Preview
1 PAUL CALEO (SBN 153925)
pcaleo@grsm.com
2 MARK HEISEY (SBN 300141)
mheisey@grsm.com
3 GORDON REES SCULLY MANSUKHANI, LLP
1111 Broadway, Suite 1700
4 Oakland, CA 94607
Telephone: (510) 463-8600
5 Facsimile: (510) 984-1721
6 Attorneys for Defendant
BOYS & GIRLS CLUB OF MONTEREY COUNTY
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF MONTEREY
10
11
Gordon Rees Scully Mansukhani, LLP
JANE BE DOE, and individual; Case No.: 21CV000805
12
1111 Broadway, Suite 1700
Plaintiff,
PLAINTIFF JANE BE DOE'S SEPARATE
Oakland, CA 94607
13
v. STATEMENT OF DISPUTED AND
14 UNDISPUTED MATERIAL FACTS IN
BIG BROTHERS BIG SISTERS OF SUPPORT OF OPPOSITION TO BGC'S
15 AMERICA, a California Corporation; BIG MOTION FOR SUMMARY JUDGMENT
BROTHERS BIG SISTERS OF MONTEREY
16 COUNTY, a California Corporation; BOYS & [Filed concurrently with Opposition,
GIRLS CLUB OF MONTEREY COUNTY, a Declaration of Courtney P. Pendry;
17 California Corporation; JON DAVID Objections to Evidence; Notice of Lodgment
WOODY, an individual; and DOES 1 to 50; of Conditionally Sealed Evidence;
18 Compendium of Evidence; Motion to Seal
Defendants. Records and Request for Judicial Notice]
19
Hearing Date: September 8, 2023
20 Time: 8:30 am
Dept: 15
21
22
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF
23 MOTION FOR SUMMARY JUDGMENT
24
25 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S
MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE
26 1. From in or around 2000 through 2002, Undisputed as to the fact that Plaintiff
Plaintiff was a minor participant with participated in BBBSMC and/or BBBSA
27 BBBSA and/or BBBSMC. programs.
28
Request for Judicial Notice (“RJN”),
-1-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S
MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE
2
Exhibit “A” thereto, Plaintiff’s First Disputed, on the basis that a Complaint, or
Amended Complaint (“FAC”), Pg. 2 ⁋1 allegations contained therein, are not
3 evidentiary or issues of facts for purposes of a
Separate Statement. See Melorich Builders,
4 Inc. v. Superior Court (1984) 160 Cal. App.
3d 931, 934; Lyons v. Security Pacific Nat.
5 Bank (1995) 40 Cal. App. 4th 1001; see also
California Rules of Court, Rule (d)(2) (“The
6 separate statement should only include
material facts and not any facts that are not
7 pertinent to the disposition of the motion.”).
2. Defendant Woody was a volunteer and Undisputed as to the fact that Woody
8 volunteered in BBBSMC and/or BBBSA
mentor with BBBSA, BBBSMC, and
DOES 2 through 50, between in or programs.
9
around 1972 through in or around 2002.
10 Disputed, on the basis that a Complaint, or
RJN, Exhibit “A” thereto, FAC, Pg. 7 allegations contained therein, are not
11 ⁋19.
Gordon Rees Scully Mansukhani, LLP
evidentiary or issues of facts for purposes of a
Separate Statement. See Melorich Builders,
12
1111 Broadway, Suite 1700
Inc. v. Superior Court (1984) 160 Cal. App.
3d 931, 934; Lyons v. Security Pacific Nat.
Oakland, CA 94607
13 Bank (1995) 40 Cal. App. 4th 1001; see also
California Rules of Court, Rule (d)(2) (“The
14 separate statement should only include
material facts and not any facts that are not
15 pertinent to the disposition of the motion.”).
16 3. It is through Plaintiff’s participation in Undisputed as to the fact that Plaintiff was
BBBSA and/or BBBSMC’s mentoring placed in to contact with Woody through her
program that she was placed in contact participation in BBBSMC and/or BBBSA
17 programs.
with Defendant Woody.
18
RJN, Exhibit “A” thereto, FAC, Pg. 2 ⁋1. Disputed, on the basis that a Complaint, or
19 allegations contained therein, are not
evidentiary or issues of facts for purposes of a
20 Separate Statement. See Melorich Builders,
Inc. v. Superior Court (1984) 160 Cal. App.
21 3d 931, 934; Lyons v. Security Pacific Nat.
Bank (1995) 40 Cal. App. 4th 1001; see also
22 California Rules of Court, Rule (d)(2) (“The
separate statement should only include
23 material facts and not any facts that are not
pertinent to the disposition of the motion.”).
24
4. During this period from around 2000 Undisputed, as to the fact that Plaintiff was
25 through 2002, Plaintiff alleges she was repeatedly sexually abused by Woody
repeatedly sexually abused by Woody. between the approximate years of 2000-2002.
26
Disputed, on the basis that a Complaint, or
RJN, Exhibit “A” thereto, FAC, Pg. 2 allegations contained therein, are not
27 ⁋1. evidentiary or issues of facts for purposes of a
28 Separate Statement. See Melorich Builders,
Inc. v. Superior Court (1984) 160 Cal. App.
-2-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S
MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE
2 3d 931, 934; Lyons v. Security Pacific Nat.
