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
DECLARATION OF JAMES J. BANKS IN SUPPORT OF PLAINTIFF AND COUNTERDEFENDANT ERIC GRANT'S MOTION FOR SUMMARY JUDGMENT

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.

Declaration of James J. Banks in Support of Plaintiff Eric Grant's Motion for Summary Judgment

1 2

I, James J. Banks, declare as follows: 1. I am co-counsel for Plaintiff and Counter-Defendant Eric Grant ("Grant") in the

3 above-entitled case. I make this declaration in support of Grant's 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. In a letter addressed to me and dated June 11, 2007, and which I received on that

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

13 date, the Does' then-counsel Robert L. Esensten demanded: "Please also provide me a copy of the 14 Settlement Agreement executed by [Jane Doe]. I understand that [she] has made multiple requests 15 for this Settlement Agreement to date." A true and correct copy of Mr. Esensten's letter, with the 16 quoted passage highlighted on Page 1 thereof and with Jane Doe's true name redacted, is attached 17 hereto as Exhibit 1. 18 4. In a letter addressed to Mr. Esensten and dated June 22, 2007, and which I sent on

19 that date, I responded to Mr. Esensten's demand: "Pursuant to your request, I enclose an executed 20 copy of the Settlement Agreement and General Release entered into in that certain litigation styled, 21 Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, et al." I enclosed a copy of the Set22 tlement Agreement with my letter. A true and correct copy of my letter (not including exhibits), 23 with the quoted passage highlighted and with Jane Doe's true name redacted, is attached hereto as 24 Exhibit 2. 25 26 5. 6. I did not provide a copy of the Doe-KSBE Settlement Agreement to Goemans. On April 8, 2008, I sent a letter to KSBE's then-counsel Kelly G. LaPorte. In sum,

27 that letter conveyed Mr. Grant's offer to dismiss KSBE from this action in exchange for KSBE's 28 binding acknowledgment that "it has no claim for breach of the [Doe-KSBE] settlement agreement
1 Declaration of James J. Banks in Support of Plaintiff Eric Grant's Motion for Summary Judgment

1 against Mr. Eric Grant." That offer would not have required KSBE to pay any damages, attorney's 2 fees, or even costs to Mr. Grant. KSBE did not accept Grant's offer. A true and correct copy of 3 my letter (including enclosures), with the referenced passages highlighted on Page 1 thereof, is at4 tached hereto as Exhibit 3. 5 7. On April 9, 2008, I received a response to my letter to Mr. LaPorte, via an e-mail

6 message from KSBE's counsel Paul Alston. That message reads in part: 7 8 9 10 I am responding to your April 8 letter to Kelly LaPorte. Your letter does not accurately reflect what Mr. LaPorte said to you on April 4. As stated in his April 7 email to the court (a copy of which is reprinted below), it is correct to say that [KSBE] has no present intention to sue Mr. Grant. It is not correct to say that [KSBE] has decided it has no claims against Mr. Grant. At this point, given the conflicting positions taken by Mr. Grant, Mr. Goemans and Mrs. Doe, [KSBE] is still in the process of evaluating its rights and claims.

ERIC GRANT, ATTORNEY AT LAW

11

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

12 A true and correct copy of a printout of Alston's message, with the quoted passage highlighted, is 13 attached hereto as Exhibit 4. 14 8. I am informed and believe that on April 9, 2008, KSBE counsel Paul Alston sent an

15 e-mail message to the Does' counsel Jerry H. Stein. The body of that message read as follows: 16 17 18 19 20 21 22 23 24 25 26 Jerry: Thank you for sending the email forwarding a copy of the email Kelly LaPorte sent to the judge in Sacramento on April 7. That email is consistent with what I said during our recent telephone call. KS, at this point, is reviewing and evaluating the situation, and it presently has no intention to sue Mr. Grant. Nor, for that matter, does KS presently intend to sue your clients. KS is reserving all of its rights and claims, and, until the conflicting denials can be evaluated more fully, KS is going to hold its fire. Regardless what the future brings, KS will not, under any circumstances violate the settlement agreement. In particular, KS will not identify the Does without a court order obtained after notice and hearing. That is NOT to say that KS intends now to seek such an order; it is merely to reserve KS's rights to seek such orders as may be needed to vindicate KS's rights. Attached is a letter the Cades firm received from Banks & Watson. As you will see, that letter claims (wrongly) that KS "believes it has no claim" against Mr. Grant. KS presently has no such belief; it is, as I said above, still evaluating its rights. PAUL ALSTON

