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,
Vv.
SHANE CLARIDGE WHITE, as Executor of
the Thomas F. White Estate
Defendant.
fit
Case No.: CGC-13-535823
REQUEST FOR JUDICIAL NOTICE 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
Request for Judicial Notice ISO Motion for Summary Judgment/Summary Adjudication
Kelly v. White, No. CGC-13-535823I. INTRODUCTION
Pursuant to California Evidence Code 452, Defendant the Executor of the Estate of
Thomas F. White (“the Estate’), requests that the Court take judicial notice of: (1) pleadings
filed in San Francisco Superior Court; (2) the exchange rate of the Cambodian currency, the Riel
(KHR), to U.S. dollars; and (3) Decree Law 38, on Contracts and Extra-Contractual
Responsibilities, Articles 3, 4 and 5, the portions of Cambodian contract law relevant to the
determination of the Estate’s motion.
Each pleading listed below has been authenticated by the declarations of Britt Evangelist
and Geoffrey Rotwein, concurrently filed herewith. The declaration of Britt Evangelist also
contains authenticating information for the exchange rate of the Cambodia Riel to U.S. dollars.
The declaration of Potim Yun authenticates Decree Law 38. Each document listed below has
also been appended to the concurrently filed Index of Evidence.
IL. REQUEST FOR JUDICIAL NOTICE
A summary judgment motion can be based on matters of which the Court may take
judicial notice. (Cal. Code Civ. P. § 437c(b)(1).) Pursuant to Cal. Ev. Code § 452(d), a court
may take judicial notice of files in its own court. Pursuant to Cal. Ev. Code § 452(f), a court may
take judicial notice of the laws of foreign nations where a person with knowledge of the foreign
law presents the court with advice or an opinion about that law in writing. (Cal. Ev. Code §
454(b).)
The Estate respectfully requests that the Court take judicial notice of the following
documents in connection with its concurrently filed motion for summary judgment:
Document: Exhibit:
First Amended Complaint for Damages filed in San Francisco A to Rotwein Decl.
Superior Court in the case of Patrick Kelly v. Thomas White, et al.,
No. CGC-09-494198, on December 22, 2011.
Plaintiff’s Separate Statement of Undisputed Material Facts filed in H to Rotwein Decl.
San Francisco Superior Court in the case of Patrick Kelly v. Thomas
White, et al., No. CGC-09-494198, on September 25, 2012.
-1-
Request for Judicial Notice ISO Motion for Summary Judgment/Summary Adjudication
Kelly v. White, No. CGC-13-535823Verified First Amended Complaint for Damages filed in San U to Evangelist Decl.
Francisco Superior Court in the case Patrick Kelly v. Jack Eugene
Teeters, as Executor of the Thomas F. White Estate, No. CGC-13-
535823, on September 29, 2015
V to Yun Decl.; I to
Cambodian contract law: Decree Law 38, on Contracts and Extra- Madden Decl.
Contractual Responsibilities, Articles 3, 4 and 5
A court may also take judicial notice of “[fJacts and propositions that are not reasonably
subject to dispute and are capable of immediate and accurate determination by resort to sources
of reasonably indisputable accuracy.” (Cal. Ev. Code § 452(h).) Federal courts have held that
matters such as historical exchange rates and stock prices may properly be the subject of judicial
notice. (In re Waterford Wedgwood USA, Inc. (Bankr. S.D.N.Y. 2013) 500 F.R. 371, 383 n.8
[taking judicial notice of the currency conversion rate between two currencies at the time of the
transaction on the basis of information available on the Internal Revenue Service Website]; Jn re
Verifone Sec. Litig. (N.D. Cal. 1992) 784 F. Supp. 1471, 1475 n.2 [in granting the defendants’
motion to dismiss with prejudice, the court took judicial notice of the company’s daily close
stock prices]; Ravens v. Iftikar (N.D. Cal. 1997) 174 F.R.D. 651, 661 [accord].) While these
cases were decided under Fed. R. Ev. 201(b), which permits judicial notice of a fact “not subject
to reasonable dispute because it . . . can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned,” that provision “is akin to California Evidence
Code section 452, subdivision (h), which permits judicial notice of ‘[f]acts and propositions that
are not reasonably subject to dispute and are capable of immediate and accurate determination by
resort to sources of reasonably indisputable accuracy.’” (Scott v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 743, 753 as modified on denial of reh'g (Apr. 16, 2013) [relying on
federal authority and granting request for judicial notice].)
iil
-2-
Request for Judicial Notice ISO Motion for Summary Judgment/Summary Adjudication
Kelly v. White, No. CGC-13-535823The Estate respectfully requests that the Court take judicial notice of the exchange rate of
the Cambodian currency, the Riel (KHR), to U.S. dollars. As set forth in the Declaration of Britt
Evangelist, the exchange rates were arrived at by dividing the foreign currency amount (5,000
KHR) by the applicable yearly average exchange rate listed on the Internal Revenue Service’s
(“IRS”) website. The average yearly exchange rate for KHR 5,000 to U.S. dollars is as follows:
Year USD Value of KHR 5,000
2005 $1.2001
2006 $1.2339
2007 $1.2288
2008 $1.2263
2009 $1.2010
2010 $1.1795
2011 $1.2186
2012 $1.2186
2013 $1.2186
2014 $1.2186
2015 $1.2186
2016 $1.2186
2017 (as of March 31) $1.2186
Dated: June 26, 2017 Respectfully submitted,
/s/ Britt Evangelist
Edward W. Swanson
Britt Evangelist
SWANSON & McNAMARA LLP
Attorneys for Defendant, Shane Claridge
White, as Executor of the Thomas F. White
Estate
-3-
Request for Judicial Notice ISO Motion for Summary Judgment/Summary Adjudication
Kelly v. White, No. CGC-13-535823EXHIBIT AATM
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Dec-28-2011 10:52 am
Case Number: CGC-09-494198
Filing Date: Dec-22-2011 3:08
Juke Box: 001 Image: 03430474
COMPLAINT
PATRICK KELLY VS. THOMAS WHITE et al
001C03430474
Instructions:
Please place this sheet on top of the document to be scanned.26
27
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) —() R | G | NA L
PATRICK KELLY, Case No.: CGC-09-494198
Plaintiff, FIRST AMENDED COMPLAINT FOR
DAMAGES
v8. 1, TERMINATION IN
TION OF PUBLIC
THOMAS WHITE, and DOES | through 25, poviey, N OF PUBLI
inclusive, 2. BREACH OF CONTRACT;
3. BREACH OF CONTRACT:
Defendants. 4, BREACH OF THE IMPLIED
COVENANT OF GOOD FAITH
AND FAIR DEALING
DEMAND FOR JURY TRIAL
Plaintiff In Pro Per PATRICK KELLY alleges as follows:
GENERAL ALLEGATIONS
1. Plaintiff PATRICK KELLY (hereinafter “KELLY” or “Plaintiff”) is a resident of
San Francisco County, California, who is currently residing in Bangkok, Thailand on a
temporary visa.
