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Rafael G. Nendel Flores, Esq., SBN 223358
Guillermo M. Tello, Esq., SBN 277896
Katie Sharpless, Esq., SBN 335463
Alejandro E. Rosa, Esq., SBN 340410
CLARK HILL LLP
555 South Flower Street, 24th Floor
Los Angeles, CA 90071
Telephone: (213) 891-9100
Facsimile: (213) 488-1178
rnendelflores@clarkhill.com
gtello@clarkhill.com
ksharpless@clarkhill.com
arosa@clarkhill.com
Attorneys for Defendant
VARSITY TUTORS LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
ALEXANDER CHARLES and HENRY Case No. 19CV347249
MULAK, as individuals,
DECLARATION OF RAFAEL NENDEL-
Plaintiff, FLORES IN SUPPORT OF DEFENDANT
VARSITY TUTORS LLC’S MOITON FOR
SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
VARSITY TUTORS LLC, ADJUDICATION OF ISSUES
Defendant. Filed concurrently with Memorandum of Points
and Authorities, Separate Statement of Undisputed
Material Facts, Declarations of Christopher
Swenson and Nick Morgan, Appendix of Evidence,
Request for Judicial Notice, Proposed Order, the
Documentary Evidence, the depositions under
oath, and the attached exhibits]
Assigned to: Hon. Theodore C. Zavner
Hearing Date: October 18, 2023
Time: 1:30 p.m.
Department: 19
Complaint Filed: May 1, 2019
FAC Filed: May 30, 2019
Trial Date: May 13, 2024
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DECLARATION OF RAFAEL G. NENDEL FLORES IN SUPPORT OF DEFENDANT VARSITY TUTORS LLC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
DECLARATION OF RAFAEL NENDEL-FLORES
I, Rafael Nendel-Flores, declare as follows:
1. I am an attorney at law duly licensed to practice before all courts of the State of California.
I am a member with Clark Hill, LLP, counsel of record for Defendant Varsity Tutors LLC (“Varsity”). I
have personal knowledge of all of the facts set forth below, and if called upon to testify to the same, I
could and would do so competently and truthfully.
2. I make this declaration in support of Varsity’s Motion for Summary Judgment or, in the
Alternative, Summary Adjudication of Issues (“Motion”).
3. On March 31, 2023, Plaintiff served his Second Supplemental Responses to Varsity’s
10 Request for Production of Documents, Set One. A true and correct copy of Plaintiff’s Responses is
11 attached to the Appendix of Evidence as Exhibit 125.
12 4. On April 17, 2023, Plaintiff served his Second Supplemental Responses to Varsity’s
13 Special Interrogatories, Set Two. A true and correct copy of Plaintiff’s Responses is attached to the
14 Appendix of Evidence as Exhibit 126.
15 5. On May 30, 2023, I took the first day of Plaintiff’s oral deposition. Attached to the
16 Appendix of Evidence (as Exhibits 20 through 44, 127, and 128) are true and correct copies of excerpts
17 of the deposition transcript of Plaintiff, along with copies of all exhibits referenced in the attached excerpts
18 of Plaintiff’s deposition transcript.
19 6. On June 23, 2023, I took the second day of Plaintiff’s oral deposition. Attached to the
20 Appendix of Evidence (as Exhibits 45 through 57) are true and correct copies of excerpts of the deposition
21 transcript of Plaintiff, along with copies of all exhibits referenced in the attached excerpts of Plaintiff’s
22 deposition transcript.
23 7. On June 29, 2023, Plaintiff’s Counsel took the first session of Varsity’s Person Most
24 Knowledgeable’ s (“PMK”) deposition. Attached to the Appendix of Evidence as Exhibit 58 are true and
25 correct copies of deposition transcript excerpts from the first session of Varsity’s PMK deposition.
26 8. On June 29, 2023, Plaintiff’s Counsel took the second session of Varsity’s PMK
27 deposition. Attached to the Appendix of Evidence as Exhibit 59 are true and correct copies of deposition
28 transcript excerpts from the second session of Varsity’s PMK deposition.
DECLARATION OF RAFAEL G. NENDEL FLORES IN SUPPORT OF DEFENDANT VARSITY TUTORS LLC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
9. On July 25, 2023, Varsity produced to Plaintiff documents bates stamped VARSITY
061689 through VARSITY 063088. These documents constitute video recordings of tutoring sessions
conducted by Plaintiff Alexander Charles.
