Willis Carto archive

Including information about his associates

Legion v Carto, Trial transcript, Volume 9


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page 1015



 1           COURT OF APPEAL OF THE STATE OF CALIFORNIA

 2                    FOURTH APPELLATE DISTRICT

 3                          DIVISION ONE

 4  ______________________________
                                  )
 5  LEGION FOR THE SURVIVAL OF    )
    FREEDOM, INC.,                )    DCA. NO. DO27959
 6                                )
                   PLAINTIFF AND  )    FROM SAN DIEGO COUNTY
 7                 RESPONDENT,    )
                                  )    HON. RUNSTON G. MAINO
 8       VS.                      )
                                  )
 9  WILLIS CARTO, HENRY FISCHER,  )
    VIBET, INC., LIBERTY LOBBY,   )
10  INC., ET. AL.,                )
                                  )
11                 DEFENDANTS AND )
                   APPELLANTS.    )
12  ______________________________)

13
                     REPORTER’s APPEAL TRANSCRIPT
14
                          JANUARY 13, 1997
15
                              VOLUME 9
16
                           PAGES 1015-1055
17

18
    APPEARANCES:
19
         FOR THE PLAINTIFF AND    JACQUES BEUGELMANS AND
20       RESPONDENT:              THOMAS MUSSELMAN
                                  1901 AVENUE OF THE STARS
21                                CENTURY CITY, CA 90067

22       FOR THE DEFENDANTS AND   PETER J. PFUND
         APPELLANTS:              2382 S.E. BRISTOL
23                                SUITE A
                                  NEWPORT BEACH, CA 92660
24

25

26
                                  BARBARA J. SCHULTZ, CSR, RPR
27                                CSR NO. 8021
                                  OFFICIAL REPORTER
28                                VISTA, CALIFORNIA

page 1016



 1        IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

 2                IN AND FOR THE COUNTY OF SAN DIEGO

 3  DEPARTMENT 11                    HON. RUNSTON G. MAINO

 4
    _____________________________
 5                               )
    LEGION FOR THE SURVIVAL OF   )
 6  FREEDOM, INC.,               )
                                 )
 7                  PLAINTIFF,   )           NO. N64584
                                 )
 8           VS.                 )
                                 )
 9  WILLIS CARTO, HENRY FISCHER, )
    VIBET, INC., LIBERTY LOBBY   )
10  INC., ET. AL.,               )
                                 )
11              DEFENDANTS.      )
    _____________________________)
12

13                       REPORTER’s TRANSCRIPT

14                        JANUARY 13, 1997

15
    APPEARANCES:
16
        FOR THE PLAINTIFF:       THOMAS MUSSELMAN
17                               1901 AVENUE OF THE STARS
                                 CENTURY CITY, CA 90067
18

19
        FOR THE DEFENDANTS:      WAIER AND URTNOWSKI
20                               BY:  RANDALL S. WAIER
                                 1301 DOVE STREET
21                               NEWPORT BEACH, CA 92660

22

23

24

25

26
                                 BARBARA J. SCHULTZ, CSR, RPR
27                               CSR NO. 8021
                                 OFFICIAL REPORTER
28                               VISTA, CALIFORNIA

page 1017



 1  VISTA, CALIFORNIA, JANUARY 13, 1997, DEPARTMENT D:

 2

 3       THE COURT:  ON THE RECORD, THE LEGION FOR THE SURVIVAL

 4  OF FREEDOM, INCORPORATED, VERSUS MR. WILLIS CARTO, ET AL., A

 5  MOTION FOR A NEW TRIAL.

 6            FIRST, LET’s TALK ABOUT THE MONEY.  YOU MAY BE

 7  AWARE THAT THERE’s $2,133.90 WE HAVE BEEN TRYING TO GET OUT

 8  OF YOU.

 9       MR. WAIER:  NOBODY HAS INDICATED THAT.  I HAVE NOT SEEN

10  ANYTHING COME TO OUR DIRECTION.  IF THAT IS THE CASE, I'LL

11  MAKE SURE WE GET A CHECK OVER.  I'M NOT --

12       THE COURT:  THE CLERK HAS BEEN CALLING YOUR OFFICE.

13  THEY KEEP SAYING MR. WAIER HAS TO APPROVE OF THIS.

14       MR. WAIER:  WHO HAS BEEN SAYING THAT?  I WOULD LIKE TO

15  KNOW THAT, IF THAT’s THE CASE.  I'LL MAKE SURE IT’s TAKEN

16  CARE OF IMMEDIATELY.

17       THE CLERK:  THE LAST PERSON WAS A WOMAN NAMED DEBBIE.

18       MR. WAIER:  DEBBIE HAS BEEN GONE ALL WEEK.  SHE’s IN

19  TODAY.  I WILL MAKE SURE YOU GET IT OVER.  HOW MUCH IS THE

20  AMOUNT?

21       THE COURT:  A JURY FEE OF $131.90 AND A COURT REPORTER

22  FEE OF $2,002 ADD TO $2,133.90.  THAT’s NUMBER ONE.

23       MR. WAIER:  BY THE WAY, I WANT TO APOLOGIZE TO THE

24  COURT FOR THAT.  I WAS UNAWARE OF IT.  I WILL GET BACK ON

25  THE PEOPLE IN MY OFFICE.  NOBODY BROUGHT THAT TO MY

26  ATTENTION.

27       THE COURT:  ARE YOU REPRESENTING LIBERTY LOBBY?  IF SO,

28  HOW DOES THAT WORK OUT?  THEY HAD THEIR OWN ATTORNEY.

page 1018



 1       MR. WAIER:  WE HAD COCOUNSEL, AND COCOUNSEL WAS MARK

 2  LANE FROM WASHINGTON.  WE ARE LOCAL COUNSEL FOR LIBERTY

 3  LOBBY IN THAT REGARD.  HE WAS APPROVED PRO HAC VICE.

 4       THE COURT:  I WAS WONDERING THE RELATIONSHIP.

 5  THROUGHOUT THE COURSE OF THIS TRIAL I SAW A REAL CONFLICT

 6  SITUATION.  I SUSPECT THAT’s WHY LIBERTY LOBBY HAD THEIR OWN

 7  ATTORNEY.  FURRS AND CARTOS ARE IN OPPOSITION TO EACH OTHER.

 8       MR. WAIER:  THEY ARE AND THEY ARE NOT IN SOME

 9  RESPECTS.  THE FURRS WERE DEFAULTED, SO THERE ARE

10  DIFFERENT — AS POINTED OUT IN THE PAPERWORK, THERE ARE

11  DIFFERENT CONSIDERATIONS WITH RESPECT TO THE PARTIES.

12       THE COURT:  PROCEDURAL THINGS.  YOU LOOK AT THE WHOLE

13  TRIAL.  THE FURRS TO DEFEND THEMSELVES HAVE TO SAY MR. CARTO

14  EXCEEDED HIS AUTHORITY AND DIDN'T TELL THEM WHAT WAS GOING

15  ON, AND MR. CARTO TO DEFEND HIMSELF HAS TO SAY THE FURRS

16  WERE GIVEN FULL KNOWLEDGE OF WHAT WAS GOING ON, AND THEY

17  MADE BAD DECISIONS, AND I WAS SIMPLY CARRYING OUT THEIR

18  WISHES.  THERE DEFINITELY WAS A CONFLICT.

19       MR. WAIER:  THE CONFLICT HAS TO COME FROM THE PLEADINGS

20  ITSELF, AND THAT’s WHAT WE POINTED OUT TO THIS COURT WHEN

21  THE COURT RENDERED ITS INTENDED DECISION, AS WELL AS THE

22  STATEMENT OF DECISION.

23       THE COURT:  THAT BRINGS US TO THE NEXT ISSUE.  THAT WAS

24  THE STATEMENT OF DECISION.  BEFORE WE BROKE, I SAID IT WAS

25  MY INTENTION TO SEND YOU A STATEMENT OF DECISION, AND THEN

26  YOU HAD 15 DAYS TO OBJECT TO IT.  IT WAS SENT OUT ON

27  NOVEMBER 14TH, I THINK.  THEN NOTHING HAPPENED UNTIL ABOUT

28  DECEMBER 27TH, WHICH IS A LOT LONGER THAN 15 DAYS.

page 1019



 1            I'M STILL GOING TO HEAR IT, BUT THAT WAS THE

 2  STATEMENT OF DECISION.  THE LETTER EXPLAINING WHY I SAW

 3  EVIDENCE IN A CERTAIN WAY OR DIDN'T SEE IT WAS JUST

 4  SOMETHING THAT I FELT THAT THE PARTIES SHOULD HAVE, EVEN

 5  THOUGH IT SOMETIMES CAUSES PROBLEMS TO DO IT.  THEY SPENT A

 6  LOT OF MONEY ON THE CASE WONDERING WHY DOES THE JUDGE DECIDE

 7  IT THE WAY HE’s DECIDING IT.  TO THE EXTENT THERE’s A

 8  CONFLICT BETWEEN WHAT I SAID AND THE STATEMENT EXPLAINING MY

 9  REASONING AND THE STATEMENT OF DECISION, OF COURSE THE

10  STATEMENT OF DECISION TAKES PRECEDENCE.

11            MR. WAIER, DO YOU HAVE ANYTHING YOU WANT TO TELL

12  ME OTHER THAN WHAT I NEED TO HAVE READ?

13       MR. WAIER:  WHAT I TRIED TO DO BECAUSE OF WHAT I

14  PERCEIVED AT LEAST IN REVIEW OF THE STATEMENT OF DECISION,

15  IN REVIEW OF THE JUDGMENT AND REVIEW OF OTHER THINGS, ALL

16  PARTIES IN ESSENCE ARE TREATED FROM ONE SIDE OF THE TABLE AS

17  BEING IN UNITY.  THAT’s WHY SEPARATE MOTIONS TO VACATE,

18  REOPEN AND SO FORTH WERE FILED WITH YOU FROM EACH INDIVIDUAL

19  PARTY.

20            AS I POINTED OUT IN THE PAPERWORK, BASED ON YOUR

21  LETTER OPINION AND BASED ON YOUR STATEMENT OF DECISION, IT

22  SEEMS THAT — SEEMS THAT THE ONLY LIABILITY WITH RESPECT TO

23  CERTAIN INDIVIDUALS WAS A JOINT AND SEVERAL LIABILITY

24  THEORY.

25            I WANT TO INDICATE ONE THING.  THE FURRS, AMONG

26  ALL OTHERS OF THE DEFENDANTS, ARE TO BE TREATED

27  DIFFERENTLY.  THEY'RE DEFAULTED PARTIES.  THE LEGION HAS TO

28  STAND ON IT’s LAURELS TO THE PLEADING — ITS COMPLAINT.

page 1020



 1            THE COURT INDICATED THAT IF THERE WAS ANY

 2  WRONGDOING ON THE PART OF THE FURRS, AS I POINTED OUT, IT

 3  WOULD HAVE BEEN THEY WERE GROSSLY NEGLIGENT, AND THAT THEY

 4  SHOULD HAVE DONE SOME DUE DILIGENCE OTHER THAN LISTENING, I

 5  ASSUME, OTHER THAN LISTENING TO MR. CARTO, ALTHOUGH THAT

 6  WASN'T CLEAR IN THE DISCUSSION IN BOTH THE LETTER OPINION

 7  AND STATEMENT OF DECISION.

 8            THERE’s NO AUTHORITY THEY HAVE TO GO FURTHER THAN

 9  TO GO TO WHAT THEY PERCEIVE AS A TRUSTED AGENT.  AND THE

10  ONLY EVIDENCE BEFORE YOU IS THEY DID EVERYTHING ALONG THOSE

11  LINES.  THEY LISTENED TO MR. CARTO.  THERE WAS NOTHING THAT

12  INDICATED THEY HAD TO DO ANYTHING DIFFERENTLY, NOR DOES THE

13  LAW REQUIRE THEM TO DO THAT.  MORE IMPORTANTLY, THERE IS NO

14  CLAIM AGAINST THE FURRS UNDER THE COMPLAINT FOR NEGLIGENCE,

15  AND THEY'RE A DEFAULTED PARTY.  THEY HAVE TO LIVE AND DIE BY

16  THE PLEADING.

17            THE FOURTH CAUSE OF ACTION IS DIRECTED TO ONE

18  PERSON AND ONE PERSON ONLY, AND THAT IS WILLIS CARTO.  THERE

19  IS NO DUTY ALLEGED AND SO FORTH THAT RAISES THE ISSUE OF

20  425.15 OF THE CODE OF CIVIL PROCEDURE.

