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).

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1 Eric Grant (Bar No. 151064) Attorney at Law 2 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 3 Telephone: (916) 388-0833 Facsimile: (916) 691-3261 4 E-Mail: grant@eric-grant.com 5 James J. Banks (Bar No. 119525) Banks & Watson 6 Hall of Justice Building 813 6th Street, Suite 400 7 Sacramento, California 95814 Telephone: (916) 325-1000 8 Facsimile: (916) 325-1004 E-Mail: jbanks@bw-firm.com 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 DECLARATION OF PLAINTIFF AND COUNTER-DEFENDANT ERIC GRANT IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 ) ) 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. Declaration of Plaintiff Eric Grant in Support of His Motion for Summary Judgment 1 2 I, Eric Grant, declare as follows: 1. I am the Plaintiff and co-counsel for Plaintiff and Counter-Defendant Eric Grant in 3 the above-entitled case. I make this declaration in support of my motion for summary judgment 4 filed concurrently herewith. I make the statements of fact in this declaration of my own personal 5 knowledge. If called as a witness in this proceeding, I could and would competently testify to the 6 facts set forth herein. 7 2. In the following paragraphs, I refer to Defendants Kamehameha Schools/Bernice 8 Pauahi Bishop Estate, J. Douglas Ing, Nainoa Thompson, Diane J. Plotts, Robert K.U. Kihune, and 9 Corbett A.K. Kalama collectively as "KSBE." I refer to Defendants John Doe and Jane Doe, two 10 individuals whose true identities are known to me, using their "Doe" pseudonyms. I refer to non- ERIC GRANT, ATTORNEY AT LAW 11 party John Goemans as "Goemans." 12 3. Through its counsel Kathleen Sullivan, KSBE made a written settlement offer to the 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 13 Does late in the evening of Wednesday, May 9, 2007. That offer contained the exact dollar figure 14 to which the settling parties ultimately agreed. On several occasions over the next day or so, I dis15 cussed that figure with Goemans and with the Does. Those discussions included a four-way tele16 phone conference among John Doe, Jane Doe, Goemans, and me during the evening of Thursday, 17 May 10, 2007, during which the Does decided to accept KSBE's offer. It was after this telephone 18 conference that the Does affixed their signatures to the appropriate signature page of what was at 19 that time the current draft of the Doe-KSBE Settlement Agreement. 20 4. At the time I had the above-described discussions with Goemans, I reasonably be- 21 lieved that he was acting as the Does' counsel. I based this belief upon the following facts, among 22 others: (1) Goemans participated in the above-described telephone conference with the Does as a 23 person who was purporting to provide legal advice to the Does; (2) Goemans' name appeared on 24 all of the pleadings filed on the Does' behalf in their litigation against KSBE, from their complaint 25 to their most recent pleading, namely, a reply brief filed in the Supreme Court just six weeks prior 26 to the discussions; (3) Goemans consistently spoke about himself as the Does' counsel, including 27 by repeatedly referring to his expectation of obtaining "attorney's fees" for his efforts on the Does' 28 behalf; and (4) the Does never instructed me, or took any action to indicate to me, that Goemans 1 Declaration of Plaintiff Eric Grant in Support of His Motion for Summary Judgment 1 was not their counsel. A true and correct copy of the file-stamped cover of the aforementioned re2 ply brief is attached hereto as Exhibit 1. 3 5. On May 20, 2007, I sent Goemans an e-mail message to which was attached the text 4 of the confidentiality provision of the Doe-KSBE Settlement Agreement--and only that provision. 5 Except for that provision, neither I nor any of my attorneys or agents provided a copy of the Set6 tlement Agreement to Goemans. 