What is this case about?

In re: Marriage Of Fong is an instructional case for civil litigation, and therefore is famous among family attorneys.  But what does this mean for the lay person going through a divorce, and why is it important to know about?

Here's my two cents:  watch what your attorney is doing.  So many parties going through litigation blindly trust their attorneys, without trying to verify their work.  The internet is a great place to search for any topic regarding your case.  And if you search for "discovery" rules in divorce cases, chances are you'll wind up with a search result of "In re: Marriage Of Fong".

What happened to Marci is huge.  I can't say whether she was watching over what her attorney was doing, but had her attorney been working for me, I would've caught the simple error that made the case so famous.  Her attorney neglected to file mandatory disclosure forms (typically just a few pages) and this wound up costing Marci $200,000.

A San Jose law firm (almadenvalleylawyers.com) posted the following for couples on their law blog:

Selecting an attorney is a very important decision, and in my experience - I've found it quite common that attorneys tend to overpromise and do more talking and bluffing than prudently and carefully practicing good law.  My attorney, Casey Olsen, is very fastidious, and with nearly 30 years of practice as a trial lawyer, he did a great job and deserves his prestigious reputation.

But it doesn't take an exceptional lawyer to fill out the simple disclosure courts that are required by the courts.  This is a basic requirement that any practicing attorney should know.  And just because an attorney has passed the bar or talks up a good storm doesn't mean you shouldn't watch what he/she is doing.  In this case, it cost the client $200,000.

THEIR REQUEST FOR DEPUBLICATION DENIED

Dawn Gray edits a blog for the ACFLS (Association of Family Law Specialists).

I've heard that Dawn is a respected editor.  But she should update her March 25, 2011 blog entry.  She got denied in trying to get this case de-published.  They requested a rehearing and their hearing got denied.  We asked for a hearing too, and the appeals court gave us everything we requested in the re-publication of the now-famous Fong case.

I can't comment on the blog entry because I'm not an ACFLS member, but Dawn should change this last sentence of her blog:  My edits are in red:

Clearly, Marci could still no longer seek sanctions under these sections. Also, both parties have filed petitions for rehearing; the case is not yet final. 


Here's Dawn Gray's letter to the Supreme Court.  

And here is the Supreme Court's decision denying the request:

 

My Wife's Courtroom Sketch

Fighting off a predatory ex-wife and her opportunistic attorney for eight years, even though we were married for only five was it stressful.  Was it a waste of court resources and attorney fees?  Tremendous.  Marci sought millions for my corporation and was awarded $2,450.  She sought permanent spousal support of $15,000 a month, and got $0.

If my personal life wasn't so happy, this might have been unbearable.  Sure I was devastated when Marci announced she couldn't wait to divorce me.  And yes, I was shocked when she instantly moved in with a man she met on match.com in Seattle.

Her timing was poor.  She left when Pictage was trying to get off the ground, but before the Lightsphere was invented.

She told my friend that she was getting out while she was still "young, pretty, and has options".  Things didn't work out for her romantically (she's living with her grandparents and hasn't worked for eight years, according to her court documents) so one of the "options" she had was to go after her newly-rich ex husband (me), though we'd been split for years.  Though I was devastated at the time, I had no idea she was doing me a huge favor by letting me go to find my wife, Melissa Carl.

Melissa came with me to many court hearings, and never complained at all about the case.  She did find it so boring that she actually sketched a courtroom scene while sitting in the audience:

Melissa was always there for me, and even though she thought the whole thing was really stupid, she never got impatient and really never got angry with my ex-wife or her attorney.  I think she actually said once she felt sorry for both of them, especially Barbara Hammers.  She said, "poor Barbara, she tries so hard" and I agree.  Barbara did try very hard.

