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

Filing 90

OPPOSITION by Eric Grant to 77 Motion to Transfer. (Attachments: # 1 Appendix of Non-Standard Authorities, # 2 Declaration of Eric Grant, # 3 Declaration of James J. Banks)(Grant, Eric)

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 PLAINTIFF AND COUNTER-DEFENDANT ERIC GRANT IN SUPPORT OF HIS OPPOSITION TO KSBE DEFENDANTS' MOTION TO TRANSFER TO DISTRICT OF HAWAII PURSUANT TO 28 U.S.C. § 1404

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 Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Transfer

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 opposition to the Kamehameha 4 Schools Defendants and Cross-Claim Defendants' Motion to Transfer to District of Hawaii Pursu5 ant to 28 U.S.C. § 1404 (doc. 77, filed Aug. 22, 2008). I make the statements of fact in this declar6 ation of my own personal knowledge. If called as a witness in this proceeding, I could and would 7 competently testify to the facts set forth herein. 8 2. In the following paragraphs, I refer to Defendants Kamehameha Schools/Bernice

9 Pauahi Bishop Estate, J. Douglas Ing, Nainoa Thompson, Diane J. Plotts, Robert K.U. Kihune, and 10 Corbett A.K. Kalama collectively as "KSBE." I refer to Defendants John Doe and Jane Doe, two

ERIC GRANT, ATTORNEY AT LAW

11 individuals whose true identities are known to me, using their "Doe" pseudonyms. 12 3. On July 17, 2007, my counsel filed on my behalf an amended complaint in a case in

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

13 this Court styled Grant v. Doe, No. 2:07-cv-01087-GEB-EFB. Attached as Exhibit A to that com14 plaint was a redacted version of the "Attorney-Client Engagement Agreement" between my former 15 law firm and Jane Doe (on behalf of John Doe). Paragraph 15 of that agreement states in full: 16 17 18 Venue and Applicable Law. This Agreement shall be deemed to have been entered into in Sacramento County, California. and all questions regarding the validity, interpretation, or performance of any of its terms or provisions or of any rights or obligations of the parties, shall be governed by the internal law, and not the law pertaining to choice or conflict of law, of the State of California.

19 A true and correct copy of the redacted agreement as previously filed in this Court, with the quoted 20 passage highlighted on Page 4 thereof, is attached hereto as Exhibit 1. 21 4. The settlement of the Grant v. Doe litigation was memorialized in a document titled

22 "Settlement and Mutual Release Agreement" and executed in September of 2007. Exhibit 23 to 23 the Declaration of Paul Alston (doc. 72, filed under seal July 14, 2008) is a true and correct copy 24 of a redacted version of that agreement. Paragraph 16 of that agreement provides in full: 25 26 27 28 California Law. The settlement, this Settlement Agreement, and the documents referred to herein, shall be interpreted in accordance with the laws of the State of California and venue for any legal proceeding commenced to adjudicate any dispute arising hereunder shall be the United States District Court for the Eastern District of California if that court then has subject matter jurisdiction of the dispute. Otherwise, venue for such proceeding shall be the Sacramento County Superior Court.
1 Declaration of Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Transfer

1

5.

In my action against John Goemans in Sacramento County Superior Court styled

2 Grant v. Goemans, No. 07AS04172, my counsel received a discovery response entitled "Second 3 Supplemental Response to Request for Production of Documents, Set One" and executed by Goe4 mans' then-counsel John Gardner Hayes on May 9, 2008. The final paragraph of such response 5 states in full: "After a diligent search and reasonable inquiry, no documents to this request will be 6 produced because all documents responsive to said request have either been destroyed or lost." A 7 true and correct copy of the response, with the quoted passage highlighted on Page 2 thereof, is at8 tached hereto as Exhibit 2. 9 6. On June 19, 2008, Jerry Stein, one of the Does' counsel, sent an e-mail message to

10 all other counsel in this case, including me. Attached to that message were "three documents that

ERIC GRANT, ATTORNEY AT LAW

11 [his] clients agreed to produce in response to the questions raised in Paul Alston and Louise Ing's 12 May 6, 2008 letter." A true and correct copy of a printout Mr. Stein's June 19th e-mail message 13 (without the referenced attachments) is attached hereto as Exhibit 3. 14 7. In a letter signed by Paul Alston and dated June 19, 2008, KSBE responded to dis-

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

15 covery that I had propounded. As indicated in Item t on Page 12 of Mr. Alston's letter, my final 16 question and KSBE's corresponding answer were as follows: 17 18 19 20 If KSBE intends to file a motion to transfer venue pursuant to 28 U.S.C. § 1404(a) based in any manner on "the convenience of . . . witnesses," please identify those witnesses whose convenience is the bases for the motion, together with the general subject matter of their expected testimony. [KSBE] objects to this request on the grounds that it is outside the scope of agreed-upon discovery and seeks information that is irrelevant to this action.

