Respondents Comments To Petitioners Comments Re Proposed Order And Judgment

Reply

Cal. Super. - 4th Dist.October 18, 2019

AN nn BA WLW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN S. BAKER (SBN 144073) DORSEY & WHITNEY LLP 600 Anton Blvd., Ste. 2000 Costa Mesa, CA 92626 Telephone: (714) 800-1400 Facsimile: (714) 800-1499 MICHAEL R. TENERELLI (SBN 78401) NEWMEYER DILLION 895 Dove Street, Fifth Floor Newport Beach, CA 92660 Telephone: (949) 854-7000 Facsimile: (949) 854-7099 Attorneys for Respondents ANNIE M. McCRAY; JOHN W. McCRAY, JR.; MOLLY E. McCRAY, Individually and in all fiduciary capacities in which any or all of them serve which are relevant to the “McCRAY FAMILY DISPUTES” in arbitration; McCRAY FAMILY TRUST DATED 10-16-1997; McCRAY PROPERTIES, LLC; McCRAY AND COMPANY (collectively “Respondents™) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER Case No. 30-2019-01105540-CU-PA-CXC Assigned to Judge Glenda Sanders Dept. CX101 RICHARD A. McCRAY, individually; JULIA McCRAY-GOLDMSITH, individually and in her capacity as Trustee of the Julia McCray-Goldsmith JMG 2012 Trust and Trustee of the Carla M. McCray Trust; MARCIA M. WILL, individually and in her capacity as Trustee of the Marcia McCray Will 2010 Trust; BRIAN A. WILL; CHARLES A. WILL, individually and in his RESPONDENTS’ COMMENTS TO PETITIONERS’ COMMENTS RE [PROPOSED] ORDER AND JUDGMENT : Hearin capacity as Trustee of the Charles A. and Learing Jennifer Will Revocable Trust Dated 5-21- Date: January 10, 2020 201 h of the f ho derivativel Time: 1:30 p.m. 013, each of the foregoing derivatively on Dept: CX101 behalf of MCCRAY ALB1 PARTNERSHIP, LP; a California limited partnership; MCCRAY ALB2 PARTNERSHIP, LP, a California limited partnership; MCCRAY ALB3 PARTNERSHIP, LP, a California limited partnership; MCCRAY CAIP PARTNERSHIP LP, a California limited partnership; MCCRAY DALE WAY PARTNERSHIP, LP, a California limited N r ’ N r N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N N RESPONDENTS’ COMMENTS TO PETITIONERS’ COMMENTS RE [PROPOSED] ORDER AND JUDGMENT 4823-2798-2767\1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 partnership; MCCRAY GUASTI PARTNERSHIP, LP, a California limited partnership; MCCRAY LTD1 PARTNERSHIP, LP, a California limited partnership; MCCRAY MSIB PARTNERSHIP, LP, a California limited partnership; and MCCRAY PBP PARTNERSHIP, LP, a California limited partnership, Petitioners, Vv. N r N r N e N e N e N e N e N e N e N e N e N e N e N e N e ANNIE M. McCRAY, individually and in her ) capacity as Former Successor Co-Executor of ) the Estate of John W. McCray and Successor ) Co-Trustee of the McCray Family Trust Dated October 16, 1997, as amended and restated, ) and any of its Subtrusts; MOLLY E. ) MCCRAY, in her capacity as Former ) Successor Co-Executor of the Estate of John ) W. McCray and Successor Co-Trustee of the ) McCray Family Trust Dated October 16, ) 1997, as amended and restated, and any of its Subtrusts; JOHN W. MCCRAY, JR., in his ) capacity as Former Successor Co-Executor of ) the Estate of John W. McCray and Successor ) Co-Trustee of the McCray Family Trust Dated) October 16, 1997, as amended and restated, and any of its Subtrusts; CLAY SPIEGEL, in his capacity as Special Administrator of the Estate of John W. McCray; McCRAY PROPERTIES, LLC, a California limited liability company; and McCRAY AND COMPANY, Respondents, MOLLY E. MCCRAY, individually and in her capacity as Trustee of the Elsie W. McCray Trust; JOHN W. MCCRAY, JR., individually; ROBERT J. MCCRAY, individually and in his capacity as Trustee of the Robert J. McCray Living Trust Dated 5-2- 2006; MICHAEL A. MCCRAY, individually; GLORIA C. McCRAY, individually; WHITTIER TRUST COMPANY OF N r ’ N r N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e RESPONDENTS’ COMMENTS TO PETITIONERS’ COMMENTS RE [PROPOSED] ORDER AND JUDGMENT 4823-2798-2767\1 AN nn BA WLW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NEVADA, By Paul Cantor, For Gloria Camille McCray 1965 Trust; JON MARTIN, Trustee of the Gloria McCray Family Trust Dated 10-2-2007; ALAN M. McCRAY; BRIAN BARSOTTI and TIM THOMAS, Co- Trustees of the Alan Maurice McCray 1965 Trust; and HOLLY MCCRAY BLAIR, individually, Nominal Respondents, MCCRAY ALB1 PARTNERSHIP, LP, a California limited partnership; MCCRAY ALB2 PARTNERSHIP, LP, a California limited partnership; MCCRAY ALB3 PARTNERSHIP, LP, a California limited partnership; MCCRAY CAIP PARTNERSHIP LP, a California limited partnership; MCCRAY DALE WAY PARTNERSHIP, LP, a California limited partnership; MCCRAY GUASTI PARTNERSHIP, LP, a California limited partnership; MCCRAY LTD1 PARTNERSHIP, LP, a California limited partnership; MCCRAY MSIB PARTNERSHIP, LP, a California limited partnership; MCCRAY PBP PARTNERSHIP, LP, a California limited partnership, Limited Partnership Respondents, and DOES 1-25, Respondents. N r ’ N e N e N e N e N e N e n e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e 1 1 RESPONDENTS’ COMMENTS TO PETITIONERS’ COMMENTS RE [PROPOSED] ORDER AND JUDGMENT 4823-2798-2767\1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to the Court’s instructions, attached are Respondents Annie M. McCray, John W. McCray, Jr., Molly E. McCray, Individually and in all fiduciary capacities in which any or all of them serve related to the “McCray Family Disputes; McCray Family Trust Dated 10-16-1997; McCray Properties, LLC, McCray and Companys’ (“Respondents”) comments together with Petitioners’ comments to the [Proposed] Order and Judgment. Respondents’ comments are in RED as to the following paragraphs: 15, 16, 35, 37, 38, 39, 45 - 53 (identical comments), 54, 68 and 72. The name of Murashko, Carmen (Assistant to John S. Baker) appears with regard to Respondents’ comments. DATED: December 23, 2019 DORSEY & WHITNEY LLP By: /s/ John S. Baker John S. Baker Attorneys for Respondents ANNIE M. McCRAY; JOHN W. McCRAY, JR; MOLLY E. McCRAY, Individually and in all fiduciary capacities in which any or all of them serve which are relevant to the “McCRAY FAMILY DISPUTES” in arbitration; McCRAY FAMILY TRUST DATED 10-16-1997; McCRAY PROPERTIES, LLC; McCRAY AND COMPANY 2 RESPONDENTS’ COMMENTS TO PETITIONERS’ COMMENTS RE [PROPOSED] ORDER AND JUDGMENT 4823-2798-2767\1 Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM OO 0 39 O N Un Br W N = ND N N N N N N N N = m m m Em em em e m e m 0 NN A N RA W N R O OV N N R W N = O SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CIVIL COMPLEX CENTER RICHARD A. MCCRAY, individually; JULIA MCCRAY-GOLDSMITH, individually and in her capacity as Trustee of the Julia McCray-Goldsmith JMG 2012 Trust and Trustee of the Carla M. McCray Trust; MARCIA M. WILL, individually and in her capacity as Trustee of the Marcia McCray Will 2010 Trust; BRIAN A. WILL; CHARLES A. WILL, individually and in his capacity as Trustee of the Charles A. and Jennifer Will Revocable Trust Dated 5-21-2013, each of the foregoing derivatively on behalf of MCCRAY ALB1 PARTNERSHIP, LP; a California limited partnership; MCCRAY ALB2 PARTNERSHIP, LP, a California limited partnership; MCCRAY ALB3 PARTNERSHIP, LP, a California limited partnership; MCCRAY CAIP PARTNERSHIP LP, a California limited partnership; MCCRAY DALE WAY PARTNERSHIP, LP, a California limited partnership; MCCRAY GUASTI PARTNERSHIP, LP, a California limited partnership; MCCRAY LTD1 PARTNERSHIP, LP, a California limited partnership; MCCRAY MSIB PARTNERSHIP, LP, a California limited partnership; and MCCRAY PBP PARTNERSHIP, LP, a