IIIIII

IIIII
]11
fllll
IIIIIIIIIIII
IIIIIIII
IIIII
IIII
IIII IZI
III
CA2DB241675-06
{A8187BC7-1135-4F4A-894A-92C4C6EB2ECA}
{145490}

{30-131223:141852}

{122013}

RESPONDENT'S
BRIEF

Case

No. B241675

IN THE

COURT

OF APPEAL
SECOND

OF THE

APPELLATE
DIVISION

STEPHEN

STATE

OF CALIFORNIA

DISTRICT

EIGHT

M. GAGGERO,

Plaintiff

and Appellant,
VS.

KNAPP,

PETERSEN
STEPHEN

& CLARKE;

M. HARRIS;
Defendants

PACIFIC
511 OFW

COAST

RAY

GARCLA;

JARDINI,

and Respondents.

MANAGEMENT,

LP; MALIBU

STEVEN

and ANDRE

INC.;

GINGERBREAD

BROADBEACH

LP; MARINA

COURT
GLENCOE

BLU HOUSE
LLC; BOARDWALK
SUNSET
LLC; and JOSEPH
PRASKE
as Trustee of THE GIGANIN
TRUST, THE ARENZANO
TRUST,

and THE AQUASANTE

Additional

Appeal

Judgment

FOUNDATION

Debtors

and Appellants.

from the Los Angeles

County
Case No BC286925
Honorable

Robert

L. Hess,

RESPONDENTS'

Randall
Steven
515 South

A. Miller

Flower

Telephone:
Facsimile:
for

Judge

BRIEF

(SBN

116036)

S. Wang (SBN 184979)

MILLER
LLP

Los Angeles,

Attorneys

Superior

Street,
CA

Suite

2150

90071-2201

800.720.2126
888.749.5812

Defendants

and Respondents

Court

LP;
LP;

TO BE FILED IN THE COURT OF APPEAL

COURT

OF APPEAL,

A'i-rORNEY

--

OR

PARTY

RANDALL
Miller
LLP

Second

WITHOUT

ATTORNE_

A. MILLER

515

S. Flower

Los

Angeles,

Street,

APPELLATE
(Narr_,

(SBN
Suite

California

Bar ,'_rc,

116036),

DLSTRICT,
er. a_d

STEVEN

APP-008

Eight

DIVISION

c_. = _

c..,

_._o_

B241675

supea_ C.ot_ c.n_ Nurnne,:

eddre_J:

S. WANG

(SBN

184979)

BC286925

2150

FOR

COU_T

USE

ONL Y

90071

r_t_.E.o_
213-496-6400
FAXNO.g_,.._j:
E-M,_L_ORESS
(_n=.0: steven @mi]lerUp.com
ArrO_YFOR_.,,_:Knapp, Petersen, Clarke, et al.
APPELLANT/PETITIONER:Stephen

M. Gaggero

RESPONDENT/REAL
PARTYININTEREST:Knapp,
CERTIFICATE
(Check

one):

Notice:

INITIAL

Please

certificate
motion

OF

read

or application

also use this

be disclosed.

1. This

form

2, a. _

There

b, _

tn the

form

is being

8.208

when

as

file

Court

a supplemental

submitted

on behalf

are no interested

Interested

and

you

entities

entities

or persons

Clarke,

ENTITLES

CERTIFICATE

rules

in an appeal

INTERESTED

Petersen,

r7

8.488

brief

of Appeal,
certificate

of the following

required

CERTIFICATE

completing

this

or a prebdeflng

and

or persons

PERSONS

SUPPLEMENTAL

before

your

OR

ct al.

when
when

psrly

you

file
learn

(name):

that must

to be listed

you

You

may

use

application,

a petition

for

of changed

this
or

In this certificate

rule 8.208

form

or additional

under

for

opposition

an extraordinary

K.napp, Petersen, Clarke,

be listed

under

form.
motion,

writ.
information

the

Initial

to such
You

may

that

must

etal.

rule 8.208.

are as follows:

Full entity
name or
of person
Interested

II

Nature
of Interest
(Explain):

(1)
(2)
(3)
(4)
(5)
Continued

The

undersigned

on attachment

certifies

that

2.

the above-listed

persons

or entitles

(corporations,

partnerships,

firms,

or any other

assoc_stion,
but not including
government
entitles
or their agencies)
have either (1) an ownership
Interest
of 10 percent
more In the party If It is an entity;
or (2) a financial
or other interest in the outcome
of the proceeding
that the Justices
should
consider
in determining
whether
to disqualify
themselves,
as defined
In rule 8.208(e)(2).

December

Date:

Steven

or

19, 2013

S. Wang, Esq.
(WPE OR PPJNTNAME)

_
Judicial

_,-_
CO_7O7

u,,,

of C,._a

APP-O0S
{Ray,Januaryt. 2009]

CERTIFICATE

OF INTERESTED

ENTITLES OR PERSONS

_. _,_

c_ ._ 8.,_.a,_a
www. ,_n_ka_

ca,gay

Table of Contents

INTRODUCTION
FACTUAL
1.

...........................................................................................

AND

PROCEDURAL
Legal

Underlying

A.

The Court Found That Gaggero's

Estate Plan Was Used
Cheat His Creditors ...................................................................
The Court
Claim

Concluded

of Damages

2.

Judgment

in Favor

3.

Gaggero's

"Estate

A.

Overview

B.

Individuals

C.

Assets

KPC's
A.

5.

in Gaggero's

ARGUMENT

to Prove His

Fees Against
Gaggero

KPC ................
...........

:................

Refusal

Questions

of Privacy

Refusal

Plan,

of Order

Granting

Information
Including

Privacy

Granting

KPC's

Trust

and Privilege

Motion

the Motion

10

.... 10

or Documents
Documents,

on

.........................

12

to Amend

Judgment

and Amending

the

.........................................................................

.................................................................................................

10

Ego

........................................................................................

OF REVIEW

Privilege

Motion to Amend Judgment

to Add the Alter
.............................................................................................
Order

to the Estate

and Attorney-Client

to Provide

of Relevancy,

Relating

...................................................

to Answer

Plan ................................................

Discovery.

to His Estate

Judgment

to

Estate Plan .........................................

Estate

Grounds

Entry

Plan.". ..................................................................

Relating

7.

......................................

Failed

and Against

in Gaggero's

Gaggero's

Court's

Oaggero

....................................................................................

Praske's

6.

Action

for Attorneys'

Post-Judgment

KPC's
Parties

STANDARDS

That

of KPC

Plan on Grounds
B.

Malpractice

.....................................

The

B.

4.

BACKGROUND

..........

13

16
17
18

The Trial

Court

Properly

May Be Added
A.

Adding

Reverse

Egos

B.

That

Grounds

Gaggero's

Unity

Praske

A.

B.

Not Apply

Not

..................

to Trusts

18

or

,..............................................
Are Gaggero's

Evidence

21

Alter

...............................

Is Fact Specific

of Interest

and Based

with and Ownership

Was Fully Established

Had Virtual

Litigation

Can Be Added
Claim

Does

26

on

by the Evidence

of and Participated

Gaggero

to the Judgment

That the Trusts

...............

27

from His Creditors

....................................

Control

Through

of the Alter

28
in

.................................

as the Trustee,

Are Irrevocable

Appellants
Failed to Overcome
the Presumption
That the
Trusts are Revocable
...............................................................
Not All Irrevocable

Trusts

Are Protected

Discretion

The Court's
Not Based

33

from Creditor's
34

There
Court's

.......................................................................

Rejection

of the Irrevocable

on a Finding

of Misconduct

The Court's
Trustee

33

The Court's Refusal to Continue

the Hearing to Allow Limited
and Conditional
Production
of the Trust Documents
Was Within
Its Sound

29

Despite

........................

Reach .......................................................................................
,

18

.................................................................
26

Ego Parties

Appellants'

Egos .............

Piercing."

Allowing
Gaggero
to Hide His Assets
Would Result an Inequitable
Outcome

the Underlying
o

Does

by Substantial

Equitable

The Alter

Reverse

and the Entities

Ego Determination

Ego Parties
C.

Praske

Was Supported
Alter

"Outside
Piercing"

Alter

to the Judgment

....................................

The Finding

A.

Improper

"Outside
Trustees

That the Alter Ego Parties

as Gaggero's

the Alter Ego Parties

Constitute
B.

Concluded

to the Judgment

Exercise

of Jurisdictions

to the Judgment
Is NoMerit
2008

Was Proper.

to Appellants'

Statement

Trust

Was

..........................................
over the Trusts

Concluded

That

38

to Add the

.............................................

Contention

of Decision

Argument

36

the Trial

That Gaggero

40

andthe Alter EgoPartiesAre Financially Separate,or That KPC

9.

Is Now

Bound

by Such

KPC's

Motion

Was Timely

Estoppel
10.

CONCLUSION

..................................................

and Not Barred

Argument

Planning

that the Court's

in California

Order

Is Baseless

41

by Judicial

..........................................................................................

Gaggero's
Estate

a Finding

Undermines

43
All

.......................................

44

................................................................................
44

iii

Table

of Authorities

State
Ammco

Ornamental

(1994)
Assoc.

Vendors,

Inc. v. Oakland

of America

Meat

35

Co.

825 .....................................................................

v. Angel

View Crippled

72 Cal.App.4th

Children's

26

Foundation

45l ......................................................................

34

1194 ....................................................................

33

v. Conteras

(2002)
Galdjie

95 Cal.App.4th
v. Darwish

(2003)

113 Cal.App.4th

Greenspan
(2010)
Hall,

409 ......................................................................

210 Ca|.App.2d

(1999)
Crook

Inc. v. Wing

26 Cal.App.4th

(1962)
Bank

Iron,

Cases

v. LADT,

Heifetz
(1957)

Haisley

486 .............................................................
& Baker,

41 Cal.App.4th
v. Bank

21, 22

LLC

191 Cal.App.4th

Goodhue,

(1996)

1331 ............................................................

Inc. v. Marconi

Conf.

Center

Passim
Bd.

1551 ....................................................................

43

776 .....................................................................

33

171 .....................................................................

35

814 ....................................................................

17

1163 ...................................................................

18

of America

147 Cal.App.2d

Hill v. Conover
(1961)

191 Cal.App.2d

In re Marriage
(2008)

164 Cal.App.4th

In re Marriage
(1984)

Kazensky
(1998)

of Hoffmeister

16.1 Cal.App.3d

J.B. Aguerre,
(1997)

of Falcone

Inc.

v. American

59 Cal.App.4th

Cruar. & Liab. Ins. Co.

6 ..........................................................................

39

44 ........................................................................

17

v. City of Merced
65 Cal.App.4th

iv

Las Palmas
(199l)

v. Las Palmas

235 Cal.App.3d

Laycock

Center

Associates

1220 ...................................................................

26

25 ......................................................................

36

v. Hammer

(2006)
Mesler

141 Cal.App.4th
v. Bragg

(1985)
Misik

Associates

Management

39 Cal.3d

Co.

290 .....................................................................

l, 17, 26

v. D'Arco

(2011)

197 Cal.App.4th

NEC Electronics,
(1989)
Ohmer

v. Superior

People

ex rel. Dept.

(2008)
Sammis

Press,

661 .....................................................................

17, 18, 30

17

Wks. v. Busick
744 .....................................................................

Inc. v. Kaswa

162 Cal.App.4th

38

Corp.

1510 .............................................................

18-20

v. Stafford

(1996)

'18 Cal.App.4th

Santa Clara County

(1995) 11 Cal.4th
Steinhart

v. County

(2010)
Stewart

Pub.

259 Cal.App.2d

Instant

772 .........................................................

Court

148 Cal.App.3d

(1968)

17

v. Hurt

208 Cal.App.3d

(1983)

Postal

Inc.

1065 ..................................................................

1935 ....................................................................

17

Local Transportation
Authority
v. Guardino
220 ..............................................................................

38

of L.A.

47 Cal.4th

1298 ............................................................................

24

v. Towse

(1988)

203 Cal.App.3d

Stoltenberg

v. Newman

(2009)

179 Cal.App.4th

425 .....................................................................

40

287 ....................................................................

21

752 .....................................................................

20

Taylor v. Newton
(1953)

117 Cal.App.2d

Torrey Pines
(1991)
Faliyee

Bank

v. Hoffman

231 Cal.App.3d
v. Department

(1999)

of Motor

74 Cal.App.4th

Vikco Ins. Services,

(1999)

Inc.

(1999)

v. Church

(1977)

(2010)

Co.

55 ........................................................................

(9th

1012 ....................................................................

17

353 ...............................................................................

23

v. Chen

185 Cal.App.4th

Credit

38

of Scientology

799 ....................................................................

Federal
Fleet

17

Corp.

20 Cal.3d

Corp.

Vehicles

v. Ohio Indem.

69 Cal.App.4th

Wood v. Elling

23

1026 ....................................................................

70 Cal.App.4th

Wollersheim

Zoran

308 .....................................................................

Corp.