Bank (1995) 40 Cal. App. 4th 1001; see also
3 California Rules of Court, Rule (d)(2) (“The
separate statement should only include
4 material facts and not any facts that are not
pertinent to the disposition of the motion.”).
5
5. Plaintiff was not a minor participant in Disputed, to the extent that it is not made
6 any B&GC program from around 2000 clear by the facts as to whether Plaintiff was a
through 2002. participant in BGC programming during
7 2000-2002.
8 Declaration of Mark Heisey (“Heisey
Decl.”), Ps. 1-2, ⁋2, Exhibit “A” thereto
9 (“B&GC Verified Responses to Special
Interrogatories”), Response to
10 Interrogatory #3.
11
Gordon Rees Scully Mansukhani, LLP
6. Woody has not held a position within Disputed, to the extent that it is not made
12 B&GC at any time. clear by the facts as to whether Woody has
1111 Broadway, Suite 1700
not held any position within BGC at any time.
Oakland, CA 94607
13 Heisey Decl., Exhibit “A” thereto,
B&GC Verified Responses to Special
14 Interrogatories, Response to Interrogatory
15 #5.
16 7. B&GC was initially formed in 1968 as a Undisputed.
California Non-Profit Public Benefit
17 Corporation with the California
Secretary of State.
18
19 RJN, Exhibit “B” thereto, B&GC’s
Articles of Incorporation, Filed August
20 14, 1986.
21 RJN, Exhibit “C” thereto, B&GC’s
Certificate of Amendment of Articles of
22
Incorporation, Filed April 5, 2000, Pg. 1,
23 Article 2.
24 8. From 1968 to 2009, B&GC had no Disputed to the extent that it is not made
relationship with BBBSMC or BBBSA. clear by the facts as to whether or not BGC
25 had any relationship with BBBSA between
1968-2009.
26 Declaration of Donna Ferraro (“Ferraro
Decl.”), Pg. 2 ⁋3.
27
Declaration of Peter Baird (“Baird
28 Decl.”) Pgs. 1-2 ⁋2.
-3-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S
MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE
2
3 9. On March 25, 2009, B&GC and Undisputed.
BBBSMC signed a Memorandum of
4 Understanding concerning a partnership
between the two organizations to run a
5 “High School Bigs Program” at B&GC
facilities during the summer of 2009.
6
Ferraro Decl., Pg. 2 ⁋2, Exhibit “A”
7 thereto.
8 Baird Decl., Pgs. 1-2 ⁋2.
9 10. As early as March 2009, B&GC became Undisputed.
aware that BBBSMC was experiencing
10 financial hardship, and considering
dissolving.
11
Gordon Rees Scully Mansukhani, LLP
Ferraro Decl., Pg. 2 ⁋2
12
1111 Broadway, Suite 1700
Baird Decl. Pg. 2 ⁋3.
Oakland, CA 94607
13
14 11. B&GC discussed merging with Disputed to the extent it misrepresents the
BBBSMC, but the B&GC Board February 23, 2010 Board Meeting Minutes,
15 approved a motion on February 23, 2010, which reflect that the Board passed a motion
for consent to not “move forward with Big
16 not to move forward with a merger of the Brothers Big Sisters” at that time.
organizations.
17 Disputed as to the inference that no further
Ferraro Decl., Pgs. 2-3 ⁋⁋ 4-5, Exhibit discussions of a merger occurred, as
18 “B” thereto. discussions of merging with BBBSMC were
“reignited” in May 2010. (See Exhibit “26”;
19 Ferraro Decl., Pg. 5 ⁋⁋ 12, Exhibit “E” see PMF. 44 below)
20 thereto.
21 12. At a Board Meeting on September 16, Undisputed.
2010, B&GC’s Board approved a motion
22 to “absorb” BBBSMC.
23
Ferraro Decl., Pg. 4 ⁋8.
24
13. Following the September 16, 2010 Disputed as to the inference that any further
25 meeting, no agreement was executed to agreement was necessary following BGC’s
merge with, acquire, or purchase Board Member Matthew Ottone effectuating
26 what he believed was a legal merger of BGC
BBBSMC. and BBBSMC when he completed and filed
27 BBBSMC’s Dissolution paperwork,
Ferraro Decl., Pg. 4 ⁋8. identifying BGC as the assumer of all of
28
-4-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S
MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE
2 BBBSMC’s known debts and liabilities. See
Baird Decl. Pg. 2 ⁋4
PMF 32-34, below.
3
4
5
6 14. On February 17, 2011, BBBSMC filed a Disputed to the extent it was filed by anyone
Domestic Nonprofit Corporation affiliated or associated with BBBSMC.
7 Rather, BBBSMC’s Domestic Nonprofit
Certificate of Dissolution (“Certificate of
Corporation Certificate of Dissolution was
8 Dissolution”) with the California completed by and filed by BGC Board
Secretary of State. member, Matthew Ottone, indicating BGC
9 would assume all known debts and liabilities
RJN, Exhibit “D” thereto, BBBSMC’s of BBBSMC. (see PMF. 27-34, below)
10 Domestic Nonprofit Corporation
Certificate of Dissolution (“Certificate of
11 Dissolution”) filed on February 17, 2011.
Gordon Rees Scully Mansukhani, LLP
12 Baird Decl. Pg. 3 ⁋8, Exhibit “C” thereto.
1111 Broadway, Suite 1700
Oakland, CA 94607
13 15. BBBSMC’s Certificate of Dissolution Undisputed.