California limited partnership, Petitioners, Vv. ANNIE M. MCCRAY, individually and in her capacity as Former Successor Co-Executor of Case No. 30-2019-01105540-CU-PA-CXC [PROPOSED] ORDER AND JUDGMENT Entitled to Preference in Setting per Code of Civil Procedure § 1291.2 Date: ~~ January 10, 2019 Time: 1:30 p.m. Place: 751 West Santa Ana Blvd., Dept. CX101 Santa Ana, California 92701 Assigned to Judge Glenda Sanders, Dept. CX101 Petition Filed: 10/18/19 1 ORDER AND JUDGMENT 4820-2347-8703\1 Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM OO 0 39 O N Un Br W N = ND N N N N N N N N = m m m Em em em e m e m 0 NN A N RA W N R O OV N N R W N = O the Estate of John W. McCray and Successor Co-Trustee of the McCray Family Trust Dated October 16, 1997, as amended and restated, and any of its Subtrusts; MOLLY E. MCCRAY, in her capacity as Former Successor Co-Executor of the Estate of John W. McCray and Successor Co-Trustee of the McCray Family Trust Dated October 16, 1997, as amended and restated, and any of its Subtrusts; JOHN W. MCCRAY, JR., in his capacity as Former Successor Co-Executor of the Estate of John W. McCray and Successor Co-Trustee of the McCray Family Trust Dated October 16, 1997, as amended and restated, and any of its Subtrusts; CLAY SPIEGEL, in his capacity as Special Administrator of the Estate of John W. McCray; MCCRAY PROPERTIES, LLC, a California limited liability company; and MCCRAY AND COMPANY, Respondents, MOLLY E. MCCRAY, individually and in her capacity as Trustee of the Elsie W. McCray Trust; JOHN W. MCCRAY, JR., individually; ROBERT J. MCCRAY, individually and in his capacity as Trustee of the Robert J. McCray Living Trust Dated 5-2-2006; MICHAEL A. MCCRAY, individually; GLORIA C. MCCRAY, individually; WHITTIER TRUST COMPANY OF NEVADA, By Paul Cantor, For Gloria Camille McCray 1965 Trust; JON MARTIN, Trustee of the Gloria McCray Family Trust Dated 10-2-2007; ALAN M. McCRAY; BRIAN BARSOTTI and TIM THOMAS, Co-Trustees of the Alan Maurice McCray 1965 Trust; and HOLLY MCCRAY BLAIR, individually, Nominal Respondents, MCCRAY ALB1 PARTNERSHIP, LP, a California limited partnership; MCCRAY ALB2 PARTNERSHIP, LP, a California limited partnership; MCCRAY ALB3 PARTNERSHIP, LP, a California limited partnership; MCCRAY CAIP PARTNERSHIP LP, a California limited partnership; MCCRAY DALE WAY PARTNERSHIP, LP, a California limited partnership; MCCRAY GUASTI PARTNERSHIP, LP, a California limited partnership; MCCRAY LTD1 PARTNERSHIP, LP, a California limited partnership; MCCRAY MSIB 2 ORDER AND JUDGMENT 4820-2347-8703\1 Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM OO 0 39 O N Un Br W N = ND N N N N N N N N = m m m Em em em e m e m 0 NN A N RA W N R O OV N N R W N = O PARTNERSHIP, LP, a California limited partnership; MCCRAY PBP PARTNERSHIP, LP, a California limited partnership, Limited Partnership Respondents, and DOES 1-25, Respondents. ORDER AND JUDGMENT Petitioners’ Richard A. McCray, Julia McCray-Goldsmith, Marcia M. Will, Brian A. Will, and Charles A. Will’s (“Petitioners”) Petition to Confirm Arbitration Award and Enter Judgment (“Petitioners’ Petition”), Co-Petitioners’ Gloria C. McCray; Whittier Trust Company of Nevada, Inc., Trustee of the Gloria C. McCray 1965 Trust; Alan M. McCray; and Tim Thomas, Trustee of the Alan Maurice McCray 1965 Trust (collectively, “Gloria C. McCray and Alan M. McCray” or “Co- Petitioners”) Petition for Orders to Confirm Arbitration Award and Enter Judgments Thereon (“Co-Petitioners’ Petition”), and Co-Petitioner Michael Alan McCray’s Joinder in Petitions for Orders to: (1) Confirm Arbitration Awards and Enter Judgments Thereon; (2) Award Interest, Attorneys’ Fees and Costs (“Michael McCray’s Petition”) (collectively, the Petitioners’ Petition, Co-Petitioners’ Petition, and Michael McCray’s Petition, the “Petitions”) came before this Court for hearing on January 10, 2020 to consider the Petitions to confirm the Amended Final Award of arbitrator Honorable Nancy Wieben Stock, Ret. served on June 30, 2019 in the arbitration entitled “McCray Family Disputes” (the “Amended Final Award”), and enter judgment thereon, attached to the Petitioners’ Petition as Exhibit B. Having considered the Petitions, and any oppositions or replies thereto, the Amended Final Award, the parties’ respective papers and argument of counsel, and for good cause appearing, 3 ORDER AND JUDGMENT 4820-2347-8703\1 Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM OO 0 39 O N Un Br W N = ND N N N N N N N N = m m m Em em e m e m e m 0 NN A N RA W N R O OV N N R W N = O IT IS HEREBY ORDERED that: 1. The Petitions are GRANTED. 2. The Amended Final Award is CONFIRMED. 3. Judgment is hereby entered on the confirmed Amended Final Award in favor of Petitioners and Co-Petitioners, individually and derivatively, and against Respondents. Judgment is also hereby entered on the confirmed Amended Final Award in favor of Michael Alan McCray, individually, and against Respondents. Petitioners and Co-Petitioners may, on behalf of the Limited Partnerships due sums hereunder, enforce this judgement for the benefit of such Limited Partnerships. A. Party Names 4. “Richard A. McCray” or “Dick McCray” shall mean the individual Richard A. McCray who was a limited partner of each of the Limited Partnerships, before transferring his interests to the Julia McCray-Goldsmith JMG 2012 Trust. S. “Julia McCray-Goldsmith” or “Julia” shall mean Julia McCray- Goldsmith in her capacity as Trustee of the Carla M. McCray Trust and the Julia McCray-Goldsmith JMG 2012 Trust, which are each limited partners of each of the Limited Partnerships. 6. of the Carla M. McCray Trust, 7. “Dick Parties” shall mean Richard A. McCray, Julia McCray- Goldsmith, and John McCray-Goldsmith, co-trustee of the Carla M. McCray T rust. 8. “Marcia M. Will” or “Marcia” shall mean Marcia M. Will individually and in her capacity as Trustee of the Marcia McCray Will 2010 Trust, a limited “Carla M. McCray Trust” shall mean Julia McCray-Goldsmith, Trustee partner in all of Limited Partnerships. 9. “Brian A. Will” shall mean the individual Brian A. Will, a limited partner in eight of the Limited Partnerships. 10. [‘Charles A. Will” or “Charles” shall mean Charles A. Will individually and in his capacity as Trustee of the Charles A. and Jennifer Will Revocable Trust 4 ORDER AND JUDGMENT 4820-2347-8703\1 (Commented [MJ1]: See Award, pp. 17-18. Commented [MJ2]: See Award, pp. 17-18. Commented [MJ3]: This comment applies to all statements therein for the proposition that an individual or entity is a limited partner of one or more Limited Partnerships. See Exhibit I, Schedule N, and Schedule O. Commented [MJ4]: See Award, p. 57 (“Julia McCray- Goldsmith, individually and in her capacity as Co-Trustee of the Carla M. McCray Trust”). Commented [MJ5]: See Award, p. 33 (“the Dick Parties (various family trusts combined)”); Schedule O . Dick McCray transferred his limited partnership interests to the Julia McCray- Goldsmith JMG 2012 Trust, of which Julia McCray- Goldsmith is Trustee. = Commented [MJ6]: See Award, p. 57 (“Julia McCray- Goldsmith, individually and in her capacity as Co-Trustee of the Carla M. McCray Trust”). Commented [MJ7]: See Award, p. 57 (“Dick Parties shall mean collectively, Richard A. McCray; Julia McCray- Goldsmith, individually and in her capacity as Co-Trustee of the Carla M. McCray Trust; John McCray-Goldsmith as Co- Trustee of the Carla M. McCray Trust.”); p. 5 (“the ‘Dick Parties,” for Richard McCray and his two daughters”). Commented [MJ8]: See Award, p. 3; see also Award, p. 33 (“the Will Parties (various family trusts combined)”). Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM 0 NN O N Wn BRA W N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dated 5-21-2013. Charles, individually or as Trustee, is a limited partner in eight of the Limited Partnerships. 11. (“Will Parties” shall mean Marcia M. Will, Brian A. Will, and Charles A. Will 12. [‘Annie M. McCray” shall mean Annie McCray, aka Anne M. McCray, Annie McCray Pauley, Annie M. McCray, Annie P. McCray, Annie Pauley McCray, Anne M. Pauley, or Anne McCray, individually, and in her capacity as co- Manager in McCray Properties, LLC and as Successor Co-Trustee of the McCray Family Trust, dated October 16, 1997, as amended and restated, and any of its subtrusts, of which John W. McCray and Elizabeth McCray were trustors, 13. [*Molly E. McCray” shall mean Molly E. McCray, individually, and in her capacity as co-Manager in McCray Properties, LLC and as Successor Co- Trustee of the McCray Family Trust, dated October 16, 1997, as amended and restated, and any of its subtrusts, of which John W. McCray and Elizabeth McCray were trustors. 14. [John W. McCray, Jr.” shall mean John W. McCray, Jr., individually, and in his capacity as co-Manager in McCray Properties, LLC and as Successor Co- Trustee of the McCray Family Trust, dated October 16, 1997, as amended and restated, and any of its subtrusts, of which John W. McCray and Elizabeth McCray were trustors. 15. the Estate of John W. McCray, Decedent, in the matter entitled Estate of John W. McCray, Decedent, Orange County Superior Court Case No. 30-2013-000689554- PR-PW-CJC and Annie McCray, Molly E. McCray and John W. McCray, Jr., as Successor Co-Trustees of the McCray Family Trust, dated October 16, 1997, as “John W. McCray” shall mean Clay Spiegel, Special Administrator, of amended and restated, and any of its subtrusts, of which John W. McCray and Elizabeth McCray were trustors. “Estate of John W. McCray” shall mean John W. McCray 5 Commented [MJ9]: See Award, p. 33 (“the Will Parties (various family trusts combined)”). Commented [MJ10]: See Award, p. 57 (“Will Parties shall mean collectively, Marcia M. Will, Brian A. Will and Charles A. Will”); p. 5 (“referenced by family name, such as the “Will Parties” for Marcia Will and her two sons”), p. 33 (“the Will Parties (various family trusts combined)”); . Commented [MJ11]: See Award, pp. 56; see also Award, pp. 1 (“Annie M. McCray”), p. 7-8 (“Annie McCray Pauley, aka Anne M. McCray (‘Annie’)”, p. 46 (“Annie McCray”), p. 47 (“Annie P. McCray”), p. 50 (“Annie Pauley McCray”), Pp. 55-59 (“Annie Pauley McCray”), p. 57 (“Annie McCray”), p. 58 (“Annie Pauley McCray” and “Annie M. McCray”), p. 59 (“Annie Pauley McCray” and “Annie M. McCray”); Exhibit I (“Anne M. McCray (Pauley)”), Schedule N (“Anne M. McCray (Pauley)”), Schedule O (“Anne M. McCray (Pauley)”); see also Award, caption (“Annie M. McCray . . . . Individually, and as Successor Co- Executors of the Estate of John W. McCray and as Successor Co-Trustees of the McCray Family Trust dated 10-16-1997"; p- 2 (“in all fiduciary capacities in which any or all of them serve which are relevant to the "McCray Family Disputes” in arbitration”); p. 56 (“Annie McCray . . as Successor Co- Executors of the Estate of John W. McCray, Decedent, in the Matter entitled, Estate of John W. McCray, Decedent, Orange County Superior Court Case No. 20-2013- 000689554-PR-CJC, and as Successor Co-Trustees of the McCray Family Trust dated October 16, 1977, as Amende( _| Commented [MJ12]: See Award, caption (“Molly E. McCray Individually, and as Successor Co-Executors of the Estate of John W. McCray and as Successor Co-Trustees of the McCray Family Trust dated 10-16-1997”); p. 2 (“in all fiduciary capacities in which any or all of them serve which are relevant to the "McCray Family Disputes" in arbitration”); p. 56 (“Molly E. McCray . . . as Successor Co- Executors of the Estate of John W. McCray, Decedent, in { __ Commented [MJ13]: See Award, caption (“John W. McCray, Jr. . . . Individually, and as Successor Co-Executors of the Estate of John W. McCray and as Successor Co- Trustees of the McCray Family Trust dated 10-16-1997"; p. 2 (“in all fiduciary capacities in which any or all of them serve which are relevant to the "McCray Family Disputes” in arbitration”); p. 56 (“John W. McCray, Jr., as Successor Co- Executors of the Estate of John W. McCray, Decedent, in { Commented [MC14]: Defines “John W. McCray” to include Clay Spiegel, Special Administrator of the Estate of John W. McCray, Decedent. Petitioners have added language not set forth in the Award. This is not in conformance with the Amended Final Award (hereinafter the “Award”). See pg. 56 of Award, which states, in pertinent part as follows: “For purposes of the Final Award, ‘John W. McCray,” means, Anne M. Pauley, Molly E. McCray and [ Commented [MJ15]: See Award, caption (“Successor Co- Executors of the Estate of John W. McCray”); p. 6 (“Estate of John W. McCray, Decedent, Case No. 30-2013- 00689554-PR-PW-CIC.”); p. 14 (“John W. McCray” footnoted with the following: “Any reference to the Estate of John W. McCray, in this Award, shall include Anne M. Pauley, Molly E. McCray and John W. McCray Jr., Successor Co-Executors of the Estate of John W. McCray, ORDER AND JUDGMENT 4820-2347-8703\1 Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM 0 NN O N Wn BRA W N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. the Estate of Elizabeth H. McCray, Decedent, in the matter entitled Estate of “Elizabeth McCray” shall mean Clay Spiegel, Special Administrator of Elizabeth H. McCray, Decedent, Orange County Superior Court Case No. 30-2016- 00861902-PR-LA-CJIC. 17. [Elsie W. McCray Trust” shall mean Molly E. McCray, Trustee of the Elsie W. McCray Trust, 18. [*Michael Alan McCray” shall mean the individual Michael Alan McCray, a limited partner in eight of the Limited Partnerships. 19. limited partner in one or more of the Limited Partnerships. 20. Trust Company of Nevada, Inc., Trustee of the Gloria Camille McCray 1965 T rust, 21. for Gloria C. McCray and Trustee of the Gloria McCray family Trust Dated 10-2- 2007. “Gloria C. McCray” shall mean the individual Gloria C. McCray, a “Whittier Trust Company of Nevada, Inc.” shall mean the Whittier “Jon Martin” shall mean Jon Martin in his capacity as attorney-in-fact 22. “Alan M. McCray” shall mean the individual Alan M. McCray, a limited partner in one or more of the Limited Partnerships. 23. Thomas, individuals serving as trustees of the Alan Maurice McCray 1965 Trust. “Brian Barsotti” and “Tim Thomas” shall mean Brian Barsotti and Tim 24. “McCray Properties, LLC” shall mean the California limited liability company McCray Properties, LLC, the General Partner of the Limited Partnerships. 25. “McCray and Company” “McCray & Company” or “MAC” shall mean the California General Partnership McCray and Company. 26. [Jeffer Mangels Butler & Mitchell LLP” shall mean the law firm of Jeffer Mangels Butler & Mitchell LLP, counsel for the Dick Parties.) 217. “Ragen & Ragen” shall mean the law firm of Ragen & Ragen, counsel for Gloria C. McCray, Whittier Trust Company of Nevada, Inc., Jon Martin, Alan M. McCray, Brian Barsotti, and Tim Thomas. 