-l-
HTDCT AMENNEN COMPE.AINT FOR DAMAGES2. Atall times relevant herein, defendant THOMAS WHITE (hereinafter “WHITE”
or “Defendant”) is and was a resident of the City and County of San Francisco, California.
3. The work performed by KELLY at WHITE’s request and direction (as more fully
set forth below) was performed in San Francisco, California, Bangkok, Thailand and Puerto
Vallarta, Mexico. , /
4, KELLY sues fictitious defendants DOES 1-25 because their names and/or
capacities and/or facts showing them to be liable are not known presently (WHITE and
fictitious defendants are collectively referred to herein as “Defendants”). On information and
belief, KELLY alleges that their entities and/or capacities shall be ascertained through
discovery, KELLY will seek leave to amend this complaint to show their true names and
capacities when the same has been ascertained. On information and belief, KELLY alleges each
defendant designated herein as fictitious defendants were in some manner responsible for the
occurrences and damages alleged herein.
5, KELLY is informed and believes and thereon alleges that each of the defendants
herein, including those fictitiously named, were at all times relevant to this action, the egent,
employer, partner, supervisor, joint employer, managing agent, joint venturer, alter ego or part
of an integrated enterprise of the remaining defendants and each were acting within the course
and scope of that relationship.
6. KELLY is further informed and believes and thereon alleges that each of the
defendants herein gave consent to, ratified and authorized the acts alleged herein to each of the
remaining defendants, including those fictitiously named defendants.
, / 7. KELLY and WHITE entered into an employment relationship on or about
December 23, 2003, At the time, WHITE was incarcerated in Bangkok, Thailand and KELLY
was hired by WHITE to provide internet research services, visit WHITE regularly where he was
incarcerated, take his instructions and advise him on legal and other matters, and assist WHITE
in his efforts to secure WHITE’S release from prison. KELLY was compensated $2,000 per_
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month for his services which WHITE referred to as a “stipend”. It was agreed that the plaintiff
would be further compensated based upon the proven worth of what he was able to do to assist
WHITE. -
8. On or about October 12,2005, KELLY and WHITE entered into an oral
agreement both parties understood would take less than a year to complete whereby WHITE
agreed to pay to KELLY a substantial bonus if KELLY succeeded in gaining citizenship for
WHITE in a country of WHITE’S choosing. What made this task exceptionally difficult was
the fact that WHITE was incarcerated in Thailand at the time due to an extradition request by
Mexico, WHITE agreed that if KELLY was successful at acquiring 2™ citizenship for him
where WHITE’S attorneys and others had failed, KELLY would receive as a bonus a Mercedes
8-500, or the cash equivalent, which was approximately $350,000 in Thailand at the time of the
agreement.
, 9. On or about June 9, 2006 KELLY succeeded in acquiring legal citizenship along
with a valid passport containing a Thai Visa for WHITE, in accordance with the terms of their
oral agreement. However, contrary to the terms of the agreement made by WHITE, he tefused
to pay KELLY the promised bonus and instead only paid $25,000. WHITE represented to
KELLY that he would be paid the remainder of the bonus once WHITE was released from
prison and said that if he (WHITE) paid the full amount now KELLY might decide he no longer
needed to work for WHITE. WHITE also assured KELLY that he(WHITE) would provide
financing for future business ventures WHITE was sure he and KELLY would pursue together
after WHITE was released from prison. Having no other option, KELLY accepted the $25,000
payment and agreed to defer the remaining $325,000 to the date WHITE was released from
prison, Since WHITE was reported to have a net worth of somewhere in the area of
$65,000,000 at the time, KELLY reasonably assumed WHITE could and indeed would pay the
remainder of the bonus when he was released from prison.
10. On or about May 31, 2007, KELLY and WHITE entered into an oral agreement
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both parties understood would take less than a year to complete whereby WHITE agreed to pay
KELLY a bonus for the extra work KELLY had done in San Francisco, California and Mexico
in an amount ranging from $495,000 to $660,000 provided:
| a) KELLY was able to convince the new legal team he had located to represent WHITE;
"and
b) KELLY was able to successfully negotiate a retainer agreement with the new legal
team; and .
¢) The new legal team obtained a reversal of WHITE’S conviction on charges of rape by
the Mexican trial court.
WHITE promised to pay KELLY a bonus in the amount of 15% - 20% of the retainer
agreement amount KELLY was able to negotiate with the new legal team if and when the new
legal team succeeded in overturning WHITE’S rape conviction. The bonus was in part meant to
compensate KELLY for his efforts in locating a legal team able to have WHITE’S rape
conviction overturned if that turned out to be the case; and in part for the work KELLY had done
and would do to assist the new legal team in their efforts to have WHITE’S conviction
overturned; and finally to compensate KELLY for other extra work he had already done for
WHITE over a period of more than a year in Mexico and California. It was also understood by
the parties that in the event the new legal team failed to overtum WHITE’S rape conviction
KELLY would not receive any bonus whatsoever including no bonus for the above mentioned
extra work he had already completed for WHITE.
11, KELLY performed the obligations he agreed to undertake pursuant to the terms of
the agreement reached with WHITE. KELLY ultimately convinced the new legal team to
represent WHITE and successfully wrote and negotiated a $3.3 million retainer agreement
agreeable to both parties that was not only primarily contingent upon success but also $800,000
less than the new legal team had initially asked for.
12, Asaresult of the work performed by KELLY and the legal team KELLY secured
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to represent WHITE, on or about November 1, 2007 the Supreme Court in Jalisco, Mexico
overtummed WHITE’s rape conviction.
13, Because the agreed upon result had been achieved, KELLY requested payment
from WHITE of the bonus promised to KELLY. WHITE initially refused to discuss the
payment with KELLY and suggested they discuss it at a later date. However, upon further
requests, by KELLY, during November 2007 WHITE offered instead to pay KELLY a bonus of
$100,000, KELLY rejected the offer at which point WHITE informed KELLY that he
(WHITE) wanted to deal with the bonus issue at a later date.
14. During the course of the next 2-3 months, KELLY repeatedly requested from
WHITE payment of the bonus he had earned and to which WHITE had agreed.
15. On or about February 12, 2008, WHITE withdrew his prior offer to pay KELLY
the $100,000 bonus WHITE conceded was eared, and no further offers or compromises have
been made by WHITE in an attempt to settle this debt. Thus, as of February 12, 2008, WHITE
was in breach of the agreement he made with KELLY, as more fully set forth herein.
16. | Onor about February 19, 2008, WHITE terminated KELLY’s employment.
