant for his alleged “services." V 44. Plaintiffs reasonably relied on Defendant’s oral promises and gave Defendant ttllo loans in the amounts of $50,000 and $25,000. 45. Defendant has failed and refused, and continues to fail and refuse, to repay tlte loaned money to Plaintiffs, in spite ofrepcated requests by Plaintiffs. 46. Defendant’s material breaches of the oral agreements for his consulting services‘ and for repayment of the home and car loans. as alleged above, have proximately caused damages to Plaintiffs in an amount according to proof at trial, including the unpaid loan amounts and overpayments to Defendant for his alleged services. WHEREFORE, Plaintiffs pray judgment against Defendant and DOES 1 through 25 as hereinafter set forth. /// /// Case No. COMPLAXN’I‘ FOR DAMAGES AND lNJUNCTlVlT-l RELIEF Goocwomszwm ll 13 SECOND CAUSE 0F ACTION Fraud (Against Defendant STEPHEN W. GETTEL) 47. Plaintiffs hereby refer to and incorporate each and every allegation set forth in paragraphs 1 through 46, inclusive, ofthis Complaint as though fully set fonh herein. 48. Plaintiffs are informed and believe, and thereon alleges, that Defendant intentionally omitted and misrepresented material facts to Plaintiffs as alleged above -- including without limitation, by intentionally concealing the nature of Defendant’s services to Plaintiffs and misrepresenting Plaintiffs’ purported need for them; fraudulently overbilling and inflating Defendant’s alleged services and hourly rate of pay; taking advantage 0f Plaintiff‘s by misrepresenting his services and overcharging them; misrepresenting issues, conversations and events to create fear and unnecessary alarm in Plaintiffs in order to generate more unneceésfiry “work” for Defendant; and disparaging and defaming Plaintiff‘s and their abilities and capacities lo third panics. ’ 49. Plaintiffs are informed and believe, and thereon allege, that Defendant engaged in a fraudulent scheme to conceal, intentionally concealed and misrepresented to Plaintiffs that Defendant was providing services that were of value to Plaintiffs when no such value exigied, §1i1d that Defendant fraudulently misrepresented Ihe value of, and Plaintiffs’ need for, Defendant‘s alleged services. 50. Piaintiffs are informed and believe, and thereon allege, that Defendant engaged in a fraudulent scheme to misrepresent t0 Plaintiffs (hc true “value” and need for his services, and the nature of the actual “services" that Defendant provided to Plaintiffs. 51. Plaintiffs are informed and believe, and thereon allege, that Defendant knew that his material misrepresentations and omissions were false or made those representations and omissions recklessly and without regard for their truth. Defendant intended that Plaintiffs rely on Defendant‘s knowingly false representations and material omissions to continue to do business with and pay substantial sums to Defendant without Plaintiffs receiving significant value for Defendant’s alleged services. 12 Case Not COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF UI JI- DJ N wfla 52. Plaintiffs did, in fact, reasonably rely 0n Defendant‘s material misrepresentations and material omissions. Over a period of approximately 22-and-onc-half months, Plaintiffs paid Defendant approximately $360,000 in monthly fees, not including commissions paid on the sale of various properties and expenses incurred and paid throughout this same time period, despite several reasons why, but for Defendant’s unlawful and fraudulent conduct, Plaintiffs would never have entered into a business relationship with Defendant, 0r continued such business relationship. 53. Plaintiffs suffered a financial injury as a result 0f Defendant‘s unlawful scheme to defraud them. But for Defendant’s fraudulent scheme, Plaintiffs would not have had to pay the amounts charged by Defendant for the alleged services that he allegedly provided, and Plainllfl's would have based their decisions 0n which consultant(s) and financial advisers t0 use and mxst, and which financial and other business decisions to make, based on merit, price, qualify, performance and suitability of thc service 0r opportunity, and also would not have become embroiled in the costly and timc-consuming Marina Plaza Action. W'HEREFORE, Plaintiffs pray judgment against Defendant and DOES l through 25 Has hereinafter set forth. THIRD CAUSE OF ACTION Breach of Fiduciary Duty (Against Defendant GETTEL) 54. Plaintiffs hereby refer to and incorporate each and every allegation set forth in paragraphs l through 53, inclusive, of this Complaint as though fully set forth herein. 55. While providing consulting, broker and other services to Plaintiffs, Defendant occupied a position of trust and confidence with Plaintiffs and had the authority to exercise discretion in managing Plaintiffs‘ private and personal affairs, including without limitation assisting with real estate appraisals and transactions. Thus, Defendant owed a fiduciary duty to Plaintiffs to affirmatively protect, preserve and enhance Plaintiffs’ interests, to refrain from doing anything that would cause injury to Plaintiffs or that would deprive Plaintith of profit, and to act with the utmost good faith in the best interests ol‘l’laimiffs. 13 Case No. COMPLAINT FOR DAMAGES AND lNJUNC’l’lVE RELIEF -... k) COOC‘QOLIIbbJ 56. Defendant has engaged in multiple acts, as alleged in this Complaint, which injured Plaintiffs, or benefited himself. at the expense of Plaintiffs, in breach of his fiduciary duty of loyalty to Plaintiffs, ificluding without limitation by: a. Breaching his contractual, statutory and common law obligations to Plaintiffs; b. Failing to disclose the nature ofhis alleged services to Plaintiff's; c. Failing to disclose to Plaintiffs the true value ofhis alieged services; d. Fraudulently over-charging for his alleged services to Plaintiffs, and inflating his hourly rate of pay from the agreed $100 hourly rate to $350 her hour without Plaintit‘fs’ knowledge 0r consent; ' I e. Misrepreseming the need for his alleged services to Plaintiffs; f. Failing to return PlaintitTS’ Personal Property to Plaintiffs upon demand; g. Recommending and then unnecessarily prolonging costly, unnecessary projects to ensure his own continued “work" for himself; and h. Concealing his true intentions t0 take advantage 0f, defraud, and grossly overcharge Plaintiffs for his alleged “services,” which were of little, if any, value to Plaintiffs, a1} while advancing and promoting his own interests ahead of Plaintiffs. 57. By the foregoing conduct, Defendant breached his fiduciary duty to Plaintiffs. Defendant’s breach of fiduciary duty caused aciual harm to Plaintiffs resulting in substantial financial loss and business interruption according to proof at trial. 58. Defendant’s acts and omissions were willful and malicious, and were done with the intent to harm Plaintiffs. Plaintiffs arc therefore entitled to an award of exemplary damages according t0 proofat trial pursuant to California Civil Code section 3294. I WHEREFORE, Plaintiffs pray judgment against Defendant and DOES i through 25 as hereinafter set forth. /// /// 14 Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF _ OOOOQON'Jt-‘Awm FOURTH CAUSE OF ACTION Violation of California Elder Abuse and Dependent Adult Civil Protection Act (Cal. Welf. & Inst. Code § 15610.30 - On Behalf 0f Plaintiff JOHN M. SAICH Only) (Against Defendant STEPHEN W. GE’I‘TEL) 59. Piaintiffs hereby refer to and incorporate each and every allegation set forth in paragraphs l through 58, inclusive, ofthis Complaint as though fully set forth herein. 60. Defendant violated the California Elder Abuse and Dependent Adult Civil Protection Act, California Welfare and Institutions Code section 15610.30, by taking financial advantage of Plaintiff JOHN M. SAICH. 6]. As alleged above, Defendant wrongfully took and retained Plaintiffs‘ Personal Property and money. 62. Plaintift‘JOHN M. SAICH was 65 years of age or older and a dependent adult at the time ofsome of Defendant’s wrongful conduct, after December 16, 2016. 63. Defendant wrongfully took and retained Plaintiffs‘ Personal Property with the intent to defraud Plaintiffs. 64. Plaintiff JOHN M. SAICI'I was harmed by Defendant’s wrongful conduct alleged in this Complaint. 65. Defendant’s conduct was a substantial factor in causing Plaintiff JOHN M. SAICH’s harm. WHEREFORE. Plaintiffs pray judgment against Defendant and DOES I through 25 as hereinafter set forth. FIFTH CAUSE OF ACTION Conversion (Against All Defendants) 66. Plaintiffs incorporate by reference paragraphs 1 through 65 of this Complaint as though fully set forth. IS Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF '9.) U1 6 9 10 12 l3 I4 15 16 3 4A 67. Plaintiffs owned and had a right to possess PlaintifTs’ Personal Property when they transferred possession of Plaintiffs’ Personal Property to Defendants based on Dcfendams’ promises to assist Plaintiffs in various real estate and other financial and business transactions. 68. Defendants were temporary bailecs 0f Plaintiffs” Property, and never had, and does not now have, any ownership interest in, or right to possess, I’lainlifl‘s’ Personal Property. Defendants are no longer a bailce of Plaintiffs‘ Personal Property, and thus have no right to possess or exercise any control over Plaintiffs’ Personal Property. 69. Plaintiffs have repeatedly demanded that Defendants return Plaintiffs’ Personal Property, but Defendants have to date failed and refused to do so. 70. 1n refusing to return Plaintiffs’ Personal Property. Defendants are exercising control and dominion over Plaintiffs’ Personal Properly that is inconsistent with PlaintitYs’ rights in Plaintiffs’ Personal Property. 71. Dcfcndants’ intentional exercise of dominion and control over Plaintiffs’ Personal Property, in refusing Io return Plaimil‘fs’ Personal Property to Plaintiffs despite their repeated demands, is wrongful. 72. Plaintiffs still own and have the right to possess Plaintiffs” Personal Property. 73. Plaintiffs have suffered and are continuing to suffer damages as a direct and proximate result of Defendants’ conversion of Plaintiffs’ Personal Property. 74. Plaintiffs arc entitled to specific recovery of Plaintiffs’ Personal Property. 75. In committing conversion, Defendants acted maliciously, fraudulently and with the wrongful and deliberate intention of injuring Plaintiffs and benefiting himself, and acted with an improper motive amounting t0 malice and conscious disregard 0f Plaintiffs’ rights. Accordingly. Plaintiffs are entitled to recover punitive and exemplary damages from Defendants. WHEREFORE, Plaintiffs pray judgment against Defendant and DOES 1 through 25 as hereinafier set Forth. /// /// 16 Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF 16 SIXTH CAUSE OF ACTION Breach of Implied Covenant of Good Faith and Fair Dealing (Against Defendant STEPHEN W. GETTEL) 76. Plaintiffs hereby refer t0 and incorporate each and every allegation set forth in paragraphs l through 75, inclusive, ofthis Complaint as though fully set forth herein. 77. As alleged above, Plaintiffs entered into certain oral contracts with Defendant. to wit: (a) a home loan requiring Defendant’s repayment in the amount of $50,000; (b) a car 102m requiring Defendant’s repayment in the amount of $25,000; and (c) a personal services contract whereby Defendant was to provide cenain consulting and broker services to Plaintiffs in exchange for a monthly fee, calculated based on Defendant’s anticipated hours of service and hourly rate 0f pay. 78. Plaintifi‘s performed, 0r were excused from performing, all of their obligatibns under the contracts. 79. Defendant unfairly frustrated Plaintiffs’ right t0 obtain the benefiXS that they “ere entitled to receive under the contracts by his fraudulent conduct alleged above, including without limitation by misrepresenting the value 0f Defendant’s alleged services, inflating Defendaht’s agreed hourly rate of pay. misrepresenting the purported need for his services, and by not repaying the two loans in a timely manner upon demand, or at all. 80. Defendant’s conduct resulted in harm to Plaintiffs in an amount to bc proved at trial Ofthis action. WHEREFORE, Plaintiffs prayjudgment against Defendant and DOES 1 through 25 as hereinafter set forth. SEVENTH CAUSE 0F ACTION STATUTORY UNFAIR COMPETITION Cal. Bus. & Prof. Code §§ 17200, et seq. (Against All Defendants) 8]. Plaintiffs hereby refer t0 and incorporate each and every allegation set forth in paragraphs l 1hrough 80, inclusive, ot’this Complaint as though fully set forth herein. l7 Case N0. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF OOWNOMAMN~ _ 82. Defendants‘ conduct as described herein constitutes unlawful, unfair and/or fraudulent business acts or practices prohibited by California Business & Professions Code sections 17200, e! seq. 83. As a direct and proximate result of Defendant’s conduct alleged herein, Plaintiffs have suffered damages and Defendants have profited. 84. Defendants’ unlawful conduct was a substantial factor in causing Plaintiffs’ damages. 85. By this action, Plaintiffs seek fun restitution of Dcfendants’ illvgonen gains. an injunction t0 enjoin and prohibit Defendants’ unlawful conduct, and a complete accounting. WHEREFORE, Plaintiffs pray judgment against Defendant and DOES l through 25 as hereinafter set forth. EIGHTH CAUSE 0F ACTION Unjust Enrichment (Against All Defendants) 86. Plaintiff hereby refers t0 and incorporates each and every allegation set forth in paragraphs I through 85, inclusive, ohhis Complaint as though fully set forth herein. 87. Defendants benefited in each and all ot‘the acts alleged hereinfi and have benefited from the retention, use, investment and reinvestment 0f the benefits thereof. By “billing“ Plaintiffs for his unnecessary services, acting as an unnecessary intermediary, and by inflating and misrepresenting the value or and the need for his alleged services, Defendant STEPHEN W. GETTEL derived financial gain without providing precious little, if any, tangible benefit to Plaintiffs. Plaintiffs are informed and believe, and thereon allege, that Defendants sharsd in the benefits that Defendant STEPHEN W. GETTEL received from unnecessarily inserting itself as an intermediary between Plaintiffs and their third party business partners and agents, by providing unnecessary services, by overbilling for thc value of his services, and by recommending unnecessary services and financial and real estate transactions. Plaintiffs are informed and believe, and thereon allege, that Defendants received multiple advantages from their fraudulent 18 Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF I‘Q Una») OOOCQQ 16 and wrongful conduct, including without limitation substantial monies paid by Plaintiffs for his fraudulently procured and billed services. 88. As a result, Defendants have been unjustly enriched to their benefit and (o the detriment of Plaintiffs. If Defendant had not misrepresented his qualifications, experience and services to Plaintiffs, Plaintiffs would have selected a real estate appraiser and broker, and financial consultants, based on Plaintiffs” needs and the abilities of the professional services provider, and Plaintiffs would not have paid the exorbitant fees charged by Defendant STEPHEN W. GETTEL for services that were of minimal, if any, actual value, and would not have incurred the time delays and financial losses that they incurred as a result of Defendant STEPHEN W. GETTEL’S fraudulent conduct and performance. 89. As a result of" the foregoing unjust enrichment, Delbndants have a duty to Plaintiffs l0 account for and make restitution t0 Plaintiffs of all monies, property, assets, and all of the benefits received or to be received, directly 0r indirectly, by Defendants as a result 0f the retention, use, investment and reinvestment thereof. I WHEREFORE, Plaintiffs pray judgment against Defendant and DOES 1 through 25 as hereinafter set forth. NINTH CLAIM FOR RELIEF An Accounting (Against All Defendants) 90. Plaintiff realleges and incorporates herein by reference the allegations of paragraphs I through 89, inclusive, of this Complaint as though fully set fcmh herein. 91.. As alleged above. Plaintiff‘s and Defendant were in a fiduciary relationship during the time of their business relationship such that Defendant owed a fiduciary duty lo Plaintiffs to affirmatively protect, preserve and enhance Plaintiffs’ interests‘ to refrain from doing anything that would cause injury t0 Plaintiffs 0r that would deprive Plaintiffs of profit, and to act with the utmost good faith in the best interest 0f Plaintiffs. 92. ln addition, Defendant had continuing duties lo deal honestly and fairly with Plaintiffs, including without limitation by not intentionally concealing the facts that Defendant’s 19 Case Nol COMPLAINT FOR DAMAGES AND lNJUNCTlVE RELlEF alleged “services” were unnecessary and incompetent, and that Defendant was not providing anywhere the value that Plaintiffs paid him for his alleged services. 93. At all times during his relationship with Plaintiffs, Defendant was in control of multiple aspects of Plaintiffs’ business, including without limitation the management of their real estate investments. Defendant was a trusted agent of Plaintiffs, responsible for key aspects of Plaintiffs’ business and investment interests. 94. Defendants have unlawfully received certain fees and other income from the wrongful conduct described above. The precise amount of such sums is presently unknown to Plaintiffs and cannot be ascertained by them without a full, accurate accounting. ' 95. Plaintiffs demanded a full accounting from Defendant, including by providing by August 10, 2017, records of all loan repayments, hours allegedly worked by Defendant durinéithe month of August 2017 before his termination, all invoices for services allegedly rendered, and related supporting documents. 