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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
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
IN THE COUNTY OF NAPA
11
LISA KEITH, CASE NO: 22CV001269
12
Plaintiff, PLAINTIFF LISA KEITH’S OPPOSITION
13 TO DEFENDANTS’ MOTION FOR
v. SUMMARY JUDGMENT OR, IN THE
14 ALTERNATIVE, SUMMARY
CELESTE WHITE, an individual, ROBERT ADJUDICATION OF DEFENDANTS
15 WHITE, an individual, the VALLEY ROCK VALLEY ROCK FOUNDATION, DR.
FOUNDATION, aka THE BAR 49 ROBERT WHITE, AND CELESTE WHITE
16 FOUNDATION, a charitable organization, and AS TO PLAINTIFF LISA KEITH’S FIRST
DOES 1-50, INCLUSIVE, AMENDED COMPLAINT;
17 MEMORANDUM OF POINTS AND
Defendants. AUTHORITIES IN SUPPORT
18
Date: March 8, 2024
19 Time: 8:30 a.m.
Judge: Hon. Scott R.L. Young
20 Dept.: B
Complaint Filed: October 25, 2022
21 FAC Filed: March 8, 2023
Trial Date: April 2, 2024
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................................... 1
3 II. FACTUAL BACKGROUND ............................................................................................................ 2
4
III. LEGAL STANDARD....................................................................................................................... 6
5
A. STANDARD FOR SUMMARY JUDGMENT.......................................................................... 6
6
B. BURDEN OF PERSUASION ..................................................................................................... 7
7
8 IV. ARGUMENT .................................................................................................................................... 7
9 A. TRIABLE ISSUES OF FACT EXIST PREVENTING SUMMARY JUDGMENT OR
10 SUMMARY ADJUDICATION ON THE FIRST CAUSE OF ACTION – BREACH OF
11 CONTRACT. ....................................................................................................................................... 8
12
B. DEFENDANTS ARGUE, FRIVOLOUSLY, THAT LISA CANNOT PROVE A
13
“DEFAMATION CLAIM”. THERE IS NO DEFAMATION CLAIM....................................... 12
14
C. A TRIABLE ISSUE OF MATERIAL FACT EXISTS AS TO BREACH OF THE IMPLIED
15
COVENANT OF GOOD FAITH AND FAIR DEALING. ........................................................... 16
16
17 D. TRIABLE ISSUES OF MATERIAL FACT EXIST AS TO LISA’S CLAIM OF
18 INTENTIONAL MISREPRESENTATION. ................................................................................. 17
19 E. A TRIABLE ISSUE OF MATERIAL FACT EXISTS AS TO LISA’S ENTITLEMENT TO
20 PUNITIVE DAMAGES. LISA CAN ESTABLISH BY CLEAR AND CONVINCING
21 EVIDENCE THAT DEFENDANTS KNEW THEIR STATEMENTS WERE FALSE OR
22 ACTED WITH RECKLESS DISREGARD OF THEIR FALSITY. ........................................... 19
23 V. CONCLUSION................................................................................................................................. 20
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 TABLE OF AUTHORITIES
Page(s)
2
Cases
3
Aetna Cas. & Sur. Co. v Aceves,
4
(1991) 233 CA3d 544 ........................................................................................................................... 8
5 Aguilar,
supra, 25 Cal.4th ............................................................................................................................... 8, 9
6 Alliance Mortgage,
supra, 10 Cal.4th ................................................................................................................................. 24
7 Brown v. Grimes,
(2011) 192 Cal.App.4th 265 ............................................................................................................... 12
8
Burch v. Premier Homes, LLC,
9 (2011) 199 Cal,.App.4th 730 .............................................................................................................. 13
California Union Square L.P. v. Saks & Co. LLC,
10 (2021) 71 Cal.App.5th 136 ................................................................................................................. 16
Coral Farms L.P. v. Mahony,
11 (2021) 63 Cal.App.5th 719 fn. 3 ......................................................................................................... 16
12 County of Marin v. Assessment Appeals Bd. of Marin County,
(1976) 64 Cal.App.3d 319 .................................................................................................................. 12
13 Defendants cite Bionghi v. Metro,
(1999) 70 Cal.App.4th ........................................................................................................................ 22
14 Dietrich v. Litton Industries, Inc.,
(1970) 12 Cal.App.3d 704 .................................................................................................................. 26
15 EHP Glendale v. County of Los Angeles,
16 (2011) 193 Cal.App.4th 262 ................................................................................................................. 6
Kaney v. Custance,
17 (2022) 74 Cal.App.5th 201.................................................................................................................... 7
Loomis v. Amazon.com LLC,
18 (2021) 63 Cal.App.5th 466.................................................................................................................... 8
MacLeod v. Tribune Publishing Co.,
19 (1959) 52 Cal.2d 536 .......................................................................................................................... 25
20 McHenry v. Asylum Entertainment Delaware, LLC,
(2020) 46 Cal.App.5th 469.................................................................................................................... 7
21 Molko v. Holy Spirit Assn.,
(1988) 46 Cal.3d 1092 .......................................................................................................................... 6
22 Moore v. Wells Fargo Bank, N.A.,
(2019) 39 Cal.App.5th 280 ................................................................................................................. 21
23
Morcom v. San Francisco Shopping News,
24 (1935) 4 Cal.App.2d 284 .................................................................................................................... 25
Morey v. Vannucci,
25 (1998) 64 Cal.App.4th 904 ................................................................................................................. 13
Overland Plumbing, Inc. v Transamerica Ins. Co.,
26 (1981) 119 CA3d 476 ........................................................................................................................... 7
Porter v. Arthur Murray, Inc.,
27
(1967) 249 Cal.App.2d 410 ................................................................................................................ 12
28
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
Racine & Laramie, Ltd. v. Department of Parks & Recreation,
1 (1992) 11 Cal.App.4th 1025 ............................................................................................................... 21
Reeves v. Safeway Stores, Inc.,
2
(2004) 121 Cal.App.4th 95 ................................................................................................................... 9
3 Richman v. Hartley,
(2014) 224 Cal.App.4th 1182 ............................................................................................................. 12
4 Sandell v Taylor-Listing, Inc.,
(2010) 188 CA4th 297 .......................................................................................................................... 8
5 Schmidlin v. City of Palo Alto,
(2007) 157 Cal.App.4th 728 ............................................................................................................... 10
6
Seeger v. Odell,
7 (1941) 18 Cal.2d 409 .......................................................................................................................... 24
Soria v. Univision Radio Los Angeles, Inc.,
8 (2016) 5 Cal.App.5th 570 ..................................................................................................................... 7
Tarmann v. State Farm Mut. Auto Ins. Co.,
9 (1991) 2 Cal.App.4th 153 ............................................................................................................. 22, 23
10 TransCore, LP v. Elec. Transaction Consultants Corp.,
(2009) 563 F.3d 1271.......................................................................................................................... 17
11 Truong v. Nguyen,
(2007) 156 Cal.App.4th 865.................................................................................................................. 8
12 Weiss v. People ex rel. Department of Transportation,
(2020) 9 Cal.5th 840 ............................................................................................................................. 6
13
Statutes
14
15 Cal Civ Code § 1638 ............................................................................................................................... 12
Cal Civ Code § 1639 ............................................................................................................................... 12
16 Cal Civ Code § 1643 ............................................................................................................................... 12
Cal Civ Code § 1644 ............................................................................................................................... 13
17 Cal. Code Civ. Proc. § 1856(b), (d) ........................................................................................................ 13
Cal. Code Civ. Proc. § 1856(g) ............................................................................................................... 13
18 California Civil Code § 1668 .................................................................................................................. 19
19 CCP §437c(o)(1)–(2) ................................................................................................................................ 8
Civil Code § 1542 ..................................................................................................................................... 2
20 Code Civ. Proc. § 128.5(b)(2) ................................................................................................................. 11
Code Civ. Proc. § 437(c)........................................................................................................................... 7
21 Code Civ. Proc. §437c(c) ...................................................................................................................... 6, 8
Code Civ. Proc., § 473(a).......................................................................................................................... 7
22
Code Civ. Proc., § 473(c).......................................................................................................................... 6
23 Code of Civil Procedure § 128.7............................................................................................................... 5
Evid. Code, § 500...................................................................................................................................... 7
24
Other Authorities
25
Witkin, Summary of Cal. Law, supra, Torts, § 812, p.1173 ................................................................... 18
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 I. INTRODUCTION
2 1. Triable issues of material fact exist as to all of Plaintiff Lisa Keith’s (“Lisa”) causes of
3 action. Defendants’ Motion for Summary Judgment/Summary Adjudication (“Motion”) seeks to
4 immunize Defendants from having to explain to a jury how statements they deliberately published that
5 were false, derogatory, critical of, and/or negative (“Statements”) toward Lisa, (1) do not constitute a
6 breach of the Settlement Agreement (“Agreement”), approved by the Court on August 20, 2020; (2) are
7 not a breach of the Covenant of Good Faith and Fair Dealing; and (3) how their signing the Agreement
8 knowing they didn’t intend following it does not constitute Intentional Misrepresentation.
