Free Statement - District Court of Arizona - Arizona

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Ed Hendricks. (Arizona Bar No. 002359) Michael K. Dana (Arizona Bar No. 019407) MEYER, HENDRICKS & BIVENS, P.A. 3003 North Central Avenue, Suite 1200 Phoenix, Arizona 85012-2915 Telephone Number: (602) 604-2200 C. Frederick Reish (Arizona Bar No.: 002408) Michael A. Vanic (California Bar No.: 073486) (pro hac vice) REISH LUFTMAN REICHER & COHEN 11755 Wilshire Boulevard, 10th Floor Los Angeles, CA 90025-1539 Telephone Number: (310) 478-5656 Attorneys for Defendants Charles M. Brewer, Charles M. Brewer, Ltd. Profit Sharing Plan and Trust, Charles M. Brewer, Ltd. Restated Pension Plan UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Stuart J. Reilly, Plaintiff, vs. Charles M. Brewer, Ltd., Profit Sharing Plan and Trust, a retirement plan; Charles M. Brewer, Ltd. Restated Pension Plan, a retirement plan; Ross Gordon and Associates, Inc., a corporation; and Charles M. Brewer, Defendants. CASE NO.: CIV 02 2218 PHX EHC

OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DEFINED BENEFIT PLAN TERMINATION PURSUANT TO FED.R.CIV.P. 56(a); OR FOR AN ORDER UNDER FED.R.CIV.P. 56(d) THAT CERTAIN FACTS ARE WITHOUT SUBSTANTIAL CONTROVERSY

CONTROVERTING STATEMENT OF FACTS IN SUPPORT OF BREWER DEFENDANTS' RESPONSE IN

Pursuant to LRCiv 56.1, Defendants Charles M. Brewer, Charles M. Brewer, Ltd. Profit Sharing Plan and Trust and Charles M. Brewer, Ltd. Restated Pension Plan (the "Brewer Defendants") submit this Controverting Statement of Facts in Support of Brewer Defendants' Response in Opposition to Plaintiff's Motion for Partial Summary Judgment
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Re: Defined Benefit Plan Termination Pursuant to Fed.R.Civ.P. 56(a); or for an Order Under Fed.R.Civ.P. 56(d) that Certain Facts are Without Substantial Controversy: Plaintiff's Alleged Uncontroverted Facts and Evidentiary Support 1. On November 12, 1992, the Trustee of the Pension Plan executed Brewer Defendants' Response and Evidentiary Support 1. Disputed: The documents attached

an as Exhibit 1 speak for themselves and are The

amendment and agreement to freeze benefit the best evidence of their content.

accruals and terminate the Charles M. Brewer Defendants admit each of the Brewer, Ltd. Restate Pension Plan effective documents attached collectively as Exhibit 1 November 30, 1992. (Exhibit 1)1 to Plaintiff's Separate Statement were signed by the parties thereto on or about November 12, 1992. The Brewer

Defendants dispute that the Pension Plan was terminated effective November 30, 1992 in the sense alleged by Plaintiff in his Motion. See Brewer Affidavit,2 ¶¶ 5, 47-54 (at Exhibit "A" to Request To Take Judicial
1

