Order: FREDERICK C FIECHTER VS. CARL WESCOTT et al

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Preview
                                San Francisco County Superi
uperior Court
Carl A. Wescott

PO Box 191906 DEC 10 2019

San Francisco, CA 94119 CLERK

in propria persona BY: OF TOE COURT
+1 415 335 5000 9 juty Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

FREDERICK C. FIECHTER Case No. CGC-10-496091
Plaintiff, Coorpec*)
DEFENDANT’S MOTION FOR
vs. RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND
CARL A WESCOTT, ASSIGNMENT
Defendant

Defendant Carl A. Wescott proceeding pro se, files this Motion for Reconsideration of
the Court’s November 22™, 2019 Order (which Defendant sourced from the docket), granting the|
Plaintiff's Motion for Assignment and Charging Orders. The Defendant files this Motion
pursuant to CCP 1008(a) (based on different facts and circumstances unknown to the Defendant;
Le Francios v. Goel (2005) 35 Cal.4"" 1094) as well as pursuant to CCP 473(b), utilizing the
inherent equitable power of this Court to correct injustices. The Defendant shall utilize the
protocol for CCP 1008(a) for this submission and hereby offers this summary of pertinent facts
supported by a Memorandum of Points & Authorities.

By way of introduction, this judgment was procured by Plaintiff in a legal complaint long
ago in which Plaintiff was never properly served. The Plaintiff's service of the legal complaint
was done (by Mr. Zeff, an experience attorney who obviously knows better after approximately

45 years as an attorney) via mail to “Carl Wescott, San Pedro Sula, Honduras” and to an obsolete|

with mijive Obbih duet Cepynd EA/lof,

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENTemail address. Mr. Zeff made no attempts for proper service despite his knowledge and even
participation in the Defendant’s bankruptcy case. The Defendant could have been served
personally at any number of Court appearances or at one of multiple addresses in California if
the Plaintiff and his attorney wished to have a disposition on the merits of the related case (they
did not). In the interests of relative brevity, and to avoid duplicate writing, efforts, and reading,
the Defendant refers the Court to his Motion to Set Aside Judgment/Default Judgment/Leave to

Defendant, scheduled for hearing on December 3"4, 2019 (until Mr. Zeff filed an ex parte

Motion).
The Plaintiff did not meet the basic requirements of CCP 708 including the requisite
burden of proof, but we’ll skip over that due to the other exigent circumstances:
¢ Continuing a pattern, Mr. Zeff arguably did not effectuate proper service for this
Motion for Assignment and Charging Orders (service was made, but due to the
Defendant’s Notice of Unavailability and business travel, we lacked the appropriate
number of days of service upon Defendant, and the Defendant had no opportunity to
respond or appear in Court).
e Mr. Zeff refused to push back the hearing one week for Defendant to appear.
¢ The Defendant did create a response and emailed it to Plaintiff's attorney, but could
not file the Response from Dubai where he was for 3 weeks (as a pro per, the
Defendant does not have electronic service as an option).
¢ Continuing the patterns herein, Mr. Zeff did not notify the Court of any of these or
other related issues.

Finally, the information that Mr. Zeff used in his filing was obtained by inducing a fiduciary

breach in the Defendant’s paralegal, and then stealing privileged and confidential information.

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENT27

28

Further, as the Defendant learned on Sunday November 24" and in the days thereafter (Exhibit
“A”), Mr. Zeff purposely mischaracterized the information he received from Mr. Block and even
attempted to suborn perjury from Mr. Block (in a written affidavit in which 19 of 20 paragraphs
had lies that Mr. Zeff drafted and attempted to bribe Mr. Block to sign).

The Defendant lays out some of his newly obtained information and the sources thereof
in Exhibit B. Had the Defendant filed the Response that he served upon Mr. Block (and
provided by email) upon the Court (Exhibit D), his understanding is that he would have lost the
right to strike the improper Motion based on lack of proper service. The Defendant, who is not
an attorney, isn’t quite clear on the logistics of how he could implement a Motion to Strike at this
point, but he hopes and trusts that the Court can use its equitable power under 473(b) if presented
with facts and the Defendant’s argument herein, that shall be laid out next. The Defendant will
then close with a few facts, issues and arguments related to Mr. Zeff’s bribery of the Defendant’s
paralegal and Mr. Zeff’s theft of privileged and confidential information. (The Defendant shall

draft a bar complaint shortly).

1. Further information and background related to Striking the Motion

The Defendant hereby respectfully requests that this Court Strike the Plaintiff's Motion
For Assignment and Charging Orders pursuant to CCP 435, CCP 128.5.

As briefly alluded to above, this is a Plaintiff who initially obtained his judgement
through a fraudulently obtained Default. The facts of the complaint were never tested on the
merits. The Plaintiff has acquired a taste for unmerited victories and legal shortcuts. He is now
trying to accomplish with scheduling tricks what he initially accomplished with improper

service: muzzling his adversary.

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENTWorse, with respect to his present Motion, this is a Plaintiff who will quite simply not
take "yes" for an answer. The reason is simple: the Plaintiff is a very wealthy man who is not
seeking money damages but is rather determined to destroy this Defendant's rights of speech,
petition and association (which agenda will be the subject of an imminent filing under CCP
425.16). Mr. Zeff admitted such in talks with Mr. Block.