9 2. Defendants seek to obfuscate the issues before the Court. While the bulk of Defendant’s
10 brief argues that defamation law should apply, there is no claim for defamation (and the Agreement does
11 not mention “defamation” in any way). Furthermore, Defendants’ Motion is based almost entirely on an
12 intentional blindness to the most egregious Statement in the press releases, that the court in the prior trust
13 litigation had found that Lisa, as plaintiff, had no evidence to support her claims, a Statement that is not
14 only false, but also derogatory, critical of, and negative toward Lisa. Defendants must omit mention of
15 this fact, because if they admitted its existence, the instant Motion fails.
16 3. The credibility of the Defendants reaches an all-time low in this Motion. They make
17 statements under penalty of perjury in their Declarations, that directly contradict their statements in
18 previous declarations in this case, as well as their own deposition testimony.
19 4. Although discovery is ongoing (Defendants have been impeding Lisa’s attempts at third-
20 party discovery), Lisa is confident she can demonstrate to a jury the merit of her claims. Defendants, in
21 their Motion, admit to having had the opportunity to review the Statements in question. Despite having
22 this opportunity, they chose to publish the Statements, and when asked, declined to retract the
23 Statements.
24 5. While a jury will ultimately decide if the Statements are disparaging, derogatory, critical,
25 negative, and/or false; and whether they violate the Non-Disparagement clause (“ND Provision”),
26 Defendants’ actions clearly illustrate their intentional and reckless disregard of the Agreement. A jury
27 needs to decide whether Defendants’ attempts to shift the blame to their public relations agent, whom
28 they hired, substantiates the need for a punitive damages award. This act of deflecting responsibility for
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 the publishing of the Statements not only undermines their defense but also exposes a level of malice
2 and egregious conduct that will certainly resonate with a jury.
3 6. Most importantly, triable issues of fact exist preventing the granting of summary
4 judgment/summary adjudication. The Court must deny Defendants’ Motion.
5 II. FACTUAL BACKGROUND
6 7. This action arises out of Defendants’ breach of the Agreement, which effected a
7 resolution of a previous legal dispute between Lisa and Defendant Celeste White (“Celeste”), as co-
8 trustee of the Edward A. Keith Declaration of Trust executed on August 16, 2002 “(“Trust”), that gave
9 rise to Case No. 26-36111 in the Probate department of Napa County Superior Court (“Trust Action”).
10 8. The Trust Action involved, among other things, Lisa’s request for accountings, return of
11 Trust property, and surcharge if appropriate, against Celeste. On or about April 26, 2020, the Trust
12 Action was settled at mediation. The parties to the Trust Action, together with all beneficiaries, executed
13 the Agreement to formalize the settlement. (Declaration of Lisa Keith [“Lisa Decl.”], ¶ 3; Ex. A.)
14 9. The Agreement was conditioned on approval of the Court in the Trust Action. On August
15 20, 2020, the Court entered an Order Granting Petition for Approval of Agreement and Approval and
16 Settlement of Accountings approving and giving effect to the Agreement (“August 20, 2020, Order”).
17 (A true and correct copy of the August 20, 2020, Order is attached to Petitioner’s Request for Judicial
18 Notice (“RJN”) as Exhibit 2.) Under the Agreement Celeste promised to pay certain sums to Lisa. The
19 Agreement included a general release, a Civil Code § 1542 waiver, and included a “Covenant Not To
20 Sue” provision; however, that provision carves out as permissible such efforts as “necessary and
21 appropriate to enforce the terms of this Settlement Agreement”. (Lisa Decl.; Ex. A, Agreement, ¶ 6.)
22 10. The Agreement includes the ND Provision at issue:
23 7. Non-Disparagement
24 Each Party agrees that they will not communicate through any medium or by any means,
including but not limited to email and social media, any remark, comment, message,
25 information, declaration, communication or other statement of any kind that might
reasonably be construed to be derogatory or critical of, or negative toward, any other
26 Party with respect to any issue that concerns, regards, or relates in any way to the Napa
Proceeding, the Sonoma Proceeding, the Trust, any trust of which the Beneficiaries are
27 beneficiaries funded with assets distributed from the Trust, the Foundation, or Sundown
Ranch, LLC.
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
Notwithstanding the foregoing, the Parties may discuss this matter with (i) their
1 immediate family members, provided such family members are informed of this Section
7 and agree to be bound by it; (ii) their accountants, tax advisors, or employees, provided
2 such persons agree to be bound by this Section 7; (iii) their attorneys for the purpose of
obtaining legal advice, (iv) state, federal, and other local tax authorities when legally
3 required; and (v) as reasonably necessary to enforce the terms hereof or to defend against
any claim for enforcement of this Settlement Agreement brought against them by other
4 Parties to this Settlement Agreement.
5 The Parties agree that damages resulting from a breach of this Section 7 likely will be
difficult or incapable of being ascertained or valued, and therefore, the Parties agree that,
6 should it be proven in a court of law or other competent forum that a Party has violated
this Provision, that Party shall pay the greater of the actual damages proven or liquidated
7 damages in the amount of Ten Thousand Dollars ($10,000) for each such communication,
plus reasonable attorneys' fees incurred by the protected Party or Parties in proving such
8 violation. (Lisa Decl.; Ex. A, Agreement, ¶ 7.)
9 11. In February 2018, (well prior to the Agreement) the Napa Valley Register published an
10 article describing the Trust Action (“NVR Article”). (Declaration of Dr. Robert White [“Robert Decl.”],
11 ¶ 14.) (Declaration of Sam Singer [“Sam Decl.”], ¶ 3; Ex. 1.) Dr. Robert White (“Robert”) found the
12 NVR Article to be derogatory, critical of, and negative toward them, even though it is almost entirely
13 factual. (See Draft Transcript of February 16, 2024, Deposition of Dr. Robert White; 87:17-25;
14 Declaration of John S. Rueppel [“JSR Decl.”], Ex. A.)
15 12. On or around March 15, 2021, Defendants, acting through a public relations firm, Singer
16 Associates, San Francisco, issued a press release (“March 2021 Press Release”) via PR Newswire, a
17 national news distribution service that feeds thousands of newsrooms and social media sites across the
18 country. (Lisa Decl.; Ex. B)
19 13. The March 2021 Press Release stated in part that, “White provided a full accounting of
20 her father’s Trust and of her management of the estate, and after a full examination, the court found no
21 evidence to support the plaintiff’s claims. Judge Langhorne’s order sided entirely with Celeste K. White
22 and her diligent management of the estate.”
23 14. On or around August 24, 2021, Defendants issued another press release, via
24 BusinessWire, another national news distribution service that feeds thousands of newsrooms and social
25 media sites across the country, titled “Celeste White of Napa Prevails in Estate Case of Late Father,
26 Prominent Napa Valley Businessman Ed Keith.” (“August 2021 Press Release”) (Lisa Decl.; Ex. C).
27 15. The August 2021 Press Release made further disparaging, derogatory, critical, negative,
28 and false Statements to the effect that a judge had fully exonerated Defendant, as well as derogatory,
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 critical and negative Statements about Lisa in relation to the Trust Action.
2 16. Regarding Lisa, the March 2021 Press Release and the August 2021 Press Release both
3 (together the “Press Releases”) stated:
4 White's sister Lisa Keith, one of her four siblings, later attempted to claim that White
had not properly carried out her duties as co-trustee, particularly regarding the
5 management of the foundation. In 2017, Judge Rodney Stone ruled Lisa Keith had no
standing regarding the foundation and the foundation claims were struck from the
6 lawsuit. However, despite that loss, Lisa Keith persisted in her other claims and
demanded that Celeste White create a probate accounting of the Trust. (Lisa Decl.; Ex.
7 B & C).
8 17. The August 2021 Press Release also quoted Celeste as saying, “I’m glad this ordeal is
9 finally over and that the Court recognized that everything I have done since my father’s passing has
10 been in complete accordance with his wishes and my role as trustee.”
11 18. The August 2021 Press Release was distributed to thousands of news agencies. On
12 information and belief, thousands or tens of thousands of individuals read these headlines and articles.
13 19. In addition to these two national news releases, Celeste sought to further amplify the
14 distribution by posting the Press Releases on her personal Twitter account and posting the Press Releases
15 on Singer Public Relations’ website. (Lisa Decl.; Exs. D & E)
16 20. Many of the Statements in the Press Releases are false and/or misleading. For example,
17 the Court did not rule that everything Celeste had done since her father’s passing was in complete
18 accordance with his wishes and her role as trustee; on March 29, 2019, the Court had to order Celeste to
19 file code-compliant verified accountings covering her administration from September 15, 2006, to
20 January 15, 2013, as she had “initially refused to provide any accounting despite continued requests,
21 then claimed an inability to account, and finally provided an unsigned, accounting-like document, which,
22 according to petitioner’s counsel, is extremely difficult to follow and appears purposefully scattered
23 chronologically and categorically.” (A true and correct copy of the Order on Request for Trustee to File
24 Verified Accounting is attached to Petitioner’s RJN as Exhibit 3.) The conduct of Celeste and Robert
25 giving rise to the Trust Action was sufficiently alarming to prompt the California Attorney General to
26 join the proceeding to protect charitable interests in the Trust. The parties agreed to mediate only after
27 Celeste had filed her third attempt at accountings.
28 21. There was never any actual judicial review of any of Celeste’s accountings in the Trust
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 Action. In its August 20, 2020, Order, the Court deemed the accountings “settled, allowed, approved”
2 and Celeste’s acts and transactions as co-trustee “ratified, confirmed, and approved,” but only because
3 these were terms of the Agreement. (See RJN #2, Order, ¶ 4; and Lisa Decl.; Ex. A, Agreement, ¶ 1.)