21            IN MY PAPERWORK I ATTEMPTED TO GO THROUGH, AND I

22  TOOK GREAT PAINS TO GO THROUGH THE LEGISLATIVE HISTORY AND

23  COURT HISTORY IN CONNECTION WITH 425.15 AS IT RELATES TO THE

24  TORT REFORM ACT.  WHAT BOUNCES OUT OF THAT IS VERY CLEAR

25  WITH RESPECT TO FURRS.  THE PREPLEADING, NOT PLEADINGS — I

26  KNOW WHAT YOU INDICATED IN YOUR LETTER OPINION — THIS IS

27  PREPLEADING.  IT’s JURISDICTION.  THEY HAD TO FILE A

28  PREPLEADING VERIFIED COMPLAINT, AND THE REASON WHY THEY DID

page 1021



 1  IT IS SIMPLE WITH RESPECT TO THE OTHER PREPLEADING STATUTES

 2  425.14 AND ONE THREE WITH RESPECT TO PUNITIVE DAMAGES; ONE

 3  FOUR WITH RESPECT TO RELIGIOUS ORGANIZATIONS.  IT ALLOWS, AS

 4  THE INDICATED, IT ALLOWS A PARTY WHO HAVE BEEN SERVED,

 5  WHETHER THEY WANT TO ANSWER OR NOT A COMPLAINT, WHETHER THEY

 6  WANT TO GO FORWARD WITH ANY ISSUE, WHETHER THEY WANT TO

 7  SPEND THE MONEY OR TIME, AND LIKE BROUGHT UP IN THE BROWN

 8  CASE, WHICH I CITED TO YOU, WHICH DEALT WITH AN ANALOGOUS

 9  SECTION WHERE THERE’s A TIME LIMIT AND IT’s NOT COMPLIED

10  WITH, AND THERE WAS A TIME LIMIT, BEFORE YOU CAN FILE A

11  COMPLAINT YOU MUST HAVE A VERIFIED PETITION WITH AFFIDAVITS

12  AND A RULING BY THE COURT BEFORE YOU CAN FILE THE

13  COMPLAINT.  AS TO A DEFAULTED PARTY, IT IS A VOID EXERCISE

14  IF YOU DON'T DO IT.  SO AS TO THE FURRS, THERE’s NO QUESTION

15  THAT 425.15 NORMALLY APPLIES BUT MANDATES A DISMISSAL OF THE

16  COMPLAINT AND THE VACATION OF THE JUDGMENT AND DISMISSAL OF

17  THE COMPLAINT.  THAT I THINK IS CLEAR.

18            SECOND OF ALL, THERE IS NO CLAIM OF NEGLIGENCE IN

19  THE COMPLAINT.  DEFAULTED PARTY CAN RELY UPON THE PLEADING.

20  THAT’s WHAT THE WHOLE IDEA IS.  THEY WERE A DOE DEFENDANT,

21  AS YOU ARE AWARE, AND THEY HAD AN OPPORTUNITY PRIOR TO

22  JUDGMENT BEING ENTERED TO ATTEMPT TO AMEND THE COMPLAINT.

23  THEY HAD AN OPPORTUNITY TO FILE A MOTION WITH RESPECT TO

24  THAT AS TO A DEFAULTED PARTY.  IT HAS NO BEARING WHETHER

25  THEY COULD MOVE TO AMEND OR NOT.

26            THEY TOOK A DEFAULT ON WHAT THEY HAD AND DEFAULTED

27  THE FURRS.  SO AS TO THE FURRS, THERE SHOULD BE AS A MATTER

28  OF LAW A VACATION OF THE JUDGMENT AND A DISMISSAL OF THE

page 1022



 1  COMPLAINT.

 2            WITH RESPECT TO HENRY FISCHER, I WAS VERY, VERY

 3  THOROUGH WITH HENRY FISCHER’s MOTION, AS WELL AS IN THE

 4  COLLECTIVE REPLY BRIEFS.

 5            EVEN ASSUMING YOU FIND THAT 425.15 IS INAPPLICABLE

 6  TO MR. FISCHER, I JUST AS SOON YOU DO FOR THE MOMENT, IF YOU

 7  TAKE UNDER THE JOINT AND SEVERAL LIABILITY, WHICH IS THE

 8  ONLY AREA THAT YOU PINNED MR. FISCHER ON, AND SOMEHOW HE'S

 9  JOINTLY AND SEVERALLY LIABLE FOR THE CONVERSION CLAIM — I'M

10  NOT TALKING ABOUT THE TORT CLAIM.  I'M TALKING ABOUT THE

11  FACTS OF THE CASE.  TO DO THAT, TO SHOW HIM AS BEING JOINT

12  AND SEVERALLY LIABLE NOW WE CAN PRESENT TO THIS COURT — YOU

13  MUST SHOW BY EVIDENCE, AND I SUGGEST THERE WAS NONE, THAT HE

14  HAD KNOWLEDGE THAT MR. CARTO WAS INVOLVED IN ANY

15  WRONGDOING.  THERE WAS NO EVIDENCE THAT MR. FISCHER HAD

16  KNOWLEDGE THAT MR. CARTO WAS DOING ANYTHING FOR QUOTE, AN

17  UNLAWFUL PURPOSE.  WE POINTED THAT OUT IN THE POINTS AND

18  AUTHORITIES.  THAT IS A KEY ELEMENT FOR JOINT AND SEVERAL

19  LIABILITY WITH RESPECT TO CONVERSION OR ANY OTHER TORT.

20            SECOND, MR. FISCHER CAN'T BE HELD LIABLE UNDER A

21  NEGLIGENCE CLAIM BECAUSE HE WASN'T SUED FOR NEGLIGENCE.  THE

22  ONLY WAY THAT MR. FISCHER CAN BE HELD LIABLE IS UNDER A

23  JOINT AND SEVERAL LIABILITY THEORY.  AND I SUGGEST TO THIS

24  COURT, AND YOU CAN REVIEW YOUR NOTES — I WENT OVER ALL OF

25  MY NOTES.  IT’s NOT AS THOROUGH AS YOURSELF — THERE WAS NO

26  EVIDENCE, AS I POINTED OUT, WITH RESPECT TO MR. FISCHER.

27  THE ONLY THING HE DID WAS TO DO EXACTLY WHAT HE WAS SUPPOSED

28  TO.

page 1023



 1            IF YOU TAKE A LOOK AT THE PLEADINGS, THEY HAVE THE

 2  JUDICIAL ADMISSIONS.  HE WAS TO HELP TRANSFER FUNDS TO

 3  MR. ROCHAT.  THERE WAS NO EVIDENCE HE DID ANYTHING OTHER

 4  THAN THAT.  NONE BEFORE THIS COURT.  AND AS YOU KNOW, AN

 5  AGENT IS TO FOLLOW THE ORDERS OF HIS PRINCIPAL OR HE COULD

 6  HAVE BEEN HELD LIABLE, IF HE HADN'T DONE THAT.  BUT MORE

 7  IMPORTANTLY, AS I POINTED OUT, WHAT IS THE LAW IS THE LAW

 8  AND WHAT THE LAW SAYS AS TO MR. FISCHER --

 9       THE COURT:  ARE YOU SAYING MR. FISCHER IS SORT OF LIKE

10  A CLERK?

11       MR. WAIER:  EXACTLY.

12       THE COURT:  THEN WHY WAS HE, ACCORDING TO MR. CARTO,

13  PAID $250,000?

14       MR. WAIER:  IT’s INTERESTING.  YOU SAID THAT BECAUSE --

15  YOU DIDN'T EVEN ALLOW THAT AS AN OFFSET AS PART OF YOUR

16  STATEMENT IN DECISION.  YOU SAID THAT — THAT THERE WAS NO

17  PROOF OF CREDIBLE EVIDENCE IT WAS PAID.  IF THERE’s NO

18  CREDIBLE EVIDENCE IT WAS PAID, AND THAT’s YOUR EVIDENCE, AND

19  THAT’s WHAT YOU ARE TELLING US, THEN THERE’s NO EVIDENCE

20  THAT IT WAS EVER PAID, THEREFORE, THE ONLY EVIDENCE THAT YOU

21  HAVE THAT MR. FISCHER DID ANYTHING CAME OUT OF MR. Cartos’

22  OWN MOUTH.  THAT WAS THE FACT HE TRANSFERRED FUNDS TO OR HE

23  SAID EXPEDITED FUNDS TO MR. ROCHAT.

24            THERE WAS ALSO A POWER OF ATTORNEY.  WHAT DID THE

25  POWER OF ATTORNEY — WHAT YOU DID ADMIT INTO EVIDENCE STATED

26  HE WAS TO, PURSUANT TO WHAT LAVONNE FURR PUT IN THE POWER OF

27  ATTORNEY, YOU ARE TO EXPEDITE THE FUNDS TO MR. ROCHAT.

28  THAT’s ALL HE DID.  HE FOLLOWED EXACTLY WHAT HE WAS TOLD TO

page 1024



 1  DO.

 2            BUT THAT BEGS EVEN THE QUESTION.  THE QUESTION IS,

 3  DID HE HAVE ANY KNOWLEDGE THAT MR. CARTO WAS DOING ANY WRONG

 4  OR DOING ANYTHING FOR AN UNLAWFUL PURPOSE?  THERE WAS NO

 5  EVIDENCE THAT MR. FISCHER HAD ANY OF THAT KNOWLEDGE.  THERE

 6  WAS NO EVIDENCE THAT MR. FISCHER KNEW ANYTHING OTHER THAN

 7  WHAT WAS BEING TOLD TO HIM BY MR. CARTO OR MRS. CARTO OR

 8  ANYBODY ELSE.  HE WAS GIVEN THE POWER OF ATTORNEY.  HE DID

 9  WHAT HE WAS SUPPOSED TO HAVE DONE IN THAT CASE, YOUR HONOR.

10            AS I POINTED OUT IN OUR PAPERWORK TO YOU, TO BE

11  HELD LIABLE — THAT’s THE WYATT V. UNION MORTGAGE CASE, A

12  CALIFORNIA SUPREME COURT CASE, YOU MUST SHOW THAT THE

13  INDIVIDUAL DEFENDANT DID TWO THINGS TO BE HELD FOR JOINT AND

14  SEVERAL LIABILITY:  HE CONCURRED IN THE TORTIOUS SCHEME.  HE

15  HAD KNOWLEDGE OF THE UNLAWFUL PURPOSE.

16            THERE WAS NO EVIDENCE.  THEY HAD THE OPPORTUNITY

17  TO PUT ON EVIDENCE LIKE THAT.  THERE WAS NO EVIDENCE,

18  CIRCUMSTANTIAL, INFERENCEWISE, IMPLIED, ANYTHING, THAT

19  MR. FISCHER KNEW ANYTHING OF ANY UNLAWFUL PURPOSE OF

20  MR. CARTO, OR THAT HE CONFERRED OR CONCURRED IN SOME

21  TORTIOUS SCHEME.  THAT’s A CALIFORNIA SUPREME COURT CASE.

22            THE REASON WHY IT’s THERE LIKE THAT, YOUR HONOR,

23  IT’s SIMPLE, AND I THINK YOU PUT YOUR FINGER RIGHT ON TO

24  TOUCH IT, AND THAT IS THE FACT THAT THAT MEANS THAT THE

25  ATTORNEYS BACK IN LONDON COULD BE HELD FOR JOINT AND SEVERAL

26  LIABILITY.  MR. FOETISCH COULD BE HELD FOR JOINT AND SEVERAL

27  LIABILITY HAD THEY BEEN SUED.  MR. ROCHAT COULD HAVE BEEN,

28  AND ANY ATTORNEY WHO TOUCHED THAT MATTER OVER IN EUROPE

page 1025



 1  COULD HAVE BEEN, AND THE SETTLING PARTIES AND THEIR

 2  ATTORNEYS COULD POSSIBLY BE HELD UNDER THE OMNIBUS OR

 3  GENERAL TERM WITH JOINT AND SEVERAL LIABILITY.  AS THE

 4  PLAINTIFF WOULD LIKE YOU TO FOLLOW, EVEN SECRETARIES COULD

 5  BE.

 6            THAT ISN'T WHAT JOINT AND SEVERAL LIABILITY IS ALL

 7  ABOUT.  WHEN IT COMES TO A TORT, YOU MUST HAVE KNOWLEDGE OF

 8  AN UNLAWFUL PURPOSE.  THERE WAS NO EVIDENCE, AND THAT IS

 9  WHAT YOU HAVE HERE, NOT WHAT YOU CAN SUPPOSE OR NOT WHAT YOU

10  CAN GUESS AT.  IT’s WHAT COMES FROM THAT WITNESS STAND

11  THROUGH TESTIMONY AND THROUGH DOCUMENTS, AND YOU HAVE NONE

12  BEFORE YOU.  AND EVEN ASSUMING YOU FIND, AND YOU DID FIND

13  THAT THERE WAS NO CREDIBLE EVIDENCE THAT MR. FISCHER GOT

14  PAID ANYTHING, THAT’s WHY THERE WAS NO DEDUCTION OR OFFSET.