7 6. Settlement of my fee dispute with the Does was memorialized in a document titled 8 "Settlement and Mutual Release Agreement" and executed in September of 2007. Exhibit 23 to 9 the Declaration of Paul Alston (doc. 72, filed under seal July 14, 2008) is a true and correct copy 10 of a redacted version of that agreement. ERIC GRANT, ATTORNEY AT LAW 11 7. On January 18, 2008, my counsel filed in the Sacramento Superior Court a noticed 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 12 motion and accompanying papers seeking a protective order against Goemans. Among other pro13 visions, the relief sought by the motion would have ordered Goemans to "continue to perform and 14 adhere to the terms and conditions set forth in paragraph 7 of the settlement agreement and release 15 entered into in the Underlying Litigation," i.e., the confidentiality provision of the Doe-KSBE Set16 tlement Agreement. A true and correct copy of the "Notice of Motion and Motion for Protective 17 Order" filed on January 18, 2008 is attached hereto as Exhibit 2; and a true and correct copy of the 18 "[Proposed] Protective Order" filed that same day, with the quoted passage highlighted on Page 3 19 thereof, is attached hereto as Exhibit 3. 20 8. On February 5, 2008, my counsel obtained from the superior court on an ex parte 21 basis a temporary protective order against Goemans. Among other provisions, that order expressly 22 prohibited Goemans from "[d]isclosing, except as set forth in the written Settlement Agreement, 23 any of the terms of the settlement reached in the Underlying Litigation," i.e., the Doe-KSBE liti24 gation. A true and correct copy of the "Temporary Protective Order" issued on February 5, 2008, 25 with the quoted passage highlighted on Page 2 thereof, is attached hereto as Exhibit 4. 26 9. As recounted by the Does' counsel Ken Kuniyuki in a deposition taken on March 7, 27 2008, Goemans admitted to Mr. Kuniyuki (in a telephone conversation on February 8, 2008) that, 28 with respect to the temporary protective order, "his attorney had read it . . . to him over the phone." 2 Declaration of Plaintiff Eric Grant in Support of His Motion for Summary Judgment 1 A true and correct copy of excerpts of the transcript of Mr. Kuniyuki's deposition, with the quoted 2 passage highlighted on Page 42 thereof, is attached hereto as Exhibit 5. 3 10. In a declaration executed on March 3, 2008 and submitted to the Sacramento Super- 4 ior Court on March 17, 2008, Goemans declared: "My attorney advises me that he did convey to 5 me telephonically on February 5, 2008 about the Court's Order, which I do not dispute but do not 6 remember." A true and correct copy of Goemans' declaration, with the quoted passage highlighted 7 on Page 3 thereof, is attached hereto as Exhibit 6. 8 11. I never disclosed or provided or furnished or delivered to the Honolulu media any 9 information relating to the Doe-KSBE settlement that had not already been disclosed to the public 10 by KSBE. ERIC GRANT, ATTORNEY AT LAW 11 12. Late in the evening of March 25, 2008, I sent an e-mail message to KSBE's coun- 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 12 sel Kathleen Sullivan, in which message I stated: "I have been informed that Kamehameha Schools 13 has threatened to sue ME (in addition to the Does) [for breach of the Doe-KSBE Settlement Agree14 ment]. . . . I hope that you will tell me that I have been misinformed." Ms. Sullivan acknowledged 15 receiving my message the following morning, but she never otherwise responded to that message. 16 A true and correct copy of my e-mail exchange with Ms. Sullivan is attached hereto as Exhibit 7. 17 I declare under penalty of perjury under the laws of the United States of America that the 18 foregoing is true and correct. Executed on October 3, 2008. 19 20 21 22 23 24 25 26 27 28 3 Declaration of Plaintiff Eric Grant in Support of His Motion for Summary Judgment /s/ Eric Grant ERIC GRANT Exhibit 1 Exhibit 2 Exhibit 3 1 g. The t e n n " P r o d u c i n g Person" as used herein m e a n s any Person, whether a p a r t y or 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 non-party, who produces a n y infonnation, whether oral or documentary or other tangible f o n n , in response to any discovery m e t h o d p e n n i t t e d b y the California R u l e s o f Civil Procedure. h. The t e n n " Q u a l i f i e d Person" as used herein means: (i) any individual w h o is a p a r t y to This Action; (ii) outside counsel engaged to represent one o f the parties to This Action, including n e c e s s a r y l e g a l assistants a n d s e c r e t a r i a l , s t e n o g r a p h i c a n d c l e r i c a l e m p l o y e e s a c t u a l l y a s s i s t i n g s u c h counsel; (iii) outside independent experts and consultants o f the parties who are assisting counsel identified i n (iv) o f This A c t i o n and any necessary assistants and secretarial, stenographic or clerical employees under their direct supervision and employed b y them; (v) the Court and Court personnel, including stenographic reporters; (vi) court reporters and videographers at deposition; and (vii) a n y other P e r s o n mutually agreed to b y t h e parties. 