Gregory Burke vs. Trevor W. Basil

Opposition

Cal. Super. - 4th Dist.October 20, 2016

Loa 30 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 TE LE PH ON E: (8 05 ) 38 8- 31 00 NN ~N O N W »a 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 re TN Po RE - ) BEACH + COWDREY + JENKINS, Lp 500 E. ESPLANADE DRIVE, SUITE 1400 OXNARD, CALIFORNIA 93036 TELEPHONE: (805) 388-3100 FACSIMILE: (805) 388-3414 Thomas E. Beach - State Bar No. 096321 Darryl C. Hottinger - State Bar No. 201870 Michael H. Brody - State Bar No. 238757 mail@beachcowdrey.com Attorneys for Defendants, NEWPORT BEACH AQUATICS, INC,, THOMAS N. ROBINSON, DEAN CROW, JOHN DOBROTT, and JAMES FOWLER ELECTRONICALLY FILED Superior Court of California, County of Orange 05/21/2018 at 05:29:00 PM Clerk of the Superior Court By Robert Renison, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL DISTRICT - SANTA ANA GREGORY BURKE, Plaintiff, V. NEWPORT BEACH AQUATICS, INC., A CALIFORNIA CORPORATION; THOMAS N. ROBINSON, AN INDIVIDUAL; DEAN CROW, AN INDIVIDUAL; JAMES FOWLER, AN INDIVIDUAL; JOHN DOBROTT, AN INDIVIDUAL; AND DOES 1-20, Defendants. Case No. 30-2016-00882380-CU-PO-CJC Related Case 30-2018-00977345-CU-NP-CJC Complaint Filed 10/20/2016 Hon. Martha K. Gooding, Dept. C34 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DARRYL C. HOTTINGER [Concurrently Filed with (1) Response to Plaintiff’s Separate Statement, and (2) Objections to Plaintiff’s Evidence] Date: June 4, 2018 Time: 1:30 p.m. Dept.: C-34 Trial Date: October 1, 2018 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: COME NOW defendants NEWPORT BEACH AQUATICS, INC., THOMAS N. ROBINSON, DEAN CROW, JOHN DOBROTT, and JAMES FOWLER, and hereby submit the following Opposition to plaintiff’s Motion for Summary J udgment. Defendants also hereby request that sanctions be imposed against plaintiff GREGORY BURKE in the amount of $5,670.00, pursuant to Code of Civil Procedure § 128.5. 1 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF Be aC H « C OW DR EY » J EN KI 50 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 5 TE LE PH ON E: (8 05 ) 38 8- 31 00 Wn Uo Oo 3 DN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. Iv. VI. VIL. VIII TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES ........covooeeeeeerereeseseeeeoer! 5 INTRODUCTION... eee eee ees 5 APPLICABLE LAW FOR MOTIONS FOR SUMMARY JUDGMENT.......ooooooo, 6 THE COURT MAY NOT GRANT SUMMARY ADJUDICATION IN THIS CASE AGAINST ANY SINGLE DEFENDANT. «...covvooeeeeeeeeeeeeoeeeeeeeo 7 PLAINTIFF'S MOTION MUST BE DENIED BECAUSE THE AMOUNT OF PLAINTIFF'S DAMAGES HAS NOT BEEN ESTABLISHED. ........oooovoeeooovo. 7 PLAINTIFF'S MOTION MUST BE DENIED BECAUSE AT LEAST ONE MATERIAL FACT IS NOT SUPPORTED BY THE EVIDENCE AND/OR IS DISPUTED BY THE DEFENDANTS. ......eovueoreeeeeeseeeeeeeeeeeesoseeo, 9 PLAINTIFF'S MOTION MUST BE DENIED BECAUSE THERE ARE CLEARLY TRIABLE ISSUES OF MATERIAL FACT. «eevee 9 SANCTIONS SHOULD BE IMPOSED AGAINST PLAINTIFF. .......oouovoooeoeoer! 14 CNN CALI RSIOMN rcs emenesrses esos EEE ERE ERE SEARS ER ns 16 DECLARATION OF DARRYL C. HOTTINGER .......c.ovumeveeomeeeeeeesoeeeeeoeeoeo, 17 FPROOE OF SERVICE oomesusossssmmmmsicmne son sso si s sss moms 21 SERVICE LIST ....oooiiiiiiciintneneetsee ee eee esses esses sees esos. 22 2 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF BE AC H « C OW DR EY » J EN KI NS , Lp 50 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 TE LE PH ON E: (8 05 ) 38 8- 31 00 iN NO 0 3 A N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Adams v. Murakami, LLIDLY S94 CaLBA 105 ,sissm0ss 55555 nrassansmnernresremsaressrsmsmrssssmssssssmssas a s ssssss sasss sekomnm mmmmnen mmessoseseesomnes 8 Anderson v. Metalclad Insulation Corp., (1999) 72 Cal. APDP.Ath 284... eee ee eee eee eee eee eee 6 Basich v. Allstate Ins. Co., (2001) 87 CalAPDP. Ath 1112... eee 6 College Hospital, Inc. v. Superior Court, (1994) 8 Cal.dth 704, £11. 7 ce... 8 Department of Industrial Relations v. UI Video Stores, Inc., (1997) 55 Cal. APD. 4th 1084... eee eee eee eee ee. 7,8 Homestead Savings v. Superior Court, (1986) 179 Cal. APP.3A 494 .....oimeieeeeeeeeeeeeeeeeeee eee e e ee ee eee 7 Hughes v. Pair, (2009) 46 Cal. 4th 1035.....c.coiieriieireeeeeeeeee ee eee ee eee ee . 10,11, 12, 13 Hunter v. Pacific Mechanical Corp., (1995) 37 Cal. APD. Ath 1282... eee eee eee eee 6 I-CA Enterprises v. Palram Americas, Inc., (2015) 235 Cal ADPP.Ath 257... ee e e eee eee eee 15 Karwasky v. Zachay, (1983) 146 Cal. APD.3A 679... eee eee eee 14 Monex Int'l, Ltd. V. Peinado, (1990) 224 Cal. APP.3d 1619... eee eee eee ee. 14 Nazir v. United Airlines, Inc., (2009) 178 Cal ADPP.Ath 243... eee eee eee eee eee eee 9 Paramount Petroleum Corporation v. Superior Court, (2014) 227 Cal APP. Ath 226.......ccouimiireeeeeeeeeeeeee eee eee eee eee e s 7 Rowland v. Christen, (1968) 69 Cal.2d 108..........c.oomieiieietee ete eee 6 S.B.C.C,, Inc. v. St. Paul Fire & Marine Ins. Co., (2010) 186 Cal APP. Ath 383... eee eee eee eee eee eee 6 Stationers Corp. v. Dunn & Bradstreet, Inc., REE PN Fe 6,7 Versa Technology, Inc. v. Superior Court, (1978) 78 Cal APD.3A 237... eee eee eee eee eee 7 3 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF Poesy a 30 0 E. E S P L A N A D E DR IV E, SU IT E 14 00 L I F O R N I A 93 03 6 : (8 05 ) 38 8- 31 00 O X N A R D . C TE LE PH O? Oo 0 9 10 11 12 15 14 16 17 18 19 20 21 22 23 24 25 26 27 28 Statutes CIVIL Code § 3294... eee eee eee eee eee eee eee eee eee eee eee 10 CIVIl Code § 3295(A) cvvvvrioiieeeiereeeee eee eee eee eevee eee sesso eee eee eee 14 Code Civ. Proc. § 128.5(2)...c.cueuueuieeieieeieeieeeeeeeee ee eee e e eee es e e eee e e ee 14 Code Civ. Proc. § 128.5(D)(1)..ccueuuruureereniriieeieeeeeeseseeeees esos ese sees esses s eee e 14 Code Civ. Proc. § 128.5(D)(2) cu vvvurereeeeeeeeeeeeeeeeeeeeees ee e sees sesso ee eee eee 14 Code Civ. PrOC. § 437TC eco eee eee eee eee 6 Code of Civil Procedure § 128.5.............coueoeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeoeeeeoeeeeoeeeeeee 1,14 Code of Civil PrOCedure § 425.11 .uuuuceeeoeeceeeeeeeeeoeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeo 8 Code of Civil Procedure § 437C(C) .....vuvuvaeeeeeeeeeeeeeeeeeeeeeeeee e e se s 6 Code of Civil Procedure § 437¢(A) ......uvuevveeeeeeeeeeeeeeeeeeeeeeeeee e e 10 Code of Civil Procedure § 437C(P)(1)...ueuueuemeeeeeeeeeeeeeeeeeeeeee e e eee ee e s 6,7 4 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY J UDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF 50 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 ¥1A 93 03 6 10 11 12 13 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION. Plaintiff’s Motion is entirely frivolous. The Court should deny plaintiff’s Motion and impose sanctions against the plaintiff. Defendant NEWPORT BEACH AQUATIC, INC., dismissed plaintiff's son from its swim team after receiving multiple complaints that plaintiff's son had engaged in inappropriate sexual behavior towards female members of the swim club. Plaintiff - a disbarred lawyer acting in pro per - has asserted one cause of action for Intentional Infliction of Emotional Distress against defendant NEWPORT and four persons affiliated with the club. Plaintiff is seeking emotional distress damages and punitive damages. Plaintiff claims that the defendants dismissed plaintiff's son from the team - and apparently conspired with the multiple persons who complained against plaintiff's son - solely to cause the plaintiff emotional distress and to dissuade the plaintiff from pursuing complaints against the swim coach. Defendants have denied plaintiff's speculative allegations and have affirmatively asserted that plaintiff’s son was dismissed from the team solely in response to the complaints regarding plaintiff’s son’s behavior. This alone creates a triable issue of fact requiring the denial of plaintiff’s Motion. As a former attorney, plaintiff knows this. As such, it is clear that plaintiff filed his Motion - supported by 108 “facts” and 400 pages of “evidence” - in order to harass the defendants and not for any proper legal purpose. As set forth herein, plaintiff's Motion is both procedurally and substantively deficient. But what is most egregious is that just over a month ago (on April 25, 2018), this Court denied plaintiff’s Motion to conduct pretrial financial discovery. This Court sustained all of the defendants’ objections to the plaintiff's evidence. This Court even stated: “Finally, in weighing the evidence, the Court finds that Plaintiff's Declaration was not credible in many respects. It is based largely on conclusory assertions, unsupported argument, supposition about Defendant’s motives, and inadmissible hearsay. Further, Plaintiff was less than fully candid in his description of the substance of his communications with Hays, by neglecting to include the entire email thread . . . thereby calling Plaintiff’s veracity into