All references in this document to Exhibits 1 through 9, inclusive, are to the Exhibits attached to Plaintiff's Separate Statement Of Fact In Support Of His Motion For Partial Summary Judgment Re: Defined Benefit Plan Termination Pursuant To Fed.R.Civ.P. 56(a) Or For An Order Under Fed.R.Civ.P. 56(d) That Certain Facts Are Without Substantial Controversy. Under separate cover, the Brewer Defendants have filed their Request To Take Judicial Notice In Connection With The Brewer Defendants' Opposition To Plaintiff's Motion For Partial Summary Judgment Re: Defined Benefit Plan Termination Pursuant To Fed.R.Civ.P. 56(a); Or For An Order Under Fed.R.Civ.P. 56(d) That Certain Facts Are Without Substantial Controversy, attaching (i) as Exhibit "A" thereto portions of the Affidavit Of Charles M. Brewer In Support Of Brewer Defendants' Motion Of Summary Judgment Or, In The Alternative, Order That Facts Are Without Substantial Controversy [LRCiv 56.1] (i.e., the "Brewer Affidavit"), filed in this action on or about February 11, 2005, (ii) as Exhibit "B" thereto the Exhibits referenced in said portions of, and attached to, the Brewer Affidavit and (iii) as Exhibit "C" thereto the Declaration Kurt F. Piper In Support Of Brewer Defendants' Motions For Summary Judgment Or, In The Alternative, Order That Facts Are Without Substantial Controversy [LRCiv 56.1] (the "Piper Decl.").
3 2

(Cont'd)

All references to the "Beltz Decl." are to The Declaration Of Jay H. Beltz In Support Of Brewer Defendants' Response In Opposition To Plaintiff's Motion For Partial Summary Judgment Re: Defined Benefit Plan Termination Pursuant To Fed.R.Civ.P. 56(a); Or For An Order Under Fed.R.Civ.P. 56(d) That

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Plaintiff's Alleged Uncontroverted Facts and Evidentiary Support

Brewer Defendants' Response and Evidentiary Support Notice); Beltz Decl., ¶¶ 5-17 and Exhibit "A" thereto.3

2.

A Notice to Affected Parties

2. Disputed. The documents attached

regarding the proposed termination was as Exhibit 2 speak for themselves and are provided to plan participants in November, the best evidence of their content. As stated 1992. (Exhibit 2) in response to paragraph 1, the Brewer Defendants dispute that the Pension Plan was terminated effective November 30, 1992 in the sense alleged by Plaintiff in his Motion. The Brewer Defendants do not

dispute that the Notice to Affected Parties attached as a part of Exhibit 2 was delivered to participants. 3. A Notice to Employees advising that 3. Disputed. The documents attached

an application was to be made to the IRS as Exhibit 3 speak for themselves and are for an advance determination on the best evidence of their content. As stated

termination of the Pension Plan was in response to paragraph 1, the Brewer provided to plan participants in January, Defendants dispute that the Pension Plan 1993. (Exhibit 3) was terminated effective November 30, 1992 in the sense alleged by Plaintiff in his Motion. The Brewer Defendants do not

dispute that the Notice to Employees

(Cont'd)
Certain Facts Are Without Substantial Controversy filed and served concurrently herewith under separate cover.

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Plaintiff's Alleged Uncontroverted Facts and Evidentiary Support

Brewer Defendants' Response and Evidentiary Support attached as a part of Exhibit 3 was delivered to participants.

4. On February 17, 1993, the Pension

4.

The Brewer Defendants do not

Plan filed IRS Form 5310, Application of dispute that one of the documents attached Determination on Termination. (Exhibit 4) as Exhibit 4 is the IRS Form 5310, Application for Determination Upon

Termination filed by Jay Beltz on behalf of the Pension Plan. 5. On August 9, 1994, the IRS issued a 5. The Brewer Defendants do not

letter of favorable determination of the dispute that the IRS issued the determination Pension Plan's proposed termination date letter attached as Exhibit 4 stating that it had of November 39, 1992. (Exhibit 5) "determined that your termination of this plan does not adversely affect its

qualification for Federal tax purposes." See: Exhibit 4; and Beltz Decl., ¶¶ 7, 15 and 16. 6. The Pension Plan filed its "final" 6. The Brewer Defendants do not

