Van Dyke v. Balance Point Retirement Analytics LLC ( 2021 )

1 WILKE FLEURY LLP MATTHEW W. POWELL (SBN 114563) 2 mpowell@wilkefleury.com DANIEL L. EGAN (SBN 142631) 3 degan@wilkefleury.com AARON R. CLAXTON (SBN 314822) 4 aclaxton@wilkefleury.com 400 Capitol Mall, Twenty-Second Floor 5 Sacramento, California 95814 6 Telephone: (916) 441-2430 Facsimile: (916) 442-6664 7 Attorneys for Plaintiffs James Van Dyke, in his 8 individual capacity, and James Van Dyke and Connie Jerome as the Trustees of the Van Dyke’s 9 Rice Dryer Profit Sharing Plan 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 No. 2:18-cv-02531-MCE-DB James Van Dyke in his individual capacity; 13 James Van Dyke and Connie Jerome as Trustees of the Van Dyke’s Rice Dryer Profit 14 Sharing Plan, ORDER FOR APPEARANCE AND EXAMINATION OF JUDGMENT 15 Plaintiffs, DEBTOR BALANCE POINT RETIREMENT ANALYTICS, LLC, 16 v. MARY CLARE BARNACK, CHIEF OPERATIONS OFFICER 17 Balance Point Retirement Analytics, LLC and DOES 1-25, Date: June 4, 2021 18 Time: 9:30 a.m. Defendants. Courtroom: 27 19 Judge: Hon. Deborah Barnes 20 21 22 23 24 25 26 27 1 I. INTRODUCTION 2 3 Plaintiffs James Van Dyke, in his individual capacity, and James Van Dyke and Connie 4 Jerome as Trustees for the Van Dyke Rice Dryer Profit Sharing Plan (Plaintiffs/Judgment Creditors) 5 have applied for an Order to take the examination of Judgment Debtor Balance Point Retirement 6 Analytics, LLC (Balance Point) through its Chief Operations Officer, Mary Clare Barnack on June 7 4, 2021 at 9:30 am at via Zoom videoconference. Plaintiff's further request that Mary Clare Barnack 8 be ordered to produce the documents specifically identified below on or before May 11, 2021. 9 For the following reasons, this Court grants the Application. 10 II. BACKGROUND FACTS 11 12 On November 5, 2019, a Stipulated Judgment (“Judgment”) was entered in favor of Plaintiffs 13 against Balance Point in the United States District Court for the Eastern District of California. 14 (Declaration of Matthew W. Powell (“Powell Dec.”), ¶ 2, Exhibit A). 15 Approximately one month prior thereto, a Stipulated Judgment was entered in favor of 16 Plaintiffs in the companion action against Robert Barnack, the Chief Executive Officer of Balance 17 Point Retirement Analytics, LLC. Plaintiffs brought an adversary proceeding against Mr. Barnack 18 in the United States Bankruptcy Court for the Eastern District of California. That adversary 19 proceeding was withdrawn and the matter returned to the District Court. On October 15, 2019, a 20 Stipulated Judgment was entered in the action In re Robert Scott Barnack (Case No. 2-19-CV- 21 00073-MCE-DB). (Powell Decl. ¶ 2, Exhibit B.) Collectively, Mr. Barnack and Balance Point are 22 referred to as “Defendants.” 23 The Judgment was entered in the amount of two million, five hundred thousand dollars 24 ($2,500,000) and required Defendants to make payments to Plaintiffs in accordance with a payment 25 schedule included in the Judgments. (Powell Decl. ¶ 3.) Balance Point, through its Chief Executive 26 Officer, Robert Scott Barnack, made the first payment of two hundred thousand dollars ($200,000) 27 and the second payment of one hundred thousand dollars ($100,000). (Powell Dec. ¶ 3.) However, 1 Dec. ¶ 4.) When Defendants failed to make the March 31, 2020 payment, Plaintiffs did not 2 immediately declare a default. Instead, in light of the local shelter-in-place orders, Plaintiffs granted 3 Defendants an extension to April 30, 2020. That date passed without payment. (Powell Dec. ¶ 5.) 4 Plaintiffs granted Defendants a second extension to June 1, 2020, which also passed without 5 payment. (Id.) Plaintiffs granted Defendants a third extension to June 8, 2020, based on 6 Defendants’ representation that payment was on its way. That date also passed without payment. 7 (Id.) Defendants thereafter defaulted on the Judgment by failing to make the June 30, 2020 payment. 8 (Powell Decl. ¶ 6.) 