17. On or about February 27, 2008, WHITE published an email wherein WHITE
falsely accused KELLY of committing numerous crimes (i.¢. attempted extortion and either
damaging or stealing personal and/or real property owned by WHITE).
FIRST CAUSE OF ACTION
(Termination in Violation of Public Policy)
As a first separate and distinct cause of action, KELLY complains of defendants and for a
cause of action states:
18. | KELLY incorporates by reference paragraphs 1-17, inclusive, of this Complaint
a8 though fully set forth herein.
19, Defendants, and each of them, subjected Plaintiff to retaliation, based on
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Plaintiff's complaints that he was not being compensated as promised, which led to his unlawful
termination.
20. The actions complained of are in violation of California’s public policy against
depriving employees of earned wages which is expressed in the California Labor Code and the
corresponding California Code of Regulations and wage orders.
21. Plaintiff's complaints about not being paid wages as agreed by Defendants were a
motivating factor in the Defendants’ decision to terminate Plaintiff's employment.
22. Asa proximate result of Defendants’ actions described in the general allegations,
Plaintiff has suffered the loss of future business opportunities promised by the Defendant,
promotional opportunities, wages/salary, benefits, stocks and additional amounts of money
Plaintiff would have received had he not been discriminated against, which resulted in his
unlawful termination.
23. Asa further proximate result of Defendants’ actions, Plaintiff has been harmed in
that Plaintiff has suffered humiliation, mental anguish, and emotional distress in an amount to
be established at trial.
24, Plaintiff further alleges that Defendants, and each of them, acted with fraud,
oppression and malice thus entitling Plaintiff to recover punitive damages, sufficient to punish
and make an example of the Defendants and each of them.
WHEREFORE, KELLY prays for judgment against defendants as hereinafter set forth.
SECOND CAUSE OF ACTION
(Breach of Contract)
As a second, separate, and distinct cause of action, KELLY complains of defendants and
for a cause of action states:
25. | KELLY incorporates by reference paragraphs 1-24, inclusive, of this Complaint
as though fully set forth herein.Oo CO SDN RR OR
—
°
11
26. On or about October 12, 2005 KELLY and WHITE entered into an oral
agreement whereby KELLY agreed to obtain legal citizenship for WHITE in a country of his
choice and- WHITE agreed to compensate KELLY as more fully set forth inthe General
Allegations herein.
27. As set forth in the General Allegations herein, KELLY has performed all
conditions, covenants, and promises required on his part to be performed in accordance with the
terms and conditions of the contract.
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 and conditions of the contract.
29. Asa result of WHITE’s breach of the contract, KELLY has suffered damages in
the amount of $325,000.00.
WHEREFORE, KELLY prays for judgment against defendants as hereinafter set forth.
THIRD CAUSE OF ACTION
(Breach of Contract)
As a third, separate, and distinct cause of action, KELLY complains of defendants and
for a cause of action states:
30. | KELLY incorporates by reference paragraphs 1-29, inclusive, of this Complaint
as though fully set forth herein.
31. On or about May 31, 2007, KELLY and WHITE entered into an oral agreement
whereby KELLY agreed to secure a legal team to represent WHITE in attempting to overturn
WHITE’S rape conviction in Mexico and WHITE agreed to compensate KELLY as more fully
set forth in the General Allegations herein,
°T~32. As set forth in the General Allegations herein, KELLY has performed all
conditions, covenants and promises required on his part to be performed in accordance with the
terms and conditions of the contract.
33. On or about February 12, 2008, WHITE breached the oral agreement by refusing
to compensate KELLY pursuant to the terms and conditions of the contract.
34. As a result of WHITE’S breach of the contract, KELLY has suffered damages in
the amount of $577,500.00.
WHEREFORE, KELLY prays judgment against defendants as hereinafter set forth.
FOUR’ ‘AUSE ON
(Breach Of The Implied Covenant Of Good Faith And Fair Dealing)
As a fourth separate and distinct cause of action, KELLY complains of defendants and
for a cause of action states:
35. Asa result of the employment relationship which existed between KELLY and
defendants, the express and implied promises made in connection therewith, and the acts,
conduct and communications which resulted in said implied promises and under the laws of the
State of California, Defendants covenanted and promised to act in good faith toward and deal
fairly with KELLY, which requires, inter alia, the following:
(A) Each party in the relationship must act with good faith toward the other
concerning all matters related to the employment,
(B) Each party in the relationship must act with fairness toward the other
conceming all matters related to the employment,
(C) ~ Neither party would take any action to uneasily prevent the other from
obtaining the benefits of the employment relationship; and ,
(D) _ Defendant employer would comply with its own representations, rules,
practices, policies and procedures in dealing with KELLY.
-8-36. Defendants breached the covenant of good faith and fair dealing and said breach
was wrongful, in bad faith, and unfair, and therefore in violation of Defendants’. legal duties. .
37. KELLY further ‘alleges that Defendants breached the covenant of good faith and
fair dealing when they:
(A) Terminated KELLY without cause; :
, @) Prevented him from carrying out his duties and responsibilities as required
under the employment agreement;
, (D) Unfairly prevented KELLY from obtaining the benefits of the
employment relationship;
(E) Deprived KELLY from obtaining the benefits of the agreement set forth
more fully in the General Allegations herein, including the bonus payments KELLY had
fully earned in the amounts of $325,000.00 and $577,500.00.
38. Defendants’ breach. of the covenant of good faith and fair dealing was a
substantial factor in causing damage and injury to KELLY. As a direct and proximate result of
Defendants’ unlawful conduct herein alleged, KELLY has lost wages and other employee
benefits in an amount that will-be proven at trial.
WHEREFORE, KELLY prays judgment against defendants as hereinafter set forth.
DAMAGES
WHEREFORE, plaintiff prays for judgment against defendants, jointly and severally, as
follows: /
AL Damages based upon KELLY’s lost earnings and unpaid, earned bonuses and
other employment-related benefits, pain and suffering, emotional distress, and other
consequential damages in an amount to be proved at trial;
2. Exemplary damages, in an amount to be proved at trial;
3. Costs including expert witness fees and interest as permitted by statute or as
-9-
FIRST AMENDED COMPLAINT FOR DAMAGES4,
Dated: December 2 2011
otherwise awarded by the Court, and
For such other relief that the Court may deem just and proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands trial of this matter by jury.