1. The t e n n " R e c e i v i n g Party" as used herein m e a n s any Person to w h o m Confidential I n f o n n a t i o n is disclosed i n T h i s Action in response to any discovery method pennitted b y the California R u l e s o f Civil Procedure. J. The t e n n " t e n n i n a t i o n o f This Action" as used herein means sixty (60) days after the entry o f the final j u d g m e n t o r stipulation o f dismissal in the event o f settlement, or i n the case o f an appeal, the date when the appeals are finally resolved. Order 1. The parties to This Action will continue to p e r f o n n and adhere to the terms and conditions set forth in p a r a g r a p h 7 o f the settlement agreement and release entered into in the Underlying Litigation. 2. Any i n f o n n a t i o n , Document, or thing p r o d u c e d i n connection with This Action that is reasonably believed b y t h e Producing Party to contain Confidential Infonnation will be m a r k e d as "Confidential Infonnation S u b j e c t to Protective Order." Such designation b y the Producing Party shall b e m a d e pursuant to a b o n a fide detennination that such materials or infonnation contain o r reveal confidential matters. F u r t h e r designation shall be made, p r i o r to filing any such documents w i t h the Court, b y proceeding and s t a m p i n g such pleadings or other papers as outlined in paragraph 9 herein. As used herein, Confidential I n f o n n a t i o n includes: (a) all papers, tapes, documents (including answers to {00036660.DOC; I} 3 [PROPOSED] P R O T E C T I V E O R D E R Exhibit 4 1 2 3 4 5 6 7 8 9 10 11 Kamehameha Schools/Bernice Pauahi Bishop Estate, et al. litigation, C a s e No. 03-00316, in the U n i t e d States D i s t r i c t C o u r t for the District o f H a w a i i (the "Underlying Litigation"); and 2. Disclosing, except as set forth i n the written S e t t l e m e n t Agreement, any o f the terms o f the s e t t l e m e n t r e a c h e d i n the U n d e r l y i n g Litigation. IT IS F U R T H E R O R D E R E D that this temporary protective [restraining] order shall remain in effect until F e b r u a r y 19, 2008 and shall dissolve b y its terms following entry b y the Court o f an o r d e r o n the d u l y n o t i c e d motion. F __ DATED: _ _E_B_-_5_200_8_, ~.Q~ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] T E M P O R A R Y P R O T E C T I V E O R D E R Exhibit 5 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO ERIC GRANT, ) Case No. 07AS04172 ) Plaintiff, ) ) vs. ) ) JOHN GOEMANS, and ROES 1 ) through 10, inclusive, ) ) Defendants. ) _________________________) VIDEOTAPED DEPOSITION OF KEN T. KUNIYUKI Taken on behalf of the Plaintiff pursuant to Notice, on Friday, March 7, 2008, commencing at 2:37 p.m., at the Law Office of Kuniyuki & Chang, Pauahi Tower, 1003 Bishop Street, Suite 2660, Honolulu, Hawaii 96813. 2 1 2 APPEARANCES: For Plaintiff: 3 4 5 6 7 8 9 10 11 12 13 Eric Grant, Plaintiff 14 15 16 17 18 19 20 -o0o21 22 23 24 25 REPORTED BY: Laura Savo, CSR No. 347 Notary Public, State of Hawaii (via telephone) Also Present: Steven Kanemori, Certified Legal Video Specialist JAMES J. BANKS, ESQ. Banks & Watson Hall of Justice Building 813 6th Street, Suite 400 Sacramento, California 95814-2403 (916) 325-1000 For Defendant: JOHN HAYES, ESQ. (via telephone) 11150 West Olympic Boulevard, Suite 1050 Los Angeles, California 90064 (310) 478-4711 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you learned about the February 8th, 2008, news article have any discussions with Mr. Goemans about that article? A Yes. When I arrived at the office on February 8th, I had a voicemail from Mr. Goemans which I have a copy of here. Q And is the -- is that the voicemail message that you have a recording of? A Q please. A Okay. (The following recording was played: "This is John Goemans calling Ken. It's about 9:00 o'clock your time, about 2:00 o'clock mine. (808) 927-9111. THE WITNESS: BY MR. BANKS: Q Okay. And do you recognize the voice Thanks.") My number is Yes, it is. Okay. Could you play that recording, That's it. that you just heard? A Well, that's the same person I've been talking to since the previous July. Q Okay. And that's a -- that is a voicemail message that you received when? 