14 stated that the corporation’s known debts
and liabilities had been adequately
15 provided for by their assumption by
B&GC.
16
RJN, Exhibit “D” thereto, Certificate of
17
Dissolution
18
16. B&GC never entered into an agreement Disputed on the basis that BBBSMC’s
19 to assume any debts or liabilities of Certificate of Dissolution filed February 17,
BBBSMC. 20211 was prepared by BGC and signed by
20 then-BGC Board members under penalty of
perjury, representing that BGC assumed all
Ferraro Decl., Pg. 3 ⁋6. known debts and liabilities of BBBSMC. See
21
PMF. 22-34, 54-55, below.
22
17. BBBSMC’s Certificate of Dissolution Undisputed.
23 further stated that its known assets had
been distributed to the persons entitled
24 thereto.
25
RJN, Exhibit “D” thereto, Certificate of
26 Dissolution.
27 Baird Decl. Pgs. 2-3 ⁋⁋ 6-7.
28
-5-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S
MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE
2
18. BBBSMC’s Articles of Incorporation Undisputed, as to the requirement that upon
required that upon the dissolution or the dissolution or winding up of the
3 corporation, BBBSMC’s assets remaining
winding up of the corporation, its assets
after payment of, or provision for payment of,
4 remaining after payment of, or provision all debts and liabilities of the corporation, be
for payment of, all debts and liabilities of distributed to a nonprofit fund, foundation, or
5 the corporation, be distributed to a corporation which is organized and operated
nonprofit fund, foundation, or exclusively for charitable purposes and which
6 as established its tax-exempt status under
corporation which is organized and
operated exclusively for charitable Section 501(c)(3) of the Internal Revenue
7 Code.
purposes and which as established its
8 tax-exempt status under Section Disputed, as to the inference that there was
501(c)(3) of the Internal Revenue Code. any requirement that BBBSMC’s remaining
9 assets be distributed to BGC, as opposed to
RJN, Exhibit “E” thereto, BBBSMC’s any other nonprofit fund, foundation, or
10 corporation which is organized and operated
Articles of Incorporation filed August 4,
1989, Pg. 2, Article Six. exclusively for charitable purposes and which
11
Gordon Rees Scully Mansukhani, LLP
as established its tax-exempt status under
Section 501(c)(3) of the Internal Revenue
12 RJN, Exhibit “F” thereto, BBBSMC’s Code.
1111 Broadway, Suite 1700
Certificate of Amendment of Articles of
Oakland, CA 94607
13 Incorporation, Filed May 16, 1994, Pg. 1,
14 Article 2.
15 19. BBBSMC obtained a waiver from the Undisputed.
Attorney General’s Office to dispose of
16 its assets upon dissolution to B&GC.
17 RJN, Exhibit “G” thereto, Waiver of
18 Attorney General to BBBSMC’s
Disposition of Assets.
19
20. Following the dissolution of BBBSMC, Disputed, as to the statement that Phil
20 former BBBSMC Board Members Phil Wilhelm, Patsy Schulte and Peter Baird
Wilhelm, Patsy Schulte and Peter Baird joined the Board of B&GC after the
21 dissolution of BBBSMC, which occurred on
joined the Board of B&GC. on February 17, 2011. Phil Wilhelm, Patsy
22 Schulte and Peter Baird joined the Board of
Ferraro Decl., Pg. 4 ⁋9. B&GC in “fall of 2010” and appear on BGC
23 Board meeting minutes as early as November
See Baird Decl. Pg. 3 ⁋9 2011. See PMF. 22-26, 48, 54-57, 64-70
24 below.
21. Phil Wilhelm and Pasty Schulte resigned Disputed, as to the statement that Phil
25 Wilhelm and Pasty Schulte resigned from
from B&GC shortly thereafter.
B&GC “shortly thereafter.” Phil Wilhelm and
26 Pasty Schulte resigned from BGC effective
Ferraro Decl., Pg. 4 ⁋9. May 26, 2011. See PMF. 67, below.
27
28
-6-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S
MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE
2 Disputed, as the evidence and testimony
22. As many as three former employees of
BBBSMC applied for and were hired for reflect that up to three former BBBSMC
3 employees were hired at BGC, in addition to
positions at B&GC.
Brenda Roncarati, which likely constitute the
4 entirety of BBBSMC’s employees at that
Ferraro Decl., Pg. 4 ⁋10. time. See PMF. 50, below.
5
23. B&GC took steps to create a Disputed to the extent that BGC did not
6 merely “take steps” to create a mentor/mentee
mentor/mentee program at B&GC
facilities that former matches of program for BBBSMC matches. Rather, BGC
7 arranged for BBBBSMC matches to
BBBSMC could utilize to continue their “continue [their] relationship unchanged” at
8 relationships. the BGC facilities. See PMF. 76-80 below.
9 Ferraro Decl., Pg. 5 ⁋11.
10
24. Few, if any, BBBSMC mentors or Disputed, to the extent that all BBBSMC
11 mentees applied to participate in the new match files were transferred over to BGC up
Gordon Rees Scully Mansukhani, LLP
B&GC program. BBBSMC’s dissolution and it remains
12 unclear how many of those matches were
1111 Broadway, Suite 1700
continued under BGC. See PMF. 79, below.
Ferraro Decl., Pg. 5 ⁋11.
