Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 40 North Center, Suite 200 4 Mesa, Arizona 85201 (480) 464-1111 5 Attorneys for Plaintiff By: Bradley D. Weech, Bar No. 011135 6 Jeremy S. Geigle, Bar No. 021786 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CIV-04-595 PHX MHM PLAINTIFF'S REPLY TO: MOTION TO ENFORCE SETTLEMENT AGREEMENT AND FOR JUDGMENT FOR BREACH OF SAME AND MOTION FOR ATTORNEY FEES AND/OR SANCTIONS AND/OR FOR THE COURT'S ORDER OF CONTEMPT AGAINST THE FOLLOWING DEFENDANTS: 1. GLOBAL MISSIONS 2. EL SHADDAI MINISTRIES 3. SECOND CHANCE CHRISTIAN EVANGELISTIC MINISTRIES 4. JOSEPH L. WILLIAMS 5. MICHAEL AND GLORIA CAMBRA Oral Argument Requested Assigned to the Honorable: Mary H. Murguia

9 ESTATE OF JOSEPH J. STUDNEK, by and through its PERSONAL REPRESENTATIVE, 10 JOSEPH M. STUDNEK, 11 12 v. 13 AMBASSADOR OF GLOBAL MISSIONS UN LIMITED AND HIS SUCCESSORS, A 14 CORPORATION SOLE, a Nevada corporation; EL SHADDAI MINISTRIES 15 AND HIS SUCCESSORS, A CORPORATION SOLE, a Nevada 16 Corporation; SECOND CHANCE CHRISTIAN EVANGELISTIC MINISTRIES, 17 a California corporation; BISHOP OF FAITH VISION NOBLE HOUSE AND HIS 18 SUCCESSORS, A CORPORATION SOLE, a California corporation; JOSEPH L. 19 WILLIAMS and MONICA C. CISNEROS, as husband and wife; WILLIAM JOE LITTLE, 20 JR.; MICHAEL CAMBRA and GLORIA CAMBRA, as husband and wife; JOEL 21 DAVID and CINDY DAVID, as husband and wife; KEITH AARON VANN and TRISHA 22 VANN, as husband and wife, 23 24 25 Defendants/Counterclaimant. Plaintiff/Counterdefendant,

The Plaintiff , Estate of Joseph J. Studnek (the "Estate"), replies to the above motions as
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follows:
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The September 19, 2006 Settlement Agreement Is Enforceable and The Relief Requested is Appropriate First, three of the Settling Defendants1 have not filed any response to the Estate's motion, and

3 thus, the motion should be granted summarily against (1) Ambassador of Global Missions Un Limited 4 and His Successors, a Corporation Sole, (2) El Shaddai Ministries and His Successors, a Corporation 5 Sole, and (3) Second Chance Christian Evangelistic Ministries. 6 Mr. Williams and Mr. Cambra are not legal counsel for these entities and their attempts to file

7 documents on their behalf are inappropriate and must be stricken. (Cambra and Williams filed 8 documents entitled Request for Judicial Notice, now arguing that, in contravention of Judge Duncan's 9 June 21, 2006 Order and their clear representations of authority in the September 19, 2006 Settlement 10 Conference transcript, they were not authorized to settle for their three corporate entities - see below.) 11 Second, the responses filed by Mr. Williams and Mr. Cambra fail to establish any defense

12 to enforcement of the settlement agreement. While they may or may not have claims against 13 opposing counsel, they have no defense to the September 19, 2006 Settlement Agreement. So, 14 the Estate's Motion must be granted as to them, also. 15 16 17 18

Local Rule 83.7 provides in relevant part as follows: No agreement between parties or attorneys is binding, if disputed, unless it is in writing signed by the attorney of record or by the unrepresented party, or made orally in open court and on the record . . .. [Emphasis added.] In this case, the Settlement Agreement was "made orally in open court and on the record"

