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Edward Swanson, SBN 159859
ed@smllp.law
Britt Evangelist, SBN 260457
britt@smllp.law
SWANSON & McNAMARA LLP
300 Montgomery Street, Suite 1100
San Francisco, California 94104
Telephone: (415) 477-3800
Facsimile: (415) 477-9010
Attorneys for Defendant
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
06/27/2017
Clerk of the Court
BY:ANNA TORRES
Deputy Clerk
SHANE CLARIDGE WHITE, as Executor of the Thomas F. White Estate
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION
PATRICK KELLY
Plaintiff,
v.
SHANE CLARIDGE WHITE, as Executor of
the Thomas F. White Estate
Defendant.
Case No.: CGC-13-535823
EXHIBITS G and H
INDEX OF EVIDENCE IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR,
IN THE ALTERNATIVE, SUMMARY
ADJUDICATION by Shane Claridge White, as
Executor of the Thomas F. White Estate
Hearing Date: September 20, 2017
Location: Dept. 302
Time: 9:30 a.m.
Reservation No.: 06260920-04
Action Filed: December 2, 2013
Trial Date: October 23, 2017
Index of Evidence ISO Motion for Summary Judgment/Summary Adjudication
Kelly v. White, No. CGC-13-535823EXHIBIT Gwe
PATRICK KELLY
IN PRO PER.
945 Taraval Street #250
San Francisco, CA 94116
mailforpatkelly@gmail.com
Plaintiff In Pro Per
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
PATRICK KELLY, Case No.: CGC-09-494198
Plaintiff, PLAINTIFF ANSWERS TO SPECIAL
INTERROGATORIES FROM
a DEFENDANT TO PLAINTIFF
THOMAS WHITE, and DOES 1 through 25,
inclusive,
Defendants,
PROPOUNDING PARTY: Defendant Thomas White
RESPONDING PARTY: Plaintiff Patrick Kelly
SET NUMBER: Three
239. Thomas White statements made to Patrick Kelly on or about February 2005:
a) White stated that if I could succeed at getting him a new passport he would buy
me a new Mercedes S-500 as a bonus that we could use to drive to the boarder together in style
(for visa runs).
ots
PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO PLAINTIFF
CGC-09-494198b) White stated that he agreed with my position that while it might be fun to drive to
the boarder in a Mercedes S-500 it did not really fit my style or financial situation and that I
would be better off with the cash equivalent.
¢) White stated that he was concerned about being hounded by NGOs in Cambodia
and also worried that they could cause the government to revoke his citizenship.
d White stated that there was no need to put our agreement in writing since I could
trust him to live up to the agreement if I succeeded and further that he did not want to take the
chance that prison officials and others such as the FBI might see the written agreement if it was
reviewed by prison officials prior to his being able to sign it which was the normal procedure for
all documents he signed.
e) White stated that he did not want me to tell Cal, Kunacha, Deborah or anyone else
about our agreement because he was worried they would start asking him for more money and
would be hurt if they found out he was paying me more than he was paying them.
ph White stated that he agreed with my analysis that it would be foolish to attempt to
acquire illegal documents since they likely would not stand up to the high level of scrutiny he
would surely receive when passing through © S
g) In response to my question about how much the budget should be for the
citizenship acquisition project White stated $1-million dollars,
h) White stated that he would not pursue second tract attempts to acquire citizenship
through others during the time | was trying to acquire citizenship for him because he agreed with
my concerns that other attempts to acquire citizenship could jeopardize my chances of success,
i) White stated that he would suspend all other attempts to acquire citizenship for
him and further stated that he had already lost a lot of money on previous failed attempts.
jp White stated that he wanted me to acquire a passport for him as quickly as
possible and that he was willing to pay for expedited service,
ky White stated that he was putting me in charge of the citizenship project and
agreed not to remove me from that position until it reached a successful conclusion.
1h White stated that he gave me the authority to use my best judgment to speak on
his behalf where circumstance required immediate decisio
m) White stated that he would be willing to set up a charitable foundation in
Cambodia to help the poor and/or transfer funds from his Mexican foundation to Cambodia
n) White stated that he wanted me to look into buying a house for him in Cambodia
if the citizenship project succeeded though he was not sure where it should be located.
2.
PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO PLAINTIEF
CGC-09-494 1980) White stated he would not discuss the citizenship project with Cal, Deborah or
non-attorney others due to the need to keep the Project and its delicate negotiations confidential.
239. Patrick Kelly statements made to Thomas White on or about February 2005:
a) I stated that I believed I could convince high officials that White was innocent of
the charges against him and further convince them that he was the victim of an international
conspiracy to extort money from him.
b) I stated that if White was willing to do things like set up a charitable foundation to
help the poor in Cambodia this could open the way to his acquiring citizenship in Cambodia.
c) I stated that if White gave me control ofa project to acquire citizenship for him
that | thought I could succeed provided I had full authority to act on his behalf and provided
White did not discuss the project with anyone other than his attorneys.
d) I stated that the first task in any such project would be to locate the tight people to
approach with the citizenship request and further that I knew how to do this by testing the
credibility of those we would approach.
e) I stated that I would not involve myself in anything illegal on White’s behalf and
to do so would be potentially detrimental to both of us.
f) [stated that in my opinion the country where White stood the best chance of
acquiring citizenship would be Cambodia
g) I stated that though I appreciated his offer to buy me a Mercedes $-500 if]
succeeded in getting him a legal passport, | would rather have the cash equivalent since I needed
the money to open a coffee shop.
h) I stated that Mercedes S-500 cost about $350,000 US in Thailand,
i) I stated that all my responsibilities under our agreement would be completed as
soon as I was given a passport for White that contained a Thai visa from the Thai embassy in
Cambodia which would confirm the validity of the passport.
ji I stated that Calvin Miller could not be involved in the project because I did not
trust in his ability to be discreet and keep his mouth shut and that if the wrong people found out
about the project they could easily prevent its success.
k) I stated that I thought Calvin Miller might feel insulted by not being invited to be
part of the citizenship acquisition project and further stated that I needed White's assurance he
would not change his mind later and ask me to include Miller in the project.
1g!
PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO PLAINTIFF
CGC-09-4941981) I stated that | would acquire an attorney to assist me in the project,
m) I stated I was worried that if White told his friends and family about my
involvement in the citizenship acquisition project they might take steps to undermine its success,
n) I stated that I trusted White to live up to the agreement and agreed with him that
we did not need to put it in writing.
0) I stated that I thought I could bring the project to a successful conclusion with his
suggested budget of $1,000,000 and that the budget amount did not include my bonus.
p) I stated that I did not want Kunacha involved due to the fact he might see such a
project as encroaching upon his role as White’s Thai attorney.
qQ I stated that I would do everything possible to see that the project moved along as
quickly as possible.
rt) I stated that though Cambodia NGO's could and likely would become a potential
problem for White once they discovered he was a Cambodian citizen, there was nothing we
could do about that at this point and that if it became a problem we could cross that bridge when
we came to it.
s) I stated that it was my understanding that once White was granted citizenship it
would be very difficult for an NGO or anyone else to legally force the government to revoke his
citizenship.
t) I stated that I thought it would be difficult for the US to extradite White from
Cambodia since he would be. a Cambodian citizen who would also likely have friends in high
places who could balance out any extrajudicial US influence.
239. Patrick Kelly statements made to Calvin Miller on or about February 2005:
a) I stated that Tom had agreed to pay me a sizable bonus if I succeeded in gaining
2™ citizenship for him,
b) Tstated that due to the sensitive nature of the Citizenship Acquisition Project I
was not able to discuss any of its details with Miller and that he should not take this personally.
c) I stated that I had hired an attorney to assist me and that I thought I would be able
to succeed at gaining citizenship for White.
d I stated that when we landed in Cambodia we were given the VIP treatment
including a military escort that even accompanied me when I went to the bathroom,
PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO PLAINTIFF
CGC-09-49419827
e) I stated that I was concerned about my safety when I traveled to Cambodia
because I was not sure of the type of people I was dealing with,
h I stated that we had met with high military officials and members of the King’s
family.
2) T stated that White was impatient and expected me to accomplish this all but
impossible task overnight.
hy I stated that the fact White was imprisoned in Thailand and could not travel to
Cambodia made the task of acquiring citizenship for him extremely challenging.
239. Calvin Miller statements made to Patrick Kelly on or about February 2005:
a) Miller stated that White was a man of his word but could get a Little strange when
it came to money.
b) Miller stated that he agreed with the need to keep the citizenship project on a need
to know basis but that I might be expecting too much to think that White would not tell his
trusted friends and family members about the project.
&) Miller stated that Wray Pomeroy was a real blabbermouth and that if he ever got
wind of what was going on the project might as well be on the front page of a newspaper.
d) Miller stated that White had a difficult time dealing with all the requests for
money from the steady stream of triends and family who visited him at the jail.
