Ko vs. Ez Funding Corporation

Motion to Compel Production/Inspection of Documents or Things

Cal. Super. - 4th Dist.October 7, 2015

A K E R M A N L L P 72 5 S. F I G U E R O A S T R E E T , S U I T E 38 00 L O S A N G E L E S , C A L I F O R N I A 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - F A X : (2 13 ) 62 7- 63 42 N D N N N N N N N N Y e m e m e m e m e d ee d p e p e N N N N n n k A L N = , O N Y B W N D AKERMAN LLP JUSTIN D. BALSER (SBN 213478) Email: justin.balser@akerman.com 725 South Figueroa Street, 38" Floor Los Angeles, California 90017-5433 Telephone: (213) 688-9500 Facsimile: (213) 627-6342 Attorneys for Defendants NATIONSTAR MORTGAGE LLC, AURORA COMMERCIAL CORP., successor entity to AURORA BANK FSB, AURORA LOAN SERVICES LLC, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CIVIL COMPLEX CENTER EUN KO, an Individual, Case No. 30-2015-00813353-CU-OR-CJC Assigned to the Hon. Ronald L.. Bauer Plaintiff, DEFENDANTS' NOTICE OF MOTION Vs. AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND EZ FUNDING CORPORATION, a Corporation; FOR PRODUCTION OF DOCUMENTS; NATIONSTAR MORTGAGE, LLC; AURORA REQUEST FOR SANCTIONS; BANK, FSB; LSI TITLE COMPANY, a business MEMORANDUM OF POINTS AND form unknown; Aurora Loan Services, LLC; AUTHORITIES IN SUPPORT THEREOF Mortgage Electronic Registration Systems, Inc.; Mortgage Electronic Registration Systems, Documents to be Filed Herewith: MERS, as Nominee for Aurora Loan Services 1. Declaration of Justin D. Balser LLC; Quality Loan Service Corp.; Stewart Title; 2. [Proposed] Order Fidelity National Title Insurance Company; and ALL PERSONS UNKNOWN, Claiming Any Hearing Date (Reservation No. 72318201): Legal or Equitable Right, Title, Estate, Lien, or Date: March 14, 2016 Interest in the Property described in this Time: 9:00 a.m. Complaint adverse to Plaintiff's Title thereto; and Dept. CX103 DOES 1 through 10, inclusive, Complaint Filed: October 6, 2015 Defendants. FAC Filed: December 14, 2015 Trial Date: None TO THE COURT, TO ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:PLEASE TAKE NOTICE that on March 14, 2016, at 9:00 a.m., or as soon thereafter ascounsel may be heard, in Department CX103 of the above entitled Court, located at 751 W. Santa AnaBlvd., Building 36, Santa Ana, California 92701, defendants Nationstar Mortgage LLC (Nationstar),{37258998:1} 1 CASE No. 30-2015-00813353-CU-OR-CICDEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FORPRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT THEREOF A K E R M A N L L P 72 5 S. F I G U E R O A S T R E E T , S U I T E 38 00 L O S A N G E L E S , C A L I F O R N I A 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - F A X : (2 13 ) 62 7- 63 42 N D N N N N N N N N e s e e e e e s e s e e e d e s 0 N N L L h s W N = O O N Y R W = O N Y Y Aurora Commercial Corp., successor entity to Aurora Bank FSB (ACC), Aurora Loan Services LLC (ALS) and Mortgage Electronic Registration Systems, Inc. (also named as "Mortgage Electronic Registration Systems" and "MERS, as nominee for Aurora Loan Services LLC" (MERS) (collectively, defendants), will and hereby do move for an order compelling plaintiff Eun Ko (plaintiff) to appear for deposition and produce the documents listed in defendants’ previously-served notice of deposition as soon as possible, at Akerman LLP, 725 South Figueroa Street, 38th Floor, Los Angeles, California 90017-5433. Defendants will also move for an order that plaintiff pay defendants the sum of $4,375.00 as the reasonable attorneys' fees incurred by defendants in connection with this motion. This motion is made pursuant to California Code of Civil Procedure § 2025.450(a) on the grounds plaintiff refused to appear for deposition or produce the documents defendants requested despite proper notice, without any justification. Pursuant to California Code of Civil Procedure § 2016.040, defendants attempted in good faith to contact plaintiff to inquire about the non-appearance. This motion is based upon this notice of motion, the memorandum of points and authorities filed herewith, the attached