Edith R. Matthai, 66730 MOTION NO. 1 ROBIE & MATTHAI A Professional Corporation Discovery Referee Appointed: 500 S. Grand Avenue, Suite 1500 Courtesy Copy to the Court Los Angeles, CA 90071-2609 (213) 624-3062 (213) 624-2563 Fax
Attorneys for Defendant GRAHAM E. BERRY
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
MICHAEL HURTADO,Plaintiff,vs.GRAHAM E. BERRY,Defendant.___________________________________ )))))))))) CASE NO. BC208227[Assigned to: Hon. Ray L. Hart]NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF AND HIS ATTORNEYS MOXON & KOBRIN TO PRODUCE EMPLOYEE/ AGENT EUGENE INGRAM FOR DEPOSITION; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION; DECLARATIONS OF KIM W. SELLARS, WILLIAM H. GAILEY, GARY BRUMMOND, AL SKILES AND ERNIE BASSETTDATE: To be determinedTIME: To be determinedPLACE:Office of the Hon. Stephen Lachs11835 W. Olympic Blvd., Ste. 375Los Angeles, CAAction Filed: April 5, 1999Trial Date: March 5, 2001
TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on a date and time to be decided in accordance with the schedule of The Honorable Stephen M. Lachs, Judge of the Superior Court (Retired), defendant Graham E. Berry will move this Court for an order compelling plaintiff and his attorneys, Moxon & Kobrin to produce Eugene Ingram for deposition. This motion is made on the following grounds: 1. That defendant has been diligent in attempting to personally serve Mr. Ingram and through no fault of defendant, he has been unable to do so; 2. That defendant gave notice to both Moxon & Kobrin and to plaintiff through his attorneys that the deposition of Mr. Ingram was required as both the person most knowledgeable and the custodian of records for relevant documents from Moxon & Kobrin; 3. That defendant personally served the subpenas requiring the custodian of records and person most knowledgeable (Ingram) to appear at deposition but Moxon & Kobrin failed to produce Ingram. This Motion is made upon the Notice of Motion, the attached Memorandum of Points and Authorities, the Declarations of Kim W. Sellars and William H. Gailey, Gary Brummond, Al Skiles and Ernie Bassett, the attached exhibits, the Court's file and upon any other oral or documentary evidence as may be presented at or before the hearing of this motion.
DATED: January 30, 2001 Respectfully submitted,
ROBIE & MATTHAI A Professional Corporation
By KIM W. SELLARS Attorneys for DEFENDANT GRAHAM BERRY
MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION For nearly seven years, Eugene Ingram has been the instrument of Scientology engaged in a concerted effort to prosecute Graham Berry in the civil and criminal courts. (Exh. 1, 17.) Despite Mr. Berry's alleged blatant illegal conduct on both coasts. Eugene Ingram has found only three purported witnesses to Mr. Berry's alleged illegal conduct: (1) Robert Cipriano, who has testified that he was so intimidated by Ingram that he gave false testimony against Mr. Berry (Exh. 1-11); (2) Anthony Apodaca who testified that he, too, was paid and pressured by Ingram to give false testimony against Mr. Berry; and (3) Michael Hurtado, who Ingram located and who claims he is entitled to $8 million in damages in this action. Ingram was intimately involved in locating each of these so-called witnesses and in ensuring that they "cooperated" in the attack upon Mr. Berry. Thus, Hurtado has received Ingram's substantial and valuable investigative services for free in Hurtado's several criminal cases ever since he agreed to prosecute this action. Obviously, defendant wishes to depose Mr. Ingram and has made extraordinary attempts to do so over the last six months. (Gailey Dec., 3, 4, 5; Brummond Dec.; Skiles Dec.; Bassett Dec.) Mr. Ingram's house has been staked out, plaintiff and his counsel have received notice of Ingram's deposition; plaintiff and his counsel have been subpenaed to produce Ingram and they have been asked to voluntarily produce him for deposition. (Exh. 21-28.) Under these facts, plaintiff and Moxon & Kobrin should be compelled to produce their agent, percipient witness Eugene Ingram, for deposition. THE FACTS A. Scientology and Ingram.