The above statements are not exact quotes but rather general recollections of things that
were said. These statements obviously do not encompass everything that was said but represent
most of what comes to memory at the time of this writing.
240. Objection - Excessive number of Interrogatories,
241, Objection—Excessive number of Interrogatories.
242. Objection ~ Excessive number of interrogatories.
I declare under penalty of perjury under the laws of California and Thailand that the
foregoing is true and correct.
» Patrick Kelly, Plaintt
Dated: 4 L2fiz
5-
PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO. PLAINTIFF
CGC-09-494198EXHIBIT HwD
t
PATRICK KELLY
IN PRO PER
77 Van Ness Ave #1250
San Francisco, CA 94102
Tel (415) 906-5151
mailforpatkelly@gmail.com
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction) FA c
SS
R
PATRICK KELLY, Case No.: CGC-09-494198 0 IGINAL
Plaintiff, PLAINTIFF’S SEPARATE STATEMENT
OF UNDISPUTED MATERIAL FACTS
vs. | Date: Oct. 10,2012
Time: 9:30 am.
THOMAS WHITE, and DOES I through 25, | Dept: 302
inclusive,
| TELEPHONE APPEARANCE BY
Defendants. PLAINTIFF
Trial Date: May 6, 2013
¢ Pursuant to Code of Civil Procedure 437, Plaintiff submits its Separate Statement of
Undisputed Material Facts and Supporting Evidence in support of its Opposition to Defendant’s
Motion for Summary Adjudication.
Issue No, 1: Undisputed Material Facts (UMF) in defendant’s Separate Statement are incomplete
and thereby misleading.
Defendant’s Undisputed Material Facts Plaintiff's Response to Defendant"s UMF
And Supporting Evidence Supporting Evidence
1. Plaintiff's cause of action for breach Defendant left out important statements
of oral contract entered into on or in the Second Cause of Action that
about February 2005, is premised = _)_ detail the fact that defendant breached
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198,nN
on claims that defendant paid him
$25,000 on the contract and that
based on defendant’s representation
that defendant would pay the
remaining $325,000 once defendant
was released from prison, plaintiff
agreed to modify the contract and
excuse defendant’s payment of the
remaining $325,000 until defendant
was released from prison.
Supporting Evidence
1. Plaintiff's First Amended
Complaint, { 9; Plaintiff's
answer to Interrogatory No. 50.3
in defendant’s Form Interrogatories,
Set No. One (Form Interrogatories
and Answers are attached as Exhibits
A and B, respectively, to the
Declaration of Geoffrey Rotwein, { 2).
Plaintiff set the date of the contract to
on or about February 2005 in Exhibits
Cand D to the Rotwein Declaration,
2
PLAINTIFF SEPARATE
‘ATE!
the agreement to defer payment until
the defendant was release from prison
when he terminated plaintiff's
employment including:
First Amended Complaint (FAC)
#28. “On or about February 19, 2008,
White terminated KELLY’s employment
thereby accelerating the date the deferred
bonus amount was due from the date
WHITE was released from prison to the
date WHITE terminated KELLY’s
employment. Since no bonus was paid
WHITE breached the oral agreement by
refusing to compensate KELLY pursuant
to the terms of the contract.”
Defendant implies the contract was never
breached and was and is still active
thereby rendering the entire Second
Cause of Action premature while ignoring
any issues concerning the anticipatory
breach of the contract plaintiff alleges
in #28 of his FAC.
Though plaintiff agrees with the facts put
forward by the defendant in #1 those facts
were obviously taken out of context and
deliberately omit the material fact that
defendant breached the agreement in
question whose contract validity he now
attempts to rely upon as justification for
the motion at hand.
Plaintiff's position is that there was an
anticipatory breach of the contract at the
time the defendant terminated plaintiff's
employment and defendant is wrong to
ignore facts surrounding the breach of
that contract while at the same time
stating in his Reply to Plaintiff's FAC;
“Defendant Thomas White generally
denies each and every allegation in
plaintiffs First Amended Complaint filed
March 21, 2012” and stating in the
motion at hand; “defendant disputes that
any contract arose as plaintiff alleges in
INT IN SU
PORT
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
91872. Defendant Thomas White has been
incarcerated in prison continuously
from January 1, 2005 through the
present.
Supporting Evidence
2. Declaration of Geoffrey Rotwein,
q3.
his FAC.” Both these statements are
clear evidence plaintiff repudiated the
contract. Defendant cannot claim his
obligations have not yet arisen regarding
a contract he repudiates since repudiation
caused or causes an anticipatory breach
of the contract.
Even if defendant disputes he committed
an anticipatory breach when he
terminated plaintiff's employment which
is difficult to reason given the evidence,
if he did not commit an anticipatory
breach then he has now by the two
statements noted above.
Agreed, Though this statement is
technically correct, the true start date of
defendant’s incarceration was on
February 11, 2003.
Issue No. 2: Defendant generally denies each and every allegation in plaintiff's First Amended
Complaint including the Second Cause of Action which plaintiff contends is meritorious.
Undisputed Material Facts
3. Defendant Thomas White generally
denies each and every allegation in
plaintiff's First Amended Complaint
filed on March 21, 2012. (This denial
by implication includes the supporting
facts and events associated with each
and every allegation in the Second
Cause of Action in plaintiff's FAC as
set out below in #4 - #42 which
plaintiff contends are undisputed
material facts. CCP 437¢ — b3 “The
statement also shall set forth plainly
and concisely any other material facts
that the opposing party contends are
disputed. Each material fact contended
by the opposing party to be disputed
PLAINTIFF SEPARA
OPPOSITION TO MOTIO}
Supporting Evidence
Answer to First Amended
Complaint (Exhibit *A”).
ENT IN SUPPORT OF
FOR SUMMARY ADJUDICATION
GC~09-494 198,
918826
27
shall be followed by a reference to the
supporting evidence.”)
. Plaintiff first met the defendant in 2002
In Los Angeles California where the
defendant agreed to invest $192,900 to
fund further development of the
plaintiff's website LogicalReality.com,
as detailed in First Year Expense
Projections approved by the defendant.
LogicalReality.com was a public affairs
website with articles on several
controversial subjects including religion,
gun control, the Iraq war, pedophilia
and other hot button subjects.
. Defendant was arrested and
incarcerated in Bangkok Thailand
request for extradition put forward by
Mexico.
. Defendant hired plaintiff to assist him
in his quest to be released from prison
and offered to pay the plaintiff a
“stipend” of $2,000 a month plus
bonuses which would be based upon
the proven worth of what the plaintiff
could do to assist the defendant.
(Note: Facts 7-25 which follow, evidence
some of the reasons plaintiff came to
believe the defendant was innocent which
serve to establish how and why plaintiff
came to believe he could succeed at
gaining 2” citizenship for the
defendant through convincing others
of defendant’s innocence. These facts
and events also help establish the state of
mind of the parties when they entered into
the Citizenship Acquisition Agreement.)
Defendant was indicted in the US on
“Conspiracy to Travel With Intent to
Engage in Sex With Juveniles” and
faced prosecution on those crimes
if he ever stepped foot on US soil.
age
PLAINTIFF SEPARA
LogicalReality.com First Year
Expense Projections
(Exhibit “B”).
Defendant’s financial records yet
to be discovered,
News reports and other documents
yet to be acquired.
Behavior of the parties over a
period of over 4-years.
US Indictment face page
(Exhibit “C”) since the indictment
has been sealed though the
plaintiff has a copy of the full
indictment provided by defendant.
ATEMENT {N SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
91898. After viewing a video recording which DVD held by defendant’s attorney
was a primary piece of evidence Stuart Hanlon not yet acquired in.
supporting the defendant’s indictment discovery.
that showed the defendant in bed with
someone from Prague alleged to be under
18 according to an affidavit by a
prosecution expert, plaintiff doubted the
validity of the US expert’s assessment of the
true age range of the individual based
upon the fact the expert’s opinion was
likely skewed by the nationality and
cultural differences between someone
from Prague versus someone from the
US. Additionally, the fact the defendant
met this individual in a bar in Prague
certainly evidenced the defendant’s
reasonable assumption that the person
taken back to his hotel room was
over 18. Also, the fact the expert’s
qualifications were never questioned
and the person alleged to be under 18
was never located led the plaintiff to
believe the charges against the defendant
could not withstand rational or legal scrutiny
if ever brought before a court.
9. Plaintiff’s personal assessment of the Email summary of treatment costs
defendant was that he was an honest, (Exhibit “D”).
altruistic, trustworthy person incapable
of harming children due to the caring
nature the plaintiff had witnessed on
many occasions including when he
offered to pay for plaintiffs treatment
for Hepatitis C which cost about $18,000.