Oakland, CA 94607
13
14
PLAINTIFF’S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO BGC’S
15 MOTION FOR SUMMARY JUDGMENT
16 Pursuant to California Rule of Court 3.1350(f)(3), Plaintiff sets forth the following
17 material facts, in support of her Opposition to Defendants’ Motion for Summary Judgment:
PMF PLAINTIFF’S MATERIAL FACTS AND DEFENDANT’S RESPONSE AND
18 # SUPPORTING EVIDENCE EVIDENCE
19 1 Plaintiff was born on October 7, 1993 in
20 Salinas, California.
21 Evidence in Support:
22 Plaintiff’s Form Interrogatory Responses,
23 No. 2.2; Exhibit “1” to Compendium of
24 Evidence, DCP. ¶ 3.
25
26 2 In or around March of 2000, when the
27 Plaintiff was approximately 7 years old, she
28 was matched with Woody and his wife,
-7-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1
Nancy, through her participation in
2
BBBSMC.
3
Evidence in Support:
4
BBBSA-000318; Exhibit “2” to
5
Compendium of Evidence, DCP. ¶4
6
3 Plaintiff’s mentoring relationship continued
7
with Woody until in or around June 2002.
8
Evidence in Support:
9
BBBSA_000304; Exhibit “3” to
10
Compendium of Evidence, DCP. ¶5;
11
Gordon Rees Scully Mansukhani, LLP
BBBSA-000331-000362, Exhibit “16” to
12
1111 Broadway, Suite 1700
Compendium of Evidence, DCP. ¶ 18.
Oakland, CA 94607
13
14
4 In August of 2006, Marc Russo was brought
15
on as the Executive Director of BBBSMC,
16
and quickly discovered an organization in
17
complete disarray.
18
Evidence in Support:
19
Deposition of Marc Russo at 17:15-21;
20
20:23-21:7; 22:5-18; Exhibit “4” to
21
Compendium of Evidence, DCP. ¶ 6;
22
Deposition of Phil Wilhelm at 33:3-24 DCP.
23
¶ 7.
24
25
5 By 2009, BBBSMC was operating “hand-to-
26
mouth” and the Board determined that
27
BBBSMC was no longer financially viable.
28
-8-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1
Evidence in Support:
2
Deposition of Brenda Roncarati at 31:24-
3
32:22; Exhibit “6” to Compendium of
4
Evidence, DCP. ¶ 8; Deposition of Peter
5
Baird at 53:13-54:5;55:5-12, Exhibit “7”
6
DCP. ¶ 9.
7
8
6 With the help of BGC Board member and
9
local attorney, Matthew Ottone (“Ottone”),
10
BBBSMC filed for dissolution in February
11
Gordon Rees Scully Mansukhani, LLP
2011.
12
1111 Broadway, Suite 1700
Evidence in Support:
Oakland, CA 94607
13
Certified Copy of BBBSMC’s Certificate of
14
Dissolution, Exhibit “8” to Compendium of
15
Evidence, DCP. ¶ 10; Deposition of Matthew
16
Ottone 11:17-12:14;14:7-1729:6-30:6; 36:8-
17
38:2, Exhibit “9” to Compendium of
18
Evidence, DCP. ¶ 11; BGCMC-000001-12,
19
Exhibit “10” to Compendium of Exhibits,
20
DCP. ¶ 12.
21
22
7 Upon its dissolution, BBBSMC transferred
23
all of its assets, estimated at $17,662.00, to
24
BGC.
25
Evidence in Support:
26
Certified Copy of BBBSMC’s Certificate of
27
Dissolution, Exhibit “8” to Compendium of
28
-9-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1
Evidence, DCP. ¶ 10; BGCMC-000001-12,
2
Exhibit “10” to Compendium of Exhibits,
3
DCP. ¶ 12
4
8 BBBSMC’s top three fundraising Board
5
members, Margaret Schulte (“Schulte”),
6
Peter Baird (“Barid”), and Phil Wilhelm
7
(“Wilhelm’) joined the BGC Board as well
8
as most (if not all) of BBBSMC’s existing
9
staff members.
10
Evidence in Support:
11
Gordon Rees Scully Mansukhani, LLP
Decl. of Peter Baird; Deposition of Donna
12
1111 Broadway, Suite 1700
Ferraro at 60:21-61:1; 68:16-69:11;136:11-
Oakland, CA 94607
13
137:10, Exhibit “11” to Compendium of
14
Evidence, DCP. ¶ 13; Deposition of Cynthia
15
Peck 69:1-13, Exhibit “12” to Compendium
16
of Evidence , DCP, ¶14; Deposition of Tom
17
Gray at 102:6-19, Exhibit “13” to
18
Compendium of Evidence, DCP. ¶15;
19
Deposition of Brenda Roncarati at 39:17-
20
40:15, Exhibit “6” to Compendium of
21
Evidence, DCP. ¶8; Deposition of Peter
22
Baird at 80:2-16, Exhibit “7” to
23
Compendium of Evidence, DCP. ¶9;
24
Deposition of Phil Wilhelm at 28:3-16
25
Exhibit “5” to Compendium of Evidence,
26
DCP. ¶7; Deposition of Margaret Schulte at
27
28
-10-
SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT
OF OPPOSITION TO DEFENDANT BGC’S MSJ
1
22:14-20;40:14-25;43:5-9, Exhibit “14” to
2
Compendium of Evidence, DCP. ¶16.
