GAINES v. FIDELITY NATIONAL TITLE INSURANCE COMPANY

Respondents, Aurora Loan Services LLC and Lehman Brothers Holdings, Inc., Supplemental Reply Brief

Cal.September 18, 2015

csooy SUPREME COURT COPY IN THE SUPREME COURT OF CALIFORNIA MILTON HOWARD GAINES, CASE NO. 8215990 Plaintiff and Appellant, 2™4 District Court of Appeal Case No. B244961 V. Los Angeles Superior Court FIDELITY NATIONAL TITLE Case No. BC361768 INSURANCE COMPANY,etal., Defendants and Respondents. SUPREME COURT On Appeal from the Judgmentof the F | L E D Court of Appeal, Second District, Division 8 Case No. B244961 SEP 1 2015 Superior Court, Los Angeles County Frank A. McGuire Clerk Case No. BC361768 The Honorable Rolf M. Treu, Judge Deputy REPLY OF RESPONDENTS LEHMAN BROTHERS HOLDINGSINC. AND AURORA LOAN SERVICES LLC TO APPELLANT’S LETTER BRIEF Steven Ray Garcia (State Bar No. 110479)* Alexander Levy (State Bar No. 61887) GARCIA LEGAL, A PROFESSIONAL CORPORATION 234 East Colorado Boulevard, 8" Floor Pasadena, California 91101 Email: Steven@GarciaLegal.Email Telephone: (626) 577-7500| Facsimile: (626) 628-1800 Attorney for Defendants and Respondents Lehman Brothers Holdings Inc., and Aurora Loan Services LLC IN THE SUPREME COURT OF CALIFORNIA MILTON HOWARDGAINES, CASE NO. S$215990 Plaintiff and Appellant, 2"d District Court of Appeal Case No. B244961 Vv. Los Angeles Superior Court FIDELITY NATIONAL TITLE Case No. BC361768 INSURANCE COMPANY,etal.. Defendants and Respondents. On Appealfrom the Judgmentofthe Court of Appeal, SecondDistrict, Division 8 Case No. B244961 Superior Court, Los Angeles County Case No. BC361768 The Honorable Rolf M. Treu, Judge REPLY OF RESPONDENTS LEHMAN BROTHERS HOLDINGSINC. AND AURORA LOAN SERVICES LLC TO APPELLANT’S LETTER BRIEF 1. INTRODUCTION Respondents Lehman Brothers Holdings Inc. (Lehman) and Aurora Loan Services LLC (Aurora; collectively, Respondents)file this reply to appellant’s supplemental brief (“Appellant’s Supplemental Brief”). The Supplemental Brief andthis response are part of the supplemental briefing requested by this Court in its order of July 29, 2015. The issue addressed by the supplemental briefing—framed by this Court as -9O- two questions 1n its order—is whetherthe trial court’s order of April 3, 2008 (“the Trial Court’s Order”), “continued” or “stayed”the trial then set for September 22, 2008, for the purposesof. If that order “continued”the trial, then pursuant to Code of Civil Procedure section 583.340(b), the delay of the trial caused by the continuance would not have extended the five year mandatory dismissal period established by Code of Civil Procedure section 583.340(b) (1.e., continuance periods are not excluded from the computation ofthe five year period under section 583.230(b)).' If that order stayed the trial, however, then pursuant to Code of Civil Procedure section 583.340(b), the delay of the trial caused by the stay would have extended the five year mandatory dismissal period established by Code of Civil Procedure section 583.340(b) (i.e., trial stay periods are expressly excluded from the calculation of the five year period under section 583.230(b)). The trial court’s order (2 AA 278-279) does not expressly purport to stay or continue thetrial. Instead, it took the trial date off calendar and at the sametimeset a trial setting conference to set the new trial date. As such, the question is whether under the circumstancespresented, the trial court’s order should be treated as a continuanceor a stay of the trial for the purpose of calculating the five year mandatory dismissalstatute. Basedon several reported decisions, Respondents explained in their Supplemental Brief that the trial court’s interpretation of the Code of Civil Procedure § 583.340(b) was } Asrespondents noted in their Respondent’s Brief filed July 15, 2014, at page 16: Other cases have concludedthat the five-year periodis to allow for service of process, pleadings, discovery, court conferences, and like proceedings. (See, e.g., Sierra Nevada Memorial-Miners Hospital, Inc. v. Superior Court (1990) 217 Cal.App.3d 464, 472; Continental Pacific Lines v. Superior Court (1956) 142 Cal.App.2d 744, 750.) Stipulations to extend the time for performing those tasks do not, by themselves, extend the five year statutory period to bring the case totrial unless it appears that the parties so intended (J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 670-671 [“Despite the addition of another step in the necessary proceedings leadingto thetrial, the casestill must be “broughtto