PLAINTIFF’S EX PARTE APPLICATION AND NOTICE OF MOTION AND MOTION TO ENFORCE
SETTLEMENT

Anthony J. Ellrod (State Bar No. 136574)
tony.ellrod@manningkass.com
MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP
801 S. Figueroa St, 15th Floor
Los Angeles, California 90017-3012
Telephone: (213) 624-6900
Facsimile: (213) 624-6999

Attorneys for Plaintiff, WILLIAM JAMES MITCHELL

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT

WILLIAM JAMES MITCHELL,
Plaintiff,

v.

TWIN GALAXIES, LLC,
Defendants.

Case No. 19STCV12592

[Hon. Hon. Wendy Chang, Department 36]

PLAINTIFF’S EX PARTE APPLICATION AND NOTICE OF MOTION AND MOTION TO ENFORCE SETTLEMENT AGREEMENT PURSUANT TO C.C.P. SECTION 664.6; MEMORANDUM OF POINTS AND AUTHORITIES; REQUEST FOR FEES AND COSTS TOTALING $3,870.00; DECLARATION OF ANTHONY ELLROD

[Filed concurrently with [PROPOSED] ORDER; Notice of Lodging; Motion to Seal; [PROPOSED] Order re Motion to Seal]

Date: September 13, 2024
Time: 8:30 a.m.
Dept: 36

TO THE HONORABLE COURT, ALL PARTIES AND COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on September 13, 2024 at 8:30 a.m. or as soon thereafter that the matter may be heard in department 36 of the above-referenced Court, located at 111 N. Hill Street, Los Angeles, CA 90012, Plaintiff WILLIAM JAMES MITCHELL (“Plaintiff”) will appear and apply ex parte to move the Court for an Order enforcing the settlement agreement pursuant to California Code of Civil Procedure (“C.C.P.”) § 664.6 such that Defendant TWIN GALAXIES, LLC (“Defendant”) and its principle Jason Hall be ordered to comply with Section 1(E) of the Settlement Agreement which states in pertinent part that:

“Twin Galaxies, as an entity, and Jason Hall, as an individual, shall not voluntarily provide information to, or appear as a witness for a deposition or at a trial, in any litigation in which Mitchell is a party. Both Twin Galaxies and Jason Hall further agree to not voluntarily produce documents to any party in any litigation in which Mitchell is a party. Notwithstanding the foregoing, nothing in this Agreement shall preclude Twin Galaxies or Jason Hall from appearing as a witness or producing documents (1) in response to a judicial order compelling disclosure or appearance, or; (2) upon the written consent of Mitchell. In the event that anyone purports to require such production of documents or appearance as a witness, Twin Galaxies and/or Jason Hall shall promptly give written notice to Mitchell to enable Mitchell to take such protective steps as he may deem necessary.”

PLEASE ALSO TAKE NOTICE that pursuant to the Settlement Agreement, Plaintiff also seeks an order of attorney’s fees and costs associated with filing of this Motion totaling $3,870.00.

This Motion is based upon C.C.P. § 664.6, this Notice of Motion, the accompanying Memorandum of Points and Authorities in support thereof, the Declaration of Anthony Ellrod, the pleadings and papers on file in this action, and upon the arguments and additional evidence, if any, submitted at the hearing on the Motion.

This application is brought pursuant to Code of Civil Procedure §128 and the Court’s inherent powers to make any orders, and to control its proceedings, as necessitated in the interests of justice. Good cause exists the address this matter through ex parte application pursuant to California Rules of Court (CRC) Rule 3.1200 et seq. because absent an immediate order of this Court Plaintiff will suffer irreparable harm as more fully discussed below.

DATED: September 11, 2024

MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP

By:
Anthony J. Ellrod
Attorneys for Plaintiff
WILLIAM JAMES MITCHELL




MEMORANDUM OF POINTS AND AUTHORITIES

I. STATEMENT OF FACTS

This case arises from defamatory statements made by Defendant regarding Plaintiff’s achievement of certain world records in video gaming. On April 11, 2019, Plaintiff filed this lawsuit against Defendant, and subsequently filed a First Amended Complaint on March 12, 2020, setting out two causes of action: (1) Defamation; and (2) False Light. At the center of the action are public statements made by Twin Galaxies on April 12, 2018, that Plaintiff had achieved his long-standing world record video game scores by cheating. Based on these allegations Defendant stripped Plaintiff of those records and forever banned him from submitting further records as of April 2018. Declaration of Anthony J. Ellrod (“Ellrod Decl.”).