10. Defendant told the plaintiff several Declaration of Plaintiff #10.
times that he was a victim of an
international conspiracy to extort
money from him and after reviewing
much of the evidence supporting
allegations of child-sex crimes against
the defendant recantations by alleged
victims, the plaintiff believed the
defendant was being truthful.
PLAINTIFF SEPARATI
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494 198
019026
27
11. In and around the time of the defendant’s
indictment, someone broke into the
plaintiff's apartment and stole his
laptop which contained information
related to the defendant. Plaintiff
wondered at the time if there was
any connection between the burglary
and those prosecuting the defendant.
12. The same week a ruling was due to be
handed down in the defendant’s
extradition case, someone posted a
link on LogicalReality.com’s
public bulletin board linking it to
a website containing pictures of
nude boys some of which the plaintiff
determined likely met the legal
definition of child pornography due
to the fact they showed erect penises.
Plaintiff removed the link to the child
pornography website (CPW) and
investigated the source by running a
whois command on the site’s ip address.
Plaintiff determined the website was
hosted on a server that was physically
located in Mclean Virginia and
consequentially on a server hosting
numerous government websites.
13. Two days before a decision was due
to be handed down in the defendant’s
Thai/Mexican extradition case two
fraudulent checks were issued
against the Los Angeles, CA Bank of
America corporate account of
LogicalReality.com Inc. The bank
paid both checks in spite of the fact
both the signatures and printed
company names on the checks did not
match those on the account. After
investigating who wrote the checks,
plaintiff determined that one of the
checks was used te purchase computer
equipment and the other to purchase a
digital camera through EBay by someone
-6-
Evidence not yet acquired in
discovery.
Copy of LogicalReality.com
bulletin board posts
(Exhibit “E”).
Copies of the fraudulent checks.
(Exhibit “F”).
SEPARATE STATEMENT IN SLIPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
9194>.
whose office address was coincidently
in the same building as Interpol in
France.
. Based upon the evidence uncovered
during plaintiff's investigation including
the timing of the events, plaintiff
concluded he was being set up to be
arrested by rogue elements of the FBI
or other government officials unknown to
the plaintiff in a fallback plan to arrest
both the defendant and plaintiff on child
pornography charges related to possible
attempts to associate the plaintiff's website
with false evidence of illegal activity, in the
event the defendant won his extradition
ease and was released from prison in
Thailand. As it turned out, the Thai Court
denied Mexico’s request for extradition
which plaintiff believes the US was
informed of before the decision was handed
down thereby further evidencing motive
and the sense of urgency behind an
assumed plot to assure the defendant could
be rearrested in the event he was set free.
Fearing he may be arrested at any moment
plaintiff forwarded all the evidence he had
gathered excluding any photos from the CPW
he felt met the definition of child pornography
to the defendant’s attorney Stewart Hanlon in
San Francisco in the hope the attorney could
intercede and prevent any illegal acts by rogue
law enforcement officials.
. Several days after notifying Hanlon that the
plaintiff had sent evidence to him that could
indicate an illegal conspiracy by rogue law
enforcement officials against his client,
Hanlon notified plaintiff that the Fed-Ex
package sent to him had been consequentially
singled out for inspection and seized in
Alaska by US Customs officials as child
pornography.
Lye
Reasonable supposition based on
the evidence.
Letters from plaintiff to defendant
including Exhibit “G”.
Documents in Stewart Hanlon’s
possession yet to be discovered.
Emails between Hanlon and the
plaintiff yet to be discovered.
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494 198
019217.
20.
2
22.
Since the FedEx package had plaintiff's name Reasonable understanding based
and address on it in the sender info block on on US Child Pornography law.
the FedEx form and also contained plaintiff's
US passport info, plaintiff assumed there was
a good chance he would be arrested on child
pornography charges which is assumedly what
happens to anyone caught sending child
pornography in a FedEx envelop.
. In response to the FedEx package seizure See Exhibit “G”.
plaintiff emailed an identical evidence
package to the Inspector General’s Office in
Washington, DC.
. Further evidencing a conspiracy, plaintiff Plaintiff declaration #30.
consequentially was never arrested and
later discovered no arrest warrants were
ever issued against him nor was the FedEx
envelop ever returned by US Customs
officials in Alaska.
Five days after Mexico lost the case
to extradite the defendant, the US
revoked the defendant’s passport
leaving him without travel documents.
Revocation letter (Exhibit “H”).
. Without travel documents, even Thai Immigration Law
if defendant won his extradition
case with Mexico, as soon as he
was released from prison, Thailand
would simply deport him back
to the US due to his lack of travel
documents and the fact defendant
was a US citizen.
Plaintiff recommended to defendant Letter from plaintiff to defendant
that one way he could circumvent not yet located.
attempts to have him deported to the
US if he wins his extradition case
would be for him to acquire 2"
citizenship and that he should instruct
his attorneys to look into this for him.
Plaintiff also said he would research
the matter to see if it was possible and
if so which country he should pursue.
-8-
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494 198,23. At this point plaintiff was convinced
there was an illegal conspiracy against
the defendant by rouge law enforcement
officials bent upon convicting him for
sex tourism in large part supported by an
illegal conspiracy to extort money from
the plaintiff by individuals who had
brought a civil lawsuit in San Francisco
seeking damages related to alleged sexual
abuse of a minor. Plaintiff felt there was
enough evidence based on the above events
to convince others that the defendant
was innocent of the charges against him
and that the defendant to some degree
met the definition of a political refugee.
24, As of today, the primary individuals
involved in the San Francisco case noted
in #23 alleging sexual abuse against
the defendant, including the plaintiff in
that case Danny Garcia and the
attorney representing him David Repogle,
have both since been found guilty of
murder of an elderly gay man with a
financial motive in a scheme involving
many similarities to their previous
ultimately successful attempt to extort
money from defendant White through
false accusations of sexual abuse. Of
particular note is the close relationship
these individuals had with the prosecutor
and FBI agents involved in defendant
White’s prosecution in which one case
ultimately settled for approximately $10
million in spite of the defendant’s repeated
contentions that he did not want to settle
and that his attorneys misled the court
into believing he had agreed to settle.
These subsequent events show plaintiff's
conclusions about the defendant's
innocence were well founded.
25. After others had failed to acquire 2°
citizenship for the defendant, the plaintiff
told the defendant he believed he had the
skills necessary to convince others of the
9
PLAINTIFF SEPARA’
OPPOSITION TO MOTE
Various letters and emails from
plaintiff including Exhibit “I”
which also includes the face page
of Garcia v. White.
News reports of the trial and guilty
verdicts plaintiff will bring
forward later if necessary.
Subsequent behavior of the parties
which evidences an agreement.
Other evidence yet to be received
ATEMENT IN SUPPORT OF
FOR SUMMARY ADJUDICATION
CGC-09-494 198
019426.
28.
. The bonus the parties agreed to
defendant’s innocence and based upon this from the defendant in discovery.
might be able to succeed at gaining legal
citizenship for the defendant. Defendant
responded to this by stating that if the
plaintiff was able to acquire legal
citizenship for him he would buy the
plaintiff a new Mercedes S-500 that
the two of them could drive to the boarder
in style for visa runs.
Plaintiff's Declaration #3.
Subsequent behavior and actions
of the parties that evidence the
acquire 2" citizenship and a agreement. Additional evidence
passport for the defendant and plaintiff has not yet received from
in return defendant would give the defendant.
plaintiff the agreed bonus. This
agreement was made in and around
the first week of February 2005.
Plaintiff and defendant entered
into an agreement where
plaintiff would attempt to
7-page letter written by plaintiff
months after the agreement
was made that mentions a
Mercedes S-500 evidencing it
had been a topic of discussion
between the parties (Exhibit “J”).
was a Mercedes Benz S-500 or the
cash equivalent in Thailand which
was approximately $350,000 at the
time the agreement was made.
Plaintiff expressed to the defendant
that a Mercedes S-500 did not really fit
his tastes or needs and that he
preferred the cash bonus.
Both the defendant and the plaintiff felt The Simillion budget amount
the $350,000 bonus was a fair amount defendant provided for the
considering the enormity of the task of project evidencing defendant’s.
acquiring 2" citizenship and a passport view of its importance.
for anyone who was in prison in Thailand
due to a request for extradition by Mexico
related to alleged child sex crimes and also
a person facing an indictment for child sex
crimes in the US as well as the formidable
challenge of acquiring citizenship for
anyone who could not apply in person due
to the fact they were in jail. Both parties
also understood there were potential risks
associated with possible extrajudicial
actions by those determined to keep the
defendant in jail.
CGC-09-494 198
0195nw
29.
30.
31.
33.
34.
Defendant gave the plaintiff a $1,000,000
budget for the Citizenship Acquisition
Project and put plaintiff in charge of that
project as stipulated by their agreement.
