Edith R. Matthai, 66730	MOTION NO. 1
ROBIE & MATTHAI
A Professional Corporation	Discovery Referee Appointed:
500 S. Grand Avenue, Suite 1500	Courtesy Copy to the Court
Los Angeles, CA 90071-2609
(213) 624-3062
(213) 624-2563 Fax

Attorneys for Defendant GRAHAM E. BERRY









	SUPERIOR COURT OF CALIFORNIA

	COUNTY OF LOS ANGELES







MICHAEL HURTADO,Plaintiff,vs.GRAHAM E.
BERRY,Defendant.___________________________________
))))))))))		CASE NO. BC208227[Assigned to: Hon. Ray L.
Hart]NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF AND HIS ATTORNEYS
MOXON & KOBRIN TO PRODUCE EMPLOYEE/ AGENT EUGENE INGRAM FOR
DEPOSITION; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
DEFENDANT'S MOTION; DECLARATIONS OF KIM W. SELLARS, WILLIAM H. GAILEY,
GARY BRUMMOND, AL SKILES AND ERNIE BASSETTDATE:	To be determinedTIME:
To be determinedPLACE:Office of the Hon. Stephen Lachs11835 W. Olympic
Blvd., Ste. 375Los Angeles, CAAction Filed:	April 5, 1999Trial
Date:  		March 5, 2001

				

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on a date and time to be decided in accordance
with the schedule of The Honorable Stephen M. Lachs, Judge of the
Superior Court (Retired), defendant Graham E. Berry will move this
Court for an order compelling plaintiff and his attorneys, Moxon &
Kobrin to produce Eugene Ingram for deposition.  
This motion is made on the following grounds:
1.	That defendant has been diligent in attempting to personally
serve Mr. Ingram and through no fault of defendant, he has been unable
to do so;
2.	That defendant gave notice to both Moxon & Kobrin and to
plaintiff through his attorneys that the deposition of Mr. Ingram was
required as both the person most knowledgeable and the custodian of
records for relevant documents from Moxon & Kobrin;
3.	That defendant personally served the subpenas requiring the
custodian of records and person most knowledgeable (Ingram) to appear
at deposition but Moxon & Kobrin failed to produce Ingram.
This Motion is made upon the Notice of Motion, the attached Memorandum
of  Points and Authorities, the Declarations of Kim W. Sellars and
William H. Gailey, Gary Brummond, Al Skiles and Ernie Bassett, the
attached exhibits, the Court's file and upon any other oral or
documentary evidence as may be presented at or before the hearing of
this motion.



DATED:  January 30, 2001		Respectfully submitted,

ROBIE & MATTHAI
A Professional Corporation







By
KIM W. SELLARS
Attorneys for DEFENDANT GRAHAM BERRY

	MEMORANDUM OF POINTS AND AUTHORITIES
	INTRODUCTION
For nearly seven years, Eugene Ingram has been the instrument of
Scientology engaged in a concerted effort to prosecute Graham Berry in
the civil and criminal courts.  (Exh. 1, 17.)   Despite Mr. Berry's
alleged blatant illegal conduct on both coasts. Eugene Ingram has
found only three purported witnesses to Mr. Berry's alleged illegal
conduct: (1) Robert Cipriano, who has testified that he was so
intimidated by Ingram that he gave false testimony against Mr. Berry
(Exh. 1-11); (2) Anthony Apodaca who testified that he, too, was paid
and pressured by Ingram to give false testimony against Mr. Berry; and
(3) Michael Hurtado, who Ingram located and who claims he is entitled
to $8 million in damages in this action.  Ingram was intimately
involved in locating each of these so-called witnesses and in ensuring
that they "cooperated" in the attack upon Mr. Berry.  Thus, Hurtado
has received Ingram's substantial and valuable investigative services
for free in Hurtado's several criminal cases  ever since he agreed to
prosecute this action.  
Obviously, defendant wishes to depose Mr. Ingram and has made
extraordinary attempts to do so over the last six months.  (Gailey
Dec.,  3, 4, 5; Brummond Dec.; Skiles Dec.; Bassett Dec.)  Mr.
Ingram's house has been staked out, plaintiff and his counsel have
received notice of Ingram's deposition; plaintiff and his counsel have
been subpenaed to produce Ingram and they have been asked to
voluntarily produce him for deposition.  (Exh. 21-28.)  Under these
facts, plaintiff and Moxon & Kobrin should be compelled to produce
their agent, percipient witness Eugene Ingram, for deposition.
	THE FACTS
A.	Scientology and Ingram.