The parties entered into a written Settlement Agreement that was signed by both parties on January 10, 2024. The Settlement Agreement included an express agreement for the Court to retain jurisdiction to enforce the Settlement Agreement pursuant to C.C. P. § 664.6. Moreover, counsel of record for the parties appeared in Court on January 11, 2024 and advised the Court of the settlement. Finally, the parties and counsel entered into and filed a stipulation for the Court to explicitly retain jurisdiction to enforce that settlement under §664.6 on January 11, 2024. Ellrod Decl.; See Exh. A.

Pursuant to the Settlement Agreement, Defendant and its principle and owner Jason Hall agreed that neither would:

“voluntarily provide information to, or appear as a witness for a deposition or at a trial, in any litigation in which Mitchell is a party. Both Twin Galaxies and Jason Hall further agree to not voluntarily produce documents to any party in any litigation in which Mitchell is a party. Notwithstanding the foregoing, nothing in this Agreement shall preclude Twin Galaxies or Jason Hall from appearing as a witness or producing documents (1) in response to a judicial order compelling disclosure or appearance, or; (2) upon the written consent of Mitchell. In the event that anyone purports to require such production of documents or appearance as a witness, Twin Galaxies and/or Jason Hall shall promptly give written notice to Mitchell to enable Mitchell to take such protective steps as he may deem necessary.” (Settlement Agreement, Exh. A, Section (1)(E).)

On or about August 20, 2024, Plaintiff received a request for subpoenas and a witness list in the case Mitchell v. Jobst pending in Australia as set to begin trial on September 16, 2024. Both documents listed Jason Hall as a witness. (Cumulatively Exh. B.)

On or about August 23, 2024, counsel for Plaintiff directed correspondence to counsel for Defendant pointing out that Section 1E of the Settlement Agreement precluded Jason Hall from voluntarily providing information to, or appearing as a witness at trial, in any litigation in which Mitchell is a party, including the Mitchell v. Jobst action in Australia. Deeming Hall’s inclusion on Jobst’s witness an anticipatory breach of the Settlement Agreement, Plaintiff demanded written assurance from Hall that he had not received a subpoena and would not be providing testimony in the Mitchell v. Jobst case pending in Australia. Counsel noted that if such assurances were not received on or before August 28, 2024 Plaintiff would be forced to seek court intervention, including a request for reimbursement of all fees and costs associated with having to do so. (Email string, Exh. C.)

On the evening of August 23, 2024 counsel for Defendant responded stating “Good evening Tony -- Attached is a subpoena to Mr. Hall from the District Court of Queensland.” The email attached a purported subpoena in the Mitchell v. Jobst matter. (Email string, Exh. D; Subpoena, Exh. E.) Counsel did not address the request for assurances or indicate in any manner what Mr. Hall’s intentions were.

On August 25, 2024, counsel for Plaintiff directed correspondence to counsel for Defendant citing Section 1(E) of the Settlement Agreement and making a second formal demand that Mr. Hall provide written assurances that he would not be providing testimony in the Mitchell v. Jobst case pending in Australia. Counsel reiterated that absent such assurances Plaintiff would be forced to seek court intervention, including a request for reimbursement all fees and costs associated with having to do so. (Email string, Exh. D.)

On August 27, 2024 counsel for Defendant responded stating “We understand that Mr. Hall must comply with the subpoena as it appears to be duly issued by an Australian court.” Counsel offered to meet and confer on the issue if Plaintiff believed the subpoena was insufficient to compel Mr. Hall’s testimony. (Email string, Exh. D; Subpoena, Exh. E.)

On September 2, 2024, counsel for Plaintiff responded asking how Mr. Hall was served. To date Defendant has not answered. Counsel asked when Mr. Hall was served. To date Defendant has not answered. Counsel asked if Mr. Hall was purportedly served through the Hague. To date Defendant has not Answered. Counsel asked why the subpoena issued on August 9 not provided to Plaintiff until August 23, and not until Plaintiff asked about it. To date Defendant has not answered. (Email String, Exh. D.)

In the same email counsel for Plaintiff pointed out that an Australian court has no jurisdiction over Mr. Hall, and that he cannot as a US citizen, residing and present in the US, be compelled to give testimony in Australian litigation. As such, providing testimony in Mr. Jobst’s action would be voluntary and in direct violation of the Settlement Agreement. (Email string, Exh. D.)