declaration of Justin D. Balser, all matters of which the Court may take judicial notice, all pleadings, records and files in this action and such evidence and argument as may be presented at or before the hearing on this motion. A Dated: February 10, 2016 Tusfinood Attorney for Defendants NATIONSTAR MORTGAGE LLC, AURORA COM RCIAL/CORP., successor entity to AURORA BANK FSB, AURORA LOAN SERVICES LLC, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. {37258998:1} 2 CASE No. 30-2015-00813353-CU-OR-CJC DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF A K E R M A N L L P 72 5 S. F I G U E R O A S T R E E T , S U I T E 38 00 L O S A N G E L E S , C A L I F O R N I A 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - F A X : (2 13 ) 62 7- 63 42 B N N N N N N N N e e e e e a e m e m e m e d p e © I Y n n A W N = O N N Rl s W N N R o MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiff is but an alias of Stephen Ko, a serial litigant who has filed numerous lawsuits without any merit. Plaintiff fails to show up at hearings, instead sending one of Stephen Ko's accomplices in her stead, who invariably offers explanations such as plaintiff has "trouble walking" or is "busy searching the records" as grounds for her non-appearance. Whether plaintiff even exists or is simply a fiction created by Stephen Ko to harass defendants and maintain baseless lawsuits is a legitimate question. There is no question plaintiff (or Stephen Ko) received defendants’ deposition notice. It was served on plaintiff via Federal Express on December 18, 2015 at the address identified on the first amended complaint. "P. Park" signed for the delivery. The notice set plaintiff's deposition for January 6, 2016 at 10:00 a.m. in the offices of defendants’ counsel in Los Angeles. Plaintiff-who appeared at the January 4, 2016 case management conference through yet another non-party, non-attorney-was reminded of the deposition in open court. The person who appeared, someone claiming to be named Tae Ko, said he would speak with plaintiff about the deposition. Counsel subsequently attempted to confer with plaintiff regarding the deposition but was only able to leave a message on the answering machine for the telephone number identified on the first amended complaint. Counsel received an automated response, which did not identify plaintiff, and thus was required to leave a voicemail. Plaintiff never returned call. To date, plaintiff has not returned any of counsel's calls. Plaintiff failed to object to the deposition notice with the timeframe proscribed in the Code of Civil Procedure. Plaintiff was obligated to appear but failed to do so. Defendants request sanctions in the amount of $4,375.00 for the time spent by the undersigned to appear for the deposition. Defendants also request the court order plaintiff to appear for deposition as soon as possible and produce the documents defendants requested without objection at or before the deposition. ! This person very well could have been Stephen Ko himself. {37258998:1} 3 CASE No. 30-2015-00813353-CU-OR-CJC DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF A K E R M A N L L P 72 5 S. F I G U E R O A S T R E E T , S U I T E 38 00 L O S A N G E L E S , C A L I F O R N I A 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - F A X : (2 13 ) 62 7- 63 42 N N N D N N N N N N m e e m a p m e m p m p m p d p e c o I N n n BR A W N = O N D N N R s W N e e A. IL. RELEVANT BACKGROUND Plaintiff is a Vexatious Litigant-who May Not Exist. In the last seven years, plaintiff has filed af least nine lawsuits or bankruptcies, none of which have proceeded on their merits: 1. In re Fun H. Ko. Case No. 09-bk-22650-TA (Bankr. C.D.Cal. 2009): Case filed on November 16. 2009 and dismissed on December 17, 2009 for failure to file schedules, statements and/or plan. 2. In re Eun H. Ko. Case No. 10-bk-210360TA (Bankr. C.D.Cal. 2010): Case filed on August 9. 2010 and dismissed on September 23, 2010 for failure to file schedules, statements and/or plan. 3. In re Eun H Ko. Case No. 1-bk-57704-ER (Bankr. C.D.Cal. 2010): Case filed on November 5. 