Motion to Amend in Charles J Berry vs Pope Valley Elementary Unified School District et al| Trellis.Law

On May 15, 2019 a Final.Mtn to Amend FoAC Oppo RJN Dec was filed involving a dispute between Berry, Charles J, and Napa County Office Of Education, Pope Valley Elementary Unified School District, for Defamation Unlimited (13) in the District Court of Napa County.

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[Exempt from payment of filing fees
pursuant to Government Code § 6103]

LOUIS A. LEONE (SBN 099874)
1
JIMMIE E. JOHNSON (SBN 223344)
2 LEONE ALBERTS & DUUS
1390 Willow Pass Rd., Ste. 700
3 Concord, California 94520
Telephone: (925) 974-8600
4
Facsimile: (925) 974-8601
5
Attorneys for Defendant
6 POPE VALLEY UNION ELEMENTARY
7
SCHOOL DISTRICT

8 IN THE SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF NAPA

10
CHARLES J. BERRY, an individual, Case No.: 19CV000733
11

12 Plaintiff,
DECLARATION OF JIMMIE E. JOHNSON
13 v. IN SUPPORT OF REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
14 DEFENDANT POPE VALLEY UNION
POPE VALLEY UNION ELEMENTARY ELEMENTARY SCHOOL DISTRICT’S
15 SCHOOL DISTRICT, OPPOSITION TO PLAINTIFF CHARLES J.
NAPA COUNTY OFFICE OF BERRY’S MOTION TO AMEND
16 EDUCATION, and PLEADING
DOES 1 to 10, inclusive,
17 [CCP § 425.16]
18 Defendants.
Date: July 6, 2022
19 Time: 8:30 a.m.
Dept: B
20
Remittitur Filed: 1/12/2022
21
Third Amended Complaint Filed: 2/14/2022
22 Complaint Filed: 5/15/2019

24 I, JIMMIE E. JOHNSON, declare as follows:

25 1. I am an attorney duly licensed to practice law before all courts in the State

26 of California. I am an attorney with the law offices of Leone Alberts & Duus, attorneys of

27 record for Defendant POPE VALLEY UNION ELEMENTARY SCHOOL DISTRICT (the

DECLARATION OF JIMMIE E. JOHNSON IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANT POPE VALLEY UNION ELEMENTARY SCHOOL DISTRICT’S
OPPOSITION TO PLAINTIFF CHARLES J. BERRY’S MOTION TO AMEND PLEADING
1
1 “District”) in the above-referenced matter. I have personal knowledge of the matters
2 stated herein and if called as a witness, I can competently testify thereto.
3 2. Attached as Exhibit A to the contemporaneously-filed Request for Judicial
4 Notice in Support of Defendant Pope Valley Union Elementary School District’s
5 Opposition to Plaintiff Charles J. Berry’s Motion to Amend Pleading (“RJN”) is a true and
6 correct copy of the original complaint Plaintiff CHARLES J. BERRY (“Plaintiff”) filed in
7 the above-captioned matter.
8 3. Attached as Exhibit B to the contemporaneously-filed RJN is a true and
9 correct copy of the first amended complaint Plaintiff filed in the above-captioned matter.
10 4. Attached as Exhibit C to the contemporaneously-filed RJN is a true and
11 correct copy of the second amended complaint Plaintiff filed in the above-captioned
12 matter.
13 5. Attached as Exhibit D to the contemporaneously-filed RJN is a true and
14 correct copy of the third amended complaint Plaintiff filed in the above-captioned matter.
15 6. Attached as Exhibit E to the contemporaneously-filed RJN is a true and
16 correct copy of the Memorandum of Points and Authorities in Support of Defendant
17 Pope Valley Union Elementary School District’s Special Motion to Strike the District filed
18 in the above-captioned matter.
19 I declare under penalty of perjury under the laws of the State of California that
20 the foregoing is true and correct. Executed this 15th day of June, 2022, in Davis,
21 California.
22

23
__________________________________
24
JIMMIE E. JOHNSON
25

DECLARATION OF JIMMIE E. JOHNSON IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANT POPE VALLEY UNION ELEMENTARY SCHOOL DISTRICT’S
OPPOSITION TO PLAINTIFF CHARLES J. BERRY’S MOTION TO AMEND PLEADING
2
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
1 Charles Berry (Plaintiff, Pro Se)
19125 Colt Court
2 Hidden Valley Lake CA 95467
bookman@mm.org
3
(707) 987~2665
4