15       THE COURT:  I'M NOT SAYING HE DIDN'T GET PAID.  I'M

16  SAYING THAT IT WASN'T FOR THE PURPOSE OF TAKING THE MONEY

17  FROM WHERE IT WAS SUPPOSED TO GO — WHERE IT WAS TO WHERE IT

18  WAS SUPPOSED TO GO.

19       MR. WAIER:  THE EVIDENCE THAT YOU HAVE BEFORE YOU, YOUR

20  HONOR, IS THE FACT THAT THEY NEEDED A LIAISON IN EUROPE TO

21  INTERFACE WITH THE VARIOUS ATTORNEYS.  YOU ARE NOT DEALING

22  WITH ONE COUNTRY.  YOU ARE DEALING WITH ENGLAND,

23  SWITZERLAND.  YOU ARE DEALING WITH ITALY.  YOU ARE DEALING

24  WITH BANKS AND SO FORTH.  THEY NEED THE LIAISON OVER THERE.

25  THAT’s THE ONLY EVIDENCE BEFORE YOU, AND THE ONLY EVIDENCE

26  YOU HAVE IS THAT MR. FISCHER DID WHAT HE WAS COMMISSIONED TO

27  DO, AND HE WAS PAID FOR THAT.  AND ALL — NO, THE BEST

28  EVIDENCE WOULD HAVE BEEN SOME SORT OF DISTRIBUTION TO HIM.

page 1026



 1            WE DID MAKE OBJECTIONS DURING THE COURSE OF THE

 2  TRIAL AS TO THE BEST EVIDENCE.  MR. CARTO DID INDICATE THAT

 3  $250,000 WERE PAID TO MR. FISCHER, ASSUMING THAT THERE WAS

 4  NOTHING INDICATING THAT THAT WAS UNREASONABLE.  THERE WAS

 5  NOTHING INDICATING BY THE LEGION THAT MR. FISCHER DIDN'T DO

 6  WHAT HE WAS SUPPOSED TO HAVE DONE.  BUT MORE IMPORTANTLY,

 7  THERE WAS NO EVIDENCE THAT HE HAD A KNOWLEDGE THERE WAS ANY

 8  UNLAWFUL PURPOSE.

 9       THE COURT:  DOESN'T THE WHOLE DISCUSSION SORT OF GET

10  BACK TO THE TERRIBLE CONFLICT SITUATION?

11       MR. WAIER:  I'M NOT SURE IT DOES.  THE CONFLICT DOESN'T

12  ARISE UNLESS AT THE POINT IN TIME YOU CAN HAVE AN APPARENT

13  OR YOU CAN HAVE A REAL CONFLICT.  AND IN SOME RESPECTS, YES,

14  THERE MAY BE A CONFLICT WITH RESPECT TO MR. FISCHER.  THE

15  FURRS ARE A SEPARATE ENTITY.  THEY WERE DEFAULTED.  FISCHER

16  WAS NOT.  HE WAS DEFAULTED AND CAME BACK IN AND WAS — THE

17  DEFAULT WAS SET ASIDE.

18            BUT WITH RESPECT TO MR. FISCHER, THAT AND THE

19  REASON I WANT TO RAISE THE ISSUE — I CAN SEE WHERE THE

20  COURT IS COMING FROM.  YOU NEED TO SEPARATE YOURSELF AND

21  LOOK AT MR. FISCHER INDIVIDUALLY AS TO HOW THE COMPLAINT

22  RELATES TO HIM.

23            AS I POINTED OUT IN OUR PAPERWORK I LAID BARE ALL

24  OF THE ALLEGATIONS AGAINST MR. FISCHER, AND THOSE

25  ALLEGATIONS DON'T AMOUNT TO ANYTHING, AND THEY DIDN'T PROVE

26  UP THE ALLEGATION ITSELF WITH RESPECT TO MR. FISCHER.

27            MY POINT IS, YOUR HONOR, IT STILL DOESN'T GO TO

28  THE ELEMENT.  CONFLICT OR NO CONFLICT, IT DOESN'T GO TO THE

page 1027



 1  ELEMENTS THEY NEEDED TO PROVE THAT THEY DID NOT PROVE.  AND

 2  THAT IS KNOWLEDGE OF AN UNLAWFUL PURPOSE.

 3            AND THERE WAS NO TESTIMONY.  THERE WAS NO

 4  INDICATION, AND WHICH BRINGS ME TO AN INTERESTING QUESTION,

 5  A COUPLE OF INTERESTING QUESTIONS, WHICH LEAVES ME UP IN THE

 6  AIR BASED ON YOUR LETTER OPINION.

 7            FIRST OF ALL, WHO WAS THE LEGION IN 1985?  NOW WE

 8  RAISED ISSUES YOU DIDN'T NEED TO HAVE BOARD MEETINGS.  THAT

 9  WAS IN THE PAPERWORK.  MAJORITY OF DIRECTORS CAN MAKE

10  DECISIONS UNDER AN OSTENSIBLE AUTHORITY.  THAT’s CORPORATE

11  LAW, NONPROFIT CORPORATE LAW.

12            AS THIS COURT KNOWS, BASED ON THE EXHIBITS, THE

13  LEGION WAS ONLY ENTITLED IN 1985, '86, '87, '88, '89, '90,

14  '91 TO HAVE THREE DIRECTORS.  THAT’s ALL THEY WERE

15  AUTHORIZED TO DO.  WE DO KNOW THE EVIDENCE WAS UNREFUTED,

16  WAS ARGUED AGAINST THAT LEWIS AND LAVONNE FURR WERE

17  DIRECTORS.  THERE WERE TWO OR THREE OTHER DIRECTORS AT THAT

18  TIME.

19            IT’s QUESTIONABLE WHO THAT THIRD DIRECTOR WAS ALL

20  DURING THAT PERIOD OF TIME.  AND THE COURT DISBELIEVED

21  MR. CARTO; THAT MR. CARTO HAD SOME RIGHT TO APPOINT

22  DIRECTORS.  I'M NOT GOING TO QUARREL WITH THAT.  YOU HAVE --

23  YOU VIEWED THE EVIDENCE, AND THAT’s YOUR DECISION.  HOWEVER,

24  LEWIS AND LAVONNE FURR UNDER CORPORATE LAW HAVE THE RIGHT TO

25  MAKE, BECAUSE THEY'RE A MAJORITY, THEY DON'T NEED TO HAVE

26  MEETINGS WITH RESPECT TO CORPORATE POWERS, INCLUDING

27  ENTERING AGREEMENTS.  WE DON'T KNOW WHO THE DIRECTORS WERE.

28  THE THIRD DIRECTORS WERE — THE BURDEN OF PROOF IS ON THE

page 1028



 1  LEGION TO SHOW NO CORPORATE AUTHORITY.  THERE WAS NO

 2  EVIDENCE THAT LEWIS AND LAVONNE FURR DIDN'T HAVE CORPORATE

 3  AUTHORITY.  THEY DID.  THAT’s SUBMITTED BY BOTH SIDES.

 4            NOW SO WHO WAS THE LEGION?  IT WAS LEWIS AND

 5  LAVONNE FURR.  THAT WAS THE EVIDENCE, UNLESS THIS COURT CAN

 6  ENLIGHTEN ME AND MR. MUSSELMAN AS TO WHO ELSE WAS THE

 7  LEGION.

 8            WHO WERE THE FURRS TO GO TO?  WHO WAS MR. CARTO TO

 9  GO TO?  THAT WAS THE BURDEN ON THE LEGION.  IF THE LEGION

10  HAD OTHER DIRECTORS AT THAT POINT IN TIME, AND THE FURRS

11  DIDN'T HAVE AUTHORITY AS DIRECTORS, WHICH THEY NEVER ARGUED

12  THEY DIDN'T, IT WAS NEVER POINTED OUT OR BROUGHT OUT AT

13  TRIAL.  AND IN OTHER WORDS, THE QUESTION IS — THE

14  OVERRIDING QUESTION IS WHO WAS THE LEGION, AND WHO COULD

15  MAKE DECISIONS?

16            NOW IMPLIEDLY IN YOUR DECISION, YOUR HONOR, THE

17  FURRS DID HAVE AUTHORITY TO MAKE DECISIONS.  HOWEVER,

18  UNDER — BASED ON WHAT I CAN READ, READ THROUGH THE LINES,

19  YOU ARE SAYING THEY SHOULD HAVE WENT OUT AND ASKED OTHER

20  PEOPLE.  WELL, WHEN?  1985?  1986?  '87? '88 OR '89?  THEY

21  COMMISSIONED THE ONLY PERSON THEY BELIEVED HAD KNOWLEDGE.

22  WHO ELSE WERE THEY SUPPOSED TO GO OUT AND TALK ABOUT — TALK

23  TO?

24            THERE WAS NOBODY ELSE WITHIN THE LEGION.  SO THAT

25  BECOMES A REAL SERIOUS ISSUE.  THEY DID HAVE THE AUTHORITY

26  IN '85 TO MAKE AN AGREEMENT WITH MR. CARTO.  THEY HAD, AND I

27  WANT YOU TO LOOK BACK ON THAT EVIDENCE, BECAUSE IT'S

28  EXTREMELY IMPORTANT.

page 1029



 1       THE COURT:  YOU ARE TALKING ABOUT WHEN THEY SAID THAT

 2  MR. CARTO COULD TAKE THIS MONEY AND USE IT FOR OTHER GOODS,

 3  SERVICES?

 4       MR. WAIER:  COULD USE THE DISCRETION IN HOW TO DISBURSE

 5  IT.

 6       THE COURT:  WAIT A SECOND.  DOESN'T ALSO THE LAW IN

 7  THIS STATE REQUIRE THAT IF YOU ARE GOING TO DO THAT,

 8  NONPROFIT CORPORATION, YOU HAVE TO NOTIFY THE ATTORNEY

 9  GENERAL?

10       MR. WAIER:  YOUR HONOR, THAT IF IT — AND THIS GETS TO

11  MY — AND I KNEW YOU WERE GOING TO COME IN THAT, CORRECT, I

12  KNEW EXACTLY.  THAT’s WHY I WAS COMING TO THE SECOND ISSUE.

13            WHAT WAS THE CORPORATE OPPORTUNITY?  WHAT WAS THE

14  ASSET?  THAT DEALS WITH AN ASSET IN 1985, YOUR HONOR.  IT

15  WAS LEFT KIND OF VAGUE.  AND WHAT YOU SENT BACK TO US — AND

16  IT WAS LEFT VAGUE AT TRIAL.  WHAT WAS THE ASSET IN 1985?

17  WHAT WAS IT?  THERE WAS NO ASSET IN 1985.  THERE WAS A

18  QUOTE, CORPORATE OPPORTUNITY THAT YOU SAID, CORPORATE

19  OPPORTUNITY.

20            WHAT WAS THE OPPORTUNITY?  WHAT WAS THE

21  OPPORTUNITY IN 1985?  THERE WAS NO OPPORTUNITY IN 1985.  YOU

22  CAN'T CONSIDER A CORPORATE OPPORTUNITY TO GO OVERSEAS AND

23  FIGHT A WILL THAT LEFT YOU NOTHING OTHER THAN AS A RESIDUAL

24  BENEFICIARY, WHICH NOW WAS RENDERED MOOT BECAUSE THE PRIMARY

25  BENEFICIARY WAS STILL ALIVE WHEN SHE DIED.  IN OTHER WORDS,

26  YOU GOT TO LOOK AT THE TIME FRAME WHEN THIS TOOK PLACE.  IS

27  THAT CONSIDERED TO BE A CORPORATE OPPORTUNITY?  IS THAT WHAT

28  THE COURT WAS REFERRING TO IN THE LETTER OPINION AS THE

page 1030



 1  CORPORATE OPPORTUNITY?  WHAT EVIDENCE DO YOU — THE ONLY

 2  EVIDENCE THAT YOU HAD WAS AN ARGUMENT BY MR. BEUGELMANS THAT

 3  THE LEGION COULD HAVE HAD MONEY IN 1986 TO WAGE THIS BATTLE

 4  OVERSEAS ON A PRAYER.  REMEMBER, MR. MARCELLUS WASN'T IN THE

 5  LEGION IN 1986.  HE ADMITTED IT.  THE FURRS, WHO WERE THE

 6  LEGION AND THE ONLY ONES IN THE LEGION, SAID THEY DIDN'T

 7  HAVE THE MONEY TO DO IT.  THEY DIDN'T HAVE THE MONEY TO DO

 8  IT.

 9            WE DO HAVE A LAW IN CALIFORNIA THAT I POINTED OUT

10  AT THE TIME OF TRIAL, NOT POINTED OUT IN THE PAPERWORK, I

11  POINTED IT OUT IN THE CLOSING ARGUMENT, AND I DIDN'T WANT TO

12  BE REDUNDANT.  YOU HAVE TO AVOID SPECULATION AS A CORPORATE

