JUN 1 5 2010
1 2 3
Kevin K. Forrester (SBN 129023) Attorney at Law 4403 Manchester Ave Ste 205 Encinitas CA 92024-7903 Telephone: (760) 944-1918 Facsimile: (760) 944-3517
JUN 1 5 2010
4
Attorney
for Plaintiff
IY:A.LUM
5 6 7
SUPERIOR
8
COURT OF CALIFORNIA
COUNTY OF SAN DIEGO, NORTH COUNTY DIVISION
9
10
Case No: 37-2010-00056531-CU-MC-NC
) 11
CHUCK SMIAR,
)
EX PARTE APPLICATION FOR TEMPORARY ) RESTRAINING ORDER AND ORDER TO ) SHOW CAUSE RE PRELIMINARY vs. ) INJUNCTION; CERTIFICATION RE OF POINTS ) NOTICE; AND MEMORANDUM NORTH SAN DIEGO COUNTY ASSOCIATION) AND AUTHORITIES OF REALTORS, Incorporated, and JIM) June 17, 2010 ALDREDGE, GINNI FIELD, KURT ) Date: 1:30 PM KINSEY, MARIA WEISS, and DOES 1 ) Time: 30 through 20, ) Dept: ) Judge: Hon. Thomas P. Nugent Defendants. ) )
12 13 14 15
16 17
18 19 20
21 22
Plaintiff,
---------------------------------) Plaintiff restraining REALTORS, WEISS,
Chuck Smiar applies
defendants
for a temporary
restraining
NORTH SAN DIEGO COUNTY ASSOCIATION
Incorporated,
JIM ALDREDGE,
and their agents,
servants
order
OF
GINNI FIELD, KURT KINSEY,
and employees,
MARIA
from doing,
23
commencing,
or continuing
any actions of any kind in furtherance
24
any plan of merger
between
NSDCAR
and SDAR as described
in the
25
liConfidentiality and Non-Disclosure
AgreementU
and linon-binding
26
Memorandum
of UnderstandingU
referenced
in the complaint
filed
27
herein,
or as described
in any related merger
agreement,
proposed
28
1
EX PARTE APPLICATION
fOR TRO AND OSC RE PRELIMINARY
INJUNCTION
of
1
corporate
2
show cause why a preliminary
3
enjoining
4 5
document
defendants,
performing action.
or other document,
or otherwise,
injunction
and their agents,
the above described
This application
and an order to
should not be granted servants,
and employees
acts during the pendency
from
of this
is made on the grounds that the plaintiff
6
is entitled
to the relief demanded,
and the relief, or any part
7
thereof,
consists
in restraining
the commission
or continuance
of the
8
act complained
of, either
for a limited time period
or perpetually,
9
and on the further
ground that great and irreparable
injury will
10
result
to plaintiff
before
the matter
can be heard on notice.
11
Plaintiff
has not previously
applied to any judicial
officer
for
12
13 14
similar
relief.
This application
15
this case,
16
Forrester
17
memorandum.
18
Dated:
is based on the verified
and on the declarations attached
June
complaint
on file in
of Larry Wight and Kevin K.
to this application,
and on the attached
14, 2010
19 20 21 22
23 24 25 26 27 28
2 EX PARTE
APPLICATION
FOR TRO
AND
OSC
RE PRELIMINARY
IN:UNCTION
1
2 3
SUPPORTING
DECLARATION
I, Kevin K. Forrester,
courts
5
for plaintiff,
at law duly admitted
of the State of California
of process
B
Association
of REALTORS,
9
face conversation,
of defendant
11
2010, at 1:30 p.m., in Department
12
also served Ms. McMillan
the CEO and agent
by face-to-
for a temporary
order and order to show cause would be made on June 17, 30 of the above-entitled
with the complaint
14
assistant
15
San Diego County Association
16
Hofmann,
17
restraining
18
2010, at 1:30 pm, in Department
to David S. Bright,
by telephone
the legal
for defendant
Incorporated,
that the above application
There was no response
acknowledgment
21
whether
for a temporary
of California
to either notification,
and understanding.
to expect
I declare
30 of the above-entitled
opposition
under penalty
Therefore,
court. other than of
I could not determine
to the application. of perjury
that the foregoing
under the laws of the State
is true and correct.
25
27
North
Gisela
24
26
I
in this action.
Esq., the attorney of REALTORS,
court.
order and order to show cause would be made on June 17,
20
23
action.