96. Defendant has failed and refused to provide the requested accounting, or even to respond to Plaintiffs’ repeated oral and written requests for an accounting. WHERBFORE, Plaintiffs seek by this Cause of Action a complete accounting as they previously demanded informally from Defendant, as alleged above. TENTH CAUSE OF ACTION Common Count (Against All Defendants) 97. Plaintiffs incorporate herein by reference Paragraphs l through 96, inclusive, ot‘this Complaint as if fully set forth herein. 98. Defendant owes Plaintiffs approximately $75,000 in unpaid or unaccounted for loans from Plaintiffs to Defendant. 99. Defendant agreed, by words and conduct, that he is obligated to repay to Plaintiffs approximately $75,000, which include the $50,000 home loan and the $25,000 new car loan. which PlaintiffJOHN M. SAICH provided to Defendant. 2O Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF O NO 00 Q O\ LI! h DJ [Q ~- .._ ~- ._. w ~ _ _.. -a 00 \3 3\ U! #- UJ [\J \O 2O O O 100. Defendant promised, by words and conduct, t0 repay the stated amounts t0 Plaintiff JOHN M. SAICH. 101. Defendant has paid only $3,000 on the $25,000 car loan, and has not paid any 0f the remaining amounts owed on the loans. WHEREFORE, Plaintiffs pray judgment against Defendant and DOES 1 through 25 as hereinafter set forth Plaintiffs. ELEVENTH CAUSE OF ACTION lnjunctive Relief (Against All Defendants) 102. Plaintiffs reallege and incorporate herein by reference the allegations of paragraphs l through 10] of this Complaint as set forth above. ’ 103. Defendant‘s wrongful retention of Plaintiffs’ Personal Property has seriously interfered with Plaintiffs’ management of their private and persona! atTairs, including without limitation their need for the underlying real estate and other financial transactions documents, which Plaintiffs require to plan their affairs, pay taxes, and accounting. 104. Plaintiffs have no adequate remedy at law to compel Defendant to cease his wrongful retention of Plaintiffs’ Personal Property. Unless the Coun grants an injunction, Plaintiffs will be compelled to prosecute a multiplicity of actions to recover Plaintiffs’ Personal Property and to enjoin Defendant from using it. Plaintit‘fs’ damages are irreparable because lit would be extremely difficult to ascertain the amount of compensation that will afford Plaintiffs adequate and timely relief ifDefendant is not enjoined at this time. PRAYER WHEREFORE, Plaintiffs pray for relief” and judgment against Defendants, and each 0f them, as follows: V i. For preliminary and permanent injunctive relief and an Order by the Ceurt requiring Defendant to immediately retum to Plaintiffs’ counsel all of Plaintit‘t‘s‘ Personal Property. 2| Case No. COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF IQ J-‘A‘VJ U: mQQ ii. iii. vi. vii. O O A full and accurate accounting 0f the two loans that Plaintiff JOHN M SAICI-I made to Defendant, for $50,000 (home) and $25,000 (car). A writ for immediate possession of Plaintiffs’ Persona! Property, which is being wrongfully withhcld by Defendant, pursuant t0 California Civil Procedure section 512.010. For compensatory damages in an amount according 10 proof at trial, including repayment of the home and car loans. based on Defendant‘s material breach of his oral contracts and failure to repay the amounts owed, plus interest pursuant to Code ofCivil Procedure section 3287(a). ' For consequential and incidental damages in the amount of all foreseeable loses to Plaintiff‘s caused by Defendant’s breach of the oral contracts, according Io proof; For attorney’s fees and costs of suit; and For such other relief as the Court deemsjust and proper. JURY TRIAL DEMANDED Plaintiffs demand a trial by jury 0n all issues triable of right by jury. Dated: August 11, 2017 PROCOPIO, CORY, HARGREAVES & SAVITCH LLP Tyler M. Paetkau Olga Savage Attorneys for Plaintiffs JOHN M. SAICH and NICHOLE L. SAICH 22 Case No. , COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF EXHIBIT 8 Deposition of Reporter's Transcript of Proceedings SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION JOHN M. SAICH and NICHOLE L. CASE NO.: 17CV314350 SAICH, Plaintiffs, and doing business as GETTEL & ASSOCIATES, and DOES 1 through 25, inclusive, ) ) ) ) ) i STEPHEN W. GETTEL, individually) ) ) ) ) Defendants. ) ) REPORTER'S TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE BETH MCGOWEN DATE: January 4, 2021 TIME: 1:51 p.m. LOCATION: Superior Court 161 North First Street Department 22 San Jose, California 95113 REPORTED BY: Irene A. Resler Certified Shorthand Reporter License Number C-7685 Deposition of Reporter's Transcript of Proceedings APPEARANCES: P R O C E E D | N G S THE COURT: Now we'll call line number one. 3 3 Good afternoon. 4 For the Plaintiffs: 4 MR. PAETKAU: Good afternoon, Your Honor. 5 PROCOPIO, CORY HARGREAVES & SAVITCH LLP 5 Tyler Paetkau for the plaintiffs, John and Nichole 6 18:1 7TS\£)LuEtll$Cl3\/Ia'li1Ez)pr‘r%EKAé/gnue 6 Saich. Suite 200 7 Palo Alto, California 94304 7 THE COURT: Nice to see you. 8 tTyflzr.gggfsggégggcopiocom 8 MR. PAETKAU: Happy New Year. 9 9 | do have a stipulation for the court reporter. 10 Also present: 10 THE COURT: If you would hand that to the ll DONALD C. SCHWARTZ ll deputy. 12 (appearmg telephomcany) 12 | understand we're in a default. We're 13 13 proceeding by way of declaration. You may opt to 14 14 proceed by offer of proof. We'll simply have the 15 15 witnesses confirm their information, and if you have a 16 l6 proposed judgment, | would ask that you pass that at 17 17 this time. 18 18 MR. PAETKAU: Okay. Ithinkthe mostefficient 19 l9 way, Your Honor, and we'll be brief, is to call my two 20 20 clients, fatherand daughter. We'll make it brief. We 21 21 submitted a mountain of paperwork, but | just want to 22 22 get the highlights so you can see their demeanor. 23 23 THE COURT: That's fine. I'm happy to do that. 24 24 And we don't have plexiglass here, so often we 25 Page 2 25 have had the witness in a default be at the table next Page 4 l l to you. ls that fine? 2 EXAMINATION INDEX 2 MR. PAETKAU: What would you prefer, Your 3 3 Honor? 4 EXAMINATION OF JOHN SAICH PAGE 4 THE COURT: Ithink it's -- it makes no 5 BY MR. PAETKAU ............ 6 5 difference to me. Whatever you're comfortable with. | 6 6 don't know if you have documents you need them to look 7 EXAMINATION OF NICHOLE SAICH 7 at. 8 BY MR. PAETKAU ............ 20 8 MR. PAETKAU: Afew. 9 9 THE COURT: Then | would ask that they stay 10 10 next to you so that we're not passing things back and 11 ll forth. 12 12 (Brief interruption in the proceedings) 13 13 THE COURT: Who do we have on CourtCaII? 14 14 MR. SCHWARTZ: I'm just listening, Your Honor. 15 15 I'm Donald Schwartz. 16 l6 THE COURT: Thank you. 17 17 Good morning, sir. Good afternoon. Your name, 18 18 please. 19 l9 THE WITNESS: My name is John, J-o-h-n. Last 20 20 name is pronounced Saich. That's S, as in Sam, a-i-c-h. 21 21 THE COURT: And if you would please raise your 22 22 right hand and be sworn at this time. 23 23 /// 24 24 /// 25 25 /// Page 3 Page 5 Deposition of Reporter's Transcript of Proceedings JOHN SAICH, called as a witness, after having been duly sworn by the Certified Shorthand Reporter to tell the truth, the whole truth, and nothing but the truth, testified as follows: THE COURT: Thank you. Go ahead. MR. PAETKAU: Thank you, Your Honor. I'm just going to hand the clerk the two binders that were -- the documents that we'll be A. Okay. Q. So just for some context here, can you briefly describe your educational background and your work history briefly? A. l went to University of San Francisco for four years, and afterwards | moved to San Joaquin and began working on the family farm, and then from that point | began buying properties, improving them and moving on to other properties. 10 referring to, and | have one for the witness as well. 10 Q. Okay. How did you first meet the defendant, ll May | begin? ll Steven Gettel? 12 THE COURT: Please. 12 A. That was in 2005, and I had been served by the 13 EXAMINATION BY MR. PAETKAU 13 City of Watsonville with an eminent domain suit to 14 BY MR. PAETKAU: 14 acquire a property that I owned in Watsonville, and l l5 Q. Good morning. You've been sworn in. Could you 15 was looking around for an MAI appraisal firm, and l l6 state and spell your name again for the record, please? l6 contacted John Hanna, Hanna and Associates, and we met 17 A. First name, John, J-o-h-n. Last name is 17 out at the subject property at 37 Davis Avenue in 18 pronounced Saich, S, as in Sam, a-i-c-h. 18 Watsonville. l9 Q. Okay. Now, are you a co-plaintiff in this l9 Q. Did Mr. Hanna refer you to Mr. Gettel? 20 lawsuit? 20 A. They both showed up at the same time. 21 A. Yes. 21 Q. Okay. 22 Q. Who is your co-plaintiff, your other plaintiff? 22 A. l believe they had a business relationship. It 23 A. My daughter Nichole. 23 might have been Hanna and Gettel. 24 Q. All right. And do you recall submitting a 24 Q. And | realize we're talking about quite a few 25 declaration in this case in support of defaultjudgment? Page 6 25 years here starting in 2005. We're going to try to Page 8 l A. Yes. l expedite this as much as possible because you already 2 Q. And I'd just ask you to take a look in the 2 have a lot of documents submitted. 3 binder, Volume One, Exhibit 10. 3 Can you tell me what Mr. Gettel did for you and 4 A. One, 10. 4 your daughter Nichole let's say from 2005 to 2010? 5 Q. Do you recognize Number 10, Mr. Saich? 5 A. That's a long period of time, but in 2005 he 6 A. Yes. 6 worked on appraisals for the litigation that occurred in 7 Q. What do you recognize that to be? 7 Santa Cruz County on the property that I owned on Davis 8 A. That's my declaration. 8 Avenue. 9 Q. Have you had an opportunity to review it since 9 THE COURT: Please forgive me for a moment. 10 you signed it? 10 Mr. Schwartz on the phone listening in, please ll A. Yes. ll mute your phone. We can hear noise from your phone 12 Q. And if you look at the last page of your 12 line. 13 declaration, it's page 16, is that your signature? It's 13 MR. PAETKAU: Thank you, Your Honor. 14 before the exhibits. 14 BY MR. PAETKAU: 15 A. That's my signature. 15 Q. What did Mr. Gettel tell you about his l6 Q. Okay. And did you sign it on the date l6 experience or his expertise when you first met him? 17 indicated there? It looks like May 3rd, 2019. 17 A. He told me that he was an MAI appraiser and he 18 A. Yes. 18 was well qualified to do the job, and he had the primary l9 Q. And | know it's a relatively long declaration. l9 responsibility on the Davis case more so than John 20 Having had a chance to review it, is everything in there 20 Hanna. 21 still true and correct to the best of your knowledge? 21 Q. Did Mr. Gettel ever tell you that he was a real 22 A. Yes, l believe it is except for some damages, 22 estate broker? 23 and l have a question about two of the checks that l 23 A. Laterl learned that he was -- that he had his 24 wrote out to Mr. Gettel. 24 broker's license, but at some point he had relinquished 25 Q. Okay. We'll get to that. 25 Page 7 his real estate broker's license and had stopped paying Pa e 9 Deposition of Reporter's Transcript of Proceedings the fees to have it active. Q. And what was your -- when you heard that, what did you tell Mr. Gettel with regard to the real estate Hcense? A. Well, for the eminent domain situation, I needed an appraiser, an MAI appraiser, and he had MAI credentials as well as Mr. Hanna, l believe, and so that fit the bill. Q. At some point later did you start working more Let me just cut at a couple things. So one is if you turn to the same Exhibit 10, Exhibit 1 to your declaration, and if you can describe what that is. A. That is Mr. Gettel's engagement letter for working on my various projects and things that I needed done. Q. So it looks like the deal was $100 an hour, 4O hours a week, $16,000 a month is what it says. A. Yes. 10 with Mr. Gettel beyond just the appraisal for the 10 Q. And did you pay him that same amount, 16,000 ll Watsonville property? ll per month over a period of time? 12 A. There was a time in 2008, 2009 or so on a 12 A. Yes. 13 renegotiation of a Bank of America lease that Mr. Gettel 13 Q. How long a period of time did you pay him 14 worked briefly on along with Jim Dyke of Neumiller and 14 16,000 a month? 15 Beardslee, the law firm that l was using in Stockton, l5 A. From that period of time, March 1st about l6 California, and at that time | knew that ljust went in l6 until, oh, through August of 2017, | believe. 17 and saw my CPA in Stockton a couple of weeks ago, and l 17 Q. Okay. If you turn to the next, Exhibit 2 to 18 was looking primarily for the amounts of moneys that l 18 your declaration, the very next one, does that reflect l9 had expended during that time for the renegotiation in l9 the payments of $16,000, payments that you made to 20 2008, 2009 l believe it was during the financial 20 Mr. Gettel? 21 meltdown and -- 21 A. Yes. 22 THE COURT: Excuse me. | don't think we're 22 Q. Okay. And then the next -- and the last 23 clear about what's happening here today. This is a 23 exhibit here, Exhibit 3 to your declaration, do you 24 default prove-up. There are often five, six, eight, ten 24 recognize whatthat is? 25 default prove-up hearings on this calendar. Page 10 25 A. Yes, l do. Page 12 l Sir, is everything that was contained in your l Q. And what do you recognize this to be? 2 declaration true and correct? 2 A. This -- this is the one and only statement that 3 THE WITNESS: Yes. 3 was presented by Mr. Gettel that we asked for, my 4 THE COURT: ls there any modification 0r update 4 daughter, my girlfriend at the time and myself, in 5 that needs to be made? 5 August that he submitted to us. 6 MR. PAETKAU: To your declaration. 6 Q. Okay. Thejudge can read it. ljust have a 7 THE COURT: T0 your declaration. 7 couple questions for you. There's -- obviously there's 8 THE WITNESS: Only perhaps damages, maybe 8 some various charges there. Just to be clear, you paid 9 attorney's fees, and also | have a question about the 9 him 16 grand a month, and the only time that he provided 10 checks that | saw in there, if they were correct. 10 a statement was the last month in August of 2017? ll THE COURT: Well, the questions go to your ll A. Yes, when we asked for it. 12 lawyer not to the Court. Okay? 12 Q. Was that also the time when you attempted to 13 THE WITNESS: For the car loan of 20,000, 13 end your professional relationship with Mr. Gettel? 14 25,000 -- 14 A. Very close. 15 THE COURT: Excuse me, sir. If you have a 15 Q. Okay. And | see on Exhibit 10, Number 3 to l6 question for your lawyer, it should not be on the l6 your declaration, there's some services there. For 17 record. We don't want to hear that. So we'll briefly 17 example, on August 5, 2017, there's a billing entry -- 18 pause and let you ask your lawyer a question, but that's 18 I'm sorry. The billing entry is July 5th, 2017. San l9 not to be part of the record. | don't want to hear the l9 Jose Airport, $875. Did you -- 20 legal advice that you receive. 20 A. Okay. San Jose Airport pickup on the 21 Are you asking the question now, sir? 21 original -- 22 BY MR. PAETKAU: 22 Q. If you look on July 5th. 23 Q. So question, answer. Okay? No colloquy. We 23 A. Yes. 24 can at a break if you have questions. Her Honor has 24 Q. Did you authorize that charge by Mr. Gettel? 25 read everything. We don't need to repeat everything. Page ll 25 A. No. l was shocked by this entire statement. l Page l3 Deposition of Reporter's Transcript of Proceedings 10 did not authorize Mr. Gettel at 350 an hour. We had an agreement for supposedly $100 an hour for 40 hours a week. Q. Okay. Now -- A. That is an extravagant, ridiculous amount of money. Q. Okay. Could you have hired a driver at less than $875? A. Absolutely. Q. Let me just go through a couple of questions 10 simpler. He wasn't taking care of things, and l was just filled with anxiety constantly, and l was worrying about the costs that were accumulating towards endeavors that I soon came to realize would never take place. Q. That's covering the declaration. How has it affected your health, your emotional health, mental health? A. anymore. | have almost a constant amount of depression, l am anxious all the time. l don't sleep anxiety during this lawsuit which has taken place before ll about the services he's listed here. Go to the next ll and during the entire length of Mr. Gettel's employment. 12 page of the invoice. There's an entry on -- two entries 12 Q. Let me ask -- 13 on July 10, 2017, landscape maintenance, mow, trim, 13 A. My blood pressure is just off the charts. 14 fertilize and blow, $700, two hours, and then again on 14 Q. Did Mr. Gettel ever say anything that was 15 July 10th, tractor mowing, 2.5 hours at 875. Did you 15 threatening to you and made you feel fearful of him? l6 authorize either of those charges on July 10th? l6 A. When he came to my home under the guise of some 17 A. Those are falling pretty close together. We've 17 sort of assessor situation, he -- under the guise of 18 got July 10th, 700. You've got July 10th, 875. A day 18 appearing for an assessor type thing, he then presented l9 later, 350. On 7/11, 1,400. And on 7/12, $1,225. | l9 me with a commission schedule on the Bank of America 20 haven't got my calculator. That appears to be 20 lease saying that he thought that l owed him hundreds of 21 approximately around $3,500. Okay? And that's how many 21 thousands of dollars, and I was in disbelief. l said, 22 hours? Two, six, seven and a half, ten and a half. 11 22 “What are you talking about? I've been paying you 23 hours. That's in July. I hire people to mow my field 23 $16,000 a month to handle everything." 