13  NONPROFIT CORPORATE EXECUTIVE, DIRECTOR AND SO FORTH.  I

14  ARGUED THAT AD NAUSEAM.

15            MY POINT IS WHAT WAS THE CORPORATE OPPORTUNITY TO

16  GO OVERSEAS TO FIGHT A BATTLE OVERSEAS?  YOU SAID THERE WAS

17  A CORPORATE OPPORTUNITY.  I DON'T KNOW WHAT THAT CORPORATE

18  OPPORTUNITY WAS, AND THERE’s NO EVIDENCE OF THIS

19  OPPORTUNITY, ESPECIALLY WHEN THE PRIMARY BENEFICIARY IS

20  STILL ALIVE AND HAS THE ASSETS.  THERE WAS NO ASSET OF THE

21  LEGION.

22       THE COURT:  WE'RE STARTING TO REPEAT OURSELVES.

23       MR. WAIER:  I'M SORRY.  SO THAT LED INTO THAT ISSUE

24  WHAT IS THE CORPORATE OPPORTUNITY.  AND I DON'T THINK WE

25  REALLY HAVE A DEFINITION OF THAT.  BUT THIS IS VERY

26  INTERESTING.  AS I POINTED OUT IN CLOSING ARGUMENT, AND I

27  DON'T THINK IT WAS REALLY RESOLVED IN THE LETTER OPINION, IN

28  1990 THE COURT COULD VERY WELL SAY THERE WAS CORPORATE

page 1031



 1  ASSETS THERE BECAUSE THE CASE WAS SETTLED.  AND ASSUMING THE

 2  AMBIGUITIES AND THE DISTRIBUTION AGREEMENT WHERE THE LEGION

 3  WAS DEFINED AS CARTO AND THE LEGION — I INTERPRETED THAT'S

 4  THE LEGION.  I DON'T CARE.  THAT’s THE DEAL STRUCK.

 5            ASSUME THAT’s THE PREDICATE TO THE ASSET.  THIS IS

 6  IN 1990.  REMEMBER ALL THE OTHER EVENTS.  YOU ARE RIGHT,

 7  CARTO, FOR WORK TO BE DONE.  YOU CAN DISTRIBUTE IT.  IT'S

 8  PRIOR TO THE DISTRIBUTION AGREEMENT.  THAT’s THE EVIDENCE.

 9  WELL, YOUR HONOR, IT’s INTERESTING.  THAT’s WHY I SAID, HAVE

10  YOUR CAKE AND EAT IT TOO IN MY CLOSING ARGUMENT.  WHO HAD

11  THE AUTHORITY TO APPROVE OR RATIFY THE DISTRIBUTION

12  AGREEMENT THAT WOULD BE THE PREDICATE TO THE ASSET?  THAT'S

13  THE FURRS.  NOW IF YOU ARE SAYING THAT THE RED HERRING ABOUT

14  THE CORPORATE MEETINGS — THERE’s NO CORPORATE MEETING, AND

15  I TEND TO DISBELIEVE THIS, GREAT.  PUT ALL DUE WEIGHT TO

16  THAT.  HOWEVER, THEN THE DISTRIBUTION AGREEMENT WAS NEVER

17  RATIFIED, WAS NEVER SANCTIONED BY THE CORPORATION.  IF YOU

18  TAKE THAT ASPECT OF IT, THEN THERE WAS NO — NO ASSET

19  BECAUSE MR. CARTO NEVER HAD AUTHORITY TO ENTER INTO THAT ON

20  BEHALF OF THE LEGION BECAUSE YOU ARE CLAIMING THAT LEWIS AND

21  LAVONNE FURR HAD NO AUTHORITY, IF YOU VIEW IT IN THAT

22  LIGHT.

23            SO THAT’s WHERE I'M COMING BACK TO.  YOU CAN'T SAY

24  THEY CAME INTO AN AGREEMENT HERE.  YES, THEY CAN ENTER INTO

25  THIS AGREEMENT HERE, WHICH MAKES IT A CORPORATE ASSET.  THE

26  LEGION HAS TO SANCTION THIS DISTRIBUTION AGREEMENT.  THE

27  LEGION COULD HAVE SAID AT THAT TIME, MR. CARTO, YOU ARE

28  WRONG.  WE WANT 100 PERCENT.  I DON'T WANT YOU TO SETTLE

page 1032



 1  THAT CASE.  WE WANT 90 PERCENT.  WE DON'T WANT 45 PERCENT.

 2  BUT WHO WAS THE LEGION AGAIN?

 3       THE COURT:  YOU KEEP TALKING ABOUT THE ASSET.  PART OF

 4  YOUR ARGUMENT DURING THE COURSE OF TRIAL OR MR. Carto’s

 5  ARGUMENT WAS AT THE TIME MISS FARREL DIED SHE HAD ALREADY

 6  SET UP THIS NECA CORPORATION AND GIVEN HER MONEY TO NECA AND

 7  GIVEN THE NECA SHARES TO THE LEGION.  SO WE HAVE ALL THE

 8  CONFLICTING TYPE OF STATEMENTS BY YOU AND MR. CARTO AND

 9  MR. FISCHER AS TO WHETHER THIS IS AN ASSET OR NOT.

10            HIS ARGUMENT, WHEN HE GOES TO EUROPE, IS THAT I'M

11  NOT IN THE WILL.  THAT’s TRUE BECAUSE ALREADY I HAD RECEIVED

12  THIS MONEY.  THAT’s WHAT HE TESTIFIED TO.

13       MR. WAIER:  HE DIDN'T TESTIFY TO THAT.  WHAT HE

14  TESTIFIED TO, YOUR HONOR, AND LET’s GET BACK TO THE

15  TESTIMONY.  FIRST YOU LUMPED FISCHER WITH MR. CARTO.  I

16  DON'T THINK THAT’s FAIR.  THE EVIDENCE WASN'T THERE TO LINK

17  HIM IN OTHER THAN THE POINT OF THE FACT THAT HE WAS HIRED BY

18  MR. CARTO OVERSEAS PURSUANT TO A POWER OF ATTORNEY FOR WHICH

19  HE RECEIVED MONEY.  THAT’s THE ONLY EVIDENCE — I MEAN, WHAT

20  CAME FROM THAT WITNESS STAND.

21       THE COURT:  YOU DON'T THINK YOU CAN DRAW ANY INFERENCE

22  FROM THE FACT MR. CARTO SAYS HE GETS $250,000 THAT HE'S

23  ACTING AS SOMETHING MORE THAN A MERE SECRETARY OR CLERK OR

24  SOMETHING AND JUST DOING A MINISTERIAL-TYPE JOB?

25       MR. WAIER:  YOUR HONOR, I WILL SAY THIS.  OVER A 7-YEAR

26  PERIOD OF TIME THAT THIS ALL TRANSPIRED, OVER 7 YEARS, AND

27  IT WAS MORE THAN JUST MINISTERIAL THAT HE DID.  HE HAD TO

28  INTERFACE BETWEEN THE ATTORNEYS AND MR. ROCHAT AND WITH THE

page 1033



 1  BANK.  IT WAS MORE THAN JUST THAT.  WHAT WAS INDICATED IS

 2  THAT BECAUSE AN EXPENSIVE PROPOSITION WHEN YOU ARE LOOKING

 3  OVERSEAS — IT’s NOT SOMETHING LIKE YOU HAVE AN OFFICE NEXT

 4  DOOR AND THE OFFICE NEXT DOOR WILL BE USED AS EXPEDITER, AND

 5  THERE REALLY IS NO OTHER THAN WHAT MR. CARTO SAID, AND HE

 6  DID TESTIFY THAT WAS FOR THE WORK THAT WAS BEING DONE

 7  PURSUANT TO THE POWER OF ATTORNEY.

 8            YOU HAVE NOTHING THAT INDICATES THAT MR. FISCHER

 9  DID ANYTHING OTHER THAN WHAT HE WAS ASKED TO DO.  YOU DID

10  NOT HAVE ANYTHING INDICATING THAT HE TOOK MONEY FOR HIS

11  OWN.  MORE IMPORTANTLY, YOU DIDN'T HAVE KNOWLEDGE OF AN

12  UNLAWFUL PURPOSE.  THAT’s WHERE YOU DRAW AN INFERENCE.

13  WHERE IS THE UNLAWFUL PURPOSE THAT MR. FISCHER HAD KNOWLEDGE

14  OF?  HE DIDN'T HAVE ANY KNOWLEDGE OF IT.  HE DIDN'T KNOW

15  WHETHER IT WASN'T --

16       THE COURT:  WE'RE JUST REARGUING AND REDOING EVERYTHING

17  TWO AND THREE TIMES.

18            LET ME ASK A FEW QUESTIONS AND GO TO THE PLAINTIFF

19  ON THE 425.15 ISSUE.  YOU DID CITE ME A CASE THAT APPEARS TO

20  BE ON POINT, TWINE V. COMPTON SUPERMARKET, 1986 CASE, 179

21  CAL. APP. 3D 514, WHICH IS A DEFAULT CASE, SAYING THAT THEY

22  SHOULD HAVE FILED THE PAPERS BEFORE THEY FILED THE

23  COMPLAINT.  BUT FOR MR. FURR AND MRS. FURR TO BE WITHIN THAT

24  SECTION, THEY HAVE TO BE NONCOMPENSATED DIRECTORS.  WHERE IS

25  THE EVIDENCE THEY WERE NONCOMPENSATED?

26       MR. WAIER:  MR. CARTO TESTIFIED THEY WERE

27  UNCOMPENSATED.  IT WAS ADMITTED BY THE LEGION THEY WERE

28  UNCOMPENSATED.  THAT CAME OUT DIRECTLY IN TESTIMONY.  THERE

page 1034



 1  WAS NOTHING TO REFUTE THAT.

 2       THE COURT:  THEN WE KNOW IT APPLIES ONLY TO NEGLIGENT

 3  ACTIONS, SO IT WOULDN'T APPLY TO THE CONVERSION ACTION.

 4       MR. WAIER:  I DISAGREE THERE.  THE OTHER CASES UNDER

 5  THE OTHER SECTIONS DEALT WITH THAT.  I CAN PROVIDE THE COURT

 6  WITH SUPPLEMENTAL AUTHORITIES, IF YOU LIKE, TO SEE WHERE THE

 7  COURT SAID INTERPRETED NO CAUSE OF ACTION, AND THE OTHER

 8  CASE ITSELF TO INCLUDE CAUSES OF ACTION THAT RELATE TO

 9  NEGLIGENCE.

10            THE ONLY WAY ANY CONVERSION CLAIM COULD BE HIT TO

11  THE FURRS WOULD BE BECAUSE OF THEIR GROSS NEGLIGENCE BASED

12  ON WHAT YOU INDICATED, WHEN A CAUSE OF ACTION SPRINGS FROM

13  THEIR ACTIVITIES, VIS-A-VIS, NEGLIGENCE.  THAT’s WHAT YOU

14  INDICATED.  THEIR ONLY CRIME IS, QUOTE, THEY WERE GROSSLY

15  NEGLIGENT.

16            ALL OF THOSE CAUSES OF ACTION — AND THAT RELATES

17  BACK TO THE OTHER CASES THAT HAVE INTERPRETED THE TORT

18  REFORM ACT.  I DID NOT PROVIDE THOSE.  I DIDN'T ANTICIPATE

19  YOU WOULD INDICATE THAT.  I COULD PROVIDE THAT AUTHORITY IN

20  VERY SHORT ORDER, IF YOU LIKE THAT.  THE CALIFORNIA SUPREME

21  COURT AND COURT OF APPEAL HAVE INTERPRETED THAT WAY.

22       THE COURT:  LET ME GO TO THE PLAINTIFF, AND THEN I'LL

23  COME BACK TO YOU.

24            THE QUESTION TO THE PLAINTIFF WOULD BE THIS.  IS

25  THERE SOMETHING WRONG WITH THIS JUDGMENT?  IF SO, WHAT IS

26  IT?

27       MR. MUSSELMAN:  THE ONLY THING I CAN SEE IS THAT YOUR

28  HONOR SIGNED IT THREE DAYS BEFORE THE 10-DAY EXPIRATION

page 1035



 1  PERIOD FOR THEM TO OBJECT TO THE FORM OF THE JUDGMENT.  THEY

 2  HAVEN'T CITED ANY LAW SHOWING THAT’s A FATAL DEFECT, SO WE

 3  PROPOSE IN THE PAPERS IF YOUR HONOR FOUND ANY SUCH LAW THE

 4  JUDGMENT COULD BE VACATED AND REENTERED.  THEY CITED A LAW

 5  THAT SIMPLY DEALT WITH STATEMENT OF DECISION.  OTHER THAN

 6  THAT, THERE’s NOTHING WRONG WITH THE JUDGMENT.  THE

 7  JUDGEMENT SUPERSEDES ANY STATEMENT OF DECISION.  NO

