Nicole Banks v. Josefa Gonzalez-Hastings et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to Plaintiff's First Amended Complaint

C.D. Cal.March 20, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 BENJAMIN J. FOX (CA SBN 193374) NILES A. PIERSON (CA SBN 307115) MORRISON & FOERSTER LLP 707 Wilshire Boulevard, Suite 6000 Los Angeles, California 90017-3543 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 BFox@mofo.com; NPierson@mofo.com Attorneys for Defendants and Counter-Claimants JOSEFA GONZALEZ-HASTINGS and DAVID HASTINGS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NICOLE BANKS, and individual, Plaintiff, v. JOSEFA GONZALEZ-HASTINGS, DAVID HASTINGS, Does 1-10, Defendants. AND RELATED CROSS-ACTION Case No. 2:16-cv-02025-TJH-AJWx NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S FIRST AMENDED COMPLAINT [Filed with the Memorandum of Points and Authorities, Separate Statement of Uncontroverted Facts, Declaration of Niles A. Pierson, and Proposed Judgment] Date: April 17, 2017 Courtroom: 9B [Under Submission Unless Notified By the Court] Action Filed: March 24, 2016 [Honorable Terry J. Hatter] Case 2:16-cv-02025-TJH-AJW Document 28 Filed 03/20/17 Page 1 of 3 Page ID #:120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 17, 2017, at a time or other date as may be set by the Court, located at 350 W. 1st Street, Courtroom #9B, 9th Floor, Los Angeles, California 90012, defendants and counterclaimants Josefa Gonzalez- Hastings and David Hastings will and hereby do move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment in Mr. and Mrs. Hastings’ favor on all remaining claims asserted in Plaintiff’s First Amended Complaint. The grounds for this motion include that: 1. Plaintiff, during marital dissolution proceedings with her ex-husband, Yoan Moncada, represented to the Los Angeles Superior Court and the court accepted that Plaintiff had no expectation of income or entitlement to monies related to Mr. Moncada’s professional baseball contract. Plaintiff’s prior sworn statements are fatally inconsistent with Plaintiff’s claims in her current lawsuit. As such, Plaintiff is judicially estopped from pursuing her lawsuit against Mr. and Mrs. Hastings for a percentage of Mr. and Mrs. Hastings’ earnings for serving as Mr. Moncada’s agent and investor in his professional baseball career. 2. Based on Plaintiff’s prior sworn statements, Plaintiff also is judicially estopped from asserting that she performed professional services or work related to Mr. Moncada’s efforts to play professional baseball in the United States. As such, Plaintiff’s claim that she is entitled under theories of contract, unjust enrichment and common counts to additional monies from Mr. and Mrs. Hastings also fail as a matter of law. 3. Even if arguendo judicial estoppel did not apply, principles of fundamental fairness and controlling precedent prohibit Plaintiff from creating a material issue of fact to avoid summary judgment by providing testimony that directly contradicts her prior sworn statements. Case 2:16-cv-02025-TJH-AJW Document 28 Filed 03/20/17 Page 2 of 3 Page ID #:121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 la-1342895 4. Plaintiff’s claims for unjust enrichment and “common counts” are redundant of her failed claim for breach of oral contract and fail for the reasons stated above. This motion is based on the concurrently filed Memorandum of Points and Authorities; the Separate Statement of Uncontroverted Facts and evidence cited therein; the declaration of Niles A. Pierson and evidence submitted therewith; the pleadings and records on file in this action, and such additional argument and evidence that may be introduced prior to or in connection with the hearing on this motion. A proposed order is lodged separately herewith. This motion follows the pre-filing conference of counsel pursuant to local rule 7-3, which commenced on March 8 and concluded on March 9, 2017. Dated: March 20, 2017 Respectfully submitted, MORRISON & FOERSTER LLP By: /s/ Benjamin J. Fox Benjamin J. Fox Attorneys for Defendants and Counterclaimants JOSEFA GONZALEZ-HASTINGS and DAVID HASTINGS Case 2:16-cv-02025-TJH-AJW Document 28 Filed 03/20/17 Page 3 of 3 Page ID #:122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BENJAMIN J. FOX (CA SBN 193374) NILES A. PIERSON (CA SBN 307115) MORRISON & FOERSTER LLP 707 Wilshire Boulevard, Suite 6000 Los Angeles, California 90017-3543 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 BFox@mofo.com; NPierson@mofo.com Attorneys for Defendants and Counter-Claimants JOSEFA GONZALEZ-HASTINGS and DAVID HASTINGS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NICOLE BANKS, and individual, Plaintiff, v. JOSEFA GONZALEZ-HASTINGS, DAVID HASTINGS, Does 1-10, Defendants. AND RELATED CROSS-ACTION Case No. 2:16-cv-02025-TJH-AJWx MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S FIRST AMENDED COMPLAINT [Filed with the Notice of Motion and Motion, Separate Statement of Uncontroverted Facts, Declaration of Niles A. Pierson, and Proposed Judgment] Date: April 17, 2017 Courtroom: 9B [Under Submission Unless Notified By the Court] Action Filed: March 24, 2016 [Honorable Terry J. Hatter] Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 1 of 19 Page ID #:123 TABLE OF CONTENTS Page i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION ..................................................................................................... 1 FACTUAL BACKGROUND .................................................................................... 2 A. Plaintiff’s Allegations and Procedural History ............................................... 2 B. Undisputed Facts ............................................................................................. 3 1. Background re Baseball Recruiting ...................................................... 3 2. Plaintiff’s Relationship with Mr. Moncada .......................................... 3 3. Moncada’s Contracts with Mr. and Mrs. Hastings ............................... 3 4. The Divorce Proceedings ...................................................................... 4 LEGAL STANDARDS ............................................................................................. 6 LEGAL ARGUMENT ............................................................................................... 7 I. JUDICIAL ESTOPPEL BARS ALL OF PLAINTIFF’S CLAIMS ............... 7 A. Plaintiff’s Claim That She Is Entitled to $3.15 Million Is Inconsistent With Her Prior Declaration That She Had No Interest in the Alleged Oral Agreement. .............................................................................................. 9 B. The Court in the Prior Action and Mr. Moncada Relied on Plaintiff’s Sworn Statements in Settling and Approving a Judgment of $16,000 Per Month in Child Support .......................................................................... 10 C. Plaintiff’s Current Lawsuit Is Based on An Inconsistent Position and Would Afford Her an Unfair Windfall .......................................................... 