24 for $15 an hour, and it takes them three to four hours. 24 Q. So | think the judge has heard a lot and read a 25 So that's 45 to $60 not $3,500. That's terrifyingly 25 lot. Just to change hands, Bank of America, where is Page 14 Page 16 l ridiculous. l the lease at? 2 Q. Let me ask, did you question Mr. Gettel during 2 A. Cupertino. 3 the relationship whether he was working the hours that 3 THE COURT: Counsel, | know it's in Cupertino 4 he was claiming, the 40 hours a week? 4 again. 5 A. There -- | had my suspicions whether he was 5 MR. PAETKAU: Okay. Got you. 6 working his full hours or not, and there was an evening 6 THE COURT: We proceed by way of declaration on 7 out at my property when we were sitting out on the front 7 default judgment. There's no opposition. There's no 8 porch, and l asked Mr. Gettel if he was working all the 8 contrary evidence. Please keep that in mind. | would 9 time that he was supposed to be working, the 40 hours a 9 like to hear from our other witness. 10 week. Instead of responding in a polite, business-like 10 MR. PAETKAU: Okay. Thank you, Your Honor, ll way, he started losing his mind and making faces. ll unless you have something else or the Court has 12 THE COURT: Counsel, I'm going to interrupt you 12 questions for Mr. Saich. 13 again. | think you misunderstand the nature of this 13 THE COURT: Has there been any contact with the 14 proceeding. | have the declaration of both parties. 14 defendant and any return of the personal property 15 MR. PAETKAU: Okay. | understand, Your Honor. 15 including the firearms? | know that some files were l6 |'|| move on. l6 returned that looked like there was some question about 17 THE COURT: Thank you. 17 whether they were the complete files or not. 18 BY MR. PAETKAU: 18 MR. PAETKAU: Correct, Your Honor. It's l9 Q. The only thing | want to focus on is what's not l9 unfortunate, but we've got a separate lawsuit in Santa 20 already covered, so how has this affected you, your 20 Cruz and now a third lawsuit in Santa Cruz which is 21 emotional state, your mental health of the treatment by 21 still pending. We believe it embraces the same subject 22 Mr. Gettel? 22 matter. 23 A. Over the course of the period of time when my 23 THE COURT: Are you moving party in that case? 24 daughter and l were paying the $16,000, l was becoming 24 MR. PAETKAU: No. We're defending. 25 increasingly suspicious because my life was not becomggge 15 25 THE COURT: Thank you. Page l7 Deposition of Reporter's Transcript of Proceedings MR. PAETKAU: Mr. Saich and his daughter are defending in the second Santa Cruz action. THE COURT: All right. MR. PAETKAU: So we don't have -- we would like to get a certification that everything has been returned or destroyed. We don't have the two firearms which are noted in the declaration, so -- and we really have no -- l ma‘am, be sworn. NICHOLE SAICH. called as a witness, after having been duly sworn by the Certified Shorthand Reporter to tell the truth, the whole truth, and nothing but the truth, testified as follows: THE COURT: Thank you. Go ahead. 8 you'll hear from Nichole, but she's very fearful of 8 THE CLERK: And your name. 9 Mr. Gettel because of the firearms. 9 THE WITNESS: My name is Nichole Lynn Saich. lO THE COURT: I've read her declaration, and | lO Do you need me to spell that? I'd be happy to do so. ll understand that they have homes in proximity to one ll THE CLERK: No. 12 another. 12 EXAMINATION BY MR. PAETKAU l3 MR. PAETKAU: That‘s correct, Your Honor. l3 BY MR. PAETKAU: 14 That's correct. 14 Q. Thank you. Good afternoon, Ms. Saich. We'll 15 THE COURT: Well, regardless of what happens in 15 be brief because the Court already has a lot of 16 Santa Cruz, he has not appeared in this action, so it is 16 paperwork. l7 simply a question of what you are able to prove in this l7 So just to not duplicate but to add to it, to l8 case, and in defaults we do not typically grant any form 18 what your father has already testified, are you fearful 19 of punitive damage or relational suffering; however, the 19 currently of Mr. Gettel? 20 Court is prepared to return the payments made and order 20 A. Yes, absolutely. 21 the return of the personal property as well as the 21 Q. Why is that? 22 destruction of any documentary evidence that he may 22 A. Receiving mail at my front door demanding money 23 retain that has hot been returned if you question 23 when I'm represented by legal counsel feels threatening. 24 whether he might have kept something. 24 Knowing that he has purchased ammunition for the guns 25 MR. PAETKAU: That would be helpful, Your Page 18 25 that he is saying that he supposedly doesn't have leadsPage 20 l Honor. | think all we're looking for is the l me to believe that he does in fact has those guns. 2 representation that he has not kept copies and he is not 2 Q. How close does he live to you? 3 using them. 3 A. It's four miles. About a ten-minute drive. 4 THE COURT: | understand, but he has not 4 Q. And did Mr. Gettel say anything to you that 5 appeared in this case, so this Court cannot require that 5 alarmed you or you felt threatened by? 6 of him, which is why | would order the destruction and 6 A. He would make veiled threats that if something 7 return, but that's the best that | can do under default. 7 were to happen to him where he had a terminal illness or 8 MR. PAETKAU: Understood, Your Honor. 8 had some sort of stage 4 diagnosis that he would have 9 So Mr. Saich, you are excused. 9 no issue or hesitation to kill the people that have 10 THE WITNESS: Leave this here? 10 harmed him in his life and would gladly spend his days ll MR. PAETKAU: You can leave that, yes. ll in jail to be able to carry out that goal. He would 12 I apologize, Your Honor. I‘ve done defaults in 12 mention names. He mentioned this often. He would 13 different courts, and sometimes they want a fuII-on 13 mention names rather than just, "0h, | think about doing 14 prove-up. Sometimes it‘s all by paper. 14 this." He would name people that he felt this way 15 THE COURT: Well, our local rules allow you to 15 towards, and it led me to feel that if my dad is working 16 proceed and rely on those declarations. 16 so closely with this man, will there be a moment when IE 17 MR. PAETKAU: Thank you, Your Honor. We'll be 17 decides that he doesn't like what's happening and have 18 brief. 18 us be on that list in his mind? So yes, l am very l9 MR. SAICH: Thank you, Your Honor. l9 fearful and afraid of this man. 20 THE COURT: Thank you. 20 Q. If you turn to Exhibit 13, please, in the 21 | understand that this party has some different 21 binder. Do you recognize Number 13? 22 relief requested, but I'd like you to make sure that 22 A. This is my declaration that I submitted to the 23 they are not cumulative. 23 court. 24 MR. PAETKAU: Right. 24 Q. And have you had a chance to review it since 25 THE COURT: So please raise your right hand, 25 you signed it? Page l9 Page 21 Deposition of Reporter's Transcript of Proceedings A. Q. And is everything in the declaration still true | have. and correct? for a depo meeting, and I was insistent that he not come with us, but he was more insistent that he go. He absolutely would not let me attend this meeting without 4 A. Yes. 4 him driving. | didn't realize until I received this 5 Q. If you look at the last page, eighthigaigg 5 document that he was going to charge nearly $3,000, 6 A. That is my signature. 6 $2,800, just to drive me to and from a deposition prep 7 Q. And did you sign it on or about the dfi 7 meeting that I adamantly did not want him there for. 8 indicated there? 8 Q. How long did the depo prep meeting last? 9 A. | did. 9 A. Maybe less than two hours, about an hour and a 10 Q. Okay. Have you made a demand for the return of 10 half. It took us maybe an hour and a half to get there ll your personal property, real estate and financial‘ ll and an hour and a half to get back. 12 records on Mr. Gettel? 12 Q. Did Mr. Gettel attend the meeting with you and l3 A. We have. l3 the attorneys? l4 Q. And to your knowledge, does he still have l4 A. No. 15 possession of those documents? 15 Q. So he waited and then drove? 16 A. Yes, l believe so, since | believe he's been l6 A. Yes. l7 using those documents in another lawsuit filed against: l7 MR. PAETKAU: Okay. That's all | have unless 18 us, so he is using them and still possesses them. l8 the Court has any questions for Ms. Saich. l9 Q. And just last question. How has this affected l9 THE COURT: Have you had any direct contact 20 your emotional health, the conduct by Mr. Gettel and 20 with the defendant? 21 your relationship with him? 2l THE WITNESS: My most recent contact from him 22 A. | mean, this has been a veryjarring ordeal to 22 was receiving the demand letter for the $475,000 in the 23 find out that this man has guns, has tried to purchase 23 mail, and | -- he also had my dad using a P.O. box at 24 guns and was denied and bought all this ammo. For him 24 the same post office that he uses, and to help my dad | 25 to have so much of my personal information is scary. Page 22 25 was going to pick up the mail at the P.O. box, and Page 24 1 Yeah, there's worry and fear and anxiety l before parking | did see him inside. He‘d already 2 surrounding what this individual might do with my 2 engaged in this lawsuit, and | didn't want to have 3 information or with these firearms, and | don't know 3 contact, so | immediately left. | don't know if he saw 4 what his state of mind is or what it would take for him 4 me or not, but I've since changed my habits. | don't go 5 to maybe do more than he already has. 5 to that post office anymore. 6 Q. Okay. Just one last question. I asked your 6 THE COURT: All right. Counsel, I understand 7 father about an invoice that Mr. Gettel submitted at the 7 that you also are making a request for attorney‘s fees. 8 end of the relationship. That's -- if you go to tab 10, 8 MR. PAETKAU: Yes, Your Honor. Exhibit 63 is 9 and it‘s Exhibit 3, and if you turn to Exhibit 3 of that 9 our redacted invoice. There's an elder abuse claim, and 10 declaration. 10 so for whatever reason the legal work was really to try ll So first of all, do you recognize this Exhibit ll to get Mr. Gettel to show up and answer the complaint, 12 3 to your father's declaration? 12 so that‘s why it's in there. We did redact some entries l3 A. | do. This is the one and only invoice that he l3 that are unrelated, the Santa Cruz actions, and there's l4 gave to us for his supposed work done. l4 a bankruptcy action we filed and redacted. We did not 15 Q. And how did he present this invoice? 15 seek reimbursement for those. 16 A. We had asked for it and for him to meet with us l6 THE COURT: As | understand it from looking at 17 one day, and he showed up late and didn't have any l7 the file, both the bankruptcy has been dismissed and the 18 information with him stating computer problems, and | 18 appeal has been dismissed as well? l9 believe this was submitted after that meeting in August l9 MR. PAETKAU: So the bankruptcy was dismissed 20 of 2017. 20 by Judge Hammond without prejudice. Judge Kulkarni 21 Q. And | see -- I'm not going to go through every 2l denied Mr. Gettel's motion to set aside the default. He 22 entry, but | see there's a charge here on July 20th, 22 filed a writ. That was denied on December 22nd by the 23 2017, eight hours. It says, "SF, Nichole Saich, Gayle 23 Sixth District, and the SLAP case in Santa Cruz is also 24 Conner, depo prep meeting." 24 on appeal by Mr. Gettel, so that's separate. 25 A. Yes. I needed to go to San Francisco to prep Page 23 25 THE COURT: I'm speaking only ofthis matter. Page 25 Deposition of Reporter's Transcript of Proceedings MR. PAETKAU: Yes. Okay. THE COURT: So is the matter submitted? MR. PAETKAU: Yes, Your Honor. THE COURT: All right. Our minute order will reflect a brief history of the case. The case was filed quite some time ago. | believe it was a 2017 filing. And by the time that the case was filed, the petitioner had already achieved the age of 65 or older, so he does qualify factually under the elder abuse statutes for MR. PAETKAU: No. lthink you've covered it, Your Honor. Thank you very much for your time. THE COURT: I'm sure this has been a frustrating and drawn-out experience. | read in Judge Stolker‘s prepared tentative ruling that no small part of it was due to the shortage of staffing in our Clerk‘s office which led to the additional delay in the entry of the defaultjudgment, and for that you have my apologies. Thank you. 10 protection. 10 MR. PAETKAU: Thank you very much, Your Honor. ll The Court through Judge Kulkarni in January of ll (The proceedings concluded at 2:33 p.m.) 12 2019 issued an order directing the Clerk's office to 12 13 complete the entry of default. Default by the Clerk was 13 l4 in fact entered, and in September ofthis past year, l4 15 2020, Judge Kulkarni further ordered that defendant's 15 16 motion to set aside the default be denied. 16 17 This Court specifically references and 17 18 incorporates by reference Judge Kulkarni's decision from 18 l9 January 25th of 2019 ordering the entry of default and l9 20 Judge Kulkarni's order from September of 2020 denying 20 21 the motion to set aside the default. 21 22 Given then that this is the prove-up hearing 22 23 relying on those orders from Judge Kulkarni, 23 24 Petitioners‘ request is granted for default judgment. 24 25 The demand of the complaint, $208,000, is awarded 25 Page 26 Page 28 l jointly to both Petitioner Nichole and John -- l STATE OF CALIFORNIA) 2 MR. PAETKAU: Saich. 2 COUNTY OF SANTA CLARA) 3 THE COURT: Saich. Thank you. I'm very sorry. 3 4 As | stated previously, both parties have 4 5 requested punitive damages. That request is denied as 5 6 to both parties, but the Court does award pre-judgment 6 l, Irene A. Resler, CSR Number 7685, duly 7 interest on the stated amount in the complaint of 7 appointed official pro tempore reporter for the Superior 8 208,000. 8 Court of the State of California, County of Santa Clara, 9 The Court also awards costs, although the Court 9 do hereby certify that the foregoing pages, 1 through 10 modifies the requested costs to reduce the price of the lO 29, comprise a full, true and correct transcript of the ll private investigator, so costs are awarded in the amount ll testimony given and the proceedings had in the 12 of $5,899.22. And attorney's fees are awarded under the 12 above-entitled action taken on January 4, 2021; that | 13 elder abuse statute as included in the declaration and 13 reported the same in stenotype to the best of my ability l4 exhibit in the amount of $142,236.17 which includes to l4 and thereafter transcribed the same into typewriting as 15 and through today's date. 15 herein appears. 16 Counsel, if you'll please prepare the order and 16 17 submit it directly to this department. The Court also 17 18 includes in that order the order for the return ofthe 18 Dated: January 14, 2021 l9 personal property including the two stated guns and any l9 20 additional documents, financial or real estate, in the 20 21 defendant's custody, possession or control. In lieu of 21 22 that, the party may submit a declaration under penalty 22 23 of perjury that those documents have been destroyed. 23 24 MR. PAETKAU: Thank you. 24 Irene A. Resler, CSR Number 7685 25 THE COURT: Thank you. Anything else? Page 27 25 Page 29 EXHIBIT 9 \DOONQUI-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO ELECTRONICALLY RECEIVED Electronically Filed 10/2/2020 5557 PM Superior Court of California County of Santa Cruz Tyler M. Paetkau (Bar No. 146305) October 6, 2020 Olga Savage (Bar No. 252009) Alex Calvo, Clerk PROCOPIO CORY HARGREAVES & SAVITCH LLP ’ = B D ut , 1117 s. California Am, suite 200 y y Gonzalez’ sand' Palo Alto, CA 94304 Telephone: (650) 645-9027 Facsimile: (650) 687-8323 Email: tyler.paetkau@procopio.com Attorneys for Defendants JOHN M. SAICH and NICHOLE L. SAICH SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CRUZ UNLIMITED JURISDICTION STEPHEN W. GETTEL, CASE NO.: 18CV02356 Plaintiff, [PRGPGSED] JUDGMENT VS. JOHN M. SAICH, NICHOLE L. SAICH, DOES 1 through 10, inclusive, Defendants. Case N0.: 18CV02356 TPRGPGSEB] JUDGMENT a \DOONQUI-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUI-PUJNHOKDOOQQUI-bUJNHO On September 17, 2019, the Court entered an order granting Defendants John M. Saich and Nichole L. Saich’s special motion to strike Plaintiff Stephen W. Gettel’s Complaint pursuant t0 Code of Civil Procedure section 425.16. On January 29, 2020, the Court entered an order granting Defendants” motion for attorney’s fees and costs pursuant t0 Code of Civil Procedure section 425.16(c) in the amount of $39,168.75. Pursuant t0 the Court’s Orders, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 1. Judgment is entered in favor 0f Defendants John M. Saich and Nichole L. Saich 0n Plaintiff Stephen W. Gettel’s Complaint in its entirety. 