July 11, 2018

In the Matter of a Mail Dispute Between

VICTOR GONZALEZ and DAVID BRITT JOHNSON

P.S. Docket No. MD 18-114

APPEARANCE FOR VICTOR GONZALEZ:
Ruth Ryan-Cruz, Esq.
Ryan-Cruz Law, APC

APPEARANCE FOR DAVID BRITT JOHNSON:
Sal W. Hanna

INITIAL DECISION

The parties to this mail dispute, Victor Gonzalez and David Johnson, both seek to receive mail addressed to Premier Properties Security Services (Premier Properties), 135 Civic Center Drive, Suite 201, National City, California 91950. The matter was referred to the Judicial Officer Department on May 29, 2018, by the Postal Service’s Law Department. The Judicial Officer then notified the National City Postmaster to hold all mail addressed to Premier Properties at that address until otherwise advised by the Judicial Officer. The matter was then referred to me for an Initial Decision.
Through his attorney, Mr. Gonzalez submitted a sworn statement and other supporting documents.¹ Mr. Johnson submitted documents through a licensed private investigator, Sal Hanna, who Mr. Johnson authorized to represent him in this matter. Mr. Hanna filed his own affidavit and other supporting documents.² Mr. Hanna, however, did not file an affidavit from Mr. Johnson. As will be discussed below, Mr. Gonzalez objected to the inclusion of Mr. Hanna’s affidavit in the record. Further, Mr. Gonzalez asked for a decision in his favor because Mr. Johnson himself did not file an affidavit.

FINDINGS OF FACT

• In April 2013, the parties entered into a partnership agreement under the laws of California to operate a security services business to be known as Premier Properties Security Services. The agreement provided that Mr. Johnson would be responsible for Los Angeles County and that Mr. Gonzalez would be responsible for San Diego County. (Exh. A at 1).
• Since the inception of Premier Properties, Mr. Gonzalez has been solely responsible for conducting the partnership’s business in San Diego County. This responsibility has included handling all the mail addressed to the partnership’s San Diego County office. (Gonzalez Affidavit, ¶ 4).
• The San Diego County office of Premier Properties is located at 135 Civic Centre Dr., Suite 201, National City, California 91950 (Exh. 2 at 1; Exh. 3)
• The partnership agreement provided for:
• equal capital contributions from each partner (Exh. A at ¶ 6);
• a unanimous vote of the partners for decisions relating to the management, operation, and control of the partnership (Exh. A at ¶ 21);
• unanimous consent of the partners to fire any employee, except in the case of gross misconduct exposing the partnership to possible liability (Exh. A at ¶ 51); and
• dissolution of the partnership only with the unanimous consent of all partners (Exh. A at ¶ 38).
• For the purpose of partnership voting, each partner received one vote of equal weight (Exh. A at ¶ 46).
•  On January 18, 2018, Mr. Johnson wrote a letter to the partnership’s clients in San Diego announcing that Mr. Gonzalez was no longer employed by Premier Properties. The letter advised the clients that their contracts would be managed out of the partnership’s Los Angeles office until a new branch manager could be named for the San Diego office. In closing, Mr. Johnson reminded the clients that their contracts were with Premier Properties, not Mr. Gonzalez. Mr. Johnson then stated that, as the owner of Premier Properties, he was sorry for the inconvenience or misunderstanding caused by this transition. (Exh. 5).

