August & Sept 2023 – Part 2

This follows the previous post, Part 1, showing what continued to happen in August through September. We have provided a “bottom line” summary for those who prefer skipping the court document quotes.

Who’s Who:
Class Counsel/Plaintiff Lawyers – David Andersson and Matt Davis who filed CPA lawsuit May 2020, class action lawsuit Nov. 2020

MJ Management: Mick O’Bryan and Josh Williams

MJ Management’s Counsel/Lawyers: Jeff Possinger and Reid Meyers (their former lawyer was Philip Buri)

18 Paradise’s Counsel/Lawyer: Ben VandenBerghe

Plaintiffs’ Website: Homestead-HOA.org. This was launched July 2020, has been a source of advice from lawyers Davis and Andersson, copies of court documents and opinions by plaintiffs (according to their lawyers), long-standing requests for money to pay legal fees, and pages of commentary by Matt Davis about how we have been deceived and ripped off by everyone but them. Their secretive trust fund says otherwise.

Homeowners’ Website: OurHomesteadLynden.com. This was launched in July 2022, by and for homeowners living in Homestead. We have various backgrounds and areas of expertise, make every effort to verify before posting, quote court documents, and have never asked for your money. Our team includes intervenors, financial experts, a HOAG member or two, those who golf, those who don’t, researchers who understand HOAs, CCRs, and Master Declarations, and even a few who would like to see the lawsuit play out, while the majority wants it settled yesterday. But we all agree we are neighbors first, and the most important win will be to win back our community.

Let’s get started:

Declaration(written statement under oath) by Josh Williams, Aug. 29, 2023:
Starting in April 2023, Lead Plaintiff Scott Hillius began texting Josh directly. Texts were about MJ being dismissed but were now back in the lawsuit due to their counterclaim. Hillius was quoted as saying to Josh they were, “now back on the hook for any liability found. “

MJ’s former lawyer, Mr. Buri, gave them permission to speak with plaintiffs’ lawyers. MJ met with Andersson and Davis June 12, 2023.

MJ told they would be dismissed if both signed declarations prepared by Andersson and Davis but if they remained in the case, they would be liable for $15 million dollars personally

Plaintiffs’ counsel “spoke badly of Buri” and asked what Mr. Buri had advised them about the case

Declaration by Mick O’Bryan, Aug. 29, 2023:
Mick stated Andersson and Davis told him they “wanted to help us but we had to help them.”

Told to cooperate with Andersson and Davis because, “…who they really wanted to go after was Defendant 18 Paradise LLP.”

Andersson asked Mick for a copy of “indemnification documents” between MJ and 18 Paradise so they could be released from the case. Mick believed
Mr. Andersson and provided a copy of the documents.

One page from Mick’s deposition (July 2023) was attached to this declaration regarding his receiving maintenance fees from homeowners. He stated, “As of June 1st, we stopped receiving the maintenance fee.” But he acknowledged checks were still being sent to Homestead address: “A lot of it is still coming to our address, which are just putting in a folder for whoever comes to get it.”
Bottom line: Mick and Josh meeting with lawyers Davis and Andersson, without a lawyer representing them, opened the door to potential manipulation and access to privileged information.

Motion to Disqualify Plaintiffs Counsel by MJ’s Counsel, Aug. 30, 2023
We will begin with a quote from Mr. Possinger’s Motion to Disqualify Class Counsel:
“Lawyers that are involved in litigation are bound by both the Rules of Civil Procedure, including the Discovery Rules, as well as the Rules of Professional Conduct with respect to their conduct during the course of that litigation.”
Bottom line: Contrary to what people think of lawyers, they actually have rules like the ones we grew up with; “Play well with others, Wait your turn, Be honest.” Per their “Rules for Professional Conduct” site, a lawyer’s actions, respect, and confidence are to rise above minimal standards as they demonstrate “the highest possible degree of ethical conduct.”

Allegations:
MJ’s lawyers are claiming these Rules were not followed by Mr. Andersson and Mr. Davis as they “gained access to privileged communications of MJ Management.” When Mick and Josh were without a lawyer, plaintiffs lawyers “actively inquired into the attorney-client communications between the MJ Defendants and their counsel, Phil Buri.” This Motion alleges Andersson and Davis, “has used that information against the MJ Defendants to their detriment.”

The allegation also includes Lead Plaintiff, Scott Hillius: “…evidence demonstrates that Plaintiff, Scott Hillius, was coordinating with Class Counsel regarding communications with MJ Defendantswell in advance of the actions that give rise to sanctions being imposed on Class Counsel.”
Bottom line: It appears Scott Hillius was the plaintiff lawyers’ re-con man in getting information to and from MJ.