Cir. 1995)

v. TML Bus Sales,

65 E3d

27

Cases
Inc.

11 .......... ;.............................................................

21

In re Moses
(9 t" Cir. 1999)

167 F.3d 470 .....................................................................

34

In re Schwarzkopf
(9th Cir. 2010)
In

re

626 E3d

1032 ......................................................

36

Turner

(Bartkr.

N.D.Cal.

2005)

335 B.R.

State
Code

21-25,

Cir.

Proc.,

140 .....................................................

20

Statutes

187 ................................................................................

18

Corps.

Code,

16306 ..................................................................................

25

Corps.

Code,

16956 ..................................................................................

25

15203 ....................................................................................

36

Prob.

Code,

vi

Prob.Code, 15400....................................................................................
33
Prob.Code, 17000..............................................................................
40, 41
Prob. Code, 15304..............................................................................
34, 35
Prob.Code, 15400....................................................................................
33
Prob.Code, 17000....................................................................................
40
StateRules
Cal. Rulesof Court, Rule 3.1332................................................................
17

SecondarySources
Rest.

2d Trusts

99(5)

................................................................................

vii

35

INTRODUCTION
The

essence

justice

of the alter ego doctrine

is that

be done ....

'[L]iability
result.'

is imposed
... Thus

disregarded

to reach

an equitable

the corporate

... when

form will be

the ends of justice

so

requires.
(Mesler

v. BraggManagement
Over

sixteen

Co. (1985)

years

ago, appellant

39 Cal.3d
Stephen

plan to hide all his personal

assets

proof,

a trail of lawsuits

and set upon

of any adverse
personal

blazing

judgments.

assets

from

all of his personal

various
which

limited

assets

worth

liability

estates
held

as the "asset
in the trusts,

by the trustee

served

a crucial

underlying

absolute

M. Harris,

a judgment
Knapp,

and Andre

transferred

to $40,000,000

trusts.
name.
in the trust

for properties

to command
"estate

activities

over

payment
plan"

(1)

to avoid

in excess

of $2,000,000

Petersen

& Clarke,

(collectively

of

has

the years:

and (2) as a shield

Jardini

into

and corporations,

company

Gaggero's

his

entered

Steven
"K-PC")

Ray
in the

action.

In light of this information,

Joseph

Indeed,

in his litigation

of respondents

Gaggero

in his personal

authority

lawsuits,

to shield

over all of the assets

of a management

of the trusts.

including

in favor
Stephen

manager"

to fund various

judgments,

Garcia,

full control

dual purpose

as his piggybank

the court

exerted

judgment

designed

self-settled

nothing

by the potential

partnerships,

of three

absolutely

and exercised

money

paying

had

plan"

creditors,

limited

hatched

became

unburdened

$35,000,000

into ownership

By 1999, Gaggero
Gaggero

between

companies,

were then placed

Nonetheless,

of his future

301.)

M, Gaggero

so that he essentially

As part of an "estate

the reach

290,

Praske,

as trustee

the trial court found

of Gaggero's

Arenzano

Trust,

that appellants
Giganin

Trust,

and

by

AquasanteFoundation(collectively "theTrusts"),andPacific Coast

Management,Inc., 5l 1 OFWLP,GingerbreadCourt LP,Malibu
BroadbeachLP,Marina GlencoeLP,Blu HouseLLC, andBoardwalk
SunsetLLC (collectively "theEntities") arealteregosof judgment debtor
Gaggero,_andgrantedKPC'smotionto amendthejudgmentto addthe
Alter

Ego Parties

as additional

The Motion
testimony
Praske,

established

Gaggero's

held

persuades
Gaggero

this appeal.
arguments,
there

main

is no evidence

and (3) judicial

Each
appeal

of alter

estoppel

of these

finding

ownership
inequitable

to allow

found

the
the benefit

expressly
entities,

rejected
stating

ego[s],

"Mr.

the evidence

between

KPC from asserting

is without

merit.

was substantial

the Alter Ego Parties

The

of holding

of unity

a series

his assets.

are sometimes
Ego Parties."

alter

and the Alter

of law,

ego liability.
raised
granted

on
the

of interest

and

and that it would

of sham

The court

collectively

on

that (1)

as a matter

court properly

and Gaggero,

to hide behind

were

new argument

evidence

briefs

new

Gaggero

is prohibited

as well as each

as the "Alter

numerous

in the trial court

piercing"

arguments,

Gaggero

filed opening

to raise

ego relationship

and the Entities

in this brief

these

separately

attempt
raised

preclude

for the sole purpose

The Trusts

over

Joseph

and enjoyed

The court

Ego Parties

reverse

that there

between

and trustee

They are his alter

contentions

for the first time,

Motion

Ego Parties.

improperly

(2) "outside

including

of that."

and the Alter

they

evidence,

fully controlled

entities.

the court

While
their

Ego Parties,

created

these

Motion").

The trial court

that he had no control

controlled

("the

attorney

Waiters.

that Gaggero

argument

Gaggero

planning

James

by the Alter

debtors

l_y substantial

his estate

and his accountant

of his fortune

firmly

was supported

of Gaggero,

evidence

judgment

be

entities
also concluded

referred

to

that theAlter EgoPartieswererepresentedin the underlyinglitigation

throughGaggero.The court'sorderamendingthejudgment wasbasedon
soundlegalprinciples andsupportedby substantialevidence.The order
shouldbe atTmned.
FACTUAL
1.

The

Underlying

In or about
because

a number

Gaggero

by Gaggero

it1 a $150,000
successful

obligation

anti-SLAPP

motion.

KPC

centered

on the VNBC

Gaggero
(CT1

statement

Gaggero

a malicious

against

Gaggero
96-97.)

primarily

around

judgment.

(CTI

case proceeded

retained

One of these

of homeowners

(CTI

had withdrawn
KPC
cases

was

prosecution
(VNBC)

after

his effort

lawsuit

that resulted

VNBC

Gaggero's

to

brought

legal malpractice

to avoid

his

101 .)

to a bench

and judgment

trial in 2007

in favor

and this court

found

was fully

Court

That

Gaggero's

resulting

in

of K_PC, which

supported

by the record. 2

94.)
A.

The

to Cheat
At the trial

Found

strategy"

(1) Gaggero

implemented

2 The history

of Gaggero's

against

is well

KPC

the trial court's

Clarke

(May

Estate

Plan

Was

Used

His Creditors.

of the malpractice

used a "three-pronged
case:

counsel

75.)

Coalition,

of decision

appealed

60-62,

a group

judgment

The malpractice
a detailed

Beach

defense

case against

of his bills,

(CTI

against

Action.

after his former

over payment
of matters.

BACKGROUND

Malpractice

2000,

v. Venice North

brought

PROCEDURAL

Legal

August

of dispute

handle

AND

to avoid

underlying

documented

found

that Gaggero

the judgment

in the VNBC

plan"

that left no assets

legal

malpractice

in this court's

in Gaggero

B207567)

the court

paying

an "estate

judgment
6, 2010,

action,

v. Knapp,

[nonpub.

opn.].

in his

action

opinion
Petersen

affirming
&

own name;(2) Gaggerorefusedto pay theVNBC judgmentandusedthe

threatof bankruptcyaspart of his attemptto makeit so difficult to collect
thejudgmentthat VNBC would accepta deepdiscountto collect
something;and(3) Gaggerouseda "lien strategy"to useclaimsby other
creditorsto pushVNBC downthe collectionladder. (CT1 79.) The court
observedthat "[e]very strategydevisedor advocatedby Mr. Gaggerowith
respectto the VNBC judgmentcreditorswasdesignedto makeit so
difficult andso expens!veto continuethe fight that they would capitulate,"
noting that Gaggerohadapparentlyusedthe very samestrategyto
successfullyavoid paying otherjudgrnentcreditors. (CT1 69.)
The court specifically foundthatdespiterepeatedadviceto the
contraryfrom KPC, Gaggerou_ed"threats,bluster,andultima_rns to
attemptto discouragetheVNBC creditors." (CT1 81.) The court found
that evidencepresentedat the legalmalpracticetrial "clearly and
unequivocallysupportedthe conclusionthat althoughtherewasno legal
justification whatsoeverfor refusingto pay thejudgmentin full, Mr.
Gaggeroneverhadany intentionto pay off that obligation 100centson the
dollar. Rather,his absolutelysingle-mindedfocuswason delayas a tactic
to force theVNBC judgmentcreditorsto accepta deeplydiscounted
payoff." (CTI 69.)
B.

The Court
Claim

With respect
approximately

Concluded

of Damages
to Gaggero's

$498,000

withdrawal

as Gaggero's

made

the following

findings:

the many

interpleader
competing

matters

action
claims

Gaggero

claim

against

Failed

_ Fees
KPC

filed

counsel

handled

by KPC

on approximately
4

attorneys

$l.4

million

of
following

action, 3 the court

for Gaggero
Bank

His

KPC.

for damages

in an interpleader

by First Federal

to Prove

Against

in fees paid to his subsequent

KPC's

3 Among

That

for Attorneys

was an

to resolve
in judgment

Gaggerodid not personallypay a singledimein attorneys'

feesto anyonewho represented
him theinterpleaderaction.
All theattorneys'feeswerepaid by or throughoneor more
businessentities,including Gaggero'smanagementcompany
appellantPacific CoastManagement,Inc. ("PCM"), directly
to the attorneys,or thatGaggerohadthe authorityto represent
PCM for its damages.

There

was no evidence

capacity

as officer,

that Gaggero

director

was represented

or employee

in a

of any of these

entities.

There

was no evidence

repay

any of these

that Gaggero

entities

had any obligation

any sums which

to

they paid to the

attorneys.

Gaggero

testified

not even

have

he asked

the trustee

some

a checking

account.

Gaggero

demonstrate

made

Having

taken

this arrangement

outside

this position

and at this trial,

estoppel

position.

would

It therefore

word

on this point

trial.

Since

he paid

he wanted

money,

sole and unfettered

that he had no control

to put his assets

judicial

and did

of a trust, who may or may not give him

attempt

litigation

whatsoever,

When

or pay a bill in the trustee's

discretion.

(CT1

that he had no assets

over

any fimds,

to
in an

the reach

of his creditors.

both throughout

the underlying

the court
apply

believed

to prevent

was appropriate
and let him accept
nothing,

hoping

he could

the doctrine

any change
to take Gaggero

the consequences
recover

of

in
at his
at the

nothing.

86-87.)
obtained

by Gaggero

in a wrongful

81-83.)
5

foreclosure

action.

(CT1

61,

Basedon thesefindings, the courtorderedthatjudgment be entered

in favor of KPC andagainstGaggeroon eachcauseof actionassertedin
Gaggero'soperativecomplaint. (CT1 91.)
2.

Judgment in Favor of KPC and Against Gaggero.

OnFebruary5, 2008,the court enteredjudgrnentin favor of KPC,

andKPC subsequentlyfiled a memorandumof costsanda motionfor

attorneys'fees. (CT1 110.) The court awardedthe full amountof attorneys'
feessoughtby KPC, andan an_ended
judgmentwasenteredonMay 19,
2008. (CT1 110.) The amendedjudgmentincludedan awardof attorneys'
feesin the amountof $1,202,994.50,plus costsin the amountof
$124,702.90andpost-judgmentinterestat the legalrate. (CTI 114-I15.)
Gaggeroappealedfrom bothjudgments,which wereaffirmed by this court
on May 6, 2010. (CTI 110-111.)This courtalsoawardedKPC their costs
onappeal. (CT1 111.)
On December28, 20I0, thetrial court enteredan amendedjudgment
awardingKPC attorneys'feesin the amountof $1,395,718.40,andcostsin
the amountof $125,224.90,plus accruedpost-judgmentinterestin the
amountof $320,591.78.(CT1 115.)
3.

Gaggero's
A.

"Estate

Overview.

In or about
Joseph

Praske,

valued

between

companies,
were

Plan."

1997, Gaggero

to transfer

created

all assets

$35,000,000

general

partnerships,

Gaggero

that were part

of the estate

the membership

interests

an estate

and property

to $40,000,000
limited

as part of his asset

time of the transfer,

retained

to various

partnerships,

protectionplan.

(CTI

in the limited

129:3-9.)
liability

attorney,

he personally

(CT2

was the sole shareholder

plan.

planning

limited

owned
liability

and corporations
191-195.)

that

At the

in the corporations

Gaggero

also owned

companies

into which

all of
he

transferredhis assets.(CT1 130:3-6.)Every assetthatGaggeroowned

prior to the completionof his estateplan wasowned 100%by Gaggero,
eitherby virtue of his membershipinterestin the companies,sharesin the
corporations,or direct title to theproperty. (CT1 130:10-14.)
Upon Gaggero'stransferof his assetsto the variousentities,
Gaggerochangedthe ownership,stockmembership,limited partnership,
andgeneralpartnershipownershipinterestsin thosecompaniesto oneof
the threeTrusts. (CT2 191:23-192:1.)At the endof the day,all of
Gaggero'spropertywasheld by eithera limited partnershipor a limited
liability company,which is in turn ownedby oneof theTrusts. (CT2
193:1-7.)
B.

