In the Superior Court of the State of Arizona
In and For the County of Yavapai

| |) |Case No.: |
|Plaintiff, |) | |
|vs. |) |DIVISION 4 |
|Defendant |) | |
| |) |Memorandum of Points and Authorities in opposition to motion to |
| |) |vacate order for hearing set for September 17th, 2008 |
| |) |Assigned to the Honorable |
| |) |Howard D. Hinson, Jr. |
| |) | |
| |) | |
| | | |

The Plaintiff, makes the following objection to the opposing counsel’s motion to Vacate Hearing Set for September, 17th 2008. The hearing that is scheduled is a prerequisite to the imposition of the sanction of rendering of default for the Defendant’s having participated in a pattern of discovery abuse and a disregard for the authority of this Court. Case law suggests that to vacate an order for a hearing required prior to imposition of the sanction of rendering of default judgment, the offending party must show a good faith effort to correct the failure that was the cause of the sanction, demonstrate that there is at least an indication of having a meritorious claim or defense, and lastly that the Plaintiff would not be prejudiced in her pursuit of her claim if the motion was granted. The Defendant’s attorney, in Sections 1 through 3 of the Motion to Vacate, claims to have satisfied and corrected the error causing the Entry of Default, and goes further to accuse the Plaintiff of not having disclosed and discovered completely herself. He then attacks her with a charge that she committed identity theft, and in the final paragraph he claims that the Plaintiff has not been prejudiced “one iota” in pursuit of her claim.

Lack of Good Faith in Discovery Process

In Section 1 under “Reasons for Request to Vacate” the Defendant states as one of the reasons to ask the court to vacate is that he has provided complete disclosure and discovery. The Plaintiff contends that they have not disclosed in good faith, nor discovered completely, nor have they answered the interrogatories they were compelled by this court to answer which is a form of discovery and for this reason the motion should be denied. The disclosure the Plaintiff received is unacceptable due to its misrepresentations and mistakes and the fact that it is not signed by the Defendant, and according to the Rules as interpreted in “The Arizona Rules of Civil Procedure with Comments”, every disclosure statement must be signed by the party filing the disclosure. The discovery the Defendant provided in response to the Plaintiff’s request for production was incomplete because the first part of the Plaintiff’s request for production itemized the expenditures that were made at Home Depot for the home improvements to the Stewart property, and although the Plaintiff requested the Home Depot card statements showing the purchases, a large portion of the purchases weren’t charged on the card but were debited to the joint account. The defendant knows that the Plaintiff requested the purchase information showing the details of the home improvements and used the technical error of the request to omit them. In addition the Plaintiff has provided only 2 of the 6 tax returns requested and although he ordered three more from the IRS, he neglected to order the 2006 tax year return. Also the Defendant only supplied one ATM receipt where the Plaintiff had knowledge of the existence of scores of receipts she had stored in the files in the “pink crates”. The Plaintiff shows in Exhibit A a photograph of the ATM receipts she had saved prior to the Defendant moving in with her and they show a pattern of saving ATM receipts. The Plaintiff is sure that there were scores of receipts in the files in the pink crates she has been trying to get the opportunity to inspect and copy the contents of for this entire case as can be seen by the many requests detailed in her motion to compel. The defendant is not discovering all the ATM receipts that show the withdrawals he made, leaving the Plaintiff with having the burden to prove they were his withdrawals in an accounting to determine the restitution she deserves. He is not participating in good faith. The Defendant’s counsel has claimed he is responsible for the failure to provide disclosure and follow the court’s order compelling them to disclose, discover, answer interrogatories, and the Plaintiff assumes he takes the blame also for not responding in writing to the request for production of documents and things and entry upon land for inspection. He states under oath in his affidavit that he alone should bear consequences of the abuse of the discovery process. Likewise in the affidavit signed by the Defendant the Defendant writes “I was unaware until recently, when the Court set a hearing for September 17th, 2008, that I allegedly did not provide disclosure or documents to Ms. X”. Attachment A shows the phone records the Plaintiff subpoenaed for the proving her case which inadvertently included the records up to 2008. They show that one day after the order to compel disclosure was entered on November 7th the Defendant spoke with his attorney or attorney’s office twice. In that month’s phone bill there were seventeen calls to Mr. X. It is not believable the Defendant was not told of the motion to compel disclosure at that time and certainly not that he went for 6 months with the order to compel entered and he did not once inquire into the status of his case. The most likely case is that he has access to the docket information on the internet, and when he saw the order compelling disclosure he immediately called Mr. X, hence the phone calls, and together they planned to totally ignore the order to disclose and discover and answer the interrogatories. In the unlikely event that the Defendant’s affidavit is true, the defendant has still failed to show a good faith participation in the discovery process. Furthermore, Mr. X states in his affidavit that the defendant’s assertions are true and correct. Since it is unreasonable to believe that, the Defendant’s attorney is also fails to show a good faith participation in the discovery process. For this reason the motion should be denied. Back in February of 2008, in the response to the Plaintiff’s Motion for the Sanction of Rendering of Default Judgment, which resulted in the order this motion is trying to vacate, the Defendant’s counsel writes in paragraph 8 “Undersigned avows to the court that same have been forwarded this same date”. This was referring to the disclosure and that the Defendant had not produced yet. The Plaintiff received only a copy of that answering memorandum. In fact the Defendant’s attorney twice in that answering memorandum stated that the disclosure was sent or being sent. That was 4 months ago. In addition Mr. X’s assistant told the Plaintiff on the phone on January 18th that she was copying Mr. X’s documents and would be sending them later that day. That was 7 month’s ago. Also Mr. X attempted to blame the Plaintiff for his inability to disclose properly on a fictitious appointment that the Plaintiff had missed in that same answering memorandum. The Defendant’s attorney finally served their disclosure statement on July 14th, 23 months after the beginning of this action. After having misrepresented the truth on at least 3 occasions, twice in written form, and having ignored over and over the requests for disclosure and discovery, the Defendant and his attorney are asking the court to disregard these incidences of willful abuse of the discovery process. The disclosure itself was hastily prepared as can be seen by several errors in the introduction where the claim that X deposited the proceeds of the sale of her Chandler home to the “joint account” in January of 2006 instead of the correct January of 2005. Also he makes an error exactly as the Plaintiff did on the same line where the Plaintiff incorrectly stated in her disclosure she moved to Prescott in 1988 instead of 1998. The disclosure was prepared in “bad faith” as with most of the Defendant’s filings, because it is simply a duplication of the Plaintiff’s disclosure with just a few changes. Also the discovered documents that were served with the disclosure were either totally useless to the Defendant’s case, or they were copies of documents the Plaintiff had listed as her evidence supporting her case. The Defendant’s attorney padded the discovery with duplicates and separator pages that made it appear much more substantial and the picture to twist the truth. Continued “Bad Faith” in the Discovery Process