27 A true and correct copy of a printout of Alston's message, as forwarded to me from Mr. Stein on 28 April 10, 2008, is attached hereto as Exhibit 5.
2 Declaration of James J. Banks in Support of Plaintiff Eric Grant's Motion for Summary Judgment

1

I declare under penalty of perjury under the laws of the United States of America that the

2 foregoing is true and correct. Executed on October 3, 2008. 3 4 5 6 7 8 9 10 /s/ James J. Banks JAMES J. BANKS

ERIC GRANT, ATTORNEY AT LAW

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3 Declaration of James J. Banks in Support of Plaintiff Eric Grant's Motion for Summary Judgment

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

Exhibit 1

STEVEN G , B H E N N E H D A V I D Ll C A S S E L . M A N FHANK W. CHEN FEONfIF,D J. COM DEN HOBUH L. ESENSTEN* CATHEHINE S. GAHCIA MAHK 5. GOTTLIEB MELISSA HAHNETT HOBEHT C. NICHOLS GHEGOHY J. HAMIREZ JAY N. ROSENWALD STEVE K. WASSERMAN I.DONALD WEISSMAN CECIUA 5. WU I,o[n:rn [lOHSKY L'AUF D CADMAN
As-rER C. CHANG

.L~,UJ f l l t e M

WASSERMAN, COMDEN & CASSELMAN, L.L.P.
L o s ANGELES OFFICE
5S67 RESEDA BOULEVARD SUITE 330

DAVID L'LASKOW E : H I C L'. r U T D PAUL M RYAN JAYNE B. SCHUMEr,*' COHN ELlA STEHNEH HYAN J, STONEHOCK STEVE Z. WANG C H R I S T O P H E H P, W A H N E

T A R Z A N A , C A L I F O R N I A 91356
MAIL TO: P,O. BOX 7033, TARZANA, CA 91357-7033 [phone] FAX FAX [phone]

OF COUNSEL TIM T. CHANG MICHAEL T. FOX OSCAR C. GONZALEZ KATHRYN S. MARSHALL. CHAHLES A SHULTZ"

(8181705-8927 [phone]

KIHK S. COMEH JOEL FISCHMAN SUSU KHINE AflFH)N KOU.ITZ KAHIN L.EAVITl LIOHA MESZflFWS

WWW.WCCLAW.COM

KARASIK LAW GROUP O L G A A, I , A r , A S I K TERRY D. SHAYLIN

J u n e 1 L 2007
WHITER'S DIRF::CT' CON-l-AC-r
lH 18/609-2384

V I A F A C S I M I L E AND U.S. M A I L
J a m e s .1. Banks, Esq. B a n k s & Watson 813 S i x t h Street, Suite 4 0 0 S a c r a m e n t o , CA 9 5 8 1 4 Re:

[e-mail]

Fee Dispute John Doe vs. Kamehameha Schools / Bernice P a u a h i Bishop Estate, et al.

D e a r Mr. Banks: I h a v e r e c e i v e d y o u r letter o f J u n e 7, 2007. I will a c c e p t s e r v i e e on b e h a l f o f my client. I will a l s o to agree to stay t h i s a c t i o n so t h a t this m a t t e r m a y b e arbitrated. P l e a s e p r e p a r e a s t i p u l a t i o n for my review. I w o u l d p r e f e r to h a v e this m a t t e r arbitrated b e f o r e the State B a r o f California v e r s u s the S a c r a m e n t o B a r Association. Is the intent o f y o u r l a w s u i t to suel o n l y ? F r o m reading the c o m p l a i n t , it w a s not a p p a r e n t that this l a w s u i t w o u l d c o v e r the d i s p u t e b e t w e e n Mr. G r a n t and Mr. G o e m a n s . Was t h a t y o u r i n t e n t ? P l e a s e p r o v i d e me w i t h e v i d e n c e that the $2.8 million r e m a i n s Mr. Grant's C l i e n t ' r r u s t A c c o u n t . B a s e d on the size o f the funds, I w o u l d r e c o m m e n d that the funds be t r a n s f e r r e d t o a s p e c i a l t r u s t a c c o u n t r e q u i r i n g t w o s i g n a t u r e s t o w i t h d r a w t h e funds, o n e b e i n g e i t h e r you o r Mr. Grant, a n d t h e o t h e r being, a r e p r e s e n t a t i v e o f this firm o r me. P l e a s e also p r o v i d e m e a c o p y o f t h e S e t t l e m e n t A g r e e m e n t e x e c u t e d by I .I u n d e r s t a n d thatl h a s m a d e m u l t i p l e r e q u e s t s for t h i s S e t t l e m e n t A g r e e m e n t to date.