21 A true and correct copy of such letter, with the quoted passage highlighted on Page 12 thereof, is 22 attached hereto as Exhibit 4. 23 8. On October 4, 2008, I visited a page on the website of the Beachcomber Motel, i.e.,

24 http://www.thebeachcombermotel.com/new/contact.html. That page indicated that the motel's fac25 simile number is [phone]. A true and correct copy of a printout of that webpage, with the 26 motel's facsimile number highlighted, is attached hereto as Exhibit 5. 27 /// 28 ///
2 Declaration of Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Transfer

1

9.

On October 16, 2008, I visited the webpage for Kathleen M. Sullivan on the website

2 of the State Bar of California, http://members.calbar.ca.gov/search/member_detail.aspx?x=242261. 3 That page indicates that Ms. Sullivan's business address is "Quinn Emanuel et al LLP, 555 Twin 4 Dolphin Dr #560, Redwood Shores, CA, 94065." A true and correct copy of a printout of the page 5 is attached hereto as Exhibit 6. 6 10. On October 17, 2008, I visited the "Find a Member" search form on the website of

7 the D.C. Bar, http://www.dcbar.org/find_a_member/index.cfm. Entering a first name of "Emmett" 8 and a last name of "Lewis" into that form, I received a page notifying me that one record matched 9 my search criteria. A true and correct copy of a printout of the notification page is attached hereto 10 as Exhibit 7.

ERIC GRANT, ATTORNEY AT LAW

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

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

12 foregoing is true and correct. Executed on October 17, 2008. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3 Declaration of Plaintiff Eric Grant in Support of His Opposition to KSBE Defendants' Motion to Transfer

/s/ Eric Grant ERIC GRANT

Exhibit 1

REDACTED

13. 13. Arbltrdioll. By initialing this arbittation provision, Client and the Firm are agreeing to have any and all disputes (except where Client lnay request arbitration o f a fce dispute by the California. State Bar or a local bar association as provided by California Business and Professions Code §§ 6200, et seq.), that arise out of, or relate to this Agreement, including but not limited to claims of negligence or malpractice arising out of or relating to the legal services provided by the Finn to Client, decided only by binding arbitration in Sacramento, California, in accordance with the then-existing nJle~ ofthc American Arbitration Association and nol by court action, except as provided by California law for judicial review o f arbitration proceedings. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The FiTDl and CI ient shall each have the riSh t o fdiscovcry in cOIUlcction with an arbitration proceeding in accordance with California Code o f Civil Procedure § 1283.05. In agreeing to this arbitration provision, THE PARTIES ARE SPECIFICALLY GIVING UP:

(1) ALL RIGHTS THEY MAY POSSESS TO HAVE SUCH DISPUTES DECIDED IN A COURT OR JURy TRIAL; AND (2) ALL JUDICIAL RIGHTS, INCLUDING THE RIGHT TO APPEAL FROM THE DE· CISION OF THE ARBITRATOR(S). IF EITHER PARTY SHOULD REFUSE TO SUBMIT TO ARBITRATION, THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER CALIFORNIA LAW. THE PARTIES HEREBY ACKNOWLEDGE n m ABOVE AND THAT TInS MUTUAL AGREEMENT FOR BINDING ARBITRATION IS VOLUNTARY, By initialing below, Client confirms that Client has read and understands this provision and voluntarily agrees to binding arbitration. I n doing so, Client voluntarily gives up important constitutional rights to trial b y judge or jury, as well as rights t o appeal. Client is advised that Client has the right to have an independcDt attorney review this arbitration provision (and this entire Agreement rior to in" ing this provision or signing this Agreement.