3. On June 14, 2010, at 4:45 p.m., I informed
4.
all
of record herein
Dianne McMillan,
that the above application
restraining
before
North San Diego County
Incorporated,
10
22
and the attorney
2. On June 14, 2010, at 4:00 p.m., I informed for service
19
NOTIFICATION
to practice
Chuck Smiar, in the above-described
7
l3
RE ADVANCE
declare:
1. I am an attorney
4
6
OF KEVIN K. FORRESTER
Forrester, for Plaintiff
28
3
EX PARTE APPLICATION
fOR TRO AND OSC RE PRELIMINARY
INJUNCTION
1
2 3 4
5 6 7
MEMORANDUM
OF POINTS AND AUTHORITIES
A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION SHOULD BE ISSUED IN ORDER TO PRESERVE THE STATUS QUO UNTIL A FINAL DETERMINATION OF THE MERITS OF THE ACTION. IN THIS CASE, THE STATUS QUO, NAMELY THE CONTINUED EXISTENCE OF THE NORTH SAN DIEGO COUNTY ASSOCIATION OF REALTORS (/NSDCAR"), MAY BE DISRUPTED TO THE DETRIMENT OF THE PLAINTIFF AND THE NOMINAL DEFENDANT, NSDCAR, PENDING THE OUTCOME OF THIS ACTION UNLESS INJUNCTIVE RELIEF IS GRANTED, BECAUSE DEFENDANTS' WRONGFUL ACTIONS COULD ACHIEVE THE DESTRUCTION OF NSDCAR IN FEWER THAN TEN (10) DAYS BEFORE ANY CONSIDERATION OR DETERMINATION OF THE MERITS OF THIS ACTION IS POSSIBLE.
8
A preliminary
injunction
may be granted to preserve
the status
9 10
quo until
a final determination
11
(Continental
12
Rptr.
13
Cal.2d
14
Cal.App.4th
of the merits
Baking Co. v. Katz
of the action
(1968) 68 Cal.2d
761, 439 P.2d 889; People v. Black's 59, 62, 105 P.2d 361; O'Connell 1452, 1471, 47 Cal. Rptr.3d
512, 528, 67 Cal.
Food Store
v. Superior
(1940) 16
Court
(2006) 141
147).
15
On September
17, 2009, the NSDCAR
Board of Directors
named a
16
task force comprised
of the Board Chairman,
Jim Aldredge,
and
17
18
directors
19
herein)
20
NSDCAR with the 10,OOO-member
21
Ginni Field, Kurt Kinsey
to explore
("SDAR"),
in which
possible
and Maria Weiss
benefits
of a merger
of the 5,OOO-member
San Diego Association
SDAR would be the surviving
(defendants
of REALTORS
corporation.
22
Since that time, this faction of the NSDCAR Board of Directors 23
(the "Merger
Task Force")
has abandoned
the interests
of the members
24 25
of NSDCAR
26
effectively
27
takeover
28
and has worked
confidentially
to facilitate
what has become
of NSDCAR by SDAR.
Association
of REALTORS
and, as it turns out,
The President
has become
in every sense a hostile of the California
so concerned
about what he terms
4
EX PARTE APPLICATION
FOR TRO AND OSC RE PRELIMINARY
INJUNCTION
1
"deceptive,
misleading
2
REALTOR
3
"self-dealing"
4
other
5
organization"
and coercive and potential
in the efforts
local REALTOR
behavior
inappropriate
"conflicts
of interest"
of SDAR to take over NSDCAR
associations),
June 2, 2010, to the Presidents
that he addressed
and Directors
to a and
(and the
a letter dated
of all four local San
6
Diego County REALTOR
associations
reminding
them of their legal and
7
ethical
obligations.
(See President
Steve Goddard's
letter attached
8 9
10 11 12
to Declaration
of Larry Wight in Support of Ex Parte Application.)
Our efforts
to counteract
Force has included complaint,
together
the wrongful
all of those efforts with scheduling
acts of the Merger Task
set forth in our verified
our own public
"Merger Forums"
to
13
present
opposition
to the view being presented
to the members
by the
14
Merger
Task Force in their own public Town Hall Forums.
All of these
15 16 17
18 19
public meetings
started Monday,
The electronic is scheduled be stopped
membership
June 14, 2010. vote on the merger
of NSDCAR
to take place June 18 to June 25, 2010.
until all of the actions
and SDAR
This vote must
of all of the directors
that lead
20
to this vote are considered
and ruled upon by this court.
21
Please
stop this corporate
hijacking
before
it is too late.