2. Judgment is entered in favor 0f Defendants against Plaintiff in the amount 0f $39,168.75 IT IS SO ORDERED. Dated: October 6, 2020 726% {W The Honorable RMca Connolly Judge 0f the Superior Court Approved as to form, only. By: Kathleen E. Wells Attorney for Stephen W. Gettel 1 Case N0.: 18CV02356 [PRGPGSE-B] JUDGMENT EXHIBIT 10 Uman-Irl OtomVOUU'l-POON-‘t NMNMNNNNNAAAAAAAAAA mNmmkmNAommN®m#WN-\ ELECTRONICALLY RECEIVED 10/2/2020 2:51 PM MAUREEN A. HARRINGTON (SBN 194606) GREENFIELD LLP 55 South Market Street, Suite 1500 San Jose, California 951 13 Telephone: (408) 995-5600 Facsimile: (408) 995-0308 Attorney for Respondent TYLER PAETKAU Electronically Filed Superior Court of California County of Santa Cruz October 6, 2020 Alex Calvo, Clerk By DEputy, Gonzalez, Sand SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CRUZ STEPHEN W. GETTEL, Petitioner, vs. TYLER PAETKAU AND OLGA SAVAGE, Respondents. Case No: 180V02355 [PROPOSED] JUDGMENT JUDGMENT "a Uman-Irl OLOOONOUO‘l-ROON-‘I NNNNNNNNNAAAAAAAAAA mNOUU‘l-POONAOQmNmU‘l-POONA On September 17, 2019, the Court entered an order granting Defendant Tyler Paetkau s special motion to strike Plaintiff Stephen W. Gettel s Petition pursuant to Code of Civil Procedure section 425.16. On January 23, 2020, the Court entered an order granting Defendants motion for attorneys fees and costs pursuant to Code of Civil Procedure section 425.16(c) in the amount of $37,116.87. Pursuant to the Courts Orders, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that: 1. Judgment is entered in favor of Defendant Tyler Paetkau on Plaintiff Stephen W. Gettel s Petition in its entirety. 2. Judgment is entered in favor of Defendant against Plaintiff in the amount of $37,1 16.87. IT IS SO ORDERED. 7&1:le Honorable R'é'b'ecw'eomoi-ly-T'momy V0” Judge, Superior Court of California Dated: Signed: 10/6/2020 09:23 AM ’ 2020 Approved as to form, only. By: Kathleen E. Wells Attorney for Stephen W. Gettel JUDGMENT 2 (mann EXHIBIT 11 LAW AND MOTION TENTATIVE RULINGSDATE: MARCH 24, 2021TIME: 8:30 A.M. 18CV02356 GETTEL v SAICH DEMURRER TO FAC Under the rule of exclusive concurrent jurisdiction, when two superior courts have concurrent jurisdiction over the subject matter and the parties, the first court to assume jurisdiction has exclusive and continuing jurisdiction until such time as all necessarily related matters have been resolved. (Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 460.) The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits. The rule is established and enforced not "so much to protect the rights of parties as to protect the rights of Courts of co-ordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice." (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787 [274 Cal.Rptr. 147].) Here, there is a logical relationship between the Complaint in Saichv. Gettel, Santa Clara County Superior Court Case No. 17CV314350 (“Gettel I”) and each of the six causes of action in the FAC herein in that they involve common issues of law and fact,” an “overlap of issues,” and a common transaction. (ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 82; compare FAC herein ¶¶ 14,15,16,25,29 and ¶¶ 19, 23,57,60 of Complaint in Gettel I.) Under the rule of exclusive concurrent jurisdiction, because the Santa Clara and Santa Cruz Superior Court have concurrent jurisdiction over the subject matter and the parties, the first court (Santa Clara County Superior) to assume jurisdiction has exclusive and continuing jurisdiction until such time as all necessarily related matters have been resolved. (Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 460.) - 2 - Code Civ Proc § 426.30 (a)provides: Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded. Because Gettel failed to file a cross-complaint in Gettel I for his related causes of action (which he was required to do pursuant to CA CCP § 428.50(a)), he is barred from bringing the claims in this Court, therefore the demurrers to the six causes of action in the FAC are sustained without leave to amend. (Lawrence v. Bank of Am.(1985) 163 Cal.App.3d 431, 436.) Defendants’ Request for Judicial Notice 1. Complaint for Damages and Injunctive Relief, filed in the matter of John M. Saich and Nichole L. Saich, Santa Clara County Superior Court Case No. 17CV314350: Granted. 2. Default entered against Gettel on November 13, 2019 in Gettel I: Granted. 3. Notice of Default Prove-Up Hearing filed inGettel I on November 12, 2020: Granted. 4. Declaration of John M. Saich in Support of Plaintiffs’ Request for Default Judgment filed in Gettel I on November 13, 2019: Granted. 5. Declaration of Tyler M. Paetkau in Support of Plaintiffs’ Request for Default Judgment filed in Gettel I on November 13, 2019: Granted. - 3 - 6. Order denying Gettel’s motion to set aside entry of default filed in Gettel I on September 1, 2020:Granted 7. Order granting Defendants John M. Saich and Nichole L. Saich’s special motion to strike Complaint filed in the matter of Stephen W. Gettel v. John M. Saich and Nichole L. Saich, Santa Cruz County Superior Court Case No. 18CV02356 on September 17,2019: Granted 8. Order granting Respondent Tyler Paetkau’s special motion to strike filed the matter of Stephen W. Gettel v. Tyler Paetkau and Olga Savage, Santa Cruz County Superior Court Case No. 18CV02356 on September 17, 2019: Granted Plaintiff’s Request for Judicial Notice 1. Complaint for Damages for Breach of Oral Contract” filed in the Santa Cruz County Superior Court 1/31/2020: Granted. 2.First Amended Complaint for Damages and Equitable Relief” filed in the Santa Cruz County Superior Court 9/17/2020: Granted. MOTION TO QUASH SERVICE OF SUMMONS The demurrer having been sustained without leave to amend, this motion is moot. Moreover, because this motion is moot, the Court exercises its discretion to not set an OSC why sanctions should not be imposed against Gettel and his attorneys. MOTION TO COMPEL RETURN OF DOCUMENTS AND TO SEAL THEM Pursuant to Cal Code Civ Proc § 436, the Court uses its discretion to strike Exhibits 3-13 attached to the FAC as improper matter inserted in a pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. The clerk will “return” Exhibits 3-13 attached to the First Amended Complaint filed - 4 - 9/17/20to Defendants Saich and remove them from public access. If Defendants contend that Gettel has violated a Santa Clara Superior Court order to return documents (see Saich Supplemental Brief in support of motion to compel return of documents filed 2/3/21), Defendants should apply to that Court for relief. MOTION TO COMPEL RESPONSES TO DEFENDANTS’ REQUEST FOR PRODUCTION OF DOCUMENTS The demurrer having been sustained without leave to amend, this motion is moot.. Superior Court of California, Santa Cruz MINUTE ORDER Stephen Gettel 20CV00337 vs John Saich, et al Santa Cruz Department 4 Predisposition Hearing 03/24/2021 Heard By: Connolly, Rebecca Courtroom Clerk: Sandra Gonzalez _ _ Courtroom Reporter: Debra Burnham, 8'30 AM ' 9'00 AM CSR #13297 Parties Present: Corrinet, Mark Steven Attorney Paetkau, Tyler Mark Attorney Donald Schwartz, co-counsel is appearing remotely on behalf of Plaintiff. This is the time regularly set for hearing on Demurrer; Motion to Compel Responses; Motion to Quash; and Motion to Compel Return of Documents. Mr. Paetkau advises the Court that the tentative ruling had the incorrect case number. The Court acknowledges the tentative ruling has the incorrect case number and should reflect the correct case number of 20CV00337. The Court has reviewed the motion and opposition. The Court advises of the tentative ruling posted on the Court's website. Mr. Schwartz presents oral argument to the tentative ruling. Counsel address the issues now before the Court. The Court makes the following ruling: The Court adopts its tentative ruling. The demurrer is sustained without leave to amend. The motion to compel responses and motion to quash are moot. The Court strikes the exhibits 3-13 attached to the first amended complaint. Said documents shall be returned to counsel. Mr. Paetkau is directed to prepare the order consistent with the Court's tentative ruling and pursuant to Superior Court of California, Santa Cruz MINUTE ORDER Stephen Gettel vs John Saich, et al California Rule of Court 3.1312. Future Hearings: April 23, 2021 8:30 AM Predisposition Hearing Connolly, Rebecca Santa Cruz Department 4 May 11, 2021 8:30 AM Further Case Management Conference Connolly, Rebecca Santa Cruz Department 4 May 27, 2021 8:30 AM Further Case Management Conference Connolly, Rebecca Santa Cruz Department 4 To appear remotely at your hearing visit our court website https://www.santacruzcourt.org/content/remote-appearance-O 20CV00337 EXHIBIT 12 \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO ELECTRONICALLY FILED Superior Court of California County of Santa Cruz Mark Steven Corrinet, CBN 190471 9/17/2020 1:17 PM The Law Offices of Mark Steven Corrinet IGX CalVO, Clerk 2210 NW Bayshore Loop, Waldport, Oregon 97394 y' elena i D Uty Tel: 541 -563-5028 Email: corrinetlaw@aol.com Attorney for Plaintiff Stephen W. Gettel SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CRUZ STEPHEN W. GETTEL CASE NO.: 200V00337 Plaintiff, FIRST AMENDED COMPLAINT FOR vs. DAMAGES AND EQUITABLE RELIEF JOHN M. SAICH, Trustee of John M. Saich Declaration of Trust dated August 2, 2004, NICHOLE L. SAICH, Trustee of Nichole L. Saich Declaration of Trust dated September 28, 201 2, DOES 1 through 100, DEMAND FOR JURY TRIAL HHHHHHHHHHHHHH Defendants. 1 Comes now Plaintiff Stephen W. Gettel who amends that Complaint filed in this action on January 31, 2020 and alleges as follows: SUMMARY [1] This is a case about defendants who benefited by tens of millions of dollars from the skillful application of Plaintiff’s decades of real estate industry experience, only then to fraudulently attempt absconsion from agreements for fair compensation, therefore. DEMAND FOR JURY TRIAL [2] Plaintiff demands a jury trial in this action. \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO JURISDICTION AND VENUE [3] Agreements alleged herein were entered in Santa Cruz County and to be performed in said County. The fraudulent acts alleged herein were perpetrated in Santa Cruz County and caused injury in said County. PARTIES [4] Plaintiff Stephen W. Gettel (hereinafter referred to as “plaintiff” or “Plaintiff Gettel”) is, and at all times relevant to the facts herein, was doing business in the County of Santa Cruz as a duly licensed State of California Licensed Real Estate Broker, a duly licensed State of California Real Estate Appraiser, and Member of the Appraisal Institute, designated MAI. Appraiser. A Curriculum Vitae for plaintiff Gettel is attached hereto, marked as Exhibit 1 and incorporated herein. [5] Defendant John M. Saich (hereinafter referred to as “defendant John Saich”) is an individual residing in Santa Cruz County and has created the defendant "John M. Saich Declaration of Trust dated August 2, 2004." (hereinafter referred to as "the JOHN TRUST.") John Saich is the sole Trustee of the JOHN TRUST. (hereinafter "TRUSTEE JOHN" refers to John Saich when acting in the capacity of Trustee of the JOHN TRUST.) TRUSTEE JOHN performs his administration of the JOHN TRUST in Santa Cruz County. [6] Defendant Nichole L. Saich (“hereinafter referred to as “defendant Nicole Saich”) is a resident of Santa Cruz County and has created the "Nichole L. Saich Declaration of Trust dated September 28, 2012." (hereinafter said Trust will be referred to as "the NICHOL TRUST.") Nichole Saich named herself as the sole Trustee of NICHOLE TRUST. (hereinafter "TRUSTEE NICHOLE" refers to Nichole Saich when acting in the capacity of Trustee of NICHOLE TRUST.) [7] The true names and capacities, whether individual, corporate, partnership, associate, or otherwise of Defendants DOES 1 through 100, are unknown to Plaintiff who sues each Defendant by such fictitious names. Plaintiff is informed and believes and based thereon alleges each of the Defendants designated herein as a fictitiously named Defendant is, and in some manner, was responsible for the acts, facts, events and happenings referred to herein, either contractually or tortuously. When Plaintiff Gettel ascertains the true names and \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO capacities of any of defendants named as DOES 1 through 100, he will amend this First Amended Complaint accordingly. Plaintiff is informed and believes and based thereon allege that Doe Defendants and each of them, are, and at all times herein mentioned were, the agents, joint ventures, officers, members, representatives, servants, consultants and/or employees of their co-Defendants, and in committing the acts and/or omissions herein alleged, were acting within the scope of such affiliation with the knowledge, permission, consent or subsequent ratification of each of their co-Defendants. FACTS [8] On or about August 2, 2004 defendant John M. Saich declared and established a living trust entitled: "John M. Saich Declaration of Trust dated August 2, 2004." ("the JOHN TRUST.") John Saich named himself as the sole Trustee of the JOHN TRUST. ("TRUSTEE JOHN“ [9] On or about September 28, 2012 defendant Nichole L. Saich declared and established a living trust entitled: "Nichole L. Saich Declaration of Trust dated September 28, 2012." ("the NICHOLE TRUST.") Nichole Saich named herself as the sole Trustee of the NICHOLE TRUST. ("TRUSTEE NICHOLE".) [10] Certain real property with the street address of 20563 Stevens Creek Blvd., Cupertino, California has, and for many years prior to August 2, 2004 had a bank building situated thereon. (hereinafter "Cupertino Property" refers to said real estate and bank building.) [1 1] On or about August 2, 2004 Cupertino Property was placed in the corpus of the JOHN TRUST. [12] In 2006 plaintiff Gettel and John M. Saich began what would turn out to be a remunerative rewarding relationship for defendants, and each of them. Defendant John Saich came to characterize as ‘invaluable” the services provided by plaintiff Gettel involving what defendant John Saich described as pertaining to: “commercial property, a beach home, an upscale residence, lots in the City of Saratoga, land, including locating and acquiring \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO agricultural properties with improvements that satisfied Saich’s search parameters in Santa Cruz County.” When asked, defendant John Saich further characterized plaintiff Gettel and his professional services as follows: “Steve is an extremely experienced real estate professional. Steve has advised us in the negotiation of a prominent ground/property lease, maximizing our returns. Steve has advised us in the highest and best use considerations concerning possible redevelopment of one of our high identity commercial properties. . . . Over the years, | have employed a great many MAI appraisers for various real estate applications. Besides being an extremely experienced appraiser, Steve is also an extremely astute real estate appraiser; without question, the BEST appraiser | have ever come into contact with. Steve’s abilities to mine important, pertinent data and information, and then evaluate (properly!) all aspects of the task/s at hand are unparalleled. Steve has a very keen eye for picking up on, and identifying, various nuances that may affect a property’s valuation. Steve is a very organized, efficient, tenacious, due diligence (sic), detaiI-oriented type of appraiser. | have found that of all the appraisers that I’ve hired throughout the past, NONE have come close to possessing Steve’s levels of expert skills. His personal standards for providing top quality appraisals is exceptional. Steve’s appraisals also, arrive on time, and within foreseeable budgets. Steve’s personal integrity and honesty is impeccable; which is, in my estimation, rather unique, in this day and age. Time and resources, are, valuable commodities; why waste either, by hiring less qualified real estate representatives that might potentially underwhelm, and underperform your expectations? Steve is the ONLY appraiser/real estate advisor that |/we rely on. We depend on Steve’s market intelligence and reliable expertise. We use Steve exclusively as our real estate appraiser, and, as our real estate advisor. . . .with no restrictions.” [emphasis by defendant John W. Saich] A true and correct copy of the defendant John Saich email in this regard is attached hereto, marked as Exhibit 2 and incorporated herein. [1 3] On or about September 28, 201 2 a 10% interest in Cupertino Property was placed into placed in the corpus of the NICHOLE TRUST. [14] For many years prior to 2012, and for some time thereafter, Bank of America, National Association (hereinafter "Bank"), was the lessee of the Cupertino Property. The tenancy of Bank in the Cupertino Property had been established through a succession of lease contracts and extensions. \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO [15] The term of the lease contract between the JOHN TRUST and the NICHOLE TRUST, as lessors, and Bank, as lessee, concerning the Cupertino Property in effect on March 28, 2016 was to expire on May 31, 2019. [16] Prior to the lease expiration, in or about March 2016, TRUSTEE JOHN and TRUSTEE NICHOLE entered into a brokerage agreement with plaintiff Gettel to negotiate with Bank an extension of the lease regarding the Cupertino Property. This brokerage agreement was entered into in Santa Cruz County. Under the agreement plaintiff Gettel would be entitled to the standard broker's commission on any lease extension that resulted from the brokerage services of plaintiff Gettel concerning Cupertino Property. The brokerage agreement was confirmed in writing by defendants TRUSTEE JOHN and TRUSTEE NICOLE’s attorneys, including their attorney Jim Dyke in a written email dated March 14, 2016. A true and correct copy of each and every defendants’ attorney Jim Dyke email in this regard is attached hereto, marked as Exhibit 3 and incorporated herein. The brokerage agreement was confirmed under oath by Saich in a deposition taken in a Santa Clara County Superior Court case entitled John M. Saich, Trustee, et. vs. Marina Plaza LLC, et. (Case No. 160V300526). A true and correct copy of the defendant John Saich deposition transcript in this regard is attached hereto, marked as Exhibit 4 and incorporated herein. The brokerage agreement was restated in writing