1 FINLAYSON TOFFER ROOSEVELT & LILLY LLP

JARED M. TOFFER, SBN 223139

2 jtoffer@ftrlfirm.com
ROBERT S. LAWRENCE, SBN 207099
3 rlawrence@ftrlfirm.com
15615 Alton Parkway, Suite 250
4 Irvine, CA 92618
Telephone: (949) 759-3810
5 Facsimile: (949) 759-3812
6 Attorneys for Cross-Defendant/Cross-Complainant
RAYMOND HARPER
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF ORANGE
10
MICHELLE S. MORGAN, in her capacity as LEAD CASE NO. 30-2011-00473005-CU-BC-CJC
11 Trustee and on behalf of the JC WARTELL (Consolidated with Case No. 30-2011-00531658 and
NONGRANTOR TRUST UDT 2005, the Case No. 30-2013-00678076-CU-BC-CJC)
12 WARTELL CHILDRENS NONGRANTOR
TRUST UDT 2005 and the RT HARPER UNLIMITED CIVIL
13 NONGRANTOR TRUST UDT 2005, Assigned for all purposes to: Hon. Thierry P. Colaw,
14 Plaintiffs, Department CX105

15 v. CROSS-DEFENDANT AND CROSS-

COMPLAINANT RAYMOND HARPERS
16 MARK E. HYATT, an individual, et al., MOTION TO EXCLUDE THE KDF PARTIES
RETAINED EXPERT DAVID PAIK;
17 Defendants.
DECLARATION OF ROBERT S. LAWRENCE
__________________________________
18
Date: TBD
AND CONSOLIDATED AND CROSS- Time: 10:00 a.m.
19
ACTIONS. Dept: CX-105
20 Before: Hon. Thierry P. Colaw
21
Complaint Filed: May 6, 2011
22 Phase II Trial: July 24, 2017

23
24
25
26
27
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK

 1 I. INTRODUCTION

2 Plaintiff previously moved in limine to exclude the testimony of the KDF Parties purported

3 ERISA expert, David Paik, on the basis that the testimony he intended to present did nothing to assist

4 the trier of fact, was not competent under Evidence Code 801 and 802, and would be both prejudicial

5 and wasteful of the Courts (and the parties) time under Evidence Code 352.

6 Having now had the opportunity to take Mr. Paiks deposition, Cross-Defendant and Cross-

7 Complainant Raymond Harper renews the motion to exclude Mr. Paiks testimony on the grounds that

8 (a) he is not qualified to testify as an expert in this area, (b) that the opinions he intends to offer have no

9 bearing on the issue of whether the Wartell Trusts are Mr. Harpers alter egos (or responsible for the

10 Fillmore Riverview and Fillmore Coe capital calls under any theory), (c) that his opinions are nothing

11 more than rank speculation and as such are prohibited as a matter of law, and (d) that he destroyed his

12 prior draft opinions while under subpoena.

13 II. ARGUMENT

14 A. Mr. Paik Is Not Competent to Testify Regarding Alleged ERISA or Tax Violations

15 Evidence Code 720(a) provides that a person is qualified to testify as an expert if he or she has

16 special knowledge, skill, experience, training, or education sufficient to qualify him or her as an expert

17 on the subject to which the testimony relates. See Evid. Code 720(a). It is well-established the party

18 offering an expert must demonstrate the experts knowledge of the subject is sufficient. See, e.g., Sinz v.

19 Owens (1949) 33 Cal.2d 749. The determinative issue is whether the witness has sufficient skill or

20 experience in the field so his testimony would be likely to assist the jury in the search for the truth. Evid.

