From: unknown <[email protected]>
Subject: Deposition of Donald Wager in Hurtado v Berry
Date: 1 Apr 2001 22:09:38 -0700
Message-ID: <[email protected]>
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF LOS ANGELES
4 MICHAEL HURTADO, )
5 Plaintiff, )
6 versus ) No. BC 208 227
7 GRAHAM E. BERRY, )
8 Defendant. )
11 DEPOSITION OF: DONALD WAGER, ESQ.
12 TAKEN ON: January 19, 2001
13 VOLUME 1: Pages 1 to 140, inclusive
24 15115 LES F. MARTIN
25 CSR No. 3286, RPR
1 VOLUME 1, DEPOSITION OF DONALD WAGER, ESQ.,
2 taken on behalf of the Defendant, at
3 11835 West Olympic Boulevard, Suite 375,
4 Los Angeles, California, on Friday,
5 January 19, 2001, at 4:58 P.M.,
6 before Les F. Martin, CSR No. 3286, RPR.
10 For Plaintiff:
11 MOXON & KOBRIN
12 3055 Wilshire Boulevard
13 Los Angeles, California 90010
LAW OFFICES OF THOMAS S. BYRNES
15 BY: THOMAS S. BYRNES
425 South Beverly Drive
16 Beverly Hills, California 90212
ROBIE & MATTHAI
20 BY: EDITH MATTHAI, ESQ.
500 South Grand Avenue
21 Suite 1500
Los Angeles, California 90071
22 (213) 624-3062
1 APPEARANCES (Continued):
2 For the Witness:
3 LAW OFFICES OF ELLIOT J. ABELSON
BY: ELLIOT J. ABELSON, ESQ.
4 8491 West Sunset Boulevard
5 Los Angeles, California 90069
THE HONORABLE STEPHEN M. LACHS
9 Judge of the Superior Court, Retired
11845 West Olympic Boulevard
10 Suite 950
Los Angeles, California 90064
11 (310) 575-1630
1 I N D E X
DONALD WAGER, ESQ. - Volume 1
By Ms. Matthai 16
5 Q U E S T I O N S M A R K E D
6 PAGE LINE
7 19 1
8 26 6
9 54 8
10 97 7
11 98 23
12 106 14
15 I N F O R M A T I O N R E Q U E S T E D
18 E X H I B I T S
19 DEFENDANTS' PAGE
20 A Photograph 89
21 B Photograph 91
22 C Photograph 95
23 D Photograph 96
24 E Photograph 102
25 F Photograph 128
1 I N D E X (Continued)
2 E X H I B I T S
3 DEFENDANTS' PAGE
4 G Photograph 128
5 H Photograph 128
6 I Booking Sheet 128
7 J Motion to Set Aside Defendant's Plea 131
Of No Contest and To
8 Reinstate Plea of Not Guilty
February 9, 1999
K Declaration of Michael Hurtado 133
10 March 3, 1999
1 Los Angeles, California,
2 Friday, January 19, 2001
3 4:58 P.M.
7 JUDGE LACHS: Let's go on the record.
8 MR. BYRNES: My name is Tom Byrnes so our
9 reporter gets this accurate.
10 Several documents have been provided in
11 response to a subpenaed --
12 MR. ABELSON: He has to do his whole little
14 JUDGE LACHS: The best thing is everything to
15 give appearances.
16 THE REPORTER: That's up to you.
17 MR. BYRNES: I wanted to take a stab at trying
18 to give Ms. Matthai enough information about what is
19 being withheld without having to disclose what we
20 believe is privileged.
21 The first page you have not seen is a letter
22 dated the 25th of January, 1999. It's a document that
23 is sent by my client, Michael Hurtado. It's sent in
24 relation -- my position in relation to his suit. It's a
25 confidential communication; so under Evidence Code
1 Section 950, et. seq., we submit that it's privileged.
2 MS. MATTHAI: From Mr. Hurtado to who?
3 MR. BYRNES: To --
4 MS. MATTHAI: To whom?
5 MR. BYRNES: It's to Eugene Ingram, and it
6 relates to, you know, an investigator, who is an agent
7 of another one of Mr. Hurtado's attorneys, Rick Moxon.
8 He's an investigator. The privilege applies to the
9 investigator, also.
10 MS. MATTHAI: The next document.
11 MR. BYRNES: The next document has some
12 handwriting on it.
13 JUDGE LACHS: Excuse me. Do you want to do it
14 document by document or --
15 MR. ABELSON: Sure.
16 MS. MATTHAI: I think -- I think what my
17 preference would be is to have all of the documents
18 identified and that we proceed with the deposition
19 and -- I don't know what the documents are going be, but
20 it may be that I change my mind on this.
21 But my feeling is that whether or not some of
22 these documents are going to be covered by a privilege
23 may be determined by some of the testimony of the
24 witness; so it may be that the appropriate thing is to
25 get the testimony and then argue the privileges --
1 MR. BYRNES: Okay.
2 MS. MATTHAI: -- but to start by knowing what
3 we're talking about.
4 MR. ABELSON: All right.
5 The second document looks like a "New Client
6 Information Form." It is not filled out, but has
7 various notes on the side of it that refer to this case,
8 and the notes are in the handwriting of Mr. Wager.
9 Everything comes from Mr. Wager's file.
10 MS. MATTHAI: Is there a date on that document?
11 MR. ABELSON: No.
12 The third document is a Moxon & Kobrin -- and
13 they are also on attorneys of record in this case, your
14 Honor --
15 JUDGE LACHS: For the plaintiff?
16 MR. ABELSON: For the plaintiff.
17 -- a check for $50. It's a witness fee.
18 MR. BYRNES: And we submit it's related to this
19 case and that's a confidential communication.
20 MS. MATTHAI: What's the date?
21 MR. ABELSON: I'm sorry. April 12, 1999.
22 MS. MATTHAI: The amount of the check is $50?
23 MR. ABELSON: Right.
24 MS. MATTHAI: All right. It's payable to?
25 MR. BYRNES: We're not going tell you that.
1 MR. ABELSON: We're not going to tell you that,
2 because I then might as well given you the check. I've
3 given you every bit of information that's on it.
4 MS. MATTHAI: How is a witness fee check --
5 JUDGE LACHS: I thought we weren't going to
6 discuss it.
7 MS. MATTHAI: Fair enough.
8 MR. ABELSON: The next document is a -- 1 page
9 naming various people -- who are these people? Is this
10 our case?
11 (Discussion off the record between the
12 witness and his attorney.)
13 MR. ABELSON: These are Mr. Wager's notes.
14 There are four names and dates at the top and --
15 MS. MATTHAI: Did you say four names and dates?
16 MR. ABELSON: Yes. This would either be work
17 product or attorney-client privilege. It's material
18 that Mr. Wager obtained in furtherance of this case.
19 MS. MATTHAI: Furtherance of which case.
20 MR. ABELSON: Pardon me? His case, "The
21 State versus Hurtado."
22 MS. MATTHAI: "People versus Hurtado"?
23 MR. ABELSON: "People versus Hurtado," yes.
24 MS. MATTHAI: The drug paraphernalia case?
25 MR. ABELSON: Yes.
1 The next is a -- appears to be a copy of an
2 index card.
3 MR. BYRNES: Booking information.
4 MR. ABELSON: It contains booking information
5 on a individual who -- this is in Mr. Wager's
7 Should I be numbering these?
8 JUDGE LACHS: Probably not a bad idea.
9 MR. ABELSON: Okay. I don't know what numbers
10 because I'm not a party.
11 JUDGE LACHS: Did you say "index card"?
12 MR. ABELSON: Yes.
13 JUDGE LACHS: That would be the fifth of the
15 MR. ABELSON: I'll just put a "5" on it.
16 MS. MATTHAI: When you say it's an index card,
17 you mean it's just like a 3-by-5 card, kind of, that has
18 booking information?
19 MR. ABELSON: I know you can't read it from
20 that distance but --
21 MR. BYRNES: She has those super eyes.
22 I don't know what that is.
23 MR. ABELSON: It could be a line posted.
24 MR. ABELSON: Here is something.
25 MS. MATTHAI: It's a handwritten note,
1 basically, with somebody's booking information on it.
2 MR. ABELSON: Here's something that has his
3 handwriting on it, and I don't care if its privileged.
4 It's just his business card.
5 JUDGE LACHS: That's --
6 MR. BYRNES: One more sheet you can have.
7 MR. ABELSON: I don't --
8 (Discussion off the record between the
9 witness and his attorney.)
10 MR. ABELSON: I have a -- the next thing I was
11 going to hold back appears to be business cards of
12 Mr. Berry that have home numbers on it, but I'm not
13 going to claim privilege.
14 MR. BYRNES: Is Mr. Wager's handwriting on the
16 THE WITNESS: No.
17 MR. BYRNES: That's why I was concerned.
18 He passes those out in the bathroom at Numbers.
20 MR. ABELSON: The next, which I'll mark No. 6,
21 is notes of a meeting with Michael Hurtado on
22 January 22nd, 1999, from 1:30 to 3:00 P.M. It appears
23 to be 4 pages, all typed, and signed by Michael Hurtado
24 at the end.
25 MR. BYRNES: It's attorney work product.
1 MR. ABELSON: It's privileged and work product.
2 No. 7 is one sheet, lined, with various notes
3 about this case -- this case about the possession of
4 narcotic -- what do you call it?
5 MR. BYRNES: Paraphernalia.
6 MR. ABELSON: It's in Mr. Wager's handwriting.
7 It appears to be from an interview and work product.
8 MS. MATTHAI: Is there a date?
9 MR. ABELSON: There is not.
10 MS. MATTHAI: Okay. So it's just an undated
11 sheet of notes from some interview from someone in
12 Mr. Wager's handwriting?
13 MR. ABELSON: About this case.
14 MS. MATTHAI: Right.
15 MR. ABELSON: No. 8 I'm marking them on the
17 (Discussion off the record between the
18 witness and his attorney.)
19 MR. ABELSON: -- some of it in Mr. Wager's
20 handwriting and some is not.
21 THE WITNESS: Right.
22 MR. ABELSON: Whose handwriting is this?
23 THE WITNESS: I'm not sure.
24 MS. MATTHAI: Okay.
25 MR. ABELSON: No. 8 appears to be -- this is
1 all -- Mr. Wager's notes regarding this case.
2 THE WITNESS: In the case that I represented
4 MR. ABELSON: I'm sorry. In the case Mr. Wager
5 represented him and --
6 MS. MATTHAI: It's not --
7 MR. ABELSON: -- it's dated 1-22.
8 MS. MATTHAI: That would be ambiguous, as well,
9 because for a brief period of time Mr. Wager was counsel
10 of record in this case.
11 MR. ABELSON: That's true, the drug
12 paraphernalia case.
13 MS. MATTHAI: Thank you.
14 MR. ABELSON: I don't think he did anything in
15 the other case.
16 It's 3 pages.
17 The next item is an Attorney Retainer Agreement
18 between Mr. Wager and Mr. Hurtado, and it's dated
19 January 27th, 1999.
20 JUDGE LACHS: Is that No. 9?
21 MR. ABELSON: That's No. 9.
22 Collectively, No. 10, and the last item, is
23 numerous pages -- I'll count them. It's 20 pages. It's
24 Mr. Wager's time sheet for the Michael Hurtado matter
25 from December, '98, through August, '99.
1 That is in totality the documents.
2 MS. MATTHAI: You said that they were time
3 sheets. Are they actually billings?
4 THE WITNESS: Yes.
5 JUDGE LACHS: They're statements rather than --
6 MR. ABELSON: Statements.
7 JUDGE LACHS: They're statements rather than
8 time sheet in the sense of --
9 THE WITNESS: One is called a "Time Sheet."
10 The rest are called "Statements."
11 MR. ABELSON: One is called "Time Sheet." The
12 rest are called "Statements."
13 MS. MATTHAI: As to the statements, who are
14 they directed to?
15 MR. ABELSON: I'm sorry? What?
16 MR. BYRNES: I'm going to object. They've been
17 described. The whole notion of payment of legal
18 services is a confidential privileged area. They've
19 been generally described.
20 I think Mrs. Matthai knows what we're
21 withholding. If somebody later rules that they should
22 be turned over, they have been sufficiently described at
23 this point.
24 MS. MATTHAI: I don't think it's privileged as
25 to who the billing statements are going to, particularly
1 if the billing statements are not going to the client.
2 MR. BYRNES: You know, I -- in addition to it
3 being a privileged communication, there is also a
4 relevance issue, your Honor.
5 MR. ABELSON: The documents don't describe who
6 they were sent to.
7 MS. MATTHAI: What I would propose to do at
8 this point, your Honor -- the privileged documents have
9 been --
10 JUDGE LACHS: Yeah. I have them all.
11 MS. MATTHAI: Okay. I think that before
12 putting you in a position of having to make a
13 determination on the privilege, I think I would like to
14 go ahead with some of the deposition questioning which
15 may pertain with those issues.
16 JUDGE LACHS: Sure.
17 MS. MATTHAI: Thank you.
18 JUDGE LACHS: Absolutely.
19 MS. MATTHAI: I suppose at this point we can
20 swear the witness; right?
1 DONALD WAGER, ESQ.,
2 having been first duly sworn,
3 was examined and testified as follows:
6 BY MS. MATTHAI:
7 Q Would you state your full name, please.
8 A Donald Richard Wager.
9 Q You are an attorney?
10 A Yes.
11 Q You know what the nature and purpose of a
12 deposition is?
13 A Yes.
14 Q Is there any need to go through the normal
15 admonition that lawyers often give before a deposition?
16 A There is not.
17 Q Okay. When were you admitted to the Bar?
18 A January 10th, 1963.
19 Q Do you specialize in any particular field?
20 A Defense of people charged with crimes.
21 Q For how long have you practiced criminal law?
22 A Since 1967.
23 Q And for how long have you been in the
24 Southern California area?
25 A Since 1953.
1 Q So I take it, then, that you have always
2 practiced here in Southern California?
3 A Correct.
4 Q You currently practice under the name of
5 Law Offices of Donald Wager; correct?
6 A Now, I think it's Donald R. Wager Law
8 Q Okay. Have you practiced law with anyone else
9 in either a partnership or a law corporation?
10 A Yes. I was with the -- before entering the
11 private practice as a sole practitioner in 1974, from
12 1967 to 1974, I was a Deputy District Attorney for the
13 County of Los Angeles.
14 Q Okay. Since entering private practice have you
15 always practiced as a sole practitioner?
16 A No. In -- commencing in 1963, in March, I
17 worked for a firm entitled Butterworth & Smith in
18 downtown Los Angeles.
19 Q Okay.
20 A About 2 years later, I went with a firm called
21 Wyman, Finell & Rothman in Beverly Hills. I was there
22 about 3 years.
23 Then, I went with Dahlstrum --
24 D-a-h-l-s-t-r-u-m -- Walton & Butts -- with two "Ts" --
25 in Hollywood. That was about 2 years.
1 Then, I went to the District Attorney's office.
2 Q Since you have left the District Attorney's
3 office, have you always practiced as a sole
5 A Yes.
6 Q Do you practice in any fields other than
7 criminal law?
8 A I do some administrative hearings that arise
9 out of criminal cases where the defendant I had
10 represented now has some administrative problems with a
11 licensing agency because of his criminal charge.
12 Q Any other areas in which you practice?
13 A No.
14 (Discussion off the record between the
15 witness and his attorney.)
16 BY MS. MATTHAI:
17 Q Is there something you would like to add
18 after --
19 A No.
20 Q When did you first hear the name
21 Michael Hurtado?
22 A I think in late 1998.
23 Q From whom did you first hear the name
24 Michael Hurtado?
25 A I think from Elliot Abelson.
1 Q What did Mr. Abelson tell you?
2 MR. ABELSON: I'm going object as privileged.
3 BY MS. MATTHAI:
4 Q When you heard from Mr. Abelson, had you spoken
5 to Mr. Hurtado?
6 A No.
7 Q Okay. What did Mr. Abelson tell you?
8 A Mr. --
9 MR. ABELSON: I'm going to object. It's
11 MS. MATTHAI: What is the ground for the
12 objection of the privilege -- for the privilege
14 MR. ABELSON: Mr. Wager was representing my
15 client at the time.
16 MS. MATTHAI: Are you taking the position that
17 in December of 1998 that Mr. Hurtado was your client?
18 MR. ABELSON: No. The conversation was subject
19 to the privilege of another client.
20 MS. MATTHAI: Who was the client that you are
21 claiming the privilege on --
22 MR. ABELSON: Church of Scientology
23 International. I'm sorry. I jumped on that. I won't
24 do it again.
25 MS. MATTHAI: So it's your position that your
1 conversation with Mr. Wager about Mr. Hurtado was
2 privileged because you were speaking to Mr. Wager in
3 your role as a lawyer for the Church of Scientology; is
4 that the position you're taking?
5 MR. ABELSON: Correct.
6 MS. MATTHAI: And are you instructing your
7 client not to answer the question?
8 MR. ABELSON: Yes.
9 MS. MATTHAI: And I assume we can have the
10 stipulation for any foundational purposes necessary that
11 upon any occasion in which you instruct your client not
12 to answer the question that your client will, indeed,
13 refuse to answer the question that at your instruction?
14 MR. ABELSON: He better. You have it.
15 MS. MATTHAI: I won't ask what the consequences
16 will be.