The Plaintiff initially scheduled this Motion for hearing during a period in which the
Defendant had business travel to Dubai and would be gone for almost three weeks. The
Defendant had served and provided a Notice of Unavailability to the Plaintiff with dates that he
would be away in the second half of October and through November 8". The Defendant later
updated the Plaintiff that he would be away through November 25". The Plaintiff pounced after
receiving the Notice of Unavailability (Exhibit C), attempting to take advantage. The Plaintiff
would not entertain the Defendant’s requests to push the hearing back to November 25".

California Rule of Court 9.4 requires civility and further requires attorneys to swear they
will conduct themselves with dignity courtesy and integrity. Mr. Zeff, Plaintiff's counsel in this
case, scheduled his Motion during a period of unavailability which was not courteous. He
scoffed at the Defendant's explanation which was neither courteous nor dignified. Mr. Zeff also
violated San Francisco Superior Court Guideline Section II (A) (1) and (2) by failing to confer
with an adversary concerning scheduling and by arbitrarily refusing a reasonable scheduling
accommodation.

Mr. Zeff's violations of Business & Professions 6067, his attorney's oath, and the
Guidelines of this Court relating to professionalism are, unsurprisingly an independent cause for
sanction and censure in the caselaw. Tenderloin Housing Clinic Inc. v. Sparks, (1992) 8

Cal.App.4th 299, 307. Mr. Zeff's violations have not occurred in a vacuum. He has shown

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENT27

28

disrespect for this Defendant and this Court in ignoring the Defendant's protests about Mr. Zeff's
misuse of confidential information and in not disclosing either those protests or the fact of his
witness payments (bribery) to this Court.

The Court should not condone Mr. Zeff's pattern of gamesmanship and his win-at-every-
price attitude which began with fraudulent service of process (C/O Honduras) leading to a

wrongfully obtained default.

2. Issues related to Plaintiff's bribery of Defendant’s paralegal and subsequent theft of

privileged and confidential information

There is no dispute in this case that the Plaintiffs Motion was based on information
provided by Robert Block, (“Block”) the Defendant’s paralegal and legal advisor. Block is cited
as the principle source of information in the Plaintiff's MPA and in the supporting sworn
declarations, including the declaration of Plaintiff's lead counsel, Mr. Zeff. The Plaintiff used
Block’s disclosures to advance the proposition that the Defendant enjoyed a significant income
and had secreted assets. Much more information on Mr. Zeff’/s bribery and related crimes is
contained in the docket in Defendant’s Motion for Disqualification, scheduled for December 2nd,
2019.

However, Mr. Zeff was very selective in his disclosures concerning the provenance and
content of the information from Block. He failed to disclose that he had paid Block for
information, including the conclusory statement that Block had no fiduciary duty to the
Defendant. This was a point that the Defendant made in his Opposition and in related filings.

However, subsequent conversations with Block have revealed: (1) Block disclosed to Mr.

Zeff that the Defendant was in fact on food stamps and living an economically marginal life, one

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENT27

28

step ahead of homelessness and, (2) Mr. Zeff disclosed that his client was indifferent to the
prospects of actually collecting from the Defendant and sought primarily to punish the
Defendant.

These new disclosures from Block justify reconsideration under 1008. Alternatively and
conjunctively, this Court should exercise its discretion under Le Francios v. Goel to reconsider
its ruling Sua Sponte. It is proper for the Defendant to invite the Court to do so. Jbn Re the

Marriage of Phillip & Rachelle Spector (2018) Third District No. C084628.

3. New Evidence Shows that the Plaintiff’s Filing was Materially Misleading

The thrust of the Plaintiff's argument was that the Defendant enjoyed significant income
and was hiding assets. Thus, from page | of the MPA in Support of the Plaintiffs Motion for
Assignment & Charging Order:

Through post judgment levies and discovery, and third-party witness Robert J.
27 Block, Fiechter has learned that although Wescott claims to be impecunious, homeless
and on Food Stamps and MediCal, Wescott's PayPal account shows income

Mr. Zeff’s Supporting Declaration sounds the same theme:

These PayPal documents show income of $93,242.77 which Mr. Wescott
had in the years 2017 through early 2019, and of course he likely had other sources of
income which we have not yet found.

Yet, Block provided Mr. Zeff with directly contrary information, see Sworn Declaration of
Robert Block, attached hereto as Exhibit “B”. Block also informed Mr. Zeff:

¢ That the Defendant had been living in squalor in an office building and was the
subject of an ongoing eviction attempt;

¢ That the Defendant had been, on more than one occasion, locked out of his office
and forced to spend nights on the streets;

e That the Defendant was, from Block’s own personal knowledge, dependent on
food stamps and sometimes short of food and;

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENT27

28

e That the Defendant’s net income and available cash was almost certainly small
and occasionally dipped below subsistence level.

Block also candidly informed Mr. Zeff that his client would be challenged to collect
anything more than a few hundred dollars from the Defendant in the foreseeable future. Mr. Zeff
then favoured Block with more candour than he has ever shown to this Court, disclosing that his
client was not primarily interested in collection but was in fact interested in punishing this
Defendant. (again, see Exhibit “A”).

The new learnings and information from Block directly undercut the premise and the
bases of the Plaintiffs Motion. The Plaintiff knew that the Defendant did not have a significant
income and was in fact barely subsisting. The Plaintiff also knew that he was not in a position to
collect significant funds from the Defendant. The Plaintiff supported his filing by selectively
disclosing information provided by Block to create a false impression with the Court.

Block’s sworn declaration also details the reasons that he was challenged to provide the
Defendant with the new information offered herein until relatively recently. The Defendant’s
protracted absence from the country made it difficult for Block to reliably communicate with the

Defendant.

