Declaration of Dan Fingerman re Motion for Sanctions Under CCP § 128.7

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Dan Fingerman In Propria Persona Mount & Stoelker, P.C. RiverPark Tower, Suite 1650 333 West San Carlos Street San Jose CA 95110-2740 Phone: (408) 279-7000 Fax: (408) 998-1473 Email: [email protected]

Superior Court of California Santa Clara County, Unlimited Jurisdiction

Dan Fingerman,

Plaintiff,

vs.

Capital One N.A., James Kaufmann, and DOES 1–100

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 1-08-CV-127344

Declaration of Dan Fingerman in Support of Motion for Sanctions for Violations of CCP § 128.7

Date: January 26, 2010 Time: 9:00 a.m. Dept.: 1 Judge: Honorable James Kleinberg

Case No. 1-08-CV-127344 Page 1 Declaration of Dan Fingerman in Support of Motion for Sanctions for Violations of CCP § 128.7

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I, Dan Fingerman, declare as follows:

1. I am the plaintiff in this action. I have personal knowledge of the facts set forth in this

declaration, except for the matters stated upon information and belief; with respect to such matters, I

believe them to be true based on the information available to me.

2. I brought this action against Capital One and James Kaufmann for their illegal

recordings of my telephone calls. On or about June 22, 2009, Capital One and Mr. Kaufmann filed

answers to my First Amended Complaint. Those answers are substantially identical to one another.

Both answers purport to be signed by Hemmy So, whom I am informed and believe is an attorney

with Doll Amir & Eley LLP, the defendants' counsel of record in this action. Exhibit 1 to this

declaration is a copy of the First Amended Complaint. Exhibit 2 to this declaration is a copy of the

answer served on me by Capital One. Exhibit 3 to this declaration is a copy of the answer served on

me by Mr. Kaufmann.

3. When I reviewed the defendants' answers, it was immediately apparent to me that

several of their affirmative defenses lack any factual or legal basis, such as the 12th defense, "Lack of

Standing". After consulting with my legal counsel, I identified eleven defenses that lack any factual

or legal basis.

4. On July 7, 2009, I sent a letter to Ms. So that discussed those 11 defenses, explained

that the defendants and Ms. So had violated Cal. Code Civ. Proc. § 128.7, and requested that the

defendants withdraw those 11 defenses. Exhibit 4 to this declaration is a copy of my July 7 letter. I

also delivered a copy of this letter to Hunter Eley, who is identified on the web site of Doll Amir &

Eley LLP as its "Managing Partner". (See http://www.dollamir.com/bio_eley.html, last accessed

November 10, 2009.)

5. I am informed and believe that Ms. So faxed a letter to my office on July 20, 2009

(while I was on vacation), which purported to respond to my July 7 letter. Ms. So's July 20 letter

acknowledged receipt of my July 7 letter and requested that we confer by telephone about the

defenses. Ms. So also wrote, "We are committed to working with you in good faith regarding these

matters." Exhibit 5 to this declaration is a copy of Ms. So's July 20 letter.

6. On July 27, 2009, I conferred by telephone with Ms. So about the defenses. During


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this July 27 discussion, Ms. So and I discussed each of the 11 defenses addressed in my July 7 letter.

Ms. So acknowledged that neither she nor her clients were aware of any factual or legal basis for any

of the 11 defenses, and the defendants agreed to withdraw at least 10 of them.

7. During that July 27 telephone call, the only defense challenged in my July 7 letter that

the defendants did not represent would be withdrawn was the 18th defense, titled "Release". The

Release defense reads, in full: "Plaintiff's claims are barred by any release and/or releases executed

by Plaintiff and individuals, firms, corporations, or entities other than Plaintiff." (See Exhibits 2 and

3 at page 5:5–8.)

8. During the July 27 telephone call, after Ms. So indicated that the defendants would not

withdraw the Release defense, I asked Ms. So to explain what factual basis had been relied upon to

justify its assertion on the day the answers were filed or on the day of our discussion. Ms. So could

not identify any facts to support the defense. Still, Ms. So refused to agree to withdraw the Release

defense. I pointed out that the defendants had failed to identify any putative release in their responses

to Form Interrogatory 15.1, which seeks all facts upon which "each special or affirmative defense" is

based, as well as identification of witnesses and documents with relevant information. (Exhibits 6

and 7 to this declaration are copies of the responses to my Form Interrogatories Set One by Capital

One and Mr. Kaufmann, respectively.) Ms. So stated that she did not have the interrogatory

responses in front of her and, therefore, she would not comment on them. I asked Ms. So if she or the

defendants are aware of any document signed or any statement made by me or by anyone else that

could be construed as a release of any claim asserted in this action. Ms. So responded that she is not

aware of any such fact and, so far as she was aware, neither was either defendant.