Plaintiff flew to Phnom Penh,
Cambodia on 5 occasions during
2005 namely on 3/18/05, 3/23/05,
4/6/05, 4/22/05 and 5/20/05 and on two
occasions in 2006 namely 5/1/06 and
5/26/06.
Plaintiff was concerned for his personal
safety and emailed instructions to his
stepson regarding who he should notify in
the event plaintiff failed to return from a
trip to Cambodia.
_ At one point in the negotiations to acquire
citizenship, the defendant agreed to donate
$500,000 to the Prime Minister’s favorite
charity as part of a plan to induce high
government officials to grant defendant’s
citizenship request. This evidences how
important it was to the defendant to be
granted citizenship. As it turned out,
plaintiff later decided not to attempt to
acquire citizenship with the group of
individuals who proposed the donation
to the Prime Minister’s favorite charity
because plaintiff felt their approach
might not withstand legal scrutiny.
It was a formable task by any measure for
the plaintiff to succeed in convincing high
government officials that the defendant was
a person of good moral character which is a
prerequisite for acquiring 2” citizenship in
virtually all countries around the world
including Cambodia.
Plaintiff was open and honest with high
government officials about the serious
nature of the defendant’s legal problems
and also related to them his own
experiences with what he believed were
-ll-
Plaintiff declaration #6.
Entry and exit stamps in plaintiff's
passport herein attached as
Passport entry and exit stamps
(Exhibit “K”.
Email from plaintiff to his
stepson on 3/22/05 (Exhibit “L”).
Email from plaintiff detailing
agreed steps to defendant being
granted citizenship (Exhibit “M”).
Letter from plaintiff to Prime
Minister (Exhibit “N”).
Reasonable assertion given the
circumstances of White’s case.
Published citizenship
requirements of various countries
including Cambodia which have
not yet been acquired.
Emails between the parties
discussing the ability of
defendant’s current attorneys
to provide him with an adequate
defense and suggestions that the
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
919636.
37.
rogue law enforcement officials which defendant should consider new
underpinned plaintiffs assessment that attorneys (Exhibit “O”).
defendant was a victim of politically
motivated extrajudicial activity meant to
increase the number of arrests for sex
tourism. Plaintiff was ultimately
successful at convincing high government
officials of defendant’s innocence to the
degree that they offered assistance in
making sure defendant had good legal
representation to prove his innocence.
. Cambodia granted defendant citizenship Copies of Government documents
and a passport on or around June 9, 2006 and their certified translations
less than two weeks after plaintiff last showing citizenship was granted
traveled to Phnom Penh thereby fulfilling (Exhibit “P”).
all of plaintiffs obligations under the
agreement with the defendant.
When plaintiffs bonus was not forthcoming Plaintiff declaration #8.
plaintiff attempted to bring up the subject
during a phone conversation where
defendant made it clear he had completed
his end of the citizenship acquisition
agreement. Defendant became irritated
and said he was not going to pay such a
large bonus now because doing so would
upset Wray and others and that plaintiff
should propose some other type of interim
remuneration package that could be justified
to others which he would consider after the
plaintiff gave defendant’s new passport to
his Thai attorney for safekeeping which
plaintiff agreed to do.
Defendant attempted to further postpone Plaintiff declaration #9.
paying anything to plaintiff in an email to July 1, 2006 email from defendant
the plaintiff dated July 1, 2006 where he to plaintiff (Exhibit “Q”).
suggested delaying payment until both
Projects 1 & 2 were successfully completed.
This new proposal to modify the original
contract to include completing Project #2
was a clear attempt to breach the original
agreement and also an attempt to delay
paying the plaintiff anything at that time
which the plaintiff was unwilling to agree
PLAINTIFF SEPARAT f MENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494 198
919726
27
38.
39,
40.
to in spite of the carrots the defendant
offered to fund future projects defendant
suggested he would pursue together
with the plaintiff after he was released.
Plaintiff emailed the defendant on July 1,
2006 insisting that defendant increase his
draw and pay him a bonus.
On July 5, 2006 defendant sent plaintiff an
email ignoring his earlier suggestion that
defendant would consider an interim
remuneration package and now appeared
to be suggesting that no raise at all should
be given. Throughout these email interactions
plaintiff was unable to make written
reference to the original bonus the defendant
had agreed to since all emails sent to the
defendant were being read by Wray Pomeroy
who the plaintiff had previously agreed not
to divulge the bonus terms of the Citizenship
Acquisition Contract.
During a phone conversation from the
defendant to the plaintiff on or about July
21, 2006 plaintiff agreed to accept a
partial bonus payment of $25,000 at the
request of the defendant provided the
balance of $325,000 be paid when the
defendant is released from prison which
both parties agreed to. Defendant said
that not only was he worried about how
others would react to his giving the
plaintiff such a large sum of money, he
was also worried that if he paid the full
amount now the plaintiff would no
longer be financially dependent upon
him and might decide to stop assisting him.
The defendant assured the plaintiff he had
nothing to worry about since he was sure
he and the plaintiff would pursue many new
ventures together in his new home country
once he was released from prison.
Defendant paid plaintiff $25,000 towards
the bonus amount that had originally been
agreed to and plaintiff agreed to defer
-13-
Email from defendant to plaintiff
(Exhibit “R”).
Plaintiff's declaration #10.
Emails and other evidence
requested from the defendant
but not yet received.
Plaintiff's declaration # 10.
Defendant’s records showing the
payment was made which have yet
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
0198paying the balance of $325,000 when the to be acquired in discovery.
defendant was released from prison.
41. Defendant repudiated the contract to defer Plaintiff's declaration #23.
payment on the Citizenship Acquisition
Contract until the day he was released from (See issue #3 below.)
prison when he terminated plaintiff's
employment on February 19, 2008.
42. Defendant has not made any further Defendant’s bank records yet to
payments towards the contract since the be discovered.
initial payment of $25,000 meaning the
plaintiff has been damaged in the amount
of $325,000.
Issue No. 3: Defendant repudiated the contract to defer payment on the Citizenship Acquisition
Contract until the day he was released from prison when he terminated plaintiff's employment
which constituted an anticipatory breach of that contract.
Undisputed Material Facts Supporting Evidence
43, Shortly after November 1, 2007 defendant Plaintiff Declaration #14.
breached Rape Appeal Contract by offering
to pay plaintiff only $100,000 instead of the
$495,000 - $660,000 due under the terms
of that contract.
44, Plaintiff did not accept defendant’s offer to Plaintiff's Declaration #14.
only pay $100,000 on the Rape Appeal
Contract and insisted the defendant at the
very least pay something much closer to
what they had agreed.
45. Defendant refused to discuss paying Plaintiff Declaration #16.
plaintiff's bonus in spite of several requests
by the plaintiff and the relationship
between the parties soured.
46. Defendant has not paid plaintiff $3,000 February Invoice (Bottom of Ist
plaintiff paid to others out of his own pocket paragraph) submitted by plaintiff
at defendant’s direction to pay for defendant’s to defendant (Exhibit “S”).
medical, legal and other expenses during the
month of December 2007.
47. Defendant refused to pay plaintiffs January Invoice copies (Exhibit “S”).
2008 and February 2008 invoices.
-14-
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
919948. On or about February 12, 2008 defendant
withdrew his offer to pay plaintiff a bonus
of $100,000.
49. On or about February 19, 2008 defendant
Terminated plaintiff's employment.
50. On or about August 28, 2008, in a series of
emails sent to plaintiff by a third party,
plaintiff was notified that the defendant
would no longer accept emails from him
and that if the plaintiff sent emails they
would be routed to junk mail.
51, On or about October 6, 2008 plaintiff was
notified by defendant’s business manager
that plaintiff should no longer submit
billings to him for payment since he was
being replaced.
52. In response to plaintiff's demand letter,
on November 12, 2008 defendant’s attorney
Stuart Hanlon sent plaintiff an email in
which he states; “I have sent your email and
request to tom and discussed it with him.
he rejects all requests from you for money,
and will not agree to pay anything., and
denies owing you any money under any
theory.” This was yet another clear
repudiation of the Defer Payment Contract.
53. Defendant stated in the current Motion for
Summary Adjudication; “defendant disputes
that any contract arose as plaintiff alleges in
his FAC” which is a repudiation of all
contracts between the parties.
Bonus Withdrawal email
(Exhibit “T”).
Termination Email (Exhibit “U”).
Email from 3rd Party
(Exhibit “V”).
Email from Mike Bolgatz
(Exhibit “W”).
Email from defendant’s attorney
Stuart Hanlon (Exhibit “X”).
Top of Page 3 Defendant Motion
for Summary Adjudication
Issue No. 4: Defendant’s current Motion for Summary Adjudication is defective since it
contravenes CCP 438(g)(1).