For approximately twenty years, Eugene Ingram has been employed as an investigator by Moxon & Kobrin and he provides investigative services for plaintiff. (Sellars Dec. 11.) Moxon & Kobrin have been routinely retained by Scientology to represent it and related parties. The courts of this state have long recognized that Scientology employs its "fair game" doctrine and litigation to "bludgeon the opposition into submission." (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 641 [42 Cal.Rptr.2d 620, 627]; Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872, 888 [66 Cal.Rptr.2d 1, 12]; Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1067 [283 Cal.Rptr. 917, 920-921].) When it comes to defendant Graham Berry, plaintiff's attorney, Moxon, and his investigator Ingram are all too familiar with "fair game." Mr. Berry was first retained as the attorney of Scientology's adversaries in the early 1990's. While employed at Lewis, D'Amato, David B. Parker, Esq., Mr. Berry and a team of Lewis D'Amato lawyers successfully represented former Scientology lawyer Joseph A. Yanny against Scientology. Mr. Berry also intervened on behalf of Yanny in Scientology v. Armstrong, and was defense counsel in numerous other cases including Scientology v. Factnet, and Church of Scientology v. Geertz, et al. The law firm of Moxon & Kobrin (or their predecessors) were consistently Mr. Berry's adversaries in each of these cases. B. Ingram Intimidates Robert Cipriano into Signing a False Declaration
By 1994, Moxon & Kobrin's investigator, Eugene Ingram, was seeking to discredit Mr. Berry. (Exh. 1, p. 61, 133; Exh. 4, p. 128:10-24) In May, 1994, Ingram appeared uninvited at the door of Robert J. Cipriano's secured New York high-rise. (Exh. 1, pp. 64-66.) Ingram said he was a detective with the Los Angeles Police Department and "intimidated" Mr. Cipriano into signing a declaration that Mr. Ingram had prepared. (Exh. 1, pp. 71-80.) The declaration contained a variety of statements falsely accusing Mr. Berry of pedophilia and other reprehensible and illegal conduct. (Exh. 1, 2, 5, 11.) The May 5, 1994 declaration has been widely circulated and continuously published on the Internet from mid-1994 to the present day. Ingram himself has been personally responsible for delivering the Cipriano declaration to dozens of Mr. Berry's law partners, clients, friends, acquaintances, politicians and even judges such as the Hon. Keith G. Wisot. In 1998, Mr. Berry sued Robert Cipriano and others associated with Scientology for libel and slander as a result of such false statements as Mr. Berry was a pedophile who victimized many dozens of young men. In that action, Mr. Berry, was bludgeoned into submission, declared a vexatious litigant, and ordered to pay over $60,000 in costs. Moxon took depositions for over 30 days in the Cipriano case, propounded hundreds if not thousands of interrogatories and document requests; yet provided virtually no responsive interrogatory answers or documents to discovery propounded by Mr. Berry. Indeed, Moxon blocked Mr. Berry from taking a single deposition. Finally, as a result of the orders to pay costs, Mr. Berry was driven into bankruptcy, ultimately losing both his law practice and his home.
A year after the Cipriano case was dismissed, Mr. Cipriano was deposed on June 12, 2000 and August 7, 8 and 12, 2000 in this action. In his deposition, Mr. Cipriano recanted all of the damaging statements contained in the May 5, 1994 declaration. (Exh. 1, pp. 94-105.) Mr. Cipriano testified he wanted to "truth" to come out. (Exh. 1, pp. 61-62.) Then he explained exactly how Ingram obtained his signature on a false declaration. Ingram told Cipriano that Mr. Berry was "doing illegal things in Los Angeles with regard to his practice" and that Mr. Berry was having sex with underage gay males. (Exh. 1, pp. 68:1-4, 70:15-18.) Cipriano then testified that Ingram intimated: "He knew and understood that there was a warrant, I guess an arrest warrant, issued in the State of New Jersey for me. He also indicated that he had -- I believe that he heard through some other people that he spoke to prior to me that I was a fugitive from the law and that I was wanted for numerous charges both the New York, New Jersey, and other places. He said that -- he said that I should be very careful not to go to the State of New Jersey, that I could be arrested. He made a joke about getting pulled over driving a car, that I could be arrested." (Exh. 1, p. 71:10-23.)
Cipriano "thought [he] should be very careful to help [Ingram] [and], assist him with information about Berry." According to Cipriano: "I was led to understand and believe that if I didn't help Mr. Ingram in my casting (sic) him and my understanding him to be a detective with the Los Angeles Police Department, that he could very well take me to New Jersey and have me arrested." (Exh. 1, p. 72:4-5, 19-25.) That same evening, Ingram returned to Cipriano's home while Cipriano was out and had an hour-long conversation with Cipriano's wife. Cipriano says: "So I was quite apprehensive. I walked in the door, and there was a gentleman and a woman, Ingram and a lady, and she [his wife] said, 'we had a wonderful conversation, and he asked me a lot of questions about you.'" (Exh. 1, p. 73:3-17.) Ingram appeared at Cipriano's office the following day with the final draft May 5, 1994 declaration. (Exh. 1, p. 76.) Although Ingram never specifically told Cipriano how the declaration would be used, Cipriano understood that the Los Angeles Police Department would be using it in an investigation of the illegal things Ingram claimed Berry was doing. (Exh. 1, 77:6-21.) Importantly, Cipriano did not compose any portion of the declaration and when he complained it was inaccurate, no changes were made. (Exh. 1 78:1-3.)
When Cipriano reviewed the declaration: "I said to Mr. Ingram that this is not what I said; that it mischaracterized what I said. He became angry, somewhat belligerent.