9. During the July 27 telephone call, Ms. So explained two reasons for her personal

reluctance to withdraw the Release defense. She made a point of attributing these reasons to herself

and distinguished them from reasons that may be relied upon by the defendants. First, Ms. So

explained that, as defense counsel, she is conservative, and she likes to preserve as many defenses as

possible by asserting them in answers. Second, Ms. So explained that she could conceive of a

hypothetical set of facts in which a document or a statement that might be construed as a release

could surface in discovery. I asked Ms. So if she had any reason to believe that such a document


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exists or that such a statement has ever been made. Ms. So responded "No", then stated that she is

reluctant to withdraw this defense because she cannot predict what might surface in discovery. I then

asked Ms. So how such a fear distinguishes this defense from the others which the defendants were

agreeing to withdraw and provided a specific hypothetical example concerning the 12th defense

("Lack of Standing"). I explained that such a hypothetical fact as provided in my example, if true,

could defeat my standing and would thus support the Standing defense. Ms. So agreed that such a

hypothetical fact, if true, would support the Standing defense, but she explained that she did not

believe it likely that such a fact would surface in discovery. I then asked Ms. So what fact she

believed might surface in discovery to support the Release defense. Ms. So could identify no such

fact.

10. By the end of the July 27 telephone call, the defendants had agreed to withdraw ten of

the defenses I had challenged, and Ms. So represented that they would reconsider whether the

Release defense would be withdrawn.

11. After the July 27 meet & confer call, the defendants failed to withdraw any defenses.

12. Three months later, on October 28, 2009, I reminded Ms. So about the defendants'

representation that they would withdraw their defenses during another meet & confer telephone call

that was largely about discovery topics. I also reminded Ms. So about the defendants' agreement to

reconsider withdrawal of the Release defense. Ms. So apologized for not withdrawing the defenses

earlier. I requested that the defendants promptly withdraw all the defenses that they were going to

withdraw. Ms. So responded that the defendants would do so. I asked Ms. So if she and the defenses

had reconsidered whether to withdraw the Release defense. She represented to me that they had not.

13. After the October 28 meet & confer call, the defendants failed to withdraw any

defenses.

14. On November 11, 2009, I inquired to the defendants' counsel about their availability

for the hearing date on this motion. Exhibit 8 to this declaration is a copy of the thread of

correspondence that followed between Ms. So and myself.

15. I am an attorney, and I am admitted to the State Bar of California. My current

employer is Mount & Stoelker, a law firm.


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16. Although I represent myself in this case, in propria persona, I have retained Mount &

Stoelker to provide legal advice and assistance in connection with this case. I have signed a written

fee agreement with Mount & Stoelker, which provides that I must pay fees to Mount & Stoelker for

the time spent on this case by its attorneys and paralegals.

17. The expenses set forth below are out-of-pocket expenses for me, under my fee

agreement with Mount & Stoelker. None of the expenses below are opportunity costs for time that I

have personally spent in this matter.

18. Four of Mount & Stoelker attorneys (other than me) and one paralegal have spent time

assisting me in analyzing the defendants' answers, legal research, preparing to meet & confer with the

defendants' counsel, providing legal advice and counseling, and preparing this motion and its

supporting papers. I have reviewed my communications with Mount & Stoelker concerning billing in

this matter to determine that Mount & Stoelker's personnel (other than me) spent a total of 10.3 hours

on such tasks, incurring fees of $3,028.50. Those attorneys are: Kathryn Spelman, Jim Stoelker,

Ruby Ho, and Kevin Pasquinelli. Their customary hourly billing rates are reasonable, given their

experience, skill, and the local market: $420 for Ms. Spelman, $350 for Mr. Stoelker, $300 for Mr.

