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.)
 
 8
 
 9
 
10
 
11
 
12
 
13
 
14
 
15
 
16
 
17
 
18
 
19
 
20
 
21
 
22
 
23
 
24
 
25
 
26
 
27
 
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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.
 
15
 
16
 
17
 
18
 
19                                ____________________________
                                  BARBARA J. SCHULTZ, CSR, RPR
20                                CSR NO. 8021
 
21
 
22
 
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