17 Q When did you first have a conversation with
18 Mr. Hurtado?
19 A I do not recall exactly, but I think it was in
20 January, 1999.
21 Q If you referred to the billing records that we
22 have here today, would that help refresh your
23 recollection as to the first time in which you spoke
24 with Mr. Hurtado?
25 A It might. I'm not sure.
1 Q Then I would ask that you look at those and see
2 if that does refresh your recollection.
3 A I think it would have been on or about
4 January 22nd, 1999.
5 Q Now, was this a telephone conversation or a
7 A A meeting in person.
8 Q Okay. Where did the meeting take place?
9 A At my office.
10 Q Who was present?
11 A His father. My recollection at this point is
12 that the I only recall his father being present at that
13 initial meeting.
14 Q Before January 22nd, 1999, had you spoken with
15 any member of the Hurtado family?
16 A I know I spoke with his father. I cannot
17 recall if I spoke with his mother. And I spoke with
18 another person, who I cannot recall if he was described
19 to me as a friend or an uncle.
20 Q Okay.
21 A And -- and at some time I met his sister, and I
22 cannot recall if that was before I met with Michael or
24 Q Again, if reference to your billing records
25 would assist in this series of questions about who you
1 talked to, when, perhaps we can use those to refresh
2 your recollection at least.
3 When is the first time that you spoke to
4 Mr. Hurtado's father?
5 MR. BYRNES: While Mr. Wager looks through the
6 bills, I would like make an objection to his use of
7 those bills if it's later going to be used as an
8 argument that since the documents were used to refresh
9 his recollection, it would otherwise make admissible
10 something that would not be admissible simply because he
11 uses it to refresh his recollection.
12 If it's Ms. Matthai's position that she would
13 like to be able to introduce later it on that basis,
14 then I ask that he not be allowed to look at the
15 documents anymore.
16 MS. MATTHAI: I'm not intending to take the
17 position that the mere fact that he's refreshed his
18 recollection from the documents waives the privilege. I
19 do believe they're not privileged in the first place.
20 MR. BYRNES: Okay.
21 MS. MATTHAI: But the fact that I'm having him
22 look at it for this purpose, I won't say, "Ha, ha. Got
23 you. Now you have to turn it over."
24 MR. BYRNES: Okay. Thank you.
25 THE WITNESS: I think it was on January 21st,
2 MS. MATTHAI: Okay.
3 Q Does reviewing those billing records refresh
4 your recollection as to whether you spoke to
5 Mr. Hurtado's mother before January 22nd?
6 A It does not.
7 Q Do you recall -- does it refresh your
8 recollection as to any other person, besides
9 Mr. Hurtado, that you spoke to before -- let me withdraw
10 that and rephrase it.
11 Can you identify any other person besides
12 Mr. Hurtado's father that you spoke with in connection
13 with Mr. Hurtado before your first speaking with
14 Mr. Hurtado on January 22nd, 1999?
15 A The bills do not assist me with that, but I
16 have a recollection that I did.
17 Q Okay. And that would be with the friend or,
18 perhaps, uncle as described?
19 A Correct.
20 Q Was that by any chance Wesley Berosteguy?
21 A I believe it was not.
22 Q Okay. Do you recall first or last name of that
23 friend or uncle?
24 A I do not.
25 Q When you spoke with that person, was it in a
1 meeting or by telephone?
2 A Certainly I think at a meeting, and I cannot
3 recall if I spoke with him by telephone before.
4 Q Okay. And who was present at the time of the
6 A My recollection is that Michael's father, this
7 friend or uncle, and his mother and/or sister may have
8 been present.
9 Q Okay.
10 A I have some recollection of both of those
11 people in my office, but I'm not sure at what time that
13 Q All right. Was this a meeting which occurred
14 on January the 21st?
15 A I'm not sure. My reference to my records would
16 tell me that it was on the 22nd.
17 Q But before your meeting with Mr. Hurtado?
18 A When you say "Mr. Hurtado" --
19 Q I'm sorry. Before you're meeting with
20 Michael Hurtado.
21 A Yes.
22 Q Was Mr. Ingram present at the meeting with
23 Mr. Hurtado's father, mother, and friend?
24 A I cannot recall in my -- and my bills do not
25 refresh my memory on that.
1 Q All right. Had you spoken with Mr. Ingram
2 about Mr. Hurtado before you first spoke with
3 Mr. Abelson in late 1998?
4 A I don't think so. I think I spoke with
5 Mr. Abelson first.
6 Q Did you speak with Mr. Ingram about Mr. Hurtado
7 at any time between speaking with Mr. Abelson and the
8 meeting that ultimately occurred with Michael Hurtado on
9 January 22nd?
10 A Yes.
11 Q On how many occasions did you speak with
12 Mr. Ingram during that period?
13 MR. ABELSON: Do you want him to refresh his
14 memory each time?
15 MS. MATTHAI: Yes. If it will help his memory
16 be refreshed, yes.
17 THE WITNESS: I have no independent
18 recollection. But referring to my statements, my answer
19 would be 3 times.
20 MS. MATTHAI: Okay.
21 Q What was your understanding as to who
22 Mr. Ing- -- first, Mr. Ingram is not a lawyer, is he?
23 A To my knowledge, he is not.
24 Q Mr. Ingram is a private investigator; correct?
25 A I believe so.
1 Q To your knowledge, when you were speaking with
2 Mr. Ingram about Mr. Hurtado, who was Mr. Ingram working
4 A The Church of Scientology and I think also, in
5 some respect, Michael Hurtado's father.
6 Q What did Mr. Ingram tell you about
7 Michael Hurtado in those conversations?
8 MR. BYRNES: I'm going to object. I realize
9 Mr. Wager has his understanding as to who he thinks
10 Mr. Ingram was working for.
11 I've been advised that Mr. Ingram worked for
12 Kendrick Moxon, who is an attorney, who was representing
13 Hurtado, and it was part of Mr. Moxon's representation
14 of Mr. Hurtado that he employed Mr. Ingram and that any
15 conversations that he had with another lawyer in support
16 of the work he was doing on behalf of Michael Hurtado
17 would be privileged, and I ask Mr. Abelson to instruct
18 his client to not answer the question.
19 MR. ABELSON: Which I'm going to.
20 MS. MATTHAI: Well, at this point, I will argue
21 this objection.
22 I think that it's the witness' understanding
23 that Mr. Ingram was working for the Church of
24 Scientology and the conversations are about Mr. Hurtado,
25 and I think I'm entitled to know what those
1 conversations were.
2 MR. ABELSON: I'm sure you know this, but
3 Mr. Moxon works for the Church of Scientology; so the
4 lines are gray. But at the time, the Church of
5 Scientology was Mr. Moxon's client.
6 MS. MATTHAI: Well, maybe I better ask a couple
7 of foundational questions here a minute, and, perhaps,
8 ask Mr. Abelson a question if he will indulge me here.
9 You've made a statement that Mr. Moxon works to
10 the Church of Scientology. It is my understanding that
11 Mr. Moxon has a law firm, which regularly represents the
12 Church of Scientology; correct?
13 MR. ABELSON: Correct.
14 MS. MATTHAI: And he's not a direct employee of
15 the Church?
16 MR. ABELSON: That's correct.
17 BY MS. MATTHAI:
18 Q At the time -- back to Mr. Wager here.
19 When did you first have any contact with
20 Mr. Moxon in connection with Mr. Hurtado?
21 A No later than January 11th, 1999, and maybe
22 earlier, but I'm not sure.
23 Q And how many contacts or conversations did you
24 have with Mr. Moxon between late 1998 and the first time
25 that you had any conversation with Michael Hurtado?
1 A At least six.
2 Q And those contacts were from Mr. Moxon related
3 to Mr. Hurtado?
4 A Yes.
5 Q All right. In any of those conversations did
6 Mr. Moxon advise you that he was a lawyer representing
7 Mr. Hurtado?
8 MR. ABELSON: Objection. Attorney-client
9 privilege. Instruct -- I don't have to instruct.
10 MS. MATTHAI: Well, I would ask for a ruling on
11 that objection because that's foundational.
12 MR. ABELSON: It still calls for privileged
14 MS. MATTHAI: The fact of representation and
15 the date of representation -- the date of commencement
16 of representation are not privileged.
17 JUDGE LACHS: I agree with Ms. Matthai. The
18 fact of representation is not privileged. In other
19 words, it's not privileged to say, "I represented
21 MR. BYRNES: And that's obvious later because
22 of documents and papers filed with the court. The
23 question that Ms. Matthai asked was: During any of
24 these conversations did Mr. Moxon make that statement to
25 Mr. Wager, which, I think, is different than saying at
1 some point did Mr. Wager become Mr. Hurtado's attorney.
2 JUDGE LACHS: My understanding of the
3 question -- and we can get it reread is -- did Mr. Moxon
4 did ever say to Mr. Wager that he, Mr. Moxon,
5 represented Mr. Hurtado?
6 I think that was the question.
7 MS. MATTHAI: That was the question.
8 JUDGE LACHS: So my recommendation would be
9 that the objection be overruled.
10 MR. ABELSON: We'll have to go on.
11 MS. MATTHAI: So you're not willing to do
12 anything other than have the report to the Court and
13 then go from there --
14 MR. ABELSON: Correct.
15 MS. MATTHAI: -- based on the Court's orders.
16 JUDGE LACHS: In addition, I'm not sure what
17 the privilege is based on, Mr. Abelson, meaning that
18 Mr. Moxon was not Mr. Wager's client; so --
19 MR. ABELSON: Mr. Moxon also represents the
20 Church of Scientology, just like I do. I think --
21 MS. MATTHAI: In what matter would he be
22 representing --
23 JUDGE LACHS: The last papers I got filed were
24 the ones I got filed here today saying that this has
25 nothing to do with the Church of Scientology. Thank
2 MR. BYRNES: I don't represent the Church of
4 JUDGE LACHS: This was the paper filed today by
5 Mr. Moxon, I believe, saying:
6 "(Reading) This has nothing to do
7 with the Church of Scientology."
8 MR. BYRNES: His law firm without -- it's
9 because --
10 JUDGE LACHS: I'm recommending overruling the
12 MR. BYRNES: Okay.
13 Could I add --
14 JUDGE LACHS: Sure.
15 MR. BYRNES: -- sir, if I may, my understanding
16 of what would be privileged is that in the course of
17 Mr. Moxon representing Mr. Hurtado, if he is consulted,
18 in this case, an expert --
19 JUDGE LACHS: Excuse me. I don't know that
20 Mr. Moxon represented Mr. Hurtado.
21 MR. BYRNES: Okay. Fair enough.
22 MR. ABELSON: You mean at that point, your
24 MR. BYRNES: At some point you should ask
25 Mr. Moxon.
1 JUDGE LACHS: I don't know.
2 MR. BYRNES: It's my understanding that he did;
3 so if his discussions with --
4 JUDGE LACHS: The only papers I have seen -- we
5 are talking so far -- so far, the only case I know about
6 is that -- that is pertinent is the paraphernalia case.
7 The only attorneys that I saw in the docket sheet were
8 Mr. Berry and Mr. Wager representing Mr. Hurtado, and
9 the only other case I know about is this case.
10 So, obviously, this case came after, I take it,
11 the paraphernalia case.
12 MR. ABELSON: Yes.
13 MR. BYRNES: Yes.
14 JUDGE LACHS: So the only records I've seen --
15 now there may be -- other things may exist. But the
16 only records I've seen show that he was represented --
17 "he" being Michael Hurtado -- by either Mr. Berry or
18 Mr. Wager.
19 MR. BYRNES: Okay.
20 JUDGE LACHS: Anyway, I'm recommending
21 overruling your objection.
22 MR. ABELSON: For -- for your education, along
23 with the representation of Mr. Wager -- by Mr. Wager of
24 Mr. Hurtado eventually came this lawsuit filed by
25 Mr. Moxon.
1 JUDGE LACHS: That's later on.
2 MR. ABELSON: That's later on.
3 JUDGE LACHS: Right.
4 MS. MATTHAI: And the keyword is "eventually."
5 JUDGE LACHS: Right.
6 BY MS. MATTHAI:
7 Q Did Mr. Ingram tell you in any conversation
8 that he had with you before January 22nd, 1999, who he
9 was working for?
10 A Yes.
11 Q Who did he say he was working for?
12 A My recollection is that he said he was working
13 for Mr. Moxon.
14 Q Did he tell you who Mr. Moxon's client was?
15 MR. BYRNES: You know, at this point, then, I
16 would object and say it's part of -- it's a confidential
17 communication between a representative -- a
18 representative of Mr. Moxon, who was another lawyer, in
19 preparation of what ultimately was a civil suit that was
20 filed. Mr. Wager is a specialist in criminal law. The
21 discussion relates to that, and it's also
22 attorney-client work product.
23 JUDGE LACHS: I'm going to recommend that that
24 be overruled. There is no -- nothing to indicate at
25 this time that this had anything to do with the civil
1 case at all.
2 And, parenthetically, let me just say that it
3 was Mr. Brynes who filed a brief which said:
4 "(Reading) This case is not about
5 Scientology anymore than it is about
6 the man in the moon."
7 MR. BYRNES: Your Honor, I didn't sign that. I
8 didn't right write that, but my co-counsel did. I
9 agree. It's in response to the telephone book we got
10 from Mr. Matthai's office about Cipriano.
11 MR. ABELSON: I have a problem with your
12 analysis, and it's not you're fault because you don't
13 know the facts of the case, and this case has a lot of
14 facts and it has a lot of history.
15 But if Mr. Moxon could testify or was
16 testifying, you'd hear that he was concerned that
17 Mr. Berry had taken advantage of Mr. Hurtado, and that's
18 what this whole lawsuit is about.
19 He consulted Mr. Wager, who he had consulted in
20 the past on criminal matters and got his opinion and at
21 that early stage they were thinking about --
22 JUDGE LACHS: Exactly. When Mr. Moxon goes to
23 talk do Mr. Wager, Mr. Moxon is not -- does not have a
24 privilege with Mr. Wager for purposes of Mr. Hurtado's
25 criminal action.
1 MR. BYRNES: No.
2 MS. MATTHAI: He does not have any privilege.
3 JUDGE LACHS: He has no privilege unless --
4 MR. BYRNES: Unless he's representing
5 Mr. Hurtado already in the civil matter. He is
6 representing Mr. Hurtado, and Mr. Moxon's contact with a
7 criminal law specialist, that is in furtherance of the
8 civil lawsuit, not the criminal Chase.
9 MR. ABELSON: It's also in the furtherance of
10 the relationship between Mr. Wager and Mr. Moxon. You
11 can't -- no one can ask what Wager and Moxon talked
12 about because it's privileged. It's between a client
13 and --
14 JUDGE LACHS: Mr. Moxon isn't Mr. Wager's
16 MR. ABELSON: No. He is another attorney.
17 JUDGE LACHS: Mr. Wager isn't Mr. Moxon's
19 MR. ABELSON: No. But they're two attorneys
20 working on the same case.
21 MS. MATTHAI: But the case doesn't exist at
22 that point. It hadn't been filed.
23 MR. ABELSON: It exists. There is a privilege
24 before a lawsuit is filed.
25 JUDGE LACHS: Yes, there is. I have no idea
1 what happened prior to that.
2 MR. BYRNES: I understand.
3 JUDGE LACHS: You've got to understand that all
4 I know is that somehow all of these people seem to be
5 interconnected, but nonetheless, Mr. Hurtado had a
6 criminal case pending. He went to -- ultimately to
7 Mr. Wager.
8 Clearly, there is an attorney-client privilege
9 between Mr. Michael Hurtado and Mr. Wager, but I don't
10 know about all of these other events.
11 So unless there is a stipulation as to a
12 factual basis, I just don't know what the situation is.
13 MR. ABELSON: Okay.
14 JUDGE LACHS: I'm going to recommend that the
15 question, which was: Did Mr. Ingram tell Mr. Wager who
16 Mr. Moxon's client was, that that be answered.
17 MR. ABELSON: Okay. I'll instruct him.
18 MS. MATTHAI: Okay.
19 Q Did -- what did Mr. Ingram tell you in those
20 telephone conversations about Mr. Berry?
21 MR. ABELSON: Same objection.
22 MR. BYRNES: Join in that.
23 MR. ABELSON: Same instruction.
24 MS. MATTHAI: Okay.
25 MR. BYRNES: Point of clarification?
1 JUDGE LACHS: Yes.
2 MR. BYRNES: If -- because I don't have it in
3 front of you today, and I don't know the answer to it,
4 if there was a retainer agreement, or some type of
5 attorney-client relationship between Michael Hurtado and
6 Rick Moxon that predates any of these discussions with
7 Mr. Wager, then would your position be that if there is
8 already that relationship and Mr. Ingram works for
9 Mr. Moxon, that these would then be privileged
11 MS. MATTHAI: I'm not.
12 JUDGE LACHS: I'm not sure. I have would have
13 here from Ms. Matthai.
14 MS. MATTHAI: With all due respect, if such
15 agreement should arrive on the scene, it would directly
16 contradict the testimony of all of the members of the
17 Hurtado family, who have been deposed, and who have
18 said, in fact, they met Mr. Wager and Mr. Moxon at the
19 same time after Mr. Ingram came unannounced to their
20 house and took them to see Mr. Wager and Mr. Moxon.