10. For the purposes of this Motion, Varsity submitted certain of the above-referenced video
recordings to Array for transcription by certified court reporters. Attached to the Appendix of Evidence
as Exhibits 60 through 124 are true and correct copies of both these video recordings and their respective
transcriptions by certified court reporters.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
10 Executed on this 2nd day of August 2023, at Long Beach, California.
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Rafael Nendel-Flores
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DECLARATION OF RAFAEL G. NENDEL FLORES IN SUPPORT OF DEFENDANT VARSITY TUTORS LLC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES
PROOF OF SERVICE
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
I declare that:
I am employed in the County of Los Angeles, State of California. I am over the age of 18 years
and not a party to the within action; my business address is 555 South Flower Street, 24th Floor, Los
Angeles, California 90071.
On August 2, 2023, I served the following documents in the manner described below:
DECLARATION OF RAFAEL NENDEL-FLORES IN SUPPORT OF DEFENDANT VARSITY
TUTORS LLC’S MOITON FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION OF ISSUES
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on the interested parties in this action by placing the true copies thereof enclosed in a sealed envelope(s)
11 addressed as follows:
12
Steven Tindall, Esq. Attorneys for Plaintiffs
13 Jeffrey Kosbie, Esq. ALEXANDER CHARLES and
Rosanne L. Mah, Esq. HENRY MULAK
14 GIBBS LAW GROUP LLP
1111 Broadway, Suite 2100 Email : smt@classlawgroup.com
15 Oakland, CA 94607 jbk@classlawgroup.com
Telephone: (510) 350-9700 rlm@classlawgroup.com
16 Facsimile: (510) 350-9701
hcb@classlawgroup.com
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[X] BY ELECTRONIC TRANSMISSION: By emailing a true and correct copy through Clark Hill
18 LLP’s electronic mail system from DVo@clarkhill.com to the email addresses as indicated on the above
service list.
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[ ] BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly
20 maintained by the overnight service carrier, or delivered such document(s) to a courier or driver
authorized by the overnight service carrier to receive documents, in an envelope or package
21 designated by the overnight service carrier with delivery fees paid or provided for, addressed to
the person(s) served hereunder. (C.C.P. § 1013(d)(e)).
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[X] (STATE) I declare under penalty of perjury under the laws of the State of California that the
23 above is true and correct.
24 Executed on August 2, 2023, at Los Angeles, California.
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Diane Vo
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PROOF OF SERVICE
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Rafael G. Nendel Flores, Esq., SBN 223358 Guillermo M. Tello, Esq., SBN 277896 Katie Sharpless, Esq., SBN 335463 Alejandro E. Rosa, Esq., SBN 340410 CLARK HILL LLP 555 South Flower Street, 24th Floor Los Angeles, CA 90071 Telephone: (213) 891-9100 Facsimile: (213) 488-1178 rnendelflores@clarkhill.com gtello@clarkhill.com ksharpless@clarkhill.com arosa@clarkhill.com Attorneys for Defendant VARSITY TUTORS LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALEXANDER CHARLES and HENRY Case No. 19CV347249 MULAK, as individuals, DECLARATION OF RAFAEL NENDEL- Plaintiff, FLORES IN SUPPORT OF DEFENDANT VARSITY TUTORS LLC’S MOITON FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY VARSITY TUTORS LLC, ADJUDICATION OF ISSUES Defendant. Filed concurrently with Memorandum of Points and Authorities, Separate Statement of Undisputed Material Facts, Declarations of Christopher Swenson and Nick Morgan, Appendix of Evidence, Request for Judicial Notice, Proposed Order, the Documentary Evidence, the depositions under oath, and the attached exhibits] Assigned to: Hon. Theodore C. Zavner Hearing Date: October 18, 2023 Time: 1:30 p.m. Department: 19 Complaint Filed: May 1, 2019 FAC Filed: May 30, 2019 Trial Date: May 13, 2024 /// DECLARATION OF RAFAEL G. NENDEL FLORES IN SUPPORT OF DEFENDANT VARSITY TUTORS LLC’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES DECLARATION OF RAFAEL NENDEL-FLORES I, Rafael Nendel-Flores, declare as follows: 1. I am an attorney at law duly licensed to practice before all courts of the State of California. I am a member with Clark Hill, LLP, counsel of record for Defendant Varsity Tutors LLC (“Varsity”). I have personal knowledge of all of the facts set forth below, and if called upon to testify to the same, I could and would do so competently and truthfully. 