Preview
1 John Tehranian (SBN 211616)
jtehranian@onellp.com
2 William J. O’Brien (SBN 99526)
wobrien@onellp.com
3 Christopher S. Skinner (SBN 342830)
cskinnner@onellp.com
4 ONE LLP
23 Corporate Plaza
5 Suite 150-105
Newport Beach, CA 92660
6 Telephone: (310) 866-5157
Facsimile: (310) 943-2085
7
Attorneys for Defendants, Nominal Defendants, and Cross-
8 Complainants Phillip Andrew Torrez, Opening Arguments
Media LLC, and Opening Argument Foundation Inc.
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SONOMA
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THOMAS SMITH, an individual; and Case No. SCV-272627
12 SERIOUS POD LLC, individually and Hon. Bradford DeMeo
derivatively on behalf of OPENING
13 ARGUMENTS MEDIA LLC, a California MEMORANDUM IN RESPONSE TO EX PARTE
limited liability company, APPLICATION TO COMPEL PHILLIP ANDREW
14 TORREZ TO PROVIDE COMPANY LOGIN
Plaintiffs, INFORMATION
15 vs.
16 PHILLIP ANDREW TORREZ, an Amended Complaint Filed: March 29, 2023
individual; and DOES 1-10,
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Defendants,
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and,
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OPENING ARGUMENTS MEDIA LLC, a
20 California limited liability company; and
OPENING ARGUMENTS FOUNDATION
21 INC., a California nonprofit corporation,
22 Nominal Defendants.
23 OPENING ARGUMENTS MEDIA LLC
and PHILLIP ANDREW TORREZ,
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Cross-Complainants,
25
vs.
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THOMAS SMITH; SERIOUS POD LLC;
27 and ROES 1-10,
28 Cross-Defendants.
RESPONSE TO EX PARTE APPLICATION
1 Plaintiffs’ ex parte application should be denied as moot, as well as because Plaintiffs are
2 asking that Phillip Andrew Torrez be ordered to take action not required by the Court’s order
3 appointing the receiver, which is the asserted basis for the ex parte application.
4 The reference in the Court’s order to managers having “unfettered access to the documents
5 and information regarding all of the Company’s accounts and assets” appears during the Court’s
6 statement of the receiver’s powers and duties and is a direction to the receiver rather than a
7 requirement that parties provide information directly to one another. (See Order Granting Mot. to
8 Appoint Receiver at 12:12–14.) Mr. Torrez has provided information to the receiver and left it to
9 her to control distribution of that information to Plaintiffs. As recounted below, the receiver has in
10 fact provided the information to Plaintiffs, making the issue moot.
11 Further, the “unfettered access” clause, by its express terms, applies only “during the
12 receiver’s appointment . . . .” (Id. at 12:12.) Appointment of the receiver took effect only on the
13 posting of her bond. (See, e.g., id. at 2:11–12 (“Motion to Appoint Receiver GRANTED subject
14 to posting of a $500 receiver’s bond.” (emphasis modified)).) The bond was posted at 12:53
15 P.M. yesterday. (See O’Brien Decl., ¶ 2 & Ex. A.) Before that time—and before filing of the ex
16 parte application—Mr. Torrez had already provided the receiver with most of the information
17 requested in the application—namely, the information needed for access to Open Arguments
18 Media LLC’s email, its Libsyn account, and openargs.com (access to the website and podcast).
19 (See id., ¶ 3 & Ex. B.)
20 Mr. Torrez had a concern about potential distortion of evidence in this case in connection
21 with the other information requested in the application (access information for the Patreon and X
22 accounts. After unsuccessfully attempting to arrange an accommodation of that concern, Mr.
23 Torrez provided the receiver with that information yesterday evening. (See id., ¶ 4 & Ex. C.)
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28 ///
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RESPONSE TO EX PARTE APPLICATION
1 She has shared access information for all of the foregoing accounts with Mr. Smith, rendering this
2 ex parte application moot. (See id., ¶ 5 & Ex. D.)
3
4 Dated: February 6, 2024 ONE LLP
5 By: /s/ William J. O’Brien
William J. O’Brien
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Attorneys for Defendants, Nominal Defendants, & Cross-
7 Complainants Phillip Andrew Torrez, Opening Arguments
Media LLC, and Opening Arguments Foundation Inc.
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RESPONSE TO EX PARTE APPLICATION
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3 I am employed in the County of Orange State of California. I am over the age of 18 and
not a party to the within action; my business address is 23 Corporate Plaza, Suite 150-105,
4 Newport Beach, CA 92660.
5 On February 6, 2024, I caused to be served the following document(s) to the address(es)
and by the method of service described below:
6
MEMORANDUM IN RESPONSE TO EX PARTE APPLICATION TO COMPEL
7 PHILLIP ANDREW TORREZ TO PROVIDE COMPANY LOGIN INFORMATION
8 Robert C. Holtzapple
Epstein Holtzapple Christo LLP
9 999 Fifth Avenue
Suite 420
10 San Rafael, CA 94901
Tel: (628) 240-3854
11 Fax: (628) 240-3773
Email: bob@ehc.law
12
13 Attorneys for Plaintiffs
Thomas Smith, Serious Pod LLC, and Opening
14 Arguments Media LLC
15
16 [X] (BY E-SERVICE) I delivered to ONELEGAL, LLC, an e-filing and e-service provider
with the Superior Court of California, the above-described document(s), to be filed and
17 electronically served through the Superior Court’s e-filing system on the above registered
participants on this date.
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[] (BY EMAIL)
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I declare under penalty of perjury under the laws of the State of California that the above is
21 true and correct.