8 SUPERIOR COURT OF CA.LJFORNIA,
COUNlY OF NAPA
9
CHARI.ES J_ BERRY, Ovil Case No. 19CV000733
10
plaintiff,.
11

12
vs.
13
POPE YAU.EV UNION REMENTARY SCHOOL DISTR1CTI
14 NAPA COUl{IY OFACE OF EDUCATION,
15
DOES 1 THROUGH 10. THIRD AMENDED COMPLAINT
defendants..
16

18
1. This Third Amended Complaint is filed pursuant to the Opinion of the Court of
19

20 Appeal, certified by the Oerk of the Court on December 30, 2021. p. 18, in pertinent part:

21 "We also reverse the judgment to give Berry the opportunity to amend his complaint to add
22
new causes of action."
23
Jurisaldion and Venue
24

25 2. Defendants Pope Valley Union Elementary School District (PVUESD) and Napa

26 County Office of Educ.ation (NCOE) are distinct local agencies within the meaning of C.C.P.
27
Sec. 394(b),. they exist entirely within Napa County, and are subject to suit filed in Napa
28

Third Amended Complaint Page 1
2
1 County, or other California counties (see also Eel Code Sec. 35162)- The tortious actions

2 described below occurred in Napa County, and most potential witnesses live in Napa
3
County. Plaintiff resides in Lake County. Sonoma County Superior Court (in Santa Rosa)
4
would be an appropriate venue, because it is only slightly more distant from Pope Valley
5

6 (than is the City of Napa: 32 vs. 33 miles)~ and pre-trial motions and the trial itself, if held in

7 Santa Rosa, would be free from the appearance of bias against plaintiff.
8
General Allegations (Applicable to all Causes)
9
3. Plaintiff is ignorant of the true names and capacities of defendants sued herein as
10

11 DOES I THROUGH 10, inclusive, and therefore sues these defendants by such fictitious

12 names. Plaintiff will amend this complaint to allege their true names and capacities when
13
ascertained. {Plaintiff is informed and believes and thereon alleges that each of the
14
fic:t.iciously named defendants is responsible in some manner fut-the oa:urrences herein
15

16 alleged, and that plaintiff's damages as herein alleged were proximately caused by their

17
conduct.)
18
4. PlaJntiff has exhausted all avenues of resolution without trial: he asked
19
representatives of the NCOE and PVUESD for details of the initial allegation made against
20

21 him-he was ignored; he asked representatives of the NCOE and PVUESD for an opportunity

22
to address the initial allegation against him-he was ignored; he asked the NCOE
23
superintendent for a hearing-his email was ignored; he offered to testify under oath-he
24

25 was ignofed; he attempted to contact the PVUESD ombudsman-his email was ignored; he

26 sent emails desaibing the extremely unlikely circumstances of the initial allegation-he was
27
ignored; he filed tort claims with the NCOE and PVUESD (per Gov~ Code Sec. 911.2.) which
28

.
.,,_..._
,,
Third Amended Complaint Page 2
3
1 detailed the extremely unlikely circwnstances of the initial allegation and those which came
2
to light later (Exhibits A and B attached hereto; the NCOE tort daim incorporated the
3
PVUESD tort daim)-those claims were refused.
4

5 The exhibits which are attached hereto are true copies, except that pagination from

6
Appellant's Appendix on appeal is present in their corners, and as noted just above, a copy
7
of Exhibit B was originally attached to Exhibit A.
8
On March 15, 2019, plaintiff contacted the Department of Fair Employment and
9

10 Housing (by email), regarding the gender discrimination he had experienced (described

11
herein).. The initial DFEH response included the words "Please email a completed intake
12
form to initiate the OFEH complaint process", and plaintiff did so on March 25. Plaintiff
13

14
thought that this was a complaint,. as indicated by his multiple references to "complaint" in

15 his subsequent emails to the OFEH (a reference which was never corrected by DFEH

16
employees). Plaintiff's confusion was exacerbated by his complete unfamiliarity with DFEH
17
procedures, having never had a previous employment or housing issue. These emails were
18

19 provided to defendants in Plaintiffs declaration dated October ll, 2019.