trial within five years after the plaintiff has filed his action. ...’”]), particularly when,as in this case, the extensions of time are agreed to and expire within the five year period. (Larkin v. Superior Court (1916) 171 Cal. 719, 722-723.) -3- proper; that the trial court’s order was a “continuance,” not a stay; that the trial court properly did not extend the five-year mandatory dismissal period based on the continuance; andthat the trial court properly dismissed the underlying action. The legal distinction between a continuanceandstayis: (1) that a continuance is simply part of the routine managementofthe case andtrial date which delaysthe trial date either to a date certain or to a date certain on whichthetrial date will be set, and (2) a stay freezes the ability of the trial court and the parties to proceed and delaysthe trial date until the happening of an event, the date of which is not ascertainable when the order delaying the trial is made. In his supplemental brief, appellant argues: (1) that it was the parties’ and the court’s intention to stay the trial; (2) that the decision in Holland supports the contention that the trial court’s order wasa stay, not a continuance;(3) that “there is nothing in the record to indicate” that the September 22, 2008 trial date was ever continued;(4) that there is no basis to find that the September 22, 2008 trial date was continued; (5) that no new trial date was everset; and (6) that the parties took certain actions relying on the trial court’s 120 day stay order. As Respondents will explain below, these contentions are wrong and based on a misreading of the law and a construction of the facts that thetrial court rejected. As such, the decision of the Court of Appeal should be affirmed. IL. THE PARTIES DID NOT INTEND THE VACATING OF THE TRIAL DATE TO BE A STAY UNDER SECTION583.340(b) Thetrial court clearly intended to delay the trial date, but at the time the order was entered, it made no finding with respect to whether the delay of the trial was a continuance or stay for the purpose of section 583.340(b). The record here reflects that the order came aboutas a result of an agreed upon and unopposedex parte application -4- filed by plaintiff, who wasat liberty to negotiate whatever terms and insert whatever language into her proposed order that she could convincethetrial court and the parties to accept. Yet the orderis silentas to its effect on the 5-year period to bring the case totrial. Since every intendment and presumption must be indulged to uphold the correctness of the trial court’s order of dismissal as to matters where the recordis silent (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), we must presumethat in ruling on the motion to dismiss, the trial court considered whetherthe trial court order (2 AA 278-279) was a stay under § 583.340(b) and decidedit was not. For his part, appellant offers no evidence of the court’s intent in issuing the order other than the orderitself. Instead, appellant merely arguesthat the parties agreed to a “stay” without regardto thetrial court’s finding, based on the plain language and effect of the trial court order, that the so-called “stay” waspartial, not complete, and did not fall within the terms of § 583.340(b). As Respondents demonstrated in their Supplemental Letter Brief, since the order did not completely freeze the entire case, it was not a stay contemplated by § 583.340(b). (Respondents’ Supplemental Letter Brief, at p. 6, citing Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) What is more, the parties in their stipulation expressed no agreement as to how the delay should be characterized for the purposes of § 583.340(b). While it is true that the title of the order the plaintiff prepared andthetrial court signed included the words, “STAYING CASE FOR 120 DAYS,”that language itself is no talisman for a complete stay as contemplated by § 583.340(b). Instead, the effect of the order controls, and the order here falls far short of freezing the entire action (Bruns, supra) until the occurrence of a defined event of unknown duration. (Cf., Holland v. Dave Altman’s RV Center (1990) 222 Cal.App.3d 477, 482, discussed infra.) Appellant has provided no authority or evidence and is simply wrong to suggest otherwise. Appellant’s suggestion that the facts of this case are analogous to Hollandalsofails. In Holland, a motion to quash service on a defendant who was a Swissnational was granted and was appealed. Not wantingto try the case twice, the plaintiff obtained a trial