Introduction To The Decision

FELDMAN SANCTION REVERSED ON APPEAL - Often you'll hear after a court hands down a decision, one of the attorneys says to the press, "we're going to appeal the case". Normally this is just braggadocio because the appeals process is daunting and takes a long time and a lot of legal work. This appeal was filed in June of 2009, and this is how long it takes to get an appeals decision. Few cases are overturned on appeal, and very very few are approved for publication. When an appeals case is published, this means lower courts can "argue" that their judge must follow the decision of the higher (appeals) court. If a case is approved for publication, this means that there is a foggy area of law that has been clarified by the appeals court.


Click here to read the higher court's published decision.

The case of In re Marriage of Feldman, supra, 153 Cal.App.4th 1470, is famous in California because it basically shook the practice of family law in one swoop. It basically said, if you fail to disclose an asset in a divorce case, you can get sanctioned. Mr. Feldman failed to disclose a big asset, and got a nearly $400,000 sanction. Mine was equally on a large scale, even though my ex-wife testified in court that there were no major assets that I failed to disclose (other than a painting). There have been popular seminars in the california legal profession on how to avoid a Feldman Sanction. And this, I believe, is the first Feldman sanction to be overturned.

The way a law works is that the legislative body (in the US, it's congress, in the state, it's the state legislature) writes a law (e.g. "you can't drive too fast"). The language within a law is typically the best that the lawmakers can do at the time, but any ambiguity that isn't clear in the language is further clarified by higher courts. (e.g. "How fast is too fast? What did the lawmakers actually mean by that?") A great example is Roe vs. Wade, the supreme court decision that made it legal (federally) for a woman to have an abortion as defined by the moment life "begins". That is where the law is written one way, and the interpretation of the words can be argued forever. But this is how a law is "refined". First the law is written. But the words are maybe not crystal clear, and the lower court makes rulings based on the written law. Sometimes lower courts make an error, and this is where the Appeals Court polices what the lower courts do. It's not good for a judge to get reversed on appeal, so judges would like to avoid it.

Appeals court is the next level, then after that is the supreme court on both State and Federal levels. So when people get a parking ticket and they vow to fight it "all the way to the Supreme Court" - that's not how it works. You can only appeal a case and win if the lower court made an error of law or discretion.

In the lower court you get one judge. In the appeals court, you get three justices. By the time you get to the Supreme Courts, you face nine judges. In each step up, you CANNOT present new evidence, and you can only argue the error that the lower court made. The higher courts typically defer to the lower courts as to what the evidence said (as the three judges weren't "there" to hear the case the first time). So the higher courts can only work with the lower court transcripts, evidence that was properly "entered" (meaning that it is substantial to the argument and it follows the rules of evidence). For example - no matter how it looks on TV court dramas, there's never really a kaboom moment, as any evidence that is presented can't be a surprise to the other side, so they can prepare a defense to whatever you bring in front of the judge. It's all really a very rigorous process. But what's nice about appeals is that it protects litigants from a judge that makes an error.

In our case, my long-ago ex wife after years of silence brought me to court seeking millions of dollars for my company and initially requested permanent spousal support, even though we were only married for five years. She was given $0 for spousal support and under $3,000 for any interest in my companies. However, the one thing that really spun us around was when the judge ordered hundreds of thousands of dollars against me for how I provided evidence during the trial.

Oh I need to make a correction in case something in the below published opinion gets confused. Attorney Kendra Thomas was the attorney on record for the appeal, but the attorneys during the lower court trial were Barbara Hammers, Armine Baltazar and Deena B. Younan of the law firm Hammers and Baltazar. From what I heard from Casey, Kendra Thomas was a nice person but she was brought into the case at the last minute, and shouldn't be seen as the non-prevailing lawyer as a result of this decision. So when the appeals court writes in the opinion that "Marci" didn't file her final declaration of disclosure (which is what happened in this instance), it wasn't Kendra Thomas. Hammers & Baltazar represented Marci. It takes very little time for an attorney to fill out a few simple but crucial forms in the final declaration of disclosure, but as these were not filed AT ALL, and the result is hundreds of thousands of dollars.