19 for the very purpose of ensuring a binding settlement. And, it applies to the Settling Defendants 20 and to the Estate. 21 22 23 24 25 26
As set forth in the Settlement Document, Exhibit "C" to the Estate's Motion, and the September 19, 2006 transcript of the Settlement Conference, the Settling Defendants include the following: 1. Ambassador of Global Missions Un Limited and His Successors, a Corporation Sole ("Global Missions") 2. Joseph L. Williams ("Williams") 3. El Shaddai Ministries and its Successors, a Corporation Sole ("El Shaddai") 4. Second Chance Christian Evangelistic Ministries ("Second Chance"), and 5. Michael J. Cambra ("Cambra")
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Thus, all the Court need do in this case is to compare the transcript of the settlement

2 conference attached hereto as Exhibit "I" with the Settlement Document attached as 3 Exhibit "C" to the Estate's Motion. As noted in the Estate's Motion, the Settlement 4 Document was initially drafted and all documents were finally approved by counsel for the 5 Settling Defendants (including Global Missions, Mr. Williams' corporation). If the terms of the 6 Settlement Document accurately reflect the material terms of settlement reached at the settlement 7 conference, as set forth in the transcript, and all other terms are consistent with existing law, then 8 the Estate's Motion must be granted. If the Court finds any inconsistencies, then, the Court can 9 modify the document. But, the settlement is still binding on the Estate and the Settling 10 Defendants. 11

Further, at the hearing, Judge Duncan, the Estate, the Settling Defendants, and their

12 counsel, all understood that the case had been settled and that a written settlement agreement 13 would be prepared. The transcript of the Settlement Agreement (See Exhibit "J" below) even 14 stated that: "It is contemplated by the parties that there will be a written settlement agreement 15 but it will include and reflect these essential terms." 16

At set forth clearly and simply in the Estate's motion, this Court has the authority to

17 enforce the Settlement Agreement, order that the Settling Defendants be held in contempt if they 18 continue to fail and refuse to sign the settlement document and the stipulations for dismissal, or 19 in the alternative, execute the stipulations and/or Settlement Document on the Settling 20 Defendants' behalf and award judgment for breach of contract in the sum of $150,000.00 plus 21 attorneys fees and costs either pursuant to statute e.g. ARS §12-341.01, and/or as sanctions, and 22 to award such further sanctions as the Court may deem appropriate in the circumstances and 23 order specific performance i.e. that the applicable Settling Defendants sign the stipulations for 24 dismissal, or that the Court sign the stipulations for the applicable Settling Defendants. 25 Appropriate and correct citations were provided in the Estate's motion confirming this. 26 Case 2:04-cv-00595-MHM Document 193 3 Filed 01/22/2007 Page 3 of 11

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Therefore, the Estate respectfully requests this Court's Order granting the Estate the relief

2 requested. 3 4 2. 5

The Responses Should be Stricken - They Greatly Exceed Page Limitations Local Rule 7.2(e), Rules of Practice of the United States District Court for the District

6 Court of Arizona expressly limits a party's response to 17 pages. 7 8 9 10

Unless otherwise permitted by the Court, a motion including its supporting memorandum, and the response including its supporting memorandum, each shall not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts. Mr. Williams filed two responses, one on December 7, 2006 and a second one on January

11 11, 2007. The first response is 24 pages (with 85 pages of exhibits). The second is 38 pages, or 12 more than twice the Court's limits. In addition, Mr. Williams filed another document entitled 13 "Request for Judicial Notice" that is an additional 9 pages. Either response, or worse, both 14 responses and the judicial notice document, greatly exceed the page limitations of this Court and 15 should be stricken. 16

Mr. Cambra filed one response and also a "Request for Judicial Notice".2 Mr. Cambra's

17 response is 38 pages (the same in length, and most all content, as Mr. Williams' second 18 response). And, the Request for Judicial Notice is 5 pages. Thus, Mr. Cambra's Response, and, 19 assuming the Notice is a continuation, exceed this Court's page limits and should be stricken. 20

Therefore, and, particularly to prevent any argument of waiver, the Estate respectfully