4. Alternatively & Conjunctively this Court has the Authority to Reconsider its Order Sua

Sponte

Under Le Francios v. Goel this Court has the inherent authority to reconsider its rulings
even if a Motion for Reconsideration does not otherwise meet the strict letter of 1008 (a).
As the Court pointed out in Le Francios:

Our review of the two motions reveals that the second motion was based upon the same
law and the same evidence contained in the first motion. Accordingly, the second

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENTmotion violated the terms of both section 1008 and 437c (f)(2). The only question then
is whether, in light of that violation, the trial court retained the power to rule upon the
motion. As to section 1008, our court recently answered the question in the affirmative.
(Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal.App.4th 197,
205, 132 Cal.Rptr.2d 89 (Scott ).) Scott held that to the extent section 1008, subdivision
(e) purported to deprive the court of power to correct a prior interim ruling, it conflicted
with article VI, section 1, of the California Constitution, which confers the judicial power
on the courts.* As such, it is “an impermissible interference with the core functions of
the judiciary.” (Scott, supra, 107 Cal.-App.4th at p. 210, 132 Cal.Rptr.2d 89.) “To
deprive a court of jurisdiction to reconsider its interim rulings would, in our view, create
a significant impediment to a court's ability to reach a fair and expeditious resolution of
the issues before it.” (Ibid.) Scott concluded that section 1008, subdivision (e) must be
reformed to eliminate any restriction upon the court's jurisdiction with regard to
applications for reconsideration and renewals of previous motions. (Scott, supra, 107
Cal.App.4th at p. 211, 132 Cal.Rptr.2d 89.) It follows that under Scott, Judge Baines
had inherent power to rule upon the second motion even if it was not based upon new
facts or law.

The Defendant believes that the disclosures set out in Exhibit A represent new evidence
within the meaning of 1008 (a) and that the Defendant was without the meaningful ability to
bring those disclosures to the attention of the Court prior to the ruling on the Plaintiffs Motion.
The Defendant anticipates that the Plaintiff will objection shrilly and vehemently to both
propositions. Even if the Plaintiff has a colourable abstract point, this Court retains the authority

to revisit its own ruling as a matter of California constitutional law.

Why should the Court exercise its inherent power and discretion to do so?
This Plaintiff lied to the Court in presenting its Motion. While the Court would have been aware
of the issues surrounding Block’s fiduciary standing and the presumptive misconduct involved in|
bribing Block to disclose those confidences, the Court may have well decided to bifurcate and
separate those issues. The Defendant may concede arguendo that a judgment creditor may be
entitled to relief even when his lawyer commits misconduct, though the Defendant would

strenuously argue that this is not the case when the client (as he did in this case) ratifies his

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENTvv

lawyer’s misconduct. The Court might conclude that collection issues and Bar issues are

severable.

However, the new evidence offered in Exhibit “A” strikes at the very foundations of the
Plaintiff's Motion. The Plaintiff painted a picture of a Defendant living the high life, enjoying a
robust income and hiding assets. The Plaintiff failed to disclose the fact that the very source on
which the Plaintiff relied for these assertions had also disclosed that the Defendant was living a
hand to mouth existence in miserable conditions and spending very little of the top line revenue
the Plaintiff identified on his quality of life. The disclosures in Exhibit A also raise serious

questions about the Plaintiff's bad faith in bringing his Motion in the first place.
5. Conclusion
Had the Plaintiff been truthful with the Court, its Motion would have stated that:

1. The Defendant was living a life of significant privation;
2. The Defendant had no significant assets to collect and;

3. The Plaintiff had bribed the Defendant’s paralegal to obtain this information.

The Defendant is offended — and respectfully suggests that this Court should be offended
— by the Plaintiffs dishonesty which was pervasive and material. This Court should reconsider
and set aside its ruling under CCP 1008 (a) and/or Francois v. Goel and Order an appropriate
evidentiary hearing. It is high time that the Plaintiff's allegations were tested by live testimony
and real evidence.

CU lw. af

Carl A. Wescott

DEFENDANT’S MOTION FOR RECONSIDERATION OF ORDER
GRANTING CHARGING ORDER AND ASSIGNMENTPROOF OF SERVICE
Iam over the age of 18 and not a party to this action.

lam a resident of or Woes in "§ county where the mailing occurred; my business

address is: +20, Pct CL SE CA Pom

On December 10th, 2019 I served the foregoing document (s)
described as: Motion for reconsideration to the following parties:

Frederick Fiechter

c/o David M. Zeff, esq.

1100 Larkspur Landing Circle Suite 350
Larkspur, CA 94939

[X] (By Fedex) I deposited such envelope in Fedex at San Francisco, California with
postage thereon fully prepaid. 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.

I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.

DATED: 12/10/2019

SIGNATURE OF PERSONCarl A. Wescott

PO Box 191906

San Francisco, CA 94119
in propria persona

+1 415 335 5000

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

FREDERICK C. FIECHTER Case No. CGC-10-496091
Plaintiff,
Se
vs. \ HIBI >SWORN DECLARATION
WESCOTT
CARL A WESCOTT,
Defendant

Carl A. Wescott, being first duly sworn, affirms on oath:

1. Lam the Defendant in this case.

2. I was unaware of many of the details that Bob Block shared with me in person on Sunday
November 24", 2019 and then subsequently by phone and email.

3. The asserted facts in the Motion for Reconsideration are true, including my Notice of
Unavailability and Mr. Zeffs unwillingness to move the hearing back a week so I could
attend.