Dated: December (0, 2011
-10-
RIVCT AMENNREN COMDPET AINT GAD NAMACECPOS-040
———}
"ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY
Patrick Kelly (In Pro Per)
1945 Taraval St #250
San Francisco, CA 94116
reerroneno.087 933 5000 ax wo. opsone:
E-MAIL ADDRESS (Optional):
ATTORNEY FoR (Nemein Pro Per
SUPERIOR COURT OF CALIFORNIA, countyor SAN FRANCISCO
street aporess: 400 McAllister St
‘MAILING ADDRESS:
erry ano ze cove: San Francisco, CA 94102
(BRANCH NAME:
PLAINTIFF/PETITIONER: Patrick Kelly
DEFENDANT/RESPONDENT: Thomas White, et al. CASE NUMBER:
PROOF OF SERVICE—CIVIL CGC-09-494198
Check method of service (only one):
(77] By Personal Service By Mail By Overnight Delivery JUDGE:
By Messenger Service By Fax (J By Electronic Service DEPT:
(Do not use this proof of service to show service of a Summons and complaint.)
1. At the time of service | was over 18 years of age and not a party to this action.
2. My residence or business address is:
Docket Rocket, 182 Howard St #310, San Francisco, CA 94105
3.[_] The fax number or electronic notification address from which | served the documents is (complete if service was by fax or
electronic service):
4. On (date): 12/22/11 | served the following documents (specify):
First Amended Complaint for Damages; Demand for Jury Trial
The documents are listed in the Attachment to Proof of Service-Civil (Documents Served) (form POS-040(D)).
5, | served the documents on the person or persons below, as follows:
a. Name of person served: Geoffrey Rotwein, Esq.
v.(] (Complete if service was by personal service, mail, overnight delivery, or messenger service.)
Business or residential address where person was served:
400 Montgomery St, 2nd Floor, San Francisco, CA 94104
c. (Complete if service was by fax or electronic service.)
(1) Fax number or electronic notification address where person was served:
(2) Time of service:
[-7] The names, addresses, and other applicable information about persons served is on the Attachment to Proof of
Service—Civil (Persons Served) (form POS-040(P)).
6. The documents were served by the following means (specify):
a. 7] By personal service. | personally delivered the documents to the persons at the addresses listed in item 5. (1) Fora
party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents,
in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in
charge of the office, between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made
to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age
between the hours of eight In the morning and six in the evening.
(Continued on next page)
§ 10106, 1011, 1013,
Fam Appvd for Optona Use PROOF OF SERVICE—CIVIL 08 ot TE Cal Rubs of Court nee 2.200, 2208
POS-040 [Rev. January t, 2010} (Proof of Service) warm courtictocagoyPOS-040
CASE NAME ‘CASE NUMBER:
Kelly v White CGC-09-494198
6b. By United States mail. | enclosed the documents in a sealed envelope or package addressed to the persons at the
addresses in item 5 and (specify one):
(1) [=] deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid.
(2) 1 placed the envelope for collection and mailing, following our ordinary business practices, | am readily familiar
with this business's practice for collecting and processing correspondence for mailing. On the same day that
correspondence Is placed for collection and mailing, it is deposited in the ordinary course of business with the
United States Postal Service, in a sealed envelope with postage fully prepaid.
lama resident or employed in the county where the malling occurred, The envelope or package was placed in the mail at
(city and state):
c.[—_] By overnight delivery. | enclosed the documents in an envelope or package provided by an overnight delivery
carrier and addressed to the persons at the addresses in item 5. | placed the envelope or package for collection
and ovemight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
]
By messenger service. | served the documents by placing them in an envelope or package addressed to the persons
at the addresses listed in Item 5 and providing them to a professional messenger service for service. (A declaration by
the messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.)
8.[__] By fax transmission... Based on an agreement of the parties to accept service by fax transmission, | faxed the documents
to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that | used. A copy of the
tecord of the fax transmission, which | printed out, is attached.
f, [C7] By electronic service. Based on a court order or an agreement of the parties to accept service by electronic transmission,
| caused the documents to be sent to the persons at the electronic notification addresses listed in item 5.
| declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: 12/22/11
(SIGNATURE OF DECLARANT)
(TYPE OR PRINT NAME OF DECLARANT)
{if item 6d above is checked, the declaration below must be completed or a separate declaration from a messenger must be attached.)
DECLARATION OF MESSENGER
[7] By personal service. | personally delivered the envelope or package received from the declarant above to the persons at the
addresses listed in item 5. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's
office by leaving the documents in an envelope or package, which was clearly labeled to identify the attorney being served,
with a receptionist or an individual In charge of the office, between the hours of nine in the morning and five in the evening. (2)
For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger
than 18 years of age between the hours of eight in the morning and six in the evening.
At the time of service, | was over 18 years of age. | am not a party to the above-referenced legal proceeding.
| served the envelope or package, as stated above, on (date):
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
(NAME OF DECLARANT) {SIGNATURE OF DECLARANT)
‘POS-040 (Rev. deruary 1, 2010} PROOF OF SERVICE—CIVIL
(Proof of Service)EXHIBIT H10
i
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 Jurisdicti
(Unlimited Jurisdiction) FA es
PATRICK KELLY, Case No.: CGC-09-494198 / G/
Plaintiff, PLAINTIFF’S SEPARATE STATEMENT
OF UNDISPUTED MATERIAL FACTS
ve Date: Oct. 10, 2012
Time: 9:30 am.
THOMAS WHITE, and DOES | through 25, Dept 302
inclusive,
TELEPHONE APPEARANCE BY
Defendants. PLAINTIFF
Trial Date: May 6, 2013
3 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 UME
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,nw
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,
q2.
ie
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 eyery 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
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
9187his 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.
2. Defendant Thomas White has been Agreed, Though this statement is
incarcerated in prison continuously technically correct, the true start date of
from January 1, 2005 through the defendant’s incarceration was on
present. February 11, 2003.
Supporting Evidence
2. Declaration of Geoffrey Rotwein,
43.
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 Supporting Evidence
3. Defendant Thomas White generally Answer to First Amended
denies each and every allegation in Complaint (Exhibit “A”),
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
=3-
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
0188nw
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,
=4-
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.
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
018926
27
. Plaintiff's personal assessment of the
. Defendant told the plaintiff several
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.
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 plaintiff's treatment
for Hepatitis C which cost about $18,000,
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.
5.
PLAINTIFF SEPARATE S MENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494 198
019011. In and around the time of the defendant's
indictment, someone broke into the
plaintiffs 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.
. 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.
. 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 to 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”).
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
0194Or
16.
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
case 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.
-7-
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-09-494198
019218.
20.
>
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 Revocation fetter (Exhibit “H”).
to extradite the defendant, the US
revoked the defendant’s passport
leaving him without travel documents.
. 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-09-49419826
27
23,
24,
25.
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.
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.
After others had failed to acquire os
citizenship for the defendant, the plaintiff
told the defendant he believed he had the
skills necessary to convince others of the
0-
Various letters and emails from
plaintiff including Exhibit “1”
which also includes the face page
of Garcia y. 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
PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494 198
019426.