20 No DFEH reply was forthcoming as the May limitations deadline to file a
21
Court complaint approached, so plaintiff filed his Napa County Complaint for Damages
22
without further DFEH communication. The DFEH finally replied on May 28th {telephone
23

24 and email). The DFEH contact person was Katie Musquez, and the DFEH case number was

25 201903-05610728. A few emails were thereafter exchanged and a few telephone
26
conversations occurred. The salient gist of that communication was that plaintiff could not
27
maintain simultaneously a DFEH complaint and a Napa County lawsuit-one must cease.
28

Third Amended Complaint Page 3
11
4

1 Plaintiff told Ms. Musquez that he was inclined to maintain the ~ wherein he would

2 investigate the gender discrimination which he had experienced. Ms. Musquez stated that
3
the OFEH procedure would be to formalize the OFEH compla~ and then withdraw it;
4
thereupon a •Right to Sue" letter would be issued. Plaintiff and Ms. Musquez had a
5

6 telephone conversation concerning plaintiffs allegations, so that Ms.. Musquez could create

7
the necessary forms. Ms. Musquez created ·these forms, but plaintiff was not satisfied with
8
the precise wording of the facts. He sent alternative wording to Ms.. Musquez,. which
9

wording was adopted. On August 8, 2019 a formal complaint was signed by plaintiff, and a
10

11 Right to Sue letter was issued to plaintiff on August 9, 2019. This complaint and this Right to
12
Sue letter are attached hereto as Exhibits C and D.
13
The Court of Appeal found that the events described above tolled the relevant
14

15 deadline (Court of Appeal Opinion, p. 10).

16 5. The NCOE has approximately 200 employees. PVUESO has approximately 15
17
employees.
18
6. Gov. Code sec. 815.2 makes the defendant public entities liable for the actions of
19

20 their employees, described herein, on the following terms:

21 {a) A public entity is liable for injury proximately caused by an act or omission of an
22
employee of the public entity within the scope of his employment if the act or omission
23
would, apart from ·this section, have given rise to a cause of action against that employee or
24

25 his pe,-sonal representative.

26 (b) Except as otherwise provided by statute, a public entity is not tiabte for an injury
27
resulting from an act or omission of an employee of the public entity where the employee is
28

Third Amended Complaint Page 4
5
1 immune from liability.
2
7. Employees of defendants consistently have acted with malice toward plaintiff: (a}
3
they refused to inform him of the allegations; (b) they refused to meaningfully communicate
4

5 ·with him (only a few terse, uninformative emails}; (c) thev refused to allow plaintiff a chance

6
to respond to allegations; (d) they refused to acknowledge the circumstances which made
7
the student allegations extremely unlikely (and on information and belief, subsequent
8
events-known to defendants-concerning. "Gracie" have further demonstrated her
9

10 unreliabiftty as a witness); (e) Defendants have retaliated against plaintiff fur his

11
descriptions of their employee lawlessness,. by refusing to reinstate plaintiff and retract
12
falsehoods, although defendants know that after a "careful review and considerationn given
13

14 to the facts by the ere, the ere did not reproach plaintiff to the slightest degree; (f) Mr.

15 Burkhart started with a sing.le ("pomhub") aRegation, but went out of his way to create,
16
solicit and distort further false or misleading. allegations, in ordec to pad his letters, to the
17
end that they would be more likely to injure plaintiff; (g) (information and belief:) Mr.
18

19 Burkhart. maliciously initiated a groundless and retaliatory aiminal investigation against

20 plaintiff (after receipt of plaintiffs tort daim which was critical of Mr. Burkhart), which
21
investigation terminated in plaintiff's favor, (h) Mr. Zikmund told plaintiff that he would call
22
him right bad to discuss the allegations (but never called although he knew plaintiff
23

24 waited); (i) Mr_ Burkhart stated that he was angry during the process pf distributing his

25 defamatory letters (butthis may have been posturing); (i) Mr. Zikmund ignored plaintiffs
26
offer to testify under oath; (k) NCOE employees believed that their actions would angec
27
plaintiff (and hence one told another to expect an "earful" from plaintiff); (I) Mr. Zikmund
28

Third Amended Complaint Page 5
6
1 refused to conduct even a cursory investigation (phone calls to the secretaries at the two
2
Calistoga schools-Marcela, Maria, Beatriz, Veronica-would have revealed plaintiff to be
3
unfailingly polite and courteous to everyone he encountered, and that plaintiff was a valued
4

5 substitute teacher whose dassroom feedback was excellent); {m) Mr. Zikmund refused to