Pasquinelli, and $240 for Ms. Ho. Mr. Stoelker has spent 0.6 hours in this matter, providing legal

advice and counseling concerning the defendants' answers and this motion and guiding my legal

research. Ms. Spelman has spent 0.3 hours providing legal advice concerning this motion. Mr.

Pasquinelli has spent 7.6 hours assisting me with analysis of certain of the defendants' defenses,

preparation of this motion, legal research, and preparation to meet and confer with the defendants

concerning their violations of CCP § 128.7. Ms. Ho has spent 1.5 hours assisting me with analysis of

certain of the defendants' defenses and providing legal advice. Michelle Bikul is a paralegal at

Mount & Stoelker who assisted me with the preparation of this motion. Ms. Bikul's customary

hourly billing rate of $125 is reasonable, given her experience, skill, and the local market. Ms. Bikul

has spent 0.3 hours on such tasks.

19. I am also incurring costs in connection with this motion other than attorney fees. So

far, the amount of such costs $49.52. Such costs include $40 for the court's fee for filing this motion

and $9.52 in copying costs at 8¢ per page for 119 pages; those pages comprise the motion, this


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declaration, and 8 exhibits. The copying charges will increase if the defendants oppose this motion

because that would require me to prepare and file a reply.

I declare under penalty of perjury under the laws of the State of California that the foregoing

is true and correct. Executed on the date set forth below.

Dated: November 13, 2009 Dan Fingerman, Plaintiff Z:\CLIENTS\F CLIENTS\Finge001\Attorney_Notes\Drafts\128.7\DHF Declaration.doc

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

July 7, 2009

Via Electronic Mail

Hemmy So Doll Amir & Eley LLP 1888 Century Park E Ste 1106 Los Angeles CA 90067

Re: Affirmative Defenses Fingerman v. Capital One N.A. & James Kaufmann, Case No. 1-08-CV-127344

Dear Hemmy:

I was disappointed when I read the defendants' Answers to my First Amended Complaint (FAC). Both defendants assert the same 22 boilerplate affirmative defenses. At least eleven of those defenses do not have any apparent application to this case, either in whole or in part.

As you know, CCP § 128.7 requires that your clients and you (as the attorney signing their pleadings) have a good faith basis for each factual and legal assertion contained in each document that you file with the court. Your signatures on each of the defendants' Answers are certifications to the court that you complied with that statute with respect to each pleading.1

I would like to give you and your clients an opportunity to withdraw the affirmative defenses discussed below. If you feel these defenses have merit that I am overlooking, I invite you to explain it to me. For each affirmative defense discussed below that you do not withdraw or adequately explain, I will prepare and serve, then later file, a motion under CCP § 128.7. I anticipate that the costs I will incur to have that motion prepared may be significant. You are advised that I will seek appropriate sanctions against your clients and against you as part of such a motion.

As you know, I have a vacation scheduled from July 8 through July 21. I look forward to receiving the defendants' notice of withdrawal of these defenses when I return.

(2) Statute of Limitations

This defense states: "Plaintiff's causes of action are barred by the applicable statute of limitations." Claims under Cal. Penal Code § 632 are subject to the one-year limitation in CCP § 340.2 The FAC alleges five violations of § 632 beginning on May 4, 2008, and the original complaint was filed on November 10, 2008. That span of time is seven months. Moreover, the statutory limitations period did not begin to run until I discovered the illegal recordings on

1 CCP § 128.7(b) 2 See e.g., Montalti v. Catanzariti, 191 Cal. App. 3d 96 (1987); Ion Equipment Corp. v. Nelson, 110 Cal. App. 3d 868, 880–81 (1980)

Hemmy So July 7, 2009 Page 2

September 23, 2008.3 Thus, the total applicable limitations period that actually elapsed was 48 days. Accordingly, the statute of limitations defense appears to have no application to this case.

(4) Laches

This defense states: "Plaintiff's claims are barred, in whole or in part, by the doctrine of laches." The laches defense requires an unreasonable delay in filing suit that causes prejudice to the defendant.4 The laches period begins to run when the plaintiff discovers facts to put him on notice of his cause of action and ends with the filing of a complaint. It appears that no California court that has ever held that a delay of seven months may constitute laches — let alone the delay of only 48 days, as in this case.

