Dawn Estep: Sued for Fraud
Upcoming SlideShare
Loading in...5
×

Like this? Share it with your network

Share

Dawn Estep: Sued for Fraud

  • 1,690 views
Uploaded on

Dawn Estep Stroud: Sued for Fraud - Defendant's motion to dismiss 1 of 2 default judgments against her Las Vegas, Nevada Corporation, Murdoch Group Inc. — an Executive Recruitment Firm in Newport......

Dawn Estep Stroud: Sued for Fraud - Defendant's motion to dismiss 1 of 2 default judgments against her Las Vegas, Nevada Corporation, Murdoch Group Inc. — an Executive Recruitment Firm in Newport Beach, CA — is Denied. Read Plaintiff's "Opposition" to motion.

More in: Technology , Business
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Be the first to comment
    Be the first to like this
No Downloads

Views

Total Views
1,690
On Slideshare
1,687
From Embeds
3
Number of Embeds
1

Actions

Shares
Downloads
6
Comments
0
Likes
0

Embeds 3

http://suedyou.com 3

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
    No notes for slide

Transcript

  • 1. JOHN H. THALER, SBN 150290 1 LAW OFFICES OF JOHN H. THALER 18034 Ventura Boulevard, #289 2 Encino, CA 91316 818-206-4402 ** fax 818-206-4473 3 4 Attorney for Plaintiff ******* 5 6 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES, WEST DISTRICT 10 *******, an individual, ) Case No.: SC 102192 11 ) ) PLAINTIFF’S OPPOSITON TO MOTION 12 Plaintiff, ) TO SET ASIDE DEFAULT OF ) MURDOCH GROUP, INC. AND 13 vs. ) REQUEST FOR SANCTIONS IN THE ) SUM OF $2,325.00 AGAINST 14 DAWN ESTEP, an individual, aka DAWN ) DEFENDANTS ESTEP AND MURDOCH STROUD, an individual, MURDOCH ) GROUP, INC. 15 GROUP LIMITED, LLC, a Nevada limited ) liability company, MURDOCH GROUP, ) DATE: November 3, 2009 16 INC., a Wyoming corporation, and DOES 1 ) TIME: 9:00 A.M. ) DEPT: X 17 through 25, inclusive, ) ) [The Honorable Lisa Hart Cole presiding] 18 ) Defendants. ) 19 20 21 22 DECLARATION OF ******* 23 I, *******, do declare: 24 1. I am the Plaintiff in the above matter. 25 2. The gravamen of my Complaint concerns various false representations made to me by 26 Ms. Estep, on behalf of herself and on behalf of her Company and her Corporation. 27 These false representations led me to provide monies for the purchase of stock that has 28 1 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 2. 1 never materialized and led me to forego the sale of my clothing company, 2 **************, based on buyers Ms. Estep represented she had obtained. 3 4 3. When I first discovered that Ms. Estep was a habitual liar, as set forth in my 5 Complaint, I confronted her. She made various threats to me and to my (now 6 former) assistant of bodily harm. Many of these threats were sent as e-mails or left 7 as voice messages on my voice mail. I have set forth many of the threats in my 8 Complaint. 9 10 4. Shortly after filing and serving the Complaint, both my former assistant and I 11 received more threats from Ms. Estep. In fact, Ms. Estep left message for me twice 12 on April 17, 2009 and once on April 29, 2009. In the first set of message, Ms. Estep 13 threatened me by stating that I had better call her back or face unspecified 14 “consequences.” In the last call, she stated, “You are making a very big mistake by 15 not taking my telephone calls.” And, “You will pay for this.” 16 17 5. Ms. Estep also sent an e-mail on April 14, 2009 to my former assistant stating, 18 “Strategically, a bad move. You are toast. TOAST.” This is apparently the first 19 date that Ms. Estep attempted to threaten my attorney, John H. Thaler. 20 21 6. Ms. Estep currently has criminal charges pending against her in the State of Texas, 22 specifically in Austin, Texas, concerning check fraud. She was arrested on or about 23 September 15, 2008. Also, since late last year, I have discovered other individuals 24 who also have been defrauded by Ms. Estep. To that end, I am aware of additional 25 suits that will be filed against her, her company and her corporation shortly. 26 27 28 2 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 3. 1 7. Additionally, detectives with the Santa Monica Police Department have been trying 2 to interview Ms. Estep concerning issues in my case and similar complaints they 3 have received from others. To date, apparently Ms. Estep has not been cooperative. 4 5 I declare under penalty of perjury that the foregoing is true and correct and if called as a 6 witness, I could and would testify competently thereto. 7 Executed on this 20th day of October, 2009 at Encino, California. 8 9 __________________________ 10 *******I. STATEMENT OF RELEVANT FACTS 11 Mr. Rogers would be proud. Apparently, Dawn Estep, Murdoch Group, Inc., and their 12 attorney, Eric H. Saiki, have entered the Land of Make Believe. Through omissions of pertinent 13 facts and misstatement of other facts, Ms. Estep and Mr. Saiki attempt to mislead this Court. 