Free Declaration in Support - District Court of California - California

Case 3:O7—cv—O2952—WHA Document 117 Filed O2/28/2008 Page 1 of 3
1 COX, WOOTTON, GRIFFIN,
HANSEN & POULOS LLP
2 Gregoiy W. Poulos (SBN 131428)
Max L. Kelley (SBN 205943)
3 190 The Embarcadero
San Francisco, CA 94105
4 Telephone No.: 415-438-4600
5 Facsimile No.: 415-438-4601
LAW OFFICES OF RICHARD P. WAGNER
6 Richard P. Wagner (SBN 166792)
700 Oceangate, Suite 700
7 Long Beach, CA 90802
Telephone: (562) 216-2946
8 Facsimile: (562) 216-2960
9 Attorneys for Plaintiff
10 DEL MAR SEAFOODS, INC.
11
12 UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
13 sAN rnimcisco Division
14
15 DEL MAR SEAFOODS, INC. ) Case No.: CV 07-02952 WHA
-
Plaintiff, ) DECLARATION OF JOE ROGGIO
16 ) IN SUPPORT OF PLAINTIFF’S
vs. ) MOTION FOR SUMMARY
17 ) JUDGMENT OR, ALTERNATIVELY,
BARRY COHEN, CHRIS COHEN (aka ) PARTIAL SUMMARY JUDGMENT
18 CHRISTENE COHEN), in personam and )
F/V POINT LOMA, Official Number )
19 515298, a 1968 steel-hulled, 126-gross ton, )
70.8- foot long fishing vessel, her engines, )
20 tackle, furniture, apparel, etc., in rem, and )
Does 1-10, >
21 )
22 Defendants. 3
23 7 Date: April 3, 2008
7 Time: 8:00 a.m.
4 ) Place: Couitroom 9, 19th Floor
2 And Related Counterclaims % HOW William H, Algup
25 I
COX, WOOTTON,
¤gj;ggig;¤;igN 26 I, Joe Roggio, hereby declare: I
|$1*ii'£§§$g‘mm 27 1. I am the Controller for Plaintiff Del Mar Seafoods, Inc. ("Del Mar”). I submit i
mmimml 28 this declaration in support of Plaintiff Del Mar’s Motion for Summaiy Judgment or, {
- I - Case No.: CV 07-02952 WHA 5
DECLARATION OF JOE ROGGIO IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT E

I Case 3:O7—cv—O2952—WHA Document 117 Filed O2/28/2008 Page 2 of 3
‘ l Alternatively, for Partial Summary Judgment. I have personal knowledge of the facts stated
2 below and if called to testify regarding those facts, I would and could competently testily
3 thereto.
4 2. In the four years and four months since the Note was signed, Barry Cohen has
5 made only tive payments totaling $188,000.
6 3. Other than those five payments, the required monthly payments of $3,000 or
7 15% of the gross landing receipts for each and every catch of the Vessel were not made by
8 the Cohens. Del Mar has never agreed to waive these monthly payments.
9 4. In December, 2006 after Del Mar had received no further payments hom the
l0 Cohens for more than a year, I called Barry Cohen on his cell phone to discuss his making
ii further monthly payments on the Note. He didn’t answer so I left him a voicemail message.
12 5. In the spring of 2007 I received a phone call from Chris Cohen during which I
13 got the impression that Barry had been physically abusing her.
14 6. Shortly after it was tiled on March I6, 2007, Del Mar learned of the Superior
15 Court ruling denying Bar1y’s motion for attorneys fees and costs in the Port San Luis Harbor
16 District litigation and ruling that neither party (Barry nor the Harbor District) was entitled to
i7 receive its at1;orneys’ fees.
I 18 7. Del Mar has not received any further payments on the Note from the Cohens J
19 after their payment on April 23, 2007.
2Q 8. Because Barry hadn’t made any monthly payments on the Note in May or
2] June, 2007, and his admission in his declaration filed in support of his motion for attorneys’
22 fees that he might be forced out of business and tile bankruptcy if he was not awarded his
23 attorneys’ fees in the Avila Beach litigation, and then the subsequent denial of his motion,
24 plus the fact that Chris Cohen and Barry were involved in a divorce, Del Mar had serious
25 reservations about Bany’s financial integrity and his ability to satisfy his obligations under
26 the Note and Mortgage. It was for these reasons, and only for these reasons, that Del Mar
'°3}lL'i§.§§‘€€»`T¥i§"’ 27 sought to protect its security for the Note by arresting the F/V POINT LOMA. E
L¥}i§elliili§1?.3‘l 28 / H
-2- case Ne.; cv 07-02952 wr-1A
DECLARATION OF JOE ROGGIO IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Case 3:O7—cv—O2952—WHA Document 117 Filed O2/28/2008 Page 3 of 3 n
From: 831 753 5111 Page; 212 mare; 2J’28l2008 3:19:41 PM
1 9. Del Max has always respected its business reletionslmip with Barry Cohen amd
. 2 eo11dueteci itself in good faith in their business clealiugs. `
3 10. At the time of the arrest, De1Mm*’S accounting showed the Cohens still owed
_ ` 4 approximately $180,653 on the Note, including the $188,000 the Coheus had already paid.
5 - H. For more than a year mer Bmy made his $175,000 lump sum payment Del
` 6 Max in November of 2004, De] Max never received any addiiional payments Hom him. I11
7 December, 2006, I called Barxy Cohen on his eel] phone to discuss his making 1°i.1rt11e1‘
S monthly payments on the Note. He didzft answer so I lofi him a voicemail message. On 01*
_ 9 21boutJa11ua1*y 30, 2007, DelMa.1‘ received a letter from Barry enclosing El $2,000 payment, in
_ 10 which he stated, in part: “P1ea$e credit my aecoxmt. With this payment, if your analysis was
I1 _ correct, the new balance Should be $139,’749.79.” He 3130 stated "Iwi1I try to send you at
` 12 lem: $2,000/month, sometimes $3,00U," and that he was sick and unemployed. A true and
13 correct copy of that Ieiier has been produced to the defendants as “DMSI OO78.°°
. 14 12. Around the Erst week of May, 2007, I contacted Del M6f’S general counsel,
15 Richard Wagner, md asked him to advise Del Mar regarding a course of action to protect
16 theie security for the Note. Mr. Wagner, in tum refemred me to sm expexieuced mexitime
17 attomey in Long Beach, California, Mark Holmes. I told Mr. Holmes the situation
l 18 surrounding Del Mefs oonoems over BEH'I’_Y7S financial situation and sent him the Note,
19 Mortgage, and loam history to review. After Mr. Holmes had had e. chance to consider the
i gg situation, he 1*eeo1mne11dec;i that Del Mar proceed to amtest the Vessel.
= - 2] 13. Leading up to, and at the time oi the arrest, Del Mat was not aware of Elly .
22 specific contractual relationship between the Cohens amd any third party.
gg 14. I followed the advice of Del Mer’s ettomeys and directed the meet of the
24 Vessel solely to protect Del Mefs rights under the Note and Mortgage. V
_ 25 I declare under penalty of pe1ju.ry nmder the laws of the United States of America that
26 the forgoiug is true and correct. Dated Febmaxy 28, 200 t Watsonville, Caiifomia.
27
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Document 117

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