9 On August 6, 2020, Plaintiffs filed an Application For An Order For Appearance And 10 Examination Of Judgment Debtor Balance Point Analytics Retirement, LLC, Mary Clare Barnack, 11 Chief Operations Officer. (EMC No. 18). On August 11, 2020, United State Magistrate Judge Debra 12 Barnes issued an order requiring Balance Point through its Chief Operations Officer to appear for 13 an examination on September 25, 2020. After the debtor’s examination was scheduled, Mr. Barnack 14 delivered a cashier’s check to Plaintiffs’ counsel for $70,000 and represented that he would pay an 15 additional $130,000 by August 31, 2020. August 31, 2020 passed without Mr. Barnack making the 16 $130,000 payment, so Plaintiffs’ counsel reached out to Mr. Barnack’s counsel to determine when 17 the payment would be made. On September 3, 2020, Barnack, through his counsel, represented that 18 he could definitely pay the $130,000 on September 28, 2020 and an additional $100,000 on October 19 28, 2020. That representation is was memorialized in an exchange of emails between Mr. Barnack’s 20 counsel and Plaintiffs’ counsel. (Powell Decl. ¶ 7; Ex C.) 21 Based on Mr. Barnack’s payment of $70,000 and his assurance that he could definitely pay 22 an additional $130,000 by September 28, 2020, Plaintiffs withdrew their request to take the 23 examination of Balance Point. (Powell Decl. ¶ 8.) 24 Despite his assurance that the $130,000 would definitely be paid on September 28, 2020, 25 Mr. Barnack did not deliver a cashier’s check to Plaintiffs’ counsel. Plaintiffs’ counsel promptly 26 reached out to Mr. Barnack’s counsel to ask when they payment due on September 28, 2020 would 27 be made. Through his counsel, Mr. Barnack represented that he would deliver the check for 1 Mr. Barnack’s counsel when he could expect to receive delivery of the check. Mr. Barnack’s counsel 2 responded that she would check with Mr. Barnack. Mr. Barnack did not make any payments to 3 Plaintiffs during early October 2020, so Plaintiffs applied ex parte for an Order for Appearance and 4 Examination of Judgment Debtor Balance Point Retirement Analytics, LLC, Mary Clare Barnack, 5 Chief Operations Officer (“Order”). Judge Barnes issued that order on October 19, 2020 with the 6 debtor’s examination scheduled for January 15, 2021. In addition to ordering Ms. Barnack to appear, 7 Judge Barnes ordered Ms. Barnack to produce the documents specifically identified in the Order on 8 or before December 15, 2020. Ms. Barnack did not produce any documents by December 15, 2020, 9 nor did she produce any documents prior to her debtor's examination. (Powell Decl. ¶¶ 9-10.) 10 On January 15, 2021, Ms. Barnack failed to appear for her debtor's examination. Therefore, 11 Judge Barnes issued an Order to Show Cause why Ms. Barnack should not be sanctioned for failing 12 to appear for her examination as ordered. (Powell Decl. ¶ 11.) 13 Shortly after Judge Barnes issued an Order from the bench requiring Ms. Barnack to show 14 cause, Ms. Young contacted Mr. Powell and advised him that she was prepared to deliver a check 15 from Robert Barnack for twenty thousand dollars ($20,000). The afternoon of January 15, 2021, 16 Ms. Young personally delivered a check to Mr. Powell for $20,000. During the discussion that 17 occurred upon the delivery of the check for $20,000, Powell advised Ms. Young that Plaintiffs 18 would proceed with the debtor's examination of Robert Barnack then scheduled for January 22, 19 2021. Mr. Powell further advised Ms. Young that he would like to coordinate with her regarding 20 arranging for personal service of the Order to Show Cause on Ms. Barnack. While Ms. Young made 21 it clear that she did not represent Ms. Barnack, she did agree to relay that request on to her client, 22 Robert Barnack. Ms. Young later advised Mr. Powell that Robert Barnack had advised her that Mary 23 Clare Barnack would be available for personal service of Judge Barnes' Order to Show Cause on 24 November 16, 2020 (Powell Decl. ¶ 12.) 25 On January 22, 2021, Mr. Powell and Ms. Young appeared for the debtor's examination of 26 Robert Barnack. However, Robert Barnack failed to appear for his debtor's examination and Judge 27 Barnes issued an order from the bench directing Robert Barnack to show cause why he did not 1 Barnack to show cause why he did not appear for his debtor's examination. (Powell Decl. ¶ 13.) 2 Robert Barnack and Mary Clare Barnack appeared before Judge Barnes on March 5, 2021 3 to explain why they failed to appear for their debtors’ examinations. (Powell Decl. ¶ 14.) Following 4 that hearing, Judge Barnes issued a Minute Order indicating that the Order to Show Cause had been 5 discharged. (ECF No. 30.) 