court -5- orderfirst continuing the trial and later taking it off calendar while the appeal was pending. As this Court described the Hollandfacts in Bruns: Holland gave examples of time periods during which the case could not be broughtto trial. They included the “absenceoftrial court jurisdiction to try [the case]” and “a court order barring the trial (by a stay or injunction).” (/d. at p. 482, 271 Cal.Rptr. 706.) Holland did not address whether the “prosecution” of the action was stayed within the meaning of section 583.340 when only a designated proceeding in a case, other than a trial, was stayed or suspended “until the happening of a defined contingency.” (People v. Santana, supra, 182 Cal.App.3d at p. 190, 227 Cal.Rptr. 51.) Bruns, supra, 51 Cal.4th at 724-725. Factually, there was no “court order barring trial (by a stay or injunction)”in this case, nor wasthere the “absenceoftrial court jurisdiction to try” the case. Instead, there was merely a breather taken from pleadings and motions—butnot discovery—while the parties engaged in mediation, an event which doesnot “stay” the action for purposes of § 583.340(b). (De Santiago v. D and G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 376; see also, Code Civ. Proc., § 1775.7.) Appellant has failed to show that the orderplaintiff presentedto the trial court to vacate the trial date which set a newtrial setting conference within the 120 partial stay period was a “stay” for the purposes of § 583.340(b), and with good reason; it simply wasnot. Il. HOLLAND SUPPORTS A CONTINUANCE, NOT A STAY The holding in Holland, supra, is the focus ofmuch discussion onthe issue of a continuanceversusa stay. Suffice it to say that it was there held that the delay of the setting of the trial until the conclusion of a pending appeal wasa stay of the trial under section 583.340(b), because the trial was ordered delayed until the happening of a future -6- event, the date of which was not known whenthe delay order was made. (222 Cal.App.3d at 482.) In this case, the trial court vacated the trial date at the request of the parties and reset a trial setting conference on a specific date within the period of the so-called stay, thus demonstrating that the court intended to remain in full control of the calendaring of the case and did notintend to let the case languish or to await the occurrence of some indefinite contingency. (Cf., Ocean Services Corp. v. Ventura Port District (1993) 15 Cal.App.4th 1762, 1773-1775 [Court of Appeal’s issuance of a writ of supersedeas staying the action while the appeal of an order in a related action was pending was a “stay” under § 583.340(b), citing Holland]; and Mitchell v. Frank R. HowardMemorial Hospital (1992) 6 Cal.App.4th 1396, 1404 [“Appellant attempts to avoid the severe consequencesof dismissal by relying on a numberof cases where circumstances beyond a litigant’s control intervened and inducedthe litigant to refrain from diligent prosecution”—citing Holland, among other cases—but the court determined that plaintiff's lack of diligence, as was the case here, was entirely of his own making. ].) Appellant cites no other law directly bearing on nature of the order otherwise, and Holland does not support his argument. The trial court order wasnot a stay of the action under § 583.340(b). IV. THE FACTORSTHAT DISTINGUISH A TRIAL CONTINUANCE FROM A TRIAL STAY SHOW THAT THE DISMISSAL WAS CORRECT The final question this Court advised it wanted briefing on wasthe factors that distinguish a stay oftrial and a continuanceoftrial for purposes of Code of Civil Procedure § 583.340(b). Appellant returns to Holland for this discussion and does not stray far. Unfortunately, appellant’s discussion fails to illuminate the issue. Lookingat the history of the law on the issue, when the predecessor to Code Civ. Proc., § 583.310—former § 583—wasadopted in 1905, the only exception it contained -7- wasif the parties entered into a written stipulation extending the time. (Larkin v. Superior Court (1916) 171 Cal. 719, 721.) In Larkin, the parties appeared forthe date first set for trial and orally stipulated to a continuance. After two moreorally stipulated continuances before the court, nothing appeared to have occurred until December 20, 1915, nearly six and one half years after the case wasfiled. Larkin applied to this Court for a writ of mandate to dismiss the case under § 583, and this Court agreed that the mere oral stipulations for a continuanceofthe trial did not constitute a basis to extend the operation of § 583 