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I
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Nov-02-2012 3:09 pm
Case Number: CPF-12-512324
Filing Date: Nov-02-2012 3:08
Filed by: MICHAEL RAYRAY
Juke Box: 001 Image: 03828017
OPPOSITION
JEFFER MANGELS BUTLER VS. JEFFER HARDESTY
001003828017
Instructions:
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SE 140738701
JEFFER MANGELS BUTLER & MITCHELL LLP
PAUL L. WARNER (Bar No. 54757)
Two Embarcadero Center, 5th Floor
San Francisco, CA 94111-3813
Telephone: (415) 398-8080
Facsimile: (415) 398-5584
Attorneys for Petitioner
JEFFER MANGELS BUTLER & MITCHELL LLP
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JEFFER MANGELS BUTLER & MITCHELL
LLP. a Limited Liability Partnership,
Petitioner,
v.
JOSEPH HARDESTY, an individual; YVETTE
HARDESTY, an individual and RICK
CHURCHES, an individual;
Respondents.
CASE NO.
CPF - 12 - 512324
OPPOSITION TO MOTION TO SET ASIDE
ORDER COMPELLING ARBITRATION
Date: November 16, 2012
Time: YW
Tine BY FAX
Judge:
9:30 a.m.
302
Hon. Harold E. Kahn
OPPOSITION TO MOTION TO SET ASIDE
ORDER COMPELLING ARBITRATIONYN nu
Jeffer Mangels
Butler & Mitchell ur
R
JMBM
PRINTED ON
RECYCLED PAPER
Sh 14y738701
1.
INTRODUCTION
Respondents Joseph Hardesty, Yvette Hardesty and Rick Churches ("Respondents") have
made a hyper-technical argument about the manner of service of the Petition To Compel
Arbitration. Respondents do not contend that JMBM failed to give them timely notice of the
hearing on JMBM's Petition To Compel Arbitration. Instead, Respondents narrowly construe both
the Code of Civil Procedure which allows for service by mail and JMBM's Engagement Letter
Agreement which allows for service by mail to contend that in order for an arbitration to proceed,
Respondents must be personally served. Although Respondents are wrong as a matter of law, the
issue is moot because Respondents made a general appearance in this action and have now been
served with a Second Petition To Compel Arbitration (essentially identical to the original Petition),
this time on their counsel of record, who of course can be served by mailed because he has made a
general appearance on their behalf. The Respondents' Motion should be denied or in the alternative,
the Court should simply grant the Second Petition so that the matter can proceed on the merits.
i.
UNDISPUTED FACTS
It is not disputed that JMBM and Respondents entered into two nearly identical Engagement
Letter Agreements, both of which contain broad arbitration clauses. Declaration Of Paul L. Warner,
filed July 5, 2012, {2 ("Warner Decl."). It is not disputed that there are billed and unpaid legal fees
owed on each account..' It is not disputed that JMBM requested payment of the amounts due. It is
not disputed that Respondents refused to pay. It is not disputed that JMBM sent Respondents the
required Notice Of Client's Right to Arbitration and that Respondents ignored the Notice and did
not request Bar Association arbitration. Warner Decl., 3. It is not disputed that JMBM
commenced an arbitration with ADRS which sent notice to Respondents which they received.
Warner Decl., {J 4 and 5. It is not disputed that Respondents refused to participate in the ADRS
' Respondents are, of course, free to challenge the propriety of the fees billed on the merits
in the Arbitration. It is undisputed that the fees were billed and have not been paid, and of course,
that there is a dispute about payment.
1 OPPOSITION TO MOTION-TO SET ASIDE
ORDER COMPELLING ARBITRATIONJeffer Mangels
Butler & Mitchell ue
a
=
eS
Arbitration, and refused to select an Arbitrator or to pay their share of the arbitration fees (required
by the Engagement Letter Agreements) and that JMBM advanced the full cost of the arbitration. Id.