6 Commented [MC16]: Petitioners have added language not set forth in the Award. This is not in conformance with the Amended Final Award (hereinafter the “Award”). See pg. 56 of Award, which states, in pertinent part as follows: “For purposes of the Final Award, ‘John W. McCray,” means, Anne M. Pauley, Molly E. McCray and John W. McCray, Jr., as Successor Co-Executors of the Estate of John W. McCray, Decedent, in the matter entitled, Estate of John W. McCray, Decedent, Orange County Superior Court Case No. 20-2013-000689554-PR-CJC, and as Successor Co-Trustees of the McCray Family Trust dated October 16, 1977, as Amended and Restated and any of its subparts of which John W. McCray and Elizabeth McCray were Trustors.” Although the parties submitted a stipulation and order for the appointment of Clay Spiegel as personal representative of the Estate on September 25, 2019, Mr. Spiegel’s temporary letters are set to expire on February 26, 2019(sic). The Court has set a Review Hearing Regarding Filing for Appointment of Successor Administrator for February 26, 2019(sic). Moreover, there is no evidence Mr. Spiegel accepted this appointment, given that it is a no asset estate. Commented [MJ17]: See Award, p. 5 (“[John W. McCray’s] wife, Elizabeth McCray, served as his personal representative, and then, passed away during the pendency of these proceedings. Her estate was joined in the arbitration.”) Since the date of service of the Amended Final Award, the probate division of the Orange County Superior Court set an OSC for removal of Annie, Molly and Johnny as Co- Executors of the Estate of John W. McCray. Clay Spiegel was appointed as Special Administrator by the Orange County Probate Court on September 25, 2019. Commented [MJ18]: See Declaration of Mark S. Adams, Exh. A, p. 8 (Molly signed the Stipulation Re: Binding Arbitration as “Molly E. McCray, individually, as a successor co-trustee of the JWM Trust, as Trustee of the Elsie McCray Trust, and in all other capacities relevant to the McCray Family Disputes”). The Stipulation Re: Binding ORDER AND JUDGMENT 4820-2347-8703\1 Arbitration was attached as Exhibit B to the Award. Commented [MJ19]: See Award, Schedule O. Commented [MJ20]: See Award, Schedule O. Commented [MJ22]: See Award, Caption. Commented [MJ23]: See Award, Schedule O. ( ( commented [MJ21]: See Award, Caption. ( Commented [MJ24]: See Award, Caption. - e e ( commented [MJ25]: See Award, p. 3. ( Commented [MJ26]: See Award, pp. 1-2. Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM OO 0 39 O N Un Br W N = ND N N N N N N N N = m m m Em em em e m e m 0 NN A N RA W N R O OV N N R W N = O 28. Michael Alan McCray. 29. Barbara Orr, co-counsel for the Will Parties. 30. the Will Parties. 31. “Limited Partnerships” shall mean McCray ALB1 Partnership, L.P. (“ALB1”), McCray ALB2 Partnership, L.P. (“ALB2”), McCray ALB3 Partnership, L.P. (“‘ALB3”), McCray CAIP Partnership, L.P. (“CAIP”), McCray Dale Way Partnership, L.P. (“Dale Way”), McCray Guasti Partnership, L.P. (“Guasti”), McCray LTD1 Partnership, L.P. (“LTD1”’), McCray MSIB Partnership, L.P. (“MSIB”), and McCray PBP Partnership, L.P. (“PBP”). B. Monetary Sums 32. Jeffer Mangels Butler & Mitchell LLP is awarded $161,228 in attorney “S&D Law” shall mean the law firm of S&D Law, co-counsel for “Barbara Orr, Esq.” shall mean Barbara Orr, Esq. of the Law Offices of “Behmer Law Office” shall mean Behmer Law Offices, co-counsel for fee/costs as damages incurred individually, by the Dick Parties in the pre-April 30, 2012 investigation of fraud and malfeasance, payable by McCray Properties, LLC, McCray and Company, and John W. McCray. 33. Jeffer Mangels Butler & Mitchell LLP is awarded $1,211,284, in attorney fees and costs, payable jointly and severally, by John W. McCray, McCray Properties, LLC, Annie McCray and McCray and Company. Of this sum, the Limited Partnerships are also jointly and severally liable, with John W. McCray, McCray Properties, LLC, Annie McCray and McCray and Company, for the Limited Partnerships’ share, as follows: ALB1, $25,581, ALB2, $16,830, ALB3, $6,171, CAIP, $92,488, Guasti, $112,161, LTD1, $28,124, MSIB, $32,912, PBP, $60,288, and Dale Way in the amount of $63,895. 34. The Will Parties are awarded $451,347 in attorney fees and costs as damages incurred individually, by the Will Parties in the pre-April 30, 2012 investigation of fraud and malfeasance, payable to Barbara Orr, Esq. and Behmer 7 ORDER AND JUDGMENT 4820-2347-8703\1 ( Commented [MJ27]: See Award, p. 4. Commented [MJ28]: See Award, p. 3; p. 58 (“Barbara Orr, Esq.”). | Commented [MJ29]: See Award, p. 3, p. 58 (“Behmer Law Office”). ( Commented [MJ30]: See Award, pp. 56-57. (Commented [MJ31]: See Award, p. 57 (verbatim). Commented [MJ32]: See Award, p. 57. “The Estate of John W. McCray” was changed to “John W. McCray” for consistency with the Jeffer Mangels award identifying “John W. McCray,” at p. 57, 6th full paragraph, for consistency and clarification purposes. Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM 0 NN O N Wn BRA W N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Law Office, payable by McCray Properties, LLC, McCray and Company, and John W. McCray! 35. The Will Parties are awarded $1,300,000 in attorney fees and costs incurred after April 20, 2012, payable to Barbara Orr, Esq. and Behmer Law Office, payable jointly and severally by McCray Properties, LLC, McCray and Company, John W. McCray and Annie McCray. Of this sum, the Limited Partnerships are also jointly and severally liable, with John W. McCray, McCray Properties, LLC, Annie McCray and McCray and Company, for the Limited Partnerships’ share, as follows: Dale Way, $63,895, ALB1, $44,895, ALB2, $29,404, ALB3, $10,782, CAIP, $161,596, Guasti, $195,967, LTD1, $49,139, MSIB, $57,503, and PBP, $105,335. 36. The Will Parties are awarded $277,298 in attorney fees and costs, payable to Barbara Orr, Esq. and Behmer Law Office, payable, jointly and severally, by John W. McCray and McCray and Company, for relief obtained by Will Parties for claims related to trust accounting and losses. 37. Gloria C. McCray and Alan M. McCray are awarded $2,753,925 in attorneys’ fees and costs, payable to Ragen & Ragen, payable jointly and severally by McCray Properties, LLC, McCray and Company, John W. McCray and Annie McCray. of this sum, the Limited Partnerships are also jointly and severally liable, with John W. McCray, McCray Properties, LLC, Annie McCray and McCray and Company, for the Limited Partnerships’ share, as follows: Dale Way, $63,895, ALBI, $54,466, ALB2, $37,806, ALB3, $13,862, CAIP, $207,767, Guasti, $251,941, LTDI, $61,179, MSIB, $73,932, and PBP, $135,430. 