Preview
1 John S. Rueppel (SBN: 267467)
Ann K. Kavanagh (SBN: 260526)
2 Angie Lam (SBN: 244719)
JOHNSTON, KINNEY & ZULAICA LLP
3 101 Montgomery Street, Suite 1600
San Francisco, California 94104
4 Telephone: (415) 693-0550
Facsimile: (415) 693-0500
5 Email: john@jkzllp.com
angie.lam@jkzllp.com
6
Attorneys for Plaintiff,
7 Lisa Keith
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN THE COUNTY OF NAPA
10 LISA KEITH, CASE NO: 22CV001269
11 Plaintiff, PLAINTIFF LISA KEITH’S SEPARATE
STATEMENT IN OPPOSITION TO
12 v. DEFENDANTS’ NOTICE OF MOTION
AND MOTION FOR SUMMARY
13 CELESTE WHITE, an individual, ROBERT JUDGMENT OR, IN THE ALTERNATIVE,
WHITE, an individual, the VALLEY ROCK SUMMARY ADJUDICATION OF
14 FOUNDATION, aka THE BAR 49 DEFENDANTS VALLEY ROCK
FOUNDATION, a charitable organization, and FOUNDATION, DR. ROBERT WHITE,
15 DOES 1-50, INCLUSIVE, AND CELESTE WHITE AS TO
PLAINTIFF LISA KEITH’S FIRST
16 Defendants. AMENDED COMPLAINT
17 Date: March 1, 2024
Time: 8:30 a.m.
18 Judge: Hon. Scott R.L. Young
Dept.: B
19 Complaint Filed: October 25, 2022
FAC Filed: March 8, 2023
20 Trial Date: April 2, 2024
21
Petitioner, LISA KEITH (“Plaintiff”), in her capacity as Plaintiff of the above-referenced matter
22
hereby provides this statement of disputed and undisputed material facts, together with references to
23
supporting evidence, in response to Defendants Valley Rock Foundation, Dr. Robert White, and Celeste
24
White (collectively “Defendants”) Separate Statement in Support of Motion for Summary Judgment or,
25
in the Alternative, Summary Adjudication of Defendants Valley Rock Foundation, Dr. Robert White,
26
and Celeste White as to Plaintiff Lisa Keith’s First Amended Complaint in accordance with California
27
Rule of Court, Rule 3.1350:
28
1
PLAINTIFF’S SEPARATE STATEMENT
1 KEY TO ABBREVIATIONS
2 Celeste Decl.: Declaration of Celeste White in Support of Defendants’ Motion for Summary Judgment
3 or, in the Alternative, Summary Adjudication.
4 Compendium of Evidence pages 104-112.
5 Celeste White Decl.: Declaration of Celeste White in Support of Defendants’ Special Anti-Slapp
6 Motion to Strike Plaintiff’s Complaint.
7 Court Order: Order Granting Petition for Approval of Agreement and Approval and Settlement of
8 Accountings filed in the Trust Action in Napa County Superior Court on August 20, 2020, a copy of
9 which is attached as Exhibit B to the FAC.
10 Compendium of Evidence pages 68-71.
11 FAC: Plaintiff Lisa Keith’s First Amended Complaint in this action.
12 Lisa Keith Decl.: Declaration of Lisa Keith in Support of Opposition to Defendants' Motion for
13 Summary Judgment or, in the Alternative, Summary Adjudication of Defendants Valley Rock
14 Foundation, Dr. Rober White, and Celeste White as to Plaintiff Lisa Keith’s First Amended Complaint.
15 March 2021 Press Release: One of two nearly identical press releases drafted by Sam Singer, and
16 reviewed and edited by Defendants, based on Sam Singer’s interpretation of the Court Order and
17 issued in March 2021, a copy of which is attached to the FAC as Exhibit C.
18 Compendium of Evidence pages 162-169.
19 NVR Article: Article published in the Napa Valley Register in February 2018, entitled “Wealthy Napa
20 businessman’s heirs seek answers about $92 million estate.”
21 Compendium of Evidence pages 9-21.
22 Petition: Petition for Approval of Agreement and Approval and Settlement of Accountings filed on
23 June 1, 2020, in Napa County Superior Court submitted by Celeste White in the Trust Action.
24 Compendium of Evidence pages 42-55.
25 Press Release: One of two nearly identical press releases drafted by Sam Singer, and reviewed and
26 edited by Defendants, based on Sam Singer’s interpretation of the Court Order and issued in March
27 2021 and August 2021, copies of which are attached to the FAC as Exhibits C and D.
28 Compendium of Evidence pages 162-169.
2
PLAINTIFF’S SEPARATE STATEMENT
1 Robert Decl.: Declaration of Dr. Robert White in Support of Defendants’ Motion for Summary
2 Judgment or, in the Alternative, Summary Adjudication.
3 Compendium of Evidence pages 35-41.
4 Settlement Agreement: Settlement Agreement and Mutual General Release executed by the parties to
5 the Trust Action in April 2020, that was approved by the Court in the Court Order, a copy of which is
6 attached as Exhibit A to the FAC.
7 Compendium of Evidence pages 56-67.
8 Singer Decl.: Declaration of Sam Singer dated December 11, 2024, filed with Defendants’ Motion for
9 Summary Judgment or, in the Alternative, Summary Adjudication.
10 Compendium of Evidence pages 3-8.
11 Trust Action: 2016 lawsuit brought by Plaintiff Lisa Keith against Defendants Celeste White and Dr.
12 Robert White, as co-trustees of the Edward A. Keith Declaration of Trust dated August 16, 2002
13 (“Trust”) seeking an accounting of the Trust, which was settled in 2020.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
PLAINTIFF’S SEPARATE STATEMENT
1 ISSUE #1: PLAINTIFF’S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS
2 AS A MATTER OF LAW BECAUSE NO DEFENDANT BREACHED THE NON-
3 DISPARAGEMENT PROVISION IN THE SETTLEMENT AGREEMENT BY ISSUING THE
4 PRESS RELEASE TO ANNOUNCE THE SETTLEMENT OF THE TRUST ACTION.
5 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND
6 Supporting Evidence – Issue #1 SUPPORTING EVIDENCE
1. Where the Press Release mentioned Lisa DISPUTED. Information in the Press Release
7 Keith by name, it merely repeated factually was not “factually correct” as Court Order does
8 correct information about Lisa Keith in the not reflect any statement that the Court did a
NVR Article, including comments made by “full examination” and the Court did not find
9 Lisa Keith’s attorney. that there was “no evidence to support plaintiff’s
claims.” Court Order.
10 Singer Decl., ¶¶ 3-5, 17-18
Exs. 4, 5, 16, 17 [Press Release]
11 Ex. 1 [NVR Article]
12 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
Ex. 15 [order deeming facts admitted]
13 Ex. 8 [Court Order]
Ex. 6 [Petition]
14
2. The only comments about Lisa Keith in the DISPUTED. The statement in the Press Release
15 Press Release consisted of factual descriptions that the court found “no evidence to support the
16 of what transpired in the Trust Action. plaintiff’s claims” is not a factual description; the
court made no such finding; this statement implies
17 Singer Decl., ¶¶ 14-18 that Lisa’s claims were patently frivolous and
Robert Decl., ¶¶ 23 brought only to harass and oppress the
18 Celeste Decl., ¶¶ 24 Defendants. Court Order; March 2021 Press
Exs. 4, 5, 16, 17 [Press Release] Release.