For approximately twenty years, Eugene Ingram has been employed as an
investigator by Moxon & Kobrin and he provides investigative services
for plaintiff. (Sellars Dec.  11.)  Moxon & Kobrin  have been
routinely retained by Scientology to represent it and related parties.
The courts of this state have long recognized that Scientology employs
its "fair game" doctrine and litigation to "bludgeon the opposition
into submission."  (Church of Scientology v. Wollersheim (1996) 42
Cal.App.4th 628, 641 [42 Cal.Rptr.2d 620, 627]; Wollersheim v. Church
of Scientology (1989) 212 Cal.App.3d 872, 888 [66 Cal.Rptr.2d 1, 12];
Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1067
[283 Cal.Rptr. 917, 920-921].)  When it comes to defendant Graham
Berry, plaintiff's attorney, Moxon, and his investigator Ingram are
all too familiar with "fair game."
Mr. Berry was first retained as the attorney of Scientology's
adversaries in the early 1990's.  While employed at Lewis, D'Amato,
David B. Parker, Esq., Mr. Berry and a team of Lewis D'Amato lawyers
successfully represented former Scientology lawyer Joseph A. Yanny
against Scientology.  Mr. Berry also intervened on behalf of Yanny in
Scientology v. Armstrong, and was defense counsel in numerous other
cases including Scientology v. Factnet, and Church of Scientology v.
Geertz, et al.  The law firm of Moxon & Kobrin (or their predecessors)
were consistently Mr. Berry's adversaries in each of these cases.
B.	Ingram Intimidates Robert Cipriano into Signing a False
Declaration

By 1994, Moxon & Kobrin's investigator, Eugene Ingram, was seeking to
discredit Mr. Berry.  (Exh. 1, p. 61, 133; Exh. 4, p. 128:10-24)  In
May, 1994, Ingram appeared uninvited at the door of Robert J.
Cipriano's secured New York high-rise.   (Exh. 1, pp. 64-66.)  Ingram
said he was a detective with the Los Angeles Police Department and
"intimidated" Mr. Cipriano into signing a declaration that Mr. Ingram
had prepared.  (Exh. 1, pp. 71-80.)  The declaration contained a
variety of statements falsely accusing Mr. Berry of pedophilia and
other reprehensible and illegal conduct.  (Exh. 1, 2,  5, 11.)  The
May 5, 1994 declaration has been widely circulated and continuously
published on the Internet from mid-1994 to the present day.  Ingram
himself has been personally responsible for delivering the Cipriano
declaration to dozens of Mr. Berry's law partners, clients, friends,
acquaintances, politicians and even judges such as the Hon. Keith G.
Wisot.
In 1998, Mr. Berry sued Robert Cipriano  and others associated with
Scientology for libel and slander as a result of such false statements
as Mr. Berry was a pedophile who victimized many dozens of young men.
In that action, Mr. Berry, was bludgeoned into submission, declared a
vexatious litigant, and ordered to pay over $60,000 in costs.  Moxon
took depositions for over 30 days in the Cipriano case, propounded
hundreds if not thousands of interrogatories and document requests;
yet provided virtually no responsive interrogatory answers or
documents to discovery propounded by Mr. Berry.  Indeed, Moxon blocked
Mr. Berry from taking a single deposition.  Finally, as a result of
the orders to pay costs, Mr. Berry was driven into bankruptcy,
ultimately losing both his law practice and his home.  

A year after the Cipriano case was dismissed, Mr. Cipriano was deposed
on June 12, 2000 and August 7, 8 and 12, 2000 in this action.  In his
deposition, Mr. Cipriano recanted all of the damaging statements
contained in the May 5, 1994 declaration.  (Exh. 1, pp. 94-105.)  Mr.
Cipriano testified he wanted to "truth" to come out.  (Exh. 1, pp.
61-62.)  Then he explained exactly how Ingram obtained his signature
on a false declaration.
Ingram told Cipriano that Mr. Berry was "doing illegal things in Los
Angeles with regard to his practice" and that Mr. Berry was having sex
with underage gay males.  (Exh. 1, pp. 68:1-4, 70:15-18.)  
Cipriano then testified that Ingram intimated:  
"He knew and understood that there was a warrant, I guess an arrest
warrant, issued in the State of New Jersey for me.
He also indicated that he had -- I believe that he heard through some
other people that he spoke to prior to me that I was a fugitive from
the law and that I was wanted for numerous charges both the New York,
New Jersey, and other places.  He said that -- he said that I should
be very careful not to go to the State of New Jersey, that I could be
arrested.  He made a joke about getting pulled over driving a car,
that I could be arrested."  (Exh. 1, p. 71:10-23.)



Cipriano "thought [he] should be very careful to help [Ingram] [and],
assist him with information about Berry."  According to Cipriano: "I
was led to understand and believe that if I didn't help Mr. Ingram in
my casting (sic) him and my understanding him to be a detective with
the Los Angeles Police Department, that he could very well take me to
New Jersey and have me arrested."  (Exh. 1, p. 72:4-5, 19-25.)  
That same evening, Ingram returned to Cipriano's home while Cipriano
was out and had an hour-long conversation with Cipriano's wife.
Cipriano says:  "So I was quite apprehensive.  I walked in the door,
and there was a gentleman and a woman, Ingram and a lady, and she [his
wife] said, 'we had a wonderful conversation, and he asked me a lot of
questions about you.'"  (Exh. 1, p. 73:3-17.)  
Ingram appeared at Cipriano's office the following day with the final
draft May 5, 1994 declaration.  (Exh. 1, p. 76.)  Although Ingram
never specifically told Cipriano how the declaration would be used,
Cipriano understood that the Los Angeles Police Department would be
using it in an investigation of the illegal things Ingram claimed
Berry was doing.  (Exh. 1, 77:6-21.)  Importantly, Cipriano did not
compose any portion of the declaration and when he complained it was
inaccurate, no changes were made.  (Exh. 1 78:1-3.)  