21 Code 801(a).

22 In the case at bar, Mr. Paik, a lawyer, intends to testify that various loans (e.g., from the Aurora

23 Western Pacific Advisors (AWPA) pension plan to JTR; from JTR to the Wartell Trusts; and from the

24 AWPA pension plan to Ray Harper) may have been prohibited transactions under ERISA and/or the

25 Internal Revenue Code. [See Lawrence Decl., Exh. 1, Paik Summary of Opinions]. Mr. Paik, however,

26 is not qualified to render such opinions, as he has not shown any expertise in this area, as follows:

27 (a) He failed the bar exam [Paik Depo., 20:10-17];

28 (b) He has never been retained as a testifying expert witness [Id., 15:24-16:3];

1
CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 1 (c) He has never been retained as a consulting expert witness [Id., 16:8-10];

2 (d) He has never been qualified as an expert [Id., 16:4-7];

3 (e) He has never authored any papers on ERISA or tax law [Id., 15:6-12];

4 (f) He has never given any presentations on ERISA or tax law [Id., 15:13-15];

5 (g) He is not a CPA [Id., 17:5-8; 85:23-86:1];

6 (h) He is not a forensic accountant [Id., 86:1-5];

7 (i) He has never represented a client in tax court [Id., 27:10-11];

8 (j) He has only represented two or three clients in audits throughout his career [Id., 27:1-4];

9 (k) He has only prepared at most a dozen ERISA retirement plans in his career [Id., 29:7-14;

10 29:22-30:4];

11 (l) He has no expertise whatsoever in trust law [Id., 87:1-12];

12 (m) The focus of his practice is counseling clients on issues relating to mostly 401Ks and

13 IRAs. [Id., 30:10-18].

14 While Mr. Paik may be a fine lawyer, he has no expertise in conducting the type of forensic

15 analysis and money tracing he purports to do in this case, and no experience in prosecuting or defending

16 ERISA actions regarding allegedly prohibited transactions at all. The sum total of his ERISA practice

17 is that he occasionally assists corporate clients with the freezing and/or closing of their defined benefit

18 plans. [Id., 29:22-30:4].

19 B. Mr. Paiks Testimony Has Nothing to Do With the Case

20 The only issue to be tried in this Phase II trial is whether the Wartell Trusts are Ray Harpers

21 alter egos, or are liable to pay Mr. Harpers alleged obligation for the Fillmore Riverview and Fillmore

22 Coe capital calls under some other contractual theory of liability. Whether it was a violation of ERISA

23 (which would result at worst in the imposition of penalties and interest) for the AWPA pension plan to

24 loan JTR money, or for JTR to loan the Wartell Trusts money, or for the AWPA pension plan to loan

25 Ray Harper money, has absolutely nothing to do with any issue to be resolved in this case.

26 Evidence Code 350 provides that only relevant evidence is admissible. Evid. Code 350.

27 Relevant evidence is any evidence having a tendency in reason to prove or disprove any disputed fact

28 that is of consequence to the determination of this action. Id. 210. While relevance may be a wide

2
CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 1 door, in this instance the door is closed, as Mr. Paiks testimony simply has nothing to do with any issue

2 that is before this Court.

3 1. Mr. Paiks Opinions Are Irrelevant and Barred by Evid. Code 1101(b)

4 Mr. Paik has seven opinions, which concern whether certain loans from AWPAs pension plan

5 are prohibited transactions in violation of ERISA. [Lawrence Decl., Exh. 1]. Contrary to what the

6 KDF Parties have implied, borrowing money from AWPAs pension plan is neither a criminal nor

7 quasi-criminal act. It does not even qualify as a bad act. To the extent the KDF Parties seek to contend

8 through Mr. Paiks testimony that Mr. Harper has committed a bad act by causing loans to issue from

9 the AWPA pension plan, such testimony is impermissible character evidence and barred by Evid. Code

10 1101.

11 Indeed, Mr. Paik himself admits that borrowing money from a pension plan is permissible under

12 certain circumstances [Paik Depo., 49:1-12], and also admits that any failure to comply with ERISA or

13 IRS borrowing requirements merely gives rise to a 15% penalty. [Id., 67: 9-23]. If you borrow money

14 from your defined benefit plan without complying with the plan requirements, or without complying

15 with the requirements imposed by ERISA and the Internal Revenue Code, the net result is that you have

16 to pay penalties and interest when the loan is repaid. [Id.] That is the sole import of Mr. Paiks

17 testimony, and it has no bearing on any issue in this case.

18 2. The Court Has Conclusively Ruled That AWPA Is Not Mr. Harpers Alter

19 Ego

20 Three years ago, this Court granted AWPAs demurrer and specifically ruled that, as a matter of

21 law, Mr. Harper and AWPA are not alter egos. Carey v. Glenco Citrus Prod. Co., (1965) 235 Cal. App.

22 2d 572, 575. KDF never appealed that ruling after judgment was entered in AWPAs favor, and the alter

23 ego finding is now conclusive for all purposes and may not be collaterally challenged.

24 The KDF Parties newly articulated theory that AWPA is a conduit for the transfer of money

25 to Mr. Harper is not only incomprehensible in the context of this case, but a non-sequitur without any

26 legal significance at all. As the sole owner of AWPA, Mr. Harper is entitled to receive profit generated

27 by the company, and there is nothing unusual, suspect or improper about it. The Court has already

28
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 1 conclusively found that AWPA does not equal Mr. Harper, and Mr. Paiks proffered opinions about the

2 propriety of a handful of transactions made by AWPAs pension plan cannot disturb that finding.

3 3. The KDF Parties Cannot Connect the Wartell Trusts to Mr. Harper

4 Through the Consulting Agreements, Nor Through Loans from AWPAs

5 Pension Plan

6 In ruling in JTRs favor on its motion for a preliminary injunction, the Court found that the KDF

7 parties continue to insist that others, including JTR Advisors, are liable for the Fillmore entity capital

8 calls to Mr. Harper, ignoring the above-described prior rulings of this court. If Mr. Harpers alleged

9 debt cannot be collected from AWPA, then how can JTR Advisors be responsible for Mr. Harpers

10 alleged debt, based on AWPAs role as consultant for JTR Advisors? (i.e. arguably one step more

11 removed, in essence). By the same reasoning, the Wartell Trusts cannot be responsible for Mr. Harpers

12 alleged debt based on AWPAs role as consultant for the Wartell Trusts, although this is precisely

13 what the KDF Parties appear to be trying to prove by their excruciatingly detailed examination of the

14 consulting fees paid by the Wartell Trusts to AWPA.

15 Mr. Paik has no opinions about the AWPA consulting agreements, which he has never seen

16 [Paik Depo., 86:23-25], nor does he have any opinion about whether or not the Trusts could enter into

17 consulting agreements with AWPA [Id., 87:9-12]. The KDF Parties suggestion that some impropriety

18 has been committed because of a handful of transactions that Mr. Paik (without foundation) claims

19 violate ERISA cannot vitiate the ruling that AWPA is not Mr. Harpers alter ego, nor does it do anything

20 to show that the Trusts are Mr. Harpers alter ego. What AWPAs pension plan did with its money has

21 no legal significance at all. The evidence is facially irrelevant and therefore inadmissible. Evid. Code

22 350, 352.

23 C. Speculative Expert Testimony Is Barred Under Sargon

24 Under Evidence Code 801(b) and 802, the trial court acts as a gatekeeper to exclude expert

25 opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2)

26 based on reasons unsupported by the material on which the expert relies, or (3) speculative. Sargon

27 Enterprises v. University of California (2012) 55 Cal.4th 747, 772. Under existing law, irrelevant or

28 speculative matters are not a proper basis for an experts opinion. Cal. Law Revision Com. com., 29B

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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 1 pt. 3A Wests Ann. Evid. Code (2009 ed.) foll. 801, p. 25. Thus, an experts opinion may not be

2 based on assumptions of fact without evidentiary support or on speculative or conjectural factors . . .

3 Exclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the

4 foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to

5 evaluate the issues it must decide? Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114

6 Cal.App.4th 1108, 1117; see also People v. Richardson (2008) 43 Cal.4th 959, 1008; accord People v.

7 Moore (2011) 51 Cal.4th 386, 405. Simply put, an expert opinion has no value if its basis is

8 unsound. Lockheed Litigation Cases (2004) 115 Cal.App.4th 558.

9 In the case at bar, Mr. Paiks opinions are all defectively speculative. Mr. Paik has no factual

10 basis to opine whether the loans at issue were permissible, because he has never seen the AWPA

11 pension plan documents [Paik Depo., 47:23-48:25], never seen any loan documents [Id., 48:9-12], never

12 seen JTRs bank records [Id., 80:15-17], never seen the Wartell Trusts bank records [Id., 82:23-83:2],

13 never seen the AWPA pension plan portfolio [Id.,131:17-132:8], doesnt know if AWPA has any bank

14 accounts other than the Merrill accounts [Id., 51:22-52:8], and only received brief excerpts of any

15 deposition or trial testimony in this matter. [Id., 53:21-54:9; 55:14-21].