As the complaint alleges, the defendants began making illegal recordings on May 4, 2008, and I discovered the existence of those recordings on September 23, 2008. The complaint was filed 48 days later. Even if the "laches clock" began running on May 4, the period of delay was less than seven months from the first illegal recording. Most of that delay (nearly five months, from May 4 through September 23) was caused by the defendants' misrepresentations and concealment of their recordings. On September 26 — three days after I discovered the recordings — I sent a letter to the defendants in an attempt to resolve this matter informally. I filed suit only after I received no response. Such informal attempts by a plaintiff to resolve a dispute, coupled with a lack of response by the defendants, has been held to negate the prejudice required for a laches defense.5 Accordingly, the laches defense appears to have no application to this case.

(9) Excessive Damages

This defense states: "Plaintiff is barred from recovery by the provisions of California Civil Code §§ 3358 and 3359, to the extent that the amount of damages sought is excessive, unreasonable, unconscionable, and grossly oppressive." The defense based on Cal. Civ. Code § 3358 is patently frivolous. I express no opinion at this time about the applicability of § 3359.

Section 3358 reads, in full: "Except as expressly provided by statute, no person can recover a greater amount in damages for the breach of an obligation, than he could have gained by the full performance thereof on both sides." In the FAC, I seek recovery of statutory damages of $5,000 or, in the alternative, three-times actual damages for each violation of Cal. Penal Code § 632. Those damages are "expressly authorized by statute" in Cal. Penal Code § 637.2(a). Accordingly, Cal. Civ. Code § 3358 appears to have no application to this case.

3 Ion Equipment, 110 Cal. App. 3d at 880–81 4 See e.g., Newport v. Hatton, 195 Cal. 132, 147–48 (1924) 5 Martin v. Santa Clara Unified School District, 102 Cal. App. 4th 241, 257–58 (2002)


(12) Lack of Standing

This defense states: "The FAC is barred because Plaintiff lacks standing to bring or maintain the claims set forth in the FAC." For claims arising under Cal. Penal Code § 632, standing is vested either in the individual person whose conversation was illegally recorded in a person (such as a corporation) on whose behalf that individual was acting at the time of the recording.6 I filed the FAC on my own behalf, and it asserts my personal rights under § 632 for recordings made of my telephone calls with the defendants. The FAC does not allege recordings of anyone else, let alone seek to recover for recordings of anyone else. Similarly, no second person has joined the FAC as a plaintiff. Accordingly, the standing defense appears to have no application to this case.

(18) Release

This defense states: "Plaintiff's claims are barred by any release and/or releases executed by Plaintiff and individuals, firms, corporations, or entities other than Plaintiff." I have never executed any release that relates to the subject matter of this action. I am unaware of any release executed by any person or entity that relates to the subject matter of this action. To my knowledge, I have never appointed any individual, firm, corporation, or entity as an agent to execute a release on my behalf. Since the claims asserted in the FAC for violation of Cal. Penal Code § 632 are mine alone and could never have belonged to anyone else, there cannot exist any predecessor in interest who could have released those claims. Accordingly, the release defense appears to have no application to this case.

(19) Failure to Join Indispensable Parties

This defense states: "Plaintiff has failed to join a party or parties necessary and indispensable to this action." As discussed above, the claims asserted in the FAC under Cal. Penal Code § 632 are mine alone and could not be asserted by any other person or entity. Therefore, there is no potential additional plaintiff. If the defendants believe they are entitled to indemnification, contribution, or similar relief from a third party related to the subject matter of this action, the defendants had ample opportunity to file cross complaints to bring those parties into this litigation. Accordingly, the failure to join indispensable parties defense appears to have no application to this case.

Defenses based on contract

Both Answers assert several defenses based on contract: (13) Impossibility and Impracticality, (14) Frustration of Purpose, (15) Prior Breach of Agreements, (16) Lack of Mutual Consent, and (21) Voidable Contract. However, as you know, both defendants have taken the position in this litigation "that Plaintiff has not alleged the existence of any agreement

6 Coulter v. Bank of America National Trust & Savings Assn., 28 Cal. App. 4th 923, 931 (1994)


in the pleadings" when they expressly refused to answer six form interrogatories based solely upon the following objection, repeated six times by each defendant: "Defendant objects to this Interrogatory on the grounds that Plaintiff has not alleged the existence of any agreement in the pleadings." Accordingly, the contractual defenses would appear to have no application to this case.