4 Contrary to the Statements Celeste has now widely published through the August 2021 Press Release,
5 the Court never exonerated Celeste from wrongdoing as co-trustee. It simply settled the accounts in the
6 context of approving the parties’ Agreement and thus ending the litigation.
7 22. The two Press Releases were separate national press releases distributed by two different
8 national distribution services intended to reach hundreds of media outlets, and to ensure that any internet
9 searches containing the names of Defendants would show the content of these releases and push the
10 NVR Article off of the first page of Google.
11 23. Defendants’ assertion in their March 2021 Press Release that “the court found no evidence
12 to support the plaintiff’s claims” is contrary to the facts. If there was no merit and “no evidence” to
13 support Lisa’s claims, the Court would not have ordered accountings (See RJN # 3); Celeste would not
14 have signed the Agreement promising to pay Lisa $1,295,000 as compensation for damages (Lisa Decl.;
15 Ex. A, Agreement, ¶ 2A.), and taking responsibility for liens owed by each sibling, totaling
16 approximately $1.6 million dollars. (Lisa Decl.; Ex. A, Agreement, ¶ 2B.) (Draft Transcript of February
17 15, 2024, Deposition of Celeste White [“Celeste Depo”]; 93:5-95:16; Declaration of John S. Rueppel
18 [“JSR Decl.”], Ex. B.)
19 24. If there were “no evidence to support the plaintiff’s claims,” why did none of the
20 Defendants file a motion for sanctions under Code of Civil Procedure § 128.7, alleging that Lisa’s lawsuit
21 was frivolous?
22 25. In early 2022, Lisa notified Defendants that she was aware of the disparaging, derogatory,
23 critical, negative, and false Statements and asked Defendants to retract the Statements. Defendants
24 ignored Lisa’s requests. The articles remain online and easily discoverable via internet search.
25 26. The term “communication” is not defined in the Agreement. Lisa believes that a
26 “communication” would include each and every time the Statements were published online, in print, or
27 made orally.
28 27. In the March 2021 Press Release, Celeste is cited as the “source” for the release, which
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 contains knowingly false and deliberately misleading information.
2 III. LEGAL STANDARD
3 A. STANDARD FOR SUMMARY JUDGMENT
4 28. A motion for summary judge is used to determine whether there exists a genuine issue of
5 material facts. (Code Civ. Proc., § 473(c); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107,
6 superseded by statute on other grounds, as stated in Aguilar v. Atlantic Richfield Co. (2001) 25
7 Cal.4th.826, 853, fn. 19; EHP Glendale v. County of Los Angeles (2011) 193 Cal.App.4th 262, 270-271.)
8 If the inferences drawn from the evidence are contradicted by other inferences, or by evidence that
9 presents a triable issue as to any material fact, the motion for summary judgment must be denied. Code
10 Civ. Proc. §437c(c).
11 29. “Courts deciding motions for summary judgment or summary adjudication may not
12 weigh the evidence but must instead view it in the light most favorable to the opposing party and draw
13 all reasonable inferences in favor of that party.” (Weiss v. People ex rel. Department of Transportation
14 (2020) 9 Cal.5th 840, 864.” “The court strictly construes the evidence of the moving party and liberally
15 construes the evidence of the opposing party (Kaney v. Custance (2022) 74 Cal.App.5th 201); McHenry
16 v. Asylum Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469).
17 30. Summary Judgment cannot be granted when the facts are susceptible to more than one
18 reasonable inference.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583.)
19 31. If the disputed facts are material, the court will not grant summary judgment. (Overland
20 Plumbing, Inc. v Transamerica Ins. Co. (1981) 119 CA3d 476, 481).
21 32. A material fact is in “genuine dispute” when the record contains evidence sufficient to
22 allow a reasonable juror to find the underlying fact in favor of the non-moving party in accordance with
23 the applicable standard of proof (Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466; Truong v.
24 Nguyen (2007) 156 Cal.App.4th 865).
25 33. If … other reasonable inferences can be drawn, even if based only on circumstantial
26 evidence, summary judgment or adjudication is not proper. (Aetna Cas. & Sur. Co. v Aceves (1991) 233
27 CA3d 544, 557. See also Sandell v Taylor-Listing, Inc. (2010) 188 CA4th 297, 324 (even “strong
28 inference” in favor of one side is not reason to grant summary judgment; “the fact that a juror could
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 reasonably draw a different inference is sufficient to preclude summary judgment”).
2 B. BURDEN OF PERSUASION
3 34. A party who asks a court to act in his or her favor also bears the burden of persuasion.
4 (Evid. Code, § 500.) Thus, “from commencement to conclusion, the party moving for summary judgment
5 bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to
6 judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th, at 850.) The moving party bears the initial
7 burden of production to make a prima facie showing that there are no triable issues of material fact. (Id.)
8 35. “A plaintiff resisting a motion for summary judgment bears no burden to establish any
9 element of his or her case unless and until the defendant presents evidence either affirmatively negating
10 that element … or affirmatively showing that the plaintiff does not possess and cannot acquire evidence
11 to prove its existence.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) Only if
12 defendant meets its burden do we get to the second issue. For that the only questions are whether the
13 entire action has no merit or whether there is no defense to the action. (Code Civ. Proc., § 473(a).)
14 36. Pursuant to Code Civ. Proc. § 437(c), summary adjudication cannot be granted as to
15 “parts” of a cause of action, only as to an entire cause of action. “A motion for summary adjudication
16 tenders only those issues or causes of action specified in the notice of motion, and may only be granted
17 as to the matters thus specified. The movant must “state specifically in the notice of motion and ... repeat,
18 verbatim, in the separate statement of undisputed material facts,” “the specific cause of action,
19 affirmative defense, claims for damages, or issues of duty” as to which summary adjudication is sought.
20 The motion must be denied if the movant fails to establish an entitlement to summary adjudication of
21 the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis
22 to do so appears from the papers.” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-444,
23 as modified (Jan. 2, 2008).) Here, Defendants bear the burden to move forward, however, as the Court
24 would see, Defendants fail to meet that burden. Therefore, the Court should deny Defendants’ motion
25 for summary judgment or in alternative summary adjudication.
26 IV. ARGUMENT
27 37. Defendants’ Motion for Summary Judgment on all three causes of action (and entitlement
28 to punitive damages) in Lisa’s First Amended Complaint (“FAC”) should be denied. Defendants have
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 failed to meet their burden of showing that there is no triable issue of material fact (CCP §437c(c)).
2 Conflicting evidence exists that gives rise to reasonable conflicting inferences and shows that there is a
3 triable issue of material fact.
4 38. Defendants’ Motion in the alternative for Summary Adjudication as to the second cause
5 of action for breach of the covenant of good faith and fair dealing; and the third cause of action for
6 intentional misrepresentation should be denied. Defendants cannot show that these causes of action are
7 without merit (i.e., one or more elements of a cause of action cannot be separately established), or that
8 an affirmative defense exists as to either cause of action. CCP §437c(o)(1)–(2).
9 39. Celeste’s Motion for Summary Adjudication as to the first cause of action for breach of
10 contract “on the grounds that the evidence shows she did not draft, revise, or otherwise contribute in any
11 way to the language in the Press Release” should be denied. Celeste cannot show that this cause of action
12 is without merit, or that an affirmative defense exists. CCP §437c(o)(1)–(2).
13 A. TRIABLE ISSUES OF FACT EXIST PREVENTING SUMMARY JUDGMENT
14 OR SUMMARY ADJUDICATION ON THE FIRST CAUSE OF ACTION – BREACH OF
15 CONTRACT.
16 Lisa Can Prove Breach Of Contract, Because The Parties Drafted The ND Provision To
17 Bar A Very Wide Range Of Speech.
18 40. Defendants’ argument attempts to insert terms into the ND Provision that simply aren’t’
19 there. Defendants’ assert that “Plaintiff cannot prove any Defendant breached the ND Provision because
20 the Press Release was factually accurate and read in context, including its nondefamatory purpose,
21 could not reasonably be construed to be derogatory or critical of, or negative toward, Plaintiff.” But
22 this is a red-herring. Whether or not the “Press Release was factually accurate” is not relevant, this is
23 not a defamation action; it is a breach of contract action. A Statement by Defendants that is “factually
24 accurate” could still “reasonably be construed to be derogatory or critical of, or negative toward,
25 Plaintiff,” and in breach of the Agreement. (Even so, as is discussed more below, the evidence shows
26 that the Press Releases were not in fact “factually accurate.”) (Plaintiff’s Separate Statement [“PSS”],
27 Issue #1, Facts 1-6.)
28 41. Defendants purportedly wanted the ND Provision in the Agreement because they were
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PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 concerned about the NVR Article’s effect on their reputation. In fact, they issued the Statements, under
2 the cover of improving their reputation, to impugn Lisa and get revenge for what they believed was
3 Lisa’s role in the NVR Article (although she had no role; the NVR Article quotes almost entirely from
4 Lisa’s filed petition in the Trust Action). Defendants might have chosen any number of press releases
5 about their businesses that would not have affected Lisa, but they chose to issue Statements that
6 mentioned Lisa multiples times, casting her in a disparaging and negative light. This breached the
7 Agreement.
8 42. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the
9 contract, (2) plaintiff’s performance of the contract or excuse for nonperformance, (3) defendant's
10 breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182,
11 1186.) “When a party's failure to perform a contractual obligation constitutes a material breach of the
12 contract, the other party may be discharged from its duty to perform under the contract. Normally the
13 question of whether a breach of an obligation is a material breach, so as to excuse performance by the
14 other party, is a question of fact. Whether a partial breach of a contract is material depends on ‘the
15 importance or seriousness thereof and the probability of the injured party getting substantial
16 performance.’ ‘A material breach of one aspect of a contract generally constitutes a material breach of
17 the whole contract.”’ (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277-278) (internal citations
18 omitted.) Whether there is a material breach of a contract is a question of fact, and so appropriate for
19 determination by a jury. (Porter v. Arthur Murray, Inc. (1967) 249 Cal.App.2d 410, 421.)