 8  STATEMENT OF DECISION WAS REQUESTED.

 9            IN ANY CASE, SEVERAL OF THE PERSONS WHO ARE

10  SPEAKING THROUGH MR. WAIER ARE DEFAULTED AND DO NOT HAVE THE

11  RIGHT TO SEEK ANY TYPE OF RELIEF FROM THE COURT, UNLESS THEY

12  HAVE THE DEFAULT SET ASIDE.

13            THE FURRS DON'T HAVE THE RIGHT TO ARGUE ANYTHING.

14            ALSO, LIBERTY LOBBY AND VIBET DIDN'T FILE A MOTION

15  THAT’s SET BEFORE YOUR HONOR THIS MORNING.  THEY SHOULDN'T

16  BE ALLOWED TO ARGUE ANYTHING EITHER.  THEY FILED A NOTICE

17  THEY MIGHT IN THE FUTURE FILE A MOTION, BUT THEY DIDN'T IN

18  FACT FILE SUCH A MOTION.  SO LIBERTY LOBBY AND VIBET AND THE

19  FURRS SHOULDN'T BE HEARD TO ARGUE ANYTHING THIS MORNING.

20            HOWEVER, WE'RE PREPARED TO ADDRESS ANYTHING YOUR

21  HONOR WANTS ADDRESSED.  WE'RE NOT HERE TO REARGUE THE ENTIRE

22  TRIAL AGAIN.

23       THE COURT:  WHAT ABOUT THE NEGLIGENCE ACTION AGAINST

24  THE FURRS?  WERE THEY NOT LISTED IN THE NEGLIGENCE CAUSE OF

25  ACTION?

26       MR. MUSSELMAN:  CAN'T TELL YOU FROM MEMORY, BUT DURING

27  THE TRIAL WHERE THAT ISSUE CAME UP WE MADE CLEAR WE WERE

28  PURSUING THEM ON A CONSPIRACY TO CONVERT.  ANY ELECTION THAT

page 1036



 1  WE MADE — WAS MADE AT THAT TIME.  IT COULDN'T HAVE BEEN

 2  MUCH CLEARER.  THE RECORD SPEAKS FOR ITSELF.  SO WE THINK

 3  IT’s COMPLETELY IRRELEVANT WHETHER YOUR HONOR HAS HAD

 4  JURISDICTION OVER A NEGLIGENCE CLAIM AGAINST THEM OR NOT.

 5            ALSO THE EVIDENCE WILL SHOW THEY RECEIVED MONEY

 6  FROM THE DISTRIBUTIONS, SO WE DO DISAGREE WITH MR. WAIER'S

 7  CONTENTION THAT THE PLAINTIFFS STIPULATED THAT THEY WERE NOT

 8  PAID.  THAT’s NOT WHAT THE EVIDENCE SHOWS.

 9            ALSO BECAUSE YOUR HONOR DID NOT AWARD THE REQUEST

10  OF PUNITIVE DAMAGES, THERE’s NO CONSEQUENCE TO WHETHER A

11  JUDGMENT WAS ENTERED ON TORT OR NONTORT CLAIMS.  BUT ANY

12  CASE, WE DID ELECT TO ASSERT TORT CLAIMS.  THEIR ARGUMENT

13  UNDER 425.15 TO THE FURRS IS IRRELEVANT.  YOU ARE ALLOWED TO

14  ASSERT TORT CLAIMS.  YOU DON'T HAVE TO SEEK PERMISSION FROM

15  ANYONE FOR WRONGFUL DEATH OR ANYTHING ELSE.

16       THE COURT:  ANYTHING ELSE ON THE PLAINTIFF’s SIDE?

17       MR. MUSSELMAN:  ONLY IF YOU WANT SOMETHING ADDRESSED.

18  THE PAPERS SUFFICIENTLY SET FORTH EVERYTHING.

19       MR. WAIER:  THOSE LINES THEY WERE — FIRST OF ALL, LET

20  ME ADDRESS LIBERTY LOBBY AND VIBET UNDER 659.  THERE IS NO

21  FORMAL REQUIREMENT FOR POINTS AND AUTHORITIES, A FORMAL

22  MOTION OR OTHERWISE.  THE INTENTION TO MOVE FOR NEW TRIAL,

23  VACATE, SO FORTH IS CONSIDERED A MOTION.  PERIOD.  YOU DON'T

24  NEED TO DO ANYTHING FURTHER.  THAT GIVES YOU THE RIGHT TO

25  COME INTO THIS COURT AND ARGUE ANY POINT YOU WANT RAISED

26  WITHOUT SUPPLYING PAPERWORK.  AND YOU CAN RELY UPON THE

27  MINUTES OF THIS COURT FOR PURPOSES OF THAT ARGUMENT.

28            SECOND, WITH RESPECT TO THE FURRS, THEY ARE A

page 1037



 1  DEFAULTED PARTY.  THEY CAN BRING A MOTION TO VACATE

 2  JUDGMENT.  THAT WOULD BE CONSIDERED THE SAME AS A MOTION TO

 3  SET ASIDE JUDGMENT.  THAT WE DID PROVIDE AUTHORITY FOR

 4  THAT.  IF YOU VIEW THE CASE, WE — EVEN TWINE TALKS ABOUT

 5  THAT.  TWINE WAS A MOTION TO VACATE UNDER 65 — 657 — NOT

 6  TWINE.  THAT WAS THE BROWN CASE WAS UNDER 657.

 7            WHAT THE BROWN CASE SAID, WAS YEAH, DEFAULTED

 8  PARTY CAN BRING IT BY WAY OF MOTION TO VACATE THE JUDGMENT.

 9  IT’s THE SAME THING AS MOTION TO SET ASIDE THE JUDGMENT.

10       THE COURT:  I THINK YOU MAY HAVE THE WRONG CASE, BROWN

11  V. SUPERIOR COURT.

12       MR. WAIER:  THAT DEALT WITH THE TIME LIMIT TO BRING

13  CERTAIN ISSUES WITH RESPECT TO PUNITIVE DAMAGES, SAYING

14  THOSE SECTIONS WERE — THAT THOSE SECTIONS WERE

15  JURISDICTIONAL.  THE TIME LIMITS AND THE TORT REFORM ACTION

16  SECTIONS FROM 425.11 TO 425.16 IN ESSENCE INFERRED THEY WERE

17  JURISDICTIONAL.  THAT’s THE IMPORTANT ISSUE.  THAT’s WHY THE

18  FIRST.

19            AND IT’s VERY INTERESTING, YOUR HONOR, A NEGLIGENT

20  CLAIM WAS LODGED.  IT WAS A NEGLIGENT COMPLAINT.  THEY WERE

21  SUED AS A DOE DEFENDANT SIMILAR TO THE CASES WE REFERRED TO

22  IN THE PAPERWORK AS TO THE FURRS.  THEY WERE DEFAULTED.  AS

23  SUCH, THEY'RE ENTITLED TO RELY UPON THE PLEADING WITH

24  RESPECT THEY CAN'T GO AND NOW SEEK TO AMEND THE PLEADING ON

25  A DEFAULT PROVE-UP.  YOU CAN'T DO IT.  YOU LIVE OR DIE WHAT

26  IS THERE ON THE PLEADING.  NEGLIGENCE WAS SUED.  YOU CAN'T

27  PARE OUT THE COMPLAINT, SAY, WE CAN PARE OUT THE COMPLAINT

28  BEFORE A COMPLAINT IS FILED WITH A CAUSE OF ACTION FOR

page 1038



 1  NEGLIGENCE.  IT DOESN'T MEAN IT’s THE SOLE CAUSE OF ACTION.

 2  WITH THE CAUSE OF ACTION FOR NEGLIGENCE YOU MUST FOLLOW THE

 3  PREPLEADING REQUIREMENTS OF 425.15.

 4            THIS COURT FOUND THAT THE FURRS — AND THAT’s WHY

 5  I'M SAYING THE ISSUE OF WHETHER YOU FOUND FOR NEGLIGENCE OR

 6  DIDN'T FIND FOR NEGLIGENCE IS IRRELEVANT AS TO THE FURRS

 7  EXCEPT TO THE EXTENT THAT THAT WAS THEIR ONLY CRIME,

 8  ACCORDING TO YOU, YOUR HONOR, WAS THE FACT THAT THEY SHOULD

 9  HAVE DONE MORE DUE DILIGENCE.

10       THE COURT:  NO.  NO.  I THINK YOU MISINTERPRETED.  I

11  FELT THEY HAD, ALONG WITH MR. CARTO, CONVERTED THE MONEY.

12       MR. WAIER:  HOW?  THERE WAS NO EVIDENCE THEY OBTAINED

13  ANYTHING.  I WOULD LIKE TO KNOW THE EVIDENCE WHERE THEY

14  OBTAINED ANYTHING.

15       THE COURT:  THIS GETS US BACK INTO ARGUING THE EVIDENCE

16  THAT WAS PRESENTED TO ME.  IF I'M WRONG AND THERE’s NOT

17  SUBSTANTIAL EVIDENCE TO SUSTAIN MY BELIEF THAT THEY

18  CONVERTED THIS MONEY, THEN OF COURSE IT SHOULD BE REVERSED.

19       MR. WAIER:  YOUR HONOR, I CAN READ FROM YOUR OWN — NOT

20  ONLY STATEMENT OF DECISION BUT LETTER OPINION WHERE YOU

21  VIEWED THE EVIDENCE AND WHERE YOU SAID THE ONLY THING THAT

22  THEY WERE GUILTY OF WAS RECKLESS CONDUCT IN FAILURE TO ASK

23  WHETHER YOU CAN TAKE A CONTINGENCY CASE.  THERE WAS NOTHING

24  INDICATED IN THE LETTER OPINION AS TO ANY EVIDENCE THEY

25  OBTAINED ANYTHING, WHICH THERE WAS NONE AT THE TIME OF

26  TRIAL.  ALL THEY EVER DID WAS DO MINUTES, AND YOU SAID AT

27  THE BEHEST OF MR. CARTO.  YOU SAID MR. CARTO IN SOME CASES

28  PREPARED THE MINUTES, AND THEY SIGNED IT BLINDLY,

page 1039



 1  UNWITTINGLY FOLLOWED MR. CARTO.  THAT’s THE ONLY THING YOU

 2  INDICATED IN YOUR LETTER OPINION AS YOU SAW THE EVIDENCE.

 3            THERE WAS NO EVIDENCE THAT THEY WERE — THAT THEY

 4  RECEIVED ANYTHING, OR THAT THEY CONFISCATED ANYTHING, OR

 5  THEY DID ANYTHING OR HAD KNOWLEDGE OF AN UNLAWFUL PURPOSE.

 6  I'M USING YOUR OWN LETTER OPINION, HOW YOU VIEWED THE

 7  EVIDENCE.

 8       THE COURT:  KEEP IN MIND THE LETTER OPINION WAS NOT

 9  DISPOSITIVE OF ALL CAUSES OF ACTION AND EVERY LITTLE BIT OF

10  EVIDENCE EITHER.  IT WAS SIMPLY AN ATTEMPT TO BROAD BRUSH AN

11  OUTLINE, TELL YOU HOW I SAW THE EVIDENCE.

12       MR. WAIER:  MY POINT IS WITH RESPECT TO THE FURRS, AND

13  I STILL DON'T KNOW OF ANY EVENTS, AND THEY HAVEN'T POINTED

14  OUT ANY EVIDENCE — BY THE WAY, THEY WERE LATE IN FILING THE

15  PAPERWORK.  IT WAS FILED ON JANUARY 8TH AND THE COURT, IF

16  YOU ARE GOING TO TALK ABOUT FILING REQUIREMENTS, WE FILED

17  EVERYTHING ON TIME.  THEIR FILING REQUIREMENTS IS THAT THEY

18  HAD 7 DAYS WITHIN TO — WHICH TO DO IT.  THEY DID IT IN 5

19  DAYS, NOTWITHSTANDING THE FURRS.  THEY NEVER DID THE

20  PREPLEADING REQUIREMENTS OF 425.15.  YOU CAN'T SEPARATE ONE

21  CAUSE OF ACTION.  IT SAYS A COMPLAINT WITH A CAUSE OF

22  ACTION.  YOU CAN'T ALL OF A SUDDEN SEPARATE THAT OUT.  YOU

23  CAN'T DO IT.  THEY WERE DEFAULTED ON THE COMPLAINT AS IT

24  STANDS, AND YOU JUST CAN'T DO IT, AND THAT’s WITH THE

25  FURRS.  THEY SHOULD BE OUT WITH RESPECT TO MR. FISCHER.

26       THE COURT:  COUNSEL, YOU KEEP TELLING ME THE LAW IS ONE

27  THING, AND I READ THE SECTION.  YOU SAY IT SAYS THE

28  COMPLAINT.  IT DOESN'T SAY IT.  IF YOU READ 425.15 IT SAYS:

page 1040