Undisputed Material Facts
54. In Defendant’s Demurrer to First Amended
Complaint he raised the issue that “Second
Cause of Action Has Not Yet Arisen”
=15-
Supporting Evidence
Page 3 (id., ¢ B-1) in defendant’s
March 22, 2012 Motion for Order
Sustaining Demurrer to FAC (See
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494 198
9200Exhibit “Y”)
55. Defendant's demurrer to FAC was overruled May 14, 2012 Order Overruling
in its entirety.
Demurrer (Exhibit “Z”)
56. Defendant raised the same issue again in its Defendant’s Current Motion for
Motion for Summary Adjudication where it Adjudication
states; “Second Cause of Action Has Not
Yet Arisen”.
57. CCP 438(g) does not permit defendant to CCP 438(g)
bring a motion for summary adjudication
where the issue raised in the motion has
already been overruled in a demurrer unless
there has been a material change in applicable
case law or statute since the ruling on the
demurrer,
58. There has been no material change in Code of Civil Procedure
applicable case law or statute since the Court
overruled defendant’s demurrer on
March 22, 2012,
Date: _ te JAD
PLAINTIFF SEPARATE
-16-
STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
6201
Preview
Edward Swanson, SBN 159859 ed@smllp.law Britt Evangelist, SBN 260457 britt@smllp.law SWANSON & McNAMARA LLP 300 Montgomery Street, Suite 1100 San Francisco, California 94104 Telephone: (415) 477-3800 Facsimile: (415) 477-9010 Attorneys for Defendant ELECTRONICALLY FILED Superior Court of California, County of San Francisco 06/27/2017 Clerk of the Court BY:ANNA TORRES Deputy Clerk SHANE CLARIDGE WHITE, as Executor of the Thomas F. White Estate SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION PATRICK KELLY Plaintiff, v. SHANE CLARIDGE WHITE, as Executor of the Thomas F. White Estate Defendant. Case No.: CGC-13-535823 EXHIBITS G and H INDEX OF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION by Shane Claridge White, as Executor of the Thomas F. White Estate Hearing Date: September 20, 2017 Location: Dept. 302 Time: 9:30 a.m. Reservation No.: 06260920-04 Action Filed: December 2, 2013 Trial Date: October 23, 2017 Index of Evidence ISO Motion for Summary Judgment/Summary Adjudication Kelly v. White, No. CGC-13-535823EXHIBIT Gwe PATRICK KELLY IN PRO PER. 945 Taraval Street #250 San Francisco, CA 94116 mailforpatkelly@gmail.com Plaintiff In Pro Per SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) PATRICK KELLY, Case No.: CGC-09-494198 Plaintiff, PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM a DEFENDANT TO PLAINTIFF THOMAS WHITE, and DOES 1 through 25, inclusive, Defendants, PROPOUNDING PARTY: Defendant Thomas White RESPONDING PARTY: Plaintiff Patrick Kelly SET NUMBER: Three 239. Thomas White statements made to Patrick Kelly on or about February 2005: a) White stated that if I could succeed at getting him a new passport he would buy me a new Mercedes S-500 as a bonus that we could use to drive to the boarder together in style (for visa runs). ots PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO PLAINTIFF CGC-09-494198b) White stated that he agreed with my position that while it might be fun to drive to the boarder in a Mercedes S-500 it did not really fit my style or financial situation and that I would be better off with the cash equivalent. ¢) White stated that he was concerned about being hounded by NGOs in Cambodia and also worried that they could cause the government to revoke his citizenship. d White stated that there was no need to put our agreement in writing since I could trust him to live up to the agreement if I succeeded and further that he did not want to take the chance that prison officials and others such as the FBI might see the written agreement if it was reviewed by prison officials prior to his being able to sign it which was the normal procedure for all documents he signed. e) White stated that he did not want me to tell Cal, Kunacha, Deborah or anyone else about our agreement because he was worried they would start asking him for more money and would be hurt if they found out he was paying me more than he was paying them. ph White stated that he agreed with my analysis that it would be foolish to attempt to acquire illegal documents since they likely would not stand up to the high level of scrutiny he would surely receive when passing through © S g) In response to my question about how much the budget should be for the citizenship acquisition project White stated $1-million dollars, h) White stated that he would not pursue second tract attempts to acquire citizenship through others during the time | was trying to acquire citizenship for him because he agreed with my concerns that other attempts to acquire citizenship could jeopardize my chances of success, i) White stated that he would suspend all other attempts to acquire citizenship for him and further stated that he had already lost a lot of money on previous failed attempts. jp White stated that he wanted me to acquire a passport for him as quickly as possible and that he was willing to pay for expedited service, ky White stated that he was putting me in charge of the citizenship project and agreed not to remove me from that position until it reached a successful conclusion. 1h White stated that he gave me the authority to use my best judgment to speak on his behalf where circumstance required immediate decisio m) White stated that he would be willing to set up a charitable foundation in Cambodia to help the poor and/or transfer funds from his Mexican foundation to Cambodia n) White stated that he wanted me to look into buying a house for him in Cambodia if the citizenship project succeeded though he was not sure where it should be located. 2. PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO PLAINTIEF CGC-09-494 1980) White stated he would not discuss the citizenship project with Cal, Deborah or non-attorney others due to the need to keep the Project and its delicate negotiations confidential. 239. Patrick Kelly statements made to Thomas White on or about February 2005: a) I stated that I believed I could convince high officials that White was innocent of the charges against him and further convince them that he was the victim of an international conspiracy to extort money from him. b) I stated that if White was willing to do things like set up a charitable foundation to help the poor in Cambodia this could open the way to his acquiring citizenship in Cambodia. c) I stated that if White gave me control ofa project to acquire citizenship for him that | thought I could succeed provided I had full authority to act on his behalf and provided White did not discuss the project with anyone other than his attorneys. d) I stated that the first task in any such project would be to locate the tight people to approach with the citizenship request and further that I knew how to do this by testing the credibility of those we would approach. e) I stated that I would not involve myself in anything illegal on White’s behalf and to do so would be potentially detrimental to both of us. f) [stated that in my opinion the country where White stood the best chance of acquiring citizenship would be Cambodia g) I stated that though I appreciated his offer to buy me a Mercedes $-500 if] succeeded in getting him a legal passport, | would rather have the cash equivalent since I needed the money to open a coffee shop. h) I stated that Mercedes S-500 cost about $350,000 US in Thailand, i) I stated that all my responsibilities under our agreement would be completed as soon as I was given a passport for White that contained a Thai visa from the Thai embassy in Cambodia which would confirm the validity of the passport. ji I stated that Calvin Miller could not be involved in the project because I did not trust in his ability to be discreet and keep his mouth shut and that if the wrong people found out about the project they could easily prevent its success. k) I stated that I thought Calvin Miller might feel insulted by not being invited to be part of the citizenship acquisition project and further stated that I needed White's assurance he would not change his mind later and ask me to include Miller in the project. 1g! PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO PLAINTIFF CGC-09-4941981) I stated that | would acquire an attorney to assist me in the project, m) I stated I was worried that if White told his friends and family about my involvement in the citizenship acquisition project they might take steps to undermine its success, n) I stated that I trusted White to live up to the agreement and agreed with him that we did not need to put it in writing. 0) I stated that I thought I could bring the project to a successful conclusion with his suggested budget of $1,000,000 and that the budget amount did not include my bonus. p) I stated that I did not want Kunacha involved due to the fact he might see such a project as encroaching upon his role as White’s Thai attorney. qQ I stated that I would do everything possible to see that the project moved along as quickly as possible. rt) I stated that though Cambodia NGO's could and likely would become a potential problem for White once they discovered he was a Cambodian citizen, there was nothing we could do about that at this point and that if it became a problem we could cross that bridge when we came to it. s) I stated that it was my understanding that once White was granted citizenship it would be very difficult for an NGO or anyone else to legally force the government to revoke his citizenship. t) I stated that I thought it would be difficult for the US to extradite White from Cambodia since he would be. a Cambodian citizen who would also likely have friends in high places who could balance out any extrajudicial US influence. 239. Patrick Kelly statements made to Calvin Miller on or about February 2005: a) I stated that Tom had agreed to pay me a sizable bonus if I succeeded in gaining 2™ citizenship for him, b) Tstated that due to the sensitive nature of the Citizenship Acquisition Project I was not able to discuss any of its details with Miller and that he should not take this personally. c) I stated that I had hired an attorney to assist me and that I thought I would be able to succeed at gaining citizenship for White. d I stated that when we landed in Cambodia we were given the VIP treatment including a military escort that even accompanied me when I went to the bathroom, PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO PLAINTIFF CGC-09-49419827 e) I stated that I was concerned about my safety when I traveled to Cambodia because I was not sure of the type of people I was dealing with, h I stated that we had met with high military officials and members of the King’s family. 