DECISION

I begin by addressing Mr. Gonzalez’s two-fold request regarding Mr. Johnson’s initial filing. First, Mr. Gonzalez asks me to exclude Mr. Hanna’s affidavit because he is not a party to the dispute. Second, Mr. Gonzalez asks for a decision in his favor because Mr. Johnson himself did not submit an affidavit.
Taking the second part of the argument first, Mr. Gonzalez is correct that our rules provide that “each party shall file . . . a sworn statement” as part of its initial filing. 39 C.F.R. § 965.5. Mr. Gonzalez also correctly cites § 965.7 as the corresponding rule providing for a remedy if one of the parties does not, as part of its initial filing, comply with the requirement of § 965.5. Contrary to Mr. Gonzalez’s request, however, § 965.7 does not require that I find Mr. Johnson in default merely because he personally did not file an affidavit. Rather, the rule gives me the discretion to do so. Specifically, the rule provides that I may find a party in default for failing to comply with § 965.5. Cf. Kossow & Jewell, MD 18-60, 2018 WL 2045021 (I.D. April 26, 2018) (holding a party in default after it neither submitted an affidavit nor any other supporting documents).
Here, I choose not to find Mr. Johnson in default. Although he did not file an affidavit himself, he did otherwise comply with § 965.5 by having his authorized representative file both an affidavit and supporting documents. In this case, that effort is sufficient to justify my decision not to enter a default judgment against Mr. Johnson.
I look to § 965.9 to answer the question of the admissibility of Mr. Hanna’s affidavit. That rule provides that I must weigh the probative value of the affidavit against any possible unfair prejudice to the opposing party. Contrary to Mr. Gonzalez’s suggestion, the rule does not provide for the mandatory exclusion of an affidavit merely because it is offered by a non-party.
Mr. Hanna’s affidavit is based on his personal knowledge and includes several factual statements related to the ongoing dispute between the parties. Those facts are valuable to me in assessing the history of the dispute and the underlying relationship of the parties. As to the second part of the analysis described in § 965.9, I find that there is little prejudice to Mr. Gonzalez by admitting the affidavit into the record. The affidavit cites to numerous California laws, which speak for themselves as to their relevance to this dispute. Further, most, if not all, of the factual allegations in the affidavit are supported by other documents and are not genuinely disputed. Thus, after weighing the probative value of the affidavit against possible unfair prejudice, I will admit the affidavit into the record.
I hasten to add that even though the affidavit is admitted into the record, to the extent it includes factual allegations not supported by other documents, I have carefully weighed the value of those allegations in light of that lack of corroborating evidence. Finally, to the extent the affidavit includes legal arguments supporting Mr. Johnson’s position, I have taken those parts of the affidavit as argument—not factual allegations. 
As to the merits of the case, Mr. Gonzalez argues that (1) Mr. Johnson improperly terminated his business interest in the partnership, (2) the mail addressed to the San Diego office is almost certainly intended for him because, under the partnership agreement, he was responsible for business in San Diego County, and (3) Mr. Johnson changed certain business documents without Mr. Gonzalez’s permission so that those documents would reflect Mr. Johnson’s control of the partnership to the exclusion of Mr. Gonzalez.
Mr. Johnson—through Mr. Hanna’s affidavit—disputes the authenticity of the partnership agreement. In the absence of a partnership agreement, Mr. Johnson believes he could legally terminate his business relationship with Mr. Gonzalez in January 2018. Mr. Johnson also relies on several documents issued by the state of California in 2018 listing him as the owner or manager of Premier Properties. Finally, Mr. Johnson points out that (1) he has filed embezzlement charges against Mr. Gonzalez with the National City police, and (2) the California Bureau of Security and Investigative Services has an open complaint on file against Mr. Gonzalez.
I remind the parties that the Postal Service’s regulations regarding this dispute do not authorize me to resolve any ongoing disputes—legal or otherwise—between the parties. Rather, I am merely recommending how the mail addressed to the San Diego County office of Premier Properties should be delivered by the local postmaster. Henson and Young, MD 16-19, 2016 WL 10572252 (P.S.D. April 18, 2016). To make that decision, I rely on two fundamental principles: (1) when a mail dispute concerns how mail to an organization should be delivered, the mail must be delivered under the order of the organization’s president or equivalent official.  Domestic Mail Manual § 508.1.5.1; see e.g., Seaman and Breunig, MD 16-215, 2016 WL 10572254 (P.S.D. October 28, 2016), and (2) the sender’s intent, see e.g., Webb and Webb, MD 17-53, 2017 WL 5516587 (P.S.D. May 10, 2017). Each of these principles is discussed below.
As to the organization itself, Mr. Gonzalez had filed an affidavit stating that he and Mr. Johnson formed a partnership in 2014. That allegation is supported by a partnership agreement signed by both parties (Finding 1). Through Mr. Hanna’s affidavit, Mr. Johnson suggests that the partnership agreement is not an “authentic document.” Mr. Hanna asserts that this argument is supported by the fact that Mr. Johnson holds the state license necessary to operate the business. Thus, according, to Mr. Hanna, Mr. Johnson could terminate Mr. Gonzalez’s employment in January 2018 because he was Mr. Johnson’s employee, not his business partner.
