Having a lawyer is crucial in battling a lawsuit. When your own attorney is working against you, it can be far, far worse than having no attorney. They know very well how to trip you up and how to hide it.
I am Robert Briganti Defendant and Cross Plaintiff. This web page shows, with filed legal documents, how RMKB worked against me, their own client, to get opposing attorney DeWitt Lacy of Burris Law out of a legal malpractice suit and to save Lacy's insurance company a $1.6 million payout to my father and I.
RMKB will deal behind the backs of their own clients, making secret deals with opposing attorneys with no regard for ethics, in conflict with and hostile to their own clients interests.
-3 year battle costing over $100,000
-2 defaults for fraud and other charges against opposition
-Opposition case shredded by 4 demurs
-Discovery order violated by opposition for 1 full year.
After over $30,000 to RMKB:
-Defaults lost ($1.6 Million)
-Discovery court order successfully evaded by opposition
-Terminating/monetary sanctions avoided by opposition
-Case needlessly headed to trial without discovery
-Steered to terrible settlement due to reversal of advantage
After the RMKB sabotage, our advantage was lost and we were forced into settlement conferences where my 92 year old father was brow beaten to tears by our RMKB lawyer and the settlement judge Paul D. Herbert (a former 11 year RMKB partner) into signing a disastrous settlement, granting the plaintiffs all their demands after about 12 hours of cycling into Judges chambers, giving up our 2 defaults, my cross complaint and releasing the opposition from a full year of evasion of a discovery court order.
This collusion by Burris Law and RMKB needs to be broadly exposed.
I hired Matthew Zumstein of RMKB to put to bed a case that was won.
When retained, the instruction To Mr. Zumstein of RMKB was to file a simple motion for terminating sanctions against the plaintiffs for noncompliance of the Motion to Compel Discovery Order demanding specific discovery answers, document submittal and $1,000 in discovery sanctions. What he filed was devoid of over half the items demanded in the court order. Zumstein also neglected to include the Motion to Compel Discovery Order, which should have been exhibit A, so the judge had no reference to check the items. He then continued to negligently or deliberately fail to recover from his initial omissions and proceeded to lose our legal advantage, mounting up over $30,000 in fees while allowing the opposition to avoid submitting actively withheld evidence and allowing them to side step the consequences of more than two years of abuse of discovery before and after the discovery court order.
The plaintiffs case against me could not be more frivolous and we had two defaults on a counter suit for a range of civil violations including fraud and elder financial abuse, which, if I am not mistaken, had mandatory punitive penalties. I also had a cross complaint for fraud and other causes that were well supported in briefs filed by the plaintiffs against themselves. Zumstein denied the value of these advantages in the settlement conferences and as a result of his apparent active support for the opposition, reversed our position compelling us into a completely compromised settlement due to mounting expense from his own billing. Billing that mounted up to approximately $31,000 for actions unnecessary, except for his own devious activities.
Beginning three years prior to Zumstein's involvement, as part of the financial onslaught the plaintiffs brought against my father and I, two of the counter defendants defaulted so that one of them could go on defending himself with no attorney and no legal fees. This was after the plaintiffs were warned by the judge two times that the husband could not represent his wife and their business without a license to practice law. He represented himself, his wife and their business for several court actions and filings including a good amount of the discovery battle. This case epitomizes the unethical use of legal expense in abuse of the civil justice system. This expense strategy was further compounded by apparent Pro-Bono support from John Burris Law Firm who assigned Mr. Dewitt Lacy who chose to defend the Plaintiffs.
Lacy took on the case after a very legally expensive year. After taking the case and during other litigation, the deadline to have the two defaults set aside passed, putting the opposing plaintiffs at a huge disadvantage. This deadline passed while Lacy was representing them trapping him liable for malpractice and liable for the default judgments. He was now in with both feet with his reputation at stake as a public figure and as an attorney. What may have started out as a favor to someone he felt had no defense, had him now bound with a personal stake in the outcome. He desperately needed to settle the case. Zumstein apparently became his collaborator.
The opposition was already bad off not only because the 4 sustained demurs of the whole complaint each time exposed their case as frivolous but also because my cross complaint and my father's counter suit for fraud and other causes actually had merit. Mr. Lacy threatened depositions from my father and I, which I enthusiastically agreed to but Mr. Lacy apparently decided would not be advantageous to his client's case since the threatened depositions were never held. Lacy also never pursued any diligent discovery on behalf of his own clients. Mr. Lacy's clients had no case and no defense and he knew it. Depositions and discovery would have made that fact even more obvious.