19
Ex. 1 [NVR Article]
20 Ex. 7 [Settlement Agreement]
Ex. 8 [Court Order: “All facts stated in the
21 Petition are true.”]
Ex. 6, §§ 12-13 [Petition]
22 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
Ex. 15 [order deeming facts admitted]
23
24 3. The Press Release reported factual DISPUTED. The Press Release does not report
information about the Trust Action, including factual information about the Trust Action. The
25 (1) the Court’s approval of the (a) settlement, Court Order, which the Press Release is
(b) Petition, and (c) Trust accountings that purportedly based upon, does not contain a
26 Celeste White submitted to the Court, and (2) finding of “the absence of misconduct or
27 the absence of any findings of misconduct or wrongdoing by Celeste White.”
wrongdoing by Celeste White. Nor did the Order “side entirely with Celeste K.
28 White …”
4
PLAINTIFF’S SEPARATE STATEMENT
Singer Decl., ¶¶ 12-15 Furthermore, the Press Release does not report
1 Exs. 4, 5, 16, 17 [Press Release] “the absence of any findings of misconduct or
Ex. 1 [NVR Article] wrongdoing by Celeste White;” the Press Release
2
Robert Decl., ¶¶ 7, 23 reports, falsely, that the court found “no evidence
3 Celeste Decl., ¶¶ 16, 24 to support the plaintiff’s claims.”
Ex. 7 [Settlement Agreement] Court Order.
4 Ex. 8 [Court Order]
Ex. 6 [Petition]
5 Ex. 13, p. 5, Nos. 8, 9
6 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
Ex. 15 [order deeming facts admitted]
7
4. The sole purpose for creating the Press DISPUTED. Defendants wanted revenge for
8 Release was to dislodge the negative NVR what they perceived to be Plaintiff’s involvement
Article from online search engine results on in the NVR Article. Defendant Celeste White
9 searches of Celeste White’s name and Dr. indicated that the trust dispute might cast a
10 White’s name. shadow on her and her husband’s ability to
continue to effectively support and raise funds.
11 Singer Decl., ¶¶ 3-15 Celeste White Declaration, 7:2-3.
Robert Decl., ¶¶ 15, 21, 23
12 Celeste Decl., ¶¶ 20, 23, 24
Ex. 12, p. 11, No. 28
13 Ex. 1 [NVR Article]
14
5. Defendants Dr. Robert White and Celeste DISPUTED. Whether Defendants and their PR
15 White and their PR agent Sam Singer did not agent Sam Singer did not intend to breach the
intend the Press Release to be derogatory or contract with the Press Release is irrelevant.
16 critical of, or negative toward, Plaintiff, and Whether the Press Release is in fact derogatory or
do not believe a reasonable person would view critical of, or negative toward, Plaintiff, (a
17
it as such. material breach of a contract) is a question of fact,
18 and so appropriate for determination by a jury.
Singer Decl., ¶¶ 14-15, 18 (Porter v. Arthur Murray, Inc. (1967) 249
19 Robert Decl., ¶¶ 23-24 Cal.App.2d 410, 421.)
Celeste Decl., ¶¶ 24-25
20 Ex. 13, p. 5, No. 9
Ex. 12, p. 11, No. 28
21
22 6. Celeste White and Dr. Robert White DISPUTED. Defendant Celeste White
intended for the ND Provision to prohibit previously stated in her February 15, 2024,
23 defamatory statements, not factually accurate deposition that “…if someone was to speak
ones, as they included the ND Provision in the negatively of somebody, yes, that would violate
24 Settlement Agreement to prevent further the disparagement commitment.” Draft
25 negative articles like the NVR Article, which Transcript of February 15, 2024, Deposition
they felt was factually incorrect. of Celeste White, 22:9-11; Declaration of John
26 S. Rueppel [“JSR Decl.”], Ex. B.
Robert Decl., ¶¶ 8-9, 14-16
27 Celeste Decl., ¶ 11, 17, 19
Ex. 13, p. 4, No. 6
28
5
PLAINTIFF’S SEPARATE STATEMENT
1 ISSUE #2: PLAINTIFF’S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS
2 AS A MATTER OF LAW AGAINST DEFENDANT CELESTE WHITE BECAUSE CELESTE
3 WHITE DID NOT BREACH THE NON-DISPARAGEMENT PROVISION IN THE
4 SETTLEMENT AGREEMENT.
5
6 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND
7 Supporting Evidence – Issue #2 SUPPORTING EVIDENCE
1. Celeste White did not draft, revise, DISPUTED.
8 contribute to, approve the contents of, Defendant Celeste White indicated that she and
9 transmit, or otherwise communicate the Press her husband reviewed and suggested revisions to
Release or its contents. the press release before it was issued. Celeste
10 White Declaration, 7:11-12.
Robert Decl., ¶ 17
11 Celeste Decl., ¶ 21 2) Celeste White is cited as the “source” for the
Singer Decl., ¶ 19 release, which contains knowingly false and
12 deliberately misleading information. March 2021
13 Press Release.
14 2. The sole purpose for creating the Press DISPUTED. Defendants wanted revenge for
Release was to dislodge the negative NVR what they perceived to be Plaintiff’s involvement
15 Article from online search engine results on in the NVR Article. Defendant Celeste White
searches of Celeste White’s name and Dr. indicated that the trust dispute might cast a
16 White’s name. shadow on her and her husband’s ability to
17 continue to effectively support and raise funds.
Singer Decl., ¶¶ 3-15 Celeste White Declaration, 7:2-3.
18 Robert Decl., ¶¶ 15, 21, 23
Celeste Decl., ¶¶ 20, 23, 24
19 Ex. 12, p. 11, No. 28
Ex. 1 [NVR Article]
20
21 3. Celeste White did not intend for the Press DISPUTED. Whether Celeste White did not
Release to be derogatory or critical of, or intend to breach the contract with the Press
22 negative toward, Plaintiff Lisa Keith. Release is irrelevant. Whether the Press Release
is in fact derogatory or critical of, or negative
23 Singer Decl., ¶¶ 14-15, 18 toward, Plaintiff, (a material breach of a contract)
Robert Decl., ¶¶ 23-24 is a question of fact, and so appropriate for
24
Celeste Decl., ¶¶ 24-25 determination by a jury. (Porter v. Arthur
25 Ex. 13, p. 5, No. 9 Murray, Inc. (1967) 249 Cal.App.2d 410, 421.)
Ex. 12, p. 11, No. 28
26
27
28
6
PLAINTIFF’S SEPARATE STATEMENT
1 ISSUE #3: PLAINTIFF’S SECOND CAUSE OF ACTION FOR BREACH OF COVENANT OF
2 GOOD FAITH AND FAIR DEALING FAILS AS A MATTTER OF LAW BECAUSE
3 DEFENDANTS DID NOT DEPRIVE PLAINTIFF OF ANY BENEFIT IN THE SETTLEMENT
4 AGREEMENT.
5 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND
6 Supporting Evidence – Issue #3 SUPPORTING EVIDENCE
1. Defendants did not deprive Plaintiff of any DISPUTED. Lisa believes these Press Releases
7 benefit under the Settlement Agreement. affected her ability to win new business as a real
8 estate broker. In the year in which the Press
Robert Decl., ¶ 10 Releases were issued (2021), Lisa had the worst
9 Celeste Decl., ¶ 18 year ever as a broker, earning no commissions.
Ex. 8 [Court Order] Lisa Keith Declaration, 6:10-12.
10 Ex. 7 [Settlement Agreement]
11 2. Celeste White and Dr. Robert White DISPUTED. Defendants failed to perform their
12 performed all their obligations under the obligation under the non-disparagement provision
Settlement Agreement, including the with their issuance of the press releases and as a
13 payments to Lisa Keith required in Section result Lisa believes these Press Releases affected
2A, assumption of the Liens required in her ability to win new business as a real estate
14 Section 2B, and dismissal of the Sonoma broker. In the year in which the Press Releases
Proceeding required in Section 2C. were issued (2021), Lisa had the worst year ever
15 as a broker, earning no commissions. Lisa Keith
16 Celeste Decl., ¶ 18 Declaration, 6:10-12.
Robert Decl., ¶ 10
17 Ex. 15 [Court Order]
Ex. 7 [Settlement Agreement]
18 Ex. 6 [Petition]
19
3. Where the Press Release mentioned Lisa DISPUTED. Information in the Press Release
20 Keith by name, it merely repeated factually was not “factually correct” as the August 20,
correct information about Lisa Keith in the 2020, Court Order does not reflect any statement
21 NVR Article, including comments made by that the Court did a “full examination” and the
Lisa Keith’s attorney. Court did not find that there was “no evidence to
22 support plaintiff’s claims.” Court Order.