22 23
24
Dated:
June 15, 2010 submitted,
25 26 27
Kevin . Forrester, Attorney for Plaintiff
28
5
EX PARTE APPLICATION
FOR TRO AND OSC RE PRELIMINARY
INJUNCTION
Kevin K. Forrester (SBN 129023) Attorney at Law 4403 Manchester Ave Ste 205 Encinitas CA 92024-7903 Telephone: (760) 944-1918 Facsimile: (760) 944-3517
JUN 1 5 2010
4
Attorney
for Plaintiff
IY:A.LUM
5 6 7
SUPERIOR
8
COURT OF CALIFORNIA
COUNTY OF SAN DIEGO, NORTH COUNTY DIVISION
9
10
Case No: 37-2010-00056531-CU-MC-NC
) 11
CHUCK SMIAR,
)
EX PARTE APPLICATION FOR TEMPORARY ) RESTRAINING ORDER AND ORDER TO ) SHOW CAUSE RE PRELIMINARY vs. ) INJUNCTION; CERTIFICATION RE OF POINTS ) NOTICE; AND MEMORANDUM NORTH SAN DIEGO COUNTY ASSOCIATION) AND AUTHORITIES OF REALTORS, Incorporated, and JIM) June 17, 2010 ALDREDGE, GINNI FIELD, KURT ) Date: 1:30 PM KINSEY, MARIA WEISS, and DOES 1 ) Time: 30 through 20, ) Dept: ) Judge: Hon. Thomas P. Nugent Defendants. ) )
12 13 14 15
16 17
18 19 20
21 22
Plaintiff,
---------------------------------) Plaintiff restraining REALTORS, WEISS,
Chuck Smiar applies
defendants
for a temporary
restraining
NORTH SAN DIEGO COUNTY ASSOCIATION
Incorporated,
JIM ALDREDGE,
and their agents,
servants
order
OF
GINNI FIELD, KURT KINSEY,
and employees,
MARIA
from doing,
23
commencing,
or continuing
any actions of any kind in furtherance
24
any plan of merger
between
NSDCAR
and SDAR as described
in the
25
liConfidentiality and Non-Disclosure
AgreementU
and linon-binding
26
Memorandum
of UnderstandingU
referenced
in the complaint
filed
27
herein,
or as described
in any related merger
agreement,
proposed
28
1
EX PARTE APPLICATION
fOR TRO AND OSC RE PRELIMINARY
INJUNCTION
of
1
corporate
2
show cause why a preliminary
3
enjoining
4 5
document
defendants,
performing action.
or other document,
or otherwise,
injunction
and their agents,
the above described
This application
and an order to
should not be granted servants,
and employees
acts during the pendency
from
of this
is made on the grounds that the plaintiff
6
is entitled
to the relief demanded,
and the relief, or any part
7
thereof,
consists
in restraining
the commission
or continuance
of the
8
act complained
of, either
for a limited time period
or perpetually,
9
and on the further
ground that great and irreparable
injury will
10
result
to plaintiff
before
the matter
can be heard on notice.
11
Plaintiff
has not previously
applied to any judicial
officer
for
12
13 14
similar
relief.
This application
15
this case,
16
Forrester
17
memorandum.
18
Dated:
is based on the verified
and on the declarations attached
June
complaint
on file in
of Larry Wight and Kevin K.
to this application,
and on the attached
14, 2010
19 20 21 22
23 24 25 26 27 28
2 EX PARTE
APPLICATION
FOR TRO
AND
OSC
RE PRELIMINARY
IN:UNCTION
1
2 3
SUPPORTING
DECLARATION
I, Kevin K. Forrester,
courts
5
for plaintiff,
at law duly admitted
of the State of California
of process
B
Association
of REALTORS,
9
face conversation,
of defendant
11
2010, at 1:30 p.m., in Department
12
also served Ms. McMillan
the CEO and agent
by face-to-
for a temporary
order and order to show cause would be made on June 17, 30 of the above-entitled
with the complaint
14
assistant
15
San Diego County Association
16
Hofmann,
17
restraining
18
2010, at 1:30 pm, in Department
to David S. Bright,
by telephone
the legal
for defendant
Incorporated,
that the above application
There was no response
acknowledgment
21
whether
for a temporary
of California
to either notification,
and understanding.
to expect
I declare
30 of the above-entitled
opposition
under penalty
Therefore,
court. other than of
I could not determine
to the application. of perjury
that the foregoing
under the laws of the State
is true and correct.
25
27
North
Gisela
24
26
I
in this action.
Esq., the attorney of REALTORS,
court.
order and order to show cause would be made on June 17,
20
23
action.
