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1 JOHN C. MANLY (State Bar No. 149080)
jmanly@manlystewart.com
2 VINCE W. FINALDI, Esq. (State Bar No. 238279)
vfinaldi@manlystewart.com
3 ALEX E. CUNNY, Esq. (State Bar No. 291567)
acunny@manlystewart.com
4 COURTNEY P. PENDRY (State Bar No. 327382)
cpendry@manlystewart.com
5 MANLY STEWART FINALDI
19100 Von Karman Avenue, Suite 800
6 Irvine, California 92612
Telephone: (949) 252-9990
7 Facsimile: (949) 252-9991
8 Attorneys for Plaintiff, Jane BE Doe
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF MONTEREY
11
MANLY STEWART FINALDI
12 JANE BE DOE, Case No. 21CV000805
19100 Von Karman Avenue, Suite 800
Judge: Thomas W. Wills
Telephone (949) 252-9990
13 Plaintiff,
Irvine, California 92612
JANE BE DOE’S OPPOSITION TO
14 v. DEFENDANT BOYS AND GIRLS CLUBS
OF MONTEREY COUNTY’S MOTION
15 BIG BROTHERS BIG SISTERS OF FOR SUMMARY JUDGMENT
AMERICA, a California corporation; BIG
16 BROTHERS BIG SISTERS OF MONTEREY Filed concurrently with Declaration of
COUNTY, a California corporation; BOYS & Courtney P. Pendry; Separate Statement of
17 GIRLS CLUBS OF MONTEREY COUNTY, Disputed and Undisputed Material Facts;
a California corporation; JON DAVID Objections to Evidence; Notice of Lodgment
18 WOODY, an individual; and DOES 1-50,
inclusive, of Conditionally Sealed Evidence;
19 Defendant. Compendium of Evidence; Motion to Seal
Records and Request for Judicial Notice]
20
21 Hearing Date: September 8, 2023
Time: 8:30 am
22 Dept: 15
23 Action Filed: March 12, 2021
FAC Filed: December 13, 2021
24 Trial Date: None
25
26 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
27 PLEASE TAKE NOTICE that the Plaintiff Jane BE Doe (“Plaintiff”) hereby files the
28 instant Opposition to the Motion for Summary Judgment (“MSJ”) of Defendant Boys and Girls
JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S
MOTION FOR SUMMARY JUDGMENT
1 Clubs of Monterey County (“BGC”). This Opposition is based upon the following legal and factual
2 bases, which mandate that Defendants’ MSJ be denied in its entirety:
3
1. BGC expressly assumed all known debts and liabilities of BBBSMC, pursuant to the
4 Certificate of Dissolution filed by BGC Board member and local attorney, Matthew
Ottone, on February 17, 2011, which was signed under penalty of perjury by then-
5 BGC Board members, Peter Baird and Phil Wilhelm.
6 2. Even assuming arguendo, that Matthew Ottone, Peter Baird and Phil Wilhelm acted
outside of their authority (which a jury could reasonably find they did not given the
7 abundance of evidence regarding the coordination between BGC and BBSMC) their
representations regarding BGC’s assumption of liabilities and their knowledge of the
8 existence of liabilities stemming from Woody’s abuse, are imputable to BGC as ultra
vires acts and under their apparent authority.
9
3. In the context of both BGC and BBBSMC’s respective financial conditions and in
10 light of both parties pre-dissolution knowledge of claims stemming from Woody’s
abuse, there is a triable issue of fact as to whether the dissolution of BBBSM and
11 subsequent transfer of assets to BGC was done for the fraudulent purpose of escaping
MANLY STEWART FINALDI
the know liabilities of BBBSMC – namely, claims related to Woody’s sexual abuse
12 of BBBSMC participants, including the Plaintiff.
19100 Von Karman Avenue, Suite 800
Telephone (949) 252-9990
13 4. There is a triable issue of material fact as to whether there was a consolidation or de
Irvine, California 92612
facto merger between BGC and BBBSMC in light of the undisputed facts that (1) no
14 consideration was paid for the assets BGC received from BBBSMC upon its
dissolution; (2) BGC continued the unique one-to-one mentoring services of
15 BBBSMC; (3) three BBBSMC Board members joined the BGC Board upon the
dissolution of BBBSMC; and (4) insufficient consideration a made available to meet
16 the known claims of creditors, such as the Plaintiff.