4. It’s true that I’ve been on food stamps the majority of the last 5 years.

5. [borrowed $100k+ from friends and family in that time.

6. lassert the genuineneess of the included exhibits.

7. Ihave not yet been served with the order from the docket on November 224, likely due

to my change in address.

EXHIBIT A: SWORN DECLARATION OF CARL A WESCOTT8. I filed this Motion for Reconsideration last Tuesday, and after receiving an email from
Mr. Zeff, checked the document in the docket and saw it was missing its exhibits. I am

re-filing the same motion this time corrected with its missing exhibits.

SWORN UNDER THE PENALTIES OF PERJURY OF THE STATE OF CALIFORNIA

ay )
eke Le o ]

Carl A. Wescott
Monday, December 9th, 2019

EXHIBIT A: SWORN DECLARATION OF CARL A WESCOTTCarl A. Wescott

PO Box 191906

San Francisco, CA 94119
in propria persona

+1 415 335 5000

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
FREDERICK C. FEICHTER Case No. CGC-10-496091
Plaintiff,
vs. {EXHIBIT.B: SWORN DECLARATION
OF ROBERT J. BLOCK
CARL A WESCOTT,
Defendant

Robert J. Block, being first duly sworn, affirms on oath:

1. Iam the Robert Block identified in the Plaintiff's Motion for Assignment and Charging
Orders. I am 63 years old and if called upon to do so could testify competently and
truthfully as follows.

2. I understand that for almost 3 weeks up to this past weekend, Mr. Wescott was in Dubai
in the United Arab Emirates. This constrained our communication for several weeks. I
was able to provide Mr. Wescott with some of the information in this affidavit verbally in
person on Sunday, November 24", 2019.

3. Ihave carefully reviewed the MPA the Plaintiff filed in Support of his Motion for
Assignment and Charging Orders and Mr. Zeff’s Sworn Declaration filed in conjunction
with same. I find the tenor of the filings to be misleading at best in the selective

characterization of my disclosures to Mr. Zeff.

EXHIBIT B: SWORN DECLARATION OF ROBERT J. BLOCK. Linformed Mr. Zeff that throughout 2018 and well into 2019, Mr. Wescott was leading a

financially precarious existence. I truthfully told Mr. Zeff that I had spent a week with
Mr. Wescott in the summer of 2018 and had visited his residence quarters which

consisted of a small cluttered office with a couch and communal shower.

. Mr. Wescott has been unable to pay for a regular residence and was sleeping in his office.

Mr. Wescott couldn’t afford to pay for a hotel for my use when I visited for our work
projects and thus the timing of my visit occurred while Mr. Wescott was cat-sitting at a 2-

bedroom house.

. Linformed Mr. Zeff that I personally saw Mr. Wescott pay for food items with food

stamps. I further informed Mr. Zeff that in late 2018 and early 2019, Mr. Wescott was
the subject of eviction attempts and that he had spent multiple nights on the street when,
for example, the locks were changed in his commercial building. It’s my understanding

that Mr. Wescott has now been evicted from the office he slept in.

. I disclosed to Mr. Zeff that while Mr. Wescott had third parties pay for his travel and

lodgings in connection with business opportunities, Mr. Wescott wasn’t getting paid any

regular weekly or monthly compensation.

. Mr. Wescott had a job at SparkLabs, a group of accelerator funds, but he started at a time

of extreme growth for SparkLabs, as they were adding a dozen+ new funds and 9 new

countries to operate in. Thus, SparkLabs had to defer his compensation.

. Since then, thanks to the efforts of Mr. Fiechter and Mr. Zeff (and one other party), who

sought to burder Mr. Wescott’s relationship with SparkLabs, Mr. Wescott has been fired

as of June 2019.

EXHIBIT B: SWORN DECLARATION OF ROBERT J. BLOCK10.

11.

12.

13.

14.

15.

16.

I further informed Mr. Zeff that Mr. Wescott was tireless in seeking consulting income
and income as an independent contractor but that little income had materialized. I

specifically told Mr. Zeff about a time in 2018 in which Mr. Wescott had been stranded

and almost homeless in Panama until I had sent him a PayPal. I disclosed a corporate

bank account number to Mr. Zeff but informed him at the same time that Mr. Wescott
was highly unlikely to have access to more than a few hundred dollars at any one time.
Idid describe the one set of monetizable assets that Mr. Wescott had, that I am aware of,
which is a set of legal claims (now slightly further enhanced by Messrs. Fiechter and
Zeff).

I described Mr. Wescott’s legal claims and litigation opportunities to Mr. Zeff but
observed that these were long-term and unlikely to result in any income until a judgment
is collected, unless there were to be a settlement along the way.

I encouraged Mr. Zeff to communicate with Mr. Wescott directly since, in my
experience, Mr. Wescott did not lie and would engage an adversary candidly if the
adversary proved willing to work with Mr. Wescott in good faith.

In short, I did not suggest to Mr. Zeff that Mr. Wescott had a large income or was hiding
substantial assets. In fact, I communicated quite the opposite. I must admit that I
exaggerated a little when describing Mr. Wescott’s lifestyle to Mr. Zeff.

Further, Mr. Wescott is a drug addict.

Finally, when I suggested to Mr. Zeff that his chances of collection were small in relation
to the likely expenditure to pursue Mr. Wescott, he conceded that his client was not

primarily interested in collection and did not expect to collect but rather wanted to make

EXHIBIT B: SWORN DECLARATION OF ROBERT J. BLOCK17.

