George Clinton v. Will Adams et al

Filing 123

EX PARTE APPLICATION for Consideration of Request for Access to Plaintiff's Motion for Division and Distribution of Settlement Funds Under Fed. R. Civ. P. 69(a) with Exhibits A-D Filed Under Seal (Docket Nos. 121, 122) filed by Judgment Lien Holder Hendricks & Lewis PLLC. (Attachments: # 1 Proposed Order)(Haas, Mary)

DAVIS WRIGHT TREMAINE LLP
865 S. Figueroa Street, Suite 2400
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Los Angeles, California 90017-2566
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Facsimile [phone]
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Mary H. Haas (State Bar No. 149770)
[e-mail]

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Attorneys for Judgment Lien Holder
HENDRICKS & LEWIS PLLC

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GEORGE CLINTON, an individual,
Plaintiff,

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vs.
WILL ADAMS, et al.,
Defendant.

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HENDRICKS & LEWIS’S EX PARTE APPLICATION
DWT 19761001v2 0081687-000003

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Case No. CV 10-09476-ODW-PLA
NOTICE OF EX PARTE
APPLICATION AND EX PARTE
APPLICATION OF JUDGMENT
LIENHOLDER HENDRICKS &
LEWIS PLLC REQUESTING
ACCESS TO PLAINTIFF’S
MOTION FOR DIVISION AND
DISTRIBUTION OF SETTLEMENT
FUNDS UNDER FED. R. CIV. P.
69(a) WITH EXHIBITS A-D FILED
UNDER SEAL (DKTS. #121, 122);
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT; AND
DECLARATION OF MARY HAAS
WITH EXHIBITS A AND B
[[Proposed] Order concurrently filed
herewith]

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JUDGMENT LIENHOLDER HENDRICKS & LEWIS’S NOTICE OF EX

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PARTE APPLICATION AND EX PARTE APPLICATION
Pursuant to L.R. 7-19, judgment lienholder Hendricks & Lewis PLLC

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(“Hendricks & Lewis”) hereby moves this Court ex parte for an order directing

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Plaintiff George Clinton (“Plaintiff” or “Clinton”) to serve on Hendricks & Lewis a

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copy of Plaintiff’s Motion for Division and Distribution of Settlement Funds Under

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FED. R. CIV. P. 69(a) with Exhibits A-D, which were filed under seal on or about

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June 8, 2012 or any time thereafter. (See Notice of Manual Filing, Dkts. #121,

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122.)

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This Ex Parte Application is made on the grounds that, as a judgment

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lienholder, Hendricks & Lewis is entitled to receive a copy of, and to be afforded an

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opportunity to respond to, Plaintiff’s motion for division and distribution of the

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settlement funds in this action. See CAL. CODE OF CIV. PROC. § 708.440. Hendricks

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& Lewis does not object to maintaining the filing under seal but rather seeks only to

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be provided with a copy of the filing to enable it, as the lienholder, to respond to

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Plaintiff’s requested disposition of the settlement funds.

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This Application is made following a request made to Plaintiff’s counsel for a

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copy of Clinton’s motion. As of the filing of this Application, despite promises by

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Plaintiff’s counsel that a copy would be served, Hendricks & Lewis has not

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received a copy of Plaintiff’s filing.

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DATED: June 14, 2012

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DAVIS WRIGHT TREMAINE LLP
MARY H. HAAS

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By:

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/s/ Mary H. Haas
Mary H. Haas

Attorneys for Judgment Lien Holder
HENDRICKS & LEWIS PLL

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HENDRICKS & LEWIS’S EX PARTE APPLICATION
DWT 19761001v2 0081687-000003

MEMORANDUM OF POINTS AND AUTHORITIES

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On May 31, 2012, the parties filed a Joint Ex Parte Application to Approve

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Settlement Agreement and Dismiss the Action Under Fed. R. Civ. P. 41(a) in which

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Plaintiff George Clinton (“Plaintiff” or “Clinton”) acknowledged the two liens filed

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in this action, including that of Hendricks & Lewis. (Dkt. #114 at p. 2.) Clinton

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also acknowledged that he would have “a continuing obligation to engage in further

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proceedings” with the lienholders to resolve their claims to the settlement funds and

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stated that he was, or would be, filing a motion for division and distribution of those

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funds. (Dkt. #114 at pp. 4-5.)

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On June 8, 2012, Clinton purportedly manually filed the motion identified as

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Plaintiff’s Motion for Division and Distribution of Settlement Funds Under FED. R.

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CIV. P. 69(a) with Exhibits A-D under seal in this action. (Notice of Manual Filing,

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Dkt. #121.) It appears that the Motion may have been re-filed on June 14, 2012.

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(Notice of Manual Filing, Dkt. #122.) But to-date, judgment lienholder Hendricks

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& Lewis has not received a copy of this filing despite requesting a copy from

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Clinton’s counsel on multiple occasions.1 (Declaration of Mary H. Haas, ¶ 3, Exs.

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A, B.) Clinton’s counsel has promised to provide the Motion but to date has not.

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(Haas Decl., ¶ 5.)