It is not disputed that JMBM took the extra precaution of filing a Petition To Compel Arbitration so
that Respondents would have an opportunity to object to the arbitration proceeding (even though
any such objection would be frivolous). It is not disputed that JMBM attempted to personally serve
the Petition To Compel Arbitration and that Respondents intentionally evaded personal service. It
is not disputed that Respondents received the Petition To Compel Arbitration which was served by
mail on July 11, 2012. This was 34 days prior to the hearing on the Petition and yet Respondents
made no objection to the manner of service until after the Order Compelling Arbitration was
entered. Indeed, it is not disputed that Respondents first formal objection to anything was their
failed attempt on October 26, 2012, to obtain an ex parte Order setting aside the Order Compelling
Arbitration, made only a week prior to the scheduled date for the arbitration. And it is not disputed
that Respondents are not arguing about the merits (whether they should pay for legal fees incurred);
and they are not arguing about the forum to resolve that dispute (whether there should be an
arbitration); but instead Respondents argue that they must be personally served with a Petition to
determine whether they should arbitrate the dispute. It is obvious that Respondents will take any
position to prevent an arbitration because they have no defense on the merits.
iil.
MOTION TO SET ASIDE ORDER COMPELLING ARBITRATION IS MOOT
The instant motion is moot. The sole issue is whether JMBM properly served Respondents
with the Petition To Compel Arbitration by mail. In response, and since Respondents have made a
general appearance in this action, JMBM refilled the Petition To Compel Arbitration to be heard
concurrently with this Motion. Because Respondents have generally appeared, it was proper to
serve the Petition on Respondents’ counsel by mail, 15 days prior to the hearing.” See C.C.P.
> A notice of hearing on a petition to compel arbitration must give 10 days' notice (C.C.P. -
§ 1290.2), plus five days' for mailing in California. The Petition was filed November 1, 2012, and
set for hearing on November 16, 2012.
2 OPPOSITION TO MOTION TO SET ASIDE
ORDER COMPELLING ARBITRATIONJeffer Mangels
Butler & Mitchell ur
JMBM
PRINTED ON
28
RECYCLED PAPER
SF 1407387v1
§ 1290.4(b) which requires personal service of the Petition unless the party served has previously
appeared in the proceeding.*
Respondents may well argue that it is improper to serve them by mail on their counsel since
they were required to appear in order to set aside the Order Compelling Arbitration. The response
is that Respondents made no effort (assuming that this can be done) to make a special appearance
solely for the purpose of contesting service. Similarly, Respondents could have participated in the
Arbitration and reserved their rights to contest arbitration later. Instead they did nothing, in order to
delay the arbitration, which has occurred
Respondents now have an opportunity to contest whether an arbitration goes forward. They
have not been harmed procedurally because they can asserts any ground, however frivolous, to
convince this Court that they are not required the arbitrate disputes with JMBM. They have no such
grounds. The instant Motion is moot.
Iv.
RESPONDENTS WAIVED ANY RIGHT TO CONTEST SERVICE
As noted in Section II above, Respondents knew about the Petition To Compel Arbitration
on or about July 12, 2012 but took no action to object to the manner of service prior to the August
15, 2012 hearing. Respondents could easily have written to the Court, without making an
appearance, advising that they had been improperly been served; or Respondents could have made a
special appearance objecting to service. Instead, they chose tactically to wait until the last minute to
raise this issue so as to derail the scheduled arbitration. By so doing, they knowingly waived any
tight to object to the manner of service. It stands to reason that a party who has an objection to
service but does not raise that objection until after the fact waives the right to make the objection.
> C.C.P. § 1290.4(a) allows for service by mail if permitted by the underlying agreement
requiring arbitration.
3 OPPOSITION TO MOTION TO SET ASIDE
ORDER COMPELLING ARBITRATIONUB WwW Nv
' Butler & Mitchell ur
B
' Jeffer Mangels
JMBM
PRINTED ON
RECYCLED PAPER
SF 1407387v1
Vv.