2010 and dismissed on October 29, 2011 for failure to appear at 341(a) meeting of creditors. 4. Eun Ko v. Eugene Kim. Case No. 30-2011-00440391-CU-HR-NJC (Orange County Superior Court): Case filed on January 12, 2011 and dismissed on January 26, 2011 for lack of prosecution. 5. Eun Ko v. Aurora Loan Services LLC, Case No. 30-2011-00510712- CU-OR-CJC(Orange County Superior Court): Case filed on September 26, 2011 and dismissed on March 14, 2012 without prejudice by plaintiff. 6. In re Eun H Ko. Case No. 12-bk-18062-RN (Bankr. C.D.Cal. 2012): Case filed on October 5. 2012 and dismissed on September 8, 2012 for failure to appear at 341(a) meeting of creditors. 7. In re Eun H. Ko. Case. No. 12-bk-32737-MH (Bankr. C.D.Cal. 2012): Case filed on October 5. 2012 and dismissed on November 6, 2012 for failure to file schedules, statements and/or plan. 8. In re Fun H. Ko. Case No. 13-bk-11978-MH (Bankr. C.D.Cal. 2013): Case filed on February 4. 2013 and dismissed on May 31, 2013 for failure to appear at 341(a) meeting of creditors; 9. Eun H. Ko v. Rusnak Corp... Case No. BC 596764 (Los Angeles County Superior Court): Case filed on October 5, 2015, then plaintiff filed a request for dismissal on December 17, 2015. (Declaration of Justin D. Balser (Balser Dec. 415.) These nine lawsuits do not include those Stephen Ko filed in his own name, e.g., Stephen Ko v. Aurora Loan Services LLC et al, Orange County Superior Court Case No. 30-2010-00371217 and Stephen Ko v. Aurora Loan Services LLC et al, Orange County Superior Court Case No. 30-2011-00493117. (Id. 417.) Plaintiff has not personally appeared any point during the course of this case. (Id. 16.) Nor has she returned a single one of counsel's phone calls to discuss this case. (/d.) The circumstances {37258998:1} 4 CASE No. 30-2015-00813353-CU-OR-CIC DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF A K E R M A N L L P 72 5 S. F I G U E R O A S T R E E T , S U I T E 38 00 L O S A N G E L E S , C A L I F O R N I A 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - F A X : (2 13 ) 62 7- 63 42 N N N N N N N N N m m e m e a e m e m e d p d e m 0 3 N N n n B R L N D O D O R A W N Y = o under which her prior cases have been dismissed (e.g., failure to appear at the 341(a) meeting of creditors and lack of prosecution) also suggest plaintiff may not exist-but instead is an alias of her ex-husband, Stephen Ko. The court continued the January 5, 2016 case management conference to February 2, 2016 based on plaintiff's non-appearance. (See docket.) The court has ordered her to personally appear at the next case management conference. B. Plaintiff Failed to Appear for the January 6, 2016 Deposition. Defendants issued a notice of deposition to plaintiff on December 17, 2016. (Balser Dec. 95.) The notice required plaintiff to appear for deposition at Akerman LLP's Los Angeles office on January 6, 2016 at 10:00 am. (/d.) The notice also required plaintiff to produce relevant documents. (Id) Defendants served the notice on plaintiff at the addresslisted in the first amended complaint via Federal Express. (Id. 6.) It was delivered on December 18, 2016 and accepted by a "P. Park." (/d.) Defendants' counsel, David Ocanas, a court reporter, and Chansun Nishimura, a Korean interpreter, appeared for the deposition. (/d. 99.) Plaintiff did not. (Id) At approximately 10:45 a.m., defendants’ counsel called plaintiff on the record at 213-536-7119 to determine her whereabouts and why she did not appear for deposition. (/d, Exhibit 2.) Plaintiff did not answer and thus defendants were required to leave another voicemail. (/d.) Plaintiff did not return the call. (/d. 16.) Plaintiff's non-appearance was recorded by David Ocanas, Certified Shorthand Reporter, No. 12567. (Id. 510.) III. ARGUMENT A. Plaintiff Should be Compelled to Appear for Deposition and Produce Documents. Cal. Code Civ. Proc. § 2025.220 requires that a party wishing to take an oral deposition of a person, including a party, give notice in writing. Pursuant to § 2025.280, this notice requires a party deponent, such as a plaintiff, to attend and testify, and when requested, to produce at the deposition any documents properly identified in the notice. Id. § 2025.280(a). If a deponent is unable to attend for good cause, he or she may move to stay the deposition or quash the notice within three (3) days of the deposition. 