He went on to say, 'You know how easy it is for me to find you? How do you think it would be for the authorities in New Jersey to find you?' I was terrified of what was going on in New Jersey. And not having the money to represent myself and not having an understanding -- as such, the pressure that I felt being brought to bear on me, I signed his version, or his -- this thing." (Exh. 1, pp. 77-78.)
After Ingram became angry and belligerent, Cipriano signed the May 5, 1994 declaration. (Exh. 1, p. 80:18-20.) According to Cipriano, Ingram was "standing up -- there was a small round conference table in my office. I was sitting. He stood up. When I said, 'this isn't what I said,' he repeated something to the effect of how easy it was to -- to find you and fugitive information and bringing me back to the fear that I had over the New Jersey matter. I was intimidated." (Exh. 1, pp. 78:15-25, 79:1-13.) In essence, Cipriano testified that he did not provide the information contained in the May 5, 1994 declaration to Ingram. Instead, Cipriano testified that Ingram provided the information contained in the declaration. Ingram provided the wording and Ingram completely fabricated whole paragraphs of the declaration. (Exh. 1, pp. 80-106.) During the Cipriano deposition, the following testimony was elicited by Mr. Moxon on cross-examination: "Well, you kept providing money. And based on the fact that our whole relationship started with your agent, Mr. Ingram, threatening and intimidating me to give the false declaration in 1994. It was just a continuation of all that, Sir." (Exh. 1, pp. 325:20-25, 326:1-8.)
Under further cross-examination, Cipriano told Moxon: "That is what you wanted to hear. That is what you coached me to do. That is what I was threatened and intimidated me to do. And that's what I was paid to do." (Exh. 1, p. 359:16-23; see also pp. 333, 334, 341 and 352.)
Cipriano described the procedure Moxon used in preparing declarations in Cipriano v. Berry: "Every declaration that you prepared for me to sign was what you wanted to hear, and what you wanted written, and what you wanted to file in court, and what you wanted for everything. . . . I signed what you prepared with the commencement of the threat and intimidation and the payments thereafter. Almost every time you gave me something to sign, you look at the same date or day after and there is a payment of some sort." (Exh. 1, p. 362:9-21.)
Cipriano's testimony that he was paid to provide false statements against Mr. Berry is documented and corroborated by at least 50 documents, many of them emanating from Moxon's own e-mail address or bearing his own signature and handwriting. (Exhs. 2-12.) Cipriano also testified that in December, 1998 or January, 1999 Moxon and Ingram told him that they had located a person named Michael Hurtado who purportedly "had exchanged sexual favors for legal services by Mr. Berry." (Exh. 1, pp. 106-109.) Neither Moxon or Ingram said Moxon represented Hurtado. Instead, Ingram told Cipriano that the information regarding Michael Hurtado would be used to file a State Bar complaint against Mr. Berry and to include in leaflets on cars around Mr. Berry's neighborhood. (Exh. 1, p. 110.) In fact, a State Bar complaint has been filed against Mr. Berry and leaflets have been left in his neighborhood identifying him as a child molester. At Ingram's request, Cipriano set up a meeting with Jason Whitman at the Los Angeles Youth Center. Ingram decided to create a poster or flyer with Mr. Berry's picture to circulate among Mr. Whitman's clients. Ingram told Whitman, "that Mr. Berry was a pedophile and preying on underage male prostitutes and drugging them." Sometime later, Moxon told Cipriano that they had located Anthony Apodaca, that he was a street prostitute, and that he was "willing to testify" to having been with Berry. (Exh. 1, p. 114-115.) Whitman subsequently told Cipriano that he was very upset with how Apodaca had been used. Apodaca had gone to Whitman crying, said he was put up in a hotel, paid $300 for clothes, and that Ingram "had somehow upset him." Whitman was particularly upset that the Scientology connection had not been disclosed by Cipriano or Ingram. (Exh. 1,
p. .) C. Investigator Ingram Recruits Hurtado. In the Cipriano case, attorney Moxon deposed Mr. Berry over 12 days. On November 25, 1998, Moxon questioned Mr. Berry about his sexual relationship with 23 year old Michael Hurtado. (Exh. 12.) The deposition was videotaped.
Less than one month later, in December, 1998, Elliot Abelson, a Scientology attorney told Donald Wager about Michael Hurtado. (Wager Depo., pp. 18:23-25, 19:1-24, 20:1-8.) Wager then spoke with Ingram about Michael Hurtado at least three times. (Wager Depo., p. 25:1-25.) Wager understood Ingram was working for Scientology because Ingram told him he was working for Moxon at the time. (Wager Depo., pp. 26-27, 32:7-14.) Moxon, acting as Scientology's counsel, also contacted Wager regarding Mr. Hurtado. Wager had at least six conversations with Moxon before he ever met plaintiff Hurtado. (Wager Depo., pp. 27-28.) Nonetheless, Wager opened his file on Michael Hurtado in December, 1998 and began billing even though he had never met Hurtado. (Wager Depo, p. 13:20-25.)