6 As of the date this application was filed, there had been no further payments on the amounts 7 due and presently owing under the terms of the Judgments. The amount presently owed to Plaintiffs’ 8 is two million, one hundred ten thousand dollars ($2,110,000). (Powell Decl. ¶ 15.). 9 By this Application, Plaintiffs seek to conduct a debtor’s examination of Mary Clare 10 Barnack. Not only is Ms. Barnack the wife of Defendant Robert Barnack, Ms. Barnack was, at all 11 relevant times to the action, the Chief Operations Officers for Balance Point. Ms. Barnack is also 12 listed as a founding partner and principal of Balance Point. Her duties at Balance Point included 13 responsibility for its operational and accounting matters. Among the areas of inquiry will be the 14 various uses made of the money the Plaintiffs paid to Balance Point. (Powell Decl. ¶¶ 16-17, Ex. 15 C at, pp. 4, 24.) 16 Plaintiffs also intend to examine Ms. Barnack regarding the assets and liabilities of her 17 husband. Among the areas of inquiry will be Mr. Barnack’s actions while he was serving as the 18 Chief Executive Officer of Balance Point, as well as his employment from 2016 through the date of 19 the examination. Ms. Barnack will also be examined regarding the use of funds flowing through 20 the accounts maintained by Balance Point to Mr. Barnack, Ms. Barnack and their daughter, Meredith 21 Barnack. Another area to be addressed during the examination of Ms. Barnack will be the source of 22 funds the Barnacks are using to pay their living expenses at the present time. Finally, Ms. Barnack 23 will be examined regarding the source of funds used by Mr. Barnack to make the payments to 24 Plaintiffs. The scope of the examination of Ms. Barnack will be wide-ranging as Plaintiffs attempt 25 to discover assets that they can use to satisfy the $2,110,000 balance that is presently due and 26 payable under the terms of the Stipulated Judgments against Balance Point and Robert Scott 27 Barnack. In order for the examination for Ms. Barnack to proceed in a meaningful manner, it is 1 11 2021. (Powell Decl. ¶ 18.) 2 III. DISCUSSION 3 4 Plaintiffs have filed an application for a debtor’s examination and production of documents. 5 Pursuant to Federal Rule of Civil Procedure 69(a)(l ), “[t]he procedure on execution - and in 6 proceedings supplementary to and in aid of judgment or execution - must accord with the procedure 7 of the state where the court is located, but a federal statute governs to the extent it applies.” “[T]he 8 procedure on execution is to be in accordance with the procedure of the state in which the district 9 court is located at the time the remedy is sought.” In re Estate of Ferdinand Marcos Human Rights 10 Litigation, 536 F.3d 980, 987-988 (9th Cir. 2008). In turn, California Code of Civil Procedure 11 Section 708.110 provides, in relevant part: 12 (a) The judgment creditor may apply to the proper court for an order requiring the judgment debtor to appear before the court, or before a 13 referee appointed by the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money 14 judgment. 15 (b) If the judgment creditor has not caused the judgment debtor to be examined under this section during the preceding 120 days, the court 16 shall make the order upon ex parte application of the judgment creditor. 17 (c) If the judgment creditor has caused the judgment debtor to be 18 examined under this section during the preceding 120 days, the court shall make the order if the judgment creditor by affidavit or otherwise 19 shows good cause for the order. The application shall be made on noticed motion if the court so directs or a court rule so requires. 20 Otherwise, it may be made ex parte. 21 (d) The judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 10 days before the date set for 22 the examination. Service shall be made in the manner specified in Section 415.10. Service of the order creates a lien on the personal 23 property of the judgment debtor for a period of one year from the date of the order unless extended or sooner terminated by the court. 