THE FRIVOLOUS SUIT
The opposition's case was for "Interference With a Contract", "Interference With Economic Relations" and more, where they never produced any contract or evidence of interference. This situation began with one of the Plaintiffs borrowing $10,000 from my father for a business the plaintiffs were involved with where they immediately diverted $2000 in violation of the loan contract. This was Financial Elder Abuse. Information on where this $2000 went was part of our unanswered discovery demand. The plaintiffs borrowed the money to get ethnic style blankets made in China. As a result of siphoning off $2,000, the plaintiffs then asked my father for another $2,000 to make up the deficit claiming the factory changed the price, which was fraud. This was a lie to cover up the fact that $2,000 was misused. The loan contract stated that we were to hold the blankets and they would buy them wholesale to pay the loan. As a result of siphoning the $2,000, they failed to make the final payment after being late for many months forcing me to make the final payment and pay all the shipping and logistics to recover the goods from the factory in China. This was my legal obligation to mitigate damage and was in violation of no law or civil code but actually to comply with our obligation to mitigate damage. This was after months of negotiating with the plaintiffs at the end of which they forfeited the goods to me in writing in an e-mail (included evidence on file with the court). The plaintiffs stood by doing nothing with $2,000 extracted from the project while we were stuck recovering the goods at additional cost of approximately $6,000. After the goods were secured in shipment to the US, the plaintiffs filed suit to claim the goods even thought they had no investment and actually had -$2,000 extracted from the disputed property.
Bitter, expensive legal battle where plaintiffs had no cost
After four demurs, the plaintiffs case culminated to, defendant (me) fooled the factory into shipping the plaintiff's property to defendant. This did not satisfy any of the elements of "Interference With a Contract" or any of the actions named in the complaint. The Plaintiffs legal beef was with the manufacturer who had bent over backward for them to allow them claim the goods even after I had made efforts to prevent liquidation, where the final payment was delinquent for some 6 months before they turned the goods over to me. I was willing to pay the balance due, where the Plaintiffs were not. Over this whole 6 months the Plaintiffs were warned scores of times that the goods would be liquidated if they didn't pay the balance.
The Third Amended Complaint was demurred as it had no alleged actions on my part constituting the basis for the complaint as did the three prior complaints. The Fourth Amended Complaint added one sentence with the alleged "fooling the manufacturer", from which Judge Petrou mysteriously concluded that the Fourth Amended Complaint was sufficient to go to trial. Why the Judge allowed so many opportunities to re-file the case after 4 complete demurrers, needs to be looked into.
We had already put out approximately $100,000 over three years tearing the plaintiff's case apart with four sustained demur rounds including the Motion to Compel Discovery producing a discovery court order for items important to my defense, my cross complaint and my father's counter suit.
The Discovery order, issued a year before Zumstein was hired, cost us approximately $10,000 of fighting vigorously to overcome the plaintiff's misuse of process as directed by Lacy. This included proof of diligent and extensive "meet and confer" to present the case that the plaintiffs were evading discovery. Zumstein filed the motion for terminating sanctions omitting three out of the five groups of valuable discovery items including the nonpayment of sanctions ordered by the court. Zumstein then wound up going back into meet and confer with Lacy over this same discovery when the judge already ruled that there had been enough "meet and confer" prior to the discovery order. This complete lack of asserting the court order not only compromised my position but also resulted in multiplying Zumstein's own billable hours by extending litigation.
The Managing Attorney, Todd Roberts of RMKB, or any paralegal, could have easily reviewed the motion briefs, comparing them to the discovery order in about 5 minutes. Had the RMKB Managing Attorney done his job, we would have easily won awards for our counter suit and cross complaint and recovered the default damages.
Particular Details of The Motion Negligently Filed By Zumstein:
The Motion To Compel Discovery Order (Exhibit A) demanded:
1. Items from Form Interrogatories Set Two
2. Items from Request For Admissions Set One
3. Items from Request For Production of Documents Set One
4. Items from Special Interrogatories Set One
5. $1,000 sanctions
The Motion For Terminating Sanctions written and filed by Zumstein included:
1. Form Interrogatories Set Two
2. Request For Admission Set One stating that the denials should be deemed as admissions. (This second item was negligently never pursued and dropped by default by Zumstein)
Zumstein was negligent in omitting the following court ordered items from the motion:
1. Needed items from Request For Production of Documents Set One
2. Needed items from Special Interrogatories Set One
3. $1,000 sanctions
SUSPICIOUS AND DEVIOUS ACTIONS
During his various communications and filings approaching the Motion for Terminating Sanctions Hearing, Zumstein and Lacy engaged in an unnecessary negotiation ending with the plaintiffs not only avoiding likely terminating and monetary sanctions for abuse of discovery, but also avoiding my acquiring direct evidence to further support my cross complaint and my father's counter suit as well as further defend against the plaintiff's already weak case against me. It is abundantly apparent and logical that the plaintiffs were dead set on withholding information that would expose them to loss of the cases and potential perjury charges. Zumstein's deficient motion filing already excused 3 of the 5 clearly ordered categories of discovery items so Lacy had only 2 to go.