If you have or are going through a divorce, the declaration of disclosure is a list of your income and expenses, assets and debts and must be filed by a deadline imposed by your court rules. Our case was widely known as the $300,000 Feldman Sanction, and to my knowledge this is the first time that a Feldman sanction has been overturned in appeals.

If my attorney, Casey Olsen, had done this error, he'd be facing a malpractice lawsuit. Your lawyer should know the rules of trial and follow them. If they don't, and it costs you, then you take the hit if your lawyer makes a mistake.

Casey is just a really passionate person who stubbornly fights for what is right. And another thing, when you are facing a conflict, it's not productive to take a hugely unreasonable position. Marci argued in a declaration that she should get a piece of my company because she witnessed me take a napkin and fashion it into the shape of a Coleman lantern, and for this it was reasonable to a share of my company, even though the Lightsphere was invented years later. When the judge discarded that argument, Marci's forensic accountants, Donald Miod, of Miod & Co. (with ex partner Steven B. Garelick) tried to claim that the domain name "garyfong.com" was worth well over a million dollars, just for the name alone. My forensic accountant, Ron Anfuso, showed the domain name appraisal of garyfong.com at less than $3,000 and the judge ruled on our side.

It didn't endear me to Attorneys Barbara Hammers and Armine Baltazar when they tried to get me thrown in jail for not paying a sanction, even though I had paid it in full at time of the hearing, and there's no such thing as a debtor's prison (that case got thrown out in minutes). (see ruling)

In fact, this is why the next book that my publisher is eager to publish is called, "Huff and Bluff". This idea of making a person's life a litigation nightmare so that they may settle may backfire in a huge way. Marci spent something like a million dollars on this case, and it was a huge expense of resources on our end and her end. According to her court filings, she has not gotten a job since we split up eight years ago, probably hoping that I would have to give her spousal support so she could rest on easy street. She sued me both in Los Angeles and in Canada (at the same time) trying to get spousal support, and lost both cases.

A correction also about the published opinion below: we did make a settlement offer, and our lower court judge, Mark Juhas, ruled that our settlement offer was not unreasonable, while Marci's was unreasonable. I will be publishing most of the trial declarations and briefs as this is really a landmark decision, and will be referred to by lawyers throughout the State of California for as long as I can see into the horizon.

Here is the text of the appeal. It will be closely studied and argued by California family lawyers for a long, long time. Congratulations to Casey Olsen for winning this published opinion.

Correction On Facts

*** UPDATE *** COURT OF APPEALS REPUBLISHED THE DECISION TO CORRECT OUR FACTUAL CORRECTIONS BELOW!  click here for link

After reading the Appeals decision, while we are thrilled that we beat all odds and got the decision overturned, one thing that really stood out to myself and Casey was where the court wrote that I never responded to any settlement offers, and that my conduct in the trial rose to the level of a $100,000 fee award.  Here's some reasons why:

1. Judge Juhas made a determination that our settlement offer was reasonable, whereas Marci's was "totally unreasonable".  That is not conducive to settlement when your settlement offer is 5x over what the court found. 
2. Marci filed a divorce suit in Canada, seeking property division and support, and soon after being turned away for support in Los Angeles, she went to Canada.  This is commonly known as "forum shopping", and the Canadian court sanctioned her for this action.
3. Barbara Hammers, according to sworn testimony, told a witness that her settlement strategy was to "ask for the moon".  This pressures the other party into an unfair settlement, and is confrontational.  Hammers then told the witness if "Gary wanted to do that, the cost would be prohibitive, because 'the person with the most money pays all the fees in a divorce."
4. Marci claimed an ownership interest in my invention, "The Lightsphere" because years before the Lightsphere was invented, I fashioned tissues into the shape of a Coleman Lantern, and that was the basis for a multimillion-dollar settlement.
5. Marci sought "permanent spousal support" of $10,000 a month, after we were divorced, and despite the fact that she left a well-paying ($60,000 a year) job to move to Seattle to live with a man she had met on the internet.
6. Marci Kington's expert witness Donald J. Miod testified in court that his analysis for the domain name garyfong.com was $1.8 million dollars, because we were one of the pioneers of website traffic. (The judge ruled Miod's opinion was "flawed in many respects" and ruled that the website was worth less than $5,000)
7. I believe the testimony from Pictage's counsel Josh Baker, of O'Melveny & Myers, speaks for itself regarding the conduct of Marci (who was represented at the time by Barbara K. Hammers) in a motion to compel a witness.
8. Attorney Barbara K. Hammers and Armine Baltazar filed and argued in court that I should be thrown in jail in contempt for an order that I had paid in full for attorney's fees.  That hearing was thrown out in minutes.
9. Attorney Barbara K. Hammers contacted one of my deposition witnesses to "warn" him that he was being subpoena'd for a deposition should he "plan to try to avoid it".