ENGAGEMENT LETTER PERMITS SERVICE BY MAIL
The default method of service of a Petition To Compel Arbitration is the manner of service
set forth in the Arbitration Agreement. C.C.P. § 1290.4(a). The Engagement Letter provides that
service may be made by mail. Respondents argue that the service by mail provision applies only to
a petition to enforce an arbitration award. But the Engagement Letter should not be so narrowly
construed. It is clear from the Engagement Letter that JMBM insisted, as a condition of
representation, that Respondents agree to an economical and speedy resolution of disputes. This
was hardly hidden from Respondents. The Arbitration Clause in the Engagement Letter Agreement
is in ALL CAPITALS AND BOLD FACE; indeed this is the only portion of the Agreement so
highlighted. And, the Arbitration Clause is once again highlighted in bold face immediately above
Respondents' signatures. Under these circumstances, to construe the service by mail provision
narrowly to apply to only post arbitration enforcement makes no sense.
4 OPPOSITION TO MOTION TO SET ASIDE
ORDER COMPELLING ARBITRATIONJeffer Mangels
Butler & Mitchell ur
5B
JMBM
PRINTED ON
RECYCLED PAPER,
SF 1407387vt
VI.
CONCLUSION
Respondents are playing the delay game. They have every right to contest JMBM's legal
fees in the arbitration but they do not want to do that because they have no defense. They can also
raise at the arbitration any claims they have concerning whether the dispute is subject to arbitration.
The arbitration clause in the Engagement Letter allows them to do that. But Respondents should
not be permitted to interpose an technical argument (now mooted) as to the manner of service of a
pleading that Respondents admit that they received and admit that they did nothing about until after
the Order Compelling arbitration was entered. The Motion should be denied.
DATED: November 2, 2012 JEFFER MANGELS BUTLER & MITCHELL LLP
PAUL L. WARNER
By: :
PAUL L. WARNER
Attorney for Petitioner
JEFFER MANGELS BUTLER & MITCHELL LLP
5 OPPOSITION TO MOTION TO SET ASIDE
ORDER COMPELLING ARBITRATIONPROOF OF SERVICE
STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO
Tam employed in the City and County of San Francisco, State of California. I am over
the age of 18 and not a party to the within action; my business address is: Two Embarcadero
Center, 5th Floor, San Francisco, California 94111.
On November 2, 2012 I served the document(s) described as
OPPOSITION TO MOTION TO SET ASIDE ORDER COMPELLING ARBITRATION
in this action addressed as follows:
William K. Brewer, Esq.
Jared G. Coleman, Esq.
8880 Rio San Diego Drive, Suite 1098
San Diego, CA 92108
Telephone: (619) 291-6558
Fax: (619) 291-6433
Attorneys for Respondents: Joseph Hardesty, Yvette Hardesty and
Rick Churches
(@YMAIL) Iam "readily familiar" with the business’ practice for collection and
processing correspondence for mailing. Under that practice true and correct copies of the
aforementioned document(s) was deposited, in a sealed envelope with postage thereon
fully prepaid, with the U.S. Postal Service on that same day to be mailed via first class
mail at San Francisco, California in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after date of deposit for mailing in affidavit.
(1 WY FAX) Pursuant to Rule 2.306, the parties have agreed to service by fax, anda
written confirmation of that agreement has been made. On , ~~ I transmitted, pursuant
to Rule 2.306, the above-described document by facsimile machine, to the above-listed
fax number(s). The transmission originated from facsimile phone number
(310) 203-0567 (714) 429-8202 and was reported as complete and without error. The
facsimile machine properly issued a transmission report, a copy of which is attached.
oO (BY ELECTRONIC SERVICE) On _ , _[ transmitted the aforementioned document(s)
directly, through an agent, or through a designated electronic filing service provider to
the aforementioned electronic notification address(es). ‘The transmission originated from
my electronic notification address, which is , and was r eported as complete and
without error. Pursuant to Rule 2.260(f)(4), I will maintain a printed form of this
document bearing my original signature and will make the document available for
inspection and copying on the request of the court or any party to the action or
proceeding in which it is filed, in the manner provided in rule 2.257(a).
Oo (BY PERSONAL SERVICE) I placed the aforementioned document(s) in a sealed
envelope and I delivered such envelope by hand to the offices of the addressee.
J = (BY OVERNIGHT DELIVERY) I placed the aforementioned document(s) in a sealed
envelope with postage thereon fully prepaid and I caused said envelope to be delivered
overnight via an overnight delivery service in lieu of delivery by mail to the addressee(s).