A week later, on September 9, 2024, having received no response to the September 2 email, counsel for Plaintiff notified counsel for Defendant that absent immediate written confirmation signed by Mr. Hall stating that he will not provide testimony in the Jobst litigation in Australia Plaintiff would be going in ex parte seeking a court order and sanctions. (Email string, Exh. D.) Counsel for Defendant responded as follows:

“Where does it say in the agreement that Mr. Hall must give Mr. Mitchell any sort of written assurance? I have represented to you that Mr. Hall will not comply with the August 9, 2024 subpoena as it was served. Is there anything else that Mr. Mitchell is entitled to under the settlement agreement? If so, specify the portion of the settlement agreement supporting your demand and we will comply if the demand is reasonable.” (Email string, Exh. D.)

Counsel for Plaintiff responded pointing out that Mr. Tashroudian did NOT represent that Mr. Hall would not comply with the subpoena. To the contrary. Mr. Tashroudian said "We understand that Mr. Hall must comply with the subpoena . . ..” Counsel for Plaintiff again pointed out that an Australian Court has no personal jurisdiction over Mr. Hall and he cannot be compelled to testify. Counsel for Plaintiff went on to say that while there is nothing in the Settlement Agreement that requires written assurance from Mr. Hall, Plaintiff was trying to give him a chance to avoid an ex parte seeking a court order and sanctions. That Defendant’s position per Mr. Tashroudian was an anticipatory breach of the Settlement Agreement and absent a sworn statement from Mr. Hall that he will not testify at the Jobst trial Plaintiff will be left with no alternative but to seek a court order and sanctions. (Email string, Exh. D.)

Defendant’s counsel responded as follows:

“Mr. Hall cannot state categorically that he will not testify in the Australian matter. If he is served with a duly domesticated subpoena, he will have to testify and the settlement agreement contemplates this situation. So, I am telling you he will not testify pursuant to the August 9, 2024 subpoena - there is no anticipatory breach accordingly. If, however, a later subpoena is duly served on him, he will have to comply and that will not be a breach of the settlement agreement.”

Counsel for Plaintiff responded citing authority for the fact that no Australian court has the power to compel a person outside Australia to require the attendance of that person to give evidence at a trial. Noting that since the inception of the U.S. litigation Mr. Hall has been working with Mr. Jobst to harm Mr. Mitchell, including providing depositions and discovery in violation of Court orders, noting that Mr. Hall and Mr. Tashroudian have been found to have violated the confidentiality provisions of the Settlement Agreement by misrepresenting the terms of the Settlement Agreement publicly, including to Mr. Jobst, noting that Defendant did not notify Plaintiff of the purported subpoena from Australia until confronted about it by Plaintiff, and noting that Mr. Tashroudian initially stated that Mr. Hall was compelled to testify because of the subpoena, nothing short of a sworn statement from Mr. Hall that he would not testify in the Mitchell v. Jobst litigation would suffice to avoid an ex parte application for a court order and sanctions. (Email string, Exh. D.) As of the filing of this application there has been no response.

Absent written confirmation signed by Mr. Hall stating that he will not provide testimony in the Jobst litigation in Australia which is set to begin on September 16, 2024, Plaintiff had no alternative but to seek judicial intervention through ex parte application to avoid irreparable.

II. ARGUMENT

A. The Court Has Authority to Enforce the Settlement Agreement Pursuant to Code of Civil Procedure § 664.4

Code of Civil Procedure §664.6 states:

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

Section 664.6 provides a summary procedure by which the trial court can specifically enforce an agreement to settle pending litigation without the need to file a second lawsuit. See Kirby v. Southern Cal. Edison (2000) Cal.App.4th 840, 843. Under this section, the Court is explicitly empowered to enter judgment upon a stipulated settlement by means of a noticed motion even if there are contentions of disputed facts.

Here, Plaintiff is entitled to have the settlement agreement enforced pursuant to C.C. P. § 664.6. The parties entered into a written Settlement Agreement that was signed by both parties on January 10, 2024, and included an express agreement for the Court to retain jurisdiction to enforce the Settlement Agreement pursuant to C.C. P. § 664.6. Moreover, counsel of record for the parties appeared in Court on January 11, 2024 and advised the Court of the settlement. Finally, the parties and counsel entered into and filed a stipulation for the Court to retain jurisdiction to enforce the settlement under §664.6 on January 11, 2024 as the settlement agreement itself was confidential.