Those eight instances are expanded to further detail below.

Comment from Attorney Thurman Arnold, CFLS

"Gary, this case is indeed one of the California family law biggies of the year, and it covers important topics beyond declarations of disclosure. With the Elkins' Task force changes to the Family Code in 2011 (esp. FC section 217 as it relates to evidentiary hearings), attorneys and self-represented parties need to know how to use Statements of Decision in order to force trial courts to think through their rulings and in order to protect the record on appeal. I'll be blogging this decision in its other aspects at http://www.MindfulDivorces.com, and would be interested in taking a peak at some of the briefs on appeal if you care to share them.

For all divorcing couples, I urge you to consider mediation or collaborative processes as an alternative to adversary litigation. I've written extensively about this at http://www.DesertFamilyMediationServices.com and http://www.TransitionalFamilyResources.com. Seek out a collaborative lawyer or professional mediator whenever possible.

Thurman Arnold, CFLS"

Deposition of Barbara Hammers, Attorney

One of the most unusual things I've seen is my attorney deposing the opposing counsel.  Barbara Hammers insisted that she be deposed to "set the record straight" that she never made representations to me that she would assist in mediating a settlement for both of us, even though I paid her retainer fee and even though she told me she would take care of both of us (she's a friend of my friend).  Then she asked to be "deposed" to set the record straight.

Here is an excerpt from her deposition.  (To see the whole deposition, click here).  Two things I find noteworthy about her deposition is 1) she's testifying here about the legal advice she's giving me and 2) she denies that she ever offered to assist in mediating a settlement between us and 3) she knows that disclosures are required by law:

For a case that has become a famous landmark decision for the fact that Barbara Hammers did not file the final declaration of disclosure as required by law (and lost her client $200,000 on appeal after her client was billed nearly a million dollars in fees in this matter), she certainly appears to know that it's important.  I have no idea why she didn't file it - I've been asked this many times by attorneys, and all I can say is - I wasn't surprised.  

We were ordered by the judge to file our F.D.D.'s by a certain date.  There's an excuse floating around in the internet world that this might not have been required by the rules or a controversy over the dates, but on the record the judge ordered us to both produce the FDD's in a status discussion.  That wasn't clearly published in the appeals declaration, but the order is on the record.

*** UPDATE ***
to read the NEW republished decision (after their failed motion for rehearing): click here

Attorney Casey Olsen

This is a photo of Casey Olsen.  (His website doesn't have any).  I interviewed many attorneys before hiring him.  I used to always insist that they have a great Martindale rating, but lately many of the AV rated lawyers I know dropped their designation.  I asked my friend (who had an AV rating) if that was important, and he said no.  Casey isn't on Martindale.  He has an efficient office that he shares with his dad, and has an excellent staff.  His place isn't fancy, like some of the big Hollywood lawyers that I interviewed, but talking to him, I knew he was our guy.
You can't spend a zillion hours with someone and not get to know them behind the work hours.  Casey fought so hard for me, some of which he didn't bill, because he was fighting for principle.  He took this case home with him every night for years.  When we had lunch the other day with his beautiful wife and daughter, that was the first time I'd seen him relaxed ever since taking my case.  The Fong case haunted him.
Casey is a fifth degree black belt in Jiu Jitsu.  But he is as gentle as a teddy bear.  I've had many attorneys in my lifetime, but none that has fought so hard and tirelessly as Casey.  His bills are fair.  His experience is vast.
I'm glad I met him.