The Motion quotes Rules of Professional Conduct (RPC) 4.3: “The lawyer shallnotgive legal advice to un-represented person other than the advice to secure the services of another legal practitioner…” This Rule then adds, “…the possibility that the lawyer will compromise the un-represented person’s interests is so great that the Rule prohibits the giving of any advice apart from the advice to obtain the services of another legal practitioner.”
Bottom line: A lawyer cannot advise a person without a lawyer other than to advise them, “Get a lawyer.”

According to this Motion, however, plaintiffs’ counsel did exactly the opposite by advising MJ:
About their rights regarding 18 Paradise
About their counterclaims and remedies available to them such as dismissing their counterclaim
Plaintiffs lawyers prepared declarations for MJ to sign which was in violation of RPC 4.3 because they were not MJ’s lawyers
Pressured MJ into signing the declarations under threat of multi-million dollar personal liability
Instead of advising MJ to find a new lawyer per their own lawyer RPC rule, plaintiff lawyers told MJ they would most likely not be able to find one in their current situation
Bottom line: By ignoring their be-a-good-lawyer rules, this might be construed as over-reach, interference, and unethical.

Motion for Evidentiary Hearing, Aug. 31, 2023
*Note how quickly the above happened: Declarations on Aug. 29, Motion to Disqualify Aug. 30, and Motion for Evidentiary Hearing on Aug. 31.

MJ lawyers, Possinger and Meyers, requested and have been granted an evidentiary hearing on Oct. 25 and 26. The witnesses they have requested to question/depose are: Mick O’Bryan, Josh Williams, David Andersson, Matt Davis, and Scott Hillius as these were the parties involved when MJ was not represented by a lawyer (see Declarations by Mick and Josh above).

Regarding one pair of lawyers questioning another pair of lawyers on the opposite side, Mr. Possinger stated: “There is no question that deposing, opposing counsel would indeed be an extraordinary measure but it is for this reason that an Evidentiary Hearing would be a more suitable means of fact finding for the pending motion, not competing depositions.”
Bottom Line: Plaintiff lawyers Andersson and Davis do not appear to have anticipated or prepared for the strong offense from MJ lawyers Possinger and Meyers.

Motion for Temporary Restraining Order, Sept. 20, 2023
Lawyers for MJ and 18 Paradise began attempting to schedule a conference with plaintiff lawyers up to Sept. 18.
At 9:09 am, Sept. 19, Matt Davis emailed the other lawyers, stating that Sept. 25 would be a good date for them to meet about confidential documents.

Less than an hour later, at 10:00 am on Sept. 19, lawyers for 18 Paradise and MJ Management discovered one of the privileged letters and “other confidential financial documents obtained by the Plaintiffs in discovery…” had been posted on the Plaintiffs’ website.

At 11:32 am on Sept. 19, lawyers for MJ emailed a cease-and-desist letter to Andersson and Davis, demanding they remove the posts from their website.

At 2:30 pm, Sept. 19, Matt Davis responded by email, refusing to remove the posts and justifying why they should remain on their plaintiffs’ website.

The next day, at 9:41 am, Sept. 20, Matt Davis emailed the lawyers representing MJ and 18 Paradise, now claiming it was neither he nor David Andersson who had posted those documents but rather, “a few plaintiffs.” Mr. Davis added, “David (Andersson) and I have no control over what is or is not posted.”
Mr. Possinger noted Mr. Andersson and Mr. Davis did not deny they had provided the privileged and confidential documents to their plaintiffs.
Bottom line: Plaintiffs, why are you taking the fall for your lawyers’ decision to post disputed documents on your website? It’s obvious they knew these were controversial and you should know better.

Verify Website Posting:
A computer expert, Tom Granger, was hired by Mr. Possinger on Sept. 19 to determine date and time the confidential documents were posted on the plaintiffs’ website. Here are his findings:

1. “Upon investigation I found that the typical spot author and publishing dates were deliberately disabled or removed from the website.”
2. “After looking further into this I found the date published for each was still available in their RSS feed…”
3. The 3 posts were published on Sept. 18, between 10:29 – 10:57 pm.

Bottom line: Despite attempt on plaintiffs and/or lawyers to hide the time-date of disputed postings, the computer expert found another location for when confidential documents were made public on their website. Disabling the date/time stamp shows they knew it was wrong to post those documents, but did it anyway.

Order Granting Temporary Restraining Order, Sept. 21, 2023
The order was granted Sept. 21 by interim Judge Grochmal, and applied to posts made after the Temporary Restraining Order was granted, as well as posts made by the lawyers and their clients who they represent.