Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate et al

Filing 81

MOTION for SUMMARY JUDGMENT by Eric Grant. Motion Hearing set for 10/31/08 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell, Jr. (Attachments: # 1 Appendix of Non-Standard Authorities, # 2 Statement of Undisputed Facts, # 3 Declaration of Eric Grant, # 4 Declaration of James J. Banks, # 5 Certificate of Service)(Grant, Eric) Modified on 10/17/2008 (Benson, A).

1 Eric Grant (Bar No. 151064) Attorney at Law 2 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 3 Telephone: [phone] Facsimile: [phone] 4 E-Mail: [e-mail] 5 James J. Banks (Bar No. 119525) Banks & Watson 6 Hall of Justice Building 813 6th Street, Suite 400 7 Sacramento, California 95814 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] 9 Counsel for Plaintiff and 10 Counter-Defendant ERIC GRANT

ERIC GRANT, ATTORNEY AT LAW

11 12 13 14 ERIC GRANT, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA No. 2:08-cv-00672-FCD-KJM
STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF PLAINTIFF AND COUNTER-DEFENDANT ERIC GRANT'S MOTION FOR SUMMARY JUDGMENT [L.R. 56-260(a)]

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

) ) 15 Plaintiff, ) ) 16 v. ) ) 17 KAMEHAMEHA SCHOOLS/BERNICE ) PAUAHI BISHOP ESTATE; J. DOUGLAS ) 18 ING, NAINOA THOMPSON, DIANE J. ) PLOTTS, ROBERT K.U. KIHUNE, and ) 19 CORBETT A.K KALAMA, in their ) capacities as Trustees of the Kamehameha ) 20 Schools/Bernice Pauahi Bishop Estate; ) JOHN DOE; and JANE DOE, ) 21 ) Defendants. ) 22 ) ) 23 JOHN DOE and JANE DOE, ) ) 24 Counter-Claimants, ) ) 25 v. ) ) 26 KAMEHAMEHA SCHOOLS/BERNICE ) PAUAHI BISHOP ESTATE, et al., ) 27 ) Counter-Defendants. ) 28 )

Hearing Date: Time: Courtroom: Judge:

Oct. 31, 2008 10:00 a.m. 2 Hon. Frank C. Damrell, Jr.

Statement of Undisputed Facts in Support of Plaintiff Eric Grant's Motion for Summary Judgment

1 2

EXPLANATION OF CITATIONS

"Banks Decl." is the Declaration of James J. Banks in Support of Plaintiff and Counter-

3 Defendant Eric Grant's Motion for Summary Judgment (filed concurrently herewith). 4 "Doe-KSBE Settlement Agreement" is the Settlement Agreement and General Release by

5 and between the Does and KSBE. It has been submitted to this Court as Exhibit 1 to the Declara6 tion of Jane Doe (doc. 9-2, filed Apr. 3, 2008). 7 "Grant Decl." is the Declaration of Plaintiff and Counter-Defendant Eric Grant in Support

8 of His Motion for Summary Judgment (filed concurrently herewith). 9 "KSBE Dismiss Mem." is KSBE's memorandum of points and authorities in support of its

10 motion to dismiss (doc. 51, filed July 9, 2008).

ERIC GRANT, ATTORNEY AT LAW

11 12 13 full: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1.

STATEMENT OF UNDISPUTED FACTS

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

The confidentiality provision of the Doe-KSBE Settlement Agreement provides in

As part of the consideration for this Settlement Agreement and General Release, no signatory or Bishop Releasee or Doe Releasee (including counsel) will disclose, provide, furnish or deliver, or permit to be disclosed, provided, furnished or delivered, (a) all or any part of this Settlement Agreement and General Release or any copy hereof or any information relating to the amount or any term or provision hereof, or any communication, negotiation or document relating to any of the foregoing, or (b) the true names of, addresses of, or any other information identifying John Doe or Jane Doe or their family (whether individually or collectively) to any person or entity, including, but not limited to, any publisher, reporter, or other agent or representative of any newspaper, magazine, journal, periodical, radio, television, or other media, except pursuant to a court order compelling it to do so, when necessary to obtain tax, accounting, legal or other professional advice, when necessary to comply with any applicable state or federal disclosure or other regulatory requirements, or when necessary to effectuate the purposes and benefits of this Settlement Agreement and General Release. These confidentiality requirements are a material term of this Settlement Agreement and General Release. In addition to any other rights or remedies, this provision shall be enforceable by injunctive or other equitable relief. Provided, however, that no signatory shall be liable in money damages for a breach of this provision unless such signatory or their counsel shall have personally made such disclosure; and that such damages shall not, in the event of a breach by counsel, exceed $2,000,000.00 (Two Million Dollars even).