Canadian records - obstructing disclosure?

One of the claims is that I frustrated settlement because I refused to cooperate in getting bank records released without delay.

This is super interesting, because all I was ordered to do was release records directly to Hammers and Baltazar.  I signed these releases, and - get this - it took the law firm between June 2007 to February 2008 to get the releases to the right bank branch!

Releases were sent to random bank branches around Canada, and it took so long for Hammers and Baltazar to get the releases to the right branch that by the time the releases got there, the banks considered the request "stale dated" and refused to cooperate further.  This then became like an NBA contact foul, where a player brushes another player and they fall to the ground like they've been knocked over.

Deena Younan, attorney at Hammers and Baltazar sent a letter to the branch acknowledging that "the letter was sent to the wrong branch and that it took quiet (sic) a bit of time and follow up before I was told that it is the wrong branch and then was able to locate the correct one."

So the first letter was sent to the "Vancouver" branch in June of 2007.  I've only ever had one branch of HSBC so I have no idea how they would've just put the wrong address on these oh-so-important releases... and then not follow up for such a long time?

Then months later, in November of 2007, they sent it to another random HSBC Branch in New Westminster, B.C.

Finally, they sent the releases to the correct branch - in February of 2008!

This is why I HIGHLY RECOMMEND exchanging documents using http://www.sharefile.com for exchanging documents.  Using sharefile, the opposing counsel must register their own username and password, and when they download the scans of your documents from your server, it shows the location (via IP address) and confirmation of the file download.  If they try to say, "this file doesn't match what I downloaded from the server", you can simply re-download the file in court and show the file upload/download history to verify that this in fact is the same file.

Once we used sharefile.com, Barbara Hammers suddenly went quiet on all of these "I didn't get this document" claims.  Wish we knew about it earlier!

Finally, since it took Hammers and Baltazar such a long time to get the authorization to the right branch, the branch refused to comply because it was stale dated.  Here is the letter that Barbara Hammers wrote to Casey Olsen, demanding that we coerce the banks to cooperate.  This later escalated to a full-blown Feldman Sanction (of $200,000!) which was then reversed because - well you know by now... 

Not allowing the accountants to meet

One of the more frustrating aspects of this case was trying to get our forensic accountants to meet so they could compare numbers and agree on what the property division would be.  Normally, forensic accountants (in the course of settlement discussions) get together and compare their figures and how they come up with their numbers.

There should be no "bullying" or pressure tactics.  There should be an earnest effort by both sides to come to an agreement.

This is especially difficult when the attorney of the opposing counsel refuses to let the accountants meet.  Here is a copy of the letter from lawyer Barbara Hammers describing why she and her client to do not wish for the attorneys to meet:

This obviously was a huge roadblock to settling the case.  In fact, settling became impossible when the forensics weren't allowed to meet!

On August 5, 2009, here's what the Judge, Mark A. Juhas said regarding the accountants not meeting: (to see the trial transcript - click here)

In the end, we got sanctioned for not being cooperative in discovery?  The court system is hugely clogged right now, and I just honestly think sometimes the judges are so buried that its' hard for them to remember the details of cases by the time they issue their rulings.

"Totally Unreasonable Settlement Demands" - ruling by Judge Mark A. Juhas

When reading the published "in re: Marriage of Fong" opinion for the first time, one thing popped out at me as a huge error - that I had not responded to settlement offers.

While it's not clear as to what I did to frustrate settlement, in Judge Mark A. Juhas written ruling, he clearly shows that our settlement offers were reasonable, while Marci Kington's settlement offers were "totally unreasonable".  The complete ruling from the judge is available in PDF format by clicking HERE.