20 43. “[T]he contract must be construed as a whole and the intention of the parties must be
21 ascertained from the consideration of the entire contract, not some isolated portion.” (County of Marin
22 v. Assessment Appeals Bd. of Marin County (1976) 64 Cal.App.3d 319, 324-325.) “Any contract must
23 be construed as a whole, with the various individual provisions interpreted together so as to give effect
24 to all, if reasonably possible or practicable.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner &
25 Smith (1998) 68 Cal.Ap.4th 445, 473.)
26 44. “Where the interpretation of contractual language turns on a question of the credibility of
27 conflicting extrinsic evidence, interpretation of the language is not solely a judicial function.” (Morey v.
28 Vannucci (1998) 64 Cal.App.4th 904, 912-13.) In this case, there appears to be a difference of opinion
9
PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 as to whether or not the ND Provision bars statements that are negative but are true or factual.
2 Accordingly, the determination of the parties’ intent relative to this provision will rely on conflicting
3 extrinsic evidence and testimony, making this determination also a question of fact for the jury.
4 45. A jury needs to determine if Defendants’ Statements breached the Agreement. “In cases
5 where there is ‘any apparent conflict between its different clauses or provisions, the circumstances
6 surrounding its execution and the conditions and motives of the parties as shown by recitals in the
7 contract or matters in evidence should be taken into consideration in order that the true intent of the
8 parties may be ascertained.’ (Burch v. Premier Homes, LLC (2011) 199 Cal,.App.4th 730, 744.)
9 46. Defendants’ Motion focuses only on the element of breach; Defendants do not argue that
10 there is no enforceable agreement, that Lisa did not perform, or that Lisa was not damaged. Therefore,
11 Lisa will limit her argument here to the element of breach.
12 47. The determination of Lisa’s claim for breach of contract will hinge on two issues: (1) the
13 interpretation of the Agreement, and (2) the application of the Agreement to the Press Releases at issue.
14 48. Lisa alleges Defendants breached the following provision of the Agreement:
15 Each Party agrees that they will not communicate through any medium
or by any means, including but not limited to email and social media, any
16 remark, comment, message, information, declaration, communication or
other statement of any kind that might reasonably be construed to be
17 derogatory or critical of, or negative toward, any other Party with respect
to any issue that concerns, regards, or relates in any way to the Napa
18 Proceeding, the Sonoma Proceeding, the Trust, any trust of which the
Beneficiaries are beneficiaries funded with assets distributed from the Trust,
19 the Foundation, or Sundown Ranch, LLC.
20 (Lisa Decl.; Ex. A, Agreement) (emphasis added.)
21 49. In other words, to prove a breach of the Agreement, Lisa does not have to prove that each
22 Statement was unequivocally “derogatory”, “critical of”, or “negative toward” Lisa; she only has to
23 prove they could be “reasonably construed” as such. This is a much lower burden for Lisa to meet.
24 50. Multiple Statements in the Press Releases can be reasonably construed as “derogatory”,
25 “critical of”, or “negative toward” Lisa:
26 a. “White’s sister Lisa Keith, one of her four siblings, later attempted to claim that
White had not properly carried out her duties as trustee…”.
27 b. “In 2017, Judge Rodney Stone ruled Lisa Keith had no standing regarding the
foundation and the foundation claims were struck from the lawsuit.”
28
10
PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
c. “However, despite that loss, Lisa Keith persisted in her other claims and demanded
1 that Celeste White create a probate accounting of the Trust.”
d. “after a full examination, the court found no evidence to support the plaintiff’s1
2 claims.”
3
51. These Statements can reasonably be construed as negative, because they, both explicitly
4
and impliedly, cast Lisa in a negative light. That Lisa “attempted to claim” that Celeste had not carried
5
out her duties as trustee implies that Lisa failed in her endeavors. Relating the court ruling that Lisa
6
lacked standing to make claims regarding the foundation, and that her claims were struck, similarly
7
indicates failure or poor judgment. Stating that she “persisted” in her claims, and that she “demanded”
8
and accounting, attempts to paint Lisa as irrational and demanding, as opposed to within her rights as a
9
beneficiary. Finally, and worst of all, is the Statement that the court found “no evidence to support the
10
plaintiff’s claims". This Statement implies that Lisa’s claims were patently frivolous and brought only
11
to harass and oppress the Defendants. “Frivolous” is defined by the Code of Civil Procedure as “totally
12
and completely without merit” or for “the sole purpose of harassing an opposing party”. (Code Civ. Proc.
13
§ 128.5(b)(2).)
14
52. Because these Statements could reasonably be construed as negative, derogatory, or
15
critical of Lisa, a triable issue of fact exists as to the element of breach. Accordingly, the Court should
16
deny the Defendants’ Motion because triable issues exist as to the element of breach.
17
The Intent of the Non-Disparagement Provision Was to Bar All Negative Communications
18
About Each Other, Whether True or Not.
19
53. Defendants argue that the ND Provision “the parties intended the ND Provision to
20
prohibit only defamatory statements and not factually accurate ones.” This argument is based on the
21
unsubstantiated theory that the parties to the contract intended general defamation law to apply to the
22
ND Provision, when the provision does not refer to defamation law in any way. Defendants’ reliance
23
upon completely irrelevant law for their motion renders their argument frivolous.
24
54. Lisa believes that the ND Provision was intended to bar any negative communication
25
about her sister and the other parties to the Trust Action. That is why Lisa scrupulously avoided making
26
27
1
28 (In her deposition, Celeste White identified the “plaintiff” as Lisa Keith.) Celeste Depo; 12:14-16)
11
PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 such statements herself. (Lisa Decl.; ¶ 8.) In fact, at deposition, Celeste admitted that a true statement, if
2 it could reasonable be construed as negative towards a party, could also breach the agreement. (Celeste
3 Depo; 19:19-22:11).
4 55. Therefore, a dispute does exist as to the intent of the parties to the Agreement related to
5 the ND Provision, and evidence in support of Lisa’s plain reading of that provision includes the
6 Defendants’ own Statements. As such, a triable issue of material fact exists as to the meaning of the ND
7 Provision.
8 B. DEFENDANTS ARGUE, FRIVOLOUSLY, THAT LISA CANNOT PROVE A
9 “DEFAMATION CLAIM”. THERE IS NO DEFAMATION CLAIM.
10 56. Defendants spend many pages arguing that their Press Releases were not defamatory, but
11 the law of defamation has no relevance here. Defendants’ argument is therefore frivolous.
12 57. The issue is not whether Defendants’ Statements were “defamatory”, or whether they
13 were “true”. The issue is whether they breached the contractual language contained in the Agreement.
14 The meaning of that language, which was requested by Defendants and carefully crafted at mediation,
15 and its application to the Press Releases are the only relevant issues in this breach of contract case.
16 58. In fact, had the parties to the ND Provision intended only defamatory statements to apply,
17 they would have said so. “The court interprets words in accordance with their ordinary and popular sense
18 and, if the contractual language is clear and does not involve an absurdity, the plain meaning governs.”
19 (California Union Square L.P. v. Saks & Co. LLC (2021) 71 Cal.App.5th 136, 141-42.) “[T]here are no
20 “magic words” required in a contract to interpret its plain meaning.” (Coral Farms L.P. v. Mahony (2021)
21 63 Cal.App.5th 719, 731 fn. 3.) “The plain language of the ND Provision states exactly what it means:
22 that any statement, whether or not true, that reflects negatively upon a party is prohibited.
23 59. The Civil Code provides rules for interpretation of contracts:
24 a. Cal Civ Code § 1638: “The language of a contract is to govern its interpretation, if the
25 language is clear and explicit, and does not involve an absurdity.”