3
9 Moreover, upon the dissolution of BBBSMC,
Preview
1 PAUL CALEO (SBN 153925) pcaleo@grsm.com 2 MARK HEISEY (SBN 300141) mheisey@grsm.com 3 GORDON REES SCULLY MANSUKHANI, LLP 1111 Broadway, Suite 1700 4 Oakland, CA 94607 Telephone: (510) 463-8600 5 Facsimile: (510) 984-1721 6 Attorneys for Defendant BOYS & GIRLS CLUB OF MONTEREY COUNTY 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF MONTEREY 10 11 Gordon Rees Scully Mansukhani, LLP JANE BE DOE, and individual; Case No.: 21CV000805 12 1111 Broadway, Suite 1700 Plaintiff, PLAINTIFF JANE BE DOE'S SEPARATE Oakland, CA 94607 13 v. STATEMENT OF DISPUTED AND 14 UNDISPUTED MATERIAL FACTS IN BIG BROTHERS BIG SISTERS OF SUPPORT OF OPPOSITION TO BGC'S 15 AMERICA, a California Corporation; BIG MOTION FOR SUMMARY JUDGMENT BROTHERS BIG SISTERS OF MONTEREY 16 COUNTY, a California Corporation; BOYS & [Filed concurrently with Opposition, GIRLS CLUB OF MONTEREY COUNTY, a Declaration of Courtney P. Pendry; 17 California Corporation; JON DAVID Objections to Evidence; Notice of Lodgment WOODY, an individual; and DOES 1 to 50; of Conditionally Sealed Evidence; 18 Compendium of Evidence; Motion to Seal Defendants. Records and Request for Judicial Notice] 19 Hearing Date: September 8, 2023 20 Time: 8:30 am Dept: 15 21 22 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF 23 MOTION FOR SUMMARY JUDGMENT 24 25 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE 26 1. From in or around 2000 through 2002, Undisputed as to the fact that Plaintiff Plaintiff was a minor participant with participated in BBBSMC and/or BBBSA 27 BBBSA and/or BBBSMC. programs. 28 Request for Judicial Notice (“RJN”), -1- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE 2 Exhibit “A” thereto, Plaintiff’s First Disputed, on the basis that a Complaint, or Amended Complaint (“FAC”), Pg. 2 ⁋1 allegations contained therein, are not 3 evidentiary or issues of facts for purposes of a Separate Statement. See Melorich Builders, 4 Inc. v. Superior Court (1984) 160 Cal. App. 3d 931, 934; Lyons v. Security Pacific Nat. 5 Bank (1995) 40 Cal. App. 4th 1001; see also California Rules of Court, Rule (d)(2) (“The 6 separate statement should only include material facts and not any facts that are not 7 pertinent to the disposition of the motion.”). 2. Defendant Woody was a volunteer and Undisputed as to the fact that Woody 8 volunteered in BBBSMC and/or BBBSA mentor with BBBSA, BBBSMC, and DOES 2 through 50, between in or programs. 9 around 1972 through in or around 2002. 10 Disputed, on the basis that a Complaint, or RJN, Exhibit “A” thereto, FAC, Pg. 7 allegations contained therein, are not 11 ⁋19. Gordon Rees Scully Mansukhani, LLP evidentiary or issues of facts for purposes of a Separate Statement. See Melorich Builders, 12 1111 Broadway, Suite 1700 Inc. v. Superior Court (1984) 160 Cal. App. 3d 931, 934; Lyons v. Security Pacific Nat. Oakland, CA 94607 13 Bank (1995) 40 Cal. App. 4th 1001; see also California Rules of Court, Rule (d)(2) (“The 14 separate statement should only include material facts and not any facts that are not 15 pertinent to the disposition of the motion.”). 16 3. It is through Plaintiff’s participation in Undisputed as to the fact that Plaintiff was BBBSA and/or BBBSMC’s mentoring placed in to contact with Woody through her program that she was placed in contact participation in BBBSMC and/or BBBSA 17 programs. with Defendant Woody. 18 RJN, Exhibit “A” thereto, FAC, Pg. 2 ⁋1. Disputed, on the basis that a Complaint, or 19 allegations contained therein, are not evidentiary or issues of facts for purposes of a 20 Separate Statement. See Melorich Builders, Inc. v. Superior Court (1984) 160 Cal. App. 21 3d 931, 934; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal. App. 4th 1001; see also 22 California Rules of Court, Rule (d)(2) (“The separate statement should only include 23 material facts and not any facts that are not pertinent to the disposition of the motion.”). 24 4. During this period from around 2000 Undisputed, as to the fact that Plaintiff was 25 through 2002, Plaintiff alleges she was repeatedly sexually abused by Woody repeatedly sexually abused by Woody. between the approximate years of 2000-2002. 26 Disputed, on the basis that a Complaint, or RJN, Exhibit “A” thereto, FAC, Pg. 2 allegations contained therein, are not 27 ⁋1. evidentiary or issues of facts for purposes of a 28 Separate Statement. See Melorich Builders, Inc. v. Superior Court (1984) 160 Cal. App. -2- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE 2 3d 931, 934; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal. App. 4th 1001; see also 3 California Rules of Court, Rule (d)(2) (“The separate statement should only include 4 material facts and not any facts that are not pertinent to the disposition of the motion.”). 