Thus, there is no dispute that the parties entered into a valid and binding Settlement Agreement and that the Court has both the authority and express written consent of the parties to enforce the Settlement Agreement.

B. This Court Should Find that Jason Hall Has Breached The Settlement Agreement, And Issue An Order That Jason Hall Not Testify in the Mitchell v. Jobst Trial Absent Being Compelled To Do So By A Court Of Competent Jurisdiction.

The Settlement Agreement in this matter states that Mr. Hall will not provide testimony in any matter in which Mr. Mitchell is a party absent “a judicial order compelling disclosure or appearance.” It further states that in the event that anyone purports to require such appearance as a witness, Mr. Hall shall “promptly give written notice to Mitchell to enable Mitchell to take such protective steps as he may deem necessary.” (Exh. A subsection (1)(E).)

Plaintiff learned from his counsel in Australia, NOT Mr. Hall, that Mr. Hall was included on Mr. Jobst witness list. It was not until Mr. Hall was confronted with this that he acknowledged that he had received a subpoena. Despite requests, Mr. Hall has refused to say when and how the subpoena was “served”, or whether there was compliance with the Hague convention. All of this is in breach of the Settlement Agreement which requires “written notice to Mitchell to enable Mitchell to take such protective steps as he may deem necessary.”

It is hard to imagine that Mr. Jobst has included Mr. Hall on his witness list without discussing the matter and obtaining Mr. Hall’s agreement to testify. Indeed, as this Court is well aware Mr. Hall and Mr. Jobst (and indeed Mr. Tashroudian ) have been working together to damage Mr. Mitchell and his reputation for years, to the point of providing Mr. Jobst with confidential information and discovery in this case in violation of Court orders.

This Court is aware of Mr. Hall and Mr. Tashroudian’s willingness to breach the Settlement Agreement. On May 30, 2024, this Court issued an Order finding not only that they breached the confidentiality provisions of the Settlement Agreement, but that the misrepresented terms of the Settlement Agreement, knowing that Mr. Mitchell could not respond without breaching the Settlement Agreement himself. Accordingly this Court permitted Mr. Mitchell to publish limited provisions of the Settlement Agreement and sanction Defendant and Mr. Tashroudian. (Order, Exh. F.)

Mr. Tashroudian initially stated that Mr. Hall was compelled by the subpoena to testify. That is not the case. Under the Foreign Evidence Act of 1994 of Australia and under basic principles of comity a U.S. citizen cannot be compelled to testify at a trial in Australia.

“The primary difficulty in obtaining evidence outside Australia compulsorily is that the power of each nation's courts extends only to that court's national boundaries and no further. No Australian court has the power to compel a person outside Australia to produce documents to it or to require the attendance of that person to give evidence at a trial.” (The Foreign Evidence Act, Volume 18(1), Karen Coleman.)

Subsequently, Mr. Tashroudian appears to change that position, stating that Mr. Hall is not compelled by the subject subpoena, but could be compelled by another subpoena. Still, Mr. Tashroudian and Mr. Hall refuse to disclose when and how the initial subpoena was purportedly served, or how any subpoena could compel him to testify in Australia.

Plaintiff believes that Mr. Hall, Mr. Tashroudian and Mr. Jobst will do whatever they can to have Mr. Hall testify at the Jobst trial in breach of the Settlement Agreement. It is not unreasonable to believe that Mr. Hall and Mr. Tashroudian will come up with some last minute claim that Mr. Hall was compelled to testify, knowing that Mr. Mitchell will be irreparably harmed and Mr. Hall and Mr. Tashroudian’s only exposure will be a subsequent claim of breach – too little, too late. Nothing short of an order from this Court that Mr. Hall comply and the corresponding threat of contempt will prevent that from happening.

Plaintiff is not asking this court to do anything other than issue an order requiring Mr. Hall to comply with one provision of the Settlement Agreement. In light of the actions of Mr. Hall and Mr. Tashroudian throughout the history of this action this is entirely reasonable. If Mr. Hall is not facing contempt of court, he will likely thumb his nose at his obligations under the Settlement Agreement yet again, and Mr. Mitchell will be irreparably harmed and deprived of what he bargained for in the Settlement Agreement without remedy.