21 So that would be a somewhat surprising document
22 if it were to now surface.
23 MR. BYRNES: I'm not saying it exists. It's my
24 understanding --
25 JUDGE LACHS: It would be food for thought.
1 MR. BYRNES: Okay.
2 BY MS. MATTHAI:
3 Q So did you take any action with regard to the
4 criminal case involving Mr. Hurtado at any time before
5 January 22nd, 1999? Did you do anything? Did you go
6 down to the courthouse? Do anything?
7 A No. I didn't go to the courthouse.
8 Q Okay.
9 A I do not recall if I had seen any documentation
10 about that case before the 22nd.
11 Q Were you provided with any materials from the
12 court file before January 22nd?
13 A I may have been, but I do not recall.
14 Q Do you recall when it was that you first got
15 any materials from the court files involving the
16 paraphernalia case?
17 A It would certainly be before the 25th.
18 Q And do you recall that date because of the fact
19 that there was a court hearing on the 27th?
20 A No, because in looking at my statement, I see I
21 prepared a 1050 Penal Code motion, a Motion to Continue,
22 and because of that, I would have had to have a caption
23 and a case number; so I must have had information
25 Q Did you bill anyone for the services you
1 rendered to Mr. Hurtado in the criminal case?
2 A Yes.
3 Q Who did you bill?
4 MR. BYRNES: Objection, your Honor. It's
5 irrelevant. It's privileged.
6 MS. MATTHAI: I don't think the identity of the
7 person who pays the fees is privileged.
8 MR. BYRNES: A confidential communication
9 between an attorney and client is -- it's a confidential
10 communication. A bill and a statement, retainer
11 agreement, all of those matters are privileged.
12 MS. MATTHAI: Actually, the billings aren't
13 privileged and some potential information within the
14 billing may be privileged.
15 JUDGE LACHS: I.e., my understanding is that
16 bills themselves are usually not privileged; however,
17 frequently, lawyers put information in the bill, which
18 may be privileged, and, usually, that is redacted.
19 MR. BYRNES: I think --
20 JUDGE LACHS: It may be -- it may be that the
21 person to whom it was paid is redactable. I'd have to
22 think about that for a minute, but the statement itself
23 "Services rendered such and such," I don't believe are.
24 MR. BYRNES: There was a case that came down
25 actually last week in the advance sheets that talked
1 about -- I think in much bigger criminal cases where
2 somebody else will pay the fee for someone who is
3 incarcerated or something, and that information is
4 deemed to be confidential, who pays the bills.
5 JUDGE LACHS: Certainly, it would appear -- it
6 would appear to me to be confidential because what would
7 happen is that there would be a discussion presumably
8 between the attorney and the client, "Who is going to
9 pay my bill," and that is a privileged communication,
10 but the statement itself is I'm not sure.
11 MS. MATTHAI: Well, I would say the fact of the
12 payment and who paid is not confidential. It would
13 depend upon the particular factual circumstances.
14 Here, it's our position that it may be that
15 those billings were paid courtesy of the Church of
16 Scientology as a part of their inducement to Mr. Hurtado
17 to participate in this case.
18 I think we're entitled to determine whether or
19 not those billings were paid by the Church or one of its
21 JUDGE LACHS: It may be that there is a
22 difference between "Who did you bill?" and "Who did you
23 receive checks from -- from whom did you receive
25 That may be different because that may very,
1 very well not be privileged for a number of reasons that
2 I would discuss if you want.
3 MR. BYRNES: But even separate from any
4 privilege argument, I don't think they're relevant.
5 The motive of why an attorney was retained,
6 just like motive of a whistleblower in a defense
7 contractor kind of case. Why somebody does something
8 isn't relevant. Did the event occur?
9 We have Mr. Berry admitting that while he was a
10 lawyer he had sex with a client. He had sex with a
11 client that was less than half his age. So it's not a
12 question of whether someone induced Michael to create
13 some story. What the real issue before the ultimate
14 trier of fact is whether the sex was permissible,
15 whether it's excused under the rules of professional
16 conduct and the Business and Professions Code, whether
17 it was consensual or whether, as my client has stated,
18 it was something that he had to do in exchange for legal
19 services. And the defense is saying, "No. No. They
20 were lovers, friends and it had nothing to do with legal
22 So those are questions of fact. But who paid a
23 bill or why the bill was paid, in this case, really
24 isn't relevant. What is relevant is the facts or
25 circumstances under which any sexual activity or conduct
1 occurred between a lawyer and his client.
2 And so whoever paid Mr. Wager's bill is
3 irrelevant separate from being privileged.
4 JUDGE LACHS: My recommendation on the
5 relevance objection would be to overrule the relevance
7 But the question "Who was supposed to pay the
8 bill," I would sustain on attorney-client privilege.
9 MR. BYRNES: Thank you.
10 MS. MATTHAI: My question would be: Who did
11 pay the bill, and if that were the Court's
12 recommendation, and maybe counsel can agree, that on
13 some of these issues where there may be some authority
14 on point -- I'm certainly not familiar with the case
15 from the advance sheets that Mr. Brynes is referencing
17 MR. ABELSON: I'm glad somebody has time to
18 take a look at those.
19 MR. BYRNES: That is fortuitously --
20 MS. MATTHAI: I would be happy to have some
21 date which we could provide any authorities that either
22 party could find on the subject matters that would be
24 JUDGE LACHS: Are you now asking who did the
25 pay bill?
1 MS. MATTHAI: Yes.
2 MR. BYRNES: Objection. And it's calling for
3 speculation, too.
4 MR. ABELSON: I'm going to object.
5 MS. MATTHAI: Actually, I will raise my own
6 objection, that it lacks foundation, which is "Were you
8 JUDGE LACHS: That's true.
9 MR. BYRNES: Also irrelevant. The objection is
11 JUDGE LACHS: I would recommend overruling the
12 objection on relevance grounds.
13 THE WITNESS: Yes.
14 BY MS. MATTHAI:
15 Q The next question is: Who paid you?
16 MR. ABELSON: Objection.
17 MR. BYRNES: Join in that.
18 JUDGE LACHS: Do you want to state your
20 MR. ABELSON: Yes. I think it's privileged. I
21 think it's private.
22 MR. BYRNES: It's a confidential communication
23 between the client and lawyer. Under 952 of the
24 Evidence Code, it's privileged.
25 JUDGE LACHS: I believe it's not privileged for
1 any -- for several reasons. Amongst others, there is
2 nothing that -- there is no privacy that one can --
3 well, I should take that back.
4 If Mr. Wager was paid in cash, it may be
5 different. But if he was paid, as most people are, with
6 a check, bank employees see the check, the accountant
7 for whomever or bookkeepers from whomever might have
8 paid the bills cease checks.
9 There is no expectation of privacy or that it
10 would be privileged; so I would recommend overruling
12 MS. MATTHAI: Okay.
13 Q In light of the judge's comment, I ask will
14 ask: Were you paid in cash in the sense of bills.
15 A No.
16 Q Were you paid by check?
17 A Yes.
18 Q Did -- when was the first time that you were
19 consulted on any issue by Mr. Moxon?
20 MR. BYRNES: Relating to --
21 MS. MATTHAI: Any issue.
22 MR. ABELSON: In this case or --
23 MS. MATTHAI: Any issue.
24 THE WITNESS: I do not recall.
1 BY MS. MATTHAI:
2 Q Can you give me an approximation of when it
4 A No.
5 Q Can you tell me what year it was?
6 A No.
7 Q Was it more than 10 years ago?
8 A Less.
9 Q Was it more than 5 years ago?
10 A I'm not sure.
11 Q Have you appeared as counsel as of record for
12 Mr. Moxon in any matter?
13 A I don't think so.
14 Q Have you appeared as counsel of record for
15 Moxon & Kobrin in any matter?
16 A I don't think so.
17 Q Have you appeared as counsel of record in any
18 matters which were referred to you by Mr. Moxon?
19 A Yes.
20 Q On how many occasions have you appeared as
21 counsel of record on matters that were referred to you
22 by Mr. Moxon?
23 A At least two.
24 Q And does that include Mr. Hurtado's or would
25 that be two in addition to Mr. Hurtado's?
1 A At least two including Mr. Hurtado's.
2 Q And when was the other one?
3 A I think also 1999.
4 Q Was that a criminal matter?
5 A Juvenile matter.
6 Q What was the name of the client?
7 MR. BYRNES: Objection.
8 MR. ABELSON: Tell me about it.
9 MR. BYRNES: Irrelevant.
10 THE WITNESS: Since juvenile matters are
11 privileged, I think I would claim a privilege on that.
12 BY MS. MATTHAI:
13 Q Have you ever appeared in any case as counsel
14 of record for Anthony Apodaca?
15 A I think not.
16 Q Have you met Anthony Apodaca?
17 A Yes.
18 Q When did you first meet Anthony Apodaca?
19 A Sometime in 1999.
20 Q When in 1999?
21 A I'm not sure.
22 Q Did you meet Mr. Apodaca before or after you
23 met with Mr. Hurtado?
24 A After.
25 Q Did you first meet Mr. Apodaca in connection
1 with your representation of Mr. Hurtado?
2 A Yes.
3 Q If you referred to your billing statements,
4 would you be able to identify when it was that you first
5 met with Mr. Apodaca or "Apodaca," as it may be.
6 A April 13th, 1999.
7 Q Who was present when you met with Mr. Apodaca?
8 A I recall just Mr. Apodaca and myself.
9 Q Did that meeting occur in your office?
10 A No.
11 Q Where did that meeting occur?
12 A Men's Central Jail.
13 Q On how many occasions have you met with
14 Mr. Apodaca?
15 MR. BYRNES: If I may inquire while Mr. Wager
16 is going through his billing statements, Ms. Matthai
17 stated that Mr. Wager associated in as counsel of record
18 for the plaintiff on January 6th, the year 2000, through
19 May 8 of the year 2000.
20 MS. MATTHAI: No. There is an error. It
21 should be, I presume, '99 through 2000.
22 MR. BYRNES: That's what I was wondering.
23 MS. MATTHAI: No, it wasn't 2000 to 2000. It
24 was whatever date Jim McIntyre's depo was was the date
25 that Mr. Wager was associated in as counsel, and I don't
1 recall the date that he filed an unassociation, as the
2 term may be.
3 MR. BYRNES: What I'm wondering then is: If
4 Mr. Wager was seeing Mr. Apodaca while he was
5 Michael Hurtado's attorney on the civil matter --
6 MS. MATTHAI: No.
7 MR. BYRNES: That's why I'm asking about the
8 time period. You said April of '99. You are telling me
9 the dates here, instead of January 6th, 2000, it should
10 be January 6th, 1999, through May 8th, '99?
11 MS. MATTHAI: I don't think -- that doesn't
12 sound accurate to me. I could call my office and get
13 the date. You may know that date.
14 MR. ABELSON: Do you know?
15 MS. MATTHAI: I probably couldn't call my
16 office and get the date.
17 MR. ABELSON: When you were substituted in to
18 represent --
19 MS. MATTHAI: Associated in.
20 THE WITNESS: Date of Jim McIntyre's
22 MR. ABELSON: Do we know when?
23 MR. BYRNES: '99 or last summer.
24 MS. MATTHAI: It could have to be last year.
25 It was not 2 years ago. I'm sure that meets with your
2 We recall it because for Mr. Wager to have the
3 privilege of sitting through the deposition, he became
4 one of the counsel of record for your client.
5 MR. BYRNES: Okay.
6 BY MS. MATTHAI:
7 Q So moving right along, was -- recognizing that
8 a meeting at the Men's Central Jail could theoretically
9 could be attended by a number of people, were there
10 anyone -- was there anyone actually attending your
11 conversation with Mr. Apodaca other than you and
12 Mr. Apodaca?
13 A I do not recall.
14 Q Did Mr. Ingram accompany you to the
15 Men's Central Jail to meet Mr. Apodaca?
16 A I don't recall.
17 Q How many meetings did you have with
18 Mr. Apodaca?
19 A I recall two.
20 Q Where did the other meeting occur?
21 A I'm not sure where, but it was a meeting with
22 Mr. Moxon, and I think Mr. Ingram was present.
23 Q How was Mr. Apodaca dressed at that meeting?
24 MR. ABELSON: I'm sorry. I didn't hear the
1 BY MS. MATTHAI:
2 Q The question was: How was Mr. Apodaca dressed
3 at that meeting?
4 MR. BYRNES: Objection.
5 THE WITNESS: I don't recall.
6 BY MS. MATTHAI:
7 Q Oh, I find it difficult to believe, sir.
8 A You have to remember that I am a criminal
9 defense lawyer. I see a lot of people dressed in very
10 bizarre ways. If he was dressed bizarrely, it would not
11 be surprising to me that I don't recall.
12 Q When was the second meeting that you had with
13 Mr. Apodaca in which Mr. Ingram and Mr. Moxon were also
15 A I do not recall. If I billed for that meeting,
16 I didn't note that Mr. Apodaca was present.
17 Q So you're billing does not refresh your
19 A Right.
20 Q Was a videotape of Mr. Apodaca made at that the
21 second meeting?
22 A I don't recall.
23 Q Were you present at any time at which a
24 videotape was made of Mr. Apodaca?
25 A I don't recall.
1 Q Have you ever seen the videotape that was made
2 of Mr. Apodaca?
3 A I don't think so.
4 Q Did you at any time --
5 A I would correct something. You have prodded my
6 memory, and I have a recollection that Mr. Apodaca was
7 wearing female makeup at that meeting, but I don't
8 recall the garb.
9 Q Okay. Was -- did Mr. Apodaca at the -- let me
10 backup a minute, and forgive me if I already asked you
11 this, but I don't recall.
12 At the meeting with Mr. Apodaca, Mr. Moxon, and
13 Mr. Ingram, where did that occur?
14 A I do not recall exactly. For some reason, I
15 think it is at Mr. Moxon's office.
16 MR. BYRNES: Your Honor, I would like -- I
17 would like to place an objection on the record unless
18 we're somehow we're going to get back around to the
19 lawsuit and the representation of Mr. Hurtado by
20 Mr. Wager.
21 This is all very interesting, but I don't see
22 how Mr. Apodaca is related to this -- the issues right
23 before us today in the deposition, which, I believe,
24 Mr. Wager was representing Mr. Hurtado in a drug
25 paraphernalia case.
1 I don't believe Mr. Apodaca is a witness in
2 that. We're talking about time periods -- some later
3 time periods in different matters. I fail to see the
4 relevance in this deposition.
5 MS. MATTHAI: The relevance is that Mr. Apodaca
6 has testified that someone came to him at the
7 Men's County Jail, asked him to make statements with
8 regard to Mr. Berry, made a deposit of money for him at
9 the jail, and that thereafter he made a videotape in
10 which he makes a number of statements claiming that
11 Mr. Berry engaged in sadomasochistic sexual practices
12 with him.
13 At his deposition in this action, he
14 acknowledged that he couldn't even recognize Mr. Berry,
15 had no way of saying he had ever seen him before, and
16 commented that he could not imagine that he would have
17 ever gone out looking like he looked in the videotape,
18 and he must have been really high at the time.
19 JUDGE LACHS: Something again Mr. Wager is used
20 to with his clientele. I say that only as a former
21 public defender.
22 MS. MATTHAI: Yes.
23 And the first deposition that was noticed in
24 the "Hurtado versus Berry" case was the deposition of
25 Mr. Apodaca.
1 Unfortunately, for those who were pushing this
2 case, Mr. Apodaca was unavailable for that proceeding
3 because he was, in fact, back in jail.
4 So it is relevant to the generation and attempt
5 to prosecute this action against Mr. Berry.
6 So back to --
7 MR. ABELSON: I'm not sure -- what is the
8 relevance to this case?
9 JUDGE LACHS: It sounds like what you're
10 saying, Ms. Matthai, is that Mr. Apodaca says that he
11 was indirectly paid to make statements concerning
12 Mr. Berry for Mr. Wager and Mr. Moxon --
13 MR. BYRNES: Not Mr. Wager necessarily.
14 MS. MATTHAI: For Mr. Moxon and Mr. Ingram for
15 use in this case.
16 MR. BYRNES: So why -- if that is your
17 position, are you asking Mr. Wager if he was the person
18 that put the money up? He said he didn't put make the
19 video. Otherwise, we're spending a lot of time talking
20 about things that don't relate to Mr. Wager's
22 JUDGE LACHS: I'm going to recommend overruling
23 the objection. Again, this is certainly within the
24 bounds of discovery vis-a-vis the case that we have
25 before us.
1 MR. ABELSON: I'm not going instruct him not to
3 MS. MATTHAI: And now I must confess I don't
4 have any recollection of what last question was.
5 MR. ABELSON: Then I will instruct him not to
7 MS. MATTHAI: Okay. You're up.
8 (The record was read.)
9 BY MS. MATTHAI:
10 Q When you visited Mr. Apodaca in jail on
11 April 13th, 1999, did you deposit any money with the
12 jail for his account?
13 A I think I did.
14 Q How much money?
15 A I do not recall. I have a figure that pops in
16 my mind of $100 or maybe $200, but I do not recall.
17 Q Could it be $300?
18 A Could be.
19 Q All right. And what was your purpose in
20 depositing 3- -- somewhere, let's say, between 100 and
21 $300 in Mr. Apodaca's account at the jail?
22 A So he would have money while he was in jail and
23 money when he was out.