24 (e) The order shall contain the following statement in 14-point 25 boldface type if printed or in capital letters if typed: “NOTICE TO JUDGMENT DEBTOR. If you fail to appear at the time and place 26 specified in this order, you may be subject to arrest and punishment for contempt of court and the court may make an order requiring you 27 to pay the reasonable attorney’s fees incurred by the judgment creditor in this proceeding.” 1 Cal. Civ. Proc. Code § 708. 110 (a)-(e). California Code of Civil Procedure Section 708.160(b) also 2 provides that “[a] person sought to be examined may not be required to attend an examination before 3 a court located outside the county in which the person resides or has a place of business unless the 4 distance from the person’s place of residence or place of business to the place of examination is less 5 than 150 miles.” Cal. Civ. Proc. Code § 708.160(b). 6 Plaintiffs’ application sets forth the showing required by Federal Rule of Civil Procedure 7 § 69(a)(2) and the applicable provisions of the California Code of Civil Procedure Sections 708.110 8 and § 708.160. 9 Additionally, where a judgment debtor is an organization, California Code of Civil 10 Procedure Section 708.150 provides, in relevant part: 11 (a) If a corporation, partnership, association, trust, or other organization is served with an order to appear for an examination, it 12 shall designate to appear and be examined one or more officers, directors, managing agent, or other persons who are familiar with its 13 property and debts. 14 (b) If the order to appear for an examination requires the appearance of a specified individual, the specified individual shall appear for the 15 examination and may be accompanied by one or more officers, directors, managing agents, or other persons familiar with the 16 property and debts of the corporation, partnership, association, trust, or other organization. 17 18 Here, Plaintiffs believe Ms. Barnack has specific knowledge regarding the property of 19 Balance Point as a “founding partner” and Chief Operations Officer of the organization who is 20 “responsible for all firm operational and accounting matters.” (Powell Dec. ¶¶ 16-17, Exhibit C, 21 pp. 4, 24.) Accordingly, Plaintiffs request that Ms. Barnack appear for examination on behalf of the 22 judgment debtor, Balance Point. As noted above, Plaintiffs also intend to examine Ms. Barnack as 23 the spouse of Defendant Robert Scott Barnack. (Powell Decl. ¶ 18.) Plaintiffs believe that Ms. 24 Barnack has specific knowledge regarding the property of Mr. Barnack, as well as his access to 25 assets that were not disclosed in the proceedings before the United States Bankruptcy Court. 26 (Powell Decl. ¶ 18.) 27 Plaintiffs also seek to require Ms. Barnack to produce documents prior to the examination. 1 judgment debtor, or third persons who have property of or are indebted to the judgment debtor, in 2 order to discover property and apply it toward the satisfaction of the money judgment.” United 3 States v. Feldman, 324 F.Supp.2d 1112, 1116 (C.D. Cal. 2004) (quoting Imperial Bank v. Pim Elec., 4 Inc., 33 Cal.App.4th 540 (1995)). A debtor’s examination is intended “to allow the judgment 5 creditor a wide scope of inquiry concerning property and business affairs of the judgment debtor, 6 and to leave no stone unturned in the search for assets which might be used to satisfy the judgment.” 7 Alcalde v. NAC Real Estate Investments & Assignments, Inc., 580 F.Supp.2d 969, 970 (C.D. Cal. 8 2008) (citations and internal punctuation omitted). In a debtor’s examination, assets of a judgment 9 debtor’s spouse are subject to levy in order to satisfy the judgment. See Cal. Civ. Proc. Code 10 § 708.160(b)(2). Finally, the privilege not to testify against a spouse does not apply in a debtor’s 11 examination under California law. See Cal. Civ. Proc. Code § 708.130(b). 12 Federal Rule of Civil Procedure 34 authorizes a party to seek production of documents. 13 Further, California Code of Civil Procedure section 708.030(a) provides that a “judgment creditor 14 may demand that any judgment debtor produce and permit the party making the demand, or someone 15 acting on that party’s behalf, to inspect and to copy a document that is in the possession, custody, 16 or control of the party on whom the demand is made ....” Cal. Civ. Proc. Code § 708.030. 17 Accordingly, the Ms. Barnack shall produce the following documents for inspection as directed by 18 this order. 