good morning your honour's may please the court mark lazo for the appellant in both matter i did reserve thirty minutes of time in both matters but i highly doubt i will need that i would like to reserve five minutes for rebuttal and both the only reason i did that it did not have jurisdiction over the administration of the trust or the bank account this court directed counsel to the peacock of the thomas case and absolutely rightly so i suppose that's what appellate courts are for is to point out glaringly on point case law that the parties their counsel and the lower court missed and i think that is the peacock case in which the court held that federal courts do not  ancillary jurisdiction in seeking to enforce a judgment against someone who was not initially liable on the judgment when the judgment creditor seeks to impose liability on someone who is not the judgment debtor there is no ancillary jurisdiction and have you pos for a moment is because i don't want you to be laboring under and misapprehension regarding time it is fifteen minutes per sites i want to clarify that and if you want to reserve five minutes for a bottle that's fine i'll try to remind us well should suffice thank you your honor and in reaching this conclusion that federal courts do not possess ancillary jurisdiction in seeking to  enforce a money judgment against a person who was not initially liable on that judgment it relied on nice us supreme court case of h c hope company in which the court refused to authorize the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay in existing federal judgment against someone who was not liable for that judgment and relying on that  hority the peacock case expressly stated in conclusion we have never authorized the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing fiction that these monies were being thwarted through the coercive efforts of peggy jackson who is the judgment debtors sister and the trustee daniel hendon had access to the bank account he was a signatory to the bank account his social security was linked to the bank account and he took personal withdrawals of money from that bank account everything every sign that we pointed to spelled that that this was not an actual spendthrift trust that it was the stablished for the purpose of thwarting my client the judgment creditor so it does not matter where the action was filed or that the the action was filed against the judgment creditor for that reason your honour's and quite ironically the  the district court stated that there are quote unquote factual issues about the spendthrift provision that may need to be decided by another court in a different jurisdiction and the district court relied on the first merit bank case appellate court upheld the lower court's determination that it refused to order the judgment creditor to assign payments from her trust to that to the judgment debtor because the trial court did not have jurisdiction over the trusts here the district courts expressly stated we have no jurisdiction over the administration of this trust because it was formed in arizona and also stated we have no adamant jurisdiction over the the safe deposit box in it has no jurisdiction over the disposition of the trust or that the trust assets yet order this make this order quashing the levy if that determination is made that the district court had no jurisdiction everything else goes away all of the other rulings go away the order quassia the levy the order refusing to freeze the assets of the trust the order really directing the release of the monies and everything else that the district court ordered must necessarily go away quite frankly the only reason this case was filed here is because the judgment debtor mr daniel had been moved to southern california from arizona otherwise nothing times operating on the premise that this trust was a sham that it was not a spend a true spend thrift trust entitled to protection under the code of civil procedure for the reasons i stated it was linked to the judgment debtors social security it was opened by him and he had a signature card on file he took personal withdrawals from this account all of that evidence was in the face of the district court if they did not allow an evidentiary hearing for us to flesh those issues out there is a tremendous difference between pursuing the beneficial interest of a trustee beneficiary and pursuing the trust assets themselves when the trust assets we can tend to work are a farce are a fiction these are the assets of the judgment debtor daniel handed the appellee has argued that well we should have sued the trust we shouldn't have sued the judgment debtor if that was our position the problem with that argument is you can't sue a trust in california there is binding california's supreme court case last ending for the proposition that a trust is not a separate legal entity it can neither sue nor can it be sued the only relationship is that one of  fiduciary between the trustee and the trust assets themselves and those cases were not cited about a trust not being able to pursue a lawsuit or be sued in a lawsuit by would like to direct your honor's attention to the mall or view superior court case sixteen cal fourth eleven twenty four at eleven thirty two and the powers v ashton case forty five cow at third seven eighty three at seven eighty seven and finally the merc row construction engineers inc vs municipal court case twenty one caliph third seven twenty four at seven twenty nine all standing for that proposition could the trust of been the suit elsewhere another jurisdiction arizona or florida think maybe it was i don't