Individuals in Gaggero'sEstate

Stephen
Giganin

M. Gaggero

Trust,

the "asset
the Trusts.

is the settlor

and Aquasante

manager"
(CT2

196:20-197:6,

CT3 439:20-25.)

handles

everything

related

selling,

financing,

trading,

everything."

company"

to write

Joseph
CT3 411.)

a personal

Praske

Praske

13), the president,

manager

of the Trusts
secretary

of Boardwalk

and the general

partner

(CT2

account,

estate

(CT1

(CT2

(CT2

by

manager,

portfolio:

"buying

and

Gaggero

his "management

257:17-25.)
attorney.

the estate

124:19-23,

(CT3

of PCM

CT3 411-413.)

LP, Marina

(CT2

395,

plan that Gaggero

CT2 236:7-9,

LLC and Bhi House

of the 5 t t OFW

is also

owned

196:24-197:6.)

planning

195:16-21,

and director

Sunset

Trust,

Gaggero

As the asset

so he uses

and implemented

his property.

192-193.)

to the real estate

on his behalf.

is Gaggero's

designed

has used to conceal

also the trustee

checking

checks

(CT2

- Arenzano

as well as for all the Entities

Gaggero

does not have

of the Trusts

Foundation.

of the Trusts,

Plan.

CT3 412:12-

309-310),

LLC,

Praske

(CT2

Glencoe

LP,

the
195:21-22),

is

GingerbreadCourt LP,andMalibu BroadbeachLP (CT2 195:22-23,CT3

520).
DavM
counsel."

Chatfield

(CT2

the time

is Gaggero's

258:2-23,

the underlying

Praske

CT2 259:8-14,
Motion

in his individual

Gaggero

testified

exclusively

in 2007

that manages

them."

Although
documents,

including

claims
court

that there

include

notice

refused

to the vested

or my assets

to produce

company

the trust

of the Aquasante

Foundation

of the Gaggero

205:17-206:18.)

Although

his counsel

the Judgment

Praske

represented

could

and contingent

Family,"

The sole beneficiary

194:19-22.)

are no beneficiaries,
to Amend

has worked

added.)

member

(CT2

for

CT2 359- CT3 377.)

or a management

emphasis

"any

(CT2

is Gaggero.

that the Motion

first giving

or foundation

steadfastly

himself.

Trust

256:27-260:2,

Up until

was counsel

me one way or another,

260:9-12,

"in-house

CT2 260:1-4.)

Mr. Chatfield

that the beneficiaries

Trust

Gaggero

the Giganin

or trusts

(CT2

they claim

Ego Parties'

that "I think Mr. Chatfield

appellants

and the Arenzano

4 (CT2

that involve

that I set up into entities

27-28,

was filed,

capacity.

on matters

and the Alter

now

to the trial

not proceed

remainder

of

without

beneficiaries.

(RT 11:5-13.)
C.

Assets

Pacific
company

in Gaggero's

Coast

for assets

167:12-14,

Management,

personally.

(CT2

manages

his "assets,

companies,

assets

within

as the trustee of the Trusts.

255:1-5.)

In Gaggero's

me, my life,

They pay my credit

Mr. Chatfield

on the Motion

card,

represented

that he "represent
these

is the management

PCM is also the "management

Gaggero

4 Nonetheless,

Plan.

Inc. ("PCM")

held by Praske

CT2 255:1-5.)

"pay my utilities.

Estate

trusts."

company"

own words,

for

PCM

... trusts, foundations,"

and

they pay for my dog's vet bills.

to the court

the trustee

(RT 2:13-16.)
8

(CT1

at the hearing

who controls

these

I meanPCM managesmy life. It is a managementcompanyfor me

personally." (CT2 255:1-5,CT2 261:20-28,CT2 269:6-10.) Gaggerois the
assetmanagerfor PCM. (CT2 256:9-22.)NotwithstandingGaggero's
intimateinvolvementwith PCM, he did not know whetherit hadarticlesof
incorporation,whethertherewereofficers or directors,if hewas a director,
or when it wasformed. (CT2 254:21-26,CT2 255:6-18.)
The Giganin
Foundation

Trust,

the Arenzano

are the three

The Giganin

Trust

Gaggero's

trusts

in Gaggero's

is qualified

personal

1,500 acre personal

acres

adjoining

either

the Arenzano

The Arenzano

Trust

is owned

Anguilla-

known

Arenzano

trust is not a California

The

for its strong

following

entities

Blu House

LLC,

Gaggero's

real property

California

(CT1

Sunset

LLC,

formed

12, 1998

at 517 Ocean

located

(CT3

Front

Front

Walk,

368:18);

Gaggero's

California
LP, formed

property

CT2 372:7-21);

Venice,

Walk,

Boardwalk

of holding

Malibu

BroadBeach

of holding
(CT2

a number

236:22-28,

on February

(CT2

Gaggero's
(CT1
LP,
of

CT2 237:1-

5, 1998 for the

del Rey, California

Gaggero's

plan:

Venice,

California

Gingerbread

California

estate

Venice,

in Marina

of holding

The

of holding

CT2 314, CT2 365:4-366:23);

Glencoe

Walk,

374:8-9.)

373:1-11.)

at 523 Ocean

for the purpose

Front

the laws of

23, 199 for the purpose

in Southern

Marina

of holding

under

laws.

trusts,

(CT 1 121:10-15.)

as part of Gaggero's

5, 1998 for the purpose

properties

317, CT2 371:15-20,

March

were

CT2 315, CT2 367:6-CT3

20, CT2 316);

purpose

trust organized

at 601 Ocean

on February

Gaggero's

Foundation.

(CT3

The 2,000

one of Gaggero's

on May 23, 1997 for the purpose

located

134:16-21,

by another

trust.

192:25-193:11.)

193:24-28.)

asset protection

on May

134:16-21,

formed

real property

formed

formed

(CT2

trust that has title to

(CT2

or the Aquasante

is an off-shore

estate.

residence

residence.

his residence
Trust

Trust, and the Aquasante

Court

LP, formed

real property

(CT2
on
located

319, CT2 363:11-365:3);

and 511

OFWLP,

formed

Gaggero's

real property

California

(CT2

Praske
314),

318,

Court

LLC (CT2

add the Alter

4.

Glencoe

Sunset

Venice,

by KPC

Praske's
Estate

LP (CT3

LP (CT2

318).

497:2-9)

(CT2
317),

Praske

is

and the general

estate

of its motion

44-CT3

plan was provided

to amend

the judgrnent

to

377, CT3 435-537.)

Discovery.

Refusal
Plan

LLC (CT3

Glencoe

on Gaggero's

in support
(CTI

Marina

LLC

525).

information

Post-Judgment

A.

Walk,

of holding

for Blu House

and 511 OFW

LP (CT3

Ego Parties.

KPC's

Front

of process
315),

319),

of Boardwalk

All the foregoing

to the trial court

for the purpose

at 511 Ocean

for service

LP (CT2

&Marina

12, 1998

CT2 360:22-362:19).

Sunset

also the manager

partner

located

is the agent

Boardwalk

Gingerbread

on March

to Answer

on Grounds

Questions

of Privacy

Relating

to the

and Attorney-Client

Privilege.
On June
Praske.

(CT2

8, 2009,
357-359.)

Gaggero's

attorney

to provide

basic

any benefit

KPC took the third party

Praske

David

Gaggero

received

on grounds

(CT2

CT2 366:12-23,

B.

Gaggero's
Relating

underlying

5 Nonetheless,
Gaggero

KPC

Plan,

of Relevancy,
appeals
served

appellants

contend

Including

into the Entities

and privacy

rights.

or Documents
Trust

Documents,

and stays

discovery

to the contrary

10

including

and Privilege.

filed by Gaggero

27.)

plan,

refused

CT3 372:15-24.)

Privacy

by same

by

Pmske

Information

post-judgment

were not represented

estate

privilege

to Provide

to His Estate

377.)

his property

CT3 368:11-'18,

Refusal

numerous

lawsuit,

to Gaggero's

for transferring

of

at the examination

359-CT3

of attorney-client

on Grounds
Following

s (CT2

relating

and the Trusts,

362:2-7,

was represented

Chatfield.

information

debtor examination

counsel.

in the

on Gaggero

that Praske
(See AOB

and
26-

that

requiredKPC to file a discoverymotionto enforce. (CT2 291-306.) The

discoverymotion wasnecessarybecauseGaggerorefusedto answereven
basicinterrogatory,suchas "what is your his currentresidenceaddress?"
(CT2 293:5-8.) At the hearingon KPC'smotionto compel,Gaggero's
counselDavid Chatfield explainedthat "Mr. Gaggero[is] not going to
revealanyprivateinformation hemayhaveregardingthird parties"on
groundsof privacy. (CT2 296:6-8.)
OnOctober 5,2011,the trial court grantedKPC'smotionto compel
further responses,which waspromptlyappealedby Gaggeroand
subsequentlydismissedby this court in casenumberB236834. (CT2 291306.)
In addition,citing boilerplateobjections,including objectionsbased
onprivacy andprivileges,Gaggerorefusedto produceany documentsin
responseto KPC'srequestfor productionof documents.(CT2 322-326.)
Similarly, GaggerostonewalledKPC'sattemptobtaindiscoveryon
Gaggero'sestateplan,stating"documentsrelatingto assetstransferred,sold
or liquidatedover a decadeagoareclearly irrelevantto thisjudgment
enforcementandwill not beproduced." (CT2 330:16-17,CT2 332:5-16,
CT2 329-354.) Gaggeroalsoobjectedto the documentrequestsasserting,
inter alia, that the disclosure
protected
(CT2

under

violated

attorney-client

331:12-13,

third party

privilege,

CT2 332:5-16,

and/or

privacy

rights,

was

the work-product

CT2 332:25-333:1,

doctrine.

CT2 333:11-15,

CT2

333:25-334:1.)
On April
instant

motion

30, 2012,
to amend

approximately

two weeks

the judgment,

Gaggero

responses

to KPC's

document

requests.

reiterated

the same

objections

and refused

related

to the Trusts

CT3 471 : 10-12.)

or his estate
Gaggero

averred

(CT1

plan.

after

provided

supplemental
Gaggero

any documents

469:24-26,

that the trust and estate

11

filed the

54, CT3 493-494.)

to produce

(CT3

KPC

CT3 470:17-19,
plan documents

werein Praske'ssolepossession.(CT3 469:28,CT3 470:1-5,21-26,CT3

471:14-19,CT3 473: 14-20.)
5.

KPC's
Motion
Parties.
On April

to Amend

10, 2012,

KPC

Ego Parties

to the judgment.

as the trustee

of the three

The Motion
(CT1

24.)

judicial

also sought

testimony

given

Gaggero

and Praske

evidence"

Ego Parties

were Gaggero's

KPC

rejected

were

purchase

dispute
of three

(Gaggero
District,

ocean

u Yura (2008),
Division

Five

(CT3

44-54.)
the Motion.
separately

application
(2) KPC

of"outside

provided

alter egos,

from

asserting

pending

Gaggero

the alter ego

The trial court

front

litigation

and Yura

properties

Court of Appeal,
(Appeal

in Santa
Second

No. B203780)

BC239810).)
12

involving

relating

to the

Monica.
Appellate

(Super.

"no

and (3)

at trial that the Alter Ego

397-414.)

filed

for opposing

grounds.

is a currently
between

KPC

and proved"

separate.

all of these

Yura lawsuit

contract

"argued

of

grounds

requires

Ego Parties

precluded

and trial testimony

&trial

6 (CTI

three

that the Alter

estoppel

for

and Gaggero

in California,

and Gaggero

6 The

Ego Parties

ego.

request

to oppose

is prohibited

because

ultimately

v. Yura lawsuit.

they raised the same

the Alter

of counsel,

matter,

appeared

alter

ego of Gaggero.

excerpts

which

and collateral

argument
Parties

(1) adding

piercing"

judicial

the Alter

to the Motion,

the Motion:
reverse

While

as the alter

including

specially

to add Praske

that he is Gaggero's

in the underlying

in the Gaggero

Ego

to add the Alter

sought

by declaration

of exhibits

the Alter

Motion

The Motion

on the basis

was supported

Ego Parties

397-414.)

opposition

Trusts

by Gaggero

The Alter
(CT3

(CT1 24.)

and 22 pieces

to Add

filed the instant

to add the Entities

The Motion

notice,

Judgment

Ct. No.

6.

Court's

Order

Granting

On May 29, 2012,

the outset,

the court

the court

Motion

heard

to Amend

oral argument

Judgment.

on the Motion.

At

opined:

I have

a very substantial

the nature
submitted

it looks

appropriate

motions.

I seem

to have

of evidence

on

that has been

with this motion,

to me like these are

quite

Gaggero

monies

amount

of these relationships
to me in connection

and frankly

Mr.