Singer Decl., ¶¶ 3-5, 17-18
23
Exs. 4, 5, 16, 17 [Press Release]
24 Ex. 1 [NVR Article]
Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
25 Ex. 15 [order deeming facts admitted]
Ex. 8 [Court Order]
26 Ex. 6 [Petition]
27
28
7
PLAINTIFF’S SEPARATE STATEMENT
4. The only comments about Lisa Keith in the DISPUTED. Information in the Press Release
1 Press Release consisted of factual descriptions was not “factually correct” as the August 20,
of what transpired in the Trust Action. 2020, Court Order does not reflect any statement
2
that the Court did a “full examination” and the
3 Singer Decl., ¶¶ 14-18 Court did not find that there was “no evidence to
Robert Decl., ¶¶ 23 support plaintiff’s claims.” Court Order.
4 Celeste Decl., ¶¶ 24
Exs. 4, 5, 16, 17 [Press Release]
5 Ex. 1 [NVR Article]
6 Ex. 7 [Settlement Agreement]
Ex. 8 [Court Order: “All facts stated in the
7 Petition are true.”]
Ex. 6, §§ 12-13 [Petition]
8 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
Ex. 15 [order deeming facts admitted]
9
10 5. The Press Release reported factual DISPUTED. The Press Release does not report
information about the Trust Action, including factual information about the Trust Action. The
11 (1) the Court’s approval of the (a) settlement, Court Order, in which the Press Release is
(b) Petition, and (c) Trust accountings that purportedly based upon, does not contain a
12 Celeste White submitted to the Court, and (2) finding of “the absence of misconduct or
the absence of any findings of misconduct or wrongdoing by Celeste White.” Court Order.
13
wrongdoing by Celeste White.
14
Singer Decl., ¶¶ 12-15
15 Exs. 4, 5, 16, 17 [Press Release]
Ex. 1 [NVR Article]
16 Robert Decl., ¶¶ 7, 23
Celeste Decl., ¶¶ 16, 24
17
Ex. 7 [Settlement Agreement]
18 Ex. 8 [Court Order]
Ex. 6 [Petition]
19 Ex. 13, p. 5, Nos. 8, 9
Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
20 Ex. 15 [order deeming facts admitted]
21
6. The sole purpose for creating the Press DISPUTED. Defendant Celeste White indicated
22 Release was to dislodge the negative NVR that the trust dispute might cast a shadow on her
Article from online search engine results on and her husband’s ability to continue to
23 searches of Celeste White’s name and Dr. effectively support and raise funds. Celeste
White’s name. White Declaration, 7:2-3.
24
25 Singer Decl., ¶¶ 3-15
Robert Decl., ¶¶ 15, 21, 23
26 Celeste Decl., ¶¶ 20, 23, 24
Ex. 12, p. 11, No. 28
27 Ex. 1 [NVR Article]
28
8
PLAINTIFF’S SEPARATE STATEMENT
7. Defendants Dr. Robert White and Celeste DISPUTED. Whether Defendants and their PR
1 White and their PR agent Sam Singer did not agent Sam Singer did or did not intend to breach
intend the Press Release to be derogatory or the contract’s covenant of good faith and fair
2
critical of, or negative toward, Plaintiff, and dealing with the Press Release is irrelevant.
3 do not believe a reasonable person would view Whether the Press Release is in fact derogatory or
it as such. critical of, or negative toward, Plaintiff, (a
4 material breach of a contract) is a question of fact,
Singer Decl., ¶¶ 14-15, 18 and so appropriate for determination by a jury.
5 Robert Decl., ¶¶ 23-24 (Porter v. Arthur Murray, Inc. (1967) 249
6 Celeste Decl., ¶¶ 24-25 Cal.App.2d 410, 421.)
Ex. 13, p. 5, No. 9
7 Ex. 12, p. 11, No. 28
8 8. Celeste White and Dr. Robert White DISPUTED. Celeste White and her husband
included the ND Provision in the Settlement proposed the ND provision to prevent further
9 Agreement to prevent further negative negative publicity. Celeste White Declaration,
10 articles like the NVR Article, which was 5:2-3.
factually incorrect.
11
Robert Decl., ¶¶ 8-9, 14-16
12 Celeste Decl., ¶ 11, 17, 19
Ex. 13, p. 4, No. 6
13
14 ISSUE #4: PLAINTIFF’S THIRD CAUSE OF ACTION FOR INTENTIONAL
15 MISREPRESENTATION FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF CANNOT
16 PROVIDE THE ESSENTIAL ELEMENTS OF MISREPRESENTATION, KNOWLEDGE OF
17 FALSITY, OR INTENT TO INDUCE RELIANCE.
18 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND
19 Supporting Evidence – Issue #4 SUPPORTING EVIDENCE
20 1. Defendants proposed inclusion of the UNDISPUTED.
non-disparagement provision in the
21 Settlement Agreement.
22 Robert Decl., ¶ 8
23 Celeste Decl., ¶ 11
Ex. 13, p. 4, No. 6
24
2. When Defendants proposed inclusion of the DISPUTED. Defendants retained a public
25 non-disparagement provision in the relations firm to issue a press release announcing
Settlement Agreement, they intended to the settlement of the trust litigation after their
26 comply with its terms. execution of the Settlement Agreement. Celeste
27 White Declaration, 7:4-5.
Robert Decl., ¶ 9
28 Celeste Decl., ¶ 17
9
PLAINTIFF’S SEPARATE STATEMENT
Ex. 13, p. 4, No. 6
1 Ex. 12, p. 8, No. 19
2
3. At no time before April 2020, when the UNDISPUTED.
3 parties signed the Settlement Agreement, did
either Celeste White or Dr. Robert White
4 make any false statement of fact to Plaintiff
about the non-disparagement provision or
5 their intent to comply with the non-
6 disparagement provision.
7 Robert Decl., ¶ 9
Celeste Decl., ¶ 17
8 Ex. 13, p. 4, No. 6
Ex. 12, p. 8, No. 19
9
10 4. Neither Dr. White nor Celeste White DISPUTED. Defendants retained a public
intended to deceive Plaintiff about their relations firm to issue a press release announcing
11 intention to comply with the ND Provision. the settlement of the trust litigation after their
execution of the Settlement Agreement. Celeste
12 Robert Decl., ¶ 9 White Declaration, 7:4-5.
Celeste Decl., ¶ 17
13
14 5. Dr. White and Celeste White did not DISPUTED. Plaintiff could have obtained
propose inclusion of the non-disparagement significant additional damages in her prior lawsuit
15 provision in the Settlement Agreement for the had she proceeded to trial against the Defendants.
purpose of inducing Plaintiff’s consent to the FAC, 10:1-2.
16 Settlement Agreement.
17
Robert Decl., ¶ 9
18 Celeste Decl., ¶ 17
19 6. Defendants proposed inclusion of the non- UNDISPUTED.
disparagement provision in the Settlement
20 Agreement to prevent further negative
21 publicity like the NVR Article.
