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Michael Scott Ioane 257 E. Bellevue Road, #188 Atwater, CA 95301 (775) 841-1776 Plaintiff In Pro Per

4 5 6 7 8 9 10 11 Plaintiff, 12 13 14 TREBLE, LLC, and ROBERT E. BELL, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1

PLAINTIFFS POINTS AND AUTHORITIES IN OPPOSITION TO SUMMARY JUDGMENT

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF KERN METROPOLITAN DIVISION MICHAEL SCOTT IOANE, ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. S-1500-CV-269076-WPD PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO SUMMARY JUDGMENT

vs.

Defendants.

DATE: March 29, 2012 TIME: 8:30 am DEPT: 15 TRIAL: April 30, 2012

INTRODUCTION Plaintiff hereby opposes defendants summary judgment motion on grounds it completely fails to address key fundamental issues, defendants position contradicts the very levy notice it claims to rely on, and the motion improperly relies on inadmissible statements in declarations for the material issues it does address. Some of the fundamental issues the motion completely fails to address are: (i) the federal legal requirements for a levy to actually exist at all, (ii) if any levy actually did exist, the specific property to which it was directed did not exist at the time; and (iii) the expiration of any levy (assuming one actually existed). In addition, the motion improperly relies on legal conclusions stated in declarations. These issues are discussed in detail in the following pages.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Motion Standard of Review

ARGUMENT

In a summary judgment proceeding, the moving partys evidence is construed narrowly and the non-moving partys evidence is construed liberally, with all reasonable inferences construed in favor of the non-moving party. Kelley v. the Conco Cos., (2011) 196 Cal.App.4th 191, 197. Doubts as to the propriety of granting the motion must be resolved in favor of the party resisting the motion. Crouse v. Brobeck, Phleger & Harrison, (1998) 67 Cal.App.4th 1509 at 1524 II. A Levy Notice Alone Does Not Create A Levy. While defense counsel argues that a levy notice alone imposed some obligation on defendants, federal law does not support this claim. 26 U.S.C. 6502(b) plainly states the following: The date on which a levy on property or right to property is made shall be the date on which the notice of seizure provided in section 6335(a) is given. Defense counsel makes no claim or argument that the purported levy notice presented here is a notice of seizure. Therefore, it is highly questionable that any levy ever actually existed. Of course, if no levy existed, the defendants cannot make this excuse for breaching the Settlement Agreement contract. III. If Any Levy Did Exist, It Expired Before The Cause Of Action. In addition to the above, even if a federal tax levy did ever actually exist, 26 U.S.C. 6331(b) states that [e]xcept as otherwise provided in subsection (e), a levy shall extend only to property possessed and obligations existing at the time thereof. 6331(e) states [t]he effect of a levy on salary or wages payable to or received by a taxpayer shall be continuous from the date such levy is first made until such levy is released under section 6343. In other words, federal tax levies are not perpetual (and expire the day after issuance), unless they pertain to salaries and wages. Here, since the breach of contract claim has nothing to do with any salary or wages, even assuming for the sake of argument that a levy actually existed, it expired 2
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shortly after it was issued. The defendants own evidence shows the contract was breached beginning on July 1, 2009. (Attachment to Complaint, BC-1 and BC-2). Defendants argue the alleged levy notice was issued/received in mid-June 2009. Under federal law, this levy notice expired before the July 1, 2009 date at issue in the complaint. Therefore defendants cannot claim their lack of payments to plaintiff was due to an alleged levy. IV. If Any Levy Existed, It Was Limited By The Levy Notice Itself, And Did Not Attach to The Settlement Agreement. Defendants motion argues the levy attached to and seized the contract rights at issue in the complaint. This is simply unsupported, and even contrary to the evidence defendants themselves provide. First, the alleged levy notice did not even suggest it was a seizure of the contract in question. Instead, on its face, the purported notice states it is to attach to the funds originally invested in Treble, LLC by Southern Financial Services. (Emphasis added). The bottom portion of levy notice goes on to state the recipients obligation to surrender property such as money, credits, and bank deposits ... which you are already obligated to pay, and how it affects bank deposits. It says nothing about attachment to, or any seizure or surrender of, any contract. Moreover, the sole response to the levy notice was to Make your check or money order payable to the United States Treasury. Thus, there was no purported seizure of any contract, but instead (at best) a direction to surrender any payment that might be due under the contract at that time. Defendants do not even attempt to address this issue. Second, the language added to the levy notice is very specific, but simply did not apply to the circumstances defendants themselves argue existed. According to defendants, there never were any funds invested in Treble LLC by Southern Financial because Southern Financial was never actually accepted as a member into Treble. In fact, the underlying circumstances that led to the Settlement Agreement at issue in this case 3
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was the failure of Southern Financial to complete the conditions for membership in Treble.1 Southern Financial never actually acquired any membership in Treble, LLC. See 6 of Settlement Agreement attached to Bell Decl. Therefore, there were no funds originally invested in Treble by Southern Financial. At best, Treble was collecting deposits from Southern for Southerns potential membership in Treble once Southern completed all requirements for admission into Treble. With the conditions not being satisfied, Southern Financial could not have possibly had any funds originally invested in Treble. Making even a further disconnect from any investment in Treble by Southern, defendants evidence also shows that on December 23, 2005, Southern Financials interest was ... sold to Mariposa Holdings. Bell Decl, 3, Settlement Agreement 7. Defendants fail to make any showing whatever that Southern could have possibly had any investment in Treble (if any ever existed at all) when any interest that Southern may have ever possessed had been sold to another party long before the existence of the Settlement Agreement or levy notice in question. Clearly at the time of this sale, whatever (unspecified) interest Southern may have had in Treble was totally extinguished. Defendants fail to state the terms of the sale, but it would certainly have to be inferred that Southern was paid by Mariposa for its (unspecified) interest in Treble. At this point in time, to whatever extent there may have been any funds initially invested by Southern Financial in Treble, LLC, they had been returned to Southern Financial by Mariposa. Therefore, what possible interest (much less an investment) could Southern have