In his reply filings 12/09/13 to the Motion for Terminating Sanctions, Lacy claims he has attached Form Interrogatories, Set 2 but actually included Requests For Admission Set 1 unsigned and undated. This was actually the same Requests For Admission Set 1 that was submitted prior to the Motion to Compel Discovery hearing over a year earlier. So not only did it not match what was claimed earlier in the declaration, it was also not new or submitted after the Motion to Compel Order and in no way proved that they were in compliance with the Motion To Compel Order. This was totally overlooked by Zumstein. (negligently or deliberately)
Various emails regarding these submittals show that Zumstein was negligently ignorant to the extreme or complicit in covering up what would constitute proper responses to the Motion To Compel Order 12/11/13 and exercised no diligence in qualifying Lacy's filings. All he had to do was compare the new filing to the Motion To Compel Order to see that there was no compliance.
Judge Petrou issued minutes 12/11/13 stating that Lacy's declaration did not contain Form Interrogatories Set 2 as stated in the declaration but the set of Requests For Admissions and suggested that perhaps the answers were improperly captioned, which is impossible as each of the responses in the Request For Admissions are individually titled and there could not be any mistake in the captioning.
Lacy then used the idea that captions may have been in error to create a ruse that they were in compliance with the discovery Order. Zumstein then (without my knowledge) in extreme negligence or complicity, offered to drop the new motion if Lacy submitted the correctly captioned Form Interrogatories Set Two.
This was all done without any consultation with me and after Zumstein had convinced me that there was no discovery lack and no reason to pursue the motion for terminating sanctions.
The last discovery item was simply ignored and Zumstein eventually let the motion die without any action.
In the mean time, I called Zumstein the day before the hearing 12/10/13 to discuss the hearing tactics and he stated that the discovery order was already complied with and that they were not in violation of the discovery order and that he was not going to the hearing. It didn't make sense to me but I assumed, as my attorney, he knew something I didn't and was professionally obligated to act in my best interest. I had no idea he was not apparently interested in what was best for his client.
Zumstein did not inform me of any actions regarding this title captioning issue and just let the whole Motion for Terminating Sanctions die without a word to me or any notification that the hearing was rescheduled. Lacy never submitted any further documents, which Zumstein, again in extreme negligence or deliberately, failed to follow up on.
When the new hearing date arrived, Judge Petrou (1/9/14) issued the announcement that the motion for terminating sanctions had been dropped due to inaction on the part of Zumstein. This, again in extreme negligence on the part of Zumstein or deliberately, closed the door on recovering from omissions in his original motion for Terminating Sanctions and provided Lacy and the Plaintiffs total escape from submitting any further discovery, totally avoiding the Motion To Compel Order, possible terminating sanctions, evidence sanctions and monetary sanctions for abuse of discovery. This also left my father and I without valuable discovery to further support our cases and defend against the plaintiff's suit. The plaintiffs engaged in avoidance of discovery items for many months by gamesmanship, over a year earlier, ending in a discovery order and then violated the order for over a year to ultimately be relieved by Zumstein from any consequences.
Avoiding termination of the case and eventual forced acceptance of his settlement terms, relieved Lacy from the malpractice liability, 1.6 Million in default liability and reputation damage as well as the plaintiffs possible perjury charges revealed in discovery on top of losing all the cases.
One or two omissions can be considered errors and would have been recoverable had Zumstein submitted briefs for me to review. Total loss of our discovery case for terminating sanctions cannot be considered anything but deliberate.
Zumstein and Lacy together worked against me negating the disocvery order as if the Motion To Compel Hearing was never needed and the Discovery Court Order was in total error. An absurdity that cannot stand.
Zumstein was not working in our favor in the Settlement Conferences.
Zumstein further weakened our position during the settlement conferences, along with the Alameda County settlement judge Paul D. Herbert (the former 11 year RMKB partner) by discounting the two defaults and my cross complaint as worthless as he claimed the plaintiffs had no money or assets, while Lacy was the one on the hook for malpractice and probably covered by insurance. Zumstein claimed the plaintiffs were "judgment proof" therefore we should not demand settlement based on anything but settling the plaintiff's case against me. Zumstein was arguing against my father and I using all possible assumptions benefiting the opposing parties claiming the plaintiffs had no assets when he should have been doing his job and winning the case and would have served us far better by not attending the settlement conference.