17 5. There is a triable issue of material fact as to whether BGC was a mere continuance
of BBBSMC, as BGC did not pay any consideration for its acquisition of BBBSMC’s
18 one-to-one mentoring program, match files, top fundraising board members,
employees, list of all known donors, the $17,662.00 worth of hard assets, or good
19 will associated with BBBSMC and its programming.
20 6. Based upon its assumption of BBBSMC’s known debts and liabilities, BGC is
directly liable for Plaintiff’s claims of (1) Intentional Infliction of Emotional
21 Distress; (2) Negligence; (3) Breach of Fiduciary Duty; (4) Constructive Fraud; and
(5) Sexual Harassment pursuant to Civil Code §51.9.
22
This Opposition is based upon the instant Notice, Memorandum of Points and Authorities,
23
Declaration of Courtney P. Pendry, Esq. and exhibits attached thereto, the Request for Judicial
24
Notice, the Evidentiary Objections, Notice of Lodgment of Evidence, the Separate Statement of
25
Disputed Facts and Plaintiff’s Material Facts, the Compendium of Evidence the files in the case,
26
and any and all argument set forth at the hearing on this Motion.
27
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2
JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S
MOTION FOR SUMMARY JUDGMENT
1
2 DATED: August 25, 2023 MANLY STEWART FINALDI
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4
By:
5 COURTNEY P. PENDRY
Attorneys for Plaintiff, Jane BE Doe
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MANLY STEWART FINALDI
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19100 Von Karman Avenue, Suite 800
Telephone (949) 252-9990
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Irvine, California 92612
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JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S
MOTION FOR SUMMARY JUDGMENT
1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION ..................................................................................................................9
4 II. FACTUAL BACKGROUND ................................................................................................9
5 A. WOODY’S SEXUAL ABUSE OF THE PLAINTIFF AND UNDERLYING
LIABILITY OF BBBSMC.......................................................................................10
6
1. Woody’s Sexually Abusive History, and Warning Signs to BBBSMC.
7 ......................................................................................................................10
8 2. Failures of BBBSMC to Train, Supervise, Oversee and Vet Woody. .........11
9 B. THE DISSOLUTION OF BBBSMC .......................................................................11
10 1. Express Assumption of Debts and Liabilities In Documents Filed
Under Oath with SOS and Signed By Joint BGCMC/BBBSMC Board
11 Members on Date of Approval (February 17, 2011). ...................................11
MANLY STEWART FINALDI
12 2. Oversight of the Dissolution Paperwork by BGCMC Board Member
19100 Von Karman Avenue, Suite 800
who, Was An Attorney. ................................................................................11
Telephone (949) 252-9990
13
Irvine, California 92612
C. THE RELATIONSHIP BETWEEN BBBSMC AND BGCMC, AND
14 MERGER/CONTINUATION OF BBBSMC BY BGCMC ....................................12
15 1. Extensive Negotiations of a BBBSMC-BGC Merger ..................................12
16 2. The Completion and Filing of BBBSMC’s Dissolution Paperwork By
BGC Board Member, and Signed Under Oath By Now-BGC Board
17 Members. ......................................................................................................14
18 3. BGC’s Publicization Its Merger With BBBSMC ........................................14
19 4. BBBSMC’s Board Members Join BGC’s Board Upon Dissolution ............15
20 5. No Consideration Was Paid by BGC for the assets (both physical
assets and good-will). ...................................................................................15
21
6. The BBBSMC Program Was Continued By BGCMC.................................16
22
D. BBBSMC’S AND BGC’S PRE-DISSOLUTION KNOWLEDGE OF
23 CLAIMS STEMMING FROM WOODY’S SEXUAL ABUSE OF BBSMC
PARTICIPANTS ......................................................................................................16
24
III. ARGUMENT .......................................................................................................................17
25
A. SUMMARY JUDGMENT IS A DRASTIC REMEDY, TO BE GRANTED