26 b. Cal Civ Code § 1639: “When a contract is reduced to writing, the intention of the
27 parties is to be ascertained from the writing alone, if possible …”
28 c. Cal Civ Code § 1643: “A contract must receive such an interpretation as will make it
12
PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
1 lawful, operative, definite, reasonable, and capable of being carried into effect, if it
2 can be done without violating the intention of the parties”
3 d. Cal Civ Code § 1644: “The words of a contract are to be unders
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 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN THE COUNTY OF NAPA 11 LISA KEITH, CASE NO: 22CV001269 12 Plaintiff, PLAINTIFF LISA KEITH’S OPPOSITION 13 TO DEFENDANTS’ MOTION FOR v. SUMMARY JUDGMENT OR, IN THE 14 ALTERNATIVE, SUMMARY CELESTE WHITE, an individual, ROBERT ADJUDICATION OF DEFENDANTS 15 WHITE, an individual, the VALLEY ROCK VALLEY ROCK FOUNDATION, DR. FOUNDATION, aka THE BAR 49 ROBERT WHITE, AND CELESTE WHITE 16 FOUNDATION, a charitable organization, and AS TO PLAINTIFF LISA KEITH’S FIRST DOES 1-50, INCLUSIVE, AMENDED COMPLAINT; 17 MEMORANDUM OF POINTS AND Defendants. AUTHORITIES IN SUPPORT 18 Date: March 8, 2024 19 Time: 8:30 a.m. Judge: Hon. Scott R.L. Young 20 Dept.: B Complaint Filed: October 25, 2022 21 FAC Filed: March 8, 2023 Trial Date: April 2, 2024 22 23 24 25 26 27 28 1 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 TABLE OF CONTENTS 2 I. INTRODUCTION ............................................................................................................................... 1 3 II. FACTUAL BACKGROUND ............................................................................................................ 2 4 III. LEGAL STANDARD....................................................................................................................... 6 5 A. STANDARD FOR SUMMARY JUDGMENT.......................................................................... 6 6 B. BURDEN OF PERSUASION ..................................................................................................... 7 7 8 IV. ARGUMENT .................................................................................................................................... 7 9 A. TRIABLE ISSUES OF FACT EXIST PREVENTING SUMMARY JUDGMENT OR 10 SUMMARY ADJUDICATION ON THE FIRST CAUSE OF ACTION – BREACH OF 11 CONTRACT. ....................................................................................................................................... 8 12 B. DEFENDANTS ARGUE, FRIVOLOUSLY, THAT LISA CANNOT PROVE A 13 “DEFAMATION CLAIM”. THERE IS NO DEFAMATION CLAIM....................................... 12 14 C. A TRIABLE ISSUE OF MATERIAL FACT EXISTS AS TO BREACH OF THE IMPLIED 15 COVENANT OF GOOD FAITH AND FAIR DEALING. ........................................................... 16 16 17 D. TRIABLE ISSUES OF MATERIAL FACT EXIST AS TO LISA’S CLAIM OF 18 INTENTIONAL MISREPRESENTATION. ................................................................................. 17 19 E. A TRIABLE ISSUE OF MATERIAL FACT EXISTS AS TO LISA’S ENTITLEMENT TO 20 PUNITIVE DAMAGES. LISA CAN ESTABLISH BY CLEAR AND CONVINCING 21 EVIDENCE THAT DEFENDANTS KNEW THEIR STATEMENTS WERE FALSE OR 22 ACTED WITH RECKLESS DISREGARD OF THEIR FALSITY. ........................................... 19 23 V. CONCLUSION................................................................................................................................. 20 24 25 26 27 28 2 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 TABLE OF AUTHORITIES Page(s) 2 Cases 3 Aetna Cas. & Sur. Co. v Aceves, 4 (1991) 233 CA3d 544 ........................................................................................................................... 8 5 Aguilar, supra, 25 Cal.4th ............................................................................................................................... 8, 9 6 Alliance Mortgage, supra, 10 Cal.4th ................................................................................................................................. 24 7 Brown v. Grimes, (2011) 192 Cal.App.4th 265 ............................................................................................................... 12 8 Burch v. Premier Homes, LLC, 9 (2011) 199 Cal,.App.4th 730 .............................................................................................................. 13 California Union Square L.P. v. Saks & Co. LLC, 10 (2021) 71 Cal.App.5th 136 ................................................................................................................. 16 Coral Farms L.P. v. Mahony, 11 (2021) 63 Cal.App.5th 719 fn. 3 ......................................................................................................... 16 12 County of Marin v. Assessment Appeals Bd. of Marin County, (1976) 64 Cal.App.3d 319 .................................................................................................................. 12 13 Defendants cite Bionghi v. Metro, (1999) 70 Cal.App.4th ........................................................................................................................ 22 14 Dietrich v. Litton Industries, Inc., (1970) 12 Cal.App.3d 704 .................................................................................................................. 26 15 EHP Glendale v. County of Los Angeles, 16 (2011) 193 Cal.App.4th 262 ................................................................................................................. 6 Kaney v. Custance, 17 (2022) 74 Cal.App.5th 201.................................................................................................................... 7 Loomis v. Amazon.com LLC, 18 (2021) 63 Cal.App.5th 466.................................................................................................................... 8 MacLeod v. Tribune Publishing Co., 19 (1959) 52 Cal.2d 536 .......................................................................................................................... 25 20 McHenry v. Asylum Entertainment Delaware, LLC, (2020) 46 Cal.App.5th 469.................................................................................................................... 7 21 Molko v. Holy Spirit Assn., (1988) 46 Cal.3d 1092 .......................................................................................................................... 6 22 Moore v. Wells Fargo Bank, N.A., (2019) 39 Cal.App.5th 280 ................................................................................................................. 21 23 Morcom v. San Francisco Shopping News, 24 (1935) 4 Cal.App.2d 284 .................................................................................................................... 25 Morey v. Vannucci, 25 (1998) 64 Cal.App.4th 904 ................................................................................................................. 13 Overland Plumbing, Inc. v Transamerica Ins. Co., 26 (1981) 119 CA3d 476 ........................................................................................................................... 7 Porter v. Arthur Murray, Inc., 27 (1967) 249 Cal.App.2d 410 ................................................................................................................ 12 28 3 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT Racine & Laramie, Ltd. v. Department of Parks & Recreation, 1 (1992) 11 Cal.App.4th 1025 ............................................................................................................... 21 Reeves v. Safeway Stores, Inc., 2 (2004) 121 Cal.App.4th 95 ................................................................................................................... 9 3 Richman v. Hartley, (2014) 224 Cal.App.4th 1182 ............................................................................................................. 12 4 Sandell v Taylor-Listing, Inc., (2010) 188 CA4th 297 .......................................................................................................................... 8 5 Schmidlin v. City of Palo Alto, (2007) 157 Cal.App.4th 728 ............................................................................................................... 10 6 Seeger v. Odell, 7 (1941) 18 Cal.2d 409 .......................................................................................................................... 24 Soria v. Univision Radio Los Angeles, Inc., 8 (2016) 5 Cal.App.5th 570 ..................................................................................................................... 7 Tarmann v. State Farm Mut. Auto Ins. Co., 9 (1991) 2 Cal.App.4th 153 ............................................................................................................. 22, 23 10 TransCore, LP v. Elec. Transaction Consultants Corp., (2009) 563 F.3d 1271.......................................................................................................................... 17 11 Truong v. Nguyen, (2007) 156 Cal.App.4th 865.................................................................................................................. 8 12 Weiss v. People ex rel. Department of Transportation, (2020) 9 Cal.5th 840 ............................................................................................................................. 6 13 Statutes 14 15 Cal Civ Code § 1638 ............................................................................................................................... 12 Cal Civ Code § 1639 ............................................................................................................................... 12 16 Cal Civ Code § 1643 ............................................................................................................................... 12 Cal Civ Code § 1644 ............................................................................................................................... 13 17 Cal. Code Civ. Proc. § 1856(b), (d) ........................................................................................................ 13 Cal. Code Civ. Proc. § 1856(g) ............................................................................................................... 13 18 California Civil Code § 1668 .................................................................................................................. 19 19 CCP §437c(o)(1)–(2) ................................................................................................................................ 8 Civil Code § 1542 ..................................................................................................................................... 2 20 Code Civ. Proc. § 128.5(b)(2) ................................................................................................................. 11 Code Civ. Proc. § 437(c)........................................................................................................................... 