C. The Court Should Award Plaintiff $3,870.00 for the Fees and Costs Incurred in Enforcing the Settlement Agreement

The Settlement Agreement unambiguously permits the recovery of attorney’s fees and costs for seeking Court intervention to enforce the terms of the Settlement Agreement. Specifically, it states in paragraph 17 that in the event of a breach “the prevailing party shall be entitled to recover reasonable attorney’s fees and costs incurred in enforcing this Agreement.” (Exh. A.)

Mr. Hall already breached the Settlement Agreement by failing to promptly notify Plaintiff of the purported subpoena, and then refusing to provide information on how and when it was purportedly served to permit Mr. Mitchell to take action. Mr. Hall has flip flopped on whether he is compelled to testify under the subpoena (which he is not), and refused to provide written assurances that he will not testify. Plaintiff’s counsel implored Mr. Hall and Mr. Tashroudian to provide those assurances so that this motion could be avoided, however they refuse to comply. As such, Plaintiff was forced to incur the costs and fees associated with the instant Motion.

As set forth in the Declaration of Anthony Ellrod accompanying this Motion, Plaintiff will have incurred no less than $3,750.00 in attorney’s fees in obtaining this enforcement order, including the concurrently filed Motion to Seal, and the filing fee for both motions is $120.00. Therefore, the Court should order Defendant to pay Plaintiff the sum of $3,870.00 for forcing them to file this instant Motion and the concurrently filed Motion to Seal in order to protect the confidentiality of the Settlement Agreement. Ellrod Decl.

III. CONCLUSION

Defendant, Mr. Hall and Mr. Tashroudian continue to act in bad faith, blatantly ignoring their obligations under the Settlement Agreement. They appear willing to breach and simply pay the fees and costs subsequently awarded. However if allowed to breach this provision Mr. Mitchell will be irreparably harmed, and a subsequent finding of breach and award of sanctions will be inadequate to make him hole. For the reasons set forth above, the Court should order Mr. Hall to comply with Section 1(E) of the Settlement Agreement so that his failure to comply will constitute contempt of court, including all potentially resulting consequences. The Court should also order Defendant pay Plaintiff the sum of $3,870.00 for attorney’s fees and costs incurred in bringing this Motion.

DATED: September 11, 2024

MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP

By:
Anthony J. Ellrod
Attorneys for Plaintiff
WILLIAM JAMES MITCHELL




DECLARATION OF ANTHONY J. ELLROD

I, ANTHONY J. ELLROD, declare as follows:

1. I am an attorney at law duly licensed to practice before all the courts of the State of California, and am a partner in the law firm of Manning & Kass, Ellrod, Ramirez, Trester, LLP, attorneys of record for Plaintiff WILLIAM JAMES MITCHELL (“Plaintiff”).

2. If called upon to testify as to the matters herein related, I could and would competently do so based upon my review of the litigation file herein and my personal participation as one of the attorneys of record herein.

3. This case arises from defamatory statements made by Defendant regarding Plaintiff’s achievement of certain world records in video gaming. On April 11, 2019, Plaintiff filed this lawsuit against Defendant, and subsequently filed a First Amended Complaint on March 12, 2020, setting out two causes of action: (1) Defamation; and (2) False Light. At the center of the action are public statements made by Twin Galaxies on April 12, 2018, that Plaintiff had achieved his long-standing world record video game scores by cheating. Based on these allegations Defendant stripped Plaintiff of those records and forever banned him from submitting further records as of April 2018.

4. The parties entered into a written Settlement Agreement that was signed by both parties on January 10, 2024. The Settlement Agreement included an express agreement for the Court to retain jurisdiction to enforce the Settlement Agreement pursuant to C.C. P. § 664.6. Moreover, counsel of record for the parties appeared in Court on January 11, 2024 and advised the Court of the settlement. Finally, the parties and counsel entered into and filed a stipulation for the Court to explicitly retain jurisdiction to enforce that settlement under §664.6 on January 11, 2024. Pursuant to the Settlement Agreement, Defendant was to issue an agreed upon public statement as a standalone article on its website on January 16, 2024. Attached hereto as Exhibit “A” is a true and correct copy of the executed Settlement Agreement.