2
2
7.
oe
defendant’s innocence and based upon this
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 $-500 that
the two of them could drive to the boarder
in style for visa runs.
Plaintiff and defendant entered
into an agreement where
plaintiff would attempt to
acquire 2" citizenship and a
passport for the defendant and
in return defendant would give
plaintiff the agreed bonus. This
agreement was made in and around
the first week of February 2005.
The bonus the parties agreed to
was a Mercedes Benz $-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 $350,000 bonus was a fair amount
considering the enormity of the task of
acquiring 2" citizenship and a passport
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.
0-
PLAINTIFF SEPARA
from the defendant in discovery.
Plaintiff's Declaration #3.
Subsequent behavior and actions
of the parties that evidence the
agreement, Additional evidence
plaintiff has not yet received from
the defendant.
‘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”).
The $imillion budget amount
defendant provided for the
project evidencing defendant’s,
view of its importance.
TEMENT IN SUPPOR'T OF
OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
CGC-09-494198
019529.
30.
3
32.
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
$/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 froma
trip te 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
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, Vv. SHANE CLARIDGE WHITE, as Executor of the Thomas F. White Estate Defendant. fit Case No.: CGC-13-535823 REQUEST FOR JUDICIAL NOTICE 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 Request for Judicial Notice ISO Motion for Summary Judgment/Summary Adjudication Kelly v. White, No. CGC-13-535823I. INTRODUCTION Pursuant to California Evidence Code 452, Defendant the Executor of the Estate of Thomas F. White (“the Estate’), requests that the Court take judicial notice of: (1) pleadings filed in San Francisco Superior Court; (2) the exchange rate of the Cambodian currency, the Riel (KHR), to U.S. dollars; and (3) Decree Law 38, on Contracts and Extra-Contractual Responsibilities, Articles 3, 4 and 5, the portions of Cambodian contract law relevant to the determination of the Estate’s motion. Each pleading listed below has been authenticated by the declarations of Britt Evangelist and Geoffrey Rotwein, concurrently filed herewith. The declaration of Britt Evangelist also contains authenticating information for the exchange rate of the Cambodia Riel to U.S. dollars. The declaration of Potim Yun authenticates Decree Law 38. Each document listed below has also been appended to the concurrently filed Index of Evidence. IL. REQUEST FOR JUDICIAL NOTICE A summary judgment motion can be based on matters of which the Court may take judicial notice. (Cal. Code Civ. P. § 437c(b)(1).) Pursuant to Cal. Ev. Code § 452(d), a court may take judicial notice of files in its own court. Pursuant to Cal. Ev. Code § 452(f), a court may take judicial notice of the laws of foreign nations where a person with knowledge of the foreign law presents the court with advice or an opinion about that law in writing. (Cal. Ev. Code § 454(b).) The Estate respectfully requests that the Court take judicial notice of the following documents in connection with its concurrently filed motion for summary judgment: Document: Exhibit: First Amended Complaint for Damages filed in San Francisco A to Rotwein Decl. Superior Court in the case of Patrick Kelly v. Thomas White, et al., No. CGC-09-494198, on December 22, 2011. Plaintiff’s Separate Statement of Undisputed Material Facts filed in H to Rotwein Decl. San Francisco Superior Court in the case of Patrick Kelly v. Thomas White, et al., No. CGC-09-494198, on September 25, 2012. -1- Request for Judicial Notice ISO Motion for Summary Judgment/Summary Adjudication Kelly v. White, No. CGC-13-535823Verified First Amended Complaint for Damages filed in San U to Evangelist Decl. Francisco Superior Court in the case Patrick Kelly v. Jack Eugene Teeters, as Executor of the Thomas F. White Estate, No. CGC-13- 535823, on September 29, 2015 V to Yun Decl.; I to Cambodian contract law: Decree Law 38, on Contracts and Extra- Madden Decl. Contractual Responsibilities, Articles 3, 4 and 5 A court may also take judicial notice of “[fJacts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Ev. Code § 452(h).) Federal courts have held that matters such as historical exchange rates and stock prices may properly be the subject of judicial notice. (In re Waterford Wedgwood USA, Inc. (Bankr. S.D.N.Y. 2013) 500 F.R. 371, 383 n.8 [taking judicial notice of the currency conversion rate between two currencies at the time of the transaction on the basis of information available on the Internal Revenue Service Website]; Jn re Verifone Sec. Litig. (N.D. Cal. 1992) 784 F. Supp. 1471, 1475 n.2 [in granting the defendants’ motion to dismiss with prejudice, the court took judicial notice of the company’s daily close stock prices]; Ravens v. Iftikar (N.D. Cal. 1997) 174 F.R.D. 651, 661 [accord].) While these cases were decided under Fed. R. Ev. 201(b), which permits judicial notice of a fact “not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” that provision “is akin to California Evidence Code section 452, subdivision (h), which permits judicial notice of ‘[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.’” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 753 as modified on denial of reh'g (Apr. 16, 2013) [relying on federal authority and granting request for judicial notice].) iil -2- Request for Judicial Notice ISO Motion for Summary Judgment/Summary Adjudication Kelly v. White, No. CGC-13-535823The Estate respectfully requests that the Court take judicial notice of the exchange rate of the Cambodian currency, the Riel (KHR), to U.S. dollars. As set forth in the Declaration of Britt Evangelist, the exchange rates were arrived at by dividing the foreign currency amount (5,000 KHR) by the applicable yearly average exchange rate listed on the Internal Revenue Service’s (“IRS”) website. The average yearly exchange rate for KHR 5,000 to U.S. dollars is as follows: Year USD Value of KHR 5,000 2005 $1.2001 2006 $1.2339 2007 $1.2288 2008 $1.2263 2009 $1.2010 2010 $1.1795 2011 $1.2186 2012 $1.2186 2013 $1.2186 2014 $1.2186 2015 $1.2186 2016 $1.2186 2017 (as of March 31) $1.2186 Dated: June 26, 2017 Respectfully submitted, /s/ Britt Evangelist Edward W. Swanson Britt Evangelist SWANSON & McNAMARA LLP Attorneys for Defendant, Shane Claridge White, as Executor of the Thomas F. White Estate -3- Request for Judicial Notice ISO Motion for Summary Judgment/Summary Adjudication Kelly v. White, No. CGC-13-535823EXHIBIT AATM SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Dec-28-2011 10:52 am Case Number: CGC-09-494198 Filing Date: Dec-22-2011 3:08 Juke Box: 001 Image: 03430474 COMPLAINT PATRICK KELLY VS. THOMAS WHITE et al 001C03430474 Instructions: Please place this sheet on top of the document to be scanned.26 27 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) —() R | G | NA L PATRICK KELLY, Case No.: CGC-09-494198 Plaintiff, FIRST AMENDED COMPLAINT FOR DAMAGES v8. 1, TERMINATION IN TION OF PUBLIC THOMAS WHITE, and DOES | through 25, poviey, N OF PUBLI inclusive, 2. BREACH OF CONTRACT; 3. BREACH OF CONTRACT: Defendants. 4, BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING DEMAND FOR JURY TRIAL Plaintiff In Pro Per PATRICK KELLY alleges as follows: GENERAL ALLEGATIONS 1. Plaintiff PATRICK KELLY (hereinafter “KELLY” or “Plaintiff”) is a resident of San Francisco County, California, who is currently residing in Bangkok, Thailand on a temporary visa. -l- HTDCT AMENNEN COMPE.AINT FOR DAMAGES2. Atall times relevant herein, defendant THOMAS WHITE (hereinafter “WHITE” or “Defendant”) is and was a resident of the City and County of San Francisco, California. 