question.” (Exhibit “A) § DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF BE AC H « C OW DR EY » J EN KI 50 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 T E L E P H O N E : (8 03 ) 38 8- 31 00 10 11 12 13 14 15 16 17 18 19 20 21 40 23 24 25 26 27 28 Despite this Court’s previous ruling, plaintiff is now asking this Court to enter summary judgment in his favor based upon the essentially the same Declaration and evidence. Plaintiff is asking the Court to do so even though the burden of proof on this Motion for Summary Judgment is significantly higher than the burden on plaintiff’s previously denied Motion to conduct pretrial financial discovery. This Court has already looked at this same evidence and concluded that plaintiff could not establish a “substantial probability” that he would prevail on his claim for punitive damages. (Exhibit “A.”) Now, based upon the same evidence, plaintiff is arguing that there are no triable issues of fact and that he is entitled to summary judgment as a matter of law. Plaintiff's Motion is frivolous. It should be denied and plaintiff should be sanctioned. II. APPLICABLE LAW FOR MOTIONS FOR SUMMARY JUDGMENT. Summary judgment may only be granted “if all of the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Code of Civil Procedure § 437c(c). All doubt as to the propriety of granting summary judgment should be resolved in favor of the party opposing the motion. Code Civ. Proc. § 437c; Rowland v. Christen (1968) 69 Cal.2d 108, 111. Summary judgment is a drastic procedure which should be used with caution so that it does not become a substitute for trial. Stationers Corp. v. Dunn & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417. If conflicting inferences may be drawn from the evidence, such evidence is insufficient to meet the moving party’s burden. Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 297. When a plaintiff seeks summary judgment, his burden is to produce competent, admissible evidence on each element of a claim entitling him to judgment. Code of Civil Procedure § 437¢(p)(1); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal. App.4th 1282, 1287; S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App.4th 383, 388. Ifa claim will require “clear and convincing evidence” at trial - such as for plaintiff's claim for punitive damages - the plaintiff must produce “clear and convincing evidence” in support of that claim in his motion for summary judgment. Basich v. Allstate Ins. Co. (2001) 87 Cal. App.4™ 1112, 1118-1121. A defendant opposing a motion for summary judgment has no evidentiary burden until and 6 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF 5 ol ha Z, Ld -- * Sm [23] © = - S * i ™ = uo Qa g =r 2 wD ol = o o w = - a vi x wd g [YY « % S oy =X = 5 = a < nd = i © = co J « “ < 3 = 3 © we ~ z eo o = = Bt = ha 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unless the plaintiff produces admissible and undisputed evidence on each element of a cause of action. Code of Civil Procedure § 437c(p)(1). If - and only if - the plaintiff has met his burden will the Court need to look at the defendants’ opposing evidence. If a single triable issue of material fact is raised, the motion for summary judgment must be denied. Versa T echnology, Inc. v. Superior Court (1978) 78 Cal.App.3d 237. The Court’s role is not to weigh or balance conflicting evidence to make a factual determination; it is only required to identify that conflicting evidence exists. Stationers Corporation, supra, 62 Cal.2d 412. Where conflicting evidence has been presented, the motion must be denied. Id. III. THE COURT MAY NOT GRANT SUMMARY ADJUDICATION IN THIS CASE AGAINST ANY SINGLE DEFENDANT. The Court may not summarily adjudicate less than the entire action unless specifically requested to do so in the moving party’s notice of motion. Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498. That is not the case here. Plaintiff has moved “for summary judgment on the Third Amended Complaint as against all defendants.” (Notice of Motion, p. 1:23-26.) In other words, plaintiff has moved for summary judgment as to all five defendants as to the entire action, i.e., both Intentional Infliction of Emotional Distress and punitive damages. As such, plaintiff's entire Motion must be denied if (1) plaintiff fails to meet his initial burden as to any claim against any defendant, or (2) there is a single triable issue of fact as to any single defendant on any claim. IV. PLAINTIFE’S MOTION MUST BE DENIED BECAUSE THE AMOUNT OF PLAINTIFE’S DAMAGES HAS NOT BEEN ESTABLISHED. In order to obtain summary judgment - or summary adjudication - the moving party must prove “each element of the cause of action entitling the party to judgment on that cause of action.” Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal. App.4™ 226, 241. As such, when damages are an element of a cause of action, a plaintiff cannot obtain summary judgment unless the amount of those damages has been established. Id. Summary judgment is improper if damages are unliquidated and the amount is in dispute or otherwise has not been established. Department of Industrial Relations v. UI Video Stores, Inc. 7 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF - Z XX Z. Ld Fry * Sa =] ox £ = re Q v * a = << Lu mM 2 = 5 br = [4 o x = = zl -« 3 De o ket wud 8 I=) 7 © ”m 2 > = Z e O X N A R D , C A T E L E P H O N E : (8 05 ) 38 8- 31 00 10 11 12 13 14 15 16 17 18 19 20 21 32 23 24 25 26 27 28 (1997) 55 Cal. App.4™ 1084, 1097. The Court may not grant summary judgment for the plaintiff as to liability and then determine the amount of damages to be awarded in a later proceeding. Id. That is exactly the case here. Plaintiff does not have a fixed amount of damages. Plaintiff is seeking (1) non-economic damages for his emotional distress, and (2) punitive damages. Neither of these categories of damages is fixed nor has any amount been established. As such, the Court cannot grant summary judgment. In fact, plaintiff has not even presented any evidence to support the amount of his damages. At most, plaintiff has presented his previously filed Statement of Damages which states that he is seeking $500,000.00 for emotional distress and $500,000.00 in punitive damages. (Motion, Exhibit “2.”) This is improper and insufficient. A Statement of Damages is not evidence. It is a pleading wherein the plaintiff puts the defendant on notice of the amount he is seeking so that the Court can award damages in the event of a default. Code of Civil Procedure § 425.11. That is obviously not the case here. Even if plaintiff's Statement of Damages stated some basis for the amount of plaintiff’s damages - which it does not - plaintiff cannot rely upon his own pleadings to make an evidentiary showing in support of his own motion for summary judgment. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4™ 704, 720, fn. 7. Neither compensatory damages nor punitive damages can be based upon speculation. Adams v. Murakami (1991) 54 Cal.3d 105, 114. In fact, an award of punitive damages must be based, inter alia, upon evidence of the defendant’s financial condition. Id. Without such evidence, punitive damages cannot be awarded. Jd. Plaintiff has not presented any evidence with respect to any of the defendant’s respective financial condition. In fact, just over a month ago, this Court denied plaintiff’s Motion for pretrial financial discovery, thereby ruling that plaintiff must prevail on his punitive damages claim at trial before he can conduct any financial discovery with respect to any of the defendants. (Exhibit “A.”) Despite that ruling, plaintiff is now asking this Court to enter summary judgment in his favor as to punitive damages even though he has no evidence as to the financial condition of any of the defendants. Sanctions should be imposed against plaintiff for the blatant frivolity of his Motion. 8 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JU DGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF 50 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 of 28 V. PLAINTIFF’S MOTION MUST BE DENIED BECAUSE AT LEAST ONE MATERIAL FACT IS NOT SUPPORTED BY THE EVIDENCE AND/OR IS DISPUTED BY THE DEFENDANTS. The separate Statement of Undisputed Material Facts should include “only material facts and not any facts that are not pertinent to the disposition of the motion.” California Rules of Court, Rule 3.1350(d)(2) (emphasis added). By including a fact in the Separate Statement, the moving party concedes the materiality of that fact. Nazir v. United Airlines, Inc. (2009) 178 Cal. App.4™ 243, 252. As such, a motion for summary judgment should be denied if any fact set forth in the Separate Statement is either (1) not supported by the moving party’s evidence, or (2) disputed by the opposing party. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252. Plaintiff has chosen to include 108 facts in his Separate Statement. As such, plaintiff has conceded that every single one of those 108 facts is material and pertinent to the disposition of his Motion. If just one of those 108 facts is disputed and/or not supported by plaintiff’s evidence, then plaintiff’s Motion must be denied. Defendants have objected to and/or disputed approximately 92 of plaintiff’s 108 facts. VI. PLAINTIFF'S MOTION MUST BE DENIED BECAUSE THERE ARF. CLEARLY TRIABLE ISSUES OF MATERIAL FACT. Plaintiff’s Motion is based upon speculation and conjecture, not undisputed facts. Defendant CROW - on behalf of defendant NEWPORT - notified plaintiff that plaintiff’s son was being dismissed from the swim team in response to multiple complaints that plaintiff’s son had engaged in inappropriate behavior of a sexual nature. Plaintiff, however, claims that the defendants (all five of them) dismissed plaintiff’s son from the swim team based upon false accusations and did so solely to cause plaintiff emotional distress and dissuade him from complaining about the swim coach. The necessary elements for Intentional Infliction of Emotional Distress are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's 9 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF BE AC H « C OW DR EY + J EN KI NS . tp TELEPHONE: (805) 38 8- 31 00 © 0 a9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 outrageous conduct. A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.” And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051. In order to prevail on a claim for punitive damages, the plaintiff must prove “by clear and convincing evidence” that the defendants (all five of them) have been guilty of oppression, fraud, or malice. Civil Code § 3294. ““Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Id. “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” Id. “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Id. Plaintiff’s “evidence” does not establish each of the necessary elements for Intentional Infliction of Emotional Distress and punitive damages against each of the defendants. In fact, the overwhelming majority of plaintiff's “evidence” is inadmissible in that it is supported solely by the Declaration of the plaintiff who has not established that he has sufficient “personal knowledge” in which to authenticate the various documents and/or attest to the various “facts.” Code of Civil Procedure § 437¢(d). Plaintiff's son was dismissed by defendant NEWPORT and defendant CROW was the individual who notified plaintiff on behalf of defendant NEWPORT. But plaintiff’s evidence does not address what (if anything) any of the other individual defendants allegedly did that would subject them to liability in this case. Plaintiff claims that his son was falsely accused of inappropriate sexual behavior. And yet, plaintiff has not even shifted the burden of proof on this preliminary fact by submitting any competent admissible evidence that the accusations against plaintiff's son were actually false. For example, plaintiff could have had his son sign a Declaration stating that he did not do the things he has been accused of. Plaintiff did not do so. 10 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF a N N n v RA W N 0 10 I 12 z 13 15 Mt j= 2 foe 16 50 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 17 18 19 20 21 22 23 24 25 26 27 28 Even if the Court finds that plaintiff has submitted enough evidence to shift the burden to the defendants, the defendants have clearly raised triable issues of fact in this case. Just like their Opposition to plaintiff's Motion to conduct pretrial financial discovery, defendants’ Opposition to plaintiff's Motion for Summary Judgment is supported by the Declaration of defendant CROW who has attested to the following: In or around November 2014, defendant NEWPORT was advised that a minor-age female swimmer had accused plaintiff's son of harassing her at a swim meet and lying down on her and refusing to get off. (Exhibit “B,” 5.) A minor-age male swimmer saw what was happening and pushed plaintiff's son off of the minor-age female swimmer. (/d.) Ata swim meet the following day, defendant NEWPORT was advised that plaintiff had shoved the minor-age female swimmer. (Id., 9 6.) After the swim meet, defendant NEWPORT received a text message from the minor- age female swimmer which stated: “[plaintiff’s son] is out of control ... He is laying on me and other people had to get him off of me ... And he can’t keep his hands to himself.” (ld.,97) In response to these complaints, swim coach Trevor Basil spoke to plaintiff's son about his inappropriate behavior and about keeping his hands off of other swimmers. (d., 98.) On November 3, 2014, Mr. Basil and former swim coach Jim Dietrich held a team meeting to reiterate the appropriate boundaries between male and female swimmers. (Exhibit “B,” 99.) Nevertheless, several days later, defendant NEWPORT received a letter from the minor-age female swimmer’s father regarding plaintiffs son’s inappropriate behavior and stating that his daughter had been talking with another swimmer at a swim meet when plaintiff’s son came up to her and put his face uncomfortably close to hers. (Jd, 10.) The letter indicated that the female swimmer had to ask plaintiff's son to “back up” several times before he finally complied. (Id.) The letter stated that she walked away and sat down in a chair to continue her conversation with the other swimmer when plaintiff's son again approached her, this time sitting down on the female swimmer’s lap. (/d.) The letter stated that the female swimmer told plaintiff’s son to get off of her, but he refused. (/d.) The letter stated that she then tried to push him off of her. (/d.) The letter stated that another swimmer had to come to her aid and eventually pushed plaintiff’s son off of her. (Id) The letter stated that, at a swim meet the following day, plaintiff’s son’s 11 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF O R N I A 93 03 6 E DR IV E, SU IT E 14 00 TE LE PH ON E: (8 05 ) 38 8- 31 00 50 0 E. E S P L A N O X N A R 10 11 12 13 14 19 16 17 18 19 20 21 22 23 24 ow) 26 27 28 inappropriate behavior continued. (/d.) The letter stated that, while the minor-age female swimmer was receiving her lane assignment for the race, plaintiff's son came up behind her and pushed her out of the way. (/d.) In the letter, the minor-age female swimmer’s father expressed concern that a person of plaintiff's son age should know not to touch other people, let alone a young woman, without permission. (Exhibit “B,” 11.) In a November 13, 2014 e-mail that was sent to defendant CROW on behalf of defendant NEWPORT, another swim club parent voiced her concerns regarding plaintiff’s son’s sexually inappropriate behavior towards minor-age female swimmers, stating: “our girls need to be protected from sexual and verbal harassment.” (Exhibit “B,” 912) Former swim coach Trevor Basil also advised defendant NEWPORT that other minor-age female swimmers in the swim club had also complained about plaintiffs son’s conduct, including inappropriate and unwelcome touching and sexually suggestive comments made by plaintiff's son towards minor-age female swimmers. (Exhibit “B,” 13.) Defendant CROW’s Declaration affirmatively states that defendant NEWPORT terminated plaintiff’s son’s membership in response to multiple complaints (from minor-age female swimmers, their parents, and by the coaching staff) that plaintiff's son had engaged in sexually inappropriate behavior. (Exhibit “B,” § 14.) Plaintiff's son’s membership was terminated solely to protect the swim club and its members and not for any other purpose, such as to cause plaintiff to suffer emotional distress. (Exhibit “B,” 9 15.) As such, there are clearly triable issues of material fact with respect to both Intentional Infliction of Emotional Distress and punitive damages as against each defendant. It should also be noted that plaintiff has affirmatively misrepresented some of the evidence. For example, plaintiff contends that Newport Harbor High School and the Newport Beach Police Department investigated the claims of sexual harassment against plaintiff’s son and determined that none of the female swimmers had made any complaints. (Plaintiff's Separate Statement, Nos. 61-63.) In support of this contention, plaintiff attaches an e-mail that he sent to assistant principal Jennifer Hays on November 20, 2014, purporting to summarize a telephone conversation they had. (/d.) But plaintiff failed to include Ms. Hays’ response where she disputed plaintiffs summary of 12 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF hte 50 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 TE LE PH ON E: (8 05 ) 38 8- 31 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 their telephone call. (Exhibit “C.”) Ms. Hays specifically clarified that the school’s investigation revealed that the girls did