In mid-January, 1999, Ingram appeared at the Hurtado's home, once again unannounced and uninvited. (Exh. 13, pp. 29:3-6, 27:7-25, 29:6-10, 25; Exh. 14, pp. 19-25.) Ana and Vanessa testified that Ingram told them that Mr. Berry was a child molester. To prove his claim, he showed them the perjurious Cipriano declaration. (Exh. 13, pp. 10:3-6, 27:7-25, 29:6-10,-25; Exh. 14, pp. 19-25.) Mr. Ingram said he was investigating Mr. Berry from New York and had been investigating him for a long, long time. (Exh. 13, pp. 31:9-25, 32:1-25, 33:1-24, 38:18-25, 39:1-11; Exh. 15, pp. 131:16-25, 132:-13.) Ingram suggested to the Hurtados that Mr. Berry had taken advantage of Michael Hurtado. When Ingram showed them the videotape of Mr. Berry's testimony regarding his sexual relationship with Michael Hurtado, Mrs. Hurtado did not want to see it, or look at it, and she refused to keep it, saying: "Forget it. Take it." (Exh. 13, pp.37:2-11, 20-22, 25, 38:1-2.) The entire Hurtado family had long believed that homosexual conduct was inappropriate. (Exh. 14, pp.157-158.) Nonetheless, Ingram showed them the videotape, the May 5, 1994 Cipriano declaration, multiple other documents, and even told them that Mr. Berry liked to be defecated upon. (Exh. 14, pp. 46, 143.) Ingram wanted the Hurtados "to see a lawyer because of this matter," and suggested that there was a possibility that there could be a civil suit against Mr. Berry. (Exh. 14, pp. 123:2-14, 22, 130:24-25, 131:1-4.) Ingram then took Ana, Miguel, Vanessa and a Cuban writer friend to see Wager within a very few days. At Wager's office, they were introduced to Moxon. (Exh. 13, pp. 34:18-25, 35:1-25, 36:1-4, 11-25, 45:9, 46:1-25, 55:2-8, 59:1-17.) Both Ana and Vanessa Hurtado thought the purpose of the meeting was to find a lawyer who would represent Michael in a lawsuit against Mr. Berry. Neither of them knew about the then pending drug paraphernalia charges against Michael. (Exh. 14, p. 49:15-25; Exh. 13, pp. 27:7-17, 29:6-24, 30:1-20, 31:14-25, 32:1-13, 33:4-11, 46:19-25, 47:1-6, 58:14-17, 59:12-17.) No one in the Hurtado family discussed Mr. Berry's relationship with Michael Hurtado at any time before they attended the meeting with Wager and Moxon. Instead, Vanessa, Ana and Miguel Hurtado -- without Michael Hurtado -- met with the attorneys and decided to file this lawsuit against Berry. (Exh. 13, pp. 35-41, 53-54.) After the meeting, the elder Mr. Hurtado told Michael that Mr. Wager would now be representing him in the criminal matter and Mr. Berry's legal representation was terminated.
The Hurtados went along with whatever the lawyers, Wager and Moxon, and investigator Ingram told them to do. (Exh. 14, pp. 40-44.) The Hurtados even went so far as to allow Ingram to tap their phone to entrap Mr. Berry. (Exh 14, pp. 59-85.) In fact, Michael Hurtado is not suing because of what was allegedly done to him. Instead, he is suing for "money" on the basis of the perjurious Cipriano declaration, also shown to him by Ingram and because: "I figured, you know, a person like this, doesn't deserve anything good; so I just don't believe a person in a career that should be able to have sex with minors and do drugs and offer drugs to minors. I don't believe in that; so that is why I'm suing." (Exh. 15, p. 131:2-15.)
Wager did not meet with Michael Hurtado until January 22, 1999, after Wager had met with Abelson, Ingram, Moxon and the Hurtado family. (Wager Depo., pp. 20:17-25, 21:1-23, 22:25, 23:1, 24:1-21.) Wager and plaintiff did not sign a retainer agreement until January 27, 1999. D. Moxon, Wager and Ingram Seek Perjurious Statements from Apodaca. This action was filed on April 5, 1999. Although Wager never represented him, on April 13, 1999, Wager visited Anthony Apodaca in jail and left between $100 and $300 for him. Moxon reimbursed Wager. (Wager Depo., pp. 46:3-14; 53:10-25; 57:16-24, 59:20-22; 64:23-25.) Apodaca was not a witness to anything relating to the drug paraphernalia case which Wager was now handling for Michael Hurtado. (Wager Depo., pp. 63:16-22, 64:11-25.) According to Wager, on April 13, 1999, "there was a real question in [Apodaca's] mind as to who Berry was." However, on April 22, 1999, Ingram, Moxon and Wager met with Apodaca and he was videotaped. (Wager Depo., pp. 48:7-22, 50:9-15, 58:5-19.) Just one week after receiving $100/$300 from Wager, Mr. Apodaca was then able to identify Mr. Berry as a man he had been with four to five years earlier. (Exh. 18.) In the videotape, Mr. Apodaca said that while he was under age, he engaged in sadomasochistic activities with Mr. Berry. (Exh. 18.) On April 26, 1999, Moxon noticed Mr. Apodaca's deposition in this action. Mr. Apodaca was unable to attend because he was back in jail (Exh. 19.)