 1            NO CAUSE OF ACTION AGAINST A PERSON SERVING

 2  WITHOUT COMPENSATION AS A DIRECTOR OR OFFICER OF THE

 3  NONPROFIT CORPORATION DESCRIBED IN THE SECTION ON ACCOUNT OF

 4  ANY NEGLIGENT ACT OR OMISSION.

 5            IT DOESN'T SAY A COMPLAINT AND THEN ONE OF THE

 6  CAUSES OF ACTION IS NEGLIGENCE.

 7       MR. WAIER:  IT SAYS ON ACCOUNT OF NEGLIGENCE.  THAT'S

 8  WHAT THEY WERE SUED WITH ON THE ACCOUNT OF NEGLIGENCE. THEY

 9  DIDN'T FOLLOW THROUGH, AND THEY WERE SUED FOR NEGLIGENCE.

10            THE POINT YOU HAVE IS THAT WE RAISED THAT ISSUE

11  AND THE OTHER CASES HAVE INTERPRETED COMPLAINT.  IT HAD A

12  NUMBER OF CAUSES OF ACTION, INCLUDING NEGLIGENCE.  AND WHAT

13  THE COURTS HAVE SAID, THERE WAS ON ACCOUNT OF NEGLIGENCE.

14  IT’s NOT JUST A CAUSE OF ACTION BUT A CAUSE OF ACTION ON

15  ACCOUNT OF NEGLIGENCE.

16            WHAT YOU INDICATED IN THE LETTER OPINION, NOT ONLY

17  IS THERE A NEGLIGENCE CLAIM IN THE COMPLAINT, BUT AS ON AN

18  ACCOUNT OF THAT NEGLIGENCE I ASK YOU TO GO BACK AND LOOK AT

19  THE COMPLAINT.  YOU WON'T FIND THE FURRS MENTIONED ANYWHERE

20  IN THE COMPLAINT.  YOU WON'T FIND THEM IN THE SPECIFIC

21  ALLEGATIONS WHERE THEY DID ANYTHING.  THEY'RE LIMITED TO THE

22  PROOF AS TO THE COMPLAINT.  THE COMPLAINT FRAMES THE ACTIONS

23  AGAINST THE FURRS.  THAT’s A PROBLEM WITH THE DEFAULTED

24  PARTY.  I CAN UNDERSTAND IF IN FACT THEY WEREN'T A DEFAULTED

25  PARTY.  I CAN UNDERSTAND YOUR CONCERNS THERE, BUT THEY WERE

26  A DEFAULTED PARTY, AND THEY ARE ENTITLED TO RELY ON THAT

27  PLEADING FOR HOW WEAK IT MAY BE.

28       THE COURT:  YOU ARE SAYING IN THE COMPLAINT THERE'S

page 1041



 1  NOTHING SAYING THAT THE FURRS DID ANYTHING WRONG?

 2       MR. WAIER:  EXACTLY.  READ IT.

 3       MR. MUSSELMAN:  WELL, THEY WERE DOES AT THE TIME.

 4  OBVIOUSLY IT DOESN'T USE THEIR NAME.

 5       MR. WAIER:  READ IT.  READ THE OPERATIVE FACTS, AND YOU

 6  WILL SEE.  IF IN FACT THERE WAS ANYTHING YOU WILL SEE THAT

 7  THERE IS NO CHARGING ALLEGATIONS AGAINST THE FURRS EITHER

 8  SPECIFICALLY OR IN THE GENERIC SENSE, NOT ONLY THAT THEY

 9  WERE SUED FOR NEGLIGENCE AND THEY HAD AN OPPORTUNITY BEFORE

10  THAT COMPLAINT COULD BE FILED.  AND THAT’s WHAT THE CASES

11  TALK ABOUT, COMPLAINTS BEING FILED.  THAT’s ALL YOU CAN FILE

12  WHETHER YOU HAVE ONE CAUSE OF ACTION OR 10.  BEFORE THAT CAN

13  BE FILED, YOU HAVE TO GO THROUGH A PREPLEADING PROCEDURE,

14  INCLUDING VERIFIED.  AND IT WASN'T A VERIFIED COMPLAINT BY

15  THE WAY.  IT WAS AN UNVERIFIED COMPLAINT.  THEY DON'T GET

16  AROUND FOR — WHAT I'M SAYING IS THERE’s SOME WAY YOU WANTED

17  TO SAY THEY FILED A VERIFIED COMPLAINT.  MY POINT IS, YOUR

18  HONOR, A COMPLAINT — BEFORE A COMPLAINT CAN BE FILED,

19  BEFORE IT THE CAUSE OF ACTION — THE CAUSE OF ACTION ONLY

20  FINDS THE BASIS ON THE THING CALLED A COMPLAINT BEFORE THAT

21  CAN BE FILED, AND THAT’s WHAT WAS FILED.  THEY WERE NAMED AS

22  A DOE.  THAT’s WHAT WAS FILED BEFORE THAT CAN BE FILED.

23  THAT’s THE DOCUMENT.  IT HAS TO GO THROUGH THE PREPLEADING

24  REQUIREMENT, WHICH WAS NOT DONE.

25            MY POINT IS, YOUR HONOR, THEY'RE ENTITLED BECAUSE

26  OF IT, BECAUSE IT WAS A CAUSE OF ACTION WITHIN THAT

27  COMPLAINT.  EVEN IF YOU NARROW IT DOWN TO SAY, WELL, THERE

28  WAS A NEGLIGENCE CLAIM, BUT I THINK WHAT I'M HEARING MAYBE

page 1042



 1  WE CAN SEPARATE THAT NEGLIGENCE CLAIM OUT AND GIVE THEM A --

 2  VACATE THE JUDGMENT AS TO THE NEGLIGENCE AND DISMISSAL OF

 3  THE COMPLAINT TO THAT.  YOU CAN'T DO THAT BECAUSE THAT’s NOT

 4  WHAT THE PREPLEADING REQUIREMENT REQUIRED.  IT REQUIRED THEM

 5  TO GO IN TO JUSTIFY THE ENTIRE DOCUMENT THAT THEY SOUGHT TO

 6  BE FILED.

 7       THE COURT:  YOU SAY YOU HAVE A CASE THAT SUPPORTS THAT

 8  PROPOSITION?

 9       MR. WAIER:  YES.

10       THE COURT:  AS TO 425.15?

11       MR. WAIER:  NO, THE OTHER SECTIONS OF THE TORT REFORM

12  ACT.  AS THIS COURT KNOWS, THEY WERE UNDER ROWE V. — ROWE

13  V. SUPERIOR COURT.  THE SUPREME COURT INTERPRETED ALL THE

14  SECTIONS TOGETHER.  IN FACT, SAID, LOOK IN ANALOGOUS

15  SITUATION AND CITED 425.15 AS PART AND PARCEL OF THAT TORT

16  REFORM ACT.

17       THE COURT:  MAYBE I SHOULD READ ROWE AGAIN.  ROWE IS A

18  CASE IN WHICH THEY TRIED TO AMEND THE COMPLAINT AND WITHOUT

19  FILING THE CERTIFICATE, AND THEY SAID, NO.

20       MR. WAIER:  THAT’s CORRECT.  YOU OUGHT TO READ IT.

21  THEY DISCUSSED 425.15 AS A PREPLEADING REQUIREMENT.

22       THE COURT:  I DON'T WANT TO CUT YOU OFF.  I THINK YOU

23  ARE STARTING TO PLOW THE GROUND TWO AND THREE TIMES.

24       MR. WAIER:  NOW ONE OTHER THING THAT I DIDN'T PUT IN

25  THE PAPERWORK — THIS IS LIBERTY LOBBY.  I WANT YOU TO

26  INDICATE THIS, AND I THINK THIS IS VERY IMPORTANT, WHICH

27  WOULD REQUIRE REVERSIBLE ERROR, ACCORDING TO THE LETTER

28  OPINION AND ACCORDING TO YOUR STATEMENT OF DECISION.

page 1043



 1            AND LET’s LOOK TO LIBERTY LOBBY.  AT THIS JUNCTURE

 2  I'M GOING TO LEAD MY ARGUMENTS TO LIBERTY LOBBY.  TO FIND

 3  LIBERTY LOBBY JOINTLY AND SEVERALLY LIABLE, YOU COULD NOT

 4  FIND THEM FOR 2.6 MILLION.  I ASSUME YOU FOUND 2.6 MILLION

 5  DAMAGES AGAINST LIBERTY LOBBY BECAUSE OF PROMISSORY NOTES

 6  WHICH, BY THE WAY, NEVER GOT IN EVIDENCE.  YOU DON'T HAVE

 7  ANY EVIDENCE BEFORE YOU OTHER THAN SOMEBODY’s TESTIMONY THAT

 8  THERE WERE PROMISSORY NOTES.  YOU DON'T HAVE THE AMOUNT OF

 9  THE PROMISSORY NOTES.  IT NEVER GOT INTO THE EVIDENCE.  THEY

10  NEVER REQUESTED IT INTO EVIDENCE.  JUDGMENT ENTERED.  IT'S

11  OUT.

12            THE BEST EVIDENCE WERE THE PROMISSORY NOTES THAT

13  WERE I.D.'D BUT NEVER ADMITTED, AND I THINK THAT WAS

14  EXHIBIT — I CAN'T TELL YOU OFFHAND, EITHER 50, 60 OR 70'S.

15  THEY NEVER ASKED FOR IT.  IT NEVER GOT IN.

16       THE COURT:  SO.

17       MR. WAIER:  MY POINT IS, YOUR HONOR, THE ONLY ISSUE

18  THERE IS NO COMPLAINT AGAINST LIBERTY LOBBY FOR BREACH OF A

19  PROMISSORY NOTE OR FOR ANTICIPATORY REPUDIATION OF THE

20  PROMISSORY NOTES.  THAT’s WHAT CAME UP AS TO LIBERTY LOBBY.

21  THEY RECEIVED SOME INCOME.

22            NOW WITH RESPECT AS A RESULT AND HAD MADE

23  PROMISSORY NOTES, THE CLAIM AS I INDICATED CAME FROM VIBET.

24  THAT’s WHO THE PROMISSORY NOTES — THAT WAS THE BENEFACTOR

25  OF THE PROMISSORY NOTES, VIBET, INC.  NOW THERE’s NO CLAIM

26  BY VIBET FOR IT.  VIBET ISN'T A PARTY TO THE LAWSUIT EXCEPT

27  AS A DEFENDANT.

28            GETTING BACK TO THE MORE IMPORTANT ISSUE IN YOUR

page 1044



 1  LETTER OPINION, WHICH DOES GIVE SOME GUIDANCE, AND THE

 2  APPELLATE COURTS WILL LOOK AT THAT LETTER OF OPINION AS TO

 3  SOME GUIDANCE IF THERE’s AMBIGUITIES IN THE BRIEF. I THINK

 4  THE STATEMENT OF DECISION — AND NOT TO BE HYPERCRITICAL OF

 5  IT, BUT I THINK IT DID LACK IN ULTIMATE FACT DETERMINATION.

 6  SO IT WILL PROBABLY LOOK — IN MY OPINION IT WOULD LOOK TO

 7  THAT LETTER OPINION THAT YOU RAISED OR THAT YOU SENT US IN

 8  CONNECTION WITH MAYBE INTERPRETING YOUR JUDGMENT.

 9            THE ISSUE IS ONLY ONE WITH RESPECT TO LIBERTY

10  LOBBY.  YOU INDICATE UNDER THE CONVERSION CLAIM THAT IT’s --

11  AND YOU FOUND AGAINST LIBERTY LOBBY FOR CONVERSION.  THE

12  ONLY DAMAGES ARE 2.6 MILLION.  THAT RUNS COUNTER TO THE

13  DETERMINATION OF JOINT AND SEVERAL LIABILITY.  YOU CANNOT BE

14  JOINTLY AND SEVERALLY LIABLE FOR A LESS AMOUNT OR AN UNEQUAL

15  AMOUNT THAN THE OTHER JOINT TORT-FEASORS; BUT YOU FOUND THAT

16  IT WAS.  THEREFORE YOU COULDN'T HAVE FOUND JOINT AND SEVERAL

17  LIABILITY, IF YOU FOUND THAT THE ONLY FACTOR WITH RESPECT TO

18  LIBERTY LOBBY IS 2.6 MILLION.  THAT’s THE LAW.  I HATE TO

19  SAY THAT’s THE LAW, BUT THAT IS THE LAW UNDER JOINT AND

20  SEVERAL LIABILITY.  YOU COULDN'T HAVE FOUND ONLY 2.6 MILLION

21  AGAINST LIBERTY LOBBY.  THEREFORE THE JUDGMENT AS FRAMED IS

22  WRONG BECAUSE THE ONLY WAY LIBERTY LOBBY COULD BE HELD

23  ACCOUNTABLE UNDER THE CONVERSION CLAIM BASED ON THE

24  ALLEGATIONS IS JOINT AND SEVERAL LIABILITY.