3. The work performed by KELLY at WHITE’s request and direction (as more fully set forth below) was performed in San Francisco, California, Bangkok, Thailand and Puerto Vallarta, Mexico. , / 4, KELLY sues fictitious defendants DOES 1-25 because their names and/or capacities and/or facts showing them to be liable are not known presently (WHITE and fictitious defendants are collectively referred to herein as “Defendants”). On information and belief, KELLY alleges that their entities and/or capacities shall be ascertained through discovery, KELLY will seek leave to amend this complaint to show their true names and capacities when the same has been ascertained. On information and belief, KELLY alleges each defendant designated herein as fictitious defendants were in some manner responsible for the occurrences and damages alleged herein. 5, KELLY is informed and believes and thereon alleges that each of the defendants herein, including those fictitiously named, were at all times relevant to this action, the egent, employer, partner, supervisor, joint employer, managing agent, joint venturer, alter ego or part of an integrated enterprise of the remaining defendants and each were acting within the course and scope of that relationship. 6. KELLY is further informed and believes and thereon alleges that each of the defendants herein gave consent to, ratified and authorized the acts alleged herein to each of the remaining defendants, including those fictitiously named defendants. , / 7. KELLY and WHITE entered into an employment relationship on or about December 23, 2003, At the time, WHITE was incarcerated in Bangkok, Thailand and KELLY was hired by WHITE to provide internet research services, visit WHITE regularly where he was incarcerated, take his instructions and advise him on legal and other matters, and assist WHITE in his efforts to secure WHITE’S release from prison. KELLY was compensated $2,000 per_ Oo oe SBR Re Rh LUN month for his services which WHITE referred to as a “stipend”. It was agreed that the plaintiff would be further compensated based upon the proven worth of what he was able to do to assist WHITE. - 8. On or about October 12,2005, KELLY and WHITE entered into an oral agreement both parties understood would take less than a year to complete whereby WHITE agreed to pay to KELLY a substantial bonus if KELLY succeeded in gaining citizenship for WHITE in a country of WHITE’S choosing. What made this task exceptionally difficult was the fact that WHITE was incarcerated in Thailand at the time due to an extradition request by Mexico, WHITE agreed that if KELLY was successful at acquiring 2™ citizenship for him where WHITE’S attorneys and others had failed, KELLY would receive as a bonus a Mercedes 8-500, or the cash equivalent, which was approximately $350,000 in Thailand at the time of the agreement. , 9. On or about June 9, 2006 KELLY succeeded in acquiring legal citizenship along with a valid passport containing a Thai Visa for WHITE, in accordance with the terms of their oral agreement. However, contrary to the terms of the agreement made by WHITE, he tefused to pay KELLY the promised bonus and instead only paid $25,000. WHITE represented to KELLY that he would be paid the remainder of the bonus once WHITE was released from prison and said that if he (WHITE) paid the full amount now KELLY might decide he no longer needed to work for WHITE. WHITE also assured KELLY that he(WHITE) would provide financing for future business ventures WHITE was sure he and KELLY would pursue together after WHITE was released from prison. Having no other option, KELLY accepted the $25,000 payment and agreed to defer the remaining $325,000 to the date WHITE was released from prison, Since WHITE was reported to have a net worth of somewhere in the area of $65,000,000 at the time, KELLY reasonably assumed WHITE could and indeed would pay the remainder of the bonus when he was released from prison. 10. On or about May 31, 2007, KELLY and WHITE entered into an oral agreement 3.~ wo Oo IU DH BH B® WwW both parties understood would take less than a year to complete whereby WHITE agreed to pay KELLY a bonus for the extra work KELLY had done in San Francisco, California and Mexico in an amount ranging from $495,000 to $660,000 provided: | a) KELLY was able to convince the new legal team he had located to represent WHITE; "and b) KELLY was able to successfully negotiate a retainer agreement with the new legal team; and . ¢) The new legal team obtained a reversal of WHITE’S conviction on charges of rape by the Mexican trial court. WHITE promised to pay KELLY a bonus in the amount of 15% - 20% of the retainer agreement amount KELLY was able to negotiate with the new legal team if and when the new legal team succeeded in overturning WHITE’S rape conviction. The bonus was in part meant to compensate KELLY for his efforts in locating a legal team able to have WHITE’S rape conviction overturned if that turned out to be the case; and in part for the work KELLY had done and would do to assist the new legal team in their efforts to have WHITE’S conviction overturned; and finally to compensate KELLY for other extra work he had already done for WHITE over a period of more than a year in Mexico and California. It was also understood by the parties that in the event the new legal team failed to overtum WHITE’S rape conviction KELLY would not receive any bonus whatsoever including no bonus for the above mentioned extra work he had already completed for WHITE. 11, KELLY performed the obligations he agreed to undertake pursuant to the terms of the agreement reached with WHITE. KELLY ultimately convinced the new legal team to represent WHITE and successfully wrote and negotiated a $3.3 million retainer agreement agreeable to both parties that was not only primarily contingent upon success but also $800,000 less than the new legal team had initially asked for. 12, Asaresult of the work performed by KELLY and the legal team KELLY secured 4e-_ o Oo SBD WD eF YW & to represent WHITE, on or about November 1, 2007 the Supreme Court in Jalisco, Mexico overtummed WHITE’s rape conviction. 13, Because the agreed upon result had been achieved, KELLY requested payment from WHITE of the bonus promised to KELLY. WHITE initially refused to discuss the payment with KELLY and suggested they discuss it at a later date. However, upon further requests, by KELLY, during November 2007 WHITE offered instead to pay KELLY a bonus of $100,000, KELLY rejected the offer at which point WHITE informed KELLY that he (WHITE) wanted to deal with the bonus issue at a later date. 14. During the course of the next 2-3 months, KELLY repeatedly requested from WHITE payment of the bonus he had earned and to which WHITE had agreed. 15. On or about February 12, 2008, WHITE withdrew his prior offer to pay KELLY the $100,000 bonus WHITE conceded was eared, and no further offers or compromises have been made by WHITE in an attempt to settle this debt. Thus, as of February 12, 2008, WHITE was in breach of the agreement he made with KELLY, as more fully set forth herein. 16. | Onor about February 19, 2008, WHITE terminated KELLY’s employment. 17. On or about February 27, 2008, WHITE published an email wherein WHITE falsely accused KELLY of committing numerous crimes (i.¢. attempted extortion and either damaging or stealing personal and/or real property owned by WHITE). FIRST CAUSE OF ACTION (Termination in Violation of Public Policy) As a first separate and distinct cause of action, KELLY complains of defendants and for a cause of action states: 18. | KELLY incorporates by reference paragraphs 1-17, inclusive, of this Complaint a8 though fully set forth herein. 19, Defendants, and each of them, subjected Plaintiff to retaliation, based on Se_ oo a Aw me ww Dw Plaintiff's complaints that he was not being compensated as promised, which led to his unlawful termination. 20. The actions complained of are in violation of California’s public policy against depriving employees of earned wages which is expressed in the California Labor Code and the corresponding California Code of Regulations and wage orders. 