14 There was no “Ethical Failure”, there was no “Ethical Obligation” violated, and there was no 15 rush to submit a Request for Entry of Default when Murdoch was “represented by counsel.” 16 Why? Because Murdoch Group, Inc. was not represented by counsel at the time the 17 Request for Entry of Default was made. In fact, Mr. Saiki did not represent any party in 18 this matter until two months after said Request was made and entered. 19 Instead, the true facts are as follows: 20 This matter involves the fraudulent acts of Dawn Estep, individually, and by and through 21 her corporation, Murdoch Group, Inc. (“Corporation”), and by and through company, Murdoch 22 Group Limited, LLC (“Company”). It is no accident that the names of the company and of the 23 corporation are the same as the entities were used interchangeably. 24 The Corporation is registered in Wyoming and, according to the California Secretary of 25 State, is not registered to do business in California. A true and correct copy of the Wyoming 26 entity information is attached hereto as Exhibit “1” and incorporated herein by reference. The 27 Company is registered in Nevada. However, according to the Nevada Secretary of State, the 28 3 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 4. 1 Company was suspended in or about 2005. A copy of the Nevada entity records is attached 2 hereto as Exhibit “2” and incorporated herein by reference. 3 Both entities show Corporate Services Group located at 723 S. Casino Center Boulevard, 4 2nd Floor, Las Vegas, NV 89101 as the agent for service of process. Curiously, the service 5 information for the Company actually comes from the California Business Portal. A true and 6 correct copy of that information is attached hereto as Exhibit “3” and incorporated herein by 7 reference. 8 Curiously, the status of the Company in California shows as “Active” at least as of March 9 2, 2009. This information directly contradicts the information obtained from the State of 10 Nevada. So it appears that Ms. Estep was operating her Company in California for years after its 11 suspension in Nevada. 12 As to the Corporation, it purports an address in Newport Beach, California but, according 13 to the California Secretary of State, it has never filed for Foreign Corporation Status in 14 California. Therefore, it is operating with California as its sole place of business without filing 15 the requisite tax return or paying the requisite taxes. A true and correct copy of the company 16 profile is attached hereto as Exhibit “4” and incorporated herein by reference.1 17 The Summons and Complaint in this matter were filed on March 16, 2009. Upon their 18 return, Plaintiff’s attorney immediately made arrangements to serve the Corporation and the 19 Company. Both Company and Corporation were served at the address of the Las Vegas agent on 20 or about March 27, 2009. 21 On or about April 14, 2009, Plaintiff’s attorney received a voice message from Dawn 22 Estep. In that message she acknowledged service of the Summons and Complaints on the 23 Corporation and Company. She stated, “You don’t know the whole story. If I were you, I would 24 consider dismissing this stuff. You better talk to your client.” She also stated, “I keep insane 25 notes and I coming after your client.” Plaintiff’s attorney did not respond. 26 27 1 The failure of Corporation to register in California when this state appears to be its principal and only place of business may 28 prevent it from seeking to set aside this default or being represented by counsel before this Court See Leasequip, Inc. v. Dapeer, 103 Cal. App.4th 394, 402 (2002). 4 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 5. 1 On or about April 19, 2009, Ms. Estep left another voice message with Plaintiff’s 2 attorney. This time, she insisted that Plaintiff’s attorney call her so that she could tell me her 3 version of the “facts.” No return call was made. 4 On or about April 21, 2009, Plaintiff’s attorney received a telephone call from an attorney 5 in the Los Angeles office of the Pillsbury law office. The attorney stated that he and his firm 6 were acquainted with Ms. Estep’s husband, an attorney in Texas, and were considering 7 representation of her in the instant matter. The attorneys then discussed the case for 8 approximately fifteen (15) minutes. Plaintiff’s attorney told the Pillsbury attorney that his client 9 had made telephone calls to my office and threatening calls to Plaintiff (See Declarations of John 10 H. Thaler and of ******* filed concurrently herewith) and that he needed to stop the same 11 forthwith. At the conclusion, the attorney stated that he would speak to Ms. Estep about the 12 telephone calls and that he would let Plaintiff’s attorney know if the firm decided it would 13 represent any or all of the defendants. 14 In her declaration, Ms. Estep omits that she attempted to hire Pillsbury or that an attorney 15 for the firm spoke with Plaintiff’s attorney directly in mid April 2009 or that said attorney was 16 fully aware of the service dates for the Summons and Complaints. 