5 5. Plaintiff was not a minor participant in Disputed, to the extent that it is not made 6 any B&GC program from around 2000 clear by the facts as to whether Plaintiff was a through 2002. participant in BGC programming during 7 2000-2002. 8 Declaration of Mark Heisey (“Heisey Decl.”), Ps. 1-2, ⁋2, Exhibit “A” thereto 9 (“B&GC Verified Responses to Special Interrogatories”), Response to 10 Interrogatory #3. 11 Gordon Rees Scully Mansukhani, LLP 6. Woody has not held a position within Disputed, to the extent that it is not made 12 B&GC at any time. clear by the facts as to whether Woody has 1111 Broadway, Suite 1700 not held any position within BGC at any time. Oakland, CA 94607 13 Heisey Decl., Exhibit “A” thereto, B&GC Verified Responses to Special 14 Interrogatories, Response to Interrogatory 15 #5. 16 7. B&GC was initially formed in 1968 as a Undisputed. California Non-Profit Public Benefit 17 Corporation with the California Secretary of State. 18 19 RJN, Exhibit “B” thereto, B&GC’s Articles of Incorporation, Filed August 20 14, 1986. 21 RJN, Exhibit “C” thereto, B&GC’s Certificate of Amendment of Articles of 22 Incorporation, Filed April 5, 2000, Pg. 1, 23 Article 2. 24 8. From 1968 to 2009, B&GC had no Disputed to the extent that it is not made relationship with BBBSMC or BBBSA. clear by the facts as to whether or not BGC 25 had any relationship with BBBSA between 1968-2009. 26 Declaration of Donna Ferraro (“Ferraro Decl.”), Pg. 2 ⁋3. 27 Declaration of Peter Baird (“Baird 28 Decl.”) Pgs. 1-2 ⁋2. -3- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE 2 3 9. On March 25, 2009, B&GC and Undisputed. BBBSMC signed a Memorandum of 4 Understanding concerning a partnership between the two organizations to run a 5 “High School Bigs Program” at B&GC facilities during the summer of 2009. 6 Ferraro Decl., Pg. 2 ⁋2, Exhibit “A” 7 thereto. 8 Baird Decl., Pgs. 1-2 ⁋2. 9 10. As early as March 2009, B&GC became Undisputed. aware that BBBSMC was experiencing 10 financial hardship, and considering dissolving. 11 Gordon Rees Scully Mansukhani, LLP Ferraro Decl., Pg. 2 ⁋2 12 1111 Broadway, Suite 1700 Baird Decl. Pg. 2 ⁋3. Oakland, CA 94607 13 14 11. B&GC discussed merging with Disputed to the extent it misrepresents the BBBSMC, but the B&GC Board February 23, 2010 Board Meeting Minutes, 15 approved a motion on February 23, 2010, which reflect that the Board passed a motion for consent to not “move forward with Big 16 not to move forward with a merger of the Brothers Big Sisters” at that time. organizations. 17 Disputed as to the inference that no further Ferraro Decl., Pgs. 2-3 ⁋⁋ 4-5, Exhibit discussions of a merger occurred, as 18 “B” thereto. discussions of merging with BBBSMC were “reignited” in May 2010. (See Exhibit “26”; 19 Ferraro Decl., Pg. 5 ⁋⁋ 12, Exhibit “E” see PMF. 44 below) 20 thereto. 21 12. At a Board Meeting on September 16, Undisputed. 2010, B&GC’s Board approved a motion 22 to “absorb” BBBSMC. 23 Ferraro Decl., Pg. 4 ⁋8. 24 13. Following the September 16, 2010 Disputed as to the inference that any further 25 meeting, no agreement was executed to agreement was necessary following BGC’s merge with, acquire, or purchase Board Member Matthew Ottone effectuating 26 what he believed was a legal merger of BGC BBBSMC. and BBBSMC when he completed and filed 27 BBBSMC’s Dissolution paperwork, Ferraro Decl., Pg. 4 ⁋8. identifying BGC as the assumer of all of 28 -4- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE 2 BBBSMC’s known debts and liabilities. See Baird Decl. Pg. 2 ⁋4 PMF 32-34, below. 3 4 5 6 14. On February 17, 2011, BBBSMC filed a Disputed to the extent it was filed by anyone Domestic Nonprofit Corporation affiliated or associated with BBBSMC. 7 Rather, BBBSMC’s Domestic Nonprofit Certificate of Dissolution (“Certificate of Corporation Certificate of Dissolution was 8 Dissolution”) with the California completed by and filed by BGC Board Secretary of State. member, Matthew Ottone, indicating BGC 9 would assume all known debts and liabilities RJN, Exhibit “D” thereto, BBBSMC’s of BBBSMC. (see PMF. 27-34, below) 10 Domestic Nonprofit Corporation Certificate of Dissolution (“Certificate of 11 Dissolution”) filed on February 17, 2011. Gordon Rees Scully Mansukhani, LLP 12 Baird Decl. Pg. 3 ⁋8, Exhibit “C” thereto. 1111 Broadway, Suite 1700 Oakland, CA 94607 13 15. BBBSMC’s Certificate of Dissolution Undisputed. 