5. Pursuant to the Settlement Agreement, Defendant and its principle and owner Jason Hall agreed that neither would:

“voluntarily provide information to, or appear as a witness for a deposition or at a trial, in any litigation in which Mitchell is a party. Both Twin Galaxies and Jason Hall further agree to not voluntarily produce documents to any party in any litigation in which Mitchell is a party. Notwithstanding the foregoing, nothing in this Agreement shall preclude Twin Galaxies or Jason Hall from appearing as a witness or producing documents (1) in response to a judicial order compelling disclosure or appearance, or; (2) upon the written consent of Mitchell. In the event that anyone purports to require such production of documents or appearance as a witness, Twin Galaxies and/or Jason Hall shall promptly give written notice to Mitchell to enable Mitchell to take such protective steps as he may deem necessary.” (Settlement Agreement, Exh. A, Section (1)(E).)

6. On or about August 20, 2024, Plaintiff received a request for subpoenas and a witness list in the case Mitchell v. Jobst pending in Australia as set to begin trial on September 16, 2024. Both documents listed Jason Hall as a witness. True and correct copies of these documents are cumulatively attached hereto as Exhibit B.

7. On or about August 23, 2024, I directed correspondence to counsel for Defendant pointing out that Section 1E of the Settlement Agreement precluded Jason Hallfrom voluntarily providing information to, or appearing as a witness at trial, in any litigation in which Mitchell is a party, including the Mitchell v. Jobst action in Australia. Deeming Hall’s inclusion on Jobst’s witness an anticipatory breach of the Settlement Agreement, Plaintiff demanded written assurances from Hall that he had not received a subpoena and would not be providing testimony in the Mitchell v. Jobst case pending in Australia. I noted that if such assurances were not received on or before August 28, 2024 Plaintiff would be forced to seek court intervention, including a request for reimbursement of all fees and costs associated with having to do so. Attached hereto as Exhibit “C” is a true and correct copy of this email exchange.

8. On the evening of August 23, 2024 counsel for Defendant responded stating “Good evening Tony -- Attached is a subpoena to Mr. Hall from the District Court of Queensland.” The email attached a purported subpoena in the Mitchell v. Jobst matter. Attached hereto as Exhibit “D” is a true and correct copy of this email exchange. Attached hereto as Exhibit “E” is a true and correct copy of the subpoena. Counsel did not address the request for assurances or indicate in any manner what Mr. Hall’s intentions were.

9. On August 25, 2024, I directed correspondence to counsel for Defendant citing Section 1(E) of the Settlement Agreement and making a second formal demand that Mr. Hall provide written assurances that he would not be providing testimony in the Mitchell v. Jobst case pending in Australia. I reiterated that absent such assurances Plaintiff would be forced to seek court intervention, including a request for reimbursement all fees and costs associated with having to do so. (Email string, Exh. D.)

10. On August 27, 2024 counsel for Defendant responded stating “We understand that Mr. Hall must comply with the subpoena as it appears to be duly issued by an Australian court.” Counsel offered to meet and confer on the issue if Plaintiff believed the subpoena was insufficient to compel Mr. Hall’s testimony. (Email string, Exh. D; Subpoena, Exh. E.)

11. On September 2, 2024, I responded asking how Mr. Hall was served. To date Defendant has not answered. I asked when Mr. Hall was served. To date Defendant has not answered. I asked if Mr. Hall was purportedly served through the Hague. To date Defendant has not Answered. I asked why the subpoena issued on August 9 not provided to Plaintiff until August 23, and not until Plaintiff asked about it. To date Defendant has not answered. (Email String, Exh. D.)

12. In the same email I pointed out that an Australian court has no jurisdiction over Mr. Hall, and that he cannot as a US citizen, residing and present in the US, be compelled to give testimony in Australian litigation. As such, providing testimony in Mr. Jobst’s action would be voluntary and in direct violation of the Settlement Agreement. (Email string, Exh. D.)

13. A week later, on September 9, 2024, having received no response to the September 2 email, I notified counsel for Defendant that absent immediate written confirmation signed by Mr. Hall stating that he will not provide testimony in the Jobst litigation in Australia Plaintiff would be going in ex parte seeking a court order and sanctions. (Email string, Exh. D.) Counsel for Defendant responded as follows:

“Where does it say in the agreement that Mr. Hall must give Mr. Mitchell any sort of written assurance? I have represented to you that Mr. Hall will not comply with the August 9, 2024 subpoena as it was served. Is there anything else that Mr. Mitchell is entitled to under the settlement agreement? If so, specify the portion of the settlement agreement supporting your demand and we will comply if the demand is reasonable.” (Email string, Exh. D.)