KPC's

a showing

conlrols

here that in fact,

these -- directs

the

[at] will.

(RT 2:1-8.)
At the hearing,
tim..__&e
that the Trusts

counsel

for the Alter

are irrevocable

follow

certain

procedures

notice

to the beneficiaries

to access

the probate

Probate

Code

explanation
4:19-28,

section

waived,

The court
documents

to KPC

On that basis,
Trusts

(including

beneficiaries

trust documents.
produce

ruled

the trust documents

to the purported

offered

also argued

under

no
papers.

arguments

(RT

as being

trust beneficiaries.

could

when

not invoke
and

(RT 7:8-27.)
the terms

whether

they have

refused

observed

that Praske's

it impossible
(RT 8:4-12.)
13

the trust

confidential.

are irrevocable

The court
made

to produce

that they were

the Trusts

540.)

to these

giving

the Motion

in the opposition

had refused

that Praske

than Gaggero)
(CT3

including

of trust matters

Counsel

to

(RT 6:2-20.)

that Pmske

whether

other

objected

on the ground

the court

for the first

Counsel

to hear

jurisdiction

these arguments

agreed.

noted

(RT 3:6-24.)

(RT 3:14-16.)

KPC properly

and the court

of the Trusts,

lacked jurisdiction

17000.

for not raising

5:1-20.)

the assets

court had exclusive

argued

and that K_PC was required

of the Trusts,

for the first time that the court

because

trusts

Ego Parties

of the

there

to produce
refusal

for KPC to provide

were
the
to

notice

In finding thattheAlter EgoPartiesareGaggero'salter egos,the

court madethe following comments:
I think that they havemadea primafacia case
that theseentitiesarealteregosof Mr. Gaggero
andif I do that,thereis no doubtthatMr.
Gaggerocontrolledtheunderlyinglitigation.
Thesearenot independententitiesasI seethem
andif they are alteregosof Mr. Gaggero,and
Mr. Gaggerocontrolledthelitigation which he
undoubtedlydid, thenwhat?
(RT 17:7-14.)
IT]he exhibitsattachedto themotion contain
testimonyof bothMr. GaggeroandMr. Praske
showingthatthe only interestof the specially
appearingpartiesis to protect 100percentof
Mr. Gaggero'sassets,both personaland
business.Praskeis the only trusteeof the mast
and foundationinvolvedin the motion. He is
oneof only two officers in PCM. PCM pays
everythingat Gaggero'swisheswithout
resistanceor hesitance_Praskeis alsothe
registeredagentfor serviceof processat eachof
the businessentities. K_PC'sevidenceshows
that Mr. Gaggero'sown accountanttestified
underpenaltyof perjury thatthe gainsand
lossesfor the assetsandthe estateplan,
ultimately flow throughMr. Gaggero'stax
returns,which is moreevidenceof alterego
status.
Gaggero
the way

controlled

appearing

parties.

with Mr.' Gaggero.

Their

assets

they wouldn't

testified

that the sole purpose

appearing

Gaggero's
assets.
That is the bottom

They
line.

He did so by

of the specially

interests

Without

Gaggero

the specially

(RT 18:10-28,

the litigation.

of the financial

them

even exist.
parties

are aligned
-- without

Mr. Praske

of the existence
is to hold Mr.

are one [and]

RT 19:1-5.)

14

Mr.

the same.

of

The court
Gaggero

also specifically

fully controlled

addressed

the assets

Mr. Praske

the evidence

of the Trusts

is for all intents

showing

as his own,

and purposes

stating:

rubber stamp.
And the testimony
that you
directed me to confirm
that if he makes the
recommendation,

Mr. Praske

little hard to interpret

does it.

that language

It is a

any other

way.
(RT 22:18-22.)
... Gaggero
property
three

says I want the trust to buy this

and Mr. Praske

says Yes, Sir, Yes, Sir,

bags full and signs the check.

(RT 23:13-16.)
When

Mr. Gaggero

says jump,

Mr. Praske

says

how .high on his way up.

(RT 24:8-9.)
Ultimately,

the court

granted

I am persuaded
persons

the Motion,

by the showing

and entities

stating:

that these

are alter egos

of Mr.

Gaggero
and clearly, clearly, it would be
inequitable
not to pierce the veil -- not to get out
[sic] these entities which are his alter
Since he has this substantial
judgment
him, and he has attempted

to use these

ego.
against
devices

to put his assets beyond the reach of legitimate

creditors,
and we have had a full and fair
opportunity
(RT 25:27-28,

to litigate

this.

RT 26:1-7.)
Mr. Gaggero

controlled

these entities.

his alter ego, the evidence

court of that.

firmly

They

persuades

are
the

(RT 27:21-23.)
And Mr. Gaggero
system,

is the one who set up this

and Mr. Gaggero

you know,

is the guy who

this is what he did.

15

is --

And he did it for

that

thesepurposes.He told me so,in the trial, to

shieldhis assetsfrom creditors. I believethat
washis testimonyon cross-examinationatthe
trial in this case.
(RT27:25-28,RT28:1-3.)
7.

Entry of Order Granting the Motion and Amending the

Judgment.
On the same

minute

order.

day as the heating

(CT3

540.)

The minute

Mr. Praske,

represented

who represented
refused

order

stated

the court

entered

its

that:

by the same counsel

Mr. Gaggero,

to produce

grounds

on the Motion,

has apparently

the trust documents

that they are confidential.

on the

That refusal

has resulted
in [there] now being no evidentiary
[sic] for any of the factual assertions
concerning
the trust which
particular,

counsel

has made

to the extent

are beneficiaries
while

counsel,

have

to provide

suggests

and contingent

who are entitled

Praske,

counsel

today.

to notice,

represented
made

further

In
there

beneficiaries

the actions

of Mr.

by Mr. Gaggero's

this impossible.

information

The offer

is of limited

scope.
The motion
basis

of KPC

that the entities

Gaggero,

sets forth

a convincing

are the alter ego of Mr.

who controlled

this litigation.

(c3"3540.)
The
2012

adding

court's

order

the Alter

granting

Ego Parties

KPC's

Motion

as additional

was signed
judgment

on May
debtors.

29,
(CT3

541-542.)
On June
the order.

(CT3

1, 2012,

Gaggero

and the Alter

543-545.)

16

Ego Parties

appealed

from

STANDARDS
The trial court's
debtors

is reviewed

(2010)
sound

discretion

486,

to Code

decision

by substantial
Cal.App.3d

772, 777,
1012,

"Evidence
considered
Merced
the court
legitimate

trial court

made

(Sammis

under

discretion

Vehicles

pursuant

necessary

to

are supported

(1989)

208

(1999)

69

Consistent

of a request

Rules

164 Cal.App.4th

814, 823.)

17

principles,

where
that the

the judgments.

1942.)
a hearing

(Ohmer

Reviewing

of Court,

1026,

court will infer

to continue

a continuance

all

decision.

74 Cal.App.4th

to support

standard.

661,666-667.)

and draw

of the trial court's

1935,

v. City of

that determination,

with these

necessary

have

(Kazensky

conflicts

fact, an appellate

of discretion

(Cal.

trier of fact could

(1999)

48 Cal.App.4th

not to grant

in so doing.
(2008)

they

In making

in favor

findings

denial

the abuse

choice

findings

of Scientology

evidentiary

at p. 52.)

(1996)

148 Cal.App.3d

trial court's

44, 52-53.)

on a particular

The trial court's

reviewed

brought

and of solid value."

inferences

all factual

v. Stafford

(1983)

credible,

of Motor

supra,

is silent

great

lnc. v. Hurt

v. Church

must resolve.all

v. Department

the record

is done,

wlaether

if any reasonable

65 Cal.App.4th

1031 ; Kazensky,

197

1014-1015.)

and reasonable

(Valiyee

Factual

LLC

lies in

(2011)

of amendments

to determine

is substantial

of appeal

v. D'Arco

to see that justice

187"].)

Wollersheim

v. LADT,

to amendjudgraent

(NECElectronics,

it reasonable,
(1998)

section

are reviewed

evidence.

Cal.App.4th

order

to add judgment

(Greenspan

see also Misik

in the allowance

of Civil Procedure

the court's

508 [decision

1073 ["[i]n

is encouraged

a judgment

of discretion.

of trial court];

1065,

liberality

to amend

for an abuse

191 Cal.App.4th

Cal.App.4th

Falcone

decision

OF REVIEW

unless

courts

v. Superior

Continuances

Court

must uphold

the court

Rule 3.1332;

date is

has abused

its

In re Marriage

of

are granted

only

on an affirmative showingof goodcauserequiringa continuance. (ln

Marriage

of Hoffmeister

(1984)

161 Cal.App.3d

1163,

re

1169.)

ARGUMENT
1.

The

Trial Court

May

Be Added

Code
authority

Properly

Concluded

to the Judgment

of Civil Procedure

to use "all means

That

section

187 affords

necessary"

to carry

process

appear most conformable

to the spirit of the Code.

Thus,

a judgment
person

Code

of Civil Procedure

"to add additional

or entity

Electronics,

is the alter

Inc.,

A.

supra,

Adding

Alter

the Alter

Postal

of corporate

As support

Instant

Press,

1518 ("Postal

Instant

Press

because

In Postal
described

Instant

"'outside'

which

"a third party

claims

against

Here,

or 'third

an individual

the Alter

limited

outsider

liability

(2008)

the Fourth

that a
(NEC

Does

consist

''_ (Postal

in
on

1510,

and Postal

lnstant

to the judgment.

Court

corporate

of Appeal

as the situation
assets
lnstant

limited

in

to satisfy
Press,

not just of corporations

but also include

18

is prohibited

rely exclusively

piercing"

to reach

shareholder.

claim

"outside

162 Cal.App.4th

District

Not

to add the

so constitutes

Ego PaNes

part:/reverse

companies,

of

Piercing."

are mistaken

of the Alter

Ego Parties

the amendment

debtor."

Reverse

appellants

Corp.

seeks

may

Civ. Proc.,

to the Judgment

Appellants

Appellants

Press,

judgment

doing

for their position,

does not bar the addition

(Code

of law, it is improper

veil, which

Press").

which

on the grounds

"Outside

Inc. v. Kaswa

into effect

at p. 778.)

Ego Parties

Improper

to the judgment

piercing"

California.

ego of the original

Ego Parties
Egos.

with broad

187 allows

debtors

urge that as a matter

Ego Parties

reverse

judgment

courts

of proceeding"

section

208 Cal.App.3d

Constitute
Appellants

or mode

Alter

its jurisdiction

and to adopt "any suitable

187.)

the Alter

as Gaggero's

supra,

and

partnerships

162Cal.App.4that p. 1518,emphasisadded.) In rejectingoutsidereverse

piercingto apply a shareholder'sliability to his corporation,the Postal
Instant

Press

to pursuing
afforded
issue

court

criticized

claims

for conversion

to judgment

that outside

corporate

creditors.

reverse

Rather,

defraud

judgment

corporation

The concern
Postal

Instant

be adversely
individual
1512,

Press,

1523-1524.)

corpol_tion.

than it is about

judgment
essentially

to add new
the same

and a trustee.
subject

Instant
further

Press,
explained

against

to the
(Ibid.)
in

of the corporation

may

to pay for the debts

of an

162 Cal.App.4th

that judgment
attempts

or improper

to

by the court

supra,

at pp.

collection

to shield

transfer

by the court

assets

of such assets

observed,

in Postal

alter ego liability.

19:5.)

from

to a

but merely

as the original

These

piercing"

the court

19

upon

are not

reverse
RT 27:21-23,

and the Alter

Ego

equitable

did not amend

debtor.

Alter

analysis.

B and C, infra.

about

to add the parties

judgment

non-corporate

Press

(RT 18:10-19:1-5,

that Gaggero

To be clear,

parties,

Instant

this case is no more

one and the same based

to "reverse

in subsections

shareholders

here determined

essentially
(RT

as described

the corporation

raised

piercing

considerations.

piercing,

(Id. at p.

may seek

assets

of the

1523.)

As the trial court

were

is that a ._hareholder

protection

present.

Parties

liability."

from collection.

the fraudulent

The court

from personal

the assets

The court

the concerns

CT3 540.)

is not the misuse

personal

(Postal

(Id. atp.

Here,

seeks to address

by requiring

c_ffer adequate
through

that the "true

is that innocent

shareholder.

creditors

It explained

with reverse

affected

procedures

(Id. at p. 1532.)

by transferring

to shield

shortcut"

already

concern

creditors

as "an unacceptable
conveyance

the shareholder

the primary

in order

piercing

and fraudulent

piercing

form to shield

1523.)

reverse

who were

(Misik,

Ego Parties

See separate

the

supra,

are not
discussions

97

Cal.App.4thatp. 1072[amendingajudgmentto addan alterego doesnot

adda newjudgment debtor,but insteadinsertsthe correctnameof

the real

debtor].)
Moreover,
there

the record

are"innocent"

appellants'
members,

Press

shareholders

unsupported
Gaggero

all the Entities

admitted

sheltering

Parties

debtor,

by debtor];

Gaggero

130:10-13.)

of evading

claims

for conversion

to KPC.