28 Doe-KSBE Settlement Agreement ¶ 7, at 4-5.
1 Statement of Undisputed Facts in Support of Plaintiff Eric Grant's Motion for Summary Judgment

1

2.

Grant was not a party to the Doe-KSBE Settlement Agreement. See id. at 1 (recit-

2 ing that the agreement "is entered into by and between" various persons, not including Grant); id. 3 at 6-9 (pages for parties' signatures, not including Grant's); id. at 11 (signatures of both Grant and 4 Kathleen Sullivan, identified as "Counsel" for their respective clients, approving agreement "as to 5 form"). KSBE concedes as much. See KSBE Dismiss Mem. 3:16-17 ("By its express terms, the 6 Settlement Agreement was `by and between' the Does and the then-current and former trustees of 7 [KSBE]."); id. at 3:11-12 (arguing that as a mere negotiator on behalf of the Does, Grant himself 8 "had no authority to reach a binding agreement" with KSBE; rather, "[o]nly the clients . . . had that 9 power"). 10 3. John Goemans had accurate knowledge of the amount of the Doe-KSBE settlement

ERIC GRANT, ATTORNEY AT LAW

11 (i.e., the size of the promised monetary payment from KSBE to the Does) before the Does executed 12 any settlement document. See KSBE Dismiss Mem. 3:13-14 ("After discussing the terms [of the 13 proposed settlement] in a conference call with Grant and Goemans, the Does signed the agreement 14 in Hawaii."); id. at 4:6-7 (conceding that "the settlement amount . . . had already been disclosed to 15 Goemans during the pre-signing conference call"); Grant Decl. ¶ 3, at 1 (explaining that Grant dis16 cussed the settlement amount with Goemans on multiple occasions before the Does decided to ac17 cept KSBE's offer and before they signed any document). 18 4. At the time Grant had the discussions with Goemans described in the previous par-

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

19 agraph, Grant reasonably believed that Goemans was acting as the Does' counsel. See Grant Decl. 20 ¶ 4, at 1 (setting forth factual basis for Grant's belief). 21 5. In June of 2007, the Does' then-counsel Robert L. Esensten wrote Grant's counsel

22 James J. Banks, complained that Jane Doe "has made multiple requests for this [i.e., for the Doe23 KSBE] Settlement Agreement to date," and demanded that Mr. Banks "provide [him] a copy of the 24 Settlement Agreement executed by [Jane Doe]." Banks Decl. ¶ 3, at 1; see also id., Exh. 1; Second 25 Supplemental Declaration of Ken T. Kuniyuki ¶ 5, at 2 (doc. 38, filed Apr. 16, 2008) (confirming 26 that Esensten made this demand "in his capacity as counsel for the Does"). The following week, 27 Mr. Banks complied with Mr. Esensten's demand. See Banks Decl. ¶ 4, at 1; id., Exh. 2. 28 ///
2 Statement of Undisputed Facts in Support of Plaintiff Eric Grant's Motion for Summary Judgment

1

6.

Except for the agreement's confidentiality provision (and only the confidentiality

2 provision), neither Grant nor Grant's counsel provided a copy of the Doe-KSBE Settlement Agree3 ment to Goemans. See Grant Decl. ¶ 5, at 2; Banks Decl. ¶ 5, at 1. 4 7. Grant and the Does memorialized the settlement of their fee dispute in a document

5 titled "Settlement and Mutual Release Agreement" and executed in September of 2007. See Grant 6 Decl. ¶ 6, at 2. Paragraph 4(a) of that agreement obligates Grant to defend and indemnify the Does 7 in certain litigation brought against them by Goemans. See Declaration of Paul Alston, Exh. 23, 8 at 4 (doc. 72, filed under seal July 14, 2008). 9 10 8. Paragraph 5 of that agreement provides in full: 5. Grant Defense Obligation/$100,000 Cap.