2) T stated that White was impatient and expected me to accomplish this all but impossible task overnight. hy I stated that the fact White was imprisoned in Thailand and could not travel to Cambodia made the task of acquiring citizenship for him extremely challenging. 239. Calvin Miller statements made to Patrick Kelly on or about February 2005: a) Miller stated that White was a man of his word but could get a Little strange when it came to money. b) Miller stated that he agreed with the need to keep the citizenship project on a need to know basis but that I might be expecting too much to think that White would not tell his trusted friends and family members about the project. &) Miller stated that Wray Pomeroy was a real blabbermouth and that if he ever got wind of what was going on the project might as well be on the front page of a newspaper. d) Miller stated that White had a difficult time dealing with all the requests for money from the steady stream of triends and family who visited him at the jail. The above statements are not exact quotes but rather general recollections of things that were said. These statements obviously do not encompass everything that was said but represent most of what comes to memory at the time of this writing. 240. Objection - Excessive number of Interrogatories, 241, Objection—Excessive number of Interrogatories. 242. Objection ~ Excessive number of interrogatories. I declare under penalty of perjury under the laws of California and Thailand that the foregoing is true and correct. » Patrick Kelly, Plaintt Dated: 4 L2fiz 5- PLAINTIFF ANSWERS TO SPECIAL INTERROGATORIES FROM DEFENDANT TO. PLAINTIFF CGC-09-494198EXHIBIT HwD t PATRICK KELLY IN PRO PER 77 Van Ness Ave #1250 San Francisco, CA 94102 Tel (415) 906-5151 mailforpatkelly@gmail.com SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) FA c SS R PATRICK KELLY, Case No.: CGC-09-494198 0 IGINAL Plaintiff, PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS vs. | Date: Oct. 10,2012 Time: 9:30 am. THOMAS WHITE, and DOES I through 25, | Dept: 302 inclusive, | TELEPHONE APPEARANCE BY Defendants. PLAINTIFF Trial Date: May 6, 2013 ¢ Pursuant to Code of Civil Procedure 437, Plaintiff submits its Separate Statement of Undisputed Material Facts and Supporting Evidence in support of its Opposition to Defendant’s Motion for Summary Adjudication. Issue No, 1: Undisputed Material Facts (UMF) in defendant’s Separate Statement are incomplete and thereby misleading. Defendant’s Undisputed Material Facts Plaintiff's Response to Defendant"s UMF And Supporting Evidence Supporting Evidence 1. Plaintiff's cause of action for breach Defendant left out important statements of oral contract entered into on or in the Second Cause of Action that about February 2005, is premised = _)_ detail the fact that defendant breached PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198,nN on claims that defendant paid him $25,000 on the contract and that based on defendant’s representation that defendant would pay the remaining $325,000 once defendant was released from prison, plaintiff agreed to modify the contract and excuse defendant’s payment of the remaining $325,000 until defendant was released from prison. Supporting Evidence 1. Plaintiff's First Amended Complaint, { 9; Plaintiff's answer to Interrogatory No. 50.3 in defendant’s Form Interrogatories, Set No. One (Form Interrogatories and Answers are attached as Exhibits A and B, respectively, to the Declaration of Geoffrey Rotwein, { 2). Plaintiff set the date of the contract to on or about February 2005 in Exhibits Cand D to the Rotwein Declaration, 2 PLAINTIFF SEPARATE ‘ATE! the agreement to defer payment until the defendant was release from prison when he terminated plaintiff's employment including: First Amended Complaint (FAC) #28. “On or about February 19, 2008, White terminated KELLY’s employment thereby accelerating the date the deferred bonus amount was due from the date WHITE was released from prison to the date WHITE terminated KELLY’s employment. Since no bonus was paid WHITE breached the oral agreement by refusing to compensate KELLY pursuant to the terms of the contract.” Defendant implies the contract was never breached and was and is still active thereby rendering the entire Second Cause of Action premature while ignoring any issues concerning the anticipatory breach of the contract plaintiff alleges in #28 of his FAC. Though plaintiff agrees with the facts put forward by the defendant in #1 those facts were obviously taken out of context and deliberately omit the material fact that defendant breached the agreement in question whose contract validity he now attempts to rely upon as justification for the motion at hand. Plaintiff's position is that there was an anticipatory breach of the contract at the time the defendant terminated plaintiff's employment and defendant is wrong to ignore facts surrounding the breach of that contract while at the same time stating in his Reply to Plaintiff's FAC; “Defendant Thomas White generally denies each and every allegation in plaintiffs First Amended Complaint filed March 21, 2012” and stating in the motion at hand; “defendant disputes that any contract arose as plaintiff alleges in INT IN SU PORT OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 91872. Defendant Thomas White has been incarcerated in prison continuously from January 1, 2005 through the present. Supporting Evidence 2. Declaration of Geoffrey Rotwein, q3. his FAC.” Both these statements are clear evidence plaintiff repudiated the contract. Defendant cannot claim his obligations have not yet arisen regarding a contract he repudiates since repudiation caused or causes an anticipatory breach of the contract. Even if defendant disputes he committed an anticipatory breach when he terminated plaintiff's employment which is difficult to reason given the evidence, if he did not commit an anticipatory breach then he has now by the two statements noted above. Agreed, Though this statement is technically correct, the true start date of defendant’s incarceration was on February 11, 2003. Issue No. 2: Defendant generally denies each and every allegation in plaintiff's First Amended Complaint including the Second Cause of Action which plaintiff contends is meritorious. Undisputed Material Facts 3. Defendant Thomas White generally denies each and every allegation in plaintiff's First Amended Complaint filed on March 21, 2012. (This denial by implication includes the supporting facts and events associated with each and every allegation in the Second Cause of Action in plaintiff's FAC as set out below in #4 - #42 which plaintiff contends are undisputed material facts. CCP 437¢ — b3 “The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed PLAINTIFF SEPARA OPPOSITION TO MOTIO} Supporting Evidence Answer to First Amended Complaint (Exhibit *A”). ENT IN SUPPORT OF FOR SUMMARY ADJUDICATION GC~09-494 198, 918826 27 shall be followed by a reference to the supporting evidence.”) . Plaintiff first met the defendant in 2002 In Los Angeles California where the defendant agreed to invest $192,900 to fund further development of the plaintiff's website LogicalReality.com, as detailed in First Year Expense Projections approved by the defendant. LogicalReality.com was a public affairs website with articles on several controversial subjects including religion, gun control, the Iraq war, pedophilia and other hot button subjects. . Defendant was arrested and incarcerated in Bangkok Thailand request for extradition put forward by Mexico. . Defendant hired plaintiff to assist him in his quest to be released from prison and offered to pay the plaintiff a “stipend” of $2,000 a month plus bonuses which would be based upon the proven worth of what the plaintiff could do to assist the defendant. (Note: Facts 7-25 which follow, evidence some of the reasons plaintiff came to believe the defendant was innocent which serve to establish how and why plaintiff came to believe he could succeed at gaining 2” citizenship for the defendant through convincing others of defendant’s innocence. These facts and events also help establish the state of mind of the parties when they entered into the Citizenship Acquisition Agreement.) Defendant was indicted in the US on “Conspiracy to Travel With Intent to Engage in Sex With Juveniles” and faced prosecution on those crimes if he ever stepped foot on US soil. age PLAINTIFF SEPARA LogicalReality.com First Year Expense Projections (Exhibit “B”). Defendant’s financial records yet to be discovered, News reports and other documents yet to be acquired. Behavior of the parties over a period of over 4-years. US Indictment face page (Exhibit “C”) since the indictment has been sealed though the plaintiff has a copy of the full indictment provided by defendant. ATEMENT {N SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 91898. After viewing a video recording which DVD held by defendant’s attorney was a primary piece of evidence Stuart Hanlon not yet acquired in. supporting the defendant’s indictment discovery. that showed the defendant in bed with someone from Prague alleged to be under 18 according to an affidavit by a prosecution expert, plaintiff doubted the validity of the US expert’s assessment of the true age range of the individual based upon the fact the expert’s opinion was likely skewed by the nationality and cultural differences between someone from Prague versus someone from the US. Additionally, the fact the defendant met this individual in a bar in Prague certainly evidenced the defendant’s reasonable assumption that the person taken back to his hotel room was over 18. Also, the fact the expert’s qualifications were never questioned and the person alleged to be under 18 was never located led the plaintiff to believe the charges against the defendant could not withstand rational or legal scrutiny if ever brought before a court. 9. Plaintiff’s personal assessment of the Email summary of treatment costs defendant was that he was an honest, (Exhibit “D”). altruistic, trustworthy person incapable of harming children due to the caring nature the plaintiff had witnessed on many occasions including when he offered to pay for plaintiffs treatment for Hepatitis C which cost about $18,000. 