when plaintiff Gettel initiated negotiations on behalf of defendants, and each of them, as set forth in the true and correct copy of the plaintiff Gettel letter dated March 28, 2016 to the lessee Bank’s broker, Ryan Carmichael attached hereto, marked as Exhibit 5 and incorporated herein. In fact, so ecstatic was defendant John Said by the quality of plaintiff Gettel’s negotiating skills that defendant John Saich sent an email on April 4, 2016 stating: “What an awesome response to Carmichael! To the point. Let him (and his superiors) chew on that for awhile. (sic) \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO Good luck with your meeting with Lilli today!” A true and correct copy of the defendant John Saich email in this regard is attached hereto, marked as Exhibit 6 and incorporated herein. [17] In reliance upon the understanding plaintiff Gettel worked diligently for one-year in successfully achieving a lease extension for defendants, having effectuated an extraordinary professional expertise in the matter. As the direct result of plaintiff Gettel's efforts, on or about March 10, 2017 JOHN TRUST and NICHOLE TRUST, as lessors, and Bank, as lessee, entered into a written contract entitled "First Amendment to Lease." (hereinafter this written contract is referred to as "First Amendment") A true and correct copy of First Amendment is attached hereto, marked Exhibit 7 and incorporated herein. The First Amendment states that each party to the First Amendment lease agreement will pay their own broker’s fees in the transaction. (See, Exhibit 7.) [18] In accordance with Paragraph 1 of the First Amendment the lease of the Cupertino Property by Bank was extended from June 1, 2019 through May 31, 2029 (i.e., ten years). [1 9] Paragraph 3 of First Amendment provides a schedule of monthly rental amounts for Cupertino Property in amounts which increase each year to specified sums. [20] The standard brokerage commission for a lease is three percent (3%) of the lease payments over the term of the entire lease. Thus, the standard brokerage commission for negotiation of a lease extension would be in the amount of three percent (3%) of the lease payments during the extension period. So calculated, plaintiff Gettel was immediately due a brokerage commission of two hundred and ten thousand seven hundred and eighty-two dollars and seventy cents ($21 0,782.70) at the signing. [21] On April 17, 2017 plaintiff Gettel sent to defendants, and each of them, plaintiff Gettel’s “Commission Schedule” - in writing. A true and correct copy of the “Commission Schedule” is attached hereto, marked as Exhibit 8 and incorporated herein. Each and every defendant affirmed the commission schedule by paying part of it by check in the amount of $25,000. A true and correct copy of the defendant John Saich check \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO payment of $25,000 (excerpted to delete account information) is attached hereto, marked as Exhibit 9 and incorporated herein. Soon thereafter, defendants paid another $5,000 towards the commission. A true and correct copy of the defendant John Saich check payment of $5,000 (excerpted to delete account information) is attached hereto, marked as Exhibit 1O and incorporated herein. [22] On May 18, 201 7 during the deposition of plaintiff Stephen W. Gettel in the matter of John M. Saich, et. v. Marina Plaza, LLC., et. (Santa Clara County Superior Court, Case No. 16CV300526) plaintiff Gettel testified as to his reliance on defendant’s attorney furthering his clients’ request for plaintiff Gettel to act as broker in the Bank of America Leasehold matter as follows: “Q: And you began - how did the renegotiation of the lease come about? Did you contact somebody at Bank of America? A: Well, originally, Jim Dyke has reached out to Ryan Carmichael and vice versa and started to talk. And John Saich indicated to Jim Dyke that he wanted me to broker the deal. So, the authority for me to act as a broker was given to me, and | proceeded to engage Ryan Carmichael in negotiations . . A true and correct copy of excerpts of the Deposition Transcript of Stephen W. Gettel in the matter of John M. Saich, et. v. Marina Plaza, LLC., et. (Santa Clara County Superior Court, Case No. 160V300526) is attached hereto, marked as Exhibit 11 and incorporated herein. [23] On July 25, 2017 plaintiff again provided to defendants, and each of them, the “Commission Schedule” and defendants, and each of them, again acknowledged the brokerage representation and agreement and did not object. [24] As stated above, standard practice is that a brokerage commission is due at the commencement of the lease period, or lease extension period, as applicable. Accordingly, on June 1, 2019 JOHN TRUST and NICHOLE TRUST then owed plaintiff Gettel $210,782.70. [25] At the time ofthis filing, JOHN TRUST and NICHOLE TRUST, have paid only the initial $30,000 towards the commission owed to plaintiff Gettel. \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO [26] On June 20, 2019 plaintiff Gettel sent a Demand Letter Certified MaiI/Return Receipt Requested through the United States Postal Service to defendant John Saich (and Nichole Saich) demanding the $21 0,782.70 as his brokerage commission for having negotiated and achieved the First Amendment agreement. The Certified/Return Receipt mailings were sent to defendant John Saich’s personal residence as well as his United States Post Office Box located in Aptos, CA. A true and correct copy of the June 20, 201 9 letter is attached hereto and marked Exhibit 12 and incorporated herein. A true and correct copy of the United States Postal Service’ Certified Mail Receipts are attached hereto and marked as Exhibit 13 and incorporated herein. Defendants John Saich and Nichole Saich studiously evaded the United States Certified/Return Receipt mailings sent to his home and United States Post Office locations. True and correct copies of the United States Postal Service return envelopes of the June 20, 2019 Demand Letter is attached hereto and marked Exhibit 14. [27] Neither John Saich nor Nichole Saich, in their individual capacities, nor TRUSTEE JOHN nor TRUSTEE NICHOLE in their respective representative capacities, refuted the Commission Schedules nor the Demand Letter for payment, thereby admitting the amounts due. [28] Plaintiff Gettel has been paid only $30,000 towards the brokerage commission which he earned pursuant to the written agreement and his performance resulting in the First Amendment by any person, including by either JOHN TRUST or NICHOLE TRUST, nor any other defendant named herein. [29] Plaintiff Gettel is and since June 1, 2019 has been entitled to, inter alia, payment of $210,782.70 from JOHN TRUST and NICHOLE TRUST. [30] Plaintiff Gettel also is entitled to payment of pre-judgment interest on said amount of $210,782.70 from June 1, 2019 as well as from the sums due and owing from the “Commission Schedule”. \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO [31] Now in than hands of aggressive legal representation, now choosing to deny all amounts due, and because fraud is inferable by conduct, the only reasonable interpretation of each and every defendants” conduct in this matter is that said defendants have no intention of every paying plaintiff Gettel for his commission due and never did. Hence this suit. WHEREFORE, Plaintiff Stephen W. Gettel further alleges against defendants, and each of them, as follows: FIRST CAUSE OF ACTION BREACH OF CONTRACT [32] By this reference plaintiff incorporates each and every other paragraph alleged in this First Amended Complaint as if fully reasserted herein. [33] Plaintiff performed all of the terms and conditions of the written agreements and oral understandings required to be performed by him. [34] Defendants, and each of them, have failed to pay as agreed and affirmed in writing, orally and by conduct. [35] Plaintiff is owed, inter alia, $210,782.70 plus amounts stated in the Commission Schedule by defendants, and each of them. WHEREFORE, plaintiff prays judgment as further set forth below. SECOND CAUSE 0F ACTION FRAUD [36] By this reference plaintiff incorporates each and every other paragraph alleged in this First Amended Complaint as if fully reasserted herein. [37] The conduct alleged herein constitutes a fraud inasmuch as defendants, and each of them, never intended to pay any more than the $30,000 of the commission owed pursuant to the agreed upon written Commission Schedule. [38] The conduct by each and every defendant is reprehensible conduct that entitles plaintiff Gettel to punitive and exemplary damages according to proof in the amount often times actual damages or more. WHEREFORE, plaintiff prays judgment as further set forth below. \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO THIRD CAUSE OF ACTION UNJUST ENRICHMENT [39] By this reference plaintiff incorporates each and every other paragraph alleged in this First Amended Complaint as if fully reasserted herein. [40] Defendants, and each of them, by the acts, facts and events as set forth above have become unjustly enriched. [41] Plaintiff Gettel hereby respectfully requests a court order of disgorgement of all i||- gotten gain to said plaintiff. WHEREFORE, plaintiff Gettel prays judgment against defendants, and each of them, as further set forth below. FOURTH CASUE OF ACTION ACCOUNT STATED [42] By this reference plaintiff incorporates each and every other paragraph alleged in this First Amended Complaint as if fully reasserted herein. [43] Plaintiff performed all of the terms and conditions of the written agreements and oral understandings required to be performed by him. [44] Plaintiff issued the Commission Schedules as pleaded hereinabove. [45] Defendants, and each of them, have failed to refute the Commission Schedule. [46] Plaintiff is owed, inter alia, $210,782.70 plus those amounts stated in the Commission Schedule, from defendants, and each of them. WHEREFORE, plaintiff prays judgment as further set forth below. FIFTH CAUSE OF ACTION DECLARATORY RELIEF [47] By this reference plaintiff incorporates each and every other paragraph alleged in this First Amended Complaint as if fully reasserted herein. [48] A controversy has arisen between the parties. [49] Plaintiff seeks an order of monies due from each and every defendant and a declaration that as a result of the fraud perpetrated by each of every defendant that said 10 \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO defendants are wholly responsible to plaintiff to pay said amounts by application of the alter ego doctrine. WHEREFORE, plaintiff prays judgment as further set forth below. SIXTH CAUSE OF ACTION APPOINTMENT OF A RECEIVER [50] By this reference plaintiff incorporates each and every other paragraph alleged in this First Amended Complaint as if fully reasserted herein. [51] In order to secure the obligations of each and every defendant as set forth herein, plaintiff performed his “invaluable” services for the benefit of each and every defendant herein. [52] Plaintiff is informed and hereby alleges that each and every defendant are not paying their debts and have no intention of paying said debts. [53] A receiver is immediately needed to collect the rents and secure the monies for payment as adjudicated herein. [54] Unless a receiver is appointed by this Court, plaintiff is informed and believes and alleges thereon each and every defendant may abscond with the monies paid for rent and use the monies for illegal drug and gun activities. [55] A receiver is also necessary to protect the rights and interest of plaintiff as alleged herein. [56] Without a receiver being appointed, plaintiff is informed and believes and thereon alleges that defendants may transfer, convey, liquidate the subject real property or otherwise make plaintiff’s interest unavailable to this court or otherwise. [57] Plaintiff has no adequate remedy at law other than the appointment of a receiver to collect the rents and distribute the monies owed. WHEREFORE, plaintiff Stephen W. Gettel prays judgment as follows: 1. Against defendants, and each ofthem, for the sum of, inter alia, $21 0,782.70 plus those amounts stated in the Commission Schedule as alleged herein; principal, together with interest at the rate of 1O percent per annum from the date of the breach of contract to the date of entry ofjudgment and all related charges according to proof; 11 \OOOflQUl-bUJNr-A NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNF-‘OKOOOQONUl-bWNHO 2. Against defendants, and each of them, for attorney’s fees, in an amount that the court adjudges reasonable; 3. For disgorgement of all restitutionary and unjustly withheld monies owed to plaintiff Gettel; 4. Against defendants, and each of them, for an award of exemplary and punitive damages in an amount not less than ten times actual damages and as according to proof; 5. For appointment of a receiver to take possession and control of the subject real property, collects rents, and keep an accounting with the purpose to pay each and every defendants debts as alleged herein as ordered by this Court. 6. For administrative fees and costs; 7. For costs of suit herein incurred; and 8. For any such other and further relief as the court may deem proper. Dated: August 12, 2020 Mark Steven Corrinet, Esq. Attorney for Plaintiff Stephen W. Gettel 12 EXHIBIT 13 Envelope: 36461 59 on 11I1312019 4:15 PM Reviewed By: M Vu CIV-100 ATTORNEY 0R PARTY WITHOUT A'I'I'ORNEY; STATE BAR N0: 146305 FOR COURTUSEouLY MAME: Tyler M. Paetkau FIRM NAME: Procopio. Cory. Hargreaves & Savitch LLP STREET ADDRESS: 111T S. California Ave., Suite 200 cm; page Aug STATE: CA ZIP cone: 94304 FILED TELEPHONE N0: (650) 645-9027 FAX N04: (650) 687-3323 E-MAIL ADDRESS: tyler_paetkau@procopio.oom 1 1/ 1 3/201 9 ATTORNEY FORmame): Plaintiffs John M. Saich and Nichole L. Saich Clerk of The Court SUPERIOR COURT OF CALIFORNm, COUNTY OF Santa Clara Superior Court 0f CA STREET ADDRESS: 191 North First Street MNUNG ADDRESS: County of Santa Clara CITY AND ZIP CODE: San Jose, CA 951 13 1YCV31 4350 BRANCH NAME: Downtown Superior Court By: DHarl’iS PlaintifflPetitioner: John M. Saich and Nichole L. Saich Defendant/Respondent: Stephen W. Gettel as Indiv. & dba Gettel & Associates REQUEST FOR E Entry of Default D Clerk's Judgment (Appflcatlon) E Court Judgment CASE NUMBER: 1YCV31 4350 Not for use in actions under the Fair Debt Buying Practices Act (Clv. Code, § 1788.50 et seq.) {see CIv-105J 1. TO THE CLERK: On the compiaint or cross-complalnt filed a. on (date): Aug 11, 2017 b. by (name): John M. Saich and Nichole L. Saich c. E Enter default of defendant (names): d. E I request a court judgment under Code of Civil Procedure sections 585(b), 585(0), 989, etc.. against defendant (names): Stephen W. Gettel, individually and doing business as Gettel 8c Associates (Testimony required. Apply to the clerk fora hearing date, unless the court wifl enter ajudgment on an affidavit under Code Civ. Proc., § 585(d).) e. E Enterclerk’sjudgment (1) E for restitution of the premises only and issue a writ of execution on the judgment. Code of Civil Procedure section 1174(c) does not appiy. (Code Civ. Proc., § 1169.)E Include in the judgment all tenants. subtenants, named claimants, and other occupants of the premises. The Prejudgment Claim of Right to Possession was served in compliance with Code of Civil Procedure section 41 5.46. (2) E under Code of Civil Procedure section 585(a). (Complete the decimation under Code Civ. Proc., § 585.5 on the reverse {item 5).) (3) E for defauIt previously entered on (date): 2. Judgment to be entered. m WE a. Demand of complaint ............. $ {see Attachment 1) $ $ b. Statement of damages‘ (1) Special .................... $ $ $ (2) General .................... $ $ $ c. Interest ........................ $ $ $ d. Costs {see reverse) .............. $ $ $ e. Aflomey fees ................... $ $ $ f . TOTALS ...................... $ $ $ g. Daily damages were demanded in complaint at the rate of: $ per day beginning (date): (* Persona! injun/ or wrongful death actions; Code Civ. Prom, § 425. 1 1.) Balance 3. E (Check if filed in an unlawful detainer case.) Legal document assistant or unlawful detalner assistant information is on the reverse {complete item 4). Date: November 13, 201 9 Tyler M. Paetkau ’ (TYPE 0R PRINT NAME] [SIGNATURE OF PLAINTIFF OR ATTORNEY FOR PLAINTIFF) FOR COURT (1) Default entered as requested on (date): 1 1 l1 3,201 9 USE ONLY (2) Default NOT entered as requested (state reason): Clerk, by nl-[arfig , Deputy Fug. 1 g; z jmgmcmmaafimw REQUEST FOR ENTRY 0F DEFAULT °°d°°'°i“""'°°°d“" $53545" “59 cw-1oo |Rev. January 1. 201a] (Application m Enter Default) wwwmurissagav ClV-100 PIaintiff/Petitioner: John M. Saich and Nichole L. Saich figsécmggo Defendant/Respondent: Stephen W. Gettel, individually and dba Gettel a Associates 4. Legal document assistant or unlawful detainer assistant (Bus. & Prof. Code, § 6400 et seq.). A legal document assistant or unlawful detainer assistant E did E did not for compensation give advice or assistance with this form. If declarant has received any help or advice for pay from a legal document assistant or unlawful detainer assistant. state: a. Assistant's name: c. Telephone no.: b. Street address. city. and zip code: d. County of registration: e. Registration no.: f. Expires on (date): 5, E Declaration under Code Civ. Proc., § 585.5 (for entry of default under Code Civ. Proa, § 585(a)). This action a. E is E is not on a contract or installment sale for goods or services subject to Civ. Code. § 1801 et seq. (Unruh Act). b. E is m is not on a conditional sales contract subject to Civ. Code. § 2981 et seq. (Rees-Leven‘ng Motor Vehicle Sales and Finance Act). c. E is is not on an obligation for goods, services. loans. or extensions of credit subject to Code Civ. Proc.. § 395(b). 