IRS Form 5500-C/R return for Plan Year dispute that the Pension Plan filed its final Ending November 30, 1995. (Exhibit 6) IRS Form 5500-C/R for the Plan Year Ending November 30, 1995. (Exhibit 6) 7. On its "final" IRS Form 5500-C/R return, the Pension Plan 7. Disputed. The document attached as

stated Exhibit 7 is not a full, true, and correct copy of the "final" IRS Form 5500-C/R. The

affirmatively that: (Exhibit 7):

a. the Plan terminated in 1992 (line 9a); Brewer Defendants dispute that the Pension b. a resolution to terminate the plan had Plan was terminated effective November 30, been adopted (line 9c); c. 1992 in the sense alleged by Plaintiff in his

participants and beneficiaries had Motion. The Final 5500-C/R stated at line
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Brewer Defendants' Response and Plaintiff's Alleged Uncontroverted Facts and Evidentiary Support Evidentiary Support been notified of the termination (line 9d); 10c that a Form 5310-A had been filed and and d. distributions were made at line 28i: "Transfer of Assets to Profit in Sharing Plan ... 4,711,744." See Exhibit 5

accordance with all the requirements of and Brewer Affidavit, ¶¶ 47-54 (at Exhibit Code Section 411(a)(11) and 417(e) (line "A" to Request To Take Judicial Notice); 18) Beltz Decl., ¶¶ 12-17 and Exhibit "A" thereto. 8. Article 13.05 of the PS Plan 8. The Brewer Defendants do not

documents [sic] states: (Exhibit 8): The Trustee, after August 9, 1988, may not consent to, or be a party to a merger, consolidation or transfer of assets with a defined benefit plan, except with respect to an elective transfer, or unless the transfer benefits are in the form of paid-up individual annuity contracts guaranteeing the payment of the transferred benefits in accordance with the terms of the transferor plan and in a manner consistent with the Code and with ERISA. * * * A transfer is an elective transfer if: ... (2) the transfer is voluntary, under the full informed election by the Participant.

dispute that the language quoted is a portion of Article 13.05 of the PS Plan; however, the Pension Plan was governed by the terms of the Pension Plan, not the terms of the PS Plan, prior to the merger. Pension Plan

Section 10.1, "Merger, Consolidation or Transfer of Assets, Requirements," provided as follows: Before this Plan can be merged or consolidated with any other qualified plan or its assets or liabilities transferred to any other qualified plan, the Administrator must secure (and file with the Secretary of Treasury at least 30 days beforehand) a certification from a government-enrolled actuary that the benefits which would be received by a Participant of this Plan, in the even of a termination of the Plan immediately after such transfer, merger or consolidation, are at least equal to the benefits the Participant would have received if
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Plaintiff's Alleged Uncontroverted Facts and Evidentiary Support

Brewer Defendants' Response and Evidentiary Support the Plan had terminated immediately before the transfer, merger or consolidation, and such transfer, merger or consolidation does not otherwise result in the elimination or reduction of any "Section 411(d)(6) protected benefits" as described in Section 8.1. See: Brewer Affidavit, ¶ 50 and Tab 18, Restated Pension Plan, p. 77, §10.1 (at Exhibits "A" and "B," respectively, to Request To Take Judicial Notice); see, also Beltz Decl., ¶¶ 12-14 and Exhibit "A" thereto.

9. The transfer of Plaintiff's pension

9.

The Brewer Defendants do not

benefits from the Pension Plan to the PS dispute that the transfer of assets from the Plan was not voluntary, nor by informed Pension Plan to the PS Plan was not election. (Exhibit 9, Declaration of Stuart voluntary on the part of the participants but J. Reilly) was a trust-to-trust transfer from the Trustee of the Pension Plan to the Trustee of the PS Plan. See Brewer Affidavit, ¶¶ 53-54 (at Exhibit "A" to Request To Take Judicial Notice); see also Beltz Decl. ¶¶1 2-14 and Exhibit "A" thereto.