When Cipriano reviewed the declaration:  
"I said to Mr. Ingram that this is not what I said; that it
mischaracterized what I said.  He became angry, somewhat belligerent.

He went on to say, 'You know how easy it is for me to find you?  How
do you think it would be for the authorities in New Jersey to find
you?'
I was terrified of what was going on in New Jersey.  And not having
the money to represent myself and not having an understanding -- as
such, the pressure that I felt being brought to bear on me, I signed
his version, or his -- this thing."  (Exh. 1, pp. 77-78.)

After Ingram became angry and belligerent, Cipriano signed the May 5,
1994 declaration.  (Exh. 1, p. 80:18-20.)  According to Cipriano,
Ingram was "standing up -- there was a small round conference table in
my office.  I was sitting.  He stood up.  When I said, 'this isn't
what I said,' he repeated something to the effect of how easy it was
to -- to find you and fugitive information and bringing me back to the
fear that I had over the New Jersey matter.  I was intimidated."
(Exh. 1, pp. 78:15-25, 79:1-13.)
In essence, Cipriano testified that he did not provide the information
contained in the May 5, 1994 declaration to Ingram.  Instead, Cipriano
testified that Ingram provided the information contained in the
declaration.  Ingram provided the wording and Ingram completely
fabricated whole paragraphs of the declaration.  (Exh. 1, pp. 80-106.)
During the Cipriano deposition, the following testimony was elicited
by Mr. Moxon  on cross-examination:
"Well, you kept providing money.  And based on the fact that our whole
relationship started with your agent, Mr. Ingram, threatening and
intimidating me to give the false declaration in 1994.  It was just a
continuation of all that, Sir."  (Exh. 1, pp. 325:20-25, 326:1-8.)

Under further cross-examination, Cipriano told Moxon:
"That is what you wanted to hear.  That is what you coached me to do.
That is what I was threatened and intimidated me to do.  And that's
what I was paid to do."  (Exh. 1, p. 359:16-23; see also pp. 333, 334,
341 and 352.)



Cipriano described the procedure Moxon used in preparing declarations
in Cipriano v. Berry:
"Every declaration that you prepared for me to sign was what you
wanted to hear, and what you wanted written, and what you wanted to
file in court, and what you wanted for everything. . . .  I signed
what you prepared with the commencement of the threat and intimidation
and the payments thereafter.  Almost every time you gave me something
to sign, you look at the same date or day after and there is a payment
of some sort."  (Exh. 1, p. 362:9-21.) 

Cipriano's testimony that he was paid to provide false statements
against Mr. Berry is documented and corroborated by at least 50
documents, many of them emanating from Moxon's own e-mail address or
bearing his own signature and handwriting.  (Exhs. 2-12.)
Cipriano also testified that in December, 1998 or January, 1999 Moxon
and Ingram told him that they had located a person named Michael
Hurtado who purportedly "had exchanged sexual favors for legal
services by Mr. Berry."  (Exh. 1, pp. 106-109.)  Neither Moxon or
Ingram said Moxon represented Hurtado.  Instead, Ingram told Cipriano
that the information regarding Michael Hurtado would be used to file a
State Bar complaint against Mr. Berry and to include in leaflets on
cars around Mr. Berry's neighborhood.  (Exh. 1, p. 110.)  In fact, a
State Bar complaint has been filed against Mr. Berry and leaflets have
been left in his neighborhood identifying him as a child molester.  
At Ingram's request, Cipriano set up a meeting with Jason Whitman at
the Los Angeles Youth Center.  Ingram decided to create a poster or
flyer with Mr. Berry's picture to circulate among Mr. Whitman's
clients.  Ingram told Whitman, "that Mr. Berry was a pedophile and
preying on underage male prostitutes and drugging them."  Sometime
later, Moxon told Cipriano that they had located Anthony Apodaca, that
he was a street prostitute, and that he was "willing to testify" to
having been with Berry.  (Exh. 1, p. 114-115.)  Whitman subsequently
told Cipriano that he was very upset with how Apodaca had been used.
Apodaca had gone to Whitman crying, said he was put up in a hotel,
paid $300 for clothes, and that Ingram "had somehow upset him."
Whitman was particularly upset that the Scientology connection had not
been disclosed by Cipriano or Ingram.  (Exh. 1, 

p. .)
C.	Investigator Ingram Recruits Hurtado.
In the Cipriano case, attorney Moxon deposed Mr. Berry over 12 days.
On November 25, 1998, Moxon questioned Mr. Berry about his sexual
relationship with
23 year old Michael Hurtado. (Exh. 12.) The deposition was videotaped.

Less than one month later, in December, 1998, Elliot Abelson, a
Scientology attorney told Donald Wager about Michael Hurtado.  (Wager
Depo., pp. 18:23-25, 19:1-24, 20:1-8.)  Wager then spoke with Ingram
about Michael Hurtado at least three times.  (Wager Depo., p.
25:1-25.)  Wager understood Ingram was working for Scientology
because Ingram told him he was working for Moxon at the time.  (Wager
Depo., pp. 26-27, 32:7-14.)  Moxon, acting as Scientology's counsel,
also contacted Wager regarding Mr. Hurtado.   Wager had at least six
conversations with Moxon before he ever met plaintiff Hurtado.  (Wager
Depo., pp. 27-28.)  Nonetheless, Wager opened his file on Michael
Hurtado in December, 1998 and began billing even though he had never
met Hurtado.  (Wager Depo, p. 13:20-25.)  