recall it was the established maybe arizona i believe it was arizona your honor but the trustee peggy jackson i believe resides in all times pursuing the assets if this was a true trust that had spent thrift provisions attached to it by which the judgment debtor could receive income to live off that is the point of a spendthrift trust you receive income so you can live and that income is supposed to be protected from judgment creditors if that was the case that perhaps there would be a distinction but here we have a case where all signs pointed to this bank account the trust corpus if you will be longing to the on the hundred mile rule your honor and i believe this is the sixth circuit law perhaps your honor can correct me if i'm wrong but we did not find cases on the ninth circuit for standing for the proposition that if the documents in response to such a it has not been waived your honor for two reasons one is that appear it is a pure question of law and two we had good reason to attempt to change the law in making that argument we did not raise that are we did raise that argument in our reply papers we did not raise it in the underlying case because there was a ruling and recommendation that was made and then adoption of that will in a recommendation we did not have the opportunities to do so we could have made an objection as we did in the other case but we did not do that however that the point really here is the same sions did we do anything that was sanctionable did we act in bad faith we never required mr jackson to fly out here for a deposition we never required to her to hand produce the documents we didn't even require her to  hire a process server or some company to produce documents she could have emailed the documents she could have mailed the documents in this day and age she could have set up a dropbox link to give us access to the documents or some share point file none of this was  wanted were those options made clear to counsel there is a big gap in a meeting confer process between counsel and i we did not have the opportunity to do so and in fact they were admonished by the district court for their refusal to to participate in a meeting confer what as we didn't say these documents have to be handled ever and we didn't say peggy jackson has to appear we just said we want the documents i had several attempts phone calls were that were made and e mails that were sent that were not responded to and that is admitted by them it's one thing to pick up the phone and say i think you're wrong there's nothing more to discuss that's another thing not to ever call at all we did not receive a phone call we absolutely would have made that option available why do we want to burden someone with an archaic method of delivering documents e mail us the document set up a dropbox think it would have sufficed down to three and a half minutes yes i just wanted to save some time i would just one more brief point your honor not have jurisdiction over the administration of the trust how can it make that ruling inherently and not be not be inconsistent and i will reserve the rest thank you thank you a court found that held that it was a validly subsisting arizona trust which by the way can be sued in arizona in which by the way they even filed a motion in the bankruptcy court seeking to name the trust thing is i'm not here representing peggy jackson individually nor am i here this morning representing peggy jackson as personal representative of the no hands in the state yet the subpoena under rule forty five served on  me ten days after it was issued was sent by mail in it purported to subpoena documents from peggy jackson is personal representative and personally not on behalf of the trust so there wasn't even attempt to serve it subpoena was issued out of the arizona bankruptcy or the california bankruptcy court not exist in court there were a number of other deficiencies in it and mr alonso simply misstated the  only i sent him an e mail immediately with all of the information and after waiting a long period of time he sent me an e mail saying he wanted to talk about my commission of a felony in arizona or in california by unlicensed practice of law and having the marshal hold the funds until we could get in get admitted all of it's ridiculous and it's not even a felony if it were anything it were a misdemeanor but none of that your honor that's where things went south of the sanctions and i'm frankly embarrassed to have to argue sanctions in almost fifty five years i've never before filed a motion for sanctions and i believe there are epochal here now as to the peacock versus thomas  feel like i'm in never never land here i think that case supports us completely i wish i had found it inside it myself what it says it is that if there is a judgment you can't simply bring somebody else in with a complaint with the entirely new claim for relief there simply isn't jurisdiction to do that what we have here is an arizona bank account which they form sho by coming to to california to levy on a national bank so that they paid the money to the marshal's office here in california and they then proceeded in california  not to make the claim that they had an independent claim against the trust but they claimed that they could execute on these assets under their judgment there were a number of reasons there were five reasons listed none of which had mr la california law in the execution he failed to address the fact that while there was no evidentiary hearing the court below offensively essentially granted somebody judgment he said mr alonzo or the gene you have no basis for for your claims none of