21 requests that theses documents be stricken. 22 23 24 25 26
Based on information and belief, Williams is orchestrating and/or even writing all of the documents. Or, at a minimum, it is clear that they are working on their documents together. Following the settlement conference, Judge Duncan obtained the settlement agreement of the Davids by telephone; but, unbeknownst to Judge Duncan, Mr. Williams intervened. On a telephone conference with Judge Duncan, the Judge discussed the fact that the Davids had been willing to settle their claims for a walk-away, until Mr. Williams intervened, at which time, they agreed to do so only upon the Estate's agreement to waive the $150,000 owed pursuant to the settlement here.
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William's and Cambra's Responses Should be Stricken to the Extent That They Contain Wholly Irrelevant Diatribes Including Citations to Inapplicable Authorities Both Mr. Williams and Mr. Cambra, having filed similar, if not mostly identical,

4 documents, include pages upon pages of argument regarding irrelevant issues.3 They argue, 5 venue, subject matter jurisdiction, personal jurisdiction, etc. These portions should be stricken 6 as they are irrelevant to the only remaining issue i.e. confirmation by this Court, and this Court's 7 Order enforcing the September 19, 2006 Settlement Agreement, and finding the Settling 8 Defendants in Breach thereof, and, thus, issuing such judgments and decrees as are required to 9 enforce the terms of the settlement and award the Estate appropriate relief for attorneys fees, 10 costs and sanctions for the Settling Defendants' intentional breach. 11 4. 12

No Basis for the Settling Defendants' Failure to Comply With the Settlement Terms As best can be deciphered from the pages and pages of Mr. Williams' and Mr. Cambra's

13 Responses and their Requests' for Judicial Notice, they appear to argue Duress and lack of 14 authority (as to the corporate defendants). However, the following facts are undisputed. (The 15 Court is asked to keep in mind that Joseph Williams was and/is the corporate representative for 16 Global Missions, even though he was representing himself, individually.) 17

There was no duress, or anything akin to it. The parties were all ordered to attend the

18 settlement conference, as is the Court's option, but they were not compelled to settle their 19 claims. In fact, Judge Duncan even ordered that the parties notify him prior to the settlement 20 conference if they believed the conference to be "futile". None of the settling defendants gave 21 such notice, and by doing so represented to Judge Duncan that they believed there was [a 22 reasonable, good faith opportunity for settlement, and that the involvement of a settlement judge 23 is needed to accomplish it." See Judge Duncan's Order discussed below. Thus, the Settling 24 25 26
The Estate also apprises the Court that the Davids, associates of Mr. Williams, who were recently dismissed from this matter have filed a third lawsuit in Alameda County following the same or similar verbiage as Mr. Williams used in his two lawsuits that are the subject of this Settlement Agreement. Upon information and belief, the Davids are acting in concert with Mr. Williams.
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1 Defendants, including Mr. Williams and Mr. Cambra, had the opportunity to object and have the 2 settlement conference cancelled. But, they did not. Instead, they voluntarily attended, and 3 voluntarily settled upon the terms set forth in the September 19, 2006 hearing transcript. More 4 specifically, the following orders were issued and record taken by the Court's reporter. 5

On June 20, 2006, this Court issued a Minute Entry (copy is attached hereto as

6 Exhibit "J") that in relevant part stated that: 7 8 9 10 A copy was sent to all counsel electronically, and directly to Mr. Williams by mail (thus Mr. 11 Williams received it twice - once in his individual capacity, and once through Global Mission's 12 counsel - Mr. Williams was and is the only Global Missions authorized representative in this 13 case). 14

IT IS FURTHER ORDERED referring this matter to another magistrate judge for the purpose of conducting a civil settlement conference. The Clerk, by random lot, draws and assigns this matter to Magistrate Judge David K. Duncan. Conference to take place after Labor Day and befor the end of September, 2006."