In mid-January, 1999, Ingram appeared at the Hurtado's home, once
again unannounced and uninvited.  (Exh. 13, pp. 29:3-6, 27:7-25,
29:6-10, 25; Exh. 14, pp. 19-25.)  Ana and Vanessa testified that
Ingram told them that Mr. Berry was a child molester.  To prove his
claim, he showed them the perjurious Cipriano declaration.  (Exh. 13,
pp. 10:3-6, 27:7-25, 29:6-10,-25; Exh. 14, pp. 19-25.)  Mr. Ingram
said he was investigating Mr. Berry from New York and had been
investigating him for a long, long time.  (Exh. 13, pp. 31:9-25,
32:1-25, 33:1-24, 38:18-25, 39:1-11; Exh. 15, pp. 131:16-25, 132:-13.)
Ingram suggested to the Hurtados that Mr. Berry had taken advantage of
Michael Hurtado.
When Ingram showed them the videotape of Mr. Berry's testimony
regarding his sexual relationship with Michael Hurtado, Mrs. Hurtado
did not want to see it, or look at it, and she refused to keep it,
saying: "Forget it.  Take it."  (Exh. 13, pp.37:2-11, 20-22, 25,
38:1-2.)  The entire Hurtado family had long believed that homosexual
conduct was inappropriate.  (Exh. 14, pp.157-158.)  Nonetheless,
Ingram showed them the videotape, the May 5, 1994 Cipriano
declaration, multiple other documents, and even told them that Mr.
Berry liked to be defecated upon.  (Exh. 14, pp. 46, 143.)  Ingram
wanted the Hurtados "to see a lawyer because of this matter," and
suggested that there was a possibility that there could be a civil
suit against Mr. Berry.  (Exh. 14, pp. 123:2-14, 22, 130:24-25,
131:1-4.)  Ingram then took Ana, Miguel, Vanessa and a Cuban writer
friend to see Wager within a very few days.  At Wager's office, they
were introduced to Moxon.  (Exh. 13, pp. 34:18-25, 35:1-25, 36:1-4,
11-25, 45:9, 46:1-25, 55:2-8, 59:1-17.)
Both Ana and Vanessa Hurtado thought the purpose of the meeting was to
find a lawyer who would represent Michael in a lawsuit against Mr.
Berry.  Neither of them knew about the then pending drug paraphernalia
charges against Michael.  (Exh. 14, p. 49:15-25; Exh. 13, pp. 27:7-17,
29:6-24, 30:1-20, 31:14-25, 32:1-13, 33:4-11, 46:19-25, 47:1-6,
58:14-17, 59:12-17.)  No one in the Hurtado family discussed Mr.
Berry's relationship with Michael Hurtado at any time before they
attended the meeting with Wager and Moxon.  Instead, Vanessa, Ana and
Miguel Hurtado -- without Michael Hurtado -- met with the attorneys
and decided to file this lawsuit against Berry.  (Exh. 13, pp. 35-41,
53-54.)  After the meeting, the elder Mr. Hurtado told Michael that
Mr. Wager would now be representing him in the criminal matter and Mr.
Berry's legal representation was terminated.  

The Hurtados went along with whatever the lawyers, Wager and Moxon,
and investigator Ingram told them to do.  (Exh. 14, pp. 40-44.)  The
Hurtados even went so far as to allow Ingram to tap their phone to
entrap Mr. Berry.  (Exh 14, pp. 59-85.)  In fact, Michael Hurtado is
not suing because of what was allegedly done to him.  Instead, he is
suing for "money" on the basis of the perjurious Cipriano declaration,
also shown to him by Ingram and because:
  		"I figured, you know, a person like this, doesn't
deserve anything good; so I just don't believe a person in a career
that should be able to have sex with minors and do drugs and offer
drugs to minors.  I don't believe in that; so that is why I'm suing."
(Exh. 15, p. 131:2-15.)

Wager did not meet with Michael Hurtado until January 22, 1999, after
Wager had met with Abelson, Ingram, Moxon and the Hurtado family.
(Wager Depo., pp. 20:17-25, 21:1-23, 22:25, 23:1, 24:1-21.)  Wager and
plaintiff did not sign a retainer agreement until January 27, 1999.
D.	Moxon, Wager and Ingram Seek Perjurious Statements from
Apodaca.
This action was filed on April 5, 1999.  Although Wager never
represented him, on April 13, 1999, Wager visited Anthony Apodaca  in
jail and left between $100 and $300 for him.  Moxon reimbursed Wager.
(Wager Depo., pp. 46:3-14; 53:10-25; 57:16-24, 59:20-22; 64:23-25.)
Apodaca was not a witness to anything relating to the drug
paraphernalia case which Wager was now handling for Michael Hurtado.
(Wager Depo., pp. 63:16-22, 64:11-25.)  According to Wager, on April
13, 1999, "there was a real question in [Apodaca's] mind as to who
Berry was."  However, on April 22, 1999, Ingram, Moxon and Wager met
with Apodaca and he was videotaped.  (Wager Depo., pp. 48:7-22,
50:9-15, 58:5-19.)  Just one week after receiving $100/$300 from
Wager, Mr. Apodaca was then able to identify Mr. Berry as a man he had
been with four to five years earlier.  (Exh. 18.)  In the videotape,
Mr. Apodaca said that while he was under age,  he engaged in
sadomasochistic activities with Mr. Berry.  (Exh. 18.)  On April 26,
1999, Moxon noticed Mr. Apodaca's deposition in this action.  Mr.
Apodaca was unable to attend because he was back in jail  (Exh. 19.) 