6 apply the required standards or procedures of Ed. Code Sec. 44427 et seq.. {substituting his
7
arbitrary "'good fit" criterion, which has no basis in California law), to which plaintiff was
8
entitled as a aedentialed and certified teacher (of the substitute variety); (n) Mr. Zibnund
9

10 dispensed with the usual NCOE requirement that accusations include witness information;

11
{o) Mr. Burkhart (contrary to law) used classroom instruction time to enmu~ repeat and
12
solicit student lies against plaintiff (in order to pad his defamatory lettecs), to initiate his
13
own lies, to repeat the lies of students, and engaged in undue influence of potential
14

15 witnesses through his conduct on this occasion (he exposed students to the ries of "Gracie"

16
and "Mary" and a third girl), and used his authority as teacher and principal and
17
superintendant to intimidate other students to keep silent about the false nature of these
18

19
lies, as weJI as to provoke further- lies; (p) In his letters, Mr. Burkhart pretended to take

20 exception to plaintiffs Moon landing discussion, but had left this discussion on the board,
21
for all to see, for 13 days (April 25-May 8); (q) Mr. Burkhart lied about a dress code at
22
PVUESD, and knew that the PVUESD male school secretary usually wore shorts; {r) Mr.
23

24 Burkhart purported to fire plaintiff in his lettecs, but knew that only the PVUESD Board had

25 that power- (aa:ording to both PVUESD regulations and Ed. Code Sec. 44953); (s} Mr.
26
Burkhart: knew that PWESD regulations require that a teacher be informed of accusations,
27
but consciously violated those regulations (these regulations are attached heceto as Exhibit
28

Third Amended Complaint Page 6
7
1
E); (t) Mr. Burkhart failed to provide witness contact information to the NCOE or CTC, the
2
latter failure was contrary to 5 CCR Rule 80303 (the requirements of which he was well
3

4
aware), and his "investigation" report to the CTC is thereby improper within the meaning of

5 CIVil Code Sec. 47(a); (u) Under PVUESD regulations (Exhibit E), as posted on the PVUESD
6
website, only the Board determines employment issues, and the Board did not meet until
7
May 24, 2018, two weeks after Mr. Burkhart's letter to the CTC (see the PVUESD agenda at
8

9
Exhibit F}. Nor did the PVUESD Board retroactively fire plaintiff, because those same

10 regulations require notice to the fired employee, and none was received by plaintiff; {v) the
11
PVUESD ombudsman ignored plaintiff's request; (w) [Information and belief:} Mr. Burkhart
12
attempted to limit plaintiff's access to adult witnesses (PVUESD removed employee email
13

14 addresses from its website shortly after the accusations); (x) Mr. Burkhart's accusations all

15 came without any prior notice to plaintiff.
16
8. The first sentence of Mr. Burkhart's CTC "investigation" letter indicates that it was
17
also a "report" within the meaning of Civil Code Sec. 47(a), made pursuant to 5 CCR 80303
18

19 (the requirements of which he was aware since he cited this section to the CTC, and section

20 80303 is noted in PVUESD regulations-see Exhibit E). This letter was improper (and thus
21
improper within the meaning of Civil Code Sec. 47(a)) in three respects: (1) It falsely
22
represented that there had been a change of employment status, as required by Sec.
23

24 80303(a); (2) The letter did not indude witness information (Sec. 80303{b)(6); and {3)
25
plaintiff was not informed of the information required by Sec. 80303(e). By this letter, Mr.
26
Burkhart maliciously induced a CTC investigation of plaintiff. The letter was malicious
27

28
because Mr. Burkhart knew that some allegations were wholly false (e.g., he was in the

Third Amended Complaint Page 7
- -
8
1 room when innocuous Hitler facts wece. briefly mentioned; he misrepresented the dress
2
code at PVUESD-if thece was a dress rode at all-since the school seaetary usually wore
3
shorts and his other duties made him highly visible to students throughout the day, and the
4

5 Moon landing discussion was obviously part of an "epistemology" presentation; this word

6
was written by plaintiff on the hlackhoardr see exhibit G-which wocd Mr. Burkhart omitted
7
from his letter). Furthermore, Mr. Burkhart's purpose in writing the lettec was to injure
8
plaintiff, the ere investigation was initiated wholly by Mr. Burkhart's lettec, and the CTC
9