SF 1407363v1Executed on November 2, 2012 at San Francisco, California.
I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Riigela Pereira
SF 1407163v1
Preview
I SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Nov-02-2012 3:09 pm Case Number: CPF-12-512324 Filing Date: Nov-02-2012 3:08 Filed by: MICHAEL RAYRAY Juke Box: 001 Image: 03828017 OPPOSITION JEFFER MANGELS BUTLER VS. JEFFER HARDESTY 001003828017 Instructions: Please place this sheet on top of the document to be scanned.2 3 4 5 6 7 8 9 10 , os 12 BS Ee 13 a3 Sa 14 > 15 16 re 17 18 19 20 21 22 23 24 25 26 27 28 PRINTED ON RECYCLED PAPER SE 140738701 JEFFER MANGELS BUTLER & MITCHELL LLP PAUL L. WARNER (Bar No. 54757) Two Embarcadero Center, 5th Floor San Francisco, CA 94111-3813 Telephone: (415) 398-8080 Facsimile: (415) 398-5584 Attorneys for Petitioner JEFFER MANGELS BUTLER & MITCHELL LLP SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JEFFER MANGELS BUTLER & MITCHELL LLP. a Limited Liability Partnership, Petitioner, v. JOSEPH HARDESTY, an individual; YVETTE HARDESTY, an individual and RICK CHURCHES, an individual; Respondents. CASE NO. CPF - 12 - 512324 OPPOSITION TO MOTION TO SET ASIDE ORDER COMPELLING ARBITRATION Date: November 16, 2012 Time: YW Tine BY FAX Judge: 9:30 a.m. 302 Hon. Harold E. Kahn OPPOSITION TO MOTION TO SET ASIDE ORDER COMPELLING ARBITRATIONYN nu Jeffer Mangels Butler & Mitchell ur R JMBM PRINTED ON RECYCLED PAPER Sh 14y738701 1. INTRODUCTION Respondents Joseph Hardesty, Yvette Hardesty and Rick Churches ("Respondents") have made a hyper-technical argument about the manner of service of the Petition To Compel Arbitration. Respondents do not contend that JMBM failed to give them timely notice of the hearing on JMBM's Petition To Compel Arbitration. Instead, Respondents narrowly construe both the Code of Civil Procedure which allows for service by mail and JMBM's Engagement Letter Agreement which allows for service by mail to contend that in order for an arbitration to proceed, Respondents must be personally served. Although Respondents are wrong as a matter of law, the issue is moot because Respondents made a general appearance in this action and have now been served with a Second Petition To Compel Arbitration (essentially identical to the original Petition), this time on their counsel of record, who of course can be served by mailed because he has made a general appearance on their behalf. The Respondents' Motion should be denied or in the alternative, the Court should simply grant the Second Petition so that the matter can proceed on the merits. i. UNDISPUTED FACTS It is not disputed that JMBM and Respondents entered into two nearly identical Engagement Letter Agreements, both of which contain broad arbitration clauses. Declaration Of Paul L. Warner, filed July 5, 2012, {2 ("Warner Decl."). It is not disputed that there are billed and unpaid legal fees owed on each account..' It is not disputed that JMBM requested payment of the amounts due. It is not disputed that Respondents refused to pay. It is not disputed that JMBM sent Respondents the required Notice Of Client's Right to Arbitration and that Respondents ignored the Notice and did not request Bar Association arbitration. Warner Decl., 3. It is not disputed that JMBM commenced an arbitration with ADRS which sent notice to Respondents which they received. Warner Decl., {J 4 and 5. It is not disputed that Respondents refused to participate in the ADRS ' Respondents are, of course, free to challenge the propriety of the fees billed on the merits in the Arbitration. It is undisputed that the fees were billed and have not been paid, and of course, that there is a dispute about payment. 1 OPPOSITION TO MOTION-TO SET ASIDE ORDER COMPELLING ARBITRATIONJeffer Mangels Butler & Mitchell ue a = eS Arbitration, and refused to select an Arbitrator or to pay their share of the arbitration fees (required by the Engagement Letter Agreements) and that JMBM advanced the full cost of the arbitration. Id. It is not disputed that JMBM took the extra precaution of filing a Petition To Compel Arbitration so that Respondents would have an opportunity to object to the arbitration proceeding (even though any such objection would be frivolous). It is not disputed that JMBM attempted to personally serve the Petition To Compel Arbitration and that Respondents intentionally evaded personal service. It is not disputed that Respondents