kon © oarnoaau 10 1 12 13 14 15 16 17 18 19 20 2t 22 23 24 25 26 MOOHAY 19 PEE aE GS a ‘THE HONORABLE STEVEN GONZALEZ veil CLERK Hearing: Friday, May 30, 2008; 10:00 a.m. Wa, (Oral Argument) IN THE SUPERIOR COURT OF WASHINGTON STATE FOR KING COUNTY CHRIS CORNELL, vs. NO. 06-2-24639-0 SEA Washington Professional Service TO THE GEORGE DEFENDANTS’ Corporation; LEE E. JOHNSON; MOTION FOR PARTIAL SUMMARY JANET A. GEORGE; and JANET A. JUDGMENT RE: ACCOUNTING GEORGE INC. P.S., a Washington ISSUES ) ) ) ) ) ) VOLDAL, WARTELLE & CO.,P.S..a ) — PLAINTIFF'S OPPOSITION TO ) ) } Professional Service Corporation; ) ) ) 1 RELIEF REQUESTED COMES NOW plaintiff Chris Comell, by and through his attorneys Johnson + Flora, PLLC, and Mark Johnson and Sims Weymuller, and respectfully requests that this Court deny the George Defendants Motion for Partial Summary Judgment Re: Accounting Issues. There are numerous genuine issues of material fact that prohibit granting the George Defendants’ motion. Declarations by Mr. Cornell, his accountant Lisa Ferguson, and standard of care expert attomey Neal Hersh, 2 nationally recognized family law practitioner who advised Mr, Comell in the post-dissolution proceedings and has an intimate knowledge of the facts of this case including the negligence of Janet George, address each of the issues raised by the George defendants, ORIGINAL JoHNsoN | FLoRA PLIP’S OPPO. GEORGE DEFTS’ MOTION FOR Sceerueeeeneis PARTIAL S. J. RE: ACCOUNTING ISSUES - 1 ‘Seattle, WA 98121 1) 206.286.5568 (1) 206.692.0675,oR on Seocanea 12 13 14 15 16 17 18 19 20 24 24 25 ‘The George defendants’ motion is based in large part on the flawed assertion that Mr. Cornell “specifically instructed” Ms. George not to hire a forensic accountant. (George defts’ motion at 2) The evidence shows, however that Mr. Comell never gave any such instruction, In addition, the inference from the evidence, cast in the light most favorable to ‘Mr, Cornell, is that he was unaware of the difference between his accountant and a forensic accountant, unaware of the importance of a forensic accountant, and that had Ms. George communicated to him the importance of a forensic accountant, he would have agreed to the expense. Mr, Hersh offers testimony that these failures, and Ms. George’s failure to otherwise conduct adequate discovery, were breaches of the standard of care that resulted in the claimed damages. Plaintiff admits that Ms. Ferguson did not determine the “reasonableness” of the fees, (nor should she) and offers testimony from the attorneys themselves that the fees were both reasonable and necessary and incurred as a result of the negligence of Ms. George. The jury | will accordingly have an adequate factual basis—the testimony of the attorneys and | accountant who themselves provided the services and charged the fees—upon which to determine a specific amount of attorney's fees in this matter. Il. STATEMENT OF FACTS A. Mr. Comeil Did Not Tell Janet George That She Should Not Retain A Forensic Accountant. Janet George revises the history of this case with her claim that Mr. Comell instructed her not to hire a forensic accountant. Mr. Comell admits that he had a discussion with Ms, George regarding the potential need for a potential forensic accountant. Mr. Comell adamantly disputes, however, that Ms. George instructed him that a forensic accountant was different from his accountant (Lee Johnson) and that Ms. George conveyed to him that he would need an additional accountant to adequately represent him in the JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR PARTIAL S, J. RE: ACCOUNTING ISSUES - 2 2 Seale Whose (f) 206.386.5566 (f) 206.682.0675© eoreaeroan 10 a 12 13 14 15 16 7 18 19 20 24 22 23 24 25 26 divorce. In her e-mail describing Larry Hawes, a forensic accountant, Ms. George stated the following: Larry Hawes: Larry is a forensic CPA who I employ on many of my cases to assist in identifying and compliling [sic] a list of assets and their values and to testify at mediation if necessary and trial if there is one. He can also advise about incomes taxes under the circumstances. He bills at $225 per hour. f need for him dey the individuals already in your employ and their availability to me. (Defendants? Exhibit 3 e-mail from Janet George to Chris Cornell)(emphasis added). Mr. Cornell’s response to Ms. George’s e-mail was as follows: Hi there. Let me give you my manager's phone number. His name is Lee Johnson. The company is VWC. 425-463-1209 he had everything you will need. I am going to call him now and give him your phone number. VWC is very full service, so please go over the moving forward process with Lee. I don’t want any overlapping with billing. VWC aint cheep [sic]. ... (George Defts’ Exhibit 3). In their motion the George defendants claim that Mr. Comell’s response equated to Chris stating that Ms. George should only use Lee Johnson. (George defis’ brief at 4) ‘The actual text of Mr. Comell’s response to Ms. George reveals that he did not tell Ms. George to contact his accountant “instead” of hiring a forensic accountant. He was ‘elling her who had his financial information. Ms. George had said that the need for Mr. Hawes “depends upon the individuals already in your employ and their availability to me.” Mr. Comell dutifully responded with the name, company, and phone number of the accountant already in his “employ.” Mr. Comell indicated to Ms. George that Mr. Johnson and “VWC are very full service” and that he would contact Mr. Johnson to facilitate his work with Ms. George. Mr. Comell did not tell Ms. George that she could not hire a forensic accountant. Ms. George never advised Mr. Cornell of the difference between his, accountant Lee Johnson and a separately retained forensic accountant. (Declaration of ‘Mark Johnson in Opposition to George Defendants’ Motions for Summary Judgment JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 12505 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 3 Seattle, WA 98121 (9 206.926.5568 (1) 206.682.067515 16 7 18 19 20 i 22 23 24 25 26 "Johnson Opp. Decl." Ex.1, p. 116:22-118:5) After having the opportunity to communicate with Mr, Johnson, Ms. George never communicated to Mr. Comell that in order to properly analyze the community and separate assets of both Mr. Comell and Ms. Silver, she would need to hire a forensic accountant. ([d,) There is simply no evidence that Ms. George advised Mr. Comell