38. Michael Alan McCray is awarded $325,000 in attorney fee and costs, payable to S&D Law, payable, jointly and severally, by McCray & Company, McCray Properties, LLC, and Annie McCray, individually, for relief obtained by Michael Alan McCray for claims related to partnership and trust accounting issues and losses, so long as funds paid to Michael from McCray & Company, McCray Properties, LLC, and/or Annie McCray do not originate from John W. McCray (as 8 Commented [MJ33]: See Award, p. 57. “The Estate of John W. McCray” was changed to “John W. McCray” for consistency with the Jeffer Mangels award identifying “John W. McCray,” at p. 57, 6th full paragraph, for consistency and clarification purposes. Commented [MC34]: Paragraph 35 of the Proposed Judgment states: “Of this sum, the Limited Partnerships are also jointly and severally liable, with John W. McCray, McCray Properties, LLC, Annie McCray and McCray and Company, for the Limited Partnerships’ share, as follows: ...".See pg. 58 of Award, which states, in pertinent part, as follows: “The Will Parties are awarded $1,300,000 in attorney fees and costs incurred ... To this sum, Dale Way shall contribute $63,895 and ALB 1, $44,895, ... «. (Emphasis added). In addition, at pages 51 through 53 of the Award, the Award discusses under Section E. Fees Payable by Partnerships. As noted on page 52 of the Award: “Following a successful derivative action, an arbitrator ‘may award the [claimant] reasonable expenses, including reasonable attorney’s fees, from the recovery of the limited partnerships.” The Award goes on to state at page 52: “... a contribution by the partnerships is warranted, as a further source of recovery, since parties found liable in this final award hold a significant percentage interest in the partnerships.” Again at page 52 of the Award: “Fees Commented [MJ35]: See Award, p. 58. “Annie Pauley McCray” was changed to “Annie McCray” for consistency and clarification purposes. Commented [MJ36]: See Award, p. 53 (“The above- [ldescribed fee contributions by the Limited Partnerships, are joint and several to fees payable by John W. McCray, Annie, the General Partner, and McCray and Company.”); see also Award, p. 58. ( Commented [MJ37]: See Award, p. 58 (verbatim). ] Commented [MC38]: Paragraph 37 of the Proposed Judgment States: “Of this sum, the Limited Partnerships are also jointly and severally liable, with John W. McCray, McCray Properties, LLC, Annie McCray and McCray and Company, for the Limited Partnerships’ share, as follows: ...".See pg. 58 of Award, which states, in pertinent part, ag Commented [MJ39]: See Award, p. 57. “Annie Pauley McCray” was changed to “Annie McCray” for consistency and clarification purposes. Also, “Claimants” was changed to “Gloria C. McCray and Alan M. McCray” to reflect the real parties in interest to whom the attorneys’ fees award was provided. Commented [MJ40]: See Award, p. 53 (“The above- [1described fee contributions by the Limited Partnerships, are joint and several to fees payable by John W. McCray, Annie, the General Partner, and McCray and Company.”); see also Award, p. 58. Commented [MC41]: As recognized and commented upon by counsel for Michael Alan McCray, the suggested paragraph by Petitioners does not track the language set forth in the Award. See, page 58 - 59 of Award. ORDER AND JUDGMENT 4820-2347-8703\1 Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM 0 NN O N Wn BRA W N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defined herein), without an additional order of the probate court. 39. The foregoing amounts do not include attorneys’ fees and costs incurred in this and related post-Award proceedings and collecting on the Judgment, which will be subject to a later request for an award of attorneys’ fees and costs according to proof 40. Marcia M. Will is awarded $62,686 in trust management fee overcharges, payable jointly and severally by John W. McCray and McCray and Company| 41. Brian A. Will is awarded $8,368 in trust management fee overcharges, payable jointly and severally by John W. McCray and McCray and Company| 42. Charles A. Will is awarded $16,320 in trust management fee overcharges, payable jointly and severally by John W. McCray and McCray and Company| 43. Richard A. McCray is awarded $139,052 for the amounts owed to him by MAC, subject to an offset of $38,384 owed to MTA, resulting in net losses in the combined MTA and MAC accounts of $100,668, payable jointly and severally by McCray & Company, John W. McCray, McCray Properties, LLC, Annie McCray, John W. McCray, Jr., and Molly E. McCray, individual liability on the MAC account as follows: Annie McCray, $294,363, John W. McCray, Jr., $62,961 and Molly E. McCray, $509,133 44. Julia McCray-Goldsmith is awarded $9,474 for the amounts owed to subject to the following cap on her by MAC, payable jointly and severally by McCray & Company, John W. McCray, McCray Properties, LLC, Annie McCray, John W. McCray, Jr., and Molly E. McCray, subject to the following cap on individual liability on the MAC account as follows: Annie McCray, $294,363, John W. McCray, Jr., $62,961 and Molly E. McCray, $509,133. 45. Julia McCray-Goldsmith is awarded $54,655 for the amounts owed to her by MTA, payable jointly and severally by McCray & Company, John W. 9 Commented [MJ42]: This comment is on behalf of Petitioners and Co-Petitioners only. Michael Alan McCray’s counsel separately provides their own comment and alternative language for the Court’s review. See Award, pp. 58-59. Since Michael McCray is not currently entitled to an award as against John W. McCray, the Petitioners, Co-Petitioners, and Michael Alan McCray agreed that the language as provided is sufficient to cover the parties’ respective interests and preserve all future arguments concerning defenses for determination by the probate court. Thus, the award language explicitly omits “John W. McCray (to the extent permitted by the Probate Court)” and explicitly precludes Michael Alan McCray from obtaining funds originating with John W. McCray (as defined herein). Commented [CL43]: This comment is submitted by counsel for Michael Alan McCray only. This paragraph does not track the Final Award because it | Commented [MC44]: As acknowledged by Petitioners, this paragraph is not found in the Award. The purpose of the instant Petition is to “Confirm the Award”. Moreover, the Arbitrator refused to include any such language in the = Commented [MJ45]: This paragraph is not found in the Award but makes it explicitly clear that any further award of attorneys’ fees or costs is in addition to the amounts ORDER AND JUDGMENT 4820-2347-8703\1 described above. ( Commented [MJ46]: See Award, p. 59 (verbatim). ) ( Commented [MJ47]: See Award, p. 59 (verbatim). ) ( Commented [MJ48]: See Award, p. 59 (verbatim). ) Commented [MC49]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments we Commented [MJ50]: Dick McCray’s “net sum lost” number does not appear in Section XII, entitled “FINAL AWARD,” but the amounts of $139,052 owed by MAC and $38,384 owed to MTA are provided for on pages 48 and 4( Commented [MJ51]: This comment relates to paragraphs 43-53 of the Proposed Order and Judgment. See Award, pp. 47-49, 58. Commented [MJ52]: Each separate judgment includes an individual liability cap for Annie, Johnny, and Molly, as provided for on pages 48-49 of the Award. See Award, p. 48 (“Annie, Johnny, Molly's individual liability on this accouf Commented [MC53]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments we Commented [MC54]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments we Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM 0 NN O N Wn BRA W N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McCray, McCray Properties LLC, Annie McCray, John W. McCray, Jr., Robert J. McCray, and Elsie W. McCray Trust, subject to the following cap on individual liability on the MTA account as follows: Annie McCray, $11,296, John W. McCray, Jr., $48,223, Robert J. McCray, $134,823, and the Elsie W. McCray Trust, $24,712. 46. The Carla M. McCray Trust is awarded $96,479 for the amounts owed to her by MAC, payable jointly and severally by McCray & Company, John W. McCray, McCray Properties, LLC, Annie McCray, John W. McCray, Jr., and Molly E. McCray, subject to the following cap on individual liability on the MAC account as follows: Annie McCray, $294,363, John W. McCray, Jr., $62,961 and Molly E. McCray, $509,133. 