10 investigation was conduded in plaintiff's favor, without the slightest reproach of plaintiff

11
(see Exhibit H).
12
9. At aH times herein Ken J. Burkhart was a teacher, principal, and superintendant at
13

14 PVUESD, was purportedly acting in these roles, and was subject to the PVUESD Board of

15 Trustees, which is responsible for his actions described herein.
16
10. At all times herein John Zikmund and Judy Alexander were agents and
17
employees of the NCOE, Barbara Nemlco was the NCOE Superintenden~ and all three acted
18

19 with the authority and approval of the Trustees of the NCOE Board, which is responsible for

20 the actions of these three, as described herein.
21
11. The calendar dates referenced herein are presumed to be accurate, but may be
22
approximate; defendants and their employees know the exact dates.
23

24 12. Plaintiff became a certified substitute teacher within Napa County, following

25 compliance with numerous NCOE requirements, such as providing letters of
26
recommendation, fingerprinting. signing documents, providing a Social·Securtty card and a
27
CDLr traveling to the NCOE offices, etc. As a substitute teacher, plaintiff successfully served
28

... .
... .
.. ....
. 1 Third Amended Complaint Page 8
·I
9
1 in four Napa School districts: Calistoga,. St.. Helena, Pope Valley, HoweU Mountain. Most of

2
his Napa substitute days were spent at the two schools in Calistoga, occasionally in St.
3
Helena, six times at Pope Valley, once at Howell Mountain.. Prior to May 8, 2018,. plaintiff
4
was happily engaged in these schools, on the sporadic basis which substitute teaching
5

6 requires,. and took. pride in bringing a rich educational experience to whatever classroom he

7
was in that day. He felt respected, appreciated every time he was called to come in, and he
8
valued his school contacts, with students, teachers, and administration. Plaintiff also
9

10
served in four school districts in Lake County. Plaintiff was in great demand as a substitute

11 teacher, and served approximately 90% of schooJ days. As a result of the CTC investigation,

12
plaintiff lost 1-5 school years of substitute teacher income (summer not included).,. as well as
13
the positive contacts with school staff and students which he experienced every time he
14

15 taught, and the strong sense of purpose which plaintiff enjoyed, by conveying the twin joys

16 of learning and possession of knowledge, whenever he could.
17
13. Plaintiff was employed by the school districts (not by the NCO£), and these
18
districts paid his daily salary {see Exhibit I, from the NCOE website). One of the NCOE
19

20 responsibilities is to evaluate accurately whether a particular person is entitled to teach in

21 Napa schools, pursuant to California law, induding the correct application of Ed. Code sec.
22
44427 et. seq.
23
14. On May 8, 2018 three students at PVUESD falsely accused plaintiff of, during
24

25 classroom instruction 13 days previously on April 25, 2018, referencing a particular

26
pornography website in the same classroom, potentially available for every student to hear.
27
No such website reference (or any inappropriate website reference) had been uttered by
28

Third Amended Complaint Page 9
l
10

1 plaintiff, and the circumstances of the allegation demonstrated that the allegation was false,
2
induding the long delay between the day of the alleged website reference (April 25) and the
3
day of the allegation (May 8), and the desire of these three students to avoid Sustained
4

5 Silent Reading and PE (they dramatically stormed out of class "in a coordinated manner). [On

6
information and belief] Mr. Burkhart, in reckless disregard of truth, ignored those
7
circumstances, presumed {or pretended to presume} the truth of the allegation, alluded to
8
the allegation to his assembled class (thereby repeating the slander and creating another
9

10 instance of the slander), and solicited (or invented himself) further false allegations; his

11
classroom demeanor and statements expressed approval for concocted lies against plaintiff,
12
which a few students obliged (some feigned acquiescence, fearing retaliation by Mr.
13

14
Burkhart or the accusing students). Mr. Burkhart thereafter composed two letters dated

15 May 9, 2018 consisting of a mixture of false allegations, partially true (but misleading
16
through his omission or elaboration) allegations, and false innuendo; the true parts wece
17
innoruous and innocent, but his false elaborations thereupon (and innuendo)tumed truth
18

19 into defamatory falsehood. These letters were addressed to the NCOE and the califomia

20 Commission on Teacher Credentialing (CTC), and were composed for the purpose of falsely
21
portraying plaintiff in a negative light, causing psychological anguish, and ending his
22
teaching career {Mr. Burkhart knew that his NCOE letter could end plaintiffs teaching in atl
23