12 II. EVEN IF ARGUENDO JUDICIAL ESTOPPEL DID NOT APPLY, PLAINTIFF CANNOT CREATE A TRIABLE ISSUE BY CONTRADICTING HER PRIOR SWORN STATEMENTS...................... 13 III. PLAINTIFF’S QUASI CONTRACT AND UNJUST ENRICHMENT CLAIMS ARE REDUNDANT OF HER CLAIM FOR BREACH OF ORAL CONTRACT AND FAIL FOR THE SAME REASONS ................. 14 CONCLUSION ........................................................................................................ 15 Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 2 of 19 Page ID #:124 TABLE OF AUTHORITIES Page(s) ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASES Abercrombie & Fitch Co. v. Moose Creek, Inc., 486 F.3d 629 (9th Cir. 2007) ................................................................................ 6 Addisu v. Fred Meyer, Inc., 198 F.3d 1130 (9th Cir. 2000) ............................................................................ 13 Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 (9th Cir. 2015) .............................................................................. 15 Baughman v. Walt Disney World Co., 685 F.3d 1131 (9th Cir. 2012) .............................................................. 7, 8, 11, 12 Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) ............................................................................................. 6 Galin v. IRS, 563 F. Supp. 2d 332 (D. Conn. 2008) .............................................................. 2, 8 Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778 (9th Cir. 2001) ....................................................................... passim In re Marriage of Burkle, 139 Cal. App. 4th 712 (2006) ............................................................................. 11 In re Marriage of Fong, 193 Cal. App. 4th 278 (2011) ............................................................................... 4 In re Marriage of Nassimi, 3 Cal. App. 5th 667 (2016) ................................................................................... 9 Kale v. Obuchowski, 985 F.2d 360 (7th Cir. 1993) ............................................................................... 9 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1991) .............................................................................. 13 Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 568 F. Supp. 2d 1152 (C.D. Cal. 2008) ............................................................ 2, 6 Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012) ............................................................................... 7 New Hampshire v. Maine, 532 U.S. 742 (2001) ....................................................................................... 7, 10 Ramona Manor Convalescent Hosp. v. Care Enters., 177 Cal. App. 3d 1120 (1986) ............................................................................ 15 Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 3 of 19 Page ID #:125 TABLE OF AUTHORITIES (continued) Page iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597 (9th Cir. 1996) .................................................................................. 7 Vons Cos. v. Fed. Ins. Co., 57 F. Supp. 2d 933 (C.D. Cal. 1998) .................................................................. 12 Wagner v. Prof’l Eng’rs in Cal. Gov’t, 354 F.3d 1036 (9th Cir. 2004) .............................................................................. 7 STATUTES Cal. Fam. Code § 2100 ............................................................................................ 11 Cal. Fam. Code § 2104 ............................................................................................ 11 Cal. Fam. Code § 2105 ............................................................................................ 11 Fed. R. Civ. P. 12(b) ................................................................................................ 3 Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 4 of 19 Page ID #:126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 INTRODUCTION Plaintiff is the ex-wife of professional baseball player Yoan Moncada, who she met in 2013 on the international baseball circuit. Less than two years into their relationship, their young marriage ended. During their divorce case, Plaintiff testified that (1) her involvement with Mr. Moncada was strictly romantic, not business; (2) she had no business involvement in any effort to recruit Mr. Moncada to play professionally in the United States; and (3) she had no entitlement to or expectation of income — other than what she might receive through resolution of her divorce. Based on these representations to the Los Angeles Superior Court, the court approved a judgment of marital dissolution on terms that included $16,000 per month in support payments to Plaintiff. Incredibly, only one month after completing her divorce case, Plaintiff filed her current lawsuit, alleging that she is entitled to 10% of her ex-husband’s earnings that must be paid by Mr. and Mrs. Hastings — ignoring her prior sworn statements and that Mr. and Mrs. Hastings served as Mr. Moncada’s agent and investor, respectively, and funded virtually all of Plaintiff’s and Moncada’s living and travel expenses during their marriage. Plaintiff’s prior representations to the superior court and her prior sworn testimony are fatally inconsistent with her claims in this lawsuit. In declarations submitted for her divorce, Plaintiff failed to disclose any expectation of income related to any baseball business — including Moncada’s $31.5 million contract with the Boston Red Sox. She testified that she avoided any business dealings with respect to Mr. Moncada’s baseball career so as to avoid mixing business with romance. She cannot disavow that prior testimony to suit her current objectives. Judicial estoppel “bar[s] litigants from making incompatible statements in two different cases” in order to prevent them “from deliberately changing positions according to the exigencies of the moment.” Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 783 (9th Cir. 2001); Galin v. IRS, 563 F. Supp. 2d 332, 338 (D. Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 5 of 19 Page ID #:127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Conn. 2008). The doctrine “is particularly appropriate when a party does not disclose an asset . . . and then brings a claim in another court based upon ownership of that asset.” Galin, 563 F. Supp. 2d at 338. In such circumstances, a defendant “may invoke the doctrine of judicial estoppel in a motion for summary judgment to bar a claim based on an inconsistent position.” Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 568 F. Supp. 2d 1152, 1165 (C.D. Cal. 2008). Judicial estoppel bars all of Plaintiff’s claims. Accordingly, summary judgment should be entered in Defendants’ favor. FACTUAL BACKGROUND A. Plaintiff’s Allegations and Procedural History Plaintiff alleges that since 2013 she has been entitled to 10% of Mr. Moncada’s baseball earnings based on an oral contract with defendants Josefa Gonzalez-Hastings and David Hastings. (First Am. Compl. (“FAC”) ¶¶ 11, 12, ECF No. 14.) Although the complaint is sparse on details, Plaintiff testified in deposition that in or about September 2013 she and Mrs. Hastings agreed that Mrs. Hastings would sign a contract for 30% of Mr. Moncada’s earnings from any professional baseball contract and that the Hastings would then pay 10% of Moncada’s earnings to Plaintiff (“the Alleged Oral Agreement”). (See Deposition of Nicole A. Banks dated January 16, 2017, at 9:22-10:22, attached to Declaration of Niles Pierson (“Pierson Decl.”), Ex. L.)1 Plaintiff claims this interest vested when Moncada signed with the Boston Red Sox in March 2015 and that the first payment was due to her on April 10, 2015. (FAC ¶¶ 13, 15, 24, 26, 32, 34, 36.) On this theory, the operative First Amended Complaint alleges claims for (1) Breach of Oral Agreement; (2) Intentional Misrepresentation; (3) Common 1 For the Court’s convenient, except for background, the evidence is organized in the concurrently submitted Separate Statement of Undisputed Facts. Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 6 of 19 Page ID #:128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Counts; and (4) Unjust Enrichment. (ECF No. 14.)2 Each claim asserts that Plaintiff is owed, by Mr. and Mrs. Hastings, 10% of Mr. Moncada’s contract for $31,500,000 with the Boston Red Sox. (FAC ¶¶ 20, 23, 28, 34, 39, 40.) B. Undisputed Facts 1. Background re Baseball Recruiting Mrs. Hastings invests in international baseball players seeking to immigrate to the United States to play Major League Baseball. (Undisputed Fact [“UF”] 1.) In 2013, Mrs. Hastings formed a business with Plaintiff called “Baseball Divas,” in which Plaintiff was to represent baseball players as their agent and Mrs. Hastings was to fund Banks’ work as agent; Mrs. Hastings would also independently invest in those players by financing the player’s travel, training, immigration, and living expenses. (UF 2.) Plaintiff does not allege, either in the complaint or in her deposition, that any claim in this lawsuit is based on a contract with Baseball Divas. (See ECF No. 14; Pierson Decl., Ex. L.) 2. Plaintiff’s Relationship with Mr. Moncada In June 2013, while on a trip to Rotterdam, Netherlands, to scout a different baseball player, Plaintiff was approached by Yoan Moncada at a hotel bar. (UF 3.) Mr. Moncada began to flirt with her; that night the two began a romantic relationship that ultimately culminated in the birth of their son and their marriage in November 2013. (UF 4, 5, 6.) Plaintiff testified during her divorce case that she did not “start any business relationship with Mr. Moncada.” (UF 7.) 3. Moncada’s Contracts with Mr. and Mrs. Hastings In June 2014, Mr. Moncada entered into an Investment Agreement with Mrs. Hastings. (UF 8.)3 Under the agreement Mrs. Hastings would pay for Moncada’s 2 On June 30, 2016, the Court dismissed Plaintiff’s claim for intentional misrepresentation pursuant to Rule 12(b)(6). (ECF No. 23.) 3 The Investment Agreement was discovered to be missing during the divorce proceedings in September 2015. (See, e.g., UF 9.) Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 7 of 19 Page ID #:129 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 travel, training, immigration, and other living expenses in exchange for an investment fee calculated as a percentage of Moncada’s contracts with Major League Baseball teams. (UF 10.) Plaintiff was neither a party to the contract nor listed a beneficiary. (UF 11.) Plaintiff did not advise Mr. Moncada regarding the terms of the agreement or whether to sign it. (UF 12.) As she explained in prior deposition testimony, Plaintiff chose not to be involved in any business involving Mr. Moncada, so as not to mix her romantic relationship with business. (UF 13.) Three months later, in September 2014, Mr. Moncada signed a Representation Agreement with Mr. Hastings. (UF 14.) Under the contract, Mr. Hastings would serve as Mr. Moncada’s agent in exchange for 5 percent of any contract Mr. Moncada signed with a Major League Baseball team. (Id.) Again, Plaintiff was not a party to the contract and did not expect to receive any benefit from it (other than what she might obtain from Mr. Moncada as his spouse). (Id.; see also UF 15.) In March 2015, Mr. Moncada signed a multi-year contract with the Boston Red Sox for $31,500,000. (UF 16.) 4. The Divorce Proceedings Mr. Moncada filed for divorce from Plaintiff on February 23, 2015. During the divorce proceedings, Plaintiff signed and submitted two separate “Income and Expense Declarations,” in which she declared no expected income or interest in the Alleged Oral Agreement. (UF 17, 18.) Plaintiff filed the first declaration on April 20, 2015 in accordance with her duty to disclose “all assets and liabilities in which he or she may have an interest, whether community or separate.” (UF 17; In re Marriage of Fong, 193 Cal. App. 4th 278, 286-87 (2011).) Plaintiff disclosed no interest in the Alleged Oral Agreement, even though she now claims this interest vested just one month prior, in March 2015, when Mr. Moncada signed with the Boston Red Sox, and the first payment is now alleged to have been due just ten days prior, when Mr. Moncada Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 8 of 19 Page ID #:130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 received his first check from the Boston Red Sox. (UF 19; FAC ¶¶ 13, 15.) Rather, Plaintiff only declared assets of $2,000 and monthly income of $945. (UF 17.) The second Income and Expense Declaration was served on September 28, 2015, in accordance with Plaintiff’s duty to update her disclosures prior to settlement. (UF 18.) Plaintiff, again, made nor disclosure of nor asserted any interest in the Alleged Oral Agreement. (UF 19.) Plaintiff declared only assets of $2,000 and monthly income of $945. (UF 18.) Plaintiff signed both Income and Expense Declarations under penalty of perjury, and testified in deposition that the final Income and Expense Declaration was accurate. (UF 17, 18, 20.)4 During her deposition in the divorce proceedings, Plaintiff corroborated the Income and Expense Declarations, consistently testifying that she had never had had “any business relationship with [Moncada]” and was not involved in any professional or business capacity in representing Mr. Moncada or assisting his immigration to the United States. (UF 13, 22.) In Plaintiff’s own words, “she was in a relation ― a physical, personal relationship with [Moncada]” and, as a result, did not want to “establish a business relationship as well as a personal relationship.” (UF 23.) Accordingly, Plaintiff did not assist in Mr. Moncada’s immigration and did not expect to profit from Mr. or Mrs. Hastings’ work. (UF 24.) According to Plaintiff, “at that point the business was the business and [Moncada and I] were in a relationship, and I didn’t want to mix the two.” (UF 13.) Plaintiff’s deposition testimony was given under oath. (UF 25.) She reviewed and signed the deposition transcript, declaring it was accurate under penalty of perjury. (UF 26.) 