25            YOU CAN'T BE JOINTLY AND SEVERALLY LIABLE THAN THE

26  OTHER JOINT TORT-FEASORS UNDER THE LAW.

27       THE COURT:  ANYTHING NEW OR DIFFERENT?

28       MR. WAIER:  THAT’s NEW AND DIFFERENT.  THAT WAS NOT AN

page 1045



 1  ISSUE RAISED.

 2            AND AGAIN, WITH RESPECT TO LIBERTY LOBBY, AGAIN, I

 3  WOULD ASK THIS COURT THAT THERE’s NOTHING IN THE PLEADINGS

 4  TO INDICATE ANY CULPABILITY AS TO LIBERTY LOBBY AS TO A

 5  JOINT TORT-FEASOR.  I'M NOT SURE HOW IT COMES UNDER A JOINT

 6  TORT-FEASOR, A CORPORATION BEING UNDER A JOINT TORT-FEASOR.

 7  THEY MAY BE A CONSTRUCTIVE TRUSTEE.  THAT’s NOT ALLEGED.

 8  I'M NOT SURE THE EVIDENCE IS THERE WITH RESPECT TO

 9  CONVERSION THAT LIBERTY LOBBY HAD ANY KNOWLEDGE OF AN

10  UNLAWFUL PURPOSE.  I DON'T KNOW WHO, HOW OR WHAT LIBERTY

11  LOBBY DID WITH RESPECT TO THAT.

12       THE COURT:  MR. CARTO WAS THE TREASURER, WAS HE NOT, AT

13  LIBERTY LOBBY?  AND YOU ARE TELLING ME YOU DON'T KNOW.

14       MR. WAIER:  WAIT A SECOND.  THERE’s A BIG DIFFERENCE

15  NOW.  YOU HAVE TO GET INTO A WHOLE BAILIWICK AS TO WHAT

16  CONSIDERS TO BE CONSTRUCTIVE NOTICE OR NEGLIGENCE.  DOES THE

17  TREASURER ALONE, WHO IS NOT A DIRECTOR, CONSTITUTE CORPORATE

18  KNOWLEDGE?  NO.  I DON'T THINK SO.  IT HAS TO BE ONE OF THE

19  DIRECTORS.  AND IN OTHER WORDS, YOU CAN BE A SECRETARY OR A

20  TREASURER TO A CORPORATION, AND YOU MAY HAVE KNOWLEDGE OF

21  CERTAIN THINGS, WHICH IS NOT IMPUTED TO THE DIRECTORS.  SO

22  I'M INDICATING WITH RESPECT TO LIBERTY LOBBY I THINK THE

23  JUDGMENT AS TO LIBERTY LOBBY IS TOTALLY INCORRECT.  YOU

24  CAN'T BE HELD ACCOUNTABLE FOR CONVERSION OR FOR NEGLIGENCE.

25  THEY WEREN'T LISTED.

26            AND THEN I REALLY URGE THIS COURT TO REVIEW THE

27  COMPLAINT BECAUSE I DID, AND YOU WILL SEE THAT THERE ARE

28  ONLY CERTAIN CAUSES OF ACTION THAT EVEN A DOE DEFENDANT

page 1046



 1  COULD BE INCLUDED UNDER.  THERE’s NO NEGLIGENCE CLAIM,

 2  THEREFORE, THE JUDGMENT AGAINST LIBERTY LOBBY FOR NEGLIGENCE

 3  OR FISCHER OR ANY OF THE OTHERS OR ELISABETH CARTO — LOOK

 4  AT ELISABETH CARTO.  YOU CAN'T BE HELD ACCOUNTABLE FOR

 5  SOMETHING YOU ARE A STRANGER TO A CAUSE OF ACTION.  YOU ARE

 6  A STRANGER TO.  THERE’s BEEN NO MOTION TO AMEND PRIOR TO

 7  JUDGMENT.  IF THERE WAS, WE WOULD HAVE THE OPPORTUNITY AT

 8  THAT POINT IN TIME.  WE'RE ENTITLED TO PUT ON A DEFENSE

 9  CONSISTENT WITH THE ALLEGATIONS OF THAT COMPLAINT BECAUSE

10  THE COMPLAINT FRAMES THE ACTION.  THAT’s THE LAW.  AND THEY

11  DIDN'T DO IT.  WE CAN'T BE HELD ACCOUNTABLE FOR THEIR

12  FAILURES OR OMISSIONS.

13            LET ME CHECK MY NOTES.  GO TO THE INJUNCTIVE

14  RELIEF, YOUR HONOR.  THAT’s MY LAST AREA.  YOU AWARDED

15  INJUNCTIVE RELIEF ON WHAT I CONSIDERED TO BE NO EVIDENCE.

16  THERE WAS NO EVIDENCE BEFORE YOU THAT I SAW FOR THE — FROM

17  THE WITNESS STAND.  LEWIS AND LAVONNE FURR, HENRY FISCHER,

18  THAT LIBERTY LOBBY, THAT EVEN WILLIS CARTO WAS OUT THERE NOW

19  SAYING HE’s THE LEGION.  YOU HAD NOTHING THERE.

20            SECOND OF ALL, WITH RESPECT TO THE CORPORATE SEAL

21  AND WITH RESPECT TO THAT, THE ONLY EVIDENCE YOU HAD IS THAT,

22  ANY OF THAT, IS WITH THE COSTA MESA POLICE DEPARTMENT.  IF

23  IN FACT IT EXISTS, IF YOU TAKE A LOOK AT THE INJUNCTIVE

24  RELIEF, THERE WAS NO EVIDENCE TO WARRANT THAT.  NONE.  IN

25  FACT, SO MUCH SO IT WASN'T EVEN ARGUED BY EITHER SIDE AT THE

26  TIME OF A FINAL ARGUMENT.  THE FIRST TIME WE SEE INJUNCTIVE

27  RELIEF IS NOT THROUGH THE STATEMENT OF DECISION OR THROUGH

28  THE LETTER OPINION.  IT COMES WHEN THE JUDGMENT IS HANDED TO

page 1047



 1  YOU, WHICH WE NEVER HAD AN OPPORTUNITY TO OBJECT TO.

 2       THE COURT:  YOU KNEW ABOUT THE INJUNCTIVE RELIEF.  I

 3  CITED A CASE TO YOU ON THAT.  YOU KNEW IT WAS COMING.

 4       MR. WAIER:  NO.  WHAT I'M SAYING WITH RESPECT TO THERE

 5  WAS NO EVIDENCE WITH RESPECT BEFORE YOU.  WITH RESPECT TO

 6  INJUNCTIVE RELIEF, WHEN YOU LOOK AT THE RELIEF REQUESTED --

 7  THAT’s WHAT I AM ASKING YOU TO DO.  LOOK AT YOUR NOTES.

 8  REMEMBER, APART FROM THE FARREL ESTATE, THERE WAS WHAT WAS

 9  REQUESTED IS THAT MR. — ALTHOUGH YOU SAID IT SHOULD NOT

10  HAVE ANY BEARING ON THE TEXAS ACTION — YOU INDICATED THAT

11  BOTH ON THE RECORD AND IN YOUR LETTER OPINION — BUT IF YOU

12  TAKE A LOOK AT THE REQUESTED RELIEF, THERE WAS NO EVIDENCE

13  JUSTIFYING THAT REQUESTED RELIEF WITH RESPECT TO WHAT YOU

14  SIGNED AS YOUR JUDGMENT.  THAT’s ALL I'M ASKING YOU TO LOOK

15  AT, THE BROAD BRUSH RELIEF THEY GOT WITH NO EVIDENCE.  THEY

16  AT LEAST HAVE A PREPONDERANCE OF EVIDENCE WITH RESPECT TO

17  THAT INJUNCTION.

18       THE COURT:  SOME NEW THINGS HAVE BEEN BROUGHT UP.

19       MR. MUSSELMAN:  THE EVIDENCE EXISTS ABOUT THE GEMS,

20  YOUR HONOR, IN THE HOOPER LETTER, IF YOU ARE LOOKING FOR THE

21  REFERENCE TO WHAT YOUR HONOR HAS ORDERED THEM TO ACCOUNT

22  FOR.

23            AS FAR AS LIBERTY LOBBY GOES, OBVIOUSLY YOUR HONOR

24  IS ENTITLED TO DETERMINE THAT A PARTICULAR PARTY ONLY

25  CONSPIRED IN REFERENCE TO A CERTAIN AMOUNT OF THE CONVERTED

26  ASSETS.  THAT’s UP TO THE FACT FINDER.  THERE’s PLENTY OF

27  EVIDENCE TO SUPPORT THE JUDGMENT ON THAT.

28            THE JUDGMENT SUPERSEDES.  NO ONE ASKED FOR A

page 1048



 1  STATEMENT OF DECISION.  THE STATEMENT OF DECISION DOESN'T

 2  HAVE TO INCLUDE SUPPORT IN DETAIL FOR THE JUDGMENT.  THE

 3  JUDGMENT IS THE DOCUMENT.  THAT MOTION IS TO SET ASIDE.  THE

 4  JUDGMENT SUPPORTS A DECISION THAT THE PARTY — THE

 5  DEFENDANTS CONSPIRED TO CONVERT PLAINTIFF’s PROPERTY, AND

 6  THAT THE DAMAGE NUMBER SHOULD MATCH WHAT IS STATED IN THE

 7  JUDGMENT.  THERE’s EVIDENCE TO SUPPORT THE JUDGMENT.

 8            IF YOUR HONOR WANTS SOMETHING ELSE, I DIDN'T HEAR

 9  ANYTHING THAT INVOLVED ANY LAW THAT I KNOW OF TO BE THE LAW

10  THAT REQUIRES BEING ADDRESSED, BUT I'M HAPPY TO ADDRESS

11  ANYTHING.

12       THE COURT:  I ALREADY ASKED YOU IF THERE WAS SOMETHING

13  WRONG WITH THE JUDGMENT SO I SHOULD MODIFY IT.

14       MR. MUSSELMAN:  THE ONLY THING I COULD THINK OF ABOUT

15  THAT THEY NEVER ASKED AT THE TRIAL FOR RELIEF, AND I DON'T

16  KNOW OF ANY LAW THAT WOULD CALL FOR YOUR HONOR TO INSERT

17  INTO THE JUDGMENT ANY REFERENCE TO THE EFFECT IN TEXAS

18  WHATEVER COLLATERAL ESTOPPEL EFFECT ON THE CALIFORNIA LAW

19  THE JUDGMENT HAS IT HAS BY INCLUDING THAT LANGUAGE.  YOUR

20  HONOR IS BASICALLY INVITING A TEXAS COURT TO DO SOMETHING

21  OTHER THAN WHAT JUDGMENTS ARE FOR THE WHOLE PURPOSE OF THE

22  LAWSUIT, SO WE DON'T HAVE TO RELITIGATE THE ISSUES OVER AND

23  OVER AND OVER AGAIN.  SO I DON'T KNOW WHY THE LANGUAGE WAS

24  IN THERE.  THEY DIDN'T SEEK IT.

25       THE COURT:  WHAT IS THAT?  AS TO THE JUDGMENT PRESENTED

26  BY YOU, YOU SAY THERE’s SOMETHING WRONG?

27       MR. MUSSELMAN:  WE PRESENTED A JUDGMENT THAT MATCHED

28  EXACTLY WHAT YOUR HONOR STATED; WHAT YOUR HONOR WANTED.  WE

page 1049



 1  DIDN'T REQUEST THAT PARTICULAR LANGUAGE.  THAT WAS COPYING

 2  YOUR HONOR’s RULING.

 3       THE COURT:  WHERE WAS THIS?

 4       MR. MUSSELMAN:  MAYBE I'M CONFUSING THE STATEMENT OF

 5  DECISION.

 6       THE COURT:  I HAVE A FEELING YOU MIGHT BE.

 7       MR. MUSSELMAN:  I AM.  EXCUSE ME, YOUR HONOR.

 8       THE COURT:  HOW ABOUT LET’s GO TO THAT THEN.  IS THERE

 9  SOMETHING ABOUT THE STATEMENT OF DECISION THAT YOU THINK

10  SHOULD BE MODIFIED?

11       MR. MUSSELMAN:  I DID SEE THERE WAS SOME LANGUAGE THAT

12  SUGGESTED THAT SOMEHOW THIS ACTION SHOULDN'T HAVE SOME TYPE

13  OF EFFECT IN TEXAS.  I DON'T KNOW WHAT THE INTENT OF YOUR

14  HONOR WAS INCLUDING THAT LANGUAGE.  SEE IF I CAN FIND IT.

15            SINCE THE EVIDENCE AT TRIAL DEMONSTRATED MR. CARTO

16  AND THE FURRS ARE HOLDING THEMSELVES OUT TO BE THE LEGION,

17  AND SINCE OUR INJUNCTION THAT WE REQUESTED, EXPRESSLY

18  REQUESTED, THAT THEY BE ENJOINED FROM DOING THAT, ANY

19  REFERENCE TO SAYING THAT THIS SHOULDN'T HAVE ANY TYPE OF