and certainly did not satisfy the statutory requirement of a written stipulation extending the time. (See also, City ofLos Angeles v. Superior Court (1921) 185 Cal. 405 [Written stipulation to continue trial for one year which stated, “plaintiff shall not be held to have failed to prosecute said cause during the said year, and that no part of the said year shall be considered should any question arise in said cause concerning the prosecution thereof” did not extend the 5-year period more than the one year agreed to]; Rio Vista Mining Co. v. Superior Court (1921) 187 Cal. 1, 3.) This Court first recognized an exception to the otherwise hard and fast 5-year rule in Kinard v. Jordan (1917) 175 Cal. 13, holding that the 5-year period did not include periods during which an appeal of an erroneous judgment was pending, saying: The aforesaid appeals taken therefrom suspendedall powerof the court below to proceed, and necessarily took the case out of the operation of section 583 while the appeals remained pending. The motion to dismiss was made within less than six monthsafter the decision on the appeal of Huntington becamefinal. With respect to the other defendants their appealis still pending, and no proceedings could 2 Asquoted in Larkin, and as originally adopted, § 583 measured the 5-year period from the time each defendant’s answer wasfiled. This statute was amendedin 1933 to its current measurement from the date the case wasfiled. (Christin v. Superior Court (1937) 9 Cal.2d 526, 528-529.) -8- be had looking towardthetrial as to them until that appeal was disposed of. If nothing more appearedit is clear that the motion to dismiss was not well taken. Kinard y. Jordan, supra, 175 Cal. at 15. Six years later, in Miller & Lux v. Superior Court (1923) 192 Cal. 333, plaintiffs had filed a series of cases concerning the rights of various parties in land beginning in 1905. The parties stipulated to a series of waivers of the 5-year rule, and they also agreed that one of the cases, denominated the Turner case, would be tried before the others. That case wastried to judgment, appealed, reversed in part, and returnedto thetrial court for retrial of various issues. By then—viz., August 1919—the parties entered into theirlast written stipulation to extend the time to bring the cases to trial. More than a year later, defense counsel, who represented the defendants in all of the cases, moved to dismiss the cases for want of prosecution. Thetrial court denied the motion on the groundsthat the request of the defendants to try the Turner casefirst and the setting of the other cases for trial on September 28, 1920, based on the defendants’ motion, “constituted, in effect, a continuance at the defendants’ request.” (192 Cal. at 337.) Defendants filed an application to this Court for a writ ofmandate directing the trial court to dismiss the actions. This Court there held that “written stipulations entered into within the 5-year period continuing the trials from time to time within the statutory period did not have the effect of extending the time beyond the 5-year period.” (192 Cal. 337-338, citing Larkin and Rio Vista Mining Co.) Other cases have similarly concludedthat a stipulation entered into within the statutory period extending the time to do an act or continuing the trial— whetherto a date certain or indefinitely—does not extend the 5-year period unless the parties express an intention to waive the rule. (Boyd v. Southern Pacific R. Co. (1921) 185 Cal. 344 [oral stipulation to continuetrial date indefinitely which wasnotreset until after 5-year period expired did not extend the period]; Bank ofAmerica NT&SA v. Harrah (1942) 54 Cal.App.2d 37 [defendant’s motion to take trial off calendar did not -9- extend the 5-year period]; J.C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 668- 670 [written stipulation to continue the pretrial conference to permit the completion of discovery did not extend the 5-year period; “Thefiling of an amended complaint or the deciding of preliminary motions or demurrers mayalso be necessary prerequisites to thetrial, and a stipulation postponingthe time for doing either would necessarily extend the timefortrial. It has never been held, however, that such a stipulation extends the timefor trial beyondthe five-year period, absent a showingthatthe parties so intended.”].) By contrast, numerouscaseshold that actions that stay the trial court’s ability to act in a case do extend the 5-year period. The early cases dealt with situations where the actions of the