26 ONLY WHERE NO TRIABLE ISSUE OF MATERIAL FACT EXIST. ..............17
27 B. BGC FAILS TO MEET ITS INITIAL BURDEN AS THE DOCUMENTS
IT RELIES UPON, CREATE A TRIABLE ISSUE BY THEIR PLAIN
28 LANGUAGE. ...........................................................................................................18
4
JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S
MOTION FOR SUMMARY JUDGMENT
1
2 C. EVEN SUPPOSING BGC MET ITS INITIAL BURDEN, BGC EXPRESSLY
AND UNEQUIVOCALLY ASSUMED KNOWN DEBTS AND
3 LIABILITIES OF BBBSMC ...................................................................................19
4 1. WOODY’S ABUSE WAS A KNOWN LIABILITY TO BGC ..................20
5 (a) BGC’s Board Members Knowledge of Pre-Dissolution
Liabilities is Imputed on BGC .........................................................21
6
(b) BGCMC’S Board Member, Ottone, Oversaw The Filing ................21
7
2. EVEN SUPPOSING THAT OTTONE, WILHELM, AND BAIRD
8 ACTED OUTSIDE OF THEIR AUTHORITY, THEIR
REPRESENTATION AND KNOWLEDGE ARE IMPUTABLE TO
9 BGC AS ULTRA VIRES ACTS AND UNDER THEIR APPARENT
AUTHORITY. ..............................................................................................22
10
D. THERE IS A TRIABLE ISSUE OF FACT AS TO WHETHER THE
11 DISSOLUTION AND TRANSFER OF ASSETS TO BGC WAS DONE
MANLY STEWART FINALDI
FOR THE FRAUDULENT PURPOSE OF ESCAPING THE KNOWN
12 LIABILITIES OF BBBSMC ...................................................................................22
19100 Von Karman Avenue, Suite 800
Telephone (949) 252-9990
13 1. BBBSMC WAS ON NOTICE OF CLAIMS STEMMING FROM
Irvine, California 92612
WOODY’S ABUSE IN 2008 .......................................................................23
14
2. BGC BECAME AWARE OF SOLVENCY ISSUES WITH
15 RESPECT TO BBBSMC IN 2009 ...............................................................23
16 3. BGC HAD PRE-DISSOLUTION KNOWLEDGE OF BBBSCM
INSURANCE COVERAGE ISSUES FOR CLAIMS ARISING
17 FROM WOODY’S SEXUAL ABUSE ........................................................23
18 E. A JURY COULD REASONABLY FIND THERE WAS A
CONSOLIDATION OR DE FACTO MERGER BETWEEN BGC AND
19 BBBSMC .................................................................................................................24
20 1. THERE WAS NO CONSIDERATION PAID FOR ASSETS OF
BBBSMC .....................................................................................................24
21
2. BGC CONTINUED TO PROVIDE SERVICES OF BBBSMC .................25
22
3. THREE BBBSMC DIRECTORS JOINED BGC ........................................25
23
4. INSUFFICIENT CONSIDERATION WAS MADE AVAILABLE
24 TO MEET CLAIMS OF CREDITORS, SUCH AS THE PLAINTIFF
......................................................................................................................25
25
F. A JURY COULD REASONABLY FIND BGC WAS A MERE
26 CONTINUATION OF BBBSMC ............................................................................25
27 1. BGC DID NOT PAY ANY CONSIDERATION FOR ITS
ACQUISITION OF BBBSMC.....................................................................25
28
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JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S
MOTION FOR SUMMARY JUDGMENT
1 2. THREE BBBSMC DIRECTORS JOINED BGC ........................................26
2 3. THE PROGRAMS OF BBBSMC WERE CONTINUED, JUST AT
BGCMC FACILITIES. ................................................................................26
3
G. BGC IS DIRECTLY LIABLE FOR PLAINTIFF’S SEXUAL ABUSE BY
4 WOODY BASED ON ITS ASSUMPTION OF KNOWN LIABILITIES OF
BBBSMC .................................................................................................................26
5
1. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS .................26
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2. NEGLIGENCE .............................................................................................27
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3. BREACH OF FIDUCIARY DUTY .............................................................27
8
4. CONSTRUCTIVE FRAUD .........................................................................27
9
5. SEXUAL HARASSMENT ..........................................................................28
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IV. IN THE EVENT THAT THE COURT IS INCLINED TO GRANT THE MSJ/A,
11 FURTHER DISCOVERY IS SOUGHT VIA C.C.P. §437c(h). ..........................................28
MANLY STEWART FINALDI