/// ///
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BREWER DEFENDANTS' UNCONTROVERTED FACTS Brewer Defendants' Uncontroverted Facts 1. In November, 1992, the Pension Evidentiary Support 1. Brewer Affidavit, ¶ 47 (at Exhibit

Plan was amended to freeze further benefit "A" to Request To Take Judicial Notice). accruals. 2. At that time, Brewer Ltd., as Plan 2. Brewer Affidavit, ¶ 48 (at Exhibit

sponsor, was considering terminating or "A" to Request To Take Judicial Notice); merging the Pension Plan into the PS Plan. Beltz Decl., ¶ 8. Brewer Ltd. was disinclined to terminate the Pension Plan outright and make early distributions to its participants because it was Brewer Ltd.'s view that the Plan was created to provide pension benefits for its participants, and Brewer Ltd. was

concerned that early distributions (which were not otherwise permitted under the Pension or PS Plan at that time) might defeat the primary purpose of the Plan for its participants. 3. Brewer Ltd. was advised in 3. Brewer Affidavit, ¶ 51 (at Exhibit

connection with its consideration regarding "A" to Request To Take Judicial Notice); termination or merger by Jay Beltz of Ross Beltz Decl., ¶ 5. Gordon. 4. Based on the information and Beltz received from 4. Beltz Decl., ¶ 8.

instructions Mr.

Charles M. Brewer, Ltd., it was Mr. Beltz's understanding that no distributions were to
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Brewer Defendants' Uncontroverted Facts be made from the Pension Plan to any participant, but rather, the Pension Plan assets were to be transferred to the PS Plan. Brewer Ltd., the Plan sponsor, determined that it was not interested in terminating the Pension Plan by the early distribution of its assets to participants. 5. In May, 1995, the Pension Plan and PS Plan were merged into the PS Plan. 6. On August 15, 1995, Mr. Beltz

Evidentiary Support

5. Brewer Affidavit, ¶ 6 (at Exhibit "A" to Request To Take Judicial Notice). 6. Beltz Decl., ¶ 12, and Exhibit "A"

prepared and filed with the Internal thereto; Brewer Affidavit, Tab 18, Restated Revenue Service a Form 5310-A, "Notice Pension Plan, p. 77, § 10.1 (at Exhibit "B" of Plan Merger or Consolidation, Spin Off, to Request To Take Judicial Notice). or Transfer of Plan Assets or Liabilities; Notice of Qualified Separate Lines of Business." The filing of this Form was consistent with, and required by, both the qualified plan rules and Pension Plan Section 10.1, "Merger, Consolidation or Transfer of Assets, Requirements," the provisions of which state as follows: Before this Plan can be merged or consolidated with any other qualified plan or its assets or liabilities transferred to any other qualified plan, the Administrator must secure (and file with the Secretary of Treasury at least 30 days beforehand) a certification from a government-enrolled actuary that the benefits which would be received by a Participant
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Brewer Defendants' Uncontroverted Facts of this Plan, in the even of a termination of the Plan immediately after such transfer, merger or consolidation, are at least equal to the benefits the Participant would have received if the Plan had terminated immediately before the transfer, merger or consolidation, and such transfer, merger or consolidation does not otherwise result in the elimination or reduction of any "Section 411(d)(6) protected benefits" as described in Section 8.1. 7. The Form 5310-A is used only in connection with a plan

Evidentiary Support

7. Beltz Decl., ¶ 13 and Exhibit "A"

merger, thereto.

consolidation, spin off, or transfer of plan assets or liabilities from one qualified plan to another qualified plan. It is not used, and cannot be used, in the case of a termination of a plan by distribution of its assets to its participants. 8. With respect to the Form 5500-C/R 8. Beltz Decl., ¶ 14 and see Exhibit 6,