7 21 Code Civ. Proc. §437c(c) ...................................................................................................................... 6, 8 Code Civ. Proc., § 473(a).......................................................................................................................... 7 22 Code Civ. Proc., § 473(c).......................................................................................................................... 6 23 Code of Civil Procedure § 128.7............................................................................................................... 5 Evid. Code, § 500...................................................................................................................................... 7 24 Other Authorities 25 Witkin, Summary of Cal. Law, supra, Torts, § 812, p.1173 ................................................................... 18 26 27 28 4 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 I. INTRODUCTION 2 1. Triable issues of material fact exist as to all of Plaintiff Lisa Keith’s (“Lisa”) causes of 3 action. Defendants’ Motion for Summary Judgment/Summary Adjudication (“Motion”) seeks to 4 immunize Defendants from having to explain to a jury how statements they deliberately published that 5 were false, derogatory, critical of, and/or negative (“Statements”) toward Lisa, (1) do not constitute a 6 breach of the Settlement Agreement (“Agreement”), approved by the Court on August 20, 2020; (2) are 7 not a breach of the Covenant of Good Faith and Fair Dealing; and (3) how their signing the Agreement 8 knowing they didn’t intend following it does not constitute Intentional Misrepresentation. 9 2. Defendants seek to obfuscate the issues before the Court. While the bulk of Defendant’s 10 brief argues that defamation law should apply, there is no claim for defamation (and the Agreement does 11 not mention “defamation” in any way). Furthermore, Defendants’ Motion is based almost entirely on an 12 intentional blindness to the most egregious Statement in the press releases, that the court in the prior trust 13 litigation had found that Lisa, as plaintiff, had no evidence to support her claims, a Statement that is not 14 only false, but also derogatory, critical of, and negative toward Lisa. Defendants must omit mention of 15 this fact, because if they admitted its existence, the instant Motion fails. 16 3. The credibility of the Defendants reaches an all-time low in this Motion. They make 17 statements under penalty of perjury in their Declarations, that directly contradict their statements in 18 previous declarations in this case, as well as their own deposition testimony. 19 4. Although discovery is ongoing (Defendants have been impeding Lisa’s attempts at third- 20 party discovery), Lisa is confident she can demonstrate to a jury the merit of her claims. Defendants, in 21 their Motion, admit to having had the opportunity to review the Statements in question. Despite having 22 this opportunity, they chose to publish the Statements, and when asked, declined to retract the 23 Statements. 24 5. While a jury will ultimately decide if the Statements are disparaging, derogatory, critical, 25 negative, and/or false; and whether they violate the Non-Disparagement clause (“ND Provision”), 26 Defendants’ actions clearly illustrate their intentional and reckless disregard of the Agreement. A jury 27 needs to decide whether Defendants’ attempts to shift the blame to their public relations agent, whom 28 they hired, substantiates the need for a punitive damages award. This act of deflecting responsibility for 1 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 the publishing of the Statements not only undermines their defense but also exposes a level of malice 2 and egregious conduct that will certainly resonate with a jury. 3 6. Most importantly, triable issues of fact exist preventing the granting of summary 4 judgment/summary adjudication. The Court must deny Defendants’ Motion. 5 II. FACTUAL BACKGROUND 6 7. This action arises out of Defendants’ breach of the Agreement, which effected a 7 resolution of a previous legal dispute between Lisa and Defendant Celeste White (“Celeste”), as co- 8 trustee of the Edward A. Keith Declaration of Trust executed on August 16, 2002 “(“Trust”), that gave 9 rise to Case No. 26-36111 in the Probate department of Napa County Superior Court (“Trust Action”). 10 8. The Trust Action involved, among other things, Lisa’s request for accountings, return of 11 Trust property, and surcharge if appropriate, against Celeste. On or about April 26, 2020, the Trust 12 Action was settled at mediation. The parties to the Trust Action, together with all beneficiaries, executed 13 the Agreement to formalize the settlement. (Declaration of Lisa Keith [“Lisa Decl.”], ¶ 3; Ex. A.) 14 9. The Agreement was conditioned on approval of the Court in the Trust Action. On August 15 20, 2020, the Court entered an Order Granting Petition for Approval of Agreement and Approval and 16 Settlement of Accountings approving and giving effect to the Agreement (“August 20, 2020, Order”). 17 (A true and correct copy of the August 20, 2020, Order is attached to Petitioner’s Request for Judicial 18 Notice (“RJN”) as Exhibit 2.) Under the Agreement Celeste promised to pay certain sums to Lisa. The 19 Agreement included a general release, a Civil Code § 1542 waiver, and included a “Covenant Not To 20 Sue” provision; however, that provision carves out as permissible such efforts as “necessary and 21 appropriate to enforce the terms of this Settlement Agreement”. (Lisa Decl.; Ex. A, Agreement, ¶ 6.) 22 10. The Agreement includes the ND Provision at issue: 23 7. Non-Disparagement 24 Each Party agrees that they will not communicate through any medium or by any means, including but not limited to email and social media, any remark, comment, message, 25 information, declaration, communication or other statement of any kind that might reasonably be construed to be derogatory or critical of, or negative toward, any other 26 Party with respect to any issue that concerns, regards, or relates in any way to the Napa Proceeding, the Sonoma Proceeding, the Trust, any trust of which the Beneficiaries are 27 beneficiaries funded with assets distributed from the Trust, the Foundation, or Sundown Ranch, LLC. 28 2 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT Notwithstanding the foregoing, the Parties may discuss this matter with (i) their 1 immediate family members, provided such family members are informed of this Section 7 and agree to be bound by it; (ii) their accountants, tax advisors, or employees, provided 2 such persons agree to be bound by this Section 7; (iii) their attorneys for the purpose of obtaining legal advice, (iv) state, federal, and other local tax authorities when legally 3 required; and (v) as reasonably necessary to enforce the terms hereof or to defend against any claim for enforcement of this Settlement Agreement brought against them by other 4 Parties to this Settlement Agreement. 5 The Parties agree that damages resulting from a breach of this Section 7 likely will be difficult or incapable of being ascertained or valued, and therefore, the Parties agree that, 6 should it be proven in a court of law or other competent forum that a Party has violated this Provision, that Party shall pay the greater of the actual damages proven or liquidated 7 damages in the amount of Ten Thousand Dollars ($10,000) for each such communication, plus reasonable attorneys' fees incurred by the protected Party or Parties in proving such 8 violation. (Lisa Decl.; Ex. A, Agreement, ¶ 7.) 9 11. In February 2018, (well prior to the Agreement) the Napa Valley Register published an 10 article describing the Trust Action (“NVR Article”). (Declaration of Dr. Robert White [“Robert Decl.”], 11 ¶ 14.) (Declaration of Sam Singer [“Sam Decl.”], ¶ 3; Ex. 1.) Dr. Robert White (“Robert”) found the 12 NVR Article to be derogatory, critical of, and negative toward them, even though it is almost entirely 13 factual. (See Draft Transcript of February 16, 2024, Deposition of Dr. Robert White; 87:17-25; 14 Declaration of John S. Rueppel [“JSR Decl.”], Ex. A.) 15 12. On or around March 15, 2021, Defendants, acting through a public relations firm, Singer 16 Associates, San Francisco, issued a press release (“March 2021 Press Release”) via PR Newswire, a 17 national news distribution service that feeds thousands of newsrooms and social media sites across the 18 country. (Lisa Decl.; Ex. B) 19 13. The March 2021 Press Release stated in part that, “White provided a full accounting of 20 her father’s Trust and of her management of the estate, and after a full examination, the court found no 21 evidence to support the plaintiff’s claims. Judge Langhorne’s order sided entirely with Celeste K. White 22 and her diligent management of the estate.” 23 14. On or around August 24, 2021, Defendants issued another press release, via 24 BusinessWire, another national news distribution service that feeds thousands of newsrooms and social 25 media sites across the country, titled “Celeste White of Napa Prevails in Estate Case of Late Father, 26 Prominent Napa Valley Businessman Ed Keith.” (“August 2021 Press Release”) (Lisa Decl.; Ex. C). 27 15. The August 2021 Press Release made further disparaging, derogatory, critical, negative, 28 and false Statements to the effect that a judge had fully exonerated Defendant, as well as derogatory, 3 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 critical and negative Statements about Lisa in relation to the Trust Action. 2 16. Regarding Lisa, the March 2021 Press Release and the August 2021 Press Release both 3 (together the “Press Releases”) stated: 4 White's sister Lisa Keith, one of her four siblings, later attempted to claim that White had not properly carried out her duties as co-trustee, particularly regarding the 5 management of the foundation. In 2017, Judge Rodney Stone ruled Lisa Keith had no standing regarding the foundation and the foundation claims were struck from the 6 lawsuit. However, despite that loss, Lisa Keith persisted in her other claims and demanded that Celeste White create a probate accounting of the Trust. (Lisa Decl.; Ex. 7 B & C). 8 17. The August 2021 Press Release also quoted Celeste as saying, “I’m glad this ordeal is 9 finally over and that the Court recognized that everything I have done since my father’s passing has 10 been in complete accordance with his wishes and my role as trustee.” 11 18. The August 2021 Press Release was distributed to thousands of news agencies. On 12 information and belief, thousands or tens of thousands of individuals read these headlines and articles. 