You signed the defendants' objections to my interrogatories. Your signature on those objections operates as a certification that the objections have merit and were not interposed for any improper purpose. Your signature on the Answers makes essentially the same certification about the contents of the Answers. Unfortunately, the positions taken in those documents are contradictory. In light of your certifications by signing those documents, the contradiction between them is puzzling.

Sincerely,

Dan Fingerman

Z:\CLIENTS\F CLIENTS\Finge001\Correspondence\DHF-So 7.7.09 re affirmative defenses.doc

Exhibit 5

Exhibit 6

Exhibit 7

Exhibit 8

Daniel H. Fingerman

From: Daniel H. FingermanSent: Thursday, November 12, 2009 4:23 PMTo: 'Hemmy So'; Hunter EleyCc: Michelle BikulSubject: RE: Availability for motion (Fingerman v. Capital One)

Hemmy,

Thanks for your message. You've been on notice sin ce July 7 about the frivolous nature of at least 11 of the asserted aff irmative defenses. You have represented since July 27 that the defendants would withdraw at least ten of those defenses, but they have chosen not don e so in the intervening four months.

Unfortunately, your email today puts me in a worse position than I was in on July 27, because it backs away from the represen tation that at least 10 defenses will be withdrawn. Forgive me if I think that four months is morethan enough time for you to have talked with your c lients and gotten authorization to do what you already represented th ey would do, and for being skeptical that two more business days will ma ke a difference. However, my door (and phone) always remain open to meet & confer with you if there is something new to add.

Regarding the discovery responses: Please let me kn ow by this time next week exactly which responses the defendants will su pplement and when. I still intend to file a motion to compel by the curr ent December 7 deadline on any responses I've previously identified as defi cient which the defendants will not supplement at this time. I don 't want to move on any responses that the defendants are supplementing, if the supplements are coming within a reasonable time.

DHF

-----Original Message-----From: Hemmy So [mailto:[email protected]] Sent: Thursday, November 12, 2009 3:31 PMTo: Daniel H. Fingerman; Hunter EleyCc: Michelle BikulSubject: Re: Availability for motion (Fingerman v. Capital One)

Dear Dan,

Thank you for your e-mail. I am out of the office t oday for another matter and traveling tomorrow. As such, I am unable to pro vide you with everythingyou have demanded in your e-mail below. Also, I mus t confer with my clientson these issues and documents.

If we could touch base on Monday afternoon, I would appreciate it. I believe we can resolve these matters by the end of next week, as you suggested.

Also, defendants do plan to serve supplemental disc overy responses.

Thank you for your cooperation and understanding, I appreciate it.

Best,

Hemmy

Sent from my Verizon Wireless BlackBerry

-----Original Message-----From: "Daniel H. Fingerman" <[email protected]>Date: Wed, 11 Nov 2009 15:46:41 To: Hemmy So<[email protected]>; Hunter Eley<heley@d ollamir.com>Cc: Michelle Bikul<[email protected]>Subject: RE: Availability for motion (Fingerman v. Capital One)

Hemmy,

As I already made you aware, the statutory basis fo r this motion is CCP § 128.7, not CCP § 437.

As I said during our July 27 phone call, the defend ants can withdraw their defenses by filing a notice that states which defen ses are being withdrawn.I said on July 27 that the defendants should file s uch a notice promptly, and I said the same thing again when we discussed t he issue in October. I never suggested that oral statements from counsel w ere sufficient to withdraw the defenses, and you never suggested that either, before today. Before today, you also never suggested that more do cumentation than a notice was required. However, if you think so now, then please draft whatever documents you believe are appropriate. I will sign any reasonablestipulation.

Earlier today, I requested that the defendants with draw their frivolous defenses by the end of tomorrow if they wish to avo id facing my motion, based on the assumption that your notice would be v ery short and simple. However, if the defendants really do intend today i n good faith to withdrawtheir defenses and you believe that more documentat ion than a notice is required, I understand if you will need more time t o draft such documents. I am willing to allow time for that, through one we ek from today, on the condition that the defendants confirm to me in writ ing by the end of business tomorrow which defenses they will withdraw . If this written confirmation includes anything less than all 11 def enses discussed in my July 7 letter, then I still intend to move based on any of those defenses that are not withdrawn.