When, his deposition did proceed on May 3, 2000, Mr. Apodaca testified
he was high at the time of the videotaping, had no recollection of it
and he could not even recognize Mr. Berry.  (Exh. 16.)  Mr. Apodaca
said he was pressured into giving his videotaped statement. According
to Mr. Apodaca, some lawyer came to County Jail and gave him $200.00.
He was given money, McDonald's food certificates and clothing to
testify against Mr. Berry.  He refused.  According to Mr. Apodaca,
"All this stuff about this plaintiff trying to bribe me to testifying
-- okay? -- I don't go for that."  (Exh. 16, p. 12.)
E.	Wager, Abelson and Ingram Approach Prosecutors and Berry is
Reported 		to the State Bar.
In the spring of 1999, Wager, along with Scientology attorney Abelson,
also met with Detective Petz and District Attorney Paul Turley to
encourage them to prosecute Mr. Berry for pandering on the basis of
Michael Hurtado's first verified complaint in this lawsuit..  (Wager
Depo., pp. 101:13-16, 103:9-25, 104:13-25, 105-106.)  During that
meeting, Wager told Turley about his client's criminal history, the
pending charges against Hurtado, and Hurtado's claims against Mr.
Berry.  (Wager Depo., pp. 105:10-25, 107:11-15, 22-25, 108:1-4, 21-25,
109:1-6, 112:17-25, 113:1-19.)  Wager called Detective Petz several
times to see if Berry would be prosecuted and was ultimately told no
charges would be brought.  (Wager Depo., p. 114.)  Although Wager
declined to represent Hurtado when still more criminal charges were
brought against him, he did discuss the additional charges with both
Abelson and Ingram.  (Wager Depo., pp. 118:4-19, 119:13-17.)
Meanwhile, State Bar proceedings were brought against Mr. Berry
arising out of Michael Hurtado's allegations.  Scientology's
representatives now regularly contact the State Bar demanding that Mr.
Berry be punished.
Abelson  has also spent seven years "investigating" Mr. Berry.  By way
of example, on September 13, 2000, Mr. Abelson wrote to an attorney in
New Zealand,

"I am writing to you in connection with an investigation I am
conducting into Graham E. Berry.  The purpose of my investigation is
to uncover unethical or illegal conduct committed by Mr. Berry.  I
understand you may have data that may be of help in my investigation.
Specifically, I would appreciate any information you can provide
concerning Mr. Berry's motives for embarking upon a course of action
which would seem, to any objective observer, to be contrary to his own
best interests, and a blatant attack on international religion."
(Exh. 17.)  

Mr. Abelson saw fit to copy this letter to everyone from Mr. Berry's
elderly parents in New Zealand to the New York Disciplinary Committee
(for discipline of attorneys) to the Department of Justice in New
Zealand. Since bringing the action, Michael Hurtado has been arrested
multiple times and is currently in jail for violation of probation --
five years for stalking.  Ingram continues to provide substantial
investigative services for Hurtado in these several criminal
proceedings, attends court proceedings and takes Hurtado to AA
meetings.  (Sellars Dec. 11.)  Although Hurtado was represented by
Public Defenders before this lawsuit, he has consistently been
represented by private criminal defense attorneys since the day his
family agreed to sue Mr. Berry.
Thus, Ingram has consistently either used, or planned to use, false
statements both in civil and criminal actions to foment legal
proceedings against Mr. Berry.  Ingram continues to this day to
provide substantial and apparently free investigative and other
services to Michael Hurtado, who, even now, is receiving substantial
benefits for prosecuting this action directly from Mr. Ingram.
	PROCEDURAL POSTURE

