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
     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]__

Return to Table of Contents for

Legal Forms : Set Two