not feel threatened at school during school hours, but that the swim club is a separate entity and any allegations regarding the swim club were to be handled by the swim club. (/d.) What makes this even worse is that plaintiff did this exact same thing in his Motion to conduct pretrial financial discovery. (Exhibit “A.”) Plaintiff made the exact same misrepresentations regarding his communications with Ms. Hays. (/d.) Plaintiff failed to disclose Ms. Hays’ responsive email to the Court. (Id.) The Court specifically admonished the plaintiff and called “Plaintiff's veracity into question.” (Id.) And yet, plaintiff has done the exact same thing again in his Motion for Summary Judgment. Plaintiff contends that defendants’ alleged failure to respond when he requested information regarding the accusations against his son somehow constitutes an admission of guilt. (Plaintiff's Separate Statement, No. 83.) Contrary to plaintiff's contention, plaintiff’s own evidence establishes that defendant NEWPORT responded to plaintiff's email and addressed plaintiff's son’s termination from the swim club and provided plaintiff with additional information regarding his son’s inappropriate behavior. (Exhibit “17.”) Even if defendants had not responded, that would certainly not constitute an undisputed admission of guilt and certainly not as to each. Defendants are confident that - should this matter go to trial - they will prove that plaintiff's son engaged in inappropriate behavior and that defendant NEWPORT was 100% Justified in dismissing plaintiff's son from the team. But that is actually irrelevant for the purposes of this Motion. For this Motion, the burden is on the plaintiff to establish - via undisputed facts - that each of the defendants were complicit in dismissing plaintiffs son from the team solely to cause plaintiff emotional distress -i.e., not for any legitimate purpose - and that each defendant acted maliciously in doing so. Plaintiff has not come close to meeting this standard. Putting aside the truth of what was reported by the female swimmers and their parents - which defendants have no reason to doubt - the fact of the matter is that the allegations were made to defendant NEWPORT and this was the reason plaintiff’s son was dismissed from the team. At the very least, there are triable issues of fact with respect to this matter. 13 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF lok ‘E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 T E L E P H O N E : {8 05 3 50 0 E. E S P L A N A D E D 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. SANCTIONS SHOULD BE IMPOSED AGAINST PLAINTIFF. The Court may impose sanctions against a party requiring him “to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Code Civ. Proc. § 128.5(a). “Actions or tactics” include “the making or opposing of motions.” Code Civ. Proc. § 128.5(b)(1). “Frivolous” is defined as “totally and completely without merit or for the sole purpose of harassing an opposing party.” Code Civ. Proc. § 128.5(b)(2). A motion will be considered frivolous and in bad faith where “any reasonable lawyer would agree it is totally devoid of merit,” i.e., lacking a proper basis in statutory or case law or lacking in supporting evidence. Karwasky v. Zachay ( 1983) 146 Cal.App.3d 679, 681. For example, in Monex Int'l, Ltd. V. Peinado (1990) 224 Cal.App.3d 1619, the trial court imposed sanctions pursuant to Code of Civil Procedure § 128.5 against a party who had moved for summary judgment on the basis of “undisputed facts” even though the facts were clearly in dispute. The Court of Appeal affirmed finding that “[t]he award was well-grounded and we find no abuse of the broad discretion allotted to the trial court.” Jd., at p. 1626. Here, plaintiff has filed a Motion for Summary Judgment even though there are clearly triable issues of fact. Plaintiff knew that there were triable issues of fact based upon, inter alia, defendants’ discovery responses and defendants’ Opposition to plaintiff's Motion to conduct pretrial financial discovery. Plaintiff's “evidence” is almost entirely inadmissible in that it is supported solely by plaintiff's own Declaration even though plaintiff lacks sufficient personal knowledge to authenticate most of the documents and/or attest to most of the stated facts. Plaintiff has misrepresented “evidence” by introducing his own self-serving emails and not informing the Court of the recipient’s response. Plaintiff is seeking summary judgment even though he has not established the amount of his damages. What is most egregious, however, is that just over a month ago (on April 25, 2018) this Court denied the plaintiff’s Motion to conduct pretrial discovery. (Exhibit “A.”) In order to prevail on a Motion to conduct pretrial discovery, the plaintiff must present evidence establishing “a substantial probability” he will prevail on his claim for punitive damages. Civil Code § 14 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF CO WD RE Y » J EN KI NS , Lp * B E A C H 7 TE LE PH ON E: (8 03 ) 38 8- 31 60 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3295(d). A “substantial probability” means it is “very likely” or there is a “strong likelihood” plaintiff will prevail. I-CA Enterprises v. Palram Americas, Inc. (2015) 235 Cal. App.4™ 257, 283. This Court denied plaintiff’s Motion to conduct pretrial financial discovery. (Exhibit “A.”) This Court sustained all of the defendants’ objections to the plaintiffs evidence. (/d.) This Court found that plaintiff's Declaration was “not credible in many respects,” was “based largely upon conclusory assertions, unsupported argument, supposition about Defendant’s motives, and inadmissible hearsay.” (/d.) This Court specifically called “Plaintiff's veracity into question.” (Id.) This Court concluded that plaintiff had not established a “substantial probability” that he would prevail on his punitive damages claim. (/d.) Despite that ruling from just over a month ago, plaintiff is now proceeding with a Motion for Summary Judgment based upon the essentially the same Declaration and evidence. Plaintiff has not cured any of the numerous evidentiary deficiencies that existed with respect to his Motion to conduct pretrial financial discovery. Plaintiff is proceeding with his Motion for Summary Judgment based upon the same Declaration and evidence that was used in support of plaintiff’s Motion to conduct pretrial financial discovery even though the plaintiff's legal and evidentiary burden on his Motion for Summary Judgment are much hi gher than on plaintiff's recently denied Motion to conduct pretrial financial discovery. Plaintiff may be in pro per, but he is a former attorney. He should know the law. He should know the legal and evidentiary standards required for a Motion for Summary Judgment. Plaintiff's Motion for Summary Judgment would be frivolous even if his Motion to conduct pretrial financial discovery had not recently been denied. But the fact that plaintiff is proceeding with his Motion for Summary Judgment, on the same evidence and arguments as his Motion to conduct pretrial financial discovery, just over a month after this Court admonished the plaintiff and denied his Motion to conduct pretrial financial discovery, makes the plaintiffs conduct here especially egregious. As set forth in the attached Declaration of Darryl Hottinger, defendants request that this Court impose sanctions against plaintiff in the amount of $5,670.00. \W 15 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF iy 50 0 E. E S P L A N A D E DR IV E, SU IT E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 T E L E P H O N E : (8 05 ) 38 8- 31 00 ~N AN oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VIII. CONCLUSION. For all of the foregoing reasons, defendants respectfully request that plaintiff's Motion for Summary Judgment be denied and that sanctions be imposed against plaintiff GREGORY BURKE in the amount of $5,670.00. Dated: May 21, 2018 BEACH ¢+ COWDREY ¢ JENKINS, LLP A #7 “i FF me \ ~~ pd Cone io Thomas E. Beach Darryl C. Hottinger Michael H. Brody Attorneys for Defendants, NEWPORT BEACH AQUATICS, INC., THOMAS N. ROBINSON, DEAN CROW, JOHN DOBROTT, and JAMES FOWLER 16 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF Be ac H « C OW DR EY + J E 50 0 E. E S P L A N A D E DR IV E, S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 T E L E P H O N E : (8 05 ) 38 8- 31 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DARRYL C. HOTTINGER I, Darryl C. Hottinger, declare: 1. I am an attorney duly licensed to practice law before all courts of the State of California and I am a partner with Beach Cowdrey Jenkins, LLP, attorneys of record for defendants, NEWPORT BEACH AQUATICS, INC.; THOMAS N. ROBINSON; DEAN CROW; JOHN DOBROTT; and JAMES FOWLER in the above-referenced action. I am familiar with the facts of this case and, if called as a witness, I could and would competently testify to the matters set forth in this declaration based upon my own personal knowledge. 