17 On or about April 29, 2009, Ms. Estep called Plaintiff’s attorney for a third time. Once 18 again she left a hostile voice mail stating that she was going to sue Plaintiff and that Plaintiff’s 19 attorney “had better be prepared.” Once again, Plaintiff’s attorney did not return the call. 20 On or about April 30, having received no responsive pleading and no request for any 21 extension of time, Plaintiff’s attorney prepared defaults against the Corporation and the 22 Company. The Court received the Requests on or about May 1, 2009 and entered the defaults on 23 or about May 4, 2009. 24 Meanwhile, shortly after the Requests had been prepared and sent to the court clerk, on or 25 about April 30, 2009, Plaintiff’s attorney received a telephone call from William Collier, Jr. He 26 identified himself as an attorney for Keesal, Young & Logan. During the conversation, he stated 27 that his office had a relationship with Ms. Estep’s husband and that his office was considering 28 5 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 6. 1 whether to represent any or all of the defendants. Plaintiff’s attorney then discussed with Mr. 2 Collier the facts of the case. 3 Further, Plaintiff’s attorney informed him that Plaintiff’s attorney had already prepared 4 the Requests for Entry of Default on the Corporation and on the Company. Plaintiff’s attorney 5 also informed Mr. Collier that he was not the first attorney to contact him. Upon stating this, Mr. 6 Collier told Plaintiff’s attorney that Ms. Estep did not inform him that she had already spoken to 7 other counsel. He asked Plaintiff’s attorney to provide him with the name and number of the 8 other attorney. Plaintiff’s attorney did. Mr. Collier then stated that he did not believe he or his 9 firm would take the case but that he would let Plaintiff’s attorney know if they did. 10 In her declaration, Ms. Estep states that she first spoke with Mr. Collier prior to April 17, 11 2009 and at that time he agreed to represent her. That statement is false and Ms. Estep knows it 12 to be false. In addition to the lack of any declaration from Mr. Collier, this Court should take 13 note that Plaintiff’s attorney contacted Mr. Collier shortly after receiving the within Motion. Mr. 14 Collier states that he was not contacted by Ms. Estep or her attorney regarding this Motion and 15 that he never agreed that he or the Keesal office would represent her. He further states that after 16 speaking with Plaintiff’s attorney on or about April 30, 2009, he informed Ms. Estep that 17 Requests for Entry of Default had been prepared and provided to the Court. 18 As a result, Ms. Estep’s comment that somehow the defaults were taken without her 19 knowledge is utterly false. 20 Corporation’s attorney, Eric H. Saiki, first contacted Plaintiff’s attorney on or about May 21 12, 2009. He stated that Ms. Estep was seeking representation concerning the instant matter. As 22 Plaintiff’s attorney had done previously, Plaintiff’s attorney discussed for at least fifteen (15) 23 minutes the nature of the case. In fact, Mr. Saiki and Plaintiff’s attorney discussed in great detail 24 audio tapes in Plaintiff’s possession consisting of voice mail messages left by Ms. Estep on 25 Plaintiff’s voice mail. Therein, she states all of the quotes attributed to her in the Complaint. 26 These statements squarely place liability on her, her company and on her corporation. Mr. Saiki 27 specifically asked whether Plaintiff’s attorney had heard the tapes. Plaintiff’s attorney told him 28 6 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 7. 1 he had heard all of the recorded voice mail messages left by his client and that Plaintiff’s 2 attorney could confirm that the quotes attributed to his client in the Complaint were accurate. 3 Plaintiff’s attorney also told Mr. Saiki that he was now the third attorney to contact him 4 about possible representation. Mr. Saiki stated that he was unaware that Ms. Estep had ever 5 spoken to any other attorneys. Plaintiff’s attorney provided to Mr. Saiki the names and telephone 6 numbers of the other attorneys. 7 At the end of the conversation, Mr. Saiki asked whether Plaintiff’s attorney would agree 8 to set aside the defaults on the Corporation and on the Company. Plaintiff’s attorney told Mr. 9 Saiki that at that time he was not prepared to do anything especially when Mr. Saiki had not 10 decided whether to represent Ms. Estep. Mr. Saiki’s implication in his declaration that somehow 11 he was representing any defendants as of the May 12, 2009 telephone call is totally false. 