When, his deposition did proceed on May 3, 2000, Mr. Apodaca testified he was high at the time of the videotaping, had no recollection of it and he could not even recognize Mr. Berry. (Exh. 16.) Mr. Apodaca said he was pressured into giving his videotaped statement. According to Mr. Apodaca, some lawyer came to County Jail and gave him $200.00. He was given money, McDonald's food certificates and clothing to testify against Mr. Berry. He refused. According to Mr. Apodaca, "All this stuff about this plaintiff trying to bribe me to testifying -- okay? -- I don't go for that." (Exh. 16, p. 12.) E. Wager, Abelson and Ingram Approach Prosecutors and Berry is Reported to the State Bar. In the spring of 1999, Wager, along with Scientology attorney Abelson, also met with Detective Petz and District Attorney Paul Turley to encourage them to prosecute Mr. Berry for pandering on the basis of Michael Hurtado's first verified complaint in this lawsuit.. (Wager Depo., pp. 101:13-16, 103:9-25, 104:13-25, 105-106.) During that meeting, Wager told Turley about his client's criminal history, the pending charges against Hurtado, and Hurtado's claims against Mr. Berry. (Wager Depo., pp. 105:10-25, 107:11-15, 22-25, 108:1-4, 21-25, 109:1-6, 112:17-25, 113:1-19.) Wager called Detective Petz several times to see if Berry would be prosecuted and was ultimately told no charges would be brought. (Wager Depo., p. 114.) Although Wager declined to represent Hurtado when still more criminal charges were brought against him, he did discuss the additional charges with both Abelson and Ingram. (Wager Depo., pp. 118:4-19, 119:13-17.) Meanwhile, State Bar proceedings were brought against Mr. Berry arising out of Michael Hurtado's allegations. Scientology's representatives now regularly contact the State Bar demanding that Mr. Berry be punished. Abelson has also spent seven years "investigating" Mr. Berry. By way of example, on September 13, 2000, Mr. Abelson wrote to an attorney in New Zealand,
"I am writing to you in connection with an investigation I am conducting into Graham E. Berry. The purpose of my investigation is to uncover unethical or illegal conduct committed by Mr. Berry. I understand you may have data that may be of help in my investigation. Specifically, I would appreciate any information you can provide concerning Mr. Berry's motives for embarking upon a course of action which would seem, to any objective observer, to be contrary to his own best interests, and a blatant attack on international religion." (Exh. 17.)
Mr. Abelson saw fit to copy this letter to everyone from Mr. Berry's elderly parents in New Zealand to the New York Disciplinary Committee (for discipline of attorneys) to the Department of Justice in New Zealand. Since bringing the action, Michael Hurtado has been arrested multiple times and is currently in jail for violation of probation -- five years for stalking. Ingram continues to provide substantial investigative services for Hurtado in these several criminal proceedings, attends court proceedings and takes Hurtado to AA meetings. (Sellars Dec. 11.) Although Hurtado was represented by Public Defenders before this lawsuit, he has consistently been represented by private criminal defense attorneys since the day his family agreed to sue Mr. Berry. Thus, Ingram has consistently either used, or planned to use, false statements both in civil and criminal actions to foment legal proceedings against Mr. Berry. Ingram continues to this day to provide substantial and apparently free investigative and other services to Michael Hurtado, who, even now, is receiving substantial benefits for prosecuting this action directly from Mr. Ingram. PROCEDURAL POSTURE
Defendant has gone to extraordinary efforts to depose Eugene Ingram. Multiple subpoenas were issued for his deposition. (Exh. 21-24.) Each subpoena was followed by multiple attempts to serve Mr. Ingram. Defense counsel's process servers attempted to serve Eugene Ingram two times on September 6, 2000, on September 7, 2000, two times on September 11, 2000, on September 12, 2000, three times on September 13, 2000, on October 6, 2000, October 10, 2000, October 14, 2000, October 16, 2000, October 17, 2000, November 3, 2000 (2 times), November 16, 2000 (2 times), November 29, 2000 and December 25, 2000. (Gailey Dec., Brummond Dec., Skiles Dec., Bassett Dec.) When it was apparent that Mr. Ingram was avoiding service and could not be served, defendant then served a deposition subpoena for the person most knowledgeable from Moxon & Kobrin and the custodian of records from Moxon & Kobrin. (Exh. 25, 26, 27.) In particular, defendant requested that Moxon & Kobrin produce the "person most knowledgeable" regarding all photographing, filming or videotaping of Graham Berry or Anthony Apodaca, the preparation of videotapes of Graham Berry shown to the Hurtado family, the selection of documents referring to Graham Berry that were shown to the Hurtado family, the preparation of investigative reports, and the identification of the person or entity paying Eugene Ingram. (Exh. 25, Attach. 