(Attorney Initial Here) 14. E a t l r e Agreemellt. This Agreement contains the entire agreement o f the parties. No other agreement, statement, or promise made on or before the effective datc o f this Agreement will be binding on the parties. This Agreement may he modified by subsequent Bgr=mcnf o f the parties as expressed only in an instrument in writing signed by both o f them.
15. Venue and Applicable Law. This Agreement shall b e deemed to have been entered into in Sacramento County, California. and all questions regarding the validity, interpretation, or perfonnance o f any o f its terms or provisions or o f any r i g h t s or obligations o f the parties, shall be governed b y the intemallaw, and not the law pertaining to choice or conflict o f law, o f the State o f California..

Page 4 of 5

Exhibit 2

1

i m p e r f e c t l y u n d e r s t o o d , o r t h e r e l e v a n c e o r c o n s e q u e n c e s o f s u c h f a c t s a n d e v i d e n c e may, i n good faith, n o t b e i n c l u d e d in t h e following responses. T h i s p a r t y reserves all r i g h t s to r e f e r to, c o n d u c t d i s c o v e r y w i t h reference to, o r o f f e r into evidence a t t h e time o f t r i a l any a n d all

2
3
4

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such witnesses, facts a n d evidence, n o t w i t h s t a n d i n g t h e absence o f r e f e r e n c e to such witnesses, facts a n d evidence in these responses. I n a d d i t i o n , this p a r t y assumes no obligation to v o l u n t a r i l y s u p p l e m e n t o r a m e n d these r e s p o n s e s to reflect witnesses, facts a n d e v i d e n c e d i s c o v e r e d f o l l o w i n g t h e filing o f t h e s e r e s p o n s e s . F i n a l l y , b e c a u s e s o m e o f t h e s e responses m a y h a v e b e e n a s c e r t a i n e d b y s a i d p a r t y ' s a t t o r n e y s a n d i n v e s t i g a t o r s , this p a r t y may n o t h a v e p e r s o n a l k n o w l e d g e o f t h e i n f o r m a t i o n f r o m w h i c h t h e s e r e s p o n s e s a r e

6
7

8

9

10
11

12

derived. I n r e g a r d to a n y objections m a d e o r f a i l u r e o r r e f u s a l o f r e s p o n d i n g p a r t y to r e s p o n d to any o f t h e r e q u e s t s , r e s p o n d i n g p a r t y ' s counsel s t a t e s its willingness to c o r r e s p o n d o r meet a n d c o n f e r to a v o i d needless discovery motions. 4. A f t e r a d i l i g e n t s e a r c h a n d r e a s o n a b l e i n q u i r y , no d o c u m e n t s to this r e q u e s t

13
14 15 16 17 18 19 20 21 22 23
24

will be p r o d u c e d b e c a u s e all documents responsive to s a i d r e q u e s t h a v e e i t h e r been d e s t r o y e d o r lost.

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DATED: M a y 9, 2008 L A W O F F I 9 E S ~~ O H N G A R D N E R HAYES ~ ~/

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Exhibit 3

Page 1 of 1

Eric Grant
From: Sent: To: Subject: Jerry H. Stein [[e-mail]] Thursday, June 19, 2008 2:24 PM 'LOUISE ING'; [e-mail]; 'Clyde Wadsworth'; 'ken kuniyuki'; 'PAUL Alston'; 'Robert A.Brundage'; 'James J. Banks'; 'Eric Grant' Production of Documents

Importance: High Attachments: Statement Grant-pdf.oas; Fee Agreement-pdf.oas; Settlement agreement with Grant-pdf.oas Dear Counsel: Attached please find the three documents that my clients agreed to produce in response to the questions raised in Paul Alston and Louise Ing's May 6, 2008 letter. Please note that pursuant to the terms of the parties' Stipulated Protective Order that each of the documents has been marked Confidential. In addition, each of the documents has been redacted. If you have any questions concerning the documents produced, please let me know. Finally, are we going to receive the KS's responses to the questions posed on Eric Grant's behalf today as indicated in Paul Alston June 18th E-mail. Jerry Stein

Exhibit 4

James J . B a n k , E s q . Eric G r a n t , Esq. J e r r y H. S t e i n , E s q . Ken T. K u n i y u k i , E s q . J u n e 19, 2 0 0 8 P a g e 12