24 Q Did you at any time represent Mr. Apodaca?
25 A I don't think so.
1 Q Did you receive anything in return for the
2 money that you deposited in Mr. Apodaca's account?
3 A No.
4 Q Did you ever receive back from Mr. Apodaca any
5 of the funds that you had deposited in his account at
6 the jail?
7 A I don't recall.
8 Q What was the source of the money that you
9 deposited in Mr. Apodaca's account at jail?
10 MR. ABELSON: Objection. Attorney-client
12 MS. MATTHAI: I don't think so.
13 JUDGE LACHS: My recommendation is to overrule
14 that objection. I can't understand why it would be
16 MR. ABELSON: Well, I think it's privileged --
17 I don't know who it was given by. But if it was given
18 by his client or given by his client's other lawyer, I
19 think it would be privileged.
20 MS. MATTHAI: I -- among other problems with --
21 first of all, I don't think it's privileged in the first
23 Secondly, I think that given the testimony in
24 this action by Mr. Apodaca, that the money was deposited
25 in his account in return for false statements to be made
1 against Mr. Berry. I think that puts it into the crime
2 fraud exception to the attorney-client privilege.
3 JUDGE LACHS: I think that's a good
4 possibility, Mr. Abelson.
5 MR. ABELSON: Well, it depends --
6 JUDGE LACHS: Unless we --
7 MR. ABELSON: I didn't mean to interrupt you.
8 JUDGE LACHS: Go a head.
9 MR. ABELSON: I don't know what Mr. Ap- -- I
10 have not been present nor do I have any knowledge of
11 what has gone at these depositions.
12 MS. MATTHAI: Oh, what you've missed.
13 MR. ABELSON: I guess so.
14 But I don't know who he said told him to lie,
15 if he said this, and that would make a -- that would
16 make a difference.
17 If his testimony with respect to Mr. Wager is
18 that he met him at the jail and that's all he
19 remembers --
20 JUDGE LACHS: Ms. Matthai, in one of her --
21 what did you call them? -- telephone books?
22 MR. BYRNES: Yes.
23 JUDGE LACHS: -- enclosed a portion of
24 Mr. Apodaca's deposition.
25 And, I think, Mr. Apodaca makes it clear in his
1 deposition that his belief is that money was put into
2 his account for -- in return for the testimony he gave,
3 which certainly would border, at least on criminal
4 activity if that were not true -- if it's true and
5 particularly if he said was not true.
6 So unless Mr. Wager was going around donating
7 money to people in the jail as an ordinary custom of
8 his, I would suspect that this is not privileged.
9 MR. ABELSON: I need to know what was stated at
10 a previous deposition by Mr. Apodaca.
11 JUDGE LACHS: I don't have the --
12 MR. BYRNES: I have my part of the phone book.
13 I don't have it marked, but -- that was your husband's
14 case, wasn't it, the State Farm case, Ms. Matthai?
15 MS. MATTHAI: On appeal, yes, but not during
17 JUDGE LACHS: This is not certified, but this
18 is a copy.
19 MR. ABELSON: Your Honor, may we take a quick
21 JUDGE LACHS: If it's agreeable with
22 Ms. Matthai.
23 MS. MATTHAI: That's fine.
24 JUDGE LACHS: Sure.
25 MR. BYRNES: Thank you.
1 (A recess was taken.)
2 MR. ABELSON: Back on the record.
3 Let me make a little statement. I'm going
4 withdraw any objection to his answer or answers in this
6 If you want to ask him questions about why --
7 you want to go more into why he paid him the money and
8 how that came about, that's fine --
9 MS. MATTHAI: Okay.
10 MR. ABELSON: -- because I want to clear it up.
11 MS. MATTHAI: Okay.
12 Q First of all, do you have a recollection of how
13 much money it was?
14 A I do not, other than the figures we have
16 Q All right. What was the source of the money?
17 A I think it was my money.
18 Q You think it was your money?
19 A Right.
20 Q Did you receive reimbursement of that money
21 from anyone else?
22 A I believe I did.
23 Q Who did you receive reimbursement from?
24 A I believe Mr. Moxon.
25 Q And when was it that you received reimbursement
1 from Mr. Moxon for the money that you had given to
2 Mr. Apodaca?
3 MR. ABELSON: You're not going to have that in
5 THE WITNESS: My records do not know -- let me
6 correct something.
7 I do have a notation as to the second meeting
8 with Mr. Apodaca.
9 MS. MATTHAI: Okay.
10 Q When was that second meeting?
11 A It was April 22nd.
12 Q Does that also refresh your recollection as to
13 who was that the second meeting?
14 A Yes.
15 Q Who was at that meeting?
16 A Mr. Moxon and Mr. Ingram. But I think I did
17 not seek reimbursement nor was I reimbursed for the
18 amount of money that was put on the account of
19 Mr. Apodaca.
20 But I believe it was -- I have some
21 recollection somehow of walking from the Central Jail
22 over to that part of the jail where you deposit money in
23 a person's account. But I have done that with other
24 clients, put money on their accounts, and I cannot say
25 that my recollection of taking that walk is for sure
1 after that meeting with Mr. Apodaca since I've done it
2 on other occasions.
3 Q You do recall that you put money in
4 Mr. Apodaca's account; correct?
5 A I do recall money placed in his account, and I
6 believe I did.
7 Q You believe you received reimbursement for that
8 money from Mr. Moxon?
9 A I believe in looking at my bills I didn't. I
10 didn't seek it.
11 Q Okay. So you didn't bill Mr. Moxon for it?
12 A I don't think so, and I haven't seen these
13 bills in a long time.
14 MR. BYRNES: You'll bill him tomorrow.
15 THE WITNESS: Pardon?
16 MR. BYRNES: You'll bill him tomorrow.
17 THE WITNESS: It does not appear that I sought
18 it; so I don't believe I did.
19 BY MS. MATTHAI:
20 Q Did you -- have you at any represented
21 Anthony Apodaca?
22 A I don't believe so.
23 Q Did you give Mr. Apodaca anything other than
24 the money that was placed into his account?
25 A I don't recall.
1 Q Did you give Mr. Apodaca any clothing?
2 A I don't recall doing that.
3 Q Did you give Mr. Apodaca any certificates for
4 food, such as McDonald's certificate?
5 A I think I did not do that.
6 Q Was anything given to Mr. Apodaca at the time
7 of the second meeting with him?
8 A I don't recall.
9 Q Was any money given to Mr. Apodaca at time of
10 the second meeting with him?
11 A Not my by me.
12 Q Was any -- did you observe any money to be
13 given to Mr. Apodaca at the time of the second meeting
14 by anyone else?
15 A There may have been, but I don't know for sure.
16 Q Okay. What is the basis of your statement that
17 there may have been monies given to Mr. Apodaca at the
18 time of the second meeting?
19 A One of the items that we are claiming a
20 privilege upon.
21 Q All right. Which item? In other words -- can
22 you tell me which of the item items we enumerated as
23 items you were claiming a privilege on is the basis for
24 your belief that monies may have been given to
25 Mr. Apodaca at the time of this second meeting?
1 MR. ABELSON: It's the witness fee check.
2 MS. MATTHAI: Okay.
3 THE WITNESS: That's earlier.
4 MR. ABELSON: It's earlier?
5 THE WITNESS: It's written earlier.
6 MR. BYRNES: Your Honor, if I submit if the
7 meeting took place April 22nd -- I'm assuming that's
8 1999 -- the Complaint in this case was filed April 5th,
9 1999. There already at that point was a Complaint on
10 filed of Michael Hurtado suing Graham Berry.
11 Kendrick Moxon was Mr. Hurtado's attorney.
12 Mr. Ingram was Mr. Moxon's investigator. Mr. Apodaca
13 was a possible witness in this case; so as to any
14 discussions relating to Mr. Apodaca are now covered
15 under the attorney work-product privilege of Mr. Moxon.
16 THE WITNESS: Regardless --
17 MR. ABELSON: Let the judge rule.
18 THE WITNESS: Okay.
19 JUDGE LACHS: I don't know the date that the
20 criminal case ended.
21 MR. BYRNES: It may be in the docket sheet.
22 MR. ABELSON: When did the criminal case end?
23 JUDGE LACHS: It's in the docket. It appears
24 that the -- there was a hearing February 11 and --
25 MR. ABELSON: Of what year.
1 JUDGE LACHS: I'm sorry. Of '99.
2 -- a diversion request is set aside. And then
3 there is an 8-12-99 hearing, and the defendant was
4 represented by Mr. Wager. That's when the case was
5 dismissed under 1385.
6 So at least you were representing him
7 apparently August 12th, '99, which would overlap.
8 MR. BYRNES: So Mr. Hurtado had two attorneys
9 at that point, presumably in April, both Mr. Moxon on
10 the civil side and Mr. Wager on the criminal side; so I
11 submit any conversations that they had were privileged.
12 MS. MATTHAI: I would disagree for several
13 reasons: Starting again with the fact that Mr. Apodaca
14 has testified to a number of both money and other items
15 that he was given in return for testimony.
16 And, in addition, there is additional
17 foundational issues that I'll go into with Mr. Apodaca's
18 role, in any, in the criminal matter of Mr. Hurtado.
19 THE WITNESS: I think I need to correct
21 Since my notes show -- my statements show that
22 I met with Mr. Apodaca first on April 13th, and the
23 check I'm referring to is for $50 for Mr. Apodaca as a
24 witness fee on April 12th, and I have a copy of it, it
25 may be that that is the sum of money that I placed in
1 his account on the 13th, although it must have been in
2 cash because I don't think they take checks there.
3 MS. MATTHAI: I don't think so.
4 Can we have a stipulation they don't take
6 MR. BYRNES: Not too many guys like that on the
7 other side of the glass.
8 THE WITNESS: But I have some recollection of
9 placing in more than $50, but --
10 MS. MATTHAI: Right.
11 Q Does the check that --
12 A I only have the front of the check.
13 Q You don't even know whether it's been
15 A Right.
16 Q Okay. Did -- was Mr. Apodaca a witness to
17 anything in the drug paraphernalia case?
18 A No.
19 MR. ABELSON: He was a witness.
20 THE WITNESS: He was not a witness to anything
21 relating to that case insofar as the paraphernalia
22 itself, no.
23 MR. ABELSON: But you --
24 THE WITNESS: Of course. That's true. I would
25 have to correct that.
1 BY MS. MATTHAI:
2 Q And how would you correct it at Mr. Abelson's
4 A Well, it's not at Mr. Abelson's suggestion. I
5 took your question to mean was he a witness to the
6 transaction at the time Mr. --
7 Q In all fairness to you, let me break the
8 questions down. I'm not trying to create a problem here
9 for you.
10 A All right.
11 Q The -- Mr. Apodaca was not a witness to the
12 criminal activities of Mr. Hurtado in connection with
13 the drug paraphernalia case; correct?
14 A Correct. The alleged activities, right.
15 Q Okay. The -- the only possible purpose of
16 Mr. Apodaca in connection with the criminal case was as
17 a witness to the claim that Mr. Berry had purportedly
18 engaged in some improper sexual practice; correct?
19 A Or furnishing drugs to him.
20 Q Did Mr. Apodaca at any time make any statement
21 that Mr. Berry had furnished drugs to him?
22 A I don't recall. My recollection is this,
23 essentially: My recollection was that at the initial
24 meeting at the County Jail there was a real question in
25 his mind as to who Mr. Berry was. But there was an
1 indication that he may well have had contact with him;
2 so the money was placed on his account to support him
3 inside and so he would have money outside so he would
4 make a meeting because there was a real potential if he
5 didn't have money when he was outside, he would turn
6 tricks and he would wind upright back inside.
7 Q As he did?
8 A As he did ultimately anyway. But my
9 recollection is somehow that was successful enough that
10 he did make the meeting.
11 My recollection of the subsequent meeting with
12 Moxon & Kobrin is that he was not going to be very
13 helpful to me in the criminal case.
14 Q And, in fact, Mr. Apodaca could make no
15 statement that would confirm any activity between
16 Mr. Hurtado and Mr. Berry; correct?
17 A Correct.
18 Q Did you -- let me ask it this way: Who first
19 told you that Mr. Apodaca could be a potential witness
20 to Mr. Berry's activities?
21 MR. ABELSON: If it's not privileged.
22 THE WITNESS: Well, let me tell you.
23 (Discussion off the record between the
24 witness and his attorney.)
25 MR. ABELSON: We're going assert the privilege.
1 MR. BYRNES: Could I see those billings? I'm
2 just curious.
3 MR. ABELSON: Sure.
4 MR. BYRNES: Thank you.
5 BY MS. MATTHAI:
6 Q Did you at any time have any contact with
7 anyone from the -- I forget the name -- any of the youth
8 services groups operating in Hollywood in connect with
9 Mr. Apodaca?
10 A I cannot tell, but I have some recollection of
11 some type of a telephone communication.
12 MR. ABELSON: Speak up, Don.
13 THE WITNESS: I have some recollection of some
14 type of communication from some service organization
15 regarding Mr. Apodaca.
16 BY MS. MATTHAI:
17 Q At the time of the meeting with Mr. Apodaca,
18 Mr. Moxon, and Mr. Ingram on April 22nd, 1999, did you
19 see anyone provide Mr. Apodaca with clothing?
20 MR. ABELSON: It's asked and answered.
21 THE WITNESS: I don't recall.
22 BY MS. MATTHAI:
23 Q Did you see anybody provide Mr. Apodaca at the
24 time of that meeting with any food vouchers of any kind?
25 A I don't recall.
1 Q Did -- were the fees for Mr. Hurtado's
2 representation in the criminal matter paid by Moxon &
4 MR. ABELSON: Objection.
5 MR. BYRNES: Objection.
6 MS. MATTHAI: It falls under the crime fraud
7 exception to the attorney-client rule because we know in
8 this case that there was money given to Mr. Apodaca, as
9 this witness says, to secure his presence to get a
10 statement. Mr. Apodaca says it was for his testimony.
11 We know in Mr. Cipriano's case, another man who
12 was supported to give testimony against Mr. Berry, he
13 received a variety of consideration including the
14 provision of legal services, a condominium or house, a
15 car, and large sums of monies funneled through a
16 nonprofit corporation. And the documents or clear that
17 money came from Mr. Moxon.
18 One of the questions in this case is whether
19 this entire litigation against Mr. Berry has been
20 instigated and supported and paid for by the Church of
21 Scientology as a part of its fair game practices against
22 Mr. Berry, and I would assert that there is a crime
23 fraud exception to the privilege to the question of
24 whether or not Mr. Moxon & Kobrin and/or the Church of
25 Scientology paid for the lawyers, who have represented
1 Mr. Hurtado in various criminal matters, thus providing
2 an economic benefit to him which may or may not have
3 influenced his willingness to participate and testify in
4 this case.
5 MR. BYRNES: Your Honor, it's interesting the
6 Second District Court of Appeals in a case "State Farm
7 Fire & Casualty versus Superior Court," 54 Cal. App 425,
8 discusses the exception of the attorney-client
10 Interesting enough, it's Ms. Matthai's husband
11 that argued that case. He then took -- their law firm
12 then took the other side to keep out information that
13 fraud had been perpetrated by State Farm claims agents
14 in denying coverage in the Northridge earthquake.
15 In that case, the Court goes in great length to
16 describe what occurred, all of the conduct and various
17 behavior of State Farm.
18 What Ms. Matthai is trying to do is say that
19 Mr. Apodaca has stated somebody is paying him for his
20 testimony, somehow this opens the door up and now makes
21 permissible her question of saying, "Who paid for
22 Michael Hurtado's legal fees?"
23 If she claims that this is something that has
24 been generated and it's usually instigated by the
25 Church of Scientology, at some point someone's going to
1 say, "Maybe; maybe not. So what? Mr. Berry has
2 admitted he had sex with a client."
3 There is a rule of Professional Conduct, 3-120,
4 that says you can't do that. There is a Business and
5 Professions Code section that says you can't do that.
6 There is also Rules of Professional Conduct
7 that allow an attorney to hire experts and hire other
8 people to further an interest in a client's claim.
9 That's Rule 4-210.
10 "(Reading) Payment of personal
11 and business expenses incurred by or
12 for a client."
13 And it allows -- this is what these big PI
14 lawyers do when they retain experts and lots of people
15 to build a damage case up.
16 I submit it has been stated to me that
17 Mr. Moxon may have retained people, including
18 Mr. Ingram, but people where he's gathering information
19 to prove his damage claim against Mr. Berry as a
20 plaintiff's lawyer who made a claim on behalf of
21 Mr. Hurtado that Mr. Berry's had improper, impermissible
22 sexual relations with his client.
23 So even if we get to the point where someone
24 says Mr. Moxon has retained or paid for some bills,
25 there is nothing improper with it, and this isn't as
1 though there is a dispute about whether the sexual
2 activity took place. Mr. Berry's the one who brought it
3 up to begin with.
4 The question is: In what fact or circumstance
5 or situation did that conduct occur? That is what a
6 trier of fact is going to determine, not who instigated
7 or paid for the litigation. That's not relevant.
8 What's more important is: Under what
9 circumstances did Mr. Berry have sex with Mr. Hurtado?