47. The Carla M. McCray Trust is awarded $51,250 for the amounts owed to her by MTA, payable jointly and severally by McCray & Company, John W. McCray, McCray Properties LLC, Annie McCray, John W. McCray, Jr., Robert J. McCray, and Elsie W. McCray Trust, subject to the following cap on individual liability on the MTA account as follows: Annie McCray, $11,296, John W. McCray, Jr., $48,223, Robert J. McCray, $134,823, and Elsie W. McCray Trust, $24,712. 48. Marcia M. Will is awarded $383,828 for the amounts owed to her by MAC combined MTA and MAC accounts of $246,518, payable jointly and severally by McCray & Company, John W. McCray, McCray Properties, LLC, Annie McCray, , subject to an offset of $137,310 owed to MTA, resulting in net losses in the John W. McCray, Jr., and Molly E. McCray, subject to the following cap on individual liability on the MAC account as follows: Annie McCray, $294,363, John W. McCray, Jr., $62,961 and Molly E. McCray, $509,133. 49. Brian A. Will is awarded $99,033 for the amounts owed to him by MAC McCray Properties, LLC, Annie McCray, John W. McCray, Jr., and Molly E. 10 , payable jointly and severally by McCray & Company, John W. McCray, Commented [MJ55]: Where parties are owed both MAC and MTA amounts, Petitioners, Co-Petitioners, and Michael Alan McCray have agreed that these separate awards should be split into separate judgments for purposes of clarity so that there is one payee identified as to that account. Commented [MC56]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments were calculated. As set forth on page 58 of the Award: “Parties are entitled to recover the net sum lost to them in the MTA and MAC accounts, Parties who experienced a net gain from the same activities in the MTA and MAC accounts are deemed constructive trustees of net funds received by them from MTA and MAC accounts. For their net losses in the combined MTA and MAC accounts, each shall recover from John W. McCray and McCray and Company as follows: Marcia M. Will, $246,518; Brian A. Will, $114450; Charles A. Will $220,100; Michael Alan McCray (to the extent permitted by the Probate Court, on John W. McCray’s obligation herein) $818,276; Julia McCray-Goldsmith, and John McCray-Goldsmith, Co-Trustees of the Carla M. McCray Trust, $147,729; Julia McCray Goldsmith, $64,129. Parties who owe constructive trust funds, and the amounts are: John W. McCray, $2,957,322, Annie M. McCray, $305,659; Molly E. McCray $485,047; John W. [ Commented [MC57]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments were calculated. As set forth on page 58 of the Award: “Parties are entitled to recover the net sum lost to them in the MTA and MAC accounts, Parties who experienced a net gain from the same activities in the MTA and MAC accounts are deemed constructive trustees of net funds received by them from MTA and MAC accounts. For their net losses in the combined MTA and MAC accounts, each shall recover from John W. McCray and McCray and Company as follows: | Commented [MC58]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments were calculated. As set forth on page 58 of the Award: “Parties are entitled to recover the net sum lost to them in the MTA and MAC accounts, Parties who experienced a net gain from the same activities in the MTA and MAC accounts are deemed constructive trustees of net funds received by them from MTA and MAC accounts. For their net losses in the combined MTA and MAC accounts, each shall recover from John W. McCray and McCray and Company as follows: | Commented [MC59]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments were calculated. As set forth on page 58 of the Award: “Parties are entitled to recover the net sum lost to them in the MTA and MAC accounts, Parties who experienced a net gain from the same activities in the MTA and MAC accounts are deemed constructive trustees of net funds received by them from MTA and MAC accounts. For their net losses in the combined MTA and MAC accounts, each shall recover from John W. McCray and McCray and Company as follows: | ORDER AND JUDGMENT 4820-2347-8703\1 Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM 0 NN O N Wn BRA W N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McCray, subject to the following cap on individual liability on the MAC account as follows: Annie McCray, $294,363, John W. McCray, Jr., $62,961 and Molly E. McCray, $509,133. 50. Brian A. Will is awarded $15,417 for the amounts owed to him by MTA, payable jointly and severally by McCray & Company, John W. McCray, McCray Properties LLC, Annie McCray, John W. McCray, Jr., Robert J. McCray, and Elsie W. McCray Trust, subject to the following cap on individual liability on the MTA account as follows: Annie McCray, $11,296, John W. McCray, Jr., $48,223, Robert J. McCray, $134,823, and the Elsie W. McCray Trust, $24,712. 51. Charles A. Will is awarded $234,092 for the amounts owed to him by MAC combined MTA and MAC accounts of $220,100, payable jointly and severally by McCray & Company, John W. McCray, McCray Properties, LLC, Annie McCray, , subject to an offset of $13,992 owed to MTA, resulting in net losses in the John W. McCray, Jr., and Molly E. McCray, subject to the following cap on individual liability on the MAC account as follows: Annie McCray, $294,363, John W. McCray, Jr., $62,961 and Molly E. McCray, $509,133. 52. Michael Alan McCray is awarded $523,752] for the amounts owed to him by MAC, payable jointly and severally by McCray & Company, McCray Properties, LLC, Annie McCray}, John W. McCray, Jr., and Molly E. McCray, SO long as funds paid to Michael from McCray & Company, McCray Properties, LLC, Annie McCray John W. McCray, Jr., or Molly E. McCray do not originate from John W. McCray, without an additional order of the probate court, subject to the following cap on individual liability on the MAC account as follows: Annie McCray, $294,363, John W. McCray, Jr., $62,961 and Molly E. McCray, $509,133. 53. Michael Alan McCray is awarded $294,524 for the amounts owed to him by MTA, payable jointly and severally by McCray & Company, McCray Properties LLC, Annie McCray, John W. McCray, Jr., Robert J. McCray, and Elsie W. McCray Trust, so long as funds paid to Michael from McCray & Company, 11 Commented [MC60]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments were calculated. As set forth on page 58 of the Award: “Parties are entitled to recover the net sum lost to them in the MTA and MAC accounts, Parties who experienced a net gain from the same activities in the MTA and MAC accounts are deemed constructive trustees of net funds received by them from MTA and MAC accounts. For their net losses in the combined MTA and MAC accounts, each shall recover from John W. McCray and McCray and Company as follows: Marcia M. Will, $246,518; Brian A. Will, $114450; Charles A. Will $220,100; Michael Alan McCray (to the extent permitted by the Probate Court, on John W. McCray’s obligation herein) $818,276; Julia McCray-Goldsmith, and John McCray-Goldsmith, Co-Trustees of the CarlaM. | Commented [MC61]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments were calculated. As set forth on page 58 of the Award: “Parties are entitled to recover the net sum lost to them in the MTA and MAC accounts, Parties who experienced a net gain frd __ Commented [MJ62]: See Award, p. 58 (“Michael Alan McCray (to the extent permitted by the Probate Court, on John W. McCray’s obligation herein) $818,276”). The net sum of $523,752 and $294,524 is $818,276. Note