16 1. There is No Foundation for Mr. Paiks Opinion No. 1

17 Mr. Paiks Opinion No. 1 is that the $50,000 loan from AWPAs pension plan bearing the note

18 Loan to Ray/Coe Capital Call is a prohibited transaction. [See Lawrence Decl., Exh. 1 thereto].

19 There is no factual basis for Mr. Paiks opinion. He acknowledges that a plan participant may

20 borrow up to $50,000 from a pension plan if the plan documents allow it and certain conditions are met.

21 [Paik Depo., 91:23-92:1]. In this instance, Mr. Paik has no idea if the pension plan documents allow for

22 such a loan, because he has never seen the pension plan documents, nor any documents associated

23 with the loan.

24 Q Okay. If the box is checked, does that make it a permissible transaction?

25 A No, no. There's a number of requirements that has to be satisfied. The plan document

26 has to allow for loans. There has to be written procedures for loans. The procedures

27 would include who which administrator has the authority to provide loans.

28
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 1 Q Okay.

2 A Reasonable interest rate. There needs to be loan documents. There's just a lot of

3 number of requirements to have a valid loan.

4
5 Q Okay. But you did not review the plan documents; right?

6 A I was not provided with a copy of the plan documents or any loan documents.

7
8 Q Okay. So you don't know if the plan documents permit a loan to any of the

9 participants; correct?

10 A Yeah, I do not.

11
12 Q You do not know because you did not review the plan documents?

13 A I did not receive a copy of the plan document, and I did not review it.

14
15 Q And you do not know whether or not there's actually loan documentation to support the

16 loan; correct?

17 A Yes.

18
19 Q That's yes, I'm correct?

20 A Yes, you are correct.

21 [Id., 47:23-48:25].

22 2. There is No Foundation for Mr. Paiks Opinion No. 4

23 Mr. Paiks Opinion No. 4 is that the following series of transactions are prohibited by ERISA:

24 (a) the AWPA pension plan loan to JTR of $224,242.50; (b) the JTR loan to the Wartell Trusts of

25 $245,000; (c) the Wartell Trusts payment of $471,000 to AWPA; and (d) the subsequent AWPA
26 payment of salary to Mr. Harper and contribution to his 401(k). [Lawrence Decl., Exh. 1].
27
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 1 There is no factual basis for Mr. Paik to opine that these transactions are connected in any way.

2 Mr. Paik has no ability to trace the funds from the AWPA pension plan in the way he purports to be

3 doing here because, among other things:

4 He has never seen the JTR bank records and has no idea how much money

5 was in JTRs accounts at the time it borrowed $224,242.50 from the AWPA

6 pension plan [Paik Depo., 81:11-15];

7 He has never seen the Wartell Trusts bank accounts and has no idea how

8 much money was in their accounts at the time they borrowed money from

9 JTR [Id., 82:22-83:9];

10 He has never seen the AWPA consulting agreements and has no idea how

11 much they require be paid to AWPA [Id., 86:18-25];

12 He has no idea why the payments were made, because he only received brief

13 excerpts of deposition and trial testimony [Id., 53:15-55:22; Lawrence Decl.,

14 4].

15 Mr. Paik simply does not have any factual basis to say that the KDF Parties follow the money

16 theory is remotely accurate, because he has not been given access to any of the financial or bank records

17 showing how much money was in the JTR or Trusts accounts [Paik Depo., 81:11-15; 82:22-83:9], and it

18 goes without saying that one cannot follow the money if one does not have access to the documents

19 showing where the money went.

20 Moreover, Mr. Paiks opinion is also inherently speculative, in that he also testified that for the

21 series of transactions (identified above) to be prohibited, there had to be some intent or

22 understanding [Id., 138:5-18] that the money loaned from the AWPA pension plan to JTR would

23 wend its way back to Mr. Harper. However, Mr. Paik has no basis to claim that there was any such

24 understanding, because Mr. Paiks expert file which he claims contains everything he received from

25 the KDF Parties contains only limited excerpts of deposition and trial testimony which does not deal

26 with the rationale for the loans and, to the extent that it does, directly rebuts Mr. Paiks unfounded

27 assumption that this was a series of transactions designed to put money in Mr. Harpers pockets.