13 19. In addition to these two national news releases, Celeste sought to further amplify the 14 distribution by posting the Press Releases on her personal Twitter account and posting the Press Releases 15 on Singer Public Relations’ website. (Lisa Decl.; Exs. D & E) 16 20. Many of the Statements in the Press Releases are false and/or misleading. For example, 17 the Court did not rule that everything Celeste had done since her father’s passing was in complete 18 accordance with his wishes and her role as trustee; on March 29, 2019, the Court had to order Celeste to 19 file code-compliant verified accountings covering her administration from September 15, 2006, to 20 January 15, 2013, as she had “initially refused to provide any accounting despite continued requests, 21 then claimed an inability to account, and finally provided an unsigned, accounting-like document, which, 22 according to petitioner’s counsel, is extremely difficult to follow and appears purposefully scattered 23 chronologically and categorically.” (A true and correct copy of the Order on Request for Trustee to File 24 Verified Accounting is attached to Petitioner’s RJN as Exhibit 3.) The conduct of Celeste and Robert 25 giving rise to the Trust Action was sufficiently alarming to prompt the California Attorney General to 26 join the proceeding to protect charitable interests in the Trust. The parties agreed to mediate only after 27 Celeste had filed her third attempt at accountings. 28 21. There was never any actual judicial review of any of Celeste’s accountings in the Trust 4 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 Action. In its August 20, 2020, Order, the Court deemed the accountings “settled, allowed, approved” 2 and Celeste’s acts and transactions as co-trustee “ratified, confirmed, and approved,” but only because 3 these were terms of the Agreement. (See RJN #2, Order, ¶ 4; and Lisa Decl.; Ex. A, Agreement, ¶ 1.) 4 Contrary to the Statements Celeste has now widely published through the August 2021 Press Release, 5 the Court never exonerated Celeste from wrongdoing as co-trustee. It simply settled the accounts in the 6 context of approving the parties’ Agreement and thus ending the litigation. 7 22. The two Press Releases were separate national press releases distributed by two different 8 national distribution services intended to reach hundreds of media outlets, and to ensure that any internet 9 searches containing the names of Defendants would show the content of these releases and push the 10 NVR Article off of the first page of Google. 11 23. Defendants’ assertion in their March 2021 Press Release that “the court found no evidence 12 to support the plaintiff’s claims” is contrary to the facts. If there was no merit and “no evidence” to 13 support Lisa’s claims, the Court would not have ordered accountings (See RJN # 3); Celeste would not 14 have signed the Agreement promising to pay Lisa $1,295,000 as compensation for damages (Lisa Decl.; 15 Ex. A, Agreement, ¶ 2A.), and taking responsibility for liens owed by each sibling, totaling 16 approximately $1.6 million dollars. (Lisa Decl.; Ex. A, Agreement, ¶ 2B.) (Draft Transcript of February 17 15, 2024, Deposition of Celeste White [“Celeste Depo”]; 93:5-95:16; Declaration of John S. Rueppel 18 [“JSR Decl.”], Ex. B.) 19 24. If there were “no evidence to support the plaintiff’s claims,” why did none of the 20 Defendants file a motion for sanctions under Code of Civil Procedure § 128.7, alleging that Lisa’s lawsuit 21 was frivolous? 22 25. In early 2022, Lisa notified Defendants that she was aware of the disparaging, derogatory, 23 critical, negative, and false Statements and asked Defendants to retract the Statements. Defendants 24 ignored Lisa’s requests. The articles remain online and easily discoverable via internet search. 25 26. The term “communication” is not defined in the Agreement. Lisa believes that a 26 “communication” would include each and every time the Statements were published online, in print, or 27 made orally. 28 27. In the March 2021 Press Release, Celeste is cited as the “source” for the release, which 5 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 contains knowingly false and deliberately misleading information. 2 III. LEGAL STANDARD 3 A. STANDARD FOR SUMMARY JUDGMENT 4 28. A motion for summary judge is used to determine whether there exists a genuine issue of 5 material facts. (Code Civ. Proc., § 473(c); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 6 superseded by statute on other grounds, as stated in Aguilar v. Atlantic Richfield Co. (2001) 25 7 Cal.4th.826, 853, fn. 19; EHP Glendale v. County of Los Angeles (2011) 193 Cal.App.4th 262, 270-271.) 8 If the inferences drawn from the evidence are contradicted by other inferences, or by evidence that 9 presents a triable issue as to any material fact, the motion for summary judgment must be denied. Code 10 Civ. Proc. §437c(c). 11 29. “Courts deciding motions for summary judgment or summary adjudication may not 12 weigh the evidence but must instead view it in the light most favorable to the opposing party and draw 13 all reasonable inferences in favor of that party.” (Weiss v. People ex rel. Department of Transportation 14 (2020) 9 Cal.5th 840, 864.” “The court strictly construes the evidence of the moving party and liberally 15 construes the evidence of the opposing party (Kaney v. Custance (2022) 74 Cal.App.5th 201); McHenry 16 v. Asylum Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469). 17 30. Summary Judgment cannot be granted when the facts are susceptible to more than one 18 reasonable inference.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583.) 19 31. If the disputed facts are material, the court will not grant summary judgment. (Overland 20 Plumbing, Inc. v Transamerica Ins. Co. (1981) 119 CA3d 476, 481). 21 32. A material fact is in “genuine dispute” when the record contains evidence sufficient to 22 allow a reasonable juror to find the underlying fact in favor of the non-moving party in accordance with 23 the applicable standard of proof (Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466; Truong v. 24 Nguyen (2007) 156 Cal.App.4th 865). 25 33. If … other reasonable inferences can be drawn, even if based only on circumstantial 26 evidence, summary judgment or adjudication is not proper. (Aetna Cas. & Sur. Co. v Aceves (1991) 233 27 CA3d 544, 557. See also Sandell v Taylor-Listing, Inc. (2010) 188 CA4th 297, 324 (even “strong 28 inference” in favor of one side is not reason to grant summary judgment; “the fact that a juror could 6 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 reasonably draw a different inference is sufficient to preclude summary judgment”). 2 B. BURDEN OF PERSUASION 3 34. A party who asks a court to act in his or her favor also bears the burden of persuasion. 4 (Evid. Code, § 500.) Thus, “from commencement to conclusion, the party moving for summary judgment 5 bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to 6 judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th, at 850.) The moving party bears the initial 7 burden of production to make a prima facie showing that there are no triable issues of material fact. (Id.) 8 35. “A plaintiff resisting a motion for summary judgment bears no burden to establish any 9 element of his or her case unless and until the defendant presents evidence either affirmatively negating 10 that element … or affirmatively showing that the plaintiff does not possess and cannot acquire evidence 11 to prove its existence.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) Only if 12 defendant meets its burden do we get to the second issue. For that the only questions are whether the 13 entire action has no merit or whether there is no defense to the action. (Code Civ. Proc., § 473(a).) 14 36. Pursuant to Code Civ. Proc. § 437(c), summary adjudication cannot be granted as to 15 “parts” of a cause of action, only as to an entire cause of action. “A motion for summary adjudication 16 tenders only those issues or causes of action specified in the notice of motion, and may only be granted 17 as to the matters thus specified. The movant must “state specifically in the notice of motion and ... repeat, 18 verbatim, in the separate statement of undisputed material facts,” “the specific cause of action, 19 affirmative defense, claims for damages, or issues of duty” as to which summary adjudication is sought. 20 The motion must be denied if the movant fails to establish an entitlement to summary adjudication of 21 the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis 22 to do so appears from the papers.” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-444, 23 as modified (Jan. 2, 2008).) Here, Defendants bear the burden to move forward, however, as the Court 24 would see, Defendants fail to meet that burden. Therefore, the Court should deny Defendants’ motion 25 for summary judgment or in alternative summary adjudication. 26 IV. ARGUMENT 27 37. Defendants’ Motion for Summary Judgment on all three causes of action (and entitlement 28 to punitive damages) in Lisa’s First Amended Complaint (“FAC”) should be denied. Defendants have 7 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 failed to meet their burden of showing that there is no triable issue of material fact (CCP §437c(c)). 2 Conflicting evidence exists that gives rise to reasonable conflicting inferences and shows that there is a 3 triable issue of material fact. 4 38. Defendants’ Motion in the alternative for Summary Adjudication as to the second cause 5 of action for breach of the covenant of good faith and fair dealing; and the third cause of action for 6 intentional misrepresentation should be denied. Defendants cannot show that these causes of action are 7 without merit (i.e., one or more elements of a cause of action cannot be separately established), or that 8 an affirmative defense exists as to either cause of action. CCP §437c(o)(1)–(2). 9 39. Celeste’s Motion for Summary Adjudication as to the first cause of action for breach of 10 contract “on the grounds that the evidence shows she did not draft, revise, or otherwise contribute in any 11 way to the language in the Press Release” should be denied. Celeste cannot show that this cause of action 12 is without merit, or that an affirmative defense exists. CCP §437c(o)(1)–(2). 13 A. TRIABLE ISSUES OF FACT EXIST PREVENTING SUMMARY JUDGMENT 14 OR SUMMARY ADJUDICATION ON THE FIRST CAUSE OF ACTION – BREACH OF 15 CONTRACT. 16 Lisa Can Prove Breach Of Contract, Because The Parties Drafted The ND Provision To 17 Bar A Very Wide Range Of Speech. 18 40. Defendants’ argument attempts to insert terms into the ND Provision that simply aren’t’ 19 there. Defendants’ assert that “Plaintiff cannot prove any Defendant breached the ND Provision because 20 the Press Release was factually accurate and read in context, including its nondefamatory purpose, 21 could not reasonably be construed to be derogatory or critical of, or negative toward, Plaintiff.” But 22 this is a red-herring. Whether or not the “Press Release was factually accurate” is not relevant, this is 23 not a defamation action; it is a breach of contract action. A Statement by Defendants that is “factually 24 accurate” could still “reasonably be construed to be derogatory or critical of, or negative toward, 25 Plaintiff,” and in breach of the Agreement. (Even so, as is discussed more below, the evidence shows 26 that the Press Releases were not in fact “factually accurate.”) (Plaintiff’s Separate Statement [“PSS”], 27 Issue #1, Facts 1-6.) 