DHF

-----Original Message-----From: Hemmy So [mailto:[email protected]]Sent: Wednesday, November 11, 2009 3:19 PMTo: Daniel H. Fingerman; Hunter EleyCc: Michelle BikulSubject: RE: Availability for motion (Fingerman v. Capital One)

Dan,

As I am sure you are aware, the deadline to amend t he Answers by right has passed. As a result, three ways of withdrawing the affirmative defenses remain: (1) an agreement between counsel that certa in affirmative defenses are not applicable and as such, defendants would no t pursue those defenses;(2) moving to amend the answers; or (3) stipulating to amended answers. Although Defendants did agree to withdraw certain a ffirmative defendants, Irealize only now that you would like a formal withd rawal, meaning one of the two latter options.

If that is the case, the simplest and most cost-eff ective method of accomplishing what you desire is through stipulatio n. If you prepare a stipulation agreeing to permit Defendants to file A mended Answers, I will send that along to my clients. On our end, we can p repare the Amended Answers, which will be attached to the stipulation.

If you still wish to file a motion to strike, pleas e be aware that such motions rely on the face of the pleadings. CCP § 43 7. It appears that the basis for your motion to strike is either our agree ment to withdraw certainaffirmative defenses, or evidence gathered through the discovery process. Extrinsic evidence to support a motion to strike is improper. And again, the time to file a motion to strike has passed.

I would appreciate that if you are uncertain about the status of an issue in this litigation, that you pick up the phone or s end an e-mail about whatyou believe are outstanding issues that need resolu tion. This will avoid unnecessary motion practice and attorney's fees.

To answer your question, I should be available on t he dates you provided.

Thank you,

Hemmy

-----Original Message-----From: Daniel H. Fingerman [mailto:dfingerman@MOUNT. com]Sent: Wednesday, November 11, 2009 2:03 PMTo: Hemmy So; Hunter EleyCc: Michelle BikulSubject: RE: Availability for motion (Fingerman v. Capital One)

Hemmy,

You have not said whether you are unavailable on Ja nuary 26 or January 28 for the motion. Unless you tell me otherwise by 4p m today, I will assume that you are available on both days. At that time, I will have to reserve a hearing to ensure this motion can be heard on one of those dates.

We discussed in detail 11 of the defendants' affirm ative defenses in my July 7 letter and our July 27 telephone call. Duri ng that call, you agreedthat the defendants would withdraw 10 of the 11 def enses identified in my letter. They failed to do so. I reminded you last month of that agreement, and you indicated that the defendants wo uld promptly withdraw those defenses. They failed to do so. How am I to interpret these failures, other than as decision to renege on the a greement to withdraw thedefenses and to pursue them?

We discussed all 11 defenses in detail. I am not i nterested in repeating that discussion; doing so would only impose burdens on me without any

benefit. If you want to add something to our previ ous discussions that hasnot been said before, I welcome you to do so. For example, if you have uncovered facts that would support any of those def enses we discussed, I welcome you to call it to my attention. Otherwise, if the defendants want to avoid this motion, they can withdraw all 11 defe nses by the end of business tomorrow.

If the defendants do not withdraw all 11 defenses b y the end of business tomorrow, they will face my motion. If they withdr aw a subset of those defenses, I will still move based on the remaining ones.

Dan Fingerman, Esq.Mount & Stoelker, P.C.RiverPark Tower, Suite 1650333 W San Carlos StreetSan Jose CA 95110-2740Tel: (408) 279-7000Fax: (408) 998-1473Eml: [email protected]: www.mount.com

This email and its attachments are intended solely for the intended recipient hereof and may contain legally privileged or other confidential information. If you have received this email or it s attachments in error, please destroy the original and any copies thereof and immediately notify Mount & Stoelker, P.C. at (408) 279-7000.

-----Original Message-----From: Hemmy So [mailto:[email protected]]Sent: Wednesday, November 11, 2009 1:49 PMTo: Daniel H. FingermanCc: Hunter EleySubject: RE: Availability for motion (Fingerman v. Capital One)

Dan,

Thank you. During our meet and confer discussion on October 28, we had agreed that Capital One would withdraw several of i ts affirmative defenses.Filing a motion to strike seems premature on that b asis, considering that we have had no further conversations about whether we would accomplish thatthrough stipulation or motion. Also, the deadline t o file a motion to strike has passed. See CCP §435(b) and CRC 3.1322.