1d. § 2025.410(c). If the deponentfails to appear, and does not otherwise successfully move to quash the deposition notice, the party giving the notice may move for an order compelling {37258998:1} 5 CASE No. 30-2015-00813353-CU-OR-CIC DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF A K E R M A N L L P 72 5 S. F I G U E R O A S T R E E T , S U I T E 38 00 L O S A N G E L E S , C A L I F O R N I A 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - F A X : (2 13 ) 62 7- 63 42 N o N N N N N N N N m m e m e e e m e e e m e e p e 0 I N L n k A W N = D N N N B W N D the deponent's attendance and testimony, and for the production of the documents described in the deposition notice. Id. § 2025.450(a). Plaintiff failed to appear for her January 6, 2016 deposition although she had ample notice of the time and date of the deposition. Moreover, plaintiff had no substantial justification for failing to timely notify defendants that she could not attend or produce the documents defendants requested. In the time leading up to the deposition, plaintiff did not object, move to stay the deposition, or move to quash the notice. Nor did plaintiff propose new deposition dates. Plaintiff instead chose not contact defendants’ counselat all, and then failed to appear. The documents defendants requested plaintiff produce are also specifically relevant to plaintiff's claims in this case. Defendants generally seek documents evidencing (1) plaintiff's communications with defendants supporting each of her causes of action; (2) plaintiff conducted an "independent investigation" into Aurora's foreclosure proceeding; (3) plaintiff's communications with Stephen Ko and defendants concerning the his loan and property at issue in this case; (4) plaintiff's ability to tender the total amount due under Mr. Ko's loan, as plaintiff has alleged in paragraph 15 of her first amended complaint; (5) plaintiff has suffered a "physical disability" and her "health has been damaged in the sum of $700,000" as plaintiff alleges in paragraphs 97 and 99 of the first amended complaint; and (6) plaintiff's claimed damages. Good cause exists to compel plaintiff to produce the documents itemized in the deposition notice because they are directly relevant to plaintiff's causes of action in this case-and defendants have been unable to speak with plaintiff regarding the factual basis for any of her causes of action to date. B. Sanctions Are Appropriate. Defendants also seek an order imposing sanctions on plaintiff for the costs incurred to prepare for and attend the deposition and the costs incurred in bringing this motion. If a motion to compel under Cal Code Civ. Proc. § 2025.401(a) is granted, "[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) ... unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." Id. § 2025.450(g)(1) (emphasis added). {37258998:1} 6 CASE No. 30-2015-00813353-CU-OR-CJC DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF A K E R M A N L L P 72 5 S. F I G U E R O A S T R E E T , S U I T E 38 00 L O S A N G E L E S , C A L I F O R N I A 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - F A X : (2 13 ) 62 7- 63 42 N N N N N N N N N e e e m e e e e e s e e ee d e d e d C 0 3 O N n M R A W N = v e y R E W L W N Y = O o Sanctions are appropriate because plaintiff has not and cannot demonstrate a substantial justification for her failure to attend the deposition. Moreover, it would be just to impose sanctions here because plaintiff as this is her lawsuit and she is obligated to meaningfully participate. Defendants did not choose to be in this lawsuit, yet find themselves held captive here at plaintiff's whim. In fact, it would be unjust not to impose sanctions here, as imposing sanctions may help plaintiff understand the implications of her actions