18.

19.

20.

Mr. Wescott’s life as difficult as possible. I replied that Mr. Wescott’s life was difficult as|
it was.

In making these points I do not intend to create the impression that Mr. Wescott’s
business activities cannot or will not bear fruit or that he will not be successful in
pursuing litigation recoveries. I am respectful of Mr. Wescott’s tenacity and
resourcefulness. However, it is important to add the perspective that I candidly disclosed
to Mr. Zeff that Mr. Wescott was undergoing a period of privation (as of early 2019) and
was unlikely to be the source of any significant payment.

In his filing, Mr. Zeff makes much of the fact that some $93,000 flowed through Mr.
Wescott’s PayPal account over a period of two years. For a resident of San Francisco, it
would be challenging to pay for decent housing if the $93,000 represented bottom line
income. This was not the case. In fact, most of the money flowing through Mr. Wescott’s
PayPal represented /oans from family and friends.

Mr. Wescott has repeatedly informed me that despite his substantial debt, he feels a
responsibility to repay his loans and does not regard them as income.

Mr. Zeff, in his filing, speculates that the PayPal cash flows somehow represent the tip of
an iceberg of undisclosed earnings. This appears to me to represent nothing more than
baseless speculation. Mr. Zeff received no intimation from me that Mr. Wescott had
secret sources of income. As I am identified as the primary source of information in the
filing, there is at least an implication that I am the source of this stated belief of Mr.
Zeff’s. I gave Mr. Zeff no reason to believe that there were additional hidden cash flow

streams for Mr. Wescott.

EXHIBIT B: SWORN DECLARATION OF ROBERT J. BLOCKPhoto - Google Photos

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PO Box 191906 :
San Francisco, CA 94119

+1 415 335 5000

in propria persona
Superior Court of the State of California
For the County of San Francisco
Carl A. Wescott ) Case No. CGC-10-496091
)
Defendant, vs. ) NOTICE OF UNAVAILABILITY OF
) DEFENDANT
Frederick Fiechter IV, )
)
Plaintiff. )
)

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE, that, for the period August a9 through September 9th, 2019, the period
September 21%, 2019 through September 29", 2019, the period October 1* through October 11th, the
period October 14th, 2019 through October 25th, 2019, the period November Ist, 2019 through
November 8th, 2019, the period January 20", 2020 through February 7", 20,0. and the period July 5",
2020 through August 20", 2020, Defendant, Carl Wescott will be unavailable for any settlement
negotiations, depositions, court hearings whether by ex-parte application or noticed motion, or other
appearances, including, but not limited to, summary judgment and/or summary adjudication hearings.

PLEASE TAKE FURTHER NOTICE THAT, intentionally scheduling a conflicting proceeding
in bad faith or without good cause with full knowledge of the unavailability of the opposing party or

counsel is sanctionable conduct. Tenderloin Housing Clinic, Inc. v. Sparks, (1992) 8 Cal. App. 4th 299,

id FwegedPROOF OF SERVICE
1am over the age of 18 and not a party to.this action.

Lam.a resident ef or emplo; a Ch the where the eas

urred;
address is: ¢'2/0 Via Escu Hichale. Ae SS2 55

On. 8. a 52 20! q I served the foregoing document(s) described as: NOTICE OF
UNAVAILABILITY. OF DEFENDANT to the following parties:

Frederick Fiechter

c/o David M. Zeff,

1100 Larkspur Landing Cir, Ste 350,
Larkspur, CA 94939-1880

[X] (By U.S. Mail) I deposited stich envelope.in the mail at Scottsdale, AZ with postage
thereon fully prepaid. 1 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.

I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.

patep: 8-&5 . A0IG
H. Magatt, Wescott

NAME OF PERSON MAILING PAPERSCarl A. Wescott ex lf, DD
PO Box 191906 } bit !
San Francisco, CA 94119

in propria persona

+1 415 335 5000

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO yo-
“
FREDERICK C, FEICHTER Case No. CGC-496091
Plaintiff,
DEFENDANT’S OPPOSITION TO
vs. PLAINTIFF’S MOTION FOR
ASSIGNMENT AND CHARGING
CARL A WESCOTT, ORDERS
Defendant Date: Monday, November 18", 2019

Court: Dept. 302 (Law & Motion Calendar)
Time: 9:30 am

Defendant Carl Wescott, proceeding pro se, files this Opposition to the Plaintiff's Motion for
Assignment and Charging Orders and in Support of his Opposition, the Defendant offers this

concise Memorandum of Points & Authorities.

1. Introduction
In this case a well-funded and vindictive Plaintiff fraudulently secured a judgment against
an impecunious Defendant. There can be no serious dispute about the fraudulent nature of the
initial judgment, the proof of service filed by attorney Zeff who is now the post-judgment
collection lawyer was in care of a country (Honduras) with a CC to an email address that the
Plaintiff and his attorney knew to be obsolete. In the alternative, any reasonable person, even
those without the knowledge that there is no reliable postal mail system in Honduras, would
likely guess that attempting to personally serve someone via an address that was simply Carl

Wescott, c/o San Pedro Sula, Honduras (a city of almost 800,000) would be insufficient.