10 MS. MATTHAI: If I may be heard.
11 JUDGE LACHS: Sure.
12 MS. MATTHAI: "Taylor versus State Farm" is a
13 case on which Robie & Matthai was counsel of record, I
14 would note, that after the discovery had already been
15 concluded that was in question on a crime fraud
17 And I would note that we have lost on the crime
18 fraud section, and the Court of Appeals stated that the
19 matters that were in question in that case were, in
20 fact, discoverable.
21 No. 2, it is not just Mr. Apodaca who has made
22 statements with regard to a belief that he was being
23 paid for his testimony.
24 We also have Mr. Cipriano's statements, and
25 more importantly than Mr. Cipriano's statements, which I
1 would suggest are open to some question, we have
2 documentary evidence which shows the payments that were
3 actually made to Cipriano during the course of that
4 testimony being given against Mr. Berry, and those
5 payments were extensive.
6 And here, the statements with regard to the
7 sexual relationship and the reference to the State Bar
8 rule are somewhat disingenuous.
9 There is a State Bar ruling, in deed, that
10 deals with sex with a client. And the one -- one of the
11 provisions of that rule is that there is not a
12 prohibition of sex with a client if the client and the
13 attorney have engaged in a sexual relationship prior to
14 the representation, which is what Mr. Berry's position
15 is here, and what he testified to in the
16 "Berry versus Cipriano" case, which is the predecessor
17 of this case.
18 What happened factually, for the record, is
19 that Mr. Berry was deposed ad nauseam in that case, some
20 12 sessions of his deposition, in which every aspect of
21 his life was inquired about including whether he had
22 represented any people at any time pro bono.
23 In that testimony, Mr. Berry identified
24 Mr. Hurtado. He was also asked the names of everyone
25 that he ever had sex with, and he included Mr. Hurtado
1 in that list.
2 It is Mr. Berry's position that the sexual
3 relationship with Mr. Hurtado was consensual. It began
4 before any representation; that after Mr. Hurtado was
5 arrested on a violation of a restraining order charge
6 for having assaulted his aunt and grandmother, that the
7 relationship -- he did represent him on that case, which
8 was a very brief representation. The case was
9 essentially -- immediately went away.
10 The relationship continued up until November,
11 the Thanksgiving weekend, to be specific. It then
12 ended, and the representation on the paraphernalia case
13 commenced after that because the arrest on the
14 paraphernalia case did not occur until December of that
16 The 18th -- 17th, 18th sticks in mind. I would
17 hate to be quoted in on that. I could be in error on
18 that exact date and that there was no sexual
19 relationship with Mr. Hurtado at any point after that
20 Thanksgiving weekend of that year.
21 Mr. Hurtado, frankly, has made literally absurd
22 statements in this case that he is horrified, appalled,
23 and disgusted by any homosexual relationship and, yet,
24 claims that Mr. Berry's statements [sic] that he must
25 have sex for this representation, got on the bus to go
1 to Mr. Berry's house to perform these sexual activities.
2 And it is Mr. Berry's position that the entire
3 genesis of the suit and the supportive testimony in this
4 suit is at the instigation of the Church of Scientology
5 with whom Mr. Berry has had an on-going war for
6 literally years. And I think that the information that
7 is relevant to that question is, in fact, relevant to
8 this case and is discoverable; so we ask for a ruling
9 that it's discoverable.
10 MR. BYRNES: I submit, your Honor -- I don't
11 want to drag this on ad nauseum -- Rule 3-120 says.
12 "(Reading) A member shall not
13 require or demand sexual relations
14 with a client incident to or as a
15 condition of any professional
17 Mr. Hurtado says that he was told by Mr. Berry
18 he had to have sex with him in order to have Mr. Berry
19 represent him.
20 Mr. Berry has testified that he didn't charge
21 him anything, he had partners in his law firm, that he
22 made, I guess, appearances for him on different matters.
23 While Ms. Matthai talks about the
24 inconsistencies in Mr. Hurtado's statement, I submit
25 Mr. Berry's deposition is full of his, at times, just
1 confusion of times and dates and when he saw Michael,
2 when he first saw Michael, the various things that were
3 going on.
4 He says -- at various times he made it sound
5 like they were lovers, but this is -- his relationship
6 with Michael is such that he didn't take Michael to
7 dinner at a restaurant or go to a movie or go to a play.
8 They didn't do anything social that a loving couple or
9 people in a loving relationship would in ordinarily do.
10 It was a sexual relationship.
11 Michael's claim is that he was told that he had
12 to do these things or fear the dire consequences he was
13 suffer in these court proceedings without Mr. Berry's
14 help, and, yes, he would get on the bus to go from
15 Santa Monica to -- wherever he lived -- to wherever
16 Mr. Berry lived in order to fulfill his part of this
17 relationship they had.
18 I submit that while Ms. Matthai talks about all
19 this other litigation, and what she believes the
20 Church's attorneys have or haven't done in this case,
21 there have been 15, 18 depositions noticed by the
22 defendants, by Mr. Berry. We're taking the
23 grandmother's deposition. We're taking Miguel Hurtado's
24 doctor's deposition.
25 We've taken tons of depositions about people
1 that aren't percipient witnesses to any of the issues
2 that ultimately the trier of facts will have to resolve.
3 What was the nature and circumstance of this sexual
5 And so I submit that it certainly does not fit
6 in this crime fraud exception to the attorney-client
7 privilege. It's privileged information at this point
8 because --
9 MR. ABELSON: I'm not going to let him let
10 answer any question where he is allegedly involved in
11 some crime.
12 JUDGE LACHS: Luckily, I don't have to deal
13 with virtually everything that counsel talked about.
14 MR. ABELSON: Right.
15 JUDGE LACHS: I have a very, very limited
16 question before me.
17 It appears as though, first of all, there is a
18 deposition in which Mr. Apodaca said that Mr. Wager
19 deposited money in his account. This is a man who he
20 has never met before and that Mr. Apodaca felt that this
21 was for his testimony in the case.
22 There is a deposition from Mr. Cipriano in
23 which he also indicates a number of things being paid
24 for -- testimony which he says was false, being
25 presented by -- with a badge by Mr. Ingram, amongst
1 other things.
2 There is a lawsuit pending -- a lawsuit that
3 we're concerned with now in which Mr. Hurtado is not
4 just saying that Mr. Berry had sex with him, and this is
5 wrong. Mr. Hurtado is also asking for -- and this by
6 the way is Amended Complaint -- he's also asking for
7 punitive damages.
8 Certainly, I believe it is relevant as to
9 punitive damages as to whether or not somebody --
10 whether this is a lawsuit which is something that
11 Mr. Hurtado is bringing because he felt he was wronged
12 or because somebody came to him and put him up to it,
13 and I'm not saying they did. I'm just saying that
14 that's a possibility.
15 It also would appear to me to be relevant as to
16 his veracity, because if somebody comes to you and
17 provides money, that can affect your veracity; so I
18 think it's relevant.
19 Now we get to --
20 MR. BYRNES: Paying money on behalf of
21 Mr. Apodaca?
22 JUDGE LACHS: The question dealt with
23 Mr. Hurtado, who paid his fees to Mr. Wager.
24 MR. BYRNES: Okay.
25 JUDGE LACHS: And I think that a jury could
1 find -- I'm not -- first of all, I don't know if it's
2 true. But if it were true, I think a jury could find
3 that whoever was paying, if it wasn't Mr. Hurtado his
4 himself -- let's assume's Ms. Matthai's theory -- let's
5 not beat around the bush -- that the Church of
6 Scientology is paying for this, and the Church has had
7 fights with Mr. Berry for years and years and years.
8 MR. BYRNES: Okay.
9 JUDGE LACHS: Let's assume that.
10 Then a jury might certainly see this as --
11 whether it affects Mr. Hurtado's credibility, and it
12 certainly might affect their view of punitive damages in
13 the least.
14 MR. BYRNES: I thought punitive damages are to
15 make an example out and punish the wrongdoers, the
17 JUDGE LACHS: Uh-huh.
18 MR. BYRNES: Without regard to the damages the
19 plaintiff suffered, if they believe his conduct is so
20 atrocious and so antisocial we need to make an example
21 on this person, it's supposed to bear some relation to
22 their net wealth or something.
23 JUDGE LACHS: In theory.
24 MR. BYRNES: So if the law believes that this
25 relationship between an attorney and a client is of such
1 a high fiduciary confidential level relationship that
2 the -- traditionally, they aren't in equal bargaining
4 The lawyer is in this position of power and
5 authority and the lawyer abuses that position. If they
6 would see that wrong, even if it's -- whether
7 Michael Hurtado was an alter boy clean as the driven
8 snow or whether he is a young male prostitute, it is
9 still wrong for the lawyer to condition representation
10 on sexual favors.
11 They may say his damages aren't as great, that
12 he had sex with someone twice his age and someone he
13 might not have had sex with, may not be as offensive to
14 a male prostitute as it would be to someone who is a
15 virgin. But the punitive damage aspect goes to
16 punishing the purse of the wrongdoer, not the damages
17 that Hurtado would suffer.
18 JUDGE LACHS: I think I agree 100 percent.
19 First of all, I'm just talking about relevance. I agree
20 100 percent with you as far as theory. My experience
21 over the years that I spent on the bench is that juries
22 look at both sides.
23 MR. BYRNES: Right.
24 JUDGE LACHS: And to that extent, I think the
25 jury, if they believe that Michael Hurtado was a pond in
1 a much larger fight, might treat, first, his testimony,
2 and, secondly, if they are inclined to give damages, I
3 think they might -- it might affect their judgment as to
4 damages; so I think it's relevant.
5 Now you get to the question of -- and by the
6 way, I want to again make it absolutely clear that I'm
7 not venturing any opinion on -- as to any of this as to
8 how it's going to all fall out.
9 As to the privilege, if you have a situation
10 where several people have said that, "We were supplied
11 with money for testimony," then -- and, particularly,
12 with Mr. Cipriano where it was false testimony, then we
13 get to the question of whether this does not involve the
14 exception to the attorney-client privilege.
15 MR. BYRNES: I thought that information would
16 be relevant to attack the credibility of the witnesses,
17 "So and so, your testimony has basically been bought,"
18 and the person who is orchestrating that. No one is
19 saying that Michael Hurtado is doing this, and now
20 you're asking -- you're creating an exception to
21 Michael Hurtado's privilege.
22 He's the holder of the attorney-client
23 privilege; so you're saying conduct between this
24 witness, this colorful witness, as he may have been
25 described, and whatever his recollection is, or his
1 impression of why he is being paid this money somehow,
2 if that smells a little funny, that conduct doesn't
3 relate to Michael, waives Michael's right to
4 attorney-client privilege? I think that's --
5 JUDGE LACHS: The question -- first of all,
6 there are the two people, Mr. Apodaca and
7 Mr. Cipriano -- I don't know how he pronounces it.
8 MS. MATTHAI: "Cip."
9 MR. BYRNES: If he -- taking Ms. Matthai's
10 theory and that this --
11 JUDGE LACHS: Let's assume something,
12 Mr. Brynes. Let's assume just for purposes of argument
13 that somebody wants to get someone and they go out
14 suborning perjury and they pay this person, Person A,
15 directly or indirectly, and then they pay Person B,
16 directly or indirectly, and then that they pay Person C,
17 and if that payor is involved in this conspiracy,
18 does -- is there still the attorney-client privilege
19 between payor and -- attorney-client privilege between C
20 and the attorney?
21 MR. BYRNES: You're saying -- just to put names
22 on these people. If we have Hurtado --
23 JUDGE LACHS: Right.
24 MR. BYRNES: -- and he is not involved in
25 Cipriano, doesn't know him, never met him, as far as I
1 know, he's not the one making these arrangements putting
2 money on Mr. Apodaca's books. I don't think Mr. Apodaca
3 is saying he met Michael, and Michael some how asked him
4 to do this.
5 If Michael -- if the conduct is -- even if
6 you're going so far to say it's Mr. Moxon or it's
7 Mr. Ingram or someone that's close to Mr. Hurtado or
8 part of his legal team, does their conduct -- it may
9 waive any privilege that Michael may claim between
10 Mr. Apodaca -- conversations that Mr. Moxon had with
11 Mr. Apodaca or conversations that Mr. Moxon had with
12 Mr. Cipriano.
13 But how does it waive Mr. Hurtado's claim of
14 conversations with his own lawyer. Unless you're going
15 say he was part of the whole thing, this -- our guy with
16 special education background is the one who conspired
17 and created this whole thing.
18 JUDGE LACHS: I don't think Ms. Matthai's
19 theory -- I'm going off her theory -- don't think her
20 theory is that Mr. Hurtado was the mastermind of all
22 MS. MATTHAI: No.
23 MR. BYRNES: So he shouldn't be the one -- he's
24 my client. The Church of Scientology isn't my client.
25 Mr. Moxon is not my client.
1 My client -- on behalf of my client, I object
2 to information being revealed as to who paid for his
3 legal services.
4 MS. MATTHAI: The problem, of course, is
5 whether Mr. Hurtado received financial benefit as one of
6 the incentives to provide false testimony against
7 Mr. Berry.
8 MR. ABELSON: Did you ask Mr. Hurtado?
9 MR. BYRNES: She did.
10 MS. MATTHAI: That was going to be my next
11 point, which is that I think the privilege has been
12 waived because Mr. Hurtado made a statement as to who
13 paid these fees.
14 JUDGE LACHS: Well, then we can get beyond all
15 of this.
16 MS. MATTHAI: Then we not only have a waiver of
17 the privilege, but we also have a credibility issue as
18 to whether Mr. Hurtado was accurate in his statement as
19 to who paid the fees.
20 So I will again ask who is it that paid your
22 MR. ABELSON: I'm going to let him answer. I
23 have to see what Hurtado said, if there has been a
24 waiver. I'm not going to an make a determination today.
25 I would be happy to receive whatever you want to send
2 JUDGE LACHS: Clearly, if he has already said
3 who paid his fees, there is a waiver.
4 MR. ABELSON: Correct.
5 JUDGE LACHS: Okay?
6 You say that he did?
7 MS. MATTHAI: Yes.
8 JUDGE LACHS: In a deposition?
9 MS. MATTHAI: In his deposition. Or,
10 perhaps -- I know who he said paid them. I can't -- I
11 believe it was in his deposition. It's conceivable it
12 is in an answer to interrogatory. I'm not positive
13 about that. But I know he has made a representation as
14 to who paid those fees.
15 MR. BYRNES: I certainly could have missed it.
16 I was sitting in his deposition, although I might have
17 missed the first 10 minutes of it. I don't remember him
18 answering that question, and I was at Mr. Hurtado's
19 deposition at the County Jail; so I don't know if it was
20 in some pleading filed before I was involved in this
21 case. Until I see that, I will have to assert his
23 MS. MATTHAI: I will also for the record to
24 state that Mr. Hurtado himself has no known source of
1 JUDGE LACHS: Okay. Well, that I don't think
2 is particularly relevant.
3 No. 1, if Hurtado has previously indicated who
4 pays his fees in deposition or Interrogatories or in any
5 other way, then it's waived, and we're just spinning our
7 MR. ABELSON: Correct.
8 MR. BYRNES: Query: I don't recall that having
10 If he says, "This is who paid my fee on this
11 case," that doesn't necessarily waive the right he may
12 have other cases where he retained attorneys.
13 JUDGE LACHS: I assume Ms. Matthai meant who
14 paid his fees on the criminal case.
15 MR. BYRNES: That Donald Wager represented him
16 on; is that correct?
17 MS. MATTHAI: Yes. Mr. Brynes has some concern
18 because I also want to know who paid his fees on his
19 other criminal cases that occurred after this to see
20 what continuing and additional benefits he may have
21 reaped by this program.
22 JUDGE LACHS: So if he -- if he already has
23 indicated in any way who's paid -- who's paid Mr. Wager
24 for the paraphernalia case, then he's waived that.
25 MR. BYRNES: Okay.
1 JUDGE LACHS: That would be my recommendation.
2 MR. ABELSON: That's fine, your Honor.
3 I would also like to point out -- and I haven't
4 been involved in this case, but just on one small
5 facet - I understand that he has an IQ of something like
7 MR. BYRNES: I think it's higher than that,
8 maybe 86. He has been in special ed classes since he's
9 been 8 years old.
10 JUDGE LACHS: That should qualify him for jury
12 MR. BYRNES: He could sleep up there with the
13 best of them.
14 JUDGE LACHS: I'm sorry. I didn't mean that.
15 MS. MATTHAI: I would stipulate that that could
16 be stricken if the Court would like.
17 JUDGE LACHS: I would like to strike that.
18 MS. MATTHAI: I would stipulate to that.
19 That representation is at also not necessarily
20 accurate. We have a number of records that --
21 JUDGE LACHS: Excuse me. It does not matter.
22 If you're saying that because of his IQ he didn't know
23 who paid his bill --
24 MR. ABELSON: No. I'm saying he couldn't have
25 waived it because he wouldn't have known the
2 MS. MATTHAI: Good Lord.
3 JUDGE LACHS: It sounds from what Ms. Matthai
4 was saying it was either at a deposition or Answers to
5 Interrogatories, et cetera, none of which, probably
6 involved just he himself. Probably --
7 MR. ABELSON: True.
8 JUDGE LACHS: Probably his lawyers.
9 MR. ABELSON: Was Mr. Moxon there at that
11 MS. MATTHAI: No. He did not join us at the
12 Men's Central Jail. Ms. Paquette did.
13 MR. ABELSON: I'm sorry? Ms. Paquette.
14 JUDGE LACHS: In any event, again, I say that
15 if he's already indicated it, it's waived.
