Free Declaration in Support - District Court of California - California

Case 3:O7—cv-02552-I\/IJJ Document 31 Filed O7/23/2007 Page 1 of 4
1 DRATH, CLIFFORD, MURPHY & HAGEN, LLP
JOHN M. DRATH (State Bar N0. 045031)
2 1999 Harrison Street, Suite 700
Oakland, California 94612-3517
3 Telephone: (510) 287-4000
4 Facsimile: (510) 287-4050
Attorneys for Defendants
5 HANDLER, THAYER & DUGGAN, LLC and
THOMAS J. HANDLER, J.D., P.C. (erroneously sued
6 herein as THOMAS J. HANDLER, individually)
7
8 UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
ll
12 GREGORY R. RAIFMAN, individually and as ) No. C07-25 52 EDL
Trustee of the RAIFMAN FAMILY REVOCABLE )
13 TRUST DATED 7/2/03; SUSAN RAIFMAN, )
individually and as Trustee of the RAIFMAN )
14 FAMILY REVOCABLE TRUST DATED 7/2/03; )
and GEKKO HOLDINGS, LLC, an Alaskan limited)
15 liability company, dba GEKKO BREEDING AND )
RACING, )
16 )
Plaintiffs, ) DECLARATION OF JOHN M.
17 ) DRATH IN sU1>1>oRT or
vs. ) MOTION TO SET ASIDE
18 ) DEFAULT
CLASSICSTAR, LLC, a Utah limited liability )
19 company; CLASSICSTAR FARMS, LLC, a )
Kentucky limited liability company; BUFFALO )
20 RANCH, a business entity form unknown; )
GEOSTAR CORPORATION, a Delaware )
21 corporation; S. DAVID PLUMMER; SPENCER D. )
PLUMMER, III; TONY FERGUSON; THOMAS )
22 ROBlNSON/ JOHN PARROT; HANDLER, )
THAYER & DUGGAN, LLC, an Illinois limited )
23 liability company; THOMAS J. HANDLER; )
KARREN, HENDRIX, STAGG, ALLEN & )
24 COMPANY, P.C., a Utah professional corporation, )
f/k/a/ KARREN, HENDRIX & ) 9
25 ASSOCIATES, P.C., a Utah professional )
corporation; TERRY L. GREEN; and DOES )
26 1-1000, inclusive, )
) DATE : 08/28/07
27 Defendants. ) TIME : 9:30 a.m.
) COURTROOM ; ll
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Case 3:O7—cv-02552-I\/IJJ 1 Document 31 Filed O7/23/2007 Page 2 of 4
1 I, JOHN M. DRATH, declare and state as follows:
2 1. I am an attomey at law duly authorized to practice before all in the State of
3 California, and in the United States District Court for the Northem District of California.
4 2. On June l, 2007, I was contacted by Mr. Scott Stains of Great American
5 Insurance Company by email and asked if I would have any conflict in representing their insured
6 THOMAS J. HANDLER and HANDLER, THAYER & DUGGAN, LLC in litigation pending in this
7 Court. As I was scheduled to start a jury trial on June 4 in San Francisco Superior Court on June 4,
8 1 forwarded the email to my paralegal Roberta Beach to check for conflicts and any deadlines and
9 to get back to the insurance company if we had no conflicts.
10 3. On June 4, 2007 I began trial in the matter of Housley v. Cal#0rnia Highway
11 Patrol, San Francisco Superior Court No. 04-428975 before Judge Ernest Goldsmith in
12 Department 613. I was absorbed in the prosecution of that action throughout the following weeks
13 until closing arguments were concluded on July 10. On July 11, I came into my office before going
14 to court and saw that a file had been opened on this matter on July 9, which is the same day we
A 15 received the engagement letter from the insurance company dated July 5, 2007. I put the file in my
16 briefcase and began reviewing it while the jury was deliberating on July 11. I also called Mr.