4 Mr. Moncada also filed a declaration in which he disclosed his then existing debts to Mrs. Hastings in the amount of $5 million and to Mr. Hastings in the amount of $1.5 million. This value reflects the fact that the parties subsequently agreed to value his contract with the Red Sox at $30 million and that Mr. Moncada made his first payment of $1 million to Mrs. Hastings before submitting his Income and Expense Declaration in the divorce. (UF 21.) Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 9 of 19 Page ID #:131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 On December 16, 2015, Plaintiff and Mr. Moncada submitted a divorce settlement providing Plaintiff with a $130,000 lump sum payment, $16,000 per month in ongoing support payments, and $20,000 in attorney’s fees. (UF 27.) On February 23, 2016, Plaintiff represented to the court that she had “made a full and complete disclosure to the other of all their assets and sources of income.” (UF 28.) Plaintiff understood that she had an obligation to be truthful to the superior court and not to hide information. (UF 29.) One month and one day later, on March 24, 2016, Plaintiff filed this lawsuit claiming she had been entitled to $3.15 million under the Alleged Oral Agreement since March 2015, when Mr. Moncada signed with the Boston Red Sox — prior to her Income and Expense Declarations and her deposition in which she failed to disclose any such interest. (UF 30.) The superior court entered judgement approving the settlement and dissolving the marriage on May 9, 2016. (UF 31.) Plaintiff and Mr. Moncada both affirmed under oath that Plaintiff never disclosed the Alleged Oral Agreement at issue here to Moncada. (UF 32.) LEGAL STANDARDS “A party may invoke the doctrine of judicial estoppel in a motion for summary judgment to bar a claim based on an inconsistent position.” Milton H. Greene, 568 F. Supp. 2d at 1165; see also Hamilton, 270 F.3d at 786 (affirming grant of summary judgment on the basis that her claims are barred by judicial estoppel). Once the moving party has established the claim is inconsistent with the prior position, the nonmoving party must “proffer a sufficient explanation” for the prior inconsistent position in order to raise a triable issue of fact. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). Where the nonmoving party “fail[s] to rebut the determination of clear inconsistency,” summary judgment should be granted. Abercrombie & Fitch Co. v. Moose Creek, Inc., 486 F.3d 629, 634 (9th Cir. 2007). Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 10 of 19 Page ID #:132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 LEGAL ARGUMENT I. JUDICIAL ESTOPPEL BARS ALL OF PLAINTIFF’S CLAIMS Judicial estoppel “precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.” Wagner v. Prof’l Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1044 (9th Cir. 2004).5 The doctrine is appropriately invoked at summary judgment to “bar litigants from making incompatible statements in two different cases” and “applies to a party’s stated position whether it is an expression of intention, a statement of fact, or a legal assertion.” Hamilton, 270 F.3d at 783; Wagner, 354 F.3d at 1044. “[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position[.]” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citation omitted); Baughman v. Walt Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012) (the “purpose” of judicial estoppel “is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment”) (quotations and citations omitted). Contrary to Plaintiff’s arguments during the meet-and-confer, judicial estoppel prevents Plaintiff from taking inconsistent positions in successive lawsuits, regardless of whether the cases involved the same adverse parties. See, e.g., Hamilton, 270 F.3d at 783 (unlike res judicata, judicial estoppel “is not limited to bar the assertion of inconsistent positions in the same litigation, but is also appropriate to bar litigants from making incompatible statements in two different cases”); Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 996 (9th Cir. 2012) (“judicial estoppel is intended to protect the courts,” thus, a 5 “Federal law governs the application of judicial estoppel in federal court . . . enabl[ing the] court to protect itself from manipulation.” Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 603 (9th Cir. 1996). Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 11 of 19 Page ID #:133 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 party should be estopped from taking different positions against different defendants). “[J]udicial estoppel is particularly appropriate when a party does not disclose an asset . . . and then brings a claim in another court based upon ownership of that asset.” Galin, 563 F. Supp. 2d at 338-39. For example, in Hamilton, plaintiff in a prior bankruptcy proceeding had not disclosed a potential claim against his insurance company. 270 F.3d at 785. Following the resolution of the bankruptcy, plaintiff sued the insurer. Id. The insurer moved for summary judgment arguing that judicial estoppel precluded the cause of action because it was inconsistent with the prior disclosure, in which the Plaintiff asserted no interest in claim. Id. The district court granted the motion and the Ninth Circuit affirmed, holding that “[j]udicial estoppel will be imposed when the [Plaintiff] ha[d] knowledge of enough facts to know that a potential cause of action exist[ed] . . . but fail[ed] to . . . to identify the cause of action as a contingent asset.” Id. at 784. Plaintiff was therefore “precluded from pursuing claims about which he had knowledge, but did not disclose, during his bankruptcy proceedings.” Id. Hamilton compels the same result here. During her divorce proceedings, Plaintiff asserted no interest in the alleged multi-million-dollar Oral Agreement. She cannot now “chang[e] positions according to the exigencies of the moment” and bring suit for the exact interest she previously disavowed. Baughman, 685 F.3d at 1133; accord Hamilton, 270 F.3d at 785. Indeed, judicial estoppel is firmly supported by each of the three factors that typically inform the decision whether to apply the doctrine: (1) The new position is inconsistent with the party’s prior position; (2) the prior court or opposing party relied the earlier position; and (3) the new position would create “an unfair advantage” for the party or “impose an unfair detriment on the opposing party.” Baughman, 685 F.3d at 1133. Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 12 of 19 Page ID #:134 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 A. Plaintiff’s Claim That She Is Entitled to $3.15 Million Is Inconsistent With Her Prior Declaration That She Had No Interest in the Alleged Oral Agreement. A party’s claim is judicially estopped as inconsistent when the party did not disclose the claim in a prior action while under a duty to do so. The Ninth Circuit’s decision in Hamilton is again instructive. There plaintiff had “knowledge of enough facts to know that a potential cause of action exist[ed]” against his insurer but did not disclose it despite having “an express, affirmative duty” under the Bankruptcy Code and Rules to “disclose all assets, including contingent and unliquidated claims.” Hamilton, 270 F.3d at 784-85. When plaintiff later brought the claim against the insurer, the Ninth Circuit concluded he had “clearly asserted inconsistent positions” and so “precluded [him] from pursuing claims about which he had knowledge, but did not disclose[.]” Id. at 784. The principle applies to Plaintiff’s divorce case. Id.; see also Kale v. Obuchowski, 985 F.2d 360, 361 (7th Cir. 1993) (“Having asserted in [the divorce proceeding] that he did not own an interest in the industrial park, and having prevailed on that assertion, Kale could not take an inconsistent position in other litigation[.]”). Plaintiff was under the same obligation to disclose “all assets and liabilities in which [] she may have an interest, whether community or separate” and had “a continuing duty to augment those disclosures immediately and fully upon any material change.” Marriage of Fong, 193 Cal. App. 4th at 286-87. Thus, if Plaintiff, as she now claims, had an interest in the Alleged Oral Agreement, she was required to disclose it and her potential claims for relief. See In re Marriage of Nassimi, 3 Cal. App. 5th 667, 686 (2016) (potential and contingent claims are considered assets and liabilities in divorce proceedings), as modified (Oct. 14, 2016), review denied (Dec. 14, 2016). Plaintiff disclosed neither. Plaintiff’s Income and Expense Declaration certified under penalty of perjury that it disclosed “all assets and liabilities in which he or she may have an interest.” Marriage of Fong, 193 Cal. App. 4th at 286-87. The declaration asserted no Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 13 of 19 Page ID #:135 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 interest in the alleged multi-million dollar agreement, even though Plaintiff now claims it had vested one month prior when Mr. Moncada signed with the Boston Red Sox. Five months later, Plaintiff served a Final Income and Expense Declaration — intended to allow the court and parties may make a final determination regarding the distribution of assets and liabilities. Id. Plaintiff did not disclose and thus declared no interest in her alleged $3.15 million claim.6 Most poignantly, Plaintiff never disclosed her current claims to the superior court, even though the divorce settlement was not approved until a month after her complaint was filed in this Court — leaving no doubt Plaintiff was aware of the alleged interest but elected not to disclose it. Plaintiff’s prior representations are diametrically inconsistent with her current claim that she is entitled to $3.15 million. Both cannot be true. See id. Were this Court to accept Plaintiff’s claims, it would require a finding that the prior court had been deceived—one of the exact consequences judicial estoppel is intended to prevent. New Hampshire, 532 U.S. at 743 (judicial estoppel prevents “the perception that either the first or the second court was misled”). Because Plaintiff disclaimed any interest in the $3.15 million, she should be precluded from pursing it now. Hamilton, 270 F.3d at 785. B. The Court in the Prior Action and Mr. Moncada Relied on Plaintiff’s Sworn Statements in Settling and Approving a Judgment of $16,000 Per Month in Child Support For purposes of judicial estoppel, a litigant “successfully advanced” a prior position when either the court or an opposing party relied upon the inconsistent prior statement in a decision or settlement: The court “need not itself adopt the 6 During her deposition in the divorce proceedings, Plaintiff reinforced her claim that she had no financial interest in the Alleged Oral Agreement or in Mr. Moncada’s career, testifying under oath that she never had had “any business relationship with [Moncada];” that she was not trying to “establish a business relationship as well as a personal relationship;” and that she did not want to “mix” business with her personal relationship. (UF 13, 22, 23.) Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 14 of 19 Page ID #:136 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 statement.” Baughman, 685 F.3d at 1133-34. Rather, it is sufficient for the opposing party to “rely[] on the . . . nondisclosure of potential claims” to allocate assets and liabilities, Hamilton, 270 F.3d at 784, “because it’s the coercive power of the court . . . that’s the driving force behind such settlements.” Baughman, 685 F.3d at 1134. That standard is undoubtedly met here. Plaintiff’s Income and Expense Declarations were intended to provide the parties and the court with accurate financial information so that they may “enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues . . . have a full and complete knowledge of the relevant underlying facts.” Cal. Fam. Code § 2100. In keeping with this purpose, California law provides that, “no judgment shall be entered with respect to the parties’ property rights without the execution and service of . . . current income and expense declaration.” In re Marriage of Burkle, 139 Cal. App. 4th 712, 747 (2006) (citing Cal. Fam. Code § 2106 [quotation marks omitted]). Indeed, “[t]he commission of perjury on the final declaration of disclosure” is so subversive to the legitimacy of the award, that it may establish “grounds for setting aside the judgment” entirely. Id. at 745 n.27; Cal. Fam. Code §§ 2104-2105. Plaintiff’s deposition only underscores the importance of the disclosures as she repeatedly defended them, denying any interest in the Alleged Oral Agreement. Accordingly, Plaintiff’s declarations and testimony that she had no interest in any additional monies were “were central to her claims” and relied upon by both Mr. Moncada and the divorce court in finalizing and approving the $16,000 per month judgment. Baughman, 685 F.3d at 1133-34. Plaintiff is thus “bound by the representations” and estopped from changing her position. Id. Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 15 of 19 Page ID #:137 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 C. Plaintiff’s Current Lawsuit Is Based on An Inconsistent Position and Would Afford Her an Unfair Windfall Finally, Plaintiff would derive an unjust windfall if she were allowed to further pursue her inconsistent statements. An unfair advantage exists where the inconsistent statement supports the party’s claim in the current case. For example, in Baughman, plaintiff to an ADA claim had asserted in previous litigation that she relied on a wheelchair for transportation, but in the present case asserted that the use of a wheelchair was impractical for her. 685 F.3d at 1134. The Ninth Circuit held the statement created unfair advantage, reasoning that “if [plaintiff] can assert that she’s never used, and can’t use, a wheelchair, her ADA claim in our case could be significantly stronger, giving her an unfair advantage over her opponent.” Id. (holding plaintiff’s claim barred and granting summary judgment for defendant). Here, Plaintiffs’ inconsistent position does not only seek to make her claim stronger, it is the foundation of the case itself. Each of Plaintiff’s claims for relief is premised on the alleged entitlement to $3.15 million she previously disclaimed. Thus, any award would permit an unfair advantage over Mrs. Hastings as it would stem directly from Plaintiff’s inconsistent position. So too would it afford Plaintiff advantage over Mr. Moncada, who agreed to a $16,000 per month settlement with Plaintiff based in part on her repeated representations that she had no other expected income. Hamilton, 270 F.3d at 785 (granting summary judgment in defendant’s favor where plaintiff derived unfair advantage over creditors in prior case by not disclosing an asset). In short, any benefit from this case would reward Plaintiff for her opportunistic change in position. Vons Cos. v. Fed. Ins. Co., 57 F. Supp. 2d 933, 945-46 (C.D. Cal. 1998) (“The Ninth Circuit has made it clear that a party may not change its position . . . without consequences.”), aff’d, 212 F.3d 489 (9th Cir. 2000). Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 16 of 19 Page ID #:138 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 II. EVEN IF ARGUENDO JUDICIAL ESTOPPEL DID NOT APPLY, PLAINTIFF CANNOT CREATE A TRIABLE ISSUE BY CONTRADICTING HER PRIOR SWORN STATEMENTS Even if judicial estoppel did not apply, Plaintiff still cannot avoid summary judgement by contradicting her prior sworn statements. See, e.g., Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (“[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”) (quoting Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1462 (9th Cir. 1985)); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1138 n.6 (9th Cir. 2000). Plaintiff’s case is based on contradictions she cannot explain. For example, Plaintiff was asked to address her prior deposition testimony in deposition here: “Q. In your prior testimony at page 117 starting at line 2, you were asked about what money you were entitled to. And again, this is in the context of the divorce proceeding, and you did not say anything about being owed money related to the investor contract. Is that an accurate statement? A. Yes. Q. And why did you say nothing about a claim to money out of the investor contract in your prior deposition? A. I don’t know. Q. Did you have an opportunity to review and make changes to your deposition testimony in the prior case, in the divorce case? A. Yes. Q. Do you remember reviewing the deposition transcript? A. Yeah. Q. Do you remember signing it? A. Yeah.” (UF 26; Pierson Decl., Ex. L at 67:2-21.) Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 17 of 19 Page ID #:139 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Regarding her Income and Expense Declarations, Plaintiff testified that she signed them under penalty of perjury and that they were accurate--- another admission that is fatally inconsistent with her claims here: “Q. And you understood that in a divorce case the submission that you made including your expenses and anticipated income that was signed under penalty of perjury, true? A. Uh-huh. Q. Just need a verbal answer. A. Oh, yeah. Q. And you understood that as a document submitted under penalty of perjury that it needed to be accurate, correct? A. Correct. Q. And was it accurate, that document that you submitted? A. The income and expense declaration doesn't show that the assets and debts is not turned into the court. Q. But was it an accurate document that you submitted? A. To my lawyer? Q. Yes. A. Yes.” (UF 20; Pierson Decl., Ex. L at 85:18-86:13.) Plaintiff cannot contradict her prior sworn statements to create a trial issue of fact. Accordingly, summary judgment should be granted. III. PLAINTIFF’S QUASI CONTRACT AND UNJUST ENRICHMENT CLAIMS ARE REDUNDANT OF HER CLAIM FOR BREACH OF ORAL CONTRACT AND FAIL FOR THE SAME REASONS Resolution in Defendants’ favor of judicial estoppel resolves all claims in this lawsuit. Hamilton, 270 F.3d at 785-86 (judicial estoppel bars entire action, regardless of how the new claim is styed). But even if, arguendo, an open issue existed as to judicial estoppel, no basis exists for Plaintiff to maintain her claim for unjust enrichment and unspecified “common counts,” which are redundant of the Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 18 of 19 Page ID #:140 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 contract claim. See, e.g., Ramona Manor Convalescent Hosp. v. Care Enters., 177 Cal. App. 3d 1120, 1139 (1986); accord Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (“[I]n California, there is not a standalone cause of action for ‘unjust enrichment[.]’” [citations omitted]). Plaintiff has not alleged nor can she submit admissible evidence to suggest that a quasi-contract claim adds an element different from the claim for breach of contract. All of Plaintiff’s claims are premised on the notion that Mr. and Mrs. Hastings agreed to pay to Plaintiff 10% of Mr. Moncada’s earnings from the Boston Red Sox contract. (See, e.g., FAC ¶¶ 20, 34, 39.) Those allegations do not state a viable additional theory for going forward. CONCLUSION For the reasons set forth above, judgment on the complaint should be entered in favor of Mr. and Mrs. Hastings and against Plaintiff. Dated: March 20, 2017 Respectfully submitted, MORRISON & FOERSTER LLP By: /s/ Benjamin J. Fox Benjamin J. Fox Attorneys for Defendants and Counterclaimants JOSEFA GONZALEZ-HASTINGS and DAVID HASTINGS la-1340569 Case 2:16-cv-02025-TJH-AJW Document 28-1 Filed 03/20/17 Page 19 of 19 Page ID #:141 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BENJAMIN J. FOX (CA SBN 193374) NILES A. PIERSON (CA SBN 307115) MORRISON & FOERSTER LLP 707 Wilshire Boulevard, Suite 6000 Los Angeles, California 90017-3543 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 BFox@mofo.com; NPierson@mofo.com Attorneys for Defendants and Counter-Claimants JOSEFA GONZALEZ-HASTINGS and DAVID HASTINGS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NICOLE BANKS, and individual, Plaintiff, v. JOSEFA GONZALEZ-HASTINGS, DAVID HASTINGS, Does 1-10, Defendants. AND RELATED CROSS-ACTION Case No. 2:16-cv-02025-TJH-AJWx SEPARATE STATEMENT OF UNCONTROVERTED FACTS IN SUPPORT OF THE HASTINGS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S FIRST AMENDED COMPLAINT [Filed with the Notice of Motion and Motion, Memorandum of Points and Authorities, Declaration of Niles A. Pierson , and Proposed Judgment.] Date: April 17, 2017 Courtroom: 9B Action Filed: March 24, 2016 Trial Date: [Honorable Terry J. Hatter] Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 1 of 10 Page ID #:142 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Josefa Gonzalez-Hastings and David Hastings respectfully submit the following Separate Statement of Uncontroverted Facts, together with references to supporting evidence, in support of their motion for summary judgment. A. Incorporation By Reference Of Facts And Evidence From Concurrently Filed Summary Judgment Motions UNDISPUTED FACTS SUPPORTING EVIDENCE 1. Mrs. Hastings invests in international baseball players seeking to immigrate to the United States to play Major League Baseball. Concurrently filed Declaration of Niles A. Pierson, Ex. A, attaching December 4, 2015, Deposition of Nicole A. Banks (“First Banks Deposition”) at 52:20-53:9. 