22 Robert Decl., ¶ 8
Celeste Decl., ¶ 11
23 Ex. 13, p. 4, No. 6
24
7. The sole purpose for creating the Press DISPUTED. Defendant Celeste White indicated
25 Release was to dislodge the negative NVR that the trust dispute might cast a shadow on her
Article from online search engine results on and her husband’s ability to continue to
26 searches of Celeste White’s name and Dr. effectively support and raise funds. Celeste
White’s name. White Declaration, 7:2-3.
27
Singer Decl., ¶¶ 3-15
28
Robert Decl., ¶¶ 15, 21, 23
10
PLAINTIFF’S SEPARATE STATEMENT
Celeste Decl., ¶¶ 20, 23, 24
1 Ex. 12, p. 11, No. 28
Ex. 1 [NVR Article]
2
3 ISSUE #5: PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES FAILS AS A MATTER OF
4 LAW BECAUSE PLAINTIFF CANNOT PROVE, BY CLEAR AND CONVINCING
5 EVIDENCE, THE ESSENTIAL ELEMENT OF CONDUCT BY DEFENDANTS AMOUNTING
6 TO OPPRESSION, FRAUD, OR MALICE.
7
Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND
8
Supporting Evidence – Issue #5 SUPPORTING EVIDENCE
9 1. Where the Press Release mentioned Lisa DISPUTED. Information in the Press Release
Keith by name, it merely repeated factually was not “factually correct” as the August 20,
10 correct information about Lisa Keith in the 2020 Court Order does not reflect any statement
NVR Article, including comments made by that the Court did a “full examination” and the
11 Lisa Keith’s attorney. Court did not find that there was “no evidence to
12 support plaintiff’s claims.” Court Order.
Singer Decl., ¶¶ 3-5, 17-18
13 Exs. 4, 5, 16, 17 [Press Release]
Ex. 1 [NVR Article]
14 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
Ex. 15 [order deeming facts admitted]
15
Ex. 8 [Court Order]
16 Ex. 6 [Petition]
17 2. The comments about Lisa Keith in the DISPUTED. Information in the Press Release
Press Release consist of factual descriptions of does not consist of factual descriptions as the
18 what transpired in the Trust Action. August 20, 2020 Court Order does not reflect
any statement that the Court did a “full
19
Singer Decl., ¶¶ 14-18 examination” and the Court did not find that
20 Ex. 4, 5, 16, 17 [Press Release] there was “no evidence to support plaintiff’s
Ex. 1 [NVR Article] claims.” Court Order.
21 Robert Decl., ¶¶ 23
Celeste Decl., ¶¶ 24
22 Ex. 7 [Settlement Agreement]
23 Ex. 15 [Court Order]
Ex. 6 [Petition] [Court Order states that the facts
24 in the Petition are “true”]
Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
25
3. The Press Release reported factual DISPUTED. The Press Release does not report
26 information about the Trust Action, including factual information about the Trust Action. The
27 (1) the Court’s approval of the (a) settlement, Court Order, in which the Press Release is
(b) Petition, and (c) Trust accountings that purportedly based upon, does not contain a
28 Celeste White submitted to the Court, and (2)
11
PLAINTIFF’S SEPARATE STATEMENT
the absence of any findings of misconduct or finding of “the absence of misconduct or
1 wrongdoing by Celeste White. wrongdoing by Celeste White.” Court Order.
2
Singer Decl., ¶¶ 12-15
3 Exs. 4, 5, 16, 17 [Press Release]
Ex. 1 [NVR Article]
4 Robert Decl., ¶¶ 7, 23
Celeste Decl., ¶¶ 16, 24
5 Ex. 7 [Settlement Agreement]
6 Ex. 8 [Court Order]
Ex. 6 [Petition]
7 Ex. 13, p. 5, Nos. 8, 9
Ex. 14 [Admissions], Nos. 1-6, 16, 29-33
8 Ex. 15 [order deeming facts admitted]
9 4. The sole purpose for creating the Press DISPUTED. Defendant Celeste White indicated
10 Release was to dislodge the negative NVR that the trust dispute might cast a shadow on her
Article from online search engine results on and her husband’s ability to continue to
11 searches of Celeste White’s name and Dr. effectively support and raise funds. Celeste
White’s name. White Declaration, 7:2-3.
12
Singer Decl., ¶¶ 3-15
13
Robert Decl., ¶¶ 15, 21, 23
14 Celeste Decl., ¶¶ 20, 23, 24
Ex. 12, p. 11, No. 28
15 Ex. 1 [NVR Article]
16 5. Defendants Dr. Robert White and Celeste DISPUTED. Whether Defendants and their PR
White and their PR agent Sam Singer did not agent Sam Singer did or did not intend to breach
17
intend the Press Release to be derogatory or the contract with the Press Release is irrelevant.
18 critical of, or negative toward, Plaintiff, and Whether the Press Release is in fact derogatory or
do not believe a reasonable person would view critical of, or negative toward, Plaintiff, (a
19 it as such. material breach of a contract) is a question of fact,
and so appropriate for determination by a jury.
20 Singer Decl., ¶¶ 14-15, 18 (Porter v. Arthur Murray, Inc. (1967) 249
Robert Decl., ¶¶ 23-24 Cal.App.2d 410, 421.)
21
Celeste Decl., ¶¶ 24-25
22 Ex. 13, p. 5, No. 9
Ex. 12, p. 11, No. 28
23
6. When Defendants proposed inclusion of the DISPUTED. Defendants retained a public
24 non-disparagement provision in the relations firm to issue a press release announcing
25 Settlement Agreement, they intended to the settlement of the trust litigation after their
comply with its terms. execution of the Settlement Agreement. Celeste
26 White Declaration, 7:4-5.
Robert Decl., ¶ 9
27 Celeste Decl., ¶ 17
Ex. 13, p. 4, No. 6
28 Ex. 12, p. 8, No. 19
12
PLAINTIFF’S SEPARATE STATEMENT
7. At no time before April 2020, when the UNDISPUTED.
1 parties signed the Settlement Agreement, did
either Celeste White or Dr. Robert White
2
make any false statement of fact to Plaintiff
3 about the non-disparagement provision or
their intent to comply with the non-
4 disparagement provision.
5 Robert Decl., ¶ 9
6 Celeste Decl., ¶ 17
Ex. 13, p. 4, No. 6
7 Ex. 12, p. 8, No. 19
8
9
Respectfully submitted,
10
JOHNSTON, KINNEY & ZULAICA LLP
11
12
Dated: February 23, 2024 By:
13 John S. Rueppel, Esq.
Angie Lam, Esq.
14 Attorneys for Plaintiff, Lisa Keith
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
PLAINTIFF’S SEPARATE STATEMENT
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, CITY OF ANTIOCH AND COUNTY OF CONTRA COSTA
3
I am employed in the City and County of San Francisco, State of California. I am over the age of
4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP,
101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is
5 carolina@jkzllp.com.
6 On February 23, 2024, I served the foregoing document(s):
7
1. PLAINTIFF LISA KEITH’S SEPARATE STATEMENT IN OPPOSITION TO
8 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF DEFENDANTS
9 VALLEY ROCK FOUNDATION, DR. ROBERT WHITE, AND CELESTE WHITE AS
TO PLAINTIFF LISA KEITH’S FIRST AMENDED COMPLAINT
10
11 I served the documents on the person or persons listed below as follows:
12 Jeffrey E. Tsai
Kathleen S. Kizer
13 DLA PIPER LLP (US)
555 Mission Street, Suite 2400
14 San Francisco, CA 94105
Jeff.tsai@us.dlapiper.com
15 Katy.kizer@us.dlapiper.com
Attorneys for Defendants
16
[X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to
17 be electronically transmitted by me to the persons listed in the above email address(es). I did not receive
within a reasonable time after the transmission, any electronic message or other indication that the
18
transmission was unsuccessful.
19
I declare under penalty of perjury under the laws of the State of California that the foregoing is
20 true and correct.
21
Executed on February 23, 2024, at Antioch, California.