14 stated that the corporation’s known debts and liabilities had been adequately 15 provided for by their assumption by B&GC. 16 RJN, Exhibit “D” thereto, Certificate of 17 Dissolution 18 16. B&GC never entered into an agreement Disputed on the basis that BBBSMC’s 19 to assume any debts or liabilities of Certificate of Dissolution filed February 17, BBBSMC. 20211 was prepared by BGC and signed by 20 then-BGC Board members under penalty of perjury, representing that BGC assumed all Ferraro Decl., Pg. 3 ⁋6. known debts and liabilities of BBBSMC. See 21 PMF. 22-34, 54-55, below. 22 17. BBBSMC’s Certificate of Dissolution Undisputed. 23 further stated that its known assets had been distributed to the persons entitled 24 thereto. 25 RJN, Exhibit “D” thereto, Certificate of 26 Dissolution. 27 Baird Decl. Pgs. 2-3 ⁋⁋ 6-7. 28 -5- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE 2 18. BBBSMC’s Articles of Incorporation Undisputed, as to the requirement that upon required that upon the dissolution or the dissolution or winding up of the 3 corporation, BBBSMC’s assets remaining winding up of the corporation, its assets after payment of, or provision for payment of, 4 remaining after payment of, or provision all debts and liabilities of the corporation, be for payment of, all debts and liabilities of distributed to a nonprofit fund, foundation, or 5 the corporation, be distributed to a corporation which is organized and operated nonprofit fund, foundation, or exclusively for charitable purposes and which 6 as established its tax-exempt status under corporation which is organized and operated exclusively for charitable Section 501(c)(3) of the Internal Revenue 7 Code. purposes and which as established its 8 tax-exempt status under Section Disputed, as to the inference that there was 501(c)(3) of the Internal Revenue Code. any requirement that BBBSMC’s remaining 9 assets be distributed to BGC, as opposed to RJN, Exhibit “E” thereto, BBBSMC’s any other nonprofit fund, foundation, or 10 corporation which is organized and operated Articles of Incorporation filed August 4, 1989, Pg. 2, Article Six. exclusively for charitable purposes and which 11 Gordon Rees Scully Mansukhani, LLP as established its tax-exempt status under Section 501(c)(3) of the Internal Revenue 12 RJN, Exhibit “F” thereto, BBBSMC’s Code. 1111 Broadway, Suite 1700 Certificate of Amendment of Articles of Oakland, CA 94607 13 Incorporation, Filed May 16, 1994, Pg. 1, 14 Article 2. 15 19. BBBSMC obtained a waiver from the Undisputed. Attorney General’s Office to dispose of 16 its assets upon dissolution to B&GC. 17 RJN, Exhibit “G” thereto, Waiver of 18 Attorney General to BBBSMC’s Disposition of Assets. 19 20. Following the dissolution of BBBSMC, Disputed, as to the statement that Phil 20 former BBBSMC Board Members Phil Wilhelm, Patsy Schulte and Peter Baird Wilhelm, Patsy Schulte and Peter Baird joined the Board of B&GC after the 21 dissolution of BBBSMC, which occurred on joined the Board of B&GC. on February 17, 2011. Phil Wilhelm, Patsy 22 Schulte and Peter Baird joined the Board of Ferraro Decl., Pg. 4 ⁋9. B&GC in “fall of 2010” and appear on BGC 23 Board meeting minutes as early as November See Baird Decl. Pg. 3 ⁋9 2011. See PMF. 22-26, 48, 54-57, 64-70 24 below. 21. Phil Wilhelm and Pasty Schulte resigned Disputed, as to the statement that Phil 25 Wilhelm and Pasty Schulte resigned from from B&GC shortly thereafter. B&GC “shortly thereafter.” Phil Wilhelm and 26 Pasty Schulte resigned from BGC effective Ferraro Decl., Pg. 4 ⁋9. May 26, 2011. See PMF. 67, below. 27 28 -6- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 DEFENDANT’S UNDISPUTED OPPOSING PARTY’S MATERIAL FACTS/SUPP. EVIDENCE RESPONSE/SUPPORTING EVIDENCE 2 Disputed, as the evidence and testimony 22. As many as three former employees of BBBSMC applied for and were hired for reflect that up to three former BBBSMC 3 employees were hired at BGC, in addition to positions at B&GC. Brenda Roncarati, which likely constitute the 4 entirety of BBBSMC’s employees at that Ferraro Decl., Pg. 4 ⁋10. time. See PMF. 50, below. 5 23. B&GC took steps to create a Disputed to the extent that BGC did not 6 merely “take steps” to create a mentor/mentee mentor/mentee program at B&GC facilities that former matches of program for BBBSMC matches. Rather, BGC 7 arranged for BBBBSMC matches to BBBSMC could utilize to continue their “continue [their] relationship unchanged” at 8 relationships. the BGC facilities. See PMF. 76-80 below. 9 Ferraro Decl., Pg. 5 ⁋11. 