Opposition To PetitionOppositionCal. Super. - 1st Dist.November 6, 2019S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mark W. Epstein (SBN 143202) SEILER EPSTEIN LLP 275 Battery Street, Suite 1600 San Francisco, California 94111 Phone: (415) 979-0500 Fax: (415) 979-0511 Attorneys for Respondent SAMETC, LLC ELECTRONICALLY FILED Superior Court of California, County of San Francisco 06/12/2020 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION REGINALD HINDLEY, an individual Petitioner, VS. MARK EPSTEIN, SAMETC, LLC, JOHN Case No. CPF 19-516917 SAMETC’S OPPOSITION TO PETITION TO MODIFY OR VACATE ARBITRATION AWARD [CCP § 1285.2] SOLLNER AND SEILER EPSTEIN ZIEGLER Date: July 2, 2020 & APLEGATE, LLP Respondents. Time: 9:30 a.m. Dept. 501 Judge: Hon. Charles F. Haines _i- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS IER ONT TT CMR) crescents sens sentence Bg BE SESS 1 CURRENT OWNERSHIP INTERESTS .....cooiiiiiiiiiiecrenece scence see secs 2 STRUCTURE OF THIS OPPOSITION .......ccotiiiriiiiintiietetie recientes ee sees 2 ARIGVTINVIIEINT. cs. 5.50 tn oss in isin 50,5250... 55 505 5.2550 E00 5508 5 S00 2 1. Judge Snowden’s Jurisdiction & Experience with the Parties and the Property. ................... 2 A. Judge Snowden Was Granted Extremely Broad Jurisdiction...........ccccoeeeueeiennnnne. 2 2. 3. B. A. B. A. (1) Judge Snowden’s Judicial Appointment — Retirement of Arbitrator Steven BLOCK ......c.ooiiiiiiiiiiii ccc 3 2) Judge Snowden’s Jurisdiction from Appointment Order .............cccecveennenn. 4 3) Judge Snowden’s Authority from the November 4, 2013 Four Way Are ment .........ccceeeiiiiiiieeiiieiiiiecie cece eee eens 5 4) Judge Snowden’s Authority from the March 27, 2015 Agreement t0 Pay NOAVS ....oiiiiiiiiece cesses 6 (5) Judge Snowden’s Authority from the November 27, 2017 Settlement Agreement and Related February 9, 2018 Order....................... 6 Judge Snowden’s experience with the Property and the Parties..............cccceeuenneee. 7 SEZA Never Represented Hindley. .......coovveeiiiiiiiiiiiniiecie cies eee 1 California Law Establishing the Power and Authority of an Arbitrator is Clear. ........... 9 Thies Calitorrig, Brig CTT sussmmsmsmss mmsnesmsmss iiss0m 8 sss0es ss sm em mem 9 Applicable California Statute ...........ccoevierieiiieeriieiie c ce 12 (1) Judge Snowden did not exceed his POWers. .........cccocceevviinieniiciieeeee. 12 2) Judge Snowden did not substantially prejudice Hindley............ccccec..... 12 Historical Arbitration and Court Orders/Awards...........ocovevierieeienieniniecneee ie 13 Judge Snowden’s October 15, 2019 Final Arbitration Award...........ccceevvvvvieniecnene. 17 Response to Other Allegations by Hindley ..........ccocveriieiiiiiiiniiieiie cece 18 Hindley’s Discovery and Evidentiary hearing Rights Were not Violated............. 19 ER SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P EA ~ N ON Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Hindley Was Never Billed by SEZA and Never Paid Legal Fees to SEZA.......... C. Epstein Did Not “Secretly” Buy Back into Sametc. ..........cccceevieeienieninnienecinnnnn. D. Epstein, Not SEZA is the Proper Party.........cccoccveeiieiiiniieniecie cece eee E. SOlINEr DISCIAIMET cuvette cesses sae sees F. Rules of Professional Conduct.............covevieriiiiiiiniininieecie cesses CONCLUSION... etter st ete sheet este se estes este se esse sb ease ebeene esse ne esse nsenbesnens - iii - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534 .......ccovvveriennnne. 3 Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334.........ccoevviiieiiieciieeceeeeeees 11 Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 3123 Griffith Co. v. San Diego Col. For Woman (1955) 45 Cal.2d 501 ........ccceviiiiniiiniiiieieeieee 11 Jordan v. Department of Motor Vehicles (2002) 100 Cal. App.4th 431 .....ccoveiiiiiiiiiieeeeene 3 Moneharsh v. Heily & Blase (1992) 3 Cal Ath | cess suse ssssmmmssmssen aosmsonsmmons 2,9,10, 11 Moshonov v. Walsh (2000) 22 Cal. Ath 77 1.....ooiiiiieiiie cies eects eras rs sees ee eases 11 Statutes Cal. Code Civ. Pro. § 1280 ....c uvette eres sees seer ee eta ee eaae ee saae ee snae eens 3,12 Cal. Code Civ. Pro. § 1286.2 .....ccvieeieeiieeie cies everest eee eaae saan essen enbe anaes 10, 11 Cal. Code Civ. Pro. § 1286.0 ...cc.eiuieiiiieiieieieiee sees steers 10, 11 iv - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION Petitioner Reginald Hindley (“Hindley”) seeks to modify or vacate an arbitration award issued by the Hon. W. Scott Snowden (Ret.) in which he found that Mark Epstein (“Epstein”) is permitted to be a member of Sametc, LLC (“Sametc”) and/or otherwise own an interest in the 6- unit TIC property located at 3300 Clay Street in San Francisco (the “Property”). Epstein was a member of Seiler Epstein Ziegler & Applegate LLP, (“SEZA”) and represented Sametc in the underlying arbitration. Hindley was represented by his own counsel, who submitted pleadings, supplemental pleadings and participated in a preliminary conference and scheduling call with Judge Snowden as well as the hearing that resulted in the award now being challenged. Judge Snowden, who was contractually and by court order given broad powers to hear disputes relating to the Property and to make final and binding decisions, read and considered the briefs and accompanying declarations and exhibits, and heard and considered the arguments of counsel and Hindley at the hearing. Hindley did not make any request to conduct discovery or have an in- person evidentiary hearing. Hindley’s Petition seeking to modify or vacate the award, is not supported by the facts relating to the dispute or well-settled California law that an arbitrator’s decision is not reviewable for errors of fact or law except under extremely narrow circumstances. Hindley’s pleadings and supplemental pleadings filed to date in this matter are a confusing collection of partial truths, misrepresentations, and outright falsehoods. One such falsehood is Hindley’s repeated assertion that he was represented by SEZA, something he now states is “the core factual issue in this case.” This often-repeated misrepresentation amounts to a fraud on this Court and in making these repeated misrepresentations, Hindley has perjured himself. Hindley is an original owner of the Property and purchased his interest in 2004. Although intimately familiar with the facts and procedural history of this and other disputes which are at the core of this matter (as well as being an experienced attorney and officer of the Court), Hindley repeatedly misstates the procedural and factual history related to the Property dispute, argues that inapplicable cases are relevant or controlling, and misstates the relevant rulings of arbitrators and this Court. Tellingly, Hindley never refers to the seminal California -1- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE NO. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supreme Court case on arbitrator authority/jurisdiction: Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1. Moncharsh details California law for determining the extent of an arbitrator’s powers, which start and end with what powers the parties contractually granted to the arbitrator (a subject Hindley never addresses). It would be impossible to perform even cursory research on the issue of arbitral review under California law and miss the controlling Moncharsh case. But as shown below, Judge Snowden was given broad authority to address any and all disputes related in any way to the Property or between the owners of the Property and to make final and binding decisions. There is no merit to this Petition, and Judge Snowden’s Final Award should be confirmed. CURRENT OWNERSHIP INTERESTS The Property is a six-unit apartment building located at Clay/Presidio Streets in San Francisco. Sametc owns Units 2, 3 and 6; Epstein owns Units 1 and 4; and Hindley owns Unit 5. Hindley, Sametc, Epstein and SEZA are collectively referred to as the “Parties.” STRUCTURE OF THIS OPPOSITION To consider Hindley’s request that Judge Snowden’s Final Arbitration Award of October 15,2019 (“Final Award”) be corrected or vacated, there are five relevant areas of fact/law: The extent of Judge Snowden’s jurisdiction and his experience with the Property/Parties; The truth and veracity of Hindley’s claims of being represented by SEZA; California law applicable to the judicial review of Judge Snowden’s Final Award; The procedural history of this matter, including arbitration and court orders at issue; and An accurate reading of Judge Snowden’s Final Arbitration Award. R W BD = Sametc addresses each of these points in correspondingly numbered paragraphs below, as well as some of the less developed and largely irrelevant allegations by Hindley in a Section 6 entitled “Response to Hindley’s Other Allegations.” ARGUMENT 1. Judge Snowden’s Jurisdiction & Experience with the Parties and the Property. A. Judge Snowden Was Granted Extremely Broad Jurisdiction Hindley’s claim that Judge Snowden did not have the power or jurisdiction to render the Final Award is without merit because he granted Judge Snowden the very power he now challenges. In cases involving private arbitration: “[t]he scope of arbitration is ... a matter of agreement between the parties . . . .” Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. _0- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 100 Oak Street (1983) 35 Cal.3d 312, 323. The court’s review of an arbitrator’s decision should provide “substantial deference towards the arbitrator’s determination of his or her contractual authority” and “is not subject to judicial review except on grounds set forth in [CCP] section 1286.” Jordan v. Department of Motor Vehicles (2002) 100 Cal. App.4th 431, 443-444. All reasonable inferences must be drawn in support of the award. Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 541. There are five independent sources where Hindley granted Judge Snowden his jurisdiction and authority, in addition to this Court’s 2015 order appointing Judge Snowden. Each source is identified below with the operative language cited. These documents expressly provide that Hindley and the other owners are judicially and contractually obligated to resolve “any and all” disputes with Judge Snowden as the trier of fact and that his decisions are to be final and binding. Further, all rights to appeal his determinations have been waived except in very limited circumstances that do not exist here. Judge Snowden’s jurisdiction, by design, is extremely broad, all-inclusive, and final. (1) Judge Snowden’s Judicial Appointment — Retirement of Arbitrator Steven Block Prior to Judge Snowden’s appointment over five years ago, the Parties and their predecessors had another designated arbitrator, Steven Block of JAMS, assigned to hear and resolve all disputes. Declaration of Mark W. Epstein (Epstein Decl.), q 1. Like Judge Snowden, Arbitrator Block was engaged early and often to hear and resolve disputes throughout his approximate four-year term. When Arbitrator Block retired in 2014, Hindley and former owner Ted Elms (“Elms”) refused to comply with his orders regarding the appointment of a new arbitrator or acknowledge the validity of the sale from former owner Scott Jacques (“Jacques”) to Sametc. Id. 4 17. Sametc and former owner John Sollner (“Sollner”), who is a named respondent in this action, were forced to file a Petition to Confirm the validity of the Jacques sale before this Court in Action No. CPF 14-513720. The Petition resulted in Judge Quidachay issuing both a Confirmation Order and an assessment of costs and attorney’s fees against Hindley and Elms. Sametc Request for Judicial Notice, Exhibit A (Confirmation Order) and Exhibit B (Attorney’s Fees Order). Even then, Hindley and Elms both continued to refuse to arbitrate disputes related to the Property necessitating an additional Petition to Compel _3. SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE NO. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Arbitration and the issuance of a further order compelling arbitration, assessing costs and fees, and appointing Judge Snowden. The January 12, 2015 Order appointing Judge Snowden in Action No. CPF 14-513996 (“Appointment Order”), is attached as Exhibit C to Sametc’s Request for Judicial Notice. (2) Judge Snowden’s Jurisdiction from Appointment Order In the Appointment Order, this Court appointed Judge Snowden and provided him with broad powers: The assigned arbitrator (Judge Snowden) will also determine in the first instance whether other disputes that may arise in the future sufficiently relate to the 3300 Clay Street tenancy-in-common to fall within the scope of the arbitration clauses of the parties agreements, such that they can be resolved by arbitration without the need for a further petition to compel. Id. pp. 2-3. Judge Snowden was and is affiliated with JAMS, previously having served as a judge and presiding judge on the Napa Superior Court for over fifteen years. A true and correct copy of Judge Snowden’s CV taken from the JAMS website is attached to the Epstein Decl. as Exhibit K. As noted above, the basis for Judge Snowden’s appointment was the contracts between the Property’s owners, the most comprehensive of which is the forty-eight-page Tenants in Common Agreement (“TICA”) between the Parties. A true and correct copy of the TICA for the Property is included in Hindley’s Amended Petition (“Hindley Petition”) as Attachment 4(c). The TICA expressly provided Judge Snowden the jurisdiction to hear all disputes related to the Property with extremely limited and expressly identified exceptions. According to the TICA, Judge Snowden has the following jurisdiction (all bold text other than the titles is added for emphasis by Sametc): eo TICA 14.2 G: Deadlock. In the event of a deadlock, all matters shall be determined through binding arbitration by the successor arbitrator to Steven Block, the Honorable W. Scott Snowden (Ret.). eo TICA 14.10 ARBITRATION: Through an agreement entitled Four Way Agreement the Cotenants have provided for the resolution of disputes through a designated arbitrator, Steven Block. Mr. Block accepted employment with the California Department of Justice and was required to resign .... Thereafter, the San Francisco Superior Court appointed the Honorable Judge W. Scott Snowden (Ret.) as successor arbitrator. Accordingly, the TC has a designated arbitrator for the resolution of disputes. . . . -4.- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Agreement to Arbitrate. Any dispute related to the Property which is not subject to mediation and not resolved through mediation shall be submitted to binding arbitration in accordance with the provisions of the California Civil and Code of Civil Procedure pertaining to contract arbitration. No such dispute shall be resolved through court action except as specifically provided in this Agreement ... H. Statutory Notice. “YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU ARE ALSO GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION” PROVISION. e TICA 14.11: MATTERS EXCLUDED FROM ARBITRATION. The following matters are excluded from ... mandatory binding arbitration, but not from mediation: A. ... unlawful detainer; B. ... Small Claims Act; C. ... probate or domestic relations court; D. ... to compel arbitration or mediation . . . ; and E. ... a notice of pending action . . . The TICA, which Hindley signed, could not have been clearer. Judge Snowden was vested with the jurisdiction and authority to determine all matters of dispute, in a binding manner, without the right to appeal or conduct discovery. The only exceptions are provided in Section 14.11. (3) Judge Snowden’s Authority from the November 4, 2013 Four Way Agreement In Section 14.10 of the TICA cited above, reference is made to the “Four Way Agreement” (“FWA”) The FWA, misrepresented by Hindley to be a “retainer agreement,” was a contract between the four owners in 2013 that resolved numerous disputes. The FWA is attached as Exhibit C to the initial Hindley Declaration and Exhibit B to the Epstein Decl. One such dispute was whether owners Jacques and Sollner who had retained SEZA to represent them in litigation against WB Coyle (the original developer of the Property) and thereafter, to evict squatters that Coyle had unlawfully placed into units 4 and 6, should be entitled to some contribution from Hindley and Elms. Under the FWA, the Parties voluntarily agreed that since SEZA'’s efforts on behalf of its clients Jacques/Sollner were also benefitting the other owners, Jacques and Sollner’s attorney’s fees incurred in those specific litigations would be shared equally by all owners. As the FWA itself and Hindley’s admissions (set forth below) make clear, the FWA was never a “retainer agreement” and SEZA never represented Hindley, Elms or the TIC. The powers and jurisdiction granted to the arbitrator under the FWA include: 5. SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Arbitrator’s Retention of Jurisdiction. The Arbitrator retains jurisdiction over this matter as to all issues arising out of the TIC, this agreement and any other issues that arise in the execution of both agreements. FWA, Exhibit C to Hindley, Decl., p. 7, 9 12; Exhibit B to Epstein Decl. (emphasis added). (4) Judge Snowden’s Authority from the March 27, 2015 Agreement to Pay NOAVs Following the FWA, disputes continued between the Parties, including allegations that Hindley had failed to pay thousands of dollars in TIC assessments, putting the TIC’s solvency at stake. Ultimately a resolution was reached with Hindley, resulting in him paying $16,539 to the TIC and signing a March 27, 2015 Agreement to Pay NOAVs (“NOAV Agreement”). A true and correct copy of the NOAV Agreement is attached as Exhibit H to the Epstein Decl. (omitting numerous exhibits). Once again, the NOAV Agreement also contained language acknowledging Judge Snowden’s powers and authority: Successor Arbitrator. The Parties expressly recognize the authority of Retired Judge Scott Snowden of JAMS as the successor arbitrator for the TIC and that he has the authority to hear and resolve any and all disputes related in any way to the TICA, the Four Way Agreement and this Agreement without further action or order of the court. Id. atp. 4,94. (5) Judge Snowden’s Authority from the November 27, 2017 Settlement Agreement and Related February 9, 2018 Order A few years after the NOAV Agreement, there was another dispute requiring significant arbitration proceedings between Hindley, Sollner and Sametc. The disputes were ultimately resolved during an arbitration before Judge Snowden and documented in a November 27, 2017 Settlement Agreement (“Hindley Settlement Agreement”). Judge Snowden’s authority to hear disputes between the parties was again acknowledged in the Hindley Settlement Agreement and utilized a short time later when the Parties disputed what version of the TICA would apply going forward. Epstein Decl. 21. The Hindley Settlement Agreement specifically provided that if the Parties were unable to agree on a new TICA, each Party would submit their proposed TICA to Judge Snowden with supporting briefing and he would determine which document would be the operative TICA. Hindley submitted his own version and Sollner/Sametc presented a jointly proposed TICA. As set forth in the February 9, 2018 Order (“TICA Order”) included in the Hindley Petition as -6- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE NO. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attachment 4(b), the TICA proposed by Sollner/Sametc “shall be the binding and effective TICA for the 3300 Clay Street TIC.” Further, the TICA Order provides: Pursuant to Court Order and the terms of the TICA, the Arbitrator shall maintain jurisdiction to consider any challenges made by Reginald Hindley to the amendments to the TICA as set forth in the Settlement Agreement or to hear any further disputes between the Parties. Id. at p. 2, 95 (emphasis added). Importantly, Hindley’s proposed TICA, which Judge Snowden rejected, included language that would have permanently prevented Epstein from owning an interest in the Property. Id. B. Judge Snowden’s experience with the Property and the Parties Since his appointment over five years ago, Judge Snowden has arbitrated and mediated numerous disputes between the owners and has a deep and comprehensive appreciation for the relevant facts and history of the Parties and the Property. He has reviewed countless historical contract documents and emails from the Parties as arbitration exhibits and related submittals. He has heard the Parties’ testimony explaining the ownership history, the previous disputes and the meaning of countless contracts and email exchanges. He has also held numerous conference calls with the Parties and often heard arguments related to various motions and discovery disputes. Through all of this, Judge Snowden has been able to learn the complicated history of the acquisition and development of the Property, its various ownership changes, the countless disputes, and importantly, has more than five years of history assessing the credibility of the Parties. Epstein Decl., 9 22. 