21. Plaintiff's complaints about not being paid wages as agreed by Defendants were a motivating factor in the Defendants’ decision to terminate Plaintiff's employment. 22. Asa proximate result of Defendants’ actions described in the general allegations, Plaintiff has suffered the loss of future business opportunities promised by the Defendant, promotional opportunities, wages/salary, benefits, stocks and additional amounts of money Plaintiff would have received had he not been discriminated against, which resulted in his unlawful termination. 23. Asa further proximate result of Defendants’ actions, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental anguish, and emotional distress in an amount to be established at trial. 24, Plaintiff further alleges that Defendants, and each of them, acted with fraud, oppression and malice thus entitling Plaintiff to recover punitive damages, sufficient to punish and make an example of the Defendants and each of them. WHEREFORE, KELLY prays for judgment against defendants as hereinafter set forth. SECOND CAUSE OF ACTION (Breach of Contract) As a second, separate, and distinct cause of action, KELLY complains of defendants and for a cause of action states: 25. | KELLY incorporates by reference paragraphs 1-24, inclusive, of this Complaint as though fully set forth herein.Oo CO SDN RR OR — ° 11 26. On or about October 12, 2005 KELLY and WHITE entered into an oral agreement whereby KELLY agreed to obtain legal citizenship for WHITE in a country of his choice and- WHITE agreed to compensate KELLY as more fully set forth inthe General Allegations herein. 27. As set forth in the General Allegations herein, KELLY has performed all conditions, covenants, and promises required on his part to be performed in accordance with the terms and conditions of the contract. 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 and conditions of the contract. 29. Asa result of WHITE’s breach of the contract, KELLY has suffered damages in the amount of $325,000.00. WHEREFORE, KELLY prays for judgment against defendants as hereinafter set forth. THIRD CAUSE OF ACTION (Breach of Contract) As a third, separate, and distinct cause of action, KELLY complains of defendants and for a cause of action states: 30. | KELLY incorporates by reference paragraphs 1-29, inclusive, of this Complaint as though fully set forth herein. 31. On or about May 31, 2007, KELLY and WHITE entered into an oral agreement whereby KELLY agreed to secure a legal team to represent WHITE in attempting to overturn WHITE’S rape conviction in Mexico and WHITE agreed to compensate KELLY as more fully set forth in the General Allegations herein, °T~32. As set forth in the General Allegations herein, KELLY has performed all conditions, covenants and promises required on his part to be performed in accordance with the terms and conditions of the contract. 33. On or about February 12, 2008, WHITE breached the oral agreement by refusing to compensate KELLY pursuant to the terms and conditions of the contract. 34. As a result of WHITE’S breach of the contract, KELLY has suffered damages in the amount of $577,500.00. WHEREFORE, KELLY prays judgment against defendants as hereinafter set forth. FOUR’ ‘AUSE ON (Breach Of The Implied Covenant Of Good Faith And Fair Dealing) As a fourth separate and distinct cause of action, KELLY complains of defendants and for a cause of action states: 35. Asa result of the employment relationship which existed between KELLY and defendants, the express and implied promises made in connection therewith, and the acts, conduct and communications which resulted in said implied promises and under the laws of the State of California, Defendants covenanted and promised to act in good faith toward and deal fairly with KELLY, which requires, inter alia, the following: (A) Each party in the relationship must act with good faith toward the other concerning all matters related to the employment, (B) Each party in the relationship must act with fairness toward the other conceming all matters related to the employment, (C) ~ Neither party would take any action to uneasily prevent the other from obtaining the benefits of the employment relationship; and , (D) _ Defendant employer would comply with its own representations, rules, practices, policies and procedures in dealing with KELLY. -8-36. Defendants breached the covenant of good faith and fair dealing and said breach was wrongful, in bad faith, and unfair, and therefore in violation of Defendants’. legal duties. . 37. KELLY further ‘alleges that Defendants breached the covenant of good faith and fair dealing when they: (A) Terminated KELLY without cause; : , @) Prevented him from carrying out his duties and responsibilities as required under the employment agreement; , (D) Unfairly prevented KELLY from obtaining the benefits of the employment relationship; (E) Deprived KELLY from obtaining the benefits of the agreement set forth more fully in the General Allegations herein, including the bonus payments KELLY had fully earned in the amounts of $325,000.00 and $577,500.00. 38. Defendants’ breach. of the covenant of good faith and fair dealing was a substantial factor in causing damage and injury to KELLY. As a direct and proximate result of Defendants’ unlawful conduct herein alleged, KELLY has lost wages and other employee benefits in an amount that will-be proven at trial. WHEREFORE, KELLY prays judgment against defendants as hereinafter set forth. DAMAGES WHEREFORE, plaintiff prays for judgment against defendants, jointly and severally, as follows: / AL Damages based upon KELLY’s lost earnings and unpaid, earned bonuses and other employment-related benefits, pain and suffering, emotional distress, and other consequential damages in an amount to be proved at trial; 2. Exemplary damages, in an amount to be proved at trial; 3. Costs including expert witness fees and interest as permitted by statute or as -9- FIRST AMENDED COMPLAINT FOR DAMAGES4, Dated: December 2 2011 otherwise awarded by the Court, and For such other relief that the Court may deem just and proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands trial of this matter by jury. Dated: December (0, 2011 -10- RIVCT AMENNREN COMDPET AINT GAD NAMACECPOS-040 ———} "ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY Patrick Kelly (In Pro Per) 1945 Taraval St #250 San Francisco, CA 94116 reerroneno.087 933 5000 ax wo. opsone: E-MAIL ADDRESS (Optional): ATTORNEY FoR (Nemein Pro Per SUPERIOR COURT OF CALIFORNIA, countyor SAN FRANCISCO street aporess: 400 McAllister St ‘MAILING ADDRESS: erry ano ze cove: San Francisco, CA 94102 (BRANCH NAME: PLAINTIFF/PETITIONER: Patrick Kelly DEFENDANT/RESPONDENT: Thomas White, et al. CASE NUMBER: PROOF OF SERVICE—CIVIL CGC-09-494198 Check method of service (only one): (77] By Personal Service By Mail By Overnight Delivery JUDGE: By Messenger Service By Fax (J By Electronic Service DEPT: (Do not use this proof of service to show service of a Summons and complaint.) 1. At the time of service | was over 18 years of age and not a party to this action. 2. My residence or business address is: Docket Rocket, 182 Howard St #310, San Francisco, CA 94105 3.[_] The fax number or electronic notification address from which | served the documents is (complete if service was by fax or electronic service): 4. On (date): 12/22/11 | served the following documents (specify): First Amended Complaint for Damages; Demand for Jury Trial The documents are listed in the Attachment to Proof of Service-Civil (Documents Served) (form POS-040(D)). 5, | served the documents on the person or persons below, as follows: a. Name of person served: Geoffrey Rotwein, Esq. v.(] (Complete if service was by personal service, mail, overnight delivery, or messenger service.) Business or residential address where person was served: 400 Montgomery St, 2nd Floor, San Francisco, CA 94104 c. (Complete if service was by fax or electronic service.) (1) Fax number or electronic notification address where person was served: (2) Time of service: [-7] The names, addresses, and other applicable information about persons served is on the Attachment to Proof of Service—Civil (Persons Served) (form POS-040(P)). 