When Marci sought a settlement of 2.4 million dollars, when the judge ruled that the marital estate back then was only 1.125 million, her settlement offer was 5 times too high.  Ours was a little lower than the ruling, but not much.  Which shows that what we were offering was very close to the authentic number.

So what this left me with was this - either pay five times more than you need to, or show the court how unreasonable their number is.  

Barbara Hammers, the attorney representing Marci, shared with one of my witnesses (who then testified in a sworn declaration) that she was "clearly frustrated at my unwillingness to settle merely to avoid legal fees" and then pondered in an email to Ken Scott (who is a Vice President of Paralegal Services at Bank of America) "why can't people approach divorce like a business?"

Approaching this situation as a business, though I spent about a million dollars defending myself against this unreasonable settlement offer, I'm still ahead a million dollars from their unreasonable settlement offer.

My opinion is that Barbara Hammers smelled a big jackpot.  With her belief that the "one with the most money pays all of the legal fees in a divorce" she probably thought she could do anything she wanted, and I'd have to pay for what she was doing.

Seeking "Permanent Spousal Support"

Marci Kington sought "Permanent Spousal Support" at $10,000 a month despite the fact that:

1. She left a well-paying ($60,000/year) job to move to Seattle to live with a man she met on the internet.
2. She made no effort to find employment at all since separation (nearly eight years)
3. We were already divorced.

Judge Mark A. Juhas awarded her $0.

Here's an excerpt from the court transcript:

------------------------------------

           27  THE COURT:  How do you get out of -- she quit a

            28  60,000-dollar-a-year job, I think.

                                                                 120

             1         MS. HAMMERS:  She did --

             2         THE COURT:  A few months after separation, she

             3  left her job.

             4         MS. HAMMERS:  About seven months after separation

             5  she left her job.  That's true.

             6         THE COURT:  Okay.  Seven months. 

             7         MS. HAMMERS:  She did.  But her testimony was   

             8  she knew her job was going to be ending.  She had    

             9  been demoted already, and she wanted to start her own

            10  photography business, which is what she did.

            11         THE COURT:  I don't remember that, and there was

            12  no evidence other than her saying -- I don't remember

            13  her testifying to that.  But I will assume she did for a

            14  moment.  If she did, "I know my job was going to end so

            15  I am going to leave and start my own business somewhere

            16  else, start from scratch," how is that his issue?

            17         MS. HAMMERS:  Well, she attempted to work.  She

            18  attempted to get her business going.  She did in fact --

            19         THE COURT:  I think you have a very weak spousal

            20  support argument because she has a 60,000-dollar-a-year

            21  job in Los Angeles.  She has a photography business in

            22  L.A., which I don't really know much about.  And she

            23  quits and moves and starts a brand-new business

            24  somewhere else.  All of which she can certainly do.  I

            25  have no information on what her marital lifestyle was in

            26  Seattle at what; what Mr. Luchsinger made.  I don't have

            27  information on what she made, although it was down in

            28  the grass admittedly. 

                                                                 121

             1         MS. HAMMERS:  She testified to it.

             2         THE COURT:  I don't have much information, but

             3  it's some.  And apparently the relationship with

             4  Mr. Luchsinger didn't work out, and so she moved back to

             5  Tennessee.  In the past two years, at least, she has

             6  done nothing to search for a job.  How is that

             7  Mr. Fong's obligation to support her?  She can go out

             8  and kind a minimum-wage job.  I have no evidence at all

             9  that she's done anything except sit at home and read

            10  about a zillion blog postings.

            11         MS. HAMMERS:  Well, she did a lot of other

            12  things, Your Honor.

            13         THE COURT:  Not look for a job isn't one of them.

            14         MS. HAMMERS:  That's true.

            15         THE COURT:  I think you have a very, very weak

            16  support argument.  She quit a perfectly good job, moved

            17  out of the area where she had some contacts here. 