2, SEZA Never Represented Hindley. Hindley submitted a declaration under penalty of perjury and related pleadings that are replete with false claims that SEZA represented him. There is no other way to address these fabrications other than to say that Hindley is knowingly lying and committing a fraud on this Court. Hindley has perjured himself and is unfortunately willing to say and do anything that may get him the relief he improperly seeks in his Petition. Hindley represents: e “Upon signing the agreement [FWA], I understood SEZA to be our counsel and advocate representing the TIC owners, Sollner, Jacques, Elms and Hindley. ... I have paid SEZA an estimated $110,000.” Hindley Decl., p. 5, Ins 1-9. -7- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e “Counsel Epstein, who was supposed to be our TIC counselor and attorney, was doing one thing for Sollner/Jacques and another thing with Elms/Hindley.” Id., p. 6, Ins 1-2. e “...Hindley’s former attorneys, . . . Epstein . . .SEZA ...” Petitioner's Memorandum, p. 7, Ins 4-7; e “ .. representation [legal] provided by Epstein and SEZA to TIC and Hindley ...” Id. p. 7, In. 12; eo “...Epstein’s and SEZA’s ethical duties to Sollner and Hindley as former clients.” Id. p. 8, Ins. 16-17 (See additional examples of Hindley’s representations in Epstein Decl., 9 27-29); eo “ .. the core factual issues in this case is whether attorney Epstein and Sollner previously represented Hindley or Hindley’s interests in the TIC as Arbitrator Block expressly found in his award confirmed by the Judgement. Petitioner’s Memorandum at p. 26, Ins. 18-21. These and many other noted misrepresentations are an attempted fraud on this Court and suggest other Hindley representations are likely fabrications as well. The proof of Hindley’s fraud is easily documented using his own often repeated statements quoted above and below and in the Declarations of Mark W. Epstein and Scott Jacques. A small portion of Hindley’s contradictory statements made at a time when he was not seeking the current relief include (all bold emphasis is added by Sametc): oe “SEZA’s loyalty has not been in the best interest of the TIC for the reason that SEZA does not represent the TIC, SEZA only represents SAMETC, LLC, Mr. Jacques and Mr. Sollner.” Reginald Hindley February 10, 2014 Arbitration Brief, p. 4, Exhibit F to Epstein Decl. e “Last March 2013, SEZA prepared and filed the Coyle squatter unlawful detainer complaints under a retainer agreement only with Sollner and Jacques. Elms/Hindley were not included. Prior to that, SEZA came into the picture only representing John Sollner in connection with another Coyle case . . .. SEZA then proceeded to represent only Sollner and Jacques in confirmation of the arbitration award, not Elms or Hindley.” 7d. e “Because Elms/Hindley technically are not clients of SEZA there would be no violation off Rule 3-310.” Id. at p. 6. e “Because the retainer agreement is held by Sollner/Jacques/Sametc, Hindley cannot terminate SEZA without further legal action.” Id. p. 3, (5). e “Your firm already had a client relationship with Mr. Sollner in #179 adverse to other TIC members. You therefore were never representing EIm’s Hindley’s interest. . .. My position has no reason to change as your firm does not represent Mr. Elms or Hindley.” May 20, 2014 email from Hindley to Mark Epstein in response to email of the same date from Mark Epstein to Hindley (See, immediately below); Exhibit M to Epstein Declaration. -8- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e “John [Sollner] and Scott [Jacques] (now Sametc) are this firm’s clients and the Four Way covers how this litigation works. For the same reasons Mr. Klemenko could not continue to represent your entire group, this firm likewise could not and would not represent you [Hindley] and Ted [Elms].” Id. An additional piece of evidence further documents the lack of candor in Hindley’s current representations. Judge Snowden was previously faced with the very claim Hindley is now making (that SEZA represented him) when Elms (initially with Hindley’s support), sought to disqualify SEZA from representing Sollner/Sametc in a previous 2015 arbitration. After extensive briefing and evidentiary hearings, Judge Snowden issued a July 15, 2015 Order (“Legal Representation Order”) rejecting the very theory Hindley now again advances. The Legal Representation Order concludes: [...] Respondents were never represented by SEZA . . . not only did Respondents not believe that they and SEZA had an attorney client relationship, but also, Respondents did not seek, nor did SEZA provide them with, any legal advice. Legal Representation Order, pp 4-5, Epstein Decl., Exhibit Q. The Legal Representation Order was served on Hindley at his home address in 2015 and via email and he has known about Judge Snowden’s rejection of his current claim for over five years. Epstein Decl., 29. Understandably, Hindley did not advance the claim he makes to this Court, that SEZA represented him, in the underlying proceeding before Judge Snowden. Why? Because Hindley knew the issue had already been presented to Judge Snowden who rejected the claim. In spite of Hindley’s numerous admissions that he was never represented by SEZA, as well as the Legal Representation Order rejecting that claim, Hindley has here submitted a declaration under penalty of perjury and numerous pleadings to this Court claiming something he knows to be patently untrue. 3. California Law Establishing the Power and Authority of an Arbitrator is Clear. A. The California Supreme Court The California Supreme Court’s seminal ruling in Moncharsh, is the beginning and end point for the consideration of Judge Snowden’s arbitral powers and in understanding the extremely limited circumstances under which any court can properly review, modify, or vacate his Final Award. The Court’s first sentence in the opinion leaves no doubt that it applies here: -9- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE NO. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “We granted review in this case to decide, inter alia, the extent to which a trial court may review an arbitrator’s decision for errors of law.” 3 Cal.4th 1. In Moncharsh, the Court provided an in-depth historical analysis of contractual arbitration jurisdiction and authority, specifically where the ruling is wrong under California law and resulted in an injustice to one of the parties. The decision further provides clear parameters for the limited situations where it is appropriate for this Court to modify or vacate Judge Snowden’s Final Award. The Moncharsh Court expressly held that in California, an arbitrator’s decision is not generally reviewable for errors of fact or law, even if such errors appear on the face of the award and cause substantial injustice to the parties. /d. Finally, the Court held that only extremely limited review, correction or vacation of an award was permissible, and only as provided in CCP section 1286.2 to vacate or 1286.6 to correct. Id. at 33. Moncharsh was a contractual arbitration dispute in which the arbitrator made rulings in favor of a law firm (Heily & Blase), based on allegations of a breach of contract by one of its attorneys (Moncharsh). When Moncharsh petitioned the superior court to vacate and modify the arbitrator’s award, the trial court, followed by the court of appeal, upheld the award, finding that an arbitrator’s ruling on questions of both law and fact are conclusive and cannot be set aside “no matter how egregious.” However, the lower courts recognized one exception to this rule, concluding that if the arbitrator’s error appeared on the face of the award, it could be reviewed and modified. The Supreme Court accepted review of the case specifically to address this newly recognized “exception” by the lower courts and to provide greater clarity surrounding the jurisdiction and powers of a contractually mandated arbitrator. After an extensive review of the history of arbitral jurisdiction and the appropriate level of review, the Court rejected the new exception and reaffirmed the extremely limited role of the courts in reviewing, modifying or vacating an arbitration award, even where factual or legal error was evident on the face of the award. Id. In so doing, the Court reaffirmed the importance of arbitral finality in contractual arbitration cases, stating that the California Legislature had expressed a strong policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution and that parties that voluntarily enter into arbitration agreements typically expect their disputes to be resolved without necessity for any contact with the courts. Id. at 9. -10 - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court also emphasized that binding arbitration clauses provide that the arbitrator’s decision would be both binding and final. Id. After citing several decisions emphasizing these points, the Court concluded: Thus, an arbitration decision is final and conclusive because the parties have agreed that it be so. By ensuring that an arbitrator’s decision is final and binding, courts simply assure that the parties receive the benefit of their bargain. Id. at 10. The Court continued: Thus, it is the general rule that, with narrow exceptions, an arbitrator’s decision cannot be reviewed for errors of fact or law. In reaffirming this general rule, we recognize there is a risk that the arbitrator will make a mistake. That risk, however, is acceptable . .. by voluntarily submitting to arbitration, the parties have agreed to bear the risk in return for a quick, inexpensive, and conclusive resolution of their dispute. Id. at 11. The Court then cited its previous ruling in Griffith Co. v. San Diego Col. For Woman (1955) 45 Cal.2d 501, 515-516: Even if the arbitrator decided [the] point incorrectly, he did decide it. The issue was admitted properly before him. Right or wrong the parties have contracted that such a decision should be conclusive. At most, it is an error of law, not reviewable by the courts. The California Supreme Court has repeatedly reaffirmed and restated its seminal holding: In Moncharsh, this court held judicial review of private, binding arbitration awards is generally limited to the statutory grounds for vacating (§ 1286.2) or correcting (§ 1286.6) an award; we rejected the view that a court may vacate or correct the award because of the arbitrator’s legal or factual error, even an error appearing on the face of the award. (Moncharsh, supra, 3 Cal.4th at pp. 8-28... ) We further explained that arbitrators do not “exceed| | their powers” within the meaning of section 1286.2, subdivision (d) and section 1286.6, subdivision (b) merely by rendering an erroneous decision on a legal or factual issue, so long as the issue was within the scope of the controversy submitted to the arbitrators. “The arbitrator’s resolution of these issues is what the parties bargained for in the arbitration agreement. Moshonov v. Walsh (2000) 22 Cal.4th 771 (citing (Moncharsh, 3 Cal. 4th at 28). See also, Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334. Based upon the above clear and unequivocal California law, even were Judge Snowden to have made an error in the facts or law identifiable in the actual text of his Final Award now being challenged by Hindley (something Judge Snowden did not do), modifying or vacating the Final Award would be improper unless there is a clear violation of CCP § 1286.2 or 1286.6. -11 - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Applicable California Statute CCP section 1286 et. seq. provides extremely limited exceptions to the clear holding of Moncharsh. Hindley here has provided a series of inaccurate and misleading arguments as to why the statute should apply in this matter. Hindley asserts two grounds under section 1286 for his requested relief: (1) that Judge Snowden exceeded his powers; and (2) that Judge Snowden substantially prejudiced his rights by refusing to allow him to conduct discovery or have an in- person evidentiary hearing. Neither of these two limited exceptions apply to this matter and the Final Award should be confirmed. (1) Judge Snowden did not exceed his Powers. Moncharsh and its progeny make clear that an arbitrator only exceeds his or her powers, when they act beyond the powers granted by the parties. In this case as set forth in detail in Section 1 above, the Parties provided Judge Snowden extremely broad powers in multiple contracts, without limitation and Hindley waived his rights to appeal. Hindley has failed to show how Judge Snowden exceeded his contractual jurisdiction in any way, nor can he. Hindley’s argument that Judge Snowden exceeded his powers by modifying the Reconsideration Order, is in error because Judge Snowden did not modify the order, he interpreted it. And, even if he had modified the Reconsideration Order (which he didn’t) that does not exceed the powers given to him by the Parties. At most, it would amount to a legal error, something that is unreviewable under Moncharsh and Moshonov. 