that the amount identified on page 48 of the Award, _ $573,752, appears to be a typo, and should read $523,752, Commented [MC63]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments were calculated. As set forth on page 58 of the Award: “Parties are entitled to recover the net sum lost to them in the MTA and MAC accounts, Parties who experienced a net gain frd ( Commented [MJ64]: Shortened to Annie McCray. J Commented [MJ65]: This comment is on behalf of Petitioners and Co-Petitioners only. Michael Alan McCray’s counsel separately provides their own comment and alternative language for the Court’s review. See Award, pp. 58-59. Since Michael McCray is not currently entitled to an award as against John W. McCray, | Commented [CL66]: This comment is submitted by counsel for Michael Alan McCray only. This paragraph does not track the Final Award because it requires tracing of funds, seeks to entangle prior disbursements before the award and judgment entered, and may impede payments from parties other than John W. [= Commented [MC67]: Initially, the suggested language does not track the language of the Award. Petitioners comment that they have separated judgments for each of the parties, but fail to set forth how the separate judgments were calculated. As set forth on page 58 of the Award: “Parties are entitled to recover the net sum lost to them in the MTA ORDER AND JUDGMENT 4820-2347-8703\1 and MAC accounts, Parties who experienced a net gain frd __ Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM 0 NN O N Wn BRA W N = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McCray Properties, LLC, Annie McCray John W. McCray, Jr., or Molly E. McCray do not originate from John W. McCray, without an additional order of the probate court, subject to the following cap on individual liability on the MTA account as follows: Annie McCray, $11,296, John W. McCray, Jr., $48,223, Robert J. McCray, $134,823, and the Elsie W. McCray Trust, $24,712. 54. The following parties owe constructive trust funds in connection with the MTA account and MAC, as set forth in the Amended Final Award: John W. McCray, $2,957,322; Annie McCray, $305,659; Molly E. McCray, $485,047; John W. McCray, Jr., $111,184; Robert J. McCray, $64,129; and the Elsie McCray Trust, $24,054. Such parties are constructive trustees of funds received by them from the MTA account and MAC. 55. McCray ALB1 Partnership, LP is awarded restitution of $76,064, consisting of principal and pre-award interest, for historically excessive management fees charged to the Limited Partnerships payable by McCray Properties EEE] 56. McCray Dale Way Partnership, LP is awarded restitution of $649,678, consisting of principal and pre-award interest, for historically excessive management fees charged to the Limited Partnerships payable by McCray Properties LLC. 57. McCray MSIB Partnership, LP is awarded restitution of $99,999, consisting of principal and pre-award interest, for historically excessive management fees charged to the Limited Partnerships payable by McCray Properties LLC. 58. McCray PBP Partnership, LP is awarded restitution of $188,431, consisting of principal and pre-award interest, for historically excessive management fees charged to the Limited Partnerships payable by McCray Properties LLC. 59. McCray ALBI1 Partnership, LP is awarded reimbursement of $4,170 for 12 ORDER AND JUDGMENT 4820-2347-8703\1 Commented [MJ68]: This comment is on behalf of Petitioners and Co-Petitioners only. Michael Alan McCray’s counsel separately provides their own comment and alternative language for the Court’s review. See comments above concerning Michael Alan McCray’s inability to obtain Judgment currently against John W. McCray. Commented [CL69]: This comment is submitted by counsel for Michael Alan McCray only. This paragraph does not track the Final Award because it requires tracing of funds, seeks to entangle prior disbursements before the award and judgment entered, and may impede payments from parties other than John W. McCray to Michael A. McCray. See Award, p. 58. Michael proposes the following language: 53. Michael Alan McCray is awarded $294,524 for the amounts owed to him by MTA, payable jointly and severally by John W. McCray (to the extent permitted by the Probate Court), McCray & Company, McCray Properties LLC, Annie McCray, John W. McCray, Jr., Robert J. McCray, and Elsie W. McCray Trust, subject to the following cap on individual liability on the MTA account as follows: Annie McCray, $11,296, John W. McCray, Jr., $48,223, Robert J. McCray, $134,823, and the Elsie W. McCray Trust, $24,712. Commented [MC70]: In paragraph 54 of the Proposed Judgment, Petitioners state as follows: “Such parties are constructive trustees of funds received by them from the MTA account and MAC.” However, at page 58 of the Award, it states: “These sums [constructive trust funds] are subject to offset or credit where all or a portion of the same sums are paid from the constructive trust established herein.” The suggested language by Petitioners does not track the language set forth in the Award. Commented [MJ71]: See Award, p. 58. The original language of the Award was slightly modified in form only to provide an explicit judgment as to constructive trust funds for clarity purposes only. See id. (“Parties who owe constructive trust funds, and the amounts are: John W McCray, $2,957,322, Annie M. McCray, $305,659; Molly E. McCray $485,047; John W. McCray, Jr. $111,184; Robert J. McCray, $64,129, and The Elsie McCray Trust, $24,054.”). It also includes language specifying that individuals who experienced a net gain are deemed constructive trustees of the funds received by them from JMTA and MAC. See id. (“Parties who experienced a net gain from the same activities in the MTA and MAC accounts are deemed constructive | Commented [MJ72]: This comment relates to paragraphs 55-58 of the Proposed Order and Judgment. See Award, p. 57. These awards separate out payor and payee from the following paragraph: “McCray Properties LLC shall pay restitution, consisting of principal and pre-award interest, for historically excessive management fees charged to the Limited Partnerships as follows: to ALB1, $76,064; Dale Way $649,678, MSIB, | Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM OO 0 39 O N Un Br W N = ND N N N N N N N N = m m m Em em em e m e m 0 NN A N RA W N R O OV N N R W N = O JAMS fees paid on their behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 60. McCray ALB? Partnership, LP is awarded reimbursement of $3,480 for JAMS fees paid on their behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 61. McCray ALB3 Partnership, LP is awarded reimbursement of $3,340 for JAMS fees paid on their behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 62. McCray CAIP Partnership LP, is awarded reimbursement of $15,580 for JAMS fees paid on their behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 63. McCray Dale Way Partnership, LP is awarded reimbursement of $40,450 for JAMS fees paid on their behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 64. McCray Guasti Partnership, LP is awarded reimbursement of $8,340 for JAMS fees paid on their behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 65. McCray LTD1 Partnership, LP is awarded reimbursement of $6,470 for JAMS fees paid on their behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 66. McCray MSIB Partnership, LP is awarded reimbursement of $6,210 for JAMS fees paid on their behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 67. McCray PBP Partnership, LP is awarded reimbursement of $11,960 for JAMS fees paid on its behalf for arbitration costs, payable jointly and severally by John W. McCray, McCray Properties, LLC, and McCray & Company. 