4, Nos. 1-5. 6-10, Exh. 27.) Defendant also personally served Moxon & Kobrin with a custodian of records deposition requesting the deposition of the custodian for all of the above described records (Exh. 26.) In addition, defendant personally served deposition notices for the person most knowledgeable and the custodian of records from Moxon & Kobrin on Moxon & Kobrin on January 4, 2001. Attached to the notices were true, correct and complete copies of the two deposition subpoenas. Finally, counsel for defendant wrote a meet-and-confer letter to Ava Paquette requesting that she agree to produce their agent-employee Mr. Ingram for deposition. (Exh. 28.) There was no response. Accordingly, this motion was made necessary because Eugene Ingram is evading service, and Moxon & Kobrin and plaintiff refuse to produce their agent/employee Ingram for his deposition in this action. LEGAL ARGUMENT WHEN AS HERE, A PARTY-AFFILIATED WITNESS HAS AVOIDED SERVICE AND HIS EMPLOYERS PLAINTIFF AND PLAINTIFF'S ATTORNEYS MOXON & KOBRIN REFUSE TO PRODUCE THE WITNESS, THE COURT MAY ORDER THE DEPOSITION. A. Justice Requires that Plaintiff and his Attorneys be Ordered to Produce Eugene Ingram at Deposition.
Since June 12, 2000, defendant has made over twenty attempts to personally serve Eugene Ingram with a deposition subpena requiring his personal appearance at deposition. Service attempts were made by Gailey & Associates, William Gailey personally and Gary Drummond, Al Skiles and Ernie Bassett. Mr. Gailey was a patrolman and then a detective with the Los Angeles Police Department for 25 years. Eugene Ingram was a sergeant with the Los Angeles Police Department. Thus, Mr. Gailey personally knows Eugene Ingram. Twenty years ago Mr. Gailey came upon Ingram after he had been shot in Elysian Park and took him to the hospital. (Gailey Dec. 2.) Thus, Mr. Gailey personally knows Eugene Ingram. Despite Mr. Gailey's repeated request that Mrs. Ingram have Ingram call, and despite the past incident which would seem to have created some sort of bond, Mr. Ingram has never returned any of Mr. Gailey's or his staff's telephone calls. Although counsel for defendant attempted to serve Ingram on week days, holidays and other times, service was never completed. Only one conclusion can be reached. That is that Mr. Ingram is actively avoiding service. Advising a witness to avoid service is unlawful. (Holmes v. Superior Court (1983) 145 Cal.App.3d 934.) B. The Service of the Person Most Knowledgeable Subpena Required Moxon & Kobrin to Produce Their Employee, Ingram. When, as here, the notice of deposition or subpena served on an entity sufficiently describes the matters on which questions will be asked, the entity is under a duty to designate and produce the employee "most qualified" to testify on its behalf on such matters. (C.C.P. §2025(d).) The person designated by the entity must testify "to the extent of any information known or reasonably available to the deponent" (C.C.P. §2025(d).) If the subject matter of the questioning is clearly stated, the burden is on the entity to produce the right witness.
Here, it is undisputed that Ingram has worked for Moxon & Kobrin at least since 1994 investigating Mr. Berry. Ingram has also continuously worked on behalf of Michael Hurtado in his various criminal matters in which Moxon & Kobrin was not even counsel of record and has provided him with other personal services. Both the subpenas and the notice with the subpenas attached plainly define the subject matter about which the designee is to testify as follows: · The filming of Graham Berry's house. · The filming of Graham Berry. · The filming of Anthony Apodaca. · The preparation of videotapes of Graham Berry shown to the Hurtado family. · The selection of writings referring to Graham Berry that were shown to the Hurtado family. · The preparation of notes, messages, reports or other writings generated by Eugene Ingram referring to Graham Berry. · The identification of any person or entity that paid Ingram to investigate Graham Berry. · The identification of any person that gave anything of beneficial value to Anthony Apodaca. · The identification of any person or entity that paid Eugene Ingram to provide services for Michael Hurtado. · The meetings involving Vanessa Hurtado, Miguel Hurtado and/or Ana Hurtado in which Graham Berry was discussed. It is beyond dispute that these categories are clear and unequivocal and the only responsive person that plaintiff and Moxon & Kobrin could designate to respond to these categories is their agent and employee, Eugene Ingram. Accordingly, Ingram should be ordered to appear for deposition. C. A Notice of Deposition Compels a Party-Affiliated Witness to Testify and Produce Documents if Requested. (C.C.P. §2025(h)(1).)