16 Secondly, if he did not already indicate it,
17 then we have the criminal conspiracy. Honestly, I'd
18 have to read the case that you were referring to.
19 MR. BYRNES: Okay.
20 JUDGE LACHS: And I have absolutely no problem
21 with lawyers taking different sides on the same
23 MS. MATTHAI: Especially after we lose the
24 first time. We've learned.
25 JUDGE LACHS: Exactly. I'm going to reserve a
1 ruling that, and Mr. Brynes, if you can get me a copy or
2 just give me the cite, I can look it up.
3 MR. BYRNES: I'll do it now while we have the
4 reporter here. It's Bill Lockyer as Attorney General --
5 I'm sorry. I'm sorry. "Magg- -- "Magill versus
6 Superior Court."
7 This is a case where the attorney-client
8 work-product privileges were discussed. It's the case
9 of "Magill versus Superior Court," 201 Daily Journal
10 DAR 432, and it's printed out on Friday, January 12,
12 JUDGE LACHS: And I was particularly referring
13 to the -- I think you said the Taylor case.
14 MR. BYRNES: The Taylor case -- this is a case
15 that, by coincidence, I came across, "State Farm Fire &
16 Casualty versus Superior Court." And this is the case
17 that Robie & Matthai were counsel for petitioners. They
18 were appealing a decision. I think Taylor was the real
19 party of interest in Superior Court in Los Angeles
21 JUDGE LACHS: And the cite?
22 THE WITNESS: That cite is 54 Cal. App 4th 625.
23 That discusses attorney-client privilege and then also
24 the client fraud exception.
25 JUDGE LACHS: Okay. Thank you.
1 MS. MATTHAI: And just for the record, as I'm
2 sure Mr. Brynes will recall, and, I presume, Mr. Abelson
3 was advised when the Court made the reference to the
4 discovery referee, it was initially stated that the fees
5 would be split with the right of either side to ask for
6 that the fees should be reallocated to have the other
7 side pay those fees on matters which we believe are
8 extremely clear, such as this particular one, and we
9 will ask that the fees be reallocated so that the
10 expense is borne by those who are preventing the
12 That's for the record.
13 THE REPORTER: Can we go off the record a
15 MS. MATTHAI: Yes.
16 (A recess was taken.)
17 BY MS. MATTHAI:
18 Q In your file material that you did produce here
19 today, there are some -- there is a group of papers
20 which include some photographs.
21 My first question -- actually, what I would
22 like to do -- can we get copies of things made here?
23 JUDGE LACHS: There is a copy machine.
24 MS. MATTHAI: What I would like to do is mark
25 them as exhibits to the deposition, and then we'll
1 attach copies to the depo, and we'll keep our copies if
2 that's acceptable with everybody.
3 The first one I'd ask to have marked as
4 Exhibit 1 is a photograph of a single person who appears
5 to be male.
6 MR. BYRNES: Are we using letters since we
7 starting using numbers for the things we were holding
8 out. Does it matter to you?
9 MS. MATTHAI: We did itemize those, didn't we.
10 MR. ABELSON: Right.
11 MS. MATTHAI: We'll mark it as Exhibit A.
12 (Defendant's Exhibit A was marked for
13 identification by the Certified
14 Shorthand Reporter and is attached
16 BY MS. MATTHAI:
17 Q We've marked as Exhibit A a photograph from
18 your file materials that you brought here today.
19 I ask, first, if you know where you got that?
20 A I believe I got this from Mr. Moxon.
21 Q Whose photograph is that?
22 A I believe it's Mr. Berry.
23 Q Do you know where that photograph was taken?
24 A No.
25 Q Do you know when that photograph was taken?
1 A No.
2 Q When was that photograph provided to you?
3 A During my representation of Mr. Hurtado on the
4 criminal case is all I can tell you.
5 Q Did you that use that photograph in any fashion
6 during the course of your representation of Mr. Hurtado
7 in the criminal case?
8 A I think I -- are you claiming the privilege on
10 MR. BYRNES: What I'm concerned about, not to
11 drag this on any longer. I looked at your billings.
12 You have lots of billings during time periods when there
13 weren't court appearances.
14 As a foundational question, I want to know if
15 at any time you thought you were also assisting
16 Mr. Moxon on Mr. Hurtado's civil case?
17 The way your billings are, it doesn't look like
18 you billed for court appearance or preparation for it
19 during that period of time and then there is another
20 billing. It looks like your having conversations with
22 THE WITNESS: My interest at this point is:
23 Are you claiming an attorney-client privilege on behalf
24 of Michael Hurtado in regard to my ability to answer the
25 pending question?
1 MR. BYRNES: I thought the question was --
2 JUDGE LACHS: Why don't we assume that
3 Mr. Brynes will interject claim the privilege when he
4 feels its appropriate.
5 The question was, I believe, when he got --
6 MS. MATTHAI: Actually, the question now is
7 whether that photograph was used for any purpose during
8 the criminal case.
9 JUDGE LACHS: Right.
10 THE WITNESS: Yes.
11 BY MS. MATTHAI:
12 Q What was the purpose for which it was used?
13 A Well, since I understand there is a privilege
14 claimed, I have to assert the privilege of Mr. Hurtado,
15 the attorney-client privilege.
16 Q Was that photograph shown by you to anyone
17 other than Mr. Hurtado?
18 A I don't recall.
19 Q Was that photograph provided to any court?
20 A I believe it was not, at least by me.
21 Q Okay. Was it provided to anyone other than
22 Mr. Hurtado?
23 A I don't recall.
24 (Defendant's Exhibit B was marked for
25 identification by the Certified
1 Shorthand Reporter and is attached
3 BY MS. MATTHAI:
4 Q I'm going to show you a photograph, which has
5 been marked by the court reporter as Exhibit B.
6 I ask if you can tell me who provided that
7 photograph to you.
8 A I believe Mr. Moxon.
9 Q When did Mr. Moxon provide that photograph to
11 A I don't recall.
12 Q For what purpose was that photograph provided
13 to you?
14 MR. BYRNES: Objection. Speculation. Asking
15 him to guess why Mr. Moxon had given him that if, in
16 fact, it was Mr. Moxon who gave it to him.
17 JUDGE LACHS: Unless Mr. Moxon told him.
18 MR. BYRNES: I'm going to object, then. I
19 believe that even though Mr. Wager hasn't stated this
20 that when I've looked at billing sheets plus the fact
21 that these types of items are in his file, that
22 Mr. Wager was doing work that was of benefit to
23 Mr. Moxon and his representation of Mr. Hurtado on the
24 civil side.
25 Whether in Mr. Wager's mind he didn't
1 differentiate it, and he's just continued to perform
2 services, and in his mind it's all under his
3 representation of Michael Hurtado, this is the type of
4 information, my understanding from the drug
5 paraphernalia case, are matters that wouldn't be related
6 to that and are matters related to the civil suit. We
7 know that there is an overlap of the time period when
8 they were involved, and that's what billing sheets look
10 So I believe that Mr. Wager was doing work with
11 Mr. Moxon on behalf of Mr. Hurtado on the civil side,
12 and based on that, I'm going to say the attorney-client
13 privilege applies as a work product.
14 JUDGE LACHS: I'll have to overrule that.
15 Mr. Wager has been an attorney a year longer
16 than I have, and he certainly, I presume, would know
17 what he is doing and for whom he's doing it.
18 MR. BYRNES: I don't doubt that he knows what
19 he's doing, and so I have no reason today to believe
20 that his testimony is inaccurate.
21 The question was: Why was he shown that?
22 JUDGE LACHS: Right.
23 MR. BYRNES: It refers that he -- he may be a
24 wonderful attorney, but I don't think that any of us can
25 read -- he's not going to be able to read Mr. Moxon's
1 mind and know why Mr. Moxon is giving him pictures of
2 Mr. -- of Graham Berry.
3 JUDGE LACHS: I agree with you 100 percent
4 except, as I said, unless Mr. Moxon said something, "I'm
5 giving this to you as a keepsake to frame for your
6 desk," if he told him.
7 MR. BYRNES: You're right. You're right.
8 THE WITNESS: I don't recall.
9 BY MS. MATTHAI:
10 Q Did you use that photograph for any purpose in
11 the criminal proceeding?
12 JUDGE LACHS: Excuse me. Do you mean,
13 Ms. Matthai, in court or just --
14 MS. MATTHAI: For any purpose related to the
15 criminal proceeding itself as opposed to a civil
16 proceeding against Mr. Berry.
17 THE WITNESS: I don't recall.
18 BY MS. MATTHAI:
19 Q Did you show that photograph to anyone other
20 than Mr. Hurtado?
21 A I don't recall.
22 Q Who was depicted in that photo?
23 A I don't know.
24 Q Where was it taken?
25 A I don't know.
1 Q When was it taken?
2 A I don't know.
3 Q Who took it?
4 A I don't know.
5 Q As you sit here today, can you tell me -- you
6 have no idea who those people are?
7 A I do not.
8 (Defendant's Exhibit C was marked for
9 identification by the Certified
10 Shorthand Reporter and is attached
12 MS. MATTHAI: Okay.
13 Q I'll show you a photograph, which is marked as
14 Exhibit C, and I ask who gave you that photograph?
15 A I don't recall.
16 Q Who is depicted in that photograph?
17 A Mr. Berry.
18 Q When were you given that photograph?
19 A I don't recall.
20 Q Do you know when that photograph was taken?
21 A No.
22 Q Do you know where it was taken?
23 A No.
24 Q Do you know who took it?
25 A No.
1 Q Did you make use of that photograph in any
3 A I don't recall.
4 Q Did you show that photograph to anybody?
5 A I don't recall.
6 Q Did you file that photograph with any document
7 that was provided to the court?
8 A I think not.
9 (Defendant's Exhibit D was marked for
10 identification by the Certified
11 Shorthand Reporter and is attached
13 BY MS. MATTHAI:
14 Q I'm going to show you a photograph, which is
15 marked as Exhibit D.
16 Who is depicted in that photograph?
17 A Mr. McIntyre.
18 Q Where was that photograph taken?
19 A I don't know.
20 Q Who provided you with that photograph?
21 A Mr. Moxon.
22 Q When was that photograph taken?
23 A I don't know.
24 Q Did Mr. Moxon tell you where that photograph
25 was taken?
1 A I think so.
2 Q What did he tell you?
3 A "In Australia."
4 Q And did Mr. -- did you use that photograph for
5 any purpose?
6 A I think so.
7 Q What did you do with it?
8 A I'm going to have the claim the privilege --
9 assert the privilege on that.
10 Q Did he use this photograph of Mr. McIntyre in
11 connection with the criminal proceeding in which you
12 represented Mr. Hurtado?
13 A I believe I did.
14 Q Did you show this photograph to anyone in
15 connection with that criminal proceeding?
16 A I have to claim the privilege on that -- assert
17 the privilege on that.
18 Q Well, I think the question so far can be
19 answered "Yes" or "No" as to whether or not you did. I
20 don't think that's privileged. We can argue later about
21 the next question.
22 A Yes.
23 Q Who did you show it to you?
24 A I'll assert the privilege on it.
25 Q Have you had any conversations with
1 Mr. McIntyre other than at time of your presence at your
2 deposition in this civil action?
3 A I believe I haven't.
4 Q Did you ever meet with Detective Petz with the
5 West Hollywood Sheriff's Department?
6 A Yes.
7 Q On how many occasions did you meet with
8 Detective Petz?
9 A I can only recall one.
10 Q And was the subject matter of your conversation
11 with Mr. -- with Detective Petz Graham Berry?
12 A Yes.
13 Q Was the -- did you discuss with Detective Petz
14 Mr. McIntyre?
15 A Yes.
16 Q Did you show Detective Petz this photograph?
17 A I don't recall.
18 Q Did you claim to Detective Petz that
19 Graham Berry had solicited Michael Hurtado to have sex
20 with Mr. McIntyre?
21 A I believe I told him that was the information
22 that I had and that it was claimed.
23 Q Where did you obtain that information?
24 A I have to assert the privilege on that since I
25 believe it's being claimed.
1 MS. MATTHAI: I don't think it's privileged
2 because now we've gone to Detective Petz who is not part
3 of the attorney-client relationship.
4 MR. BYRNES: You're asking where -- information
5 may have been communicated to Mr. Wager, and I don't
6 know if it came from Mr. Hurtado. I won't know until
7 the question is answered.
8 If it came from Mr. Hurtado, he's saying it to
9 his attorney, and Mr. Wager is representing him in the
10 civil matter for even a short time, that's a
11 confidential communication.
12 Even if Mr. Wager has waived it by talking to
13 Detective Petz, that's not a waiver that is forever
14 binding on Mr. Hurtado.
15 And on behalf of Mr. Hurtado I'm asking
16 Mr. Wager not to answer the question.
17 THE WITNESS: He's claiming the privilege. I
18 must assert it.
19 JUDGE LACHS: I'm not sure I understand how
20 once you waive the privilege you get it back.
21 Mr. Wager was Mr. Hurtado's lawyer. If
22 Mr. Wager makes statements to others, then certainly he
23 waived the privilege.
24 MR. BYRNES: The holder of the privilege is
25 Mr. Hurtado. If Mr. Hurtado had told other people, I
1 believe he waived it. If the client tells something to
2 the attorney, and the attorney in violation of the
3 attorney-client privilege says something to someone else
4 and makes public a confidential communication, it
5 doesn't turn around and forever waive the holder of the
6 privilege from being able to assert that privilege.
7 JUDGE LACHS: I think it does. That's my view
8 of it.
9 MR. BYRNES: My reading of it, it seems to me,
10 they're talking about the holder, in this situation
11 Mr. Hurtado, not the attorney. The attorney is his
12 representative, and the attorney can bind the client.
13 The attorney do can acts on behalf of the client to bind
14 the client. But I don't believe that if the attorney
15 reveals a confidential communication that forever barred
16 the client from forever again asserting that.
17 That's my understanding.
18 JUDGE LACHS: I may be wrong, but I honestly
19 believe that once it's waived by your attorney, that
20 it's waived, and that's why attorneys are supposed to be
21 so careful in making sure that they claim the
22 privilege --
23 MR. BYRNES: Okay.
24 JUDGE LACHS: -- on behave on your client.
25 MR. ABELSON: I think you're wrong on that one,
1 but he won't answer the question.
2 MS. MATTHAI: At this point.
3 MR. ABELSON: At this point.
4 BY MS. MATTHAI:
5 Q When was your meeting with Detective Petz?
6 MR. ABELSON: How about looking through these?
7 THE WITNESS: I cannot tell from my bills when
8 it was.
9 BY MS. MATTHAI:
10 Q Was it before the criminal proceedings were
12 A Yes.
13 Q Did you urge Detective Petz to pursue an
14 investigation of the pandering charge against
15 Graham Berry?
16 A Yes.
17 Q To your knowledge, was the pandering charge
18 ever filed against Graham Berry?
19 A To my knowledge, it was not.
20 Q Have you -- I may have asked you: Did you ever
21 speak to Mr. McIntyre other than at the occasion in
22 which he was at the deposition?
23 A I believe I did not.
24 Q Other than Mr. McIntyre and Mr. Hurtado, have
25 you ever talked to anyone else who claims to have had a
1 sexual relationship with Graham Berry?
2 A I cannot recall if Mr. Apodaca said he did or
3 did not have a sexual relationship with Graham Berry.
4 Q Anyone else that you spoke with at any time who
5 said anything about having a sexual relationship with
6 Graham Berry?
7 A I have a recollection of no one else.
8 MS. MATTHAI: I'm going show you a picture that
9 we've marked as Exhibit E.
10 (Defendant's Exhibit E was marked for
11 identification by the Certified
12 Shorthand Reporter and is attached
14 BY MS. MATTHAI:
15 Q I'm going to ask who it is that provided you
16 with that photograph?
17 A I believe Mr. Moxon.
18 Q When did Mr. Moxon provide you with that
20 A I do not recall.
21 Q Did Mr. Moxon tell you where that photograph
22 had been taken?
23 A I believe he told me it was taken in Australia.
24 Q Did he tell you who had taken that photograph?
25 A He did not.
1 Q Did -- was that photograph used by you for any
2 purpose in connection with the criminal proceedings?
3 A Yes.
4 Q And for what purpose was it used?
5 A Well, I have to assert a privilege on that.
6 Q Was that photograph shown to Detective Petz at
7 any point?
8 A I do not recall.
9 Q Was -- did you ever meet with anyone from the
10 District Attorney's office about the potential of
11 pursuing charges against Mr. Berry on a pandering claim?
12 A Yes.
13 Q Who did you meet with?
14 A I think it was Paul Turley.
15 THE REPORTER: I'm sorry?
16 THE WITNESS: T-u-r-l-e-y.
17 BY MS. MATTHAI:
18 Q When did you meet with Mr. Turley?
19 A Let me make a correction. I believe I met with
20 Mr. Petz on March 16th, 1999, and I don't know if I had
21 a meeting with Mr. Turley, but my records indicate that
22 I had some telephone conversation or left a message for
23 him March 29, 1999.
24 Q Did you meet or speak with anyone else with
25 regard to the claim of a pandering charge against
1 Mr. Berry in connection with the sexual relationship
2 that Mr. Hurtado had with Mr. McIntyre?