Mr. Beltz prepared for the plan year ending line 28(i). November 30, 1995 (i.e., the "final Form 5500-C/R"), consistent with the Form 5310-A previously filed with the Internal Revenue Service and with Mr. Beltz's understanding and instruction that all of the assets of the Pension Plan be transferred to Profit Sharing Plan, he specifically stated on Line 28(i) of the form that the remaining
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Brewer Defendants' Uncontroverted Facts Pension Plan assets were to be handled pursuant to a "Transfer of Assets to Profit Sharing Plan." 9. The final Form 5500-C/R also stated at line 10c that a Form 5310-A had been filed. 10. With respect to the Form 5500-C/R for the plan year ending November 30, 1995, the fact that it indicates that it is a "final" return is not inconsistent with the Pension Plan's direct transfer of assets to the Profit Sharing Plan. In point of fact, the filing of a final Form 5500 is absolutely consistent with a transfer of assets or liabilities, a merger, a consolidation, or a spin off of assets to another plan. The

Evidentiary Support

9. Exhibit 6, line 10c.

10. Beltz Decl., ¶ 17.

filing of a final Form 5500 is not limited to the case of a plan termination, where the assets are distributed to the

plan participants.

Rather, a final Form

5500 is filed for the last year in which the plan had assets. 11. The fact that Charles M. Brewer, Ltd. filed a favorable Determination Letter Application (Form 5310) with the IRS, and received a favorable determination letter
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11. Beltz Decl., ¶ 15; see also Exhibit 5.

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Brewer Defendants' Uncontroverted Facts ruling pursuant to that application, did not effect a "termination" of the Pension Plan in the sense Plaintiff suggests. There was no legal obligation on the part of Charles M. Brewer, Ltd., as the ERISA

Evidentiary Support

Administrator and fiduciary of the Pension Plan, to effect plan termination in any particular manner as a result of the favorable determination letter. The fact

that the Pension Plan received the favorable ruling on plan termination does not require that the assets be distributed to the participants. The favorable determination letter merely provides the IRS

pronouncement that "your termination of this plan does not adversely affect its qualification for Federal tax purposes." The Form 5310 Application and the favorable determination letter were not inconsistent with the termination of the Plan through the trust-to-trust transfer and/or merger. 12. For purposes of preparing the 12. Beltz Decl., ¶ 10.

Termination Documentation, Mr. Beltz used standardized forms and letters, which generically refer to a plan termination. All
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Brewer Defendants' Uncontroverted Facts of the forms and letters he routinely used to cover a plan termination, a plan merger, a plan consolidation, a plan spin off, or a transfer of plan assets and liabilities to another qualified retirement plan, simply referred generically to a plan termination. Thus, any references to plan termination in these forms and letters were intended to cover all transactions resulting in the complete extinguishment of assets in a retirement plan trust and (i.e., were a plan

Evidentiary Support

"termination")

therefore

consistent with the termination of the Pension Plan through a trust-to-trust

transfer and/or merger of its assets into the PS Plan. Accordingly, to the extent the

word "termination" was used in connection with the Termination Documentation, it accurately describes the ultimate result, which was a direct transfer of assets from the Pension Plan to the Profit Sharing Plan and, thus, a cessation or "termination" of the Pension Plan. However, a direct trustto-trust transfer does not, and here did not, result in a distributable event as defined by the Pension Plan document.
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Brewer Defendants' Uncontroverted Facts 13. Article V of the Pension Plan

Evidentiary Support 13. Beltz Decl., ¶ 11; see, also: Brewer

document provides for distributions to Affidavit, ¶ 50 and Tab 18, Pension Plan, Pension Plan participants only on the Article V, (at Exhibits "A" and "B" to occurrence of death, disability, or Request To Take Judicial Notice).

termination of employment after having attained normal retirement age (age 65, or the participant's 5th anniversary of joining the Pension Plan, if later). Since none of these events occurred with respect to Mr. Reilly or any other Pension Plan

participants prior to the date the Pension Plan transferred all of its assets to the Profit Sharing Plan, none of the Pension Plan participants was entitled to a distribution of their benefits. 14. In connection with the merger in 14. Brewer Affidavit, ¶ 56 (at Exhibit

November, 1995, neither the Pension Plan "A" to Request To Take Judicial Notice). nor the PS Plan purchased paid-up

individual annuity contracts for the Plan participants guaranteeing the payment of the transferred benefits in accordance with the terms of the Pension Plan. Mr. Brewer was never advised by Mr. Beltz, or anyone else, that the PS Plan should purchase paidup individual annuities.