On June 21, 2006, Judge David K, Duncan, United States Magistrate Judge, then issued a

15 "SETTLEMENT CONFERENCE ORDER" in which he very clearly and expressly described 16 the settlement conference procedure. Again, a copy was sent to all counsel electronically, and 17 directly to Mr. Williams by mail (thus Mr. Williams received it twice, as noted above). A copy is 18 attached as Exhibit "K". In relevant parts, Judge Duncan's Order read as follows. 19 20 21 22 23 24 25 26

The purpose of the Settlement Conference is to facilitate settlement of this case, if that is appropriate. It will be conducted in such a manner as not to prejudice any party in the event settlement is not reached. To that end, all matters communicated to the undersigned expressly in confidence will be kept confidential, and will not be disclosed to any other party. Rule 408, Federal Rules of Evidence, applies to all aspects of the Settlement Conference. All communications and information exchanges made in the settlement process, not otherwise discoverable, will not be admissible in evidence for any purpose, and shall not be used for any purpose outside the settlement process itself. At the conclusion of the Settlement Conference, all documents submitted by the parties shall be returned, destroyed, or otherwise disposed of in the manner directed by the settlement judge. At the Settlement Conference . . . each party . . . may be asked to give a brief presentation outlining the factual and legal highlights of theat party's case and may be asked general and specific questions by the Court. Thereafter,
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separate and private caucuses will be held with each party, the party's representative and the settlement judge. This Order mandating the Parties', representatives', and insurers' physical appearance is intended to increase the efficiency and effectiveness of the Settlement Conference by . . . to meet the litigants and representatives themselves; and to hear first-hand the candid, objective comments by a neutral settlement judge regarding the case or the judicial process. Experience has taught the undersigned that the physical presence . . . and participation of those individuals with the authority to settle cases will substantially increase the likelihood of settlement and will lead to more meaningful negotiations. Consequently, and pursuant to the authority granted to the Court in 28 U.S.C. §473(b)(5), representatives of the parties with full, complete, and unlimited authority to discuss and settle the case shall be physically present unless expressly excused by the undersigned by formal motion and order issued prior to the subject settlement conference for good cause shown. Judge Duncan then went on to issue a formal order that all physically attend. The Settling

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Defendants made no motion to be excused from physically appearing. Rather, they appeared, as
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did the Plaintiff.
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Judge Duncan's Order did not end with the above. He further encouraged the settlement
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process by requiring further participation by the Estate and the Settling Defendants, prior to the
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Settlement Conference. And the Settling Defendants did participate, without objection. Judge
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Duncan's Order continued as follows:
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2. Experience also teaches that settlement conferences are often unproductive unless the parties have exchanged demands and offers of compromise before the conference and have made a serious effort to settle the case on their own. Accordingly, before arriving at the Settlement Conference the parties are to negotiate and make a good faith effort to settle the case without the involvement of the Court. The parties shall exchange written correspondence regarding settlement. The Plaintiff's demand shall be delivered to defense counsel, the insurers' and corporate representatives not less than 30 days before the Settlement Conference Memoranda are due. Defendant's response to the demand shall be delivered to Plaintiff's counsel not less than 14 days before the Settlement Conference Memoranda are due. The Estate sent its letter on August 15, 2006. A copy is attached as Exhibit "L". On

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August 28, 2006, counsel for the other Settling Defendants sent the offer attached as
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Exhibit "M". And, on August 31, 2006, Joseph Williams sent his separate, individual offer, a
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copy of which is attached as Exhibit "N". In fact, the letter from counsel for the other Settling
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1 Defendants required that the Estate respond in writing that "given Defendants' proposal, [the 2 Estate] believes there is a reasonable, good faith opportunity for settlement." A copy of the 3 requested letter with the Estate's confirmation is attached as Exhibit "O". 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Judge Duncan's Order did not end here either. It further stated: 5. If the Settlement Conference is held, the Court will assume that the parties have agreed to separate meetings (caucuses) with the settlement judge. Ethical rules prohibit ex parte caucuses without such agreement. By appearing at this conference, the Court will deem that the parties have consented to this procedure and have waived any objection thereto unless a written Objection is filed not less than three (3) business days before the Settlement Conference. The Settling Defendants did not object, and they appeared at the Settlement Conference. Finally, Judge Duncan's Order also stated: 7. Counsel and any party, if unrepresented by counsel, shall notify the court in writing at least ten (10) business days before the Settlement Conference if an attorney or unrepresented party believes that the Settlement Conference would be a futile act resulting in an economic waste because, for example, a party . . . has adopted a position from which that party . . . refuses to deviate. The Court will then consider whether the Settlement Conference would be helpful and, if not, whether the Settlement Conference should be canceled or whether other forms of alternative dispute resolution should be considered. If there is disagreement between or among the attorneys or unrepresented parties on this issue or any other issue, they are instructed to arrange for a telephonic conference with the Court and all counsel as soon as reasonably practical. If no such conference is arranged, it will be presumed that all counsel, their clients and any unrepresented party believe that there is a reasonable, good faith opportunity for settlement, and that the involvement of a settlement judge is needed to accomplish it. The Settling Defendants did not file any notice or raise any issues, and they attended the