g R I,N'I'VV()() D

AI.lli\MBRA

OXNARD

Exhibit 2

BANKS & W A T S O N
ATTORN EYS
813
SIXTH STREET SUITE TELEPHONE

4 0 0 . SACRAMENTO, CALIFORNIA 9 5 8 1 4 - 2 4 0 3 916 3 2 5 . 1 0 0 0 . F A X 9 1 6 3 2 5 . 1 0 0 4
WWW.BW· FII\M.c(lM

June 22, 2 0 0 7
JAMES J. BANKS

Mr. R o b e r t L. E s e n s t e n Wasserman, C o m d e n & Casselman, L.L.P. 5507 R e s e d a B o u l e v a r d , S u i t e 330 Tarzana, C a l i f o r n i a 9 1 3 5 6 Re:

Eric Grant v. John Doe a n d Jane Doe

D e a r Mr. Esensten: P u r s u a n t to y o u r request, I enclose an e x e c u t e d c o p y o f the Settlement Agreement and G e n e r a l R e l e a s e entered into i n that certain litigation styled, Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, et al. I also enclose a screenshot o f the client trust a c c o u n t m a i n t a i n e d b y Mr. Grant showing the b a l a n c e o f the settlement proceeds. O n s e v e r a l o c c a s i o n s I h a v e i n q u i r e d a b o u t y o u r w i l l i n g n e s s to c o n d u c t a J A M S a r b i t r a t i o n o f t h e i s s u e s t h a t separate and Mr. Grant. You h a v e not r e s p o n d e d t o t h o s e r e q u e s t s . I w i l l t a k e y o u r l a c k o f r e s p o n s e as a l a c k o f i n t e r e s t i n t h a t a p p r o a c h to r e s o l v i n g t h i s l i t i g a t i o n . I h a v e a d v i s e d t h a t w e do n o t b e l i e v e y o u r c l i e n t s ' b r e a c h o f the s e t t l e m e n t agreement reached l a s t m o n t h is arbitrable u n d e r B u s i n e s s and Professions C o d e s e c t i o n s 6200, et seq. and w e do believe those c l a i m s s h o u l d b e resolved p r e f a t o r y to e n g a g i n g in a fee arbitration. Since it appears w e are u n a b l e to agree o n a m e c h a n i s m for resolving these claims, w e will make the appropriate m o t i o n to sever. Y o u a l s o h a v e n o t r e s p o n d e d to o u r i n q u i r y a b o u t c o n f l i c t w a i v e r s a m o n g s t y o u r clients. P l e a s e do r e s p o n d i n that respect so t h a t w e c a n p u t that issue to rest. Y o u r s v e r y truly,

JJB:db Encls. cc: Mr. E r i c Grant

{00033682.DOC; I}

Exhibit 3

BANKS
813
SIXTH STRITE, S U I I ! TIUI'IIONL

& WATSON

ATTORNEYS
4 0 0 . SACRAMINTO, CILIEOllNIA 9 5 8 1 4 - 2 4 0 3 916 3 2 5 , 1 0 0 0 . F A x 916 3 2 5 . 1 0 0 4
WWWI\W II RM.COM

April 8, 2008
JAMES J, BANKS

VIA E L E C T R O N I C & FIRST-CLASS M A I L

Mr. Kelly G. LaPorte Cades Schutte LLP 1000 Bishop Street, Suite 1200 Honolulu, HI 96813 Re: Eric Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate, et al. and Related Cross-Action (E.D. No. 2:08-cv-00672-FCD-KJM)

Dear Mr. LaPorte: Thank you for speaking with me on Friday, April 4, 2008 about the captioned litigation and your letter o f that date to Mr. Grant. The purpose o f this letter is to confirm the gist o f our conversation, viz., your advisement that Kamehameha Schools/Bernice Pauahi Bishop Estate and its trustees (the "Estate") have determined that they have no claims against Mr. Eric Grant arising from Mr. John Goemans' disclosure o f the amount o f that certain settlement between the Estate and the individuals designated as John Doe and Jane Doe. Mr. Goemans' disclosures occurred on February 7, 2008 and February 8, 2008 and were apparently extensively republished in the Honolulu Advertiser and in other media in Hawaii. Moreover, as I understand the Estate's position, it believes that it has no claim for breach o f the settlement agreement against Mr. Eric Grant because (1) he is not a party to the settlement agreement and (2) the breach o f the confidentiality provision in the Estate/Doe settlement agreement was not a consequence o f any misconduct o f Mr. Grant's, but rather that o f Mr. Goemans. Mr. LaPorte, please confirm that you are authorized to speak for the Estate regarding the foregoing matters and countersign a copy o f this letter where indicated below. Mr. Grant will, as a consequence, dismiss his declaratory relief claim against the Estate, pursuant to Rule 41(a)(1)(A)(i). A copy o f that dismissal is enclosed. I will immediately file the dismissal with the United States District Court once we receive this letter countersigned by you.