The Postal

to apply

outside

revere

or

owner

of

Postallnstant
an individual

creditors

set up his "estate

traditional

reasons,

Postal

was not precluded

where

(1953)

sets

and

plan"

long before

or fraudulent
Instant

piercing

Press

is not

outside
judgment

Instant

reverse

p. 1524.)

formed

Press

creditor

2005)

in that case failed

(Postal

Instant

alternate

holding

outside

reverse

piercing

is strictly

without

exception.
2O

piercing

and controlled
140, 146-147

purpose

held that,

is created

even

if

veil was possible,

the

to meet

the requirements

for

supra,

162 Cal.App.4th

at

Press,

This

[corporate

335 B.R.

court alternatively
of the corporate

law. (See

purpose

with no business

Ego

the judgment

by California

for fraudulent

and the

the Alter

amending

752, 758-60

N.D.Cal.

of entities

piercing

its application.

order

is fully supported

(Bankr.

or series

is not controlling,

of law from adding

the court's

117 Cal.App.2d

In re Turner

8 The Postal

Press

as a matter

corporation

an entity

Instant

s Rather,

Ego Parties

v. Newton

permitted

(CT1

as in this case, where

not available

to the judgment,

Taylor

shareholders

in this case.

to add the Alter

[when

Because

for refusing

For these
trial court

the situation,

are simply

rationale

implicated

may be other

that

Despite

oath that he is the 100 percent

for the sole purpose

his assets.

he was a judgment

court's

under

the notion

of the Entities.

that there

that were put in the Trusts.

of entities

conveyance

does not support

or members

assertion

does not address

up a series

here simply

belies

appellants'

prohibited

assertion

in California

that

and

personalassetstransferredto themwith no relationshipto any business

purpose,but simply asa meansof shieldingthem from creditors,the law
views themasthe alter egoof the individual debtorandwill disregardit to
preventinjustice];andFleet

Credit

1995)'65

[applying

F.3d I 19, 120-121

by a judgment
extension

debtor

In relying
Parties

on Postal

can be added

between

trusts

not a legal
corporation,
trustee...

entity,

"[l]egal

(2003)
legal

(2009)

relating

supra,

outside

or trustees.

1331,

reverse

In fact,

supra,

and the Ninth

2010)

626 E3d

failed

of the Alter

a crucial

Ego

distinction

in California,
atp.

or

a trust

522.)

is

Unlike

by a trust is held by the

of assets

or to defend

and liabilities.

an action."

287, 293, quoting

Because

As such,

(Stoltenberg

Galdjie

directed

v.

v. Darwish

a trust is not a legal

to cite any authority

piercing,

the Second

1032,

Circuit

and trustees

applied

to reach

trust assets.

Court

in Postal

Court

of Appeals

discussed

entity,

at the trustee.

developer

to supervise

Instant

the rule

Press,

to trusts

in Greenspan,

in In re Schwarzkopf(9th
ego doctrine

that alter

Barry
his various

21

for extending

of Appeal

the alter

and concluded

real estate

companies

as stated
District

recently

of.trusts

liability

ignore

to a trust are properly

context

limited

to Trusts

that none

191 Cal.App.4th

1344.)

as an

at pp. 521-522.)
have

In Greenspan,

Not Apply

to argue

owned

to sue or be sued,

proceedings

Does

a collection

179 Cal.App.4th

the corporation

As recognized

supra,

... is simply

Appellants
against

entities.

created

alter ego].)

appellants

title to property

113 Cal.App.4th

(Greenspan,

Press

to the judgment,

(Greenspan,

it has no capacity

debtor's

Piercing"

Instant

and business

A trust

Newman

Reverse

Inc. (9th Cir.

law, a corporation

and operated

was the judgment

"Outside
Trustees.

v. TML Bus Sales,

California

to hold his assets

of himself

B.

Corp.

in the

ego doctrine

Shy created
real estate

Cir.

may be

several
development

projects. (Greenspan,supra,
transferred
brother

ownership

could

of the companies

as the trustee,

p. 497.)

and acted

One of the issues

add the trustee

companies

(LADT

the alter

a trust.
California
agreed,

cases

trust and a trustee

191 Cal.App.4th

procedure

stated

because

a judgment

capacity."

that courts

by Shy as

authority,

Galdjie,

not

court
but not a

must be made
entity,

of

a trio of

to a trustee,

between

and "the proper

that trust property

... [is to] sue the trustee

(Id. at p. 522, quoting

Citing

the Greenspan

applies

a trust is not a legal

to ensure

should

and the domination

at p. 518.)

that a distinction

for one who wishes

to satisfy

creditor

liability

and managed

of a corporation

as well as out-of-state

The court

two limited

argued

and held that the alter ego doctrine

(Ibid.)

his
(Id. at

the judgment

owned

in Greenspan

the domination
supra,

chose

(Id. at pp. 507-508.)

creditor

(Greenspan,

against

LLC)

trust,

of the companies.

was whether

entered

LLC and LAABC

between

Shy then

to an irrevocable

in Greenspan

ego of the companies.

distinguish

h at p. 496,)

as the "manager"

to a judgment

The judgment

trust.

191 Cal.App.4t

will be available

in his or her representative

supra,

113 Cal.App.4th

at p.

1349.)
Applying
party judgment

these
creditor

the owner/manager
Cal.App.4th
the alter

principles,
may

judgment."

at p. 522.)

It further

the owner

corporate
E3d

court

add the trustee

debtor

entities.

concluded

held that the third

of the trust set up by

(Greenspan,

that if the trustee

owner/manager,

of the Shy Trust's

supra,
is found

then the individual

assets

for purposes

191
to be

"may be

of satisfying

the

(Ibid.)

In In re Schwarzkopf
California

properly

of the judgment

ego of the individual

considered

the Greenspan

law, similarly
piercing

at p. 1038.)

the Ninth

held that the prohibition

did not apply

The

Circuit

court

to trusts.

upheld

Court

on outside

(In re Schwarzkopf

the use of the alter

22

of Appeals,

applying

reverse
supra.

ego theory

by a

626

bankruptcytrusteeto gain accessto the assetsof two irrevocable

(Id. at pp. 1034-1035.)
in 1992 naming

There,

their

minor

first trust (the "Apartment

(the

"Grove

Trust")

The Ninth
outset

because

fraudulent
supra,

the debtors

was funded

purpose

purpose.

15203,

of avoiding

which

trusts

(Id. at p. 1035.)

The

in 1992, and the second

trust

(1bid.)

the Apartment

Trust

was invalid

to fund the mast was "made

the Debtors'

creditors."

The court relied

provides

that "trusts

to the Grove

Trust,

from the

for the

(In re Schwarzkopf

on California

Probate

may be created

Code

for any lawful

(1bid.)
With respect

liability

in 1997.

of assets

626 F.3d at p. 1037.)

section

was funded

held/tfiat

the transfer

two irrevocable

child as the beneficiary.

Trust")

Circuit

established

trusts.

applied

to masts,

the Ninth

Circuit

held that alter

stating:

California
recognizes
alter ego liability where
two conditions
are met: First, where "there is
such

a unity

of interest

individuality,

and ownership

or separateness,

that the

of the said person

and corporation
has ceased;" and, second,
where "adherence
to the fiction of the separate
existence
fraud

of the corporation

or promote

Corp.,

See,

injustice."

20 Cal.3d

P.2d 755,761
have applied

would

353,

... sanction

Wood v. Elling

142 Cal.Rptr.

696,

572

n. 9 (1977) ....
California
courts
the alter ego doctrine to trusts.

e.g., Torrey

Pines

Bank

v. Hoffman,

231

Cal.App.3d
308, 282 CallRptr. 354, 359 (1991)
(holding
guarantors
of a family mast liable for
the trust's
(In re Schwarzkopf
The Ninth
piercing"

debts

supra,
Circuit

under

an alter

ego theory).

626 F.3d at p. 1038, emphasis

then

discussed

the rule against

added.)
"outside

and concluded:
In the context
Supreme
where

Court

of trusts,

however,

has allowed

a mast is alleged

the California

alter ego

to be a debtor's
23

claims
alter

reverse

ego

ego. Thus,in Woodv. Elling

California

Supreme

Court

a complaint

to assert

concluding,

"If it were alleged

the two trusts

alter

essentially
entities."
further

in question

reverse
(ln re Schwarzkopf,
The Ninth

piercing
supra,

then

were themselves

to confer

extend

trusts

alter

would
of

courts,

the prohibition

on

to the trust context.

concluded

that legal

of trusts,

under

1038.)

"equitable
rights."

California

ownership

requirement

626 F.3d atp.

ownership

Thus,

those

is not an absolute

supra,

held that in the context

that

626 F.3d at p. 1038.)

Circuit

(In reSchwarzkopfi

and proven

from California

we cannot

ego trust by the debtor

to amend

drop out as independent

legal
572 P.2d at 762. In the absence

guidance

therefore,

the

leave

ego claims,

egos of the [defendants],

sufficient

Corp.,

gave

of the alter

for alter

In particular,

interest

ego liability.
the court

is traditionally

(Id. at p. 1039.)

It explained:

law, trust beneficiaries

hold an equitable
interest in trust property
and
are "'regarded
as the real owner[s]
of [that]
property.'"
Steinhart
v. County of L.A., 47
Cal.4th
1298, 104 Cal.Rptr.3d
195, 223 P.3d 57,
72 (2010)

(alterations

in original;

citation

omitted);
see also 76 Am.Jur.2d
Trusts 258
(2010) (the creation of a trust places legal title
in the trustee
beneficiary;
equitable
California
sufficient
purposes

and equitable
courts

will enforce

interest).

a beneficiary's

We conclude

law, equitable
to meet
of alter

title in the
that,

ownership

the ownership

under

in a trust is

requirement

for

ego liability.

(Zb;d.)
The court
Grove

noted

that the debtors

Trust to use the trust assets

otherwise

did not treat

the Grove

were

to pay their
Trust

24

able

to direct

personal

as a separate

the trustee

expenses
entity.

and

(In re

of the

Sehwarzkopf,
by acting

626 F.3d at 1039.)

as the owners

"equitable
alter

supra,

owners"

of the trust,

ego liability.
C.

(although

not as a trustee

In the same

Piercing"

of the Alter

Appellants

no authority
piercing

silent

as to the ability

based

on inadequate
theories.

the authorizing
of courts

(Corps.
with

of limited

set forth

in Corporations
level.

preclude

to the limited

failure

to adhere

(Corps.

Code,

structural

because

partnerships

piercing

protection

establish

between

of reverse

a corporation

corporate

piercing

///

Glencoe,

LP, Gingerbread

are

the appropriate

Entities.

Entities

are

requirements

///

partnership

or

theories

no formalities

and the security

are

16956.)

differences

the application

against

to formalities,

Corporate

16956

partnerships.

for limited

in California
section

are partnerships.

///

9 The

of

to the judgment,

the veil" of liability

to partnerships

Code

partnership

statutes

16306.)

partnerships

The significant
parlmership

for

in their

that the prohibition

liability

to "pierce

Code,

regard

Ego Parties

to limited

capitalization,

required

capitalization

the

in Context

the Trusts

can be added

for their position

applies

This is because

not appropriate

were

foundation

Not Apply

grouped

Ego Parties

out that four of the Alter

offer

Does

have

they fail to point

similar

or a beneficiary),

Partnerships.

way that appellants

that none

reverse

that the debtors,

and that this was a sufficient

Reverse

Limited

outside

found

(Id. at 1038.)

"Outside

argument

The court

are Malibu
Court,
25

Broad

Beach,

LP, Marina

LP and 511 OFW

LE

and a
analysis

2.

The Finding
Egos

Was

A,

That

Praske

Supported

Alter

is not made
which

to depend

appear

general

rule is that the conditions

Whether

Associates

supported

"[t]here

will be pierced;
particular
essentially

the result

(Mesler,

(Assoc.

Cal.App.2d

825, 837.)

The two general

for imposing

alter

and ownership

no longer

corporation

alone,

Cal.2d.

exist,

commingling
individuals

general

the alter
of assets,

established

entity

should

may be
(Ibid.)

veil should

be

not be disturbed

when

when

the corporate

on the circumstances
at p. 300.)

"[T]he

is particularly

Meat

by the California

personalities

of each

doctrine
within

is
the

for

Supreme

of the corporation

will follow."