that she needed to hire a forensic accountant and that Mr. Cornell refused or otherwise instructed her not to retain a forensic accountant, It was in fact Ms. George who made the decision not to hire a forensic accountant, B. The Divorce Timeline. In 2003 Ms. George instructed Mr. Cornell to attempt fo negotiate a settlement personally with Ms, Silver during an informal resolution. After numerous attempts, this cffort failed. Mr. Comell remembers having a conversation with Ms. George where he requested an estimate of the earliest time he could have a divorce and Ms. George told him that she believed the parties could mediate the dissolution by March 1, 2004. (Id. at p. 29:10-18) Mr. Comell was prepared to offer Ms. Silver more than half of their community property in order to complete a settlement by March 1, 2004. (Id. at p. 37:16-20) The basic structure of his proposal was that he would give Ms. Silver the couple’s home in West Seattle and their home in Oija, California without compensation as an incentive to settle the case promptly. (Id. at p. 31:11-17). Mr. Cornell believed this would give an incentive to Ms. Silver to settle the case and he further hoped that having a home in California would bring his daughter closer to his residence in Los Angeles. (Id, p. 32:16-25; Id., Ex. 5,p. 56:1-57:9) At no time did Ms. George tell Mr. Cornell that she would be unable to meet a March 1 mediation deadline or that holding that date would in any way harm his case, Ina | January 22, 2004, e-mail in which Ms. George is updating Mr. Comell, she stated: 6. Settlement and Parenting Plan. We are now in a position to make it happen within your time frame. JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR ioe cose alert adie eae PARTIAL S. J. RE: ACCOUNTING ISSUES - 4 ‘Seattle, WA GB121 ) 206.086.5566 (206.682.0675oR OW © ero 10 1 12 13 14 18 16 7 18 19 20 at 22 23 24 25 26 (Defis’ Exhibit 7) The George defendants have regularly implied that Mr. Cornell’s push for mediation was in some way related to the pregnancy of Mr. and Ms. Comell’s first child. Chris and Vicky Comell were engaged in August of 2003. (Johnson Opp. Decl., Ex. 5, p. 29:16-30) By December of 2003 they were inquiring with a fertility doctor to determine whether they could have children and were blessed with a planned pregnancy by January of 2004. (ohnson Opp. Decl., Ex. 5, p. 30:4-35:18)Mr. Comell was not aware of the pregnancy until January 27, a full week after even the George defendants admit the mediation date of March 1 was set and after Ms. George’s e-mail to Mr. Comell that the parties were “. ..now in a position to make it happen within your time frame.” (Defts’ Exhibit 5) Vicky's pregnancy with their first child had nothing to do with Chris’ desire to finalize his divorce immediately. (Johnson Opp. Decl., Ex.2, p. 192:9-12) His relationship with Ms. Silver had ended years before. He did not want the case to drag out and he was willing to offer a clear incentive (the West Seattle and Ojia houses) if Ms. Silver agreed to a final divorce settlement as of March 1, 2004, (Id. at p. 192:2-194:7) Mr. Cornell maintained the clear stance that either she accept the two houses and they divide the remainder as of March 1, 2004, or he would proceed to trial. (Id.) Atno time did Ms. George tell Mr. Comell that, as the author of copyrighted materials, he would or even could convey the ownership and control rights of those copyrights to Ms. Silver in the settlement. (Id, Ex. 2, p. 261:9-23) All that Mr. Cornell and Ms. George ever discussed prior to the mediation was “revenue sharing.” Indeed, Ms. George hadn’t even thought about specifically about the issue of -22) ownership of the song catalog being conveyed to Ms. Silver. (Id., Ex. 6, p. 12! ‘While Ms. George now claims that Mr. Comell’s “deadline” somehow excuses her negligence, the indications she gave to Mr. Cornell at the time were quite to the contrary. In a February 23, 2004 c-mail she indicated to Mr. Comell that: JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR Gay Siseiannbl cua 50 | PARTIAL S. J. RE: ACCOUNTING ISSUES - 5 Senttie, WA SB () 206.986.5568 (N 206.682.0675en oa ae oanw a "1 12 13 14 15 16 7 18 19 20 2t 22 23 24 25 26 ‘We have gotten all of the documents to Tom [Hamerlinck, Ms. Silver's attomey], so it is now in their court. (Defis’ Exhibit 12) Ms. George went on to state: Because of our push, it appeared from Toms [sic] letter today that we might be able to come to some agreement on most issues by the end of this week. dd.) C. Discussion Regarding Spreadsheets, The George defendants’ characterization of the events after the March 1 mediation continues their trend of revisionist history. The George defendants claim that, after the settlement, Mr. Comell “, . .began to reconsider aspects of his property settlement” and concluded by June 5, 2004, that his advisers had failed him. (George Defis' Partial Summ. J. motion re Accounting Issues, pp. 8-9). This time lapse conveniently skips the intervening four months in which Ms, George is on record of having assumed the parties’ agreed to revenue sharing (Johnson Opp. Decl., Ex. 13), being informed that paragraph 7A provides for co-ownership of rights (Id., Ex. 14, Item No. 2), her discussions with Mr. Winters about “creative ideas” to get out of the agreement (Id., Ex.6, p. 117:9-118:13; Bx.15), and her subsequent distortion of the events of March 1, that Ms. Silver rejected the revenue sharing agreement. (Id,, Ex.16) After having been informed that Ms. Silver was claiming paragraph 7A gave her ownership in the works, and farther being informed that he was required under the Property Settlement Agreement to share 50% of his 2003 income, but pay 100% of the taxes, Mr. Comell understandably and finally relieved Ms. George and Lee Johnson of their duties. Mr. Cornell hired business manager Lisa Ferguson of Premier Business Management to take over the general business management duties and to review and audit Lee Johnson’s records. || Declaration of Lisa Ferguson, 473 & 4)! ' The George defendants claim that Ms. Ferguson“. . spent over a year conducting an extensive review of Lee | fotos’ reso of predvoree financial transactions.” (George Mot. t 10) 5 NSOR'PE LORA PLTF’S OPPO, GEORGE DEFTS’ MOTION FOR ate ceeta adic otas Goer PARTIAL S. J. RE: ACCOUNTING ISSUES - 6 ‘Seatl, WA 96121 (206.086.5566 () 208.682.0675Il. STATEMENT OF ISSUES 1. Whether the