10. Defendant told the plaintiff several Declaration of Plaintiff #10. times that he was a victim of an international conspiracy to extort money from him and after reviewing much of the evidence supporting allegations of child-sex crimes against the defendant recantations by alleged victims, the plaintiff believed the defendant was being truthful. PLAINTIFF SEPARATI OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494 198 019026 27 11. In and around the time of the defendant’s indictment, someone broke into the plaintiff's apartment and stole his laptop which contained information related to the defendant. Plaintiff wondered at the time if there was any connection between the burglary and those prosecuting the defendant. 12. The same week a ruling was due to be handed down in the defendant’s extradition case, someone posted a link on LogicalReality.com’s public bulletin board linking it to a website containing pictures of nude boys some of which the plaintiff determined likely met the legal definition of child pornography due to the fact they showed erect penises. Plaintiff removed the link to the child pornography website (CPW) and investigated the source by running a whois command on the site’s ip address. Plaintiff determined the website was hosted on a server that was physically located in Mclean Virginia and consequentially on a server hosting numerous government websites. 13. Two days before a decision was due to be handed down in the defendant’s Thai/Mexican extradition case two fraudulent checks were issued against the Los Angeles, CA Bank of America corporate account of LogicalReality.com Inc. The bank paid both checks in spite of the fact both the signatures and printed company names on the checks did not match those on the account. After investigating who wrote the checks, plaintiff determined that one of the checks was used te purchase computer equipment and the other to purchase a digital camera through EBay by someone -6- Evidence not yet acquired in discovery. Copy of LogicalReality.com bulletin board posts (Exhibit “E”). Copies of the fraudulent checks. (Exhibit “F”). SEPARATE STATEMENT IN SLIPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 9194>. whose office address was coincidently in the same building as Interpol in France. . Based upon the evidence uncovered during plaintiff's investigation including the timing of the events, plaintiff concluded he was being set up to be arrested by rogue elements of the FBI or other government officials unknown to the plaintiff in a fallback plan to arrest both the defendant and plaintiff on child pornography charges related to possible attempts to associate the plaintiff's website with false evidence of illegal activity, in the event the defendant won his extradition ease and was released from prison in Thailand. As it turned out, the Thai Court denied Mexico’s request for extradition which plaintiff believes the US was informed of before the decision was handed down thereby further evidencing motive and the sense of urgency behind an assumed plot to assure the defendant could be rearrested in the event he was set free. Fearing he may be arrested at any moment plaintiff forwarded all the evidence he had gathered excluding any photos from the CPW he felt met the definition of child pornography to the defendant’s attorney Stewart Hanlon in San Francisco in the hope the attorney could intercede and prevent any illegal acts by rogue law enforcement officials. . Several days after notifying Hanlon that the plaintiff had sent evidence to him that could indicate an illegal conspiracy by rogue law enforcement officials against his client, Hanlon notified plaintiff that the Fed-Ex package sent to him had been consequentially singled out for inspection and seized in Alaska by US Customs officials as child pornography. Lye Reasonable supposition based on the evidence. Letters from plaintiff to defendant including Exhibit “G”. Documents in Stewart Hanlon’s possession yet to be discovered. Emails between Hanlon and the plaintiff yet to be discovered. PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494 198 019217. 20. 2 22. Since the FedEx package had plaintiff's name Reasonable understanding based and address on it in the sender info block on on US Child Pornography law. the FedEx form and also contained plaintiff's US passport info, plaintiff assumed there was a good chance he would be arrested on child pornography charges which is assumedly what happens to anyone caught sending child pornography in a FedEx envelop. . In response to the FedEx package seizure See Exhibit “G”. plaintiff emailed an identical evidence package to the Inspector General’s Office in Washington, DC. . Further evidencing a conspiracy, plaintiff Plaintiff declaration #30. consequentially was never arrested and later discovered no arrest warrants were ever issued against him nor was the FedEx envelop ever returned by US Customs officials in Alaska. Five days after Mexico lost the case to extradite the defendant, the US revoked the defendant’s passport leaving him without travel documents. Revocation letter (Exhibit “H”). . Without travel documents, even Thai Immigration Law if defendant won his extradition case with Mexico, as soon as he was released from prison, Thailand would simply deport him back to the US due to his lack of travel documents and the fact defendant was a US citizen. Plaintiff recommended to defendant Letter from plaintiff to defendant that one way he could circumvent not yet located. attempts to have him deported to the US if he wins his extradition case would be for him to acquire 2" citizenship and that he should instruct his attorneys to look into this for him. Plaintiff also said he would research the matter to see if it was possible and if so which country he should pursue. -8- PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494 198,23. At this point plaintiff was convinced there was an illegal conspiracy against the defendant by rouge law enforcement officials bent upon convicting him for sex tourism in large part supported by an illegal conspiracy to extort money from the plaintiff by individuals who had brought a civil lawsuit in San Francisco seeking damages related to alleged sexual abuse of a minor. Plaintiff felt there was enough evidence based on the above events to convince others that the defendant was innocent of the charges against him and that the defendant to some degree met the definition of a political refugee. 24, As of today, the primary individuals involved in the San Francisco case noted in #23 alleging sexual abuse against the defendant, including the plaintiff in that case Danny Garcia and the attorney representing him David Repogle, have both since been found guilty of murder of an elderly gay man with a financial motive in a scheme involving many similarities to their previous ultimately successful attempt to extort money from defendant White through false accusations of sexual abuse. Of particular note is the close relationship these individuals had with the prosecutor and FBI agents involved in defendant White’s prosecution in which one case ultimately settled for approximately $10 million in spite of the defendant’s repeated contentions that he did not want to settle and that his attorneys misled the court into believing he had agreed to settle. These subsequent events show plaintiff's conclusions about the defendant's innocence were well founded. 25. After others had failed to acquire 2° citizenship for the defendant, the plaintiff told the defendant he believed he had the skills necessary to convince others of the 9 PLAINTIFF SEPARA’ OPPOSITION TO MOTE Various letters and emails from plaintiff including Exhibit “I” which also includes the face page of Garcia v. White. News reports of the trial and guilty verdicts plaintiff will bring forward later if necessary. Subsequent behavior of the parties which evidences an agreement. Other evidence yet to be received ATEMENT IN SUPPORT OF FOR SUMMARY ADJUDICATION CGC-09-494 198 019426. 28. . The bonus the parties agreed to defendant’s innocence and based upon this from the defendant in discovery. might be able to succeed at gaining legal citizenship for the defendant. Defendant responded to this by stating that if the plaintiff was able to acquire legal citizenship for him he would buy the plaintiff a new Mercedes S-500 that the two of them could drive to the boarder in style for visa runs. Plaintiff's Declaration #3. Subsequent behavior and actions of the parties that evidence the acquire 2" citizenship and a agreement. Additional evidence passport for the defendant and plaintiff has not yet received from in return defendant would give the defendant. plaintiff the agreed bonus. This agreement was made in and around the first week of February 2005. Plaintiff and defendant entered into an agreement where plaintiff would attempt to 7-page letter written by plaintiff months after the agreement was made that mentions a Mercedes S-500 evidencing it had been a topic of discussion between the parties (Exhibit “J”). was a Mercedes Benz S-500 or the cash equivalent in Thailand which was approximately $350,000 at the time the agreement was made. Plaintiff expressed to the defendant that a Mercedes S-500 did not really fit his tastes or needs and that he preferred the cash bonus. Both the defendant and the plaintiff felt The Simillion budget amount the $350,000 bonus was a fair amount defendant provided for the considering the enormity of the task of project evidencing defendant’s. acquiring 2" citizenship and a passport view of its importance. for anyone who was in prison in Thailand due to a request for extradition by Mexico related to alleged child sex crimes and also a person facing an indictment for child sex crimes in the US as well as the formidable challenge of acquiring citizenship for anyone who could not apply in person due to the fact they were in jail. Both parties also understood there were potential risks associated with possible extrajudicial actions by those determined to keep the defendant in jail. CGC-09-494 198 0195nw 29. 30. 31. 33. 