ERIC GRANT, ATTORNEY AT LAW

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8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

The Parties acknowledge that the agreement memorializing the settlement of the Underlying Litigation [i.e., the Doe-KSBE Settlement Agreement] contains a confidentiality clause. If [KSBE] (or its assignee) brings suit against the Does seeking damages or to enforce the confidentiality clause in the agreement memorializing the settlement of the Underlying Litigation, Grant will defend the Does in any such litigation, provided that, those claims are based upon a breach (or threatened breach) of the confidentiality clause by Grant. Grant shall have no obligation to defend the Does for any other alleged breach of the confidentiality clause (including but not limited to an alleged breach by the Does personally). Grant's obligation to defend is subject to the same $100,000 combined limit set forth in paragraph 4. The indemnity obligation set forth in this paragraph shall expire at the same time as the defense obligation in Paragraph 4.

18 Id. at 5. 19 9. On January 18, 2008, Grant through counsel filed in the Sacramento Superior Court

20 a noticed motion seeking a protective order against Goemans. Among other provisions, the relief 21 sought by the motion would have ordered Goemans to "continue to perform and adhere to the terms 22 and conditions set forth in paragraph 7 of the settlement agreement and release entered into in the 23 Underlying Litigation," i.e., the confidentiality provision of the Settlement Agreement. See Grant 24 Decl. ¶ 7, at 2; id., Exhs. 2-3. 25 10. On February 5, 2008, Grant through counsel obtained from the superior court on an

26 ex parte basis a temporary protective order against Goemans. Among other things, that order ex27 pressly prohibited Goemans from "[d]isclosing, except as set forth in the written Settlement Agree28 ment, any of the terms of the settlement reached in the Underlying Litigation," i.e., the Doe-KSBE
3 Statement of Undisputed Facts in Support of Plaintiff Eric Grant's Motion for Summary Judgment

1 litigation. See Grant Decl. ¶ 8, at 2; id., Exh. 4; accord KSBE Dismiss Mem. 5:22-6:1 (acknow2 ledging that on that date, Grant obtained "a protective order barring Goemans from disclosing any 3 of the confidential terms of the Settlement Agreement"). 4 11. Notwithstanding this protective order, Goemans disclosed the putative amount and

5 other terms of the Doe-KSBE settlement to the Honolulu media on February 7, 2008. See KSBE 6 Dismiss Mem. 6:3-6 ("[O]n February 7, 2008, Goemans spoke by telephone with representatives 7 of newspapers and television stations in Hawaii. In those interviews, Goemans disclosed what he 8 claimed to be the amount of the settlement between the Does and [KSBE]." (footnote omitted)); 9 Does' Ex Parte Motion for Temporary Restraining Order 4:4-5 (doc. 15, filed Apr. 3, 2008) ("De10 spite the Temporary Protective Order being issued, Goemans disclosed the monetary terms of the

ERIC GRANT, ATTORNEY AT LAW

11 settlement in an interview with the Honolulu Advertiser."). 12 12. In a telephone conversation on February 8, 2008, Goemans admitted to the Does'

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

13 counsel Ken Kuniyuki that he received actual personal notice of the temporary protective order be14 fore he had made his disclosures the previous day. See Grant Decl. ¶ 9, at 2; id., Exh. 5. Goemans 15 reiterated his admission in a declaration submitted to the Sacramento Superior Court on March 17, 16 2008. See Grant Decl. ¶ 10, at 3; id., Exh. 6. 17 13. At no time did Grant ever disclose or provide or furnish or deliver to the Honolulu

18 media any non-public information relating to the Doe-KSBE settlement. See Grant Decl. ¶ 12, at 3 19 (declaring that "I never disclosed or provided or furnished or delivered to the Honolulu media any 20 information relating to the Doe-KSBE settlement that had not already been disclosed to the public 21 by KSBE"). 22 14. In a meeting on March 24, 2008, KSBE's then-counsel David Schulmeister made