28 [Lawrence Decl., 4]. Indeed, Mr. Paik acknowledged he did not receive Michelle Morgans or Julie

7
CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 1 Wartells trial testimony on the very issues he is purporting to opine on. [Paik Depo., 55:14-22], and his

2 file does not contain any of the extensive trial testimony by Ms. Simondi or anyone else dealing with

3 these very transactions [Lawrence Decl., 4]. Mr. Paik cannot simply adopt whatever KDFs attorneys

4 claim that AWPAs, JTRs or Mr. Harpers intent or understanding was as a basis for his opinion, as

5 opposing counsels spin on the case is not evidence and may not be relied on by any expert as a basis for

6 his opinion.

7 D. Mr. Paiks Spoliation of Evidence Requires Either an Evidentiary Sanction or an

8 Adverse Inference Against the KDF Parties.

9 Spoliation of evidence means the destruction or significant alteration of evidence or the failure

10 to preserve evidence for another's use in pending or future litigation. Williams v. Russ (2008) 167

11 Cal.App.4th 1215, 1223 (citations omitted). Such conduct is condemned because it can destroy

12 fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying

13 cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to

14 reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less

15 persuasive, or both. Id. While there is no tort cause of action for the intentional destruction of

16 evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad

17 range of punishment, including monetary, issue, evidentiary, and terminating sanctions. A terminating

18 sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of

19 intentional spoliation of evidence. Id.

20 Based on Williams, the Court should exclude all of Mr. Paiks purported expert opinions

21 because he has engaged in an egregious and intentional act of spoliating evidence. On or about August

22 1, 2017, which was during the pendency of Phase II of the current trial and while he was under

23 subpoena, Mr. Paik destroyed of a copy of his opinions that he had provided to the KDF Parties

24 counsel, Perry Hughes, that day. (See Lawrence Decl. 3, Exh. 2 at 114:14-116:10.) This is after Mr.

25 Paik admitted that he had written over prior versions of his purported expert opinions. (See id. at

26 10:17-13:3.) Accordingly, Plaintiff and Mr. Harper will never know what Mr. Paiks original opinions

27 were and whether after meeting with Mr. Hughes on Tuesday, August 1, 2017, Mr. Paik completely

28
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 1 changed his opinions to conform with what his clients required. Indeed, by destroying the outline of his

2 opinions that he provided to Mr. Hughes, Mr. Paik has cast a shadow over his entire testimony.

3 The basic principle is explained by Wigmore: It has always been understoodthe inference,

4 indeed, is one of the simplest in human experiencethat a party'ssuppression of evidence

5 byspoliation, is receivable against him as an indication of his consciousness That his case is a weak

6 or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth

7 and merit. The inference thus does not apply itself necessarily to any specific fact in the cause, but

8 operates, indefinitely though strongly, Against the whole mass of alleged facts constituting his cause.

9 Thor v. Boska (1974) 38 Cal.App.3d 558, 567. Even Professor McCormick, who in other respects

10 thinks that Wigmore's view concerning the effect of suppression of evidence by a party goes too far

11 [citation omitted] agrees that the proponent of such evidenceplaintiff, in this caseshould be entitled

12 to an instruction that the adversary's conduct may be considered as tending to corroborate the

13 proponent's case Generally, and as tending to discredit the adversary's case Generally. Id. Obviously,

14 the Court does not need to instruct a jury in this case, but the Court should either exclude the evidence or

15 take the evidence subject to the adverse inference that Mr. Paiks original opinions are unfavorable to

16 the KDF Parties. See CACI 204 (Willful Suppression of Evidence). Indeed, as instructed by the

17 Supreme Court, Trial courts, of course, are not bound by the suggested language of the standard BAJI

18 instruction and are free to adapt it to fit the circumstances of the case, including the egregiousness of the

19 spoliation and the strength and nature of the inference arising from the spoliation. Cedars-Sinai Med.