Regarding the motion for sanctions under CCP § 128. 7, could you please provide the basis for that motion? During our last phone conversation, youhad mentioned such a motion relating to evidence sp oliation, but your e-mail today reads as though the motion for sanctions relates to the Answers.

I would like to meet and confer over these issues w e may avoid costly motion practice.

Thanks,

Hemmy

-----Original Message-----From: Daniel H. Fingerman [mailto:dfingerman@MOUNT. com]Sent: Wednesday, November 11, 2009 12:23 PMTo: Hemmy So; Hunter Eley; Ron St. MarieCc: Michelle BikulSubject: RE: Availability for motion (Fingerman v. Capital One)

It's a motion to strike the defendants' answers and for sanctions under CCP? 128.7.

Dan Fingerman, Esq.Mount & Stoelker, P.C.RiverPark Tower, Suite 1650333 W San Carlos StreetSan Jose CA 95110-2740Tel: (408) 279-7000Fax: (408) 998-1473Eml: [email protected]: www.mount.com


-----Original Message-----From: Hemmy So [mailto:[email protected]]Sent: Wednesday, November 11, 2009 12:20 PMTo: Daniel H. Fingerman; Hunter Eley; Ron St. MarieCc: Michelle BikulSubject: RE: Availability for motion (Fingerman v. Capital One)

Hello Dan,

Could you please advise what the motion is for?

Thanks,

Hemmy

-----Original Message-----From: Daniel H. Fingerman [mailto:dfingerman@MOUNT. com]Sent: Tuesday, November 10, 2009 4:01 PMTo: Hemmy So; Hunter Eley; Ron St. MarieCc: Michelle BikulSubject: Availability for motion (Fingerman v. Capi tal One)

Counsel:

Please advise if you are unavailable for a motion o n January 26, 2010 at 9am or on January 28, 2010 at 9am.

Dan Fingerman, Esq.Mount & Stoelker, P.C.

RiverPark Tower, Suite 1650333 W San Carlos StreetSan Jose CA 95110-2740Tel: (408) 279-7000Fax: (408) 998-1473Eml: [email protected]: www.mount.com


Proof of Service; Case No. 1-08-CV-127344 Page 1

Case No. 1-08-CV-127344 Proof of Service

I am a citizen of the United States, over the age of 18. I am familiar with my employer's usual business practice for collection and processing of correspondence, including for mailing via the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service on the same day of the collection in the usual course of business. My business address is Mount & Stoelker, P.C.; RiverPark Tower, Suite 1650; 333 W. San Carlos Street; San Jose CA 95110-2740.

On the date set forth below, following ordinary business practice, I served the document(s) listed below, as follows:

(1) Motion for Sanctions for Violations of CCP § 128.7

Persons Served: Attorneys For: Defendants Capital One N.A. and James Kaufmann Hunter R. Eley, Esq.; Ronald M. St. Marie, Esq.; Hemmy So, Esq. Doll Amir & Eley; 1888 Century Park East, Ste. 1106; Los Angeles CA 90067 Fax: (310) 557-9101 Email: [email protected]; [email protected]; [email protected]; [email protected]

Electronic Mail. I caused such document(s) to be transmitted via electronic mail on this date to the email addresses listed above, pursuant to agreement among the parties.

Mail. I caused such document(s), placed in sealed envelope(s) with prepaid postage thereon, to be placed in the U.S. mail at San Jose, California.

Overnight. I caused such document(s), placed in sealed package(s) with prepaid postage thereon, to be delivered to an overnight courier at San Jose, California.

Fax. I caused such document(s) to be transmitted by facsimile transmission on this date to the offices of the addressee(s), at the fax numbers indicated above.

Personal Service. I caused such document(s), placed in sealed package(s), to be delivered by hand this date to the office(s) of the addressee(s), as set forth above.

I declare under penalty of perjury under the laws of the United States and the State of California that the above is true and correct, to the best of my knowledge. Executed on the date set forth below.

Date: November 13, 2009 Dan Fingerman

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Documents

Declaration of Dan Fingerman re Motion for Sanctions Under CCP § 128.7