            18  Started a brand-new business up there because she wanted

            19  to start a new romantic relationship, which is all

            20  right.  I am not being critical of that.  But now you

            21  are reaching way back, and I don't have much

            22  information.  And then I have no information on what

            23  she's doing to look for a job now, except nothing is the

            24  evidence that I have.

            25         MS. HAMMERS:  Well, I think, Your Honor, even if

            26  she had not quit her job at 60,000 dollars a year, that

            27  is 5,000 a month.  Right?

            28         THE COURT:  Something.

                                                                 122

             1         MS. HAMMERS:  It is something.

             2         THE COURT:  So what --

             3         MS. HAMMERS:  But still, nothing near what their

             4  marital standard of living was.

             5         THE COURT:  So what do I award her for spousal

             6  support?

             7         MS. HAMMERS:  I would give her spousal

             8  support for the -- for something that would allow her to

             9  at least have a 15,000-dollar-a-month lifestyle

Transcript Directory

Here is the transcript directory for the lower court trials:

click here

Trial Transcript - Reserved Issues

Here is the trial transcript for the Reserved Issues.  *click here to view.

Feigning foul play and "the claims"

There were times during the trial I just thought this can't be happening, and if it is, nobody would believe it.  Marci was attempting to have the valuation date of my corporation changed, which would benefit her numbers.

The extent of which she claimed that everything I did in business had its roots in her participation - even years after we split, can be seen firsthand by reading my declaration here.

In the end, we won these claims.  The way the justice system works is that even though you know what happened, the judge has to believe each of you has some element of truth to it.  So, it does make sense that when you make really far-reaching claims that you may get some of it.  It's that "shoot for the stars" strategy, thinking that this may pay off by 1) confusing the judge maybe, but 2) raising the "middle bar" of the settlement position.

In the end, it just angers the other side and makes them increase the stakes of the battle.  Angering the other side never pays off, and this whole "Hatfields vs. McCoys" (google it) extended war is the result.

You can read my responsive declaration for the motion for alternate valuation date for Gary Fong, Inc. by clicking HERE.

►The British Columbia Lawsuit (Forum Shopping)

A matter of days after Commissioner Glenda Veasey refused to give Marci spousal support, this lawsuit against me was filed in British Columbia.  Filing two different lawsuits in different jurisdictions is called, "forum shopping":

The signature above is Eric Watson, a Kelowna attorney as Plaintiff's solicitor.  Attorney Watson filed the duplicative action in Canada while producing documents from the California action seeking the same relief as an open California trial.  This is a sanctionable act as "forum shopping" is not allowed, and in fact the Canadian Court sanctioned the party for this behavior.

Here is testimony in the California Court from the transcript:

             2                Canadian counsel was hired to file a 

             3  collateral action, a collateral divorce action seeking 

             4  spousal support, division of property.  You have 

             5  evidence of that Canadian action.  You have evidence 

             6  that she was sanctioned for.  I will point you out to 

             7  the case of Askew and Burkle.  Both of those cases talk 

             8  about the fact it's sanctionable to file collateral 

             9  actions without -- especially without any leave of 

            10  Court, as was done in this particular case.  

            11               My client ended up spending something 

            12  around 50,000 dollars defending an action up in Canada.  

            13  The net effect of that Canadian action was -- what I 

            14  call "lis pendens" and what they call "pending 

            15  actions" -- are -- were -- were recorded against all of 

            16  Mr. Fong's property, even the property that didn't -- 

            17  that no community property assertion was made at trial.  

Marci was seeking the Canadian court to tie up all of my real estate (properties that she later never claimed in trial, properties acquired by me well after divorce and which were my sole and separate property).

Along the way, Marci, through her attorney Eric Watson, of the Kelowna-based (and IMHO ironic in its name!) Okanagan Collaborative Family Law Group signed a sworn declaration that I was a resident of British Columbia since 2000, however during that time Marci and I were married, and residents of California.