2) Judge Snowden did not substantially prejudice Hindley. Hindley’s second argument under section 1286 is that he was “substantially prejudiced” because Judge Snowden did not allow him to conduct discovery or hold an in-person evidentiary hearing. Petitioner's Memorandum, pp. 26-27, Section E. Again, Hindley grossly misrepresents the actual facts, and is attempting to mislead the Court into believing that he had formally requested either of these two actions when in fact, he made no such requests. Hindley identifies the issue of whether he was represented by SEZA as “the core factual issue in this case” Id. p. 26, Ins. 18-19 and alleges that he was denied his right to discovery on this core issue. Hindley fails to disclose two facts to the Court: First, Judge Snowden already held detailed evidentiary hearings on the representation issue and reviewed hundreds of emails -12 - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and documents (some of which Hindley wrote, and which are quoted above) and entered an order five years ago that SEZA did not represent Hindley or Elms. See, Legal Representation Order, Exhibit Q to Epstein Decl. Even Hindley concedes in his papers here that an arbitrator’s unconfirmed award “has res judicata and collateral estoppel effect.” Petitioner's Memorandum, p. 8, In. 28. Second, Hindley fails to disclose to the Court that he never once asked Judge Snowden for the right to conduct any discovery. Epstein Decl. q 35. Not once did he make a formal request, motion or demand for the proceedings to be delayed or continued so that he could conduct any discovery. Id. Finally, as to Hindley’s claim that there was no in-person evidentiary hearing, this too is a misrepresentation. As Judge Snowden has done many times over the past five years, the hearing held on Sametc’s Rule 18 Dispositive Motion (the real matter Judge Snowden ruled on in his Final Award) was held via a telephonic conference as allowed under JAMS Rule 22(g) and as agreed upon by the Parties. (See, JAMS Comprehensive Arbitration Rules & Procedures, Epstein Decl., Exhibit S). The Parties agreed to telephonic hearing during a preliminary conference call with the arbitrator during which the Parties agreed upon a briefing schedule and aj telephonic hearing date. All Parties were able to make other requests or comments they desired during the preliminary call and at no time did Hindley or his counsel request to be allowed to conduct discovery, to postpone the hearing date, or to have a physical evidentiary hearing with witnesses. Epstein Decl., 4 35. Hindley’s claims to this Court that he was denied rights he never pursued or requested in the underlying arbitration (other than making an offhand comment in his underlying opposition papers) is a disingenuous attempt to fit with a narrow statutory exception that does not apply. 4. Historical Arbitration and Court Orders/Awards Arbitrator Block’s Orders Hindley has attempted to complicate and confuse the various Block orders and related issues. Although there are many Block orders based upon the history of litigation between the owners, only three are relevant here: (1) February 25, 2014 Order Regarding Proposed Sale of Interests of Scott Jacques and Associated Disputes (“Initial Block Order”) (Epstein Decl., Exhibit C); -13 - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2) April 6, 2014 Order In Re Motion for Reconsideration Regarding Jacques Sale (“Reconsideration Order”) (Epstein Decl., Exhibit D); and 3) April 6, 2014 Order In Re Multiple Issues (“Multiple Issues Order”) (Epstein Decl., Exhibit E) . Importantly, and as addressed below, the Reconsideration Order and the Multiple Issues Orders were signed and issued by Arbitrator Block on the same day. Of these three referenced Block orders, only the Reconsideration Order was confirmed by this Court, at Sametc/Sollner’s request. Initial Block Order In the Initial Block Order, Arbitrator Block identified issues that he worried could result in problems between the TIC owners and SEZA if Epstein was a member of Sametc and Sametc purchased the Jacques interests. First, he noted that SEZA was litigating three different matters related to the TIC and was a major creditor of the TIC. (Initial Order, p. 6, Ins. 1-4). This was mostly true. He further noted that if SEZA withdrew from its representation over payment disputes, new counsel would need to be retained and educated and those steps would be expensive for the TIC members. (Id. Ins. 5-17). Again, a true statement. Arbitrator Block also noted that “one of the TICs lawyers, being an owner risks further protracted angst, argument and potential conflicts of interests, real or apparent” (Id. at p. 5, Ins. 25-27) and if “Epstein’s group became an owner, he would be a creditor, member of the TIC, and ongoing counsel for the TIC.” (/d. p. 6, Ins. 2-3). Although neither Hindley nor Elms argued that SEZA was their personal attorneys or had been retained to represent the TIC, (Epstein Decl. 99 14-15, Exhibits F and G) the Initial Block Order mistakenly identified the basis of their mutual objection to Sametc being allowed to purchase the Jacques interests: “The common reason given for the disapproval was Hindley’s and Elm’s objection to Sametc’s ownership where one of the members was a partner in the law firm representing the TIC in critical litigation.” (Id. p. 4, Ins. 7-8). As addressed in detail below, there is no question that this statement was in error and that Arbitrator Block later expressly acknowledged and corrected the error in two subsequent orders. Hindley fails to explain to this Court that it was the Initial Block Order (the order not confirmed by this Court) that contained the mistaken language about SEZA representing the TIC and that the mistaken language was highlighted and corrected in the -14- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reconsideration Order (the order that was confirmed by this Court) and the Multiple Issues Order, both signed by Arbitrator Block on April 6, 2014. The Initial Block Order also included: “The arbitrator is not making any findings or qualitive judgments concerning the relationship between SEZA and the TIC. . ..” (/d. at Ins. 21- 22). Despite stating that he was not making any findings on the relationship between SEZA and the TIC, the arbitrator’s incorrect word choice in the Initial Order has created confusion and Hindley is trying to exploit that confusion here. The Initial Block Order granted Hindley’s request that the Jacques sale to Sametc be disallowed, using the above cited quotations as the basis for the ruling. As set forth in the accompanying declarations of Mark W. Epstein and Scott Jacques, and the many referenced exhibits, neither Hindley nor Elms ever briefed or argued that SEZA represented either one of them or the TIC in their hearing briefs or at the hearing that resulted in the Initial Block Order. See, Epstein Decl. at 9 14-15, Jacques Decl. at § 14. The Initial Order is the only Block order with this inaccurate language, but it was not confirmed by this Court, and the arbitrator’s error was corrected in both the Reconsideration Order (confirmed by this Court) and the Multiple Issues Order. Reconsideration Order Sametc, Sollner and Jacques asked the arbitrator to reconsider the Initial Block Order via a Motion to Reconsider and Hindley and Elms objected. The request for reconsideration was briefed, and a hearing on the motion and several other issues in dispute was held on March 19 and 20, 2014. During the hearing, Sametc and Sollner specifically explained that SEZA had never represented Hindley, Elms or the TIC, but in appreciation for the other concerns expressed by the arbitrator about existing facts that raised potential