2. I make this declaration in support of Varsity’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues (“Motion”). 3. On March 31, 2023, Plaintiff served his Second Supplemental Responses to Varsity’s 10 Request for Production of Documents, Set One. A true and correct copy of Plaintiff’s Responses is 11 attached to the Appendix of Evidence as Exhibit 125. 12 4. On April 17, 2023, Plaintiff served his Second Supplemental Responses to Varsity’s 13 Special Interrogatories, Set Two. A true and correct copy of Plaintiff’s Responses is attached to the 14 Appendix of Evidence as Exhibit 126. 15 5. On May 30, 2023, I took the first day of Plaintiff’s oral deposition. Attached to the 16 Appendix of Evidence (as Exhibits 20 through 44, 127, and 128) are true and correct copies of excerpts 17 of the deposition transcript of Plaintiff, along with copies of all exhibits referenced in the attached excerpts 18 of Plaintiff’s deposition transcript. 19 6. On June 23, 2023, I took the second day of Plaintiff’s oral deposition. Attached to the 20 Appendix of Evidence (as Exhibits 45 through 57) are true and correct copies of excerpts of the deposition 21 transcript of Plaintiff, along with copies of all exhibits referenced in the attached excerpts of Plaintiff’s 22 deposition transcript. 23 7. On June 29, 2023, Plaintiff’s Counsel took the first session of Varsity’s Person Most 24 Knowledgeable’ s (“PMK”) deposition. Attached to the Appendix of Evidence as Exhibit 58 are true and 25 correct copies of deposition transcript excerpts from the first session of Varsity’s PMK deposition. 26 8. On June 29, 2023, Plaintiff’s Counsel took the second session of Varsity’s PMK 27 deposition. Attached to the Appendix of Evidence as Exhibit 59 are true and correct copies of deposition 28 transcript excerpts from the second session of Varsity’s PMK deposition. DECLARATION OF RAFAEL G. NENDEL FLORES IN SUPPORT OF DEFENDANT VARSITY TUTORS LLC’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 9. On July 25, 2023, Varsity produced to Plaintiff documents bates stamped VARSITY 061689 through VARSITY 063088. These documents constitute video recordings of tutoring sessions conducted by Plaintiff Alexander Charles. 10. For the purposes of this Motion, Varsity submitted certain of the above-referenced video recordings to Array for transcription by certified court reporters. Attached to the Appendix of Evidence as Exhibits 60 through 124 are true and correct copies of both these video recordings and their respective transcriptions by certified court reporters. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 10 Executed on this 2nd day of August 2023, at Long Beach, California. 11 12 Rafael Nendel-Flores 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF RAFAEL G. NENDEL FLORES IN SUPPORT OF DEFENDANT VARSITY TUTORS LLC’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I declare that: I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action; my business address is 555 South Flower Street, 24th Floor, Los Angeles, California 90071. On August 2, 2023, I served the following documents in the manner described below: DECLARATION OF RAFAEL NENDEL-FLORES IN SUPPORT OF DEFENDANT VARSITY TUTORS LLC’S MOITON FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES 10 on the interested parties in this action by placing the true copies thereof enclosed in a sealed envelope(s) 11 addressed as follows: 12 Steven Tindall, Esq. Attorneys for Plaintiffs 13 Jeffrey Kosbie, Esq. ALEXANDER CHARLES and Rosanne L. Mah, Esq. HENRY MULAK 14 GIBBS LAW GROUP LLP 1111 Broadway, Suite 2100 Email : smt@classlawgroup.com 15 Oakland, CA 94607 jbk@classlawgroup.com Telephone: (510) 350-9700 rlm@classlawgroup.com 16 Facsimile: (510) 350-9701 hcb@classlawgroup.com 17 [X] BY ELECTRONIC TRANSMISSION: By emailing a true and correct copy through Clark Hill 18 LLP’s electronic mail system from DVo@clarkhill.com to the email addresses as indicated on the above service list. 19 [ ] BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly 20 maintained by the overnight service carrier, or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package 21 designated by the overnight service carrier with delivery fees paid or provided for, addressed to the person(s) served hereunder. (C.C.P. § 1013(d)(e)). 22 [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the 23 above is true and correct. 24 Executed on August 2, 2023, at Los Angeles, California. 25 26 Diane Vo 27 28 PROOF OF SERVICE