12 On May 18, 2009, Plaintiff’s attorney received a letter from Mr. Saiki allegedly 13 confirming that Plaintiff’s attorney would not agree to set aside the defaults. Mr. Saiki has 14 attached that letter as Exhibit “A” to his declaration. The Court should take note however that in 15 his declaration (and in the letter) Mr. Saiki does not state that he was representing Ms. Estep or 16 her Corporation at the time he contacted Plaintiff’s attorney or that he was representing any 17 defendants as of the May 18, 2009 letter. And according to Mr. Saiki, he was not. 18 In fact, in Mr. Saiki’s Exhibit “B”, another letter to me dated July 7, 2009, he states that 19 his office “has recently been retained by Ms. Dawn [Estep] Stroud and Murdoch Group, Inc. 20 In paragraph 3 of his declaration, Mr. Saiki refers to that letter and decries that Plaintiff’s 21 attorney did not respond. That statement is false. On that same date, Plaintiff’s attorney sent a 22 letter to Mr. Saiki stating that Plaintiff’s attorney was out of town and not available to provide 23 portions of the file he requested until July 15, 2009. A true and correct copy of my letter to Mr. 24 Saiki is attached hereto as Exhibit “4” and incorporated herein by reference. 25 Also of note: a Case Management Conference was scheduled with this Court for July 6, 26 2009 at 8:30 a.m. The Notice of the CMC is on the front page of the Complaint. Mr. Saiki and 27 Ms. Estep should have been and would have been fully aware of the CMC. As the Court is 28 aware, neither Ms. Estep nor any attorney on her behalf appeared. 7 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 8. 1 It is nothing short of remarkable that Mr. Saiki could not have appeared on July 6, 2009 2 but could send Plaintiff’s counsel a letter demanding documents from the case file the following 3 day. 4 On or about August 10, 2009, Requests for Admission were sent to Mr. Saiki. In 5 September 2009, responses were sent. During this time, Mr. Saiki never once contacted me or 6 ever mentioned any request to set aside the default. So even once he began representation of Ms. 7 Estep, three (3) months elapsed prior to the motion. Strangely, Mr. Saiki makes no attempt to 8 explain this. 9 Instead, it appears that having reviewed some of the audio tapes, having been required to 10 respond to Requests for Admission, and sensing that liability is a foregone conclusion, now Ms. 11 Estep wants to defend her corporation. 12 II. DEFENDANT HAS FAILED TO MAKE ANY SHOWING 13 THAT ITS FAILURE TO FILE A RESPONSIVE PLEADING 14 RESULTED FROM INADVERTENCE OR EXCUSABLE NEGLECT. 15 Defendant Corporation knew it had been served and sought legal counsel. But no attempt 16 was made to seek an extension to respond to the complaint. After the default was entered, it 17 waited inexplicably for four months before pursuing the within motion. Simply, Corporation has 18 failed to make any showing whatsoever of inadvertence or excusable neglect. Therefore the 19 motion should be denied. 20 Unless an Application for Relief is accompanied by an “attorney affidavit of fault”, relief 21 is discretionary and must be based on a showing of “mistake, inadvertence, surprise or excusable 22 neglect.” Code of Civil Procedure section 473(b); see Lorenz v. Commercial Accept. Ins. Co., 23 Cal.App.4th 981, 989 (1995). 24 Defendant’s Motion to Set Aside Default is accompanied by the Declaration of Dawn 25 Estep Stroud, a defendant and the only known shareholder of the Corporation. The Declaration 26 of Defendant’s attorney, Eric H. Saiki, is not an “attorney affidavit of fault.” As a result, in order 27 to set aside the default, Defendant must sustain her burden of proving “mistake, inadvertence, 28 surprise of excusable neglect.” Defendant has not met its burden. 8 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 9. 1 Mislaying of process, forgetfulness, or intentional disregard of service are not “mistake, 2 inadvertence, surprise or excusable neglect” as those terms are used in Code of Civil Procedure 3 section 473(b), and they do not require the Court to set aside default. Price v. Hibbs, 225 4 Cal.App.2d 209 (1964). To be entitled to relief, the acts, which brought the default, must have 5 been the acts of a reasonable prudent person under the same circumstances. Conway v. 6 Municipal Court, 107 Cal.App.3d 1009 (1980). 7 Relief under Code of Civil Procedure section 473(b) is proper where defendant was 8 mistaken as to some fact material to the defendant’s duty to respond, by reason of which 9 defendant failed to make a timely response. See Lieberman v. Aetna Ins. Co. (1967) 249 10 Cal.App.2d 515. Mistake of fact is when a person understands the facts to be other than as they 11 are. Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653. 12 The Corporation, by and through Ms. Estep, claims inadvertence and excusable neglect 13 as the grounds for its motion. Inadvertence is defined as lack of heedfulness or attentiveness; 14 and in the abstract, is no plea on which to vacate a default. Baratti v Baratti, 109 Cal.App.2d 917 15 (1952). 