Defendant has gone to extraordinary efforts to depose Eugene Ingram.
Multiple subpoenas were issued for his deposition. (Exh. 21-24.)  Each
subpoena was followed by multiple attempts to serve Mr. Ingram.
Defense counsel's process servers attempted to serve Eugene Ingram two
times on September 6, 2000, on September 7, 2000, two times on
September 11, 2000, on September 12, 2000, three times on September
13, 2000, on October 6, 2000, October 10, 2000, October 14, 2000,
October 16, 2000, October 17, 2000, November 3, 2000 (2 times),
November 16, 2000 (2 times), November 29, 2000 and December 25, 2000.
(Gailey Dec., Brummond Dec., Skiles Dec., Bassett Dec.)  
When it was apparent that Mr. Ingram was avoiding service and could
not be served, defendant then served a deposition subpoena for the
person most knowledgeable from Moxon & Kobrin and the custodian of
records from Moxon & Kobrin.  (Exh. 25, 26, 27.)  In particular,
defendant requested that Moxon & Kobrin produce the "person most
knowledgeable" regarding all photographing, filming or videotaping of
Graham Berry or Anthony Apodaca, the preparation of videotapes of
Graham Berry shown to the Hurtado family, the selection of documents
referring to Graham Berry that were shown to the Hurtado family, the
preparation of investigative reports, and the identification of the
person or entity paying Eugene Ingram.  (Exh. 25, Attach. 4, Nos. 1-5.
6-10, Exh. 27.)  Defendant also personally served Moxon & Kobrin with
a custodian of records deposition requesting the deposition of the
custodian for all of the above described records  (Exh. 26.)  In
addition, defendant personally served deposition notices for the
person most knowledgeable and the custodian of records from Moxon &
Kobrin on Moxon & Kobrin on January 4, 2001.  Attached to the notices
were true, correct and complete copies of the two deposition
subpoenas.  Finally, counsel for defendant wrote a meet-and-confer
letter to Ava Paquette requesting that she agree to produce their
agent-employee Mr. Ingram for deposition.  (Exh. 28.)  There was no
response. 
Accordingly, this motion was made necessary because Eugene Ingram is
evading service, and Moxon & Kobrin and plaintiff refuse to produce
their agent/employee Ingram for his deposition in this action.
	LEGAL ARGUMENT
WHEN AS HERE, A PARTY-AFFILIATED WITNESS HAS AVOIDED 
SERVICE AND HIS EMPLOYERS PLAINTIFF AND PLAINTIFF'S 
ATTORNEYS MOXON & KOBRIN REFUSE TO PRODUCE THE
WITNESS, THE COURT MAY ORDER THE DEPOSITION.
A.	Justice Requires that Plaintiff and his Attorneys be Ordered
to Produce Eugene Ingram at Deposition.

Since June 12, 2000, defendant has made over twenty attempts to
personally serve Eugene Ingram with a deposition subpena requiring his
personal appearance at deposition.  Service attempts were made by
Gailey & Associates, William Gailey personally and Gary Drummond, Al
Skiles and Ernie Bassett.  Mr. Gailey was a patrolman and then a
detective with the Los Angeles Police Department for 25 years.  Eugene
Ingram was a sergeant with the Los Angeles Police Department.  Thus,
Mr. Gailey personally knows Eugene Ingram.  Twenty years ago Mr.
Gailey came upon Ingram after he had been shot in Elysian Park and
took him to the hospital.  (Gailey Dec. 2.)  Thus, Mr. Gailey
personally knows Eugene Ingram.  Despite Mr. Gailey's repeated request
that Mrs. Ingram have Ingram call, and despite the past incident which
would seem to have created some sort of bond, Mr. Ingram has never
returned any of Mr. Gailey's or his staff's telephone calls.  Although
counsel for defendant attempted to serve Ingram on week days, holidays
and other times, service was never completed.  Only one conclusion can
be reached.  That is that Mr. Ingram is actively avoiding service.
Advising a witness to avoid service is unlawful.  (Holmes v. Superior
Court (1983) 145 Cal.App.3d 934.)  
B.	The Service of the Person Most Knowledgeable Subpena Required
Moxon & Kobrin to Produce Their Employee, Ingram.
When, as here, the notice of deposition or subpena served on an entity
sufficiently describes the matters on which questions will be asked,
the entity is under a duty to designate and produce the employee "most
qualified" to testify on its behalf on such matters.  (C.C.P.
§2025(d).)  The person designated by the entity must testify "to the
extent of any information known or reasonably available to the
deponent" (C.C.P. §2025(d).)  If the subject matter of the questioning
is clearly stated, the burden is on the entity to produce the right
witness.  

Here, it is undisputed that Ingram has worked for Moxon & Kobrin at
least since 1994 investigating Mr. Berry.  Ingram has also
continuously worked on behalf of Michael Hurtado in his various
criminal matters in which Moxon & Kobrin was not even counsel of
record and has provided him with other personal services.  Both the
subpenas and the notice with the subpenas attached plainly define the
subject matter about which the designee is to testify as follows:  
·	The filming of Graham Berry's house.
·	The filming of Graham Berry.
·	The filming of Anthony Apodaca.
·	The preparation of videotapes of Graham Berry shown to the
Hurtado family.
·	The selection of writings referring to Graham Berry that were
shown to the Hurtado family.
·	The preparation of notes, messages, reports or other writings
generated by Eugene Ingram referring to Graham Berry.
·	The identification of any person or entity that paid Ingram to
investigate Graham Berry.
·	The identification of any person that gave anything of
beneficial value to Anthony Apodaca.
·	The identification of any person or entity that paid Eugene
Ingram to provide services for Michael Hurtado.
·	The meetings involving Vanessa Hurtado, Miguel Hurtado and/or
Ana Hurtado in which Graham Berry was discussed.
It is beyond dispute that these categories are clear and unequivocal
and the only responsive person that plaintiff and Moxon & Kobrin could
designate to respond to these categories is their agent and employee,
Eugene Ingram.  Accordingly, Ingram should be ordered to appear for
deposition.
C.	A Notice of Deposition Compels a Party-Affiliated Witness to
Testify and Produce Documents if Requested.  (C.C.P. §2025(h)(1).)