28 41. Defendants purportedly wanted the ND Provision in the Agreement because they were 8 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 concerned about the NVR Article’s effect on their reputation. In fact, they issued the Statements, under 2 the cover of improving their reputation, to impugn Lisa and get revenge for what they believed was 3 Lisa’s role in the NVR Article (although she had no role; the NVR Article quotes almost entirely from 4 Lisa’s filed petition in the Trust Action). Defendants might have chosen any number of press releases 5 about their businesses that would not have affected Lisa, but they chose to issue Statements that 6 mentioned Lisa multiples times, casting her in a disparaging and negative light. This breached the 7 Agreement. 8 42. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the 9 contract, (2) plaintiff’s performance of the contract or excuse for nonperformance, (3) defendant's 10 breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 11 1186.) “When a party's failure to perform a contractual obligation constitutes a material breach of the 12 contract, the other party may be discharged from its duty to perform under the contract. Normally the 13 question of whether a breach of an obligation is a material breach, so as to excuse performance by the 14 other party, is a question of fact. Whether a partial breach of a contract is material depends on ‘the 15 importance or seriousness thereof and the probability of the injured party getting substantial 16 performance.’ ‘A material breach of one aspect of a contract generally constitutes a material breach of 17 the whole contract.”’ (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277-278) (internal citations 18 omitted.) Whether there is a material breach of a contract is a question of fact, and so appropriate for 19 determination by a jury. (Porter v. Arthur Murray, Inc. (1967) 249 Cal.App.2d 410, 421.) 20 43. “[T]he contract must be construed as a whole and the intention of the parties must be 21 ascertained from the consideration of the entire contract, not some isolated portion.” (County of Marin 22 v. Assessment Appeals Bd. of Marin County (1976) 64 Cal.App.3d 319, 324-325.) “Any contract must 23 be construed as a whole, with the various individual provisions interpreted together so as to give effect 24 to all, if reasonably possible or practicable.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & 25 Smith (1998) 68 Cal.Ap.4th 445, 473.) 26 44. “Where the interpretation of contractual language turns on a question of the credibility of 27 conflicting extrinsic evidence, interpretation of the language is not solely a judicial function.” (Morey v. 28 Vannucci (1998) 64 Cal.App.4th 904, 912-13.) In this case, there appears to be a difference of opinion 9 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 as to whether or not the ND Provision bars statements that are negative but are true or factual. 2 Accordingly, the determination of the parties’ intent relative to this provision will rely on conflicting 3 extrinsic evidence and testimony, making this determination also a question of fact for the jury. 4 45. A jury needs to determine if Defendants’ Statements breached the Agreement. “In cases 5 where there is ‘any apparent conflict between its different clauses or provisions, the circumstances 6 surrounding its execution and the conditions and motives of the parties as shown by recitals in the 7 contract or matters in evidence should be taken into consideration in order that the true intent of the 8 parties may be ascertained.’ (Burch v. Premier Homes, LLC (2011) 199 Cal,.App.4th 730, 744.) 9 46. Defendants’ Motion focuses only on the element of breach; Defendants do not argue that 10 there is no enforceable agreement, that Lisa did not perform, or that Lisa was not damaged. Therefore, 11 Lisa will limit her argument here to the element of breach. 12 47. The determination of Lisa’s claim for breach of contract will hinge on two issues: (1) the 13 interpretation of the Agreement, and (2) the application of the Agreement to the Press Releases at issue. 14 48. Lisa alleges Defendants breached the following provision of the Agreement: 15 Each Party agrees that they will not communicate through any medium or by any means, including but not limited to email and social media, any 16 remark, comment, message, information, declaration, communication or other statement of any kind that might reasonably be construed to be 17 derogatory or critical of, or negative toward, any other Party with respect to any issue that concerns, regards, or relates in any way to the Napa 18 Proceeding, the Sonoma Proceeding, the Trust, any trust of which the Beneficiaries are beneficiaries funded with assets distributed from the Trust, 19 the Foundation, or Sundown Ranch, LLC. 20 (Lisa Decl.; Ex. A, Agreement) (emphasis added.) 21 49. In other words, to prove a breach of the Agreement, Lisa does not have to prove that each 22 Statement was unequivocally “derogatory”, “critical of”, or “negative toward” Lisa; she only has to 23 prove they could be “reasonably construed” as such. This is a much lower burden for Lisa to meet. 24 50. Multiple Statements in the Press Releases can be reasonably construed as “derogatory”, 25 “critical of”, or “negative toward” Lisa: 26 a. “White’s sister Lisa Keith, one of her four siblings, later attempted to claim that White had not properly carried out her duties as trustee…”. 27 b. “In 2017, Judge Rodney Stone ruled Lisa Keith had no standing regarding the foundation and the foundation claims were struck from the lawsuit.” 28 10 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT c. “However, despite that loss, Lisa Keith persisted in her other claims and demanded 1 that Celeste White create a probate accounting of the Trust.” d. “after a full examination, the court found no evidence to support the plaintiff’s1 2 claims.” 3 51. These Statements can reasonably be construed as negative, because they, both explicitly 4 and impliedly, cast Lisa in a negative light. That Lisa “attempted to claim” that Celeste had not carried 5 out her duties as trustee implies that Lisa failed in her endeavors. Relating the court ruling that Lisa 6 lacked standing to make claims regarding the foundation, and that her claims were struck, similarly 7 indicates failure or poor judgment. Stating that she “persisted” in her claims, and that she “demanded” 8 and accounting, attempts to paint Lisa as irrational and demanding, as opposed to within her rights as a 9 beneficiary. Finally, and worst of all, is the Statement that the court found “no evidence to support the 10 plaintiff’s claims". This Statement implies that Lisa’s claims were patently frivolous and brought only 11 to harass and oppress the Defendants. “Frivolous” is defined by the Code of Civil Procedure as “totally 12 and completely without merit” or for “the sole purpose of harassing an opposing party”. (Code Civ. Proc. 13 § 128.5(b)(2).) 14 52. Because these Statements could reasonably be construed as negative, derogatory, or 15 critical of Lisa, a triable issue of fact exists as to the element of breach. Accordingly, the Court should 16 deny the Defendants’ Motion because triable issues exist as to the element of breach. 17 The Intent of the Non-Disparagement Provision Was to Bar All Negative Communications 18 About Each Other, Whether True or Not. 19 53. Defendants argue that the ND Provision “the parties intended the ND Provision to 20 prohibit only defamatory statements and not factually accurate ones.” This argument is based on the 21 unsubstantiated theory that the parties to the contract intended general defamation law to apply to the 22 ND Provision, when the provision does not refer to defamation law in any way. Defendants’ reliance 23 upon completely irrelevant law for their motion renders their argument frivolous. 24 54. Lisa believes that the ND Provision was intended to bar any negative communication 25 about her sister and the other parties to the Trust Action. That is why Lisa scrupulously avoided making 26 27 1 28 (In her deposition, Celeste White identified the “plaintiff” as Lisa Keith.) Celeste Depo; 12:14-16) 11 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 such statements herself. (Lisa Decl.; ¶ 8.) In fact, at deposition, Celeste admitted that a true statement, if 2 it could reasonable be construed as negative towards a party, could also breach the agreement. (Celeste 3 Depo; 19:19-22:11). 4 55. Therefore, a dispute does exist as to the intent of the parties to the Agreement related to 5 the ND Provision, and evidence in support of Lisa’s plain reading of that provision includes the 6 Defendants’ own Statements. As such, a triable issue of material fact exists as to the meaning of the ND 7 Provision. 8 B. DEFENDANTS ARGUE, FRIVOLOUSLY, THAT LISA CANNOT PROVE A 9 “DEFAMATION CLAIM”. THERE IS NO DEFAMATION CLAIM. 10 56. Defendants spend many pages arguing that their Press Releases were not defamatory, but 11 the law of defamation has no relevance here. Defendants’ argument is therefore frivolous. 12 57. The issue is not whether Defendants’ Statements were “defamatory”, or whether they 13 were “true”. The issue is whether they breached the contractual language contained in the Agreement. 14 The meaning of that language, which was requested by Defendants and carefully crafted at mediation, 15 and its application to the Press Releases are the only relevant issues in this breach of contract case. 16 58. In fact, had the parties to the ND Provision intended only defamatory statements to apply, 17 they would have said so. “The court interprets words in accordance with their ordinary and popular sense 18 and, if the contractual language is clear and does not involve an absurdity, the plain meaning governs.” 19 (California Union Square L.P. v. Saks & Co. LLC (2021) 71 Cal.App.5th 136, 141-42.) “[T]here are no 20 “magic words” required in a contract to interpret its plain meaning.” (Coral Farms L.P. v. Mahony (2021) 21 63 Cal.App.5th 719, 731 fn. 3.) “The plain language of the ND Provision states exactly what it means: 22 that any statement, whether or not true, that reflects negatively upon a party is prohibited. 23 59. The Civil Code provides rules for interpretation of contracts: 24 a. Cal Civ Code § 1638: “The language of a contract is to govern its interpretation, if the 25 language is clear and explicit, and does not involve an absurdity.” 26 b. Cal Civ Code § 1639: “When a contract is reduced to writing, the intention of the 27 parties is to be ascertained from the writing alone, if possible …” 28 c. Cal Civ Code § 1643: “A contract must receive such an interpretation as will make it 12 PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT 1 lawful, operative, definite, reasonable, and capable of being carried into effect, if it 2 can be done without violating the intention of the parties” 3 d. Cal Civ Code § 1644: “The words of a contract are to be unders