DECLARATION OF JOHN J. BAKER SUPPORTING MOTION FOR LEAVE TO FILE CROSS-COMPLAINT John J. Baker declares: 1. I am an attorney licensed to practice law in the State of California and am one of counsel for defendant Peter P. Smith ("Smith") in this action. Except as otherwise stated, I have personal knowledge of every fact stated in this declaration and, if called as a witness, could and would testify competently thereto. 2. As alleged in the complaint, Smith and plaintiff Elizabeth Jones ("Jones") are partners in a business known under the fictitious name of "Delightful Catering." 3. In the complaint, Jones alleges that Smith misappropriated business opportunities belonging to Delightful Catering, diverting them to a competing business owned by his brother, Gregory Smith. Among other things, the complaint seeks damages for this alleged diversion of business opportunities. 4. The books of Delightful Catering have at all times been maintained by Jones. Since the commencement of disputes between them in September 1988, Jones has denied Smith access to the books and records of Delightful Catering. 5. The answer was filed on January 22, 1990. 6. On February 23, 1990, in response to a notice to produce documents at deposition, Jones produced the books and records of Delightful Catering. The records reveal that Jones without authorization issued herself "bonus checks" in a total sum of $57,000 from the accounts of Delightful Catering during 1987 and 1988. As shown by the attached declaration of Smith, he had no prior knowledge of such bonus payments to Jones. 7. Smith must file the cross-complaint attached as Exhibit A, which sets forth his causes of action against Jones relating to the bonus payments, because he may be barred by Code of Civil Procedure section 426.30(a) from later asserting the causes of action in a separate action. Furthermore, even if the causes of action alleged in Exhibit A are not "related" causes of action within the meaning of section 426.30(a), it is in the interests of judicial economy to resolve all disputes between the parties relating to Delightful Catering in a single action. 8. The action has been at issue for less than four months. The matter has not yet been set for trial and discovery. Jones and her counsel have at all relevant times had possession of the books and records on which the cross-complaint is based. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: _ _ _ _ _ _ [Signature] _________________________ __[Typed name]__
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Legal Forms : Set Two