6. Declaration of mailing (Code Civ. Proc., § 587). A copy of this Request for Entry of Default was a. E not mailed to the following defendants, whose addresses are unknown to plaintiff or plaintiff's attorney (names): b. E mailed first-class. postage prepaid, in a sealed envelope addressed to each defendant's attorney of record or. if none. to each defendant's last known address as follows: (1) Mailed on (date): November 13: 2019 (2) To (specify names and addresses shown on the envelopes): Kathleen E. Wells. Attorney for Defendant Stephen W. Gettel Stephen W. Gene] , indifidually and doing business as Gettel & Individually and doing business as Gettel & Associates Associates 3393 Maolethorpe Lane, Soquel, CA 95073 288 Quail Canyon, Watsonville, CA 95076 l declare under penalty of perjury under the laws of the State of California that the foregoinnf 9.; r' 6 are true and correct. Date: November 13, 2019 z Tyler M. Paetkau } (TYPE 0R PRINT NAME) _ . , V (SIGNATURE OF DECLARANT) 7. Memorandum of costs (required ifmoneyjudgment requested). Costs and disbursements are as follows (Code Civ. Proc.. § 1033.5): a. Clerk's filing fees .................... $ 705.00 b. Process server's fees ................. $ 4,793.56 c. Other (specify): Private Investigator $ 451 .50 d. Mail and Messenger Deliveries $ 400.66 e. TOTAL ............................. $ 6,350.72 f. E Costs and disbursements are waived. g. l am the attorney. agent. or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case. l declare under penalty of perjury under the laws of the State of California that the foregoing ist Date: November l3, 2019 Tyler M. Paetkau ’ mPE 0R PRINT NAME) (sruNAEE 0FDEW ‘ 8. Declaration of nonmilitary status (required fora judgment). No defendant named in item 1c of the application is in the military service as that term is defined by either the Servicemembers Civil Relief Act, 50 U.S.C. App. § 391 1 (2), or California Military and Veterans Code section 400(b). rnrrect. l declare under penalty of perjury under the laws of the State of California that the foregoing ist m r rrect. Date: November 13, 2019 Tyler M. Paetkau ’ (TYPE 0R PRINT NAME) (SI NATURE OF DECLARANT) C'V-Iw IRW-Ma'v 110131 REQUEST FOR ENTRY OF DEFAULT Mu” (Application to Enter Default) MC-025 SHORT TITLE: CASE NUMBER:_ John M. Saich and Nichole L. Saich V. Stephen W. Gettel 17CV3 14350 ATTACHMENT (Number): 1 (ciV100) (This Attachment may be used with any Judicial Council form.) 2. Judgment to be entered As to Plaintiffs John M. Saich and Nichole L. Saich, jointly: Amount Credits acknowledged Balance a. Demand 0f Complaint $208,000 $0 $208,000 b. Statement ofDamages c. Interest $37,667.94 $0 $37,667.94 d. Costs $6,350.72 $0 $6,350.72 e. Attorney Fees f. TOTAL $252,018.66 $0 $252,018.66 Additionally, as t0 Plaintiff John M. Saich: Amount Credits acknowledged Balance a. Demand 0f Complaint $50,000 $0 $50,000 b. Statement 0f Damages (3) Punitive Damages $ 1 00,000 $0 $ 1 00,000 c. Interest $9,054.79 $9,054.79 d. Costs e. Attorney Fees $ 142,236.70 $0 $ 142,236.70 f. TOTAL $301,291.49 $0 $301,291.49 Additionally, as t0 PlaintiffNichole L. Saich: Amount Credits acknowledged Balance a. Demand 0f Complaint b. Statement 0f Damages (3) Punitive Damages $100,000 $0 $100,000 c. Interest d. Costs e. Attorney fees f. TOTAL $100,000 $0 $100,000 In addition to the above, Plaintiffs John M. Saich and Nichole L. Saich request the following equitable relief: 1. A permanent injunction and writ 0f possession requiring Defendant t0 return (a) Plaintiff John M. Saich's long double-barrel lO-gauge Magnum shotgun t0 Plaintiff John M. Saich, (b) Plaintiff John M. Saich's .22 caliber Colt Woodsman target pistol t0 Plaintiff John M. Saich, (c) Plaintiff John M. Saich's original Social Security Card t0 Plaintiff John M. Saich, and (d) any of Plaintiffs' financial, real estate or personal documents in his possession, custody 0r control, and t0 certify that he has destroyed any means of providing signatures including electronic signatures 0n behalf 0f Plaintiff John M. Saich 0r Nichole L. Saich in his possession, custody or control 2. An order that Defendant produce an accounting of all loan repayments t0 Plaintiffs, including any repayments of the $30,000 loan that he accepted from Plaintiff John M. Saich. (If the item that this Attachment concerns is made under penalty of peljury, all statements in this Page 1 of 1 Attachment are made under penalty of perjury.) (Add pages as required) Form Approved for Optional Use ATTACHMENT www.coun‘info.ca.gov Judicial Council of California MC-025IReV-Julv112009l to Judicial Council Form From: gjllingmgil©fl erhggmg; To: nggkagg, Tylgr M. Subject: Notification of Service for Case No. 17CV314350 (J.Saich vs Stephen Gettel) Date: Thursday, January 02, 2020 9:05:48 AM Notification of Service Envelope Number: 3829842 This is a notification of service for the filing listed. Please click the link below to retrieve the submitted document. Filing Details Case Number 17CV314350 Case Style J.Saich vs Stephen Gettel DatelTime Submitted 1/2/2020 9:05 AM PST Filing Type Service Only Filed By D Harris John M. Saich: Service Contacts Tyler Paetkau (tyler.paetkau@procopio.com) Document Details Viwtm D mnt Flle Stamped C°py This link is active for 45 days. Please d0 not reply t0 this email. It was generated automatically. California EFiling Disclaimer: This is an official government communication. As the recipient, you are responsible for the lawful use of this information. This e-mail and any attachments are intended solely for the individual or agency to which they are addressed. They may be confidential and/or contain privileged 0r otherwise non-public infomation. Do not disseminate this e-mail and any attachments unless you are authorized t0 do so under applicable court rules or statutes. Ifyou are not the intended recipient 0f this e-mail, do not copy, distribute, 0r take any action in reliance upon this e-mail or any attachments and delete this e-mail and any attachments immediately. Please consider the environment before printing this e-mail. EXHIBIT 14 ‘OWNQLhkUN-n NNNNNNNNNHHH--H## WNO‘M-fiWNHOOWVQMAWN-‘O jccésian on Submitted Matter ILE SEP - 1 2020 f rt Swadgéggr MntyColOnga Clfilirv DEF SUPERIOR COURT 0F CALIFORNIA BY fl, KM,” COUNTY 0F SANTA CLARA JOHN SAICH e1; a1., Case No. 17CV3 14350 plaintiffs, ORDER CONCERNING DEFENDANT’S v. MOTION To SET ASIDE/VACATE ENTRY 0F DEFAULT STEPHEN GETTEL et a1., Defendants. Defendant Stephen Gettel seeks to set aside or vacate the entry of default entered against him in November 201 9. Plaintiffs John Saich and Nicole Saich oppose this motion. The Court heard oral argument on August 27, 2020, and took the matter under submission. The Court now issues its final ruling: I. THRESHOLD ISSUES Before proceeding to the merits, the Court discusses two threshold issues. First, Defendant has submitted several declarations on reply. “The general rule of motion practice is that new evidence is not permitted with reply papers.” (Jay v. Mahafi’ey (2013) 218 Ca1.App.4th 1522, 1537.) The Court has discretion, however, to consider such evidence if appropriate. upmqmmauamg MNNNNMMMMHHHI-‘__-HHH WflmM-FMNHGKDWflmm-EMMHQ ‘ 3.1306(a).) A “party seeking permissiun t0 intruduce oral evidence, except for Ural evidance in ‘ under section 473 (b): a) undar the “mandatory” prong of section 473(b); and b) under the é “discretionary” prong of section 473 (b). Defendant seeks relief under both prongs. Here, Defendant provided five declarations on reply, Mo of which were from people who had provided declarations previously. The Court will exercise its discretion n0! t0 consider the Gene] and Meyberg reply declarations, as the evidance in those declarations should have been included in the Gettel and Meyberg original declarations. The Court will consider the other reply declarations, however. The Court does not believe that a sur-reply by Plaintiffs is necessary. Second, at oral argument Defendant‘s counsel asked fm- an evidentiary hearing to resolve various factual disputes, chief among which was whether Defendant was preperly served with the summons and complaint back on August 11, 2017. Code oFCivil Procedure' section 2009 allows trial courts to determine civil law and motion matters on the basis 0f affidavits or declarations alone, without oral testimony. (§ 2009; Rezfler v. Superior Caurr (1974) 39 C31.App.3d 479, 433.) The: California Rules of Court mandate that evidence at a law and motion hearing be presented by declaratiun or request for judicial notice, unless the court orders otherwisa for good cause shown. (Cal. R. CL, rule- rebuttal to oral evidence presented by the other party, must file, no later than three court days 7 before the hearing, a “mitten statement stating the nature and extent of the evidance proposed to he introduced and a reasonable time estimate for the hearing.” (Cal. R. CL, rule 1130603).) Here, Defendant’s counsel never filed the mitten statement required by California Rule of Court 3.1306(b). And the Conn is not convinced that an evidentiary hearing is necessary, as the Court believes the written record can resolve the factual disputes relevant for this motion. For all of these reasons, the Court DENIES the request for an evidentiary hearing. II. MANDATORY PRONG 0F SECTION 473(B) Defendant seeks to set aside or vacate the November 2019 entry of default under section 473, subdivision (b) (“section 47303)”). There are two separate, independent ways tn obtain relief ‘All future statutory references tare to the Code of Civil Procedure, unless otherwise stated. 2 mflmmflmMHD‘OmflmM-bMMI-‘D H \OWHJONU'I-bsmw ‘ filed an attorney declaration of fault. Let’s start with the mandatory prong. A court must grant relief under section 473 (b) if: a) a credible attorney declaration admitting fault is filed by the moving party; b) the declaration establishes that the attomay’s “mistake, inadvm'tence, surprise or neglect" caused the default 0r dismissal; and c) the section 473(1)) motion is filed within six months following notice ofentry of the default. (§ 473, subd‘ (b); Cowan v. Krayzman (201 1) 196 Cal.App.4th 90?, 91 5.) Here, given the various Court holidays declared by the Judicial Council and the Chief Justice of California due to the COVID-l 9 pandemic, Defendant’s motion was filed within the six-month window. And one of Defendant’s many" attorneys on this case, David Meyberg, has But the Court dues not find his declaration credible. Mr. Meyberg says hc “inadvertently“ accepted in late August 2017 service of the complaint and summons on behalf of Defendant, but didn’t respond t0 the complaint. But the statemant that he accepted service is inconsistent with Defendant’s past sworn representations t0 the Court, in which Defendant swears he didn't allow any 0f this attorneys t0 accept service. (See Gettel DECL, filed 3/5!’ 1 8, 1i 5.) And Mr. Meyberg’s statement is inconsistent with his later correspondence with Plaintifl‘s‘ counsel, in which he says he wasn't authorized to accept service and implied he hadn’t evar accepted service. (Paetkau Deal... Ex. 7.) Finally, Plaintiffs’ counsel has credibly declared that the mailing 0f the summons and complaint to Mr. Meyberg in late August 2017 Was merely a cnurtesy copy. (Paetkafi DECL, fl 10.) Overall, the Court does not accept Mr. Meyberg’s declaration as credible. In addition, Mr. Meyherg was not counsel when the default was entered, which renders his declaration ineffective. (See Rogaixkz‘ v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 821, fn. 5; Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912, fim. 4.) For these reasons, Defendant’s attempt to obtain relief under the “mandatory” prong of section 473, subdivision (b) fails. III. DISCRETIONARY PRONG 0F SECTION 473(3) Generally, a moving party’s application for relief under section 473 (b) must be made “within a rcasonable time, in no case exceeding six months, afier the judgment, dismissal, or proceeding was taken.” (§ 473(b).) The trial court then has discretion to excuse the default, H \DGO'n-JGxLIILUJb-J m "h-l Ofi LII h Lad M F" G ND 9° ‘4 '0! M uh W M '-' c ‘ the moving party “must show a satisfactory excuse for his default, and he must show diligence in‘ ‘ making the motion after discovery 0f the default.” (Huh v. Wang (2008) 158 Cal.App.4th 1406, 1420, citations and internal quotation marks omitted.) 1 acknowledged that a request for default in this case had been filed. (Id, Ex. 15,1] 16.) Thus, depending on Whether the moving party has sufficiently shown “mistake, inadvertence, surprise, or excusable neglect . . . .” (§ 47303).) The phrase “within a raasonable time” in section 473(b) usually means within three months after becoming aware of the entry of default, absent a good ‘explanation for the delay. (See Smflord v. Mach (1998) 64 Cal.App.4th 1174, l 184.) In sum, Here, even assuming that Defendant’s past attorneys (primarily Mr. Meyberg and M5. Wells) did nut keep Defendant fully informed of the status of the litigation and the entry of default, Defendant directly received numerous documents relating to the default. (Paetkau Dec1.,‘ Exs. 10-13.) In particular, Plaintiff’s counsel sent Defendant in early January 2020 a notice of default prove-up hearing. (de Ex. 13.) And Defendant’s separate lawsuit in Santa Cruz County Defendant knew that a request for default was pending and then entered, but did nothing for several months? That does not constitute diligence. In addition, Ms. Wclls‘ litigation plan seems to have been to attack personal service on Defendant (which occurred on August l l, 20 l 7) as defective or fraudulent, whether at the trial court, the appellate court, or thmugh collateral attack. For instance, she filed such a motion, but withdrew it later because she wanted to have the declaration of the process server done before the motion was heard. (S&e 615/ 1 8 Notice ofEx Pane App. to Remove Motion t0 Quash From Calendar; 65H 8 Order.) She then filed an appeal of Judge Stoelker‘s ruling that would have “teed up“ the service issue, see 9/ 13f l 8 Notice of Appeal, but then, for unknown reasons, the appeal was abandoned a month later. (1 0/3! l 3 Abandonment 0f Appeal.) In the Court’s view, the non-response to Plaintiffs“ complaint and to tha Entry of default seems to have been a tactical 2 Mr. Gettel states in his opening declaration for this motion that he “learned about the clerk‘s default sometime in the end of February 2020." (Gene! Decl., 1] 13.) The Court finds that statement not credible, in light of the evidence dfi'scussed above. |--| NMMMNMMl-Qwfl-fludflflg-ap-nh- W‘Ja‘whWN_O¥DWHmm-BWNHG emmmmnwm choice by counsel. Such a tactical choice is not “mistake, inadvertence, surprise, or excusable neglect“ under the discretionary prong of section 4?3(b).3 Moreover, “a party that contributes to a default or dismissal is not entitled t0 relief.“ (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248.) Defendant contributed to Ms. Wells’ ‘ plan by submitting sworn declarations contesting service. And a5 stated above, Defendant knew that a request for default had been filed and entered, but did nothing for scveral months. Therefore, the Court believes that relief from the November 2019 entry of default is not appmpriate because there. was neither a satisfactory excuse: for not responding to the complaint nor was there diligence in trying to fix this problem. Defendant has many responses. He first argues Defendant didn't know what was going ‘ on, and instead relied completely on Ms. Wells. (See Gene] Decl», 1H! 10-1 3.) The Court does not find this factual assertion credible, as he filed many declarations contesting service in this case and has participated in many lawsuits (and filed hi5 own lawsuit in Santa Cruz). In the Court's view, Defendant knew what was happening. Defendant then claims that Ms. Wells’ actions in this case constitute “positive misconduct“ that would justify saction 473 relief. As the noted Rutter Group treatise states: If the attorney's neglect amounts to “positive: misconduct” toward the cliant, and the client is relativsly free from negligence, then, raven in the absence of an “attorney affidavit of fault" (1] 5:292 ff.), the client may be entitled to relief under § 47303). The theory is that the “positive misconduct” tenninatcs the attorney- client relationship, so that the attorney's neglect is not imputed to the client. [Daley v. County afBurre (1964) 227 CAZd 380, 391 , 38 CR 693, 700] 3 Defendant plainly believes that Ms. Wells was incompetent and cnmmitted fraud. If so, Defendant's remady is a malpractice actinn against her, not this motion to: set aside. Whether Ms. Wells has malpractice insurance: or is judgment proof is not relevant at this Iima [n any event, Dcfendam’s counsel’s assertion at oral argument that Ms. Wells may declare bankruptcy if faced with a malpractice action is pure supposition; there is no evidence to support it. \DmflmM-- h-A p-a p-n y-a H W NJ O\ £11 g DJ N '-‘ O KO W *4 ON m -P~ DJ [\J *-‘ O (Plaintiffs) oppose this motion. Also before the Court is Defendant’s motion t0 Stay Enforcement of the Judgment pending this hearing. Defendant’s default was taken on November 13, 2019. On August 27, 2020 Defendant sought to set aside entry 0f default. In his Order of September 1, 2020, the Hon. Sunil Kulkarni denied Defendants request. On January 4, 2021 a default prove up hearing was held before the Hon. Beth McGowan an'd Plaintiffs’ request for a defaultjudgment was granted. The minute order for January 4, 2021 was reduced t0 a formal order that was signed by Judge McGowan on February 16, 2021 and filed with the Court 