20 Settlement Conference without objection. 21

Mr. Cambra did file a motion on September 1, 2006 requesting to attend by telephone.

22 He did not object to the settlement conference. And, notably, in his motion, he said nothing of 23 his personal finances, the need for someone to watch a child or fear of incarceration. In fact, the 24 only "undue hardship" he argued was that "The expense and disruption of this litigation has been 25 a hardship on the church." [Emphasis added.] 26 Case 2:04-cv-00595-MHM Document 193 8 Filed 01/22/2007 Page 8 of 11

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As to the Settling Defendants' requests that the Court take judicial notice that

2 Mr. Cambra and Mr. Williams did not have authority to settle for the corporate defendants, the 3 requests must be denied. Judicial notice is not appropriate here and it is certainly not a 4 mechanism for the Court to determine lack of authority, when such claims are so contrary to 5 Judge Duncan's June 21, 2006 Order and the representations made by Mr. Cambra and Mr. 6 Williams at the hearing, and on the record. (The transcript also shows that there was no duress.) 7 For example, the Court record (transcript) attached as Exhibit "I" presents the following record 8 made in open court. Following a recess where the parties negotiated a modification to what had 9 been a lack of agreement on who was to be responsible to pay $150,000 to the Estate, the record 10 reflects the following, beginning at the bottom of page 22 of the transcript: 11 12 13 14 15 16 17 18

THE COURT: Thank you. Please be seated. . . . Where do we stand? MR. WEECH: We've reached an agreement, Your Honor. THE COURT: Good. What are the additional terms, if any? MR. WEECH: The additional or changed terms are that all of the defendants present here today will be obligated for the $150,000, there will be no stipulated judgment, and with one qualification on the obligations, and that is that Mike Cambra is responsible only to the extent to his sole and separate property, that he is married and his wife and his community property is not responsible or obligated to pay the $150,000. ..... THE COURT: Upon failure, if it as we hope does not happen, the $150,000 isn't paid, what would be the next step, then? MR. WEECH: The plaintiff would move to enforce the settlement agreement with this Court. THE COURT: I see. Okay. . . . . . (Continuing on Page 30)

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THE COURT: All right. Thank you very much. Now, turning to you, Mr. Williams, first
20 in your individual capacity, do you understand what the essential terms are? 21 22 23 24 25 26