Mr. X also in section 1 accuses the plaintiff of failing to discover certain items he claims the Plaintiff was asked to provide in her deposition. The three instances he cites are misrepresentations of what the deposition shows the Plaintiff said. First, Mr. X refers to a point in the deposition where the Plaintiff was questioned whether she had any proof at all that would show who made the point of sale transactions on the bank statements in 2005. She attempted to tell him but was interrupted in exactly the location in the transcript the Defendant’s attorney cited. If he would have listened he would have heard her say that all point of sale transactions that show on the 2005 bank statements were caused by the Defendant, because when the defendant deceived the Plaintiff and convinced her to remove her name from the Joint account in December of 2004, the Plaintiff was forced to turn in her debit card. Any bank statements with transactions after December of 2004 will show transactions attributable to X. The Defendant’s attorney has already proven he has the statements from 2005 because he included them as part of his discovery. Thus the first item Mr. X says the Plaintiff promised to provide was already provided and the Plaintiff points out that nowhere in the deposition excerpt did it say that Mr. X asked the Plaintiff to produce anything. In fact all three excerpts Mr. X cites as instances where the Plaintiff promised to produce evidence are instances where he asks the Plaintiff if she could produce them if she was asked to. She answered affirmatively in all three cases. She was not asked to produce them. Furthermore in the end of Section 1 of the Motion before the bench Mr. X states he was given a box of documents that “meant nothing to the Defendant’s counsel”. Every document the Plaintiff had at that time was provided in that box. Then again in Mr. X’s affidavit he states “I could make no sense of any of the documents and I told the paralegal I would talk to my client about what we needed and then to Bob (Blakey) about what he should send. Mr. Blakey withdrew almost immediately after that and we never received the documents we were promised.” That box was provided to Mr. X by Mr. Blakey in his effort to disclose. When the Plaintiff served her disclosure statement on 4/9/2007 a letter was included addressed to Mr. X telling him Mr. Blakey had a box of documents that support the Plaintiff’s case, and that he should come and inspect them and pick out what he wanted because there were so many documents. They would be copied for him once he decided which he wanted. The invoices to the Plaintiff show an entry where the notes say “Corie to Confirm that X to inspect documents on Friday” referring to April 20th, 2007. Mr. Blakey’s motion to withdraw was granted on Sept 4th, 2007. It is unreasonable to consider 4 months later as “almost immediately after that” when the Mr. X states Mr. Blakey withdrew. Furthermore when Mr. X goes on to say “and we never received the documents we were promised”, he apparently he just forgot the previous sentence wherein he said he told the paralegal he would talk to his client and then to Mr. Blakey about what he should send, because if he was unable to talk to Mr. Blakey before he withdrew then Mr. Blakey didn’t ever promise any documents. Regardless, this is the first time the Plaintiff has heard about any request to discover anything in a year since Mr. Blakey withdrew. The entirety of the motion before the bench is apparently a misrepresentation from beginning to end, sentence by sentence. The Defendant’s attorney should be admonished for filing this motion in bad faith.