conflicts, Sametc was be willing to have Epstein withdraw from its current membership if the arbitrator believed it was necessary due to the issues identified by the arbitrator. Declarations setting forth some of the discussions held with the arbitrator on this issue were submitted during the briefing and hearing before Judge Snowden in the underlying arbitration, including Arbitrator Block’s statements that if he required] Epstein to divest at this time, he was not prohibiting future ownership or affiliation. These declarations are found in Petitioner’s Designated Record (“Petitioner’s Record”) at pages 241- 248; 260-264, 268. During the March hearings, Arbitrator Block made clear that he was leaving -15- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the door to future affiliations between Sametc and Epstein wide open and importantly, neither Hindley nor Elms requested that Epstein be forced to divest, nor did either one of them at that time claim that they had ever been represented by SEZA. Importantly, Hindley never disputed or contradicted these declarations Submitted to Judge Snowden or the statements Respondents represented had occurred during the March 2014 Arbitration. Three important aspects from the two-day March hearing were incorporated into the Reconsideration Order granting Sametc’s Motion to Reconsider and allowing it to purchase the Jacques Interests. First, Arbitrator Block specifically held that: “The Arbitrator erred in previously finding that Elms and Hindley substantially complied with the TIC in this regard.” Second, he quoted the previously highlighted language from the Initial Block Order where he had made the error mistakenly finding that Elms and Hindley had properly objected to the sale (based upon claims that SEZA had acted as the TIC’s attorney) and stated that his error formed the basis of his initial denial of the Jacques sale to Sametc. That specific mistaken language/finding once again was: Thereafter, Hindley and Elms substantially complied in communicating their disapproval of the proposed transfer. The common reason given for disapproval was Hindley’s and Elm’s objections to Sametc’s ownership where one of the members was a partner in the law firm representing the TIC in critical litigation. (Reconsideration Order, p. 3, Ins. 19-22)(emphasis added). By restating this mistaken language and identifying it as error, Arbitrator Block was not reaffirming the language being highlighted as Hindley now asserts, but was identifying the language where he had committed his error and noting that it was incorrect. The arbitrator in fact found that Hindley and Elms had not complied with the TIC by setting forth a mutual objection as the above quoted language was in error. The arbitrator then set forth the actual objections that were advanced by Hindley and Elms and none of the stated objections were based upon claims that SEZA represented the TIC, Hindley, or Elms. Id. at p. 4, Ins. 12-25 Third, Arbitrator Block specifically ruled the sale between Jacques and Sametc was proper but he remained concerned about anyone from SEZA participating in the ownership of the Property “at this time” based upon previously identified concerns, something an| arbitrator has the inherent power to address. It is the Reconsideration Order, without a finding -16 - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that SEZA had represented Hindley, that was confirmed by this Court as requested by Sollner/Sametc. Hindley’s claims to the contrary are misrepresentations to this Court. Multiple Issues Order Finally, it is important to review and understand how the Multiple Issues Order interacts with, and provides additional insight into, the Initial Block Order and the Reconsideration Order. As noted, Arbitrator Block signed the Multiple Issue Order and the Reconsideration Order on the same day, April 6, 2014. The Multiple Issues Order resulted from the same two days of March 2014 hearings as the Reconsideration Order. The Multiple Issues Order recounts that multiple written materials were considered along with oral testimony from the parties during the two-day hearing. Under the heading “Legal Representation” Arbitrator Block’s Multiple Issues Order concludes: There is a recurring issue regarding the representation of Sollner and Jacques by SEZA. Specifically, Elms and Hindley complain that SEZA is not authorized to represent the TIC and that they are unfairly being charged fees for services rendered. SEZA has candidly made it clear that they only represent Sollner and Jacques and will only invoice Sollner and Jacques. Hindley and Elms will ultimately be assessed for a portion of the fees of SEZA for any benefit derived from the efforts of SEZA in pursuing items that Sollner and Jacques have standing to pursue. It is aptly addressed in the Four Way Agreement. . .. Elms and Hindley are free to hire counsel of their own choice if they are unhappy with whatever benefits they are reaping from SEZA'’s efforts. ... SEZA has been willing to advise Elms and Hindley about the status of the various matters but will not allow Hindley and Elms to review the attorney’ files because of the attorney-client privilege. Multiple Issues Order, pp. 6-7 (emphasis added). Arbitrator Block did not make any finding that SEZA ever represented Hindley as Hindley improperly represents in his Petition. In fact, the above language makes it clear that Arbitrator Block concluded just the opposite. S. Judge Snowden’s October 15, 2019 Final Arbitration Award Like many other of Hindley’s representations, his claims of what Judge Snowden’s October 15, 2019 Final Arbitration Award (“Final Award”) does and does not say and do, are grossly inaccurate. Hindley pretends that the Final Award made a ruling specifically validating what he has identified as the “secret” Settlement Agreement between Sollner, Sametc and Epstein. It did not, nor was that issue ever presented to Judge Snowden. Likewise, Hindley pretends that the Final Award modified or invalidated Arbitrator Block’s Reconsideration Order. -17 - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Again, as the Final Award made clear, no such event occurred or was requested. As Judge Snowden stated in the introduction to the Final Award: Sametc ... submitted a Summary Dispositive Motion pursuant to JAMS Rule 18 asking the undersigned to find that Epstein is permitted to be a member of Sametc and/or otherwise own an interest in the [Property] ... . Having read and considered the parties briefs and accompanying declarations and exhibits and having heard and considered the arguments of counsel at the hearing, the Arbitrator issues the following Order on Sametc’s Summary Dispositive Motion. Final Award, p. 3, Petitioner's Record, p. 413. After summarizing the previous Block Orders and] his appointment by this Court, Judge Snowden noted that in the pending matter Hindley had requested that he not be made a party or be required to participate or pay any JAMS fees. Hindley did