22
23
24 Carolina Ramos
4857-5739-4330, v. 9
25
26
27
28
14
PLAINTIFF’S SEPARATE STATEMENT
Preview
1 John S. Rueppel (SBN: 267467) Ann K. Kavanagh (SBN: 260526) 2 Angie Lam (SBN: 244719) JOHNSTON, KINNEY & ZULAICA LLP 3 101 Montgomery Street, Suite 1600 San Francisco, California 94104 4 Telephone: (415) 693-0550 Facsimile: (415) 693-0500 5 Email: john@jkzllp.com angie.lam@jkzllp.com 6 Attorneys for Plaintiff, 7 Lisa Keith 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN THE COUNTY OF NAPA 10 LISA KEITH, CASE NO: 22CV001269 11 Plaintiff, PLAINTIFF LISA KEITH’S SEPARATE STATEMENT IN OPPOSITION TO 12 v. DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY 13 CELESTE WHITE, an individual, ROBERT JUDGMENT OR, IN THE ALTERNATIVE, WHITE, an individual, the VALLEY ROCK SUMMARY ADJUDICATION OF 14 FOUNDATION, aka THE BAR 49 DEFENDANTS VALLEY ROCK FOUNDATION, a charitable organization, and FOUNDATION, DR. ROBERT WHITE, 15 DOES 1-50, INCLUSIVE, AND CELESTE WHITE AS TO PLAINTIFF LISA KEITH’S FIRST 16 Defendants. AMENDED COMPLAINT 17 Date: March 1, 2024 Time: 8:30 a.m. 18 Judge: Hon. Scott R.L. Young Dept.: B 19 Complaint Filed: October 25, 2022 FAC Filed: March 8, 2023 20 Trial Date: April 2, 2024 21 Petitioner, LISA KEITH (“Plaintiff”), in her capacity as Plaintiff of the above-referenced matter 22 hereby provides this statement of disputed and undisputed material facts, together with references to 23 supporting evidence, in response to Defendants Valley Rock Foundation, Dr. Robert White, and Celeste 24 White (collectively “Defendants”) Separate Statement in Support of Motion for Summary Judgment or, 25 in the Alternative, Summary Adjudication of Defendants Valley Rock Foundation, Dr. Robert White, 26 and Celeste White as to Plaintiff Lisa Keith’s First Amended Complaint in accordance with California 27 Rule of Court, Rule 3.1350: 28 1 PLAINTIFF’S SEPARATE STATEMENT 1 KEY TO ABBREVIATIONS 2 Celeste Decl.: Declaration of Celeste White in Support of Defendants’ Motion for Summary Judgment 3 or, in the Alternative, Summary Adjudication. 4 Compendium of Evidence pages 104-112. 5 Celeste White Decl.: Declaration of Celeste White in Support of Defendants’ Special Anti-Slapp 6 Motion to Strike Plaintiff’s Complaint. 7 Court Order: Order Granting Petition for Approval of Agreement and Approval and Settlement of 8 Accountings filed in the Trust Action in Napa County Superior Court on August 20, 2020, a copy of 9 which is attached as Exhibit B to the FAC. 10 Compendium of Evidence pages 68-71. 11 FAC: Plaintiff Lisa Keith’s First Amended Complaint in this action. 12 Lisa Keith Decl.: Declaration of Lisa Keith in Support of Opposition to Defendants' Motion for 13 Summary Judgment or, in the Alternative, Summary Adjudication of Defendants Valley Rock 14 Foundation, Dr. Rober White, and Celeste White as to Plaintiff Lisa Keith’s First Amended Complaint. 15 March 2021 Press Release: One of two nearly identical press releases drafted by Sam Singer, and 16 reviewed and edited by Defendants, based on Sam Singer’s interpretation of the Court Order and 17 issued in March 2021, a copy of which is attached to the FAC as Exhibit C. 18 Compendium of Evidence pages 162-169. 19 NVR Article: Article published in the Napa Valley Register in February 2018, entitled “Wealthy Napa 20 businessman’s heirs seek answers about $92 million estate.” 21 Compendium of Evidence pages 9-21. 22 Petition: Petition for Approval of Agreement and Approval and Settlement of Accountings filed on 23 June 1, 2020, in Napa County Superior Court submitted by Celeste White in the Trust Action. 24 Compendium of Evidence pages 42-55. 25 Press Release: One of two nearly identical press releases drafted by Sam Singer, and reviewed and 26 edited by Defendants, based on Sam Singer’s interpretation of the Court Order and issued in March 27 2021 and August 2021, copies of which are attached to the FAC as Exhibits C and D. 28 Compendium of Evidence pages 162-169. 2 PLAINTIFF’S SEPARATE STATEMENT 1 Robert Decl.: Declaration of Dr. Robert White in Support of Defendants’ Motion for Summary 2 Judgment or, in the Alternative, Summary Adjudication. 3 Compendium of Evidence pages 35-41. 4 Settlement Agreement: Settlement Agreement and Mutual General Release executed by the parties to 5 the Trust Action in April 2020, that was approved by the Court in the Court Order, a copy of which is 6 attached as Exhibit A to the FAC. 7 Compendium of Evidence pages 56-67. 8 Singer Decl.: Declaration of Sam Singer dated December 11, 2024, filed with Defendants’ Motion for 9 Summary Judgment or, in the Alternative, Summary Adjudication. 10 Compendium of Evidence pages 3-8. 11 Trust Action: 2016 lawsuit brought by Plaintiff Lisa Keith against Defendants Celeste White and Dr. 12 Robert White, as co-trustees of the Edward A. Keith Declaration of Trust dated August 16, 2002 13 (“Trust”) seeking an accounting of the Trust, which was settled in 2020. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFF’S SEPARATE STATEMENT 1 ISSUE #1: PLAINTIFF’S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS 2 AS A MATTER OF LAW BECAUSE NO DEFENDANT BREACHED THE NON- 3 DISPARAGEMENT PROVISION IN THE SETTLEMENT AGREEMENT BY ISSUING THE 4 PRESS RELEASE TO ANNOUNCE THE SETTLEMENT OF THE TRUST ACTION. 5 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND 6 Supporting Evidence – Issue #1 SUPPORTING EVIDENCE 1. Where the Press Release mentioned Lisa DISPUTED. Information in the Press Release 7 Keith by name, it merely repeated factually was not “factually correct” as Court Order does 8 correct information about Lisa Keith in the not reflect any statement that the Court did a NVR Article, including comments made by “full examination” and the Court did not find 9 Lisa Keith’s attorney. that there was “no evidence to support plaintiff’s claims.” Court Order. 10 Singer Decl., ¶¶ 3-5, 17-18 Exs. 4, 5, 16, 17 [Press Release] 11 Ex. 1 [NVR Article] 12 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 Ex. 15 [order deeming facts admitted] 13 Ex. 8 [Court Order] Ex. 6 [Petition] 14 2. The only comments about Lisa Keith in the DISPUTED. The statement in the Press Release 15 Press Release consisted of factual descriptions that the court found “no evidence to support the 16 of what transpired in the Trust Action. plaintiff’s claims” is not a factual description; the court made no such finding; this statement implies 17 Singer Decl., ¶¶ 14-18 that Lisa’s claims were patently frivolous and Robert Decl., ¶¶ 23 brought only to harass and oppress the 18 Celeste Decl., ¶¶ 24 Defendants. Court Order; March 2021 Press Exs. 4, 5, 16, 17 [Press Release] Release. 