2. Attached hereto as Exhibit “A” is a true and correct copy of the Court’s Minute Order, dated April 25, 2018, denying plaintiff's Motion for an Order allowing plaintiff to conduct pretrial financial discovery. 3; Attached hereto as Exhibit “B” is a true and correct copy of the Declaration of defendant DEAN CROW that was submitted in support of defendants’ Opposition to plaintiff's Motion for an Order allowing plaintiff to conduct pretrial financial discovery. 4. Attached hereto as Exhibit “C” is a true and correct copy of an e-mail produced by plaintiff in response to discovery as part of discovery in this case, purportedly from Jennifer Hays, dated November 20, 2014. 3. To date, defendants have produced over 200 pages of documents in response to plaintiff’s written discovery requests. 6. I have spent approximately 20 hours opposing plaintiff's Motion for Summary Judgment, including (1) reviewing plaintiff's Motion, (2) reviewing plaintiff's Separate Statement, (3) reviewing plaintiff’s approximately 400 pages of supporting evidence, (4) preparing memorandum of points and authorities in Opposition to plaintiff's Motion, (5) preparing objections to plaintiff’s evidence, and (6) responding to plaintiff’s 106 separate “facts.” 7. I anticipate that I will spend approximately one hour reviewing plaintiff's Reply papers and preparing for the hearing on this matter. I anticipate that I will spend approximately six hours attending the hearing on this matter, including travel time to and from the courthouse. 17 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF ls 50 0 E. E S P L A N A D E D R I V E , S U I T E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 T E L E P H O N E : (8 05 ) 38 8- 31 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. My billing rate for this particular file is $210.00 per hour. As such, for an anticipated 27 hours of work opposing plaintiff's Motion for Summary Judgment, I anticipate that the attorney’s fees incurred on this matter are approximately $5,670.00. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 21st day of May, 2018, in Oxnard, California. rT py So : re SF - § ~~ <5 7 hg, ye SF lf : A pen - 7 far Darryl C. Hottinger 18 DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF EXHIBIT “A” SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER MINUTE ORDER DATE: 04/25/2018 TIME: 09:46:00 AM DEPT: C34 JUDICIAL OFFICER PRESIDING: Martha K. Gooding CLERK: Delia Sanchez REPORTER/ERM: None BAILIFF/COURT ATTENDANT: CASE NO: 30-2016-00882380-CU-PO-CJC CASE INIT.DATE: 10/20/2016 CASE TITLE: Burke vs. Basil CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Other EVENT ID/DOCUMENT ID: 72800504 EVENT TYPE: Under Submission Ruling APPEARANCES There are no appearances by any party. The Court, having taken the above-entitled matter under submission on 4/23/18 and having fully eensidered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: The Motion by Plaintiff Gregory Burke for an order allowing pretrial discovery of Defendants’ financial condition is DENIED. The 04/10/18 objections of Defendants Newport Beach Aquatics, Inc., Thomas N. Robinson, Dean Suh on Dobrott, and James Fowler (collectively, “Defendants”) to the Burke Declaration are u NED. Plaintiff's request to strike the opposition papers on the grounds that they were e-served without an agreement for electronic service is DENIED. Even if Plaintiff is correct that there is no proper agreement to accept electronic service, Plaintiff received the opposition and responded to it on the merits; thus, any service defect is waived. Plaintiff has not been prejudiced by any defect. Plaintiff belatedly filed written Objections to the evidence contained in the Declaration of Dean Crow, advising the Court that he forgot to file them earlier. The Court rules on the objections as follows: The Court overrules Objections 1 and 10; it sustains the remainder of the objections on grounds of foundation/lack of personal knowledge. General Law DATE: 04/25/2018 MINUTE ORDER Page 1 DEPT: C34 Calendar No. CASE TITLE: Burke vs. Basil CASE NO: 30-2016-00882380-CU-PO-CJC “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) Generally, a plaintiff is not allowed to take pretrial discovery regarding either the defendant's financial condition or any profits the defendant has gained by wrongful conduct. (Civ. Code, § 3295, subd. (c).) The court, however, may permit such discovery at any time “lu]pon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, ... if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.” (Civ. Code, § 3295, subd. (c).) “ “In this context, a “substantial probability” of prevailing on a claim for punitive damages means that it is “very likely” that the plaintiff will prevail on such a claim or there is a * ‘strong likelihood’ ” that the plaintiff will prevail on such a claim.’ ” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283.) Accordingly, “before a court may enter an order permitting discovery of a defendant's financial condition, it must (1) weigh the evidence submitted in favor of and in opposition to [a] motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages.” (Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758.) Civil Code Section 3295 “was enacted ... to protect against the premature disclosure of a defendant's financial condition when punitive damages are sought.” (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777.) Subdivision (c) of the statute “concerns a defendant's right to privacy and protection from being forced to settle unmeritorious lawsuits in order to protect this right. It is a discovery statute and does not implicate the traditional factfinding process.... Indeed, section 3295(c) expressly states that an order thereunder ‘shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.” (Guardado v. Superior Court (2008) 163 Cal.App.4th 91, 98 [internal quotes and citations omitted].) Discussion The crux of Plaintiffs punitive damages claim is Defendants’ allegedly false accusation of sexual misconduct by Plaintiff's son, Griffin. (TAC 19.) Plaintiff claims that the evidence supports a finding of malice or oppression. (Motion p. 4:10.) In weighing the competent, admissible evidence presented by the parties, the Court finds that Plaintiff has failed to show that it is very likely that he will prevail on his claim for punitive damages; i.e., Plaintiff has not shown that it is very likely he will prevail on his claim that Defendants acted with malice or oppression. “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294, subd. (€)(2).) DATE: 04/25/2018 MINUTE ORDER Page 2 DEPT: C34 Calendar No. CASE TITLE: Burke vs. Basil CASE NO: 30-2016-00882380-CU-PO-CJC “Despicable conduct” is conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Although Plaintiff sets forth a number of allegations in the motion, the relevant, admissible evidence regarding Plaintiff's punitive damages claim is as follows: - On 07/12/14 Plaintiff complained to Coach Basil about bullying and Basil's behavior that Plaintiff believed was inappropriate (02/15/18 Burke Decl. 2.) - On 07/14/14 Basil emailed Plaintiff to set up a meeting with the Board of Defendant Newport Aquatics to discuss Plaintiff's “concerns.” (02/15/18 Burke Decl. Exh. 3.) - On 07/16/14 Basil emailed then-swim coach Jim Dietrich and Defendant Fowler. In the email, Basil accused Plaintiff of having “engaged in extremely aggressive rhetoric with [him] on deck in front of athletes, parents, officials and colleagues, accusing [him] of singling his son, Griffin, out and not paying enough attention to him.” Basil stated Plaintiff “mustered something of a slap/shove/ to [his] shoulder.” Basil continued in the email to complain about Plaintiff and Griffin, suggesting that Griffin be dismissed from the swim club. (02/15/18 Burke Decl. Exh. 4) - In August 2014 Basil was promoted to head coach. (02/15/18 Burke Decl. 15.) - On 11/14/14 at 9:51 a.m., Plaintiff emailed Basil. Plaintiff stated that Sarah Henry, who appears to be Griffin's former girlfriend, “is currently harassing Griffin to the point it is becoming a distraction for him,” and asked Basil to address the matter internally. Plaintiff stated: “Sarah has continually harasses Griffin; and he just learned that she has told other teammates that she intends to do whatever it takes to get Griffin kicked off the team by making false accusations. She is actively trying to turn the other female swimmers against Griffin.” Plaintiff also asked Basil to inform Sarah’s parent, Chris Henry, that “her screaming at [Plaintiff] on the pool deck in front of the swimmers about timing is unacceptable and a violation of the code of conduct.” (02/15/18 Burke Decl. Exh. 2.) - On the same day, 11/14/14, at 6:31 p.m., an email was sent to