George defendants fell below the standard of care regarding the “accounting issues,” 2. Whether Mr, Comell can recover for damages: (a) Ms. George’s failure to properly value and address Susan Silver Management; (b) Ms. George’s failure to discover and address the tax liability owed by Ms. Silver to Mr. Cornell for 1998-2002 taxes; and (© Ms. George's failure to use a 2002 valuation date of the marital assets and improperly allowed Mr. Corell’s 2003 income to be divided in the PSA; and, Ms. George’s feilue to recognize and advise with respect the $750,000 record advance; and 3. Whether the jury will have sufficient evidence upon which to rely and to award attomey and accountant fees incurred as a result of Ms. George’s negligence, when. each individual attomey will testify that their fees were reasonable and necessary and that they were incurred due to the negligence of Ms. George. IV. EVIDENCE RELIED UPON Plaintiff relies on the Declaration of Mark Johnson and exhibits attached thereto; the Deciaration of Neal Hersh; the Declaration of Chris Corell; the Declaration of Marty Singer; the Declaration of Linda Ebberson; and the Declaration of Lisa Ferguson, V, LEGAL AUTHORITY AND ARGUMENT A. The Summary Judgment Standard Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file” demonstrate the absence of any genuine issues of ‘material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). The moving party must demonstrate the absence of any genuine dispute as to any material fact. ‘VersusLaw, Inc, v. Stoel Rives. L.L.P., 127 Wn. App. 309, 319, 111 P.3d 866 (2005). “A record. Ms. Ferguson testified that she began the audit in November 2004 then corrected herself that she began itin November of 2005, (Johnson Opp. Decl. Ex.27, p.287:9-13 and, p. 335:2-11) The audit itself lasted ‘several days and not “over a year.” JOHNSON | FLORA | PLTE’S OPPO. GEORGE DEFTS’ MOTION FOR £2505 Second Avenue, Suite 500 PARTIAL 8, J. RE: ACCOUNTING ISSUES - 7 Sealtle, WA 98121 () 206.926.5566 (206.682.067618 19 20 24 22 23 24 26 material fact is one upon which the outcome of the litigation depends, in whole or in part.” Barrie v. Hosts of America, Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). Only when reasonable minds could reach but one conclusion on the evidence should the court grant summary judgment. Smith v. Safeco, Ins. Co. 150 Wn.2d 478, 485, 78 P.3d 1274 (2003). ‘The court must view all facts and reasonable inferences in the light most favorable to the nonmovying party. Ravenscroft v. Water Power Co., 136 Wn.2d 911, 919, 969 P.2d 75 (1998). When competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Hudesman v. Foley, 73 Wn.2d 880, 441 P.2d 532 (1968). B. The Law of Legal Malpractice 1 Elements of a Legal Malpractice Claim. The elements of a legal malpractice claim are: a) The existence of a duty; b) Failure to perform the duty by conduct deficient relative to the applicable standard of care; ©) Proximate cause; and 4) Damages. Hansen v. Wightman, 14 Wn. App. 78, 88, 538 P.2d 1238 (1975). 2. Duty ~The Standard of ‘The standard of care to which a lawyer is held is that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in the State of Washington. Walker v. Bangs, 92 Wn.2d 854, 859, 601 P.2d 1279 (1979). There is no "locality" rule, the standard is uniform throughout the state. Cook, Flanagan and Berst v. Clausing, 73 Wn.2d 393, 395, 438 P.2d 865 (1968). ‘The standard of care and its scope are determined as of the time the services are rendered. || Martin v. Legal Services, 43 Wn. App. 405, 408, 717 P.2d 779 (1986). The standard of care mandates that the attorney know the law (or find out what the law is). Bush v. O'Connor, 58 Wa. App. 138, 148, 791 P.2d 915 (1990). JOHNSON | FLORA PLTE’S OPPO. GEORGE DEFTS’ MOTION FOR £2505 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 8 Seattle, WA 98121 ( 206.386.5566 (7) 206.682.0875oY Ook @Ow H+ © 10 n 12 13 14 15 16 7 18 19 20 24 23 24 Py 26 3. Breach by the Defendant Lawyer To establish a claim for legal malpractice, a plaintiff must prove a breach of the standard of care. Hizey v. Carpenter, 119 Wa.2d 251, 830 P.2d 646 (1992); see also Bowman v. Two, 104 Wn.2d 181, 185, 704 P.2d 140 (1985) (once an attorney-client relationship is established, the elements for legal malpractice are the same as for negligence). Such a breach is a failure to exercise the degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in this jurisdiction. Hansen, 14 Wn. App. at 90. Generally, the recognized standards of practice of a profession must be proved by testimony ofa member of that profession, unless the negligence alleged is within the common knowledge of a layperson. Jd.; Walker, 92 Wn.2d at 858. 4, Causation and Damages. Ina legal malpractice action, as in most negligence cases, causation is usually an issue for the trier of fact. Halverson v. Ferguson, 46 Wn. App. 708, 712-713, 735 P.2d 675 (1986). Only where facts are undisputed, and inferences there from are plain and incapable | of reasonable doubt or difference of opinion, is causation a question of law for the court, Daugert v. Pappas, 104 Wn.2d 254, 257, 704 P.2d 600 (1985); Bowers v, Transamerica Title, 100 Wn.2d. 581, 590, 675 P.2d 193 (1983). A person damaged by the negligence of another is entitled to recover all losses proximately caused by the negligence. Dyal v. Fire | Companies Btc., 23 Wn.2d 515, 521-522, 161 P.2d 321 (1945). The measure of damages to be awarded to one who has suffered a loss as a result of an attorney's negligence is the value of the claim lost. Martin v. Legal Services, 43 Wn. App. 405, 412, 717 P.24 779 (1986). C. Janet George Breached the Standard of Care ‘The George defendants claim that Mr. Cornell's standard of care expert Charles ‘Schmit found that Ms. George met the standard of care when she failed to hire a forensic accountant and failed to conduct adequate discovery. (George deft. motion at 12) Mr. JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 2508 Second Avenue, Suite 500 PARTIAL §, J. RE: ACCOUNTING ISSUES - 9 Soattlo, WA 98121 () 206.988.5666 (7) 206.682.067525 26 | Comell will offer the testimony of expert witness Neal Hersh and that testimony will be, plainly, that Ms. George did not meet the standard of care when she failed to hire a forensic accountant and when she failed to conduct discovery as discussed in the Declaration of Neal | Hersh filed concurrently herewith. 