24 Napa County school districts, and that his CTC letter could end plaintiffs teaching

25 throughout California).. On information and belief, Mr. Buckhart had a history of
26
communications with the NCOE,. and knew the probable outcome of his letters would be the
27
end of plaintiff's teaching in Napa County. True copies of these letters are attached hereto
28

Third Amended Complaint Page 10
11
1
as Exhibits J and K. Plaintiff was not present for Mr. Burk.hart's classroom allegation
2
extravaganza, but on information and belief, believes the above summary to be accurate.
3

4
Furthermore,. Mr. Burkhart knew that the leader of the accusers ("Gracie") had significant

5 psychological issues, which made her statements unreliable. Mr. Burkhart's purpose in
6
listing several falsehoods and misleading statements was to injure plaintiff.
7
15. Upon receipt of Mr. Burkhart's letter of false allegations to the NCOE, Mr.
8

9
Zikmund and Ms. Alexander summarily (i.e., without any investigation whatsoever, without

10 any opportunity for plaintiff to respond), and with reckless disregard for the truth, created
11
their own falsehoods. On May 8, 2018 Ms. Alexander emailed all Napa County School
12
districts as follows (Exhibit L): "Effective immediately, place Substitute Teacher, Charles
13

14 Berry, INACTIVE- until further notice". "Importance: high" added to the impression that

15 plaintiff had done something wrong. This email was false in multiple respects: it falsely
16
implied that plaintiff was not eligible to teach for one or more of the reasons that are
17
described by the relevant statute (Ed. Code Sec. 44427)-none of the prohibitions of this
18

19 statute even remotely applied to plaintiff. This email also indicated to the recipients (based

20 on their previous experiences with NCOE emails) that plaintiff had done something wrong,
21
which impression was reinforced by plaintiff's continued ineligibility (i.e., a mere technical
22
issue would have been resolved quickly), and past communications between the NCOE and
23

24 Napa School districts of this type. since [information and belief] such communications were

25
used for misbehaving teachers, and the recipients of this email understood that it indicated
26
inappropriate behavior by plaintiff, when in fact plaintiff had at all times in Napa dassrooms
27
promoted the highest educational values and had done absolutely nothing wrong. (On
28

Third Amended Complaint Page 11
12
1
information and belief} the named recipients handle personnel problems for Napa school
2
districts, and each could see the names of the others, the "high" importance, and they
3

4 knew, based on previous experience with NCOE communications, that such emails indicated

5 teacher misa:mduct. Although there was not the slightest instance of misconduct by
6
plaintiff at any time in any Napa classroom whatsoever, the emails suggested otherwise.
7
16. On May 10, 2018 Mr. Zikmund of the NCOE created another falsehood, made in
8

9 reddess disregard of truth (without investigation, without consulting plaintiff), by sending

10 plaintiff an email which contained the following statement: "This is to inform you that we
11
are inactivating you as a Substitute Teacher effective immediately as you have been
12
considered not a good fit for our schools and students." (attached hereto as Exhibit M; no
13

14 other reason for the inactivation was given) This opinion of Mr. Zikmund is false because

15 plaintiff's experiences in Calistoga and St. Helena schools (and prior occasions at PVUES0}
16
we,-e elCceHent and professional in every respect: plaintiff brought rich educational and
17
professional experiences to every classroom opportunity he was given, and these
18

19 experiences were wonderfully satisfying for plaintiff. because he was making a positive

20
difference in youthful lives. and he was passing along the wide array of interesting factual
21
knowledge which he had ac.cumutated throughout his life. Plaintiff enjoyed the positive and
22

23
professional interactions he had with staff and students and administration at the Calistoga

24 and St. Helena schools. The positive communications which plaintiff had Ylith school staff
25
and students, indicated that he was appreciated. Mr. Zikmund's opinionated email to
26
plaintiff contributed to plaintiff's shock, anger, stress, anxiety and depression, because of its
27

28 falsity, which effects Mr. Zikmund knew were probable_ California law pcedudes

Third Amended Complaint Page 12
13
1
substitution of an arbitrary and s u b ~ opinion (such as Mr. Zikmund's) for the standards
2
and procedures of Ed. Code Sec. 44427 et seq.
3

17. At the time he made the nnot a good_fit" statement, Mr. Zikmund knew that
4

5 almost every employer asks a.prospective employee for the "reason for leaving" prior jobs,