The plaintiff's lack of demand of discovery and depositions as well as their resistance to discovery and defiance of the court order to comply with discovery requests, should have made it obvious to Zumstein that the plaintiffs were at a great disadvantage and Zumstein, with that leverage, should have taken actions to end litigation with a favorable settlement or take it to trial. Zumstein did the opposite, throwing away our leverage and helped Lacy and his clients force an unfavorable settlement upon us.
I repeatedly insisted that my father not sign the settlement while Zumstien and Judge Herbert insisted that he must or end up with far more legal fees and no better outcome, putting extreme emotional pressure on my then 92 year old father.
Another peculiarity of this case was that the original settlement judge was changed somehow from Judge Kimberly Colwell to Judge Herbert the former 11 year RMKB partner. The first settlement hearing was not attended by Lacy or his clients without notice or any showing of due cause. Judge Kimberly Colwell demanded that Lacy and his clients show due cause for missing the hearing or face penalties and/or sanctions.
Lacy filed a response to the Order To Show Cause but merely makes invalid excuses that he could not reach the court and criticizes myself for changing lawyers.
The new settlement Judge Herbert disregarded the due cause demand and Zumstein negligently or deliberately failed pursue the due cause demand by the previous judge.
RMKB was a severe liability to my defense
Zumstein assertively placed himself in the settlement conferences ending up steering the settlement in favor of the plaintiffs, claiming they were "judgment proof" with no money or assets while charging us full rate for legal services while actually working against us. This was the same disposition he exhibited in the previously failed arbitration, where again Zumstein inappropriately gained legal fees while arguing for the opposition claiming they were judgment proof.
This case turned my life upside down for over three years and caused my 95 year old father huge financial and emotional stress with his wife, my mother, dying during the litigation and caused me extensive personal financial damages due to my father no longer having the willingness to help finance my business. Our case was destroyed by Zumstein to the point where we went into settlement conferences with our winning position completely reversed with the artificial financial pressure on my father to settle for a vary unfavorable final agreement that the plaintiffs were very happy with. My father was already traumatized by the death of my mother, over $100K in expense, over 10 hours in and out of judges chambers with back pain from a car accident and Zumstein, his own lawyer, warning of much more lost money going to court since the plaintiffs had no money making them judgment proof and rendering the defaults worthless, which was a lie. We had to turn over the contested property for less than our accumulated cost and trouble, less than its retail value and with no consideration for the three years of litigation and legal fees. Our property was worth about $35,000 and we ended up settling for $26,500.
Please support my business
Comfy-Snug Drawstring Bed Sheets
Zumstein Worthless Even After Settlement
The settlement Zumstein helped write up was supposed to protect us by having a neutral party transfer the property to storage, where installments would allow transfer of allotments during the next year but there was no provision in the draft agreement and the plaintiffs were allowed to abuse this lacking and had hired friends to pick up the property with no neutral party to count the units or account for the condition before moving it to storage. I objected and refused to turn over the property to these unknown agents of the plaintiffs, since they were only paying for about 1/5th of the property. Judge Herbert threatened the arrest of my father and I if we didn't turn over our property so we had no choice. This lacking in the settlement by Zumstein caused us great difficulty over the next year and a half in the following compliance hearings as the plaintiffs claimed there were many units missing and damaged, which required extensive argument. Had there been an as-is clause and actual accounting of the unit numbers, that huge hassle could have been avoided had Zumstein accomplished one single competent action.
The settlement draft would have been the last chance for Zumstein to do any competent service to justify any of his fees but he even failed at that.
Had Zumstein done his job, the plaintiff's case against me would have been likely terminated and all that would have been left was my cross complaint against the plaintiffs and two defaults from my father's counter suit and a strong case against the third defendant. The plaintiffs would have gone to settlement conferences under huge pressure rather than at a huge advantage of having a free lawyer for trial. We wasted approximately $31,000 on Zumstein and RMKB winding up worse off with the case turned upside-down. We also would not have lost our property to the plaintiffs.
This nightmare went on for over four years and was an extreme example of the civil court system being abused and defied by a conspiracy between two corrupt firms with the possible help of corrupt judges and help within the court to change the settlement judge.
My father is an elderly WW2 veteran who was generous to his wife's caretaker who turned out to be unworthy of trust and then sued him and I. Predatory activity is rampant in the Elder Care field. RMKB, Burris Law and their attorneys acting in collusion to help this type of abuse, puts them in the category of Elder Predators with the lowest of depraved criminals.
Former RMKB client