19 Ex. 1 [NVR Article] 20 Ex. 7 [Settlement Agreement] Ex. 8 [Court Order: “All facts stated in the 21 Petition are true.”] Ex. 6, §§ 12-13 [Petition] 22 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 Ex. 15 [order deeming facts admitted] 23 24 3. The Press Release reported factual DISPUTED. The Press Release does not report information about the Trust Action, including factual information about the Trust Action. The 25 (1) the Court’s approval of the (a) settlement, Court Order, which the Press Release is (b) Petition, and (c) Trust accountings that purportedly based upon, does not contain a 26 Celeste White submitted to the Court, and (2) finding of “the absence of misconduct or 27 the absence of any findings of misconduct or wrongdoing by Celeste White.” wrongdoing by Celeste White. Nor did the Order “side entirely with Celeste K. 28 White …” 4 PLAINTIFF’S SEPARATE STATEMENT Singer Decl., ¶¶ 12-15 Furthermore, the Press Release does not report 1 Exs. 4, 5, 16, 17 [Press Release] “the absence of any findings of misconduct or Ex. 1 [NVR Article] wrongdoing by Celeste White;” the Press Release 2 Robert Decl., ¶¶ 7, 23 reports, falsely, that the court found “no evidence 3 Celeste Decl., ¶¶ 16, 24 to support the plaintiff’s claims.” Ex. 7 [Settlement Agreement] Court Order. 4 Ex. 8 [Court Order] Ex. 6 [Petition] 5 Ex. 13, p. 5, Nos. 8, 9 6 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 Ex. 15 [order deeming facts admitted] 7 4. The sole purpose for creating the Press DISPUTED. Defendants wanted revenge for 8 Release was to dislodge the negative NVR what they perceived to be Plaintiff’s involvement Article from online search engine results on in the NVR Article. Defendant Celeste White 9 searches of Celeste White’s name and Dr. indicated that the trust dispute might cast a 10 White’s name. shadow on her and her husband’s ability to continue to effectively support and raise funds. 11 Singer Decl., ¶¶ 3-15 Celeste White Declaration, 7:2-3. Robert Decl., ¶¶ 15, 21, 23 12 Celeste Decl., ¶¶ 20, 23, 24 Ex. 12, p. 11, No. 28 13 Ex. 1 [NVR Article] 14 5. Defendants Dr. Robert White and Celeste DISPUTED. Whether Defendants and their PR 15 White and their PR agent Sam Singer did not agent Sam Singer did not intend to breach the intend the Press Release to be derogatory or contract with the Press Release is irrelevant. 16 critical of, or negative toward, Plaintiff, and Whether the Press Release is in fact derogatory or do not believe a reasonable person would view critical of, or negative toward, Plaintiff, (a 17 it as such. material breach of a contract) is a question of fact, 18 and so appropriate for determination by a jury. Singer Decl., ¶¶ 14-15, 18 (Porter v. Arthur Murray, Inc. (1967) 249 19 Robert Decl., ¶¶ 23-24 Cal.App.2d 410, 421.) Celeste Decl., ¶¶ 24-25 20 Ex. 13, p. 5, No. 9 Ex. 12, p. 11, No. 28 21 22 6. Celeste White and Dr. Robert White DISPUTED. Defendant Celeste White intended for the ND Provision to prohibit previously stated in her February 15, 2024, 23 defamatory statements, not factually accurate deposition that “…if someone was to speak ones, as they included the ND Provision in the negatively of somebody, yes, that would violate 24 Settlement Agreement to prevent further the disparagement commitment.” Draft 25 negative articles like the NVR Article, which Transcript of February 15, 2024, Deposition they felt was factually incorrect. of Celeste White, 22:9-11; Declaration of John 26 S. Rueppel [“JSR Decl.”], Ex. B. Robert Decl., ¶¶ 8-9, 14-16 27 Celeste Decl., ¶ 11, 17, 19 Ex. 13, p. 4, No. 6 28 5 PLAINTIFF’S SEPARATE STATEMENT 1 ISSUE #2: PLAINTIFF’S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS 2 AS A MATTER OF LAW AGAINST DEFENDANT CELESTE WHITE BECAUSE CELESTE 3 WHITE DID NOT BREACH THE NON-DISPARAGEMENT PROVISION IN THE 4 SETTLEMENT AGREEMENT. 5 6 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND 7 Supporting Evidence – Issue #2 SUPPORTING EVIDENCE 1. Celeste White did not draft, revise, DISPUTED. 8 contribute to, approve the contents of, Defendant Celeste White indicated that she and 9 transmit, or otherwise communicate the Press her husband reviewed and suggested revisions to Release or its contents. the press release before it was issued. Celeste 10 White Declaration, 7:11-12. Robert Decl., ¶ 17 11 Celeste Decl., ¶ 21 2) Celeste White is cited as the “source” for the Singer Decl., ¶ 19 release, which contains knowingly false and 12 deliberately misleading information. March 2021 13 Press Release. 14 2. The sole purpose for creating the Press DISPUTED. Defendants wanted revenge for Release was to dislodge the negative NVR what they perceived to be Plaintiff’s involvement 15 Article from online search engine results on in the NVR Article. Defendant Celeste White searches of Celeste White’s name and Dr. indicated that the trust dispute might cast a 16 White’s name. shadow on her and her husband’s ability to 17 continue to effectively support and raise funds. Singer Decl., ¶¶ 3-15 Celeste White Declaration, 7:2-3. 18 Robert Decl., ¶¶ 15, 21, 23 Celeste Decl., ¶¶ 20, 23, 24 19 Ex. 12, p. 11, No. 28 Ex. 1 [NVR Article] 20 21 3. Celeste White did not intend for the Press DISPUTED. Whether Celeste White did not Release to be derogatory or critical of, or intend to breach the contract with the Press 22 negative toward, Plaintiff Lisa Keith. Release is irrelevant. Whether the Press Release is in fact derogatory or critical of, or negative 23 Singer Decl., ¶¶ 14-15, 18 toward, Plaintiff, (a material breach of a contract) Robert Decl., ¶¶ 23-24 is a question of fact, and so appropriate for 24 Celeste Decl., ¶¶ 24-25 determination by a jury. (Porter v. Arthur 25 Ex. 13, p. 5, No. 9 Murray, Inc. (1967) 249 Cal.App.2d 410, 421.) Ex. 12, p. 11, No. 28 26 27 28 6 PLAINTIFF’S SEPARATE STATEMENT 1 ISSUE #3: PLAINTIFF’S SECOND CAUSE OF ACTION FOR BREACH OF COVENANT OF 2 GOOD FAITH AND FAIR DEALING FAILS AS A MATTTER OF LAW BECAUSE 3 DEFENDANTS DID NOT DEPRIVE PLAINTIFF OF ANY BENEFIT IN THE SETTLEMENT 4 AGREEMENT. 5 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND 6 Supporting Evidence – Issue #3 SUPPORTING EVIDENCE 1. Defendants did not deprive Plaintiff of any DISPUTED. Lisa believes these Press Releases 7 benefit under the Settlement Agreement. affected her ability to win new business as a real 8 estate broker. In the year in which the Press Robert Decl., ¶ 10 Releases were issued (2021), Lisa had the worst 9 Celeste Decl., ¶ 18 year ever as a broker, earning no commissions. Ex. 8 [Court Order] Lisa Keith Declaration, 6:10-12. 