B i s h o p v. C a n y o n H i l l s , USA, I n c . , e t a l . , R i v e r s i d e C o u n t y S u p e r i o r C o u r t , C a s e No. P S C l 1 2 6 3 2 . T h a t m a t t e r w a s concluded in or about July 2003. Other than that action and t h e i n s t a n t c a s e , KS h a s n o t e n g a g e d i n a n y l i t i g a t i o n i n California. KS h a s b e e n r e p r e s e n t e d b y c o u n s e l i n a t l e a s t o n e a r g u m e n t b e f o r e t h e 9 th C i r c u i t i n S a n F r a n c i s c o r e l a t i n g t o l i t i g a t i o n t h a t a r o s e i n Hawai'i, i n c l u d i n g t h e e n b a n c h e a r i n g in the appeal filed by John and Jane Doe.
r.

C o n d u c t e d m e e t i n g s o f t h e KSBE B o a r d o f T r u s t e e s w i t h i n t h e S t a t e o f California. I f so, p l e a s e i d e n t i f y t h e l o c a t i o n a n d d a t e s o f any such meetings.
No.

s. Have a n y a f f i l i a t e s c o n d u c t e d m e e t i n g s o f d i r e c t o r s o f s h a r e h o l d e r s w i t h i n t h e S t a t e o f California.

KS o b j e c t s t o t h i s r e q u e s t o n t h e g r o u n d s t h a t i t i s o u t s i d e t h e scope of agreed-upon discovery and seeks information that is irrelevant to this action.
t. I f KSBE i n t e n d s t o file a m o t i o n t o t r a n s f e r v e n u e p u r s u a n t to 2 8 U.S.C. § 1 4 0 4 ( a ) b a s e d i n a n y m a n n e r o n " t h e c o n v e n i e n c e o f . . . witnesses," please identify those witnesses whose convenience is the b a s e s for t h e m o t i o n , t o g e t h e r w i t h t h e g e n e r a l s u b j e c t m a t t e r o f t h e i r expected testimony.

KS o b j e c t s t o t h i s r e q u e s t o n t h e g r o u n d s t h a t i t i s o u t s i d e t h e s c o p e o f a g r e e d - u p o n discove.ry a n d s e e k s i n f o r m a t i o n t h a t i s irrelevant to this action.

68109318348 - 4

Exhibit 5

The Beachcombermotel Fort Bragg California, Beachcombermotel Northern California, Hotels www.theBeachcombermotel.com, CA

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T he friendly staff at The Beachcomber Motel is waiting to hear from you. By Email: [e-mail] By Phone: Toll Free: 1-800-400-7873 (SURF) Phone Direct: 1-707-964-2402 Fax: [phone] By Mail: 1111 N. Main St ( N. Hwy. One) Fort Bragg CA 95437 Join Our Mailing List!

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Exhibit 6

State Bar of CA :: Kathleen M. Sullivan

http://members.calbar.ca.gov/search/member_detail.aspx?x=242261

Thursday, October 16, 2008

St at e Bar Home

Hom e > Attorney Search > Attorney Profile

Kathleen Marie Sullivan - #242261
Current Status: Active
T his member is active and may practice law in California. See below for more details.

Profile Information
Bar Number Addre ss 242261 Quinn Emanuel et al LLP 555 Twin Dolphin Dr #560 Redwood Shores, CA, 94065 Phone Number Fax Number e -m ail [phone] [phone] [e-mail]

District County Se ctions

District 3 San Mateo None

Unde rgraduate School Law School

Cornell Univ; Ithaca NY Harvard Univ Law School; Cambridge MA

Status History
Effe ctiv e Date Present 5/25/2006 Explanation of member status Status Change Active Admitted to The State Bar of California

Actions Affecting Eligibility to Practice Law Disciplinary and Related Actions
T his member has no public record of discipline.

Administrativ e Actions
T his member has no public record of administrative actions. Start New Search >
Contact Us Site Map Privacy Policy Notices
© 2008 The State Bar of California

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Exhibit 7

Member Search Results

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Search Results
Search again.

Records matching your search criteria: 1 1. Emmett B Lewis III Miller & Chevalier 655 15th St NW Washington DC 20005-5701 Email: [e-mail] Phone: [phone] Fax: [phone] Membership Status: Active Disciplinary history: No Date of admission: April 7, 1980

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