trial court were stayed by suspension of the court’s jurisdiction since the finer lines between the two had not been drawn (e.g., Kinard v. Jordan, supra [stating that the trial court was without powerto act while an appeal was pending but not distinguishing between a stay and wantofjurisdiction]; Jn re Morrison’s Estate (1932) 125 Cal.App. 504 [time between the date on which parties contesting a will had been fraudulently induced to dismiss their contest and court entered order vacating the dismissals not included within the 5-year period due to court’s jurisdiction being suspended].) Later cases draw the line moredistinctly, starting with Christin v. Superior Court, supra, a seminal case holding that the time during which it was impossible or impracticable to bring caseto trial due to pending appeal andtrial court’s erroneous order transferring Los Angeles case, and therefore the case file, to San Francisco was not included in 5-year period. (See also, Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61 [time during which action was stayed by the operation of the Soldier’s and Sailor’s Relief Act? as to a key defendant necessary for the defense is excluded from the 5-year periodasto all defendants, but oral stipulation that matter would remain off 3 The Soldier’s and Sailor’s Relief Act has since been renamed the Servicemembers Civil Relief Act. (50 U.S.C. Appx., § 501, et seq.) -10- calendar until such defendant returned to civilian status did not extend 5-year period]; City ofPasadena vy. City ofAlhambra (1949) 33 Cal.2d 908, 916-917 [recognizing that trial of case was effectively stayed while determination of complex factual issues was in the hands of a referee pursuant to a reference under the Water Code; such time was excluded from the 5-year period]; Reeves v. Hutson (1956) 144 Cal.App.2d 445, 453-454 [case could not be broughtto trial while default judgment wasin effect; period between its entry and defendant’s notice of compliance with conditions oflifting default judgment should be omitted from 5-year period]; Brunzell Construction Co. v. Wagner (1970) 2 Cal.3d 545 [period during which case was stayed by order ofNevada court may be omitted from 5-year period, even as to parties against whom action wasnot stayed]; Marcus v. Superior Court (1977) 75 Cal.App.3d 204, 212-213 [time during which a stay for arbitration betweenthird parties is in effect tolls the 5-year period].) It is noteworthy that while Holland referred to Mr. Witkin’s venerabletreatise to arrive at the definition of a continuance,‘ that definition is not entirely consistent with the definitions that the courts (see, e.g., Miller & Lux v. Superior Court, supra; Larkin v. Superior Court, supra; City ofLos Angeles v. Superior Court, supra; Boyd v. Southern Pacific R. Co., supra;and J.C. Penney Co. v. Superior Court, supra) or the rules (see, e.g., Rule 3.1332, Cal. Rules of Court) use. First of all, by using the term “automatically resumes,” Witkin*, and by extension Holland, presumethat the trial or other event has begun, but as the cases show, the continuance usually occurs beforethetrial has begun 4 “Bycontrast, ‘[a] continuance is a postponementofthe trial of a pending action to a later date, at which time it automatically resumes.’ (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 6, p. 23.)” (Holland v. Dave Altman’s RV Center, supra, 222 Cal.App.3d at 482; the citation continuesin the current edition, 7 Witkin, Cal. Procedure ( 5" ed. 2008) Trial, § 7, p. 35.) 5 Witkin’s definition of continuance,i.e. to a date certain whenthetrial automatically resumes, might have some bearing as to the need for notice, but not where the continuance would be open ended. (City ofSan Diego v. Walton (1947) 80 Cal.App.2d 206, 212-213.) -l1l- underthe statute. Second, a continuance forthe trial to “automatically resume” would necessarily take the term out of the operation of § 583.310 or its exceptions because the trial resuming would have already begun, so consideration of dismissal for failure to bring the case to trial would be a mootpoint. And third, the cases recognize that continuances sometimesare open-ended, requiring a request of the trial court to set the case or someotheract by the parties. (See, e.g., City ofLos Angeles v. Superior Court, supra [request to court and 90-days notice to defendantoftrial setting required by terms of written stipulation]; Leet v. Union Pac. R. Co. (1944) 25 Cal.2d 605, 616-617 [motion for an indefinite continuanceoftrial].) In short, a continuancein reality is