10 Ex. 7 [Settlement Agreement] 11 2. Celeste White and Dr. Robert White DISPUTED. Defendants failed to perform their 12 performed all their obligations under the obligation under the non-disparagement provision Settlement Agreement, including the with their issuance of the press releases and as a 13 payments to Lisa Keith required in Section result Lisa believes these Press Releases affected 2A, assumption of the Liens required in her ability to win new business as a real estate 14 Section 2B, and dismissal of the Sonoma broker. In the year in which the Press Releases Proceeding required in Section 2C. were issued (2021), Lisa had the worst year ever 15 as a broker, earning no commissions. Lisa Keith 16 Celeste Decl., ¶ 18 Declaration, 6:10-12. Robert Decl., ¶ 10 17 Ex. 15 [Court Order] Ex. 7 [Settlement Agreement] 18 Ex. 6 [Petition] 19 3. Where the Press Release mentioned Lisa DISPUTED. Information in the Press Release 20 Keith by name, it merely repeated factually was not “factually correct” as the August 20, correct information about Lisa Keith in the 2020, Court Order does not reflect any statement 21 NVR Article, including comments made by that the Court did a “full examination” and the Lisa Keith’s attorney. Court did not find that there was “no evidence to 22 support plaintiff’s claims.” Court Order. Singer Decl., ¶¶ 3-5, 17-18 23 Exs. 4, 5, 16, 17 [Press Release] 24 Ex. 1 [NVR Article] Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 25 Ex. 15 [order deeming facts admitted] Ex. 8 [Court Order] 26 Ex. 6 [Petition] 27 28 7 PLAINTIFF’S SEPARATE STATEMENT 4. The only comments about Lisa Keith in the DISPUTED. Information in the Press Release 1 Press Release consisted of factual descriptions was not “factually correct” as the August 20, of what transpired in the Trust Action. 2020, Court Order does not reflect any statement 2 that the Court did a “full examination” and the 3 Singer Decl., ¶¶ 14-18 Court did not find that there was “no evidence to Robert Decl., ¶¶ 23 support plaintiff’s claims.” Court Order. 4 Celeste Decl., ¶¶ 24 Exs. 4, 5, 16, 17 [Press Release] 5 Ex. 1 [NVR Article] 6 Ex. 7 [Settlement Agreement] Ex. 8 [Court Order: “All facts stated in the 7 Petition are true.”] Ex. 6, §§ 12-13 [Petition] 8 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 Ex. 15 [order deeming facts admitted] 9 10 5. The Press Release reported factual DISPUTED. The Press Release does not report information about the Trust Action, including factual information about the Trust Action. The 11 (1) the Court’s approval of the (a) settlement, Court Order, in which the Press Release is (b) Petition, and (c) Trust accountings that purportedly based upon, does not contain a 12 Celeste White submitted to the Court, and (2) finding of “the absence of misconduct or the absence of any findings of misconduct or wrongdoing by Celeste White.” Court Order. 13 wrongdoing by Celeste White. 14 Singer Decl., ¶¶ 12-15 15 Exs. 4, 5, 16, 17 [Press Release] Ex. 1 [NVR Article] 16 Robert Decl., ¶¶ 7, 23 Celeste Decl., ¶¶ 16, 24 17 Ex. 7 [Settlement Agreement] 18 Ex. 8 [Court Order] Ex. 6 [Petition] 19 Ex. 13, p. 5, Nos. 8, 9 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 20 Ex. 15 [order deeming facts admitted] 21 6. The sole purpose for creating the Press DISPUTED. Defendant Celeste White indicated 22 Release was to dislodge the negative NVR that the trust dispute might cast a shadow on her Article from online search engine results on and her husband’s ability to continue to 23 searches of Celeste White’s name and Dr. effectively support and raise funds. Celeste White’s name. White Declaration, 7:2-3. 24 25 Singer Decl., ¶¶ 3-15 Robert Decl., ¶¶ 15, 21, 23 26 Celeste Decl., ¶¶ 20, 23, 24 Ex. 12, p. 11, No. 28 27 Ex. 1 [NVR Article] 28 8 PLAINTIFF’S SEPARATE STATEMENT 7. Defendants Dr. Robert White and Celeste DISPUTED. Whether Defendants and their PR 1 White and their PR agent Sam Singer did not agent Sam Singer did or did not intend to breach intend the Press Release to be derogatory or the contract’s covenant of good faith and fair 2 critical of, or negative toward, Plaintiff, and dealing with the Press Release is irrelevant. 3 do not believe a reasonable person would view Whether the Press Release is in fact derogatory or it as such. critical of, or negative toward, Plaintiff, (a 4 material breach of a contract) is a question of fact, Singer Decl., ¶¶ 14-15, 18 and so appropriate for determination by a jury. 5 Robert Decl., ¶¶ 23-24 (Porter v. Arthur Murray, Inc. (1967) 249 6 Celeste Decl., ¶¶ 24-25 Cal.App.2d 410, 421.) Ex. 13, p. 5, No. 9 7 Ex. 12, p. 11, No. 28 8 8. Celeste White and Dr. Robert White DISPUTED. Celeste White and her husband included the ND Provision in the Settlement proposed the ND provision to prevent further 9 Agreement to prevent further negative negative publicity. Celeste White Declaration, 10 articles like the NVR Article, which was 5:2-3. factually incorrect. 11 Robert Decl., ¶¶ 8-9, 14-16 12 Celeste Decl., ¶ 11, 17, 19 Ex. 13, p. 4, No. 6 13 14 ISSUE #4: PLAINTIFF’S THIRD CAUSE OF ACTION FOR INTENTIONAL 15 MISREPRESENTATION FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF CANNOT 16 PROVIDE THE ESSENTIAL ELEMENTS OF MISREPRESENTATION, KNOWLEDGE OF 17 FALSITY, OR INTENT TO INDUCE RELIANCE. 18 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND 19 Supporting Evidence – Issue #4 SUPPORTING EVIDENCE 20 1. Defendants proposed inclusion of the UNDISPUTED. non-disparagement provision in the 21 Settlement Agreement. 22 Robert Decl., ¶ 8 23 Celeste Decl., ¶ 11 Ex. 13, p. 4, No. 6 24 2. When Defendants proposed inclusion of the DISPUTED. Defendants retained a public 25 non-disparagement provision in the relations firm to issue a press release announcing Settlement Agreement, they intended to the settlement of the trust litigation after their 26 comply with its terms. execution of the Settlement Agreement. Celeste 27 White Declaration, 7:4-5. Robert Decl., ¶ 9 28 Celeste Decl., ¶ 17 9 PLAINTIFF’S SEPARATE STATEMENT Ex. 13, p. 4, No. 6 1 Ex. 12, p. 8, No. 19 2 3. At no time before April 2020, when the UNDISPUTED. 3 parties signed the Settlement Agreement, did either Celeste White or Dr. Robert White 4 make any false statement of fact to Plaintiff about the non-disparagement provision or 5 their intent to comply with the non- 6 disparagement provision. 7 Robert Decl., ¶ 9 Celeste Decl., ¶ 17 8 Ex. 13, p. 4, No. 6 Ex. 12, p. 8, No. 19 9 10 4. Neither Dr. White nor Celeste White DISPUTED. Defendants retained a public intended to deceive Plaintiff about their relations firm to issue a press release announcing 11 intention to comply with the ND Provision. the settlement of the trust litigation after their execution of the Settlement Agreement. Celeste 12 Robert Decl., ¶ 9 White Declaration, 7:4-5. Celeste Decl., ¶ 17 13 14 5. Dr. White and Celeste White did not DISPUTED. Plaintiff could have obtained propose inclusion of the non-disparagement significant additional damages in her prior lawsuit 15 provision in the Settlement Agreement for the had she proceeded to trial against the Defendants. purpose of inducing Plaintiff’s consent to the FAC, 10:1-2. 16 Settlement Agreement. 17 Robert Decl., ¶ 9 18 Celeste Decl., ¶ 17 19 6. Defendants proposed inclusion of the non- UNDISPUTED. disparagement provision in the Settlement 20 Agreement to prevent further negative 21 publicity like the NVR Article. 22 Robert Decl., ¶ 8 Celeste Decl., ¶ 11 23 Ex. 13, p. 4, No. 6 24 7. The sole purpose for creating the Press DISPUTED. Defendant Celeste White indicated 25 Release was to dislodge the negative NVR that the trust dispute might cast a shadow on her Article from online search engine results on and her husband’s ability to continue to 26 searches of Celeste White’s name and Dr. effectively support and raise funds. Celeste White’s name. White Declaration, 7:2-3. 