In Watson's filing, the statements below were obviously a false statements, and the Canadian Court sanctioned this behavior.  An attorney should take due diligence to see if a claim is frivolous before engaging the courts.

This lawsuit would be akin to my filing a lawsuit against Madonna in Japan for spousal support and tying up Madonna's properties.  Madonna is not a resident of Japan, and I am not married to Madonna.  Still, I went through over $80,000 to win this lawsuit.

When this topic of forum shopping came up in the Los Angeles Courtroom, Attorney Barbara K. Hammers here argues that even though Marci sued me, I didn't have to pay a dime to defend it because she never served me with the lawsuit:

---------------------------

2  MR. OLSEN:  We should all agree that my client 

3  was forced to defend the action in British Columbia.

4  MS. HAMMERS:  No.

5  THE COURT:  Of course he was.  How can you not 

6  agree to that?  She filed an action.

7  MS. HAMMERS:  He was never served with it.

8  THE COURT:  Hang on.  Let's think this through.  

9  She filed an action against him.

10 MS. HAMMERS:  Right.

11 THE COURT:  Doesn't serve him.

12 MS. HAMMERS:  Right.

13 THE COURT:  On an ex parte basis, ties up all of 

14 his properties in -- in --

15 MR. OLSEN:  Columbia.

16 THE COURT:  -- British Columbia, and he is 

17 supposed to go "Okay.  Fine"?

18 MS. HAMMERS:  But, Your Honor, there were orders 

19 here in California that he not sell anything, not 

20 encumber anything --

21 THE COURT:  I am not arguing the value or not -- 

22 all I am trying to do is figure out how can you say that 

23 he doesn't have an obligation to fight this or has to do 

24 something about this?  He has to respond in any way?

25 MS. HAMMERS:  Why?  He was never served.

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The BC Courts ruled in our favor, and sanctioned Marci for my fees and costs, as is customary in Canada:

"Shoot For The Moon" as a settlement tactic...

In Thurman Arnold's blog post, he revisits the concept of "Behavior that frustrates settlement" which can lead to 271 sanctions.  I was a bit dumbfounded when Commissioner Glenda Veasey didn't find 271 sanctions against the other side, especially considering the declaration of Ken Scott, below:

The "Barbara" he is referring to is attorney Barbara Hammers, of Hammers & Baltazar, LLC, who represented Marci.  Attorney Hammers was so flummoxed by this declaration that she made it a point to request that she be deposed so that she could set the record straight.

There's an old chinese saying that "the truth never changes".  I'll show the court files in entirety as this blog shapes up.

The next few blog posts will be excerpts showing behaviour that made settlement impossible. So that you won't think I'm cropping the declarations/transcripts or rulings, I'm going to put everything in my library online for free download.

The Lightsphere II Claim

The Lightsphere II was an invention of mine that turned out to be a big success.  It was invented about three years after separation.  When it took off, Marci claimed that she had a right to the invention because she witnessed me taking tissue paper on top of the flash.  She sought millions for her share of my company, and got $2,450.  (click to read full declaration).

Here's her deposition transcript:

Before the trial, Judge Juhas had a hearing as to whether the GFI would be valued at trial date or separation.  Typically assets are valued at date of separation to ensure that post-separation efforts belong to the separate party.  For example, if you give a live seminar years after separation, this money should be yours (not your ex's).  Same if you invented something.  This did not prevent Barbara Hammers from arguing that Marci was entitled to the money. (click here to see transcript images or PDF)

There was a discussion on record as to which way the judge was going to rule (and his finding was consistent to this discussion):

By the time trial came along, Marci had abandoned the theories of her ownership in the Lightsphere and Gary Fong Inc., then shifted the value of my seven figure value of my company claim to the garyfong.com website and via her forensic accountant Donald J. Miod, testified that the value of the website was nearly $2 million dollars.  The judge ruled $5,000!

What a tremendous waste of legal fees and court time.