1. Qualifications of Neal Hersh, ‘Neal Hersh has been licensed to practice law in California since 1976; his practice is exclusively focused on family law. He is a Certified Specialist in Family Law by the State Bar of California Board of Legal Specialization and a frequent lecturer and faculty member participant in symposia and other continuing legal education seminars across the United States in the family law area. He has been admitted pro hae vice in the states of ‘Washington, Utah, Nevada, New York, and Georgia, He is a fellow of the American ‘Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers. He has handled many cases involving musicians or spouses of musicians, including several that specifically involved the division of copyrighted songs. (Declaration of Neal Hersh, at 1-2) Mr. Hersh is familiar with the standard of care of a reasonably prudent attorney in Weshington State on family law issues. (Hersh Decl. at 12) Mr. Hersh was heavily involved in managing the post-dissolution proceedings including appearing on behalf of Mr. Cornell in King County Superior Court, He worked closely with Mr. Comell’s local counsel Ed Skone and later Linda Ebberson in the post-dissolution proceedings and will offer testimony as a fact witness regarding those proceedings and the impact that Janet George’s negligence had on Mr. Comeli’s divorce and property settlement. (Hersh Decl. at {11) 2. Janet George’s Breaches of the Standard of C “Accounting Issues” and Causation of to Chris Comell. ‘The George defendants do not, in this motion challenge plaintiff's claims Ms. George breached the standard of when Ms. George failed to discover and address the $750,000 advance received by Mr. Cornell but not addressed in the Property Settlement JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 2505 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 10 Seattle, WA C8121 } () 208.986.5566 (f) 206.602.067513 14 15 16 7 18 i9 20 2 22 23 24 26 | PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR agreement, nor when she failed to address the 2003 tax issue that Mr. Cornell gave 50% of his 2003 income to Ms. Silver, but paid 100% of the taxes. (George Mot. at 13) Mr. Comell maintains, and the Hersh and Ferguson declarations support, that these issues are valid claims that survive this or any motion, regardless.” ‘The remaining issues that the George defendants address in this motion are: a. Ms, George’s failure to properly value and address Susan Silver Management; b. Ms, George’s failure to discover and address the tax liability owed by Ms. Silver to Mr. Comell for 1998-2002 taxes; c ‘Ms. George’s failure to use a 2002 valuation date of the marital assets and improperly allowing Mr. Comell’s 2003 income to be divided in the PSA; d. The allocation of the Exotic Autowerks loss to Mr. Cornell. c. Whether the Attomey Fees were Properly Segregated. Mr. Comell agrees that his claim on the fourth issue above (issue (4) the Exotic Autowerks issue) should be dismissed, On the remaining issues, Mr. Comell in addition to bis own testimony offers evidence and testimony by his family law expert Neal Hersh, his accounting expert Lisa Ferguson, Mr. Comell, and attorneys Marty Singer and Linda Ebberson regarding fees, all of which rebut the George defendant's motion. There are genuine issues of material fact as to whether Mr. Comell was aware of these issues, whether Ms, George adequately advised Mr. Cornell regarding these issues, and consequently whether Mr. Comell authorized the positions Ms. George took. 3. A Gemnine Issue of Material Fact Prohibits § y Judgment on These Claims. ‘Ms. George’s arguments on the account issues stem generally from her claimed defense that she instructed Mr. Cornell to hire a forensic accountant and Mr. Cornell refused. The evidence described above, especially the initial email by Ms. George and ? The George defendants raise the $750,000 advance issue in another motion. pevenis address iythere, HNSON | FLORA Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 11 aor ynoniette (9 206.986.5806 () 206.582.06756 comornoa 10 n 12 13 14 15 16 7 8 19 20 21 23 24 25 response by Mr. Cornell, create a genuine issue of material fact on this issue. (George Defis’ Ex. 3) ‘The George defendants have thus failed to demonstrate the absence of any genuine dispute as to any material fact. VersusLaw. Ine, v. Stoel Rives, LLP, 127 Wn. App. 309, 319, 111 P.3d 866 (2005). The fact of Mr. Cornell's alleged instructions is material because || Ms. George relies on it in asking this Court to dismiss these claims; accordingly, the fact is ones “upon which the outcome of the litigation depends, in whole or in part.” Barrie v. Hosts of America, Inc. 94 Wn.2d 640, 642, 618 P.2d 96 (1980). If the fact and reasonable inferences are viewed in the light most favorable to the nonmoving party, Mr. Comell never instructed Ms. George not to hire a forensic accountant and this motion must be dismissed. Ravenscroft v. Water Power Co,, 136 Wn.2d 911, 919, 969 P.2d 75 (1998). }4 et George Breached the Standard of Care on the “Accounting Issues” and that Breach Caused Damages to Mr. Comell. The George Defendants claim that Ms. George “specifically advised Comell that she wanted to retain an independent forensic accountant, Larry Hawes, to assist in identifying and valuing his assets” but that Mr. Comell “chose not to follow George’s advice instead, directing George to use Lee Johnson, his existing accountant and telling George that Lee Johnson would have ‘everything you need.”” (George Mot. at 15). The George defendants rely on the October 30, 2003 email that not only fails to exonerate Ms. George, but demonstrates her culpability and that Mr. Comell followed her directions. (Cromwell Decl. Ex. 3) In that letter, Ms. George tells Mr. Cornell that Larry Hawes is “a forensic CPA. whom I employ on many of my cases to assist in identifying and compiling a list of assets and their values...” She goes on to say that “the extent of need for him depends upon the individuals in your employ and their availability to me.” (1d.) (emphasis added) Mr. Comell dutifully responded regarding the “individuals already in [his] employ” specifically Ms. George the name of Lee Johnson at VWC and his contact information in a JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 2506 Second Avenue, Sulte 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 12 Seattle, WA 98121 (0 206.986.5566 () 