2. In 2013, Mrs. Hastings formed a business with Plaintiff called “Baseball Divas,” in which Plaintiff was to represent baseball players as their agent and Mrs. Hastings was to fund Banks’ work as agent; Mrs. Hastings would also independently invest in those players by financing the player’s travel, training, immigration, and living expenses. First Banks Deposition at 59:10- 60:11, 63:8-19, 86:21-87:10, 116:1- 116:19, attached to Pierson Decl., Ex. A;; Baseball Divas Articles of Organization at Bates Nos. P000174-P000176, attached to Pierson Decl., Ex. G; Baseball Divas Representation Agreement at Bates Nos. P000052-P000055, attached to Pierson Decl., Ex. H. 3. In June 2013, while on a trip to Rotterdam, Netherlands to recruit another player, Plaintiff was approached by Yoan Moncada at a hotel bar. First Banks Deposition at 63:24- 66:19, attached to Pierson Decl., Ex. A; January 16, 2017, Deposition of Nicole A. Banks (“Second Banks Deposition”) at 40:11-17, attached to Pierson Decl., Ex. L. Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 2 of 10 Page ID #:143 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 la- 1342556 UNDISPUTED FACTS SUPPORTING EVIDENCE 4. Mr. Moncada began to flirt with Plaintiff. First Banks Deposition at 66:16-19, attached to Pierson Decl., Ex. A; Second Banks Deposition at 40:11- 17, attached to Pierson Decl., Ex L. 5. On the night that Mr. Moncada and Plaintiff first met, the two began a romantic relationship which later resulted in pregnancy. First Banks Deposition at 67:11-23, attached to Pierson Decl., Ex. A; Second Banks Deposition at 39:16- 40:23; 50:13-24, attached to Pierson Decl., Ex. L. 6. In November 2013, Plaintiff and Mr. Moncada were married. Dissolution Judgment, Attachment O ¶ 1, attached to Pierson Decl., Ex. F. 7. Plaintiff testified during her divorce case that she did not “start any business relationship with Mr. Moncada.” First Banks Deposition at Banks 67:11-23, attached to Pierson Decl., Ex. A. 8. In June 2014, Mr. Moncada entered into an Investment Agreement with Mrs. Hastings. First Banks Deposition at 86:13- 87:10, attached to Pierson Decl., Ex. A.; Second Banks Deposition at 55:20-57:2, attached to Pierson Decl., Ex. L. 9. The Investment Agreement was discovered missing in September of 2015. January 18, 2017, Deposition of Josefa Gonzalez-Hastings (“ Josefa Hastings Deposition”) at 157:17- 161:3, attached to Pierson Decl., Ex. Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 3 of 10 Page ID #:144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 la- 1342556 UNDISPUTED FACTS SUPPORTING EVIDENCE M. 10. Under the Investment Agreement, Mrs. Hastings would pay for Mr. Moncada’s travel, training, immigration, and other living expenses in exchange for an investment fee calculated as a percentage of Mr. Moncada’s contracts with Major League Baseball Teams. First Banks Deposition at 52:20- 53:9, attached to Pierson Decl., Ex. A. 11. Plaintiff was neither a party to the Investment Agreement nor listed a beneficiary. Second Banks Deposition at 55:20- 56:8, attached to Pierson Decl., Ex. L. 12. Plaintiff did not advise Mr. Moncada regarding the terms of the Investment Agreement or whether to sign it. Second Banks Deposition at 56:9- 14, attached to Pierson Decl., Ex. L. 13. Plaintiff testified that chose not to be involved in any business involving Mr. Moncada, so as not to mix her romantic relationship with business. First Banks Deposition at 100:22- 101:1, attached to Pierson Decl., Ex. A. 14. Mr. Moncada and Mr. Hastings signed a representation agreement in September of 2014 while in Guatemala (the “Hastings Josefa Hastings Deposition at 92:2- 96:20, attached to Pierson Decl., Ex. M; January 18, 2017 Deposition of David Hastings (“David Hastings Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 4 of 10 Page ID #:145 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 la- 1342556 UNDISPUTED FACTS SUPPORTING EVIDENCE Representation Agreement”). Under the contract, Mr. Hastings would serve as Mr. Moncada’s agent in exchange for 5 percent of any contract Mr. Moncada signed with a Major League Baseball team Deposition”) at 25:3-26:24, attached to Pierson Decl., Ex. N; Hastings Representation Agreement, attached to Pierson Decl., Ex. I. 15. Plaintiff was not a party to the Hastings Representation Agreement and did not expect to receive any benefit from it (other than what she might obtain from Mr. Moncada as his spouse). First Banks Deposition at 118:14- 119:3, attached to Pierson Decl., Ex. A. 16. In March 2015, Mr. Moncada signed a contract with the Boston Red Sox for $31,500,000. First Amended Complaint (ECF No. 14) ¶ 13. 17. Plaintiff filed and served an Income and Expense Declaration in her divorce proceedings with Moncada on April 20, 2015 which listed Plaintiff’s entire average monthly income as $945 per month and her assets as $2,000. Income and Expense Declaration of Nicole A. Banks filed on April 20, 2015 in the matter of In re Marriage of Moncada-Olivera and Banks (“First Banks Income and Expense Declaration”), attached to Pierson Decl., Ex. B; see also First Deposition of Nicole Banks at 119:4-25, Pierson Decl. at Ex. A. 18. In accordance with Plaintiff’s duty to Income and Expense Declaration of Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 5 of 10 Page ID #:146 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 la- 1342556 UNDISPUTED FACTS SUPPORTING EVIDENCE update her disclosures prior to settlement, Plaintiff served a second Income and Expense Declaration in her divorce proceedings on September 28, 2015 which listed Plaintiff’s entire average monthly income as $945 per month and her assets as $2,000. Nicole A. Banks served on September 24, 2015 in the matter of In re Marriage of Moncada-Olivera and Banks (“Second Banks Income and Expense Declaration”), attached to Pierson Decl., Ex. C; ; see also First Deposition of Nicole Banks at 113:16-115:10, Pierson Decl. Ex. A. 19. Plaintiff’s income and expense declarations made no disclosure of nor asserted any interest in the Alleged Oral Agreement. First Banks Income and Expense Declaration, attached to Pierson Decl., Ex. B; Second Banks Income and Expense Declaration, attached to Pierson Decl., Ex. C; ; see also First Deposition of Nicole Banks at 113:16-115:10 and 119:4-25, Pierson Decl. Ex. A. 