MR. WILLIAMS: Yes, I do. THE COURT: And do you agree to be bound by them? MR. WILLIAMS: Yes, I do. THE COURT: And now in your capacity as the defendant Global Mission Un Limited, a sole corporation, do you understand what the essential terms are? MR. WILLIAMS: Yes, I do. THE COURT: And do you agree to be bound by them? Mr. WILLIAMS: Yes, I do. THE COURT: And, Mr. Cambra, as a party to this settlement agreement and as a defendant in this lawsuit, do you understand what the essential terms are? Mr. CAMBRA: Yes. THE COURT: And, do you agree to be bound by them? Mr. CAMBRA: Yes.
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. . . . . (Continuing on Page 32) MR. WEECH: I think when you were talking with Mr. Cambra you did not address the entities that he represents. THE COURT: All right. Mr. Cambra, you're here, apparently, also as a representative of certain entities. Is that correct? MR. CAMBRA: Yes. THE COURT: And do you agree to be bound on behalf of those in your capacity as a representative of those entities as well? MR. CAMBRA: Yes. THE COURT: All right. MR. WEECH: Your Honor, could we have those entities specified for the record? THE COURT: What are they, in your view, Mr. Weech? MR. WEECH: I think that's better addressed by Mr. Cambra and his counsel. MS. FISK: Your Honor, those entities are El Shaddai and Second Chance as named in the complaint. THE COURT: And did you understand those entities and do you agree that those are the entities that you would be representing, Mr. Cambra? MR. CAMBRA: Yes. THE COURT: Okay. Having heard your assent on those points, is there anything else we need to address at this tie? MR. WEECH: No, Your Honor. As this record reflects, Mr. Cambra and Mr. Williams had authority to settle on behalf of

14 the corporate entities (actual or apparent). Representatives of the corporate entities, with actual 15 authority to settle were ordered to appear. Mr. Cambra and Mr. Williams had previously, and at 16 the hearing, stated that they were those authorized representatives. And, the corporate entities 17 have not responded to the motion to compel. 18

Finally, notably absent from Mr. Cambra and Mr. Williams' filings are any affidavits

19 from their counsel, who were present at the settlement conference. Those counsel withdrew 20 from this matter and their reasons have been placed under seal by this Court. Thus, the Estate 21 presumes that Ms. Ronda R. Fisk and Ms. Maureen Beyers, if called upon to testify, would not 22 support Mr. Cambra's or Mr. Williams' claims.4 23 24
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25 Arizona State bar and elsewhere, but did not find any lawsuits or bar complaints related to this matter and filed by 26 determine whether Mr. Cambra or Mr. Williams, or any of their entities have filed any judicial complaints against
Judge Duncan, but doubt that any have been filed.) any of the Settling Defendants against their counsel or against Judge Duncan. (Undersigned counsel was not able to

Also, of note, undersigned counsel have searched the Maricopa Superior Court, this Court, the

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The Settling Defendants Have Waived The Attorney Client and Work Product Privileges; And, They Have Waived Any Basis for Any Portion of the Court's File or Any Hearings Held to Remain Under Seal In the event the Court deems an evidentiary hearing necessary, the Estate requests that all

4 privileges have been waived and that the Court unseal those filings and transcripts previously 5 sealed and kept from the Estate's view. Mr. Williams and Mr. Cambra have clearly waived any 6 right to keep such from the Estate5 and the Estate is entitled to take discovery. 7 6. 8

Conclusion: The Estate respectfully requests the relief requested herein, any such other relief and or

9 sanctions as the Court deems appropriate. An attorney fee and cost application and affidavit will 10 be provided by the Estate as directed by the Court. 11 12 13 14 15 By: /s/ Bradley D. Weech Bradley D. Weech Attorneys for Plaintiff Dated this 22nd day of January, 2006. JACKSON WHITE, P.C.

16 I hereby certify that I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following 17 CM/ECF registrants, and mailed a copy of same to any non-registrants on January 22, 2007: 18 Honorable Mary H. Murguia 401 W. Washington 19 Phoenix, AZ 85003 Joseph L. Williams 15934 Hesperian Blvd., P.M.B. 311 San Lorenzo, CA 94580

20 Ambassador of Global Missions, El Shaddai Ministries, Second Chance Evangelistic Ministries and Michael and Gloria Cambra 21 15934 Hesperian Blvd., PMB 311 San Lorenzo, CA 94580 22 23 By: /s/ Yvonne Salatas
F:\STU\Studnek, Joe\Global Missions\Pldgs\Reply to Motion to Compel and to Enforce Judgment.wpd

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The Estate first points out that none of the Settling Defendants obtained new counsel and strenuously pleaded with the Court that they should have the opportunity to do so. In fact, the documents that have been filed make no reference to even an attempt to do so. Therefore, the Estate suggests that this was just a rouse to delay this matter.
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