Plaintiff, with an attached letter from Plaintiff Crow informing Plaintiff that Griffin's membership in Newport Aquatics was terminated, effectively immediately, “due to Griffin Burke's conduct during recent swim meets in violation of Article 304.3.8.A-D of the USA Swimming Code of Conduct and the Newport Beach Aquatics Code of Conduct.” (02/15/18 Burke Decl. Exh. 1.) - On 11/20/14 Plaintiff spoke with Defendant Robinson and “informed him that no misconduct of any kind occurred during the recent swim meets.” Plaintiff had attended the only two swim meet in the fall of 2014 and did not witness Griffin have any inappropriate interaction with female swimmers. (02/15/18 Burke Decl. {[ 7; 04/16/18 Burke Decl. § 6, 7, 9, 11.) - On 11/20/14 at 7:20 a.m., an email was sent to Plaintiff, with an attached letter dated 11/8/14 from Plaintiff Crow responding to Plaintiff's emails. With respect to Griffin’s termination from the swim club, Crow stated there were “numerous reports from the coaching staff and multiple members of the swim team regarding a number incidents where Griffin behaved or addressed various female members of the swim team inappropriately or in a sexually suggestive manner, including making inappropriate or sexually suggestive comments, touching them inappropriately without their consent, swimming under DATE: 04/25/2018 MINUTE ORDER Page 3 DEPT: C34 Calendar No. CASE TITLE: Burke vs. Basil CASE NO: 30-2016-00882380-CU-PO-CJC them in a voyeurish manner, sitting on or laying on top of them and refusing to move despite demands that he do so, to the point that Griffin had to pulled off the girls by male teammates, and the like.... [T]he facts presented an exceptional situation where in order to protect the health, safety, and well-being of female swimmers on the team, it became necessary to terminate Griffin from Newport Beach Aquatics, effective immediately.” (02/15/18 Burke Decl. Exh. 7) - On 11/20/14 at 8:26 a.m. Plaintiff emailed Defendants Dobrott and Robinson asking for “an explanation as to why we were never notified of these numerous reports as his parents if his behavior was apparently so serious to warrant immediate exulsion to protect the health, safety and well-bring of female swimmers.” But Defendants never responded. (02/15/18 Burke Decl., 1 10, Exh. 9.) - On 11/20/14 at 2:09 p.m., Plaintiff emailed Jennifer Hays, assistant principal at Newport Harbor, stating: “To memorialize our conversation, the girls interviewed confirmed they never felt sexually harassed nor made any such complaint and Griff is cleared of any wrongdoing.” (02/15/18 Burke Decl. Exh. 8.) - On the same day, 11/20/14 at 3;13 p.m., Hayes responded to Plaintiff by email, stating: “To clarify as per our conversation [{]] 1. The girls did not feel threatened at school during school hours. [1] 2. The club allegations are handled by the club. The club is a separate entity.” (04/10/18 Brody Decl. Exh. A.) In weighing the evidence, the Court finds that it is not likely, let alone very likely, that Plaintiff will be able to show Defendants acted with malice or oppression in terminating Griffin's membership from the swim club. The alleged despicable conduct here is the purportedly false claim of sexual misconduct relied upon by Defendants to terminate Griffin Burke's swim club membership. The facts recited above fall short of establishing that Griffin did not engage in sexual misconduct; that no one complained to Defendants of Griffin's alleged sexual misconduct; or that Defendants consciously disregarded Griffin's rights by believing the accusations of sexual misconduct made against Griffin. Plaintiff relies heavily on Defendants’ failure to respond to Plaintiff's questions for more information about the accusations. According to Plaintiff, Defendants’ silence constitutes an adoptive admission that Plaintiff's claims are true. The Court disagrees. An adoptive admission is a “one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.) A trier of fact “may” consider such a statement if, inter alia, the party against whom the statement is offered ‘would, peer a the circumstances, naturally have denied the statement if [he/she] thought it was not true.” (CACI 213) Under the circumstances here - and even assuming Defendants did not respond to Plaintiff's requests or demands for more information - the Court declines to consider Defendants’ lack of response as an adoptive admission of any of Plaintiff's statements made to them. It appears that as early as July 2014 both Plaintiff and Griffin were experiencing conflicts with individuals-coaches, parents, and underage swimmers-concerning Griffin's participation in swimming. Plaintiffs email address used to communicate with Defendants also signals that Plaintiff was connected in some manner with the legal field. It is not unreasonable, under the circumstances, for Defendants to decline to provide Plaintiff with information, which may escalate into legal action or implicate the privacy interests of other underage swim club members. DATE: 04/25/2018 MINUTE ORDER Page 4 DEPT: C34 Calendar No. CASE TITLE: Burke vs. Basil CASE NO: 30-2016-00882380-CU-PO-CJC Plaintiff also points to the absence of evidence on Defendants’ side to refute Plaintiff's allegations. Plaintiff has the burden of producing evidence to support this motion, not Defendants. “In the absence of evidence justifying an alteration in the normal allocation of the burden of proof, the rule in California is that a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. ... In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact.” (Sander/Moses Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086, 1095 [internal quotes and citations omitted]; see also Evid. Code, § 500.) “ * “On rare occasions, the courts have altered the normal allocation of the burden of proof.”... But the exceptions are few, and narrow." ” (Id. at p. 1097.) Here, Plaintiff has not identified any exception to this general rule or offered any legal argument to persuade the Court that the burden should shift to Defendants. Nor does it appear that consideration of the above factors would justify shifting the burden. For example: With respect to the first and second factors, Plaintiff and Defendants are on a level playing field. Neither have personal knowledge of whether Griffin engaged in such conduct during the entire relevant time period. And Plaintiff presumably could have offered -but did not-a declaration from his son specifically denying all accusations. As to the third factor, there is no apparent public policy with respect to claims of intentional infliction of emotional distress that would justify shifting the burden onto Defendants. Finally, in weighing the evidence, the Court finds that Plaintiffs declaration is not credible in many respects. It is based largely on conclusory assertions, unsupported argument, supposition about Defendant's motives, and inadmissible hearsay. Further, Plaintiff was less than fully candid in his description of the substance of his communications with Hays, by neglecting to include the entire email thread (Compare 02/15/18 Burke Decl. Exh. 8 with 04/10/18 Brody Decl. Exh. A)-thereby calling Plaintiff's veracity into question. Court Clerk shall give notice. DATE: 04/25/2018 MINUTE ORDER Page 5 DEPT: C34 Calendar No. SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE Central Justice Center 700 W. Civic Center Drive Santa Ana, CA 92702 SHORT TITLE: Burke vs. Basil CLERK'S CERTIFICATE OF MAILING/ELECTRONIC CASE NUMBER: SERVICE 30-2016-00882380-CU-PO-CJC I certify that I am not a party to this cause. I certify that a true copy of the above Minute Order dated 04/25/18 has been placed for collection and mailing so as to cause it to be mailed in a sealed envelope with postage fully prepaid pursuant to standard court practice and addressed as indicated below. This certification occurred at Santa Ana, California on 4/26/18. Following standard court practice the mailing will occur at Sacramento, California on 4/27/18. GREGORY BURKE 120 TUSTIN AVENUE C1016 NEWPORT BEACH, CA 92663 Clerk of the Court, by: Dbsrcha, Deputy I certify that T am not a party to this cause. I certify that the following document(s), Minute Order dated 04/25/1 8, have been transmitted electronically by Orange County Superior Court at Santa Ana, CA. The transmission originated from Orange County Superior Court email address on April 26, 2018, at 10:01:37 AM PDT. The electronically transmitted document(s) is in accordance with rule 2.251 of the California Rules of Court, addressed as shown above. The list of electronically served recipients are listed below: BEACH COWDREY JENKINS LLP BERMAN BERMAN BERMAN SCHNEIDER & MAIL@BEACHCOWDREY.COM LOWARY, LLP MMOORE@B3LAW.COM GREGORY BURKE GBURKE@CGAVENTURES.COM Clerk of the Court, by: Ddorche, Deputy CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE V3 1013a (June 