A deposition subpena is not required to compel the attendance and
testimony of any person who, although not a named party, is either an
officer, director, managing agent or employee of a party.  (C.C.P.
§2025(h)(1.).)  When served with the notice, it is the responsibility
of the party to produce the person for deposition or risk sanctions.
(Weil & Brown, Civil Procedure Before Trial, §8:516, et seq., p.
8E-26.4.)  Here, plaintiff's counsel of record was personally served
with the requisite notice with the subpena attached specifically
describing the person to be deposed and the documents to be produced.
(Exh. 27.)  Here, Ingram is plainly the employee and agent of
plaintiff and Moxon & Kobrin have repeatedly admitted in these
proceedings that he is their employee.  Moreover, by virtue of
plaintiff's and Moxon & Kobrin's joint interest in recovering damages
in this action for their joint "immediate benefit," Mr. Ingram is
subject to notice and should be produced for deposition.  (Hand v.
Superior Court (1982) 134 Cal.App.3d 436.)  For this reason too,
plaintiff and Moxon & Kobrin can and should be ordered to produce
Eugene Ingram for deposition and the requested documents. 
	CONCLUSION
For all the foregoing reasons, defendant respectfully requests that
this Court order plaintiff and Moxon & Kobrin to produce their
employee-agent, Eugene Ingram for deposition along with the requested
documents.

DATED:	September 30, 2001		Respectfully submitted,	
ROBIE & MATTHAI





By
KIM W. SELLARS
Attorneys for Defendant GRAHAM E. BERRY

	DECLARATION OF KIM W. SELLARS
I, KIM W. SELLARS, declare:
1.	I am an attorney at law licensed to practice before all of the
courts of the State
of California and I am an associate in the law firm of Robie &
Matthai, a Professional Corporation, attorneys of record for defendant
Graham E. Berry in this action.  The facts stated in this declaration
are from my own personal knowledge and, if called as a witness, I
could and would competently testify as to each of these facts.
2.	Attached as Exhibit 20 is a true and correct copy of pertinent
portions of the deposition of Robert J. Cipriano, taken on August 7,
2000.
3.	Attached as Exhibit 21 is a true and correct copy of a
Deposition Subpoena for Personal Appearance directed to Eugene Ingram,
for appearance on June 28, 2000.
4.	Attached as Exhibit 22 is a true and correct copy of a
Deposition Subpoena for Personal Appearance directed to Eugene Ingram,
for appearance on September 15, 2000.
5.	Attached as Exhibit 23 is a true and correct copy of a
Deposition Subpoena for Personal Appearance directed to Eugene Ingram,
for appearance on November 8, 2000.
6.	Attached as Exhibit 24 is a true and correct copy of a
Deposition Subpoena for Personal Appearance directed to Eugene Ingram,
for appearance on January 29, 2001.
7.	Attached as Exhibit 25 is a true and correct copy of a
Deposition Subpoena for Personal Appearance directed to Person Most
Knowledgeable - Moxon & Kobrin, for appearance on January 29, 2001.
8.	Attached as Exhibit 26 is a true and correct copy of a
Deposition Subpoena for Personal Appearance directed to Custodian of
Records for Moxon & Kobrin, for appearance on January 29, 2001.
9.	Attached as Exhibit 27 is a true and correct copy of Notice to
Consumer; Notice of Depositions of Moxon & Kobrin; COR of Moxon &
Kobrin; PMK of Moxon & Kobrin; COR of Law Office of Donald R. Wager;
PMK of Donald R. Wager with Production of Documents.

10 	Attached as Exhibit 28 is a true and correct copy of my letter
to Ava M. Paquette of Moxon & Kobrin, attorneys of record for
plaintiff, dated January 22, 2001.
11 	I am informed and believe that Mr. Ingram provided
investigative services for Mr. Hurtado in relation to his recent
criminal prosecution for stalking.  I am informed and believe that Mr.
Ingram investigated the victim and suggested that she be prosecuted
for some financial wrongdoing, perhaps involving bad checks or
improper charges to credit cards.  Further, Vanessa Hurtado testified
in this action that Mr. Ingram picks up plaintiff Michael Hurtado and
takes him to AA meetings.  
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.  
Executed on January 30, 2001, in Los Angeles, California.



KIM W. SELLARS

	DECLARATION OF WILLIAM H. GAILEY
I, WILLIAM H. GAILEY, declare as follows:
1.	I am a principal in Gailey Associates, Inc.  My company
provides investigative services and service of process.  The facts
stated below are from my own personal knowledge.
2.	I was a patrolman with the Los Angeles Police Department for 8
years and Detective with the Department for 17 years.  During my
service with the Los Angeles Police Department I met Eugene Ingram,
who was a Sergeant with the Department.  In fact, approximately 20
years ago I was on duty and driving through Elysian Park when I came
upon a patrol car.  Eugene Ingram was in the car and had been shot.  I
took him to the hospital.
3.	On September 11, 2000, in an attempt to serve Eugene Ingram, I
went to the Ingram home in La Crescenta, California and spoke with
Mrs. Ingram.  She told me he was out of town and she would have him
call me.  I left a business card.  Mr. Ingram never called.
4.	On September 13, 2000, I again went to the Ingram home and
again spoke with Mrs. Ingram.  I asked that Mr. Ingram call me and she
stated, "He'll call you."  There was no return call.
5.	On December 25, 2000, I again attempted service on Mr. Ingram.
There was no response when I knocked on the door.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on January 30, 2001, at Long Beach, California.