19 1. All documents identifying real property, personal property and intellectual property, 20 including, but not limited to, homes, vehicles, boats, computers, bank accounts, savings and loan 21 accounts, credit union accounts, brokerage accounts, retirement accounts, PayPal accounts, life 22 insurance policies, annuities, bank deposit boxes, securities, security interests, cash, accounts 23 receivable, and any other property Robert Barnack is entitled to receive from third-parties, as well 24 as any other assets owned or controlled by Robert Barnack. Such documents, shall include, without 25 limitation, the location of any and all property and assets of Robert Barnack. 26 2. All documents identifying real property, personal property, and intellectual property, 27 including, but not limited to, homes, vehicles, boats, computers, bank accounts, savings and loan 1 security interests, cash, accounts receivable, and any other property Balance Point Retirement 2 Analytics, LLC is entitled to receive from third-parties, as well as any other assets owned or 3 controlled by Balance Point Retirement Analytics, LLC. Such documents, shall include, without 4 limitation, the location of any and all property and assets of Balance Point Retirement Analytics, 5 LLC. 6 3. All documents identifying real property, personal property, and intellectual property, 7 including, but not limited to, homes, vehicles, boats, computers, bank accounts, savings and loan 8 accounts, credit union accounts, brokerage accounts, annuities, bank deposit boxes, securities, 9 security interests, cash, accounts receivable, and any other property Double Diamond Holdings, 10 LLC is entitled to receive from third-parties, as well as any other assets owned or controlled by 11 Double Diamond Holdings, LLC. Such information and documents, shall include, without 12 limitation, the location of any and all property and assets of Double Diamond Holdings, LLC. 13 4. All tax returns filed by Robert Barnack, Balance Point Retirement Analytics, LLC, 14 or Double Diamond Holdings, LLC with any Federal, State or Local Tax authority from January 1, 15 2012 through the present. 16 5. All accounting records of Robert Barnack, Balance Point Retirement Analytics, 17 LLC, or Double Diamond Holdings, LLC reflecting transactions for the period from January 1, 2012 18 through the present, including, but not limited to documents identifying accounts payable, deposit 19 receipts and accounts receivable, along with, payroll records, financial statements, general ledgers, 20 and journal entries. 21 6. All financial records for bank, brokerage or other financial institution accounts 22 owned or controlled, in whole or in part, by Robert Barnack, Balance Point Retirement Analytics, 23 LLC, or Double Diamond Holdings, LLC reflecting transactions for the period from January 1, 2012 24 through the present. 25 7. All documents relating to checking accounts maintained by Robert Barnack, Balance 26 Point Retirement Analytics, LLC, or Double Diamond Holdings, LLC, including but not limited to, 27 checkbooks, checkbook stubs, cancelled checks, checkbook entries, passbooks and account 1 the present. 2 8. Any contracts, judgments, liens, settlement agreements or any other documents 3 pursuant to which another party has agreed to pay money to Robert Barnack, Balance Point 4 Retirement Analytics, LLC, or Double Diamond Holdings, LLC, during the period from January 1, 5 2012 through the present. 6 9. All documents relating to real estate holdings by Robert Barnack, Balance Point 7 Retirement Analytics, LLC, or Double Diamond Holdings, LLC, including but not limited to, trust 8 deeds, grand deeds, mortgages, promissory notes, corporate records, partnership records, limited 9 liability company records, shares, certificates, or units any such real estate holdings during the 10 period from January 1, 2012 through the present. 11 10. All debit and credit card statements of Robert Barnack, Balance Point Retirement 12 Analytics, LLC, or Double Diamond Holdings, LLC reflecting purchases, refunds and payments 13 during the period from January 1, 2012 through the present. 14 11. Any W-2 forms received by Robert Barnack from January 1, 2012 through the 15 present. 