20 Ctr. v. Super. Ct. (1998) 18 Cal.4th 1, 12.

21 E. The Court Should Exclude Any New Opinions Offered by Mr. Paik

22 In Kennemur v. State of California (1982) 133 Cal.App.3d 907, the Court of Appeal ruled that a

23 party must disclose either in his witness list or at his expert's deposition, if the expert is asked, the

24 substance of the facts and opinions which the expert will testify to at trial. Only by such a disclosure will

25 the opposing party have reasonable notice of the specific areas of investigation by the expert, the

26 opinions he has reached and the reasons supporting the opinions, to the end the opposing party can

27 prepare for cross-examination and rebuttal of the expert's testimony. The court explained:

28
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 The Legislature has singled out the pretrial discovery of expert opinions for
1 special treatment. When appropriate demand is made for exchange for expert
2 witness lists, the party is required to disclose not only the name, address and
qualifications of the witness, but the general substance of the testimony the
3 witness is expected to give at trial. (Predecessor Section 2037.3.) In our view, this
means the party must disclose either in his witness list or at his expert's
4 deposition, if the expert is asked, the substance of the facts and the opinions
which the expert will testify to at trial. Only by such a disclosure will the
5
opposing party have reasonable notice of the specific areas of investigation by the
6 expert, the opinions he has reached and the reasons supporting the opinions, to the
end the opposing party can prepare for cross-examination and rebuttal of the
7 expert's testimony.
8 Kennemur, 133 Cal. App. 3d at p919. Indeed, the purpose behind these rules is to prevent a party from
9
being sandbagged at trial. Whether it was because he was ill prepared or because of a more
10
Machiavellian reason, Mr. Paik apparently failed to provide all his opinions at his deposition, and
11
12 opposing counsel has intimated that there is at least one other opinion that Mr. Paik intends to offer

13 when he is called to the stand. This is classic sandbagging which should not be condoned by the Court.

14 Mr. Paik testified that he had offered all his opinions when he was deposed on August 3, 2017 [Id.,
15
139:7-17], and if the Court allows him to testify at all (which it should not), Mr. Paik should be limited
16
to expressing only those opinions previously offered. Kennemur, 133 Cal. App. 3d at 919. To do
17
otherwise is to sanction an abuse of the discovery process.
18
19 IV. CONCLUSION
20 For the foregoing reasons, Cross-Defendant and Cross-Complaint Raymond Harper respectfully
21 requests that this Honorable Court exclude the testimony of the KDF Parties proposed expert David
22 Paik in its entirety.
23
24 Dated: August 25, 2017 By: ______________________________________
25 Robert S. Lawrence
Attorney for Cross-Defendant and Cross-
26 Complainant Raymond Harper
27
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 DECLARATION OF ROBERT S. LAWRENCE
1
I, Robert s. Lawrence, declare as follows:
2
3 1. I am an attorney duly admitted to practice in the State of California. I represent Cross-

4 Defendant and Cross-Complainant Raymond Harper. I have personal knowledge of the facts set forth in

5 this declaration and, if called as a witness, could and would testify competently to such facts under oath.
6
2. Attached hereto as Exhibit 1 is a true and correct copy of the KDF Parties proposed
7
expert David Paiks Summary of Opinion.
8
3. Attached hereto as Exhibit 2 is a true and correct copy of cited excerpts from David
9
10 Paiks deposition, taken on August 3, 2017, which I attended.

11 4. I have reviewed the documents produced by Mr. Paik in connection with his retention by

12 the KDF Parties, and based on that review, Mr. Paik only received limited excerpts of trial testimony
13
(from the 2012 and 2016 trials) that were attached to the KDF Parties Opposition to Motion for
14
Summary Adjudication. He received no testimony from the current trial which started in July 2017,
15
where the issues he is purporting to opine on were specifically addressed by Ms. Morgan, Ms. Wartell,
16
17 and Ms. Simondi.