206.682.0675hon 18 19 20 24 23 24, 25 26 response email of the same date. (Cromwell Decl. Ex. 3) Mr. Cornell stated he did not want any overlapping with billing and that he would wire a retainer against which fees, including expert fees, will be drawn, (Cromwell Decl. Ex. 3) Mr. Comell did not tell Ms. George that she should not use a forensic accountant; he merely responded that he had an accountant in his “employ” that had a great deal of information and that he would like to avoid any double billing of services. This is a perfectly reasonable client request and Mr. Cornell clearly trusted Mr. Johnson who had worked for him for nearly ten years. ‘The George Defendants offered no evidence that Ms. George ever explained to Mr. ‘Cornell the difference between a business management accountant and a forensic accountant or that she ever discussed with Mr. Comell the importance of a forensic accountant to an accurate investigation into an analysis of the assets of the marital community, There is also no evidence that Ms. George explained to Mr. Comell that, since Ms. Silver managed the band Soundgarden, that the band members were clients of Lee Johnson and that Mr. Johnson did the taxes for Susan and Chris, an independent analysis of the finances would be appropriate. According to plaintiff's expert Neal Hersh, these were Ms. George’s duties and she breached them, (Hersh Decl, at 926-27) Mr. Hersh opines: ‘The use of a forensic accountant in a complex marital dissolution such as this is essential. The standard of care for the reasonably prudent family law attomey in the same or similar circumstances required explaining to the client ‘the importance of a forensic accountant, the necessity of an independent examination of the assets, and the drastic negative impact that any decision not to hire a forensic accountant may have on the overall outcome of the dissolution. That is, the reasonably prudent attorney must make it clear to the client that a forensic accountant is necessary and must accordingly retain such an accountant unless the client has been fully advised of the importance of a forensic accountant, advised of the risks of failing to obtain a forensic accountant, and has nonetheless explicitly refused to incur the cost of a forensic accountant. (Hersh Deci., at $28) An attomey has a right and a duty to follow the reasonable instructions and direction of a client but that duty is reciprocal to the duty of the attorney to JOHNSON | FLORA PLTE’S OPPO. GEORGE DEFTS’ MOTION FOR oye Sosa teat aaa PARTIAL S. J. RE: ACCOUNTING ISSUES - 13 Seattle, WA 88421 () 206.086.5568 — () 206.682.0675hon Soeanrnoa 12 13 14 15 16 7 18 19 20 at 22 23 24 25 26 ensure the client is fully and adequately advised of the consequences of that instruction or direction, AND; that the attomey has adequately inquired of the client as to the basis of the client's understanding, i.e., what does the client mean by “share everything” 50-50, (Hersh Decl., at $29) Itis the attorney's obligation to ensure clear communication with the client, and Ms. George failed to meet that obligation and accordingly breached her duty of care. (1d., at $9 29-31) Mr. Hersh further opines: Janet George failed to meet the standard of care of the reasonably prudent attorney in the same or similar circumstances when she failed to adequately advise Mr. Comel{ of the importance of a forensic accountant, when she failed to advise Mr. Comell of the risks of failing to obtain a forensic accountant in a complex dissolution proceeding such as this, and when she failed to confirm that indeed Mr. Cornell was directing her to only use Lee Johnson and not to hire a forensic accountant. a,, at $31) Also, Ms. George breached her duty when she was informed by Mr. Johnson that he || could not perform the necessary duties, but did nothing. Mr. Johnson testified that, in his initial conversation with Ms. George, le informed her that he and his firm were not appraisers, did not do valuations, were not forensic accountants, and would not be able to conduct fair market value estimates of any of the assets. (Johnson Opp. Decl., Ex. 9, p. 129:12-130:2) According to Mr, Hersh, “[o]nce she was informed by Mr. Johnson that he would be unable to conduct the necessary forensic accountant duties to determine the values || of the assets in the dissolution proceeding, it was Ms. George’s duty to inform Mr. Comell that the individuals already in his ‘employ’ (e.g. Mr. Johnson) did not have the requisite skills to adequately investigate and analyze the assets, and that she accordingly needed to hire a forensic accountant to ensure that Mr. Comnell’s interests were protected. Ms. George's failure to do so is a breach of the standard of care.” (Hersh Decl. $33) ‘The George Defendants also appear to claim that Mr. Comell’s goal of finalizing the divorce by March 1st in some way excuses her for her failures. On this point, Mr. Hersh stated: “It is my opinion to a reasonable degree of certainty that even if Mr. Cornell JOHNSON } FLORA PLTF’S OPPO, GEORGE DEFTS’ MOTION FOR 2505 Second Avanue, Suite $00 PARTIAL S. J. RE: ACCOUNTING ISSUES - i4 Seattle, WA 98121 (t) 206.386.5566 () 206.682.0675,a a) 10 " 12 13 4 15 16 17 18 19 20 21 23 24 25 26 established a March 1, 2004 “deadline” it did not relieve Ms. George of her duties to adequately advise and represent her client and to protect his interests.” (Hersh Decl., $34) ‘When Mr. Comell expressed to Ms, George that he did not want his divorce to drag on and that he would like to set a date for mediation to push the proceedings, Ms. George agreed that she would be able to complete the divorce by March 1, 2004. (Comell Decl at $3) [vis undeniable that Mr. Comell’s directive to Ms. George was that if the divorce was final by March 1, he would give Ms. Silver the two houses owned by Ms. Silver and Mr. Comell, free and clear and that if Ms. Silver did not finalize the divorce by that date, the offer of the two homes would be withdrawn. (Johnson Opp. Decl, Ex. 2, p. 192:17-193:17) It was an incentivized time deadline imposed on Ms. Silver. Moreover, Mr. Comell explicitly asked Ms. George to investigate the assets held by Ms. Silver very early in the dissolution proceeding, On November 22, 2003, Mr. Comell wrote Ms. George’s associate an e-mail specifically asking: “And, Iaiso wanted to find out if you've been able to have any conversation with Kelly Sterling [Ms. Silver's