Court

urdtv of interest

and (2) that, if the acts are treated

result

veil

Co. (1962)210

are: "(1) that there be such

(Mesler,

and the
as those
supra,

of the
39

added.)

ego analysis
diversion

and corporation

The

rules may be laid down

v. Oakland

an i.nequitable

at p. 300, emphasis
While

39 Cal.2d

that the separate

individual

that the corporate

will depend

Inc.

ego liability

1248.)

of each case.

test to determine

Only

rules

factual
v. Las

a corporate

one and for that reason

Vendors,

and its

(Ibid.)

supra,

of the trial court.

guidance."

which

of fact which

is no litmus

an equitable

province

on

involving

1220,

to the circumstances

evidence.

rather

case."

under

a question

by substantial

Thus,

and Based

(Las PalmasAssociates

has established

is primarily

Alter

principles,

decisions

(199 l) 235 Cal.App.3d

according

the evidence

ignored

Specific

on equitable

upon prior

to be similar.

Center

vary

Gaggero's

Evidence.

Is Fact

is founded

Palmas

disregarded

Are

Grounds.

The alter ego doctrine

situations

Entities

by Substantial

Ego Determination

Equitable

application

and the

used

encompasses
of assets

to personal

the same office,

26

a host of factors,
use, whether

whether

such as
the

they employed

the sameattorney,whetherthe individualsusedthe corporationto procure

labor,servicesandmerchandisefor anotherpersonor entity,or whetherthe
individualsfailed to maintainminutesor adequatecorporaterecords,no
"single factoris determinative,andinsteada court mustexamineall the
circumstancesto determinewhetherto apply the doctrine..." (Greenspan,
supra,

191 Cal.App.4th

185 Cal.App.4th
B.

Gaggero's

Here,

assets

the court

controlled

the litigation.

in KPC's

Motion.

one estate

plan

a single

180: 8-14.)

When

to be purchased,

property

Entities
looked

stated:

a limited

in the estate

assets.

They

even

are one

"I could

the different
Gaggero,

no separate

take

title to a

take this asset

company,

into the estate

Trusts

in my

a limited

and then have

(CT1

provided

are all part of

and having

that entity

27

with

of the

by the evidence

or a corporation,

at "the liquidity

are aligned

and the Trusts

liability

plan.

of the financial

of the existence

in 1997 and 1998."

between

the _i_

they wouldn't

how he would

subsume..,

properties

did not distinguish

or asset,

asked

of the

(RT 18:26-19:5.)

enterprise

partnership,

or the foundation

or the different

line."

Gaggero

it to an entity,

like I did the other

Gaggero

(2010)

as follows:

interests

Mr. Gaggero

the Entities

constituting

a general

Their

was fully supported

For instance,

property

the trusts

parties.

is to hold Mr. Gaggero's

conclusion

(CT1

partnership,

and the Entities

He did so by the way

is the bottom

identity.

transfer

v. Chen

by the Evidence.

regarding

that the sole purpose

parties

That

The court's

Gaggero

them -- without

testified

appearing

the same.

name,

Corp.

Established

its conclusions

appearing

Without

Mr. Praske

specially

Zoran

with and Ownership

Was Fully

summarized

of the specially

exist.

of Interest

between

Mr. Gaggero.

[and]

Unity

Ego Parties

and ownership

"Gaggero

quot2ng

799, 8 t 1-812.)

Alter

interest

at pp. 512-513,

one of
plan, just

180:8-14.)

Thus,

in the estate

in purchasing

of the trust at the time"

a
in

plan,

determininghow to acquirethe propertywithi n

23.)

Moreover,

gains

as Gaggero

on the properties

tax returns.

(CT2

in the Trusts

also included

the Trusts

and the Entities.

the Trusts

and the Entities

Gaggero's

personal

trustee

before

Would

Parties

egos

not to pierce

referred

to

estate

plan"

by Praske,
which

or

Gaggero

(CT1

180:6-7.)

to Gaggero.

(CT2

he stated

192-193.)

that he is the

has Oands well in excess

Ego Parties

of

the veil ...

[Gaggero]

The court's

conclusion

admitting

collection

by creditors.

..."

that his estate

who set up this system

his assets

The court

devices

among

persons

it would

28

Ego

and entities

be inequitable

judgrnent

against
beyond

RT 26:1-6.)
others,

plan was set up solely

conmaented:

if the Alter

to put his assets

(RT 25:27-28,

creditors."

of

His Creditors

result

"these

clearly,

... he did it for these

from

from

has this substantial

was based,

an unity

Outcome.

stating:

to use these

creditors

His Assets

would

and clearly,

shared

The

by the evidence.

that _

to the judgment,

of Mr. Gaggero

testflnony

to Hide

and convincing.

and Gaggero

an Inequitable

also concluded

of legitimate

trial, to shield

and Praske

trust."

as belonging

Gaggero

him, and he has attempted

reach

to

the court was substantial

Result

were not added

are alter

Gaggero's

referred

CT2 222:5-8.)

was fully supported

Allowing

The court

192:25-28,

estate"

that the Alter

and ownership
C.

all

285:7-11.)

conclusion

interest

in the estate,

and Praske

"Gaggero's

submitted

personal

The evidence
court's

(CT2

in a declaration

(CT2

both Gaggero

as constituting

to the Trusts

of "Gaggero's

$1,100,000.

149:13-

flow through

the way Gaggero

as "my trust, my personal

also referred

For example,

of the assets

and the Entities

Tellingly,

estate.

to the Trusts

Praske

(CTI

241:4-7.)

The evidence

referred

is the real owner

his estate.

on Gaggero's

to avoid judgment

"Mr. Gaggero
purposes.

(RT 27:25-28,

own

is the one

He told me so, in the

RT 28:1-3.)

In

light of the court'sfinding thatGaggerocontrolled and

the assets
allow

in the Trusts,

Gaggero

Parties

to insist

foreclosing

prevent

created

legitimate

while

serving

correct
through

from

as Gaggero's

from

conveyance

him and the Alter

to
Ego

plan"

will result

"estate

his enormous

The

to avoid

set up solely

in an injustice

As the

plan"

assets,

(RT 25:4-7.)

Gaggero

ago,

by his creditors.

of Gaggero's

reaching

that allowing

creditors,

be inequitable

well over a decade

"piggybank."

the use of his "estate

assets

between

the sole purpose

creditors

in concluding

plan"

for fraudulent

recognized,

that it would

to

by the evidence.

his "estate

any claims

clearly

conclusion

on the separateness

was fully supported

Gaggero

court

the court's

had full access

all the

court

his lawful

to shield

is to

was
obligation

his personal

to KPC and otfier creditors

of Gaggero.
3.

The

Alter

Ego

Parties

in the Underlying
Taking
there

snippets

of evidence

was no evidence

represented

the ample

interests
Parties

were
were

virtually

dominated

represented
strikingly

an individual's

interests

representation
established."

by Gaggero,

similar

the court's

a single

control

of the proposed
(Greenspan,

fail to

that Gaggero's

that the Alter

Ego Parties

through

in Greenspan

enterprise

of the arbitration

judgment

supra,

debtors

191 Cal.App_4th

explained:
29

consisting

Ego

were

Gaggero.
held that when

are the same as the trust and companies

dominated

the "requisite

the court

that

or were

finding

Ego Parties,

litigation

contend

so, appellants

and that the Alter

facts,

Participated

appellants
controlled

In doing

in the underlying

Under

companies,

Ego Parties

of the Alter

of and

Gaggero.

of out context,

supporting

as those

Control

Through

litigation.

evidence

the same

and the individual

Virtual

that the Alter

in the underlying

recognize

Had

Litigation

he created,

of the trust

and the virtual

will be necessarily
at p. 509.)

The court

and

Section
187 does not require that the proposed
judgment
debtors "themselves,
technically
[have

been]

given

the arbitrator
arbitration.

([bid.,

quoting

NEC

they should

Electronics

Just as in Gaggero's
Shy, created
estate

several

chose

companies.
issue

his brother

trustee

was

of Shy trust,

6th St. Loft LLC)

liability

companies

and acted

his various

as the "manager"

real

of the

The primary

could

add Shy, the

companies
entered
LLC)

to

495.)

creditor

LLC and LAABC

Barry

of the companies

atp.

by Shy to a judgment

(LADT

in Greenspan,

the ownership

liability

at p. 779.)

to supervise

the judgment

and two limited

in the

208 Cal.App.3d

191 Cal.App.4th

whether

created

prevailed

companies

transferred

supra,

to convince"

the individual

as the trustee,

(Greenspan,

in Greenspan

plan,

liability

projects,

have

lnc., supra,

estate

limited

development

a trust,

the opportunity

(Harpo

LLC

against

two limited

on grounds

and

of alter

ego liability.
In concluding

that Shy dominated

the trust and its companies,

representation
explained
person

and exercised

of the proposed
that the alter

in charge

of a single

is typically

entities,

not with the specific

treated
their

concerned

supra,

"distinct"

concerned,

Greenspan

during

interests

In Greenspan.
the arbitration

as a unitary

interests

their

were

there

on behalf
court

amount

enterprise,

Thus,

to his own.

was no dispute

3O

alter

ego
held by all

one.

not have

and

considered

(1-bid.)

that Shy directed

Shy's

that the

as far as he was

and the two judgment

that because

court

if Shy viewed

because,

of

and

of his assets

he would

the arbitration

of himself

concluded

of several

by any pa_icular

at p. 510,)

identical

control

on the theory

consisting

held

consisting

the G_'eenspan

with the total amount

191 Cal.App.4th

all the entities

debtors,

is premised

enterprise

enterprise

the requisite

judgment

ego doctrine

entities

(Greenspan,

a single

the defense
debtors.

trust and entities

in

The
were

part

of a singleenterprise,they weredeemedto havecontrolledandwere

representedin the arbitrationthroughShy. (Greenspan,supra,
Cal.App.4th

191

at pp. 509-510.)

Applying

the holding

requisite

control

the Alter

Ego Parties.

of multiple

and virtual

trusts,

partnerships

in Greenspan
representation

Gaggero's

corporations,

- all controlled

estate

his enterprise,

i.e., the Alter

liability

lawsuit

attached

was

parties

Mr. Gaggero's

is to protect

assets,

satisfied

for

consisting

and limited

Gaggero's

to the motion

that the

enterprise

The trial court

that the only interest

appearing

been

control

on his behalf

of both Mr, Gaggero

showing

have

companies,

Thus,

Ego Parties.

exhibits

it is clear

plan is a single

by Gaggero.

in the underlying

[T]he

elements

limited

representation

testimony

to this case,

and

and on behalf
agreed,

of

stating:

contain

and Mr. Praske

of the specially
100 percent

both personal

of

and

business.
Praske is the only trustee of the trust
and foundation
involved
in the motion.
He is
one of only two officers

in PCM.

everything
resistance

wishes
Praske

at Gaggero's
or hesitance.

PCM

without
is also the

registered
agent for service of process
the business
entities.
KPC's evidence
that Mr. Gaggero's
under

penalty

own accountant

of perjury

pays

at each of
shows

testified

that the gains

and

losses for the assets and the estate plan,

ultimately
flow through Mr. Gaggero's
tax
returns,
status.

which

is more evidence

of alter ego

(RT 18:10-25.)
Appellants
the evidence
the Alter

before

the court

Ego Parties

Specifically,
"to protect

do not dispute

the court
100 percent

were
found

that Gaggero

established

completely

controlled

the litigation,

that the interests

aligned.

(RT 18:10-28,

that the Alter Ego Parties'

of Mr. Gaggero's
31

assets,

of Gaggero

"only

both personal

and
and

RT 19:1-5.)
interest"

was

and business"

(RT 18:12-14),
ultimately

all "gains

flow[ed]

without

Gaggero

and losses

through
the Alter

and that Gaggero

for the assets

Mr. Gaggero's
Ego Parties

and the estate

tax returns"

"wouldn't

and the Alter Ego Parties

were

plan,

(RT 18:22-24),

even

exist"

"one

[and]

(RT 19:1-2),
the same"

(RT

19:5).
Moreover,

there

"asset

manager"

assets

in his estate

from

of the Trusts,
plan.

his personal

manager

CT3 439:15-25.)

to improve

financing,

designing

transferred

to his estate plan,

the asset,

197:1-6.)

issues,

ultimate

Gaggero

use of all the assets,

the disposition

be retained."

145:15-20,

"always

(CT1

had the ability

pull cash
Gaggero

directly
was

the estate

plan.

(CT2
estate

215:16-28.)
plan,

Praske

recommendations.

(CT2

to providing

to Gaggero.

advice
that once

was "absolutely"

Parties
litigation

implemented.

Thus,

the evidence

were

essentially

throug!!

Gaggero.