34. Defendant gave the plaintiff a $1,000,000 budget for the Citizenship Acquisition Project and put plaintiff in charge of that project as stipulated by their agreement. Plaintiff flew to Phnom Penh, Cambodia on 5 occasions during 2005 namely on 3/18/05, 3/23/05, 4/6/05, 4/22/05 and 5/20/05 and on two occasions in 2006 namely 5/1/06 and 5/26/06. Plaintiff was concerned for his personal safety and emailed instructions to his stepson regarding who he should notify in the event plaintiff failed to return from a trip to Cambodia. _ At one point in the negotiations to acquire citizenship, the defendant agreed to donate $500,000 to the Prime Minister’s favorite charity as part of a plan to induce high government officials to grant defendant’s citizenship request. This evidences how important it was to the defendant to be granted citizenship. As it turned out, plaintiff later decided not to attempt to acquire citizenship with the group of individuals who proposed the donation to the Prime Minister’s favorite charity because plaintiff felt their approach might not withstand legal scrutiny. It was a formable task by any measure for the plaintiff to succeed in convincing high government officials that the defendant was a person of good moral character which is a prerequisite for acquiring 2” citizenship in virtually all countries around the world including Cambodia. Plaintiff was open and honest with high government officials about the serious nature of the defendant’s legal problems and also related to them his own experiences with what he believed were -ll- Plaintiff declaration #6. Entry and exit stamps in plaintiff's passport herein attached as Passport entry and exit stamps (Exhibit “K”. Email from plaintiff to his stepson on 3/22/05 (Exhibit “L”). Email from plaintiff detailing agreed steps to defendant being granted citizenship (Exhibit “M”). Letter from plaintiff to Prime Minister (Exhibit “N”). Reasonable assertion given the circumstances of White’s case. Published citizenship requirements of various countries including Cambodia which have not yet been acquired. Emails between the parties discussing the ability of defendant’s current attorneys to provide him with an adequate defense and suggestions that the PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 919636. 37. rogue law enforcement officials which defendant should consider new underpinned plaintiffs assessment that attorneys (Exhibit “O”). defendant was a victim of politically motivated extrajudicial activity meant to increase the number of arrests for sex tourism. Plaintiff was ultimately successful at convincing high government officials of defendant’s innocence to the degree that they offered assistance in making sure defendant had good legal representation to prove his innocence. . Cambodia granted defendant citizenship Copies of Government documents and a passport on or around June 9, 2006 and their certified translations less than two weeks after plaintiff last showing citizenship was granted traveled to Phnom Penh thereby fulfilling (Exhibit “P”). all of plaintiffs obligations under the agreement with the defendant. When plaintiffs bonus was not forthcoming Plaintiff declaration #8. plaintiff attempted to bring up the subject during a phone conversation where defendant made it clear he had completed his end of the citizenship acquisition agreement. Defendant became irritated and said he was not going to pay such a large bonus now because doing so would upset Wray and others and that plaintiff should propose some other type of interim remuneration package that could be justified to others which he would consider after the plaintiff gave defendant’s new passport to his Thai attorney for safekeeping which plaintiff agreed to do. Defendant attempted to further postpone Plaintiff declaration #9. paying anything to plaintiff in an email to July 1, 2006 email from defendant the plaintiff dated July 1, 2006 where he to plaintiff (Exhibit “Q”). suggested delaying payment until both Projects 1 & 2 were successfully completed. This new proposal to modify the original contract to include completing Project #2 was a clear attempt to breach the original agreement and also an attempt to delay paying the plaintiff anything at that time which the plaintiff was unwilling to agree PLAINTIFF SEPARAT f MENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494 198 919726 27 38. 39, 40. to in spite of the carrots the defendant offered to fund future projects defendant suggested he would pursue together with the plaintiff after he was released. Plaintiff emailed the defendant on July 1, 2006 insisting that defendant increase his draw and pay him a bonus. On July 5, 2006 defendant sent plaintiff an email ignoring his earlier suggestion that defendant would consider an interim remuneration package and now appeared to be suggesting that no raise at all should be given. Throughout these email interactions plaintiff was unable to make written reference to the original bonus the defendant had agreed to since all emails sent to the defendant were being read by Wray Pomeroy who the plaintiff had previously agreed not to divulge the bonus terms of the Citizenship Acquisition Contract. During a phone conversation from the defendant to the plaintiff on or about July 21, 2006 plaintiff agreed to accept a partial bonus payment of $25,000 at the request of the defendant provided the balance of $325,000 be paid when the defendant is released from prison which both parties agreed to. Defendant said that not only was he worried about how others would react to his giving the plaintiff such a large sum of money, he was also worried that if he paid the full amount now the plaintiff would no longer be financially dependent upon him and might decide to stop assisting him. The defendant assured the plaintiff he had nothing to worry about since he was sure he and the plaintiff would pursue many new ventures together in his new home country once he was released from prison. Defendant paid plaintiff $25,000 towards the bonus amount that had originally been agreed to and plaintiff agreed to defer -13- Email from defendant to plaintiff (Exhibit “R”). Plaintiff's declaration #10. Emails and other evidence requested from the defendant but not yet received. Plaintiff's declaration # 10. Defendant’s records showing the payment was made which have yet PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 0198paying the balance of $325,000 when the to be acquired in discovery. defendant was released from prison. 41. Defendant repudiated the contract to defer Plaintiff's declaration #23. payment on the Citizenship Acquisition Contract until the day he was released from (See issue #3 below.) prison when he terminated plaintiff's employment on February 19, 2008. 42. Defendant has not made any further Defendant’s bank records yet to payments towards the contract since the be discovered. initial payment of $25,000 meaning the plaintiff has been damaged in the amount of $325,000. Issue No. 3: Defendant repudiated the contract to defer payment on the Citizenship Acquisition Contract until the day he was released from prison when he terminated plaintiff's employment which constituted an anticipatory breach of that contract. Undisputed Material Facts Supporting Evidence 43, Shortly after November 1, 2007 defendant Plaintiff Declaration #14. breached Rape Appeal Contract by offering to pay plaintiff only $100,000 instead of the $495,000 - $660,000 due under the terms of that contract. 44, Plaintiff did not accept defendant’s offer to Plaintiff's Declaration #14. only pay $100,000 on the Rape Appeal Contract and insisted the defendant at the very least pay something much closer to what they had agreed. 45. Defendant refused to discuss paying Plaintiff Declaration #16. plaintiff's bonus in spite of several requests by the plaintiff and the relationship between the parties soured. 46. Defendant has not paid plaintiff $3,000 February Invoice (Bottom of Ist plaintiff paid to others out of his own pocket paragraph) submitted by plaintiff at defendant’s direction to pay for defendant’s to defendant (Exhibit “S”). medical, legal and other expenses during the month of December 2007. 47. Defendant refused to pay plaintiffs January Invoice copies (Exhibit “S”). 2008 and February 2008 invoices. -14- PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 919948. On or about February 12, 2008 defendant withdrew his offer to pay plaintiff a bonus of $100,000. 49. On or about February 19, 2008 defendant Terminated plaintiff's employment. 50. On or about August 28, 2008, in a series of emails sent to plaintiff by a third party, plaintiff was notified that the defendant would no longer accept emails from him and that if the plaintiff sent emails they would be routed to junk mail. 51, On or about October 6, 2008 plaintiff was notified by defendant’s business manager that plaintiff should no longer submit billings to him for payment since he was being replaced. 52. In response to plaintiff's demand letter, on November 12, 2008 defendant’s attorney Stuart Hanlon sent plaintiff an email in which he states; “I have sent your email and request to tom and discussed it with him. he rejects all requests from you for money, and will not agree to pay anything., and denies owing you any money under any theory.” This was yet another clear repudiation of the Defer Payment Contract. 53. Defendant stated in the current Motion for Summary Adjudication; “defendant disputes that any contract arose as plaintiff alleges in his FAC” which is a repudiation of all contracts between the parties. Bonus Withdrawal email (Exhibit “T”). Termination Email (Exhibit “U”). Email from 3rd Party (Exhibit “V”). Email from Mike Bolgatz (Exhibit “W”). Email from defendant’s attorney Stuart Hanlon (Exhibit “X”). Top of Page 3 Defendant Motion for Summary Adjudication Issue No. 4: Defendant’s current Motion for Summary Adjudication is defective since it contravenes CCP 438(g)(1). Undisputed Material Facts 54. In Defendant’s Demurrer to First Amended Complaint he raised the issue that “Second Cause of Action Has Not Yet Arisen” =15- Supporting Evidence Page 3 (id., ¢ B-1) in defendant’s March 22, 2012 Motion for Order Sustaining Demurrer to FAC (See PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494 198 9200Exhibit “Y”) 55. Defendant's demurrer to FAC was overruled May 14, 2012 Order Overruling in its entirety. Demurrer (Exhibit “Z”) 56. Defendant raised the same issue again in its Defendant’s Current Motion for Motion for Summary Adjudication where it Adjudication states; “Second Cause of Action Has Not Yet Arisen”. 57. CCP 438(g) does not permit defendant to CCP 438(g) bring a motion for summary adjudication where the issue raised in the motion has already been overruled in a demurrer unless there has been a material change in applicable case law or statute since the ruling on the demurrer, 58. There has been no material change in Code of Civil Procedure applicable case law or statute since the Court overruled defendant’s demurrer on March 22, 2012, Date: _ te JAD PLAINTIFF SEPARATE -16- STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 6201