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERSThe. Plaintiff's case was non-meritotious but that was taken care of by a fraud on the
Court. The judgment thus obtained should not have been legally or morally collectable, but thé
Plaintiff-was-more interested in harassing and tormenting the Defendant than he was actually
collecting on the judgment. The Default Judgment js properly subject to collateral attack. Now
that Defendant is aware of this particular aspect of fraud, on the part of Plaintiff and his attorneys,
the judgment will be attacked by a proper CCP 473 Motion and hopefully will be tescinded. The|
matter should have been decided on the merits (or demerits as the case may be), and-not
fraudulently engineered by Mr. Zeff’s fraudulent proof of service,

With respect to the Plaintiff's present Motion (for Assignment and Charging Orders) that
Plaintiff is acting based on information provided by a third-party witness, Robert J. Block
(“Block”), who is Deféndant’s paralegal who was and is under an obligation of confidentiality
not only statutorily but also by written agreement. The Defendant, a humble logician, cannot
afford an attorney but has needed legal help from professionals, and Mr. Block has been helpful
in advising him on aspects of California law and drafting parts of his needed filings.
Unfortunately, Mr. Block suffers from. substance abuse issues, namely alcohol, and'Mr. Zeff
preyed upon Mr. Block’s seisibilities by offering him alcohol money in a time of need, to bribe
Mr..Block and induce a fiduciary breach.

Mr. Block is prominently, though somewhat selectively mentioned in the Plaintiff's
Motion. California legal authorities caution practitioners against accepting such voluntary
assistance, especially by witnesses who charge for their trouble as Block did. The reasons should
have been obvious to Mr. Zeff. The witness may have stolen the information — and the attorney
has a professional duty not to facilitate a crime. As in this case, the witnéss inay be under a

fiduciary or contractual duty of non-disclosure — and the attorney has a professional duty to

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERSrespect, the rights: of third patties as his cliénit does not to burden or interfere. with contractual
righits. The Defendant is covering these issues in considerable detail .in a collateral Motion to
Disqualify attorney Zeff. The Defendant.will be providing such for this Court not orilyfor its
anticipated hearing date of Monday, December 2", 2019, but also as furthér redsoriing that he
invites the Court to reference in rélation to this Opposition as the documents are based on a
comnion argument: Mr. Zeff obtained the information by turning the Rules of Professional
Conduct into a sieve and committing acts of bribery. The Plaintiff should not be permitted to
benefit from unethical and likely illegal acts by his attorney which he has appearéd to ratify.
Indeed, All of the information/evidence the Plaintiff cites in support of his Motion was.
obtained as a result of commiunications with said Mr. Block, who directly solicited payment ftom|

attorney Zeff and was also offered payment by Mr. Zeff and was in fact directly paid by Mr.

| Zeff’s firm. Mr. Block tipped Mr. Zeff off to Defendant’s PayPal account, with funds to be used

for a Child Support payment, Defendant had emailed his ex-wife’s attorney (Mr. Terty Szucsko)
about making such a payment with those funds.

Mr. Block also tipped off Mr. Zeff (with an accompanying bribe) as to the Défendant’s
job with SparkLabs, a fund accelerator, and-consulting assignment with Salveo Capital, a venture|
capital fund, as well as a third entity which was a Puerto Rico domiciled hedge fund. After being!
bribed by Mr. Zeff, who wished to steal confidential and privileged information from-a legal
adversary’s paralegal, and did indeed do:so, Mr. ‘Block also provided Mr. Zeff confidential and
privileged insider information as to the details of cases the Defendant was pursuing. Mr. Zeff
bribed Mr. Block to offer his expert opinion on the merits of those cases; and provided a Bank of

America account number for Side Coast Inc., a corporate bank account in to. which Mr. Zeff

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERSwould not have -had visibility in to. (See Sworn Declaration of Carl Wescott attached hereto as
Exhibit “A” and sub-éxhibits thereto).

.The Defendant subsequently informed and reconfirmed to Mr. Zeff that Mr. Block had
been his paralegal for almost two years vehemently objected to Mr. Zeff’s acts of bribery and
misappropriation. See, Exhibit.“B” and sub-exhibits. Mr. Zeff deals with this in his filings'with a
single conclusory paragraph in his affidavit:

In a phone conversation with me, Mr. Block informed
me that he lias known Mr. Wescott for more than two years, that Block was once.a
licensed attorney but has not'been one for inany years, that at no time that he was a
licensed attorney did Block provide-any legal services of any kind for Mr. Wescott,
and that Block has not had and currently does not have.a confidential, fiduciary or
contractual relationship with Mr. Wescott which would cause Block to owe Wescott
any duty of confidentiality. This was confirmed by Block in Exhibit 7 hereto. Mr.
Block further informed me that he has provided Mr. Wescott technical writing and
copy-editing services and, on decasion, non-regulated financial consulting services.
Mr. Zeff admits that he.is aware Block is a former licensed attomey. However, Mr. Zeff
accepts the glib self-serving conclusion of Block who successfully solicited payments from Zeff,
that Block has no fiduciary: obligations of obligations of confidentiality. Indeed, the “technical
writing” and “copy-editirig” services as well as the “financial consulting services” could be
sufficient to give tise to a duty of confidentiality in and of themselves. But in point of fact,
Block is a disbarred Hlinois attorney as Mr. Zeff well knows or should have known had he
conducted the most cursory research. Mr. Zeff directly paid a,disbarred.attorney to obtain
confidences about a client for whom the disbarred attorney-was performing paralegal services,
subject to the confidentiality strictures of Business & Professions 6068. Block sent Mr. Zeff
portions of legal pleadings that he in fact had drafted (seé Exhibit A). Mr. -Zeff was either aware

of oi willfully blind to the fact that he was receiving highly sensitive and confidential

information from an alcoholic legal advisor having: delirium tremens. Mr. Zeff iriduced a breach

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERSof Mr. Block’s fiduciary duty, breaching his own ethical duties as well as the need to inform the
Court of his possession of stolen confidential and privileged inforination. Mr. Zeff should never
have carried out these tortious. acts arid crimes (including wrongfully stealing a Child Support
payment ftom Defendant’s children). Having carried out these crimes, Mr. Zeff’s further
obligations besides disclosure to the Court would have included withdrawal.