In fact,

testified

the assets

150:3-5.)

they should
that he

in the trust or

According

to Praske,

to real estate

followed

215: l 6-28.)

held

investments

Praske's

role was

Gaggero's

relating

limited

accountant

to the estate

plan,

233:18-234:18.)
before

the court

represented
it is instructive
32

in

Gaggero's

234: l 3-15.)

a decision

(CT2

and virtually

Gaggero

and best

With respect

(CT2

was clear

140:1 I-

to aU the real estate

always

made

(CT1

with respect

214:11-13,

Gaggero

to the asset,

and whether

against

(CT1

"the decision-maker"

for Gaggero's

confirmed

money

buy or sell

as to the highest

CT3 440:6-14.)

out of the trust."

to...

of the asset."

of the assets

to borrow

of"refinancing,

decisions

"determination

him the

CT2 196:24-28,

any improvement

disposition

made

and property

appointed

in charge

making

overseeing

and use of his

his assets

145:10-24,

was

that as the

control

Praske

(CT1

Gaggero

insurance

some

the court

Gaggero

In this capacity,

the asset,

before

had complete

and the Entities.

with tax issues,

19, CT2

evidence

Gaggero

After

portfolio

of the Trusts

dealing

was ample

that the Alter

Ego

in the underlying
that Gaggero

is

it

separatelyassertingonthis appealthatthe alter egofinding shouldbe

reversed,eventhoughasthe original debtorwhoseliability on the judgment
wasalreadyfixed andestablished,Gaggerohasno standingto appealthe
order,t Gaggero'sown appealfrom the orderdemonstratesthat he andthe
Alter Ego Partiesareindeedoneandthe same,andthattheir interestsare
inseparablyintertwined.
4.

Praske Can Be Added to the Judgment

as the Trustee,
Appellants'
Claim That the Trusts Are Irrevocable.
Without

or the court,

making

appellants

the trust documents

boldly

reached

because

rejected

by the trial court,

A.

the Trusts

of the [trust]
Cal.App.2d

776, 783.)

and should

(Heifetz
"Under

(2002)
provides

intended"

by this court

trust instrument,

language

to create

That

(1957)

the

comers

147
or

by examining

the

used in the instrument

an irrevocable

1194, 1209.)

Probate

a trust is expressly

the trust is revocable

as well.

the "four

law, the existence

made

by the settlor."

trust.

(Crook

v.

Code

section

15400

irrevocable
(Prob.

Code,

by the

15400.)
Here,
judgment

appellants'

because

the Trusts

LoKPC has filed

that Gaggero
adding

argument

a motion

to dismiss

has not been

the Alter

that the trustee

are irrevocable

Ego Parties.
33

cannot

be added

is unavailing

because

Gaggero's

personally

be

soundly

the Presumption

of America

by KPC

cannot

was

by examining

v. Bank

from

95 Cal.App.4th
that "[u]nless

of the Trusts

must be determined

and determining

[the settlor]

for inspection

This position

be rejected

California

of a right to revoke

trust instrument

further

are "irrevocable."

of a trust is determined

instrument."

nonexistence

Conteras

that the assets

Appellants
Failed to Overcome
Trusts are Revocable.

Revocability

whether

assert

available

Despite

appeal

aggrieved

to the
they

on the basis

by the order

failed andrefusedto producethe actualtrustinstrumentsto prove that the

Trustsarein fact irrevocable. Becausea trustis presumedto be revocable
by defaultunlessexpresslymadeirrevocableby thetrust instrument,
appellants'failure to put the actualtermsof the Trustat issueis fatal to their
"irrevocabletrust" argument.(Bank of
Children's

Foundation

representation
court

B.

voids

to disregard

assuming

as a matter

such trusts

the reach

of their

of such property.
Probate

of law.

creditors

Trusts

Are

from

are irrevocable,

trusts

can never

Creditor's

appellants'

be reached

law prohibits

self-settled

individuals

from placing

their property

at the same time still reaping

(9 th Cir. 1999)

provides

167 E3d

interest

470, 473.)

that

is subject

to a provision

restraining
the voluntary
or involuntary
transfer
of the settlor's interest, the
restraint

is invalid

against

creditors
of the settlor.
the restraint
on transfer
the validity

trust created
instrument
pay income
education

or

The invalidity
of
does not affect

is the beneficiary

by the settlor
provides

34

and the trust

shall

or both for the

of the beneficiary

discretion

of income

of a

that the trustee

or principal
or support

the trustee

the amount

transferees

of the trust.

(b) if the settlor

to determine

or principal

trusts

or

is
and

beyond

the bounties

(a) if the settlor is a beneficiary

of a trust
created by the settlor and the settlor's

gives

and the

California

while

15304

Protected

that the Trusts

(In reMoses
Code

Their

is of no consequence,

of an irrevocable

to prevent

l'Tew Crippled

this argument.

arguendo

that the assets

v. Angel
451,459.)

are irrevocable

Not All Irrevocable

Reach.

Even

incorrect

72 Cal.App.4th

that the Trusts

was correct

contention

(1999)

America

or

both to bepaid to or for the befiefit of the

settlor,a transfereeor creditorof the
settlormay reachthemaximumamount
thatthe trusteecouldpayto or for the
benefitof the settlorunderthe trust
instrument,not exceedingthe amountof
the settlor'sproportionatecontributionto
the trust.
(Prob.Code,15304.)
Thus,
whole

if the settlor

or in part,

the settlor

of the trust retains

the trust property

to the extent

the power

is subject

of the power

to revoke

to the claims

of revocation

during

the trust in

of creditors

of

the lifetime

of the

settlor.
Moreover,
of a trust,

the trust's

terminated

a debtor

protective

( 1961)

(1994)

is the sole beneficiary

benefits

and the beneficiary

Conover
_ng

when

holds

l 91 Cal.App.2d

26 Cal.App.4th
This

debtor

all the equitable

now holds

beneficiary,

legal

a trust relationship
other

the Trusts

nothing

free of trust.

17 l, 180; A m mco

because

and that person

2d Trusts

1ton, Inc. v.

99, subd.

(5), com.

of merger-the

in the trust in his capacity

in his capacity

are vested

(Hill v.

Ornamental

of the doctrine

interests

interests

interests

the trial

court

and the assets

noted

that even

more

the wishes
these

trust assets

the trust is deemed

as the trustee.

in one person,

can fully dispose

there

as the
When

is no longer

of the property

as any

person.
Here,

court

happens

and all the legal

the equitableand

are lost because

409, 417; Rest.

e., pp. 228-229.)

and the sole trustee

than

findings,

Gaggero

that Gaggero

in the Trusts.

though

a mere

ofGaggero.

found

Praske

"rubber

exercised

(RT 18:10-28,
was technically

stamp"

(RT 22:19-22,

35

RT 19:l-5.)
the trustee,

and had no authority

RT 23:13-16,

was the de facto

full control

trustee

RT 24:8-9.)

of the Trusts.

over

The
he was
to go against
Under
Thus,

the

doctrineof mergerpreventsGaggerofrom shieldingthe assetsin the Trusts,

of which he hadabsolutecontrol, fromthe reachof his creditors.
In addition, appellants'relianceon Laycock
Cal.App.4th
that assets

25 is misplaced
of an irrevocable

does not address

trusts.
creditors

or other

Schwarzkopf
be created

Schwarzkopf
supra,

irrevocable
supra,

of the trusts

claim.

of defrauding
(In re
["A trust may
policy"].)

in In re
(In re Schwarzkopf

191 Cal.App.4th

as irrevocable

It

to irrevocable

public

trusts.

rule

at p. 497.)

had no bearing

on the

by the trial court.

Its Sound

At the hearing
David

Esquibias,

notice

RT 4:1-4.)

in written

appellants'

the argument

jurisdiction

to provide

379-414,

Discretion.

on the Motion,

raised

had exclusive

required

raised

the general

15203

or against

141

The Court's
Refusal
to Continue
the Hearing
to Allow Limited
and Conditional
Production
of the Trust Documents
Was
Within

(CT3

Code,

to alter ego liability

were

(2006)

to a creditors

for the purpose

at 1037; Prob.

Greenspan,

made

states

ego doctrine

that is not illegal

and Greenspan

the status

simply

and may be disregarded.

held to be subject

ego analysis

5.

court

626 E3d

626 F.3d at [034;

Thus,

alter

is illegal

for any purpose

the trusts

of the alter

that a trust created

persons

supra,

Laycock

trust are not subject

the application

It is well-settled

Indeed,

because

v. Hammer

opposition

The Court:

over mast matters,

to the Motion,
a reason,

that apparently

of the Trusts.

why this .argument

counsel

you are making

offered

is there

a reason

an argument

now

goes to

I can tell the court

am specially

36

appearing

was not

no explanation:

jurisdiction?
Mr. Esquibias:

counsel,

and that KPC was

to the beneficiaries

questioned

Is there

retained

for the first time that the probate

of the Motion
When

newly

that I

for the

purposeof arguingjurisdiction
andnotice. I have.noexplanation
as to why it wasn't
opposition.
(RT 4:3-5:7,
After

emphasis

raising

I am late to this party.

added.)

acknowledging

their opposition

in the

papers,

the arguments

that the new arguments

counsel

averred

were not briefed

that it did not preclude

for the first time at the hearing.

The Court:

Well,

why?

these

are essential

they could
Mr. Esquibias:

is, if

arguments,
back

The Court:

the moving

Is it anything
though,

why

so that

not respond

to them?

It was not designed

ambush

him from

(RT 5:11-13.)

So my question

did you hold them

in

to

party.

other

than ambush

at this point?

(RT 5:14-20.)
In addition
trial court noted

to appellants'
that there

by Mr. Esquibias,
(RT 6:22-28,
provide
continuing
confidentiality
information,
RT 10:26-28,

the existence

of beneficiaries

RT 11:14-17.)

In response,

relating

order,

been

deemed

RT 11:13,

contingent

IT]his

percolating

fundamental

timely,

the assertions
entitled
counsel

the
made

to notice.
offered

to

on (1) the court

to the beneficiaries,
an agreement

was necessary.

(3) obtaining

on a limited
(RT 7:3-8,

scope

a
of

RT 9:24-10:5,

RT 12:1-24.)

where

these

for a long time,

unfairness

all these

and saying

contingent

offer was properly

is a situation

through

notice

and (4) obtaining

RT I1:1,

Appellants'

to the trusts

(2) giving

as appellants

the arguments

to support

RT 7:28-8:12,

the heating,

to raise

was no evidence

including

information

failure

hoops

to making

rejected
issues

by the trial court:

have

and there

is a

KPCjump

to collect

the judgment

no, no you can't have

X, Y and Z,

37

andthencomingin atthe last minutemaking

argumentsnot setforth in thepleadingsbased
on evidencenot beforethe courtandsaying
Judgegiveus a do over.
(RT27:7-14.)
The court

further

gets new counsel.

makes

or doesn't

appellants
rejected

make

v. Ohiolndem.
does

argument.
Guardino

(1995)

Co. (1999)

Clara

discretion,

showing
Busick

which

6.

The

Court's

Not

Based

Speciously,
court

on their

that appellants
rejection

cannot

the court

Authority

be disturbed
(People

744,

is a matter
"on appeal

of

v.

was within

its discretion
to produce

of Misconduct.

contend

to deny

upon

a clear

Wks. v.

a misconduct.

Trust

was because

38

evidence

Argument

Was

to win over the trial

the trial judge

In characterizing
to accept

appellants'

the trust documents.

that their failure

trust argument

as a refusal

Pub.

the

749.)

of the hearing

appellants

within

except

ex rel. Dept.

on a Finding

of the argument

The court

at oral

Transportation

of the Irrevocable

committed

or presented

(Vikco Ins. Services,

55, 66-67.)

Rejection

irrevocable

raised

on appeal.

of a continuance

of discretion."

for a continuance

the court

(RT 26:6-27:15.)

for the first time

Local

that

220, 232, fn. 6.)

259 Cal.App.2d

Accordingly,
request

County

or denying

of an abuse
(1968)

raised

the Motion,

not properly

70 Cal.App.4th

points

11 Cal.4th

The granting
court's

or theories

counsel

Concluding

foundation.

will not be considered

not consider
(Santa

to litigate

Mr. Praske

new

(RT 26:9-10.)

as lacking

rule, issues

the trial court

appeal

in his opposition."

arguments

for when

for what arguments

had a "full and fair" opportunity

As a general

Inc.

"I am not responsible

I am not responsible

the untimely

before

stated

found

the trial court's

of the trusts

as

irrevocable,appellantsobscurethreeimportantfactsrelatedto their
argument.
First, the trial court did not rejectany evidence,becauseappellants
hadnot producedany evidenceatthehearingfor the notion that the trusts
are irrevocable.Appellantsflatly refusedto producethe trust documentsat
the hearing,eventhough counselhada copy of the trust documentson him.
(RT 9:7-10.)
Second,the court rejectedappellants'requestfor a continuanceonly
after providing appellants'counselan opportunityto explainwhy the trust
argumentwaswithheld until the dayof thehearing. Counselfor appellants
wasunableto offer anyexcusefor failing to includethe argumentin
oppositionpapers. (RT4:3-5:7.) The consequence
ofappeUants'failure to
properly providesupportfor their oppositionto the Motion wasthatthe
court did not find the argumentpersuasive.(RT 6:18-26.) The
rejection

of the argument
Third,

appellants'

conditional

and limited

9:24-10:5,

RT 10:26-28,

make

an unequivocal

a continuance
production

was not an "evidentiary

as to the scope

the parties

argument
courts
order

is irrelevant

do not review
correct

rejection

because

there

the reasons

on any theory

reasoning

may have

been

& Liab.