moving a date to a later time. Professor Mellinkoff suggests that “continuance”in legal parlance is simply another word for a delay or postponement without the automatic resumption component suggested by Witkin. (Mellinkoff’s Dictionary of American Legal Usage, West Publishing Co. (1992), delay, page 161.) As used in the cases as well as in the rules of court, Professor Mellinkoff’s definition appears to be more accurate than that of Mr. Witkin. For the purposes of § 583.340(b), however, based on the above analysis, a continuanceis a delay to a later time whenthe parties or the court may take up resetting the matter while a stay is an absolute bar to all proceedings until the happening of an defined contingencythat will occur at an unknown time but whichis out of the control of the parties and sometimes the court. (See, Bruns v. E-Commerce Exchange, supra.) With this definition, derived from the above authorities, in mind, it is clear that the trial court order vacating the trial date and setting the case for a trial setting conference within the 120 day period of the partial stay was not a stay under § 583.340(b) but was a continuance of the proceedings. As such, § 583.340(b) did not comeinto play due to the order. The Court of Appeal’s judgment should therefore be affirmed. -12- V. CONCLUSION Appellant has failed to show that the trial court’s order vacating the trial date and setting a trial setting conference within the 120 partial stay period was stay of the trial under § 583.340(b). The facts and the law showthat it was a continuance. This Court should rule accordingly. Dated: September 20, 2015 GARCIA LEGAL,A PROFESSIONAL CORPORATION BY: Steven Ray Garcia, Attorney for Respondents Lehman Brothers Holdings Inc. and Aurora Loan Services LLC -13- CERTIFICATE OF COMPLIANCE WITH RULE8.204(c)(1), CAL. RULES OF COURT I, Steven Ray Garcia, counsel for respondents Lehman Brothers Holdings Inc. and Aurora Loan Services LLC,certify that the foregoing brief is prepared and proportionally spaced Times New Roman 13 point type and based on the word count of the word processing system used to prepare the brief, exclusive of tables, is 3,815 words long. Dated: September 17, 2015 GARCIA LEGAL, A PROFESSIONAL CORPORATION BY: Steven Ray Garcia, Attorney for Respondents Lehman Brothers Holdings Inc. and Aurora Loan Services LLC -14- PROOF OF SERVICE BY GOLDEN STATE OVERNIGHT . _ Gaines v. Tornberg,etal. State of California Supreme Court, Case Number S215990 I am over18 years of age and nota party to the aboveentitled action. Iam employed in the County wherethe mailing took place. My business addressis 301 North Lake Ave., Seventh Floor, Pasadena, CA 91101. On September17, 2015, I mailed from Pasadena, California, the following document: REPLY OF RESPONDENTS LEHMAN BROTHERS HOLDINGINC. AND AURORA LOAN SERVICES LLC TO APPELANT'S LETTER BRIEF. I served the documents by enclosing them in an envelope andplacing the envelopefor collection and.mailing following our ordinary businesspractices. I am readily familiar with this businessespractice of collecting and processing correspondencefor mail. On the samedate thatcorrespondenceis placed for collection and mailing, it is deposited in the ordinary course of business with Golden State Overnight in a sealed envelope with postagefully prepaid. _. The envelopes were addressed and mailedas stated on the attached mailinglist. I declare underpenalty of perjury underthe lawsofthe State of California that the foregoingis true and correct. Executed on September17, 2015, at Pasadena, California. Victoria C. Putnam SERVICE Gainesv. Tornberg,et al. California Supreme Court Case Number SC215990 Clerk, California Supreme Court 350 McAlister Street San Francisco, CA 94102-7303 Clerk, California Court of Appeal Second Appellate District, Division Two 300 S. Spring Street Floor Two, North Tower Los Angeles, CA 90013-1213 Clerk of the Superior Court 111 N. Hill Street Los Angeles, CA 90012-3014 A.J. Roop 3424 E. Turney Avenue Phoenix, AZ 85018-3928 A.J. Roop 19475 N. Grayhawk,Suite 1089 Phoenix, AZ 85255 Joshua Tornberg 26065 N. 68Drive Peoria, AZ 85383-7047 Joshua Tornberg 6900 E.Princess Drive, Unit 1182 Phoenix, AZ 85054-4108 Kevin Broersma Fidelity National Law Group 915 Wilshire Boulevard, Suite 2100 Los Angeles, CA 90017-3450 Ray Management Group,Inc. c/o Craig Johnson 6410 W. Maya Way Phoenix, AZ 85083-6599 W.Keith Wyatt Ivie, McNeill & Wyatt 444 S. FlowerStreet, Suite 1800 Los Angeles, CA 90071-2919 Craig Johnson 6410 W. Maya Way Phoenix, AZ 85083-6599