27 Singer Decl., ¶¶ 3-15 28 Robert Decl., ¶¶ 15, 21, 23 10 PLAINTIFF’S SEPARATE STATEMENT Celeste Decl., ¶¶ 20, 23, 24 1 Ex. 12, p. 11, No. 28 Ex. 1 [NVR Article] 2 3 ISSUE #5: PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES FAILS AS A MATTER OF 4 LAW BECAUSE PLAINTIFF CANNOT PROVE, BY CLEAR AND CONVINCING 5 EVIDENCE, THE ESSENTIAL ELEMENT OF CONDUCT BY DEFENDANTS AMOUNTING 6 TO OPPRESSION, FRAUD, OR MALICE. 7 Defendants’ Undisputed Material Facts and PLAINTIFF’S RESPONSE AND 8 Supporting Evidence – Issue #5 SUPPORTING EVIDENCE 9 1. Where the Press Release mentioned Lisa DISPUTED. Information in the Press Release Keith by name, it merely repeated factually was not “factually correct” as the August 20, 10 correct information about Lisa Keith in the 2020 Court Order does not reflect any statement NVR Article, including comments made by that the Court did a “full examination” and the 11 Lisa Keith’s attorney. Court did not find that there was “no evidence to 12 support plaintiff’s claims.” Court Order. Singer Decl., ¶¶ 3-5, 17-18 13 Exs. 4, 5, 16, 17 [Press Release] Ex. 1 [NVR Article] 14 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 Ex. 15 [order deeming facts admitted] 15 Ex. 8 [Court Order] 16 Ex. 6 [Petition] 17 2. The comments about Lisa Keith in the DISPUTED. Information in the Press Release Press Release consist of factual descriptions of does not consist of factual descriptions as the 18 what transpired in the Trust Action. August 20, 2020 Court Order does not reflect any statement that the Court did a “full 19 Singer Decl., ¶¶ 14-18 examination” and the Court did not find that 20 Ex. 4, 5, 16, 17 [Press Release] there was “no evidence to support plaintiff’s Ex. 1 [NVR Article] claims.” Court Order. 21 Robert Decl., ¶¶ 23 Celeste Decl., ¶¶ 24 22 Ex. 7 [Settlement Agreement] 23 Ex. 15 [Court Order] Ex. 6 [Petition] [Court Order states that the facts 24 in the Petition are “true”] Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 25 3. The Press Release reported factual DISPUTED. The Press Release does not report 26 information about the Trust Action, including factual information about the Trust Action. The 27 (1) the Court’s approval of the (a) settlement, Court Order, in which the Press Release is (b) Petition, and (c) Trust accountings that purportedly based upon, does not contain a 28 Celeste White submitted to the Court, and (2) 11 PLAINTIFF’S SEPARATE STATEMENT the absence of any findings of misconduct or finding of “the absence of misconduct or 1 wrongdoing by Celeste White. wrongdoing by Celeste White.” Court Order. 2 Singer Decl., ¶¶ 12-15 3 Exs. 4, 5, 16, 17 [Press Release] Ex. 1 [NVR Article] 4 Robert Decl., ¶¶ 7, 23 Celeste Decl., ¶¶ 16, 24 5 Ex. 7 [Settlement Agreement] 6 Ex. 8 [Court Order] Ex. 6 [Petition] 7 Ex. 13, p. 5, Nos. 8, 9 Ex. 14 [Admissions], Nos. 1-6, 16, 29-33 8 Ex. 15 [order deeming facts admitted] 9 4. The sole purpose for creating the Press DISPUTED. Defendant Celeste White indicated 10 Release was to dislodge the negative NVR that the trust dispute might cast a shadow on her Article from online search engine results on and her husband’s ability to continue to 11 searches of Celeste White’s name and Dr. effectively support and raise funds. Celeste White’s name. White Declaration, 7:2-3. 12 Singer Decl., ¶¶ 3-15 13 Robert Decl., ¶¶ 15, 21, 23 14 Celeste Decl., ¶¶ 20, 23, 24 Ex. 12, p. 11, No. 28 15 Ex. 1 [NVR Article] 16 5. Defendants Dr. Robert White and Celeste DISPUTED. Whether Defendants and their PR White and their PR agent Sam Singer did not agent Sam Singer did or did not intend to breach 17 intend the Press Release to be derogatory or the contract with the Press Release is irrelevant. 18 critical of, or negative toward, Plaintiff, and Whether the Press Release is in fact derogatory or do not believe a reasonable person would view critical of, or negative toward, Plaintiff, (a 19 it as such. material breach of a contract) is a question of fact, and so appropriate for determination by a jury. 20 Singer Decl., ¶¶ 14-15, 18 (Porter v. Arthur Murray, Inc. (1967) 249 Robert Decl., ¶¶ 23-24 Cal.App.2d 410, 421.) 21 Celeste Decl., ¶¶ 24-25 22 Ex. 13, p. 5, No. 9 Ex. 12, p. 11, No. 28 23 6. When Defendants proposed inclusion of the DISPUTED. Defendants retained a public 24 non-disparagement provision in the relations firm to issue a press release announcing 25 Settlement Agreement, they intended to the settlement of the trust litigation after their comply with its terms. execution of the Settlement Agreement. Celeste 26 White Declaration, 7:4-5. Robert Decl., ¶ 9 27 Celeste Decl., ¶ 17 Ex. 13, p. 4, No. 6 28 Ex. 12, p. 8, No. 19 12 PLAINTIFF’S SEPARATE STATEMENT 7. At no time before April 2020, when the UNDISPUTED. 1 parties signed the Settlement Agreement, did either Celeste White or Dr. Robert White 2 make any false statement of fact to Plaintiff 3 about the non-disparagement provision or their intent to comply with the non- 4 disparagement provision. 5 Robert Decl., ¶ 9 6 Celeste Decl., ¶ 17 Ex. 13, p. 4, No. 6 7 Ex. 12, p. 8, No. 19 8 9 Respectfully submitted, 10 JOHNSTON, KINNEY & ZULAICA LLP 11 12 Dated: February 23, 2024 By: 13 John S. Rueppel, Esq. Angie Lam, Esq. 14 Attorneys for Plaintiff, Lisa Keith 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 PLAINTIFF’S SEPARATE STATEMENT 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, CITY OF ANTIOCH AND COUNTY OF CONTRA COSTA 3 I am employed in the City and County of San Francisco, State of California. I am over the age of 4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP, 101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is 5 carolina@jkzllp.com. 6 On February 23, 2024, I served the foregoing document(s): 7 1. PLAINTIFF LISA KEITH’S SEPARATE STATEMENT IN OPPOSITION TO 8 DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF DEFENDANTS 9 VALLEY ROCK FOUNDATION, DR. ROBERT WHITE, AND CELESTE WHITE AS TO PLAINTIFF LISA KEITH’S FIRST AMENDED COMPLAINT 10 11 I served the documents on the person or persons listed below as follows: 12 Jeffrey E. Tsai Kathleen S. Kizer 13 DLA PIPER LLP (US) 555 Mission Street, Suite 2400 14 San Francisco, CA 94105 Jeff.tsai@us.dlapiper.com 15 Katy.kizer@us.dlapiper.com Attorneys for Defendants 16 [X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to 17 be electronically transmitted by me to the persons listed in the above email address(es). I did not receive within a reasonable time after the transmission, any electronic message or other indication that the 18 transmission was unsuccessful. 19 I declare under penalty of perjury under the laws of the State of California that the foregoing is 20 true and correct. 21 Executed on February 23, 2024, at Antioch, California. 22 23 24 Carolina Ramos 4857-5739-4330, v. 9 25 26 27 28 14 PLAINTIFF’S SEPARATE STATEMENT