22 Executed on February 6, 2024.
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25 Nate Lichtenberger
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PROOF OF SERVICE
Preview
1 John Tehranian (SBN 211616) jtehranian@onellp.com 2 William J. O’Brien (SBN 99526) wobrien@onellp.com 3 Christopher S. Skinner (SBN 342830) cskinnner@onellp.com 4 ONE LLP 23 Corporate Plaza 5 Suite 150-105 Newport Beach, CA 92660 6 Telephone: (310) 866-5157 Facsimile: (310) 943-2085 7 Attorneys for Defendants, Nominal Defendants, and Cross- 8 Complainants Phillip Andrew Torrez, Opening Arguments Media LLC, and Opening Argument Foundation Inc. 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA 11 THOMAS SMITH, an individual; and Case No. SCV-272627 12 SERIOUS POD LLC, individually and Hon. Bradford DeMeo derivatively on behalf of OPENING 13 ARGUMENTS MEDIA LLC, a California MEMORANDUM IN RESPONSE TO EX PARTE limited liability company, APPLICATION TO COMPEL PHILLIP ANDREW 14 TORREZ TO PROVIDE COMPANY LOGIN Plaintiffs, INFORMATION 15 vs. 16 PHILLIP ANDREW TORREZ, an Amended Complaint Filed: March 29, 2023 individual; and DOES 1-10, 17 Defendants, 18 and, 19 OPENING ARGUMENTS MEDIA LLC, a 20 California limited liability company; and OPENING ARGUMENTS FOUNDATION 21 INC., a California nonprofit corporation, 22 Nominal Defendants. 23 OPENING ARGUMENTS MEDIA LLC and PHILLIP ANDREW TORREZ, 24 Cross-Complainants, 25 vs. 26 THOMAS SMITH; SERIOUS POD LLC; 27 and ROES 1-10, 28 Cross-Defendants. RESPONSE TO EX PARTE APPLICATION 1 Plaintiffs’ ex parte application should be denied as moot, as well as because Plaintiffs are 2 asking that Phillip Andrew Torrez be ordered to take action not required by the Court’s order 3 appointing the receiver, which is the asserted basis for the ex parte application. 4 The reference in the Court’s order to managers having “unfettered access to the documents 5 and information regarding all of the Company’s accounts and assets” appears during the Court’s 6 statement of the receiver’s powers and duties and is a direction to the receiver rather than a 7 requirement that parties provide information directly to one another. (See Order Granting Mot. to 8 Appoint Receiver at 12:12–14.) Mr. Torrez has provided information to the receiver and left it to 9 her to control distribution of that information to Plaintiffs. As recounted below, the receiver has in 10 fact provided the information to Plaintiffs, making the issue moot. 11 Further, the “unfettered access” clause, by its express terms, applies only “during the 12 receiver’s appointment . . . .” (Id. at 12:12.) Appointment of the receiver took effect only on the 13 posting of her bond. (See, e.g., id. at 2:11–12 (“Motion to Appoint Receiver GRANTED subject 14 to posting of a $500 receiver’s bond.” (emphasis modified)).) The bond was posted at 12:53 15 P.M. yesterday. (See O’Brien Decl., ¶ 2 & Ex. A.) Before that time—and before filing of the ex 16 parte application—Mr. Torrez had already provided the receiver with most of the information 17 requested in the application—namely, the information needed for access to Open Arguments 18 Media LLC’s email, its Libsyn account, and openargs.com (access to the website and podcast). 19 (See id., ¶ 3 & Ex. B.) 20 Mr. Torrez had a concern about potential distortion of evidence in this case in connection 21 with the other information requested in the application (access information for the Patreon and X 22 accounts. After unsuccessfully attempting to arrange an accommodation of that concern, Mr. 23 Torrez provided the receiver with that information yesterday evening. (See id., ¶ 4 & Ex. C.) 24 25 26 /// 27 /// 28 /// 2 RESPONSE TO EX PARTE APPLICATION 1 She has shared access information for all of the foregoing accounts with Mr. Smith, rendering this 2 ex parte application moot. (See id., ¶ 5 & Ex. D.) 3 4 Dated: February 6, 2024 ONE LLP 5 By: /s/ William J. O’Brien William J. O’Brien 6 Attorneys for Defendants, Nominal Defendants, & Cross- 7 Complainants Phillip Andrew Torrez, Opening Arguments Media LLC, and Opening Arguments Foundation Inc. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 RESPONSE TO EX PARTE APPLICATION 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF ORANGE 3 I am employed in the County of Orange State of California. I am over the age of 18 and not a party to the within action; my business address is 23 Corporate Plaza, Suite 150-105, 4 Newport Beach, CA 92660. 5 On February 6, 2024, I caused to be served the following document(s) to the address(es) and by the method of service described below: 6 MEMORANDUM IN RESPONSE TO EX PARTE APPLICATION TO COMPEL 7 PHILLIP ANDREW TORREZ TO PROVIDE COMPANY LOGIN INFORMATION 8 Robert C. Holtzapple Epstein Holtzapple Christo LLP 9 999 Fifth Avenue Suite 420 10 San Rafael, CA 94901 Tel: (628) 240-3854 11 Fax: (628) 240-3773 Email: bob@ehc.law 12 13 Attorneys for Plaintiffs Thomas Smith, Serious Pod LLC, and Opening 14 Arguments Media LLC 15 16 [X] (BY E-SERVICE) I delivered to ONELEGAL, LLC, an e-filing and e-service provider with the Superior Court of California, the above-described document(s), to be filed and 17 electronically served through the Superior Court’s e-filing system on the above registered participants on this date. 18 [] (BY EMAIL) 19 20 I declare under penalty of perjury under the laws of the State of California that the above is 21 true and correct. 22 Executed on February 6, 2024. 23 24 25 Nate Lichtenberger 26 27 28 4 PROOF OF SERVICE