2004) Code of Civ. Procedure , § CCP1013(a) EXHIBIT “B” Br ea cH + C O W D R E Y + J EN KI NS , 11» 50 0° ; E S P L A N A D E DR IV E, S UI TE 1 40 0 TE LE PH ON E: (8 05 )3 88 -3 10 0 OX NA RD ; CA LI FO RN IA 8 30 36 w i A W N Oo o o N N ON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEACH + COWDREY + JENKINS, Lp 500 E, ESPLANADE DRIVE, SUITE 1400 OXNARD, CALIFORNIA 93038 TELEPHONE: (805) 388-3100 FACSIMILE; (805)-388-3414. Thomas E. Beach - State Bar No. 096321 Michael H. Brody - State Bar No. 238757 mail@beachcowdrey.com Attorneys for Defendants, NEWPORT BEACH AQUATICS, INC., THOMAS N. ROBINSON, DEAN CROW, JOHN DOBROTT and JAMES FOWLER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL DISTRICT - SANTA ANA GREGORY BURKE, Case No. 30-2016-00882380-CU-PO-CIC Complaint Filed 10/20/2016 Plaintiff, First Appearance Fee Paid 01/09/2017 V. Hon. Martha K. Gooding Dept. C34 NEWPORT BEACH AQUATICS, INC., A Trial Date: Not Set CALIFORNIA CORPORATION; THOMAS N. ROBINSON, AN INDIVIDUAL; DEAN DECLARATION OF DEFENDANT DEAN CROW, AN INDIVIDUAL; JAMES CROW IN SUPPORT OF DEFENDANTS’ FOWLER, AN INDIVIDUAL; JOHN OPPOSITION TO PLAINTIFF’S DOBROTT, AN INDIVIDUAL; AND DOES MOTION FOR AN ORDER ALLOWING 1-20, PRE-TRIAL FINANCIAL DISCOVERY ON PUNITIVE DAMAGES Defendants. Reservation No. 72755344 Date: April 23,2018 Time: 1:30 p.m. Dept.: C34 I, Dean Crow, declare as follows: 1. I am over the age of 18 and I am a Board member of defendant Newport Beach Aquatics, Inc. Thave been a Board member since September 2015. Prior to that, I was the Director of Operations from August 2014 through August 2015. I have personal knowledge of the facts contained in this declaration and, if called upon to testify, I could and would competently do so with respect to the contents of this declaration. 2, As the Director of Operations for Newport Beach Aquatics, Inc. I oversaw the day 1 DECLARATION OF DEFENDANT DEAN CROW IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR ORDER ALLOWING PRE-TRIAL FINANCIAL DISCOVERY ON PUNITIVE DAMAGES 50 0° E; E S P L A N A D E DR IV E, S UI TE 1 40 0 OX NA RD , CA LI FO RN IA 93 03 6 TE LE PH ON E (805 ) 3 68- 410 0 SH WwW © 00 9 O&O Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to day operations of the swim club, scheduling and planning, and was the point of contact for coaching staff, members and parents. 3. In addition to my role with Newport Beach Aquatics, Inc., I was also the principal at Tustin Middle School. As the principal, and as an educator of children, my primary focus will always be the safety and well-being of young adults. 4. I am familiar with plaintiff, Gregory Burke, and his son, Griffin Burke. 5. In or around November 2014, Newport Beach Aquatics, Inc. was advised that a minor-age female swimmer had accused Griffin Burke of harassing her at a swim meet and lying down on her and refusing to get off. A minor-age male swimmer saw what was happening and pushed Griffin Burke off of the minor-age female swimmer. 6. At a swim meet the following day, Newport Beach Aquatics, Inc. was advised that Griffin Burke had shoved the minor-age female swimmer. 7. After the swim meet, Newport Beach Aquatics, Inc. received a text message from the minor-age female swimmer in the swim club. In the text message, the minor-age female swimmer stated, “[g]riffin is out of control ... He is laying on me and other people had to get him off of me ... And he can’t keep his hands to himself.” 8. As a result of Griffin Burke’s conduct, former defendant and Newport Beach Aquatics, Inc. swim coach Trevor Basil spoke to Griffin directly about his inappropriate behavior and about keeping his hands off of other swimmers. 9. On November 3, 2014, Mr. Basil and former Newport Beach Aquatics, Inc. swim coach Jim Dietrich held a team meeting to reiterate the appropriate boundaries between male and female swimmers. 10. Several days later, Newport Beach Aquatics, Inc. received a letter from the minor- age female swimmer’s father regarding Griffin’s Burke’s inappropriate behavior, stating that his daughter had been talking with another swimmer at a swim meet when Griffin came up to her and put his face uncomfortably close to hers. She had to ask Griffin Burke to “back up” several times before he finally complied. She walked away and sat down in a chair to continue her conversation with the other swimmer when Griffin again approached her, this time sitting down on the female 2 DECLARATION OF DEFENDANT DEAN CROW IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR ORDER ALLOWING PRE-TRIAL FINANCIAL DISCOVERY ON PUNITIVE DAMAGES Be ac H » C O W D R E Y + J EN KI NS , Lip 50 0' E; E SP LA NA DE D RI VE , SU IT E 14 00 OX NA RD ; CA LI FO RN IA : 93 03 6 TE LE PH ON E: ( 505 ) 3 84° 310 0 Oo 0 9 O N wn RA W N N O N N N ND O N = em em ed e a em p m p d e d pe swimmer’s lap. She told Griffin to get off of her, but he refused. She then tried to push him off of her. Another swimmer had to come to her aid and eventually pushed Griffin off of the female swimmer. Ata swim meet the following day, Griffin’s inappropriate behavior continued. While the minor-age female swimmer was receiving her lane assignment for the race, Griffin Burke came up behind the female swimmer and pushed her out of the way. 11. The minor-age female swimmers father expressed concern that a man of Griffin Burke’s age should know not to touch other people, let alone a young woman, without permission. 12. On November 13, 2014, I received an e-mail from another swim club parent voicing her concerns regarding Griffin Burke's sexually inappropriate behavior towards minor-age female swimmers, stating, “our girls need to be protected from sexual and verbal harassment.” 13. Former swim coach Trevor Basil advised Newport Beach Aquatics, Inc. that other minor-age female swimmers in the swim club had also complained about Griffin Burke's conduct, including inappropriate and unwelcome touching and sexually suggestive comments made by Griffin towards minor-age female swimmers. 14. Based on multiple allegations of sexually inappropriate conduct by Griffin Burke as reported to Newport Beach Aquatics, Inc. by minor-age female swimmers, their parents, and by coaching staff, Newport Beach Aquatics, Inc. terminated Griffin Burke’s membership in the swim club on November 14, 2014. 15. Griffin Burke’s membership was terminated in order to protect the swim club and its members and for no other purpose. 16. At the time plaintiff's son’s membership was terminated, plaintiff did not have any complaints against Newport Beach Aquatics, Inc. or its staff, including former defendant Trevor Basil. 17. In aletter to plaintiff, dated November 18, 2014, I addressed plaintiff’s son’s termination from the swim club and provided him additional information regarding his son’s inappropriate behavior. I expressly disputed plaintiff's contention that his son was terminated in retaliation for complaints about Newport Beach Aquatics, Inc. and reiterated to plaintiff that the club’s sole motivation in terminating plaintiffs son’s membership was to protect the swimmers in 3 DECLARATION OF DEFENDANT DEAN CROW IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR ORDER ALLOWING PRE-TRIAL FINANCIAL DISCOVERY ON PUNITIVE DAMAGES Be ck « C o w D R E Y + J EN KI NS , Lp L T P E ~ N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the club. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 10th day of April, 2018, at Orange s California. Deane (Crow Dean Crow 4 DECLARATION OF DEFENDANT DEAN CROW IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR ORDER ALLOWING PRE-TRIAL FINANCIAL DISCOVERY ON PUNITIVE DAMAGES BE AC H + C O W D R E Y + J EN KI NS , ip 50 0 E. ES PL AN AD E DR IV E, SU IT E 14 00 O X N A R D , C A L I F O R N I A 93 03 6 T E L E P H O N E : (8 05 ) 38 8- 31 00 Oo 0 9 O Y Rx W N e m B O N N N N N N = m e em o e m em p m em p n 8 3 8 UO R B R N N B x 3 5 0 5 0 5 8 2 = PROOF F SERVICE STATE OF CALIFORNIA, COUNTY OF VENTURA I am employed in the County of Oxnard, State of California. I am over the age of 18 and not a party to the within action. My business address is 500 E. Esplanade Drive, Suite 1400, Oxnard, California 93036. On April 10, 2018, I served the foregoing document(s) described as: DECLARATION OF DEFENDANT DEAN CROW IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR AN ORDER ALLOWING PRE-TRIAL FINANCIAL DISCOVERY ON PUNITIVE DAMAGES on the interested parties in this action, by placing [J the original XJ a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST [J (BY FIRST CLASS MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Oxnard, California. Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. O BY FACSIMILE TRANSMISSION) I transmitted from a facsimile transmission machine in Oxnard, California, whose telephone number is (916) 333-5743, the above-named document to the interested parties herein whose facsimile transmission telephone numbers are included in the attached Service List. The above-described transmission was reported as complete without error by a transmission report issued by the facsimile transmission machine upon which the said transmission was made immediately following the transmission. A true and correct copy of the said transmission report is attached hereto and incorporated herein by this reference. O (BY OVERNIGHT CARRIER) I placed the above-named document in an envelope or package designated by [GoldenState Overnight/UPS/Federal Express/Overnite Express] (“express service carrier”) addressed to the parties listed on the service list herein, and caused such envelope with delivery fees paid or provided for to be deposited in a box maintained by the express service carrier. I am “readily familiar” with the ’s practice of collection and processing of correspondence and other documents for delivery by the express service carrier. It is deposited in a box maintained by the express service carrier on that same day in the ordinary course of business. [J (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the office of the addressee. (BY E-SERVICE) I caused the above-named document to be served by the court’s designated electronic filing service provider on the parties listed on the service list herein. Ll (BY ELECTRONIC MAIL) I e-mailed the above-named document to the parties listed on the service list herein. XI (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 10, 2018, at Oxnard, California. Be AC H « C O W D R E Y « JE NK IN S, Li» S0 0, ES PL AN AD E DR IV E, S UI TE 14 00 O X N A R D , C A L I F O R N I A 93 03 6 TE LE PH ON E: (# 05 ) 38 8- 31 00 N y vn Bh Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Burke v. Basil, et al. Orange County Superior Court No. 30-2016-008823 80-CU-PO-CJC PLAINTIFF, IN PRO PER Gregory Burke CGA Ventures, Inc. 120 Tustin Avenue, Suite C1016 Newport Beach, CA 92663 Cell: (949) 689-7279 gburke@cgaventures.com EXHIBIT “C” Workspace Webmail i: Print 4/14/17, 4:11 PM Print | Close Window Subject: RE: Sexual Harassment Complaint From: gburke@burkelegal.com Date: Thu, Nov 20, 2014 5:56 pm To: "Jennifer Hays" Ce: "Sean Boulton" , "Michael A Sciacca” , "Laura Boss" " Attach: image001.png Hi Ms. Hays, I think its important for you, Mike, Sean, and my wife and I to meet tomorrow to discuss our concerns, including Griffin's safety and well being, and get some clarification on several issues. Let me know what time you are available and I will move my schedule around. Thank you. Sincerely, Gregory Burke, Esq. BURKELEGAL 2901 W. Coast Hwy Ste. 200 Newport Beach, CA 92663 telephone (949) 329-5222 facsimile (949) 203-8566 NOTE: This e-mail constitutes an electronic communication pursuant to 18 USC 2510 (Electronic Communications Privacy Act). The information in this e-mail is confidential and may be legally privileged. If you are not the intended recipient, you must not read, use or disseminate the information; receipt by anyone other than the intended recipient does not constitute a loss of the confidential or privileged nature of the communication. Srmmoaee Original Message -------- Subject: RE: Sexual Harassment Complaint From: Jennifer Hays Date: Thu, November 20, 2014 3:13 pm To: Cc: Sean Boulton , Michael A Sciacca Mr. Burke, To clarify as per our conversation: 1. The girls did not feel threatened at school during school hours. These conversations did not occur today. The club allegations are handled by the club. The club is a separate entity. He will continue to receive PE credit for the NHHS swim PE class if he attends. He will not receive any school credit for an alternate club program. He can try out for the NHHS swim team. o A hitps://email16.godaddy.com/view_print_multi.php?uidArray=9725]iINBOX.Sent_items&aEm|Part=0 Page 1of 4 000280 Workspace Webmail :: Print 4/14/17, 4:11 PM Jenn er Hays Assistant Principal Newport Harbor High School 600 Irvine Ave Newport Beach, CA 92663 Tel: 949-515-6362 Fax: 949-515-6370 From: gburke@burkelegal.com [mailto:gburke@burkelegal.com] Sent: Thursday, November 20, 2014 2:10 PM To: Jennifer Hays Cc: NMUSD Board of Education; Marie Gamble; Sean Boulton; Laura Boss Subject: RE: Sexual Harassment Complaint Hi Ms. Hays, Thank you for the telephone call. We appreciate the prompt attention to this matter and thorough investigation. To memorialize our conversation, the girls interviewed confirmed they never felt sexually harassed nor made any such complaint and Griffin has been cleared of any wrongdoing. I understand that Griffin is cleared to swim with Pavle and will received credit and a grade, and that Griffin is free to tryout for the NHHS swim team in the winter (he was on Varsity last year as a sophomore). Griffin is being blamed by the other swimmers and parents for Trevor being terminated. He was told by the swimmers today on the pool deck that he is a snack, no one wants him there and they are going to kick his ***, We are looking for a new club. Could he earn credit swimming by swimming with another club. I am just very concerned about the harassment he may continue to receive. Thank you again. Sincerely, Gregory Burke, Esq. BURKELEGAL 2901 W. Coast Hwy Ste. 200 Newport Beach, CA 92663 telephone (949) 329-5222 facsimile (949) 203-8566 NOTE: This e-mail constitutes an electronic communication pursuant to 18 USC 2510 (Electronic Communications Privacy Act). The information in this e-mail is confidential and may be legally privileged. If you are not the intended recipient, you must not read, use or disseminate the information; receipt by anyone other than the intended recipient does not constitute a loss of the confidential or privileged nature of the communication. semen Original Message -------- Subject: RE: Sexual Harassment Complaint From: Sean Boulton Date: Thu, November 20, 2014 10:10 am To: , Laura Boss <|boss@nmusd.us> https://email16.godaddy.com/view_print_multi.php?uidArray=9725)INBOX.Sent_ltems&aEmiPart=0 Page 2 of 4 000281 BE AC H « C OW DR EY » J EN KI NS , L.L p SL EP HO NE : (R 05 ) 38 8- 31 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF VENTURA I'am employed in the County of Oxnard, State of California. I am over the age of 18 and not a party to the within action. My business address is 500 E. Esplanade Drive, Suite 1400, Oxnard, California 93036. On May 21, 2018, I served the foregoing document(s) described as: DEFENDANTS’ OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; REQUEST FOR SANCTIONS AGAINST PLAINTIFF; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DARRYL C. HOTTINGER on the interested parties in this action, by placing [J the original & a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST [J (BY FIRST CLASS MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Oxnard, California. 1am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. [J (BY FACSIMILE TRANSMISSION) I transmitted from a facsimile transmission machine in Oxnard, California, whose telephone number is (805) 388-3414, the above-named document to the interested parties herein whose facsimile transmission telephone numbers are included in the attached Service List. The above-described transmission was reported as complete without error by a transmission report issued by the facsimile transmission machine upon which the said transmission was made immediately following the transmission. A true and correct copy of the said transmission report is attached hereto and incorporated herein by this reference. XI (BY OVERNIGHT CARRIER) I placed the above-named document in an envelope or package designated by [GoldenState Overnight/UPS/Federal Express/Overnite Express] (“express service carrier”) addressed to the parties listed on the service list herein, and caused such envelope with delivery fees paid or provided for to be deposited in a box maintained by the express service carrier. I am “readily familiar” with the firm’s practice of collection and processing of correspondence and other documents for delivery by the express service carrier. It is deposited in a box maintained by the express service carrier on that same day in the ordinary course of business. 0 (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the office of the addressee. J (BY E-SERVICE) I caused the above-named document to be e-served on the parties listed on the service list herein. XI (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 7 Executed on May 21, 2018, at Oxnard, California. / Michael Friddle A A D E D R I V E , S U I T E 14 00 C A L I F O R N I A 93 03 6 T E L E P H O N E : (8 05 ) 38 8- 31 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Gregory Burke v. Basil, et al. Orange County Superior Court No. 30-2016-00882380-CU-PO-CJC PLAINTIFF, IN PRO PER Gregory Burke CGA Ventures, Inc. 120 Tustin Avenue, Suite C1016 Newport Beach, CA 92663 Cell: (949) 689-7279 gburke@cgaventures.com