16 Excusable neglect is by far the most common ground for obtaining discretionary relief 17 from default. The issue, however, boils down to one very simple consideration – whether the 18 moving party has shown a reasonable excuse for the default. Davis v. Thayer, 113 Cal.App.3d 19 892 (1980). The test in determining whether a party acted with excusable neglect is reasonable 20 diligence. In the absence of an “Attorney affidavit of fault”, the burden is on the moving party to 21 show that neglect was excusable, i.e., that the default could not have been avoided through the 22 exercise of ordinary care. Jackson v. Bank of America, 141 Cal.App.3d 55, 58 (1983). 23 Evidence that the defendant was seriously ill, feeble, or unable to understand that he was 24 being served with process is sufficient to justify discretionary relief under Code of Civil 25 Procedure section 473(b). See Kesselman v. Kesselman, 212 Cal.App.2d 196, 207-208 (1963). 26 In a hearing on a motion to set aside a default and default judgment, the credibility of the 27 persons executing the Declarations and the weight to be given to their contents is for the trial 28 court. Conway v. Municipal Court, 107 Cal.App.3d 1009 (1980). 9 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 10. 1 In this matter, Ms. Estep and her corporation were fully aware that the Corporation had 2 been served. In fact, Ms. Estep contacted two separate attorney. Moreover, she telephoned 3 Plaintiff and Plaintiff’s attorney threatening each and claiming that she was filing her own 4 complaint against Plaintiff. She visited her current attorney for the first time shortly after the 5 default was entered against the Corporation but chose not to retain his services for two months. 6 And when she did retain his services, she did not retain them for the Corporation. She could 7 have but inexplicably she did not. And then she waited an additional two months before filing 8 this motion. 9 Nothing herein can possibly be categorized as excusable neglect. Instead, it appears that 10 Ms. Estep chose to wait through the litigation and early discovery to gauge how much trouble 11 she and her business entities were in. Now, having discovered that the evidence is squarely 12 against her, she seeks to set aside the Corporation’s default. 13 It is simply not inadvertent or excusable neglect to know that a suit has been filed, 14 threaten the party bringing the action, harass his lawyer on three occasions, discuss the matter 15 with at least two well respected attorneys at two well respected firms, do nothing, then, after 16 default has been entered, attempt to retain a third attorney and his firm, again do nothing for two 17 months, Answer the Complaint on behalf of yourself individually, do nothing for another two 18 months, and then request that the default be set aside. 19 Ms. Estep tries to land on the excuse that somehow she had retained Mr. Collier. But she 20 does not submit any declaration from him. Moreover, he was unaware of the motion and denies 21 that he ever agreed to represent Ms. Estep or her company or her corporation. 22 As there is no showing of excusable neglect, Plaintiff requests that the motion be denied. 23 III. SANCTIONS SHOULD BE IMPOSED ON 24 DEFEDANTS ESTEP AND MURDOCH GROUP, INC. 25 If relief from default is based on evidence other than “attorney affidavit of fault, the 26 Court may order the Defendant to pay the costs, including attorney fees, incurred by the 27 Plaintiff…” Rogalski v. Nabers Cadillac, 11 Cal.App.4th 816, 83 (1992). 28 10 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 11. 1 In the event that this Court grants the motion, Plaintiff’s attorney request on behalf of my 2 client that Murdoch Group, Inc. and Ms. Estep, jointly and severally, be ordered to pay attorneys 3 fees and costs for my appearance at the Case Management Conference on July 6, 2009 and for 4 the costs of preparing the Request for Entry of Default as to the Corporation. Plaintiff’s attorney 5 charge $300.00 per hour. It took three-quarters of an hour to prepare the Request. The 6 appearance for the CMC took one hour. As a result, in the event that the Default is set aside, 7 Corporation and Estep should be ordered to pay the sum of $525.00. 8 Additionally, sanctions should be imposed for Plaintiff having to oppose the within 9 motion. In preparing the Opposition, three and one-half hours were spent reading the motion and 10 preparing the Opposition. Plaintiff’s counsel anticipates an additional half hour to review any 11 Reply and tow and one-half hours appearing at the time of hearing. Therefore, the additional 12 sum of $1,800.00 in sanctions should be imposed. 13 In the “Conclusion” of the Motion, the Corporation opines that no sanctions or fess 14 should be awarded because the default against the Corporation was taken while it was 15 represented by counsel. This claim is patently false. Moreover, neither Mr. Saiki nor Ms. Estep 16 has provided the Court any executed retainer agreement or any letter to my office evidencing 17 anything to the contrary. This false statement is emblematic of the bad faith that is the within 18 motion. 