BB-31-b-165
Charles R. Garry
Garry, Dreyfus, McTernan, Brotsky, Herndon, & Pesonen, Inc.
1256 Market Street at Civic Center
San Francisco, California 94102
Tel: 864-3131
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST, a nonprofit corporation, JEAN BROWN, and JAMES MCELVANE, Plaintiffs,
v.
TIMOTHY OLIVER STOEN, Defendant.
NO. 740 531
DECLARATION AND PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER
Date: Nov. 7, 1978
Time: 9:30 AM
Dept.: Law and Motion (9)
COME NOW plaintiffs through their undersigned counsel and submit the within Points and Authorities and Opposition to Defendant’s motion under CCP §2019 (b) (1) for Protective Order, seeking to quash certain noticed depositions of the Custodian of Records of financial institutions in the City of San Francisco, and seeking sanctions.
The gist of this action turns on the acts of defendant, an attorney, in exploiting his prior confidential relationship with plaintiff for personal gain.
The records sought will demonstrate (1) that defendant
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enjoyed the confidence and trust of plaintiffs to the extent the defendant was entrusted with the most intimate and vulnerable aspects of plaintiffs’ financial affairs while defendant was acting as counsel for plaintiffs and (2) that even before the events alleged in the complaint have occurred, defendant abused his position of trust and confidence for his personal gain.
The evidence sought by the noticed depositions is thus relevant and likely to lead to relevant evidence.
It is relevant directly to the issue of defendant’s unlawful intentions respecting his future exploitation of his position of trust and confidence.
The records sought to be obtained may also lead to the discovery of relevant evidence in that in the deposition of defendant Stoen can not be properly prepared without the records sought in the noticed depositions which are subject to this motion.
This latter purpose also disposes of defendant’s suggestion that the court control the order of discovery and force plaintiffs to await completion of discovery on the liability case before seeking these records. The records are essential to plaintiffs’ proper preparation of the case on liability.
There is no question that evidence of prior acts is admissible to show a subsequent intention. Evidence Code § 1101 (b) 1104, 1105; People v. Alcalde, 24 C2d 177, 185 (1944), Scott v. Times-Mirror Co., 181 Cal. 345 (1919), Wright v. Rogers, 172 C.A.2d 349, 363 (1959), State Rubbish Collectors Assoc. v. Siliznoff, 38 C.2d 330, 339 (1952).
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Code of Civil Procedure § 2019 (b) (1), under which defendant brings the instant motion, requires that whether the motion be made by the party, the deponent, or the court itself, in each case the motion may only be granted “for good cause shown.”
The accompanying Declaration of Charles R. Garry, establishes that the depositions which are subject to the motion are brought in good faith for the purpose of properly preparing the instant case, and not for collateral purposes. Defendant has made no showing of good case [cause] and presented nothing except intemperate speculation restricting the plaintiffs’ motives. Such matter, urging on the, contumnacious can not support the drastic relief defendant now seeks.
Dated: November 2, 1978
Respectfully submitted,
GARRY, DREYFUS, MCTERNAN, BROTSKY, HERNDON, & PESONEN, INC.
By /s/ Charles R. Garry
CHARLES R. GARRY
Attorney for Plaintiffs
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BB-31-b-168
DECLARATION OF CHARLES R. GARRY IN OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER
I, CHARLES R. GARRY, declare:
I am an attorney-at-law duly admitted and licensed to practice before all courts of this state and I have my professional office at 1256 Market Street, San Francisco, CA.
I am one of the attorneys of record for plaintiffs in the above-entitled matter.
I am informed by my clients that for a number of years before the events alleged in the within complaint, defendant Timothy Oliver Stoen was entrusted with substantial funds belonging to plaintiffs for the purpose of investment and security. Upon information and belief substantial sums so entrusted to defendant remain unaccounted for.
It is my good faith belief that the records sought under the noticed depositions of the Custodians of Records of the Toronto Dominion Bank of Canada, the Bank of America (1301 Market Street office), Barclays Bank of California, the Bank of Nova Scotia, the Chartered Bank of London, and Bank of America, International Division; will reveal evidence of a prior scheme, plan and intention by defendant Stoen to abuse his position of trust and confidence with plaintiffs to his own personal gain.
I cannot properly prepare for such a deposition without
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the records sought to be suppressed by the present motion.
Executed on November 2, 1978 at San Francisco, California.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: November 3, 1978
By /s/ Charles R. Garry
CHARLES R. GARRY
Attorney for Plaintiffs
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BB-31-b-170
DECLARATION OF PERSONAL SERVICE (CCP § 415. 10)
I, LOUISE HARDY, under penalty of perjury, hereby declare that I am and was on the dates herein mentioned, a citizen of the United States, over the age of 18 years, and not a party to this action; that I caused the within Declaration and Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant’s Motion for Protective Order on the following person(s) on the date and at the address set forth below.
PATRICK SARSFIELD HALLINAN
Hallinan & Blum
345 Franklin Street
San Francisco, California 94102
Executed on November 3, 1978, at San Francisco, California.
By /s/ Louise Hardy
LOUISE HARDY