10 24. Few, if any, BBBSMC mentors or Disputed, to the extent that all BBBSMC 11 mentees applied to participate in the new match files were transferred over to BGC up Gordon Rees Scully Mansukhani, LLP B&GC program. BBBSMC’s dissolution and it remains 12 unclear how many of those matches were 1111 Broadway, Suite 1700 continued under BGC. See PMF. 79, below. Ferraro Decl., Pg. 5 ⁋11. Oakland, CA 94607 13 14 PLAINTIFF’S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO BGC’S 15 MOTION FOR SUMMARY JUDGMENT 16 Pursuant to California Rule of Court 3.1350(f)(3), Plaintiff sets forth the following 17 material facts, in support of her Opposition to Defendants’ Motion for Summary Judgment: PMF PLAINTIFF’S MATERIAL FACTS AND DEFENDANT’S RESPONSE AND 18 # SUPPORTING EVIDENCE EVIDENCE 19 1 Plaintiff was born on October 7, 1993 in 20 Salinas, California. 21 Evidence in Support: 22 Plaintiff’s Form Interrogatory Responses, 23 No. 2.2; Exhibit “1” to Compendium of 24 Evidence, DCP. ¶ 3. 25 26 2 In or around March of 2000, when the 27 Plaintiff was approximately 7 years old, she 28 was matched with Woody and his wife, -7- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 Nancy, through her participation in 2 BBBSMC. 3 Evidence in Support: 4 BBBSA-000318; Exhibit “2” to 5 Compendium of Evidence, DCP. ¶4 6 3 Plaintiff’s mentoring relationship continued 7 with Woody until in or around June 2002. 8 Evidence in Support: 9 BBBSA_000304; Exhibit “3” to 10 Compendium of Evidence, DCP. ¶5; 11 Gordon Rees Scully Mansukhani, LLP BBBSA-000331-000362, Exhibit “16” to 12 1111 Broadway, Suite 1700 Compendium of Evidence, DCP. ¶ 18. Oakland, CA 94607 13 14 4 In August of 2006, Marc Russo was brought 15 on as the Executive Director of BBBSMC, 16 and quickly discovered an organization in 17 complete disarray. 18 Evidence in Support: 19 Deposition of Marc Russo at 17:15-21; 20 20:23-21:7; 22:5-18; Exhibit “4” to 21 Compendium of Evidence, DCP. ¶ 6; 22 Deposition of Phil Wilhelm at 33:3-24 DCP. 23 ¶ 7. 24 25 5 By 2009, BBBSMC was operating “hand-to- 26 mouth” and the Board determined that 27 BBBSMC was no longer financially viable. 28 -8- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 Evidence in Support: 2 Deposition of Brenda Roncarati at 31:24- 3 32:22; Exhibit “6” to Compendium of 4 Evidence, DCP. ¶ 8; Deposition of Peter 5 Baird at 53:13-54:5;55:5-12, Exhibit “7” 6 DCP. ¶ 9. 7 8 6 With the help of BGC Board member and 9 local attorney, Matthew Ottone (“Ottone”), 10 BBBSMC filed for dissolution in February 11 Gordon Rees Scully Mansukhani, LLP 2011. 12 1111 Broadway, Suite 1700 Evidence in Support: Oakland, CA 94607 13 Certified Copy of BBBSMC’s Certificate of 14 Dissolution, Exhibit “8” to Compendium of 15 Evidence, DCP. ¶ 10; Deposition of Matthew 16 Ottone 11:17-12:14;14:7-1729:6-30:6; 36:8- 17 38:2, Exhibit “9” to Compendium of 18 Evidence, DCP. ¶ 11; BGCMC-000001-12, 19 Exhibit “10” to Compendium of Exhibits, 20 DCP. ¶ 12. 21 22 7 Upon its dissolution, BBBSMC transferred 23 all of its assets, estimated at $17,662.00, to 24 BGC. 25 Evidence in Support: 26 Certified Copy of BBBSMC’s Certificate of 27 Dissolution, Exhibit “8” to Compendium of 28 -9- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 Evidence, DCP. ¶ 10; BGCMC-000001-12, 2 Exhibit “10” to Compendium of Exhibits, 3 DCP. ¶ 12 4 8 BBBSMC’s top three fundraising Board 5 members, Margaret Schulte (“Schulte”), 6 Peter Baird (“Barid”), and Phil Wilhelm 7 (“Wilhelm’) joined the BGC Board as well 8 as most (if not all) of BBBSMC’s existing 9 staff members. 10 Evidence in Support: 11 Gordon Rees Scully Mansukhani, LLP Decl. of Peter Baird; Deposition of Donna 12 1111 Broadway, Suite 1700 Ferraro at 60:21-61:1; 68:16-69:11;136:11- Oakland, CA 94607 13 137:10, Exhibit “11” to Compendium of 14 Evidence, DCP. ¶ 13; Deposition of Cynthia 15 Peck 69:1-13, Exhibit “12” to Compendium 16 of Evidence , DCP, ¶14; Deposition of Tom 17 Gray at 102:6-19, Exhibit “13” to 18 Compendium of Evidence, DCP. ¶15; 19 Deposition of Brenda Roncarati at 39:17- 20 40:15, Exhibit “6” to Compendium of 21 Evidence, DCP. ¶8; Deposition of Peter 22 Baird at 80:2-16, Exhibit “7” to 23 Compendium of Evidence, DCP. ¶9; 24 Deposition of Phil Wilhelm at 28:3-16 25 Exhibit “5” to Compendium of Evidence, 26 DCP. ¶7; Deposition of Margaret Schulte at 27 28 -10- SEPARATE STATEMENT OF DISPUTED FACTS AND PLAINTIFF'S MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT BGC’S MSJ 1 22:14-20;40:14-25;43:5-9, Exhibit “14” to 2 Compendium of Evidence, DCP. ¶16. 3 9 Moreover, upon the dissolution of BBBSMC,