and will promote a more speedy resolution to this matter. Thus, defendants request an award of $4,435.00 in sanctions against plaintiff. (Balser Decl. 12-13). This amount includes the attorneys' fees incurred in preparing for and attending the January 6, 2016 deposition, as well as an approximation of fees that have and will be incurred to both research and draft this Motion. V. CONCLUSION For the foregoing reasons, defendants request their motion to compel be granted, and plaintiff be required by appear for deposition and produce the documentsset forth in the notice of deposition at Akerman LLP, 725 S. Figueroa Street, Suite 300, Los Angeles, California 90017 as soon as possible after March 14, 2016. Additionally, defendants request the Court grant defendants’ motion for sanctions and award defendants’ $4,375.00, with such amounts payable within thirty (30) days of this Court’s order. / Dated: February 10, 2016 AKERMAN LIP / oo. oeX / By: / / J Justin D. Balgef Attorneys) for Defendants NATIONSTAR MORTGAGE LLC, AURORA COMMERCIAL CORP., successor entity to AURORA BANK FSB, AURORA LOAN SERVICES LLC, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. {37258998:1} 7 CASE No. 30-2015-00813353-CU-OR-CIC DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF A K E R M A N L L P 72 5 S. F I G U E R O A ST RE ET , SU IT E 38 00 LO S AN GE LE S, CA LI FO RN IA 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 N N N N N N N N N e e e k e m pe d e d pe d e d p d p m c w I N L n R R W N = O N Y R W N Y = o PROOF OF SERVICE STATE OF COLORADO, CITY AND COUNTY OF DENVER I am employed in the City and County of Denver, State of Colorado. I am over the age of 18 and not a party to the within action. My business address is 1400 Wewatta Street, Suite 500, Denver, Colorado 80202. On February 10, 2016, I served the following documents on the persons below as follows: DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Eun Ko 4001 Wilshire Blvd., #F275 Los Angeles, CA 90010 Telephone: (213) 536-7119 Facsimile: (818) 226-4044 Plaintiffin Pro Per O (MAIL) I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Denver, Colorado. (OVERNIGHT DELIVERY) I deposited in a box or other facility regularly maintained by Federal Express, an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, a true copy of the foregoing document in sealed envelopes or packages designated by the express service carrier, addressed as stated above, with fees for overnight delivery paid or provided for. O (MESSENGER SERVICE) I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed and provided them to a professional messenger service for service. A separate Personal Proof of Service provided by the professional messenger service will be filed under separate cover. 0 (FACSIMILE) Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. 0 (E-MAIL or ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. {37258998:1} 8 CASE No. 30-2015-00813353-CU-OR-CJC DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF A K E R M A N L L P 72 5 S. F I G U E R O A S T R E E T , S U I T E 38 00 L O S A N G E L E S , C A L I F O R N I A 90 01 7 TE L. : (2 13 ) 68 8- 95 00 - F A X : (2 13 ) 62 7- 63 42 N N N N N N N N ) e e e e e e e l e e e m e e e d pe d pe d O (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(d)(1). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(d)(1). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” I declare under penalty of perjury that I am employed in the office of a member of the bar of this Court at whose direction this service was made and that the foregoing is true and correct. (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 0 (Federal) I declare that I am employed in the office of a member of the Bar ofthis Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Executed on February 10, 2016, at Denver, Colorado. Nick Mangels | / (Type or print name) 7 Cr / \ {37258998:1} 9 CASE No. 30-2015-00813353-CU-OR-CJC DEFENDANTS' NOTICE OF MOTION AND MOTION TO COMPEL.ATTENDANCE AT DEPOSITION AND FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF