The first time I blogged about Mount Kellett [http://janbtucker.com/blog/2012/03/16/romneyizing-los-angeles/] I noted that a couple of the “hole cards” we were holding in the legal game being played out between Mount Kellett Capital Management and the companies they were targeting in Los Angeles were that:
- Their lawyers didn’t bother to read the fine print in the pre-existing contracts they’re litigating before filing unlawful detainer suits (or alternatively, they did read the fine print and gambled that we wouldn’t catch them in a serious legal problem);
- Somebody kept the proverbial “two sets of books” and probably didn’t bother to tell their lawyers
After the following blog postings this post will come full circle as these revelations are now filed in Los Angeles Superior Court in a Demurrer to the Complaint filed in Case No. 12 U 04551.
Forgery and Perjury
There are some very juicy tidbits in the Demurrer filed in this unlawful detainer action:
- If there is one thing that is clear and unambiguous about the pleadings in this matter it is that they cannot possibly be reconciled with each other. Assuming arguendo that neither of the signatures on the verifications is a forgery (which this Defendant only assumes for the sake of demurrer since Defendant has obtained a voluntary handwriting exemplar from one of the purported signers and already knows that one of the signatures is a forgery in violation of Section 470 of the Penal Code) then at least one of the signers has committed perjury in violation of Section 118 of the California Penal Code.
In the 1st complaint (BC479498 – Feb.28.2012) the Plaintiff attached a Notice to Pay Rent or Quit, contended that the Defendant had not paid rent since March 1, 2011, and claims the amount due and outstanding as being $1,200,245.00.
In the 2nd complaint (12U04551 – Apr.6.2012) the Plaintiff now contends that Defendant owes $200,000.00 and not $1,200,245.00, and states that the amount of $200,000.00 is amount due thru April 2. 2012.
One really has to ponder, maybe wonder, just what Evoq’s lawyers knew and when they knew it. The California State Bar Rules of Professional Conduct (Rule 5-200) states in pertinent part:
In presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;
Likewise, there are two important California Business & Professions Code Sections of interest:
Section 6068 (in pertinent part):
6068. It is the duty of an attorney to do all of the following:
(a) To support the Constitution and laws of the United States and
of this state.
(b) To maintain the respect due to the courts of justice and
(c) To counsel or maintain those actions, proceedings, or defenses
only as appear to him or her legal or just, except the defense of a
person charged with a public offense.
(d) To employ, for the purpose of maintaining the causes confided
to him or her those means only as are consistent with truth, and
never to seek to mislead the judge or any judicial officer by an
artifice or false statement of fact or law.
Section 6128 (in pertinent part):
Every attorney is guilty of a misdemeanor who either:
(a) Is guilty of any deceit or collusion, or consents to any
deceit or collusion, with intent to deceive the court or any party.
COOKING THE BOOKS
New International Version (NIV)
The Judgment of the Dead
11 Then I saw a great white throne and him who was seated on it. The earth and the heavens fled from his presence, and there was no place for them. 12 And I saw the dead, great and small, standing before the throne, and books were opened. Another book was opened, which is the book of life. The dead were judged according to what they had done as recorded in the books. 13 The sea gave up the dead that were in it, and death and Hades gave up the dead that were in them, and each person was judged according to what they had done. 14 Then death and Hades were thrown into the lake of fire. The lake of fire is the second death. 15 Anyone whose name was not found written in the book of life was thrown into the lake of fire.
The discrepancy in the figures that Evoq Properties was claiming in the first lawsuit and in the second is probably explained by my posting of March 16, 2012 (Romneyizing Los Angeles) suggesting that we knew that somebody had been keeping ‘the proverbial “two sets of books’ and probably didn’t bother to tell their lawyers.” Kind of interesting that just ten days later, March 26, 2012, Evoq Properties dismissed the lawsuit…and inquiring minds want to know whether Evoq’s management panicked because somebody figured out who forged a signature and/or who was keeping two sets of books.
Inquiring minds also want to know what went on between Mount Kellett and its current attorneys and who knew exactly what and when. Rule 3-600 of the Rules of Professional Conduct of the California State Bar is instructive on what the lawyers were supposed to do. To see the full rule, go to: http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3600.aspx. Two especially relevant sub-sections of the rule are:
(B) If a member acting on behalf of an organization knows that an actual or apparent agent of the organization acts or intends or refuses to act in a manner that is or may be a violation of law reasonably imputable to the organization, or in a manner which is likely to result in substantial injury to the organization, the member shall not violate his or her duty of protecting all confidential information as provided in Business and Professions Code section 6068, subdivision (e). Subject to Business and Professions Code section 6068, subdivision (e), the member may take such actions as appear to the member to be in the best lawful interest of the organization. Such actions may include among others:
(1) Urging reconsideration of the matter while explaining its likely consequences to the organization; or
(2) Referring the matter to the next higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest internal authority that can act on behalf of the organization.
(C) If, despite the member’s actions in accordance with paragraph (B), the highest authority that can act on behalf of the organization insists upon action or a refusal to act that is a violation of law and is likely to result in substantial injury to the organization, the member’s response is limited to the member’s right, and, where appropriate, duty to resign in accordance with rule 3-700.
When working with businesses where a legal Complaint is required to be “verified,” meaning that somebody is swearing under penalty of perjury that the allegations are true or that at least they believe them to be true, an attorney usually asks the company to provide him/her with the signature on the verification form from some company official who has the appropriate knowledge. So did somebody from inside Evoq provide a forged signature in this litigation and who knew? Who did the forgery and why hasn’t the company and/or its attorneys had that person arrested?
See the demurrer filed in the Merco Group Case: http://www.janbtucker.com/files/Aztlan_Demurrer-1_4_19_12.pdf