23 a statement to the Does' counsel Ken Kuniyuki to the effect that although KSBE had "initially . . . 24 believed that Grant had no potential liability resulting from Goemans' disclosure to the press, and 25 intended only to pursue it[s] claims against the Does," KSBE had later determined (based on new 26 information) that it "was going to reserve its claims against both Grant and the Does." Declaration 27 of Paul Alston, Exh. 5, at 4 (doc. 52-3, filed July 9, 2008) (Item 7.b of the Does' May 16, 2008 re28 sponse to KSBE's May 6, 2008 informal discovery request); KSBE Dismiss Mem. 6:18-19 & n.39
4 Statement of Undisputed Facts in Support of Plaintiff Eric Grant's Motion for Summary Judgment

1 (citing foregoing for the proposition that "Schulmeister only told Kuniyuki that [KSBE] `reserved 2 its claims' as to Grant"). 3 15. In an exchange of e-mail messages on March 25 and 26, 2008, Grant asked KSBE's

4 counsel Kathleen Sullivan to assure Grant that KSBE had not threatened to sue him for breach of 5 the Settlement Agreement. Although Ms. Sullivan acknowledged receiving Grant's message, she 6 never provided the requested assurance. See Grant Decl. ¶ 12, at 3; id., Exh. 7. 7 16. On April 8, 2008, Grant offered to dismiss KSBE from this action in exchange for

8 only KSBE's binding acknowledgment that "it has no claim for breach of the settlement agreement 9 against [Grant]." That offer would not have required KSBE to pay any damages, attorney's fees, 10 or even costs to Grant. KSBE did not accept Grant's offer. See Banks Decl. ¶ 6, at 1; id., Exh. 3.

ERIC GRANT, ATTORNEY AT LAW

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17.

On April 9, 2008, KSBE's counsel Paul Alston sent an e-mail message to Grant's

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

12 counsel, in which Alston stated: Although KSBE "has no present intention to sue Mr. Grant," it is 13 "not correct to say that [KSBE] has decided it has no claims against Mr. Grant." Alston also stated 14 that "given the conflicting positions taken by Mr. Grant, Mr. Goemans and Mrs. Doe, [KSBE] is 15 still in the process of evaluating its rights and claims." See Banks Decl. ¶ 7, at 2; id., Exh. 4. 16 18. On April 9, 2008, Alston sent an e-mail message to the Does' counsel Jerry Stein,

17 in which Alston stated: KSBE "presently has no intention to sue Mr. Grant. Nor, for that matter, 18 does [KSBE] presently intend to sue your clients. [KSBE] is reserving all of its rights and claims." 19 Alston also stated: Grant's May 8th offer letter "claims (wrongly) that [KSBE] `believes it has no 20 claim' against Mr. Grant. [KSBE] presently has no such belief; it is, as I said above, still evaluat21 ing its rights." See Banks Decl. ¶ 8, at 2 ; id., Exh. 5. 22 19. On August 6, 2008, KSBE sued the Does in Hawaii Circuit Court. See Declaration

23 of Paul Alston, Exh. 25 (doc. 80-3, filed Aug. 29, 2008) (copy of complaint). In that suit, KSBE 24 "alleges the same breach of the Settlement Agreement's confidentiality provisions that is the basis 25 of the Complaint in this declaratory relief action." KSBE Supplemental Memorandum in Support 26 of Motion to Dismiss 2:3-4 (doc. 80, filed Aug. 29, 2008). 27 /// 28 ///
5 Statement of Undisputed Facts in Support of Plaintiff Eric Grant's Motion for Summary Judgment

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Dated: October 3, 2008. Respectfully submitted, /s/ Eric Grant ERIC GRANT Counsel for Plaintiff and Counter-Defendant ERIC GRANT

ERIC GRANT, ATTORNEY AT LAW

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6 Statement of Undisputed Facts in Support of Plaintiff Eric Grant's Motion for Summary Judgment

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]