20. Plaintiff testified in deposition that her second Income and Expense Declaration was accurate. Second Banks Deposition at 85:18- 86:13, attached to Pierson Decl., Ex. L. 21. Mr. Moncada also filed a declaration in which he disclosed his debts to Mrs. Hastings in the amount of $5 million and to Mr. Hastings in the amount of $1.5 million. This value reflects the fact that the parties Moncada Income and Expense Declaration, attached to Pierson Decl., Ex. D; Moncada Payment Schedule, attached to Pierson Decl., Ex. J. Josefa Hastings Deposition at 40:10-24, attached to Pierson Decl., Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 6 of 10 Page ID #:147 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 la- 1342556 UNDISPUTED FACTS SUPPORTING EVIDENCE subsequently agreed to value his contract with the Red Sox at $30 million and that he made his first payment of $1 million to Mrs. Hastings before submitting his Income and Expense Declaration. Ex. M. 22. During her deposition in the divorce proceedings, Plaintiff corroborated the Income and Expense Declarations, consistently testifying that she had never had had “any business relationship with [Moncada]” and was not involved in any professional or business capacity in representing Mr. Moncada or assisting his immigration to the United States. First Banks Deposition at 5:1-4, 67:11-23 (Plaintiff did not form a business relationship with Mr. Moncada), 80:20-81:13 (plaintiff did not participate in negotiations), 87:8-10, 87:17-88:4, 116:17-19 (the Investment agreement was “exclusively” with Mrs. Hastings.), 100:19-21 (plaintiff did not process Moncada’s immigration paperwork), 101:2-8 (Mr. Hastings handled the immigration paperwork), 118:14- 119:3 (Plaintiff did not expect compensation because Mr. Hastings did all of the work), attached to Pierson Decl., Ex. A. 23. Plaintiff testified under oath that only Mrs. Hastings “was trying to establish a business relationship with First Banks Deposition at 71:2-72:4, attached to Pierson Decl., Ex. A. Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 7 of 10 Page ID #:148 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 la- 1342556 UNDISPUTED FACTS SUPPORTING EVIDENCE [Mr. Moncada], and [Plaintiff] was in a relation -- a physical, personal relationship with him,” that Plaintiff was not trying to “establish a business relationship as well as a personal relationship,” and that Plaintiff did not “discuss a business relationship with him when [she was] seeing him in Taipei.” 24. Plaintiff did not assist in Mr. Moncada’s immigration and did not expect to profit from Mr. or Mrs. Hastings’ work. First Banks Deposition at 100:19-21 (plaintiff did not handle Moncada’s immigration paperwork), 101:2-8 (Mr. Hastings handled the immigration paperwork), 118:14- 119:3 (Plaintiff did not expect compensation because Mr. Hastings did all of the work), attached to Pierson Decl., Ex. A. 25. Plaintiff’s deposition testimony was given under oath. First Banks Deposition at 5:4-6, 143:3-13, attached to Pierson Decl., Ex. A. 26. Plaintiff reviewed and signed the deposition transcript, confirming that it was accurate under penalty of perjury. First Banks Deposition at 142:1-10, attached to Pierson Decl., Ex. A; Second Banks Deposition at 67:2- 21, attached to Pierson Decl., Ex. L. Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 8 of 10 Page ID #:149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 la- 1342556 UNDISPUTED FACTS SUPPORTING EVIDENCE 27. On December 16, 2015, Plaintiff and Mr. Moncada submitted a divorce settlement providing Plaintiff with a $130,000 lump sum payment, $16,000 per month in ongoing support payments, and $20,000 in attorney’s fees Divorce Settlement, attached to Pierson Decl., Ex. E; see also Dissolution Judgment, Attachment O, Pierson Decl., Ex. F. 28. A further attachment to the settlement was signed by Plaintiff on February 23, 2016. The attachment sets forth that the parties acknowledged “that they have each made a full and complete disclosure to the other of all their assets and sources of income.” Dissolution Judgment, Attachment O ¶ 38, entered by the court on May 9, 2016 in the matter of In re Marriage of Moncada-Olivera and Banks , attached to Pierson Decl., Ex. F. 29. Plaintiff understood that she had an obligation to be truthful to the superior court and not to hide information. Second Banks Deposition at 69:7- 10, attached to Pierson Decl., Ex. L. 30. One month and one day later, on March 24, 2016, Plaintiff filed this lawsuit claiming she had been entitled to $3.15 million under the Alleged Oral Agreement since March 2015, when Mr. Moncada Complaint (ECF No. 1.). Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 9 of 10 Page ID #:150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 la- 1342556 UNDISPUTED FACTS SUPPORTING EVIDENCE signed with the Boston Red Sox — prior to her Income and Expense Declarations and her deposition in which she failed to disclose any such interest. 31. The superior court entered judgment approving the settlement and dissolving the marriage on May 9, 2016. Dissolution Judgement, Attachment O, attached to Pierson Decl., Ex. F. 32. Plaintiff and Mr. Moncada both affirmed under oath that Plaintiff never disclosed the Alleged Oral Agreement at issue here to Moncada. Second Banks Deposition at 28:24- 30:4, attached to Pierson Decl., Ex. L; Declaration of Yoan Moncada signed on September 3, 2016 in Gulfport, Florida (“September 2016 Moncada Declaration”), attached to Pierson Decl., Ex. K. Dated: March 20, 2017 Respectfully submitted, MORRISON & FOERSTER LLP By: /s/ Benjamin J. Fox Benjamin J. Fox Attorneys for Defendants and Counterclaimants JOSEFA GONZALEZ-HASTINGS and DAVID HASTINGS Case 2:16-cv-02025-TJH-AJW Document 28-2 Filed 03/20/17 Page 10 of 10 Page ID #:151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 la-1342558 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA NICOLE BANKS, and individual, Plaintiff, v. JOSEFA GONZALEZ-HASTINGS, DAVID HASTINGS, Does 1-10, Defendants. AND RELATED CROSS-ACTION Case No. 2:16-cv-02025-TJH-AJWx [PROPOSED] JUDGMENT IN FAVOR OF DEFENDANTS ON PLAINTIFF’S FIRST AMENDED COMPLAINT Action Filed: March 24, 2016 Case 2:16-cv-02025-TJH-AJW Document 28-3 Filed 03/20/17 Page 1 of 2 Page ID #:152 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 la-1342558 The Court, having considered Defendants’ Motion for Summary Judgment on the First Amended Complaint, the Supporting Separate Statement of Undisputed Facts, the Declaration of Niles A. Pierson and attached evidence, any opposition by Plaintiff, and Defendants’ reply, and any additional argument of counsel, IT IS HEREBY ORDERED AND ADJUDGED that judgment on the First Amended Complaint, and each claim for relief therein, is entered in favor of Defendants and against Plaintiff, and that Plaintiff take nothing on the complaint. Dated: ____________ By: Hon. Terry J. Hatter United States District Judge Case 2:16-cv-02025-TJH-AJW Document 28-3 Filed 03/20/17 Page 2 of 2 Page ID #:153