accountant] or what the discovery is on Susan’s assets up til now.” (Johnson Opp. Deol., Ex. 1711/11/03) Apparently, nothing was done with this request. ‘Once Mr. Comell and Ms. George agreed that the divorce could be concluded by March 1, 2003, Ms. George confirmed that date multiple times, Ms. George informed Mr. Comell on January 22, 2004 as follows: “Settlement and parenting plan. We are now ina position to make it happen within your time frame.” (Cromwell Decl., Ex. 7) On February 23, 2004 Ms. George expressed some concer about the timing, but stated that “because of our push, it appeared from Toms [sic] letter today that we might be able to come to some agreement on most issues by the end of this week.” (Cromwell Decl., Ex.12). The next day she states that “,..I think we will probably be able to meet your deadline of March 1, 2004." (Cromwell Decl., Ex.11) On this point, Mr. Hersh opined that: JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 2505 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 15 ‘Seattle, WA 98121 () 206.986.5566 (f) 206.082.0675,en B Somrnoae 12 13 14 15 16 7 18 19 20 at 22 23 24 25 26 It is the duty of the reasonably prudent attorney to know and understand her capacity to adequately represent her client. In this case, Ms, George should have known whether she would be prepared to move forward with mediation on March 1, 2004, If she believed that she was unable to move forward with mediation and adequately protect the interests of Mr. Cornell, it was her duty to so advise Mr. Corneil and ensure that his interests were protected and the mediation was postponed. Ms. George’s failure to do so was a violation of the standard of care. (Hersh Deci., $36) 2. Ms. George Failed to Properly Value and Address Susan Silver Management, It is a genuine issue of material fact as to whether a forensic accountant, or adequate discovery by Ms. George, would have determined a legitimate fair market value for Susan Silver Management, Indeed, the George Defendants make no claim that the value of Susan Silver Management was not much higher that the $3,298 value it was given. (George Mot. at 16-17) Based on her analysis of an average of Susan Silver Management's gross receipts over a five year period, plaintiff's accounting export Lisa Ferguson opined that the fair market value of the company was $561,606. (Ferguson Decl, (8). The George Defendants instead claim that Ms. George asked Mr. Cornell if he wanted share in the revenue of Ms. Silver’s business. (George Mot. at 16) Ms. George had forwarded a spreadsheet to Mr. Comell that stated the value of $3,298 for Susan Silver Management, then Ms. George asked: “Do you want to share in her royalties? It seems fair ‘but may not be worth much.” (Cromwell Decl., Ex. 8) Mr. Comell understandably responded that he was not worried about it unless Ms. Silver failed to meet the March 1 deadline. (1d.) Mr. Comell was not advised, however, that the value of Susan Silver Management was two orders of magnitude higher, or an estimated $560,000. (Ferguson Deel., $8) Neal Hersh opined that due to Ms. George failure to hire a forensic accountant or conduct adequate discovery regarding the value of Susan Silver Management, Mr. Corel! was not advised that the company could be valued at approximately $560,000 and was a substantial asset of the marital community. (Hersh Decl. (38) JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 2508 Second Avenue, Site 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 16 Beattie, WA 98121 () 206.986.5586 (9) 206,602.0675Seer oaanon 1" 12 13 14 15 16 7 18 19 24 22 24. It was Ms. George’s duty to ensure that her client was adequately and fully informed of the value of any of the assets that her client was voluntarily foregoing in the dissolution...Ms. George’s failure to have this asset valued and to inform Mr. Comell that he was foregoing hundreds of thousands of dollars if he decided to not include it in the asset division was a breach of the standard of care. (Id.) ‘That Mr. Comell may have reviewed a property spreadsheet with the value of $3,298 assigned to Susan Silver Management only establishes that he was misled. According to Mr. Hersh: (Ot is the duty of the attomey, not the client, to ensure that the assets are adequately and accurately valued, and there is a vast difference between a $4,000 business and a $560,000 one. While Mr. Comell is a talented musician, he has no expertise in the valuation of any assets, let alone a management business. (Id. at { 39) This Court should accordingly deny the George defendants’ motion on this issue. b. Ms. George Failed to Discover and Address the 1998-2002 Tax Liability Owed by Ms. Silver to Mr. Cornell. It is undisputed that Ms. George was aware of the 1998-2002 tax li ity and failed to make Mr. Comell aware of it. (George Mot. at 19-21) Indeed, in their brief they even cite to the January 30, 2004 letter by Lee Johnson to Ms. George “explaining that Silver had agreed to reimburse Cornell for taxes he paid during the marriage on her income during their marriage.” (1d, at 19) The George defendants cannot dispute that, if Mr. Comell had been aware of this liability, it would have substantially improved his bargaining position with Ms. Silver. As the George Defendants made clear with their argument regarding the Exotic Autowerks loan, the parties at mediation were exchanging demands regarding debts they believed the other should not bear. (George Mot. at 18-19) Had Mr. Comell been advised of this massive debt—an $818,000 tax liability—there is no question that he could and would have countered Ms. Silver’s property demands with his own because, as the George Defendants admit, she had already “agreed” to it, JOHNSON | FLORA PLTE’S OPPO. GEORGE DEFTS’ MOTION FOR Peis cudiaueat ui sia PARTIAL S. J. RE: ACCOUNTING ISSUES - 17 Seattle, WA 98121 (y 206.986.5506. () 200.682.0075Noone an 10 1 12 43 14 15 16 7 18 19 20 at 22 23 24 26 Ms. George claims that, because the accountant Mr. Johnson stated that if the settlement divides existing assets, there is no reason to consider this situation, she was under no duty to advise Mr. Cornell of this liability. (George Mot. at 20) This ignores the reality that the settlement did not do so. As the George Defendants own motion reveals, at least one major liability, the entire $138,000 Exotic Autowerks loan, was absorbed by Mr. || Cornell. The split was not equal, so