0n February 24, 2021. Defendant, in support of his present motion, makes the same arguments regarding alleged defects in service 0f the Complaint that were rejected by Judge Kulkami in his order September 1, 2021. In Coun’s view, the only new arguments are that Judge McGowan’s Courtjudgment is defective because the injunctive relief granted is not supported by the allegations in the Complaint and that monetary judgment is void because it exceeds the prayer for relief in the Complaint. DISCUSSION The Court believes that the alleged defects in service were fully briefed to Judge Kulkarni and that Judge Kulkami’s denial of Defendant’s Motion t0 Set Aside Default was supported by substantial evidence. This Court will not revisit the issue 0f service of the Complaint. Defendant contends, without any real analysis, that Plaintiffs’ Complaint is so poorly drafted the injunctive relief granted by Judge McGowan is not available. Judge McGowan is presumed to have analyzed the injunctive relief requested by Plaintiffs before making her determination of the injunctive relief that should be granted. The relief is exactly what was prayed for in the Complaint. Court will not disturb that portion ofJudge McGowan’s judgment. Defendant further contends that the damages awarded by Judge McGowan exceed the prayer for relief in the Complaint and that the judgment is void. The body of the Complaint alleges damages that are in well in excess of the monetary judgment rendered by Judge McGowan. However, the prayer for relief does not explicitly state the amount requested. Case No. 17CV3 14350 Order Re: Marion to Set Aside Default Judgment WOONQUIkUJNH p-Ax-cI-Io-Av-aI-IHv-av-nv-a Statements ofdamages were served on October 10, 201 8. As Defendant correctly points Out, Statements ofDamages are only applicable in personal injury actions. However, the 4th Cause of Action in Plaintiffs Complaint is for Elder Abuse against John Saich. Elder Abuse is also a personal injury claim. The Statement ofDamages seeks $100,000. The elder abuse statute permits recovery of treble damagw. $100,000 trebled would easily be within the compensatory damages awarded by Judge McGowan. Problematically, the Statement of Damages seeks $100,000 in punitive damages and nothing more. The Court is not sure that such damages could be subject to trebling under the Elder Abuse statute. It is unclear to the Court how Judge McGowan arrived at her damages and prejudgmcnt interest award, based upon the prayer for relief in the Complaint and the declarations in support ofthe default judgment. It appears to the Court that the compensatory damages awarded exceed the prayer for relief in the Compliant. As such, the monetary judgment is void. The Court therefore must vacate the Damages portion ofthe Judgment. This matter is set for a Default prove up hearing before Judge McGowan on November 15, 2021 at 1:30 PM. The Stay on enforcement as to the remainder of the Judgment is lified. OCT 1 8 2021 Dated: j Hon. Christophe udy Judge of the Superior Court Case No. I7CV3 14350 Order Re: Motion to Set Aside Default Judgment SUPERIOR COURT 0F CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRSTSTREET SAN lost, CALIFORNIA 95 l 13 CIVIL DIVISION RE: John Salch vs Stephen Gettel Case Number. 17cv314350 PROOF OF SERVICE ORDER RE: MOTION TO SET ASIDE THE DEFAULT COURT JUDGMENT OF FEBRUARY 24, 2021. was delivered to the parties listed below the above entitled use as set fonh in the sworn declaration below. If you. a pany mptesented by you. or a witness to be called on behalf of that patty need an amommodatlon under the Ameflcan with Dlsabiflties Act, please contact the Court Administrator‘s office at (408) 882-2700. or use the Court's TDD line (408) 882-2590 or the VoicefrDD Cafifomia Relay Service (800) 735-2922. DECLARA‘HON OF SERVICE BY MAIL: I declare that I served this notice by endosing a true copy 1n a sealed envelope. addressed to each person “hose name ls shown below, and by depositing the envelope with pos1age fully prepaid. in the United States Mail at San Jose. CA on October 18, 2021. CLERK 0F THE COURT. by Richelle Belligan. Deputy. cc: Tyler Mark Paemau Procopto Cory Hargreaves 8. Savitch LLP 11 17 S California Ave Ste 200 Palo Alto CA 94304 Mark Steven Corrinet 2210 NW Bayshore Loop Waldport OR 97394 cw-9027 REV 12103116 PROOF OF SERVICE EXHIBIT 22 OWVQMbWN-a N NNNNNNNHHHHHHHHH-n WBaMkw-o©mNmmwaH° ELECTRONICALLY FILED JOHN P. HANNON [1 Superior Court of California Law Offices of John P. Harmon II COUDW 0f Santa Cruz SB No: 111692 8/6/2021 3:49 PM 716 Capitola Avenue, Ste. F Alex Cal 0. Cl k Capitola, CA 95010 By: PH: (831) 476-8005 FAX: (831) 476-8984 Attorney for Plaintiff: STEPHEN GETI‘EL IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CRUZ STEPHEN GETTEL, ) CASE NO.: 2 1 CV01 9 12 ) Plaintiff, ) ) COMPLAINT FOR DAMAGES v. ) ) [Breach of Contract; Negligence] KATHLEEN WELLS, RAY GLOCK- ) GRUENEICH and DOES 1 through 20, ) inclusive, ) ) Defendants. ) _) FIRST CAUSE OF ACTION [Breach of Contract] 1. Plaintiff, Stephen GBTTEL (hereinafier “GETTEL”), is a resident of the County of Santa Cruz, State of California 2. Defendant, Kathleen WELLS (hereinafier “WELLS”), is an attorney, whose principal place of business is located in the County of Santa Cruz, State of California. In doing some or all of the acts alleged herein, WELLS did said acts in the County of Santa Cruz, State ofCalifornia. 3. Defendant Ray Glock-Grueneich, is a former attorney who is disbarred from the practice of law. In doing the things herein after alleged, GLOCK-GRUBNEICH did said acts in the County of Santa Cruz, Stale of California. \OOOQO‘uUIhbJN-n NNNHu-n-I-Iu-I-n-u-nu-IH 3. Plaintiff is unaware of the true names and identities of those individuals sued herein as DOES 1 through 20, inclusive. At such time as Plaintiffbecomes aware of the true names and identities of such fictitiously named defendants, Plaintiff will pray leave ofthe court to amend the complaint accordingly. 4. In refem'ng to Defendants, the term “Defendant” or “Defendants” includes such fictitiously named Defendants who are responsible in whole or in part for the damages alleged to have been incurred by Plaintiff. 5. Each of the Defendants sued herein was the agent, assignee or employee of the remaining Defendants and, in doing the things hereinafier alleged, did said acts within the course and soope of such agency, assignment, or employment 6. As alleged above, WELLS is an attorney licensed to practice law in the Stale of California. As alleged above, GLOCK-GRUENEICH is a former attorney who was disbarred for violation of the law or other reasons by the State Bar of California. 7. GETTEL was sued in Santa Clara County. This matter bears Santa Clara Superior Court case number 17CV314350 and is entitled Saich v. GETTEL. 8. On September 25, 2017, GETTEL retained WELLS to represent him in the Santa Clara matter. (A true and correct copy ofthe retainer agreement dated September 25, 201 7, is attached hereto as Exhibit A and made a pan hereof.) Under the terms ofthe written contmct for legal services, WELLS agreed to provide legal services to GETTEL in exchange for payment of WELLS’ hourly fees. The scope of the work to be performed by WELLS included defending GETTEL in the Santa Clara Superior Court matter as well as bringing a cross-complaint for damages as against the Plaintiffs in such matter. 9. On September 1, 2018, the contract for legal services was amended to include representation by WELLS in two matters that were filed by WELLS in Santa Cruz Superior Court. (A true and correct copy of this amendment to the contract is attached hereto as Exhibit B and made a party hereof.) 10. As alleged above WELLS used the services ofGLOCK-GRUENEICH as a paralegal. Also as alleged above, GLOCK-GRUENEICH is disbarred fiom the practice of law. -2- _n CmflQUt-wa 10 11 12 13 14 15 l6 17 18 19 20 21 23 24 25 26 27 28 11. Under California Rules of Professional Conduct, Rule 5.3. 1, subdivision (d), the hiring of a disbarred attorney is allowed only afier notice is given to the California State Bar as well as to the client. Specifically. subdivision (d), provides: “(d) Prior to or at the time of employing, associating in practice with, or assisting a person the lavwer knows or reasonably should know is an ineligible person, the lawyer shall serve upon the State Bar Mitten notice of the employment, including a full description of such person’s current bar status. The written“ notice shall also list the activities prohibited in paragraph (b) and state that the ineligible person will not perform such activities. The lawyer shall serve similar written notice upon each client on whose specific matter such person will work, prior to or at the time of employing, associating with, or assisting such person to work on the client’s specific matter. The lawyer shall obtain proof of service of the client’s written notice and shall retain such proof and a true and correct oopy of the client’s written notice for two years following termination of the lawyer’s employment by the client.” 12. GETTEL is informed and believes and thereon alleges that WELLS failed to provide the requisite notice to the California State Bar conceming the use ofGLOCK-GRUENEICH as a paralegal. 13. WELLS did not provide the notice to GETTEL as required by Rule 5.3.1 subdivision (d) and did not warn GETTEL that GLOCK-GRUENEICH had been disbarred and was prohibited from the practice of law. 14. Despite GLOCK-GRUENEICH ’s inability to practice law, GLOCK-GRUENEICH, in fact, acted as an attorney far GETTEL. GETTEL is informed and believes and thereon alleges that GLOCK-GRUENEICH was the person actually handling portions of the litigation and that WELLS was reduced to a “rubber stamp” who simply signed documents prepared by GLOCK- GRUENEICH. 15. GETTEL contends that since GLOCK-GRUENEICH acted as his attorney, GLOCK- GRUENEICH should be held to the same obligations as an attorney, including the duties to act competently and with due care. l6. An actual and implied term ofthe legal retainer agreement and the amendment thereto between GETTEL and Defendants provided that Defendants would exercise due diligence and professionalism in the performance of her duties as an attorney. Such duties include acting in a manner cxpcctcd of a professional the area of civil litigation. Such duties also include due care -3- \DOOQOUI$WN-‘ NNNNNNNNN-fl-Hflfl-wm- WQQMAWNHOWWQ@M&WN-‘o and the duty to meet court deadlines, perform reasonably diligent msearch of the facts and law, inform GETTEL of the potential risks and benefits of various legal strategies and to file legal proceedings only afier obtaining the fully informed consent of GETTEL. l7. Defendants failed to exercise their obligations under the various contracts for legal services in regard to the Santa Clara Superior Court matter by doing or not doing the following things: A Despite being retained by Plaintiff to provide representation in the Santa Clara Superior Court, Defendants never actually filed an answer to the complaint. As a result, a default was taken and, later, a default judgment was entered against Plaintiff. B. Defendants failed to file a timely motion to set aside the default under Code of Civil Procedure section 473. Under section 473, had Defendant WELLS admitted fault, the ooun would, as a matter of law, set aside the default. WELLS’ s failure to file such a motion along with a declaration of fault resulted in the default not being set aside and, later, ajudgment entered against GETTEL. C. Defendants failed to cooperaxe with new counsel in providing a declaration offault so that the default could be set aside. As noted, a declaration of fault on the part of Defendant WELLS would have lefi the trial court no choice but to set aside the default. The failure of Defendant WELLS to cooperate with new counsel in obtaining a declaration of fault resulted in the default not being set aside and, later, ajudgment being entered against Plaintifl'. D. Defendants filed a motion to quash service of process. In filing this motion, Defendants failed to inform GETTEL that should this motion to quash be denied he would be responsible for reasonable attorney fees. The risk ofattorney fees being awarded as part ofa denial ofthe motion to quash was a material fact that should have been disclosed to GETTEL prior to the filing ofa motion to quash. When the motion to quash was abandoned by Defendants, attorney fees were awarded against Plaintiff. E. Despite filing a motion to quash, Defendants abandoned this motion without the knowledge or consent ofGETTEL. Whatever merits might have been present in the motion to OWQQMAMNu-a N NN-~----p-u-u- quash were abandoned. As a result of the abandonment of the motion to quash by Defendants, the trial court awarded attorney fees against GETTEL F. Defendants failed to comply with disoovety requwts or to inform or instruct GE'ITEL to comply with such discovery requests. As a result, GETTEL was sanctioned by the trial court due to the negligence and willful misconduct on the part of Defendants. G. Despite being retained to file a cross-complaint in the Santa Clara matter, Defendants never filed such cross-complainL The failure of Defendants to file the cross-complaint may act as a bar to filing such action in the future. H. Defendant WELLS failed to inform GETTEL regarding GLOCK-GRUENEICH’S status as adisbarred attorney. Had such information been provided, GE'ITEL would have been warned regarding potential problems with GLOCK-GRUENEICH’S representation and either refused to hire GLOCK-GRUENEICH or monitored his conduct more closely. I. WELLS failed to monitor the actions ofDefendant GLOCK-GRUENEICH so as to assure that his actions while acting in the capacity as a lawyer met the minimum standards expected by the law, the courts and society. l8. In addition to the negligent handling of the Santa Clara Superior Court matter, Defenth committed professional negligence in two matters filed by Defendant in Santa Cruz County. These matters are entitled Gettel v. Paetkau (Santa Cruz Superior Court case number 18CV02355) and Gettel v. Saich (Santa Cruz Superior Court case number 18CV02356). l9. Defendants failed to exercise their obligalions under the various contracts for legal services in regard to the Santa Cruz Superior Court matters by doing or not doing the following things: A. The filing ofboth lawsuits was clearly improper. No attorney would who had conducted even amodicum of research would have filed an action for malicious prosecution or abuse of process against the client and the attorney under the facts of the case. B. The filing of the Santa Cruz actions was without the informed consent ofthe Plaintiff. The filing of the Santa Cruz actions would clearly implicate Code of Civil Procedure section 425. 16. Under this section, Plaintifi' became responsible for attorney fees for any cases which fall -5- fl \OOOQQUIAUJN 10 ll 12 13 14 l6 17 l8 l9 20 26 27 28 within the scope ofthe statute and which is dismissed based upon such section. GETTEL was not I informed of the potential liability that was likely to arise from the filing ofthe improper lawsuits II by Defendants. C. The representation ofGETTEL by Defendants in the Santa Cruz matters was beneath ’I the standard of care of any reasonably competent attorney. Defendant’s pleadings were unrasearched and largely incoherent. ~- D. The pleadings prepared by Defendants appear to be an effort to use the court system in Santa Cruz to seek to overrule the finding of another court. The findings of the trial court in Santa H] Clara County were res judicata as between the parties. No attorney would believe or assert that simply by filing a complaint in a different county that the Superior Court of such county would find that a fillly litigated issue between the same parties in Santa Clara County should be i determined differently in Santa Cruz County. r 19. Plaintifi's have performed all ofthe obligations under the agreement between Plaintiff fl and Defendants. 20. As a proximate result of the actions of Defendants, GETTEL has had judgments Fl entered against him in amounts that are not justified by the actual facts or were the result of sanctions, attorney fees, and costs imposed on Plaintiffdirectly resulting fiom the misconduct and negligence of Defendant. In the Santa Clara County matter, the actions and inactions of Defendant proximately resulted in ajudgment of $53 1,440.87. In the Santa Cruz matters, the actions or inactions of Defendant resulted in ajudgment of $37, l 16.87 in case number 18CV02355 and $39,168.75 in case number l8CV02356. 2 1. As a further proximate rwult of the actions of Defendant, Plaintiff has had to retain l‘ other attorneys to try to fix the problems created by Defendant and to undue the damage causes by fil her negligent conduct. The exact amount of such attorney fees is ongoing but is in excess of $100,000.00. IH 22. As a further proximate result ofthe actions of Defendant, Plaintifl has a judgment against him which includes allegations of fiaud. Such ajudgment has or will affect the ability of L Plaintiff to engage in his profession as an appraiser. This judgment has and will result in a loss of -5- \DWQO\UI&LBN- Nun n-I-nh-Ih-Ir-IH-au gggagwggooaanAw-o income to Plaintifl‘ in an amount not precisely known at this time, but reasonably expected to be in excess of$ l ,000.000.00. 23. The failure of Defendants to properly assen a cross-complaint in Santa Clara Superior Com't may have the effect of barring such action in the future. As a result, the damages that could have been obtained from such cross-complaint have been lost. As a proximate result of the actions of Defendants, Plaintiff has suffered damages in an amount of not less than $569,000.00. Wherefore, Plaintiff prays forjudgment as set forth below: SECOND CAUSE OF ACTION [Professional Negligence] 24. Plaintiff hereby realleges the first cause of action as if fully set forth herein. 