After weighing this evidence, I find that Mr. Gonzalez has established by a preponderance of the evidence that he and Mr. Johnson formed a partnership in 2014. Mr. Gonzalez’s first-hand testimony, and the partnership agreement itself, are persuasive. Mr. Johnson’s testimony, on the other hand, came into the record as hearsay through Mr. Hanna’s affidavit, rather than directly from Mr. Johnson himself. And the mere fact that Mr. Johnson might hold the license necessary to operate the business does not necessarily mean that he and Mr. Gonzalez were not partners. Mr. Johnson has failed to explain why those two facts are mutually exclusive.
Determining who is the president or equivalent official in a two-person partnership can be difficult—especially where, as here, the partners have made equal capital contributions, have equal voting power, and neither is named as the managing partner. The partnership agreement signed by Mr. Johnson and Mr. Gonzalez essentially creates a perfect 50–50 split between them, except for their respective geographic responsibilities. Thus, on these facts, I am not able to determine which party is the equivalent of the president, and I must try to determine the intent of anyone who has sent, and will send, mail to Premier Properties’s San Diego office. Jefferson and Waters, MD 13-339, 2013 WL 12303276 (I.D. December 11, 2013).
As Mr. Gonzalez stated in his affidavit, and as the partnership agreement itself explains, Mr. Gonzalez has had sole responsibility for the partnership’s business in San Diego County since 2013. I can thus only conclude that anyone sending mail to the San Diego office intends for Mr. Gonzalez to receive that mail. Given that presumed intent, I find that Mr. Gonzalez should have the right to direct mail addressed to that office.
Mr. Johnson argues that Mr. Gonzalez should not be entitled to direct delivery of the mail because he no longer works for Premier Properties. Mr. Johnson’s arguments to this effect are not persuasive, however. First, Mr. Johnson points to the letter he wrote in January 2018 claiming that Mr. Gonzalez no longer worked for Premier Properties. The terms of the partnership agreement, however, do not support this argument. The partnership itself could only be dissolved with the consent of both partners (Finding 4). Thus while Mr. Johnson may have wanted to oust Mr. Gonzalez from the partnership (or treat him as an employee and fire him), the partnership agreement did not allow him to do that unilaterally.
Mr. Johnson also points to numerous documents from the state of California that list him as the owner or manager of Premier Properties (Exhs. 1, 3–4, 6–7). In response, Mr. Gonzalez notes that Mr. Johnson changed the information on file with the state in 2018 (Gonzalez Affidavit at ¶ 9). Without making any findings as to the validity of the documents from the state of California, or the accuracy of Mr. Gonzalez’s allegation, I merely note that the documents are dated in 2018, after the current disputes arose between the parties. I also note that Mr. Gonzalez continues to assert his rights under the partnership agreement, and that there is no evidence that the partnership has been dissolved by the unanimous consent of the partners. Given these facts, I cannot give any weight to the documents issued by California as they relate to this dispute over delivery of the mail. Likewise, in the absence of a criminal conviction or further supporting evidence, I cannot give any weight to either the police report filed by Mr. Johnson with the National City police department, or the allegation of an ongoing investigation by the Bureau of Security and Investigative Services. Without further evidence describing how these allegations relate to the delivery of the mail, they do not have any bearing on this decision.
Finally, as noted above, Mr. Hanna’s affidavit refers to several California laws relating to the licensing requirements for private patrol operators and their branch offices. While these provisions may affect both Premier Properties’s right to conduct business in California, and any business disputes between the parties, they do not—at least for the purpose of deciding this mail dispute—override the express terms of the partnership agreement and the intent of anyone sending mail to the San Diego office.

RECOMMENDATION

I recommend that the Judicial Officer issue an order to the National City Postmaster directing that all mail being held, or hereafter received, addressed to Premier Properties Security Services, 135 Civic Center Drive, Suite 201, National City, California 91950 be delivered as directed by Victor Gonzalez.
This decision only addresses how mail addressed to Premier Properties Security Services, 135 Civic Center Drive, Suite 201, National City, California 91950 should be delivered by the National City Postmaster. This decision does not resolve any other legal disputes between the parties. Further, it does not decide who actually owns the contents of the disputed mail. Hoeppner and Vollstedt, MD 08-251, 2008 WL 11383933 (I.D. October 16, 2008). Finally, if in the future, a court order directs that a different party
is entitled to direct delivery of the mail, postal regulations provide that the mail will be delivered according to that order. Postal Operations Manual § 616.3.

Alan R. Caramella
Administrative Judge