request, however, that he remain on the service list so that he would know what was happening and all Parties agreed. Judge Snowden further noted that when Hindley requested the ability to provide an opposition brief and supporting pleadings, the Parties again agreed, and Hindley submitted extensive briefing. /d. The Final Award identifies the six arguments/contentions Hindley presented in opposition to the Dispositive Motion, none of which were based upon Hindley’s inability to complete discovery or have a more formal in-person evidentiary hearing on the motion. Id. at p. 6, Petitioner’s Record, p. 416 Hindley instead argued that Judge Snowden did not have jurisdiction to grant motion because it sought to have the Reconsideration Order vacated or modified and that only the Superior Court could grant such relief. On this point, Judge Snowden ruled: But Sametc is not seeking to correct the Order or make any substantive modifications or amendments to it. Instead, Sametc is asking the undersigned to consider whether Epstein may presently have an ownership interest in Sametc and therefore have an ownership interest in the Property. The Arbitrator is not being asked to opine on or change the Block order in any way. Id. at 7, Petitioner’s Record, p. 417. Judge Snowden next explored the various contractual and court issued documents/orders that provided him jurisdiction to hear the underlying matter, in much the same way as Sametc sets forth above. Id. at 7-8, Petitioner’s Record, pp 417-418. 6. Response to Other Allegations by Hindley Hindley makes several other allegations in his papers, most of which are irrelevant or inapplicable to the legal relief being requested. Each is addressed below. S18 - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Hindley’s Discovery and Evidentiary hearing Rights Were not Violated. Hindley’s argues that Judge Snowden’s award should be vacated because Hindley was not allowed to conduct discovery or have an in-person evidentiary hearing. Sametc previously address this argument in Section 3. B. (2) above. Importantly, Hindley participated in the selection of the date and format for the arbitration hearing and never requested the right to engage in discovery or to have an in-person hearing. Epstein Decl. § 35. Further, Hindley offers no evidence that he ever requested the relief he now claims he was denied. Evidence does show that on September 6, 2019, Hindley and his counsel, along with counsel for Sametc and Sollner, participated in a Conference Call with Judge Snowden. The purpose of the scheduled call was to set and agree on a briefing schedule, set a hearing date, and address any other relevant issues raised by the participants. During this call, the briefing schedule was agreed upon, a telephonic hearing date was agreed upon, and other issues were raised by Hindley, his counsel, and the Parties. At no time did Hindley or his counsel object to the scheduled hearing being conducted via teleconference, nor did either of them request any right to perform discovery or delay the briefing or hearing dates. Id. Further, at no time after the conference call did Hindley ever request the ability to conduct discovery, to have a change in format of the agreed upon hearing, or to delay the hearing. Id. JAMS Rule 22(g) specifically allows for telephonic hearings. Id., Exhibit S. B. Hindley Was Never Billed by SEZA and Never Paid Legal Fees to SEZA. Hindley repeatedly claims in his papers that he paid SEZA over $100,000 in attorney’s fees but never provides evidence of any payments. He does attach one page from a 2013 draft SEZA invoice that includes his name on the address line, claiming it is proof that he was a client. Hindley provides no other evidence of ever paying SEZA or being invoiced by SEZA. Other than Hindley’s one-page SEZA invoice, there are no SEZA invoices that include Hindley’s name on them, and no monthly invoices were issued to Hindley. Epstein Decl., 437, Exhibit U. C. Epstein Did Not “Secretly” Buy Back into Sametc. Hindley makes this claim primarily to disparage Epstein and attempt to convince the Court that Epstein has acted improperly, a common theme in Hindley’s pleadings. Sametc addresses the true facts surrounding Epstein’s recent purchase of an interest in Sametc in Epstein -19- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Decl., 99 30-32. Sollner was aware of Epstein’s Sametc purchase and there is no legal or contractual obligation requiring Sametc to share such information with Hindley nor Hindley with Sametc. See, TICA, Hindley Petition, Attachment 4(b). D. Epstein, Not SEZA is the Proper Party. Hindley’s argument appears to be that because Epstein was not a named party in the underlying proceeding and because he “benefits” from the decision, Judge Snowden’s Final Award is invalid. Hindley presented the same argument to Judge Snowden in the underlying action. Recognizing that Sametc was the proper party, Judge Snowden rejected Hindley’s legally unsupported claim. As Hindley concedes, Epstein was a member of Sametc during the underlying proceedings and it is Sametc’s dispositive motion that resulted in the Final Award. E. Sollner Disclaimer Hindley offers confusing argument about his unilateral filing of the Sollner disclaimer and addresses Sametc’s contentions that Hindley was not authorized to file the Sollner pleading and that Sollner remains unserved. Although valid points, Sametc does not purse this issue here. F. Rules of Professional Conduct Hindley spends a great deal of time disparaging Epstein for acts that have not occurred. Hindley has failed to present any evidence that SEZA represented Hindley, yet repeatedly claims Epstein/SEZA have violated the Rules of Professional Conduct in their representation of him. No such obligation to Hindley exists and this issue is a red herring designed to improperly and inaccurately vilify Epstein/SEZA. Hindley shifts his argument to claim similar violations on Sollner’s behalf, but has no standing to assert claims for Sollner, nor did Hindley’s allegations in fact occur. See, Epstein Decl., 49 30-32; Great Lakes Construction, Inc. v. Burman et al., (2010) 186 Cal. App.4th 13477. CONCLUSION Hindley’s Petition is a collection of misrepresentations and inaccurate statements of California law. Hindley has never been a client of SEZA and has repeatedly granted Judge Snowden the power and authority to make final and binding determinations regarding the Parties and the property. Hindley has waived his rights to appeal and is not entitled to the relief he seeks in his Petition. California law is clear and Judge Snowden’s Final Award should be confirmed. -20 - SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917 S E I L E R E P S T E I N L L P EA ~N ON Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: June 12, 2020 SEILER EPSTEIN LLP Wank W. (Putaiie Mark W. Epstein Attorneys for Respondent SAMETC, LLC _21- SAMETC’S OPPOSITION TO PETITION TO CORRECT OR VACATE ARBITRATION AWARD CASE No. CPF 19-516917