This Court is in a unique position to apply the understanding of an expert to Mr. Zeff’s
situation. He had discussions with a.disbarred lawyet and induced hit to peddle sensitive
financial and litigation informatioti. Mr. Zeff paid the disbarred lawyer, the Defendant’s
paralegal, and bribed him to steal sensitive information The Defendant:appeals to the expert
judgment of this Court: should the situation not have set off deafening ethical alarm bells? Was
Mr. Zeff justified in presenting this Motion-without even mentioning the vociferous protests of
the Defendant that his reasonable expectations of confidentiality had been breached. Would this
information have been matetial to the Court’s decision? Are California collection lawyers a sub-
species of professionals.to. whom the California Code of Ethics and that of the ABA does not
apply?

Mr. Block was the Defendant’s paralegal. California has disqtialified attorneys who were
privy to confidences from non-attorhey employées with access to coiifidential litigation related
information. Block was employed aiid paid by the Defendant to assist him with litigation and he
was afforded the trust and confidence of a fiduciary. He prepared legal briefg, related
correspondence, advised the Defendant on.litigation strategy and on potential transactions. He

functioned as an in-house lawyer would function.

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERSTn all candor with the Court, the Defendant is absolutely convinced that Mr. Zeff was on
actual notice — that.he was in point of fact bribing a fiduciary to betray his fiduciary duty. This
type of bottom-of-the-barrel ethics should not be and cannot bé coutitenanced by this Court. Mr.
Zeff’s conduct arguably justifies terminating sanctions but.it undoubtedly justifies the
disqualification of Mr. Zeff and his fitm by reason of the fact that they hired Block and induced
him to betray the Defendant, That is being address in a parallel Motion to disqualify which
cannot be heard until Monday, December 2™, 2019, due to service f¥equirements. (Ironically, the
Defendant, a legal layperson and pro se, is following California law with Tespect to service, after
Mr. Zeff, a licensed attorney — hopefully not for long ~ induced a default judgment in the instant
case by purposely not serving the Defendant).

The Defendant hereby records his Opposition and the basis therefore. The Plaintiff
should quite simply not be allowed to exploit information that he obtained as the result of bribing|
the Defendant’s legal advisor. As a Court of Equity, the Court should deny the Plaintiff's
Motion. In setting out the further basis for his Opposition the Defendant will discuss
Disqualification and Terminating Sanctions and will shortly file the appropriate Motions seeking
such relief. The Defendant will also be filing.a.Motion pursuant to CCP 473 to overturn the
Judgment in this matter, also obtained by extrinsic fraud upon this Honorable Coutt.

The. Plaintiff's prosecution of this case has beén an outrageous and egregious fraud from
start to finish. But first, the Defendant is anxious to get the most important facts-in front of the
Court in connection with this Opposition so that the Court can properly deny the. Plaintiff's
Motion and then go on to fashion appropriate relief even if that involves the filing of separate
Motions by the Defendant. Paraphrasing Kurt Vonnegut, referring to Mr. Zeff’s impending exit,

“And so it shall go.”

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERSThe Deferidant regrets thé need to frame it this way, but the Plaintiff has pursued a
corrupt.case, brought by a corrupt lawyer, and seeks to upend the Defendant’s life and businéss
with betrayed confidences bought and paid for by a disbarred. lawyer from. out of state. Quite
frankly, the Plaintiff's case-and his lawyer’s license should be forfeit as a result of their
misbehavior and dishonesty before this Tribunal.

The Defendant will take a moment to comment on the quality of the evidence ptésented
by the Plaintiff in support of his Motion. The Plaintiff has produced PayPal records that might.
impute an annual income of perhaps $25,000 per year to:the Defendant, if he had earned the
monies in. those Paypals rather than having sought loans. Forgetting the facts for a moment, had’
Defendant actually earned those monies, they would hardly be evidence of solvency let alone
prosperity. In San Francisco, an income of US $129,000 is below the poverty line, and those
with such incomes cannot afford to live in this august city until they have already securéd a rent-
controlled apartment years ago or own a home outright. Of course, the Plaintiff has no way. of
knowing how much of the money tiansmitted represents actual income, as opposed to the loans
they are. The Defendant provided information to Mr. Zeff as to his lack of income and the fact
that he was on food stamps; and even provided his EBT card in suggesting that collection efforts
on behalf of his. client,should be unavailing. (Exhibit“C”). Further, Mr. Fiechter has no right to
any monies (even if his judgment were not obtained by fraud) under California law as.the
Defendant owes consideration sums to his éx-wife fot Child Support, Spousal Support, and
Other Payments to. Spouse. The Defendant provided this information to Mr. Zeff as well
(Exhibit “D”). Thus, as per California law, Defendant must first pay Child Support off, and the

other categories to Spouse, before any other creditors can collect anything. Mr. Zeff (and

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERS27

28

therefore, legally, Mr. Fiechter) had constiuctive notice of all of these facts, but yet blithely

ptocéeded forward without.even considering much less.following California law.