3 A I think at the meeting with Mr. Petz,
4 Detective Petz, I think Mr. Ingram was present.
5 (Discussion off the record between the
6 witness and his attorney.)
7 BY MS. MATTHAI:
8 Q Anyone else that you either met with or
9 discussed with or was present at any discussion
10 concerning the relationship between Mr. McIntyre and
11 Mr. Hurtado.
12 A Yes. I think Mr. Abelson was present, also.
13 Q And was Mr. Abelson present at the meeting with
14 Detective Petz?
15 A I believe so.
16 Q How long did the meeting with Mr. Abelson,
17 Mr. Ingram, and Mr. Petz last -- and yourself?
18 A I think a half hour, 45 minutes, maybe. Maybe
19 slightly longer.
20 Q Was it your understanding that Mr. Abelson was
21 at that time in-house counsel for the Church of
23 A Yes.
24 Q And was it you're understanding that at the
25 time of the meeting with Detective Petz that Mr. Abelson
1 was there as counsel to the Church of Scientology?
2 A I think that was my state of mind, yes.
3 Q What was told to Mr. Petz at the time of this
4 meeting concerning Mr. Berry?
5 Actually, let me get this right. Is he a
6 detective, a sargeant, or --
7 A I think he is a detective.
8 Q I think so, too.
9 A He may be a sargeant and a detective, also.
10 Q I'll tell you, I don't do the military, and I
11 don't do the police force.
12 Whatever title he had, what was told to him?
13 A I think generally that there was a claim by my
14 client that Mr. Berry had pandered Mr. McIntyre to him
15 on a night at a club called Numbers in West Hollywood
16 and that sexual relations there ensued between
17 Mr. McIntyre and my client following that on that
18 evening and, I think, the next day, but I'm not sure
19 about that, and that presents had been bought -- a
20 present or presents had been bought by Mr. McIntyre for
21 my client on the following day, I think.
22 I think that was the essence of it.
23 Q Was there any discussion with Detective Petz
24 about any payment that Mr. McIntyre had made in return
25 for the sexual activities with Mr. Hurtado?
1 A Yes, but I cannot recall what it was.
2 Q Okay. Was any other activity of Graham Berry
3 discussed at the time of the meeting with
4 Detective Petz?
5 A I don't recall.
6 Q Who set up the meeting with Detective Petz?
7 MR. BYRNES: If you know.
8 THE WITNESS: I'm not sure.
9 BY MS. MATTHAI:
10 Q Did you have any conversation with Mr. Abelson
11 before the meeting with Detective Petz about that
13 A I believe so.
14 Q What was discussed between you and Mr. Abelson
15 about the upcoming meeting with Detective Petz?
16 MR. ABELSON: Objection. Privilege.
17 MS. MATTHAI: Whose privilege with whom?
18 MR. ABELSON: My client, Church of Scientology
19 International. The ones that were paying me.
20 MS. MATTHAI: The difficulty I have here is
21 that it's not my understanding that Mr. Wager was acting
22 as an attorney for the Church of Scientology at the time
23 of this meeting with Detective Petz in which it was
24 being encouraged that charges be filed against
25 Mr. Berry.
1 Now, if, in fact, you wish to stipulate that
2 the Church of Scientology -- that Mr. Wager was
3 representing the Church of Scientology in seeking
4 criminal action against Mr. Berry in connection with
5 this meeting of Mr. Petz, then that may be a different
7 MR. ABELSON: I'm not stipulating to anything.
8 I'm not a witness to your deposition.
9 But he was working with me, and he was
10 answering my questions, and I was consulting with him.
11 THE WITNESS: I think I have to correct a
12 previously answer because I had looked at my notes.
13 I had failed to see that I did have a meeting
14 with someone from the District Attorney's office, which
15 I'm presuming is with Mr. Turley on April 1st.
16 BY MS. MATTHAI:
17 Q Of 1999?
18 A Yes.
19 Q Was Mr. Hurtado's criminal pending case
20 discussed during that meeting?
21 A I think it probably was.
22 Q What was said about the criminal case during
23 the course of that meeting?
24 A I cannot recall, but I would imagine that in my
25 discussion with Mr. Turley I would tell him about the
1 criminal history of my client.
2 Q Okay. Did you talk about the fact that there
3 were currently pending charges against your client?
4 A I would think I did.
5 Q Did you talk about the fact that you were going
6 to be -- well -- was Mr. Turley the District Attorney
7 who was handling the prosecution of Graham Berry --
8 excuse me -- Mike Hurtado at that point?
9 A No.
10 Q Did you have any discussion about the -- with
11 Mr. Turley about the motion that you had made to set
12 aside the plea in the criminal action?
13 A I don't recall.
14 Q Who was the District Attorney that was handling
15 the criminal prosecution of Mr. Hurtado as of April of
17 A It would be a City Attorney for the City of
18 Santa Monica.
19 Q Do you recall who the City Attorney was?
20 A Norm Wakener was handling that case.
21 Q What did you tell Mr. Turley about Mr. Berry
22 when you met with him?
23 A I have no specific recollection, but I'm
24 confident I was discussing with him the same matter that
25 I discussed with Detective Petz.
1 Q And that would be Mr. McIntyre and the claim
2 that there had been a pandering?
3 A Yes.
4 Q Okay.
5 A Because that would be within the
6 District Attorney's jurisdiction in West Hollywood.
7 Q Do you recall anything else that was discussed
8 with Mr. Turley about Mr. Berry?
9 A I do not.
10 Q Have you ever been to Numbers?
11 A No.
12 Q Did Detective Petz tell you anything about
13 Numbers when you met with him?
14 A I think he told me that it was a place known to
16 Q Well known him?
17 A Well, I don't remember him using those words.
18 Q Down right famous?
19 A Well, he is a detective in West Hollywood. He
20 is supposed to know what goes on.
21 Q And it's -- and at the time was a well-known
22 establishment; correct?
23 A Well, I got the impression he knew of Numbers,
25 Q All right. Did he give you any description of
2 A It was known to be a gay bar and a place where
3 gay people went to meet gay people.
4 Q Did he tell you anything else?
5 A I think he told me that it was known to be a
6 place where older gay people would go to meet younger
7 gay people.
8 Q Did he tell you anything else?
9 A Not that I recall.
10 Q Did Mr. Petz ask you why Michael Hurtado had
11 regularly gone to Numbers?
12 MR. BYRNES: Objection. Assumes facts, as far
13 as I know, not in evidence that Mr. Hurtado regularly
14 went to Numbers.
15 JUDGE LACHS: The question is whether he asked
16 that question --
17 MR. BYRNES: Okay.
18 JUDGE LACHS: -- if you follow it.
19 MR. BYRNES: I do. Thanks.
20 THE WITNESS: I don't recall that specific
21 question being asked.
22 BY MS. MATTHAI:
23 Q Did he ask you why your client was in Numbers
24 at all?
25 A I think he did.
1 Q What was your reply?
2 A I don't recall.
3 Q Do you recall anything you told him about why
4 it was that your client had been in Numbers on the
5 evening that he had been introduced to Mr. McIntyre?
6 A I think I told Detective Petz he had gone there
7 with a friend.
8 Q Okay. Did you tell Detective Petz that the --
9 Mr. -- let me withdraw that.
10 Did you tell Detective Petz that Mr. McIntyre
11 had done anything to force Mr. Hurtado to engage in
12 sexual activity with him?
13 A I don't recall.
14 Q Did you tell Detective Petz that Mr. Berry had
15 done anything to force Mr. Hurtado to engage in sexual
16 activities with Mr. McIntyre?
17 A I don't recall.
18 Q Did you provide Detective Petz with any
19 description of any sexual activities that took place
20 between Mr. Hurtado and Mr. McIntyre?
21 A I think I did.
22 Q What did you tell him?
23 A That, I don't recall.
24 Q Did you tell Detective Petz of any contact
25 between Mr. Hurtado and Mr. McIntyre other than that
1 evening at which they had been introduced or on which
2 they had been introduced?
3 A And the next day or so?
4 Q Fair enough. And the next day or so.
5 A I think not. I think I had no knowledge of
6 such activity.
7 Q Did you tell Detective Petz of any sexual
8 contact between Mr. Hurtado and Mr. Berry?
9 A I think so, but let me clarify something: I
10 remember Mr. Ingram speaking, also. I'm trying to
11 differentiate in my mind what Mr. Ingram said and what I
12 said, and I'm having some difficulty; so I would say I
13 know that kind of thing was discussed, but I can't
14 remember whether I said it or Mr. Ingram said what
15 exactly, I'm not sure.
16 MS. MATTHAI: I understand.
17 Q Let me ask it this way: Between the trio of
18 yourself, Mr. Abelson, and Mr. Ingram, what was said to
19 Detective Petz about Mr. Berry and any sexual activity
20 he may have had with Mr. Hurtado?
21 A Generally, that he had sexual activity with
22 Mr. Hurtado and that it was Mr. Hurtado's claim that
23 Mr. Hurtado had been coerced into some of the activity
24 because of his desire to have Mr. Berry represent him in
25 the criminal case and that there -- Mr. Hurtado claimed
1 to have been furnished marijuana by Mr. Berry, and I
2 believe also furnished cocaine, although Mr. Hurtado did
3 not accept it.
4 And I'm not sure about that, whether it was
5 offered to him or he just saw it being used, because I'm
6 trying to recall without reviewing anything in my files.
7 And I think that Mr. Hurtado claimed he had
8 seen sexual relations between Mr. Berry and one or two
9 other people in Mr. Berry's bedroom at Mr. Berry's
10 residence on the same night where he was furnished
11 marijuana and, I think, alcohol, also.
12 That's generally it, I think.
13 Q Do you recall anything else that was said to
14 Detective Petz at this meeting by you, Mr. Abelson, and
15 Mr. Ingram?
16 A I don't really recall Mr. Abelson saying much
17 of anything. Although, I remember him speaking. I
18 think most everything that was said was said by
19 Mr. Ingram and I, and that's generally what I remember.
20 Q Have you had any further discussion with
21 Detective Petz about any matter relating to
22 Michael Hurtado?
23 A Since that meeting?
24 Q Yes.
25 A I think I called him several times after.
1 Q And what was the purpose of your calls?
2 A To see if -- if he had done an investigation,
3 if he had done a report, what he was going recommend, if
5 Q What was Detective Petz' response?
6 A Well, eventually, it was he had completed a
7 report and was going submit it to the District
8 Attorney's office.
9 Q Did Detective Petz tell you what he had
10 recommended in that report?
11 A That no case be filed.
12 Q Did Detective Petz ever tell you of any
13 feedback that he had received from the
14 District Attorney's office with regard to his
15 investigation of the pandering charges and the charge
16 that Mr. Berry had improperly had sex with Mr. Hurtado?
17 A That they were rejecting the case.
18 Q Did -- and, in fact, Detective Petz, himself
19 recommended that no charges be filed; correct?
20 A I believe so. That's what he told me, yes.
21 Q Did he tell you why he recommended that no
22 charges be filed in connection with the claim that there
23 had been a pandering of Mr. McIntyre to Mr. Hurtado?
24 A I think he felt there was insufficient
1 Q Did Detective Petz tell you why he had
2 recommended that there be no criminal prosecution in
3 connection with the claims of improper sexual relations
4 between Mr. Hurtado and Mr. Berry?
5 A I think that was it. I think he thought the
6 evidence was insufficient.
7 Q Did Mr. -- did Detective Petz ever tell you
8 that it had appeared to you that there had been monies
9 exchanged in return for Mr. Hurtado's statements about
10 Mr. Berry's activities?
11 A Rephrase that. Did it appear to me --
12 Q Did it appear to Detective Petz.
13 In other words, did Detective Petz state to you
14 that it appeared to Detective Petz that it was likely
15 that money had been given to Mr. Hurtado in return for
16 his climbs against Mr. Berry?
17 A I don't recall.
18 Q Did other -- when was the last, approximately,
19 conversation had you with Mr. Petz in connection with
20 his attempt to have a prosecution of Mr. Berry?
21 A April 21st.
22 Q Have you had any later conversations with
23 Detective Petz about any matter related to
24 Michael Hurtado?
25 A I don't think so.
1 Q Did you have any -- let me start it this way:
2 Did you represent Michael Hurtado in any criminal charge
3 brought against him after the paraphernalia charges?
4 A No.
5 Q Did anyone ask you to represent Michael Hurtado
6 in connection with any criminal charge after the drug
7 paraphernalia charge?
8 A Yes.
9 Q Who asked you to represent Michael Hurtado in
10 connect with any later charge?
11 A Mr. Hurtado.
12 Q And did you decline that representation?
13 A Yes.
14 Q What charge was asked to represent him in
15 connection with?
16 MR. ABELSON: Objection. Privilege.
17 MR. BYRNES: Objection. Attorney-client
18 privilege. It has to be a communication he received
19 from Mr. Hurtado.
20 MS. MATTHAI: Well, except I understand that
21 there was no representation that was undertaken. I
22 simply want know which charge we're talking about.
23 MR. ABELSON: It does not matter.
24 JUDGE LACHS: If he is consulting him for those
25 purposes, particularly in light of the fact that he had
1 represented him in the past, I think that would be
3 MS. MATTHAI: Okay.
4 Q When were you asked to represent Mr. Hurtado on
5 a subsequent matter?
6 A I'm under the impression that it was shortly
7 after charges were brought against him, but I'm not sure
8 when that was.
9 Q Okay. Did you have any -- did you play any
10 consultation role in connection with any criminal charge
11 faced by Mr. Hurtado after the drug paraphernalia
12 charges? Did you act as a consultant in any way?
13 A Well, in the conversations that I had with him.
14 Q Before you declined the representation?
15 A As part of declining.
16 Q Right. In connection with the contact in
17 deciding you weren't going to represent him?
18 A Right. But there was more than one request.
19 Q Okay. So there were some conversations and,
20 ultimately, you declined to take on the matter?
21 A Correct.
22 Q After the time that you declined to take on the
23 representation of him, did you have any role in
24 consulting on those criminal charges?
25 A No.
1 Q Did you have any discussions with Mr. Ingram
2 concerning those later criminal charges?
3 A I believe I did not.
4 Q Did you have any discussions with Mr. Abelson
5 concerning those later criminal charges?
6 A Yes.
7 Q What was the substance of your discussion with
8 Mr. Abelson?
9 MR. BYRNES: I'm going to object if Mr. Wager
10 is going to relate to Mr. Abelson something that was
11 told to him in confidence by Mr. Hurtado.
12 THE WITNESS: My answer is that the charges
13 were pending against him.
14 BY MS. MATTHAI:
15 Q Simply that those charges existed?
16 A Yes. Correct.
17 Q Did you have any -- did I ask you whether you
18 talked to Mr. Ingram about those charges?
19 A Yes.
20 MR. BYRNES: Uh-huh.
21 MR. ABELSON: It's getting late.
22 MS. MATTHAI: I know it is.
23 Q Did you have any discussions with anyone from
24 the District Attorney's office with regard to any
25 witnesses in those later criminal charges?
1 A No.
2 Q Did you ever have a conversation with the
3 victim in the later criminal charge, the woman?
4 A I believe I did not.
5 Q Did you ever have a conversation with
6 Mr. Ingram about the victim in the later criminal
8 A I don't recall.
9 Q Did you have a conversation with Mr. Abelson
10 about the woman who was the victim in the later criminal
12 A I don't recall such a discussion.
13 Q Did you have a conversation with Mr. Moxon or
14 anyone else from Mr. Moxon's office concerning the woman
15 who was the victim in the later criminal charges that
16 were later brought against Mr. Hurtado?
17 A I may have.
18 Q What was the substance of that discussion?
19 MR. BYRNES: I'm going to object. Mr. Moxon is
20 one of the attorneys for Mr. Hurtado in the civil case.
21 I'm -- if there are discussions relating to criminal
22 charges, Mr. Wager is a specialist in criminal law. I
23 submit that any dialogue is in relation to Mr. Moxon's
24 representation of Mr. Hurtado in the civil case.
25 I represented Mr. Hurtado in the subsequent
1 criminal case, and Mr. Hurtado has asked me to assert
2 his privilege at every opportunity, and if there is
3 discussion about those criminal cases, it has to be,
4 from what I heard, it has to be from information that he
5 obtained from Mr. Hurtado.
6 I ask Mr. Abelson to instruct his client not to
7 the to answer.
8 JUDGE LACHS: To the extent that this is the
9 same type of situation that we had before, I would agree
10 with you.
11 In other words, if Mr. Hurtado gave information
12 to Mr. Wager, I find that to be privileged, and when
13 Mr. Wager relates it to Mr. Moxon, who is also
14 Mr. Hurtado's lawyer.
15 Is everybody Mr. Hurtado's lawyer other than
16 Ms. Matthai?
17 Well, indirectly and directly.
18 MS. MATTHAI: Let me rephrase my question in
19 light of the Court's comments.
20 Q If -- other than anything that you learned from
21 Mr. Hurtado in the discussions in which you were asked
22 to represent him in that matter, not disclosing any of
23 that material, what, if anything, did you tell Mr. Moxon
24 in connection with the later criminal proceedings
25 involving with Mr. Hurtado?
1 MR. ABELSON: I'm going to object on the basis
2 of the attorney-client privilege again because Mr. Wager
3 was representing Mr. Hurtado in the action that we're
4 here for today.