17 Handler that aftemoon to introduce myself and get some background on the case.
18 4. Between the email of June 1 and seeing the file on my desk on the morning
19 of July 1 1, the only communication I received was a July 4 email from Mr. Stains regarding another
20 matter he was referring to my office and, in that email, he indicated that he would be sending me a
21 formal engagement letter in this matter on July 5, which he did. A copy of the complaint (and
22 nothing more) accompanied the letter, and according to our file stamp it was received in our office
23 on July 9. In none of these three communications is there any reference to service ofthe complaint.
24 5. The jury returned its verdict late in the day on July 11, and I spent July 12
25 going through correspondence and new matters on my desk. Late in the afternoon, I went online to
26 see what deadlines were in place in this matter, and discovered that a default had been entered the
27 previous day.
28 6. I have spoken to the paralegal, Roberta C. Beach, and her declaration is
2

Case 3:O7—cv-02552-I\/IJJ Document 31 Filed O7/23/2007 Page 3 of 4
1 submitted herewith. She was not aware that service had been effected, and was awaiting receipt of
2 the file from the insurance company before setting up the file for me.
3 7. Since learning of the default I contacted Mr. Stains and had him send me
4 everything that Mr. Handler had sent to him and which had been served on Mr. Handler, and
5 included in those materials was the copy of the summons. It is attached to the declaration of Mr.
6 Handler, and there is no indication on that document as to either the date or method of service.
7 8. On July 13, 2007 I wrote to plaintiffs counsel, Richard Idell, advising him
8 of my representation, the general circumstances explaining the failure to get a timely pleading on
9 tile, and my intention to get a motion to set aside the default on file the following week. A copy of
10 my letter is attached hereto marked Exhibit A.
11 9. I have handled many cases for the Professional Liability Division of Great
12 American Insurance Company, and in my experience the claims representative invariably lets us
13 know at the time of initial contact and in the transmittal letter if and when service has been effected.
14 This is also true of the other professional liability insurers who have retained our services over the
15 years.
16 I declare under penalty of perjury that the foregoing is true and correct. Executed this
17 21st day of July, 2007 at Oakland, Calif ia.
is ,
19 t Q DRATH if /\' " A
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___________ Case 3:07-cv-025152-I\/IJJ Document 31 Filed O7/23/2007 Page 4 of 4
igx Z‘€S’$»?Sit¤ Drath, Clword, Murphy & Hagen
RICK J. MURPHY __ __
ciuzcoiw ¤. HAGEN A LIMITED LIABILITY PARTNERSHIP 600 E STREET
DAVID F_ BEACH SUITE 700 SAN DIEGO, CAIJFORNIA 92101
SARAH F. BURKE TELEPHONE: (619) 595-3060
TAMMARA N. TUKLOFF HARR]SON TELEFAX: (619) $95-3066
ALLISON L. JONES
MICHAEL M. Miuas OAKLAND, CALIFORNIA 94612
TELEPHONE (510) 287-4000
gfggxgbo TELEFAX (510) zav-4050
I WWW.DRATHCL1FFORD.COM
WRITERS DIRECT E·MAIL: [email protected]
July 13, 2007
VIA FACSIMILE
Richard J. Idell
IDELL & SEITEL, LLP
465 Califomia Street A
San Francisco, CA 94104
Re: Rayman v. Classicstar, LLC, etal.
USDC NC No. C 07 2552 MJJ
Our File No. 75-3048
Dear Mr. Idell:
Please be advised that I was contacted by Great American Insurance Company in
early June to represent Thomas J. Handler and the Handler, Thayer & Duggan firm in this litigation.
Although my client promptly notified the carrier that they had received the complaint, the carrier
misunderstood and thought the complaint had simply been mailed to Mr. Handler. I was in a lengthy
jury trial at the time which just concluded on July ll, and I did not leam that service had been
effected and a default entered until I went on line late yesterday and discovered that fact. I am in the
process of preparing a motion to set aside the default, and it will be tiled next week. I am hopeful
that you will not oppose it given the circumstances.
In the meantime, if there is anything pending other than what is reflected in the
court’s file, I would appreciate being kept in the loop. Thank you for your cooperation.
Very truly yours,
DRATH, CLIFFORD,
.1* H EN, LL
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wv M. DRATH ·
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cc: Thomas J. Handler
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