these were addressed but the fact is there is no jurisdiction here there's no jurisdiction to to to process a lawsuit that has never been filed against a trust the motion to amend in the arizona bankruptcy court years ago was never pursued and that action was dismissed with prejudice against  apparently is somehow to order the bank which no longer has the money to transfer the money or somehow to ask the bankruptcy court to hear a complaint against the another person and that's what they've done here they've simply levy not levied on the trust of a bank account in arizona by having it levied upon in california and the bank's office in california dragged across the over here when they couldn't make that stick when the judge properly said trust is governed by arizona law because it's in arizona entity they then shifted their grounds and for the first time before this court raise the argument that somehow they have a fraud complaints against a trust and that simply isn't permitted under peacocke i'd like to spend some time if i may answering questions if the court has any if somebody if the court was invited to the rule forty five sanctions the district courts and now assess was that it was facially invalid because it required the production of documents three thousand miles away but i look at the options available to boxes available to be checked on the subpoena the only one that's checked is to command the recipient to produce and permit inspection and it's it was served with a a portion  of it will forty five that indicates that jackson didn't have to make a personal appearance i beg your pardon you have it it was served it was served with the wrong rule forty five motion in other  words the rule says you have to provide a copy of the rule i'm a little bit upset about this because i spent five or six hours researching the wrong all that they submitted with their rule forty five subpoena and it was the wrong rule my i guess my question the bottom line is was it wasn't obvious to you that she couldn't produce the documents by email or make any arrangements instead of appearing in person when you say email i immediately sent an e mail in which i pointed out some of the deficiencies and by the way the court only said the most important facial deficiency there were others in the caption of it improper service not documents that you received you received a copy of a subpoena right albeit from the bankruptcy court but setting that aside for a moment you received a subpoena that required the production of documents accompanied by a portion of rule forty five that says an appearance is not required and i'm not sure that was part of leave forty five that was sent to me or honor but in any event never said that we could do that and keep in mind please your honor that he was demanding documents from peggy jackson in connection with her duties as a personal representative of the no hand in the state not documents from the trust which was the only entity before the court if you if you dish or the subpoena in the right court and beyond all that instead of saying all well just give us the documents were entitled right thank you is there any questions about the peacock versus thomas case because your honor it seems to me this is precisely on point saying they can't do what they're trying to do here which is levy on a bank account belonging to the trust under a judgment against daniel hendren and then use that as authority to create jurisdiction to sue we've got the argument that's called even question judge fisher thank you thank you very much really i think we both agree that the peacock cases on point but it's important to distinguish the fact that because it's some point it means a district court had no jurisdiction to make this ruling on the district court had no jurisdiction from the outset everything else goes away that's the first important point the second thing counsel mentioned was in regard to the subpoena being directed to peggy jackson in her personal representative capacity again for the same reasons i cited before we cannot direct the subpoena to a trust you directed subpoena to the trustee of the trust and that's exactly what we did thirdly i would like to quote from the district court court's finding regarding counsel's participation in the meeting immediate demanded immediate withdrawal of the subpoena but did not request a meeting confer in violation of local rule thirty seven dash one jackson's counsel never tried to have a discussion either by phone or in person it was whol unreasonable particularly in the face of those circumstances to conjecture that the subpoena required a personal appeal appearance what in the world would have given any reasonable counsel the belief that peggy jackson was required to fly to california and drop these documents off it's a third there is one other point your honour's that i would like to make in regard to even if that isn't true regarding the personal appearance requirement employing her capacity as a trustee to allow those withdrawals to be made and this occurred over several months that we demonstrated to the district court that could very well qualify as a regularly transacting business  even if that hundred mile rule is in play which it is not for the aforementioned reasons i stated again we live in a hyper technical society here dropbox links anything would work i have not i cannot recall a case in which someone actually handle ever documents or was inconvenienced in any way in response to a subpoena sanctions are not warranted for that reason and for the reasons that counsel did not effectively participate in meeting confer thank you