received the Petition To Compel Arbitration which was served by mail on July 11, 2012. This was 34 days prior to the hearing on the Petition and yet Respondents made no objection to the manner of service until after the Order Compelling Arbitration was entered. Indeed, it is not disputed that Respondents first formal objection to anything was their failed attempt on October 26, 2012, to obtain an ex parte Order setting aside the Order Compelling Arbitration, made only a week prior to the scheduled date for the arbitration. And it is not disputed that Respondents are not arguing about the merits (whether they should pay for legal fees incurred); and they are not arguing about the forum to resolve that dispute (whether there should be an arbitration); but instead Respondents argue that they must be personally served with a Petition to determine whether they should arbitrate the dispute. It is obvious that Respondents will take any position to prevent an arbitration because they have no defense on the merits. iil. MOTION TO SET ASIDE ORDER COMPELLING ARBITRATION IS MOOT The instant motion is moot. The sole issue is whether JMBM properly served Respondents with the Petition To Compel Arbitration by mail. In response, and since Respondents have made a general appearance in this action, JMBM refilled the Petition To Compel Arbitration to be heard concurrently with this Motion. Because Respondents have generally appeared, it was proper to serve the Petition on Respondents’ counsel by mail, 15 days prior to the hearing.” See C.C.P. > A notice of hearing on a petition to compel arbitration must give 10 days' notice (C.C.P. - § 1290.2), plus five days' for mailing in California. The Petition was filed November 1, 2012, and set for hearing on November 16, 2012. 2 OPPOSITION TO MOTION TO SET ASIDE ORDER COMPELLING ARBITRATIONJeffer Mangels Butler & Mitchell ur JMBM PRINTED ON 28 RECYCLED PAPER SF 1407387v1 § 1290.4(b) which requires personal service of the Petition unless the party served has previously appeared in the proceeding.* Respondents may well argue that it is improper to serve them by mail on their counsel since they were required to appear in order to set aside the Order Compelling Arbitration. The response is that Respondents made no effort (assuming that this can be done) to make a special appearance solely for the purpose of contesting service. Similarly, Respondents could have participated in the Arbitration and reserved their rights to contest arbitration later. Instead they did nothing, in order to delay the arbitration, which has occurred Respondents now have an opportunity to contest whether an arbitration goes forward. They have not been harmed procedurally because they can asserts any ground, however frivolous, to convince this Court that they are not required the arbitrate disputes with JMBM. They have no such grounds. The instant Motion is moot. Iv. RESPONDENTS WAIVED ANY RIGHT TO CONTEST SERVICE As noted in Section II above, Respondents knew about the Petition To Compel Arbitration on or about July 12, 2012 but took no action to object to the manner of service prior to the August 15, 2012 hearing. Respondents could easily have written to the Court, without making an appearance, advising that they had been improperly been served; or Respondents could have made a special appearance objecting to service. Instead, they chose tactically to wait until the last minute to raise this issue so as to derail the scheduled arbitration. By so doing, they knowingly waived any tight to object to the manner of service. It stands to reason that a party who has an objection to service but does not raise that objection until after the fact waives the right to make the objection. > C.C.P. § 1290.4(a) allows for service by mail if permitted by the underlying agreement requiring arbitration. 