12 V. CONCLUSION ....................................................................................................................28
19100 Von Karman Avenue, Suite 800
Telephone (949) 252-9990
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Irvine, California 92612
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JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S
MOTION FOR SUMMARY JUDGMENT
1 TABLE OF AUTHORITIES
Page(s)
2
Cases
3
Barbara A. v. John G.,
4 (1983) 145 Cal.App.3d 369 ......................................................................................................... 27
Preview
1 JOHN C. MANLY (State Bar No. 149080) jmanly@manlystewart.com 2 VINCE W. FINALDI, Esq. (State Bar No. 238279) vfinaldi@manlystewart.com 3 ALEX E. CUNNY, Esq. (State Bar No. 291567) acunny@manlystewart.com 4 COURTNEY P. PENDRY (State Bar No. 327382) cpendry@manlystewart.com 5 MANLY STEWART FINALDI 19100 Von Karman Avenue, Suite 800 6 Irvine, California 92612 Telephone: (949) 252-9990 7 Facsimile: (949) 252-9991 8 Attorneys for Plaintiff, Jane BE Doe 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF MONTEREY 11 MANLY STEWART FINALDI 12 JANE BE DOE, Case No. 21CV000805 19100 Von Karman Avenue, Suite 800 Judge: Thomas W. Wills Telephone (949) 252-9990 13 Plaintiff, Irvine, California 92612 JANE BE DOE’S OPPOSITION TO 14 v. DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S MOTION 15 BIG BROTHERS BIG SISTERS OF FOR SUMMARY JUDGMENT AMERICA, a California corporation; BIG 16 BROTHERS BIG SISTERS OF MONTEREY Filed concurrently with Declaration of COUNTY, a California corporation; BOYS & Courtney P. Pendry; Separate Statement of 17 GIRLS CLUBS OF MONTEREY COUNTY, Disputed and Undisputed Material Facts; a California corporation; JON DAVID Objections to Evidence; Notice of Lodgment 18 WOODY, an individual; and DOES 1-50, inclusive, of Conditionally Sealed Evidence; 19 Defendant. Compendium of Evidence; Motion to Seal Records and Request for Judicial Notice] 20 21 Hearing Date: September 8, 2023 Time: 8:30 am 22 Dept: 15 23 Action Filed: March 12, 2021 FAC Filed: December 13, 2021 24 Trial Date: None 25 26 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 27 PLEASE TAKE NOTICE that the Plaintiff Jane BE Doe (“Plaintiff”) hereby files the 28 instant Opposition to the Motion for Summary Judgment (“MSJ”) of Defendant Boys and Girls JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S MOTION FOR SUMMARY JUDGMENT 1 Clubs of Monterey County (“BGC”). This Opposition is based upon the following legal and factual 2 bases, which mandate that Defendants’ MSJ be denied in its entirety: 3 1. BGC expressly assumed all known debts and liabilities of BBBSMC, pursuant to the 4 Certificate of Dissolution filed by BGC Board member and local attorney, Matthew Ottone, on February 17, 2011, which was signed under penalty of perjury by then- 5 BGC Board members, Peter Baird and Phil Wilhelm. 6 2. Even assuming arguendo, that Matthew Ottone, Peter Baird and Phil Wilhelm acted outside of their authority (which a jury could reasonably find they did not given the 7 abundance of evidence regarding the coordination between BGC and BBSMC) their representations regarding BGC’s assumption of liabilities and their knowledge of the 8 existence of liabilities stemming from Woody’s abuse, are imputable to BGC as ultra vires acts and under their apparent authority. 9 3. In the context of both BGC and BBBSMC’s respective financial conditions and in 10 light of both parties pre-dissolution knowledge of claims stemming from Woody’s abuse, there is a triable issue of fact as to whether the dissolution of BBBSM and 11 subsequent transfer of assets to BGC was done for the fraudulent purpose of escaping MANLY STEWART FINALDI the know liabilities of BBBSMC – namely, claims related to Woody’s sexual abuse 12 of BBBSMC participants, including the Plaintiff. 19100 Von Karman Avenue, Suite 800 Telephone (949) 252-9990 13 4. There is a triable issue of material fact as to whether there was a consolidation or de Irvine, California 92612 facto merger between BGC and BBBSMC in light of the undisputed facts that (1) no 14 consideration was paid for the assets BGC received from BBBSMC upon its dissolution; (2) BGC continued the unique one-to-one mentoring services of 15 BBBSMC; (3) three BBBSMC Board members joined the BGC Board upon the dissolution of BBBSMC; and (4) insufficient consideration a made available to meet 16 the known claims of creditors, such as the Plaintiff. 