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1 BRYAN CAVE LLPJohn W. Amberg (CA State Bar No. 108166)2 Jenna Moldawsky (CA State Bar No. 246109)120 Broadway, Suite 3003 Santa Monica, California 90401-2386Telephone: 310-576-21004 Facsimile: 310-576-22005 Attorneys for Countrywide Home Loans, Inc.6789

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SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF LOS ANGELES, WEST DISTRICT

18 Countrywide Home Loans, Inc.'s ("Countrywide") motion (1) for monetary sanctions19 against Defendant Joseph Zernik ("Zernik") for his repeated violations of the July 23, 200720 Protective Order directing Zernik to communicate solely with Countrywide's designated21 counsel, Bryan Cave LLP, regarding the present action and no other Countrywide officers or22 employees ("Court Order"); (2) for an order to show cause why Defendant Joseph Zernik23 should not be held in contempt and sanctioned accordingly for his continued violations of the24 Court Order; and (3) for a modification of the Court Order to include officers and employees25 of all Countrywide affiliates, including Bank OfAmerica Corporation, so that Zernik is26 directed to communicate solely with Countrywide's designated counsel, Bryan Cave LLP, and27 no other officers and employees of Countrywide affiliates regarding the present action (the28 "Motion"), came on for hearing before the Honorable Terry B. Friedman in Department WE]

11 NIVIE SAMAAN, et al., Case No. SC087400NOTICE OF RULING

Date: January 13, 2009Time: 8:45 a.m.Dept: WEJ

Plaintiffs,

Defendants.

vs.

1617

12131415 JOSEPH ZERNIK, et al.

(j)Cll1'1

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of the Los Angeles Superior Court, West District, on January 13, 2009. Jenna Moldawsky ofBryan Cave LLP appeared on behalf on non-party and movant Countrywide. DefendantJoseph Zernik did not appear. No other appearances were made.

Having read and considered the Motion and all papers submitted in support thereofand in opposition thereto, and good cause appearing therefor,THE COURT MADE THE FOLLOWING FI DI GS:

1. The Protective Order issued by the Honorable Jacqueline Connor on July 23, 2007 (the"Court Order") is a valid order and the Court was authorized to grant the Court Orderpursuant to California Code of Civil Procedure Sections 2031.060 and pursuant toCalifornia Code of Civil Procedure Section 128(a)(5). Both code sections serve aslegitimate bases for the issuance of the Court Order;

2. Countrywide presented sufficient evidence that DefendantJoseph Zernik violated theCourt Order and should be sanctioned; and

3. The Court's Tentative Ruling is affirmed. A true and correct copy of the TentativeRuling is attached hereto as Exhibit A.

THE COURT GRANTED THE MOTION AND SPECIFICALLY ORDERED THAT:1. DefendantJoseph Zernik is to pay Countrywide (through Countrywide's attorneys ofrecord) the amount of $5,564.50 as sanctions within 20 days of the hearing. In theevent that Zernik fails to pay these sanctions to Countrywide, the Receiver in thismatter, David J. Pasternak, is authorized to pay the sanctions to Countrywide from theReceiver's Fund upon notice to the Receiver and Defendant Joseph Zernik byCountrywide;

2. The Court Order is modified to include officers and employees of Bank ofAmericaCorporation so that DefendantJoseph Zernik is directed to communicate solely withCountrywide's counsel, Bryan Cave LLP, regarding the present action and no otherofficers or employees of Bank ofAmerica Corporation; and

3. DefendantJoseph Zernik is ordered to appear on February 17, 2009 at 8:45 a.m. toshow cause why he should not be held in contempt of court and sanctioned for

SMOIDOCS715848.1 2NOTICE OF RULING

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1 violating the Court Order.2 DATED: January 13, 2009 BRYAN CAVE LLP3 John W. AmbergJenna Moldawsky45 By:6 1 na Moldawsky7 Attorneys forC O U N T R ~ D E H O M E L O A89

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SMO IDOCS715848.1 3NOTICE OF RULING

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EXHIBIT A

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rage 1 U1 1

DEPARTMENT J - LAW AND MOTION RULINGS

Case Number: SC087400 Hearing Date: January 1 3, 2 00 9 Dept: JNON-PARTY COUNTRYWIDE HOME LOANS MOTION FOR SANCTION, ORDER TO SHOW CAUSE RECONTEMPT AND MODIFICATION OF PROTECTIVE ORDER: GRANTDefendant 1Cross-Complainant Joseph Zernik f iled no response to th is Motion fo r which Non-PartyCountrywide Home Loans served timely notice.The first and second requests in this Motion reprise issues previously decided by th e Court. Countrywideseeks sanctions and an order to show cause re: contempt against Zernik for further violations of a July23, 2007 Protect ive Order. On February 15, 2008, this Court issued an Order imposing monetarysanctions on Zernik and setting an Order to Show Cause re Contempt against him fo r his violations of theProtect ive Order. On March 7, 2 00 8, t he Court found Zernik in contempt for his violations of th eProtective Order and imposed further monetary sanctions against him.Once again, Countrywide presents evidence of Zernik continuing to violate th e Protective Order byengaging in harassment against employees and officers of Countrywide. Countrywide bases this portion ofi ts Mot ion on tw o grounds. First, Countrywide argues that th e protective order was issued pursuant toCCP 2031.060 and should be enforced by sanctions against Zernik for misuse of the discovery process.[CCP 2023.010 and 2023.030]. The Court finds that Zernik's conduct arises ou t of his subpoena toobtain documents from Countrywide and therefore constitutes a misuse of the discovery process.Second, Countrywide rel ies on CCP 128(a)(5) which grants broad authority to th e court in furtherance ofjustice to control proceedings before it. Zernik and Countrywide were connected to a proceeding beforethe court. Therefore, CCP 128(a)(5) applies and is a legitimate basis fo r the ini tial issuance of theprotective order.For the same reasons as it granted Countrywide's February 15 , 2008 Motion, th e Court will grant the firstrequest in this Motion for monetary sanctions in the amount of $5,564.50.Countrywide offers extensive evidence to support i ts claim that Zernik has violated th e protective order.Accordingly, the Court will grant th e second request in this Motion to issue an order to show cause whyZernik should no t be held in contempt for violation of th e protective order and sanctioned pursuant toCCP 1218.Lastly, Countrywide asks the C ourt to modify the Protective Order to include officers and employees ofCountrywide affil iate Bank of America Corporation. Countrywide offers evidence that Zernik has engagedin the same harassment against Bank of America off icers and employees as he perpetrates againstCountrywide officers and employees. For the same reasons as the Court issued the Protective Order, itwill grant the third portion of th e Motion t o m od if y t he Protective Order to include officers and employeesof Countrywide affil iate Bank of America Corporation within th e scope of th e Protective Order.

Attorneys who elect t o s ub mi t on this published tentative ruling, without making an appearance at thehearing, ma y so noti fy the Court by communicating this to the Department's staff before th e set hearingtime. See, e.g., CRC Rule 3.1308.

Tentative Rulings - Main Menu Home

http://courtnet/TentativeRuling/UI/main.aspx?msg=Message+-++Rulings+for+Case+SCO87... 1/9/2009

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Alexa Kim

Executed on January 13,2009, at Santa Monica, California.

Moe Keshavarzi, Esq.Sheppard Mullin Richter & Hampton, LLP333 South Hope Street, 48th FloorLos Angeles, CA 90071-1448

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