14. I responded pointing out that Mr. Tashroudian did NOT represent that Mr. Hall would not comply with the subpoena. To the contrary. Mr. Tashroudian said "We understand that Mr. Hall must comply with the subpoena . . ..” I again pointed out that an Australian Court has no personal jurisdiction over Mr. Hall and he cannot be compelled to testify. I went on to say that while there is nothing in the Settlement Agreement that requires written assurance from Mr. Hall, Plaintiff was trying to give him a chance to avoid an ex parte seeking a court order and sanctions. That Defendant’s position per Mr. Tashroudian was an anticipatory breach of the Settlement Agreement and absent a sworn statement from Mr. Hall that he will not testify at the Jobst trial Plaintiff will be left with no alternative but to seek a court order and sanctions. (Email string, Exh. D.)

15. Defendant’s counsel responded as follows:

“Mr. Hall cannot state categorically that he will not testify in the Australian matter. If he is served with a duly domesticated subpoena, he will have to testify and the settlement agreement contemplates this situation. So, I am telling you he will not testify pursuant to the August 9, 2024 subpoena - there is no anticipatory breach accordingly. If, however, a later subpoena is duly served on him, he will have to comply and that will not be a breach of the settlement agreement.”

16. I responded citing authority for the fact that no Australian court has the power to compel a person outside Australia to require the attendance of that person to give evidence at a trial. Noting that since the inception of the U.S. litigation Mr. Hall has been working with Mr. Jobst to harm Mr. Mitchell, including providing depositions and discovery in violation of Court orders, noting that Mr. Hall and Mr. Tashroudian have been found to have violated the confidentiality provisions of the Settlement Agreement by misrepresenting the terms of the Settlement Agreement publicly, including to Mr. Jobst, noting that Defendant did not notify Plaintiff of the purported subpoena from Australia until confronted about it by Plaintiff, and noting that Mr. Tashroudian initially stated that Mr. Hall was compelled to testify because of the subpoena, nothing short of a sworn statement from Mr. Hall that he would not testify in the Mitchell v. Jobst litigation would suffice to avoid an ex parte application for a court order and sanctions. (Email string, Exh. D.) As of the filing of this application there has been no response.

17. As such, Plaintiff is forced to bring this Motion under C.C.P. § 664.6 and request an Order finding that Defendant and Jason Hall have breached the Settlement Agreement by failing to promptly notify Plaintiff of the purported subpoena, and then refusing to provide information on how and when it was purportedly served to permit Mr. Mitchell to take action. Further, that the Court order Jason Hall to comply with Section 1(E) of the Settlement Agreement so that if he breaches he will be in contempt of court. This is necessary because a breach will cause Mr. Mitchell irreparable harm and deprive him of what he bargained for in the Settlement Agreement.

18. Good cause exists to address this motion through ex parte application because, on information and belief, the trial in Mitchell v. Jobst is set to begin on September 16, 2024. If Mr. Hall is not subject to the requested Court order he can testify with relative impunity and Mr. Mitchell will be irreparably harmed.

19. Plaintiff requests an award of costs and attorney’s fees incurred in bringing this Motion pursuant to the terms of the Settlement Agreement. My billing rate in this matter is $375.00 per hour. I have expended in excess of 6 hours in connection with this instant Motion, including the research, drafting, and redacting of confidential portions to lodge conditionally under seal, and I anticipate spending an additional 3 hours appearing ex parte. Further, I expended another hour in connection with the concurrently filed Motion to Seal to seal the documents lodged conditionally under seal and protect the confidentiality of the Settlement Agreement. Additionally, Plaintiff incurred the $60.00 filing fee to file this Motion and $60.00 filing fee to file the concurrently filed Motion to Seal. The total amount sought for recovery of attorney’s fees and costs is $3,870.00.

20. Before 10:00 a.m. on September 12, 2024, I gave Defendant’s counsel of record notice of this ex parte via telephone and email. I advised counsel that Plaintiff would seek the instant ex parte relief on September 13, 2024 at 8:30 a.m. in department 36 of the Los Angeles Superior Court, located at 111 N. Hill Street, Los Angeles, CA 90012, to ask the Court to issue an order finding that Defendant and Jason Hall breached the Settlement Agreement and ordering Mr. Hall to comply with Section 1(E) of the Settlement Agreement.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on this September 11, 2024, at Los Angeles, California.

Anthony J. Ellrod