19 // 20 IV. CONCLUSION 21 Defendant Corporation has failed to make any showing of excusable neglect or 22 inadvertence. Rather, the failures to file a responsive pleading appear to be deliberate. And it is 23 only now that Ms. Estep has seen the preliminary discovery and knows she and her businesses 24 are in trouble that the within motion has been filed. That explains the false and misleading 25 statements she and her attorney make in support of thereof. 26 The motion should be denied and sanctions should be awarded. 27 Dated: October 20, 2009 LAW OFFICES OF JOHN H. THALER 28 11 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 12. By:______________________________ 1 JOHN H. THALER, Attorney for 2 Plaintiff ******* 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 13. 1 DECLARATION OF JOHN H. THALER 2 I, John H. Thaler, do declare: 3 1. I am an attorney licensed to practice law before all courts in the State of California and I 4 am the attorney of record for Plaintiff *******. 5 2. I have reviewed the Motion filed by Defendant Murdoch Group, Inc. and the declarations 6 of its attorney, Eric Saiki, and principal shareholder, Dawn Estep. It is quite evident that 7 Ms. Estep and Mr. Saiki have intentionally misled this court by omitting certain facts and 8 misstating other facts. Simply put, they are not telling the truth. To wit: 9 3. This matter involves the fraudulent acts of Dawn Estep, individually, and by and through 10 her corporation, Murdoch Group, Inc. (“Corporation”), and by and through company, 11 Murdoch Group Limited, LLC (“Company”). It is no accident that the names of the 12 company and of the corporation are the same as Plaintiff alleges the entities were used 13 interchangeably. 14 4. The Corporation is registered in Wyoming and, according to the California Secretary of 15 State, is not registered to do business in California. A true and correct copy of the 16 Wyoming entity information is attached hereto as Exhibit “1” and incorporated herein by 17 reference. The Company is registered in Nevada. However, according to the Nevada 18 Secretary of State, the Company was dissolved in or about 2005. A copy of the Nevada 19 entity records is attached hereto as Exhibit “2” and incorporated herein by reference. 20 5. Both entities show Corporate Services Group located at 723 S. Casino Center Boulevard, 21 2nd Floor, Las Vegas, NV 89101 as the agent for service of process. Curiously, the 22 service information for the Company actually comes from the California Business Portal. 23 A true and correct copy of that information is attached hereto as Exhibit “3” and 24 incorporated herein by reference. 25 6. Most notably, the status of the Company shows as “Active” at least as of March 2, 2009. 26 This information directly contradicts the information obtained from the State of Nevada. 27 So it appears that Ms. Estep was operating her Company in California for years after its 28 suspension in Nevada. 13 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 14. 1 7. As to the Corporation, it purports an address in Newport Beach, California but according 2 to the California Secretary of State, it has never filed for Foreign Corporation Status in 3 California. Therefore, it appears to be operating in California as its sole place of business 4 without filing the requisite tax return or paying the requisite taxes. A true and correct 5 copy of the company profile is attached hereto as Exhibit “4” and incorporated herein by 6 reference. 7 8. The Summons and Complaint in this matter were filed on March 16, 2009. Upon their 8 return, I immediately made arrangements to serve the Corporation and the Company. 9 Both Company and Corporation were served at the address of the Las Vegas agent on or 10 about March 27, 2009. 11 9. On or about April 14, 2009, I received a voice message from Dawn Estep. In that 12 message she acknowledged service of the Summons and Complaints on the Corporation 13 and Company. She stated, “You don’t know the whole story. If I were you, I would 14 consider dismissing this stuff. You better talk to your client.” She also stated, “I keep 15 insane notes. And I am coming after your client.” I did not respond. 16 10. On or about April 19, 2009, Ms. Estep left another voice message. This time, she insisted 17 that I call her so that she could tell me her version of the “facts.” 18 11. On or about April 21, 2009, I received a telephone call from an attorney in the Los 19 Angeles office of the Pillsbury law office. The attorney stated that he and his firm were 20 acquainted with Ms. Estep’s husband, an attorney in Texas, and were considering 21 representation of her in the instant matter. We then discussed the case for approximately 22 fifteen (15) minutes. I told the attorney that his client had made telephone calls to my 23 office and threatening calls to my client (See Declaration of ******* filed concurrently 24 herewith) and that he needed to stop the same forthwith. At the conclusion, the attorney 25 stated that he would speak to Ms. Estep about the telephone calls that he would let me 26 know if the firm decided it would represent any or all of the defendants. 