6
that the "not a good fie language given as the reason for making plaintiff inactive would
7
have to be quoted by plaintiff on future job applications (since there was no other reason
8

9
for his action), and that this language would create the impression that plaintiff had done

10 something wrong with children, when in fact plaintiff had achieved a high standard of
11
teaching throughout his substitute days in Napa schools, had done nothing whatsoever
12
wrong with children, and his school activity was above reproach-his teaching reputation
13

14 was excellent. Mr. Burkhart, Ms. Alexander, and Mr. Zikmund also knew that plaintiff was

15 58 years of age, that fewer job opportunities exist for older employees, and that their
16
falsehoods could negatively impact plaintiff.
17
18. On information amt belief: upon receipt of plaintiffs Gov. Code Sec. 911.2 daim
18

19 in November of 2018, Mr. Burkhart of the PVUESD instituted a retaliatory criminal

20 investigation against ptaintiff, and made false and misleading statements against plaintiff to
21
induce law enfor-cement officials to investigate plaintiff. As a result, plaintiffs name
22
appears in law enforcement records, in a negative rsght, to plaintiff's prejudice. The
23

24 investigation concluded in plaintiffs favor. Furthermore, fmformation and belief] PVUESD

25
and NCOE employees conspired to cause a false warning-without basis-to be issued to
26
other Napa school districts, warning them that plaintiff might act in an inappropriate
27
manner.
28

Third Amended Complaint Page 13
14
1
Retaliation: Mr. Burkhart's institution of a criminal investigation against plaintiff was
2
in retaliation for plaintiff's filing of a tort daim, in which plaintiff described Mr. Burkhart's
3

4
false statements, as well as revealed the dubious teaching skills of Mr. Burkhart (e.g., he

5 doesn't use the chalkboard, used dassroom time to conduct witchhunts, and is oblivious to
6
the value of education which fascinates students and provokes them to think). Although
7
employees at the NCOE know that the ere investigation against plaintiff ended without the
8

9
slightest reproach of plaintiff, they will not retract their emails, which failure to retract is in

10 retaliation for plaintiff's statements concerning their utter lawlessness (no Ed. Code 44427
11
et seq. procedures were followed, Barbara Nemko is either ignorant of these hearing
12
provisions or doesn't care about following the law.,. no witnesses are needed when a male
13

14 teacher is accused, etc.).

15 19. On information and belief: other false,. slanderous {i.e.,. spoken) and libelous
16
statements were made by Mr. Burkhart, Ms. Alexander, Mr. Zikmund, and other NCOE and
17
PVUESD employees against plaintiff, and this complaint will be amended to describe those
18

19 statements when they ere ascertained. Furthermore, based on past conversations and

20 practices, by which allegations automatically were treated as truth,. the above-named
21
employees conspired to make the intentional or reckless defamatory statements of PVUESO
22
become the intentional or reckless actions and statements of the NCOE. Furthermore,
23

24 [information and belief} based on past practices.,. Mr. Burkhart knew that the NCOE would

25
dispense with procedural niceties for ac.a1sations against a male substitute teacher.
26
20. As a proximate result of the above-described publications and statements, in
27
addition to loss of income, plaintiff has suffered loss of his reputation, shame, mortification,
28

Third Amended Complaint Page 14
15
1 stress, anxiety, shock. anger, deprewon and his employment opportunites are now
2
reduced. Furthermore, numerous scientific studies demonstrate that these psychological
3
phenomena are associated with reduced longevity: defendants have shortened plaintiff's
4

Case Info

Judge

Cynthia Pillsbury Smith Track Judge’s New Case

Case No.

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Document Filed Date

June 15, 2022

Case Filing Date

May 15, 2019

County

Parties

Berry, Charles J Plaintiff
Darmagnac, Kathleen Lynn Attorney for the Defendant
Leone, Louis Anthony Attorney for the Defendant
Napa County Office Of Education Defendant
Pope Valley Elementary Unified School District Defendant
Symonds, Megan M Attorney for the Defendant
Jimmie Johnson Attorneys for Defendants
Timothy Murphy Attorneys for Defendants
Jordan Meyer Attorneys for Defendants
Brian Duus Attorneys for Defendants
Vilma Lopez Attorneys for Defendants

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Document for Charles J Berry vs Pope Valley Elementary Unified School District et al

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