the predicate to Mr. Johnson's admonition was not me. More importantly, though, itis the duty of the lawyer—Tanet George—to determine the existence of assets and liabilities and so advise her client. As Mr. Hersh states: As the attomey representing Mr. Comell in the matter, it was Ms, George’s duty to make her own studied determination of the disposition of this potentially inequitable division of the assets and advise Mr. Comell accordingly. She was advised of this situation at least a month in advance of the medication and it was her duty to inform Mr. Comell of the potential liability Ms. Silver owed to him, and determine its value... Ms, George’s failure to do so is a breach of the standard of care which caused Mr. Cornell significant losses at the mediation, (Hersh Decl. $43). Mr. Comell should have been entitled at the mediation to claim the entire debt owed to him from Ms, Silver but, due to the negligence of Ms. George, was not. ‘The defense is entirely mistaken as to who had the burden of proof with accounting for the $818,000, 1998-2003 tax debt. Initially, the Court should note that there is no dispute about whether Mr, Comell paid all of the taxes on both his earnings and those of Susan Silver Management, that there was an agreement that Ms. Silver should pay him back or that Ms. George knew about it. Ms. Silver, in addition to being Mr. Comell’s spouse, was his entertainment manager and some of the money she earned through Susan Silver Management was earned as a result of her business relationship with Mr. Cornell. “Parties prior to and during marriage have a fiduciary duty to one another in agreements which have been reached between them. In Re: Marriage Of Hadley, 88 Wn.2d 649, 565 P.2d 1790 (1977); Seals v. Seals, 22 Wn. App. 652, 655, 590 P.2d 1301, 1303 (1979). “The full disclosure mandated by the fiduciary relationship assumes that one party has information JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 2808 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 18 Seattic, WA 98121 () 206.986.5566 (f 206.692.0675on @ Rw cS eano 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 which the other needs to know to protect his interests.” See In Re: Marriage of Maddix, 41 Wn. App. 248, 253, 703 P.2d 1062, 1065 (1985). As Mr. Cornell’s entertainment manager, Ms. Silver was in a fiduciary relationship to him, Finally, RCW 26.16.210 provided, in 2004, that: “In every case where any question arises as to the good faith of any transaction between husband and wife, whether a transaction between them directly or by intervention of third person or persons, the burden of proof shall be on the party asserting good faith.” ‘Mr. Cornell has shown the agreement between the parties; that he fulfilled his portion of the bargain by paying the $818,000 in taxes; and, had Ms. George even asked for the information Ms. Silver would have been required, pursuant to the two fiduciary relationships, plus the statute, to disclose the information. Ms. George knew about the agreement and she didn’t even bother to ask what information Ms. Silver had to show that she did not owe Mr. Cornell $818,000. Simply because this case is now a legal malpractice case does not shift the burden of ‘proof to Mr. Comell —_Ms. George stands in the shoes of Ms, Silver in defending the claim and she, not Mr. Cornell, is required to show that the debt does not exist. If there is a defense to the $818,000 debt, then it is Ms. George’s affirmative defense and she is required to produce evidence, not Mr. Comell. Mr. Comeli did not have the burden of proof then and. he does not have the burden now. He has proved the agreement, the debt, the failure of his attomey to meet the standard of care, and the damage. c. Ms. George Failed to Use a 2002 Valuation Date of the Marit ts and Improperly Allowed Mr. Cornell's 2003 Income to Be Divided in the PSA. Ms. George does not deny that she provided asset lists to Ms. Silver’s attorney that included Mr, Comell’s separate earnings for 2003. Nor does she deny that Mr. Cornell had left the marriage in 2002. Ms. George’s defenses are that (i) the question of whether there was “mutuality of intent” would have prohibited a claim by Mr. Cornell that the marriage JOHNSON | FLORA | PLTE’S OPPO. GEORGE DEFTS’ MOTION FOR 2505 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 19 Seattle, WA 8121 () 206.006.5566 () 206.682.0075oer 474k eD 40 n 12 13 14 15 16 7 18 19 24 22 23 24. 25 was defunct as of January, 2003; and (ji) that Mr. Comell told Ms. Silver in an e-mail he would agree to splitting 2003 income, when he was entirely unaware of his rights under ‘Washington law, absolves Ms. George of her duty to inform her client of his right to assert a much earlier date. Ms. Silver does not discuss it in her Declaration; Mr. Comell does and he states that the parties knew it was over. These arguments fail. @ {utuality of Intent js a Question of Fact re Is Substantial Evidence that Mr. Cornell Could Have Established that the Marriage was Defunct as of January 2003. A defunct marriage is one in which the conduct of the spouses indicates their will to renounce the marriage without any intention of ever resuming the marriage relationship. 19 WAPRAC $6.1, Black's Law Dictionary states that a marriage is defunct when the spouses are within the statutory category of “living separate and apart.” For purposes of RCW 26.16.140, “a husband and wife live separate and apart when they have separated permanently rather than just physically, when they no longer have the will to continue the marital relationship, or when they manifest a ‘decision to renounce the community, with no intention of ever resuming the marital relationship.” The Supreme Court of Washington has held that the status of living seperate and apart can only be invoked by the consent of both parties. Seizer » Sessions, 132 Wn.2d 642,657, 940 P.2d 261, 268 (1997). Courts routinely describe the rule of law as involving, both parties evidencing an intent to renounce the marriage. MacKenzie v. Sellner, 58 Wn.2d 101,105, 361 P.2d 165, 167 (1961) (“[When] the spouses, by their conduct, indicate that they no longer have a will to union, then neither may reap the benefits of the community property law.”) In the cases where courts have found that the marriage was defunct, the facts generally involve situations where both parties have demonstrated that the marriage is over, See