27 28 14 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 15. 1 12.In her declaration, Ms. Estep omits that she attempted to hire Pillsbury or that an 2 attorney for the firm spoke with me directly or that said attorney was fully aware of the 3 service dates for the Summons and Complaints. 4 13. On or about April 29, 2009, Ms. Estep called me for a third time. Once again she left a 5 hostile voice mail stating that she was going to sue my client and that I “had better be 6 prepared.” Once again, I did not return the call. 7 14. On or about April 30, having received no responsive pleading and no request for any 8 extension of time, I prepared defaults against the Corporation and the Company. The 9 Court received the Requests on or about May 1, 2009 and entered the defaults on or about 10 May 4, 2009. 11 15. On or about April 30, 2009, I received a telephone call from William Collier, Jr. He 12 identified himself as an attorney for Keesal, Young & Logan. During the conversation, 13 he stated that his office had a relationship with Ms. Estep’s husband and that his office 14 was considering whether to represent any or all of the defendants. I then discussed with 15 Mr. Collier the facts of the case. Further, I informed him that I had already prepared the 16 Requests for Entry of Default on the Corporation and on the Company. I also informed 17 Mr. Collier that he was not the first attorney to contact me. Upon stating this, Mr. Collier 18 told me that Ms. Estep did not inform him that she had already spoken to other counsel. 19 He asked me to provide him with the name and number of the other attorney. I did. Mr. 20 Collier then stated that he did not believe he or his firm would take the case but that he 21 would let me know if they decided otherwise. 22 16. In her declaration, Ms. Estep states that she first spoke with Mr. Collier prior to April 17, 23 2009 and at that time he agreed to represent her. That statement is false and Ms. Estep 24 knows it to be false. In addition to the lack of any declaration from Mr. Collier, this 25 Court should take note that I contacted Mr. Collier shortly after receiving the within 26 Motion. Mr. Collier states that he was not contacted by Ms. Estep or her attorney 27 regarding this Motion and that he never agreed that he or the Keesal office would 28 represent her. He further states that after speaking with me on or about April 30, 2009, 15 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 16. 1 he informed Ms. Estep that Requests for Entry of Default had been prepared and 2 provided to the Court. 3 17. As a result, Ms. Estep’s comment that somehow the defaults were taken without her 4 knowledge is utterly false. In fact, given that the clerk did not enter the defaults until two 5 weeks after they were submitted, an Answer could have been filed during that time. 6 Instead, until the filing of this motion, Ms. Estep has done nothing. 7 18. Now to Mr. Saiki’s declaration: Mr. Saiki first contacted me on or about May 12, 2009. 8 He stated that Ms. Estep was seeking representation concerning the instant matter. As I 9 had done previously, I discussed for at least fifteen (15) minutes the nature of the case. 10 In fact, Mr. Saiki and I discussed in great detail audio tapes in my client’s possession 11 consisting of voice mail messages left by Ms. Estep on my client’s voice mail wherein 12 she states all of the quotes attributed to her in the Complaint. Mr. Saiki specifically asked 13 whether I had heard the tapes. I told him I had heard all of the recorded voice mail 14 messages left by his client and that I could confirm that the quotes attributed to his client 15 in the Complaint were accurate. 16 19.I also told Mr. Saiki that he was now the third attorney to contact me about possible 17 representation. Mr. Saiki stated that he was unaware that Ms. Estep had ever spoken to 18 any other attorneys. I provided to Mr. Saiki the names and telephone numbers of the 19 other attorneys. 20 20. At the end of the conversation, Mr. Saiki asked me whether I would agree to set aside the 21 defaults on the Corporation and on the Company. I told Mr. Saiki that I was not prepared 22 to do anything especially when he had not decided whether to represent Ms. Estep. 