A deposition subpena is not required to compel the attendance and testimony of any person who, although not a named party, is either an officer, director, managing agent or employee of a party. (C.C.P. §2025(h)(1.).) When served with the notice, it is the responsibility of the party to produce the person for deposition or risk sanctions. (Weil & Brown, Civil Procedure Before Trial, §8:516, et seq., p. 8E-26.4.) Here, plaintiff's counsel of record was personally served with the requisite notice with the subpena attached specifically describing the person to be deposed and the documents to be produced. (Exh. 27.) Here, Ingram is plainly the employee and agent of plaintiff and Moxon & Kobrin have repeatedly admitted in these proceedings that he is their employee. Moreover, by virtue of plaintiff's and Moxon & Kobrin's joint interest in recovering damages in this action for their joint "immediate benefit," Mr. Ingram is subject to notice and should be produced for deposition. (Hand v. Superior Court (1982) 134 Cal.App.3d 436.) For this reason too, plaintiff and Moxon & Kobrin can and should be ordered to produce Eugene Ingram for deposition and the requested documents. CONCLUSION For all the foregoing reasons, defendant respectfully requests that this Court order plaintiff and Moxon & Kobrin to produce their employee-agent, Eugene Ingram for deposition along with the requested documents.
DATED: September 30, 2001 Respectfully submitted, ROBIE & MATTHAI
By KIM W. SELLARS Attorneys for Defendant GRAHAM E. BERRY
DECLARATION OF KIM W. SELLARS I, KIM W. SELLARS, declare: 1. I am an attorney at law licensed to practice before all of the courts of the State of California and I am an associate in the law firm of Robie & Matthai, a Professional Corporation, attorneys of record for defendant Graham E. Berry in this action. The facts stated in this declaration are from my own personal knowledge and, if called as a witness, I could and would competently testify as to each of these facts. 2. Attached as Exhibit 20 is a true and correct copy of pertinent portions of the deposition of Robert J. Cipriano, taken on August 7, 2000. 3. Attached as Exhibit 21 is a true and correct copy of a Deposition Subpoena for Personal Appearance directed to Eugene Ingram, for appearance on June 28, 2000. 4. Attached as Exhibit 22 is a true and correct copy of a Deposition Subpoena for Personal Appearance directed to Eugene Ingram, for appearance on September 15, 2000. 5. Attached as Exhibit 23 is a true and correct copy of a Deposition Subpoena for Personal Appearance directed to Eugene Ingram, for appearance on November 8, 2000. 6. Attached as Exhibit 24 is a true and correct copy of a Deposition Subpoena for Personal Appearance directed to Eugene Ingram, for appearance on January 29, 2001. 7. Attached as Exhibit 25 is a true and correct copy of a Deposition Subpoena for Personal Appearance directed to Person Most Knowledgeable - Moxon & Kobrin, for appearance on January 29, 2001. 8. Attached as Exhibit 26 is a true and correct copy of a Deposition Subpoena for Personal Appearance directed to Custodian of Records for Moxon & Kobrin, for appearance on January 29, 2001. 9. Attached as Exhibit 27 is a true and correct copy of Notice to Consumer; Notice of Depositions of Moxon & Kobrin; COR of Moxon & Kobrin; PMK of Moxon & Kobrin; COR of Law Office of Donald R. Wager; PMK of Donald R. Wager with Production of Documents.
10 Attached as Exhibit 28 is a true and correct copy of my letter to Ava M. Paquette of Moxon & Kobrin, attorneys of record for plaintiff, dated January 22, 2001. 11 I am informed and believe that Mr. Ingram provided investigative services for Mr. Hurtado in relation to his recent criminal prosecution for stalking. I am informed and believe that Mr. Ingram investigated the victim and suggested that she be prosecuted for some financial wrongdoing, perhaps involving bad checks or improper charges to credit cards. Further, Vanessa Hurtado testified in this action that Mr. Ingram picks up plaintiff Michael Hurtado and takes him to AA meetings. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 30, 2001, in Los Angeles, California.
KIM W. SELLARS
DECLARATION OF WILLIAM H. GAILEY I, WILLIAM H. GAILEY, declare as follows: 1. I am a principal in Gailey Associates, Inc. My company provides investigative services and service of process. The facts stated below are from my own personal knowledge. 2. I was a patrolman with the Los Angeles Police Department for 8 years and Detective with the Department for 17 years. During my service with the Los Angeles Police Department I met Eugene Ingram, who was a Sergeant with the Department. In fact, approximately 20 years ago I was on duty and driving through Elysian Park when I came upon a patrol car. Eugene Ingram was in the car and had been shot. I took him to the hospital. 3. On September 11, 2000, in an attempt to serve Eugene Ingram, I went to the Ingram home in La Crescenta, California and spoke with Mrs. Ingram. She told me he was out of town and she would have him call me. I left a business card. Mr. Ingram never called. 4. On September 13, 2000, I again went to the Ingram home and again spoke with Mrs. Ingram. I asked that Mr. Ingram call me and she stated, "He'll call you." There was no return call. 5. On December 25, 2000, I again attempted service on Mr. Ingram. There was no response when I knocked on the door. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 30, 2001, at Long Beach, California.