5 MR. BYRNES: And I further add: If Mr. Moxon
6 asked a question of Mr. Wager, hypothetically, if he
7 said, "How does this affect the civil suit that I have,"
8 I assume that is attorney work-product. That is part of
9 his investigation, his research into examining the
10 effect of the subsequent arrest on the value of his
11 civil claim, and it's part of Mr. Moxon's micro counsel
12 as work product.
13 MR. ABELSON: I'm troubled here because we're
14 going far afield of why Mr. Wager is here, and we're
15 delling into a situation where Mr. Hurtado is being
16 represented in various matters that all interconnect by
17 three different lawyers.
18 And to the extent that they have conversations
19 about Mr. Hurtado, all to his benefit, I think that's
21 BY MS. MATTHAI:
22 Q Did you have -- presumably we'll get an
23 ultimate ruling on this.
24 But the question is: Did you have any
25 conversation with anyone about the prospect of filing
1 criminal charges against the victim in that criminal
2 proceeding against Mr. Hurtado?
3 A No.
4 Q Did you have any conversation with
5 Detective Petz about pursuing criminal charges against
6 the victim in the burglary and stalking charge filed
7 against Mr. Hurtado?
8 A No.
9 Q Were -- did you go to any of the court
10 appearances not as counsel of record, but simply go to
11 any of the appearances on those later criminal charges
12 brought against Mr. Hurtado?
13 A No.
14 Q Have you learned from any source that charges
15 were brought against the woman in whose closet
16 Mr. Hurtado was discovered relating to bad check
18 A No.
19 Q Have you at any time had a discussion with
20 Mr. Ingram concerning pursuing a criminal action against
21 the woman who was the victim in the burglary and talking
23 A No.
24 Q In the paraphernalia charge in which you
25 represented Mr. Hurtado, at the time that you came into
1 the case, there had been a plea to a diversion program;
2 is that correct?
3 A Correct.
4 Q And I will make a complete disclaimer here, I'm
5 not a criminal lawyer; so when I get the vocabulary
6 wrong, I will ask you to correct me.
7 A All right.
8 Q What was your understanding of the provisions
9 of that plea?
10 A That he would be diverted -- he would be on
11 probation prior to any conviction because he had not
12 been sentence, and you're not convicted until your
14 And if you successfully completed that
15 probationary period, then the case would be dismissed,
16 and he would be entitled to say he was never convicted
17 because he never got sentenced.
18 Q What was the length of the probationary period
19 when you came into the case?
20 A I can not recall if the statute then was
21 18 months or a year. It was mandated.
22 Q There was statutory provision that provided for
23 the length of that probationary period?
24 A Yes. Correct.
25 Q And it's your recollection that the
1 probationary period for Mr. Hurtado on the diversion
2 program was set by that statute?
3 A Correct.
4 MS. MATTHAI: Just as a housekeeping matter,
5 it's my understanding you're not calling Mr. Wager in
6 this action as an expert witness on any claim of any
7 mishandling of any criminal charge against Mr. Hurtado;
8 am I correct?
9 MR. BYRNES: He's not been listed as an expert.
10 He is a witness for what -- he picked up the file in
11 whatever shape it was in.
12 JUDGE LACHS: Percipient witness.
13 MS. MATTHAI: Percipient witness.
14 You are not intending to offer any opinions
15 from Mr. Wager as to whether or not Mr. Berry's work was
16 good, bad, indifferent, or otherwise; correct?
17 MR. BYRNES: I'm not -- I can't at this point
18 say we're not going to ask that.
19 JUDGE LACHS: Let me help out, if I may,
20 because the communication that I received from your
21 office was that you were filing this Amended Complaint,
22 which would eliminate all claims of legal malpractice
23 other than having sex with the client.
24 MR. BYRNES: What is it --
25 JUDGE LACHS: The proposed Complaint that you
1 filed that -- that you submitted --
2 MR. BYRNES: Ms. Paquette has prepared
3 something. She signed it.
4 JUDGE LACHS: Your 7th Cause of Action in the
5 proposed Amended Complaint --
6 MR. BYRNES: Okay.
7 JUDGE LACHS: -- paragraph 33, incorporates
10 "(Reading) In doing all of the
11 aforementioned acts, defendant as an
12 attorney licensed, et cetera, has
13 breached his professional duties and
14 obligations," and that's it.
15 MR. BYRNES: Okay.
16 JUDGE LACHS: But the letter accompanying it
17 said you were eliminating all --
18 MR. BYRNES: It's my understanding one of the
19 bases would be his failure to act competently, which
20 could be that he might have been handling a matter that
21 was outside of his expertise, training, or skill and/or
22 his judgment was impaired if my client is correct in
23 what occurred, that Mr. Berry wanted to have sex with
24 him, that Mr. Berry may have said, "Oh, I can take care
25 of this criminal matter," and, I guess, luckily for
1 Mr. Hurtado, it wasn't, in the whole scheme of things, a
2 very serious criminal violation that he had been charged
4 But we haven't had any questions yet whether
5 something like a 1538.5 motion would have been
6 applicable or whether there would have been alternatives
7 to something other than this deferment to a judgment of
9 JUDGE LACHS: The letter I received dated
10 January 17 was written by Mr. Moxon. This is a letter
11 to Ms. Matthai, and it says:
12 "(Reading) Plaintiff is filing a
13 motion tomorrow to amend the
14 Complaint removing certain of the
15 malpractice allegations respecting
16 the competency of Mr. Berry's legal
17 representation of plaintiff. The
18 malpractice regarding forcing
19 plaintiff to have sex with him in
20 exchange for legal services will
22 So that's what he said.
23 MR. BYRNES: Then we overrule Mr. Moxon,
24 because whatever we were proposing to file, I think, is
25 broader than just that.
1 JUDGE LACHS: Okay.
2 MR. BYRNES: He is sending you that from
3 Florida, I think. I just have my own take on what I
4 think occurred. The left hand quite isn't in sync with
5 the right hand.
6 MR. ABELSON: Maybe I can make this easy. He
7 is not going to ask any question as an expert. He
8 hasn't been noticed as an expert.
9 MS. MATTHAI: He hasn't been designated.
10 MR. ABELSON: He is not an expert. He is Here
11 as a percipient witness.
12 Go ahead.
13 MS. MATTHAI: And you are not going to have him
14 testify at trial, nor are you can't deal with it never
15 mind. Sorry. Withdraw that.
16 Q Next question: The first thing you asked to
17 have the upcoming hearing date continued so you could
18 figure out what which end is up; right?
19 A Yes.
20 Q Did you then meet with the City Attorney who
21 was handling the matter?
22 A I don't think so.
23 Q Okay. Did you at any point meet with the
24 City Attorney who was handling the matter?
25 A I think at the time of the hearing.
1 Q Which hearing would that be?
2 A It was the hearing to withdraw the plea.
3 (Defendant's Exhibits D through I were
4 marked for identification by the
5 Certified Shorthand Reporter.)
6 BY MS. MATTHAI:
7 Q I hope that I handed you a docket sheet in the
8 criminal proceedings against Mr. Hurtado.
9 Is that what I did?
10 A Yes.
11 Q All right. And you came into the Hurtado case,
12 this criminal case, on what date?
13 A On the docket, January 25th, 1999.
14 Q Okay. And at that point, there was the
15 Motion to Continue made; correct?
16 A Correct.
17 Q And on January 26th, 1999, a probation report
18 was filed; correct?
19 A That is what the docket reflects, yes.
20 Q Did you see that probation report?
21 A I think so.
22 Q Did you have a copy of that probation report?
23 A I do not recall.
24 Q Did you bring that probation report with you
25 here today?
1 A I didn't bring any documents today. I copied
2 my file and gave it to my counsel, and my counsel
3 brought the documents.
4 Q Was the probation report in your file when you
5 gave it to your counsel?
6 A What was copied and transmitted him, I don't
8 Q So as you sit here today, you can't tell me
9 whether you it, and if you had it, it was in your file
10 when you gave it to Mr. Abelson?
11 A Correct.
12 Q Then -- well, did you have any discussion with
13 the City Attorney at the time of the January 25th, 1999
15 A I think it was just the --
16 Q Actually, I think that's incorrect. I don't
17 think there was a hearing.
18 The hearing is on January 27th; correct?
19 A Yes.
20 Q And then it is scheduled for further
21 proceedings on February the 11th; correct?
22 A Correct.
23 Q And then you filed the document which you've
24 provided as part of the production hear today, which is
25 entitled "Motion to Set Aside Defendant's Plea of No
1 Contest and To Reinstate Plea of Not Guilty"?
2 A Correct.
3 Q I'll represent to you your signature on it was
4 February 9th.
5 Is that about the time that this pleading was
7 A Yes.
8 Q And it was filed with the court in
9 Santa Monica?
10 A Yes.
11 Q It was filed under seal?
12 A The exhibit was under seal and the declaration.
13 Q When was the last time you saw that court file?
14 A I would think the last time I was in court.
15 Q Was this motion in the Court file the last
16 time -- when I say "this motion," the Motion to Set
17 Aside Plea" in the court file the last time that you
18 looked at that file?
19 A I don't know, because when I say I saw the
20 file, there it is on the judge's bench, but I don't know
21 when -- I didn't look in it at that time.
22 Q Do you know when the last time was you looked
23 at it?
24 Let me ask this question: Did you ever see
25 this motion in the court file?
1 A I can't say that I did. Actually, physically
2 saw the file, no.
3 Q But you did, in fact, file it with the court;
5 A Yes.
6 Q Attached to the motion, and I'll -- I only have
7 your copy of it you produced here today, because it's
8 not in the court file, and we'll mark it as Exhibit J,
9 and make copies later, there is a declaration of
10 Michael Hurtado, and I ask if you prepared that
11 declaration for Mr. Hurtado and for submission to the
13 A Yes.
14 (Defendant's Exhibit J was marked for
15 identification by the Certified
16 Shorthand Reporter and is attached
18 BY MS. MATTHAI:
19 Q And did you prepare that declaration -- and you
20 did, in fact, submit it to the court; correct?
21 A Yes.
22 MR. ABELSON: Excuse me. I hate to interrupt,
23 but I'm a diabetic, and I can eat sugar for a while. My
24 blood sugar goes down. When I eat sugar it goes up, it
25 spikes, and then it goes way down. I'm going to have to
1 eat a regular meal. It is now after 8:00.
2 MS. MATTHAI: It is after 8:00. I certainly
3 don't want to do anything that would affect your health.
4 MR. ABELSON: I know that.
5 MS. MATTHAI: I am willing to make some
6 cooperative arrangement about what we are going to do
7 about proceeding here.
8 MR. ABELSON: Certainly get through the
9 document that you marked, and he has in front of him.
10 MS. MATTHAI: And there is one other -- there
11 is another document that I want to ask about before we
12 take any break. I think by the time we had a meal and
13 came back we would be more than exhausted.
14 JUDGE LACHS: We could get food in, I guess. I
15 don't how they would get in the building.
16 MS. MATTHAI: Let me finish a few more. Have a
17 Hershey Kiss. We'll finish a few more questions and go
18 from there. How is that?
19 MR. ABELSON: Okay.
20 BY MS. MATTHAI:
21 Q That declaration of Mr. Hurtado was, in fact,
22 submitted to the court, was it not, sir?
23 A Yes.
24 Q And it was based on information which you had
25 obtained from Mr. Hurtado or was it from some other
2 A Mr. Hurtado.
3 Q You also produced a document in entitled
4 "Declaration of Michael Hurtado," and I asked whether
5 that is a document that was prepared in your office.
6 A It was not.
7 (Defendant's Exhibit K was marked for
8 identification by the Certified
9 Shorthand Reporter and is attached
11 BY MS. MATTHAI:
12 Q Who provided you with that document?
13 A Mr. Ingram.
14 Q When did Mr. Ingram provide you with that
16 A I do not recall exactly.
17 Q I believe that at the top of the document there
18 is a fax imprint.
19 Do you see that, sir?
20 A Yes.
21 Q And do you recognize any of the telephone
22 numbers on the fax imprint?
23 A No.
24 Q What is the date of the fax imprint?
25 A I can't tell if a "3," "8," or "9."
1 MR. ABELSON: Let's try another page.
2 THE WITNESS: I'm not sure from this document.
3 MS. MATTHAI: Okay.
4 THE WITNESS: I'm not familiar with that --
5 this kind of fax transmission machine.
6 MS. MATTHAI: We'll mark that document as
7 Exhibit K.
8 I'll take that one back and put in the stack of
9 exhibits since it's the only one we've got.
10 I'm own open to suggestion. We started this
11 deposition late in the afternoon to accommodate
12 Mr. Wager's schedule, and I didn't know how many
13 documents we would get, and, perhaps, I under estimated
14 the amount of time the colloquy would take in the
15 proceeding here.
16 It would seem to me that it may be most
17 appropriate to suspend the deposition at this time to --
18 off the record.
19 (Discussion off the record.)
20 MS. MATTHAI: Here's what I propose: That we
21 will have the transcript expedited; that we'll suspended
22 deposition at this time.
23 What I would like to do, based on what we have
24 you to date, is provide a schedule, short schedule, if
25 you would like some briefing on issue -- some of the
1 issues we discussed, such as the crime fraud issue,
2 provide Judge Lachs with a copy of the transcript along
3 with any comments that either counsel has on those
4 issues within, say -- by Friday of next week, and this
5 presumes we get the transcript on Tuesday -- and then
6 Judge Lachs can issue his ruling on those issues and
7 then we can reconvene for two purposes: No. 1, to
8 finish what we haven't gotten to this evening; and,
9 No. 2, if Judge Lachs' ruling would lead to a ruling
10 from the Court that some of the areas where in
11 instructions have been given would, in fact, be
12 testified to, then those would obviously be covered at
13 that time and that way we can avoid bringing Mr. Wager
14 back twice.
15 That's my proposal.
16 MR. BYRNES: Could I add something to that? I
17 don't know whether it would be addressed to you or
18 Judge Hart.
19 But at some point I think what I'm looking for
20 some kind of guidance or parameters set by the Court as
21 to what is relevant. At some point I hear what
22 Ms. Matthai is talking about, the global theory, the
23 Church of Scientology through Michael Hurtado is
24 pursuing Graham Berry.
25 But in my case, we have Graham Berry admitting
1 he's had sex with a client, and we're going to try and
2 figure out what are the circumstances around that
3 activity that took place.
4 There are depositions that have been noticed,
5 for example, of Mr. Hurtado's present probation officer.
6 He is on probation on a matter that I represented him on
7 last year. He was placed on probation last year.
8 JUDGE LACHS: Can I excuse [sic] you for a
9 minute? Does Mr. Abelson have to stay for that?
10 MR. ABELSON: Thank you very much. We don't
11 have anything to do with this.
12 MS. MATTHAI: Then why don't we wait for this
13 discussion for a minute and -- the one thing is --
14 MR. ABELSON: Make your record I agree to it.
15 MS. MATTHAI: You agree to what I just proposed
16 and with the understanding that you will make Mr. Wager
17 available without the need for additional subpena for a
18 reconvened session of his deposition to either finish
19 and/or finish and answer questions that the Court has
20 ordered him to answer.
21 MR. ABELSON: I'll do that. Okay.
22 THE WITNESS: Off the record for a second?
23 MS. MATTHAI: Fine by me.
24 JUDGE LACHS: Fine with me.
25 (Discussion off the record.)
1 MS. MATTHAI: While we were off the record, we
2 verified a couple of things, and that was that
3 Mr. Abelson and Mr. Wager will make themselves available
4 at a mutually convenient time to complete the deposition
5 and answer any questions that the Court orders to be
6 without the need for further subpena.
7 Further, that Mr. Wager has represented that
8 all of the materials which would be responsive to the
9 subpena that was most recently served upon this office
10 have been brought here today and, therefore, we have
11 agreed that there is no need to provide any further
12 response to that subpena.
13 However, there were some materials that were
14 claimed as attorney-client privilege and those need to
15 be segregated -- whose going to hold them?
16 JUDGE LACHS: Well, Mr. Wager gave me all 10 of
18 MS. MATTHAI: Okay.
19 JUDGE LACHS: If you like, I would hold on to
21 MR. ABELSON: Okay.
22 MS. MATTHAI: That's most appropriate pending
23 any final ruling as to what is going to happen with
24 those materials.
25 Mr. Wager relieved from responding to the later
2 All agreed?
3 THE REPORTER: Original?
4 MS. MATTHAI: Off the record.
5 (Discussion off the record.)
6 MS. MATTHAI: Back on the record one more time.
7 We have agreed that the original of the
8 deposition transcript will go directly from the court
9 reporter to Judge Lachs, and a copy will be provided to
10 our office.
11 Ultimately, when we finish the deposition
12 completely, then I would propose that we make a
13 stipulation at that time with regard to final signature
14 or whether we'll handle it under the Code or something
15 other than that.
16 Is that agreed?
17 MR. ABELSON: Uh-huh. We come back after
18 Judge Lachs issues his ruling?
19 MS. MATTHAI: And Judge Hart issues any ruling.
20 MS. MATTHAI: I'm trying to avoid having to
21 come back twice.
22 MR. ABELSON: I appreciate that. It makes
23 sense to do it that way. Okay.
24 MR. BYRNES: I would like a copy.
25 (The deposition was adjourned at 8:20 P.M.)