23 21. Mr. Saiki’s implication in his declaration that somehow Defendant were represented at 24 the time of the Requests for Entry of Default being filed is utterly false. And his 25 contention that California law requires an attorney to refrain from entering a default when 26 two different attorneys and two different firms have rejected representation is absurd. Is 27 Mr. Saiki really opining that I had an ethical obligation to contact attorneys who never 28 agreed to take Defendants’ case simply because Ms. Estep chose to meet with them? 16 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 17. 1 Either Mr. Saiki didn’t read the Guidelines on Civility and Professionalism or he truly 2 does not understand them. 3 22.On May 18, 2009, I received a letter from Mr. Saiki allegedly confirming that I would 4 not agree to set aside the defaults. Mr. Saiki has attached that letter as Exhibit “A” to his 5 declaration. The Court should take note however that in his declaration (and in the letter) 6 Mr. Saiki does not state that he was representing Ms. Estep or her Corporation at the time 7 he contacted me. And even according to Mr. Saiki, he was not. 8 23. In fact, in Mr. Saiki’s Exhibit “B”, another letter to me dated July 7, 2009, he states that 9 his office “has recently been retained by Ms. Dawn [Estep] Stroud and Murdoch Group, 10 Inc. 11 24. In paragraph 3 of his declaration, Mr. Saiki refers to that letter and decries that I did not 12 respond. That statement is false. On that same date, I sent a letter to Mr. Saiki stating 13 that I was out of town and not available to portions of the file he requested until July 15, 14 2009. A true and correct copy of my letter to Mr. Saiki is attached hereto as Exhibit “5” 15 and incorporated herein by reference. 16 25. Also of note: a Case Management Conference was scheduled with this Court for July 6, 17 2009 at 8:30 a.m. The Notice of the CMC is on the front page of the Complant. Mr. 18 Saiki and Ms. Estep should have been and would have been fully aware of the CMC. As 19 the Court is aware, neither Ms. Estep nor any attorney on her behalf appeared. 20 26. It is nothing short of remarkable that Mr. Saiki could not have appeared on July 6, 2009 21 but could send me a letter demanding documents from the case file the following day. 22 27. On or about August 10, 2009, Requests for Admission were sent to Mr. Saiki. In 23 September 2009, responses were sent. During this time, Mr. Saiki never once contacted 24 me or ever mentioned any request to set aside the default. So even once he began 25 representation of Ms. Estep, three (3) months elapsed prior to the motion. Strangely, Mr. 26 Saiki makes no attempt to explain this. 27 28. In the event that this Court grants the motion, I request on behalf of my client that 28 Murdoch Group, Inc. and Ms. Estep, jointly and severally, be ordered to pay attorneys 17 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 18. 1 fees and costs for my appearance at the Case Management Conference on July 6, 2009 2 and for the costs of preparing the Request for Entry of Default as to the Corporation. I 3 charge $300.00 per hour. It took three-quarters of an hour to prepare the Request. The 4 appearance for the CMC took one hour. As a result, in the event that the Default is set 5 aside, Corporation and Estep should be ordered to pay the sum of $525.00. 6 29. Additionally, sanctions should be imposed for Plaintiff having to oppose the within 7 motion. In preparing the Opposition, three and one-half hours were spent reading the 8 motion and preparing the Opposition. Plaintiff’s counsel anticipates an additional half 9 hour to review any Reply and tow and one-half hours appearing at the time of hearing. 10 Therefore, the additional sum of $1,800.00 in sanctions should be imposed. 11 30.In the “Conclusion” of the Motion, the Corporation opines that no sanctions or fess 12 should be awarded because the default against the Corporation was taken while it was 13 “represented by counsel.” This claim is patently false. The Defendants were not 14 represented by anyone. Rather, Ms. Estep met with lawyers who chose not to represent 15 her. I have no ethical or legal obligation to contact attorneys who have rejected 16 representing Ms. Estep and her “businesses.” 17 31.Moreover, neither Mr. Saiki nor Ms. Estep has provided the Court any executed retainer 18 agreement or any letter to my office evidencing anything to the contrary. This false 19 statement and its implication is emblematic of the bad faith that is the within motion, 20 especially as it fails to address the passage of the four months prior to the Corporation 21 filing this motion. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 18 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 19. 1 I declare under penalty of perjury that the foregoing is true and correct and if called as a 2 witness, I could and would testify competently thereto. 3 Executed on this 20th day of October, 2009 at Encino, California. 4 __________________________ 5 JOHN H. THALER 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT
  • 20. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 OPPOSTION TO MURDOCH GROUP, INC.’S MOTION TO SET ASIDE DEFAULT