Ins. Co. (1997)

of appellants'

order

amending

the judgment

as to the scope

was no error either

of the

even though

6, 15-16.)

lnc.

39

Appellate
- an appealed

the trial court's

v. American

As discussed

does not, as a matter

to add the trustee

trust

way.

decision

(J.B. Aguerre,

59 Cal.App.4th

of the trust as irrevocable

did not

- only requesting

irrevocable

for the trial court's

erroneous.

They

RT

order.

will be affirmed,

stares

RT 12:1-24.)

and confer

was

(RT 7:3-8,

the trust documents

to meet

to a confidentiality

the trust documents

of the production.

RT 11:1, RT 11:13,

In the end, the court's

sanction."

offer to produce

offer to produce

to allow
subject

purported

court's

above,

of law, preclude

of the Trusts.

Guam.
the
an

7.

The Court's

Exercise

the Trustee
Probate

of Jurisdictions

to the Judgment

Code

section

(a)

court

the trust pursuant

The superior

over

the trust pursuant

concurrent

having

jurisdiction
has exclusive

concerning

court having

the

jurisdiction

to this part has

iudsdiction

of the following:

(1)
Actions and proceedings
determine
the existence
of trusts.

(2)
against

Actions

creditors
(3)

(Prob.

Code,

17000,

emphasis

Thus,

the statute

clearly

probate

court,

debtors

of trusts,

appellants

jurisdiction

According

that the ruling

to appellants,

ego liability

argument
proceedings
affairs

designated
authority

trustee,

over the trustee's

arrangements.

added.)

(Stewart

the superior

trustees

that the court

concerned

acted

court

of the terms

v. Towse

4O

or

of the trust,

Here,

of trusts."
to determine

authority

for their

to judicial

Rather,
changes

internal

trust

in a

fi'om trust provisions,

or the administration
(1988)

to a

of its jurisdiction

affairs

amounted

affairs."

deviation

creditors

has authority

to the judgment

acts,

outside

cite no legal

"internal

as opposed

and third persons.

the "internal

Appellants

other

court,

by or against

involving

the trusts'

modification

successor

and proceedings

provides

the trusts

concerning

concern

actions

only a probate

of a trust.

that adding

of trusts.

over proceedings

argue

by or

and third persons.

or proceedings

erroneously

on the ground

alter

Other
trustees

to

and proceedings

or debtors

involving

to Add

as follows:

to this part

jurisdiction
of proceedings
internal affairs of trusts.
Co)

the Trusts

Was Proper.

17000 provides

The superior

over

over

203 Cal.App.3d

of the trust's

financial

425,429-4300

Thecourt hadconcurrentjurisdiction overthe Trustsin ruling that

the trusteeshouldbe addedto thejudgmentbecausethe court'sorder
involved "actionsandproceedingsby ... creditors..,of trust" and"actions
andproceedingsinvolving trusteesandthird parties." (Prob.Code,
17000,subd(b).) Clearly,with respectto theTrusts,KPC'sMotion wasto
addPraske,asthe trusteeof theTrusts,to thejudgment,not to modify any
termsof the Trusts,otheradministrationof theTrusts'intemai affairs.
AppellantsalsoarguethattheMotion doesnot qualify as anaction
or proceedingby Oragainsta creditorpursuantto ProbateCodesection
17000(b)(2)which providesthatthe superiorcourt hasconcurrent
jurisdiction overthe trust in "actionsandproceedingsby or against
creditors...." Appellants'reasoningis thatthe trusteeis not a party to this
actionandthat creditorswerenot creditorsprior to the court'sgranting of
the Motion. Their argumentfails becauseProbateCodesection
17000(b)(2)doesnot requirethatthe trusteebe a party to the action.
Therefore,the assertionthatthe court did not haveconcurrentjurisdiction
over this issueis simply erroneous.More significantly,appellantsprovide
no authority in supportof their assertionthatthe Motion wasimproper
becauseit wasnot a proceedingby a "creditor" &the
motion
8.

There

Is No Merit
2008

to Appellants'

Statement

and

the Alter

Ego

KPC

Is Now

Bound

Appellants
&proof

falsely

also all the other

Parties

after the

Alter

this argument

litigation

to recover

proof

at the hearing,

That

Separate,

Gaggero

Ego Parties

the Trial
Gaggero
or That

a Finding.

that because

as conclusive

That

Concluded

Are Financially

by Such

claim

Contention

of Decision

in the underlying

PCM that it serves

rejected

until

was granted.

Court's

burden

trusts

failed

damages

that not only is PCM

are separate.
pointing

41

to meet

on behalf

separate,

The trial court

his
of

but

expressly

out that the discussion

in its

statementof decisionrelatedsolelyto Gaggero'sfailure to offer evidenceto

supporthis damages,stating:
You aresuggestingthatthe fact thatat trial Mr.
Gaggeroput on no evidencethathe wassuing
on behalf of PCM tOrecovertheattorney'sfees,
is somehowdispositive.It is not. Thatwasa
commenton the failure of Mr. Gaggeroto
producecertainevidencein the trial whenit was
directedto the issueof damages,his damages.
(RT 15:5-11.)
Likewise,appellants'claim thatKPC prevailedin the underlying
trial becausethe court foundno reasonto believeGaggero'sdebtswerealso
theAlter EgoParties'is erroneous.The fact supportedby the evidenceis
thatGaggerofailed to provideevidencethathe hadstandingto sueon
behalf PCM. KPC did not argueandcertainlydid not provethat PCM was
separatefrom Gaggero.The trial court correctlyrejectedthis argument.
Lastly, appellantsimproperlyseekto attributeself-serving
statementsmadeby GaggeroandPraskein their declarationssubmittedin
the Yura
KPC

lawsuit

drafted

as there

that their

the declarations.

is nothing

these

declarations.

KPC,

appellants

drafts

a declaration

Moreover,

"binding

judicial

that signed

claim

to KPC,

that the attorneys

even

for his client

and signed
for such

put, testimony
admission"

under

at KPC

if the declarations

is somehow
penalty

pointing

is without

fail to cite to any legal authority

authority

Simply

were separate

Appellants'

in the record

in the declaration
is no legal

finances

out that

any foundation
in fact drafted

were

drafted

that an attorney

by
who

bound

by the statements

of perjury

by the client.

made
There

a proposition.
of Praske
on KPC.

or Gaggero
They

the declaration.

42

does not constitute

are binding

only on the party

9.

KPC's

Motion

Was Timely

and Not Barred

by Judicial

was an improper

55 month

Estoppel.
Appellants
KPC

contend

in bringing

argument.

the Motion,

Appellants

A court

486,

Conf.

available

its judgment

508; Hall

Center

complaint

Gaggero's

in other parties,

entry

of judgment.

legal

let alone

Just as importantly,

legal
delay

legal

the alter

Moreover,
underlying

of the judgment.

ignore

in 2008

That

affirmed

the judgment

6, 2010,

B207567)

in full.

judgment

until

December

obtaining

the final judgment,

post-judgment

Gaggero's

appeal

28, 2010.
KPC

discovery.

of the underlying

was

was simply

no

to the case.

KPC

and did not file a cross-

Ego Parties,

prior

to

to the court's

was not an issue

in the

had no practical

Accordingly,

or basis

there

reason

or

was no

and no waiver.
the fact that Gaggero's
in an automatic
until May

(Gaggero
opn.].)

supra,

1555.)

had no obligation

and KPC

resulted

stay remained

[nonpub.

traditional

the Alter

KPC

alter ego liability.

appellants

judgment

relief.

lawsuit,'

the

Inc. v.

the Motion

as parties

malpractice

ego issue,

1551,

case, there

Ego Parties

lawsuit,

to litigate

in raising

of the

(Greenspan,

supporting

alter ego liability

malpractice

obligation

by

designate

& Baker,

41 Cal.App.4th

any affirmative

bring

underlying

Haisley

to the trial of the underlying

to seek

in a waiver

after judgment.

and information

for KPC to add the Alter

was defending

resulted

so it will properly

Goodhue,

Bd. (1996)

testimony

prior

reason

amend

at any time, including

19l Cal.App.4th

While

and that the delay

delay

are wrong.

may

real defendants

Marconi

that there

The trial court

(CTI
sought

115.)

(CT2
judgment
43

when

this court

Petersen

& Clarke

did not enter

Consequently,

to enforce
291-306,

of the

stay of enforcement

2010,

v. Knapp,

appeal

a final
after

its judgment
CT2 322-354.)

that required

(May

through
It was

KPC to wait

well overtwo yearsbeforeembarkingon anyjudgmentenforcement

measuresandprecludedKPC fromseekingto amendthejudgment to add
judgment debtorsright away.
10.

Gaggero's Argument that the Court's

Estate

Planning

in California

Not surprisingly,
Parties

"would

on specific

Gaggero's

threaten

legal

is nothing

wrong

purposes.

This argument

attention
attempt
from
apply

argument

the integrity

authority

All

heavily

planning

the Alter

Ego

in California"

on the generic

is thin

notion

that there

tying up assets

for estate

planning

a red herring

to divert

the court's

from the real issue of alter ego liability.

Gaggero

to explain

the application
the alter

about

Undermines

that adding

of estate

and relies

or illegal

Order

Is Baseless.

is simply

why an estate
of alter

plan should

ego liability

ego doctrine

be immune

of trusts

no

as a matter

or distinguish

in the context

makes

those

or other

cases

of law
that

estate

planning

amending

the

vehicles.
CONCLUSION
For all the forgoing
judgment

DATED:

to add the Alter

December

reasons,

the trial court's

Ego Parties

19, 2013

should

order

be atTu-med.

Respectfully
submitted,
MILLER
LLP

RANDALL
STEVEN
Attorneys

A. MILS
S. WANG

for Defendants
Respondents

and

KNAPP, PETERSEN
& CLARKE,
STEVEN
RAY GARCIA,
STEPHEN
HARRIS,

44

and ANDRE

JARDINI

M.

CERTI_CATE

Pursuant
undersigned
exclusive
words

counsel
of tables,

in accordance

undersigned

Dated:

to the requirements

relies

December

of record
proof

of California

hereby

of service,

with the computer

in making

certifies

Rules

of Court,

that the word

and this certification,

program's

word

Rule

count

consists
count

upon

within

which

19, 2013
Steven

the

this brief,

of a total of 12,747

this certification.

8.204(c)(1),

S. Wang

the

PROOF

OF SERVICE

I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is Miller LLP, 515 South Flower Street, Suite 2150,
Los Angeles, CA 90071-2201.
On December _, 2013, I served the within documents:
RESPONDENTS'

BRIEF

[]

by transmitting
via facsimile the document(s)
forth below on this date before 5:00 p.m.

[]

by placing the document(s)

fully prepaid, in the United
forth below.

[]

by causing to be personally served to the person(s)

on this date before 5:00 p.m.

[]

by causing such document to be transmitted

by electronic
addressees as set forth below on this date before 5:00 p.m.

[]

by causing such document(s)

to be sent overnight
such document(s)
in an envelope/package
provided
the person(s)
for collection

listed above to the fax number(s)

set

listed above in a scaled envelope with postage thereon

States mail at Los Angeles, California
addi'essed as set

at the address(es)

mail to the office

SERVICE

of the

via Federal Express; I enclosed

by Federal Express addressed to

at the address (es) set forth below and I placed

at a drop box provided by Federal Express.
SEE ATTACHED

set forth below

the envelope/package

LIST

I am readily familiar with the fu'm's practice of collection and processing

correspondence
for mailing.
Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business.
I am aware that on
motion of the party served, service is presumed
invalid if postal cancellation
meter date is more than one day after date of deposit for mailing in affidavit.
I declare under penalty of perjury
is true and correct.
Executed

on December

under the laws of the State of California

..OD,2013, at Los Angeles,

California.

date or postage

thai the above

SERVICE

LIST

David Blake Chatfield, Esq.

WESTLAKE
LAW GROUP
2625 Townsgate
Road, Suite 330
Westlake Village, CA 91361

Attorneys for Plaintiff and Appellant,

STEPHEN
M. GAGGERO
Phone:
(805) 267-1220
Fax:
(805) 267-1211
Email: davidblakec_,hotrn
ail.com

Edward A. Hoffi:nan, Esq.

LAW OFFICES OF EDWARD
11755 Wilshire Blvd Ste 1250
Los Angeles, CA 90025

Attorneys
for PACIFIC COAST
MANAGEMENT,
INC, 511 OFW LP,
GINGERBREAD
COURT LP,
MALIBU BROAD BEACH LP,
MARINA
GLENCOE
LP, BLU
HOUSE LLC, BOARDWALK
SUNSET LLC, AND JOSEPH
PRASKE AS THE TRUSTEE
OF THE
GIGANIN TRUST, ARENZANO
TRUST, AND AQUASANTE
FOUNDATION

A. HOFFMAN

Phone:
(310) 442-3600
Fax:
(310) 442-4600
Email: eah('_,hoffmanlaw.com