Failure to Show Meritorious Defense

Although the Defendant’s attorney has disclosed a number of documents, the Plaintiff maintains they show that they do not support his defense that the Plaintiff spent more than she contributed. In fact they show the opposite. The Defendant has not shown anything that supports his defense that he paid his half of the bills and that the Plaintiff was not involved with the purchase of the house. In fact the Defendant has chosen to misrepresent the facts saying that the Plaintiff did not allow him the opportunity to copy any of the documents she made available. Also he states in his affidavit again that he requested documents from the Plaintiff. He did not.

Failure to Show Meritorious Counterclaim

Section 2 of the Defendant’s disclosure statement under “Reasons for Request to Vacate” attempts to bring up issues from over 8 years ago and as stated in the Plaintiff’s answer to the Defendant’s amended answer and counterclaim, the Plaintiff made the defendant aware of the card’s being applied for and he gave his permission in both cases and there are no derogatory credit entries anywhere regarding these cards. The investigation into the personal information of the Defendant’s new cohabitant was initiated by the Defendant. The Plaintiff later wrote in an email that she wished to have no more to do with prying into the Defendant’s cohabitant’s personal information. The last sentence of Section 2 is confusing to the Plaintiff. X definitely does not desire any irrelevant documents. The Defendant’s attorney states that if the Plaintiff wants disclosure from the Defendant, she should disclose those documents supporting her claim. The Plaintiff doesn’t understand what this means.

Prejudice to the Plaintiff

The Defendant claims that the Plaintiff has not been prejudiced one iota in the pursuit of her claim. The fact that she has had to hire two attorneys at the cost of $26,000.00 that she had to borrow from her brother-in-law to pay would refute that claim in a normal persons view. Also the cost to the Plaintiff from the delay the Defendant and his counsel have caused in the prosecution of this case has forced the Plaintiff to absorb a substantial loss in the investment that her equitable ownership in the Stewart property represents. Anyone minimally familiar with current events would know this and how the Defendant’s council can state otherwise is hard to fathom. It should be noted that the Plaintiff has been forced to live without her rightful inheritance and the proceeds from the sale of her house after they were converted by the defendant for over 2½ years all because of misrepresentations like these. She has also been forced to hire two attorneys in this action both of which were forced to research heavily on how to combat all the impediments to achieving justice in this action the Defendant’s attorney is throwing in the way. Also at the end of the disclosure by the Plaintiff it shows the signature of Mr. Blakey. As was said earlier the Defendant should have signed it as well. Mr. X states near his signature that he knows the disclosure to be true based on documents brought to him on the 13th of July by the Defendant. The defendant swears in his affidavit that he had previously brought the documents to his office. This seems to be another misrepresentation. It might explain the errors in the deposition. For example in the Defendant’s disclosure statement just recently submitted, on page 5 line 24 it is written “In January 2006, X transferred $30,000.00 into a separate solely owned account, thereby blocking X’s access to the funds.” This is wrong it was 2005.

Conclusion

The Plaintiff is weary of the work she has had to expend to try and prevent the misrepresentations being made by the opposing party from depriving her from the justice she deserves. It is hard just to answer this memorandum in reply without hundreds and hundreds of sentences that get all convoluted and start confusing the clarity of what needs to be said. This motion the Defendant has submitted to the court is made of sentences the majority of which are misrepresentations. The affidavits are inconsistent. The statement by the defendant (or is it the defendant’s attorney) at the beginning of the motion is repeating the falsehoods that were in the answer and counterclaim and every time the Plaintiff reads these she sinks a little further into the abyss of depression caused by the knowledge that people can be so hurtful and dishonest, and now in this case they can even hire others to help them be hurtful and dishonest. This attorney for the defendant in the deposition he submitted references to specific points in the deposition and then subtly misrepresents what was written there in order to help his client try and weasel his way to having the court allow all the delays and abuse of the past 2 years. This is after he has heard first hand from the Plaintiff how her case has merit. On page 51 of the deposition attached to the motion for example, Mr. X says “And the $36,000.00 came from where?” The Plaintiff says “My Chandler-The sale of my house.”
X: “But I thought at the beginning of the deposition you told me you got $36,000.00 and then you started listing your debts you paid off?”
Plaintiff: “It was his debts we paid off.” The Plaintiff expected in this moment that the Defendant’s attorney would now see the light and that the Defendant maybe does owe her the money he subsequently took from the joint account and that he would then have to do a more in depth look to see if he his case has merit. There are many instances where the Defendant’s attorney was practically brow beating her in the deposition acting as if she was some kind of gold digger but each time he would be surprised. But the Defendant and his Attorney keep on with the misrepresentations. For this reason the motion to vacate should be denied.