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Under California law, as a judgment lienholder, Hendricks & Lewis is

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entitled to receive a copy of Plaintiff’s motion and be afforded the opportunity to

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respond thereto before the Court rules on Clinton’s request. Specifically, California

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law provides:

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Upon application by the judgment debtor, the court in which the action

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or special proceeding is pending or the judgment procured therein is

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entered may, in its discretion, after a hearing, make an order described

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Hendricks & Lewis understands that the other lienholder in this matter, the
Allan Law Group, was also not served with a copy of the Motion. (Haas Decl., ¶ 4.)
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RESPONSE TO EX PARTE
DWT 19761001v2 0081687-000003

DAVIS WRIGHT TREMAINE LLP
DAVIS WRIGHT TREMAINE LLP
865 S.S. FIGUEROA ST, SUITE 2400
865 FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
LOS ANGELES, CALIFORNIA 90017-2566
[phone]
[phone]
Fax: [phone]
Fax: [phone]

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in subdivision (a) that may include such terms and conditions as the

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court deems necessary. The application for an order under this

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subdivision shall be made on noticed motion. The notice of motion

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shall be served on the judgment creditor. Service shall be made

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personally or by mail.

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CAL. CODE CIV. PROC. § 708.440(b) (emphasis added). Clinton, however, has failed

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to serve a copy of his motion seeking disposition of the settlement funds on the

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judgment creditor, Hendricks & Lewis. This failure necessarily deprives Hendricks

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& Lewis of the opportunity to respond to judgment-debtor Clinton’s proposed

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division and deprives the Court of sufficient information necessary to rule on

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Clinton’s request and determine the rights of the lienholders to the settlement funds.

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See Oldham v. Cal. Capital Fund, Inc., 109 Cal. App. 4th 421, 424-25, 433-34, 134

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Cal. Rptr. 2d 744 (2003) (holding that because the record did not contain sufficient,

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necessary information, the superior court could not have properly exercised its

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discretion in approving the settlement).
Therefore, Hendricks & Lewis respectfully requests that Clinton be ordered

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to serve Hendricks & Lewis with a copy of the motion and all supporting exhibits as

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required under California law2 and that Hendricks & Lewis be afforded the

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Hendricks & Lewis has no objection to maintaining the confidential nature
of the Motion and assuming the Court permits the sealing of the Motion, will file its
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RESPONSE TO EX PARTE
DWT 19761001v2 0081687-000003

DAVIS WRIGHT TREMAINE LLP
DAVIS WRIGHT TREMAINE LLP
865 S.S. FIGUEROA ST, SUITE 2400
865 FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
LOS ANGELES, CALIFORNIA 90017-2566
[phone]
[phone]
Fax: [phone]
Fax: [phone]

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opportunity to file a response to that motion before the Court rules on the

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disposition of the settlement funds.3

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DATED: June 14, 2012

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DAVIS WRIGHT TREMAINE LLP
MARY H. HAAS

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By:

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/s/ Mary H. Haas
Mary H. Haas

Attorneys for Judgment Lien Holder
HENDRICKS & LEWIS PLL

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Because Hendricks & Lewis does not even know what date a hearing for the
Motion has been set by Plaintiff, should the Motion have been set on minimum
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additional time to respond to the Motion to account for any prejudice resulting from
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RESPONSE TO EX PARTE
DWT 19761001v2 0081687-000003

DAVIS WRIGHT TREMAINE LLP
DAVIS WRIGHT TREMAINE LLP
865 S.S. FIGUEROA ST, SUITE 2400
865 FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
LOS ANGELES, CALIFORNIA 90017-2566
[phone]
[phone]
Fax: [phone]
Fax: [phone]

DECLARATION OF MARY H. HAAS

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I, Mary H. Haas, hereby declare and state as follows:

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1.

I am a partner in the law firm of Davis Wright Tremaine, counsel for

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Judgment Lien Holder Hendricks & Lewis PLLC (“Hendricks”). I have personal

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knowledge of the following facts, and if called upon to testify, could and would

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testify competently thereto. I make this declaration in support of Hendricks &

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Lewis’s Ex Parte Application Ex Parte Application Of Judgment Lienholder

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Hendricks & Lewis PLLC Requesting Access To Plaintiff’s Motion For Division

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And Distribution Of Settlement Funds Under Fed. R. Civ. P. 69(a) With Exhibits

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A-D Filed Under Seal (Dkt. #121).
2.

On June 8, 2012, I received electronic notice that Jeffrey Thennisch,

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George Clinton’s counsel had manually filed under seal a Motion for Division and

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Distribution of Settlement Funds Under Fed. R. Civ.P. 69(a) with Exhibits A-D (the

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“Motion”) (Dkt. #121). I did not receive a copy of the Motion.

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3.

On June 9, 2012, I requested Mr. Thennisch to provide me a copy of

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the Motion. Attached hereto as Exhibit A is a true and correct copy of my email to

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him. I have received no response to my email.

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4.

At or about the same time, my co-counsel Katherine Hendricks

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contacted the Allan Law Group, the other lienholder, to inquire about whether they

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have received a copy of the Motion. They have advised us that they have not. I

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have since been in contact with the Allan Law Group and they have confirmed as of

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the filing of this Declaration, they have not received a copy of the Motion.

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5.

On June 13, 2012, I sent Mr. Thennisch an email advising him that this

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ex parte application would be filed and asking him to inform me as to whether he

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would be opposing the ex parte application. Attached hereto as Exhibit B is a true

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and correct copy of my email to him. He responded later in the day to advise me

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that he was in the process of filing the Motion that day and would direct his staff to

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send me a filed copy. On June 14, 2012, I received notice through the ECF of a
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DECLARATION OF MARY HAAS
DWT 19761213v1 0081687-000003

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manual filing by Mr. Thennisch of the Motion with exhibits. As of the filing of this

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Declaration, I have still not received a copy of the Motion by any means.

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This declaration was executed on June 14, 2012, in Los Angeles, California.

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I declare under penalty of perjury under the laws of the State of California and the

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United States of America that the foregoing is true and correct.

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/s/ Mary H. Haas
MARY H. HAAS

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DECLARATION OF MARY HAAS
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