3. On June 14, 2010, at 4:45 p.m., I informed
4.
all
of record herein
Dianne McMillan,
that the above application
restraining
before
North San Diego County
Incorporated,
10
22
and the attorney
2. On June 14, 2010, at 4:00 p.m., I informed for service
19
NOTIFICATION
to practice
Chuck Smiar, in the above-described
7
l3
RE ADVANCE
declare:
1. I am an attorney
4
6
OF KEVIN K. FORRESTER
Forrester, for Plaintiff
28
3
EX PARTE APPLICATION
fOR TRO AND OSC RE PRELIMINARY
INJUNCTION
1
2 3 4
5 6 7
MEMORANDUM
OF POINTS AND AUTHORITIES
A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION SHOULD BE ISSUED IN ORDER TO PRESERVE THE STATUS QUO UNTIL A FINAL DETERMINATION OF THE MERITS OF THE ACTION. IN THIS CASE, THE STATUS QUO, NAMELY THE CONTINUED EXISTENCE OF THE NORTH SAN DIEGO COUNTY ASSOCIATION OF REALTORS (/NSDCAR"), MAY BE DISRUPTED TO THE DETRIMENT OF THE PLAINTIFF AND THE NOMINAL DEFENDANT, NSDCAR, PENDING THE OUTCOME OF THIS ACTION UNLESS INJUNCTIVE RELIEF IS GRANTED, BECAUSE DEFENDANTS' WRONGFUL ACTIONS COULD ACHIEVE THE DESTRUCTION OF NSDCAR IN FEWER THAN TEN (10) DAYS BEFORE ANY CONSIDERATION OR DETERMINATION OF THE MERITS OF THIS ACTION IS POSSIBLE.
8
A preliminary
injunction
may be granted to preserve
the status
9 10
quo until
a final determination
11
(Continental
12
Rptr.
13
Cal.2d
14
Cal.App.4th
of the merits
Baking Co. v. Katz
of the action
(1968) 68 Cal.2d
761, 439 P.2d 889; People v. Black's 59, 62, 105 P.2d 361; O'Connell 1452, 1471, 47 Cal. Rptr.3d
512, 528, 67 Cal.
Food Store
v. Superior
(1940) 16
Court
(2006) 141
147).
15
On September
17, 2009, the NSDCAR
Board of Directors
named a
16
task force comprised
of the Board Chairman,
Jim Aldredge,
and
17
18
directors
19
herein)
20
NSDCAR with the 10,OOO-member
21
Ginni Field, Kurt Kinsey
to explore
("SDAR"),
in which
possible
and Maria Weiss
benefits
of a merger
of the 5,OOO-member
San Diego Association
SDAR would be the surviving
(defendants
of REALTORS
corporation.
22
Since that time, this faction of the NSDCAR Board of Directors 23
(the "Merger
Task Force")
has abandoned
the interests
of the members
24 25
of NSDCAR
26
effectively
27
takeover
28
and has worked
confidentially
to facilitate
what has become
of NSDCAR by SDAR.
Association
of REALTORS
and, as it turns out,
The President
has become
in every sense a hostile of the California
so concerned
about what he terms
4
EX PARTE APPLICATION
FOR TRO AND OSC RE PRELIMINARY
INJUNCTION
1
"deceptive,
misleading
2
REALTOR
3
"self-dealing"
4
other
5
organization"
and coercive and potential
in the efforts
local REALTOR
behavior
inappropriate
"conflicts
of interest"
of SDAR to take over NSDCAR
associations),
June 2, 2010, to the Presidents
that he addressed
and Directors
to a and
(and the
a letter dated
of all four local San
6
Diego County REALTOR
associations
reminding
them of their legal and
7
ethical
obligations.
(See President
Steve Goddard's
letter attached
8 9
10 11 12
to Declaration
of Larry Wight in Support of Ex Parte Application.)
Our efforts
to counteract
Force has included complaint,
together
the wrongful
all of those efforts with scheduling
acts of the Merger Task
set forth in our verified
our own public
"Merger Forums"
to
13
present
opposition
to the view being presented
to the members
by the
14
Merger
Task Force in their own public Town Hall Forums.
All of these
15 16 17
18 19
public meetings
started Monday,
The electronic is scheduled be stopped
membership
June 14, 2010. vote on the merger
of NSDCAR
to take place June 18 to June 25, 2010.
until all of the actions
and SDAR
This vote must
of all of the directors
that lead
20
to this vote are considered
and ruled upon by this court.
21
Please
stop this corporate
hijacking
before
it is too late.
22 23
24
Dated:
June 15, 2010 submitted,
25 26 27
Kevin . Forrester, Attorney for Plaintiff
28
5
EX PARTE APPLICATION
FOR TRO AND OSC RE PRELIMINARY
INJUNCTION