16 12. Any 1099 statements received by Robert Barnack, in his individual capacity or any 17 other capacity, Balance Point Retirement Analytics, LLC or Double Diamond Holdings, LLC for 18 services rendered or work performed during the period from January 1, 2012 through the present. 19 13. Any K-1 statements received by Robert Barnack, in his individual capacity or any 20 other capacity, compensations, distributions or any other monetary payments received during the 21 period from January 1, 2012 through the present. 22 14. Any documents evidencing property held by Robert Barnack in pawn at the present 23 time. 24 15. All partnership certificates, articles of incorporation, articles of organization and 25 trade name certificates filed by Robert Barnack, in his individual or any other capacity, during the 26 period from January 1, 2005 through the present. 27 16. Any documents evidencing any contracts or agreements entered into by Robert 1 compensation of any kind including, but not limited to, personal property, real property, 2 commissions, salaries, rents or an assignment of receivables, rents or profits. 3 17. All documents referring or relating to the transfer of money into or out of any 4 accounts owned or controlled, in whole or in part, by Robert Barnack, Balance Point Retirement 5 Analytics, LLC or Double Diamond Holdings, LLC, including, but not limited to, wire transfers, 6 checks, cash, payments or withdrawals from January 1, 2012 through the present. 7 18. All documents referring or relating to any wire transfers into any account owned or 8 controlled, in whole or in part, by Robert Barnack, Balance Point Retirement Analytics, LLC or 9 Double Diamond Holdings, LLC with information sufficient to identify the source of the wire 10 transfers from January 1, 2012 through the present. 11 19. All documents referring or relating to any wire transfers out of any account owned 12 or controlled, in whole or in part, by Robert Barnack, Balance Point Retirement Analytics, LLC or 13 Double Diamond Holdings, LLC, with information sufficient to identify the recipient(s) of the wire 14 transfers. 15 20. All documents referring or relating to any person or organization that wired money 16 into any accounts owned or controlled, in whole or in part, by Robert Barnack, Balance Point 17 Retirement Analytics, LLC or Double Diamond Holdings, LLC. 18 21. All documents referring or relating to any person or organization that received wire 19 transfers from any accounts owned or controlled, in whole or in part, by Robert Barnack, Balance 20 Point Retirement Analytics, LLC or Double Diamond Holdings, LLC. 21 22. All documents referring or relating to any person or organization that received money 22 withdrawn from any accounts owned or controlled, in whole or in part, by Robert Barnack, Balance 23 Point Retirement Analytics, LLC or Double Diamond Holdings, LLC. 24 23. All documents referring or relating to any person or organization that deposited 25 money into any accounts owned or controlled, in whole or in part, by Robert Barnack, Balance Point 26 Retirement Analytics, LLC or Double Diamond Holdings, LLC. 27 24. All documents referring or relating to any of the following entities: BAYCO MA, 1 PRINCIPAL P, or PRINCIPAL P2. 2 25. All documents referring or relating to any communications between Robert Barnack 3 and Double Diamond Holdings, LLC. 4 26. All documents referring or relating to any communications between Robert Barnack 5 and Nancy Brown. 6 27. All documents referring or relating to any communications between Robert Barnack 7 and Joan Meisner. 8 28. All documents referring or relating to any communications between Balance Point 9 Retirement Analytics, LLC and Double Diamond Holdings, LLC. 10 29. All documents referring or relating to any communications between Balance Point 11 Retirement Analytics, LLC and Nancy Brown. 12 30. All documents referring or relating to any communications between Balance Point 13 Retirement Analytics, LLC and Joan Meisner. 14 31. All documents referring or relating to any communications between Balance Point 15 Retirement Analytics, LLC and Mary Clare Barnack. 