_____________________________________ WILLIAM H. GAILEY
DECLARATION OF GARY BRUMMOND I, GARY BRUMMOND, declare as follows: 1. I am an employee of Gailey Associates, Inc. which provides investigative services and service of process. The facts stated below are from my own personal knowledge. 2. On September 6, 2000, I made two attempts, once in the morning and again in the afternoon, to serve Eugene Ingram at his home in La Crescenta, California. I spoke with Mrs. Ingram and she told me Mr. Ingram was "out of town." 3. On September 7, 2000, I again attempted to serve Mr. Ingram. I spoke with Mrs. Ingram who again told me Mr. Ingram was "out of town." 4. On September 22, 2000, I again attempted service on Mr. Ingram. There was no response when I knocked on the door. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January __, 2001, at __________________, California.
_____________________________________ GARY BRUMMOND
DECLARATION OF AL SKILES
I, AL SKILES, declare as follows: 1. I am an employee of Gailey Associates, Inc. which provides investigative services and service of process. The facts stated below are from my own personal knowledge. 2. On September 12, 2000, I attempted to serve Eugene Ingram at his home in La Crescenta, California. There was no response when I knocked on the door. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January __, 2001, at _________________, California.
_____________________________________ AL SKILES
DECLARATION OF ERNIE BASSETT
I, ERNIE BASSETT, declare as follows: 1. I am an employee of Gailey Associates, Inc. which provides investigative services and service of process. The facts stated below are from my own personal knowledge. 2. On September 13, 2000, I made two attempts in the evening to serve Eugene Ingram at his home in La Crescenta, California. No one was home. 3. On October 6, 2000, I again attempted to serve Mr. Ingram. I spoke with Mrs. Ingram who again told me Mr. Ingram was "out of town." 4. On October 10, 2000, I again attempted service on Mr. Ingram. There was no response when I knocked on the door. 5. On October 14, 2000, I again attempted service on Mr. Ingram. There was no response when I knocked on the door. 6. On October 16, 2000, I again attempted to serve Mr. Ingram. I spoke with Mrs. Ingram who again told me Mr. Ingram was "out of town." 7. On November 13, 2000, I made two attempts to serve Mr. Ingram. In the morning there was no response when I knocked on the door and in the evening Mrs. Ingram again told me Mr. Ingram was "out of town." 8. On November 16, 2000, I made two more attempts to serve Mr. Ingram, once in the morning and again in the afternoon. Both times I knocked on the door and there was no response. 9. On November 29, 2000, I again attempted to serve Mr. Ingram. However, when I knocked on the door there was no response. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 30, 2001, at ___________________, California.
_____________________________________ ERNIE BASSETT
PROOF OF SERVICE
I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 500 South Grand Avenue, Suite 1500, Los Angeles, CA 90071.
On January 30, 2001, I served the foregoing document(s) described as: NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF AND HIS ATTORNEYS MOXON & KOBRIN TO PRODUCE EMPLOYEE/ AGENT EUGENE INGRAM FOR DEPOSITION; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION; DECLARATIONS OF KIM W. SELLARS, WILLIAM H. GAILEY, GARY BRUMMOND, AL SKILES AND ERNIE BASSETT on all interested parties in this action by placing a true copy of each document, enclosed in a sealed envelope addressed as follows:
Ava Paquette, Esq. MOXON & KOBRIN 3055 Wilshire Boulevard, Suite 900 Los Angeles, CA 90010 (213) 487-4468 (213) 487-5385 Fax
Thomas S. Byrnes, Esq. Law Offices of Thomas S. Byrnes 9465 Wilshire Blvd., Suite 330 Beverly Hills, CA 90212 (323) 852-0802 (323) 852-0820 Fax
() BY MAIL: As follows: I am "readily familiar" with the firm's practice of collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to that practice, the envelope was deposited with the United States Postal Service on the same day this declaration was executed in the ordinary course of business. The envelope is sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at Los Angeles, California.
(X) BY PERSONAL SERVICE:
(X) I delivered such envelope by hand to the above addressee(s) by leaving the document with the receptionist at the address listed above, during normal business hours.
( ) I delivered such envelope by hand to the above addressee(s).
( ) BY OVERNIGHT COURIER: I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the addressee(s) shown.
( ) BY FACSIMILE TRANSMISSION: I caused the above-referenced document(s) to be transmitted to the above-named person(s) at the above facsimile numbers.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on January 30, 2001, at Los Angeles, California.