17 5. There is a triable issue of material fact as to whether BGC was a mere continuance of BBBSMC, as BGC did not pay any consideration for its acquisition of BBBSMC’s 18 one-to-one mentoring program, match files, top fundraising board members, employees, list of all known donors, the $17,662.00 worth of hard assets, or good 19 will associated with BBBSMC and its programming. 20 6. Based upon its assumption of BBBSMC’s known debts and liabilities, BGC is directly liable for Plaintiff’s claims of (1) Intentional Infliction of Emotional 21 Distress; (2) Negligence; (3) Breach of Fiduciary Duty; (4) Constructive Fraud; and (5) Sexual Harassment pursuant to Civil Code §51.9. 22 This Opposition is based upon the instant Notice, Memorandum of Points and Authorities, 23 Declaration of Courtney P. Pendry, Esq. and exhibits attached thereto, the Request for Judicial 24 Notice, the Evidentiary Objections, Notice of Lodgment of Evidence, the Separate Statement of 25 Disputed Facts and Plaintiff’s Material Facts, the Compendium of Evidence the files in the case, 26 and any and all argument set forth at the hearing on this Motion. 27 28 2 JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S MOTION FOR SUMMARY JUDGMENT 1 2 DATED: August 25, 2023 MANLY STEWART FINALDI 3 4 By: 5 COURTNEY P. PENDRY Attorneys for Plaintiff, Jane BE Doe 6 7 8 9 10 11 MANLY STEWART FINALDI 12 19100 Von Karman Avenue, Suite 800 Telephone (949) 252-9990 13 Irvine, California 92612 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S MOTION FOR SUMMARY JUDGMENT 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ..................................................................................................................9 4 II. FACTUAL BACKGROUND ................................................................................................9 5 A. WOODY’S SEXUAL ABUSE OF THE PLAINTIFF AND UNDERLYING LIABILITY OF BBBSMC.......................................................................................10 6 1. Woody’s Sexually Abusive History, and Warning Signs to BBBSMC. 7 ......................................................................................................................10 8 2. Failures of BBBSMC to Train, Supervise, Oversee and Vet Woody. .........11 9 B. THE DISSOLUTION OF BBBSMC .......................................................................11 10 1. Express Assumption of Debts and Liabilities In Documents Filed Under Oath with SOS and Signed By Joint BGCMC/BBBSMC Board 11 Members on Date of Approval (February 17, 2011). ...................................11 MANLY STEWART FINALDI 12 2. Oversight of the Dissolution Paperwork by BGCMC Board Member 19100 Von Karman Avenue, Suite 800 who, Was An Attorney. ................................................................................11 Telephone (949) 252-9990 13 Irvine, California 92612 C. THE RELATIONSHIP BETWEEN BBBSMC AND BGCMC, AND 14 MERGER/CONTINUATION OF BBBSMC BY BGCMC ....................................12 15 1. Extensive Negotiations of a BBBSMC-BGC Merger ..................................12 16 2. The Completion and Filing of BBBSMC’s Dissolution Paperwork By BGC Board Member, and Signed Under Oath By Now-BGC Board 17 Members. ......................................................................................................14 18 3. BGC’s Publicization Its Merger With BBBSMC ........................................14 19 4. BBBSMC’s Board Members Join BGC’s Board Upon Dissolution ............15 20 5. No Consideration Was Paid by BGC for the assets (both physical assets and good-will). ...................................................................................15 21 6. The BBBSMC Program Was Continued By BGCMC.................................16 22 D. BBBSMC’S AND BGC’S PRE-DISSOLUTION KNOWLEDGE OF 23 CLAIMS STEMMING FROM WOODY’S SEXUAL ABUSE OF BBSMC PARTICIPANTS ......................................................................................................16 24 III. ARGUMENT .......................................................................................................................17 25 A. SUMMARY JUDGMENT IS A DRASTIC REMEDY, TO BE GRANTED 26 ONLY WHERE NO TRIABLE ISSUE OF MATERIAL FACT EXIST. ..............17 27 B. BGC FAILS TO MEET ITS INITIAL BURDEN AS THE DOCUMENTS IT RELIES UPON, CREATE A TRIABLE ISSUE BY THEIR PLAIN 28 LANGUAGE. ...........................................................................................................18 4 JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S MOTION FOR SUMMARY