2. The Plaintiff's Motion Should be Denied, Because the Plaintiff Wrongfully Obtained &
Misused the Defendants Confidential Information

Under the law of California, when a California attorney teceives confideritial and/or
privileged information of an adverse party, they are to (I) refrain from examining the
information any more than is essential to ascertain if the information is privileged, (2)
immediately notify the holder of the privilege, and (3) proceed to resolve the situation by
agreeriient or with the guidance of the court. Rico v. Mitsubishi Motors Corp., 1 16 Cal.App.4"
51 (Cal.App. 2004). Indeed, the Court pointed out:

A brief look and a simple phone call could have resolved the matter. Instead, Johnson, as

the court found, "studied the document carefully, made his own notes on it, dispensed the

information to his associates and experts, discussed the meaning of the notes with the

experts and based his litigation strategy and expert witness cross-examination upon the

. information contained in the document.” :

Zeff was thus professionally and ethically obligated to consult with the Defendant concerning thel
nature of his relationship with Block and the confidentiality of the materials that were being
provided. If the parties could not reach agreement, he was alternatively required to seek the
guidance of the Court, He did neither. He paid a disbarred lawyer for the Defendant’s most.
sensitive confidential information and atteipted to “paper over” the breach by having the
alcoholic disbarred lawyer parrot the conclusionthat he was not a fiduciary. This behavior does
not.comply with California law.

The fact that Block was not an attorney at the time he made the overture is not

controlling. Block discloséd that he was a former attorney, and a.search by Zeff of the Illinois

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
_ FOR ASSIGNMENT AND CHARGING ORDERSARDC web site would have disclosed that hé was a disbarred attorney, a circumstance which
bespeaks caution. Moreovét, it is not essential that confidences be obtained from an attomey to
be disqualifying. In the recent case of O’Gara Coach v. Ra 286730 1/7/19 (Cal.App.) the Couttt
disqualified an attorney who had’been provided accéss: to Jitigation confidences as a non-attorney
executive, The Court pointed out:
Attotney disqualification to support the fundamental principle of protecting client
confidences is not limited to situations in which an adversary’s privileged
communications have been acquired through a prior attorney-client relationship: “a law
firm that hires a nonlawyer who possesses an adversary’s confidences creates a situation,

similar to hiring an adversary’s attorney, which suggests that confidential information is
at risk”, In Re Complex Asbestos Litigation (1991)

Thus, Zeff’s self-serving pablum about Block being an unregistered financial consultant or a so-

called “technical writer” is irrelevant. As Mr. Zeff saw from brief drafts provided by Mr. Block,
said writing was actually paralegal document drafting such as motions, briefs, and pleadings.

Block had access to the Defendant’s corifidences. The Plaintiff, through Zeff’s firm, paid Block
tany hundreds of dollars to obtain that confidential information. The transaction is ‘corrupt as a
matter of California law.

The Plaintiff is aware that the Court will wish to proceed in an orderly mariner and hé is
not attempting to. confuse any issues. Motions to Disqualify are disfavored arid the Defendant.
will require reasonable. time to put together an appropriate Motion to. Disqualify. At this point,
the Defendant is pointing out to the Court that thé Plaintiff's Motion is entirely based on
information that was obtained improperly and unethically and that the-violations are serious

enough to warrant Disqualification. Block was the source of the Plaintiff's information about the

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERSDefendant’s PayPal account; Block was the-source of the information about Sparks Labs as-well
as all of the other business prospects identified in the Plaintiff's Motion!.

Moinentarily embarred counsel forthe Plaintiff Zeff conspired with disbarred attorney
Block for the purpose of obtaining information that tlle Defendant,had confided to Block as his
Paralegal, subject to the strictures of Business & Professions. 6068. The Defendant did not
believe that the Plaintiff could top his opening act of fraudulently serving the Defendant in care
of a country (Hondutas) of 43,433 square miles with a population of 9,265 million but the
Defendant. now believes that the Plaintiff has done precisely that by bribing his Paralegal.

The Defendant is arguing that this Court should deny, or at least Stay the Plaintiff's
Motion pending an inquiry into the ethical and possible ctiminal infractions of Plaintiff's

attorney Zeff.

3.. Under California Law, the Misconduct of Plaintiff's Counsel Would Justify Terminating

Sanctions
In Slesinger v. Disney, (2007) 155 Cal.App.4" 736 the Court, confronted with (less
egregiously) improperly obtained confidential information observed:

The rationale of Bauguess does.not apply here. Far from being unnecessary, the existence
of inherent power to terminate litigation for deliberate and egregious misconduct-conduct
which makes lesser sanctions inadequate to ensure a fair trial-is essential for the court to
preserve the integrity of its proceedings. Such power does not “imperil the independence of
the bar” and “undermine the adversary system.” (Bauguess, supra, 22 Cal.3d.at p. 638, 150
Cal Rptr. 461, 586 P.2d 942.) Rather, it restores balance to.the adversary system when the
misconduct of one party has-destroyed it, And, as illustrated by the instant case, such power|
can be.exercised with full procedural due process: the trial court held a noticed evidentiary
hearing, and SSI makes no claim that the procedure violated its due process rights.
Bauguess is simply inapposite.

' The Defendant does not concede the accuracy of all the information provided to the Court by

the Plaintiff but he stresses the common provenance: disbarted attorney Block.

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR ASSIGNMENT AND CHARGING ORDERSThe récognitioni that California courts have inherent power to terminate.litigation for
‘deliberate and egregious misconduct wheii no other remedy can restore fairness is consistent
with the overwhelmin