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Brewer Defendants' Uncontroverted Facts 15. Effective November 1, 2000, the PS Plan was to amended terminated to

Evidentiary Support 15. Brewer Affidavit, ¶ 59; Tab 22, First

permit Amendment to PS Plan, and Tab 23,

distributions

employees Summary of Material Modifications (at Exhibits "A" and "B" to Request To Take Judicial Notice).

before their normal retirement age.

16.

Brewer Ltd., as plan sponsor,

16.

Brewer Affidavit, ¶¶ 60-61 (at

decided to amend the PS Plan to permit Exhibit "A" to Request To Take Judicial early distributions because it had been Notice). advised by Mr. Beltz that there could be an issue with regard to the Plan because employer contributions were not being made and because administration was becoming increasingly difficult (e.g.,

locating former employees to provide annual statements). 17. Plaintiff requested a lump sum 17. Brewer Affidavit, ¶¶ 62-65 (at

distribution of his Plan benefits.

Exhibit "A" to Request To Take Judicial Notice).

18.

On November 29, 2000, the PS

18. Brewer Affidavit, ¶¶ 68-72 and Tabs

Plan made a lump sum distribution to Mr. 29 and 30 (at Exhibits "A" and "B" to Reilly in the amount of $604,865.39. The Request To Take Judicial Notice). amount of Mr. Reilly's benefit was calculated by Ross Gordon. Mr. Brewer relied upon Ross Gordon to accurately calculate Mr. Reilly's benefits. $604,865.39 benefit, Of the was

$516,525.96

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Brewer Defendants' Uncontroverted Facts attributable to Mr. Reilly's Pension Plan benefit and the balance, $88,339.43, was attributable to his PS benefit. Mr. Reilly's $604,865.39 benefit was offset by the total of the principal and accrued interest on his $10,000, $40,000, $233,141 and $29,000 Loans which was calculated by Ross Gordon and determined to equal

Evidentiary Support

$600,982.50. The balance of Mr. Reilly's benefit, after offset for Mr. Reilly's loans, was paid over to the IRS by the Plan pursuant to a tax levy received by the Plan. 19. Ross Gordon erred in calculating 19. Brewer Affidavit, ¶ 73 (at Exhibit

Mr. Reilly's benefit at the time of the "A" to Request To Take Judicial Notice); November 2000 distribution because it Piper Decl., ¶¶ 8-16 and 18-19 (at Exhibit failed to preserve the defined benefit "C" to Request To Take Judicial Notice). features of the Pension Plan4 after the merger as required under the circumstances by ERISA § 204(g), 29 U.S.C. § 1054(g), and because it failed to properly calculate the amount of Mr. Reilly's Pension Plan benefit as of the date of the merger in 1995. (Piper Declaration, ¶¶ 8-16 and 18-19).

In other words, the benefit should have been calculated based on the Pension Plan's interest rate and mortality table ­ i.e., its defined benefit pension plan characteristics.