68. Pursuant to California Probate Code § 9301, the Judgment against Clay Spiegel, in his capacity as Special Administrator of the Estate of John W. McCray, 13 ORDER AND JUDGMENT 4820-2347-8703\1 Commented [MC73]: Paragraph 68 adds a NEW item to the Proposed Judgment which is not set forth in the Award and does not track any language set forth in the Award. Initially, as noted in Comment to Para. 15, there is a Review Hearing Regarding Filing for Appointment of Successor Administrator as to Mr. Spiegel scheduled for February 26, 2019(sic). As such, there is the possibility that Mr. Spiegel will not be Special Administrator following the scheduled hearing. In addition, this appears to be a matter that should be brought up in the Probate Court and not made a part of the Judgment as the Petition brought by Petitioners is “to confirm” the Award and not to “Revise” the Award. Additionally, there is no evidence Mr. Spiegel accepted this appointment as the estate has no assets. Je ff er Ma ng el s Bu tl er & Mi tc he ll ur JM BM OO 0 39 O N Un Br W N = ND N N N N N N N N = m m m Em em em e m e m 0 NN A N RA W N R O OV N N R W N = O Decedent, Orange County Superior Court Case No. 30-2013-000689554-PR-PW- CIC is payable out of property in the Decedent’s estate in the course of administration, or as otherwise ordered by the probate court.) C. Other Relief 69. McCray Properties, LLC and its members, Annie McCray, John W. McCray, Jr., and Molly E. McCray, are deemed to be constructive trustees over all assets remaining in all of the Limited Partnerships, including all funds due and owing to the Limited Partnerships, from any source, 70. The Management “Fee Schedule” dated January 1, 2012 is rescinded as to Limited Partnerships ALB1, Dale Way, MSIB, and PBP. 71. McCray Properties, LLC shall promptly make general ledger journal entries (a) to the partnerships’ books and records to reflect payments to and distributions from partnerships as a result of the reconciliation process described in the Amended Final Award, and (b) required to correct all of the capital accounts for all parties in all partnerships, such that each partner’s ending capital account in each partnership is equal to that partner’s capital ownership percentage, times the total partnership capital. 72. Petitioners, Co-Petitioners, and Michael Alan McCray are awarded (a) interest at the statutory rate of 10% per annum from June 30, 2019 (the date of service of the Amended Final Award), (b) costs of collection from June 30, 2019, and (c) attorneys’ fees incurred from June 30, 2019. Attorneys’ fees and costs shall be awarded pursuant to later memorandum of costs or motion.| IT IS SO ORDERED, ADJUDGED, AND DECREED. Dated: ,2019 Hon. JUDGE OF THE SUPERIOR COURT 14 ORDER AND JUDGMENT 4820-2347-8703\1 believe that this addition is mandated by California Probate Code § 9301. Commented [MJ74]: Petitioners and Co-Petitioners | provide judgment-ready language for clarity purposes only. Commented [MJ75]: Slightly modified in form only to See Award, p. 9. ( Commented [MJ76]: See Award, p. 57. ) provide judgment-ready language and to combine two paragraphs for clarity purposes only. See Award, p. 9. Commented [MJ77]: Slightly modified in form only to Commented [MC78]: This seeks to change the Award as the Arbitrator did not award interest after June 30 and most of the interest awarded was 6%, not 10%. Additionally, see Opposition to Motion for Attorney Fees filed concurrently with this Opposition. Commented [MJ79]: See Parties’ briefing on post- Award/judgment interest, attorneys’ fees, and costs. ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the City of Costa Mesa, County of Orange, State of California. I am over the age of 18 years and not a party to the within action. My business address is 600 Anton Boulevard, Suite 2000, Costa Mesa, CA 92626. On December 23, 2019, I served the documents named below on the parties in this action as follows: DOCUMENT(S) SERVED: RESPONDENTS’ COMMENTS TO PETITIONERS’ COMMENTS RE [PROPOSED] ORDER AND JUDGMENT SERVED UPON: SEE SERVICE LIST [] (BY MAIL) I caused each such envelope, with postage thereon fully prepaid, to be placed in the United States mail at Costa Mesa, California. I am readily familiar with the practice of Dorsey & Whitney LLP for collection and processing of correspondence for mailing, said practice being that in the ordinary course of business, mail is deposited in the United States Postal Service the same day as it is placed for collection. X (BY ELECTRONIC MAIL) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the document(s) to be sent from e-mail address murashko.carmen@dorsey.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [] (BY PERSONAL SERVICE) I delivered to an authorized courier or driver authorized by Legal Solution to receive documents to be delivered on the same date. A proof of service signed by the courier will be filed with the court upon request. [] (BY FEDERAL EXPRESS) I am readily familiar with the practice of Dorsey & Whitney LLP for collection and processing of correspondence for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained by Federal Express for overnight delivery. [] (BY FACSIMILE) The above-referenced document was transmitted by facsimile transmission and the transmission was reported as complete and without error. Pursuant to C.R.C. 2009(1), I caused the transmitting facsimile machine to issue properly a transmission report, a copy of which is attached to this Declaration. X (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 23, 2019, at Costa Mesa, California. /s/ Carmen Murashko Carmen Murashko 3 RESPONDENTS’ COMMENTS TO PETITIONERS’ COMMENTS RE [PROPOSED] ORDER AND JUDGMENT 4823-2798-2767\1 AN nn BA WLW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST James J. Ragen Gail M. Ragen RAGEN & RAGEN jimragen@ragenlaw.com gailragen@ragenlaw.com Attorneys for Nominal Respondents Gloria C. McCray; Whittier Trust Company of Nevada, by Paul Cantor, for Gloria Camille McCray 1965 Trust; Jon Martin, Trustee for Gloria McCray Family Trust dated 10-2-2007; Tim Thomas, Trustee, Alan M. McCray, and Brian Barsotti and Tim Thomas, Co-Trustees for Alan Maurice McCray 1965 Trust Mark Adams Joseph J. Mellema JEFFER MANGELS BUTLER & MITCHELL LLP markadams @jmbm.com Jjmellema@jmbm.com Attorneys for Petitioners RICHARD A. McCRAY, individually, and JULIA McCRAY-GOLDSMITH, individually and in her capacity as Trustee for the Julia McCray-Goldsmith JMG 2012 Trust and Trustee of the Carla M. McCray Trust Barbara J. Orr LAW OFFICES OF BARBARA ORR barbara @barbaraorrlaw.com Brian Behmer BEHMER LAW OFFICE brian @behmerlaw.com Attorneys for Petitioners MARCIA M. WILL, BRIAN A. WILL and CHARLES A. WILL James R. Mellor, Jr. LAW OFFICES OF JAMES R. MELLOR, JR. jrmellorjr@ gmail.com Attorneys for Nominal Respondent Robert J. McCray Martin D. Beier Lisha McKinley S&D LAW beierm@s-d.com mckinley@s-d.com Jerrold E. Abeles ARENT FOX LLP jerry.abeles @arentfox.com Attorneys for Nominal Respondent Michael A. McCray Holly Blair gnbatflaps @ hotmail.com Nominal Respondent in Pro Per 4 RESPONDENTS’ COMMENTS TO PETITIONERS’ 4823-2798-2767\1 COMMENTS RE [PROPOSED] ORDER AND JUDGMENT