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 call? A Q A Q When I -- when I came into my office. And on February -- February 8th, 2008? That's correct. Okay. And did you return Mr. Goemans' A Q A Q A Immediately. Okay. Yes. And what did you talk about? I told Mr. Goemans I was very And did he and you speak? disappointed because when I woke up on February 8th, I saw the article, the lead article in the Honolulu Advertiser. fold in bold. It was the article above the And I asked him why he talked to Jim It was my understanding that Dooley about it. if -- all the Goemans was going to do was file a lawsuit here and give me two weeks notice before he did so. Instead, he apparently called Jim Dooley and discussed this entire case with him. Q And did Mr. Goemans say anything in response to your expression of disappointment? A Well, first of all, I said didn't his attorney tell him about the protective order, and he said his attorney had read it -- read it to him over the phone. And I said, "Well, why did you 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 violate the protective order?" And he said, No. 1, the protective order was acquired ex parte without his knowledge or input. No. 2, he did not feel that the court in which it was filed had jurisdiction over him, and he said he had expressed that concern to his own attorney. No. 3, he felt that he had a higher duty since the estate could not hide the amount of the settlement from the general public under IRS rules, and he did tell me that he did not feel he was bound to the settlement agreement because he was not the attorney of record for the Does on the Writ of Certiorari; he did not sign the settlement agreement, and that he did point out to me that he did not reveal the names of the Does in his discussions with Mr. Dooley. Q Did Mr. Goemans tell you when he had had his discussion with Mr. Dooley? A day. Q A Q That would be February 7th -That's correct. -- 2008? I asked him that. He said the previous Exhibit 6 1. and t l l a t this w o u l d b e an a p p r o p r i a t e f o n u n a n d t i m e t o mak.e t h i s k n o w n . f f t h e conference was n. w e e k e a r l i e r . 1 \VOuld hllve d o n e i t a t thlU t i m e . .2 ] 5. 5 6 7 I w a n t t o e m p h a s i z e to t h e C o u r t t h a t it was n o t m y i n t e n t t o d e l i b e r a t e l y and knowingly violate the Courtl(t order. My attorney advises me t hat h e d i d c o n v e y t o m e t e l e p h o n i c a l l y o n F e b r u a r y 5, 2 0 0 8 a b o u t t h e C o u r t ' s O r d e r , w h i c h I d o n o t d i s p u t e b u t d o not r e m e m b e r . [ a m h a v i n g m e m o r y p r o b l e m s a n d J kn<>w m e n t a l l y I a m n o t t h e 1!ame. I c a n r e p r e s e n t t o t h e C o u r t t h a t I d i d n o t a p p r e c i a t e w h a t m y C()~el t o l d m e a n d t h e s i g n i f i c . n n c e o f it. 1 d i d n o t a 10 11 makt:: <my d i s t i n c t i o n . in t e r m s o f any o b l i g a t o n s i m p o s e d o n m e , between the settlement a g r e e m e n t s c o n f i d e n t i a l i t y t:lause a n d t h e O r d e r o f t h e C o u r t . In my m i n d , t h e t e n n s o f the sc::t1lement w o u l d b e a n d s h o u l d b e OpeD :1.2 to the public and could not be kept confidentml. 6. 14 .lS I VI.'8.nt t o f u r t h e r a s s u r e t h o Court t h a t the Doe PlaintifTh were my cli ents 8.I:ld I understand the potential harm that could come to them should t h e r e n a m e s be k n o w n a n d f h a v e no ~lltt:::nt on diVl11ging t h a t information. 17 28 I w o u l d a s k f o r t h i s C o u r t t o try t o u n e m s t a n d Illy t h i n k i n g a n d w h a t ted to t h i s di lSC 10 sure. To the extcmt t h a t I rna~' h a v e b e e n \\11'008 in m y u n d e r s t a n d i n g a s to m y right a n d obligation t o m a k e t h i s i n f o n n a t i o n kr..own t o t h e p u b I i c ~ I a p o l o g l z . e t o t h e C ourt. 20 I d e c l a r e u n d e r penalty o f perjury under t h e laws o f the S t a t e o f C a lifomi a that lhe 21 .3r . ' . 