18
19 I declare under penalty of perjury under the laws of the State of California that the foregoing is
20
true and correct, and that this Declaration was executed this 25th day of August, 2017, in Irvine, CA
21
92660.
22
23
24
25
26
__________________________________
27 Robert S. Lawrence
28
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK


EXHIBIT1
EXHIBIT 2
 PROOF OF SERVICE
1 I am over the age of eighteen years and am not a party to the within action. I am employed in the County
of Orange, State of California, at the law offices of Finlayson Toffer Roosevelt & Lilly LLP, members of
2
the bar of this Court. My business address is 15615 Alton Parkway, Suite 250, Irvine, California 92618.
3 On August 25, 2017, I served a true copy / the original of the foregoing document(s) described as:
CROSS-DEFENDANT AND CROSS-COMPLAINANT RAYMOND HARPERS MOTION TO
4 EXCLUDE THE KDF PARTIES RETAINED EXPERT DAVID PAIK; DECLARATION OF
ROBERT S. LAWRENCE
5
BY ELECTRONIC TRANSMISSION THROUGH E-FILING SERVICE PROVIDER:
6 Pursuant to Rule 2.251(b)(1)(B) of the California Rules of Court, I caused the document(s) to be
sent to the parties on the attached Service List who have registered for electronic service in this
7 action at the electronic mail addresses listed.

8 BY UNITED STATES MAIL: I enclosed the document(s) in a sealed envelope or package to

the parties on the attached Service List and placed it for collection and mailing, following our
9 ordinary business practices. I am readily familiar with the firm's practice for collecting and
processing correspondence for mailing. On the same day that correspondence is placed for
10 collection and mailing, it is deposited in the ordinary course of business with the United States
Postal Service, in a sealed envelope with postage fully prepaid.
11
BY OVERNIGHT DELIVERY: I enclosed the document(s) in an envelope or package
12 provided by an overnight delivery carrier and addressed to the parties on the attached Service List.
I placed the envelope or package for collection and overnight delivery at an office or a regularly
13 utilized drop box of the overnight delivery carrier.
14 BY ELECTRONIC MAIL: I caused the document(s) to be sent to the parties on the attached
Service List at the electronic mail addresses listed.
15
BY FACSIMILE: I faxed the document(s) to the parties on the attached Service List at the fax
16 numbers listed. No error was reported by the fax machine that I used. A fax transmission record
was printed, a copy of which is maintained by this office.
17
BY MESSENGER SERVICE: I provided the document(s) to a professional messenger service
18 for delivery to the parties on the attached Service List.
19 I declare under penalty of perjury under the laws of the United States of America and the State of
California that the foregoing is true and correct. Executed on August 25, 2017, at Irvine, California.
20
21
22
Hind AbdulKader
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25
26
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK
 Michelle Morgan, et al. v. Mark E. Hyatt, et al.
1 O.C.S.C. Case No. 30-2011-00473005-CU-BC-CXC
[501]
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SERVICE LIST
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Mary A. Dannelley Attorneys for Plaintiff and Cross-Defendant
6 LAW OFFICES OF MARY A. DANNELLEY Michelle S. Morgan, in her capacity as
160 Newport Center Drive, Suite 120 Trustee and on behalf of the JC Wartell
7 Newport Beach, CA 92660 Nongrantor Trust UDT 2005, etc.
949.252.1600
8 949.252.1611 Fax
mary@dannelleylaw.com
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10
Alicia N. Vaz Attorneys for Defendants and
11 Perry Hughes Cross-Complainants Mark E. Hyatt, et al.
COX, CASTLE & NICHOLSON LLP
12 2029 Century Park East, Suite 2100
Los Angeles, CA 90067-3007
13 310.277.4222
310.277.7889 Fax
14 avaz@coxcastle.com
phughes@coxcastle.com
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16 Christopher B. Queally Attorneys for Cross-Defendant and
CALLAHAN & BLAINE, APLC Cross-Complainant Raymond A. Harper
17 3 Hutton Centre Drive, 9th Floor
Santa Ana, CA 92707
18 714.241.4444
714.241.4445 Fax
19 cqueally@callahan-law.com

20
Darren J. Campbell Attorneys for Plaintiff
21 AITKEN CAMPBELL HEIKAUS WEAVER, LLP JTR Advisors, L.P.
2030 Main Street, Suite 1300
22 Irvine, CA 92614
949.236.4626
23 949.271.4046 Fax
darren@achwlaw.com
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CROSS-COMPLAINANT RAY HARPERS MOTION TO EXCLUDE KDF EXPERT DAVID PAIK