3 OPPOSITION TO MOTION TO SET ASIDE ORDER COMPELLING ARBITRATIONUB WwW Nv ' Butler & Mitchell ur B ' Jeffer Mangels JMBM PRINTED ON RECYCLED PAPER SF 1407387v1 Vv. ENGAGEMENT LETTER PERMITS SERVICE BY MAIL The default method of service of a Petition To Compel Arbitration is the manner of service set forth in the Arbitration Agreement. C.C.P. § 1290.4(a). The Engagement Letter provides that service may be made by mail. Respondents argue that the service by mail provision applies only to a petition to enforce an arbitration award. But the Engagement Letter should not be so narrowly construed. It is clear from the Engagement Letter that JMBM insisted, as a condition of representation, that Respondents agree to an economical and speedy resolution of disputes. This was hardly hidden from Respondents. The Arbitration Clause in the Engagement Letter Agreement is in ALL CAPITALS AND BOLD FACE; indeed this is the only portion of the Agreement so highlighted. And, the Arbitration Clause is once again highlighted in bold face immediately above Respondents' signatures. Under these circumstances, to construe the service by mail provision narrowly to apply to only post arbitration enforcement makes no sense. 4 OPPOSITION TO MOTION TO SET ASIDE ORDER COMPELLING ARBITRATIONJeffer Mangels Butler & Mitchell ur 5B JMBM PRINTED ON RECYCLED PAPER, SF 1407387vt VI. CONCLUSION Respondents are playing the delay game. They have every right to contest JMBM's legal fees in the arbitration but they do not want to do that because they have no defense. They can also raise at the arbitration any claims they have concerning whether the dispute is subject to arbitration. The arbitration clause in the Engagement Letter allows them to do that. But Respondents should not be permitted to interpose an technical argument (now mooted) as to the manner of service of a pleading that Respondents admit that they received and admit that they did nothing about until after the Order Compelling arbitration was entered. The Motion should be denied. DATED: November 2, 2012 JEFFER MANGELS BUTLER & MITCHELL LLP PAUL L. WARNER By: : PAUL L. WARNER Attorney for Petitioner JEFFER MANGELS BUTLER & MITCHELL LLP 5 OPPOSITION TO MOTION TO SET ASIDE ORDER COMPELLING ARBITRATIONPROOF OF SERVICE STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO Tam employed in the City and County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is: Two Embarcadero Center, 5th Floor, San Francisco, California 94111. On November 2, 2012 I served the document(s) described as OPPOSITION TO MOTION TO SET ASIDE ORDER COMPELLING ARBITRATION in this action addressed as follows: William K. Brewer, Esq. Jared G. Coleman, Esq. 8880 Rio San Diego Drive, Suite 1098 San Diego, CA 92108 Telephone: (619) 291-6558 Fax: (619) 291-6433 Attorneys for Respondents: Joseph Hardesty, Yvette Hardesty and Rick Churches (@YMAIL) Iam "readily familiar" with the business’ practice for collection and processing correspondence for mailing. Under that practice true and correct copies of the aforementioned document(s) was deposited, in a sealed envelope with postage thereon fully prepaid, with the U.S. Postal Service on that same day to be mailed via first class mail at San Francisco, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (1 WY FAX) Pursuant to Rule 2.306, the parties have agreed to service by fax, anda written confirmation of that agreement has been made. On , ~~ I transmitted, pursuant to Rule 2.306, the above-described document by facsimile machine, to the above-listed fax number(s). The transmission originated from facsimile phone number (310) 203-0567 (714) 429-8202 and was reported as complete and without error. The facsimile machine properly issued a transmission report, a copy of which is attached. oO (BY ELECTRONIC SERVICE) On _ , _[ transmitted the aforementioned document(s) directly, through an agent, or through a designated electronic filing service provider to the aforementioned electronic notification address(es). ‘The transmission originated from my electronic notification address, which is , and was r eported as complete and without error. Pursuant to Rule 2.260(f)(4), I will maintain a printed form of this document bearing my original signature and will make the document available for inspection and copying on the request of the court or any party to the action or proceeding in which it is filed, in the manner provided in rule 2.257(a). Oo (BY PERSONAL SERVICE) I placed the aforementioned document(s) in a sealed envelope and I delivered such envelope by hand to the offices of the addressee. J = (BY OVERNIGHT DELIVERY) I placed the aforementioned document(s) in a sealed envelope with postage thereon fully prepaid and I caused said envelope to be delivered overnight via an overnight delivery service in lieu of delivery by mail to the addressee(s). SF 1407363v1Executed on November 2, 2012 at San Francisco, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Riigela Pereira SF 1407163v1