JUDGMENT 1 2 C. EVEN SUPPOSING BGC MET ITS INITIAL BURDEN, BGC EXPRESSLY AND UNEQUIVOCALLY ASSUMED KNOWN DEBTS AND 3 LIABILITIES OF BBBSMC ...................................................................................19 4 1. WOODY’S ABUSE WAS A KNOWN LIABILITY TO BGC ..................20 5 (a) BGC’s Board Members Knowledge of Pre-Dissolution Liabilities is Imputed on BGC .........................................................21 6 (b) BGCMC’S Board Member, Ottone, Oversaw The Filing ................21 7 2. EVEN SUPPOSING THAT OTTONE, WILHELM, AND BAIRD 8 ACTED OUTSIDE OF THEIR AUTHORITY, THEIR REPRESENTATION AND KNOWLEDGE ARE IMPUTABLE TO 9 BGC AS ULTRA VIRES ACTS AND UNDER THEIR APPARENT AUTHORITY. ..............................................................................................22 10 D. THERE IS A TRIABLE ISSUE OF FACT AS TO WHETHER THE 11 DISSOLUTION AND TRANSFER OF ASSETS TO BGC WAS DONE MANLY STEWART FINALDI FOR THE FRAUDULENT PURPOSE OF ESCAPING THE KNOWN 12 LIABILITIES OF BBBSMC ...................................................................................22 19100 Von Karman Avenue, Suite 800 Telephone (949) 252-9990 13 1. BBBSMC WAS ON NOTICE OF CLAIMS STEMMING FROM Irvine, California 92612 WOODY’S ABUSE IN 2008 .......................................................................23 14 2. BGC BECAME AWARE OF SOLVENCY ISSUES WITH 15 RESPECT TO BBBSMC IN 2009 ...............................................................23 16 3. BGC HAD PRE-DISSOLUTION KNOWLEDGE OF BBBSCM INSURANCE COVERAGE ISSUES FOR CLAIMS ARISING 17 FROM WOODY’S SEXUAL ABUSE ........................................................23 18 E. A JURY COULD REASONABLY FIND THERE WAS A CONSOLIDATION OR DE FACTO MERGER BETWEEN BGC AND 19 BBBSMC .................................................................................................................24 20 1. THERE WAS NO CONSIDERATION PAID FOR ASSETS OF BBBSMC .....................................................................................................24 21 2. BGC CONTINUED TO PROVIDE SERVICES OF BBBSMC .................25 22 3. THREE BBBSMC DIRECTORS JOINED BGC ........................................25 23 4. INSUFFICIENT CONSIDERATION WAS MADE AVAILABLE 24 TO MEET CLAIMS OF CREDITORS, SUCH AS THE PLAINTIFF ......................................................................................................................25 25 F. A JURY COULD REASONABLY FIND BGC WAS A MERE 26 CONTINUATION OF BBBSMC ............................................................................25 27 1. BGC DID NOT PAY ANY CONSIDERATION FOR ITS ACQUISITION OF BBBSMC.....................................................................25 28 5 JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S MOTION FOR SUMMARY JUDGMENT 1 2. THREE BBBSMC DIRECTORS JOINED BGC ........................................26 2 3. THE PROGRAMS OF BBBSMC WERE CONTINUED, JUST AT BGCMC FACILITIES. ................................................................................26 3 G. BGC IS DIRECTLY LIABLE FOR PLAINTIFF’S SEXUAL ABUSE BY 4 WOODY BASED ON ITS ASSUMPTION OF KNOWN LIABILITIES OF BBBSMC .................................................................................................................26 5 1. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS .................26 6 2. NEGLIGENCE .............................................................................................27 7 3. BREACH OF FIDUCIARY DUTY .............................................................27 8 4. CONSTRUCTIVE FRAUD .........................................................................27 9 5. SEXUAL HARASSMENT ..........................................................................28 10 IV. IN THE EVENT THAT THE COURT IS INCLINED TO GRANT THE MSJ/A, 11 FURTHER DISCOVERY IS SOUGHT VIA C.C.P. §437c(h). ..........................................28 MANLY STEWART FINALDI 12 V. CONCLUSION ....................................................................................................................28 19100 Von Karman Avenue, Suite 800 Telephone (949) 252-9990 13 Irvine, California 92612 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 JANE BE DOE’S OPPOSITION TO DEFENDANT BOYS AND GIRLS CLUBS OF MONTEREY COUNTY’S MOTION FOR SUMMARY JUDGMENT 1 TABLE OF AUTHORITIES Page(s) 2 Cases 3 Barbara A. v. John G., 4 (1983) 145 Cal.App.3d 369 ......................................................................................................... 27