{00038489'oOC; I}

Exhibit 4

James J. Banks
From: Sent: To: Cc: PAUL Alston [[e-mail]] Wednesday, April 09, 2008 8:02 PM James J. Banks [e-mail]; Clyde Wadsworth; Colleen Wong

Subject: Grant/Doe/KS Litigation Dear Mr. Banks: I have been retained by Kamehameha Schools and its Trustees (collectively, "KS") to represent them in the lawsuit filed by Eric Grant in the Eastern District. Our local counsel is Charlene Shimada of the Bingham McCutcheon firm. All communications relating to this litigation should be directed to me and Ms. Shimada. I am responding to your April 8 letter to Kelly LaPorte. Your letter does not accurately reflect what Mr. LaPorte said to you on April 4. As stated in his April 7 email to the court (a copy of which is reprinted below), it is correct to say that KS has no present intention to sue Mr. Grant. It is not correct to say that KS has decided it has no claims against Mr. Grant. At this point, given the conflicting positions taken by Mr. Grant, Mr. Goemans and Mrs. Doe, KS is still in the process of evaluating its rights and claims. Based upon this representation, I trust you and Mr. Grant will be willing to dismiss his claims against KS without prejudice. PAUL ALSTON

-----Original Message----From: David Schulmeister Sent: Monday, April 07, 2008 8:17 AM To: '[e-mail]' Cc: Kelly LaPorte; 'Colleen Wong' Subject: Grant v. Kamehameha Schools Ms. Price: I just opened your email re the above. Please be advised as follows: 1. I am counsel for Kamehameha Schools but am not admitted to practice in California. 2. To my knowledge, service has not been made on Kamehameha Schools. 3. Kamehameha Schools has not threatened to sue Eric Grant for breach of the relevant Settlement Agreement, and has no such intention. 4. It is my understanding that, as the result of communications between my partner, Kelly Laporte, and Eric Grant's counsel, Mr. Banks, that Mr. Grant's complaint against Kamehameha Schools will be

dismissed upon receipt of satisfactory assurance of the above. 5. Kamehameha Schools has serious questions regarding whether the court has jurisdiction over the Does' complaint against Kamehameha Schools, but has not had adequate time to prepare a response, and thus does not intend to appear at the hearing this morning. By communicating this brief message to the court, we do not intend to submit to the jurisdiction of this court, as we have substantial concerns over the existence of subject matter and personal jurisdiction over our Hawaii clients with respect to a request for immediate emergency relief sought by another citizen of Hawaii.

Respectfully, David Schulmeister

This message was sent by:

This message may contain privileged and/or confidential information. If you have received it by mistake, please do not print, copy or forward it to anyone. Instead, please contact me immediately. Thank you.

Exhibit 5

James J. Banks
From: Sent: To: Subject: Jerry H. Stein [[e-mail]] Thursday, April 10, 2008 10:54 AM James J. Banks FW: Grant/KS/Doe

Attachments: Grant - 04.08.08 Letter to Kelly LaPorte.pdf Jim: FYI, below I an e-mail that I received from Alston Jerry Stein

From: PAUL Alston [mailto:[e-mail]] Sent: Wednesday, April 09, 2008 6:16 PM To: [e-mail] Cc: Clyde Wadsworth; [e-mail]; Colleen Wong Subject: Grant/KS/Doe

Jerry: Thank you for sending the email forwarding a copy of the email Kelly LaPorte sent to the judge in Sacramento on April 7. That email is consistent with what I said during our recent telephone call. KS, at this point, is reviewing and evaluating the situation, and it presently has no intention to sue Mr. Grant. Nor, for that matter, does KS presently intend to sue your clients. KS is reserving all of its rights and claims, and, until the conflicting denials can be evaluated more fully, KS is going to hold its fire. Regardless what the future brings, KS will not, under any circumstances violate the settlement agreement. In particular, KS will not identify the Does without a court order obtained after notice and hearing. That is NOT to say that KS intends now to seek such an order; it is merely to reserve KS's rights to seek such orders as may be needed to vindicate KS's rights.. Attached is a letter the Cades firm received from Banks & Watson. As you will see, that letter claims (wrongly) that KS "believes it has no claim" against Mr. Grant. KS presently has no such belief; it is, as I said above, still evaluating its rights. PAUL ALSTON