Assuming that Southern Financial had been admitted as a member of Treble, the motion fails to address how an alleged IRS levy notice could affect the funds originally invested in Treble, LLC by Southern Financial Services when those funds would have become the property (capital) of Treble LLC, and no longer belonged to Southern Financial. Under California law, an LLC member has no interest in specific LLC property. Cal Corp Code 17300. Also, the property of an LLC is generally not subject to attachment by any purported creditor for claims that might exist against an LLC member. Since the levy notice appeared to be aimed at a purported member of Treble LLC (Southern Financial), the motion also fails to address why the LLC member charging order requirements would not apply. Cal Corp Code 17302. 4
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possibly had in Treble at that time? Defendants fail to state how there could have been any whatsoever, and the only logical conclusion is there was none. Therefore, at the time of the levy notice, there simply were no funds initially invested by Southern Financial in Treble, LLC, as stated in the levy notice. In fact, defendants own version of the facts further shows Southern had no remaining interest in Treble because the Settlement Agreement to repay the monies paid for admission into Treble was made between Treble and Mariposa Holdings, not Treble and Southern Financial. The Settlement Agreement itself is evidence that Southern Financial had no funds initially invested in Treble at the time of the levy notice. (Although the Settlement Agreement recites the amounts and times of any payments made by Southern Financial to Treble, this was solely for the purpose of accounting and determining what amount should be paid to Mariposa for a complete settlement). Between the timing of the sale in December 2005 by Southern Financial to Mariposa of any interest Southern Financial may have ever had in Treble, and the terms and parties to the Settlement Agreement, it is clear that Southern Financial could not have possibly had any funds initially invested in Treble, LLC at the time of the levy notice in question. Therefore, assuming any levy actually ever existed, there was nothing it attached to because of the limitations imposed by the language added to the levy notice. CONCLUSION This case is about the breach of the Settlement Agreement between the defendants and plaintiff (as successor to Mariposa, Inc). Assuming any levy actually ever existed at all, the levy notice clearly limited itself to funds initially invested in Treble, LLC by Southern Financial, something that simply did not exist in 2009. Defendants completely fail to even attempt to address how any such funds could have existed in 2009 when they themselves contend in 2005 Southern Financial sold to Mariposa any interest it may have had in Treble. This is clearly a highly material and critical issue. Even viewing 5
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the facts neutrally (much less with inferences in plaintiffs favor), summary judgment for the defendants fails on the facts, is clearly unwarranted, and must be denied.2 If anything, plaintiff is the one entitled to summary judgment.

Date: March 5, 2012

Submitted by, _________________________________ Michael Scott Ioane

DECLARATION OF SERVICE BY MAIL I, _____________________, declare that I am at least 18 years of age, and not a party to the suit. My address is ____________________, _____________, __________. I hereby certify the foregoing was served on the following by enclosing a true and correct copy thereof in a sealed envelope with postage fully prepaid, and depositing same in the United States mail, addressed as follows: JOSEPH P. HANSON 5001 California Ave., Ste 219 Bakersfield, CA 93309 (Attorney for defendants) I declare under penalty of perjury that the foregoing is true and correct. Executed on ____________, 2012 at _____________, California.

_________________________________

To any extent defendants have made inappropriate payments of their funds to the IRS on a mistaken assumption, they can seek a refund from it. Plaintiff is simply not responsible for defendants decisions. 6
PLAINTIFFS POINTS AND AUTHORITIES IN OPPOSITION TO SUMMARY JUDGMENT