25. As alleged above, WELLS is a licensed attorney under the laws of the State of California Also as alleged above GLOCK-GRUENEICH is practicing as an attorney and should be held to the standards of such attorneys. 26. As attorneys, Defendants have a fiduciary duty to provide competent and adequate representation of Plaintifl‘. Defendants have an obligation to inform Plaintiffof his legal rights when they become aware of such rights, pursue such legal rights to the best of her abilities, and to undertake to represent Plaintifi‘ in a thorough and competent manner. Further, Defendants have an obligation as a fiduciary to Plaintiff so as to put the interests of Plaintiff ahead of her own interests. 27. In doing the things herein alleged, Defendants failed to act in a reasonably prudent and competent manner and breached their fiduciary duties to Plaintiffs. Defendants abandoned Plaintiff in one action and brought two actions that no attorney would ever file. 28. As a proximate result of the conduct of Defendant, Plaintiff has suffered damages as alleged herein in a sum according to proof, but not less than the minimum jurisdiction of this court. Wherefore, Plaintifl‘prays forjudgment as set forth below: // // \DOOQO\UI&WN-a NM NM H~H-~HHHH THIRD CAUSE OF ACTION [Negligence] 29. Plaintiff hereby malleges the first and second causes of action as if fully set forth herein. 30. GLOCK-GRUENEICH assumed a duty of due care by acting in the capacity of an attorney in the legal matters ofGETTEL 31. In doing the things alleged herein, GLOCK-GRUENEICH breached this duty ofdue care. 32. As a proximate result of the actions ofGLOCK-GRUENEICH, GETTEL has been damaged as alleged herein. Wherefore, Plaintiffprays forjudgment as set forth below: PRAYER FOR RELIEF Plaintiffhereby prays for relief as follows: l. For damages arising fiom the judgments entered against Plaintifl‘ in the sum of $607,726.49. 2. For damages arising from cunent and future loss of income in an amount of not less than $1,000,000.00. 3. For damages arising fiom reasonably foreseeable aItomey fees that have been expended trying to minimize or otherwise reduce the effect of the misconduct of Defendant in a sum ofnot less than $100,000.00. 4. For the loss of damages arising from the failure ofDefcndants to assert damagm under a cross-complaint in the sum of 569,000.00 5. For cost of suit incmred herein. 6. For attorney fees if allowed by contract or statute. ' 7. For such other and further relief as the court may deem just. Dated: _3,//éI/21 ' ANNON II game); for Plaintiff: STEPHEN GETTEL EXHIBIT A ATTORNEY-CLIENT MODIFIED HOURLYICONTINGENCY FEE AGREEMENT Kathleen Wells (“Attorney”) and Stephen Gene! (“Client") agee that Attorney will provide legal services to Client on thc terms set forth below. Section l CONDITIONS This Agreement will not take effect, and Attorney will lave no obiigation to provide legal services. until Client returns a signed copy ofthis Agmemem. Section 2 SCOPE OF SERVICES Client hires Attorney to provide Icy] services in the following matter only: Defense of client and filing of cr0$ complaint in the matmr of Saich, e1 al. v. Gettel. San Mateo Superior Court Case No. 17CV314350. Attorney will provide those legal services reasonably required to represent Client. Attorney wul take reasonabha steps to keep Client informed of progress and to respond to Client’s inquiries. This Agreement DOES NOT cover representation in any matter not described above. Section 3 CLIENT DUTIES Client agrem to be imthful with Attorney, to coopcrmc, and to keep Attorney informed ofany information or developments that come to Client’s attention, Client agrees to abide by this Agmemcm and agrees lo keep Attorney advised of Client’s current address, telephom number and whereabouts. Client will assist Attorney in providing necessary information and documents and will appear when nemsary at legal proceedings. Section 4 ADVANCED FEE DEPOSITS Initial and Subsequent Advanced Fee Deposits Attorney acknowledges that Client has already paid Attorney{afl for advanced fees. Any deposit ova and above fats earned (including paralegal few), ll be held in Attorney’s client trust account. Client amhon'zcs Attorney to use that fund to pay the fees and other reimbursabie expenses as they are incurred Whenever the deposit is exhausted, Attorney reserves the right to demand further deposits, each up to a maximum of $1000. Client agrees to pay all deposits afier the initial deposit within 10 (ten) days ofAttomey‘s demand; Client acknowledges that failure to provide a fee deposit as set forth in this Section is good cause for Attorney’s withdrawal. Unless otherwise agreed in writing, any unused deposit at the conclusion ofAnomey's services will be refunded Section 5 FEES (n) Hourly Rate (Discounted) Client agrees to pay by thc hour at Attorney‘s discounted hourly rate for all time spent on Client’s matter by Attorney. The current discounted hourly rate for Attorney 'u $150.00 per hour. This rate is subject to change on 30 days written notice to Chem. lf Client declines to pay any incmased rates, Attorney will have the right to withdrawas Attorney for Client (b) Chargeable Tasks Time is charged in minimum increments ofm tenth (0.1) ofan hour. The time charged includes, but is not limited to, the following tasks: the time Attorney spends on telephone calls relating to Client I matters, including calls with Client, witnwses, opposing counsel or coun personnel; waiting time in court or at court clerk’s ofiioe; legal reseamh; drafiing andior reviewing pleadings, correspondence, other legal documents reasonably required; attendance a1 settlement oonferencm and depositions; and travel time. (c) Contingency Rate (Discounted) Fifteen Percent (15 %) of the grass recovery ifthe case scales before 60 days of the date set fortrial of the matter. Twenty Percent (20 %) ofthe g‘oss poceeds if the case setfles in the thirty day period prior m trial or ifthe matter woceeds 1o tn'al. The contingency fee is in addition to :he hourly rate set forth herein. The above fee schedule is not set by law, but is negotiable between Attorney and Clienm Said fee schedule covers oxfly the handling of thc matters set fonh in Paragraph Iabovc. Any other maxim handled by Atmmey for Clients are not included in this Agreement and Clients shall pay Attorney additional compensation for any such other matters as Attorney and Clients may agree. (d) Payment of Fees By Third Parfla California Rule ofProfew’onal Conduct 3-3 10(F) provides: A member shall not accept compensation for replesenting a client fmm one other than the client unless: (1)There is no interference with the member’s independence of professional judgment or with the client-lawyer relan‘onship; and (2) Information relating to represmtation of the client 1's protected as required by Business and Profwsions Code section 6068, subdivision (e)and (3) The member obtains the client‘s informed written consent. Client undersxands and acknowledges that ifany pan ofthe Attorney’s fee is paid by a third party that there will be no interference with the Attorney’s independence of profasional judgment and that Attorney must protect information relating to the representmion of the Client from disclosure to the third party as required by law. Section 6 COSTSAND OTHER CHARGES (a) General Attorney will incur various costs and expatsm in pmviding represenmn'on under this Agreement. Client agrees to pay for all costs‘ disburscmems and expenses in addition to the hourly fee. The costs and expenses commonly include, service of process charges, filing fees, court and deposition rcporters' fees, deposition costs. long distance telephone charges, messenger and other delivery fees, electronic dambase research charges (e.g‘ Jurisemh or Wcsdaw) postage, photocopying and other reproduction costs, travel costs including parking, mileage (at standard IRS allowance), transportation, meals and hotel costs, investigation expenses, consmtants‘ fees, expert witness, professional, mediator, arbitrator and/or special master fees and other similar items. A11 costs and expenses will be charged at Attorney‘s cost. (b) Out ofTown Travel Client agrees to pay transportation, mls, lodging and all other costs ofany necessary out-ofotown travel by Attorney. (c) Parabgal Servicu To aid in the ptepamtion or presemion ofClient's case, Attorney has and will in the future him paralegal Ray Glock~Gmeneich at the discounted rate of $70.00 per hour for paralegal work and $35.00 per hour for secretan‘al work. Travel time shall be charged at the secretarial rate. (d) Expem, Consultants and Investigators To aid in the preparation or presentation of Ch’ent’s case, it may become necessary to hire expert witnesses, consultants or investigators to be hired and Client will be informed ofpersons chosen and their charges. Section 7 BILLING STATEMENTS Attorney will mail Client a steamer): for fees and costs incurred to the currentWm provided by Client to Attorney on a periodic basis. The statements shall inciude the amount, rate, basis of calculation or other method of determimtion ofthe fem and costs. and costs will be cleady identified by item and amount Within 10 days qulicm’s request, Attorney will provide a bill detailing fees and costs incurred. Section 8 DISCHARGEAND WITHDRAWAL Client may discharge Attorney at any time. Attorney may witlmraw with Client consent or for good cause. Good muse includes Client’s failure to pay few as proviwd by this Agreement, any other breach of this Agreement, refusal to cooperate or to follow Attorney's advice on a material matter, and any fact or circumstance that wouid render Anomay's continuing representation unlawful or unethical. When Anomcy's services conclude, a1] unpaid charges will immediately become due and payable. After services conclude, Attorney will, upon Client mqm, deliver Client files. and property in Attorney’s possession, whether or not Client has paid for all services. Section 9 DISCLAMER OF GUARANTEE AND ESTIMATES Nothing in this Agreement and nothing in Attorney's statemnts to Clint will be construed as a promise or guarantee about the outcome of the matter. Attorney makes no such promises or guarantees. Anomey‘s comments about the outcome of the matter are expressions of opinion only. Any estimate of fees given by Attorney shall not be a guarantee. Actual fees may vary from estimates given. Section 10 ENTIRE AGREEMENT This Agreement contains thc entire agreement ofthe parties. No other agreement, statement, or promise made on or before the efiectivc dale of this Agreement will be binding on the panics Section ll SEVERABILITY IN EVENT 0F PARTIAL INVALIDITY lfany provision of this Agecment is held in whole or in part to be unenforceable for any reason, the remainder ofthat provision and of the entire Agreement will be severable and remm'n in effect Section 12 MODIFICATION BYSUBSEQUENTAGREEMENT This Agreement may be modified by sdzsequent Agreement of the pam'es only by an instrument in writing signed by both ofthem or an om] agteanem only to the extent that the panics may it out. 3 Section 13 EFFECTIVE DATE This Agreement will gogem all legal services perfomed by Attorney and Mega] on behalf ofCh’ent commencing on the date services were first mdemd. The date at tbs beginning of this Agreement is for reference only. Even ifthis Agreement doa not take efl’ect, Client will he obligated to pay Attamey the reasonable value of any services Attorney may have provided for Client Attorney hereby ldv‘nes Client tint she does not entry malpractiee insurance. The Parties Have Rad and Understood the Foregoing Terms and Agree to Them u of the Daze Attorney and Pnnlegd First Pmlded Saving. Client Shall Receive I Fully Executed Duplicate of this Agreement. Client 7 omey many; ‘ 3 Dam ¢fl§// 7 EXHIBIT B MODIFICATKN 0F FEE AGREEMENT The imm mums"! (Modification)bum Stephen W‘ Gm! (Cb‘em) and Kmhtocn E. Wells (Attorney) s amm ofthe ”Atmmcy-Ciicm Modified Hmllemingmcy Fee Agreement" (Initial FeeAm!) pmv'musly sigma by Ciiem and Attorney A copy ofsald earneramen: is attached hereto. Except as modified herein. said Initial FeeAmman remains in effectam governs the povision ofauy further lcgal savices authoriwd by this Modification. Section 2 (Scope ofSenn'cm) of Initial Fee Amman! is modified to mod as follows with eiiminated Wage appearing ‘mWW and new Ianguage 311mm; m bold typc Client him Anomay lo provide legalswim m the followingmm only: Special nppunuee to mags in appmprhtc proceufinfis) to chafing: claim of Mum: 'm them ofSw‘ch. e: aI. v. Genet,Seam Sana Clar- Supen'or Court (Superior Com) Case No. 17CV314350 tint Client ha been propafly served with the Summons and Commint in said nutter. Given that Attorney did tindy fl: on behalf ofaienl I motion to quash serving with the setting of a hearing date on said motion. lad given that Attorney did obtain lave to hnve said bearing on said motion temoved from the calendar in order Io accomplishWay perfincat to Sid motion to quash, and given that Judge SmdkcrofSuu Clara Superior Cour! has ruled that said removal of said motion to quash from the calendar us a mntur of law effected a status ol' said motion to quash so flu! it is no longer "pending" and that such 31am precludes any discovery pertinent to said motion to quash, and given the further comment ol'J-dge Stoclkcr that it is loo Inc to fik another motion to quash unite, it is the opinion ol' Attorney that two remedies remain available mCIicm with raped to said matter, m wit: l) File and prosecute n writ of mandamus with fie Court of Appeal fur tht l Mod'd'mim ofl-‘aeMm Sin!) Appellate District (Appetl Court) seeking to hvc Appul Court compel Judge Stodker (or othcrjurbt ofSanta Clan Superior Com) mam said rating (ha: (fficnt's motion to quash b n0 longer "pending"; 2) If Superior Court rules at a pmevup belting that Plnintilfs or either of them are cnfiticd to I default judgment against Client. to file a separate case in equity to have such judgment set aside on the ground that no pmper service was accomplished in said case. Client and Attorney will further consul! regarding whether one or both of these efforts will be made, but assuming oral consent by client with respect to Attorney pursuing one or both of these modes of relief, the legal genius intidcnt to such efforts will be inciuded within the scope of services authorized by this Modificafion. notwilhsulding that tcclmiuliy the writ proceeding nnd/or the equitable case to set aside judgment wfilm have the same docktt number as the. instant proceeding. Attorneymm that sh: bu proceeded in the mmion to quash proceeding in a propcr manner, however by agreeing to pursue either or bath of these remedies. Client does NOT waive any claim which he my hut or com: m have that Attorney did no! proceed in a proper manner. If Plaintiffs in uid matter witidnw their Request for Debut: and either properly 3cm Client with the Summons and Complaint, or a Summons nn an amended complaint and I filtd amended complaint in said matter, or if Client agrees that Mtorney may accept service of said Summons and Comphim m- Summons on an amcnded complaint and an amended complaint, Attorney is hired toawn (Int slid matter has been filed in a County of improper venue, to wit: Santa Clara County. and to seek transfer ofsaid matter to Superior Conn for Santa Cruz County. H at any point Client is agnin med with (or upon his authorhtion. Attorney is 2 Modificuimofficw served with on his beta") a Summons and Complaint in said nutm- or a summons on amended comphint and amended complaint, or similnriy Client or Attorney arc served with a comparable Summons and Complaint fled in Superior Court for Santa Cruz County. then Attorney 1m! provide Idlefmsc ot‘lCilécnt and filirg of cross complamt in said mutter. If Client has not made a general appearance by the time that the statue of limitations on any cums) of action in the contemplated cm-complaint is imminent, Attorney will file at least such cause“) of action which have In imminent shun: of limitations in a apatite suit. Addifimily. Attorney will Ii]: a separate sui! spins! prawn! Plainlifis for Abuse of Pincus in Superior Conn based on said matter being filed in a Court of improper venue. Furthermore. Attorney will file I Petition seeking leave ofSum Clan Superior Court to file a separate suit against the attorneys who filed said cm aglinst client in a Court of improper venue. The statute of limitations on this abuse of process suit and this petition is AUGUST 13. 2018. Attorney will mmonablc steps to keep Client Manned ofprogws and to mpond to Ch'cnl’s inquiriex Neither the Initial Fee Agreement nor this Modiflcntionmm cover repremtation in any matter n01 dewn'bed above. The following is added to Section 4 of initial Fae Agmcment: If Client authorizes the Abuse ofPmcm Suit nuwor Petition for leave to me Abuse , . é” of Process Sui! against Attorneys,u addition! kc deposit of S Z I aw - will be required. MofificuionofmAmt! "Client“1W a Writ Proceeding.u addltiml fee await ofS Wm he nquind. lf Ciient nafioriw a septum: Mi! in equity an additional {cc dcposit 0f S___________ nil be required. The following is added to Section 8 of Initial Fee Ageement Cheat may discharge Attorney at lay time from one or snort d“ the tam in which he '5 represented by Attorney, while continuing to have Attorney representing him in other cast(s) which have hm nflmfized. Similarly, Attorney may withdraw from one or mom ofthc can, while continuing to rcpresem Clicnt on any remaining clack). Modifiamaofl-‘eew