1 foregoing is t r u e a n d correct_ E x e c u t e d thus 7zt jd.a y o f M a r c h il/)- U/; II-- ..' 1 r / / ) ? ' l i\-" . JOHN G C f M A N S 22 23 24 ?Jab j]~~ ~L I 25 27 20 3 Exhibit 7 Eric Grant From: Sent: To: Subject: Kathleen, When we spoke threatened to agreement. I the interests last evening, I was under the impression that Kamehameha Schools had sue my former clients the Does for breach of the May 2007 settlement gave you some reasons why I believe such a lawsuit would gravely disserve of all parties, especially including your client. Eric Grant [grant@eric-grant.com] Tuesday, March 25, 2008 11:43 PM 'Kathleen M. Sullivan' KSBE v. Grant? Since we spoke, I have been informed that Kamehameha Schools has threatened to sue ME (in addition to the Does). I was stunned by this information, for I cannot conceive of any reason save sheer malice why the Schools (or any of its attorneys) would even contemplate an action against me. I hope that you will tell me that I have been misinformed. If not, I hope that you will endeavor to convince your client and co counsel that suing me is wrong, as in both wicked and legally groundless. Perhaps someone is laboring under a misimpression about my role in the alleged breach; I expect that you and I could quickly clear up any such misimpression. If your client's threat is real, and if it is carried out, I shall be disappointed as well as angry. All parties and attorneys who are involved in a lawsuit against me may be assured that I will respond with the same zeal and determination that I brought to the Doe litigation. Cordially, Eric Grant Attorney at Law 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 691 0362 Facsimile: (916) 691 3261 http://www.eric grant.com 1 Eric Grant From: Sent: To: Subject: Eric, Thanks for informing me of this development. I will make your views known to my client and certainly will let you know if I have any useful information to relay back. Best, Kathleen Kathleen Sullivan Quinn Emanuel Urquhart Oliver & Hedges, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 Direct: (212) 849-7327 Main Phone: (212) 849-8100 Main Fax: (212) 849-8200 E-mail: kathleensullivan@quinnemanuel.com Web: www.quinnemanuel.com The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail, and delete the original message. -----Original Message----From: Eric Grant [mailto:grant@eric-grant.com] Sent: Wednesday, March 26, 2008 2:43 AM To: Kathleen Sullivan Subject: KSBE v. Grant? Kathleen, When we spoke threatened to agreement. I the interests last evening, I was under the impression that Kamehameha Schools had sue my former clients the Does for breach of the May 2007 settlement gave you some reasons why I believe such a lawsuit would gravely disserve of all parties, especially including your client. Kathleen Sullivan [kathleensullivan@quinnemanuel.com] Wednesday, March 26, 2008 7:09 AM Eric Grant RE: KSBE v. Grant? Since we spoke, I have been informed that Kamehameha Schools has threatened to sue ME (in addition to the Does). I was stunned by this information, for I cannot conceive of any reason -- save sheer malice -- why the Schools (or any of its attorneys) would even contemplate an action against me. I hope that you will tell me that I have been misinformed. If not, I hope that you will endeavor to convince your client and co-counsel that suing me is wrong, as in both wicked and legally groundless. Perhaps someone is laboring under a misimpression about my role in the alleged breach; I expect that you and I could quickly clear up any such misimpression. If your client's threat is real, and if it is carried out, I shall be disappointed as well as angry. All parties and attorneys who are involved in a lawsuit against me may be assured that I will respond with the same zeal and determination that I brought to the Doe 1 litigation. Cordially, Eric Grant Attorney at Law 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 691-0362 Facsimile: (916) 691-3261 http://www.eric-grant.com 2

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