20  EFFECT OR SOME TYPE OF EFFECT IN TEXAS WILL CAUSE MORE

21  LITIGATION.  SEE IF I CAN FIND THAT LANGUAGE.

22       THE COURT:  I WOULD BE INTERESTED TO SEE WHERE THAT

23  IS.

24       MR. MUSSELMAN:  PAGE 4 OF THE STATEMENT OF DECISION AT

25  LINE 7 THROUGH 10, LINES 9 AND 10.  I DON'T KNOW WHAT THAT

26  MEANS, EXACTLY PROHIBITS THEM.  DOESN'T PROHIBIT THEM FROM

27  PROCEEDING WITH LEGAL ACTIONS HERE OR IN TEXAS WHILE THE

28  EVIDENCE AT TRIAL DEMONSTRATED THERE WAS A LEGAL ACTION

page 1050



 1  WHERE THEY WERE PURPORTING TO ACT.  SO I'M NOT SURE WHAT

 2  THAT MEANS.

 3            IT SEEMS TO ME THAT IF AS A MATTER OF LAW THEY'RE

 4  NOT PROHIBITED FROM PROCEEDING ELSEWHERE, THAT SHOULD BE

 5  UNSTATED BY INSERTING THE SENTENCE, IT WILL CAUSE

 6  LITIGATION.

 7       THE COURT:  I DON'T READ IT THAT WAY.

 8       MR. MUSSELMAN:  FINE.

 9       THE COURT:  OF COURSE I SUPPOSE IT’s UP TO SOMEBODY

10  ELSE.  I KNEW THERE WAS SOMETHING GOING ON IN TEXAS.

11       MR. WAIER:  IT STILL IS.

12       MR. MUSSELMAN:  AS LONG AS IT’s CLEAR.  THIS DOESN'T

13  SUGGEST MR. CARTO CAN GO RELITIGATE THE SAME ISSUES HERE IN

14  THIS LITIGATION.  THAT WOULD BE A TRAVESTY OF JUSTICE TO

15  RELITIGATE AGAIN.

16       MR. WAIER:  THE LEGION HAS SUED AND DID SUE MR. CARTO

17  UNDER THE SAME CLAIMS IN ORANGE COUNTY, CALIFORNIA, AS I MAY

18  HAVE POINTED OUT IN — IN THIS COURT.  WE WENT DOWN TO START

19  TRIAL ON THAT CASE, AND I ACTUALLY GOT THE CASE ABATED IN

20  ORDER TO ABATE THAT ACTION.  AND JUDGE SMALLWOOD AGREED WITH

21  ME ON THAT UNTIL AFTER THIS IS APPEALED FROM AND THE FINAL

22  APPEAL IS RENDERED ONE WAY OR THE OTHER WILL THAT BE

23  LITIGATED.

24            SECOND OF ALL, AND MORE IMPORTANTLY, I DO WANT TO

25  INDICATE TO THIS COURT THAT WITH RESPECT TO LEWIS AND

26  LAVONNE FURR — YOU HAVE THE EVIDENCE BEFORE YOU — THERE

27  WAS NO EVIDENCE THAT THEY'RE HOLDING THEMSELVES OUT TO BE

28  THE LEGION.  THERE’s NONE.  THERE WAS NONE BEFORE YOU IN

page 1051



 1  THIS COURT.  THE ONLY PERSON THAT EVEN COLORABLY COULD HAVE

 2  BEEN, AND I AGAIN, NOT TAKING ARGUMENTS FROM COUNSEL AS

 3  EVIDENCE, I WOULD LIKE YOU TO LOOK AT YOUR NOTES.  THERE WAS

 4  NO EVIDENCE TO THAT EFFECT THAT THE FURRS ARE DOING THAT.

 5  AND I WOULD HIGHLY SUGGEST THAT WITH RESPECT TO THAT THAT

 6  YOU DO TAKE A LOOK AT YOUR NOTES BECAUSE YOU WILL SEE THERE

 7  WAS NONE.

 8            ALSO TAKE A LOOK AT THE COMPLAINT AS TO THE

 9  ALLEGATIONS AS TO ANY DOE DEFENDANT WITH RESPECT TO ANY

10  INJUNCTIVE RELIEF.  THOSE WERE DIRECTED AT MR. CARTO AND

11  MR. CARTO ONLY.  THAT’s THE OTHER ISSUE.  THEY'RE DEFAULTED

12  PARTIES.

13            I DO WANT TO TAKE ANOTHER ISSUE WITH COUNSEL.  HE

14  SAID IT TWICE NOW.  I NEED TO PUT THIS ON THE RECORD.

15            HE SAYS WE NEVER REQUESTED A STATEMENT OF

16  DECISION.  THAT’s BECAUSE THE COURT INDICATED IN OPEN COURT

17  IT WOULD GIVE A STATEMENT OF DECISION.  NOW WE — THE COURT

18  WOULD BE ESTOPPED, AND THERE’s CASE LAW ON THIS ISSUE.  WHEN

19  THE COURT MAKES THAT STATEMENT THE PARTIES DO NOT HAVE TO

20  URGE THE COURT TO DO THAT.

21       THE COURT:  I AGREE.  NO DOUBT.

22       MR. WAIER:  I DO WANT TO INDICATE THAT THAT WOULD BE AN

23  ESTOPPEL.

24       THE COURT:  YOU INDICATE AND I AGREE.  WE DON'T HAVE TO

25  GO OVER IT AGAIN.  WE GO OVER EVERYTHING THREE AND FOUR

26  TIMES.

27       MR. WAIER:  I UNDERSTAND.

28       THE COURT:  I MAY NOT BE THE SMARTEST GUY ON THE BLOCK,

page 1052



 1  BUT USUALLY ONLY NEEDS THINGS TWICE, SOMETIMES THREE.  IF I

 2  DON'T GET IT AFTER FOUR OR FIVE, THAT’s WHY YOU HAVE THE

 3  FELLOWS ABOVE ME — THAT AND WOMAN ABOVE ME TELL ME WHERE

 4  I'M WRONG.

 5            LET’s SEE, IS THERE ANYTHING NEW I SHOULD

 6  CONSIDER?

 7       MR. MUSSELMAN:  ON THE LAST POINT, IF YOU REMEMBER ONE

 8  OF THE LAST EXHIBITS WE SUBMITTED WERE FAXES SENT TO MY

 9  CLIENT SIGNED BY THE FURRS WHERE THEY ORDER MY CLIENT TO

10  CEASE AND DESIST AFTER THE LAWSUIT WAS FILED WHERE THEY

11  PURPORT TO BE ACTING FOR THE PLAINTIFF ITSELF.  THERE'S

12  PLENTY OF EVIDENCE THAT THEY WERE HOLDING THEMSELVES OUT TO

13  BE IN FACT THE PLAINTIFF.

14       MR. WAIER:  YOUR HONOR, THE EVIDENCE ALONG THE LINES IS

15  AT THE TIME OF TRIAL WHETHER THEY'RE DOING IT.  THERE WAS NO

16  INDICATION OVER THE LAST FEW YEARS THERE WAS ANY INDICATION

17  THAT THE FURRS HAVE DONE ANYTHING SINCE THE TIME THE

18  ORIGINAL COMPLAINT WAS FILED.  THAT’s THE ONE OTHER ISSUE I

19  WANT TO RAISE WITH RESPECT TO THE FURRS — FURRS, I THINK IS

20  EXTREMELY IMPORTANT.

21       THE COURT:  OKAY.

22       MR. WAIER:  TALKING ABOUT THE KNOWLEDGE OF UNLAWFUL

23  PURPOSE.  I REQUEST THE COURT TO TAKE A LOOK AT THIS AS

24  WELL.  WHEN THE FURRS WERE — AS THE COURT IS AWARE, THEY

25  RESIGNED IN 1993 AT THE BEHEST OF THE INSURGENCE OF THE

26  EMPLOYEES.  MR. HULSY AND AN ATTORNEY FOR THE INSURGENCE

27  WROTE A LETTER TO THE FURRS SAYING IF YOU DON'T RESIGN,

28  THERE MAY BE SOME — YOU MAY BE INVOLVED IN SOME CULPABLE

page 1053



 1  CONDUCT WITH RESPECT TO MR. CARTO.  DOESN'T DEFINE IT.  WHAT

 2  DID THE FURRS DO?  THEY RESIGNED.  EVEN IF YOU LOOK AT THAT

 3  AS ANY EVIDENCE THAT THEY FINALLY GOT KNOWLEDGE, THEY DID

 4  WHAT THEY WERE SUPPOSED TO DO, AND THEY DID CONSISTENT WITH

 5  WHAT THE LEGION WANTED THEM TO DO.  THAT WAS RESIGN.  THAT

 6  EVIDENCE YOU HAD BEFORE YOU.

 7            SO, YOUR HONOR, ALONG THOSE LINES, EVEN WHEN IT

 8  COMES TO EVIDENCE RAISED, THE FURRS COULDN'T BE HELD FOR

 9  JOINT AND SEVERAL LIABILITY OR THERE CERTAINLY IS THE LEGION

10  ESTOPPED TO ACCUSE THEM OF THAT WHEN THE PEOPLE IN THE

11  LEGION NOW TELL THEM YOU RESIGN OR WE WILL BRING CHARGES

12  AGAINST YOU.  AND THAT THE EVIDENCE YOU DID HAVE THAT WAS IN

13  THE LETTERS IN 1993, AND THEY RESIGNED, SO THE EVIDENCE IS

14  THE LEGION OUGHT TO BE ESTOPPED FROM BRINGING THE CLAIMS

15  WHEN THEY SAY IF YOU RESIGN WE WON'T DO ANYTHING.  THAT'S

16  THE OTHER ISSUE, WHICH IS RAISED NOW AND WAS RAISED AT THE

17  TIME OF TRIAL.

18       MR. MUSSELMAN:  IF YOU LOOK AT THAT EVIDENCE, WHAT THE

19  FURRS SAID — IT’s DATED AFTER THE COMPLAINT WAS FILED.

20  THAT’s WHAT PROMPTED THEM TO BE ADDED AS DOE DEFENDANTS.

21       THE COURT:  IN ANY CASE, UNLESS THERE’s SOMETHING NEW,

22  WHAT I WILL DO IS GO OFF THE RECORD.  I WOULD LIKE TO READ

23  THIS ROWE CASE AGAIN, AND I'LL DO THAT.

24       MR. MUSSELMAN:  DO YOU HAVE A CITE?

25       THE COURT:  ROWE V. SUPERIOR COURT (1993) 15

26  CAL. APP. 4TH 1711.

27       MR. WAIER:  YOU DO HAVE SOMEWHAT OF A SHORT TIME FUSE

28  ON THIS.  IT’s A TEN DAY TIME FUSE ON ANYTHING YOU DO OR DO

page 1054



 1  NOT DO.  I DECIDED TO LET YOU KNOW.

 2       THE COURT:  YOU WILL GET AN ANSWER BY WEDNESDAY.

 3  SHOULD BE IN THE MAIL BY WEDNESDAY.  ANYTHING ELSE?

 4       MR. WAIER:  THANK YOU FOR YOUR PATIENCE.

 5       THE COURT:  NO PROBLEM.

 6

 7                    (PROCEEDINGS CONCLUDED.)

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page 1055



 1  STATE OF CALIFORNIA   )
                          )SS
 2  COUNTY OF SAN DIEGO   )

 3

 4

 5            I, BARBARA J. SCHULTZ, C.S.R. NO. 8021, AN

 6  OFFICIAL REPORTER OF THE SUPERIOR COURT OF THE STATE OF

 7  CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO, HEREBY

 8  CERTIFY THAT I REPORTED IN MACHINE SHORTHAND THE PROCEEDINGS

 9  HAD AND TESTIMONY ADDUCED IN THE TRIAL OF THE WITHIN CASE,

10  AND THAT THE FOREGOING TRANSCRIPT, CONSISTING OF PAGES FROM

11  1 TO 1055, INCLUSIVE, IS A FULL, TRUE AND CORRECT TRANSCRIPT

12  TO THE BEST OF MY ABILITY OF THE SAID PROCEEDINGS.

13            DATED AT VISTA, CALIFORNIA, THIS 3RD DAY OF APRIL,

14  1997.

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19                                ____________________________
                                  BARBARA J. SCHULTZ, CSR, RPR
20                                CSR NO. 8021

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