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, but what is more probable, 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.
For backgound of the case see:
http://john-burris-frivolous-attorney.com
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
Please consider donating to recover my father's lost money.
I am also using Idiegogo to recover my business.
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Dominic Briganti legal fee recovery
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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 consider donating to recover my father's lost money.
I am also using Idiegogo to recover my business.
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Dominic Briganti legal fee recovery
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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.
Elder Predators
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.
Robert Briganti
Former RMKB client
650-520-6747