12345678910111213141516171819202122232425262728I, Dan Fingerman, declare as follows:1.
I am the plaintiff in this action. I have personal knowledge of the facts set forth in thisdeclaration, except for the matters stated upon information and belief; with respect to such matters, Ibelieve them to be true based on the information available to me.2.
I brought this action against Capital One and James Kaufmann for their illegalrecordings of my telephone calls. On or about June 22, 2009, Capital One and Mr. Kaufmann filedanswers to my First Amended Complaint. Those answers are substantially identical to one another.Both answers purport to be signed by Hemmy So, whom I am informed and believe is an attorneywith Doll Amir & Eley LLP, the defendants' counsel of record in this action. Exhibit 1 to thisdeclaration is a copy of the First Amended Complaint. Exhibit 2 to this declaration is a copy of theanswer served on me by Capital One. Exhibit 3 to this declaration is a copy of the answer served onme by Mr. Kaufmann.3.
When I reviewed the defendants' answers, it was immediately apparent to me thatseveral of their affirmative defenses lack any factual or legal basis, such as the 12th defense, "Lack of Standing". After consulting with my legal counsel, I identified eleven defenses that lack any factualor legal basis.4.
On July 7, 2009, I sent a letter to Ms. So that discussed those 11 defenses, explainedthat the defendants and Ms. So had violated Cal. Code Civ. Proc. § 128.7, and requested that thedefendants withdraw those 11 defenses. Exhibit 4 to this declaration is a copy of my July 7 letter. Ialso delivered a copy of this letter to Hunter Eley, who is identified on the web site of Doll Amir &Eley LLP as its "Managing Partner". (
http://www.dollamir.com/bio_eley.html, last accessedNovember 10, 2009.)5.
I am informed and believe that Ms. So faxed a letter to my office on July 20, 2009(while I was on vacation), which purported to respond to my July 7 letter. Ms. So's July 20 letteracknowledged receipt of my July 7 letter and requested that we confer by telephone about thedefenses. Ms. So also wrote, "We are committed to working with you in good faith regarding thesematters." Exhibit 5 to this declaration is a copy of Ms. So's July 20 letter.6.
On July 27, 2009, I conferred by telephone with Ms. So about the defenses. During