16 32. All documents referring or relating to any communications between Robert Barnack 17 and any regulatory agency (i.e. United States Department of Justice, United States Securities and 18 Exchange Commission, California Department of Business Oversight, etc.) referring or relating to 19 Balance Point Retirement Analytics, LLC. 20 33. All documents referring or relating to any communications between Robert Barnack 21 and any regulatory agency (i.e. United States Department of Justice, United States Securities and 22 Exchange Commission, California Department of Business Oversight, etc.) referring or relating to 23 Robert Barnack. 24 34. All documents referring or relating to any communications between Robert Barnack 25 and Thomas Joseph Keating, Jr. 26 35. All documents referring or relating to any communications between Balance Point 27 Retirement Analytics, LLC and Thomas Joseph Keating, Jr. 1 Retirement Analytics, LLC accounts to Thomas Joseph Keating, Jr. 2 37. All documents referring or relating to money withdrawn from any Balance Point 3 Retirement Analytics, LLC accounts and paid to Thomas Joseph Keating, Jr. 4 38. All documents referring or relating to any communications between Robert Barnack 5 and Marilyn Catherine Barnack Keating. 6 39. All documents referring or relating to wire transfers from any Balance Point 7 Retirement Analytics, LLC accounts to Marilyn Catherine Barnack Keating. 8 40. All documents referring or relating to money withdrawn from any Balance Point 9 Retirement Analytics, LLC accounts and paid to Marilyn Catherine Barnack Keating. 10 41. All documents referring or relating to communications between Balance Point 11 Retirement Analytics, LLC and certain professional consultants including Acceleration Retirement, 12 eMONEY Advisor, Performance Technology, PT Services Group, 401k Coach Program and 13 TradeWarrior. 14 42. All documents referring or relating to communications with Miracomm Holdings 15 LTD and any person or organization contacted as a result of information received from Miracomm 16 Holdings LTD. 17 43. All documents referring or relating to the governance of Balance Point Retirement 18 Analytics, LLC, including, but not limited to the operating agreement and any records of meetings. 19 44. All documents referring or relating to the governance of Double Diamond Holdings, 20 LLC, including, but not limited to the operating agreement and any records of meetings. 21 IV. CONCLUSION 22 23 Based on the foregoing, IT IS HEREBY ORDERED that: 24 1. Mary Clare Barnack shall appear via video conference on June 4, 2021 at 9:30 25 a.m. via Zoom videoconference. To participate in the Zoom video conference, the Court and 26 the Judgement Debtor may use the following link: 27 https://us02web.zoom.us/j/82285414081?pwd=dGs1ZHc2MC8wWnJKeXFEMWxTU1BJQT 09 1 || Meeting ID: 822-8541-4081 / Passcode: 435686 (Enter this passcode when prompted). 2 || Alternatively, you may go directly to www.zoom.com, select “Join a Meeting” and enter the 3 || above Meeting ID and Passcode. 4 You will need access to a computer or a laptop containing a camera and microphone. 5 || You should contact counsel for Plaintiffs to the extent you have any questions regarding 6 || participating in the Judgement Debtor’s Examination via Zoom video conference in advance 7 || of the Judgement Debtor’s Examination. 8 2. At that time, Ms. Barnack shall furnish information to aid in the enforcement of the 9 || money judgment by answering questions about the real and personal property and assets of Robert 10 || Barnack and Balance Point Retirement Analytics, LLC. 11 3. Mary Clare Barnack shall produce documents responsive to this Order to Matt 12 || Powell at Wilke Fleury LLP, 400 Capitol Mall, Twenty-Second Floor, Sacramento, California 13 || 95835, on or before May 11, 2021; and 14 4. Plaintiffs/Judgment Creditors must serve this Order upon Mary Clare Barnack 15 |} personally not less than ten (10) days before the date set for the examination and must file a 16 || certificate of such service with the Court; 17 NOTICE TO MARY CLARE BARNACK. IF YOU FAIL TO APPEAR AS 18 ||SPECIFIED IN THIS ORDER, YOU MAY BE SUBJECT TO ARREST AND 19 || PUNISHMENT FOR CONTEMPT OF COURT AND THE COURT MAY MAKE AN 20 |} ORDER REQUIRING YOU TO PAY THE REASONABLE ATTORNEY’S FEES 21 || INCURRED BY THE JUDGMENT CREDITOR IN THIS PROCEEDING. 22 || Dated: April 5, 2021 23 24 ORAH BARNES 25 UNITED STATES MAGISTRATE JUDGE 26 27 DLB:6 28 || DB\orders\orders.civil\vandyke2531 .jde3.ord ke LLP TORNEYS AT LAW NL1IQMZAYD 1A