_____________________________________
WILLIAM H. GAILEY

	DECLARATION OF GARY BRUMMOND
I, GARY BRUMMOND, declare as follows:
1.	I am an employee of Gailey Associates, Inc. which provides
investigative services and service of process.  The facts stated below
are from my own personal knowledge.
2.	On September 6, 2000, I made two attempts, once in the morning
and again in the afternoon, to serve Eugene Ingram at his home in La
Crescenta, California.  I spoke with Mrs. Ingram and she told me Mr.
Ingram was "out of town."
3.	On September 7, 2000, I again attempted to serve Mr. Ingram.
I spoke with Mrs. Ingram who again told me Mr. Ingram was "out of
town."
4.	On September 22, 2000, I again attempted service on Mr.
Ingram.  There was no response when I knocked on the door.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on January __, 2001, at __________________, California.

_____________________________________
GARY BRUMMOND

	DECLARATION OF AL SKILES

I, AL SKILES, declare as follows:
1.	I am an employee of Gailey Associates, Inc. which provides
investigative services and service of process.  The facts stated below
are from my own personal knowledge.
2.	On September 12, 2000, I attempted to serve Eugene Ingram at
his home in La Crescenta, California.  There was no response when I
knocked on the door.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on January __, 2001, at _________________, California.

_____________________________________
AL SKILES

	DECLARATION OF ERNIE BASSETT

I, ERNIE BASSETT, declare as follows:
1.	I am an employee of Gailey Associates, Inc. which provides
investigative services and service of process.  The facts stated below
are from my own personal knowledge.
2.	On September 13, 2000, I made two attempts in the evening to
serve Eugene Ingram at his home in La Crescenta, California.  No one
was home. 
3.	On October 6, 2000, I again attempted to serve Mr. Ingram.  I
spoke with Mrs. Ingram who again told me Mr. Ingram was "out of town."
4.	On October 10, 2000, I again attempted service on Mr. Ingram.
There was no response when I knocked on the door.
5.	On October 14, 2000, I again attempted service on Mr. Ingram.
There was no response when I knocked on the door.
6.	On October 16, 2000, I again attempted to serve Mr. Ingram.  I
spoke with Mrs. Ingram who again told me Mr. Ingram was "out of town."
7.	On November 13, 2000, I made two attempts to serve Mr. Ingram.
In the morning there was no response when I knocked on the door and in
the evening Mrs. Ingram again told me Mr. Ingram was "out of town."
8.	On November 16, 2000, I made two more attempts to serve Mr.
Ingram, once in the morning and again in the afternoon.  Both times I
knocked on the door and there was no response.
9.	On November 29, 2000, I again attempted to serve Mr. Ingram.
However, when I knocked on the door there was no response.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on January 30, 2001, at ___________________, California.

_____________________________________
ERNIE BASSETT

	PROOF OF SERVICE

I declare that I am over the age of eighteen (18) and not a party to
this action.  My business address is 500 South Grand Avenue, Suite
1500, Los Angeles, CA 90071.

On January 30, 2001, I served the foregoing document(s) described as:
NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF AND HIS ATTORNEYS
MOXON & KOBRIN TO PRODUCE EMPLOYEE/ AGENT EUGENE INGRAM FOR
DEPOSITION; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
DEFENDANT'S MOTION; DECLARATIONS OF KIM W. SELLARS, WILLIAM H. GAILEY,
GARY BRUMMOND, AL SKILES AND ERNIE BASSETT on all interested parties
in this action by placing a true copy of each document, enclosed in a
sealed envelope addressed as follows:



Ava Paquette, Esq.
MOXON & KOBRIN
3055 Wilshire Boulevard, Suite 900
Los Angeles, CA 90010
(213) 487-4468
(213) 487-5385 Fax 



Thomas S. Byrnes, Esq.
Law Offices of Thomas S. Byrnes
9465 Wilshire Blvd., Suite 330
Beverly Hills, CA 90212
(323) 852-0802
(323) 852-0820 Fax

()	BY MAIL: 	As follows:  I am "readily familiar" with the
firm's practice of collection and processing of correspondence for
mailing with the United States Postal Service.  Pursuant to that
practice, the envelope was deposited with the United States Postal
Service on the same day this declaration was executed in the ordinary
course of business.  The envelope is sealed and, with postage thereon
fully prepaid, placed for collection and mailing on this date in the
United States mail at Los Angeles, California.

(X)	BY PERSONAL SERVICE:

(X)	I delivered such envelope by hand to the above addressee(s) by
leaving the document with the receptionist at the address listed
above, during normal business hours.

( )	I delivered such envelope by hand to the above addressee(s).



( )	BY OVERNIGHT COURIER: I caused the above-referenced
document(s) to be delivered to an overnight courier service for
delivery to the addressee(s) shown.

( )	BY FACSIMILE TRANSMISSION:  I caused the above-referenced
document(s) to be transmitted to the above-named person(s) at the
above facsimile numbers.

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

Executed on January 30, 2001, at Los Angeles, California.



IAN SMITH