6. The documents were served by the following means (specify): a. 7] By personal service. | personally delivered the documents to the persons at the addresses listed in item 5. (1) Fora party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office, between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight In the morning and six in the evening. (Continued on next page) § 10106, 1011, 1013, Fam Appvd for Optona Use PROOF OF SERVICE—CIVIL 08 ot TE Cal Rubs of Court nee 2.200, 2208 POS-040 [Rev. January t, 2010} (Proof of Service) warm courtictocagoyPOS-040 CASE NAME ‘CASE NUMBER: Kelly v White CGC-09-494198 6b. By United States mail. | enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 5 and (specify one): (1) [=] deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. (2) 1 placed the envelope for collection and mailing, following our ordinary business practices, | am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence Is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. lama resident or employed in the county where the malling occurred, The envelope or package was placed in the mail at (city and state): c.[—_] By overnight delivery. | enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 5. | placed the envelope or package for collection and ovemight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. ] By messenger service. | served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in Item 5 and providing them to a professional messenger service for service. (A declaration by the messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.) 8.[__] By fax transmission... Based on an agreement of the parties to accept service by fax transmission, | faxed the documents to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that | used. A copy of the tecord of the fax transmission, which | printed out, is attached. f, [C7] By electronic service. Based on a court order or an agreement of the parties to accept service by electronic transmission, | caused the documents to be sent to the persons at the electronic notification addresses listed in item 5. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: 12/22/11 (SIGNATURE OF DECLARANT) (TYPE OR PRINT NAME OF DECLARANT) {if item 6d above is checked, the declaration below must be completed or a separate declaration from a messenger must be attached.) DECLARATION OF MESSENGER [7] By personal service. | personally delivered the envelope or package received from the declarant above to the persons at the addresses listed in item 5. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package, which was clearly labeled to identify the attorney being served, with a receptionist or an individual In charge of the office, between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and six in the evening. At the time of service, | was over 18 years of age. | am not a party to the above-referenced legal proceeding. | served the envelope or package, as stated above, on (date): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: (NAME OF DECLARANT) {SIGNATURE OF DECLARANT) ‘POS-040 (Rev. deruary 1, 2010} PROOF OF SERVICE—CIVIL (Proof of Service)EXHIBIT H10 i 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 Jurisdicti (Unlimited Jurisdiction) FA es PATRICK KELLY, Case No.: CGC-09-494198 / G/ Plaintiff, PLAINTIFF’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS ve Date: Oct. 10, 2012 Time: 9:30 am. THOMAS WHITE, and DOES | through 25, Dept 302 inclusive, TELEPHONE APPEARANCE BY Defendants. PLAINTIFF Trial Date: May 6, 2013 3 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 UME 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,nw 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, q2. ie 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 eyery 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 PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 9187his 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. 2. Defendant Thomas White has been Agreed, Though this statement is incarcerated in prison continuously technically correct, the true start date of from January 1, 2005 through the defendant’s incarceration was on present. February 11, 2003. Supporting Evidence 2. Declaration of Geoffrey Rotwein, 43. 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 Supporting Evidence 3. Defendant Thomas White generally Answer to First Amended denies each and every allegation in Complaint (Exhibit “A”), 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 =3- PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 0188nw 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, =4- 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. PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 018926 27 . Plaintiff's personal assessment of the . Defendant told the plaintiff several 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. 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 plaintiff's treatment for Hepatitis C which cost about $18,000, 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. 5. PLAINTIFF SEPARATE S MENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494 198 019011. In and around the time of the defendant's indictment, someone broke into the plaintiffs 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. . 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. . 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 to 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”). PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 0194Or 16. 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 case 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. -7- 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-09-494198 019218. 20. > 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 Revocation fetter (Exhibit “H”). to extradite the defendant, the US revoked the defendant’s passport leaving him without travel documents. . 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-09-49419826 27 23, 24, 25. 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. 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. After others had failed to acquire os citizenship for the defendant, the plaintiff told the defendant he believed he had the skills necessary to convince others of the 0- Various letters and emails from plaintiff including Exhibit “1” which also includes the face page of Garcia y. 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 PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494 198 019426. 2 2 7. oe defendant’s innocence and based upon this 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 $-500 that the two of them could drive to the boarder in style for visa runs. Plaintiff and defendant entered into an agreement where plaintiff would attempt to acquire 2" citizenship and a passport for the defendant and in return defendant would give plaintiff the agreed bonus. This agreement was made in and around the first week of February 2005. The bonus the parties agreed to was a Mercedes Benz $-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 $350,000 bonus was a fair amount considering the enormity of the task of acquiring 2" citizenship and a passport 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. 0- PLAINTIFF SEPARA from the defendant in discovery. Plaintiff's Declaration #3. Subsequent behavior and actions of the parties that evidence the agreement, Additional evidence plaintiff has not yet received from the defendant. ‘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”). The $imillion budget amount defendant provided for the project evidencing defendant’s, view of its importance. TEMENT IN SUPPOR'T OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION CGC-09-494198 019529. 30. 3 32. 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 $/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 froma trip te 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