Aetna Life Ins. v. Bunt, 110 Wn.2d 368,373,754 P.2d 993, 996 (1988); Togliattiv, Robertson, 29 Wn.2d 844, 845, 190 P.2d 575. Determination of whether or not a marriage is deftunct is based on the particular facts of each case and may include any one of or (and JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 2505 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 20 Seattle, WA 98121 () 206.996.5566 (f) 208.682.0675ao 5 @ PW Seana 12 13 14 15 16 7 18 19 20 21 23 24 25 26 ‘more commonly) any combination of the following: 1) physical separation of the spouses; 2) commencement of domestic litigation; 3) giving of public notice; 4) the existence of an express or implied property management and characterization contract between the spouses; | and 5) and other such conduet by the spouses. Had he been properly advised by Ms. George, Mr. Cornell could have taken the position, with substantial evidence, that both parties intended to renounce the marriage. For his part, in July of 2002, Mr. Comell was in was in rehab for alcoholism in California and | Ms, Silver visited him. Although they had lived apart for times before that, he told her at that time that I was not returning home. (Cornell Decl., $4) Obviously, by his leaving the | house and cuting off communication with Ms. Silver except for contact regarding their daughter, and his explicit statement to Ms. Silver that the marriage was over, Mr. Comel! exhibited that intent. Importantly, though, Ms, Silver exhibited a similar intent. After she returned to Seattle from that July visit, Ms. Silver changed the locks on the doors to the couple’s West Seattle home and sent Mr. Comell’s personal belongings to storage. (Id. 4) Mr. Comeil never set foot in the West Seattle home again except to visit their daughter Lily. Both parties knew that the marriage was over. (1d) These actions indicate physical separation by the spouses, an implied property management characterization by Ms. Silver, and other conduct by each spouse that the marriage was over. “Mutuality of intent” was evidenced, and whether Mr. Comell could have proven that mutuality of intent is a genuine issue of material fact for the jury in this case to determine. Even if Mr. Comell told Ms. George that Ms. Silver did not want the divorce, Ms. George is not absolved from her duty to determine when the marriage was defunct based on the actions of the parties, Mr. Hersh opined that “it is the duty of the reasonably prudent family law attomey to advise her client of the law in her particular jurisdiction and how the facts of her client’s case apply to that law.” (Hersh Decl. 40) It was Ms. George’s duty to determine when the marriage was defunct and advise Mr. Comell of his legal rights. (Id.) JOHNSON | FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 2505 Second Avenue, Suite 600 PARTIAL S. J. RE: ACCOUNTING ISSUES - 21 ‘Seattle, WA 98121 () 206.986.5566 (?) 206.682.0675» Soeoaraanra n 12 13 14 15 16 47 18 19 20 24 22 23 24 25 26 ‘Mr. Cornell separated from Ms. Silver in 2002 and there was substantial evidence that the marriage wes defunct before the beginning of 2003. Had this been pursued, as the standard of care required of Ms. George, it would have made a huge financial difference to Mr. Cornell. Gi) Statements By Mr. Comell to Ms, Silver Before Being Advised of ‘Washington Law Do Not Absolve Ms. George of to Advi ‘Ms. George argues that because Mr. Cornell emailed Ms. Silver offering to split their is Rights Under assets as of the date of the divorce, Ms. George is somehow relieved of her duty to inform her client that he was entitled to all of his assets eamed after the date the marriage became defunct. The point is that the assets weren’t split. Because of Ms. George’s negligence, Ms. Silver came out several million dollars ahead. Mr. Comell is not an attorney and it was Ms. George’s duty to advise Mr. Comell of his rights and maintain a negotiating position consistent therewith, Mr. Hersh agreed that “Mr. Comell could of course choose a different date for the purposes of negotiation but such a choice must be an informed decision based on the adequate advice of Ms. George that his rights entitle him to an earlier date. Ms. George’s failure to do so is a breach of the standard of care.” (Hersh Decl., #41) Furthermore even if Mr. Comell knew and understood his rights and chose the filing date as the date to separate his property, Ms. George, by her own admission, valued the assets as of December 31, 2003 instead of the October filing date. This was a breach of the standard of care by Ms. George. (Hersh Decl, (42) (® The Attomey Fees Have Been Properly Segregated Plaintiff agrees that he may only recover those reasonable and necessary fees incurred as a result of the negligence of Janet George. Ms. Ferguson offered as a preliminary number the amount of attomey and accountant fees that Mr. Comell had paid in post-dissolution proceedings. Mr. Comell asked the attorneys and accountant who worked on the case to provide the amount of fees incurred as a result of the negligence of Ms. JOHNSON } FLORA PLTF’S OPPO. GEORGE DEFTS’ MOTION FOR 12505 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 22 coaster (0) 206.286.5566 () 206.052.0875,oot one won 10 " 12 13 14 15 16 7 18 19 20 24 22 23 24 25 26 George. Attomey Neal Hersh, attorney Marty Singer, attomey Linda Ebberson and accountant Lisa Ferguson have all provided declarations stating the amount of their fees that ‘were, to a reasonable degree of certainty, reasonably and necessarily incurred as a result of the negligence of Ms. George. (See Hersh Deol., Declaration of Marty Singer, Declaration of Linda Ebberson, and Ferguson Decl.) Each of them relies on the negligence opinions offered in the Declaration of Neal Hersh. The jury will accordingly have an adequate factual basis—the testimony of the attomeys and accountant who themselves provided the services and charged the fees—upon which to determine a specific amount of attorney’s fees in this matter, VI. CONCLUSION Plaintiff respectfully requests that this Court deny the George Defendants’ Motion For Partial Summary Judgment Re: Accounting Issues. DATED this 19th day of May 2008. TWH : / ‘Mark Johnson, WSBA No. 8463 Attomeys For Plaintiff JOHNSON | FLORA PLTE’S OPPO. GEORGE DEFTS’ MOTION FOR 2505 Second Avenue, Suite 500 PARTIAL S. J. RE: ACCOUNTING ISSUES - 23 Seattle, WA 98121 () 206.986.5566 — () 206.682.0875