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Brewer Defendants' Uncontroverted Facts 20. Mr. Piper, an actuary engaged by

Evidentiary Support 20. Piper Decl., ¶¶ 8-20 (at Exhibit "C"

the Brewer Defendants after this action was to Request To Take Judicial Notice); Brewer filed, recalculated Mr. Reilly's benefit, Affidavit, ¶¶ 74; Tab 31 (at Exhibits "A" preserving the defined benefit feature of his and "B" to Request To Take Judicial Pension Plan benefit after the trustee-to- Notice). trustee merger of the Pension Plan assets into the PS Plan and also correcting the error Ross Gordon made in calculating Mr. Reilly's Pension Plan benefit as of the date of merger in 1995. 21. Consequently, during the course of 21. Brewer Affidavit, ¶ 76 and Tabs 279

this action, Mr. Reilly received additional & 280 (at Exhibits "A" and "B" to Request distributions of his Plan benefits in the total To Take Judicial Notice). amount of $276,054.51, through the

payment on December 30, 2003 of $158,826.66 to Smith Barney as IRA Custodian for Stuart J. Reilly and the payment on May 13, 2004 of $117,224.85 to Smith Barney as IRA Custodian for Stuart J. Reilly. 22. The $276,054.51 amount 22. Piper Declaration, ¶¶ 21-26 (Exhibit

represented the total benefit due and unpaid "C" to Request To Take Judicial Notice); to Mr. Reilly when his benefit was Brewer Affidavit, ¶ 77 (at Exhibit "A" to recalculated, preserving the defined benefit Request To Take Judicial Notice) feature with respect to his Pension Plan

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5

Brewer Defendants' Uncontroverted Facts benefit and correcting the calculation error made by Ross Gordon. No other benefit is owed to Mr. Reilly from the Pension Plan or the PS Plan.5 23. As a result of the distributions

Evidentiary Support

23. Brewer Affidavit, ¶ 78 (at Exhibit

made to Mr. Reilly in 2000, 2003 and 2004, "A" to Request To Take Judicial Notice). Mr. Reilly has totaling in received benefit ­ 2000,

distributions $604,865.39

$880,916

November,

$158,826.66 in December, 2003, and $117,224.85 in May, 2004. 24. In the retirement industry, the word "termination" is used not only to refer to the case where a plan ceases to exist because all assets have been distributed to the plan participant, but also to the case where a plan ceases to exist due to a plan termination, a plan merger, a plan 24. Beltz Decl., ¶ 9.

consolidation, a plan spin off or a transfer of assets and liabilities to another qualified retirement plan.

All other participants who received incorrect benefit amounts in connection with their distributions in 2000 have also received correcting distributions from the Plan. Brewer Affidavit, ¶79 (Exhibit "A" to Request To Take Judicial Notice).

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441686

DATED this

8th

day of November 8, 2005 MEYER, HENDRICKS & BIVENS, P.A.

By: s/ Ed Hendricks Ed Hendricks Michael K. Dana 3030 North Central Avenue, Suite 1200 Phoenix, Arizona 85012-2915 -andREISH LUFTMAN REICHER & COHEN C. Frederick Reish Michael A. Vanic 11755 Wilshire Boulevard, Tenth Floor Los Angeles, California 90025-15

Attorneys for Defendants Charles M. Brewer, Ltd. and Charles M. Brewer Courtesy copy of the foregoing th
sent via Federal Express this 8 day of November, 2005, to:

Hon. Barry Ted Moskowitz United States District Court 5160 Courthouse 940 Front Street San Diego, California 92101 s/ Ed Hendricks

331139.2 Case 2:02-cv-02218-BTM-LSP

18 Document 225

DEFENDANTS . Filed TO PLAINTIFF'S SUM J'UDEPMSTAT. 18. CIV 19ISSUES IN EHC. 11/08/2005 SPage OFOGENUINE2218PHX OPP of 02 . OT. ­ N

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331139.2 Case 2:02-cv-02218-BTM-LSP

CERTIFICATE OF SERVICE I hereby certify that on November 8th, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Stuart J. Reilly Law Offices of Stuart J. Reilly, P.C. Attorney for Plaintiff

s/ Ed Hendricks

19 Document 225

DEFENDANTS . Filed TO PLAINTIFF'S SUM J'UDEPMSTAT. 19. CIV 19ISSUES IN EHC. 11/08/2005 SPage OFOGENUINE2218PHX OPP of 02 . OT. ­ N